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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


JJ 


'* 


A    DIGEST 

OF 

THE  LAW  OF  EVIDENCE. 


A    DIGEST 


LAW  OF   EVIDENCE 


BY 


SIR  JAMES  FITZJAMES  STEPHEN,  Bart.,  K.C.S.  I.,  D.C.L. 

FORMERLY  A  JUDGE  OF  THE  HIGH  COURT  OF   JUSTICE,  QUEEN'S 

BENCH   DIVISION  ;     HONORARY  FELLOW  OF 

TRINITY  COLLEGE,  CAMBRIDGE 


SECOND  AMERICAN  EDITION 

(FROM   THE   SIXTH   ENGLISH   EDITION) 
WITH  ANNOTATIONS  AND  REFERENCES  TO  AMERICAN  CASES 

BY 
GEORGE   CHASE,  LL.B. 

PROFESSOR  OF  LAW  IN  THE  NEW  YORK  LAW  SCHOOL,  NEW  YORK  CITY, 
AND  DEAN  OF  THE  FACULTY 


NEW  YORK 
PRINTED   FOR   THE   EDITOR 


T 

st  436  a 

\838 


Copyright, 
GEORGE    CHASE, 

1885. 

Copyright, 

GEORGE    CHASE. 

1898. 


# 


EDITOR'S  NOTE  TO  FIRST  AMERICAN  EDITION. 

a  


The  merits  of  "Stephen's  Digest"  are  too  well  known  to  need 
repetition.  It  has  been  accepted  in  this  country,  as  well  as  in 
England,  as  a  standard  treatise  upon  the  subject  of  Evidence. 
The  editor  has  sought  in  this  edition  to  increase  its  usefulness 
for  American  lawyers  and  students  of  law  by  fully  annotating  it, 
so  as  to  exhibit  the  general  principles  of  the  American  Law  of 
Evidence  in  accordance  with  the  latest  and  best  decisions.  The 
contents  of  the  original  work  are  preserved  without  change,  ex- 
cept that,  in  a  few  instances,  articles  stating  special  provisions 
of  English  statutes  have  been  transferred  to  the  foot-notes  or  to 
the  Appendix.  These  transfers  are  always  clearly  indicated  where- 
ever  made.  But  no  omissions  have  been  made,  and  the  editor's 
additions  are  always  indicated  by  being  enclosed  between  brackets. 
It  will,  therefore,  be  easy  to  distinguish  between  the  original 
articles  and  notes  and  those  of  this  edition.  The  extent  of  corre- 
spondence or  difference  between  the  English  and  the  American 
law  is  thus  made   clearly  manifest. 

The  American  cases  cited  by  the  editor  are  considerably  more 
numerous  than  the  English  citations  of  Mr.  Stephen  ;  this  has 
seemed  necessary  in  order  that  the  book  might  satisfactorily  ex- 
hibit the  Law  of  Evidence  for  the  different  States  and  Territories, 
and  thus  be  serviceable  in  all   parts  of  the  country. 

A  new  and  more  complete  index  will  be  found  in  this  edition. 

G.  C. 

New  York,  October,  1885. 


EDITOR'S  NOTE  TO  SECOND  AMERICAN  EDITION. 


This  edition  incorporates  such  additions  and  changes  in  the 
text  of  the  work  as  were  made  by  Mr.  Stephen  in  the  last 
English   edition   which  was  published  before  his  death. 

The  annotations  which  set  forth  the  American  law  have  been 


fcfclS.13 


EDITOR'S  NOTE. 


thoroughly  revised  and  largely  re-written.  Some  important  topics 
have  thus  received  fuller  treatment  than  was  given  to  them  in 
the  former  edition.  In  the  twelve  years  that  have  elapsed  since 
that  edition  appeared  several  thousand  cases  have  been  published 
in  the  American  reports,  bearing  upon  the  subject  of  Evidence. 
These  have  been  carefully  examined,  and  are  extensively  cited 
in  the  notes,  so  as  to  exhibit  the  law  upon  this  subject  in  its  latest 
development.     Many  new   Illustrations  have  also  been  added. 

As  in  the  former  edition,  whatever  I  have  added  to  the  original 
English  work   is   inclosed   in  brackets. 

I  have  received  many  gratifying  assurances  from  lawyers  and 
law-students  that  my  former  edition  has  been  found  by  them 
very  helpful,  both  in  study  and  in  practice.  I  trust  this  edition 
will  be  even  more  so.  I  can  truly  agree  with  Mr.  Stephen  in 
saying  (see  page  xv,  infra),  that  "the  labor  bestowed  upon  the 
work  has  been   in  an  inverse   ratio   to   its  size." 

G.   C. 
New  York,  January,  1898.  • 


PREFACE  TO  THE  SIXTH  ENGLISH  EDITION. 


I  have  referred  in  this  edition  to  the  cases  decided  and  stat- 
utes passed  since  the  publication  of  its  predecessor  and  down  to 
the  end  of  1892.  The  law  has  hardly  been  altered  at  all  since 
the  book  was  first  published.  Short  as  it  is,  I  believe  it  will  be 
found  to  contain  practically  the  whole  of  the  law  on  the  subject. 

J.  F.  STEPHEN. 


CONTENTS. 


PAGE 

Introduction xiii 

Table  of  Cases  Cited xxix 

List  of  Abbreviations xcv 

PART  I. 

RELEVANCY. 

Chapter  I. — Preliminary. 
Art.  i.    Definition  of  Terms Pages  3-5 

Chapter  II. — Of  Facts  in  issue  and  relevant  to  the  issue. 

Art  2.  Facts  in  issue  and  Facts  relevant  to  the  issue  may  be  proved 
— 3.  Relevancy  of  Facts  forming  part  of  the  same  transaction 
as  the  Facts  in  issue — 4.  Acts  of  Conspirators — 5.  Title — 
6.  Customs — 7.  Motive,  preparation,  subsequent  conduct,  ex- 
planatory statements — 8.  Statements  accompanying  acts,  com- 
plaints, statements  in  presence  of  a  person — 9.  Facts  necessary 
to  explain  or  introduce  relevant  Facts Pages  6-33 

Chapter  III. — Occurrences  similar  to  but  unconnected 
with  the  Facts  in  issue,  irrelevant  except  in  certain 
cases. 

Art.  10.  Similar  but  unconnected  Facts — 11.  Acts  showing  inten- 
tion, good  faith,  &c. — 12.  Facts  showing  system — 13.  Existence 
of  course  of  business,  when  deemed  to  be  relevant.. .  Pages  34-54 

Chapter  IV. — Hearsay  irrelevant  except  in  certain  cases. 

Art.  14.     Hearsay  and  the  contents  of  documents  irrelevant 

Pages  55,  56 
Section  i. — Hearsay  when  relevant. 

Art.  15.  Admissions  defined — 16.  Who  may  make  admissions  on 
behalf  of  others,  and  when- — 17.  Admissions  by  agents  and  per- 
sons jointly  interested  with  parties — 18.     Admissions  by  strangers 


CONTENTS. 


— 19.  Admission  by  person  referred  to  by  party — 20.  Admissions 
made  without  prejudice — 21.  Confessions  defined — 22.  Confes- 
sion caused  by  inducement,  threat,  or  promise,  when  irrelevant 
in  Criminal  Proceeding — 23.  Confessions  made  upon  oath,  &c. 
— 24.  Confession  made  under  a  promise  of  secrecy — 25.  State- 
ments by  deceased  persons,  when  deemed  to  be  relevant — ' 
26.  Dying  declaration  as  to  cause  of  death — 27.  Declarations 
made  in  the  course  of  business  or  professional  duty — 28.  Decla- 
rations against  interest — 29.  Declarations  by  testators  as  to 
contents  of  will — 30.  Declarations  as  to  public  and  general 
rights — 31.  Declarations  as  to  pedigree — 32.  Evidence  given 
in  former  proceeding,  when  relevant Pages  57-1 1 1 

Section  ii. — Statements  in  Books,  Documents,  and  Records, 
when  relevant. 

Art.  33.  Recitals  of  public  facts  in  statutes  and  proclamations — 
34.  Relevancy  of  entry  in  public  record  made  in  performance 
of  duty — -35.  Relevancy  of  statements  in  works  of  history,  maps, 
charts,  and  plans — 36,  37,  38.  Entries  in  bankers'  books — 
39.  Judgment — 40.  All  judgments  conclusive  proof  of  their 
legal  effect — 41.  Judgments  conclusive  as  between  parties  and 
privies  of  Facts  forming  ground  of  Judgment— 42.  Statements 
in  judgments.irrelevant  as  between  strangers,  except  in  Admiralty 
Cases— 43.  Effect  of  judgment  not  pleaded  as  an  estoppel — 
44.  Judgments  generally  deemed  to  be  irrelevant  as  between 
strangers — 45.      Judgments     conclusive    in    favor    of     Judge — 

46.  Fraud,  collusion,  or  want  of  jurisdiction  may  be  proved — 

47.  Foreign  judgments Pages  11 2- 140 

Chapter  V.— Opinions,  when  relevant  and  when  not. 

Art.  48.  Opinion  generally  irrelevant — 49.  Opinions  of  experts  on 
points  of  science  or  art — 50.  Facts  bearing  upon  "opinions  of 
experts— 51.  Opinion  as  to  handwriting,  when  deemed  to  be 
relevant— 52.  Comparison  of  handwritings— 53.  Opinion  as  to 
existence  of  marriage,  when  relevant — 54.  Grounds  of  opinion, 
when  deemed  to  be  relevant Pages  141-157 

Chapter  VI.  Character,  when  deemed  to  be  relevant 

AND   WHEN   NOT. 

Art.  55.  Character  generally  irrelevant— 56.  Evidence  of  character 
in  Criminal  Cases — 57.    Character  as  affecting  damages 

Pages  158-162 


CONTENTS. 


PART  II. 

ON  PROOF. 

Chapter  VII. — Facts  proved  otherwise  than  by  Evidence — 
Judicial  Notice. 

Art.  58.  Of  what  P'acts  the  Court  takes  judicial  notice — 59.  As  to 
proof  of  such  Facts — 60.  Evidence  need  not  be  given  of  Facts 
admitted Pages  163-174 

Chapter  VIII. — Of  Oral  Evidence. 

Art.  61.  Proof  of  Facts  by  oral  evidence — 62.  Oral  evidence  raust 
be  direct Pages  175-177 

Chapter  IX.— Of  Documentary  Evidence — Primary  and 
Secondary,  and  Attested  Documents. 

Art.  63.  Proof  of  contents  of  documents — 64.  Primary  evidence — 
65.  Proof  of  documents  by  primary  evidence — 66.  Proof  of 
execution  of  document  required  by  law  to  be  attested — 67.  Cases 
in  which  attesting  witness  need  not  be  called — 68.  Proof  when 
attesting  witness  denies  the  execution — 69.  Proof  of  document 
not  required  by  law  to  be  attested — 70.  Secondary  evidence — 
71.  Cases  in  which  secondary  evidence  relating  to  documents 
may  be  given — 72.    Rules  as  to  notice  to  produce . .  Pages  1 78-195 

Chapter  X. — Proof  of  Public  Documents. 

Art.  73.  Proof  of  public  documents — 74.  Production  of  document 
itself — 75.  Examined  copies — 76.  [General  records  of  the 
Nation  or  State] — 77.  Exemplifications — 78.  Copies  equivalent 
to  exemplifications — 79.  Certified  copies — 80.  [Documents  and 
records  of  the  several  States  admissible  throughout  the  United 
States] — 81.  [Officially  printed  copies] — 82.  [Proof  of  the 
statutes  of  any  State  or  Territory] — 83.  [Proclamations,  Acts  of 
State,  Legislative  Journals,  etc.] — 84.  [Foreign  written  laws, 
Acts  of  State,  records,  etc.] Pages  196-208 


CONTENTS. 


Chapter  XL— Presumptions  as  to  Documents. 

Art.  85.  Presumption  as  to  date  of  a  document— 86.  Presumption 
as  to  stamp  of  a  document— 87.  Presumption  as  to  sealing  and 
delivery  of  deeds — 88.  Presumption  as  to  documents  thiny 
years  old — 89.    Presumption  as  to  alterations Pages  209-218 

Chapter  XII.— Of  the  Exclusion  of  Oral  by  Documi.ntai 
Evidence,  and  of  the  Modification  and   Interpreta- 
tion of  Documentary  by  Oral  Evidence. 

Art.  90.  Evidence  of  terms  of  contracts,  grants,  and  other  disposi- 
tions of  property  reduced  to  a  documentary  form — 91.  What 
evidence  may  be  given  for  the  interpretation  of  documents — 
92.  Cases  to  which  Articles  90  and  91  do  not  apply. .  Pages  219-236 


CO  iNTENTS. 


PART  III. 

PRODUCTION  AND  EFFECT  OF  EVIDENCE. 

Chapter  XIII.— Burden  of  Proof. 

Art.  93.  He  who  affirms  must  prove — 94.  Presumption  of  inno- 
cence— 95.  On  whom  the  general  burden  of  proof  lies — 96. 
Burden  of  proof  as  to  particular  Fact — 97.  Burden  of  proving 
Fact  to  be  proved  to  make  evidence  admissible — 97  A.  Burden 
of  proof  when  parties  stand  in  a  fiduciary  relation.  .Pages  237-254 

Chapter  XIV.— On  Presumptions  and  Estoppels. 

Art.  98.  Presumption  of  legitimacy — 99.  Presumption  of  death 
from  seven  years'  absence — 100.  Presumption  of  lost  grant — 101. 
Presumption  of  regularity  and  of  deeds  to  complete  title — 102. 
Estoppel  by  conduct — 103.  Estoppel  of  tenant  and  licensee — 104. 
Estoppel  of  acceptor  of  bill  of  exchange — 105.  Estoppel  of  bailee, 
agent,  and  licensee Pages  255-269 

Chapter  XV. — Of  the  Competency  of  Witnesses. 

Art.  106.  Who  may  testify — 107.  What  witnesses  are  incompetent — 
108.  Competency  in  Criminal  Cases — 109.  [Husband  and  wife 
in  civil  cases — Cases  of  adultery] — -no.  Communications  during 
marriage — ill.  Judges  and  advocates  privileged  as  to  certain 
questions — 112.  Evidence  as  to  affairs  of  state — 113.  Informa- 
tion as  to  commission  of  offences — 114.  Competency  of  jurors — 
115.  Professional  communications — 116.  Confidential  commu- 
nications with  legal  advisers — 117.  Clergymen  and  medical  men 
- — 118.  Production  of  title-deeds  of  witness  not  a  party — 119. 
Production  of  documents  which  another  person,  having  posses- 
sion, could  refuse  to  produce — 120.  Witness  not  to  be  compelled 
to  criminate  himself — 121.  Corroboration,  when  required — 
121  a.  Claim  on  estate  of  deceased  person — 122.  Number  of 
witnesses Pages  270-305 


CONTENTS. 


Chapter  XVI. — Of  taking  Oral  Evidence,  and  of  the 
Examination  of  Witnesses. 

Art.  123.    Evidence  to  be  upon  oath,  except  in  certain  cases — 

124.  Form  of  oaths;    by  whom   they  may    be  administered — 

125.  How  oral  evidence  may  be  taken — 126.  Examination  in 
chief,  cross-examination,  and  re-examination — 127.  To  what 
matters  cross-examination  and  re-examination  must  be  directed 
■ — 128.  Leading  questions — 129.  Questions  lawful  in  cross-exam- 
ination— 129  A.  Judge's  discretion  as  to  cross-examination  to 
credit — 130.  Exclusion  of  evidence  to  contradict  answers  to 
questions  testing  veracity — 131.  Statements  inconsistent  with 
present  testimony  may  be  proved — 132.  Cross-examination  as  to 
previous  statements  in  writing — 133.  Impeaching  credit  of 
witness — 134.  Offences  against  women — 135.  What  matters 
may  be  proved  in  reference  to  declarations  relevant  under 
Articles  25-32. — 136.  Refreshing  memory — 137.  Right  of  ad- 
verse party  as  to  writing  used  to  refresh  memory — 138.  Giving, 
as  evidence,  document  called  for  and  produced  on  notice — 139. 
Using,  as  evidence,  a  document  production  of  which  was  refused 
on  notice » Pages  306-345 

Chapter  XVII — Of  Depositions. 

Art.  140.  Depositions  before  magistrates — 141.  Depositions  under 
30  &  31  Vict.  c.  35,  s.  6. — 142.  Depositions  under  Merchant 
Shipping  Act,  1854 Pages  346-349 

Chapter  XVIII.— Of  Improper  Admission  and  Rejection  of 

Evidence. 

Art.    1 43 Page  350 

Appendix  of  Notes Pages  35 1-406 

Index Page  407 


INTRODUCTION. 


In  the  years  1 870-1 871  I  drew  what  afterwards  became  the  Indian 
Evidence  Act  (Act  1  of  1872).  This  Act  began  by  repealing  (with 
a  few  exceptions)  the  whole  of  the  Law  of  Evidence  then  in  force 
in  India,  and  proceeded  to  re-enact  it  in  the  form  of  a  code  of  167 
sections,  which  has  been  in  operation  in  India  since  Sept.,  1872.  I 
am  informed  that  it  is  generally  understood,  and  has  required  little 
judicial  commentary  or  exposition. 

In  the  autumn  of  1872  Lord  Coleridge  (then  Attorney-General) 
employed  me  to  draw  a  similar  code  for  England.  I  did  so  in  the 
course  of  the  winter,  and  we  settled  it  in  frequent  consultations. 
It  was  ready  to  be  introduced  early  in  the  Session  of  1873.  Lord 
Coleridge  made  various  attempts  to  bring  it  forward,  but  he  could 
not  succeed  till  the  very  last  day  of  the  Session.  He  said  a  few 
words  on  the  subject  on  the  5th  August,  1873,  just  before  Parliament 
was  prorogued.  The  Bill  was  thus  never  made  public,  though  I 
believe  it  was  ordered  to  be  printed. 

It  was  drawn  on  the  model  of  the  Indian  Evidence  Act,  and 
contained  a  complete  system  of  law  upon  the  subject  of  Evidence. 

The  present  work  is  founded  upon  this  Bill,  though  it  differs  from 
it  in  various  respects.  Lord  Coleridge's  Bill  proposed  a  variety  of 
amendments  of  the  existing  law.  These  are  omitted  in  the  present 
work,  which  is  intended  to  represent  the  existing  law  exactly  as  it 
stands.  The  Bill,  of  course,  was  in  the  ordinary  form  of  an  Act  of 
Parliament.  In  the  book  I  have  allowed  myself  more  freedom  of 
expression,  though  I  have  spared  no  pains  to  make  my  statements 
precise  and  complete. 

In  December,  1875,  at  tne  request  of  the  Council  of  Legal  Edu- 
cation, I  undertook  the  duties  of  Professor  of  Common  Law,  at  the 
Inns  of  Court,  and  I  chose  the  Law  of  Evidence  for  the  subject  of 


lNTKODI  ("1'ION. 


my  first  course  of  lectures.  It  appeared  to  me  that  the  draft  Bill 
which  I  had  prepared  for  Lord  Coleridge  supplied  the  materials 
for  such  a  statement  of  the  law  as  would  enable  students  to  obtain 
a  precise  and  systematic  acquaintance  with  it  in  a  moderate  space 
of  time,  and  without  a  degree  of  labor  disproportionate  to  its  im- 
portance in  relation  to  other  branches  of  the  law.  No  such  work, 
so  far  as  I  know,  exists ;  for  all  the  existing  books  on  the  Law  of 
Evidence  are  written  on  the  usual  model  of  English  law-books, 
which,  as  a  general  rule,  aim  at  being  collections,  more  or  less 
complete,  of  all  the  authorities  upon  a  given  subject,  to  which  a 
judge  would  listen  in  an  argument  in  court.  Such  works  often 
become,  under  the  hands  of  successive  editors,  the  repositories  of 
an  extraordinary  amount  of  research,  but  they  seem  to  me  to  have 
the  effect  of  making  the  attainment  by  direct  study  of  a  real 
knowledge  of  the  law,  or  of  any  branch  of  it  as  a  whole,  almost 
impossible.  The  enormous  mass  of  detail  and  illustration  which 
they  contain,  and  the  habit  into  which  their  writers  naturally  fall, 
of  introducing  into  them  everything  which  has  any  sort  of  connec- 
tion, however  remote,  with  the  main  subject,  make  these  books 
useless  for  purposes  of  study,  though  they  may  increase  their  utility 
as  works  of  reference.  The  enormous  size  and  length  of  the  stand- 
ard works  of  reference  is  a  proof  of  this.  They  consist  of  thousands 
of  pages  and  refer  to  many  thousand  cases.  When  we  remember 
that  the  Law  of  Evidence  forms  only  one  branch  of  the  Law  of 
Procedure,  and  that  the  Substantive  Law  which  regulates  rights 
and  duties  ought  to  be  treated  independently  of  it,  it  becomes 
(ib viuus  that  if  a  lawyer  is  to  have  anything  better  than  a  familiarity 
with  indexes,  he  must  gain  his  knowledge  in  some  other  way  than 
from  existing  books.  No  doubt  such  knowledge  is  to  be  gained. 
Experience  gives  by  degrees,  in  favorable  cases,  a  comprehensive 
acquaintance  with  the  principles  of  the  law  with  which  a  prac- 
titioner is  conversant.  He  gets  to  see  that  it  is  shorter  and  simpler 
than  it  looks,  and  to  understand  that  the  innumerable  cases  which 
at  first  sight  appear  to  constitute  the  law,  are  really  no  more  than 


INTRODUCTION. 


illustrations  of  a  comparatively  small  number  of  principles ;  but 
those  who  have  gained  knowledge  of  this  kind  have  usually  no 
opportunity  to  impart  it  to  others.  Moreover,  they  acquire  it  very 
slowly,  and  with  needless  labor  themselves,  and  though  knowledge 
so  acquired  is  often  specially  vivid  and  well  remembered,  it  is 
often  fragmentary,  and  the  possession  of  it  not  unfrequently  renders 
those  who  have  it  sceptical  as  to  the  possibility,  and  even  as  to  the 
expediency,  of  producing  anything  more  systematic  and  complete. 

The  circumstances  already  mentioned  led  me  to  put  into  a  sys- 
tematic form  such  knowledge  of  the  subject  as  I  had  acquired.  This 
work  is  the  result.  The  labor  bestowed  upon  it  has,  I  may  say, 
been  in  an  inverse  ratio  to  its  size.  My  object  in  it  has  been  to 
separate  the  subject  of  evidence  from  other  branches  of  the  law 
with  which  it  has  commonly  been  mixed  up  ;  to  reduce  it  into  a 
compact  systematic  form,  distributed  according  to  the  natural  divis- 
ion of  the  subject-matter ;  and  to  compress  into  precise  definite 
rules,  illustrated  by  examples,  such  cases  and  statutes  as  properly 
relate  to  the  subject-matter  so  limited  and  arranged.  I  have  at- 
tempted, in  short,  to  make  a  digest  of  the  law,  which,  if  it  were 
thought  desirable,  might  be  used  in  the  preparation  of  a  code,  and 
which  will,  I  hope,  be  useful,  not  only  to  professional  students,  but 
to  every  one  who  takes  an  intelligent  interest  in  a  part  of  the  law 
of  his  country  bearing  directly  on  every  kind  of  investigation  into 
questions  of  fact,  as  well  as  on  every  branch  of  litigation. 

The  Law  of  Evidence  is  composed  of  two  elements,  namely, 
first,  an  enormous  number  of  cases,  almost  all  of  which  have  been 
decided  in  the  course  of  the  last  ioo  or  150  years,  and  which  have 
already  been  collected  and  classified  in  various  ways  by  a  suc- 
cession of  text  writers,  from  Gilbert  and  Peake  to  Taylor  and 
Roscoe ;  secondly,  a  comparatively  small  number  of  Acts  of  Parlia- 
ment which  have  been  passed  in  the  course  of  the  last  thirty  or 
forty  years,  and  have  effected  a  highly  beneficial  revolution  in  the 
law  as  it  was  when  it  attracted  the  denunciations  of  Bentham. 
Writers  on  the  Law   of   Evidence   usually   refer  to  statutes  by  the 


INTRODUCTION. 


hundred,  but  the  Acts  of  Parliament  which  really  relate  to  the 
subject  are  but  few.  A  detailed  account  of  this  matter  will  be 
found  at  the  end  of  the  volume,  in  Note  XLVIII. 

The  arrangement  of  this  book  is  the  same  as  that  of  the  Indian 
Evidence  Act,  and  is  based  upon  the  distinction  between  relevancy 
and  proof,  that  is,  between  the  question,  What  facts  may  be  proved  ? 
and  the  question,  How  must  a  fact  be  proved,  assuming  that  proof 
of  it  may  be  given  ?  The  neglect  of  this  distinction,  which  is  con- 
cealed by  the  ambiguity  of  the  word  evidence  (a  word  which  some- 
times means  testimony  and  at  other  times  relevancy)  has  thrown 
the  whole  subject  into  confusion,  and  has  made  what  is  really  plain 
enough  appear  almost  incomprehensible. 

In  my  Introduction  to  the  Indian  Evidence  Act  published  in  1872, 
and  in  speeches  made  in  the  Indian  Legislative  Council,  I  entered 
fully  upon  this  matter.  It  will  be  sufficient  here  to  notice  shortly 
the  principle  on  which  the  arrangement  of  the  subject  is  based, 
and  the  manner  in  which  the  book  has  been  arranged  in  conse- 
quence. 

The  great  bulk  of  the  Law  of  Evidence  consists  of  negative  rules 
declaring  what,  as  the  expression  runs,  is  not  evidence. 

The  doctrine  that  all  the  facts  in  issue  and  relevant  to  the  issue, 
and  no  others,  may  be  proved,  is  the  unexpressed  principle  which 
forms  the  center  of  and  gives  unity  to  all  these  express  negative 
rules.  To  me  these  rules  always  appeared  to  form  a  hopeless  mass 
of  confusion,  which  might  be  remembered  by  a  great  effort,  but  could 
,ot  be  understood  as  a  whole,  or  reduced  to  a  system,  until  it  occurred 
o  me  to  ask  the  question,  What  is  this  evidence  which  you  tell  me 
hearsay  is  not?  The  expression  "hearsay  is  not  evidence"  seemed 
to  assume  that  I  knew  by  the  light  of  nature  what  evidence  was,  but 
I  perceived  at  last  that  that  was  just  what  I  did  not  know.  I  found 
that  I  was  in  the  position  of  a  person  who,  having  never  seen  a  cat, 
is  instructed  about  them  in  this  fashion:  "  Lions  are  not  cats,  nor  are 
tigers  nor  leopards,  though  you  might  be  inclined  to  think  they  were." 
Show  me  a  cat  to  begin  with,  and  I  at  once  understand  both  what  is 


INTRODUCTION. 


meant  by  saying  that  a  lion  is  not  a  cat,  and  why  it  is  possible  to  call 
him  one.  Tell  me  what  evidence  is,  and  I  shall  be  able  to  understand 
why  you  say  that  this  and  that  class  of  facts  are  not  evidence.  The 
question  "What  is  evidence?"  gradually  disclosed  the  ambiguity  of 
the  word.  To  describe  a  matter  of  fact  as  "evidence"  in  the  sense 
of  testimony  is  obviously  nonsense.  No  one  wants  to  be  told  that 
hearsay,  whatever  else  it  is,  is  not  testimony.  What  then  does  the 
phrase  mean?  The  only  possible  answer  is :  It  means  that  the  one 
fact  either  is  or  else  is  not  considered  by  the  person  using  the  expres- 
sion to  furnish  a  premise  or  part  of  a  premise  from  which  the  existence 
of  the  other  is  a  necessary  or  probable  inference, — in  other  words, 
that  the  one  fact  is  or  is  not  relevant  to  the  other.  When  the  inquiry 
is  pushed  further,  and  the  nature  of  relevancy  has  to  be  considered 
in  itself,  and  apart  from  legal  rules  about  it,  we  are  led  to  inductive 
logic,  which  shows  that  the  judicial  evidence  is  only  one  case  of  the 
general  problem  of  science — namely,  inferring  the  unknown  from  the 
known.  As  far  as  the  logical  theory  of  the  matter  is  concerned,  this 
is  an  ultimate  answer.  The  logical  theory  was  cleared  up  by  Mr. 
Mill.  Bentham  and  some  other1  writers  had  more  or  less  discussed 
the  connection  of  logic  with  the  rules  of  evidence.  But  I  am  not 
aware  that  it  occurred  to  any  one  before  I  published  my  '  Introduction 
to  the  Indian  Evidence  Act'  to  point  out  in  detail  the  very  close 
resemblance  which  exists  between  Mr.  Mill's  theory  and  the  existing 
state  of  the  law. 

The  law  has  been  worked  out  by  degrees  by  many  generations  of 
judges  who  perceived  more  or  less  distinctly  the  principle  on  which 
it  ought  to  be  founded.  The  rules  established  by  them  no  doubt 
treat  as  relevant  some  facts  which  cannot  perhaps  be  said  to  be  so. 
More    frequently    they  treat  as  irrelevant  facts  which   are    really 


1  See,  e.g.,  that  able  and  interesting  book  'An  Essay  on  Circum- 
stantial Evidence,'  by  the  late  Mr.  Wills,  father  of  Mr.  Justice  Wills, 
Q.  C.  Chief  Baron  Gilbert's  work  on  the  Law  of  Evidence  is 
founded  on  Locke's  'Essay,' much  as  my  work  is  founded  on  Mills 
1  Logic' 


INTRODUCTION. 


relevant,  but  exceptions  excepted,  all  their  rules  are  reducible  to  the 
principle  that  facts  in  issue  or  relevant  to  the  issue,  and  no  others, 
may  be  proved. 

The  following  outline  of  the  contents  of  this  work  will  show  how, 
in  arranging  it,  I  have  applied  this  principle. 

All  law  may  be  divided  into  Substantive  Law,  by  which  rights, 
duties,  and  liabilities  are  defined,  and  the  Law  of  Procedure  by  which 
the  Substantive  Law  is  applied  to  particular  cases. 

The  Law  of  Evidence  is  that  part  of  the  Law  of  Procedure  which, 
with  a  view  to  ascertain  individual  rights  and  liabilities  in  particular 
cases,  decides : 

I.  What  facts  may,  and  what  may  not  be  proved  in  such  cases ; 

II.  What  sort  of  evidence  must  be  given  of  a  fact  which  may  be 
proved; 

III.  By  whom  and  in  what  manner  the  evidence  must  be  produced 
by  which  any  fact  is  to  be  proved. 

I.  The  facts  which  may  be  proved  are  facts  in  issue,  or  facts  rele- 
vant to  the  issue. 

Facts  in  issue  are  those  facts  upon  the  existence  of  which  the 
right  or  liability  to  be  ascertained  in  the  proceeding  depends. 

Facts  relevant  to  the  issue  are  facts  from  the  existence  of  which 
inferences  as  to  the  existence  of  the  facts  in  issue  may  be  drawn. 

A  fact  is  relevant  to  another  fact  when  the  existence  of  the  one 
can  be  shown  to  be  the  cause  or  one  of  the  causes,  or  the  effect  or 
one  of  the  effects,  of  the  existence  of  the  other,  or  when  the  existence 
of  the  one,  either  alone  or  together  with  other  facts,  renders  the 
existence  of  the  other  highly  probable,  or  improbable,  according  to 
the  common  course  of  events. 

Four  classes  of  facts,  which  in  common  life  would  usually  be 
regarded  as  falling  within  this  definition  of  relevancy,  are  excluded 
from  it  by  the  Law  of  Evidence  except  in  certain  cases  : 

1.  Facts  similar  to,  but  not  specifically  connected  with,  each  other. 
{Res  inter  alios  actce.) 

2.  The  fact  that  a  person  not  called  as  a  witness  has  asserted  the 
existence  of  any  fact.     {Hearsay.) 


INTRODUCTION. 


3.  The  fact  that  any  person  is  of  opinion  that  a  fact  exists. 
{Opinion.) 

4.  The  fact  that  a  person's  character  is  such  as  to  render  conduct 
imputed  to  him  probable  or  improbable.     {Character.) 

To  each  of  those  four  exclusive  rules  there  are,  however,  important 
exceptions,  which  are  defined  by  the  Law  of  Evidence. 

II.  As  to  the  manner  in  which  a  fact  in  issue  or  relevant  fact  must 
be  proved. 

Some  facts  need  not  be  proved  at  all,  because  the  Court  will  take 
judicial  notice  of  them,  if  they  are  relevant  to  the  issue. 

Every  fact  which  requires  proof  must  be  proved  either  by  oral  or 
by  documentary  evidence. 

Every  fact,  except  (speaking  generally)  the  contents  of  a  docu- 
ment, must  be  proved  by  oral  evidence.  Oral  evidence  must  in 
every  case  be  direct,  that  is  to  say,  it  must  consist  of  an  assertion  by 
the  person  who  gives  it  that  he  directly  perceived  the  fact  to  the 
existence  of  which  he  testifies. 

Documentary  evidence  is  either  primary  or  secondary.  Primary 
evidence  is  the  document  itself  produced  in  court  for  inspection. 

Secondary  evidence  varies  according  to  the  nature  of  the  docu- 
ment. In  the  case  of  private  documents  a  copy  of  the  document,  or 
an  oral  account  of  its  contents,  is  secondary  evidence.  In  the  case 
of  some  public  documents,  examined  or  certified  copies,  or  exempli- 
fications, must  or  may  be  produced  in  the  absence  of  the  documents 
themselves. 

Whenever  any  public  or  private  transaction  has  been  reduced  to  a 
documentary  form,  the  document  in  which  it  is  recorded  becomes 
exclusive  evidence  of  that  transaction,  and  its  contents  cannot,  except 
in  certain  cases  expressly  defined,  be  varied  by  oral  evidence,  though 
secondary  evidence  may  be  given  of  the  contents  of  the  document. 

III.  As  to  the  person  by  whom,  and  the  manner  in  which  the  proof 
of  a  particular  fact  must  be  made. 

When  a  fact  is  to  be  proved,  evidence  must  be  given  of  it  by  the 
person  upon  whom  the  burden  of  proving  it  is  imposed,  either  by  the 


INTRODUCTION. 


nature  of  the  issue  or  by  any  legal  presumption,  unless  the  fact  is 
one  which  the  party  is  estopped  from  proving  by  his  own  represen- 
tations, or  by  his  conduct,  or  by  his  relation  to  the  opposite  party. 

The  witnesses  by  whom  a  fact  is  to  be  proved  must  be  competent. 
With  very  few  exceptions,  every  one  is  now  a  competent  witness  in 
t»ll  cases.  Competent  witnesses,  however,  are  not  in  all  cases  com- 
pelled or  even  permitted  to  testify. 

The  evidence  must  be  given  upon  oath,  or  in  certain  excepted 
>;ases  without  oath.  The  witnesses  must  be  first  examined  in  chief, 
then  cross-examined,  and  then  re-examined.  Their  credit  may  be 
tested  in  certain  ways,  and  the  answers  which  they  give  to  questions 
affecting  their  credit  maybe  contradicted  in  certain  cases  and  not  in 
others. 

This  brief  statement  will  show  what  I  regard  as  constituting  the 
Law  of  Evidence,  properly  so  called.  My  view  of  it  excludes  many 
things  which  are  often  regarded  as  forming  part  of  it.  The  principal 
subjects  thus  omitted  are  as  follows : — 

I  regard  the  question,  What  may  be  proved  under  particular  issues  ? 
(which  many  writers  treat  as  part  of  the  Law  of  Evidence)  as  belong- 
ing partly  to  the  subject  of  pleading,  and  partly  to  each  of  the  different 
branches  into  which  the  Substantive  Law  may  be  divided. 

A  is  indicted  for  murder,  and  pleads  Not  Guilty.  This  plea  puts 
in  issue,  amongst  other  things,  the  presence  of  any  state  of  mind 
describable  as  malice  aforethought,  and  all  matters  of  justification 
or  extenuation. 

Starkie  and  Roscoe  treat  these  subjects  at  full  length,  as  supplying 
answers  to  the  question,  What  can  be  proved  under  an  issue  of  Not 
Guilty  on  an  indictment  for  murder?  Mr.  Taylor  does  not  go  so 
far  as  this ;  but  a  great  part  of  his  book  is  based  upon  a  similar 
principle  of  classification.  Thus  chapters  i.  and  ii.  of  Part  II.  are 
rather  a  treatise  on  pleading  than  a  treatise  on  evidence. 

Again,  I  have  dealt  very  shortly  with  the  whole  subject  of  pre- 
sumptions. My  reason  is  that  they  also  appear  to  me  to  belong  to 
different  branches  of  the  Substantive  Law,  and  to  be  unintelligible, 


INTRODUCTION. 


except  in  connection  with  them.  Take  for  instance  the  presumption 
that  every  one  knows  the  law.  The  real  meaning  of  this  is  that, 
speaking  generally,  ignorance  of  the  law  is  not  taken  as  an  excuse 
for  breaking  it.  This  rule  cannot  be  properly  appreciated  if  it  is 
treated  as  a  part  of  the  Law  of  Evidence.  It  belongs  to  the  Criminal 
Law.  In  the  same  way  numerous  presumptions  as  to  rights  of 
property  (in  particular  easements  and  incorporeal  hereditaments) 
belong  not  to  the  Law  of  Evidence  but  to  the  Law  of  Real  Property. 
The  only  presumptions  which,  in  my  opinion,  ought  to  find  a  place  in 
the  Law  of  Evidence,  are  those  which  relate  to  facts  merely  as  facts, 
and  apart  from  the  particular  rights  which  they  constitute.  Thus  the 
rule,  that  a  man  not  heard  of  for  seven  years  is  presumed  to  be  dead, 
might  be  equally  applicable  to  a  dispute  as  to  the  validity  of  a 
marriage,  an  action  of  ejectment  by  a  reversioner  against  a  tenant 
pur  aider  vie,  the  admissibility  of  a  declaration  against  interest,  and 
many  other  subjects.  After  careful  consideration,  I  have  put  a  few 
presumptions  of  this  kind  into  a  chapter  on  the  subject,  and  have 
passed  over  the  rest  as  belonging  to  different  branches  of  the  Sub- 
stantive Law. 

Practice,  again,  appears  to  me  to  differ  in  kind  from  the  Law  of 
Evidence.  The  rules  which  point  out  the  manner  in  which  the 
attendance  of  witnesses  is  to  be  procured,  evidence  is  to  be  taken  on 
commission,  depositions  are  to  be  authenticated  and  forwarded  to  the 
proper  officers,  interrogatories  are  to  be  administered,  &c,  have' little 
to  do  with  the  general  principles  which  regulate  the  relevancy  and 
proof  of  matters  of  fact.  Their  proper  place  would  be  found  in 
codes  of  civil  and  criminal  procedure.  I  have  however  noticed  a  fe 
of  the  most  important  of  these  matters. 

A  similar  remark  applies  to  a  great  mass  of  provisions  as  to  the 
proof  of  certain  particulars.  Under  the  head  of  "  Public  Docu- 
ments," Mr.  Taylor  gives  amongst  other  things  a  list  of  all,  or  most, 
of  the  statutory  provisions  which  render  certificates  or  certified  copies 
admissible  in  particular  cases. 

To  take  an  illustration  at  random,  section  1458  begins  thus  :    "  The 


INTRODUCTION. 


registration  of  medical  practitioners  under  the  Medical  Act  of  1858, 
may  be  proved  by  a  copy  of  the  '  Medical  Register,'  for  the  time 
being,  purporting,"  &c.  I  do  not  wish  for  a  moment  to  undervalue 
the  practical  utility  of  such  information,  or  the  industry  displayed  in 
collecting  it ;  but  such  a  provision  as  this  appears  to  me  to  belong 
not  to  the  Law  of  Evidence,  but  to  the  law  relating  to  medical  men. 
It  is  matter  rather  for  an  index  or  schedule  than  for  a  legal  treatise, 
intended  to  be  studied,  understood,  and  borne  in  mind  in  practice. 

On  several  other  points  the  distinction  between  the  Law  of  Evi- 
dence and  other  branches  of  the  law  is  more  difficult  to  trace.  For 
instance,  the  law  of  estoppel,  and  the  law  relating  to  the  interpre- 
tation of  written  instruments,  both  run  into  the  Law  of  Evidence.  I 
have  tried  to  draw  the  line  in  the  case  of  estoppels  by  dealing  with 
estoppels  in  pais  only,  to  the  exclusion  of  estoppels  by  deed  and  by 
matter  of  record,  which  must  be  pleaded  as  such ;  and  in  regard  to 
the  law  of  written  instruments  by  stating  those  rules  only  which 
seemed  to  me  to  bear  directly  on  the  question  whether  a  document 
can  be  supplemented  or  explained  by  oral  evidence. 

The  result  is  no  doubt  to  make  the  statement  of  the  law  much 
shorter  than  is  usual.  I  hope,  however,  that  competent  judges  will 
find  that,  as  far  as  it  goes,  the  statement  is  both  full  and  correct.  As 
to  brevity,  I  may  say,  in  the  words  of  Lord  Mansfield  :— "  The  law 
does  not  consist  of  particular  cases,  but  of  general  principles  which 
are  illustrated  and  explained  by  these  cases."  ' 

Every  one  will  express  somewhat  differently  the  principles  which 
he  draws  from  a  number  of  illustrations,  and  this  is  one  source  of 
that  quality  of  our  law  which  those  who  dislike  it  describe  as  vague- 
ness and  uncertainty,  and  those  who  like  it  as  elasticity.  I  dislike 
the  quality  in  question,  and  I  used  to  think  that  it  would  be  an 
improvement  if  the  law  were  once  for  all  enacted  in  a  distinct  form 
by  the  Legislature,  and  were  definitely  altered  from  time  to  time  as 
occasion  required.  Fur  many  years  I  did  my  utmost  to  get  others  to 
take  the   same   view  of  the  subject,  but   I  am   now  convinced  by 


1  7?.  v.  Bembridge,  3  Doug.  332. 


INTRODUCTION. 


experience  that  the  unwillingness  of  the  Legislature  to  undertake 
such  an  operation  proceeds  from  a  want  of  confidence  in  its  power 
to  deal  with  such  subjects,  which  is  neither  unnatural  nor  un- 
founded. It  would  be  as  impossible  to  get  in  Parliament  a  really- 
satisfactory  discussion  of  a  Bill  codifying  the  Law  of  Evidence  as  to 
get  a  committee  of  the  whole  House  to  paint  a  picture.  It  would,  I 
am  equally  well  satisfied,  be  quite  as  difficult  at  present  to  get  Par- 
liament to  delegate  its  powers  to  persons  capable  of  exercising  them 
properly.  In  the  meanwhile  the  Courts  can  decide  only  upon  cases 
as  they  actually  occur,  and  generations  may  pass  before  a  doubt  is 
set  at  rest  by  a  judicial  decision  expressly  in  point.  Hence,  if  any- 
thing considerable  is  to  be  done  towards  the  reduction  of  the  law  to  a 
system,  it  must,  at  present  at  least,  be  done  by  private  writers. 

Legislation  proper  is,  under  favorable  conditions,  the  best  way  of 
making  the  law,  but  if  that  is  not  to  be  had,  indirect  legislation,  the 
influence  on  the  law  of  judges  and  legal  writers  who  deduce,  from  a 
mass  of  precedents,  such  principles  and  rules  as  appear  to  them  to  be 
suggested  by  the  great  bulk  of  the  authorities,  and  to  be  in  them- 
selves rational  and  convenient,  is  very  much  better  than  none  at  all 
It  has,  indeed,  special  advantages,  which  this  is  not  the  place  to 
insist  upon.  I  do  not  think  the  law  can  be  in  a  less  creditable  con- 
dition than  that  of  an  enormous  mass  of  isolated  decisions,  and 
statutes  assuming  unstated  principles ;  cases  and  statutes  alike  being 
accessible  only  by  elaborate  indexes.  I  insist  upon  this  because  I 
am  well  aware  of  the  prejudice  which  exists  against  all  attempts  to 
state  the  law  simply,  and  of  the  rooted  belief  which  exists  in  the 
minds  of  many  lawyers  that  all  general  propositions  of  law  must  be 
misleading,  and  delusive,  and  that  law  books  are  useless  except  as 
indexes.  An  ancient  maxim  says  "  Omnis  clcfinitio  in  jure  pcricit- 
losa."  Lord  Coke  wrote,  "  It  is  ever  good  to  rely  upon  the  books  at 
large ;  for  many  times  compendia  sunt  dispendia,  and  Melius  est 
petere  fofites  quam  sectari  rivtitos."  Mr.  Smith  chose  this  expression 
as  the  motto  of  his  'Leading  Cases,'  and  the  sentiment  which  it  em- 
bodies has  exercised  immense  influence  over  our  law,    It  has  not 


INTRODUCTION. 


perhaps  been  sufficiently  observed  that  when  Coke  wrote,  the  "books 
at  large,"  namely  the  '  Year  Books '  and  a  very  few  more  modern 
reports,  contained  probably  about  as  much  matter  as  two,  or  at  most 
three,  years  of  the  reports  published  by  the  Council  of  Law  Report- 
ing ;  and  that  the  compendia  (such  books,  say,  as  Fitzherbert's 
'Abridgment')  were  merely  abridgments  of  the  cases  in  the  'Year 
Books'  classified  in  the  roughest  possible  manner,  and  much  inferior 
both  in  extent  and  arrangement  to  such  a  book  as  Fisher's  '  Digest.'  ' 

In  our  own  days  it  appears  to  me  that  the  true  fontes  are  not  to  be 
found  in  reported  cases,  but  in  the  rules  and  principles  which  such 
cases  imply,  and  that  the  cases  themselves  are  the  rivtili,  the  follow- 
ing of  which  is  a  dispendium.  My  attempt  in  this  work  has  been 
emphatically  petere  fo?ites,  to  reduce  an  important  branch  of  the  law 
to  the  form  of  a  connected  system  of  intelligible  rules  and  principles. 

Should  the  undertaking  be  favorably  received  by  the  profession 
and  the  public,  I  hope  to  apply  the  same  process  to  some  other 
branches  of  the  law  ;  for  the  more  I  study  and  practice  it,  the  more 
firmly  am  I  convinced  of  the  excellence  of  its  substance  and  the 
defects  of  its  form.  Our  earlier  writers,  from  Coke  to  Blackstone, 
fell  into  the  error  of  asserting  the  excellence  of  its  substance  in  an 
exaggerated  strain,  whilst  they  showed  much  insensibility  to  defects, 
both  of  substance  and  form,  which  in  their  time  were  grievous  and 
glaring.  Bentham  seems  to  me  in  many  points  to  have  fallen  into 
the  converse  error.  He  was  too  keen  and  bitter  a  critic  to  recognise 
the  substantial  merits  of  the  system  which  he  attacked ;  and  it  is 
obvious  to  me  that  he  had  not  that  mastery  of  the  law  itself  which  is 
unattainable  by  mere  theoretical  study,  even  if  the  student  is,  as 


1  Since  the  beginning  of  1865  the  Council  has  published  eighty-six 
\olumes  of  Reports.  The  Year  Books  from  1307— 1535,  228  years, 
would  fill  not  more  than  twenty-five  such  volumes.  There  are  also 
ten  volumes  of  Statutes  since  1865  (May,  1876).  There  are  now  (Feb., 
1877)  at  least  ninety-three  volumes  of  Reports  and  eleven  volumes  of 
Statutes.  There  are  now  154  volumes  of  Reports  and  twenty-three  of 
Statutes  (1887). 


INTRODUCTION. 


Bentham  certainly  was,  a  man  of  talent,  approaching  closely  to 
genius. 

During  the  last  generation  or  more  Bentham's  influence  has  to 
some  extent  declined,  partly  because  some  of  his  books  are  like 
exploded  shells,  buried  under  the  ruins  which  they  have  made,  and 
partly  because  under  the  influence  of  some  of  the  most  distinguished 
of  living  authors,  great  attention  has  been  directed  to  legal  history, 
and  in  particular  to  the  study  of  Roman  Law.  It  would  be  difficult 
to  exaggerate  the  value  of  these  studies,  but  their  nature  and  use  are 
liable  to  be  misunderstood.  This  history  of  the  Roman  Law  no 
doubt  throws  great  light  on  the  history  of  our  own;  and  the  compari- 
son of  the  two  great  bodies  of  law,  under  one  or  the  other  of  which 
the  laws  of  the  civilized  world  may  be  classified,  cannot  fail  to  be 
instructive  ;  but  the  history  of  bygone  institutions  is  valuable  mainly 
because  it  enables  us  to  understand,  and  so  to  improve  existing  insti- 
tutions. It  would  be  a  complete  mistake  to  suppose  either  that  the 
Roman  Law  is  in  substance  wiser  than  our  own,  or  that  in  point  of 
arrangement  and  method  the  Institutes  and  the  Digest  are  anything 
but  warnings.  The  pseudo-philosophy  of  the  Institutes,  and  the 
confusion  of  the  Digest,  are,  to  my  mind,  infinitely  more  objection- 
able than  the  absence  of  arrangement  and  of  all  general  theories, 
good  or  bad,  which  distinguish  the  Law  of  England. 

However  this  may  be,  I  trust  the  present  work  will  show  that  the 
law  of  England  on  the  subject  to  which  it  refers  is  full  of  sagacity 
and  practical  experience,  and  is  capable  of  being  thrown  into  a  form 
at  once  plain,  short,  and  systematic. 

I  wish,  in  conclusion,  to  direct  attention  to  the  manner  in  which  I 
have  dealt  with  such  parts  of  the  Statute  Law  as  are  embodied  in  this 
work.  I  have  given,  not  the  very  words  of  the  enactments  referred 
to,  but  what  I  understand  to  be  their  effect,  though  in  doing  so  I  have 
deviated  as  little  as  possible  from  the  actual  words  employed.  I 
have  done  this  in  order  to  make  it  easier  to  study  the  subject  as  a 
whole.  Every  Act  of  Parliament  which  relates  to  the  Law  of  Evi- 
dence assumes  the  existence  of  the  unwritten  law.     It  cannot,  there- 


INTRODUCTION. 


fore,  be  fully  understood,  nor  can  its  relation  to  other  parts  of  the  law 
be  appreciated,  till  the  unwritten  law  has  been  written  down  so  that 
the  provisions  of  particular  statutes  may  take  their  places  as  parts  of 
it.  When  this  is  done,  the  Statute  Law  itself  admits  of,  and  even 
requires,  very  great  abridgment.  In  many  cases  the  result  of  a 
number  of  separate  enactments  may  be  stated  in  a  line  or  two.  For 
instance,  the  old  Common  Law  as  to  the  incompetency  of  certain 
classes  of  witnesses  was  removed  by  parts  of  six  different  Acts  of 
Parliament, — the  net  result  of  which  is  given  in  five  short  Articles 
^106-110). 

So,  too,  the  doctrine  of  incompetency  for  peculiar  or  defective 
,eligious  belief  has  been  removed  by  many  different  enactments  the 
effect  of  which  is  shown  in  one  Article  (123). 

The  various  enactments  relating  to  documentary  evidence  (see 
Chap.  X.)  appear  to  me  to  become  easy  to  follow  and  to  appreciate, 
when  they  are  put  in  their  proper  places  in  a  general  scheme  of  the 
law,  and  arranged  according  to  their  subject-matter.  By  rejecting 
every  part  of  an  Act  of  Parliament  except  the  actual  operative  words 
which  constitute  its  addition  to  the  law,  and  by  setting  it  (so  to 
speak)  in  a  definite  statement  of  the  unwritten  law  of  which  it  as- 
sumes the  existence,  it  is  possible  to  combine  brevity  with  substantial 
accuracy  and  fulness  of  statement  to  an  extent  which  would  surprise 
those  who  are  acquainted  with  Acts  of  Parliament  only  as  they 
stand  in  the  Statute  Book.1  At  the  same  time  I  should  warn  any 
one  who  may  use  this  book  for  the  purposes  of  actual  practice  in 
or  out  of  court,  that  he  would  do  well  to  refer  to  the  very  words  of 
the  statutes  embodied  in  it.  It  is  very  possible  that,  in  stating  their 
effect  instead  of  their  actual  words,  I  may  have  given  in  some  par- 
ticulars a  mistaken  view  of  their  meaning. 

Such  are  the  means  by  which  I  have  endeavored  to  make  a  state- 


1  Twenty  Articles  of  this  work  represent  all  that  is  material  in  the 
ten  Acts  of  Parliament,  containing  sixty-six  sections,  which  have  been 
passed  on  the  subject  to  which  it  refers.  For  the  detailed  proof  of 
this,  see  Note  XLYIII.  [Appendix], 


INTRODUCTION. 


ment  of  the  Law  of  Evidence  which  will  enable  not  only  students  of 
law,  but  I  hope  any  intelligent  person  who  cares  enough  about  the 
subject  to  study  attentively  what  I  have  written,  to  obtain  from  it  a 
knowledge  of  that  subject  at  once  comprehensive  and  exact, — a 
knowledge  which  would  enable  him  to  follow  in  an  intelligent  man- 
ner the  proceedings  of  Courts  of  Justice,  and  which  would  enable 
him  to  study  cases  and  use  text-books  of  the  common  kind  with 
readiness  and  ease.  I  do  not  say  more  than  this.  I  have  not 
attempted  to  follow  the  matter  out  into  its  minute  ramifications,  and  I 
have  avoided  reference  to  what  after  all  are  little  more  than  matters 
of  curiosity.  I  think,  however,  that  any  one  who  makes  himself 
thoroughly  acquainted  with  the  contents  of  this  book,  will  know  fully 
and  accurately  all  the  leading  principles  and  rules  of  evidence  which 
occur  in  actual  practice. 

If  I  am  entitled  to  generalise  at  all  from  my  own  experience,  I 
think  that  even  those  who  are  already  well  acquainted  with  the 
subject  will  find  that  they  understand  the  relations  of  its  different 
parts,  and  therefore  the  parts  themselves  more  completely  than  they 
otherwise  would,  by  being  enabled  to  take  them  in  at  one  view,  and 
to  consider  them  in  their  relation  to  each  other. 


TABLE  OF  CASES  CITED. 


PAGE 

Abbott  v.  Heath 47 

v.  People 20 

Abeel  v.  Van  Gelder 61 

Abercrombie  v.  Sheldon 32 

Abington  v.  Duxbury 256 

Abouloff  v.  Oppenheimer 138,  368 

Abrath  v.  N.  E.  Ry 242,  252 

Accola  v.  Chicago,  etc.  R.  Co 171 

Ackerson  v.  People 75,  76 

Adae  v.  Zangs 342,  343 

Adams  v.  Adams 119 

v .  Cowles 136 

v.  Davidson ,    62 

v.  Greenwich  Ins.  Co 337 

v.  Lawson 161 

v.  Lloyd 293 

v.  O'Connor 184 

v,  Olin. .   92 

v.  People 22,  142 

v.  Pittsburgh  Ins.  Co 19,  305 

v.  Porter 293 

v.  State 274,  276,  331 

v.  Sullivan 190 

v.  Swansea 104 

v.  Way .  169 

v .  Wheeler 329 

Adie  v.  Clark 229 

Adler-Goldman  v.  Adams  Exp.  Co..     73 

iEtna  Life  Ins.  Co.  v.  Ward 238,  250 

A.  G.  v.  Bryant 283 

v.  Hitchcock 324,  325 

Agan  v.  Hey 281 

Agnew  v.  U.  S 243 

Agricultural  Ins.  Co.  v.  Keeler 70 

Aikin  v.  Martin 193,  315 

Akers  v.  Demond 312 

Ala.  etc.  R.  Co.  v.  Frazier 303 

Ala.  Fertilizing  Co.  v.  Reynolds —   176 

Ala.  Southern  R.  Co.  v.  Hill 176 

v.  Mt.  Vernon  Co 191 

Albany  Co.  Sav.  Bk.  v.  McCarty 240 

Albany,  etc.  R.  Co.  v.  Lundberg 36 


PAGE 

Albert  v.  Nor.  Central  R.  Co 40 

Alberti  v.  N.  Y.  etc.  R.  Co 293 

Alberts  v.  Vernon 38 

Alden  v.  Goddard 289 

Aldous  v.  Cornwell 21;,  218 

Alexander  v.  Chamberlain 105 

v.  Comm 20 

v.  Kaiser 324 

v .  Pennsylvania  Co 146 

y.U.S 29,288 

Alivon  v.  Furnival 188 

Alger  v.  Andrews 63 

Allans.  Dundas 119 

Allegheny  Co.  Workhouse  v.  Moore.    65 

Allen,  Appeal  of 281 

v.  Allen 239 

v.  Chouteau ..  in 

v.  Furbish 223 

v .  Killinger 73 

v.  Kirk 59 

v.  Pink 227 

v.  Shaw 264 

v.  State 276 

v.  U.  S 23,263 

v .  Withrow 218,  240 

Allgood  v.  Blake 376 

Allison  v.  Chapman 14° 

v.  Coal  Co 327 

v.  Comm 87,  88 

v.  Whittier. 122 

Allison's  Case 124 

Alner  v.  George 361 

Alpin  v.  Morton 45 

Alschulerw.  Schiff 223 

Alston  v.  State 83 

Alvord  v .  Collin    342 

Ambler  v.  Whipple 140 

American  Bible  Soc.  v.  Pratt 230 

Amer.  Ex.  Nat.  Bk.  v.  N.  Y.  Belting 

Co 244 

Amer.  Express  Co.  v.  Patterson 161 

American  Ins.  Co.  v.  Hazen  160 


XXX 


TABLE  OF  CASES  CITED. 


PAGE 

American  Life  Ins.  Co.  v.  Rosenagle 

146,  188, 197 

American  Nat.  Bk.  v.  Bushey 165 

Ames  v .  Brown ,  215 

v.  Quimby 36 

Amherst  Bk.  v.  Root 153 

Amidon  v.  Hosley 336 

Amos  v.  Amos 219 

Amoskeag  Co.  v.  Head 7 

Anchor  Milling  Co.  v.  Walsh 93 

Anderson  v.  Edwards 91 

v.  How 252 

v.  McCormick 17, 167,262 

v.  Moore 223 

v.  Read 265 

v.  Rome,  etc.  R.  Co 65 

v.  State 134 

v.  Weston 210 

Andrews  v.  ^Etna  Ins.  Co 264 

v .  Dyer 229 

v.  Flack 202 

v.  Hayden's  Admr 154 

v,  Knox  Co 173 

v.  Ohio,  etc.  R.  Co 296 

v.  U.S 6 

Aneals  v.  People 326 

Angell  v.  Duke 226 

v.  Pickard 1 76 

Angle  v.  Life  Ins.  Co 214  218 

Anglo-American  Co.  v.  Cannon 179 

Angus  v.  Dalton 259 

Anheuser-Busch  Ass'nz/.  Hutmacher  180 

Ankersmit  v.  Tuch 327 

Annesley  v.  Anglesea 291 

Anonymous 177,  297,  309 

Ansley  v.  Meikle 206 

Anson  v.  People 43 

Anthony  v.  Harrison 212,  221 

Appel  v.  Byers 233 

Apperson  v.  Dowdy 99 

Applegate  v.  Lexington,  etc.  Mining 

Co 213 

Appletonf.  Braybrook 373 

Armoury  v.  Delamirie 249 

Arms  v.  M  iddleton 91 

Armstrong  v.  Ackley 56 

v.  Armstrong 247 

v.  Granite  Co 224 

v.  Potter 66 

v.  State 247 

v.  U.  S 112,  169 


PAGE 

Arnd  v.  Ambling 272 

Arnold  v.  Chesebrough 296,  315 

v.  Pawtuxet  Co 193 

Arnott  v.  Hayes 394 

Arnstine  v.  Treat 192 

Aron  v .  Chaffe 118 

Arthur  v.  James 74 

Artz  v.  Railroad  Co 329 

Ashland  v.  Marlborough 47 

Ashtabula  v.  Bartram 38 

Askew  v.  Steiner 195" 

Atchison,  etc.  R.  Co.  v.  Feehan..327,  328 

v.  Headland 165 

v.  Johns 47 

v.  Stanford 40,  317 

v.  Thul 177 

v.  Wilkinson 70,  143 

Atkins  v.  Anderson 122 

Atkinson  v.  Goodrich  Transp.  Co. . .  243 

v.  Linden  Co 174 

v.  Morris 101 

v.  Truesdell 228 

Atlanta  Journal  v.  Mayson 239 

Atlanta  R.  Co.  v.  Walker 48 

Atlantic  Ins.  Co.  v.  Fitzpatrick 312 

Attorney  Gen'l  v .  Bradlaugh 272,  307 

Atwell  v.  Miller 194 

Atwood  v.  Barney 92 

v.  Dearborn 338 

v.  Impson 335 

v.  Scott 32 

Audenried  v.  Betteley 265 

Augusta  v.  Windsor 91 

Aulls  v.  Young 117 

Aultman  v.  Ritter 179 

v.  Timm 263 

Austin,  In  re 289 

v.  Holland 54,  262 

v.  Remington 45 

v.  State 317 

v.  Thompson 344 

v.  Vrooman 135 

Averill  v.  Sawyer 222 

Avery  v.  Maude 167 

A veson  v.  Lord  Kinnaird 48 

Ayer  v.  Bell  Mfg.  Co 222 

v.  Colgrove 340 

v.  Tel.  Co 180 

Ayers  v.  Hewett 185 

v.  State 302 

<  ■.  Watson 327,  332 


TABLE  OF  CASES  CITED. 


PAGE 

Ayers  v.  Weed 231 

Aylesford  Peerage  Case 24,256,257 

Ay  res  v.  Hubbard 65 

Babcock  v.  Booth 278 

v.  Fitchburg  R.  Co 4 

Baccio  v.  People 24,  25 

Backus  v.  Sternberg 222 

v.  Taylor 265 

Bacon  v.  Chesney 71 

v.  Frisbie 287 

Bacon's  Will,  In  re 233 

Badder  v.  Kiefer 319 

Badger  v.  Titcomb 124 

Bagley  v.  McMickle 188 

Bagley  Elev.  Co.  v .  Amer.  Exp.  Co..  246 

Bahr  v.  Lombard 244 

Bailey  v.  Bidwell 184 

v.  Corliss 69 

v.  Kalamazoo  Pub'g  Co 171 

v.  Rome,  etc.  R.  Co 50 

v.  Woods no 

Bain  v.  Cushman 143 

Baird  v.  Abbey 239 

v.  Baird 221 

v.  Daly 41 

v.  Gillett 31 

v.  U.  S 121 

Baker  v.  Gausin 9 

v.  Palmer 140 

v.  Pike 192,  193 

v.  Stackpole 66 

v.  Taylor 95 

v.  Thompson 281 

Balbo  v.  People 78 

Baldwin  v.  Bricker 116 

v.  Parker 247 

Bales  v.  State 116 

Ball  v.  Chancellor 132 

Ballew  v.  U.  S 198,  318 

Balliett  v.  Fink 184 

Ballinger  v.  Davis 182 

Ballman  v.  Heron 108 

Baltimore  v.  State itfi 

Baltimore  Elevator  Co.  v.  Neal 37 

Baltimore,  etc.  Ass'n  v.  Post 65 

Baltimore  &  O.  R.  Co.  v.  Campbell.     70 

v.  Wilkens 269 

Banfield  v.  Whipple 21 

Banister  v.  Ovit 277 

Bank  v.  Fordyce 232 


PAGE 

Bank  v.  Kennedy 224 

v.  Kingsley 171 

v.  Sargent 218 

Bank  of  Batavia  v.  N.  Y.  etc.  R.  Co.  269 

Bank  of  Brighton  v.  Smith 70 

Bank  of  Hindustan,  etc.,  Allison's 

Case 124 

Bank  of  Ireland  v.  Evans 379 

Bank  of  Monroe  v.  Culver 91 

v.  Gifford 108 

Bank  of  Montreal  v.  Richter 244 

Bank  of  Oswego  v.-  Babcock 131 

Bank  of  Utica  v.  Hillard 296 

v.  Mersereau 288 

Barber  v.  St.  Louis,  etc.  R.  Co 10 

Barber's  Admr.  v.  Bennett 60,  6i 

Barber's  Appeal 27,  147,  247 

Barbie  v.  Goodale 221 

Barhydt  v.  Alexander 169 

Barker  v.  Binninger 60 

v.  Haskell 93 

v.  Hebbard 271 

v.  Jones 263 

v.  Kuhn 291 

Barkley  v.  Copeland 321,  338 

Barlow  v.  Buckingham 220 

v.  Steel 202 

Barmby  v.  Plummer 187 

Barnard  v.  Barlow 229 

v.  Campbell 265 

v.  Gantz .211,  254 

v.  Kellogg 224 

Barnes  v.  Barnes  , 241 

v.  Harris 290 

v.  Keene 28,  31 

Barnett  v.  Abbott 212 

v.  People 109 

v.  State 25,  301 

Barnewall  v.  Murrell 185,  246 

Barney  v.  Rickard 34 

Barnum  v.  Barnum 105,  106,  312 

v.  Reed 240 

Baro'n  de  Bode's  Case 145 

Barrett  v .  Hammond 39 

v.  James 281 

v.  Long 45 

Barrows  v.  Downs 146 

Bans  v.  Jackson 123 

Barry  v.  Hamburg  Ins.  Co 221 

v.  Ryan 181 

Bartholomew  v.  Farwell 91 


TABLE  OF  CASES  CITED. 


PAGE 

Bartholomew  v.  People 274,  325 

Bartlett  v.  Boston  Gas  Co 130 

v.  Patton 95 

v.  Tarbox 74 

Bartley  v.  People 78 

v.  Phillips 176 

Barton  v.  Dawes 225 

v.  Gray 223 

v.  Kane 194 

Bascom  v.  Manning 121 

Bass  v.  State 109 

Bassett  v.  Ct.  Riv.  R.  Co 120 

v.  Crafts 119 

v.  Shares 5° 

v.  U.  S 277 

Bateman  v .  Bailey 26 

v.  Miller 136 

Bates  v.  Barber 336 

v.  Morris 3J4 

v.  Preble 343 

v.  State 321 

v.  Swiger 264 

Bathrick  v.  Detroit  Post  Co 161 

Battle  v.  Baird 184 

v.  State 34i 

Battles  v.  Fobes 220 

v.  Laudenslager 160 

v.  Tallman 343 

Bauer,  In  re 289 

Bauerman  v.  Radenius 361 

Baughmant'.  Baughman 142 

Baulecz'.  N.  Y.  etc.  R.  Co 37,5° 

Baxendale  v.  Bennett 266 

Baxters.  Abbott 33.246 

v.  Doe 41 

v.  New  Eng.  Ins.  Co 127 

Baylis  v.  A.  G 232 

Bayliss  v.  Cockciroft : 176 

Bays  v.  Trulson 129 

Beaconsfield,  The 131 

Beadles  v.  Alexander 100 

Beakes  V.  Dacunha 53 

Beal  v.  Nichols 315 

Beaman  v.  Russell 217 

Bean  v.  Tonnele 32 

Beard  v.  Ryan 214 

v.  State 5° 

Beardsley  v.  Day 211 

Bearss  v.  Copley 64 

Beason  v.  State 274 

Beatrice  Gas  Co.  v.  Thomas 41 


PAGE 

Beatson  v.  Skene 282 

Beattie  v.  Delaware,  etc.  R.  Co 53 

v.  Billiard 188 

Beatty  v.  Trustees 232 

Beauchaine  v.  McKinnon 132 

Beaudette  v.  Gagne 74,  317 

Beazley  v.  Denson 246 

Becker  v.  Koch 329,  330 

v.  Phila.  etc.  R.  Co 37 

Beckett  v.  Ramsdale 304 

Bedgood  v.  State 339 

Beebe  v.  Knapp 73 

Beeler  v.  Webb 14 

Beeston:s  Case ill 

Beggarly  v.  State 79 

Behler  v.  State 83 

Behrens  v.  Behrens 99 

v.  Germania  Ins.  Co 239 

Behrensmeyer  v.  Kreitz 120 

Beldenz\  Allen 319 

v .  State 130 

Belfast  Bk.  v .  Harriman 218 

Belknap  v.  Nat.  Bk.  of  N.  America..  265 

Bell  v.  Brewster 213 

v.  Kendrick 113 

v,  Kennedy 218 

v.  McGuinness 239 

v.  Merrifield 125,  130 

v.  Morrison 67 

Bellamy  v.  State 245 

Bellefontaine,  etc.  R.  Co.  v.  Bailey. .  148 

Beloit  v.  Morgan » 121 

Bemis  v.  Temple 38 

Benedict  v.  Cowden 214 

v.  State 290 

Beneway  v.  Thorp 45 

Benham  v.  State 34° 

Benjamin  v.  Rogers 63 

v.  Smith 60 

Bennett  v.  Cadwell's  Excr 147 

-•.Camp 61 

v.  Clemence 144 

v.  Edwards 31 1 

'    v.  Hood 121 

v.  State 148,  248 

Benson  v.  Clark 170 

v.  Shortwell 108 

v.  State 19.  79 

v.  Titcomb 252 

v.  U.S 276,316 

Benstinez'.  State 339 


TABLE  OF  CASES  CITED. 


XXXUl 


PAGE 

Benton  v.  Coram 273 

v.  Starr 24,  301 

Berdan  v.  Greenwood 309 

Berg  v.  Peterson 152 

Bergen  v.  State tog 

Bergwin  v.  Bishop 216 

Berkeley  Peerage  Case 106,  366 

Berneker  v.  State 159 

Berney  v.  Dinsmore 36,  249 

v.  Mitchell 108,  109 

Bernheim  v.  Dibrell 314 

Berry  v.  Raddin 17 

Berwind  v.  Greenwich  Co 249 

Best  v.  Hammond 230 

Bethea  v.  Byrd 101 

Bethlehem  v.  Watertown 123 

Beuerlien  v.  O'Leary 44 

Biddies.  Bond 268 

Bigelow  v.  Foss 60 

v.  Gillott. 217 

v.  Hall 342 

v.  Sickles 278 

v.  Stilphens 215 

Bigler  v.  Reyher 292 

Bigley  v.  Williams 9 

Billingslea  v.  Smith 342 

Binck  v.  Wood 125 

Binford  v.  Young 74 

Bingel  v.  Volz 229 

Birch  v.  Hall 327 

Bird  v.  Co  mm 164 

v.  Hueston 95 

Birdseye  v.  Butterfield 317 

Birmingham  v.  Anderson 101 

Birmingham  R.  Co.  v.  Alexander 38 

Birmingham  Union  R.  Co.  v.  Hall. .  238 

Birt  v.  Barlow 155 

Bischoff  v.  Wetherel .' 140 

Biscoe  v.  State 77.  81 

Bishop  v.  Amer.  Preservers'  Co 187 

Bissell  v.  Adams 66 

v.  Campbell 19,  305 

v.  Cornell 337 

v.  Hamblin 113 

v.  Kellogg 130 

v.  Saxton 70 

Bissing  v.  Smith 172 

Bitner  v .  Boone 279 

Bixby  v.  Carskaddon 200,  242 

Bizer  v.  Ottumwa  Co 123 

Black  7'.  Bachelder 220 


PAGE 

Black  v.  Miller 281 

v.  Sharkey 212 

v .  Woodrow 109 

Blackburn  v.  Crawfdrds 94,  106,  289 

v.  State 75 

Blackett  v.  Royal  Exchange  Co 232 

Blackington  v.  Johnson 315 

v.  Rockland 178 

Blaeser  v .  Milwaukee  Ins.  Co 239 

Blagborne  v.  Hunger 223 

Blain  v.  Blain 129 

Blair  v.  Bartlett 125 

v.  Ellsworth 110 

v.  Seaver 272 

Blaisdell  v.  Bickum 105 

v.  Pray 136 

Blake  v.  Albion  Life  Assurance  Co .  53,  54 

v.  Griswold 143 

v.  People 176 

v .  Sawin 183 

v.  Stump 318 

v.  Taylor 240 

Blaker  v.  State 245 

Blakeslee  v.  Hughes 161 

Blanchard  v.  Brown 122 

v.  Hodgkins 26 

v.  Steamboat  Co 36 

Blatz  v .  Rohrbach 172 

Bleecker  v.  Johnston 314 

Blewitt  v.  Boorum 222 

Bliss  v.  Brainard 252 

v.  Johnson 46 

v.  N.  Y.  Cent.  R.  Co 124 

Block  v.  Dorman 67 

Bloomington  v.  Legg 34 

v.  Osterlee 40,  313 

v.  Shrock 116 

Bloor  v.  Delafield 38 

Blough  v.  Parry 331 

Blount  v.  Kimpton 287 

Blum  v .  Jones 116 

Board  of  Commrs.  v.  Leggett 48 

v.  O'Connor 337 

Board  of  Trustees  v.  Misenheimer. .  152 

Boardman  v.  Woodman 56,  160 

Bodman  v.  Amer.  Tract  Soc 231 

Bodwell  v.  Heaton 240 

Boehl  v.  Chicago,  etc.  R.  Co 246 

Bogardus  v.  Trinity  Church 17,  114 

Boggess  v.  Read » 4 

Boggs  v.  Taylor 229 


TABLE  OF  CASES  CITED. 


PAGE 

Bogie  v .  Nolan 58,  254 

Bogle's  Excrs.  v.  Kreitzer 335 

Bohan  v .  Avoca  Borough 317 

Boies  v.  Hartford,  etc.  R.  Co 246 

Boiling  z/.'Speller 137 

v.  State 248 

Bollinger  v.  Gallagher 146 

Bolton  v.  Schriever 119,  135,  137 

Bond  v .  Fitzpatrick 63,  64 

v.  Markstrum 121 

Bond's  Appeal 229 

Bonelli,  In  the  Goods  of 147 

Bonesteel  v.  Lynde 193, 194,  294 

Bonnell  v.  Mawha 93 

Bonner  v.  State 15 

Bonnet  v.  Glattfeldt 341 

Bonnie  v.  Earl 303 

Bonynge  v.  Field 37 

Bookhout  v.  State 340 

Bookman  v.  N.  Y.  El.  R.  Co 173 

v.  Stegman 312 

Boomer  v.  Laine 281 

Booth  v.  Powers 214,218 

v.  Robinson 221 

Boothbay  v.  Giles 211 

Boren  v .  State 248 

Borst  v.  Empie 181 

Boscowitz,  Ex  parte 297 

Boston  v.  Richardson 17,  213.  355 

v.  Worthington 132 

Boston,  etc.  Co.  v.  Hanlon 102 

v.  Shanley 241 

B.  &  M.  R.  Co.  v.  Ordway 70 

Boston  &  W.  R.  Co.  v.  Dana 30,  189 

Boston  Relief  Co.  v.  Burnett 242 

Bottles  v.  Miller 69 

Boulden  v.  Mclntire 241 

v.  State 89 

Bouldin  v.  Alexander 119 

Bourne  v.  Buffington 192 

Bovee  v.  Danville 252 

Bow  v.  People 307 

Bowdle  i'.  Railway  Co 272 

Bowe  v.  Wilkins 120 

Bowen  v.  Chase 61 

v.  Mo.  Pac.  R.  Co 173 

Bowers  v.  Wood 256 

Bowles  v.  Bingham 256 

Bowling  v.  Hax 183 

Bowman  v.  Patrick 280 

Bowyer  v.  Schofield 129 


PAGE 

Boyce  v.  Cheshire  R.  Co 40 

Boyd  v.  Conshohocken  Mills 317 

v.  Jones 63 

v.  Paul 220 

v.  State 325 

v.  U.S 35.273.  294 

Boyer  v.  Rhinehart 38 

Boyerstown  Nat.  Bk.  v.  Hartman...  240 

Boy  kin  v.  Boykin 256 

Boylan  v.  Meeker 55,  100 

Boyle  v.  Smithman 294 

v.  State 86,  116,  317 

Boynton  v.  Boynton 194 

Boyse,  In  re 309 

v.  Rossborough 30 

Brachman  v.  Hall 153 

Brackett  v.  Barney 222 

v.  People 122 

Bradford  v.  People 155 

v.  Randall 212 

v.  State 77 

Bradlaugh,  Re 275 

Bradley  v.  Beetle. .  123 

v.  Bradley 124 

v.  Brigham 126 

v.  Hartford,  etc.  Ins.  Co 38 

v .  James 96 

v.  Mirick no,  in,  316 

v.  Rees 231 

v.  Welch 138 

Bradshaw  v.  Combs 319 

Bradstreet  v.  Rich 226 

Brady  v.  Nally 221,  236 

v.  State 288 

Brague  v.  Lord 271 

Brahe  v.  Kimball 71 

Brain  v.  Preece 94 

Bram  v.  U.  S 78 

Branch  v.  Libbey 39 

Brand  v.  Johnrowe 216 

Brandt  v.  Klein 187 

Branson  v.  Caruthers 282 

Brassington  v.  Brassington 295 

Braunschweiger  v.  Waits 238 

Brawley  v.  U.  S 229 

Bray  v.  Doheny 68 

v .  Flickinger 264 

Brazill  v.  Isham 129 

Breen  v.  N.  Y.  C.  R.  Co 250 

Bremner  v.  Newcastle 38 

Brennan  v.  Friendship 51 


TABLE  OF  CASES  CITED. 


PAGE 

Brennan  v.  Hall 95 

Bressler  v.  People 286,  328 

Breton  v.  Cope 182 

Brewers.  Porch 329 

Brewing  Co.  v.  Bauer 34 

Brewster  v.  Doane 91 

Brice  v.  Bauer 74 

Brick  v.  Brick 224 

Bricker  v.  Stroud 268 

Bride  v.  Clark 205 

Bridgeport  Ins.  Co.  v.  Wilson 132 

Bridgewater  v.  Plymouth 284 

v.  Roxbury 91 

Brierly  v.  Davoll  Mills 38 

Briesenmeister  v.  Knights 293 

Briffit  v.  State 172 

Brigg  v.  Hilton 224 

Briggs  v.  Rafferty 91 

v.  Smith 281 

Brigham  v.  Fayerweather 127,  133 

v .  Palmer 183 

Bright  v.  Young 184 

Brighthope  R.  Co.  v.  Rogers 41 

Brim  v.  Fleming 218 

Bristow  v.  Sequeville 147 

Brittain  v.  Kinnaird 13$ 

Britton  v.  Thornton 123 

Broad  v.  Pitt 384 

Brockley  v.  Brockley 68 

Brogy  v.  Comm 109 

Brolley  v.  Lapham 212 

Bronner  v.  Frauenthal 28 

Bronson  v.  Gleason 170 

v.  Leach 328 

Brooke  v.  N.  Y.  etc.  R.  Co 269 

Brookin  v.  State 30$ 

Brooks  v.  Belfast,  etc.  R.  Co 59 

v.  Brooks 45 

v.  Goss 62 

v.  Weeks 331 

Brookville  v.  Arthurs 132 

Broschart  v.  Tuttle 74 

Brothers  v.  Jasper 285 

Brotherton  v.  Brotherton 311 

v.  People 87 

Brough  v.  Lord  Scarsdale 18 

Broult  v.  Hanson 238 

Brower  v.  Bowers 233 

Brown,  Ex  parte 193,  297 

v .  Barnes 45 

v.  Brown 232,  280 


PAGE 

Brown  v.  Calumet  Riv.  R.  Co 329 

v.  Comm 23,  35,  87,  276,  347,  364 

v.  Eastern,  etc.  R.  Co 38 

v.  Eaton 139 

v.  First  Nat.  Bk 218 

v.  Foster 290 

v.  Galesburg  Brick  Co '. . . .  342 

v.  Gallaudet 121 

v.  Grant 265 

v.  Jewett 289 

v.  Keny on 57 

v.  Kimball 181 

v.  Littlefield 192 

v.  Mailler 60,  72 

v.  Mass.  Ins.  Co 176 

v.  Mooers 337 

v.  Oldham 185 

v.  Piper 168 

v .  Powell  Co 269 

v.  State 27,  315,  327,  339 

»-U.S 335 

v.  Walker 297 

v.  Wright 147 

Brownell  v.  Palmer 261 

Browning  v.  Gosnell 329 

Brubaker's  Admr.  v.  Taylor 330 

Bruce  v.  Nicolopulo 188 

v.  Priest 160 

v.  Roper  Co 236 

v .  Slemp 224 

v .  State 205 

v .  Westcott 218 

Brungger  v.  Smith 290 

Brunsden  v.  Humphrey 124 

Bruschke  v.  N.  Chicago  Verein 139 

Bryan  v.  Forsyth 206 

v.  Scholl 170 

Buchanan  v.  Hubbard 147 

Buchanon  v.  Adams 224 

Buck  v.  Pa.  R.  Co 246,  250 

v.  Wilson i2r 

Buckley  v.  Silverberg 324 

Buddz'.  MeridenElec.  R.  Co 318 

Buell  v.  State 167 

v.  Van  Camp 311 

Buffalo,  etc.   Loan  Co.  v.  Knights 

Templar  Ass'n 62 

Buff  urn  v.  Jones 141 

v.  Ramsdell 137 

Bulkley  v.  Devine 350 

Bull  v.  Loveland 294,  295,  299 


TABLE  OF  CASES  CITED. 


PAGE 

Bullard  v.  Creditors 239 

v.  Pearsall 330 

Bullis  v.  East  on 189 

Bullock  v.  Knox 255 

Bundy  v.  Bruce 66 

Bunker  v.  Barron 224 

Bunnell  v.  Butler 337 

Burckhalter  v.  Coward 239 

Burdell  v.  Taylor 153 

Burdett  v.  May 240 

Burdette  v.  Coram 321,  325 

Burdge  v.  State 77 

Burdick,  In  re 137 

v.  Hunt 285 

v.  Norwich 130 

Burdict  v.  Mo.  Pac.  R.  Co 147 

Burg  v .  Chicago,  etc.  R.  Co 116 

Burgess  v.  Langley 284 

Burke  v.  Delaney 222 

v.  Kaley 32 

v.  Lacock 168 

v.  Mascarich 174 

v.  Miltenburger 169 

Burlen  v.  Shannon 119,  130,  134 

Burley  v.  German-American  Bk 93 

Burlington  Lumber  Co.  v.  White- 
breast  Co 187 

Burnaby  v.  Baillie 256 

Burnell  v.  Weld 202 

Burnham  v.  Allen 243 

v.  Brennan 62 

v.  Dorr 221,  236 

v.  Heselton 254 

v.  Morrissey 294 

Burns  v.  Fidelity  Co.   223 

v.  Thompson 236 

Burritt/'.  Belfy 125 

Burrows  v.  Klunk ^18,  266 

Bursill  v.  Tanner 295 

Burt  v.  Panjaud 249 

v.  Place 118 

z\  State 24 

i\  Winona,  etc.  R.  Co [65 

Burton  v.  Driggs 188, 189,  195 

v.  State 85 

Burwell  v.  Sneed 1 1 S 

Buse  v.  Page 336 

Bush  ?'.  Barrett 250 

-■.  Coram 273 

v.  Roberts 63 

v.  Stow  ell 67 


TAGE 

Busson  v.  Forsythe 107 

Buswell  v.  Fuller 246 

v.  Lincks 27 

Buswell  Trimmer  Co.  v.  Case 31 

Butler  v.  Gale 232 

v.  Millett 59 

v.  Moore 3S3 

v.  St.  Louis  Ins.  Co 95 

v.  Watkins 42 

Butrick  v.  Tilton 212 

Button  v.  Amer.  Tjact  Soc 230 

v.  Frink •. 242 

Buxton  v .  Edwards 66,  67 

v.  Somerset  Works 1.45 

Byass  v.  Sullivan 294 

Byers  v.  Hoppe 99 

v.  Wallace 104 

By rd  v.  Jones 63 

Byrne  v.  Boadle 250 

Caddy  v.  Barlow 118 

Cadell  v.  Allen 211 

Cadman  v.  Peter 240 

Cady  v.  Walker 289 

Caermarthen  R.  Co.  v.  Manchester 

R.  Co 71 

Cagger  v.  Lansing 17 

Caha  v.  U.  S 167 

Cahen  v.  Continental  Ins.  Co 1S7 

Cahill  v.  Cincinnati  R.  Co 252 

Calm  v.  Cahn 177 

Cake  v.  Shull 240 

Calderon  v.  O'Donahue 315 

Calkins,  In  re 48 

v .  Hartford 39 

Call  v.  Dunning 183 

Callender  v.  Callender 74 

Calloway  v.  Varner 342 

Calvert  v.  Flower 344 

v.  Friebus 2S1 

Calypso,  The 133 

Camden  v.  Belgrade 187 

Cameron  v.  Blackman 165 

v.  Bryan 45,  50 

v.  Peck 186 

Camp  v.  Cm- 233 

Campbell  v.  Brown 67 

v.  Campbell 328 

v.  Chace 280 

v.  Hall 126 

v .  Hoff 244 


TABLE  OF  CASES  CITED. 


PAGE 

Campbell  v.  Johnston 193 

v.  Kalamazoo 39 

v.  Mo.  Pac.  R.  Co 40 

v.  People 75,  302 

v.  Rankin 120 

Canaday  v.  Krum 31 

Canajoharie  Nat.  Bk.  v.  Diefendorf .  244 

Canal  Co.  v.  Ray 223 

Cancemi  v.  People 158 

Cannaday  v.  Lynch 272 

Cannon  v.  People 20,141 

Card  v .  Card 271 

v.  Foot 273,  274,  341 

Carey  v.  Bright 232 

v.  Hart 317 

Carland  v.  Cunningham 187,  195 

Carleton  v.  Lombard 132 

Carlson  v.  Winterson 335 

Carlton  v.  People 248 

Carnes  v.  Crandall 106 

v.  Piatt 291 

v.  White 72 

Carney  v.  Gleissner 277 

Carpenter  v.  Cohoes 115 

».  Dame  191 

v.  Dexter 164 

v.  Eastern  Trans.  Co 148 

v.  First  Nat .  Bk 242,  243 

v.  Grand  Trunk  R.  Co 147 

v.  Sheldon 69 

Carr  v.  Coke 165 

v.  L.  &  N.  W.  Railway 379 

v.  Moore 36 

v.  State 238,  273,  276 

Carrington  v.  St.  Louis 293 

Carroll  v.  Carroll 133 

v.  Deimel 32 

v.  M.  &R.  R.  Corp 264 

v.  Peake 179 

v.  Sprague 289 

z'.  State 320 

Carruthers  v.  McMurray 223 

Carter  v.  Boehm 144 

v.  Fishing  Co 259 

v.  Montgomery 106 

v.  State 274 

v .  Thurston 144 

v.  West 290 

Carthage  Co.  v.  Andrews 47,  142 

Carthaus  v.  State 159 

Cartier  v.  Troy  Lumber  Co 187 


PAGE 

Cartwright  v.  Green 298 

Carver  v.  State 341 

v.  United  States 87,  88 

Case  v.  Huey 202 

v.  Kelly 163 

v.  Marks 161 

v.  Perew 50,  171 

Casoni  v.  Jerome 218 

Cassady  v.  Trustees 108, 113 

Castner  v.  Sliker 9, 142 

Castor  v.  Davis 241 

Castrique  v.  Imrie. .  .126,  133,  139,  145,368 

Catherwood  v.  Caslon 155 

Cattison  v.  Cattison 27 

Caujolle  v.  Ferrie 106,123 

Caulfield  v.  Hermann 220 

v.  Sullivan 137 

Cavallaro  v.  Texas,  etc.  R.  Co 147 

Cavanaugh  v.  Austin 45 

Caverno  v.  Jones 20 

Caylus  v.  N.  Y.-etc.  R.  Co 126 

C.  B.  U.  P.  R.  Co.  v.  Andrews 282 

Cecil  Bk.  v.  Snively 224 

Celluloid  Mf'gCo.  v.  Arlington  Mf'g 

Co 316 

Central  Bk.  v.  Allen 194 

Central  Branch,  etc.  R.  Co.  v .  Shoup    59 

Central  Bridge  Corp.  v.  Butler 243 

Central,  etc.  R.  Co.  v.  Rockafellow..  307 

Central  R.  Co.  v.  Allmon 328 

v.  Dodd 337 

v.  Murray 109 

Central  Sav.  Bk.  v.  Baltimore 163 

Chadsey  v.  Gre*ne 73 

Chadwick  v.  Fonner 60 

v.  U.  S 194 

Chaffee  v.  Taylor 152 

v.  U.  S 90,  91,  94 

Chamberlain  v.  Carlisle 118,  129 

v.  Enfield 50 

v.  Piatt 141 

v.  Sands 342 

v.  Vance 45 

Chamberlin  v.  Ball 200 

v.  Ossipee 341 

Chambers  v.  Bernasconi 94 

v.  Hunt 312 

Champlin  v.  Stoddart 294 

Chandler  v.  Le  Barron 15^ 

Chapin  v.  Chicago,  etc.  R.  Co 222 

Chapman  v.  Chapman 10O 


KXXVI11 


TABLE  OF  CASES  CITED. 


PAGE 

Chapman  v.  Rose 264 

v.  Twitchell 73,  101 

v.  Wilber 170 

Chappell,  In  re 234 

Charles  Morgan,  The 334 

Charlton  v.  Reed 214 

v.  Unis 328 

Charter  v.  Charter 375 

Chase  v.  Caryl 203 

v.  Chase 9 

v.  Horton .*. 62 

v.  Maine  Central  R.  Co 51,  160 

v.  Smith 95 

v.  Spring  Vale  Mills  Co. . .  108,  in 

v.  Sycamore,  etc.  R.  Co 114 

v.  Winans 141 

Chase's  Appeal 264 

Chasemore  v.  Richards 260 

Chateaugay  Iron  Co.  v.  Blake 19.  94 

Chatfield  v.  Wilson 260 

Cheatham  v.  State 302 

Chelmsford  Co.  v.  Demarest 70 

Chemical  Light  Co.  v.  Howard 284 

Chenango  Bridge  Co.  v.  Lewis 91 

v.  Paige 95 

Cheney  v.  Arnold 120,  183 

v.  Patton 120 

Cherry  v.  Baker 167 

Chesapeake  Club  v.  State 297,  298 

Chester  v.  Wilhelm 330 

Chicago  v.  Gage 218 

v.  Powers 38 

Chicago  Lumbering  Co.  v.  Hewitt. . .    94 

Chicago,  etc.  R.  Co.  v Artery 334 

v.  Becker 13 

v.  Chancellor 26 

v.  Clark 50 

i'.  Hastings 333 

v.  Levy 252 

v.  McBride 250 

v.  McDaniel 284,  287 

i'.  McLaughlin 333 

V.  Nix 143 

v.  Packet  Co 132 

v.  Trayes 113 

t.  Van  Yleck 142 

v.  Wolcott 189 

Childs  v.  Jordan 60 

v.  Merrill 290,  297 

Chilton  v.  People 211 

Chisholm  v.  Beaman  Co 93,  94 


l'AGE 

Chism  v.  State 331 

Chrisman  v.  Chrisman 246 

Christianson  v.  Pioneer  Co 10 

Christmas  v.  Russell 140 

Christopher  St.  R.  Co.  v.  23rd  St.  R. 

Co 225,  240 

Chrysler  v.  Renois 190 

Chubb  v.  Gsell 161 

v.  Salomons 283 

Church  v.  Florence  Iron  Works 223 

v.  Howard 62,  69 

v.  Hubbart ...169,  207 

Chute  v.  State 343 

Cihak  v.  Klekr 176 

Cincinnati  v.  Cameron 311 

Citizens' Nat.  Bk.  v.  Williams 215 

City  of  Goshen  v.  England 38 

City  of  Paterson  v .  Baker 121 

City  of  Rochester  v.  Montgomery. . .  132 

City  of  Sandwich  v.  Dolan  303,  319 

City  Pass.  R.  Co.  v.  Knee ...  338 

Claflin  v.  Dodson 330 

v.  Fletcher 120 

v.  Meyer 245 

Clapp  v.  Banking  Co 236 

Clare  v.  People 238 

Clark,  In  re 72 

v.  Baird 143 

v.  Bradsti  eet 32 

v.  Brown 45,  162 

v.  Burn 67,  97 

v.  Clark 142,  254 

v.  Costello 137 

v.  Dillon 131 

v.  Freeman 152 

v.  Hills 243 

v.  Little 137 

v.  Miller 249 

v.  Morrison 69 

v.  Murphy 242 

v.  N.  Y.  Life  Ins.  Co 115 

v.  Owens 107,  213 

v.  Sigourney 67 

v.  Yorce 110,  318 

v.  Woodruff 228 

Clason  v.  Milwaukee 145 

Clay  ?'.  Langslow 362 

Clayborn  v.  Tompkins 136 

Clayton  v.  Lord  Nugent 232 

v.  Wardell 156 

Clegg  v.  Lemessurier 212 


TABLE  OF  CASES  CITED. 


PAGE 

Clemens  v.  Meyer 112,  206 

Clement  v.  Bullens 311 

v.  Packer 101 

v.  Spear 284 

Cleveland  v.  Bangor 131 

v.  Hopkins k 138 

v.  Newsom . .     10 

v.  N.  J.  Steamboat  Co 39 

Cleveland,  etc.  R.  Co.  v.  Ball 144 

v.  Mara 10 

v.  Monaghan 177 

v.  Newell 34,  47,  48 

v.  Perkins 179 

v.  Wynant 38 

Clever  v.  Hilberry 338 

Clews  v.  Kehr 64 

v.  N.  Y.  Banking  Ass'n 68 

Clifford  v.  Burton 70 

v.  Drake 342 

Clifton  v.  Granger 340 

Cline  v.  State 336 

Clinton  v.  State 272 

Cliquot's  Champagne 116 

Clodfelter  v.  Hulett 137 

Closmadeuc  v.  Carrel 210 

Closson  v .  Morrison 216 

Clough  v.  McDaniel 97 

Clouser  v.  Ruckman 60 

Cloyes  v.  Thayer 297 

Clune  v.  U.  S 14 

Coal  Co.  v.  Brick  Co 124 

Coates  v.  Burlington,  etc.  R.  Co.  49,  141 

v.  Sulan 336 

Cobb  v.  Wells 94 

Cobbs  v.  Fire  Ass'n 223 

Coble  v.  State 274 

Coburn  v.  Odell 297 

Cochrane  v.  Libby 107 

v.  Little 148 

Coffee  v.  State 85 

Coffin  v.  Hydraulic  Co 174 

v.  U.  S 238 

^.Vincent 342 

Cohen,  Ex  parte 297 

v.  Teller 155 

Cohn  v.  Goldman 73 

Cohoes  v.  D.  &  H.  Canal  Co 262 

Coit  v.  Churchill 239 

v.  Haven 136 

v.  Howd 63 

v.  Milliken 168 


PAGE 

Coit  v.  Patchen 30 

Colburn  v.  Groton 74 

Cole  v.  Hills 216 

v.  Jessup 342 

v.  Lake  Shore,  etc.  R.  Co..  303,314 

v.  Sherard 170 

v.  State 335 

Coleman,  Re 287 

v.  Comm 272 

v.  Dobbins , 165 

v.  Manhattan  Co 229 

v.  People 43 

v.  State 314 

Coleman's  Appeal 130 

Collagan  v.  Burns 99 

Collender  v.  Dinsmore 228 

Collier  v.  Dick 26 

Collins  v.  Ball 216 

v.  Bayntun 184 

v.  Collins 156 

v.  Hydorn 130 

v.  State 302 

v.  Stephenson 326 

v.  Voorhees 156 

Collyer  v.  Collyer 182 

Colorado  Coal  Co.  v.  U.  S 241,  252 

Colt  v.  McConnell. 289 

v.  People 22 

Colton  v.  Beardsley 135,  225 

Coltraine  v.  Brown 338 

Columbia  R.  Co.  v.  Hawthorne 31 

Comer  v.  Cole,  etc.  Co 252 

Comins  v.  Hetfield 316 

Commrs.  of  Wilson  Co.  v.  Mcintosh  122 

Comm.  v.  Abbott 5,7,  19 

v.  Allen 154 

v.  Annis 23,  28 

v.  Bacon 291 

v.  Barnacle 20 

v.  Bell 45.  297 

v.  Bezek 247 

v.  Bigelow , 43 

v.  Billings 303 

t'.  Bishop.. 90,  302 

v.  Blair 22 

v.  Boroschino 23 

v.  Bradford 19,  35,49,  83 

v.  Brady 29 

v.  Brailey 27 

v.  Brewer 87 

v.  Brigham 23 


a! 


TABLE  OF  CASES  CITED. 


PAGE 

.  v.  Brown 76,  190,  276,  313 

.  Buccieri 19 

•  Burke 343 

.  Burlington 49 

.  Buzzell 307 

.  Campbell 28 

.  Caponi 280 

.  Carey 87 

.  Casey 86 

.  Castles 185 

.  Choate 20,  21,  35,  49,  248 

.Clark 83 

.  Cleary 41,109,158 

.  Coe 44 

.  Cooper 88,  341 

.  Costley 238 

.  Crowe 20 

.  Crowley 9 

.  Cuffee 78,81,85 

.  Cullen 80 

,  Culver 77 

.  Curtis 78 

.  Damon 45 

Densmore 8,  95 

,  Desmond 170 

,  Dill 190 

.  Dorsey 31, 144 

Drake 79 

,  Dunlop 168 

Eastman i?j 

Elisha 134 

Emigrant  Sav.  Bk 218 

Emmons 177 

Felch 105,  106 

Ferrigan 21 

Follansbee 313 

Ford 274,  342 

Galavan 25 

Gauvin 41 

Goddard 289 

Goodman 36 

Goodwin 20,  23 

Gorham 325 

Gray 340 

Griffin 280 

Hackett 12 

Hall 112,  152 

Haney 88,89 

Harman 83 

Harris 339 

Hawkins 263 


PAGE 

Comm.  v .  Hayes 280 

v.  Hill 116,285 

v.  Hollister 302 

v .  Holmes 20,  302 

v.  Holstine 76 

v.  Howe 80,85 

v.  Hudson 19 

v.  Ingersoll 302 

v.  Ingraham 15,  76,  337 

v.  Jackson 35,  42,  44 

v.  James 80 

v.  Jarboe 308 

v.  Jardine 47 

v.  Jeffries 5,  180 

v-  Jeffs 342,  343 

v.  Johnson 43 

v .  Kane 225 

v.  Kennon 50 

v.  Kimball 53 

v.  King 115,170 

v.  Knapp 79 

v.  Lannan 343 

v.  Leach 48,  151,  238 

v.  Leonard 158 

v.  Littlejohn 156 

v.  Lynes 274 

v.  Marzynski 171 

?'.  McCabe 75.  3'4 

v.  McCarthy 51 

v.  McDermott 75 

v.  McGorty 245,315 

v.  McGrath 249,  262 

v .  McKenna 109 

v.  McKie 244 

v.  McNamee 50 

v.  M'Pike 12 

v.  Mead 285 

v.  Meany.   5° 

i'.  Meserve 284 

v.  Moore 263,  277 

v .  Morey 78,  81 

v.  Morrell 190 

v.  Mosler 78 

?•.  Moyer 297 

v.  Mudgett 238 

v.  Myers 81 

v.  Nagle 158 

v.  Nef us 12 

v.  Nichols 298 

v.  Nott 81 

v.  O'Brien 142,  159.335 


TABLE  OF  CASES  CITED. 


xli 


PAGE 

Conim.  v.  Parker 305 

v.  Parmenter 23 

v .  Phillips 104 

v.  Piper 157 

v.  Pitsinger 76 

v.  Place 45 

v.  Pomeroy 49,  247 

v.  Pratt 297 

v.  Preece 77,  78 

v.  Price 43 

v.  Ratcliffe 29 

v.  Reynolds 5S 

v.  Ricker 56 

v.  Roberts 87 

v.  Robertson 177 

v.  Robinson 4.  49.  272 

v.  Russell 43 

v.  Ryan 50,  352 

v .  Sapp 276,  278,  280 

v.  Schaffner 321 

v.  Scott 15,  35.  276 

v.  Scowden 286 

v.  Sego 77,  78,  80 

v.  Shaw 297 

v.  Shepherd 256 

v.  Shurn 187 

v.  Sliney 26 

v.  Smith 16,  78,  153,  191,  298 

v.  Sparks 299 

v.  Stevens 190 

v.  Stevenson 104 

v.  Straesser 20,  88 

v.  Sturtivant 115,  142,  353 

v.  Sullivan 192,323 

v.  Switzer 115 

v.  Tibbetts 6 

v.  Tolliver 22,  329 

v .  Towle 251 

v.  Trefethen 26,  47 

v.  Trider 297 

v.  Tuckerman 79 

v.  Vose 73 

v.  Weber 314 

v.  Webster 4.7,21 

v.  Werling 51 

v.  Werntz 12 

v.  Wesley 83 

v.  White 284 

v.  Williams 28 

v.  Wilson 302 

Comstock  v,  Crawford 137 


PAGE 

Comstock  v.  Smith 216 

Conant  v.  Leslie 45 

v.  Nat.  State  Bk 221 

Concha  v.  Concha 130 

Conestoga  Co.  v.  Finke 228 

Confederate  Note  Case 232 

Conkey  v.  Barbour 67 

v.  People 159,  339 

Conn.  Ins.  Co.  v.  Lathrop 141,  143 

v.  Union  Trust  Co 293 

Conn.  Life  Ins.  Co.  v.  Schaefer 287 

v.  Schwenk 104,  105 

Connelly  v.  McKean 262 

v.  O'Connor 271 

Connolly  v.  Pardon 234 

v.  Straw 282 

Connors  v.  Morton 37 

Conrad  v.  Griffey .   338 

Conselyea  v.  Swift 242 

Consol.  Ice  Machine  Co.  v.  Keifer...  328 

Continental  Ins.  Co.  v.  Delpeuch 315 

v.  Jachnichen 239 

Converse  v.  Colton 282 

v.  Sickles 68 

v.  Wales 49 

v.  Wead 228 

Conway  v.  State 25,276 

Conyers  v.  Postal  Tel.  Co 179 

Coogler  v.  Rhodes 320 

Cook  v.  Barr 58,  61 

v.  Brown 328 

v.  Champlain,  etc.  Co 50 

v.  Ins.  Co 142 

v.  New  Durham 38 

v.  N.  Y.  Central  R.  Co 111 

v.  State 171 

Cooke  v.  Tanswell 1S4 

Coole  v.  Braham 72 

Coombes  v.  State 338 

Coon  v.  Swan 288 

Coon's  Appeal 97 

Coonrod  v.  Madden 190,  195 

Cooper  v.  Cooper 258,  301 

v.  M  ayhew 62 

v.  Phipps 161 

v.  State 298 

Cope  v.  Cope 113,  256 

Copeland  v.  State 169 

v.  Taylor 73 

Copperman  v.  People 43 

Corbett  v .  Gibson 187,  193 


xlii 


TABLE  OF  CASES  CITED. 


PAGE 

Corbett  v.  State 76 

Corbin  v.  Jackson 178 

Corbishley's  Trusts,  Re 258 

Corbitt  v.  Timmerman 138 

Corbley  v.  Wilson 133 

Corby  v.  Wright 2H1 

Corcoran  v.  Peekskill 31 

Corder  v.  Corder 57 

Corley  v.  Holloway .• 258 

Corlies  v.  Van  Note 212 

Corn  Exch.  Bk.  v .  Nassau  Bk 224 

Cornelius  v.  Hambay 278,  299 

Cornett  v.  Williams 191 

Corning  v.  Corning 160 

Cornish  v.  Farm,  etc.  Ins.  Co 150 

Corr  v.  Sellers 92 

Corrigan  v.  Chicago 267 

Cortes  Co.  v.  Tannhauser 309 

Cory  v.  Bretton 73 

Costello  v.  Crowell. .  35,  149,  154,  342,  343 

Costigan  v.  Lunt 109,110 

Cosulich  v.  Standard  Oil  Co 244 

Cothran  v.  Ellis 355 

Cotton  v.  Smithwick 230 

Cottrell,  Matter  of 185 

v.  Cottrell 314 

Coulter  v.  Amer.  Exp.  Co 329 

Counselman  v.  Hitchcock 297 

Countryman  v.  Bunker 93 

County  Commrs.  v.  Minderlein 322 

County  of  Mahaska  v.  Ingalls 95 

Coveney  v.  Tannahill 296 

Coventry  v.  Great  Eastern  Ry.  Co..  266 

Covert  v.  Sebern 231 

Coward  v.  Clanton 58 

Cowley  v.  People 177 

Cox  v.  Bruce 269 

v.  Co  mm 302 

v.  Davis . .  181 

v.  Eayres 329 

v.  Ellsworth 258 

v.  Palmer 217 

Coye  v.  Leach 

Coyle  v.  Comm 145,  1  (8 

Coyne  v.  Weaver 62 

Cozzens  v.  Higgins 188 

Craft  v.  Comm 332 

Craig  v.  Brown 202 

V.  Miller 277 

v.  State 76 

Craig's  Appeal 28 


PAGE 

Craighead  v.  McLoney 214,  218 

Crawcoui  v.  Salter 291 

Crawford  v.  Loper 109,  115 

v.  West  SideBk 265 

Crawfordsville  v.  Braden 172 

Crean  v.  Hourigan 320 

Crease  v.  Barrett 100, 102,  103 

Creighton  v.  Hoppis 61 

Crill  v .  Rome 114 

Crispell  v.  Dubois 100 

Crist  v.  Erie  R.  Co 40 

Crittenden  v.  Rogers 342,  344 

Crocker  v.  Agenbroad 331 

v.  Crocker 233 

v.  McGregor 38 

Crockett  v.  Davis 148 

Crofton  v.  Crofton 309 

Cromer  v .  Pinckney 230 

Cronk  v.  Frith 183 

Cronkhite  v.  Herrin 67 

Crook  v.  State 337 

Crooks  v.  Bunn 338 

v.  Whitford 232 

Crosby  v.  Berger 289 

Cross  v.  Brown 246 

v-  Cross 139,  255,330 

v.  Lake  Shore,  etc.  R.  Co 314 

v.  Sabin 172 

v.  State  24 

Crossley  v.  Dixon 268 

Crossman  v.  Crossman 179 

Croswell  v.  Labree 214 

Croudson  v.  Leonard 127 

Crow  v.  Jordan 32 

Crowell  v.  Western  Res.  Bk 176,312 

Crowninshield  v.  Crowninshield 246 

Cruikshank  v.  Gordon 45 

Cuddy  v.  Brown 104 

Cullison  v.  Bossom 293 

Cullmans  v.  Lindsay '223 

Culrose  z\  Gibbons 122 

Culver  <•.  Marks 91 

v.  Scott  Lumber  Co 342 

Culver's  Appeal 136 

Cumberland  Ins.  Co.  v.  Giltinan 178 

Cummer  i<.  Kent  Judge 193 

Cummings  v.  Arnold 223 

v,   I  .i\  lor 315 

Cummins  v.  Hurlbutt 240 

Cunningham  v.  Hudson  Riv.  Bk 152 

Cuppy  v.  State 256 


TABLE  OF  CASES  CITED. 


xliii 


PAGE 

Currier  v.  Richardson 239 

Curry  v .  Walter 282 

Curtice  v.  West 316 

Curtis  v.  Aaronson 102 

v.  Belknap 185 

v.  Bradley 343 

v.  Cochran 273 

v.  Daughdrill 97 

v.  State 116 

Curtiss  v.  Ayrault 115 

Cushingw.  Field 218 

v.  Laird 127 

Cushman  v.  Coleman 344 

Cuthbertson's  Appeal 249 

Cutler  v .  Thomas 224 

v.  Wright 174 

Cutter  v.  Caruthers 167 

Cuyler  v.  McCartney 14.  63 

Dabney  v.  Mitchell 281,  341 

Daby  v.  Ericsson 30 

Da  Costa  v.  Jones 354 

Dade  v.  ./Etna  Ins.  Co 192,  195 

Daily  v.  N.  Y.  etc.  R.  Co 87 

Dain  v.  Wyckoff 160 

Dale  v.  Delaware,  etc.  R.  Co 8 

v.  Gilbert 59 

Daley  v.  American  Printing  Co 50 

Dalrymple  v.  Williams 284,  285 

Dalton  v.  Angus 260 

v.  West  End,  etc.  R.  Co 68 

Daly  v .  Byrne 45 

Dan  v.  Brown 69 

Dana  v.  Conant 194 

v.  Fiedler 232 

v.  Nat.  Bk.  of  Republic 36 

v.  Tucker 287 

Daniel  v.  Daniel 291 

v.  Pitt 73 

Daniels  v.  McGinnis 63 

v .  Smith 190 

Dann  v.  Kingdom 156 

Dantz  v.  State 76 

Darby  v.  State 88 

Darling  v.  Westmoreland 5.  142 

Darlington's  Estate 254 

Darrow  v.  Pierce 188 

Daugherty  v.  Rogers 230 

Davenbagh  v.  M  'Kinnie 294 

Davenport  Co.  v.  Pa.  R.  Co 296 

Davidson  v.  Cooper 215,  218 


PAGE 

Davidson  v.  Cornell 48 

Davie  v.  Briggs 258 

Davies  v.  Lowndes. 104,  107,  367 

v.  Waters 295 

v.  White.  394 

Davis,  Ex  parte 163 

v.  Brown 271 

v.  California  Powder  Works...  318 

v .  Comm 00,  336 

v .  Cornue 139 

v.  Davis 137,  240 

v.  Field 342,343 

v.  Gallagher 69 

v.  Gann 221 

v.  Greve 119 

v.  Kline no 

v.  McCrocklin 59 

v.  Melson 60 

v.  Poland 66,  68 

v.  Roby 325 

v.  Seaman 92 

v.  Smith 132 

v.  Spooner 182 

w.State n6,338 

w.U.S 247 

Davison  v.  Gibson 147 

v.  Sherburne 67 

Dawson  v.  Mayall 104 

v.  State 49 

Day  v.  Day 274 

v.  Floyd 119 

v.  Ross 160 

v.  Stickney 326,  329 

Dayton  v.  Monroe 49 

Dazey  v.  Mills 59 

Deal  v.  State 4 

Dean  v.  Chapin 204 

v.  King 269 

z'.  Wilkerson 95 

De  Armond  v.  Neasmith 117 

Deasey  v.  Thurman 63 

Deck  v.  Johnson 65 

Decker  v.  Decker 231 

Dedrick  v.  Hopson 273 

Deer  Isle  v.  Winterport 26,  47 

Deere  v.  Bagley 329 

De  Haven  v.  De  Haven 106 

Deimel  v.  Brown 305 

Deininger  v.  McConnell 211 

Deip's  Estate 289 

Deitz  v.  Regnier 189 


xliv 


TABLE  OF  CASES  CITED. 


PAGE 

Dejarnette  v.  Comm 248 

De  Kay  v .  Irving 230 

Delafield  v.  Hand 169 

Delaware  Co.  v .  Diebold  Co 58 

Den  v .  M'Allister 192 

Denman  v.  Johnston 117,  252 

Denney  v.  State 166,  170 

Dennie  v.  Williams $8,67 

Denning  v.  Butcher 141,  247,  287,  293 

Dennison  v.  Page 256 

Denny  v.  Pinney 100,  182 

Denton  v.  C.  R.  I.  &  P.  R.  Co 246 

v.  Roddy 138 

Denver  Tramway  Co.  v.  Owens 287 

De  Pauw  v.  Bank 218 

Derby  v.  Ailing 115 

v.  Thrall 218 

De  Rosaz,  In  the  Goods  of 235 

Derrick  v.  Luddy 266 

De  Thoren  v .  A.  G 155 

Detrick  v.  Sharrar 122 

Devala  Co.,  Re 66 

Deveney  v.  Baxter 9 

Devlin  v.  Comm 119 

v.  Greenwich  Sav.  Bk 240,  303 

Dewey  v.  Moyer 15 

Dewitt  v.  Prescott 192 

Dexter  v.  Hall 148 

v.  Harrison 176 

Diamond  v.  Henderson 263 

Diamond  State  Iron  Co.  v.  Rarig 120 

Dibble  v.  Dimmock 4 

Dickerman  v.  Graves 278 

Dickerson  v.  Colgrove 264 

v.  State 83 

Dickinson  v.  Buskie 317 

V.  Dickinson 75 

v.  Poughkeepsie 19 

Dickson  v.  Hartman  Mfg.  Co 222 

v.  State 313 

Diehl  v.  Rodgers 273 

Diel  v.  Stegner 315 

Dietzf.  Fourth  Nat.  Bk 154 

Diggin's  Estate 152 

Dill  v.  People 277 

Dille  v.  Lovell 243 

Dilleber  v.  Life  Ins.  Co 48 

Dillon,  In  re 283 

Dilts  v.  Stevenson 303 

Diniick  v.  Downs 142 

Dinsmore  v.  Abbott 246 


PAGE 

Dismukes  v.  State 12 

Di  Sora  v.  Phillipps 145 

Disque  v.  State 298 

Dist.  of  Columbia  v.  Armes. .  38,  272,  275 

v.  Cornell 266 

v.  Gallaher 228 

Division  of  Howard  Co 165 

Dix  v.  Atkins 54 

Dixon  v.  Hammond ^ 268 

v.  Niccolls 171 

v.  People 241 

v.  State 329 

Dobson  v.  Graham 294 

v.  Pearce 139 

Dodge  v.  Gallatin 213 

v .  Goodell 63 

v.  Haskell 216 

v.  Trust  Co 61,  63 

v.  Zimmer 226 

Doe  v.  Barton 266 

v.  Baytup 267 

v.  Beviss 98 

v.  Brydges 127 

v.  Catomore 215 

v.  Coulthred 249 

v.  Date 295 

v.  Derby m 

d.  Devine  v.  Wilson 259 

v.  Edwards 169 

d.  Hammond  v.  Cooke 261 

v.  Hiscocks 234,  375,  376 

v.  Hodgson 345 

v.  Kemp 14 

v.  Needs 235,  375 

v.  Palmer 101 

v .  Pegg 266 

v.  Pulman 17 

v .  Ross 197 

v.  Smyth 266 

v.  Suckermore 153 

v.  Tatham m,  356,  369 

v .  Turf ord 90 

v.  Vowles 98,  99 

d.  Wright  v.  Tatham 359 

Doherty  v.  O'Callaghan 289 

Dole  v.  Belden 194 

v .  Wilson 169 

i'.  Wooldredge 318 

Doles  v.  State 87 

Dollner  v.  Lintz 335,  336 

Donahue  v.  Coleman 262 


TABLE  OF  CASES  CITED. 


xlv 


PAGE 

Donahue  v.  Railroad  Co 252 

Donellan  v.  Hardy 196 

Donelson  v.  Taylor 317 

Donnelly  v.  State 88,  90,  317 

Donohue  v.  People.- 22 

v.  Whitney 115 

Donovan  v.  Boston,  etc.  R.  Co 91 

Dooley  v.  Baynes 61 

v.  Moan 92 

Doon  v.  Ravey 74 

Dooner  v.  Canal  Co 145 

Dorman  v.  Kane 51 

Dorr  v.  Tremont  Nat.  Bk 243 

Dorrell  v.  State 118 

Dost  Aly  Khan,  In  the  Goods  of 147 

Doty  v.  Brown 126 

Doughty  v.  Doughty 139 

Douglas  v.  Mitchell's  Excr 68 

Dover  v.  Child 123 

Dow  v.  Blake 1 39 

Dowell  v.  Guthrie 244 

Downer  v.  Button 194 

v.  Rowell 342 

Downey  v .  Dillon 161 

Downs  v.  N.  Y.  C.  R.  Co 57 

Doyle  v ,  Jessup 340 

v.  N.  Y.  Infirmary  151 

v.  People 276 

v.  St.  Paul,  etc.  R.  Co 39,  50 

Draper  v.  Draper 272 

v.  Hatfield 74.  192 

Drennan  v.  Douglas 257 

Dresler  v.  Hard 155 

Drew  v.  State 335 

v.  Swift 230 

Driscoll  v.  Fall  River 46 

v.  People 24,  325 

Drosten  v.  Mueller 263 

Drown  v.  Allen 161 

Drum  v.  Drum 214,  215,  216 

Drummond  v.  Prestman 131 

Drury  v.  Hervey 26 

v.  Midland  R.  Co 101,  103 

Du  Barre  v.  Livette 383 

Dubois  v.  Hermance 118 

Duchess  of  Kingston's  Case 

128,  133,  139,  292,  368 

Ducie  v.  Ford 221 

Dudleys.  Beck 288 

v.  Cadwell 209 

Duff^.Duff 58 


PAGE 

Duffin  v.  People 180 

Duffy  ».  People .' 80 

Dugan  v.  Mahoney 342,  343 

Duke  of  Bedford  v.  Lopes 17 

Duke  of  Buccleughz*.  Met.  Bd.  Works  282 

Duke  of  Newcastle  v.  Broxtowe 103 

Dulaney  v.  Payne 125 

Dumont  v.  Dumont 247 

Dunbar  v.  McGill 108,  329,334 

v.  U.  S 187, 192 

Duncan  v.  Lawrence 6i 

v.  Seeley 343 

Dundee  Mortgage  Co.  v.  Cooper —  146 

Dunham  v.  Averill 230,  234 

v.  Barnes 227 

v.  Bower 125 

Dunlap  v.  Richardson 329 

Dunlop  v.  U.  S 53.241 

Dunn,  In  re 294 

Dunn  v.  Price 236 

v.  Record 249 

v.  State 25 

Dunn's  Case 43 

Dunstan  v.  Higgins 140,208 

Durant  v.  Abendroth 127,  140 

Durfee  v.  Abbott 94 

Durgin  v.  Somers 74 

Duringer  v.  Moschino 137 

Durkee  v.  Cent.  Pac.  R.  Co 9 

v.  Leland 296 

v.  Vermont  R.  Co 179 

Dusky  v.  Rudder 268 

Duttenhofer  v.  State -287,  291 

Duval  v.  Covenho ver 73 

v .  Davey 162 

DuvalFs  Excr.  v.  Darby 176 

Dwain  v.  Descalso 27 

Dwight  v.  Brown 95 

Dwyer  v.  Collins 192,  194,  372 

Dyckman  v.  Mayor  of  N.  Y 135 

Dye  v.  Young 49 

Dyer  v.  Fredericks 191 

Eagan  v.  Connelly 205 

v.  State 172 

Eames  v.  Eames 261 

Earl  v.  Tupper. no 

Earle  v.  Grout 287 

Earle's  Trust 170 

Early  v.  Comm 80 

East  v.  Pace 190 


xivi 


TABLE  OF  CASES  CITED. 


PAGE 

East  St.  Louis  R.  Co.  v.  O'Hara 329 

Eastman  v.  Boston,  etc.  R.  Co 13 

v.  Dearborn 140 

v.  Martin 108 

Eaton  v.  Alger in 

v.  Knowles 68 

v.  Tallmadge 104,  107 

v.  Telegraph  Co 6 

Eckel  v.  Eckel 263 

Eckert  v.  Louis 215 

v .  Pickel 214 

Eckford  v.  Eckford 231 

Eckstein's  Petition 297 

Eddy  v.  Gray 32 

Edgar  v.  Board  of  Commrs 165 

v.  Buck 121 

v.  Richardson 178 

Edgecomb  v.  Buckhout 143 

Edgell  v.  Francis 47 

Edgerton  v.  Wolf 69 

Edgington  v.  U.  S 158 

Edington  v.  Life  Ins.  Co 48,  293 

Edison  Electric  Co.  v.  U.  S.  Electric 

Co 296 

Edison  Light  Co.  v.  U.  S.  Lighting 

Co 344 

Edwards,  In  re 241 

v.  Bonneau 194 

v.  Knapp 239 

v.  Noyes 187 

v.  Tracy 178 

Egan  v.  Bowker 23 

Egbert  v.  Egbert 141 

v .  Greenwalt 255 

Ehle'sWill 258 

Eickhoff,  In  re 119,  136 

Eickman  v.  Troll 289 

Eidt  v.  Cutter 156 

Eighmie  v.  Taylor 222 

Eighmy  v.  People 9,  26 

Eilbert  v.  Finkbeiner 192 

Eisenlord  v.  Clum 104, 105,  156,  271 

Eisfield  v.  Dill 155 

Elcessor  v.  Elcessor 141 

Electric  Light  Co.  v.  Grant 322 

Elgin  v.  Joslyn 228 

Elkin  v.  Janson 252 

Elkins  v.  McKean 8 

Elkinton  v.  Brick 100,  246 

Ellicott  v.  Pearl 101 

Elliott  t>.  Boyles 324 


PAGE 

Elliott  v .  Dyche 183 

v.  Hayden 58 

v.  Russell 160 

v.  Van  Buren 142 

Ellis'  Estate,  In  re 204 

Ellis  v.  Buzzell 239 

v.  Duncan 260 

v.  State 77 

Ellison  v.  Cruser 344 

v.  Lindsley 54 

v.  Weathers 281 

Elmira,  etc.  Co.  v.  Harris 264 

Elmore  v.  Johnson 37 

Eisner  v.  Supreme  Lodge 142 

Elsworth  v.  Muldoon 96 

Elwell  v.  Cunningham 198 

v.  Mersick 188,  191 

Elwood  v.  Flannagan 200 

Ely  v.  Ely 216 

Elyton  Co.  v.  Denny 311 

Embden  v.  Lisherness 120 

Emerson  v.  Bleakley no 

v.  Lowell  Gas  Co 145 

Emery  v.  Fowler 109 

v.  Hildreth 119 

Emery's  Case 297 

Emmett  v.  Penoyer 221,  228 

Empire  Mf'g  Co.  v.  Stuart 152 

Enders  v.  Sternbergh 60,  213 

Engelhorn  v.  Reitlinger 226 

English  v.  Porter 271 

Enix  v.  Miller 166 

Ennis  v.  Smith 145,  207 

Enos  v.  Enos 45 

v.  Tuttle 10 

Entick  v.  Carrington 187 

Eppert  v.  Hall 327 

Eppinger  v.  Scott 54 

Epps  v.  State 116 

Erickson  v.  Drazkowski 143 

Erie,  etc.  Dispatch  v.  Stanley 317 

Erie  R.  Co.  v.  Heath 193 

Erwin  v.  English 113,  241 

Eschbach  v.  Collins 217 

Eskridge  v.  State 85 

Eslow  v.  Mitchell 191 

Estabrook  v.  Boyle 244 

Este  v.  Wilshire 298 

Estell  v.  State 9 

Esterly  v.  Eppelsheimer 327 

Ettinger  v.  Comm 19,  25,  75 


TABLE  OF  CASES  CITED. 


xlvii 


PAGE 

Evans  v.  Beattie 7i 

v.  Keystone  Gas  Co 34 

v.  McDermott 44 

v.  Montgomery 68 

v.  Rees 365 

v.  State 251 

v.  Stewart 258 

Evanston  v.  Gunn 113,  196 

Evansville,  etc.  R.  Co.  v.  Montgom- 
ery    327 

Evening  Journal  Ass'n  v.  McDermott    45 

Everett  v.  Warner  Bk 138 

Everitt  v,  Everitt 100 

Excelsior  Ass'n  v.  Riddle 293 

Excelsior  Elec.  Co.  v.  Sweet 243 

Exchange  Nat.  Bk.  v.  Washita  Co. .  192 

Excrs.  of  Clarke  v.  Canfield 258 

Eyer  v.  Beck 220 

Eysamen,  Matter  of 271 

Eyster  v.  Gaff 166 

Fahey  v .  Crotty 160 

v.  Mottu 136 

Fairchild  v.  Bascom 329 

v.  Fairchild 58,  139 

Fairfield  v.  Lawson 230,  231 

Fairlie  v.  Hastings , 362 

Fake  v.  Addicks 45 

Fall  River  v.  Riley 137 

Fall  River  Bk.  v.  Buffinton 264 

Falls  v.  U.  S.  Sav.  etc.  Co 205 

Fanning  v.  Hibernia  Ins.  Co 129 

Fanton  v.  Middlebrook 263 

Fargis  v.  Walton 222 

Farkas  v.  State 84 

Farley  v.  McConnell 168 

v.  Rodocanachi 57 

Farmer's  Excr.  v.  Farmer 304 

Farmers'  Ins.  Co.  v.  Bair 319,  328 

Farmers'  L.  &  T.  Co.  v.  Siefke 

238,  243,  250 

Farnsworth  v.  Briggs 202 

Farnum  v.  Farnum 326 

Farrar  v.  Olmstead 119 

Farrell  v.  Boston 318 

v .  Weitz 32,  55 

Farrington  v.  Payne 124 

Farris  v.  People 35 

Farwell  v.  Ensign 221 

Fassin  v.  Hubbard 175 

Faucett  v.  Nicholls 41 


PAGE 

Faulcon  v.  Johnston 190 

Faulkner  v.  Bailey 69 

Faunce  v.  Life  Ins.  Co 226 

Faust  v.  U.  S 315 

Faxon  v.  Hollis 93 

Fay  v.  Guynon 60 

v.  Hebbard 68 

Fearing  v.  Kimball 58 

Feigley  v.  Whitaker 66 

Felder  v.  State 341 

Fellers  v.  Lee 166 

Fellows  v .  Smith 60 

Felska  v.  N.  Y.  Cent.  R .  Co 55,  142 

Fengar  v.  Brown 238 

Fenwick  v.  Thornton 64 

Ferguson  v.  Crawford  ......  136,  137,  138 

v.  Hubbell 145,  150 

Ferris  v.  Commercial  Nat.  Bk 167 

Ferson  v.  Wilcox 68 

Feversham  v.  Emerson 129 

Few  v.  Guppy •,  • 295 

Fickett  v.  Swift -., 60 

Field  v.  Clark 165 

v.  Davis ■ . .    39 

p.N.Y.C.R.Co ...    40 

v.  Zemansky 194 

Fife  v.  Coram 76,  78 

Filkins  v.  People .  263 

v.  Whyland ? .  227 

Fillo  v.  Jones 36 

Finch  v.  Finch 303 

Finneran  v.  Leonard.. , 136 

Fire  Ins.  Ass'n  v.  Wickham 221 

First  Nat.  Bk.  v.  Carson  . . , 154 

v.  Crosby 202 

v.  Dunn 236 

v.  Post 329 

v.  Wolff 337 

First  Presb.  Church  v.  Logan. 240 

Fish,  In  re 230 

Fishburne  v.  Ferguson 141 

Fisher  v.  Fielding 140,  208 

v.  Fisher 29a 

v.  Green 176 

v.  Greene 189 

v.  Hart 330 

v .  Mayor 9°.  91 

v.  Witham 24* 

Fisk,  Ex  parte 3°9 

Fiske  v.  Gowing 176 

V.  New  Eng.  Ins.  Co 25J 


xlviii 


TABLE  OF  CASES  CITED. 


PAGE 

Fiske  v.  Steele 121 

Fitzgerald  v.  Brennan 60 

v.GoB. 3i8 

v.  McCarty 93 

v.  Weston 61 

Fitzgibbon  v.  Brown 27 

Fitzpatrick  v.  Fitzpatrick 230,  234 

v.  Riley 322 

Fitzsimons  v.  Marks 140 

Flagg  v.  M  ason 61 

v.  People 78 

Flannery  v.  Van  Tassel 63 

Flansburgh,  Matter  of 246 

Flattery  v.  Flattery 301 

Fleming  v.  Shenandoah 108 

Fletcher  v.  Fuller 17,  259 

v.  Perry 183 

v.  Powers 342 

-'.  Pullen 265 

v.  State 75,  238 

Flint,  In  re 293 

Flitters  v.  Allf rey 123 

Flood  v.  Growney 258 

Flora  v.  Anderson 105 

Flowers  v.  Fletcher 152 

Flowery  Co.  v.  Bonanza  Co 211 

Floyd  v.  State 333 

Foggz;.  Dennis 152 

Foley  v.  State 163 

Folger  v.  Boy ington 58 

Folkes  v.  Chadd 151 

Follansbee  v.  Walker 282,284 

Folsom  v.  Apple  River  Co 342 

v .  Batchelder 73 

v.  Blood 202 

v.  Brawn 239,  325 

v.  Cook 54 

Fonda  v.  Burton 236 

Foot  v.  Bentley 180 

Foote  v.  Hambrick 214 

v.  Hayne 289 

Force  v.  Craig 212 

Ford  z>.  Cunningham 191 

v.  Jones 340 

v.  Osborne 240 

v.  State 247 

v.  Umatilla  Co 251 

Forrest  v.  Forrest 189 

v.  Kissam 316 

Forsythe  v.  Hardin 184 

v.  Norcross 93 


PAGE 

Fort  Wayne  v.  Combs 39 

Fosdick  v.  Van  Arsdale 176 

v.  VanHorn 18S 

Foster  v.  Newbrough 192,  336 

v.  People 23 

v.  Persch 58 

Foster's  Excrs.  v.  Dickerson 27,  141 

Fowle  v.  Coe 136 

Fowler  v.  Black 229 

v.  Scott 213 

v.  Wallace 239 

Fox  v.  Bearblock 95 

v.  Coram 168 

v.  Moyer 311 

v.  Peninsular,  etc.  Works 116 

v.  People 23 

v.  Riel 183 

Foye  v.  Patch 121,  129,  152 

Francis  v.  Franklin  T'p 336 

v.  Newark 200 

Frankel  v.  Satterfield 136 

Franklin  v.  Baker 217 

Franklin  Ins.  Co.  v .  Gruver 150 

Fraser  v.  Hunter 102 

v.  Jennison 293 

v.  Schroeder 38 

Fratini  v.  Caslini 47,  210 

Frauenthal's  Appeal 122 

Frazier  v.  Brown 260 

Frear  v.  Evertson 60 

Fred  M.  Lawrence,  The 314 

Fredrickson  v.  Johnson 45 

Free  v.  Buckingham 272,  323 

Freeman  v.  Bartlett 190 

v.  Cooke 264,  379 

v.  Fogg 282 

v.  Hamilton 247 

v.  Sanderson 45 

v.  State 305 

French  v.  Hall 282 

v.  Sale 3M 

V.  Ware 278 

Frew  v.  Clarke 30 

Friederich  v.  People 263 

Friedlander  v.  Texas,  etc.  R.  Co 269 

Fries  v.  Brugler 321 

Friess  v.  N.  Y.  C.  R.  Co 297 

Frobisher  v.  Fifth  Ave.  Co 39 

Frost  v .  Deering 183,  185 

v.  Frost 196 

v.  McCargar 337 


TABLE  OF  CASES  CITED. 


xlix 


PAGE 

Fruin  v.  Crystal  R.  Co 229 

Fry  v.  Stowers 26,  101 

V.  Wood 108 

Fulham  v.  Howe 26 

Fulkerson  v.  Holmes 104,  106,  107 

Fuller  v.  Green 218 

v.  Linzee 258 

v.  Metropolitan  Ins.  Co 130 

v.  Naugatuck  R.  Co 49 

v.  Rice 316 

v.  Shattuck 125 

Fullerton  v.  Fordyce 177 

Fulton's  Estate 93 

Funk  v.  Ely 52 

v.  Funk 124 

Funkhouser  v.  Wagner 246 

Furbush  v.  Goodwin 318 

Furgeson  v.  Jones 136 

Furst  v.  State 247 

Gabbey  v.  Forgens 176 

Gadsden  v.  Woodward 299 

Gaffer  v.  American  Mortgage  Co 187 

Gaffney  v.  People 333 

Gage  v.  Campbell 345 

v.  Gowdy 118 

v.  Railway  Co's 238 

Galbraith  v.  Fleming 20 

Gall  v.  Gall 155 

Gallagher  v.  London  Assur.  Corp. . . 

182,  190,  224 

v.  Market  St.  R.  Co 116 

Gallinger  v.  Lake  Shore  Co 53 

Gallup  v.  Wright 235 

Galpin  v.  Page 136 

Gait  v.  Galloway 113 

Galvin  v.  Palmer 115,  200 

Gamble  v.  Mullin 252 

Gandy  v.  M  acaulay 303 

Gannon  v .  People 4,  280 

Ganser  v.  Fireman's  Ins.  Co 176 

Garber  v.  Doersom 61 

Garden  City  Co.  v.  Miller 204 

Gardiner  v.  People 22 

Gardner  v.  Connelly 330 

v.  Eberhart 179 

v.  Frieze 48 

v.  Gardiner 217 

v.  Gardner 99 

v .  People 76 

v.  State.- 237 


PAGE 

Garland  v.  Jacomb 267 

Garman  v.  State 314 

Garner  v.  White 311 

Garner's  Case 358 

Garnett,  In  re 303 

Garnsey  v.  Rhodes 15,  322 

Garrard  v.  Lewis 218 

Garretson  v.  Ferrall 166 

Garrett  v.  Hanshue 68,183 

v.  Trabue 176 

Garth  v.  Caldwell 171 

Gartside  v.  Comm.  Ins.  Co 293 

Gass  v.  Stinson 316 

Gastrell  v.  Phillips 108 

Gates  v.  Cornett 254 

v.  Fisk 67,  69 

v.  Fleischer 148 

Gaunt  v.  Harkness 155 

v.  State 32 

Gawtry  v.  Doane 91 

Gay  v.  Bowen 66 

Gebhart  v.  Burkett 160 

Geer  v.  Lumber  Co 213 

Gelott  v.  Goodspeed 181, 182 

Gelston  v.  Hoy t 127, 168 

v .  Shields 233 

Genz  v.  State 141,  350 

George  v.  Pilcher 338 

v .  Surrey 152 

Gerish  v.  Charlier 46 

German  Ins.  Co.  v.  Gibe 221 

German  Nat.  Bk.  v.  Leonard 109 

Germania  Bk.  v.  Distler 209 

Germania  Ins.  Co.  v.  Klewer 239 

Gertz  v.  Fitchburg  R.  Co 337 

Gery  v.  Redman 23 

Gethin  v.  Walker 194,  200 

Getty  v.  Hamlin 174 

Gettysburg  Nat.  Bk.  v.  Chisolm 214 

Geyer  v.  Aguilar 118,  128 

Giannone  v.  Fleetwood 186 

Gibbons  v.  Wisconsin,  etc.  R.  Co...  41 
Giberson  v.  Jolly 244 

v.  Patterson  Mills  Co 65 

Gibney  v.  Marchay 61 

Gibson  v.  Hunter 4; 

v.  Poor 115 

v.  Trowbridge  Co 152 

Giese  v.  Schultz 301 

Giffin  v.  Brooks 217 

Gifford  v.  People 335 


TABLE  OF  CASES  CITED. 


PAGE 

Gilbert  v.  Flint,  etc.  R.  Co 172 

v.  Knox 100 

v.  MolineCo 350 

v.  Sage 318 

v.  Simpson 154 

v.  West  End  R.  Co 177 

Gildersleeve  v.  Landon 57 

Gill  v.  Honirighousen 251 

Gillett  v.  Wiley 254 

Gillies  v.  Smither 182 

Gillooley  v.  State 293 

Gillrie  v.  Lockport 38 

Gilman  v.  Gilman 139,  140 

v.  Moody 209 

Gilmanton  v.  Ham 32 

Gilmer  v.  Stone 231 

Gilmor's  Estate 229 

Gilmore  v .  Car 132 

v.  Driscoll 260 

Giltinan  v.  Strong 132 

Girard  v.  Kalamazoo 40,  47 

Girard  Ins.  Co.  v.  Marr 350 

Gitchell  v.  People 285,  286 

Gleadow  v.  Atkin 95.  365 

Gleason  v.  Hamilton 215 

v.  Knapp 121 

Gleeson  v.  Va.  R.  Co 243 

Glenister  v.  Harding 105,  113 

Glenn  v.  Gleason 317,  333 

v.  Hunt 205 

v.  Sumner 59 

Globe  Ins.  Co.  v.  Gerisch 47 

Gloucester  v.  Gaffney 17 

Glynn  v.  George 267 

Goble  v.  Dillon 125 

Goblet  v.  Beechy 232 

Godard  v.  Gray 139,  368 

Goddard  v.  Foster 233 

v.  Gardner 290 

Godeau  v.  Blood 44 

Godfrey  v.  Crisler 250 

Goebel  v.  Iffla 122 

Goelz  v.  Goelz 280 

Goersen  v.  Comni 35,  49,  52 

Goetz  v.  Bank  of  Kansas  City 65 

Goff  v.  Roberts 231 

Goins  v.  Moberly 324 

v.  State 14,  29 

Golden  v.  Clinton 38 

v .  Conner 187 

Golder  v.  Bressler 225 


PAGE 

Goldsby  v.  U.  S 319 

Good  v.  French 252 

v.  Knox 330 

Goodall  v.  State 341 

Goodbarf.  Lidikey 48 

Goode  v.  Riley 225 

v.  State 338 

Goodell  v.  Hibbard 263 

Goodin  v.  Plugge 216 

Goodman  v.  Mayor  of  Saltash 260 

Goodrich  v.  City 122 

v.  Tracy 65 

Goodtitle  v.  Baldwin 259 

v.  Southern 234 

Goodwin  v.  Appleton 170 

v.  Goodwin 222 

v.  Jack 17,  213 

v.  State 21 

Goodwin  Co.'s  Appeal 289 

Gordon  z>.  Boston  &  M.  R.  Co 38 

v.  Bowne 249 

v.  Comm 285 

v.  Richmond 252 

v.  Ritenour 46 

Gore  v.  Curtis 339 

Gorgas  v.  Hertz 188 

Gorrissen  v.  Perrin 232 

Gorsuch  v.  Rutledge 319 

Gosling  v .  Birnie 268 

Goss  v .  Froman 255,  256 

v.  Lord  Nugent 226,  374 

Gott  v.  Dinsmore 73 

Goudy  v.  Werbe 319 

Gouge  v.  Roberts 36 

Gough  v.  St.  John 160 

Gould  v.  Conway 94 

v.  Crawford 272 

v.  Evansville  R.  Co 122 

v.  Lakes 101 

v.  Norfolk  Lead  Co 329 

GrafTam  v.  Pierce 222 

Gragg  v.  Learned 185,  198 

Graham  v.  Badger 243 

v.  Chrystal 261 ,  336 

v.  Davis 319 

v.  Graham   281 

i'.  McReynolds 338 

V.  Pa.  Co 141 

v.  Payne 44 

v.  Spencer 139 

Grand  Trunk  R.  Co.  v.  Latham 131 


TABLE   OF  CASES  CITED. 


PAGE 

Grand  Trunk  R.  Co.  v.  Richardson  40,  50 

Granting  v.  Swenson 327 

Grant  v.  Coal  Co ' 206 

v.  Frost 224 

v.  M  addox 227 

v.  McPherson 238 

v.  Mitchell 255,256 

Grattan  v.  Metropolitan  Ins.  Co 57 

Gravely  v.  Coram 245 

v.  State 248 

Graves  v.  Battle  Creek 177 

v.  Jacobs 28 

v .  Merchants'  Ins.  Co 319 

v.  Stute 247 

v.  U.S 314 

Graville  v.  N.  Y.  C.  R.  Co 113 

Gray  v.  Coram 75 

v,  Goodrich 56 

v.  Gray 174 

v.  Ktrnahan 194 

v.  Rollinsf ord 66 

v.  Shepard 228 

Gray's  Admr.  v.  Bk.  of  Kentucky. . .  244 

Gray's  Case 90 

Graybeal  v.  Gardner 247 

Gt.  West.  Turnpike  Co.  v.  Loorais. .  321 

Greeley  v.  Passaic 251 

Green,  Matter  of 247 

Green  v.  B.  &  L.  R.  Co 70 

v.  Coram 76 

v.  Disbrow 31 

v.  New  River  Co 118,131 

v.  Roworth 254 

v.  State 156,  307 

v.  Stone 240 

Greenabaum  v.  Elliott 125 

Greenawalt  v.  Kohne 220 

v.  McEnelley 156 

Greenfield  v.  Camden 102,  104,  261 

v .  People 7,  23,  31,  149 

Greenfield  Bk.  v.  Crafts 57 

Greenfield  Sav.  Bk.  v.  Sto\vell...  218,  265 

Greening  v.  Steele 222 

Greenleaf  v.  Dubuque,  etc.  R.  Co.. .  107 

Greenman  v.  O'Connor 312 

Greenough  v.  Eccles 386 

v.  Gaskell 382 

Greensvveig  v.  Sterlinger 139 

Greenwood  v.  Sias 66 

Gregg  v.  Forsy  th 206 

V.  State 79 


PAGE 

Gregory  v.  Chambers  161 

v.  Comm 263 

v.  Gregory. .. , 139 

v.  Keny on 129 

v.  Ohio  R.  Co 116 

Grierson  v.  Mason 221 

Griesheimer  v.  Tanenbaum 92 

Griffin  v.  Auburn 34 

v.  Griffin 240 

v.  State 158,  245 

v.  Stearns 66 

Griffith  v.  Diffenderffer 30 

v.  State 335 

Griggs  v.  Day 92 

Grimes  v.  Hilliary 239,  253,  262 

v.  Kimball 189 

Grimm's  Estate 156 

Griscom  v.  Evens 230,  231 

Griswold  v.  Pitcairn 168 

Grob  v.  Cushman 165 

Grogan  v.  Chesapeake  R.  Co 4 

v.  U.  S.  Industrial  Ins.  Co 182 

Grommes  v.  St.  Paul  Trust  Co 132 

Grubbs  v.  McDonald 246 

Grube  v.  Mo.  Pac.  R.  Co 37,  46 

Guiterman  v.  Liverpool,  etc.  St.  Co.  148 

Gulerette  v,  McKinley 23,  336,  339 

Gulf,  etc.  R.  Co.  v.  Shieder 252 

Gulick  v.  Gulick 289 

Gumberg  v.  Treusch 14 

Gunn,  In  re 165 

Gunn  v.  Peakes 207 

Gunther  v.  Bennett 188 

Gurley  v.  Park 293 

Gurney  v.  Howe 113 

Guthrie  v.  Haines 107 

Gutterson  v.  Morse 321 

Guy  v.  West 249 

Hacker's  Appeal 211 

Hackett  v.  Judge,  etc 311 

v.  King 30 

v.  McMillan 138 

v.  People 86 

Haddock  v.  B.  &  M.  R.  Co 104,105 

Hadley  v.  Watson 311 

Hagan  v.  Merchants',  etc.  Ins.  Co. . .  217 

Hagerty  v.  White 209 

Hahn  v.  Kelly 136 

Haines  v.  Dennett 271 

v .  Hayden 48 


Ill 


TABLE   OF   CASES   CITED. 


PAGE 

Hale  v.  Comm 87,  263 

v.  Huse 282 

v.  Rich 61 

•v.  Silloway 61 

Haley  V.  State 327 

Halifax  Guardians  v.  Wheelright —  379 

Hall  v.  Bainbridge 211 

v.  Brown 51,  53,  54, 173 

v.  Chicago,  etc.  R.  Co 329 

v.  Costello 146 

v.  Glidden 93 

v.  Hall 236 

v.  Knappenberger 254 

v .  Lanning 66 

v.  Matthews 239 

v.  Mayo 102 

v.  Naylor 44 

v.  Rankin 160 

v.  Ray 344 

v.  State 9 

v.  Wolff 238 

Hallack  v.  Loft 137 

Halleck  v.  State 35 

Hallenbach  v.  Schnabel 166 

Halliday  v.  Hess 230 

v.  Martinet 91 

Hallinger  v.  Davis 76 

Halloran  v.  Halloran 59 

Hallowell  v.  Guntle 161 

Ham  v.  Wisconsin,  etc.  R.  Co 350 

Hamer  v.  McFarliu 161 

Hamil  v.  England 288 

Hamilton  v.  Coffin 97 

v.  Liverpool  Ins.  Co 227 

v.  People 7. 16.  333.  335,  337 

Hamilton,  etc.  Co.  v.  Railroad  Co...  267 

Hammann  v.  Mink 167 

Hammon  v .  Sexton  190,  224 

Hammond  v. 115 

v.  Bradstreet 103 

v .  Varian 152 

Hampson  v.  Taylor 101 

Hampton  v .  Boylan 289 

Hamsher  v.  Kline 185 

Hanawalt  v.  State 32 

Hance  v.  Hair 67 

Hanchett  v.  Kimbark 63 

Hancock  v.  Amer.  Life  Ins.  Co 258 

Hancock  Ins.  Co.  v.  Moore 61 

Hand  v.  Ryan  Co 222 

Hankinson  v.  Trenton 163 


PAGE 

Hankinson  v.  Vantine B36 

Hanley  v.  Donoghue 146,164 

Hanlon  v.  Doherty 290 

Hannah  v.  State 116 

Hanncrs  v.  McClelland 161,274 

Hannon  v.  State 24 

Hanofi  v.  State 322 

Hanover  Bk.  v.  Amer.  Dock  Co 269 

Hanover  R.  Co.  v.  Coyle 10 

Hanrick  v.  Patrick 182 

Hanriot  v.  Sherwood 154 

Hanselman  v.  Dovel 278 

v.  Doyle 192 

Hansen  v.  Amer.  Ins.  Co 253 

v.  Miller 317 

Happy  v.  Mosher 72 

Harding  v.  Bader 120 

v.  Butler 71 

v.  Jewell 211 

v.  Williams 393 

Hardman  v.  Wilcock 268 

Hardy  v.  Merrill 141,  142,  246 

v.  U.S 84 

Harger  v.  Thomas 133 

v.  Worrall 244 

Harland  v.  Eastman 107 

Harley  v.  Buffalo  Car  Co 150 

Harman  v.  Moore 136 

Harmon  v.  Auditor 121 

v.  Brotherson 135 

Harper  v .  State 245 

Harrat  v.  Wise 48 

Harrell  v.  Albemarle,  etc.  R.  Co 38 

Harriman  v.  Jones 2S9 

Harrington  v.  Gable 58,  185 

v.  Harrington 139 

v.  Hickman 54 

v.  Keteltas 21 

v.  Lincoln 338 

v.  Wadsworth 118 

Harris  v.  Barnhart 137 

v.  Doe .  1 200 

v.  Harris 100 

v.  Howard 36 

v.  Knight 99 

v.  Odeal 68 

v.  Panama  R.  Co 115 

v.  State 285 

v .  White 147.  241,  251 

Harrisburgh  Car  Co.  v.  Sloan 296 

Harrison  v.  Charlton 109 


TABLE  OF  CASES  CITED. 


PAGE 

Harrison  v.  Clark 132 

v .  Comm 20 

v.  Morton 223 

v.  Rowan 320 

Harrison's  Appeal 329 

Harryman  v.  Roberts 140,  205 

Harshbarger  v.  Carroll 212 

Hart  v .  Kendall 95 

v.  Randolph 63 

v.  Stevenson 72 

v.  Washington  Club 244 

Harter  v.  Crill 47 

Hartford  v.  Palmer 272 

Hartley  v.  Corboy 216 

v.  Keokuk,  etc.  R.  Co 143 

v.  Weideman 57 

Hartman  v.  Diller 15 

Hartranft,  Appeal  of 283 

Harvey  v.  Osborn 320 

v.  Thorpe 191 

Harwood  v.  Mulry. 94 

v.  Wentworth 165 

Haseltine  v.  Concord  R.  Co 41 

Haskins  v.  Warren 19 

Hassam  v.  Barrett 221 

Hastings  v.  Brooklyn  Ins.  Co 54 

v.  Lovejoy 223 

v.  Stetson 23,  161 

Hatch  v.  Atkinson 303 

v.  Brown 61,  312 

v.  Carpenter 188 

v.  Douglas 228 

v.  Elkins 70 

v .  Fuller 47 

v .  Sigman 100 

Hatcher  v.  Rocheleau 166 

Hatfield  v.  Lasher 161 

Hatton  v.  Robinson 290 

Haughwout  v.  Garrison 220,  250 

Haven  v.  County  Commrs 37 

v.  M  arkstrum 59 

Havens  v.  Sea  Shore  Co 213 

Haver  v.  Schwy hart 97 

Hawes  v.  Draeger 257 

v.  State 21,  49,  204,  290 

Hawke  v.  Chicago,  etc.  R.  Co 220 

Hawkins  v.  Fall  River 156 

v.  Garland 231 

Hawks  v.  Charlemont 151 

Hawksley  v.  Bradshaw 311 

Haws  v.  Insurance  Co 228 


PAGE 

Hawthorne  v.  State 263 

Hay  v.  Kramer 91 

Hay's  Appeal , 316 

Hayden  v.  Goodnow 217 

Hayes,  Ex  parte 59,  68 

Hayes  v.  Kelley 57 

v.  People 156 

^Haynes  v.  Brown 114 

v.  Christian 49 

v.  Comm 24 

v.  Haynes 217 

v .  Ordway 125 

Hays  v.  Morgan 58 

Hayward  v.  Barron 313 

v.  People 321 

Hazleton  v.  Union  Bk 154 

Hazlewood  v.  Heminway 312 

Head  v.  Hargrave 143 

Healy  v.  Visalia  R.  Co 342 

Heath  v.  Cotton  Mills 211 

Hebbard  v.  Haughian 221,291 

Hedden  v.  Roberts 54 

Hedge  v.  Clapp 329 

Hedges  v.  Williams 313 

Hedrick  v.  Hughes 91 

Herfernan  v.  Harvey 173 

Heffron  v.  Gallupe 285 

Heidel  v.  Benedict 122 

Heine  v.  Comm 15 

Heinemaun  v.  Heard 242,  243 

Heiser  v.  Hatch 132 

Heiskell  v.  Rollins 91 

Heldt  v.  State 81,85 

Helf rich  v.  Stein 320 

Helwig  v.  Lascowski 321,  325 

Helyear  v.  Hawke 70 

Hemenway  v.  Smith 291 

Hemmens  v.  Bentley 318 

Hemmenway  v.  Towner 256 

Hemminger  v.  Western  Assurance 

Co.. 315 

Henderson  v.  Philadelphia,  etc.  R. 

Co 41 

Hendrick  v.  Whittemore 136 

Hendrickson  v.  People 83 

Henkleman  v.  Peterson 211 

Hennessy  v.  Farrelly 146 

7'.  Wright 282 

Henninger  v.  Heald 121 

Henricus  v.  Englert 221 

Henry  v.  Bishop 1  s  1 


liv 


TABLE  OF  CASES  CITED. 


PAGE 

Henry  v.  Dulle  115 

v.  Hall 247 

Hepler  v.  Mt.  Carmel  Bk 109 

v.  State 251 

Hepwortli  v.  Henshall 336 

Herbage  v.  Utica  294 

Hermann  v.  State 104,  177 

Herrick  v.  Malin 213,  214 

Herster  v.  Herster 49 

Hertig  v.  People 168 

Herzog  v.  Sawyer 223 

Hesdra,  In  re 56,  338 

Heslop  v.  Heslop 23 

Hess  v.  Griggs 183 

v.  Lowrey 116 

v.  Wilcox 315 

Hester  v.  Comm 22,  302,  324 

Hesterberg  v.  Clark 217 

Hetherington  v.  Kemp 54 

Heuston  v.  Simpson 293 

Hewett  v.  Chapman 285 

Hewitt  v.  Corey 338 

v.  Morris 182 

v.  State 190 

Hewlett  v.  Wood 141,  316 

Hey's  Case 314 

Heyne  v.  Doerfler 271 

Heyward's  Case 281 

Heywood  v.  Heywood 62 

Hibbs  v.  Blair 281 

Hickman  v.  Green 317 

Hickory  v.  U.S 154.  33o,  33i 

Hicks  v.  Citizens'  R.  Co 147 

Higbee  v.  Dresser 287 

Higbie  v.  Life  Ins.  Co 142 

Higgins  v.  Carlton 246 

v.  Reed  191 

v.  Ridgway 222 

High  v.  Bk.  of  Commerce 262 

Higham  v.  Ridgway 98,  364 

Highberger  v.  Stiffler 281 

Hildrcth  v.  A  Id  rich 329,  330 

Hiler  v.  People 156,  275 

Hill  v.  Bahrns 48 

v.  Blake 223 

v.  Canfield 312 

v.  City  Cab  Co 136 

v.  Crook 233 

v.  Nelms 216 

v.  Packard 197 

v.  State 24,321,342 


PAGE 

Hill  v.  Syracuse,  etc.  R.  Co 36 

Hilliker  v.  Coleman 173 

Hillis  v.  Wylie 335 

Hillman  v.  Schwenk 303 

Hills  v.  Home  Ins.  Co 143 

Hilton  v.  Bender 261 

v.  Guyot 140 

Himmelmann  v.  Hoadley 168 

Himrod  v.  Gilman 154 

Hinchcliffe  v.  Koontz 322 

Hinckley  v.  Beckwith 170 

v.  Thatcher 230,  233 

Hinkley  v.  Gilligan 66 

Hinton  v.  Life  Ins.  Co 169 

Hintz  v.  Graupner 45 

Hirsch,  In  re 187,  193 

Hiscocks  v.  Hiscocks 375 

Hitchcock  v.  Moore 161,  280 

Hixson  i\  Ogg 121 

Hoag  v.  Lamont 70 

Hoar  v.  Abbott 29 

Hobbs  v.  State 338 

Hobensack  v.  Hallman 95 

Hoboken  Printing  Co.  v.  Kahn 161 

Hodges  v.  Bates 338 

v.  Bearse 39 

Hodgkins  v.  Chappell 34 

v.  State 337 

Hodgson,  In  re 304 

Hodnet  v.  Pace 216 

Hoefling  v.  Hambleton 178 

Hoey  v.  Jarman 216 

Hoffman  v.  Bank  of  Milwaukee 267 

v.  Hoffman's  Excr 26 

v.  Kemerer 340 

v.  N.  Y.C.  R.  Co 94 

Hogan  v.  Cregan 161 

v.  Manhattan  R.  Co 250 

Hoge  v.  People 303 

Hogg  v.  Link 137 

Hogue  v.  Corbitt 261 

Hoitt  v .  Hoitt 220 

Holbrook  v.  Gay 93 

v.  Holbrook 63 

Holcomb  v.  Holcomb 142,  272 

v.  People 3(o 

Holcombe  v.  Hewson 36 

Holder  v.  U.  S 313 

Holland  v.  Tenn.  Coal  Co 50 

v.  Zollner 141 

Holley  v.  State 275,337 


TABLE  OF  CASES  CITED. 


lv 


PAGE 

Holley  v.  Young 59 

Hollingsworth  v.  State 329,  335 

Hollister  v.  Cordero 55.  259 

Holloway  v.  Frick 223 

Holly  v.  Boston  Gas  Co 49 

Holly  Mf'g  Co.  z'.Venner.  ._ 193 

Hollywood  v.  Reed 336,  337 

Holman  v.  Kimball 290 

v.  State 275 

Holmes  v.  Anderson 328 

v.  Goldsmith 154 

v.  Kring 169 

v.  Trumper 265 

v.  Turner's  Falls  Co 310 

Hoist  v.  State 274 

Holston  Co.  v.  Campbell 228 

Holt  v.  Squire 71 

v.  Walker 72 

Holton  v.  Manteuffel 104 

Holtz  v.  Dick 47 

Holtzman  v.  Hoy 160 

Holzworth  v.  Koch 223 

Homan  v.  Earle 301 

Home  Ins.  Co.  v.  Baltimore,  etc.  Co.    74 

Homer  v.  Fish 121 

Hood  v.  Hood 119 

v .  Pioneer  Co 87 

Hooper  v.  Taylor 93 

Hoovers.  Gehr 91,  93 

Hope  v.  Liddell 295 

v.  People 35.  49 

Hopewell  v.  De  Pinna 257 

Hopkins  v.  Grimshaw 280 

v .  Lee 130 

Hoppaugh  v.  McGrath 132 

Hoppe  v.  Byers 100 

Hopt  v.  Utah 238 

Horn  v.  Pullman 30 

Hornbeck  v.  State 25 

Hornbuckle  v.  Stafford 350 

Horner  v.  Yance 47 

Horrigan  v.  Wyman 244 

Horseman  v.  Todhunter 312 

Horstman  v.  Kaufman 298 

HoSford  v.  Ballard. 17 

Hosmer  v .  Groat 333 

v.  McDonald 228 

Hotchkiss  v.  Mosher 194 

Hough  v.  Dickinson 239 

Houghton  v.  Jones 317 

v.  Watertown  Ins.  Co 228 


PAGE 

Houlston  v.  Smith 210 

House  v.  Beak 91.92 

v.  Lockwood. . , 130 

v.  Metcalf 38 

v.  Walch 220 

Houston  v.  Brush 243 

Hovey  v .  Grant 44 

How  v.  Hall 194 

Howard  v.  Brower 279 

?.  Conim 338 

v.  Daly 54 

v.  Hudson 265 

v.  McDonough 342 

v.  Moot 4,  172,  173 

v .  Patrick 108 

v.  Sexton 45 

v.  State 241,  248 

v.  Stilhvell,  etc.  Co 312 

Howe  v.  Howe 49 

v.  Lewis 121 

v.  Minnesota  Milk  Co 129 

Howe  Co.  v.  Pettibone 311 

Howe  Machine  Co.  v.  Edwards 310 

Howell  v.  Carden 344 

v.  Goodrich 125 

Howell,  Estate  of 311 

Howland  v.  Blake  Mf'g  Co 161 

Howley  v.  Whipple 180 

Howser  v.  Coram 285 

v.  Cumberland,  etc.  R.  Co 243 

Hoxie  v.  Home  Ins.  Co 51 

Hoy  v.  Morris 290 

Hoy t  v.  Hoyt 287 

v.  Jackson 296 

i>.  Newbold 238 

v.  People 302 

v.  Russell 170,  173 

Hronek  v.  People 273 

Hubbard  v.  Briggs 327 

v .  Gurney 221 

v.  Hubbard 313 

v.  Russell 179 

v.  State 248 

Hubbell  v.  Judd,  etc.  Oil  Co....  187,  296 

v.  Meigs 113,  197 

Huckins  v.  People's  Ins.  Co 319 

Hudnutt  v.  Comstock 341 

Hudson  v.  Hudson 116 

v.  Roos 108 

v.  Wabash,  etc.  Ry.  Co 252 

Huey  v.  Gahknbeck 250 


lvi 


TABLE  OF  CASES  CITED. 


PAGE 

Huff  v.  Bennett 179,  281,  342 

Huganir  v.  Cotter 44 

Hughes  v.  Boone 289 

v.  Detroit,  etc.  R.  Co 272 

v.  Richter 145 

v.  U.  S 121 

Huidekoper  v.  Cotton 285 

Humble  v.  Shoemaker 330 

Humphreys  v.  N.  Y.  etc.  R.  Co 229 

Humphries  v.  Parker 176 

Hunnicutt  v.  Peyton 102 

Hunsinger  v.  Hofer 317 

Hunt  v.  Blackburn 287 

v.  City  of  Dubuque 40 

v.  Gray 214,  215,  228 

v.  Hunt 119,  139 

v.  Johnson 107 

v.  Lowell  Gas  Co 34,  148 

v.  Order  of  Friends 94,107 

Hunter  v.  Atkins 248 

v.  Gibbs 329 

v.  Hunter 241,  286 

v.  Leathley 295 

v.  N.Y.  etc.  R.  Co 172 

v.  Pherson ...     57 

v.  Randall 286 

v.  State 10,  26 

Huntley  v.  Holt 120 

v.  Whittier 54 

Huntington  v.  Attrill 36,  139 

Huntsman  v.  Nichols 7,  319 

Huntsville,  etc.  R.  Co.  v.  Corpening  315 

Huoncker  v.  Merkey 321 

Hupsch  v.  Resch 240 

Hurlburt  v.  Bellows 330 

Hurlbut  v.  Hull 317 

v.  Hurlbut 6o,  289 

Hurlbut's  Estate 107 

Hurley  v.  Mo.  Pac.  R.  Co  147 

v.  State 330 

Hurst  v.  Leach 235 

Huss,  In  re 205,  207 

Matter  of 261 

Huston  v.  Ticknor 180 

Huston's  Estate 93 

Hutchings  v.  Corgan no 

Hutchins  v.  Hubbard 244 

v.  Hutchins 62 

v.  Kimmell 156 

Hutchinson  v.  Bernard 312 

v-  Consumers'  Coal  Co 284 


PAGE 

Hutchinson  V.  Manhattan  Co 165 

Hyde  Park  v.  Canton 241 

Hynes  v.  McDermott...  146,  152,  155,207 

Idaho,  The 268 

111.  Cent.  R.  Co.  v.  People 145 

v.  Wren 165 

Illinois  Land  Co.  v.  Bonner 191 

Imhoff  v .  Richards 343 

Indianapolis,  etc.  R.  Co.  v.  Horst.. .  251 

Ingalls  v.  State 302 

Inglis  v.  Schreiner 311 

Ingram  v.  State 168 

Inhab.  of  Woburn  v.  Henshaw 291 

Inland  Coasting  Co.  v.  Tolson 150 

Inman  v.  Elberton  R.  Co 41 

Insley  v .  Shire 141 

Insurance  Co.  v.  Brim 216 

v.  Folsom 252 

v.  Mosley 10,  47 

v.  Newton 57 

v.  Weide 5 

Insurance  Co.  of  North  America  v. 

Guardiola 66 

International, etc. R.  Co.  v.  Anderson  10 

v.  McRae 181 

Iron  Cliffs  Co.  v.  Buhl 117 

Irwin  v.  Thompson 224 

Isaacson  v.  N.  Y.  C.  R.  Co 172 

Isabelle  v.  Iron  Cliffs  Co 68 

Iser  v.  State 286 

Isler  v.  Dewey 337 

Jackson  v.  Allen 268 

v.  Alsop 230 

v.  Bailey no 

v.  Brooks 153 

v.  Chamberlain 181 

v.  Christman 213 

v .  Cole 261 

v.  Comm 89 

v.  Crissey 1 10 

v.  French 290 

v.  Frier 182 

v.  Frost 115 

v.  Gager 181 

v.  Humphrey 281 

v.  Jackson 104,  156 

v.  King 104 

v .  Kingsley 184 

v.  Lawsou 111 


TABLE  OF  CASES  CITED. 


PAGE 

Jackson  v.  Luquere 213 

v.  McCall 101,  259 

v.  Moore 261 

v.  People 44 

v,  Pittsburgh,  etc.  R.  Co 147 

v.  Sill 230 

v.  State 25, 83, 109,  no,  158 

v.  Vail 182,  183 

v.  Van  Dusen 152 

v.  Waldron 181 

v.  Witter 115 

v.  Woolsey 184 

Jackson  Co.  v.  Arnold 169 

Jacksonville,  etc.  R.  Co.  v.  Hooper. .  211 

Jacob  Brandow,  The 316 

Jacobi  v.  Order  of  Germania 113,  207 

Jacobs,  In  re 172 

J  aggers  v.  Binning 71 

Jameson  v.  Kent 143 

Jamieson  v.  Ind.  Nat.  Gas  Co 172 

Jamison  v.  People 23,  238 

Janes'  Estate 256 

Janvrin  v.  Scammon 300 

Janzen  v.  People 35 

Jarrett  v.  Leonard 72 

Jarvis  v.  Brooklyn  R.  Co 50 

Jay  v.  East  Livermore  200 

Jaynes,  Ex  parte 193,  297 

Jefferds  v.  People 85 

Jenkins  v.  State 286 

Jenne  v.  Harrisville 145 

Jenner  v.  Hinch 236 

Jennings  v.  Sturdevant 288 

Jensen  v.  Railroad  Co 328 

Jessup  v.  Cook no 

Jessups  v.  Osceola  Co 40 

Jewell's  Lessee  v.  Jewell 104,  105 

Jewett  v.  Banning 20,25 

v.  Brooks 147 

Joannes  v.  Bennett 188 

Jochumsen  v.  Suffolk  Sav.  Bk 119 

John  v.  Hatfield 215 

John's  Admr.  v.  Pardee 271 

Johnson  v.  Agr.  Ins.  Co 239 

v.  Arnwine 188 

v.  Brown 169 

v.  Chicago,  etc.  R.  Co 40 

v.  Comm 7,  28 

v.  Cowdrey 91 

z>.  Culver 116 

v.  Daverne 152 


PAGE 

Johnson  v.  Day 25 

v .  Donaldson 193,  294 

v.  Fry 277 

v .  Glover 220 

v.  Holliday 26 

v.  Hudson  R.  R.  Co 172 

v.  Johnson 241 

v.  Josephs 243 

v.  Kershaw 189 

v.  Leggett 330 

v.  Merithew 258 

v .  People 240 

v.  Powers 130 

v.  Raylton 224 

v.  Russell 58 

v.  Seidel 212 

v.  Sherwin :. .    26 

v.  State 87, 88,  276 

v.  Stivers 246 

v.  U.  S 19 

v.  Witt 285 

Johnson,  Estate  of 100 

Johnson's  Will,  In  re 99 

Johnson  Co.  v.  Wharton 121 

Johnston,  In  re 37 

Johnston  v.  Hedden 172 

v .  Jones 115 

Johnston  Steel   Rail  Co.  v.   North 

Branch  Co 193,  294 

Johnstone  v.  Lord  Spencer 18 

Joice  v.  Branson 277 

Joliet  v.  Blower 117 

Jones  v.  Abraham 305 

v.  Call 191 

v.  Comm 12 

v.  Crowley 218 

v.  Greaves 239 

v.  Henry 183 

v.  Hoey 305 

v.  Jones 32,  242 

v .  Keen 311 

v.  Knauss 59,  188 

v.  Malvern  Co 252 

v.  Matthews 271 

v .  McLelTan 49 

v.  People 134,  274 

v.  Phelps 209 

v.  Portland 47 

v.  Roberts 181 

v.  Simpson 63 

v.  State 12,  86,  88, 292, 338,  344 


lviii 


TABLE  OF  CASES  CITED. 


PAGE 

Jones  v.  Tucker 144 

v.  Underwood 183,  190 

v.  U.  S 168, 169, 173 

v.  Vert 126 

v.  Williams 14 

Jordan  v.  Asheville 252 

v.  Circuit  Ct 166 

v.  Osgood 35 

v.  Patterson 227 

v.  State 277 

v.  Stewart 216,  217 

Jorden  v.  Money 266 

Joseph  v.  Bigelow 220 

Judge  v.  Jordan 303 

Judge  of  Probate  v.  Stone  242 

Kahl  v.  Memphis,  etc.  R.  Co 147 

Kahlenbeck  v.  State 158 

Kain  v.  Larkin 180 

Kaiser  v.  Alexander 92 

Kallenbach  v.  Dickinson 67,  71 

Kallock  v.  State 238 

Kane  v.  Hibernia  Ins.  Co 239 

v.  Torbitt 64 

Kansas  City  v.  Vineyard 163 

Kansas  City,  etc.  R.  Co.  v.  Burge...  170 

v.  Ehret 143 

v.  Murray 293 

Karr  v.  State 152 

v.  Stivers 93 

Keagle  v.  Pessell 187 

Kearney  v.  Denn 133 

v.  London,  etc.  R.  Co 250 

v.  Mayor  of  N.  Y 188 

Keating  v.  People 245 

Keeler  v.  Elston 139 

v.  Jacobs 4 

Keen's  Excr.  v .  Monroe 218 

Keener  v.  Crago 223 

.   v.  State 248 

Keep  v.  Griggs 278,  299 

Kehoe  v.  Comm 87,  276 

Keichline  v.  Keichline 200 

Keith  Bros.  v.  Stiles 202 

Kelch  v.  State 247 

Kelleher  v.  Keokuk 142 

Keller  v.  Oilman 47 

v.  N.  Y.  C.  R.Co 150 

Kelley  v.  Brown 238 

v.  Kelley 147,  22S 

v.  People 25,  75 


PAGE 

Kelley  v.  Richardson ...   143 

Kellogg,  In  re 97 

Kellogg  v.  Curtis 244 

v.  Kellogg 197,  199 

v.  Secord 108 

Kelly  v.  Cohoes  Co 328 

v.  Drew 241 

v.  State 56,78 

v.  West 119 

Kelsea  v.  Fletcher 342,  343 

Kelsey  v.  Hanmer 182 

v.  Layne 329 

v.  Universal,  etc.  Ins.  Co 48 

Kemp  v.  King 295 

Kempland  v.  Macaulay 72 

Kendall  v.  Hamilton 131 

v.  May 272 

v.  Weaver 318 

Kendig  v.  Overhulser 239 

Kendrick  v.  Beard 37 

v.  Comm 297 

Kennedy  v.  Comm 166 

v.  Doyle 90 

v.  Gifford 161 

v.  Holladay 286 

v.  Kennedy 284 

v.  People 7,  353 

v.  Ryall 30 

Kennon  v.  Gilmer 50 

Kent  v.  Garvin 94 

v.  Lincoln 38 

v.  M  ason 242,  343 

v.  Quicksilver  Mining  Co 261 

v.  State 325 

j'.  Tyson 53 

Kentner  v.  Kline 238 

Ky.  Cent.  R.  Co.  v.  Barrow 40 

Ky.  Mf'g  Co.  v.  Louisville 242 

Kenyon  v.  Ashbridge 30,  105 

v.  Kenyon 314 

v.  Knights  Templar  Ass'n 227 

Keran  v.  Trice's  Excrs 341 

Kerr  v.  McGuire 194 

v.  So.  Park  Commrs 37 

Kerstner  v.  Vorweg 314 

Kessel  v.  Albetis 164 

Keyes  v.  State 336 

Kibler  v.  Mcllwain 315 

Kidd  v.  Fleek 239 

Kidder  v.  Blaisdell 106 

v.  Stevens 262 


TABLE  OF  CASES  CITED. 


lix 


PAGE 

Kidwell  v.  Comm 276 

Kiel  v.  Choate 221 

Killam  v.  Peirce 46 

Kilpatrick  v.  Comm 87,  166 

Kimball  v.  Morrill 1S2 

Kimberly's  Appeal 141 

Kincaid  v.  Archibald 220 

Kindel  v.  Le  Bert 167 

King  v.  Atkins 315 

v.  Donahue 155 

v.  Faber 342 

v.  Gallun 172 

v.  N.  Y.  Central,  etc.  R.  Co..  36, 176 

v.  Richards 268 

v.  Ruckman 335 

v.  State — 247 

v.  Worthington 180 

Kingan  v.  Silvers  Co 215 

Kingman  v.  Cowles 200,  204 

v.  Tirrell 34  5 

Kingsbury  v.  Moses 176,  191,  312 

Kingsford  v.  Hood 24 

Kingsland  v.  Chittenden 115 

Kiugsley  v.  Davis 131 

Kingston  Bk.  v.  Bosserman 218 

Kingwood  v.  Bethlehem 183 

Kinney  v.  Farnsvvorth 101 

v .  Flynn 183 

Kip,  In  re 299 

Kip  v.  Brigham 118 

Kirby  v.  Comm 12 

v.  Masten » —    63 

v.  Tallmadge 3M 

Kirksey  v.  Kirksey i54 

Kirkstall  Brewery  v.  Furness  Ry 70 

Kitchen  v.  Smith 185 

Kitson  v.  Farwell 130 

Kitteringham  v.  Dance 321 

Kittredge  v.  Russell 57 

Kitts  v .  Willson 130 

Kleiber  v.  People's  R.  Co 14 

Knapp  v.  Roche 131 

v.  Smith 45 

Knarr  v.  Conaway 167 

Knickerbocker  v.  Wilcox 188 

Knickerbocker  Ins.  Co.  v.  Pendleton    53 

Knight  v.  Clements 216,  217 

v.  Cunnington 92 

v.  Epsom 284,287 

v.  House —  335 

v.  Morse 34° 


PAGE 

Knight  v.  Smythe 20 

Knights  v.  Wiffen 265 

Knisely  v.  Sampson. 209 

Knobloch  v.  Mueller 59 

Knoll  v .  State 116,  145 

Knower  v.  Cadden  Clothing  Co. . .  14,  15 

Knowles  v.  Crampton 177 

Knowlton  v .  Knowlton 189 

Knox  v.  Eden  Musee  Co 266 

v.  Wheelock 352 

Knoxville  Nat.  Bk.  v.  Clark 218,  266 

Koccis  v.  State 142 

Koch  v.  Roth 221 

Koehler  v.  Black  River  Co 212 

Konitzky  v.  Meyer 132 

Koons  v.  State 154 

Koster  v.  Reed 249 

Kramer  v.  Goodlander 101 

Kreitz  v.  Behrensmeyer 104 

Krekeler  v.  Ritter 129 

Kretschmer  v.  Hard 229 

Kreuzberger  v.  Wingfield 224 

Krise  v.  Neason 188,  197 

Kurtz  v.  Hibner 230 

L.  &S.  W.  Bk.  v.  Wentworth 267 

Labar  v .  Crane no 

La  Bau  v.  Vanderbilt 69 

La  Beau  v.  People 22,  324 

Laclede  Bk.  v.  Keeler 335 

Lady  Dartmouth  v.  Roberts 372 

Lady  Ivy's  Case 29 

Lafferty  v.  Lafferty 218 

Lafflin  v.  Buffalo,  etc.  R.  Co 38 

La  Fontaine  v.  Underwriters 297 

Lahey  v.  Ottman  &  Co 13 

Laingf.  United  N.  J.  R.  Co 37,  143 

Laird  v.  Campbell 91 

Lake  v.  Clark 36 

Lake  Erie,  etc.  R.  Co.  v.  Mugg 5° 

Lake  Ontario  Bk.  v .  Judson 242 

Lake  Shore,  etc.  R.  Co.  v.  Stupak...  160 

Lamagdelaine  v.  Tremblay 160 

Lamar  v.  Micou 62,  164 

v.  Pearre 58,  95,99 

Lamb  v.  Camden,  etc.  R.  Co 243 

v.  Lamb 322 

v.  McConkey 122 

v.  Munster 297 

v.  State 3°2 

Lambert  v.  People 73 


In 


TABLE  OF  CASKS  CITED. 


PAGE 

Lambie,  In  re 99,  263 

Lamoreaux  v.  Att'y  General 106 

Lampe  v.  Kennedy 61 

Lamson  v.  Boyden 297 

Lanark  v.  Dougherty 176 

Landaff,  Petition  of 66 

Landell  v.  Hotchkiss 41 

Lander  v.  Arno 130 

v .  People 8,i2 

Landers  v.  Bolton 181 

Lane  v.  Boicourt 293 

v.  B.  &  A.  R.  Co 65 

v.  Brainerd in 

v.  Bryant 13 

v.  Cole 193,  294 

v.  Lane 100 

v.  Moore 49 

v.  Wheelwright 147 

Lanergan  v.  People 26 

Lanfear  v.  Mestier 169 

Lang  v.  Sanger 31 

v.  State 52 

Langer  v.  Tate 309 

Langhorn  v.  Allnutt 71 

Langhorne  v.  Comm 326 

Langley  v.  Wadsworth 321,  324 

Langworthy  v.  Green  T'p 3i,39,  176 

Lanning  v.  Chicago,  etc.  R.  Co 41 

v.  Sisters  of  St.  Francis 229 

Lanpher  v.  Clark 50 

Lansing  v.  Coley 312 

Lapham  v.  Kelly 344 

Larkin  v.  Hapgood 46 

Laros  v.  Comm 80 

La  Rosae  v.  State ...  301 

Larrabee  v.  Minn.  Tribune  Co...  45,  161 

Larson  v.  Dickey 4 

■  Lasater  v.  Van  Hook 197 

Lassone  v.  Boston,  etc.  R.  Co 91,  95 

Last  Chance  M  ining  Co.  v.  Tyler  Co.  122 

Latham  v.  Brown 143 

Lathrop  v .  Adams 161 

v.  Bramhall 190,  224,  31 1 

Lauderdale  Peerage  Case 105 

Laughlin  v.  Street  R.  Co 142 

Lavin  v.  Emigrant  Sav.  Bk 119 

Lawler  v.  McPheeters 327 

Lawrence  v.  Kimball 95 

v.  Tennant 115 

Lawson  v.  Bachman 194 

v.  Boyden 294 


PACE 

Lawson  v.  Conaway 125 

v.  Glass 341 

v.  Vacuum  Brake  Co 309 

Lay  Grae  V.  Peterson 65 

Lay  man's  Will 246,  289 

Lazier  v.  Westcott 140,  168,  171,  198 

Lazzaro  v.  Maugham 191 

Leach  v.  Bancroft 176 

v.  Linde 205 

Leache  v.  State 313 

Leahey  v.  Cass  Ave.  etc.  R.  Co 13 

Leahy  v.  Leahy 277 

Leas  v.  Walls 265 

Leather  Mfrs.  Bk.  v.  Holley 264 

Leavitt  v.  Baker 312 

v.  Kennicott 227 

Leconfield  v.  Lonsdale 260 

Lee  v.  Pain 234 

v.  Springfield  Co 143 

v.  State 24 

v.  Wheeler 31 

Leeds  v.  Cook 194 

Lees  v.  U.  S 299 

Lefever  v.  Johnson 57 

Lefevre  v.  Lefevre 233 

v.  State 77 

Le  Franc  v.  Richmond 211 

Leggatt  v.  Tollervey 118 

Legge  v.  Edmonds 256 

Leggett  v.  Glenn 296 

Lehigh  R.  Co.  v.  McFarlan 259 

Lehman-^.  Central  R.  Co 265 

v.  Glenn 114 

Leidlein  v.  Meyer 177 

Leinkauf  v.  Brinker 160 

Leland  v.  Cameron 91 

v.  Knauth 322 

Lemmon  v.  Hartsook 101 

v.  Moore 303 

Lenahan  z\  People 174 

Lendberg  v.  Iron  Mining  Co 116 

Lennon  v .  Rawitzer 243 

Lent  v.  N.  Y.  &  M.  R.  Co 125 

Leonard  v.  Bolton 301 

v.  Pope 45 

v.  Southern  Pac.  Co 157 

Leppla  v.  Tribune  Co 280 

Lerch  Hardware  Co.  v.  First  Nat.  Bk.  244 

Lerned  v.  Johns 221 

Leroy,  etc.  R.  Co.  v.  Butts 329 

Lessee  of  Clark  v.  Courtney 181 


TABLE  OF  CASES  CITED. 


PAGE 

Lester  v.  McDowell 316 

v.  People 294 

v.  State 341 

Leverich  v.  State 20 

Levison  v.  State 76 

Levy  v.  People 134 

Lewars  v.  Weaver 240 

Lewis  v.  Comm 20 

v.  Douglas 229 

v.  Eagle  Ins.  Co 316 

v.  Eastern  R.  Co  38 

v.  Lee  Co 70 

v.  Lewis 301 

v.  Ocean  Nav.  Co 134 

v.  Payn 179 

v.  Seabury 226 

v.  Shull 239 

v.  Springfield  Co 144 

v.  State 337 

v.  Sumner 68 

v.  Woodworth 67 

Lewis's  v.  Lewis 69 

Ley  v.  Barlow 295 

L'Herbettew.  Pittsfield  Nat.  Bk....  189 

Libby  v.  Brown 97 

Lichtenhein  v.  Fisher 37 

Lichtenwallner  v.  Laubach 47 

Lieb  v.  Lichtenstein 121 

Liggett  v.  Glenn 296 

Lightfoot  v.  People 333 

Lilienthal's  Tobacco  v.  U.S 243 

Lilley  v.  Parkinson 116 

Lillibridge  v.  Barber 238 

Lilly  v .  People 247 

Lime  Rock  Bk.  v.  Hewett 109 

Linck  v.  Litchfield 263 

Lincoln  v.  Battelle 198,  207 

v.  Claflin 15,  44 

v.  French 261 

v.  Haugan 206 

v.  Taunton  Mf'g  Co 151 

Lindley  v.  Lacey 226 

v.  Lindley 239 

v.  Sullivan 242 

Lingreen  v.  111.  Cent.  R.  Co 278 

Linn  v.  Gilman 37 

Linnard's  Appeal 217 

Linsday  v.  People —  23,  31,  149,  156,  276 

Linthicum  v.  Ray 249 

v.  Remington 290 

Lippincott  v.  Wikoff 279 


PAGE 

Litch  v.  Clinch 125 

Little  v.  Edwards 313 

v.  Herndon 217 

v.  McKeon 282 

v.  People 238 

Liverpool  St.  Co.  v.  Phenix  Co..  163,  164 

Livingston  v.  Arnoux 96,  209 

v.  Delafield 252 

v.  Kriersted 272 

Llano ver  v.  Homfray in 

Lloyd  v.  Matthews 164 

Lockard  v.  Comm 335,  336 

Locke  v.  Express,  etc.  Co 38 

Lockwood  v.  Doane 44 

Loder  v.  Whelpley 247 

Loeb  v.  Willis 122 

Loftus  v.  Union  Ferry  Co 38 

Logan  v.  U.  S 273 

Lombar  v.  East  Tawas 38 

Londener  v.  Lichtenheim 273 

Long  v.  Booe 47 

v.  Colton 101 

v.  Drew 344 

v.  Hartwell 223 

v.  McDow 213 

v.  Spencer 210 

Loomis  v .  N.  Y.  etc.  R.  Co 68 

v.  Wadhams 61, 178 

Loos  v.  Wilkinson 62,63 

Lorah  v.  Nissley 211 

Lord  v.  State 277 

Lorillard  v.  Clyde 120 

Lorimer  v.  St.  Paul  Ry.  Co 251 

Loring  v.  Whittemore 179,  186 

v.  Worcester,  etc.  R.  Co 41 

Losee  v.  Losee 56 

Lothian  v.  Henderson 126 

Lotto  v.  Davenport 161 

La.  Nat.  Bk.  v.  Laveille 269 

Louisville,  etc.  R.  Co.  v.  Buck 13 

i'.  Lucas 145 

v.  Pearson 12 

v.  Spencer 250 

z>.  Wallace 143 

v.  Wood 176,  177 

v.  Wright 74 

Lovat  Peerage  Case 105,  106 

Love  v.  Masoner 340 

v.  People 276 

Lovejoy  v.  Howe 176 

v.  Spafford 265 


Ixii 


TABLE  OF  CASES  CITED. 


PAGE 

Loveland  v.  Cooley 285 

Lovell  v.  Quitman 217 

v.  Wentvvorth 344 

Loveridge  v.  Hill 3'6 

Lovcsy  v.  Smith 303,  304 

Low  v.  Payne 92 

Low's  Case  286 

Lowe  v.  Dalrymple 14,  16 

Lowell  Mfg.  Co.  v.  Safeguard  Ins. 

Co 236 

Lowenstein  v.  Carey 192 

Lowery  v.  Telegraph  Co 266 

Lowney  v.  Perham 299 

Lowry  v.  State 88 

Luby  v.  Hudson  River  R.  Co 13 

Lucas  v.  Brooks 279 

v.  De  La  Cour 71 

v.  State 347 

Luce  v.  Dorchester  Ins.  Co 150 

Lucier  v.  Pierce 225 

Lucy  v.  Tenn.  etc.  R.  Co 61 

Ludeke  v.  Sutherland 226 

Ludlow  v.  Warshing 149 

Luetgert  v .  Volker 36,  no 

Luft  v.  Lingane 287 

Lund  v.  Tyngsborough io 

Lundberg  v.  Northwestern  Elev.  Co.  328 

Lurssen  v.  Lloyd 319 

Lurton  v.  Gilliam 206 

Lush  v.  Druse 182 

Lyell  v.  Kennedy 113,292 

Lyman  v.  Bechtel 92 

v.  Boston 143 

v.  Philadelphia 335 

Lynch  v.  McHenry 223 

Lynn  v.  Lyerle 289 

Lyon  v.  Manning 72 

v.  Perin  Mfg.  Co 121 

v.  Prouty 280 

v.  Ricker 95.  99 

Lyons  v.  Lawrence 23 

v.  People 84 

Mabie,  Matter  of 247 

Macdonald  v.  Dana 222 

Macdougal  v.  Purrier 261 

MacDougall  v.  Central  R.  Co 251 

Machine  Co.  v.  Batchelder 294 

'  Macey  v.  Stark 136 

M  ack  v.  State 84 

Mackay  v.  Easton 117 


PAGE 

Mackie  v.  Story 220 

Mackinnon  v.  Barnes 167 

M  aclean  v.  Scripps 180 

Macomb  v.  Wilkinson 91 

Madden  v.  Mo.  Pac.  R.  Co 150 

Madge  v.  Madge 301 

Magee  v.  People 337 

v.  Raiguel 63 

v.  Troy 38 

Maggi  v.  Cutts 50 

Magie  v.  Herman 180,  191 

Mahankew.  Cleland 297 

M  ahoney  v.  Belford 161 

Maine  v.  People 13,  86,  97 

Making.  Attorney  General 52 

Malachi  v.  State 302 

Malcolm  v.  Fuller 160 

Malcolmson  v.  O'Dea 355 

M  alloney  v.  Horan 121 

Mallory  v.  Benjamin 296 

Malone  v.  Dougherty 223 

M  ande ville v .  Reynolds . 68, 137, 178, 188, 191 
Manhattan  Ins.  Co.  v.  \2&  St.  etc. 

R.  Co 65 

Manistee  Nat.  Bk.  v.  Seymour 74 

Manke  v.  People 150 

Mann  v.  Langton 3S4 

v.  Mann 232 

Mansfield  v.  Edwards 221 

Mansfield  Coal  Co.  v.  McEnery 7 

Mf'rs&  Traders'  Bk.  v .  Koch 176 

Marble  z.'.  McMinn 115 

Marcy  v.  Barnes 155 

Marine  Investment  Co.  v.  Haviside.  210 
Marine  Nat.  Bk.  v.  Nat.  City  Bk....  267 
M  arks  v.  Beyfus 283,  404 

v.  Orth 206 

Marlow  v.  Marlow 189 

Marsh  v.  McNair 221 

v.  Smith 120 

Marshall  v.  Brown 116 

v.  Chicago,  etc.  R.  Co 87 

v.  Davies 3X9 

'    v.  Hancock 111,154 

v.  Holmes 137 

Marshfield,  In  re 394 

Marsteller  v.  Marsteller 120 

Marston  v.  Bigelow  • 54 

v.  Dingley 147,261 

v.  Downes 187 

Martin  v.  Capital  Ins.  Co 26,317 


TABLE  OF  CASES  CITED. 


PAGE 

Martin  v.  Cope no 

v .  Good 342,  344 

v.  Gray 136 

v.  McCray 180 

v .  N.  Y.  etc.  R.  Co 9 

v.  Rector 213 

v.  Shannon 32 

v.  State 30 

v.  Stoddard 263 

v.  Towle 328 

Martin,  Will  of 247 

Martineau  v.  May 326 

Marx  v.  McGlynn 48,  254 

Maryland  v.  Baldwin 156 

Mason  v.  Libbey igi 

v.  Phelps 341 

v.  Vestal 338 

Masserz*.  Strickland 118 

Massey  v.  Allen 364 

v.  Farmers'  Nat.  Bk 190 

Mather  v.  Eureka  Co 345 

v.  Parsons 176 

Mathews  v.  Munster 69 

Mathias  v.  O'Neil 342 

Matteson  v.  N.  Y.  Cent.  R.  Co 47 

Matthews,  In  re 19, 166 

Matter  of 256 

Matthews  v.  Hoagland 288 

v.  Matthews 316 

Mattox  v.  United  States 

86,  109,  284,  285,  327 

Maullt*.  State 81 

Mauri  v.  Heffernan 188 

Maus  v.  Borne 61 

Maxey  v.  Strong 67 

Maxted  v.  Seymour 219 

Maxwell  v.  Chapman 94 

v.  Hofheimer 190 

v.  Kennedy 162 

v.  State 248 

v.  Wilkinson 344 

May  v.  Bradlee 30, 142 

Maybee  v.  Avery 123 

v.  Sniffen 216 

Mayer  v.  Appel 327 

v.  Dean 220 

v.  People 42,  44 

Maynard  v.  Buck 50 

Mayo  v.  B.  &.  M.  R.  Co < 252 

v.  Mayo 298 

Mayor  v .  Brady 132,  137 


PAGE 

Mayor  of  Baltimore  v.  Smith  Co.  37, 143 

v.  War 187,  192 

Mayor  of  Bradford  v.  Pickels 260 

Mayor  of  Bristol  v.  Cox 291 

Mayor  of  Doncaster  v.  Day 108 

Mayor  of  N.  Y.  v.  Fay 58 

v.  Sands 172 

v.  Second  Avenue  R.  Co 94 

Mayor  of  Swansea  v.  Quirk 290 

McBee  v.  Fulton 239 

McBride  v.  Grand  Rapids 31 

v.  Wallace 319 

McCaffrey  v.  Carter 124 

McCahill  v .  Equitable  Assur.  Soc 136 

M  cCartee  v.  Camel 258 

McCarthys.  McCarthy 301 

v.  Marsh 120 

McCarty  v.  Terry 104 

McCausland  v.  Fleming 103, 115 

McClafferty  v.  Philp 252 

McClanahan  v.  West 136 

McClaskey  v.  Barr 107 

McCleery  v.  Thompson 66 

McClellan  v.  St.  Paul,  etc.  R.  Co. . . .  262 

M  cClerkin  v.  State 206 

McClurgw.  Howard 66 

v.  Terry 127 

McCollister  v.  Yard 188 

McCombs  v.  State 339 

McConkey  v.  Cockey 254 

v.  Coram 35 

McConnell  v.  Hannah 61 

v.  Osage 40,  293 

v.  Wildes 188 

McConologue's  Case 123 

McCorker  v.  Banks 244 

McCormick  v.  Herndon . 166 

v.  Pa.  Cent.  R.  Co 343 

McCormick  Co.  v.  Wilson 222 

McCormicks  v.  Williams 63 

McCown  v.  Quigley 249 

McCoy  v.  Cassidy 211 

v.  McCoy 243 

McCreery  v.  Day 223 

McCue  v.  Coram 21 

McCulloch  v.  Campbell 246 

v .  Dobson 40,  327 

McCutchen  v.  Loggins 335 

McDonald  v.  Carnes 91 

v.  McDonald 99,  154,  288 

v.  Montgomery  R.  Co 252 


lxiv 


TABLE   OF  CASES  CI'I  1 . 1  >. 


PAGE 

McDonald  v.  Savoy 51,  160 

v.  State 165 

McDonough  v .  Jolly 232 

McDowell  v.  TEtna  Ins.  Co 180,  192 

McElheny  v.  Bridge  Co 143 

v.  Pittsburgh,  etc.  R.  Co 318 

McEwan  v.  Zimmer 140 

M'Fadden  v.  Kingsbury 190 

v.  Santa  Anna,  etc.  R.  Co 320 

McFadin  v.  Catron 328 

McFarlan  v.  Triton  Ins.  Co 113 

McFarland  v.  Accident  Ass'n 54 

v.  Sikes 222 

McGarvey  v.  Darnall 130 

McGean  v.  M  anhattan  R.  Co 350 

McGillw.  McGill 50 

McGoldrick  v.  Traphagen 92,  93 

McGowan  v.  Chicago,  etc.  R.  Co 319 

v.  McDonald  174 

McGrail  v.  McGrail 301 

McGrath  v.  Clark 218,  26$ 

v.  Seagrave 281 

McGregor  v.  Wait 65,  184,  194 

McGrell  W.Buffalo  Office  Bld'g  Co...     38 

McGuff  v.  State 177,  272 

McGuiness  v.  School  District.. .  187,  345 

McGuire  v.  McDonald 325 

v.  Ogdensburgh,  etc.  R.  Co. . . .    40 

v.  People 272 

Mcintosh  v.  Mcintosh 314 

Mclntyre  v.  B.  &  M.  R.  Co 146 

v.  Levering 161 

v.  N.  Y.  C.R.  Co 110 

McKay  v.  Lasher 157.  182 

McKeanw.  R.  Co 148 

McKee  v.  Nelson 144 

McKeen  v.  Gammon 68 

McKelton  v.  State 274 

McKennap.  Paper  Co 32 

McKillop  v.  Duluth  R.  Co 142 

McKinney  v.  Collins 127 

v.  Grand  St.  etc.  R.  Co 293 

v.  People 307 

v.  Salem 59 

McKinnon  v.  Bliss 101, 112,  114,  172 

McKivitt  v.  Cone 343 

McLain  v.  Comm m,  149.  348 

McLaughlin  v.  Cowley 161 

v.  McLaughlin 62 

v.  Mencke 323 

v .  Menotti 205 


PAGE 

McLean  v.  Fleming 269 

v.  Jephson 135 

v .  State 277 

McLellan  v.  Cox 71 

v.  Longfellow 287 

McLeod  v.  Ginther 10 

McLoghlin  v.  Mohawk,  etc.  Bk 6,  31 

McMahon  v.  Harrison 51 

v.  McElroy  257 

McMakin  v.  Weston 191 

McManus  v.  Comm 22 

McMaster  v.  Schriven 287 

McMechen  v.  McMechen 246,  247 

McMeed  v.  Comm 29 

McMicken  v.  Comm 132 

McMillan  v.  Bissell 221 

v.  McDill 69 

McMillen  v.  Andrews 281 

McMullen  v.  Rafferty 67 

McMurray's  Heirs  v.  Erie 261 

McMurrin  v.  Rigby 25,  328 

McNair  v.  Comm 152 

McNamara  v.  Gargett 219 

v.  State 109 

McNeilan's  Estate 66 

McNerney  v.  Reading 330 

McPherson  v.  Rathbone 192 

McQueen  v.  State 78,  159 

McRae  v.  State 29 

McReynolds  v.  Burlington, etc. R. Co.  242 

v .  Longenberger 213 

McRoberts  v.  Bergman 259 

McShane  v.  McShane 301 

McSweeney  v.  McMillen 60 

McVey  v.  Cantrell 312 

McVicker  v.  Conkle 181,  184 

Mead  v.  Husted 41,  239 

v.  Parker 223 

Meade  v.  Smith 284 

Meadowcroft  v.  People 4 

Meakings  v.  Cromwell 294 

Mears  v.  Cornwall 322 

Mechanics'  Bank  v.  Gibson 171 

Medary  v.  Cathers 186 

Meeker  v.  Meeker 147 

Meiss  v.  Gill 129 

Mclcher  v.  Flanders 181 

Melia  v.  Simmons 119 

Mellor  v.  Mo.  Pac.  R.  Co 293 

Meltzger  v.  Doll 28 

Melvin  v.  Melvin 355 


TABLE  OF  CASES  CITED. 


PAGE 

Memmer  v.  Carey 124 

Memphis,  etc.  R.  Co.  v.  Hembree. ..  188 
Menominee  Co.  v.  Milwaukee,  etc. 

R.  Co 172 

Mercein  v.  People 123 

M  ercer  v.  Vose 148 

Merchants'  Nat.  Bk.  v.  Hall 165 

Meriden  Bk.  v.  Wellington 49 

Merk  v.  Gelzhaeuser 239 

Merkel's  Appeal 24 

Merkle  v.  Bennington  13 

Merluzzi  v.  Gleason 322 

Merriam  v .  Swensen 62 

Merrick  v.  Parkman 63 

Merrill  v.  Merrill 344 

Merriman  v.  State 335 

Merritt  v.  Cornell 212 

v.  Day 66 

Mersman  v.  Werges 218 

Metcalf  v.  Gilmore 121 

Metheny  v.  Bohn 106 

Metropolitan  Ins.  Co.  v.  Bender  ...  212 

Metr.  R.  Co.  v.  Collins 9,  10 

Meyer  v.  Huneke 214 

v.  Sefton 189 

Meyer  Drug  Co.  v.  McMahan 329 

Miami  Nat.  Bk.  v.  Barkalow 122 

Michels  v.  Olmstead 221 

Michigan  Central  R.  Co.  v.  Gilbert. .     37 
Michigan  Land,  etc.  Co.  v.  Republic 

T'p 191. 193 

Milbank  v.  Jones 319 

Miles  v.  Andrew 175 

v.  Lefi 264 

v.  State 156,  248 

v.  U.  S 237 

Milford  v.  Greenbush 206 

M  ill's  Case 301 

Mill  Dam  Foundery  v.  Hovey 212 

Miller  v.  Amsterdam 135 

v.  Binder 212 

v.  Cook 62 

v.  Curtis 161,339 

v.  Dayton 15 

v.  Gambie 226 

v.  Irish 30 

v.  Lathrop 73 

v.  L.  1.  R.  Co 17 

v.  Miller 67,  125 

v.  Miller's  Admr 317 

v.  People 79 


PAGE 

Miller  v.  Rowan 59 

v.  Shay 92 

v.  Stark 214 

v.  State '. 79,  248 

v.  Stevens 232 

v.  Travers ' 233 

v.  Western,  etc.  R.  Co 338 

Miller's  Estate 247 

Milliken  v.  Barr 194 

Mills  v.  Barber 244 

v.  Davis 97 

v.  Green 169 

v .  Hallock 19 

v.  Oddy 187 

Milwaukee  R.  Co.  v.  Kellogg 145, 148 

Mimnaugh  v.  Partlin 121 

Minchin  v.  Minchin 221 

Minet  v.  Morgan 291 

Mink  v.  State 256 

Minneapolis  Mills  Co.  v.  Minn.  etc. 

R.  Co 108 

Minters  v.  People 299 

Mission  of  the  I.  V.  v.  Cronin 259 

Missionary  Soc.  v.  Mead 233 

Mississippi  Co.  v.  Vowels 61 

Missouri  v.  Kentucky 115 

Mo.  Pac.  R.  Co.  v.  Baier 13 

Mitchell  v .  Jacobs 189 

v.  Pitts 311 

v.  Sawyer 330 

v.  So.  Pac.  R.  Co..  14 

v.  State 88 

v.  Work 161,  339 

Mitchell's  Case 294,  296 

Mix  v.  Royal  Ins.  Co 215 

Mixter  v.  Imperial  Coal  Co 244 

Moats  v.  Rymer 282,  294,  296 

Mobile,  etc.  R.  Co.  v.  Jurey 190 

v.  Ladd 318 

v.  Williams 338 

Mockabee  v.  Comm 88 

Mode  v.  Beasley 172 

Moeck  v.  People 86 

Moeckel  v.  Heim 280 

Moett  v.  People 7,  303 

Moffatt  v.  Tenney 251 

Mohr  v.  Miesen 147 

Moller  v.  Moller 301 

M olson's  Bk.  v.  Boardman 146 

Monaghan  v.  Agr.  Ins.  Co 239 

Munahan  v.  Worcester 160 


l*vi 


TABLE  OF  CASES  CITED. 


PAGE 

Monfort  v.  Rowland 316 

Monroe  v.  Douglas 163 

v.  Lattin 148 

Montag  v.  People 9 

Montague  v.  Dougan 92 

M  ontana  R.  Co.  v.  Warren 143 

Montgomery  v.  Allen 74 

v.  Be  vans 262 

v.  Brush 72 

v.  Montgomery 256 

v.  Pickering 287 

v.  State 89,  90 

Montgomery,  etc.  R.  Co.  v.  Mallett..  250 

Moody  v.  Davis 176 

v.  Tenney 46 

Mooers  v.  Bunker 104 

Moog  v.  Randolph 165 

Mooney  v.  Hinds 140 

Moore  v.  Coram 248 

v.  Gaus  Mfg.  Co 197 

v.  Hamilton 61 

v.  Livingston 182 

v.  McDonald 49 

v.  Meacham 10 

v.  Moore no 

v.  People 324 

v.  Richmond 6,  38 

v.  Shields 15 

v.  State 156 

v.  Williams 137 

Moots  v.  State 91,  342,  344 

Moran  v.  Prather 228 

Morehead  v.  State 75 

Morehouse  v.  Morehouse 10S 

v.  Mathews 143 

Morelock  v.  State 341 

Morey  v.  Hoy t 178 

Morford  v.  Peck 333 

Morgan  v.  Burrows 231 

v.  Griffiths 226 

v.  Railroad  Co 264 

v.  Roberts 282 

v.  State 238 

Morgan's  Assignees  v .  Shinn 221 

Moriartyz>.  London,  etc.  R.Co.  23,64,361 

Morley  v.  Green 295 

Morrill  z;.  B.&M.R.  Co 194 

v.  Foster io4 

v.  Morrill 137 

v.  Robinson 178 

v.  Titcomb 61 


PAGE 

Morris  v.  Davies 105,  113,  257 

v.  East  Haven 51 

v.  French 21 

v.  Harmer 114 

v.  Lachman 344 

v.  Miller 155 

v.  Morris 293 

v.  N.  Y.etc.  R.Co 293 

v.  Patchin 202 

v.  Spofford 28 

v.  White 305 

Morrison  v.  Chapin 341 

v.  Emsley 104 

v.  Porter 154 

v.  Smith 254 

Morrow  v.  Comm 194 

Morse  v.  Hewett 171 

v.  Minn.  etc.  R.  Co 31,  34 

v.  Stearns 230 

M  orss  v.  Morss 281 

v.  Palmer 337 

v.  Salisbury 61 

Mortimers.  McCallan 188 

Mortlock  v.  Williams 192 

M  orton  v.  Heidorn 247 

v.  State 9 

Moseley  v.  Mastin 171 

Moses  v.  Central  Pk.  etc.  R.  Co 287 

v.  Cromwell 286 

v.  U.  S 132 

Mosley  v.  Ins.  Co 160 

Mott  v .  Consumers'  Ice  Co 57 

v .  Mott 254 

v.  Richtmeyer 209,  220 

Mowatt  v.  Carow 233 

Mowell  v.  Van  Buren 288 

Mowry  v.  Chase 145 

v.  Smith 318 

Moxie  Co.  v.  Beach 294 

Moye  v.  Herndon 218 

Muggleton  v.  Barnett 18 

Muldoon  v.  Deline 231 

Muldowney  v.  111.  Cent.  R.  Co 145 

Mulford  v.  Mullei 289 

Mullan  v.  State 165 

Mullany  v.  Duffy 101,  102 

Mullanphy  Bk.  v.  Schott 188 

M  ullen  v.  St.  John 250 

Muller  v.  McKesson 44 

v.  St.  Louis  Hospital  Ass'n 320 

Mullin,  In  re 287,293 


TABLE  OF  CASES  CITED, 


lxvii 


PAGE 

Mumford  v.  Bowne 169 

Munday  v.  Vail 130 

Munn  v.  Godbold 186,  191 

Munoz  v.  Wilson 212 

Munshower  v.  State 56,  117 

M  unson  v.  Atwood 239 

Murch  v .  Swensen 62 

Murdock  v.  Waterman ^ 71 

Murphy  v.  Chase 261 

v.  Gates 58 

v.  Hanscome 240 

v.  People   .  19,  80 

v.  Purdy 311 

v.  State 75,  79,  248,  325 

v.  Waterhouse 289 

Murray  v.  Chase 22 

v.  Deyo 118 

v.  Elston 193 

v.  Klinzing 218 

V.  Murray 241 

v.  N.  Y.  Life  Ins.  Co 242 

Musselman  v.  Wise 174 

Musser  v.  Stauffer 146 

Mutchaf.  Pierce 13 

Mutual  Ben.  Co.'s  Petition 258 

Mutual  Ins.  Co.  v.  Corey 282 

v.  Tisdale  119, 120,  133 

Mutual  Life  Ins.  Co.  v .  Anthony 108 

v.  Hillmon 27,  47,  99 

v.  Norris 264 

v.  Pinner 138 

Myers  v.  Hudson  Iron  Co 50 

v.  Munson 219 

v.  State 76,  298 

N.  &  W.  Branch  R.  Co.  v.  Swank 225 

N.  &  W.  R.  Co.  v.  Harman's  Admr. .  116 

Nalley  v.  Hartford  Carpet  Co 31 

Nance  v.  Lary 264 

Napton  v.  Leaton 139 

Nash  v.  Classen 165 

Nashville,  etc.  R.  Co.  v.  Johnson 39 

National  Bank  v.  Bangs 267 

v.  Peabody -. 140 

v.  Wallis 140 

v.  Zeims 264 

Nat.  Bk.  of  Commerce  v.  Chicago, 

etc.  R.  Co 269 

v.  Meader 67 

Nat.  Bk.  of  Delavan  v .  Cotton 69 


PAGE 

Nat.  Bk.  of  Dubois  v.  Nat.  Bk.  of 

Williamsport 341 

Nat.  Syrup  Co.  v.  Carlson 331 

Nat.  Ulster  Co.  Bk.  v.  Madden 215 

Naumberg  v.  Young 220,  222,  226 

Nay  v.  Curley 318 

Neal  v .  Flint 222 

Neall  v.  Hart 27 

Nealley  v.  Greenough 189 

Needham  v.  Bremner 119 

v.  Thayer 140 

Needles  v.  Hanif  an 236 

Neelz>.  Potter 48 

Neeley  v.  State ....    79 

Neely  v .  Neely 56,  182 

Neese  v.  Farmers'  Ins.  Co 147 

Negley  v.  Jeffers 223 

Neil  v.  Case 217 

v.  Jakle 25 

Neill  v.  Duke  of  Devonshire 18, 100 

Neilson  v.  Hartford  St.  R.  Co 313 

Nellis  v.  Cramer 161 

Nelson  v.  Flint 72 

v.  Mayor  of  New  York 91 

v.  Pierce 239 

Nepean  v.  Doe 257 

v.  Knight 257 

Nesbitt  v.  Nesbitt 241 

v.  Riverside  Dist 121 

Nevitt  v.  Woodburn 132 

Nevling  v.  Coram 7,  237 

Newbould  v.  Smith 96 

Newcomb  v.  Griswold 325 

v.  Newcomb 141 

Newell  v.  Carpenter 129 

v.  Nichols 258 

Newhall  v.  Appleton 37 

N.  H.  Ins.  Co.  v.  Healey 286 

New  Haven  v.  Chidsey 132 

New  Haven,  etc.  R.  Co.  v.  Goodwin.    91 

N.  J.  Exp.  Co.  v.  Nichols 251 

N.  J.  Traction  Co.  v.  Brabban 145 

New  Jersey  Zinc  Co.  v.  Lehigh  Zinc 

Co 60,  116,  147,  1S2,  190 

Newman  v.  Baker 222 

v.  King 214 

v.  McComas 68 

v .  Newman 307 

New  Orleans,  The 71 

Newport  v.  State 263 

New  Portland  v.  Kingfield 326 


lxviii 


TABLE  OF  CASES  CITED. 


PAGE 

Nevvsom  v.  State 238 

Newton  v.  Chaplin 193 

v.  Porter 312 

v.  State 84 

N.  Y.  etc.  Ferry  Co.  v.  Moore 30 

N.  Y.  etc.  R.  Co.  v.  Kellam 327 

v.  Luebeck 141 

N.  Y.  Guaranty  Co.  v.  Gleason 15 

N.  Y.  Mutual  Life  Ins.  Co.  v.  Arm- 
strong      42 

N.  Y.  Traction  Co.  v.  Brabban 145 

Nicholas1  Case 35 

Nicholls  v.  Webb 91 

Nichols  v.  Allen 1S6 

v.  Haynes 92 

v.  Jones 68 

v.  Kingdom  Iron  Co 188 

v .  Nichols 140 

v.  Vinson 93 

v.  White 67 

Nicholson  v.  State 77 

v.  Waf ul 7 

Nickerson  v.  Gould 5.7 

v.  Spindall 180 

v .  Swett 215 

Nicolay  v.  Unger 176 

Nicoll  v.  Burke 179,223 

Niendorff  v.  Manhattan  R.  Co 148 

Nix  v.  Hedden  .   171,  173 

Nixon  v.  Palmer 261 

Noble  v.  Fagnant 250 

v.  Union  River  R.  Co 135,  137 

v.  Ward 374 

Noble,  Matter  of  273 

Noden  v,  Murtay 1S0 

Nofire  v.  U.  S 261 

Noonan  v.  State 145 

Norris  v.  Mersereau 132 

North  v.  People 87 

North  Brookfieldc'.  Warren..  105, 107, 188 

Northern  Pac.  R.  Co.  v.  Urlin 47,  319 

Northrop  v.  Hale 105,  106 

Northumberland  Co.  v.  Zimmerman.  199 

Norton  v.  Huxley 130 

v .  Paxton 246 

Norwegian  Plow  Co.  v.  Hanthorn...  318 

Norwich  Co.  v.  Flint 8 

N01  w 1  v.  Andrews 270,  336 

Nouvion  V.  Freeman 139 

Nowlin  V.  Burwell 213,  214 

Noyes  v.  State 276 


PAGE 

Nudd  v.  Burrows 15 

Nunes  v.  Perry 152 

Oakland  Ice  Co.  v.  Maxcy 318 

Oaksmith's  Lessee  v.  Johnston 259 

O'Berg  v.  Breen 92 

O'Blenis  v.  State 339 

O'Brien  v.  Barry 252 

v.  Comm 28 

v.  Frasier 161 

v.  State 298 

O'Bryan  v.  Allen 280 

Ocean  Bk.  v.  Carll 91 

Ocean  Beach  Ass'n  v.  Brinley 19 

Oceanic  Nav.  Co.  v.  Compania 131 

Och  v.  Mo.  etc.  R.  Co 243 

Ochs  v.  People 15,  16 

Ochsenbein  v.  Papelier 137 

Ockershausen  v.  Durant 7 

O'Connell  v.  People 243 

Odiorne  v.  Marine  Ins.  Co 228 

Oelberman  v.  Merritt 282 

O'Gara  v.  Eisenlohr 258 

Ogle  v.  Baker 137 

Ohio  v.  Hinchman 164 

Ohio  Coal  Co.  v.  Davenport 62 

Ohio,  etc.  R.  Co.  v.  Rooker 68 

v .  Stein 10,  65 

Ohio  Valley  R.  Co.  v.  Watson 39 

Ohlquest  v.  Farwell 68 

Olcott  v.  Tioga  R.  Co 53 

Oldtown  v.  Shapleigh 102 

Oliver,  Information  against 251 

Oliver  v.  Bennett 68 

v.  Palmer 167 

v.  Pate 291 

Olmstead  v.  Bach 133 

v.  Webb 289 

Olmsted  v.  Gere 151 

Olson  v.  Peterson 301 

Omaha  R.  Co.  v.  Martin 251 

Omichund  v.  Barker 307 

O'Mulcahy  v.  Holley 264 

( ')'  Neil  v.  Dry  Dock,  etc.  R.  Co 150 

Opinion  of  Justices 165,  170,  173 

Oppenheim  v.  Wolf 172 

Ordway  v.  Haynes 116 

v.  Sanders 9 

Oregon  Steamship  Co.  v.  Otis.  54,58,  179 

O'Reilly  w.  N.Y.  etc.  R.  Co 147 

O'Riley  v.  Clampt 333 


TABLE  OF  CASES  CITED. 


lxix 


PAGE 

Orlando  v.  Gooding 215,  217 

Orman  v.  State 288 

Ormsby  v.  People 15 

Orr  v.  Hadley m 

v.  Miller 280 

v.  State 245 

Orthwein  v .  Thomas 120 

Osborn  v.  Blackburn 164 

v.  Kistler 211 

v.  Pell in 

Osborne  v.  O'Reilly 315 

Oscanyan  v.  Arms  Co 68 

Osgood  v.  Coates 18 

v.  Eaton 63 

v.  Nichols 268 

Oskamp  v.  Gadsden 175 

Ossipee  v.  Grant 52 

O'Sullivan  v.  Overton 181 

Otis  v .  The  Rio  Grande 135 

O'Toole,  In  re 294 

Otterson  v.  Hofford 56 

Otto  v.  Trump 188,  204 

Overlook  v.  Hall 194 

Owen  v.  Cawley 59 

v.  State 278 

Owens  v.  Owens 286 

v.  State 109,  344 

Pacific  Gas  Co.  v.  Wheelock 146 

Packard  v.  Bergen  R.  Co 7 

v.  Reynolds 281 

Packer  v.  Steward 223 

Packet  Co.  v.  Sickles 284 

Paddock  v.  Forester 74 

Paden  v.  Briscoe 258 

Page,  In  re 99 

Page  v.  Cole 224 

Paige  v.  Cagwin 63 

v.  Carter 342 

v.  Willett 174 

Paine  v.  Ins.  Co 164 

v.  Jones 215 

v.  Tilden 337 

v.  Upton 220 

Painter  v.  People 35 

Palmer  v.  Albee 228 

v.  Crook 47 

v.  Culbertson 221 

v.  People 286 

v.  Sanger 120 

v.  State 77 


PAGE 

Palmer  v.  Trower 324 

Pape  v .  Wright 330 

Papendick  v.  Bridgewater 99" 

Paramore  v.  Lindsey 210 

Park  v.  N.  Y.  C.  R.  Co 160 

Park  Bros.  v.  Blodgett  Co 225 

Parke  v.  Neely 209 

Parker  v.  Butterworth 67,68 

v.  Dudley 340 

v .  Foote 260 

v.  Snyder 221 

v.  State 12,24,249,313 

Parkhurst  v.  Berdell 137,  280 

Parkinson  v.  Nashua,  etc.  R.  Co 50 

Parks  v.  Mosher 131 

Parr  v.  Grecnbush 200 

Parsons  v.  Mfrs.  Ins.  Co 342 

Passmore  v.  Passmore's  Estate 287 

Patch  v.  White 231 

Pate  v.  State 21 

Paterson  v.  State 327 

Patrick  v.  Shaffer 121 

Patten  v.  Glover 288 

v.  Moor 291 

Patteson,  Matter  of 133 

Patterson  v.  Crowther 224 

v.  Gaines , 131,  255 

v.  Tucker 185 

v.  Wabash,  etc.  R.  Co..-. 70 

v.  Winn 198 

Pattillo  v.  Alexander 147 

Patton  v.  St.  Louis,  etc.  R.  Co 41 

Paul  v.  Rider  221 

Paulk  v.  State 32 

Pawashick,  The 146 

Payne  v.  Hodge 94 

v.  O'Shea 139 

v.  State 32S 

Payson  v.  Lamson 222 

Peak  v.  State 89 

Pearce  v.  Foster 296 

v.  Hooper 184 

v.  Kyzer 104 

v.  Langfit 170,  172 

Pearse  v.  Pearse 291 

Pearson  v.  Hardin 155 

v.  Pearson 107 

Pease  v.  Burrows 272 

v.  Cole 243 

v.  Shippen 161 

Peckf.  Brewer ..••  384 


Ixx 


TABLE  OF  CASES  CITED. 


PAGE 

Peck  v.  Lake 343 

v.  Ryan 26 

v.  State 335.336 

v.  Valentine 343 

Pecker  v.  Sawyer 271 

Peckham  Iron  Co.  v.  Harper 59 

Peebles  v.  Foote 311 

Peet  v.  Peet 156 

Pufferling  v.  State 339 

Pelletreau  v.  Jackson 182 

Pells  v.  Webquish 113 

Pellum  v.  State 286 

Pence  v.  Waugh 287,  312,  328 

Pendleton  v.  Empire,  etc.  Co 327 

Pennell  v.  Transportation  Co 224 

Pennoyer  v.  Neff 127,  140 

Pennsylvania  Co.  v.  McCann 4 

v.  Newmeyer 177 

v.  Versten 270 

Pennsylvania  Coal  Co.  v.  Kelly 157 

Pa.  Co.  for  Insurance  v.  Phila.  etc. 

R.  Co 35 

Penn.  Ins.  Co.  v.  Wiler 293 

Pennsylvania  R.  Co.  v.  Fortney 329 

v.  Lyons 13 

Penny  v.  Corwithe 214 

Penny  wit  v.  Foote 139 

Pensacola,  etc.  R.  Co.  v.  Brayton. . .  193 

Pentecost  v.  State 188 

People  v .  Abbott 245, 335,  339 

v.  Ah  Fat 337 

v.  Ah  Fook 21 

v.  Ah  Lee 12 

v.  Aleck 15 

v.  Amanacus 337 

v.  Anderson 116 

^.Anthony 4 

v.  Armstrong 302 

v.  Arnold 15, 16 

v.  Augsbury 148 

v.  Azoff 286 

v.  Baird 43 

v.  Baker 119,  127 

v.  Bank  of  N.  America 266 

v.  Barber 148 

v.  Barker 77,  8o,  238,  287 

v.  Beach 318 

v.  Beckwith 3,31 

v.  Bemmerly 88 

v .  Benson 339 

v .  Bentley 16 


PAGE 

People  v.  Blakeley 288 

v.  Board  of  Health 135 

v.  Bolanger 302 

v.  Boling 248 

v.  Borda 232 

v.  Boscovitch 313 

v.  Brady 123 

v.  Briggs 239 

v.  Brooks 170,  326 

v.  Buchanan 29,  290,  318 

v.  Buckland 131 

v.  Burns 274,  313 

v.  Calder 205 

v.  Campbell 20 

v.  Cannon 4,  251 

v.  Carney 32 

v.  Case 330 

v.  Chapleau 84,  85 

v.  Chin  Hane 175 

v.  Chin  MookSow 88,  341 

v.  Clark 303 

v.  Cole 316 

v .  Collins 135 

v.  Conkling 157 

v.  Conroy 23 

v.  Cook 308 

v.  Copsey 273 

v.  Corey  62, 154 

v.  Cotta 341 

v.  Coughlin 248 

v.  Court  of  Sessions 256 

v .  Cox 78,  79,  319 

v.  Craig 21 

v.  Crapo 321 

v .  Crowley 276,  325 

v.  Davis 9,  13. 14.  87,  90 

v .  Dawell 139 

v.  Deacons 79 

v.  De  Kroy ft 155 

:•.  Denison 115,  130 

v.  Dibble 43 

v.  Dimick 42,  51 

v.  Dixon 29 

v.  Dohring 281,  285 

v.  Dow 113 

v.  Dowdigan 109,  347 

v.  Dowling 276 

v.  Downs 237 

v.  Driscoll 26 

v.  Druse 20 

v.  Duncan 25 


TABLE  OF  CASES  CITED. 


lxxi 


PAGE 

People  v.  Durrant 324 

v.  Eaton 20 

v.  Eckman 78 

v.  Elliott 302 

v.  Evans  89,158 

v.  Everhardt 43 

v.  Ezzo 238 

v.  Fair 158,159 

v.  Fairchild 238 

v .  Fehrenbach 16 

v.  Fish 109,  in,  263,  347 

v.  Flaherty 339 

v.  Foley 52 

v.  Fong  Ah  Sing  86,248 

v.  Foote 321 

v.  Forbes 297,  299,  300 

v.  Fox 76,  77,  85 

v.  Freshour 297 

v.  Fulda  251 

v.  Fulton  Fire  Ins.  Co 105,  106 

v.  Gage 24,  25 

v.  Gallagher 292,  302 

v.  Gardner 109,  177,  298 

v.  Gastro 171 

v.  Gates 292 

v.  Gay 338 

v.  Germaine 314 

v.  Glover 339 

v.  Goldenson 177 

v.  Gonzalez 176 

v.  Gordon 109,  277 

v.  Gray 87 

v.  Greenwall 326,  335 

v.  Grunzig 89 

v.  Hall 90 

v.  Harris 4,  20,  35,  293 

v.  Harrison 158 

v.  Hayes 276,  280 

v.  Hendrickson 7 

v.  Hennessy 75 

v.  Henssler 44 

v.  Hickman 75,  336 

v.  Hillhouse 324 

v.  Hodgdon 89 

v.  Hope 22 

v.  House  of  Mercy 135 

v.  Hovey 314 

v.  Hoy  Yen 80 

v.  Hulbut : 285 

v.  Hunt 284 

v.  Irving , 322 


PAGE 

People  v.  Jackson 307 

v.  Jassino 158 

v .  Johnson • 19,  31,  177,  339 

v.  Jones 20,  190 

v.  Kaminsky 340 

v.  Kearney 301 

v.  Kelley 83,  297 

v.  Kemp 43 

v .  Kenyon 133 

v.  Kloss 284 

v.  Knapp 86,  88,  324 

v.  Koerner 26 

z/.Kraft 88 

v.  Laird 283 

v.  Lanagan 86 

v .  Lane 19,  75,  262,  293 

v.  Langtree 299 

v.  Larubia 26 

v.  Lawrence 341 

v.  Lee .' 200,  201 

v.  Lennox 76 

v.  Linzey 272 

v.  Lyon 301 

v.  Marshall 350 

v.  Martinez 84 

v.  Mather 319,  320,  335,  336 

v.  Matteson 272 

v.  Maxwell 251 

v.  Mayer 171 

v.  Mayhew 302 

v.  McCallan 79 

v.  McClure 43 

v.  McConnell 166 

v.  McCormick 322 

v.  McElvaine 148 

v .  McGowan 120 

v.  McKane 170,  175 

v.  McLaughlin 35,  53.  343 

v.  McLean 339 

v.  McQuade 15 

v.  McQuaid 205 

v.  McWhorter 243 

v.  Mead 35 

v.  Miller 281,  303 

v.  Mitchell 83 

v.  Mondon 83,  84 

v.  Monella 328 

v.  Montgomery 143 

v.  Morrigan 156 

V.  M  idlings 280 

z>.  Murphy 13.35,49.292,324 


lxxii 


TABLE  OF  CASES  CITED. 


PAGE 

People  v.  Murray 128,  325 

v.  Nedrow 251 

v .  Newman 109 

v.  N.  Y.  Hospital 272 

v.  N.  Y.  Protectory 135 

v.  Niles 7 

v.  Nino 148,  247 

v.  Noelke 322,  325 

v.  Northey 285 

v.  Northrup 276 

v.  Ogle 23 

v .  Olmstead 337 

v.  O'Neil 273 

v .  O'Sullivan 24,  35 

v.  Overseers 256 

v.  Oyer  &  Term.  Ct.  53,317,320,321 

v.  Pacific  Mail  Co 114 

v.  Palmer 344 

v.  Parish 320 

v.  Parker 14,  15,  154 

v.  Patterson 45 

v.  Paulsell 238,  303 

v.  Peckens 16 

v.  Petmecky 303 

z/.Phillips 78,81 

v.  Plath 301 

v.  Powers 173 

v.  Quanstrom 277 

v.  Ramirez 85 

v.  Rathbun 23 

v.  Ratz 104 

v.  Ribolski   243 

v.  Rickert 122 

v.  Riley 263 

v .  Riordan 248 

v.  Robinson 85 

v.  Rolfe 142 

v.  Ross . . . .' 23 

v.  Ruloff 76 

v.  Ryan 76,  335 

v.  Ryland 263 

v.  Sanders 31 

v.  Sansome 276 

v.  Schenick 325 

v.  Schildwachter 340 

v.Schuyler 292,331 

v.  Scott 20,  21 

v.  Seelye 136 

v.  Sessions 49 

v.  Severance 316 

v.  Sharp, 35.  159.  3U 


PAGE 

People  v.  Shattuck 286 

v.  Shaw 86 

v .  Sheriff 296 

v .  Shulman 44,  49 

v.  Simonsen 75 

v.  Simpson 12,  85,  87 

v.  Skutt 45 

v.  Slack 157 

v.  Sligh 109 

v.  Smith 35,  87,  202 

v.  Snyder 170,  209 

v.  Soto 77 

v.  Spiegel 294 

v.  Stephens 68 

v.  Stevens 76 

v.  Stewart 24 

v .  Stimer 284 

v.  Stone 305 

v.  Stout 169 

v.  Strait 142,  350 

v.  Strassman 241 

v.  Superior  Court 4 

v.  Supervisors 240 

v.  Suppiger 170 

v.  Sweeney 158 

v.  Swetland 194 

v.  Terwilliger 25 

v.  Thayer 83 

v.  Theobald 148 

v.  Thompson 81 

v.  Thomson 20,322 

v.  Tice 298 

v.  Tuczkewitz 149 

w.Tyler 335 

v.  Van  Alstine 276,288 

v.  VanEwan 317 

v.  Velarde 101 

v.  Walker 192 

v.  Waller 170 

V.  Walsh 312 

v.  Ward 80,  248,  347 

v .  Warden 136 

v.  Ware 324 

v.  Webster 321,  323 

v.  Weldon 245,  327 

v.  Wells 305 

v.  Welsh 23 

v.  Wentz 78,84,85 

V.  West 293 

v.  Wheeler 116,  342 

v.  White 159 


TABLE  OF  CASES  CITED. 


lxxiii 


PAGE 

People  v.  VVhitson 28 

v.  Willett 26 

v.  Williams 321 

v.  Wolcott 79 

v.  Wolf 263 

v.  Wong  Ah  Leong 298,  317 

v .  Wong  Ark 10 

v.  Wood 170,  245 

v.  Youngs 148 

v.  Zeyst 113 

Peoples  v.  Evening  News 239 

People's  Saw  Bk.  v.  Wilcox 135,  136 

Peoria,  etc.  R.  Co.  v.  Rice 177 

Percey  v.  Powers 273 

Pergason  v.  Etcherson 313 

Perkins  v.  Brazos .  120 

'  v.  Concord  R.  Co 74 

v.  Hayward 319 

v.  Stevens 273 

v.  Stickney 147 

Perley  v.  Perley 250 

Perrine  v.  Cooley's  Excrs 224 

Perry  v.  Bowman 229 

v.  Dickerson 133 

v.  Lo vejoy 47 

v .  Moore 318 

v.  Mulligan 315 

v .  Simpson,  etc.  Co 59 

Perryman  v.  Lister 27 

Petch  v.  Lyon 71 

Peter  v.  Thickstun 116 

Peters  v.  Canfield 238 

v.  Fogarty 285 

Petersine  v .  Thomas 120 

Petrie  v.  Nuttall 134 

Peugh  v.  Davis 221 

Pfeferle  v.  State 279 

Pfeifer  v.  Nat.  Ins.  Co 231,  236 

Phelps  v.  George's,  etc.  R.  Co 176 

v.  Hunt 196 

v.  James 65 

v.  Nowlen 260 

v.  Prew 295 

v.  Winona,  etc.  R.  Co 38 

Phene's  Trust,  In  re 258,  262 

Phenix  v.  Castner 325 

Phenix  Ins.  Co.  v.  Clark 58 

v.  Pickell 238,  242,  250 

Phil.  R.  Co.  v.  Henrice 28 

Phil.  etc.  R.  Co.  v.  Hickman 152 

v.  Lehman 171 


PAGE 

Philbrook  v.  Eaton 221 

Philips  v.  Bury 119 

Phillips  v.  Allen 255 

v.  Jamieson 131 

v.  McCombs 232 

v.  Thorn 336 

v.  Willow 38 

Phillipps  v.  Middlesex 62 

Philpot  v.  Gruninger 209 

Phinney  v.  Holt 190 

Phipps  v.  M  ahon 243 

Phoenix  Ins.  Co.  v.  Comm 114 

v.  Moog 15 

v .  Ryland 240 

Pick  v.  Strong 133 

Pickard  v.  Bailey 146 

v.  Sears 264, 379 

Pickens  v.  Davis 99 

Pickens'  Estate 104,  107 

Pickering  v.  Noy es 293 

v.  Reynolds 60 

Pickert  v.  Hair 68 

Picton's  Case 145 

Pier  v.  Duff 62,  69 

Pierce  v.  Indseth  146,  169 

v.  U.S 78 

Pierce's  Admr.  v.  Pierce 26 

Piercy  v.  Sabine 129 

Piers  v.  Piers 155 

Pierson  v.  People 21,  35,  293 

Pigot's  Case 215 

Pigott  v.  O'Halloran 220 

Pike  v.  Chicago 143 

v.  Fay 36 

Pirn  v.  Currell 103 

Pinkham  v.  Benton 343 

v.  Cockell 152 

Pinney  v.  Andrus 342 

v.  Cahill 116 

v.  Jones 9 

Piollet  v.  Simmers 38 

Pipe  v.  Fulcher 103 

Piper  v.  Chappell 166 

Pironi  v.  Corrigan 254 

Pitcher  v.  Clark 312 

Pitner  v.  State 273 

Pittman  v.  State 109,  347 

Pitts  v.  Lewis 170 

v.  State 352 

v.  Wilder 61 

Pittsburgh,  etc.  R.  Co.  v.  McGrath. .  m 


lxxiv 


TABLE  OF  CASES  CITED. 


PAGE 

Pittsf ord  v .  Chittenden 255 

Place  v.  Gould 24 

v.  Minster 16 

Plainrield  v.  Watson 251 

Plank  v.  Grimm 176 

Plate  v.  N.  Y.  C.  R.  Co 129 

Platner  v.  Platner 57,  3'5 

Piatt  v.  .(Etna  Ins.  Co 222 

v.  Grover 261 

Plaxton  v.  Dare 103 

Playf ord  v.  Hutchinson 37 

Pleasants  v.  Fant 66 

Plumb  v.  Curtis 5 

Plume  v.  Howard  Saw  Bk 119 

Plumer  v.  Briscoe 184 

Plummer  v.  State 247,  248 

Plunkett  v.  Cobbett 283 

Plyer  v.  German  Amer.  Ins.  Co 328 

Pocock  v.  Billing 64 

Poertner  v.  Poertner 239 

Poignand  v.  Smith 191 

Pollard  v.  Vinton 269 

Pollock  v.  Hoag 281 

v.  Pollock 329 

Pomeroy  v.  Benton 263 

Pontius  v.  People 19,  28 

Poole  v.  Warren 184 

Pope  v.  Ellis 58 

Poppleton  v.  Nelson 240 

Porter  v.  Bergen 254 

v.  Judson  91 

v.  Leache 129 

v.  Waring 163,  170 

v.  Wilson 182 

Porter/field  v.  Comm 238,  245 

Portland  v.  Richardson 132 

Portland,  etc.  R.  Co.  v.  Deering 143 

Post  v.  State 292 

v.  Supervisors 206,  207 

Post  Pub'g  Co.  v.  Hallam 45,  162 

Postlethwaite,  In  re 288 

Potter  v.  Adams 188,  214 

v.  Baldwin 49 

v.  Deyo 252 

v.  Nat.  Bk 271 

v.  Waite 60 

v.  Ware 282 

Powell,  Ex  parte 19,  166 

Powell  v.  Pearlstine 345 

v.  State 116 

Powers  v.  Chelsea  Sav.  Bk 122 


PAGE 

Powers  v.  McKenzie 154 

v.  Savin 94 

v.  Silsby 101 

Pratt  v.  Andrews 160 

v.  White..  92,  93 

Pray  v.  Hegeman 120 

Prelford's  Appeal 296 

Prentis  v.  Bates 33,  141 ,  246,  247 

Pressley  v.  State 80 

Preston  v.  Evans 200 

Preston's  Case 46 

Prevot  v.  Lawrence 266 

Prices.  McGoldrick 54 

v.  Schaeffler 139 

v.  State 84 

v.  Torrington 92,93,364 

Priest  v.  Groton 148 

Primmer  v.  Primmer 16 

Prince  v.  Skillin 165 

v.  State 248 

Prindle  v.  Glover 29 

Prine  v.  State 20 

Pringle  v.  Leverich 67 

v.  Pringle 209,  316 

v.  Woodworth 140 

Pritt  v.  Fairclough 94 

Probate  Court  v.  May 211 

Proctor  v.  Old  Colony  R.  Co 25,  73 

Providence  Tool  Co.f.  U.S.  Mf'gCo.  176 

Prudden  z^Nestor 218 

Prudential  Assur.  Co.  v.  Edmonds. .  258 

Pugh  v.  McRae 72 

Pulaski  Iron  Co.  v.  Palmer 240 

Pullen  v.  Hutchinson 186 

v.  Pullen 324 

Pulliam  v.  Pensoneau 281 

v.  State 21 

Pulsifer  v.  Berry 150 

Puryear  v.  Comm 87 

Putnam  v.  Bond 231 

v.  Clark 123,216 

v.  Fisher 86 

v.  Sullivan 264 

w.Tyler 264 

v.  U.S 330,344 

Pylez>.  Pyle 148 

Pym  v.  Campbell 226 

Pynchon  v.  Day 193,  294 

Queen  v.  Halbert 272 

Queen's  Case 333,  355 


TABLE  OF  CASES  CITED. 


lxxv 


PAGE 

Queen  Caroline's  Case 387 

Queen's  Proctor  v.  Fry 113 

Quertermous  v.  Taylor 305 

Quick  v.  Glass 228 

v.  Quick 101 

Quidort  v.  Pergeaux 119 

Quigley  v .  De  Haas 223 

^.Turner 273 

Quin  v.  Lloyd 316 

Quincey  v.  White .    28 

Quincy  Horse  R.  Co.  v.  Gnuse 332 

Quinlanz1.  Utica 38 

Quinley  v.  Atkins 193 

Quinnz>.  Halbert no 

v.  N.  Y.  etc.  R.  Co.. 145 

v.  Quinn 123 

Quinsigamond  Bk.  v.  Hobbs 335 

Radcliff  v.  United  Ins.  Co 112 

Radcliffe  v.  Fursman 291 

Rae  v.  Beach 70 

Rahm  v.  Deeg 242 

Railing  v.  Comm 90 

Railroad  Co.  v.  Bank  of  Ashland 163 

v.  Cunnington 114 

v.  Nat.  Bk 126, 132 

Railroad  Equipment  Co.  v.  Blair 118 

Railway  Co.  v.  Cronin 194 

v.  Dobbins 177 

v.  Gardner 143 

v.  Manchester  Mills 50 

Rainwater  v.  Hummel 58 

Ralphs  v.  Hensler 166 

Rand  v.  Dodge 185 

Randall  v.  Lynch 183 

Randegger  v.  Ehrhardt 63 

Randlett  v.  Rice 1 241 

Randolph  v.  Bloomfield 34 

Rangley  v.  Wadsworth 318 

Rankin  v.  Blackwell 52 

Ransom  v.  Wheeler 202 

Raridan  v.  Cent.  Iowa  R.  Co 58 

Rawley  v.  Brown 262 

v .  Doe 184 

Rawson  v.  Haigh 26 

Rayburn  v.  Mason  Lumber  Co 183 

Raynes  v.  Bennett 30 

Razor  v.  Razor 58 

Rea  v.  Harrington 175 

v .  Tucker 278 

v.  Wood 315 


PAGE 

Read  v .  Bishop  of  Lincoln 114 

Readman  v,  Conway 58 

Reagan  v.  U.  S 276 

Real  v.  People 323 

Rearden  v.  M inter 184 

Rector  v.  Comm 80 

Redd  v.  State 341 

Reddington  v.  Gilman 191 

Redlich  v.  Bauerlee 93 

Reed  v.  Haskins 24 

v.  Ins.  Co 229 

v.  Spaulding 338 

v.  Wilson 163 

Reedy  v.  Nullizen 258 

Reese  v.  Hershey 50 

v.  Reese 152 

Reeve  v.  Wood 277 

Reffell  v.  Reffell 220 

Reformed  Dutch  Church  v.  Brown. .  125 

Regan  v.  Dickinson 46 

Reich  v.  Cochran 121 

Reichenbach  v.  Ruddach 33 

Reinhart  v.  Lugo 174 

Reiss  v .  Hanchett 264 

Reitz  v.  State 32 

Remington  Co.  v.  O'Dougherty 209 

Remsen  v.  People 7,  158 

Rendall  v.  School  Dist 126 

Renihan  v.  Dennin 293 

Reno  v.  Kingsbury  279 

Rensens  v.  Lawson 211 

v.  Staples 211 

Ressequie  v.  Byers 125 

Revoir  v.  State 247 

R.f.  354 

v.  Adamson 236 

v .  All  Saints,  Worcester 298 

v.  Baker 364 

v.  Baldry 77.  363 

v.  Barnard 29 

v.  Bathwick 298 

v.  Baylis 274 

v.  Bedingfield 12 

v.  Bembridge xxii 

v.  Blake 16 

v.  Bliss 103 

v .  Boswell 81 

v .  Boyes 297 

v.  Brittleton 401 

v.  Brown 336 

v.  Butler 245 


l.xxvi 


TABLE  OF  CASES  CITED. 


I'AGE 

R.  v .  Canning 53 

v.  Carter 43 

v.  Castleton 191 

V.  Cheadle 236,  378 

v.  Chidley  &  Cummins 83 

v.  Clapham 94 

v.  Clarke 338 

v.  Clewes 21,  82 

v.  Cliviger 298 

v.  Cockcroft 339 

v.  Cole 35 

v.  Cooper 44 

v.  Cox  &  Railton 288,382 

v.  Cresswell 261 

v.  Davis 43 

v.  Donellan 29 

v.  Doolin 316 

v.  Dove 149 

v.  Drage 43 

v.  Drummond 340 

v.  Dunn 43 

v.  Edmunds 25 

v.  Eriswell 108 

v.  Exeter 95,  99 

v.  Fennell 78 

v.  Flannagan 52 

v.  Forster 43 

v.  Foster 13 

v.  Fowkes 11,12 

v.  Francis 44 

v.  Francklin 112 

V.  Garbett 83,298 

v.  Garner 52 

v .  Gazard 281 

v .  Geering  52 

v.  Gibson 350 

v.  Gilham 81 

v.  Gordon 217 

v.  Gould 82 

v.  Gray 51,  358 

v.  Griffin 384 

v.  Halliday 298 

v.  Harborne 257 

v.  Hardy 16,  283 

v.  Harringworth 183,  371 

v.  Hartington  Middle  Quarter.  123 

v.  Haworth 187, 188 

v.  Hey  ford 98,  99 

v.  Hill 275 

v.  Hind 90 

v.  Hogg 108 


PAGE 

R.  v.  Holmes 338,  339 

v.  Holt 44 

v.  Home  Tooke 153 

v.  Hull 227 

v.  Hunt 190 

v.  Hutchins 123 

v .  Hutchinson 90 

v.  Jarvis 77,  252 

v.  Jenkins 89 

v.  Lillyman 24,25,  27 

v.  Llanfaethly 193 

v.  Lloyd 82 

v.  Lord  George  Gordon 29 

v.  Lord  Thanet 381 

v.  Luffe 256 

v.  Lumley 257 

v.  Mainwaring 155 

v.  Mallory 73 

v.  Mansfield 257 

v.  Martin 339 

v.  Mead 90 

v.  Moore 82 

v.  Mosley 89 

v.  Neill  (or  Cream) 52 

v.  Oddy.  .   43 

v.  Orton 115,  322 

v.  Owen 83,  404 

v.  Palmer 22,  47,  148,  151 

V.  Parbhudas 353 

v.  Patch 22 

v.  Paul 83,  404,  405,  406 

v.  Payne 275 

v.  Pike 340 

v.  Reeve 77 

v.  Richardson 52,  283 

v.  Riley 339 

v.  Robinson 83 

v.  Rowton 159,  369 

v.  Scaife 108,346 

v.  Scott 83,  299 

v.  Shurmer 347 

v.  Sparkes 383 

v.  Stanley 51 

v.  Stephenson 346 

v.  Stone 252 

v.  Sutton 112 

z'.Tait 347 

v.  Thompson 77,  275 

v.  Thornhill 174 

v.  Turberfield 159 

v.  Turner 134 


TABLE  OF  CASES  CITED. 


lxxvii 


PAGE 

R.  v .  Twyning 241 

v.  Walker 27,  356 

v.  Warwickshall 82 

v.  Watson 179,  187 

v.  Wealand 405,  406 

v.  Webb 271 

v.  Weeks 43 

v.  Whitehead 316 

v.  Widdop 83 

v.  Willshire 249 

v.  Woodcock 90 

Reynolds,  Ex  parte 297 

Reynolds  v.  Fleming 138 

v.  Hussey 44 

v.  Manning 74,  91 

v.  Robinson 143,  222,  232 

v.  Schaffer 279 

v.  State 240 

v.  Sumner 91 

v.  U.  S 109 

Rhine  v.  Robinson no 

Rhoades,  Lessee  of,  v.  Selin 296 

Rice  v.  Comm 301,  314 

v.  Howard 330 

v.  Rankans 147 

v.  Rice 177. 327.  328 

v.  State 339 

Rich  v.  Flanders 66 

Richard's  Appeal 187,  196 

Richards  v.  State.  75,  285,  314, 317, 329, 341 

Richardson  v.  Eveland 232 

v.  Kelly , 327 

v.  See  vers 136 

Richie  v.  State 339 

Richmond's  Appeal 116,  247 

Richmond,  etc.  R.  Co.  v.  Jones 183 

Rickerson  v.  Hartford  Ins.  Co 176 

Ridden  v.  Thrall 49 

Rief.  Rie 301 

Rigbyz>.  Logan 91 

Rigdon  v.  Conley 317 

Riggs  v.  Powell 152 

v .  Pursell 122 

v.  Tayloe 191 

Riley  v.  Boehm 93 

v.  Morton 239 

v.  Suydam 70 

Rindge  v.  Walker 113 

Rindskopf  v.  Kuder  330 

Ringer  v.  Holtzclaw 222 

Ripley  v.  Burgess.! 167 


PAGE 

Ripon  v.  Bittel 116 

Risley  v.  Phenix  Bk 127,  226 

Ritchie  v.  McMullen 140 

v.  Widdemer 225 

Rizzolo  v.  Comm 80 

Roach  v.  Caldbeck 28 

Roath  v.  Driscoll 260 

Robb  v.  Hackley 338 

Robb's  Appeal 278 

Robb's  Estate 104 

Robbins  v.  Chicago 132 

v.  Robbins 252,  301 

v.  Spencer 62,  324,  335,  336 

v.  State 87 

Robergef.  Burnham 239 

Robert  v.  Good 184 

Roberts  v.  Bonaparte 227 

v.  Buckley 263 

v.  Chittenden 242 

v.  Doxen 189 

v.  Farmers',  etc.  Bk 171 

v.  Johnson 147 

v.  Medbery 62 

v.  N.  Y.  El.  R.  Co 143,144 

v.  Noyes 268 

v.  Spencer 192 

v.  State 20 

Roberts'  Will 26, 145 

Robertson  v.  Bullions 233 

v.  Hay 218 

v.  People 165 

v .  Pickrell 266 

Robins  v.  Warden 66 

Robinson  v.  Adams 246 

v.  Brown 166 

v.  Dewhurst 101 

v.  Exempt  Fire  Co 142 

v.  F.  &W.  R.  Co 51 

v.  Gilman   169 

v.  Mulder 342 

v.  Myers 215 

v.  Phila.  R.  Co 294 

v.  Phoenix  Ins.  Co 218 

v.  Robinson 251 

v.  Shanks 282 

v.  State 27,  78,  263 

v.  U.  S 19,  224,  305 

v.  Yarrow 267 

Robison  v.  State 3°2 

Robnett  v.  People 32 

Roby  v,  Colehour 254 


]  xxviii 


TABLE  OF  CASES  CITE IX 


PAGE 

Roche  v.  Brooklyn,  etc.  R.Co 48 

Rockey's  Estate 154 

Rockford  Gas  Light  Co.  v.  Ernst 34 

Rockland  v.  Farnsworth 58 

Rockwell  v.  Taylor 10,  68 

Rode  v.  Phelps 165 

Roderigasz\  East  River  Sav.Bk.  119,135 

Rodgers  v.  Crook 190 

v.  State 166 

v.  Stophel 5 

Rodman  v.  Mich.  Cent.  R.  Co 122 

Rodriguez  v.  Haynes 213 

Roe  v.  Strong 114,  259 

Roe  d.  West  v.  Davis 179 

Roebke  v.  Andrews 61 

Rogero  v.  Zippel 205 

Rogers  v.  Allen 17 

v.  Anderson 67,  97 

v.  Cady 170 

v.  Greenwood 68 

v.  Gwinn 139 

v.  Ritter 153 

v.  Rogers 270 

v.  State 281 

v.  Wallace 238 

Roland  v.  Pinckney 179 

Romertze  v.  East  River  Bk 333 

Ronan  v.  Dugan 340 

Roodhouse  v.  Christian 131 

Rooks  v.  State 313 

Roosa  v.  Boston  Loan  Co 48 

Roosevelt  v.  Eckard 190 

Root  v.  King 112, 162,  206 

v.  Wright 287,  289 

Roper  v.  State 289 

Ropes  v.  Kemps 198 

Roraback  v.  Pennsylvania  Co 56 

Rose  v.  Chapman 65 

v.  First  Nat.Bk 155 

v.  Hawley 122 

v.  Himely 118 

Rosenbury  v.  Angell 73 

Rosenkrans  v.  Barker 161 

Rosenstein  v.  Fox 240,  250 

Rosenthal  v.  Walker 54 

Ross  v.  Ackerman 51 

v.  Boswell 171 

v.  Doland 264 

v.  Loomis 105 

v.  State 78,  176 

Rosseau  v .  Bleau 289 


PAGE 

Roth  v   Roth...    140 

Rothrock  v.  Gallaher 329 

Rothschild  v.  Amer.  Ins.  Co 239 

Rounsavell  v.  Pease 327 

Rouse  v.  Whited 64 

Rousillon  v.  Rousillon 139 

Ro we  v.  Canney 284 

Rowell  v.  Fuller 154 

Rowland  v.  McCowu 115 

v.  Phila.  etc.  R.  Co 271 

Rowland's  v.  Elgin 38 

Rowley  v.  L.  &  N.  W.  Railway 147 

Royal  v.  Chandler 57, 101 

Royal  Arcanum  v.  Carley 139 

Royal  Ins.  Co.  v.  Noble 299 

Ruch  v.  Rock  Island 109 

Rucker  v.  Reid 313 

v.  State 328 

Ruckman  v.  Cory 62 

v.  Decker 66 

Rudd  t>.  Robinson 114 

v.  Rounds 27 

Ruddell  v.  Fhalor 264 

Rudolph  v.  Landwerlen 131 

Rudy  v .  Comm 248 

Rufer  v.  State 77 

Ruloff's  Case 23 

Rumsey  v.  Lovell 344 

v.  N.  Y.  etc.  R.  Co 165 

v.  N.  Y.  etc.  Telephone  Co 93 

Runner's  Appeal 97 

Runyan  v.  Price 327 

Russell  v.  Cedar  Ins.  Co 150 

v.  Hallett 258 

v.  Hudson  River  R.  Co 56,  341 

v.  McCall 131 

v.  Place 130 

v.  Reed 214 

v.  Walker 183 

Ryall  v .  Hannam 234 

Ryan  v.  Bristol 142,  252 

v.  First  Nat.Bk 218 

v.  Merriam 60 

v.  People 7,  22 

v.  State 75,  350 

v.  Ward 222 

Ryerss  v.  Wheeler 229,  232 

Sabre  v.  Smith 54 

Sage  v.  State no 

Sailor  v.  Hertzogg 17 


TABLE  OF  CASES  CITED. 


PAGE 

St.  Clair  v.  Cox 140 

v.  U. S 319 

St.  John  v.  Amer.  Ins.  Co 186 

St.  Joseph  v.  Union  R.  Co 132 

St.  Louis  v.  Roche 163 

v.  Weitzel . ." 251 

St.  Louis  Ins.  Co.  v.  Cravens 131 

St.  Louis,  etc.  R.  Co.  v.  Clark 37 

v.  Weaver 251 

St.  Luke's  Home  v.  Ass'n  for  Fe- 
males   230,  231 

Salas  v.  State  85 

Sammis  v.  Wightman 164 

Samples  v.  State 15 

Samson  v.  Freedman 58 

Samuel  v.  Borrowscale 198 

v.  People 297,  298 

Sanborn  v.  Neilson 161 

Sanderson  v.  Coleman 267 

v.  Nashua 328 

v.  Peabody 120 

Sandilands,  Re 211 

Sands  v.  Hammell 91 

Sandwich  Co.  v.  Earl 136 

Sandy  White  v.  U.  S 113 

Sanitary  District  v.  Cullerton 284 

Sankey  v.  Cook 154 

Sappenfield  v.  Main  St.  R.  Co 31 

Sargeant  v.  Sargeant 59 

Sargent  v.  Adams 231 

v.  Hampden 287 

v.  Wilson 335 

Saunders  v.  McCarthy 71 

Sauterz'.  N.  Y.  C.  R.  Co 117 

Savage  v.  O'Neil 147 

v .  Stevens 131 

Saveland  v.  Green 180 

Sav.  Bk.  v.  Atchison,  etc.  R.  Co 269 

Sawyer  v.  Child 237 

v.  Hannibal 286 

v.  White 131 

Sayles  v.  Briggs* 118 

Saylor  v.  Coram 89 

Sayres  v.  Coram 21 

Scanlon  v.  Walshe 255,  256 

Schafer  v.  Schafer 281 

Schallz>.  Miller 281 

Scharff  v.  Keener 107,  213 

Schaser  v.  State 318 

Schaub  v.  Griffin 258 

SchelPs  Excrs.  v.  Fauche 261 


PAGE 

Schenck  v.  Mercer  Co.  Ins.  Co 150 

v.  Spring  Lake  Co 221 

Schettler  v.  Jones 93 

Schindel  v.  Gates. .• 67 

Schisby  v.  Westenholz 139 

Schlemmer  v.  State 29 

Schlicht  v.  State 172 

Schlitz  Brewing  Co.  v.  Compton 123 

Schmidt  v.  Durnam 330 

v.  Glade 281 

v.  Milwaukee  R.  Co 303 

v.  N.  Y.  etc.  Ins.  Co 239 

v.  N.  Y.  etc.  R.  Co 285 

v.  Packard 6 

Schmied  v.  Frank 280 

Schmisseur  v.  Beatrie 241,  252 

Schmittler  v.  Simon 226 

Schneider  v.  Haas 314 

Z'.  Hill 37 

Scholfield,  Ex  parte 299 

Scholfield  v.  Earl  of  Londesborough .  266 

School  Dist.  v.  Williams 102 

Schopen  v.  Baldwin 125 

Schrauth  v.  Dry  Dock  Bk 130 

Schroeder  v.  Railroad  Co 177 

Schubkagel  v.  Dierstein 290 

Schuler  v.  Isreal 166 

Schultz  v.  Astley .  268 

v.  Chicago,  etc.  R.  Co 317 

v.  Pacific  Ins.  Co 239 

v.  Third  Ave.  R.  Co 323,  325 

Schuster  v.  State 325 

Schutz  v.  Jordan 54,  242 

Schuyler  Nat.  Bk.  v.  Bullong 344 

Schuylkill  Co.  v.  Copley 273 

Schwan  v.  Kelly 130 

Schwass  v.  Hershey 240 

Schwerdtle  v.  Placer  Co 164 

Scobey  v.  Walker 209 

Scotia,  The 168 

Scott  v.  Donovan 32 

v.  Harris 289 

v.  Hillenberg 255 

v.  Indianapolis  Wagon  Works.  313 

v.  London,  etc.  Docks  Co 250 

v.  McCann 316 

v.  McNeal 119, 135 

v .  Pentz 194 

v.  People 19,  35,  87,  318 

v.  Sampson 160 

v.  Waithman 184 


TABLE  OF  CASES  CITED. 


PAGE 

Scott  v.  Williams 311 

v.  Wood 243 

Scott  Co.  v.  Fluke 95 

Scovill  v.  Baldwin 314 

Scoville  v.  Hannibal,  etc.  R.  Co 108 

Seabury,  In  re 106 

Seal,  In  re 230 

Searcy  v.  Miller 273 

Sears  v.  Terry 136 

v.  Wingate 269 

Sebree  v .  Smith 282 

Seckinger  v.  M  fg.  Co 147 

Secor  v.  Sturgis 121,  124 

Seeley  v.  Engell 316 

Seibold  v.  Rogers 186 

Seither  v.  Phila.  Traction  Co 131 

Seitz  v.  Brewers'  Co 220,  222 

v.  Seitz 280 

Selden  v.  Canal  Co 201 

v.  State 280 

Seliger  v.  Bastian 148 

Seligman  v.  Real  Est.  Trust  Co 294 

v.  Rogers 116 

Selkirk  v.  Cobb 317 

Selma,  etc.  R.  Co.  v.  U.  S 251 

Selover  v.  Bryant 330 

Selz  v.  Presburger 122 

Semon  v.  People 240 

Senger  v.  Senger 229 

Servis  v.  Nelson 181 

Sessions  v.  Trevitt 280 

Seurer  v.  Horst 37 

Sewall  v.  Robbins 56 

v.  Slingluff 223 

Sewell  v.  Gardner 329 

Sewing  Machine  Co.  v.  Dakin 215 

Sexton  v.  Carley 266 

v.  N.  Bridgewater 144 

v.  State 321 

Seybolt  v.  N.  Y.  etc.  R.  Co 238 

Seymour  v.  Cowing 226 

v.  Fellows 145,  148 

Shaber^.  St.  Paul,  etc.  R.  Co 51 

Shackelford  v.  Brown 305 

Shaeffer  v.  State 33 

Shafer  v.  Lacock 243 

v.  Senseman 227 

Shaffnerz>.  Comm 3; 

Shailer  v.  Bumstead 49,61,69 

Sharp  v.  Blankenship 61 

Shartzer  v.  State 339 


PAGE 

Shattuck  v.  Stoneham  R.  Co 143 

Shaw  v.  Broadbent 120 

V.  Emery 335 

v.  Mason 189 

v.  Sun  Prairie  . .'. 40 

v.  Tobias 163 

Shawneetown  v.  Mason 142 

Shea  v.  Glendale  Co 41 

v.  Hudson 143 

Sheaffer  v.  Eakman 61 

Sheen  v.  Bumpstead 46 

Shelburne  Falls  Bk.  v.  Tovvnsley 54 

Shelby  v.  Clagett 142,  321 

Shelbyville  v.  Brant 40 

Sheldon  v.  Benham 91 

v.  Patterson 129 

Shell  v.  State 341 

Shelp  v.  Morrison 193,  194 

Shelton  v.  Tiffin 139 

Shepard  v.  Giddiugs 192 

z/.  Hill 34 

v.  Potter 315 

v.  Wright 140 

Shephard,  In  re 193 

Shepherd  v.  Camden 284 

v.  Moodhe 122 

Shepley  v.  Waterhouse 67 

Sheppard  v.  Yocum 337 

Sheridan  v.  Foley 250 

v.  New  Quay 268 

Sherman  v.  Dilley 137 

v.  People 178 

v.  Sherman 49 

v.  Wilder 49,  221 

Sherwood  v.  Pratt 180 

v.  Sherwood 225 

Shields  v.  Boucher 367 

v.  State 6 

Shifflet  v.  Comm 79 

Shinkle  v.  Crock 152 

Shinners  v.  Proprietors 31 

Shirts  v.  Overjohn 264 

Shirwin  v.  People 339 

Shoe  &  Leather  Ass'n  v.  Bailey 294 

Shoemaker  v.  Benedict 67 

Shoenberger  v.  Hickman 224 

Shore  v.  Wilson 233 

Shores  v.  Hooper 127 

Shorey  v.  Hussey 330 

Short  v.  Lee 365 

v.  Symmes 225 


TABLE  OF  CASES  CITED. 


lxxxi 


PAGE 

Shorten  v.  Judd 32,  104 

Showalter  v.  State 276 

Shown  v.  McMackin 258 

Shrewsbury  Peerage  Case 105 

Shriedley  v.  State 43 

Shriver  v.  State 258,  262 

Shroyer  v.  Miller 161 

Shufflin  v.  People 7 

Shuman  v.  Hurd 257 

v.  Shuman 256,  257 

Shurtleff  v.  Willard 316 

Shuttle  v.  Thompson  101 

Siberry  v.  State 28,  238 

Sibley  v.  Waffle 290 

Sickraz'.  Small  161,162 

Sidekum  v.  Washburn,  etc.  R.  Co...    39 

Siebert  v.  People 303 

Silvers  v.  Potter 221 

Simanovich  v.  Wood 221 

Simes  v.  Rockwell 263 

Simmons  v.  Atkinson 218,  266 

v.  Haas 57 

v.  Haven 182 

v.  Holster 179 

v.  Rudall 217 

v.  Saul 140 

Simmons  Creek  Coal  Co.  v.  Doran. .  240 

Simon  Gregory  Co.  v.  McMahon 314 

Simons  v.  People 87,  325 

Simpson  v.  Dall 188 

v.  Dix 60,  64 

v.  Smith 175 

v.  Westenberger 160 

Simrell's  Estate 217 

Sims  v.  Sims 273 

Sinclair  v.  Baggallay 210 

v.  Learned 261 

v.  Murphy 268 

Singer  Mfg.  Co.  v.  King 268 

Sioux  City,  etc.  R.  Co.  v.  First  Nat. 

Bk 269 

Sisson  v.  Pearson 216 

Sitler  v.  Gehr  94,  105,  107 

Sivers  v.  Sivers 222 

Skaggs  v.  State  272 

Skilbeck  v.  Garbett 54 

Skinner  v.  Harrison  T'p 231 

Skipworth  v.  Deyell 90,  93 

Slade  v.  Tucker 290 

Slane  Peerage  Case 197 

Slatterie  v.  Pooley 178 


PAGE 

Slaughter  v.  Bernards 146 

Sleeper  v.  Abbott 287 

v .  Van  Middlesworth 336 

Slingerland  v.  Bennett 46 

v.  Norton : 74 

v .  Slingerland no 

Slingsby  v.  Grainger 234 

Slipp  v   Hartley 66 

Sloan  v.  Edwards 324,  328,  335,  337 

v.  N.  Y.  C.  R.  Co 328 

Slocovich  v.  Orient  Ins.  Co 147,  240 

Slocumb  v.  Railroad  Co 264 

Small  v.  Coram » 87 

v.  Mitchell 122 

Smalley  v.  Appleton 142 

Smith,  In  re    312 

Smith  v.  Aldrich 71 

v.  Blakey . .    94,  95 

v.  Boyer 63 

v.  Briscoe 330 

v.  Burrus 239 

v.  Carolin 183 

v.  Chapin 118 

v.  Clausmeier 136 

v.  Collins 66 

v.  Coram 79,  80, 276 

v.  Easton 180 

v.  Ehanert 329 

v.  Ewing 305 

v.  Floyd 19 

v.  Forrest 101,103 

v.  Frankfield 137 

v.  Grady 140 

v.  Law 92,  94 

v.  Livingston 244 

v.  Long 290 

v.  Mason 147 

v.  Mayfield 222 

v.  McCool 122 

v.  McGlinchy 271 

v.  McGowan 215 

v.  McNeal 121 

v .  Morgan 64 

v.  Mussetter 222 

v.  Nat.  Benefit  Society 47 

v.  N.  Y.  C.R.  Co 185 

v.  Porter 209 

v.  Profitt 317 

v .  Putnam 61 

v.  Rentz 92.  344 

v.  Sac  Co 244 


1  x  x  x  i  i 


TABLE  OF   CASES  CITED. 


PAGE 

Smith  v.  Satterlec 74 

t.  Schreiner 137 

v.  Smith 92,  234 

v.  State  321 

v.  U.  S 20,  215 

V.  Utesch 329 

v .  Whippingham 71 

v.  Wildman 136 

v.  Wilson 232 

v.  Yaryan 340 

Smith,  Will  of 247 

Smyth  v.  Bangor 66 

v.  Caswell 154 

Snell,  In  re 123 

Snell  v.  Bray 22 

Snelling,  Will  of 270,  323 

Snider  v.  Burks 154,  181 

Snow  v.  Alley 221 

v.  B.&M.R.Co 144 

v.  Gould 289 

Snowden  v.  U.  S 25 

Snyder  v.  Coram 159 

v.  McKeever 152 

v.  Wise 202,  203 

Solomon  v.  Kirkwood 15 

Solomon  R.  Co.  v.  Jones no 

Somerset  Co.  Ins.  Co.  v.  Usaw 239 

Somerville,  etc.  R.  Co.  v.  Doughty..  318 

Soper  v.  Buffalo,  etc.  R.  Co 65 

Sopherstein  v.  Bertels 251 

Souder  v.  Schechterly 63 

South  Bend  v.  Hardy 321 

South  Mo.  Co.  v.  Jeffries 171 

Southard  v.  Curley 240 

Southern  Development  Co.  v.  Silva.  305 
Southern  Kansas  R.  Co.  v.  Painter..  333 

V.  Robbins 50 

Southern  Pac.  R.  Co.  v.  Painter 164 

v.  U.  S  129 

Southern  Ry.  News  Co.  v.  Russell...  297 

South waik  Bk.  v.  Coram 207 

South  worth  v.  Adams 99 

Soutier  v.  Kellerman 232 

Spalding  v.  Hedges 114,117 

v.  Lowe 281 

Spangler  v.  Jacoby 112 

Sparf  v.  U.S 15,  75,  76,  78 

Spargo  v.  Brown 362 

Sparks  v.  Sparks 289 

Spatz  v.  Lyons 56 

Spaulding  v.  Hallenbeck 60 


PAGE 

Spaulding  v.  Vincent 146,  198 

Spears  v.  State 79 

Specht  v.  Howard 317 

Spencer  v.  Citizens'  Ins.  Co 250 

v.  Dearth 11S 

v.  Metropolitan  R.  Co 143 

Sperry  v.  Moore's  Estate 316 

Spiegel  v.  Hays 325 

Spies  v.  Illinois 298 

v.  People ' 22,  325 

Spitley  v.  Frost 122 

Spitz's  Appeal 279 

Spohn  v.  Mo.  Pac.  R.  Co 327 

Spratt  v.  Spratt 30 

Spring  Co.  v.  Edgar 144 

Spring  Garden  Ins.  Co.  v.  Evans 344 

Spring  Run  Co.  v.  Tosier 122 

Springer  v.  Bien 122 

v.  Shavender 119 

Springfield  v.  Dalby 318 

Springfield,  etc.  R.  Co.  v.  Welsch. . .  8 

Squire  v .  State 241 

Stacy  v.  Graham 332 

Stafford  v.  Morning  Journal  Ass'n.. .  161 

Stahelin  v.  Lowle 222 

Stalker  v.  State 43 

Stallings  v.  Gottschalk 93 

v.  Hullum 290 

v.  State 46 

Stamp  v.  Franklin 131 

Stanbro  v.  Hopkins 273 

Stanley  v.  Montgomery 280 

Stanton  v.  Crosby 139 

Stanwood  v.  McLellau 343 

Stape  v.  People 336,  337 

Stapleton  v.  King 284 

Staring  v.  Bowen 213 

Starkey  v.  People 89 

Starks  v.  People 336,338 

Starkweather  v.  Martin 211 

Staser  v.  Hogan 325 

State  v.  Able 109 

v.  Adams 328 

v.  Adamson 28 

v.  Ahern 2^1 

^.  Albert 76 

v.  Alexander 248 

v.  Alexis 323 

v.  Anderson 78 

v.  Archer 337 

v.  Arnold 15,  165 


TABLE  OF  CASES  CITED. 


lxxxiii 


PAGE 

State  v .  Avery 317 

v.  Bacon 321,325 

v.  Baldwin 86,  87,  342 

v.  Bait.  &  P.  R.  Co 251 

v.  Barber 302 

v.  Barrett 167 

v.  Barrows 288 

v.  Bartlett 247 

v.  Bartley 327 

v.  Bayne 44 

v.  Beasley 248 

v.  Beaudet 20,  56 

v.  Bechdel 123 

v.  Belton 274 

v .  Benner 285, 319, 324 

v.  Biggerstaff 12 

v.  Bogue 276 

v.  Bohan 364 

z>.B.&M.R.Co 51 

v.  Boyle 26 

v.  Bradnack 133 

v.  Branch 130 

v.  Brent 325 

v.  Bridgman 298 

v.  Briggs 45,  298 

v.  Brock  man 80 

v.  Brooks 85,  174 

v.  Brown 12,  80,  286,  339 

v.  Buffington . , 280 

v.  Burks 329 

v.  Burroughs 6 

v.  Byrne 25 

z>.Cady 338 

v.  Callegari 333 

v.  Campbell .■ 339 

v.  Carroll 24,  286 

v.  Chambers 86,  277 

v.  Cherry 337 

v.  Chiagk 276,  307 

v.  Christian 335 

v.  Clare 174 

v.  Cleary 327 

v .  Clements 248 

v.  Clifford 68,84 

v.  Clothier 197 

v.  Coffee 84,286 

v.  Cole 20 

v .  Comeau 1 285 

v.  Connelly 301 

v.  Conway 248 

v.  Coek 24 


PAGE 

State  v.  Cooper 156,  284 

v.  Costello 272 

v.  Crab 15 

v.  Craine 88 

v.  Credle 190 

v.  Cunningham 170 

v.  Damery 316 

v.  Dana 302 

v.  Danforth 32 

v.  Davis 77, 193,  285,  294 

v.  Day 20,  336 

v .  Dayton 308 

v.  Denny 165 

v.  Desforges 338 

v.  Desroches 12 

v.  Deuble 12 

v.  Dickerson 326 

v.  Dickinson 87, 90 

v.  Dickson 21,  142 

v.  Donahoe 248 

v.  Donelly 274,302 

v.  Douglas 272 

v.  Downs 20 

v.  Doyle 272 

v.  Driscoll 10 

v.  Duffy 281,320,339 

v.  Duncan 12 

v.  Dunwell 169 

v.  Dusenberry 301 

v.  Earnest 263 

v.  Eddings 84 

v.  Elliott 20,  88,  109,  341,  347 

v.  Elwood 325 

v.  Emery 251 

v.  Evans 20,  87 

v.  Falk 313 

v.  Farlee 174 

v.  Farrington 152 

v.  Fay 297 

v.  Feltes 85 

v.  Findley  ..    189 

v.  Fitzgerald. 47, 109, 116,288,314,347 

v.  Fitzsimon 339 

v.  Flanders 16 

v.  Fletcher 157 

v.  Flint 34,  46.338 

v.  Fontenot 338 

v.  Foot  You 86 

v.  Forshner 339 

v .  Fortner 78 

V.  Foster 252 


Ixxxiv 


TABLE  OF  CASES  CITED. 


PAGE 

State  v .  Fournier 47,  335 

V.  Fraunburg 88 

v.  Freeman 248 

v.  Fry 20 

v.  Fuller 263 

v.  Furney 87 

v.  Gedicke 48 

v.  Gee 56 

v,  George 109, 1 10,  347 

f.Gesell 313.335 

v.  Gilman 84,85 

v.  Glahn 21,  83 

v.  Glass 83 

v.  Gleim 134,  321 

v.  Glynn 329 

v.  Goodbier 327,  328 

v.  Good  win 327 

v.  Gorham 78 

v.  Grady 285,286 

v.  Graham 20 

v.  Grant 16,  190,  224 

v.  Graves 298 

v.  Gray 280 

v.  Grear 85,  247 

v .  Griffin 78 

v.  Griswold 6,  154,  294,  298 

v.  Grossheim 301 

v.  Guest 276 

v.  Gurnee 187 

v.  Hack 321 

v.  Halstead 180 

v.  Hamlin 285 

v.  Hansen 248 

v.  Harper..   90 

v.  Harris 10,  171 

v.  Harrison 84,  284 

v.  Harrod 20 

v.  Harvey 152,  248 

v.  Hastings 154 

v.  Hatcher 85 

v.  Hathaway 251 

v.  Hawkins 305 

v.  Hayden 148,  149 

v.  Hays 172 

v.  Hayward 262 

v.  Hedgepeth 289 

v.  Heed 305 

v.  Heidenreich 75 

v.  Hendricks 338 

v.  Henke 258 

v.  Higgins 166,  251 


State  v.  Hobbs 84 

v.  Hocker 165 

v.  Hockett 263 

v.  Hodge 245 

v.  Hodgskins 156 

v.  Hoffman 245 

v .  Hogan 314 

v.  Holden 77,  79 

v,  Hollenbeck 339 

v.  Hopkirk 79 

v.  Horan 10 

v.  Houser 109 

v.  Howard 75,  272 

v.  Howell 158 

v.  Hoxsie 302 

v.  Hoyt 7.  20,  33,  280 

v.  Hughes 156 

v.  Hull 159 

v.  Humbird 211 

v.  Hunsaker 327 

v.  Hutchinson 76 

v.  Intoxicating  Liquors 171 

v.  Ivins 24 

v.  Jackson 23,  248 

v.  Jamison 22,  42 

v.  Jarvis 302 

v.  Jean 305 

v.  Jennings 245 

v.  Johnson. .  15,  87, 172, 285, 315, 335 

v.  Jones 25,  78,  248,  276,  327 

z'.  Juneau 272,  301 

v.  Kaiser 9 

v .  Keefe 158,  329 

v.  Keith 301 

v.  Kelley 42,  49 

v.  Kennade 9 

v.  Kibling 302 

v.  Kidd 288 

v.  Kilgore 88 

v.  Kinder 77 

z;.  Kindle 88 

v.  King 109, 158 

v.  Kinney 24,  167 

v.  Kirkpatrick 336 

v.  Kline 35 

v.  Klinger 148 

v.  Knapp 339 

v.  Knight 331 

v.  Knowles 75 

v.  Koontz 154 

v.  Kuhuke 251 


TABLE  OF  CASES  CITED. 


lxxxv 


PAGE 

State  v.  Lamb 76 

v.  Langf ord 25 

v.  Lapage 49.  159 

v.  Larkin 15 

v.  Larson 335 

v.  Lavin 255,340 

v.  Lawlor 336 

v.  Lawrence 247 

v.  Lee 35,  i59 

v.  Leeper 90 

v.  Lemon 70 

v.  Lentz 19,352 

v.  Levy .  272 

v.  Lewis 248 

v.  Litchfield 297 

v.  Lockerby 301 

v.  Lodge 341 

v.  Loehr 273 

v.  Loughlin 197 

v.  Lynde 197 

v.  Mace 86 

v.  Ma  Foo 263 

v.  Magoon 238 

v.  Main 173 

v.  Me.  Cent.  R.  Co 172 

v.  Maney , 302 

v.  Markins 45 

v.  Marshall 104 

v.  Martin 12,  303,  323 

v.  Mathers 6 

v.  Mathews 218,  334 

v.  Matthews 83 

v.  M  ay  berry 194 

v.  Mazon 308 

v.  McAllister 163 

v.  McCaffrey 350 

v.  McCaskey 301 

v.  McClain 104 

v.  McCord 277 

v.  McDonald 52,  120 

v.  McDonnell 75 

v.  McDowell 256 

v.  McGee 15 

v.  McGlothlen 301 

v.  McGonigle 215 

v.  McGuire 325 

v.  McKean 302 

v.  McLaughlin 327 

v.  Mewherter 288 

v.  Meyers 25,  77 

v.  Michael 274 


PAGE 

State  v.  Miller 83,  276,  342 

v.  Minnick 169 

v.  Minor 276,  325 

v.  Minton 15 

v.  Mitchell 25 

v.  Mobile,  etc.  R.  Co 136,  137 

v.  M  oran 79,  286 

v.  Morgan 79.  85,313 

v.  Morris 117,  171,  174 

v.  Mortimer 80 

v.  Mosley 134 

v.  Mullen 273 

v.  Mullins 26 

v.  Murphy 12,49,315,321 

v.  Musick 238,  263 

v.  Myers 77,  167,  168 

v.  Nelson 87,  159,  337 

v.  Nichols 298,  301 

v,  Nixon 247 

v.  Nocton 22,  87 

v.  Nowell 297 

v.  Nugent 35 

v .  Nulty 251 

v.  Ober 298 

v.  O'Brien 109,  325 

v.  Pain 275 

v.  Palmer 19,  22 

v.  Parker 336 

v.  Patterson 79,  88,  89,  263,  302 

v.  Peck 212 

v.  Pennington 170,  276 

v.  Pfeff erle 321 ,  325 

v.  Phair 91 

v.  Phelps 84 

v.  Pike . .  284 

v.  Plym 249,  262 

v.  Pomeroy 6,  12,  294 

v.  Porter 261,  338 

v .  Potter 45,  79,  261 

v.  Potts 335.336 

v.  Powers 170 

v.  Pratt 276,323 

v .  Probasco 325 

v.  Railroad  Co 37 

v.  Rainsbarger 142 

v.  Randolph 273,  335 

v.  Raymond 51 

v.  Reader 170 

v.  Reed 21,25,  88,  329 

v.  Reid 25 

v ,  Resells 80 


lxxxvi 


TABLE  OF  CASES  CITED. 


PAGE 

State  v.  Richart 245 

v.  Robinson 149 

v.  Rodman 158,  314 

v.  Rogers 26,85,335 

v.  Rome 4 

v.  Roswell 156 

V.  Rounds 238 

v.  Row 225,  321 

z>.-Rush 284,  335 

v.  Sauer 274,325 

v.  Saunders 317 

v.  Schmitt 12 

v.  Schweitzer 247,  248 

v.  Scott 20 

v.  Seibert 168 

v.  Senn  84 

v.  Severson 240 

v .  Shaffer 341 

v.  Shee 263 

v.  Sherwood 156 

v.  Simmons  Co 297 

v.  Slack 330 

v.  Smith 32,  238,  276,  301,  317 

v.  Soper 283 

v.  Sorter  330 

v.  Spaulding 197 

v.  Spurling 335 

v.  Squires 84 

v.  Stackhouse 144 

v.  Stair 152 

v.  Staley 80,  84 

v.  Staples 109 

v.  Steeves 331 

v.  Stein 333 

v.  Stephens 76 

v.  Sterrett 151 

v.  Stevens 23,  166 

v.  Stewart 68 

v.  Stice 49 

v.  Stone 248 

v.  Sullivan 88 

v.  Swift 87 

v.  Tall 291 

-      v.  Tally 287 

v.  Tatro 79 

v.  Taylor 53,  84,321 

v.  Thaden 300 

v.  Thomas 286,  298,  313 

v.  Thompson 41,154,170,211 

v.  Tipton 301 

v.  Trout 247 


PAGE 

State  v.  Turner 339 

v.  Ulrich 166 

v.  Vale  Mills 103 

v.  Van  Winkle 281,  297,  302 

v.  Vari 285 

v.  Vaughan 302 

v .  Vickers 330 

v.  Vollander 299 

v.  Wagner 114,169,174 

v.  Walker 75,  81,  276 

v.  Wallis 222 

v.  Ward 

31,  43,  142,  176,  177,  248,  322,  338 

v .  Warford 245 

v.  Waterman 120,281 

v.  Watson 148,  274 

v.  Welch 50,  149,  299 

v.  Weldon 272 

v.  Wells 298,  322 

v.  Wentworth 42,  79,  297 

v.  West 334 

:•.  Westfall 364 

v.  Whelehon 281,  338 

v.  White 291,  339 

v.  Whitfield 338 

v.  VVhitmore 116 

v.  Whitson 89 

v.  Wilkins 25 

v .  Williams 45,  167,  261 

v.  Williamson 142 

v.  Willis 277 

v.  Wilson 166,  299 

v.  Wingo 243,  248 

v.  Winston 80 

v.  Wisdom 84 

v.  Witham 28,  83,  298,  318 

v.  Wofford 170 

v.  Wood 86,  284,  285 

v.  Woodson 20 

v.  Woolard 302 

v.  Worthingham 156 

v.  Wright 166,  248,  317 

v.  Wylde 156 

v.  York 81 

v.  Young 45,  84 

v.  Zimmerman 154 

State's  Att'y  v.  Branford..., 174 

Stauffer  v.  Ins.  Ass'n 271 

Staup  v.  Comm . .  276 

Stnyner  v.  Joyce 216,  328 

Stead  v.  Heaton 98 


TABLE  OF  CASES  CITED. 


Ixxxvii 


PAGE 

Steam  Mill  Co.  v.  Water  Power  Co..  156 

Steamboat  Co.  v.  Brockett 8,  70 

Stearns  v.  Doe 188 

v.  Field 147 

v.  Merchants'  Bk 329,  330 

Stebbins  v.  Duncan 181,  188 

Steed  v.  Cruise 296 

Steele  v.  Lord 188 

v.  Pacific,  etc.  R.  Co 40 

v .  Souder 67 

Steen  v.  Bennett 119 

Steffenson  v.  Chicago,  etc.  R.  Co 116 

Stein  v.  Bowman 106,  309 

v .  Swensen 108 

Steinbach  v.  Relief  Ins.  Co 122 

Steinbrunnerf.  Pittsb'h,  etc.  R.  Co..  117 

Steiner  Bros.  v.  Tranum 185 

Stephens  v.  People 148 

v.  Shafer 132 

v.  Vroman 55 

Stepp  v.  Frampton 254 

Stern  v.  People no 

Sternes,  Ex  parte 135 

Stetson  v.  Wolcott 93 

Stevens  v.  Castel 212 

v.  Hughes 122 

v.  Lockwood 124 

v.  Ludlum 264 

v.  McNamara 262 

v.  Miles 188 

v.  Minneapolis 147 

v.  People 24 

v.  State 297 

v.  Taylor 223 

Stevenson  v.  Gunning 337.338 

v.  Hoy 191 

v.  Kaiser 104 

v.  Superior  Ct 119 

Stewart  v.  Everts 40 

v.  First  Nat.  Bk no 

v.  Keteltas 223 

v.  Nashville 252 

v.  Smith 340 

v.  Stone 245 

v.  Wells 60 

Stewart,  Matter  of 258 

Stichter  v.  Tillinghast 294 

Stier  v.  Oskaloosa 163 

Stiles  v.  Allen 315 

Stillwell  V.  Patton 216 

Stillwell,  etc.  Co.  v.  Phelps 147 


PAGE 

Stilwell  v .  Carpenter 305 

Stimpsonz'.  Brooks 312 

Stirling  v.  Buckingham 195 

Stitt  v.  Huidekopers 344 

Stoate  v.  Stoate 124 

Stobart  v.  Dryden 55 

Stockbridge's  Case 258 

Stockbridge  Iron  Co.  v.  Hudson  Co.  240 

Stockfleth  v.  De  Tastet 74 

Stoddard  v.  Winchester 148 

Stoher  v.  Mo.  Pac.  R.  Co 40 

v .  St.  Louis,  etc.  R.  Co 8 

Stokes  v.  Johnson 317 

v.  Macken 163 

v.  People 20,  326 

f.U.S 154 

Stokoe  v.  St.  Paul,  etc.  R.  Co.  187, 289, 296 

Stolpw.  Blair 338 

Stone  v.  Hawkeye  Ins.  Co 160 

v.  Ins.  Co 36 

v.  Montgomery 282 

v.  Northwestern  Sleigh  Co 327 

v.  St.  Louis  Stamping  Co 120 

v.  Segur 29 

v.  State 79,  84 

Stoner  v.  Devilbiss  .  318 

Stoops  v.  Smith 229 

Storm  v.  U.  S 321 

Storror,  In  re 297 

Stott  v.  Rutherford 266 

Stout  v.  Cook 108 

v.  State 116 

Stovall  v.  Banks 132 

Stover  v.  People 7,  23,  245 

Stowe  v.  Bishop 59 

Stowell  v.  Chamberlain 122 

v.  Eldred 137 

v.  Moore 312 

Strand  v.  Chicago,  etc.  R.  Co 238 

Strauch  v.  Hathaway 240 

Strauss  v.  Meertief 126 

Streeter  v.  Ilsley 266 

Stringer  v.  Gardiner 235,377 

Stringham  v.  St.  Nicholas  Ins.  Co.. .    65 

Strohmw.  N.  Y.  etc.  R.  Co 145 

Strong  v.  State 44 

Strong's  Excrs.  v.  Brewer  152 

Stroud  v.  Tilton 92,  93 

Strough  v.  Wilder 212 

Strout  v.  Packard 16 

Sti  uthers  v.  Phila.  etc.  R.  Co 147 


lxxxviii 


TABLE  OF  CASES  CITED. 


PAGE 

Stumore  v.  Shaw 145 

Stumph  v.  Muller 141 

Sturdy  v.  Jackaway 123 

Sturgis  v.  Work 225,  234 

Sturla  v.  Freccia 56,  113 

Sturm  v.  Atlantic  Ins.  Co 316 

Suburban  Elec.  Co.  v.  Elizabeth 224 

Succession  of  Justus 113 

Sudlow  v.  Warshing 185 

Sugden  v.  St.  Leonards 100,  101 

Sullivan  v.  Baxter 124 

v.  Coram 156 

v.  Eddy 68 

v.  O'Leary 321 

v.  Oregon  R.  Co 10 

v.  Railroad  Co 317 

v.  State 86 

v.  Syracuse 40 

Summerbell  v.  Summerbell 301 

Summers  v.  Hibbard 228 

v.  McKim 344 

Summons  v.  State 109 

Supples  v.  Cannon 281 

Susman  v.  Whyard 221 

Susq.  etc.  R.  Co.  v.  Quick 61 

Sussex  Peerage  Case 99,  342 

Sutton  v.  Bowker 233 

v.  Dameron 122 

v.  Fox 273 

Swadley  v.  Mo.  Pac.  R.  Co 40 

Swails  v.  Cissna 285 

Swaim  v.  Humphreys 291 

Swain  v.  Cheney 93 

v.  Frazier 222 

v.  Seamans 223 

Swampscott  Co.  v.  Rice 54 

Swan  v.  Comm 49 

v.  Housman 278 

v.  N.  B.  Australasian  Co...  266,379 

Swank  v.  St.  Paul  R.  Co 129 

Swanson  v.  French 324 

Swanstrom  v.  Improvement  Co 65 

Swarthout  v.  Ranier 261 

Swartz  v.  Chickering 344 

Sweet  v.  Owens 287 

v.  Sherman 337 

v.  Tuttle 130 

Swenk  v.  People 291 

Swift  v.  Life  Ins.  Co 24,48 

S wink  v.  French 104 

Swinnerton  v.  Columbia  Ins.  Co. .  170, 172 


PAGE 

Swisher  v.  Comm 88 

v.  M alone 340 

Switzer  v.  Knapps 211 

Sydleman  v.  Beckwith 142 

Sykes,  In  re 193 

Sykes  v.  Bonner 125 

Sylvester  v.  State 273 

Sylvis  v.  Sylvis 301 

Taddiken  v.  Cantrell 214 

Taitz>.Hall 176 

Talbot  v.  Hodson 185 

Tallmadge  v.  Press  Pub'g  Co 243 

Tarns  v.  Hitner 181 

Tancrez'.  Reynolds 254 

Tanner  v.  Parshall 64 

Tappan  v.  Kimball 67 

Tarbox  v.  Eastern  Steamboat  Co 243 

v.  State 42 

Tarsney  v.  Turner 330 

Taussig  v.  Schields 246 

Taylor,  In  re 234,  258 

Taylor  v.  Adams 196 

v.  Brown 57 

v.  Chicago,  etc.  R.  Co 91,  343 

v.  Felsing 238 

v.  Foster 289 

v.  Garnett 284 

v.  Gilman 23 

v.  Glaser 211 

v.  Gould 95 

v.  Grand  Trunk  R.  Co 60,  61 

v.  Hess 63 

v.  Larkin 281 

v.  M  aris 229 

v.  Morris 240 

v.  Peck 178 

v .  Pegram 262 

v.  State 75,  274 

v.  Wit  ham 98 

v.  Wright 311 

Taylor  Will  Case 100 

Teachout  v.  People 84 

Teal  v.  Bilby 223 

Tedens  v.  Schumers 338 

Teerpenningf .  Corn  Ex.  Ins.  Co.  141, 175 

Teese  v.  Huntington 335 

Temple  v.  Comm 297 

Tenant  v.  Tenant 205 

Ten  Eyck  v.  Railroad  Co 113 

Tennant  v.  Dudley 74 


TABLE  OF  CASES  CITED. 


lxxxix 


PAGE 

Terre  Haute,  etc.  R.  Co.  v.  Clem 31 

Territory  v.  Big  Knot 73 

v.  Hart 286 

Tessmannz'.  United  Friends 113,  207 

Texas,  etc.  R.  Co.  v.  Raney 337,  338 

Texas  Mex.  Ry.  Co.  v.  Uribe 259 

Thatchers.  Me.  Cent.  R.  Co 41 

Thayer  v.  Boston 234 

v.  Lombard 87 

v.  Providence  Ins.  Co 150 

^.Thayer 45 

Thebaud  v.  Hume 294 

Theisen  v.  Dayton 288 

Thiede  w.  Utah 315 

Thielmann  v.  Burg 168 

Thill's  Sons  v.  Perkins  Lamp  Co 36 

Thoen  v.  Roche 101 

Thomas  v.  Coram 172,  173 

v .  Gage 58 

v.  Hoosier  Co 252 

v.  Hubbell 132 

v.  Le  Baron 185 

v.  Miller 271 

v.  Nelson 190 

v.  Paul 238 

v.  People 119,  263 

v.  Price 94 

v.  Scutt 222 

v.  State  152,  298,  305 

v.  Stigers 172 

Thompson  v.  Blanchard 264 

v.  Bowie 28,  51 

v.  Coram 77,  80 

v.  Engle 293 

v.  German,  etc.  R.  Co 283 

v.  Haskell 168 

v.  Higginbotham 311 

v.  Ish 49,  289,  293 

v.  Massie 215 

v.  Phenix  Ins.  Co 225 

v.  Simpson 264 

v.  State 109 

v.  Stewart 169 

v.  Wertz 327 

v .  Whitman 139 

v.  Woolf 106 

Thompson,  Matter  of 37 

Thomson  v.  Poor 223 

Thomson -Houston  Electric  Co.  v. 

Palmer 189 

Thon  v.  Rochester  R.  Co 282 


PAGE 

Thoreson  v.  Northwestern  Ins.  Co..  239 

Thorn  v.  Weatherly 147 

Thornell  v.  Broctori 231 

Thornton  v.  Britton 108 

Thornton's    Excrs.    v.    Thornton's 

Heirs 33c 

Thorpe  v.  Keokuk  Coal  Co 184 

Thorson  v.  Peterson 171 

Thresher  v.  Stonington  Bk 282 

Thurber  v .  Anderson 53 

Thurman  v.  Cameron 200 

Thurtell  v.  Beaumont 241 

Tierney  v.  Spiva 319 

Tiffany  v.  Coram 243,  248,  263 

Tilden  v.  Streeter 240 

Tillou  v.  Clinton,  etc.  Ins.  Co 216 

Tilson  v.  Terwilliger 62 

Tilton  v.  Amer.  Bible  Soc 231 

v.  Miller 151 

Tilyou  v.  Reynolds /. .  266 

Timlow  v.  P.  &  R.  R.  Co 163 

Tioga  Co.  v.  South  Creek  T'p 256 

Tisdale  v.  Pres.  of  D.  &  H.  Co 59 

Titfordz/.  Knott 152 

Title  Co.  v.  Shallcross 120 

Titus  v.  Ash 335 

Tobin  w.Jones 281 

Todd  v,  Munson 290 

v.  Union  Dime  Inst 211 

v.  Wich  Bros 244 

Toebbe  v.  Williams 217 

Tolbert  v.  Burke 57.  325 

Toledo,  etc.  R.  Co.  v.  Bailey 51 

v.  Williams 324 

Tome  v.  Parkersburgh,  etc.  R.  Co...  155 

Tomlinson  v.  Derby 329 

Tompkins  v.  Gardner  Co 227 

Tompson  v.  Fisher 185 

Toof  v.  Fooley 139 

Toohey  v.  Plummer 328 

Tooker  v .  Gonner 74 

Too vey  v.  Baxter 278 

Topeka  v.  Sherwood 38 

Topliff  v.  Jackson 58 

Toplitz  v.  Hedden 171 

Totten  v.  Bucy 179, 194 

v.  U.S 283 

Towle  v.  Wadsworth 240 

Town  v.  Smith 122 

Townsend  v.  Masterson  Co 68 

v.  Pepperell 95 


xc 


TABLE-  OF  CASES  CITED. 


PAGE 

Tovvnsend  v.  Rackham 212 

Townshend  v.  Howard 217 

Traction  Co.  v.  Bd.  of  Works.  198, 199, 201 

Tracy  v.  Goodwin 132 

Trambly  v.  Ricard 220 

Trammell  v.  Hudmon 95 

Transportation  Co.  v.  Downer 246 

Transportation  Line  v.  Hope 145 

Trasher  v.  Everhart 212 

Trask  v.  People 6 

Travis  v.  Brown , 155 

Trayhern  v.  Colburn 129 

Treadway  v .  S.  C.  etc.  R.  Co 68 

Treadwell  v.  Whittier 250 

Trelawney  v.  Coleman 47 

Trelevert>.  Northern  Pac.  R.  Co 192 

Tremblay  v.  Harnden 38 

Trevor  v.  Wood 180 

Trevorrow  v.  Trevorrow 262 

Triplett  v.  Goff's  Admr 51 

Troeder  v.  Hyams 182 

Trotters.  Maclean 54 

Truesdell  v.  Chumar 65 

Trustees  v.  Bledsoe 343 

v.  Blount 296 

v.  Colegrove 231 

Trustees  of  Canandarqua  Academy 

v.  McKechnie 200,  212 

Trustees  of  Charities  v.  Connolly ...  182 

Tucker  v.  Linger 19 

v.  Seamen's  Aid  Society.. .  231,  233 

v.  Shaw 272 

v.  Woolsey 188 

Tudor  Iron  W^rks  v.  Weber 320 

Tufts  v.  Charlestown 26 

Tunstall  v.  Cobb 154 

Turnbull  v.  Payson 114.  169,  202 

v.  Richardson 3'8 

Turner,  In  re 105,  113 

Turner  v.  Green 181 

z>.  Hardin 62,239 

v.  Newburgh 145 

V.  Roby 136 

v.  Shaw 240 

v.  State 89 

Turner's  Admr.  v.  Patton 169,  172 

Turner's  Estate 289 

Turnpike  Co.  v.  Baily 177 

v.  M'Kean 113 

Turpin  v.  State 20 

Turquand  v.  Knight 290 


PAGE 

Turton  v.  N.  Y.  Recorder  Co 45 

Tuska  v.  O'Brien 126 

Tute».  James 132 

Tuttle  v.  Burgett 220 

Twogood  v.  Mayor 53 

Twomley  v .  C.  P.  N.  R.  Co 14 

Tyler  v.  Fickett 231 

v.  Flanders 104 

v.  Hall 290 

Udderzook's  Case i"7 

Udderzook  v.  Comm 28 

Ufford  v.  Spaulding 146 

Uggla  v.  West  End  R.  Co 250 

Uhl  v.  M  oorhous 190,  224 

Ulinew.  N.  Y.  Cent.  R.  Co 123 

Ulmer  v.  Farnsworth 19 

Ulrich  v .  People 79 

v.  Ulrich 5 

Uniacke  v.  Chicago,  etc.  R.  Co 320 

Union  v.  Plainfield 104 

Union  Bk.  v.  Knapp 91 

Union  Dime  Saw  Inst.  v.  Wilmot.. .  264 

Union  Nat.  Bk.  v.  Underhill 66 

Union  Pac.  R.  Co.  v.  Botsford 177 

v.  0"Brien 319 

U.  S.  v .  Amedy 206 

v.  Angell 109 

v .  Babcock 54,  193 

v .  Bay aud 76 

v.  Boyd 56 

v.  Budd 240 

v.  Corwin 113 

v.  Dickinson 320 

v.  Duff 192 

v.  Duffy  83 

v.  18  Barrels,  etc 318 

v.  Farrington 286 

v.  Griswold 63 

v.  Guiteau 149,  278,  280 

v.  Hall 305 

v.  Hinz 79 

v.  Howell 302 

v.  Hunter 193 

v.  Jackson 171 

v  Johnson 15 

v.  Macomb 109 

v.  Mayer 305 

v .  Moses 283 

v.  Mulholland 97 

v.  Mullaney 155 


TABLE  OF  CASES  CITED. 


xci 


PAGE 

U.  S.  v.  Negro  Charles 2S6 

v.  Nelson 251 

v.  Noelke 54 

v.  Parker 122 

v.  Percheman 201 

v.  Perot 163 

v.  Pocklington 80 

v.  Rauscher 169 

v.  Stone 79,  80 

v.  Thompson 303 

v.  Tilden 193,  294 

».  Trumbull 283 

v .  Van  Sickle 335 

v.  Williams 53 

v.  Wood 305 

U.  S.  Express  Co.  v.  Jenkins 239 

U.  S.  Life  Ins.  Co.  v.  Vocke in 

Unity  v.  Burrage 163 

University  v.  Harrison 258 

Upham  v.  Salem 34 

Upthegrove  v.  State 20 

Upton  v.  Bernstein 100,  182 

Utica  Ins.  Co.  v.  Cadwell 192 

Vadala  v.  Lawes 138 

Vahle  v.  Brackenseik 166,  173 

Vaise  v.  Delaval 284 

Valentine's  Will 99,  100 

Van  Aernam  v.  Van  Aernam 255 

Van  Bokkelen  v.  Berdelle 321 

v.  Taylor 210 

Van  Brunt  v.  Day 222 

Vance  v.  State 313 

Vander  Donct  v.  Thellusson 146 

Vanderpool  v.  Richardson 144 

Vandervoort  v.  Dewey 233 

v .  Smith 169 

Vanderwerken  v.  Glenn 114 

Van  Duyne  v.  Thayre 60 

Vane  v.  Evanston 177 

Van  Gelder  v.  Van  Gelder 59 

Van  Houten  v.  Post 232 

Van  Keuren  v.  Parmelee 66 

Vann  v.  State 20 

Vanneter  v.  Crossman 57 

Van  Nostrand  v.  Moore 230 

Vannoy  v.  Klein 66 

Van  Rensselaer  v,  Jones 181 

v.  Vickery 210 

Van  Sickle  v.  Gibson 104 

Van  Storch  v.  Griffin 161,  202 


PAGE 

Van  Tassel  v.  State 240 

Van  Wie  v.  Loomis 93 

Van  Wycklen  v.  Brooklyn 145 

Yauterz'.  Hultz 160 

Veazie  v.  Forsaith 229 

Veginan  v.  Morse 50 

Veiths  v.  Hagge 242 

Verdelli  v.  Gray's  Harbor  Co 291 

Vicksburg,  etc.  R.  Co.  v.  O'Brien.  . 

9,  10,  56,  343 

v.  Putnam 39,  117 

Vilas  v.  Plattsburgh,  etc.  R.  Co 138 

Viles  v.  Waltham  26 

Village  of  Pt.  Jervis  v.  First  Nat.  Bk.  132 

Vilmar  v.  Schall 93 

Vinton  v.  Peck 154 

Violet  v.  Rose 152 

Vogel  v.  Gruaz 283 

v.  Osborne 58 

Vogt  v.  Cope 117 

Volant  v.  Soyer 295 

Volkmar  v.  Manhattan  R.  Co 243 

Von  Pollnitz  v.  State 12 

Von  Sachs  v.  Kretz 63,  72,  189 

Vooght  v.  Winch 129 

Voorhees,  In  re 217 

Vosburgh  v.  Thayer 92 

Vose  v.  Dolan 218 

Vrooman  v.  Griffiths . .  319 

Wadez'.  Ridley 287 

v.  State 238 

Wadsworth  v.  Sharpsteen 118 

v.  Williams 61 

Wagenseller  v.  Simmers 28 

Wait  v.  Borne 70 

Waite  v.  Coaracy 258 

Wakeman  v.  Bailey 296 

Walbridge  v.  Knipper 108,  no,  m 

Waldele  v.  N.  Y.  C.  R.  Co.. .  8,  10,  12,  87 

Walden  v.  Davison 192 

Waldron  v.  Waldron 174 

Walker  v.  People 247 

v.  Phcenix  Ins.  Co ...  337,338 

v.  Robinson 263 

v.  Walker 213 

v.  Wilsher 74 

Wall  v.  Wall 136 

Wallace  v.  Central  Vt.  R.  Co 49 

v .  Harmstad 214 

v.  People 350 


TABLE  OF  CASES  CITED. 


PAGE 

Wallace  v.  Schaub M.3 

v.  Story 55 

v.  Taunton  St.  Ry 322 

v.  U.S 176 

v.  Wallace 320 

Wallace's  Case 156 

Wallach  v.  Wylie 329,  341 

Waller  v.  Graves 4 

v.  Stewart 344 

WallisD  Littell 226 

v .  Luhring 262 

v.  Randall 67 

v.  White 335 

Wallize  v.  Wallize 233 

Walls  v.  Bailey 224 

Walrath  v.  Whittekind 228 

Walsh  v.  Chesapeake,  etc.  R.  Co 126 

v.  People 19.  33 

v.  Porterfield 318 

Walter  v.  Gernant 9 

Walters  v.  State 248 

Walton  v.  Stafford 173 

v.  State 335 

Wandell  v.  Edwards 340 

Ward  v.  Boyce 140 

v.  Dick 45 

v.  Henry 168 

v.  Kilpatrick 176 

v,  Oxford 102 

v.  People 80 

v.  State 299 

Warder  v.  Willyard 214 

Ware  v.  Allen 226 

v.  State 248 

Waring  v.  Smyth 215 

Warner  v.  B.  &  O.  R.  Co 183 

v.  Lockerby 162,  335 

v.  Press  Co 280 

Warren  v.  Carey 69 

v.  Gregg 220 

v.  Spencer  Co 284 

V.  Warren 54 

Washburn  v.  Cuddihy 116 

v.  Milwaukee  R.  Co 37 

Washington  &  Lee  Univ.,  Appeal  of. .  230 

Water  Commrs.  v.  Lansing 200 

Waterman  v.  Chic.  etc.  R.  Co. . .  116,  328 

v.  Whitney 26,  49 

Waters  v.  Bishop 220 

Watkins  :•.  Holman 206 

v.  Pintard 194 


PAGE 

Watkins  v.  Rist 319 

Z'-State 335.336 

Watry  v.  Ferber 339 

Watson,  In  re 136 

Watson  v.  Brewster 104 

v.  Riskamire 317 

v.  Rodwell 174 

v.  Walker 198,  207 

Watt  v.  People 25,  276 

Watts  v.  Owens 255 

Wausau  Boom  Co.  v.  Dunbar 243 

Way  land  v.  Ware 200 

Weaver  v.  Bromley 56 

v.  Leiman 94. 104 

v.  State 248 

Webb  v .  Bird 260 

v.  Buckelew 121 ,  122 

v.  Dye 185 

v.  East 299 

v.  Richardson 107 

v.  State 337 

Webber  v.  Sullivan 247 

Webster  v.  Le  Compte 62,  271 

v.  Mann 341 

Weed  v.  People 35 

Weeks  v.  Lowerre 108 

v.  Need  ham 66 

v.  Smith 165 

v .  Sparke 100,  366 

Wegg  Prosser  v.  Evans 131 

Wehle  v.  Spelman 73 

Weigand  v.  Sichel 183 

Weir  v.  Marley 123 

Weiss  v.  Guerineau 137 

Welch  v.  Abbott 327 

v.  Jugenheimer 241 

Welcome  v.  Batchelder 281 ,  341 

Weldon  v.  Harlem  R.  Co 41 

Wellford  v.  Eakin 181 

Wellington  v.  Jackson 72 

Wells  v.  Company 167 

v .  Jackson  Iron  Co 182 

v.  Kavanagh 70 

v .  Mo.  Pac.  R.  Co 169 

v.  Stevens 135 

Wells'  Admr.  v.  Ayres 93 

Wendlinger  v.  Smith 222 

Werners  State 273 

Wertheim  v.  Continental  R.  Co.  294,  296 

Werts  v.  Spearman 160 

\Vertzz>.  May 337 


TABLE  OF  CASES  CITED. 


PAGE 

Wesner  v.  Stein 57 

West  v.  Druff 34° 

v.  Rassman 233 

v.  St.  Paul  Nat.  Bk 46 

v.  Smith 74 

v.  State 90 

v.  Van  Tuyl 92 

Westbrook  v.  Fulton 194 

v .  People 87 

Westcott  v.  Atlantic  Co 296 

v.  Edmunds 122,  129 

Western  Assurance  Co.  v .  Towle 66 

Western  Mfrs.  Ins.  Co.  v.  Boughton..  334 

Western  Stone  Co.  v.  Whalen 37,  46 

Western  Trans.  Co.  v.  Barber 268 

Western  Union  Tel.  Co.  v.  Hines...  344 

v .  Hopkins 179 

West  Haven  Co.  v.  Redneld 223 

Weston  v.  Eames. . . : 225 

West  Virginia  v.  Cain 104 

Wetherbee  v.  Baker 113 

v.  Fitch 68 

v.  Norris 335 

v.  Winchester 294 

Wetmore  v.  Carryl 217 

Weyerhauser  v.  Dun 218,  268 

Weyman  v.  People  52 

Whalen  v.  Citizens'  Gas  Co 252 

Wharam  v.  Routledge 344 

Wheatly  v.  Baugh 260 

Wheeler  v.  Ruckman 121 

v.  Sweet 132 

v.  Thomas 329 

v.  U.  S 272 

v.  Walker 90 

Whelan  v.  Lynch 116 

Whipple  v.  Barton 254 

v.  Whitman 68 

Whitaker  v.  Hawley 125 

v.  Izod 294 

v.  Jackson 129 

v.  Marsh 108 

v.  Salisbury 330 

Whitcher  v.  McLaughlin 94 

v.  Morey... no 

v.  Shattuck 46 

Whitcomb  v.  Rodman 231 

v.  Whiting 69,  71 

White  v .  Beaman 97 

v.  Beatty 142 

v.  Chouteau 95 


PAGE 

White  v.  Comm 272 

v.  Continental  Nat.  Bk 267 

v.  Graves 7 

v.  Merritt 121 

v.  Miller 65 

v.  Milwaukee  R.  Co 177 

v.  Murtland 161,340 

v.  Old  Dominion  St'p  Co 74 

v.  Ross 254 

v.  State 85,285,  330 

v.  Tolliver 152 

v.  Weatherbee 123 

v.  White 156,  329 

W.Whitney 93 

v.  Wood 181 

White  Co.  v.  Gordon 180 

Whitehead  v.  Kennedy 249 

Whitehouse  v.  Bickford 115 

Whiteley  v.  Equitable  Assur.Soc.  258,  262 

Whitford  v.  Clark  Co 313 

v.  Laidler 226 

Whiting  v.  Burger 129 

Whitlatch  v.  Fidelity,  etc.  Co 238 

Whitlock,  In  re 296 

Whitman  v.  Henneberry 213 

v.  Morey 176,  319,  33°.  333 

v.  Shaw 115.  214 

v.  State 173 

Whitmore  v.  Supr.  Lodge  Knights. . .    51 

Whitney  v.  Leominster 5° 

v .  Marshall 130 

v.  Thacher 116 

Whitney  Arms  Co.  v.  Barlow 240 

Whitney  Works  v.  Moore 54 

Whitonz>.  Albany, etc. Ins. Co.  112,117,206 

v.  Snyder 58,  62,  143 

Whitsett  v.  Chicago,  etc.  R.  Co 50 

Whittaker  v.  Delaware,  etc.  R.  Co. .    37 

Whittlesey  v.  Frantz 119 

Whittuck  v.  Walters 107 

Whitworth  v.  Erie  R.  Co 246 

Whyman  v.  Garth 183,  371 

Wickersham  v.  Johnston 208 

Widdifield  v.  Widdifield 224 

Wiedemann  v.  Walpole 58,  300 

Wiggin  v .  B.  &  A.  R.  Co 61 

v.  Goodrich 226 

Wiggins  v.  Burkham 58,  172 

v .  People 20 

Wiggins  Co.  v.  Ohio,  etc.  R.  Co 122 

Wigginton  v.  Comm 84 


iABLE  OF  CASES  CITED. 


PACK 

Wigglesworth  v.  Dnllison 224,  374 

W'ikoff s  Case 217 

Wilber  v.  Selden . .  no 

Wilberforce  v.  Hearfield 115 

Wilder  v.  Cowles 242 

Wiley  v.  West  Jersey  R.  Co 40 

Wilkerson  v.  Eilers 333 

Wilkie  v.  Collins 241 

Wilkins  v.  Babbershall 328 

Wilkinson  v.  State 115 

Willard  v.  Goodenough 335 

Willett  v.  People 77 

v.  Rich 237,  246 

Willey  v.  Portsmouth 103 

Williams  v.  Bass 211 

v.  Bridges 72 

v.  Brooklyn  Elev.  R.  Co 116 

v.  Comm 84, 304,  3S3 

v.  Conger 154 

v.  Dickenson 239 

v.  East  India  Co 241 

v.  Edmunds .• 160 

v.  Edwards 271 

v .  Flood 223 

v.  Floyd 183 

v.  Freeman 220 

v.  Graves 98 

v.  Lewis 71 

v.  Montgomery 284 

v.  Robinson 246 

v.  Sergeant 61,  315 

v.  Spencer 141 

v .  State 80,  85, 154, 177,  298,  317 

v.  Walbridge 271 

v.  Wilkes 169 

v.  Williams 62,  63,  128,  249 

Williamsburgh  Bk.  v.  Solon 216 

Williamson  v.  Cambridge  R.  Co 10 

Willis  z>.  Hulbert 226 

Willoughby  v.  Irish 67 

Willson  v.  Betts 181,  213 

v.  Manhattan  R.  Co 133 

Wilson,  Matter  of 271 

Wilson  v.  Anderton 268 

v.  Babb 255 

v.  Beauchamp '. 154 

v.  Boerem 87 

v.  Bowden 72 

v.  Deen 223 

v.  Doran 58 

v.  Granby 41,  47 


TAGE 

Wilson  v.  Hayes 217 

v.  Hotchkiss'  Estate 216 

v.  Kings  Co . .  317 

v.  New  Bedford 260 

v.  Noonan no 

v.  O'Day 69 

v.  Parshall 240 

v.  Phenix  Mf'gCo 164 

v.  Powers 222 

v.  Randall 219 

v.  Rastall 289 

f.State 84,335 

v.  Sullivan 236 

v .  U.  S 77,  83,  85, 177,  245,  276 

v.  Van  Leer 153,  173 

v.  Waugh 67 

z\  Webber 294 

Wilson's  Excr.  v.  Deen 120,  126 

Wimer  v.  Smith 335 

Winchell  v.  Edwards 263 

v.  Winchell 329 

Winchester,  etc.  R.  Co.  v.  Creary...    62 

Windmill  Co.  v.  Piercy 219 

Wing  v.  Angrave 258 

v.  Bishop 59, 126 

v.  Chesterfield 350 

Winkley  v.  Kaime 234 

Winn  v.  Patterson 186 

Winnipiseogee  Lake  Co.  v.  Young..  170 

Winooski  v.  Gokey 163 

Winship  v.  Conner 258 

Winslow  v.  State 191,  194 

Winsor  v.  R 275 

Wisdom  v.  Reeves 213 

Wise  v.  Ackerman 34 

v.  Phoenix  Ins.  Co 342 

v.  Wynn  104 

Wisemans.  N.  P.  R.  Co 189 

Withee  v.  Rowe 155 

Withington  v.  Warren z8i 

Witmarkw.  N.  Y.  Elev.  R.  Co 37 

Wixson  v.  Devine 129 

Wodock  v.  Robinson 220 

Wohlford  v.  People 116,  176 

Wolf  v.  Comm 80 

Wolfe  v.  Mo.  Pac.  R.  Co 175 

Wolford  v.  Farnham 189,  279 

Womack  v.  Tankersley 156 

Wood  v.  Chetwood 280 

v.  Cullen 189 

v.  Fiske 61 


TABLE  OF  CASES  CITED. 


PAGE 

Wood  v.  Fowler 170 

v.  Hammond 233 

v.  Ins.  Co 171 

v.  Matthews 336 

v.  Morehouse 261 

i'.  State g,  20,  84 

v.  Steele 218 

Woodcock  v.  Houldsworth 54 

v.  Worcester 40 

Woodman  v.  Segar 182 

Woodruff  v.  Woodruff 124 

Woods  v.  Burke 180 

v.  Hilderbrand 214 

v.  Keyes 109 

v.  Montevallo.etc.  Co 46 

v.  People 339 

v.  State 276,299 

Woodstock  Iron  Co.  v.  Reed 184 

Woodward  v.  Goulstone 101 

v.  Leavitt 284 

Woodworth  v.  Mills 161 

Woolfolk  v.  State 85 

Woolsey  v.  Bohn 93 

Woolverton  v.  Van  Syckel 271 

Woonsocket  Inst.  v.  Ballou 67 

Wooster  v.  Broadway,  etc.  R.  Co 51 

v.  Butler 101 

Wootters  v.  Kauff man 305 

Wootton  v .  Redd's  Excrs 228 

Worcester  v.  Northborough 112 

Worcester  Nat.  Bk.  v.  Cheney 170 

Worden  v.  Humeston,  etc.  R.  Co 117 

Worthington  v.  Mencer 272 

v.  Scribner 283 

Wottrich  v.  Freeman 278 

Wren,  Ex  parte 165 

Wright  v.  Abbott 287 

v.  Anderson 120 

v.  Boston 102 

v .  Crawfordsville 50 

v.  Doe  d.  Tatham 27,  143 

v .  Griffey , 121 

v.  Maseras 26,  73 

v.  McCampbell 281 

v.  Nostrand , 19 


PAGE 

Wright  v.  Paige 335 

v.  Towle 65 

v.  U.  S 204 

v.  Wright 7,  262 

Wroe  v.  State 341 

Wrye  v.  State 77 

Wynne  v,  Newman 4 

Xenia  Bk.  v.  Stewart 32,  65 

Yale  v.  Comstock no,  in 

Yarbrough  v.  State 116,  276,  336,  338 

Yates  v.  Fassett 121 

v.  People 36 

Yocum  v.  Smith 265 

Yoho  v.  McGovern 131 

York  v.  Pease 320 

York  Co.  v.  Central  R.  Co 312 

York,  etc.  R.  Co.  v.  Winans 168 

Yost  v.  Conroy 144 

Young  v.  Clare  Hall 365 

v.  Comm 79 

v.  Duvall 240 

v.  Edwards 319 

v.  Grote 265,  379 

v.  Highland 243 

v.  Johnson 160,  339 

v.  Kansas  City,  etc.  R.  Co 101 

v.  Makepeace 32 

v.  Newark  Ins.  Co 176 

v.  Perkins 97 

v.  Sage 108 

v.  State 80,  89 

Youngs  v.  Youngs 297,  298 

Yount  v.  Howell 167 

Zabriskie  v.  State 301 

Zell's  Appeal 266 

Zellerbach  v.  Allenberg 188 

Zimmerman  v.  Barber 221 

v.  Bitner 2^4 

v.  Bloom 95 

v.  Camp 216 

Zitskef.  Goldberg 281 

Zoldoske  v.  State , 52 


LIST  OF  ABBREVIATIONS. 


(ENGLISH   AND   IRISH    REPORTS,  ETC.) 

A.  &  E Adolphus  &  Ellis's  Reports. 

A  C  ) 

'" [  Appeal  Cases. 

App.  Cas ) 

Atk , Atkyn's  Reports. 

"  „       ■' "  {-Barnewall  &  Alderson's  Reports. 

B.  &  Aid > 

B.  &  Ad Barnewall  &  Adolphus's  Reports. 

B.  &  B Broderip  &  Bingham's  Reports. 

B.&C Barnewall  &  Cresswell's  Reports. 

B.&S Best  &  Smith's  Reports. 

Beav Beavan's  Reports. 

Bell Bell's  Crown  Cases. 

Best Best  on  Evidence,  6th  ed. 

Bing Bingham's  Reports. 

Bing.  N.  C Bingham's  New  Cases. 

Bligh,  N.  S Bligh's  House  of  Lords'  Reports,  New  Series. 

B.  &  P Bosanquct  &  Puller's  Reports. 

Br.  P.  C Brown's  Parliamentary  Cases. 

™'  n  '  F'x't  t, r  Buller's  Nisi  Prius. 

Buller,  N.  P I 

Burr Burrows'  Reports. 

C.  A Court  of  Appeal. 

Camp Campbell's  Reports. 

C.  &  F Clark  &  Finnelly's  Reports. 

C.&J Crompton  &  Jervis's  Reports. 

C.  &  K Carrington  &  Kirwan's  Reports. 

C.  &  M Carrington  &  Marshman's  Reports. 

C.  &  P Carrington  &  Paine's  Reports. 

C.  B Common  Bench  Reports. 

C.  B.  (N.  S.) Common  Bench  Reports,  New  Series. 

Ch.  App Chancery  Appeals. 

Ch.D )  „,  p..  .  . 

_,,     _.  J- Chancery  Division. 

Ch.  Div ) 

C.  C.  R Crown  Cases  Reserved. 

C.  M.  &  R Crompton,  Meeson,  &  Roscoe's  Reports. 

Cowp Cowper's  Reports. 

Cox, Cox's  Crown  Cases. 

C.  P Common  Pleas  ;  Common  Pleas  Reports. 

C.P.D >  „  „,        TV  •  ■ 

_  _   _,  [•Common  Picas  Division. 

C.  P.  Div ) 


xcviii  LIST  OF  ABBREVIATIONS. 


D.  &  B Dearsley  &  Bell's  Crown  Cases. 

Dears Dearsley 's  Crown  Cases. 

De  G.  &  J De  Gex  &  Jones's  Reports. 

De  G.  M   &  G De  Gex,  Macnaghten,  &  Gordon's  Reports. 

DeG.  &  S De  Gex  &  Smale's  Reports. 

Den.  C.  C Denison's  Crown  Cases. 

Doug Douglas's  Reports. 

Dru.  &  War Drury  &  Warren's  Reports. 

Ea East's  Reports 

East,  P.  C East's  Pleas  of  the  Crown. 

E.  &  B Ellis  &  Blackburn's  Reports. 

E.  &  E Ellis  &  Ellis's  Reports. 

E.  &  I.  App English  &  Irish  Appeals. 

Esp Espinasse's  Reports. 

Ex Exchequer  Reports. 

Ex'  D I  Exchequer  Division. 

Ex.  Div ) 

F.  &  F Foster  &  Finlason's  Reports. 

Godb Godbolt's  Reports. 

Hale,  P.  C Hale's  Pleas  of  the  Crown. 

Hare Hare's  Reports. 

H.  Bl H.  Biackstone's  Reports. 

H.  L House  of  Lords  Reports. 

H.  &  C Hurlstone  &  Coltman's  Reports. 

H.  &  N Hurlstone  &  Norman's  Reports. 

H.  L.  C House  of  Lords  Cases. 

Ir.  Cir.  Rep Irish  Circuit  Reports. 

Ir.  Eq.  Rep Irish  Equity  Reports. 

Jac.  &  Wal Jacob  &  Walker's  Reports. 

Jebb,  C.  C Jebb's  Criminal  Cases  (Ireland). 

L.  &  C Leigh  &  Cave's  Crown  Cases. 

Leach Leach's  Crown  Cases. 

L.J.Ch Law  Journal,  Chancery. 

L.  J.  Eq Law  Journal,  Equity. 

L.  J.  M.  C Law  Journal,  Magistrates'  Cases. 

L.  J.  N.S Law  Journal,  New  Series. 

L  J  Q  B Law  Journal,  Queen's  Bench. 

L.  R Law  Reports.    (See  Q.  B.,  Q.  B.  D.,  C.  P..  C.  P.  D.. Ex. 

Ex.  D  ,  etc.) 

Madd Maddock's  Reports. 

Man.  &  R Manning  &  Ryland's  Reports. 

McNally,  Ev McNally's  Rules  of  Evidence. 

M.  &  G Manning  &  Granger's  Reports. 

M.  &M Moodj  &  Malkin's  Reports. 


LIST  OF  ABBREVIATIONS. 


M.  &  S Maule  &  Selwyn's  Reports. 

M.  &  W Meeson  &  Welsby's  Reports. 

Moody 

Moo.  C.  C 

M.&R 

Mo.  &Ro 

Moo.  P.  C Moore's  Privy  Council  Reports. 


>  Moody's  Crown  Cases. 

>  Moody  &  Robinson's  Reports. 


P Probate  Court. 

P.  D Probate  Division. 

P.  &  D Probate  &  Divorce. 

Pea Peake's  Reports. 

Ph.  Ev Phillips  on  Evidence,  ioth  ed. 

Phill Phillips'  Reports. 

Q.  B Queen's  Bench;  Queen's  Bench  Reports. 

Q.  B.  D Queen's  Bench  Division. 

Rep Coke"s  Reports. 

R.  N    P Roscoe's  Nisi  Prius,  13th  ed. 

R.  &  R Russell  &  Ryan's  Crown  Cases. 

Roscoe,  Cr.  Ev Roscoe's  Criminal  Evidence. 

Russ.  Cri )„         .,        „  .  .,      , 

^                _  .  >  Russell  on  Crimes,  4th  ed. 

Russ.  on  Crimes ) 

R.  &  M       Russell  &  Mylne's  Reports. 

Ry.  &  Mo Ryan  &  Moody's  Nisi  Prius  Reports. 

Sc.  App Scotch  Appeals. 

Selw.  N   P Selwyn's  Nisi  Prius. 

Sim Simon's  Reports. 

Sim.  (N.  S.) Simon's  Reports,  New  Series. 

Sim.  &  Stu Simon  &  Stuart's  Reports. 

S  L  C  I 

_"   ..',    'J "A"  [-Smith's  Leading  Cases,  7th  ed. 

Smith,  L.  C ) 

Stark Starkie's  Reports. 

Stark.  Ev -Starkie  on  Evidence,  4th  ed. 

S.&T 

Sw.  &Tr 

S.  T,  or  St.  Tri State  Trials. 

Story's  Eq.  Juris Story  on  Equity  Jurisprudence. 


[Swabey  &  Tristram's  Reports. 


T.  E  Taylor  on  Evidence,  6th  ed. 

T.  R Term  Reports. 

Tau Taunton's  Reports. 

Ves Vesey's  Reports. 

Vin.  Abr Viner's  Abridgment. 

Wig.  Ext.  Ev  Wigram  on  Extrinsic  Evidence. 

Wills'  Circ.  Ev Wills  on  Circumstantial  Evidence. 


LIST  OF  ABBREVIATIONS. 


[AMERICAN   REPORTS,   ETC.] 

(The  abbreviations  of  the  names  of  the  several  States,  being  well  understood,  are 
omitted.) 

Abb.  Dec Abbott's  Decisions,  Court  of  Appeals,  N.  Y. 

Abb.  N.  C Abbott's  New  Cases,  N.  Y. 

Abb.  Pr Abbott's  Practice  Reports,  N.  Y. 

Abb.  Pr.  (N.  S.) "  "  "  "     New  Series. 

Alb.  L.  J Albany  Law  Journal,  N.  Y. 

Allen Allen's  Reports,  Mass. 

Am.  Dec American  Decisions  (cases  from  all  States). 

Am.  Law  Reg.  N.  S American  Law  Register,  New  Series. 

Am.  Law  Rev American  Law  Review. 

Anth.  N.  P Anthon's  Nisi  Prius  Reports,  N.  Y. 

App.  D.  C Appeal  Cases,  Court  of  Appeals,  District  of  Columbia. 

App.  Div.  (N.  Y.) Appellate  Division  Reports,  Supreme  Court,  N.  Y. 

Atl.  R Atlantic  Reporter. 

Barb Barbour's  Reports,  Supreme  Court,  N.  Y. 

Barb.  Ch Barbour's  Chancery  Reports,  N.  Y. 

Baxt Baxters  Reports,  Tenn. 

Ben Benedict's  Reports,  U.  S.  District  Court. 

Binn Binney's  Reports,  Pa. 

Bishop,  Cr.  L Bishop  on  Criminal  Law. 

Bishop,  Cr.  Pro Bishop  on  Criminal  Procedure. 

Bishop,  M.  D.  &  S Bishop  on  Marriage,  Divorce,  and  Separation. 

Biss Bissell's  Reports,  U.  S.  Circuit  Court. 

Black, Black's  Reports,  U.  S.  Supreme  Court. 

Blackf .Blackford's  Reports,  Ind. 

Blatch Blatchford's  Reports,  U.  S.  Circuit  Court. 

B.  Mon Ben  Monroe's  Reports,  Ky. 

Bos Bosworth's  Reports,  Superior  Court,  N.  Y. 

Br.  Purd.  Dig Brightly's  Purdon's  Digest  of  Statutes,  Pa. 

Bump's  Fed.  Pro Bump  on  Federal  Procedure. 

Bush, Bush's  Reports,  Ky. 

Cai Caine's  Reports,  N.  Y. 

Cf Confer,  compare. 

Cine Cincinnati  Reports,  Oh  in. 

Connol Connoly's  Reports,  Surrogate  Courts,  N.  Y. 

Cow Cowen's  Reports.  N.  Y. 

Cr Cranch's  Reports,  U.  S.  Supreme  Court. 

Cr.C.C Cranch's  U.  S.  Circuit  Court  Reports. 

Ct.  of  CI Court  of  Claims  Reports,  U.  S. 

Cush Cushing's  Reports,  Mass. 

Daly Daly's  Reports,  Court  of  Common  Pleas.  N.  Y. 

Daniel,  Neg.  Inst Daniel  on  Negotiable  Instruments. 

Deady Deady's  Reports,  U.  S.  Circuit  Court. 

Del.  Ch Delaware  Chancery  Reports. 

Dem Demarest's  Reports,  Surrogate  Courts,  N.  Y. 

Den Denio's  Reports,  N   Y. 


LIST  OF  ABBREVIATIONS. 


Dill Dillon's  Reports,  U.  S.  Circuit  Court. 

Disney Disney's  Reports,  Superior  Court,  Ohio. 

Duer, Duer's  Reports,  Superior  Court,  N.  Y. 

E.  D.  Sm E.  D.  Smith's  Reports,  Court  of  Common  Pleas,  N.  Y. 

Edm.  Sel.  Cas Edmond's  Select  Cases,  N.  Y. 

Edw.  Ch Edwards'  Chancery  Reports,  N.  Y. 

F.  R Federal  Reporter,  U.  S.  Circuit  and  District  Courts. 

G.  &  J Gill  &  Johnson's  Reports,  Md. 

Gilm Oilman's  Reports,  111. 

Gr.  Ev Greenleaf  on  Evidence. 

Gratt Grattan's  Reports,  Va. 

Gray, Gray's  Reports,  Mass. 

Hill Hill's  Reports,  N.  Y. 

Hilt Hilton's  Reports,  Court  of  Common  Pleas,  N.  Y. 

Houst  Houston's  Criminal  Cases,  Del. 

How.  Pr Howard's  Practice  Reports,  N.  Y. 

How.  St  Howell's  General  Statutes  of  M  ichigan. 

How.  (U.  S.) Howard's  Reports,  U.S.  Supreme  Court. 

Humph Humphrey's  Reports,  Tenn. 

Hun, Hun's  Reports,  Supreme  Court,  N.  Y. 

111.  App  Illinois  Appeals  Reports. 

Ind.  App Indiana  Appeals  Reports. 

J.  &  Sp Jones  &  Spencer's  Reports,  Superior  Court,  N.  Y. 

Johns Johnson's  Reports,  N.  Y. 

Johns.  Cas Johnson's  Cases,  N.  Y. 

Johns.  Ch Johnson's  Chancery  Reports,  N.  Y. 

Kent's  Co  mm Kent's  Commentaries  on  American  Law. 

Keyes Keyes'  Reports,  Court  of  Appeals,  N.  Y. 

La.  Ann Louisiana  Annual  Reports. 

Lans Lansing's  Reports,  Supreme  Court,  N.  Y. 

Lea Lea's  Reports,  Tenn. 

Lowell, Lowell's  Reports,  U.  S.  District  Court. 

McArth McArthur's  Reports,  Supreme  Court,  D.  C. 

McCrary McCrary's  Reports,  U  S.  Circuit  Court. 

McL McLean's  Reports,  U.  S.  Circuit  Court. 

Mackey, Mackey's  Reports,  District  of  Columbia. 

Md.  Ch Maryland  Chancery  Reports. 

Met. .  Metcalf's  Reports,  Mass. 

Mill,  (S  Car)  Mill's  Reports,  S.  Car. 

Mills,  Em.  Dom Mills  on  Eminent  Domain. 

Misc Miscellaneous  Reports,  N.  Y. 

Mo.  App Missouri  Appeals  Reports. 

Munf. Munford's  Reports,  Va. 

N ,  ....Note. 

N.J.  Eq New  Jersey  Equity  Reports. 


LIST  OF  ABBREVIATIONS. 


N.  J.  L New  Jersey  Law  Reports. 

N.  J.  Rev New  Jersey  Revision  of  Statutes. 

N.  S New  Series. 

N.  Y.  Civ.  Fro.  R N.  Y.  Civil  Procedure  Reports. 

N.  Y.  Code  Civ.  Pro New  York  Code  of  Civil  Procedure. 

N.  Y.  Code  Cr.  Pro New  York  Code  of  Criminal  Procedure. 

N.  Y.  Pen.  Code New  York  Penal  Code. 

N.  V.  S New  York  Supplement. 

N.  Y.  St.  R New  York  State  Reporter. 

O.  C.  C Ohio  Circuit  Courts  Reports. 

O.  St Ohio  State  Reports. 

Pai Paige's  Chancery  Reports,  N.  Y. 

Park.  Cr Parker's  Criminal  Reports,  N.  Y. 

Pet Peters'  Reports,  U.  S.  Supreme  Court. 

Pet.  C.  C Peters'  U.  S.  Circuit  Court  Reports. 

Phila , Philadelphia  Reports,  Pa. 

Pub.  St Public  Statutes. 

Pick Pickering's  Reports,  Mass. 

R.  S Revised  Statutes. 

Redf Redfield's  Reports,  Surrogate  Courts,  N.  Y. 

Rev.  St Revised  Statutes. 

Rob Robertson's  Reports ,  Superior  Court,  N.  Y. 

S Section. 

S.  C Same  Case. 

S   P Same  Principle. 

S.  &  R Sergeant  &  Rawle's  Reports,  Pa. 

Sandf Sandford's  Reports,  Superior  Court,  N.  Y. 

Sandf.  Ch Sandford's  Chancery  Reports,  N.  Y. 

Sawy Sawyer's  Reports,  U.  S.  Circuit  Court. 

Scam .Scammon's  Reports,  111. 

Sumn Sumner's  Reports,  U.  S.  Circuit  Court. 

Tenn.  (Ch.) Tennessee  Chancery  Reports. 

Tex.  App Texas  Criminal  Appeals  Reports. 

T.  &  C Thompson  &  Cook's  Reports,  Supreme  Court.  N   Y 

Tucker, Tucker's  Reports,  Surrogate  Courts,  N.  Y. 

W.  I) Weekly  Digest,  X.  Y. 

W.  &  S Watts  and  Sergeant's  Reports,  Pa. 

Wall  Wallace'.-  Reports,  U.S.  Supreme  Court. 

Wash.  C.  C Washington's  U.  S.  Circuit  Court  Reports. 

Washb.  R    P Washburn  on  Real  Property. 

Watts Watts'  Repi .rts,  Pa. 

Wend Wendell's  Reports,  N.  Y. 

Wh.  Cr.  Ev Wharton  on  Criminal  Evidence,  9th  ed. 

Wh.  Ev Wharton  on  F.\  idence. 

Whaft Wharton's  Reports,  Pa. 

Wheat Wheaton's  Reports,  U.  S.  Supreme  Court. 

Woods, Woods'  Reports,  U.  S.  Circuit  Court. 


A  DIGEST 

OF 

THE  LAW  OF  EVIDENCE. 


PART    I. 

RELEVANCY. 

CHAPTER  I. 
PRELIMINARY. 

Article  i.* 

definition  of  terms. 

In  this  book  the  following  words  and  expressions  are 
used  in  the  following  senses,  unless  a  different  intention 
appears  from  the  context : 

"Judge"  includes  all  persons  authorized  to  take  evi- 
dence, either  by  law  or  by  the  consent  of  the  parties. 

"  Fact  "  includes  the  fact  that  any  mental  condition  of 
which  any  person  is  conscious  exists.1 

"  Document  "  means  any  substance  having  any  matter 
expressed  or  described  upon  it  by  marks  capable  of  being 
read. 

"  Evidence  "2  means — ■ 


*  See  Note  I.  [Appendix]. 

1  [But,  besides  "including"  what  is  here  stated  as  to  "mental  con- 
ditions," the  word  "fact"  is  used,  throughout  this  book  in  its  ordinary 
signification,  as  denoting  acts,  events,  occurrences,  etc.] 

*  [Evidence  is  the  means  or  medium  of  proof,  while  proof 'is  the 
effect  or  result  of  evidence  {People  v.  Beckwith,  108  N.  Y.  67,  73). 
Demonstrative  evidence  is  such  as  establishes  a  fact  conclusively, 


A  DIGEST  OF  [Part  I. 


( i )  Statements  made  by  witnesses  in  eourt  under  a  legal 
sanction,  in  relation  to  matters  of  fact  under  inquiry ; 

such  statements  are  called  oral  evidence : ' 

(2)  Documents  produced  for  the  inspection  of  the  court 
or  judge ; 

such  documents  are  called  documentary  evidence. 

"  Conclusive  proof "  means  evidence  upon  the  produc- 
tion of  which,  or  a  fact  upon  the  proof  of  which,  the  judge 


beyond  doubt ;  moral  evidence  is  evidence  by  which  the  truth  of  a 
matter  may  be  established  to  a  confident  belief  or  conviction,  though 
not  excluding  possible  doubt  (Babcock  v.  Fitchburg  R.  Co.,  140  N.  Y. 
308,  311).  Competent  evidence  is  that  which  is  fit  and  appropriate  in 
its  nature  as  a  means  of  proof;  satisfactory  or  sufficient  evidence, 
that  amount  or  weight  of  evidence  which  is  adapted  to  convince  a 
reasonable  mind.  The  judge  or  court  decides  whether  evidence  is  com- 
petent or  admissible,  and,  therefore,  primarily,  whether  such  facts  are 
sufficiently  proved  as  must  exist  to  render  it  admissible  ;  the  jury,  in 
jury  trials,  decide  as  to  the  weight  or  sufficiency  of  the  evidence  bear- 
ing on  the  point  in  issue  (Comm.  v.  Robinson,  146  Mass.  571  ;  Deal  v. 
State,  140  Ind.  354).  Cumulative  evidence  is,  strictly  speaking,  evi- 
dence of  the  same  general  character  to  the  same  point ;  but  it  is 
sometimes  used  with  the  same  meaning  as  corroborative  evidence, 
which  is  additional  evidence,  of  whatever  kind,  tending  to  the  same 
conclusion  (Boggess  v.  Read,  83  la.  548  ;  Grogan  v.  Chesapeake,  etc. 
R.  Co.,  39  W.  Va.  415;  Wynne  v.  Newman,  75  \'a.  811  ;  A'eeter  v. 
Jacobs,  87  Wis.  545  ;  Waller  v.  Graves,  20  Ct.  305  ;  People  v.  Superior 
Ct.,  10  Wend.  285).  Direct  evidence  is  that  given  by  witnesses  who 
testify  their  actual  knowledge  of  the  fact  to  be  proved  (see  Art.  62, 
infra) ;  circumstantial  evidence  is  evidence  of  facts  and  circumstances 
from  which  the  existence  of  the  particular  fact  to  be  established  may 
be  legitimately  deduced  or  inferred  (Com/n.  v.  Webster,  5  Cush.  295  ; 
People  v.  Anthony,  56  Cal.  397;  Gannon  v.  People,  127  111.  507;  People 
v.  Harris,  136  N.  Y.  423;  State  v.  Rome,  64  Ct.  329).  Rules  of  evidence 
may  be  changed  by  the  legislature,  if  vested  rights  are  not  thereby 
destroyed.  Howard  v.  Moot,  64  X.  Y.  262;  People  v.  Cannon,  139- 
N.  Y.  32;  Meadoivcroft  v.  People,  163  111.  56;  Pennsylvania  Co.  v. 
McCann,  54  O.  St.  10 ;  Larson  v.  Dickey,  39  Neb.  463.] 

1  [They  are  also  called  "  testimony."     Dibble  v.  Dimmick,  143  X.  Y. 
549.  554-] 


Chap.  I.]  THE  LAW  OF  EVIDENCE.  5 

is  bound  by  law  to  regard  some  fact  as  proved,  and  to 
exclude  evidence  intended  to  disprove  it." 

"A  presumption"  means  a  rule  of  law  that  courts  and 
judges  shall  draw  a  particular  inference  from  a  particular 
fact,  or  from  particular  evidence,  unless  and  until  the 
truth  of  such  inference  is  disproved.1 

The  expression  "  facts  in  issue"  means — 

( 1 )  All  facts  which,  by  the  form  of  the  pleadings  in  any 
action,  are  affirmed  on  one  side  and  denied  on  the  other  : 

(2)  In  actions  in  which  there  are  no  pleadings,  or  in 
which  the  form  of  the  pleadings  is  such  that  distinct 
issues  are  not  joined  between  the  parties,  all  facts  from 
the  establishment  of  which  the  existence,  non-existence, 
nature,  or  extent  of  any  right,  liability,  or  disability 
asserted  or  denied  in  any  such  case  would  by  law  follow. 

The  word  "  relevant "  means  that  any  two  facts  to  which 
it  is  applied  are  so  related  to  each  other  that  according  to 
the  common  course  of  events  one  either  taken  by  itself 
or  in  connection  with  other  facts  proves  or  renders  prob- 
able the  past,  present,  or  future  existence  or  non-existence 
of  the  other.2 

1  [What  is  here  called  "  conclusive  proof  "  is  termed  by  Mr.  Green- 
leaf  and  some  other  writers  a  "  conclusive  presumption  of  law,"  while 
what  is  here  called  a  "  presumption  "  is  termed  by  them  a  "  disputable 
presumption  of  law."  (Gr.  Ev.  i.  §§  14-46).  For  illustrations  of  "  con- 
clusive proof,"  see  post,  Articles  40-44,  98;  of  "presumptions,"  see 
Articles  85-89,  94,95,99-101  ;  see  also  Ulrich  v.  Ulrich,  136  N.  Y.  120.] 

li[See  Note  I,  Appendix  ;  Plumb  v.  Curtis,  66  Ct.  154  ;  Insurance 
Co.  v.  Weide,  11  Wall.  438,  440;  Conun.  M.Abbott,  130  Mass.  472; 
Comm.  v.  Jeffries,  7  Allen,  548,  563  ;  Rodgers  v.  Stophcl,  32  Pa.  11 1  ; 
Nickerson  v.  Gould,  82  Me.  512  ;  Darling  v.  Westmoreland,  52  N.  H. 
401..  It  is  to  be  observed  that  the  author  uses  the  expression, 
"  deemed  to  be  relevant,"  in  many  of  the  following  Articles  to  apply- 
not  only  to  evidence  which  has  true  logical  relevancy  as  here  denned, 
but  also  to  evidence  which,  not  being  logically  relevant,  is  neverthe- 
less declared  admissible  by  law  as  a  means  of  proof.  ,  And  so  the  ex- 
pression "deemed  to  be  irrelevant,"  is  applied  to  evidence,  which; 
though  it  may  be  logically  relevant,  is  yet  deemed  in  law  inadmissible.] 


A  DIGEST  OF  IPart  1 


CHAPTER  II. 

OF  FACTS  IN  ISSUE  AND  RELEVANT  TO  THE  ISSUE. 

Article  2.* 
facts  in  issue   and   facts  relevant  to  the  issue  may  be 

PROVED. 

Evidence  may  be  given  in  any  proceeding  of  any  fact  in 
issue, 

and  of  any  fact  relevant '  to  any  fact  in  issue  unless  it 
is  hereinafter  declared  to  be  deemed  to  be  irrelevant, 

and  of  any  fact  hereinafter  declared  to  be  deemed  to 
be  relevant  to  the  issue,  whether  it  is  or  is  not  relevant 
thereto.2 

Provided  that  the  judge  may  exclude  evidence  of  facts 
which,  though  relevant  or  deemed  to  be  relevant  to  the 
issue,  appear  to  him  too  remote  to  be  material  under 
all  the  circumstances  of  the  case.3 


*  See  Note  II.  [Appendix]. 

1  [Schmidt  v.  Packard,  132  Ind.  398.  Evidence  which  is  pertinent 
to  the  issue  is  admissible,  though  it  may  have  been  improperly, 
or  even  unlawfully,  obtained  ;  as  e.  g.,  documents  or  articles  of 
property  which  have  been  wrongfully  taken  from  a  man's  room 
or  house  (Comm.  v.  Tibbctts,  157  Mass.  519  ;  State  v.  Mathers,  64- Vt. 
101  ;  State  v.  Burroughs,  72  Me.  479;  Trash  v.  People,  151  111.  523; 
State  v.  Pomcroy,  130  Mo.  489;  State  v.  Griswold,  67  Ct.  290; 
Shields  v.  State,  104  Ala.  35);  so  if  evidence  is  obtained  by  writing 
decoy  letters.    Andrews  v.  U.  S.,  162  U.  S.  420.] 

'-[Facts  which  are  not  relevant  are  often  called  "  collateral  facts," 

and  it  is  a  commonly  stated   rule  that  evidence  of  collateral  facts  is 

not    admissible.    McLoghlin  v.  Mohawk,  etc.  Ph.,    139  N.    Y.   514  ; 

Eaton  v.  Telegraph  Co.,  68  Me.  63  ;    Moore  v.  Richmond,  85  \'a.  538.] 

[As  to  the  exclusion  of  evidence  for  remoteness,  see  Illustrations  (b) 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  7 

Illustrations. 

(a)  A  is  indicted  for  the  murder  of  B,  and  pleads  not  guilty. 

The  following  facts  may  be  in  issue  ; — The  fact  that  A  killed  B  ; 
the  fact  that  at  the  time  when  A  killed  B  he  was  prevented  by  disease 
from  knowing  right  from  wrong  :'  the  fact  that  A  had  received  from 
B  such  provocation  as  would  reduce  his  offense  to  manslaughter.2 

The  fact  that  A  was  at  a  distant  place  at  the  time  of  the  murder 
would  be  relevant  to  the  issue  ;3  the  fact  that  A  had  a  good  character 
would  be  deemed  to  be  relevant;4  the  fact  that  C  on  his  deathbed 
declared  that  C  and  not  A  murdered  B  would  be  deemed  not  to  be 
relevant.5 

(b)  [The  question  is,  whether  A  had  sufficient  mental  capacity  to 
execute  a  deed  at  the  time  when  it  was  executed. 

Evidence  of  A's  mental  condition  a  year  afterwards  may  be  ex- 
cluded, in  the  discretion  of  the  trial  judge,  as  too  remote.]6 

(c)  [The  question  is,  whether  the  death  of  A,  a  fireman  upon  a 
locomotive,  was  due  to  the  negligence  of  the  railroad  company  in 
allowing  a  culvert  to  become  obstructed  whereby  the  water  overflowed 
and  washed  away  the  soil  under  the  track. 


(c)  (d) ;  also  Nicholson  v.  Waful,  70  N.  Y.  604  ;  Kenfiedy  v.  People,  39 
N.  Y.  245, 254  ;  Ockershausen  v.  Durant,  141  Mass.  338  ;  People  v.  Niles, 
44  Mich.  606 ;  People  v.  Hendrickson,  53  Mich.  525  ;  Packard  v. 
Bergen  R.  Co.,  54  N.  J.  L.  553  ;  Mansfield  Coal  Co.  v.  McEnery,  91 
Pa.  185  ;  Amoskeag  Co.  v.  Head,  59  N.  H.  332.  But  evidence  which 
has  a  legitimate  tendency,  though  slight,  to  prove  a  fact  in  issue,  is 
admissible,  unless  it  be  deemed  too  slight  and  therefore  remote. 
Nickerson  v.  Gould,  82  Me.  512;  Hunts?nan  v.  Nichols,  116  Mass. 
521  ;  Comm.  v.  Abbott,  130  Mass.  472  ;  Johnson  v.  Comm.,  115  Pa.  369 ; 
Ryan  v.  People,  79  N.  Y.  593  ;  see  Articles  9  and  10.] 

1  [Moelt  v.  People,  85  N.  Y.  373  ;  State  v.  Hoyt,  47  Ct.  5 18  ;  Nevling 
v.  Comm.,  98  Pa.  322  ;  see  Art.  95,  Illustration  {ce).] 

^[Bishop  Cr.  L.  ii.  §§  701-719  ;  see  Shufflin  v.  People,  62  N.  Y.  229.] 

3 [See  Art.  95,  Illustration  {ce),  and  note.] 

4[Slover  v.  People,  56  N.  Y.  315  ;  Remsen  v.  People,  43  N.  Y.  6; 
Comm.  v.  Webster,  5  Cush.  295  ;  Hamilton  v.  People,  29  Mich.  195; 
see  Art.  56.] 

5  [So  a  letter  of  C,  stating  that  he  committed  the  murder,  would  be 
deemed  not  to  be  relevant.  Greenfield  v.  Pvople,  85  N.  Y.  75  ;  see 
Art.  14,  Illustration  (f),post.] 

6[  While  v.  Graves,  107  Mass.  325  ;  Wright  v.  Wright,  139  Mass. 
I77-] 


A  DIGEST  OF  [Part  I. 


Evidence  that  the  same  culvert  was  obstructed  by  logs  and  an 
accumulation  of  mud  and  brush  at  a  date  three  years  after  the  injury 
to  A,  was  deemed  inadmissible.]1 

(d)  [The  question  is,  whether  an  injury  to  A,  a  railway  passenger, 
was  caused  by  the  negligence  of  the  railroad  company  in  having  its 
bridge  too  narrow  for  the  safe  passage  of  the  car  in  which  A  was 
riding. 

Evidence  that  this  bridge  (a  wooden  one)  was  replaced  by  a  new 
iron  bridge  a  few  months  afterwards,  which  afforded  a  wider  space 
for  the  passage  of  cars,  was  deemed  too  remote.]4 

Article  3. 

relevancy  of  facts  forming  part  of  the  same  transaction 
as  the  facts  in  issue. 

A  transaction  is  a  group  of  facts  so  connected  together 
as  to  be  referred  to  by  a  single  legal  name,  as  a  crime,  a 
contract,  a  wrong,  or  any  other  subject  of  inquiry  which 
may  be  in  issue. 

Every  fact  which  is  part  of  the  same  transaction  as 
the  facts  in  issue  is  deemed  to  be  relevant  to  the  facts 
in  issue,  although  it  may  not  be  actually  in  issue,  and 
although  if  it  were  not  part  of  the  same  transaction  it 
might  be  excluded  as  hearsay.8 


1  [Stoker  v.  St.  Lotus,  etc.  R.  Co.,  91  Mo.  509.] 

''[Dale  v.  Delaware,  etc.  R.  Co.,  73  N.  Y.  468.] 

3[This  rule  is  embraced  in  the  doctrine  which  is  commonly  called 
in  the  law  of  evidence  the  doctrine  of  res  gesta>.  (See  Gr.  Ev.  i.  §  108). 
This,  briefly  stated,  is  that  evidence  of  acts  or  declarations  forming 
part  of  the  res gestce  (z.  e.,  "  transaction,"  or  "  act  to  be  proved")  so  as 
to  explain  or  qualify  it,  is  admissible  when  such  "transaction"  or 
"act"  forms  the  fact  in  issue  or  is  deemed  relevant  thereto  (  Waldele 
\.N.  Y.  C.  R.  Co.,  95  N.  Y.  274;  Lander  v.  People,  104  111.  248; 
Norwich  Co.  v.  Flint,  13  Wall.  3  ;  Steamboat  Co.  v.  Brocket!,  121  U. 
S.  637;  Springfield,  etc.  R.  Co.  v.  Welsch,  155  111.  511  ;  Comm.  v. 
Densmore,  12  Allen,  535  ;  Elkins  v.  McKean,  79  Pa.  493).  These  acts 
or  declarations  so  connected  with  the  res  gestce  are  deemed  relevant, 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  9 

Whether  any  particular  fact  is  or  is  not  part  of  the  same 
transaction  as  the  facts  in  issue  is  a  question  of  law  upon 
which  no  principle  has  been  stated  by  authority  and  on 
which  single  judges  have  given  different  decisions.1 


because  they  serve  to  show  its  nature,  purpose,  occasion,  or  object, 
to  explain  its  origin  or  significance,  to  exhibit  the  relations  of  the 
parties  concerned  therein,  etc.  (Id. ;  People  v.  Davis,  56  N.  Y.  95, 
102  ;  EigJuny  v.  People,  79  N.  Y.  546  ;  Devetiey  v.  Baxter,  157  Mass. 
9).  But  declarations  which  are  subsequent  to  the  transaction,  being  a 
narrative  of  it  as  a  past  event,  or  otherwise  forming  no  constituent 
part  of  it,  are  not  admissible  ;  and  the  same  is  true  of  declarations 
which  are  antecedent  to  the  transaction  and  so  form  no  part  thereof 
(IVoodv.  Slate,  92  Ind.  269  ;  Martin  v.  N.  Y.,  etc.  R.  Co.,  103  N.  Y. 
626  ;  Vicksburg,  etc.  R.  Co.  v.  O'Brien,  1 19  U.  S.  99  ;  Estell  v.  State, 
51  N.  J.  L.  182  ;  Durkee  v.  Cent.  Pac.  R.  Co.,  69  Cal.  533  ;  Montag  v. 
People,  141  111.  75  ;  Hall  v.  State,  132  Ind.  317  ;  State  v.  Kennade,  121 
Mo.  405  ;  see  Comm.  v.  Crowley,  165  Mass.  569  ;  Bigley  v.  Williams , 
80  Pa.  107).  But  declarations  may  form  part  of  the  res  gesta, 
though  made,  not  by  parties  to  the  action,  but  by  bystanders 
(Illustration  (a);  Castner  v.  Sliker,  33  N.  J.  L.  95  &  507;  Walter 
v.  Gemant,  13  Pa.  515  ;  Ordivay  v.  Sanders,  58  N.  H.  132 ;  Morton  v. 
State,  91  Tenn.  437;  State  v.  Kaiser,  124  Mo.  651;  Metr.  R.  Co.  v. 
Collins,  1  App.  D.  C.  383;  Baker  v.  Gansin,  76  Ind.  317).  Declara- 
tions made  by  a  party  in  his  own  favor  are  admissible,  if  they  form 
part  of  the  res gestce  {Chase  v.  Chase,  66  N.  H.  588 ;  Pinney  v.  yones, 
64  Ct.  545). 

This  general  doctrine  also  includes  the  rule  stated  post  at  the  begin- 
ning of  Article  8,  and  is  usually  deemed  to  embrace  the  cases  consid- 
ered under  Article  4  ("Acts  of  Conspirators"),  Article  17  (so  far  as 
the  declarations  of  agents  and  partners  are  concerned),  Article  27 
("  Declarations  made  in  course  of  business,"  etc.),  and  also  certain 
cases  included  under  Article  9  (see  Illustration  c)  and  Article  11  (see 
Illustrations  k,  I,  and  m).  Sometimes  also  other  cases  are  included 
under  this  general  principle.  Gr.  Ev.  i.  §§108-123  ;  see  post,  Note  V. 
Appendix.] 

1  [The  author  has  added  this  paragraph  to  the  text  since  the  decision 
in  England  in  Bedingfield's  case  (see  Illustration  b).  In  some  Ameri- 
can decisions  an  attempt  has  been  made  to  express  a  definite  rule 
upon  the  subject,  but  it  is  stated  in  so  vague  and  general  a  form  as  to 
be  difficult  of  application.  Thus  it  is  said,  "The  general  rule  is  that 
declarations,  to  become  a  part  of  the  res  gestcz,  must  accompany  the 


io  A  DIGEST  OF  [Part  I. 

When  a  question  as  to  the  ownership  of  land  depends  on 
the  application  to  it  of  a  particular  presumption  capable 
•of  being  rebutted,  the  fact  that  it  does  not  apply  to  other 


act  which  they  are  supposed  to  characterize  and  must  so  harmonize 
with  it  as  to  be  obviously  one  transaction"  {Moore  v.  Meacham,  io 
N.  Y.  207,  210;  Enos  v.  Tuttle,  3  Ct.  250).  It  is  often  stated  that  acts 
or  declarations,  to  form  part  of  the  res gestce,  must  be  "contemporane- 
ous" or  "concomitant"  with  it  (Gr.  Ev.  i.  §110),  and  Bedingfield's 
case  shows  that  this  rule  is  applied  in  England  very  strictly.  In  this 
country  also  numerous  decisions  are  found  applying  the  rule  strictly, 
and  holding  that  declarations  made  "immediately  after"  an  act  or 
occurrence  to  which  they  relate  are  not  admissible  in  evidence 
(Illustration  (ca);  People  v.  Wong  Ark,  96  Cal.  125;  Williamson  v. 
Ca?nb ridge  R.  Co.,  144  Mass.  148;  Sullivan  v.  Oregon  R.  Co.,  12  Or. 
392  ;  Cleveland,  etc.  R.  Co.  v.  Mara,  26  O.  St.  185  ;  Rockwell  v.  Taylor, 
41  Ct.  55) ;  while,  on  the  other  hand,  many  cases  hold  it  to  be  sufficient 
if  the  acts  or  declarations  occur  at  or  ?iear  the  time  of  the  main  trans- 
action, if  they  are  so  closely  near,  and  are  of  such  a  character,  that 
they  may  properly  be  regarded  as  directly  occasioned  or  evoked  by 
such  transaction,  and  not  by  any  supervening  cause  or  motive 
(Illustration  (cb)  and  cases  cited ;  Insurance  Co.  v.  Mosley,  8  Wall. 
397 ;  Hunter  v.  State,  40  N.  J.  L.  495 ;  Hanover  R.  Co.  v.  Coyle,  55 
Pa.  396;  International,  etc.  R.  Co.  v.  Anderson,  82  Tex.  516;  State  v. 
Horan,  32  Minn.  394  ;  State  v.  Driscoll,  72  la.  583 ;  State  v.  Harris, 
45  La.  Ann.  842  ;  Ohio,  etc.  R.  Co.  v.  Stein,  133  Ind.  243  ;  Christian- 
son  v.  Pioneer  Co.,  92  Wis.  649 ;  Cleveland  v.  Newsom,  45  Mich.  62  ; 
McLeod  v.  Ginther,  80  Ky.  399;  and  see  Lund  v.  Tyngsborough,  9 
Cush.  36.  The  subject  is  fully  discussed  in  Waldele  v.  N.  Y.  C.  R.  Co., 
95  N.  Y.  274). 

This  disagreement  among  the  authorities  is,  however,  to  a  consider- 
able extent,  more  seeming  than  real,  because  in  some  kinds  of  cases 
an  interested  or  designing  or  otherwise  improper  motive  is  apt  to 
spring  into  activity  more  speedily  than  in  other  cases,  and,  therefore, 
declarations,  attributable  to  it,  may  require,  in  principle,  to  be  excluded, 
though  made  immediately  after  the  transaction  (Illustration  (ca) ; 
Metr.  R.  Co.  v.  Collins,  1  App.  D.  C.  383).  And  again,  immediately 
ensuing  statements  may  be  in  the  nature  of  narrative  or  explanation, 
and  so  be  deemed  no  part  of  the  transaction  (see  p.  12,  n.  1,  post). 
But,  nevertheless,  there  is  still  a  noteworthy  conflict  of  opinion  in 
applying  the  doctrine  of  res  gesto?.  See  the  diverse  opinions  in 
Vicksburg,  etc.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  and  in  Barber  v.  St. 
Louis,  etc.  R.  Co.,  126  Mo.  143.] 


Chap.  II.J  THE  LAW  OF  EVIDENCE.  n 

neighboring  pieces  of  land  similarly  situated  is  deemed 
to  be  relevant.1 

Illustrations. 

(a)  The  question  was,  whether  A  murdered  B  by  shooting  him. 

The  fact  that  a  witness  in  the  room  with  B,  when  he  was  shot,  saw 
a  man  with  a  gun  in  his  hand  pass  a  window  opening  into  the  room 
in  which  B  was  shot,  and  thereupon  exclaimed,  "  There's  butcher ! " 
(a  name  by  which  A  was  known),  was  allowed  to  be  proved  by  Lord 
Campbell,  L.  C.  J.'2 


1  [Gr.  Ev.  i.  §53  a.] 

* R.\.Fowkes, Leicester  Spring  Assizes,  1856.  Ex  relatione  O'Brien, 
Serjt. 

In  the  report  of  this  case  in  the  Times  for  March  8, 1856,  the  evidence 
of  the  witnesses  on  this  point  is  thus  given  : — 

'*  William  Fowkes :  My  father  got  up  (?went  to)  the  window,  and 
opened  it  and  shoved  the  shutter  back.  He  waited  there  about  three 
minutes.  It  was  moonlight,  the  moon  about  the  full.  He  closed  the 
window  but  not  the  shutter.  My  father  was  returning  to  the  sofa 
when  I  heard  a  crash  at  the  window.  I  turned  to  look  and  hooted 
'  There's  butcher.'  I  saw  his  face  at  the  window,  but  did  not  see  him 
plain.  He  was  standing  still  outside.  I  aren't  able  to  tell  who  it  was, 
not  certainly.  I  could  not  tell  his  size.  While  I  was  hooting  the  gun 
went  off.  I  hooted  very  loud.  He  was  close  to  the  shutter  or  there- 
abouts. It  was  only  open  about  eight  inches.  Lord  Campbell :  Did 
you  see  the  face  of  the  man  ?  Witness :  Yes,  it  was  moonlight  at  the 
time.  I  have  a  belief  that  it  was  the  butcher.  I  believe  it  was.  I 
now  believe  it  from  what  I  then  saw.  I  heard  the  gun  go  off  when  he 
went  away.  We  heard  him  run  by  the  window  through  the  garden 
towards  the  park." 

Upon  cross-examination  the  witness  said  that  he  saw  the  face  when 
he  hooted  and  heard  the  report  at  the  same  moment.  The  report 
adds,  "  The  statement  of  this  witness  was  confirmed  by  Cooper,  the 
policeman  (who  was  in  the  room  at  the  time),  except  that  Cooper  saw 
nothing  when  William  Fowkes  hooted  'there's  butcher  at  the  win- 
dow!'" He  stated  he  had  not  time  to  look  before  the  gun  went  off. 
In  this  case  the  evidence  as  to  W.  Fowkes'  statement  could  not  be 
admissible  on  the  ground  that  what  he  said  was  in  the  prisoner's 
presence,  as  the  window  was  shut  when  he  spoke.  It  is  also,  obvious 
that  the  fact  that  he  said  at  the  time  "  there's  butcher"  was  far  more 
likely  to  impress  the  jury  than  the  fact  that  he  was  at  the  trial  uncer- 
tain whether  the  person  he  saw  was  the  butcher,  though  he  was  dis- 


A  DIGEST  OF  [Part  I. 


(b)  The  question  was,  whether  A  cut  B's  throat,  or  whether  B  cut  it 
herself. 

A  statement  made  by  B  when  running  out  of  the  room  in  which  her 
throat  was  cut  immediately  after  it  had  been  cut  was  not  allowed  to 
be  proved  by  Cockburn,  L.  C.  J.1 

(c)  The  question  was,  whether  A  committed  manslaughter  on  B  by 
carelessly  driving  over  him. 

A  statement  made  by  B  as  to  the  cause  of  his  accident  as  soon 
as  he  was  picked  up  was  allowed  to  be  proved  by  Park,  J.,  Gurney, 


posed  to  think  so.  [Cases  closely  resembling  R.  v.  Fowkes  are : 
Dismukes  v.  State,  83  Ala.  287  ;  State  v.  Schmidt,  73  la.  469 ;  Lander 
v.  People,  104  111.  248 ;  State  v.  Duncan,  1 16  Mo.  288  ;  State  v.  Des- 
roches,  48  La.  Ann.  428  ;  State  v.  Biggerstaff,  17  Mont.  510.] 

1  R.v.  Bedingfield,  Suffolk  Assizes,  1879,  [14  Cox,  341].  The  pro- 
priety of  this  decision  was  the  subject  of  two  pamphlets,  one  by  W. 
Pitt  Taylor,  who  denied,  the  other  by  the  Lord  Chief  Justice,  who 
maintained  it.  [In  a  similar  American  case  the  declarations  were 
held  admissible  (J'ou  Pollnitz  v.  State,  92  Ga.  16;  cf.  People  v.  Ah 
Lee,  60  Cal.  85).  In  Massachusetts  it  has  been  held  that  where  a  per- 
son was  stabbed  and  said  to  a  person  who  reached  him  within  about 
twenty  seconds  after  the  injury, "  I'm  stabbed  ;  I'm  gone  ;  Dan  Hackett 
stabbed  me,"  these  words  were  admissible  on  the  trial  of  his  assailant 
for  murder,  as  part  of  the  res gesta>  {Comm.  v.  Hackett,  2  Allen,  136  ; 
see  Comm.  v.  HP  Pike,  3  Cush.  181  ;  People  v.  Simpson,  48  Mich.  474  ; 
Waldele  v.  N.  Y.  C.  R.  Co.,  95  N.  Y.  278).  But  declarations  by  the 
wounded  man,  made  a  few  minutes  after  the  fatal  injury,  so  as  to  be  a 
narrative  or  explanation  of  what  had  happened,  are  not  admissible 
{Parker  v.  State,  136  Ind.  284  ;  see  State  v.  Deuble,  74  la.  509  ;  State 
v.  Po7iieroy,  25  Kan.  349).  In  Kirby  v.  Comm.,  yj  Va.  681,  however,  the 
wounded  man  ran  eighty  feet,  and  then  exclaimed,  about  two  minutes 
after  the  injury,  "  I  am  shot ;  William  Kirby  has  shot  me,"  and  these 
statements  were  held  to  be  part  of  the  res gesta  and  admissible.  In 
State  v.  Murphy,  16  R.  I.  528,  statements  made  by  the  injured  man 
ten  or  fifteen  minutes  after  the  injury  were  held  admissible;  few 
cases,  however,  have  gone  to  this  length.  (Cf.  State  v. Martin,  124  Mo. 
514;  Comm.  v.  IVerntz,  161  Pa.  591  ;  Jones  v.  Comm.,  86  Ya.  740; 
Jones  v.  State,  71  Ind.  66;  Louisville,  etc.  R.  Co.  v.  Pearson,  97 
Ala.  211  ;  State  v.  Brown,  28  Or.  147). 

For  a  valuable  discussion  of  Bedingfield's  case  and  of  the  general 
doctrine  of  res  gesta,t  see  American  Law  Review,  xiv.  817,  xv.  1  and 
71.  The  writer  thinks  the  evidence  should  have  been  admitted  in 
this  case.     Id.  xv.  89.] 


I 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  13 

B.,  and  Patteson,  J.,  though  it  was  not  a  dying  declaration  within 
Article  26.1 

(ca)  [The  question  is,  whether  A  was  injured  through  the  negligent 
driving  by  B's  servant  of  a  car  drawn  by  horses.  The  driver,  as  he 
was  getting  off  the  car  and  out  of  the  crowd  which  had  gathered, 
directly  after  the  accident,  was  asked  why  he  did  not  stop  the  car 
and  replied  that  the  brake  was  out  of  order.  This  statement  of  his 
was  not  allowed  to  be  proved.  "  The  alleged  wrong  was  complete 
and  the  driver  was  only  endeavoring  to  account  for  what  he  had  done. 
He  was  manifestly  excusing  himself  and  throwing  the  blame  on  his 
principals."]  '2 

{cb)  [A  sues  B  (a  railroad  company)  to  recover  damages  for  injuries 
suffered  by  him,  through  B's  alleged  negligence,  in  falling  upon  the 
platform  at  a  station,  while  he  was  alighting  from  a  train. 

Declarations  by  A  as  to  the  cause  of  his  injuries,  made  by  him 
immediately  after  the  train  left  the  station  and  while  he  lay  upon 
the  platform  where  he  fell,  were  allowed  to  be  proved.] 3 

(cc)  [The  question  was,  whether  A,  a  physician,  committed  the  crime 
of  killing  B  (a  woman)  by  the  use  of  means  to  procure  an  abortion 
upon  B's  person. 

A  statement  made  by  B  after  returning  home  from  A's  office  of 
what  A  had  done  and  said  to  her  there  was  not  allowed  to  be  proved.] 4 

(cd)  [The  question  was,  whether  A  was  negligent  in  jumping  from 
the  vehicle  of  B  (a  carrier  of  passengers)  when  the  vehicle  was  ap- 
parently in  a  position  of  imminent  danger. 


1  R.  v.  Foster,  6  C.  &  P.  325  ;  [cf.  Lahey  v.  Ottman  &°  Co.,  73 
Hun,  61.] 

'2[Ludy  v.  Hudson  River  R.  Co.,  17  N.  Y.  131  ;  Latie  v.  Bryant,  9 
Gray,  245.] 

3  [Pennsylvania  R.  Co.  v.  Lyons,  129  Pa.  113.  But  statements  by  an 
injured  person  as  to  the  cause  of  injury,  which  were  not  made  until  he 
had  been  removed  a  short  distance  from  the  place  of  the  injury  and  a 
doctor  obtained,  were  deemed  not  admissible  {Merkle  v.  Bennington, 
58  Mich.  156  ;  see  Chicago,  etc.  R.  Co.,  v.  Becker,  128  111.  545  ;  Eastman 
v.  Boston,  etc.  R.  Co.,  165  Mass.  342).  In  Indiana,  similar  statements 
made  before  removal  from  the  place  of  injury  and  within  two  minutes 
of  its  occurrence  were  held  admissible.  Louisville,  etc.  R.  Co.  v. 
Buck,  1 16  Ind.  566  ;  see  Lea/icy  v.  Cass  Ave.,  etc.  R.  Co.,  97  Mo.  165  ; 
Mo.  Pac.  R.  Co.  v.  Baier,  37  Neb.  235.] 

4  [People  v.  Davis,  56  N.  Y.  95  ;  Maine  v.  People,  9  Hun,  113  ;  cf. 
People  v.  Murphy,  101  N.  Y.  126  ;  Mutcha  v.  Pierce,  49  Wis.  231.J 


«* 


14  A  DIGEST  OF  [Part  I. 

The  acts  of  other  passengers  in  jumping  from  the  vehicle  at  the 
same  time  were  allowed  to  be  proved.]' 

(d)  The  question  is,  whether  A,  the  owner  of  one  side  of  a  river, 
owns  the  entire  bed  of  it  or  only  half  the  bed  at  a  particular  spot. 
The  fact  that  he  owns  the  entire  bed  a  little  lower  down  than  the  spot 
in  question  is  deemed  to  be  relevant.'-' 

(<?)  The  question  is,  whether  a  piece  of  land  by  the  roadside  belongs 
to  the  lord  of  the  manor  or  to  the  owner  of  the  adjacent  land.  The 
fact  that  the  lord  of  the  manor  owned  other  parts  of  the  slip  of  land 
by  the  side  of  the  same  road  is  deemed  to  be  relevant.3 


Article  4.* 

acts  of  conspirators. 

When  two  or  more  persons  conspire  together  to  commit 
any  offence  or  actionable  wrong,4  everything  said,  done, 
or  written  by  any  one  of  them  in  the  execution  or  further- 
ance of  their  common  purpose,  is  deemed  to  be  so  said, 
done,  or  written  by  every  one,  and  is  deemed  to  be  a 
relevant  fact  as  against  each  of  them  ;5    but  statements 


*  See  Note  III.  [Appendix]. 

1  [  Twomley  v.  C.  P.  N.  R.  Co.,  69  N.  Y.  158  ;  Kleiber  v.  People  s  R. 
Co.,  107  Mo.  240  ;  Mitchell 'v.  So.  Pac.  R.  Co.,  87  Cal.  62.] 

2  Jones  v.  Williams,  2  M.  &  W.  326. 

3  Doe  v.  Kemp,  7  Bing.  332  ;  2  Bing.  N.  C.  102. 

■•[Evidence  admissible  under  this  Article  is  not  limited  to  in- 
dictments for  the  crime  of  conspiracy,  distinctively  so-called  {Clune 
v.  U.  S.,  159  U.  S.  590),  but  is  competent  in  all  cases,  civil  and 
criminal,  where  two  or  more  persons  have  combined  to  do  an  unlaw- 
ful act  ;  as^.^.,  where  the  trial  is  for  murder,  forgery,  larceny,  or 
other  crime  {Coins  v.  State,  46  O.  St.  457  ;  People  v.  Parker,  67  Mich. 
222  ;  People  v.  Davis,  56  N.  Y.  95),  or  where  the  proceeding  is  of  a 
civil  nature,  as  for  wrongful  acts  done  with  intent  to  defraud  creditors, 
etc.  Knowerx.  Cad  den  Clothing  Co.,  57  Ct.  202  ;  Lowe  v.  Dalrymple, 
1 17  Pa.  564;  Gumbergv.  Treusch,  103  Mich.  543;  Peeler  v.  Webb, 
1 13  111.  436  ;  Cuylcr  v.  McCartney,  40  N.  Y.  221.] 

6 [The  reason  for  the  admission  of  this  evidence  is  that  such  acts 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  15 

made  by  individual  conspirators  as  to  measures  taken  in 
the  execution  or  furtherance  of  any  such  common  purpose 
are  not  deemed  to  be  relevant  as  such  as  against  any  con- 
spirators, except  those  by  whom  or  in  whose  presence 
such  statements  are  made.1  Evidence  of  acts  or  state- 
ments deemed  to  be  relevant  under  this  Article  may  not 
be  given  until  the  judge  is  satisfied  that,  apart  from  them, 
there  are  prima  facie  grounds  for  believing  in  the  exist- 
ence of  the  conspiracy  to  which  they  relate.2 


and  declarations  form  part  of  the  res  gestce  {Dewey  v.  Moyer,  72 
N.  Y.  70 ;  Comm.  v.  Scott,  123  Mass.  222  ;  Niidd  v.  Burrows,  91  U.  S. 
426  ;  Hartman  v.  Diller,  62  Pa.  37  ;  Lincoln  v.  Claflin,  7  Wall.  132  ; 
see  Art.  3,  and  notes).  Acts  or  declarations  not  done  or  made  in 
furtherance  of  the  common  design  are  not  admissible  {Gamsey  v. 
Rhodes,  138  N.  Y.  461  ;  State  v.  McGee,  81  la.  17).  It  is  immaterial 
at  what  time  any  one  entered  into  the  conspiracy  ;  he  is  deemed  a 
party  to  all  acts  done  by  any  of  the  other  conspirators  before  or 
afterwards,  in  furtherance  of  the  common  design.  Gr.  Ev.  i.  §  m  ; 
State  v.  Crab,  121  Mo.  554;  Ochs  v.  People,  124  111.  399;  U.  S.  v. 
Johnson,  26  F.  R.  682  ;  Bonner  v.  State,  107  Ala.  97.] 

1  [Thus  statements  made  by  a  co-conspirator,  after  the  conspiracy 
has  ended,  as  a  narrative  of  past  acts  or  measures  taken,  are  not 
deemed  to  be  relevant,  not  forming  part  of  the  res  gestae  {People  v. 
McQuade,  no  N.  Y.  284;  N.  Y.  Guaranty  Co.  v.  Gleason,  78  N.  Y. 
503  ;  Heine  v.  Comm.,  91  Pa.  145;  Moore  v.  Shields,  121  Ind.  267; 
Samples  v.  State,  121  111.  547;  State  v.  Larkin,  49  N.  H.  39).  Con- 
fessions or  declarations  made  by  one  after  the  conspiracy  is  ended 
can  only  be  received  as  evidence  against  himself  and  not  against  his 
associates  {Comm.  v.  Ingraham,  7  Gray,  46  ;  State  v.  Johnson,  40 
Kan.  266  ;  State  v.  Mmton,  1 16  Mo.  605  ;  Sparfv.  U.  S.,  156  U.  S.  51, 
56  ;  State  v.  Arnold,  48  la.  566  ;  People  v.  Arnold,  46  Mich.  268  ; 
People  v.  Aleck,  61  Cal.  137  ;  see  Art.  21,  post),  unless  they  are  made 
in  the  presence  of  any  of  the  other  conspirators,  when  they  may  be 
provable  under  the  rule  stated  on  p.  25,  post,  n.  1.] 

■[Ormsby  v.  People,  53  N.  Y.  472  ;  Miller  v.  Dayton,  57  la.  423  ; 
Knower  v.  Cadden  Clothing  Co.,  57  Ct.  202  ;  People  v.  Parker,  67 
Mich.  222  ;  Phoenix  Ins.  Co.  v.  Moog,  78  Ala.  284.  But  the  declarations 
of  an  alleged  conspirator  are  not  admissible  to  prove  the  existence  of 
the  conspiracy  {Solomon  v.  A'irkwood,  55  Mich.  256).  The  judge  may, 
however,  in  his  discretion  admit  evidence  of  the  acts  and  declarations 


16  A  DIGEST  OF  [Part  I. 


Illustrations. 

(a)  The  question  is,  whether  A  and  B  conspired  together  to  cause 
certain  imported  goods  to  be  passed  through  the  custom-house  on 
payment  of  too  small  an  amount  of  duty. 

The  fact  that  A  made  in  a  book  a  false  entry,  necessary  to  be  made 
in  that  book  in  order  to  carry  out  the  fraud,  is  deemed  to  be  a 
relevant  fact  as  against  B. 

The  fact  that  A  made  an  entry  on  the  counterfoil  of  his  cheque- 
book showing  that  he  had  shared  the  proceeds  of -the  fraud  with  B, 
is  deemed  not  to  be  a  relevant  fact  as  against  B.1 

(b)  The  question  is,  whether  A  committed  high  treason  by  imagining 
the  king's  death  ;  the  overt  act  charged  is  that  he  presided  over'an 
organized  political  agitation  calculated  to  produce  a  rebellion,  and 
directed  by  a  central  committee  through  local  committees. 

The  facts  that  meetings  were  held,  speeches  delivered,  and  papers 
circulated  in  different  parts  of  the  country,  in  a  manner  likely  to  pro- 
duce rebellion  by,  and  by  the  direction  of,  persons  shown  to  have 
acted  in  concert  with  A,  are  deemed  to  be  relevant  facts  as  against  A, 
though  he  was  not  present  at  those  transactions,  and  took  no  part  in 
them  personally. 

An  account  given  by  one  of  the  conspirators  in  a  letter  to  a  friend, 
of  his  own  proceedings  in  the  matter,  not  intended  to  further  the 
common  object,  and  not  brought  to  A's  notice,  is  deemed  not  to  be 
relevant  as  against  A.2 


of  one  alleged  conspirator,  which  are  alleged  to  have  been  done  or 
made  in  furtherance  of  the  conspiracy,  upon  condition  that  proof  of 
the  conspiracy  be  supplied  during  the  trial ;  but  this  should,  in  gen- 
eral, only  be  allowed  in  urgent  cases  {Place  v.  Minster,  65  X.  Y.  89  ; 
People  v.  Fehrenbach,  102  Cal.  394  ;  State  v.  Flanders,  1 18  Mo.  227  ; 
State  v.  Grant,  86  la.  216  ;  Hamilton  v.  People,  29  Mich.  195).  The 
existence  of  the  conspiracy  may  be  proved  by  circumstantial  evidence 
as  well  as  by  showing  by  direct  evidence  an  actual  preconcerted 
agreement ;  as  by  proving  acts  and  declarations  indicating  that  the 
parties  were  all  acting  with  a  common  design.  People  v.  Peel-ens, 
153  N.  Y.  576;  Cotton,  v.  Smith,  [63  Mass.  411  ;  People  v.  Arnold,  |\> 
Mich.  268  ;  Lowe  v.  Dalrymple,  117  Pa.  564  ;  Ochs  v.  People,  124  III. 
399  ;  People  v.  Bentley,  75  Cal.  407  ;  Primmer  v.  Primmer,  75  la.  415  ; 
see  Stront  v.  Packard,  76  Me.  148.] 

1  R.  v.  Blake,  6  Q.  B.  137-140. 

2  R.  v.  Hardy,  24  S.  T.  passim,  but  see  particularly  451-453. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  17 


Article  5.* 


When  the  existence  of  any  right  of  property,  or  of  any 
right  over  property  is  in  question,  every  fact  which  con- 
stitutes the  title  of  the  person  claiming  the  right,  or  which 
shows  that  he,  or  any  person  through  whom  he  claims,  was 
in  possession  of  the  property,  and  every  fact  which  con- 
stitutes an  exercise  of  the  right,  or  which  shows  that  its 
exercise  was  disputed,  or  which  is  inconsistent  with  its 
existence  or  renders  its  existence  improbable,  is  deemed 
to  be  relevant^ 

Illustrations. 

(a)  The  question  is,  whether  A  has  a  right  of  fishery  in  a  river. 

An  ancient  inquisitio  post  mortem  finding  the  existence  of  a  right  of 
fishery  in  A's  ancestors,  licenses  to  fish  granted  by  his  ancestors,  and 
the  fact  that  the  licensees  fished  under  them,  are  deemed  to  be  rele- 
vant.2 

(o)  The  question  is,  whether  A  owns  land. 

The  fact  that  A's  ancestors  granted  leases  of  it  is  deemed  to  be 
relevant.3 

(c)  The  question  is,  whether  there  is  a  public  right  of  way  over  A's 
land. 

The  facts  that  persons  were  in  the  habit  of  using  the  way,  that  they 


*  See  Note  IV.  [Appendix] ;  see  also  Art.  88  as  to  proof  of  ancient 
deeds. 

1  [Hosford  v.  Ballard,  39  N.  Y.  147 ;  Cagger  v.  Lansing,  64  N.  Y. 
417  ;  Miller  v.  L.  I.  R.  Co.,  71  N.  Y.  380  ;  Fletcher  v.  Fuller,  120  U.  S. 
534  ;  Anderson  v.  McCormick,  129  111.  308  ;  Boston  v.  Richardson,  105 
Mass.  351  ;  Gloucester  v.  Gaffney,  8  Allen,  11  ;  Berry  v.  Raddin,  11 
Allen,  577  ;  Sailor  v.  Hertzogg,  10  Pa.  296.  In  proving  facts  of  ancient 
date  to  establish  title,  evidence  may  be  received  which  would  be  in- 
admissible as  to  facts  within  the  memory  of  living  witnesses.  Bogardus 
v.  Trinity  Church,  4  Sandf.  Ch.  633  ;   Goodwin  v.  Jack,  62  Me.  414.] 

2  Rogers  v.  Allen,  1  Camp.  309. 

3  Doe  v.  Pulman,  3  Q.  B.  622,  623,  626  (citing  Duke  of  Bedford  v. 
Lopes).    The  document  produced  to  show  the  lease  was  a  counterpart 


iS  A  DIGEST  OF  [Part  I. 

were  turned  back,  that  the  road  was  stopped  up,  that  the  road  was 
repaired  at  the  public  expense,  and  A's  title-deeds  showing  that  for  a 
length  of  time,  reaching  beyond  the  time  when  the  road  was  said  to 
have  been  used,  no  one  had  power  to  dedicate  it  to  the  public,  are  all 
deemed  to  be  relevant.' 

(d)  The  question  is,  whether  A  has  a  several  fishery  in  a  river. 
The  proceedings  in  a  possessory  suit  in  the  Irish  Court  of  Chancery 
by  the  plaintiff's  predecessor  in  title,  and  a  decree  in  that  suit  quieting 
the  plaintiff's  predecessor  in  his  title,  is  relevant,  as  showing  posses- 
sion and  enjoyment  of  the  fishery  at  the  time  of  the  suit.'2 

Article  6. 

CUSTOMS. 

"When  the  existence  of  any  custom  is  in  question,  every 
fact  is  deemed  to  be  relevant  which  shows  how,  in  par- 
ticular instances,  the  custom  was  understood  and  acted 
upon  by  the  parties  then  interested. 

Illustrations. 

(a)  The  question  is,  whether,  by  the  custom  of  borough-English  as 
prevailing  in  the  manor  of  C,  A  is  heir  to  B. 

The  fact  that  other  persons,  being  tenants  of  the  manor,  inherited 
from  ancestors  standing  in  the  same  or  similar  relations  to  them  as 
that  in  which  A  stood  to  B,  is  deemed  to  be  relevant.3 


signed  by  the  lessee.  See  post,  Art.  64.  [See  Osgood  v.  Coates,  1 
Allen,  77.] 

1  Common  practice.  As  to  the  title-deeds,  Brough  v.  Lord  Scars- 
dale,  Derby  Summer  Assizes,  1865.  In  this  case  it  was  shown  by  a 
series  of  family  settlements  that  for  more  than  a  century  no  one  had 
had  a  legal  right  to  dedicate  a  certain  footpath  to  the  public. 

-  Neill  v.  Duke  of  Devonshire,  L.  R.  8  App.  Cas.  135  ;  see  especially 
p.  147- 

"  Muggleton  v.  Burnt it,  1  H.  l\:  X.  282  ;  and  see  Johnstone  v.  Lord 
Spencer,  30  Ch.  D.  581.  It  was  held  in  this  case  that  a  custom 
might  be  shown  by  uniform  practice  which  was  not  mentioned  in  any 
customal  court  roll  or  other  record.     For  a  late  case  of  evidence  of  a 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  19 

(b)  The  question  was,  whether,  by  the  custom  of  the  country,  a 
tenant-farmer,  not  prohibited  by  his  lease  from  doing  so,  might  pick 
and  sell  surface  flints,  minerals  being  reserved  by  his  lease.  The 
fact  that,  under  similar  provisions  in  leases  of  neighboring  farms 
flints  were  taken  and  sold,  is  deemed  to  be  relevant.1 

Article  7. 

motive,  preparation,  subsequent  conduct, 
explanatory  statements. 

When  there  is  a  question  whether  any  act  was  done  by 
any  person,  the  following  facts  are  deemed  to  be  relevant, 
that  is  to  say — 

any  fact  which  supplies  a  motive  for  such  an  act,3  or 
which  constitutes  preparation  for  it ; 3 


custom  of  trade,  see  Ex  parte  Powell,  in  re  Matthews,  1  Ch.  D.  501. 
[As  to  proof  of  a  usage  of  trade  or  business,  see  Dickinso7i  v.  Pough- 
keepsie,  75  N.  Y.  65  ;  Mills  v.  Hallock,  2  Edw.  Ch.  652 ;  Haskins  v. 
Warren,  115  Mass.  514  ;  Chateangay  Iron  Co.  v,  Blake,  144  U.  S.  476; 
Ada/ns  v.  Pittsburgh  Ins.  Co.,  95  Pa.  348.  Such  a  custom  may  be 
proved  by  one  witness  {Robinson  v.  U.  S.,  13  Wall.  363;  Bissell  v. 
Campbell,  54  N.  Y.  353).  As  to  other  customs,  see  Smith  v.  Floyd, 
18  Barb.  522  ;  Ocean  Beach  Ass'n  v.  Brinley,  34  N.  J.  Eq.  438 ;  Ulmer 
v.  Famsworth,  80  Me.  500.] 

1  Tucker  v.  Linger,  21  Ch.  D.  18  ;  and  see  p.  37. 

2  [Illustrations  (a)  and  {ab).  Murphy  v.  People,  63  N.  Y.  590 ;  Wright 
v.  Nostrand,  94  N.  Y.  31  ;  Comm.  v.  Bradford,  126  Mass.  42  ;  Comm. 
v.  Hudson,  97  Mass.  565  ;  Ettinger  v.  Comm.,  98  Pa.  338 ;  Scott  v. 
People,  141  111.  195  ;  State  v.  Lentz,  45  Minn.  177 ;  Benson  v.  State,  119 
Ind.  488.  But  the  evidence  to  show  motive  must  not  be  too  remote 
(Comm.  v.  Abbott,  130  Mass.  472).  Evidence  of  motive  is  admissible, 
though  it  tends  also  to  prove  the  commission  of  another  crime  than 
the  one  charged  (Illustration  (ac);  Pontius  v.  People,  82  N.  Y.  339; 
State  v.  Palmer,  65  N.  H.  216  ;  People  v.  Lane,  101  Cal.  513  ;  see  p.  35, 
post,  note  1).  A  person  may,  however,  be  convicted  of  crime,  though 
the  evidence  discloses  no  motive  for  his  act.  People  v.  Johnson,  139 
N.  Y.  358  ;  Johnson  v.  U.  S.,  157  U.  S.  320;  Comm.  v.  Buccieri,  153 
Pa.  535.] 

3  Illustrations  (b)  and  (be).      [See   Walsh  v.  People,  88  N.  Y.  458; 


A  DIGEST  OF  [I'art  I. 


any  subsequent   conduct   of    such   person   apparently 
influenced   by  the    doing  of   the  act,  and   any  act  done 


People  v.  Scott,  153  N.  Y.  40;  Comm.  v.  Choate,  105  Mass.  451.  In 
trials  for  homicide,  or  for  assaults  with  homicidal  intent,  evidence  of 
antecedent  threats  or  of  expressions  of  ill-will,  made  by  the  defendant 
against  the  person  killed  or  injured,  is  admissible  (Comm.  v.  Good:.'/-, 
14  Gray,  55  ;  State  v.  Hoyt,  46  Ct.  330  ;  State  v.  Cole,  63  la.  695  ;  People 
v.fones,  99  N.  Y.  667 ;  Comm.  v.  Holmes,  157  Mass.  233);  and  so  in 
other  cases  of  forcible  injury  {fewett  v.  Banning,  21  N.  Y.  27  ;  Caverno 
v.fones,  61  N.  H.  623  ;  State  v.  Fry,  67  la.  475) ;  but  threats  made  by 
a  person  other  than  the  defendant  against  the  person  injured  are  not 
provable,  being  res  inter  alios  acta  [State  v.  Beandet,  53  Ct.  536) ;  in 
trials  for  arson,  the  defendant's  prior  threats  to  burn  the  property  may 
be  proved  (State  v.  Day,  79  Me.  120;  People  v.  Eaton,  59  Mich.  559; 
Comm.  v.  Crowe,  165  Mass.  140). 

In  cases  of  homicide,  where  it  appears  that  the  deceased  was  or  may 
have  been  the  aggressor,  so  as  to  cause  the  defendant  to  act  in  self- 
defence,  evidence  is  received  in  many  States  of  threats  made  by  the 
deceased  against  the  defendant,  even  though  the  defendant  had  not 
heard  of  such  threats  [Wiggins  v.  People,  93  U.  S.  465;  Stokes  v. 
People,  53  N.  Y.  164  ;  Roberts  v.  State,  68  Ala.  156 ;  Turpin  v.  State, 
55  Md.  462  ;  State  v.  Harrod,  102  Mo.  590 ;  Prine  v.  State,  73  Miss. 
838  ;  State  v.  Evans,  33  W.  Va.  417  ;  People  v.  Thomson,  92  Cal.  506); 
so  a  fortiori,  if  such  threats  had  been  made  known  to  the  defendant 
(State  v.  IVoodson,  41  la.  425  ;  Wood  v.  State,  92  Ind.  269;  Lewis  v. 
Comm.,  78  Ya.  732  ;  cf.  Vann  v.  State,  83  Ga.  44) ;  so  in  trials  for 
assault  with  intent  to  murder,  a  similar  rule  applies  (Leverich  v.  State, 
105  Ind.  277  ;  State  v.  Scott,  24  Kan.  68) ;  but  generally  in  other  cases 
than  those  of  self-defence,  such  evidence  of  threats  is  not  admitted 
(State  v.  Elliott,  45  la.  486 ;  People  v.  Campbell,  59  Cal.  243). 

So  in  like  trials,  evidence  of  the  violent  and  quarrelsome  character 
of  the  deceased  or  person  injured  is  received  when  the  circum- 
stances indicate  that  the  defendant  was  acting  in  self-defence  (Abbott 
v.  People,  86  N.  Y.  460 ;  Uplhcgrove  v.  State,  37  O.  St.  662  ;  Stair  v. 
Graham,  61  la.  608;  Comm.  v.  Straesser,  153  Pa.  451  ;  Smith  v.  U.  S., 
161  U.  S.  85  ;  Cannon  v.  People,  141  111.  270;  Knight  v.  Sntythe,  57 
\"t.  529  ;  Galbraith  v.  Fleming,  60  Mich.  403  ;  State  v.  Downs,  91  Mo. 
19;  see  Comm.  v .  Barnacle,  134  Mass.  215).  The  evidence  in  such 
cases  must  be  of  general  reputation  for  violence,  etc.,  and  not  of 
specific  acts  of  violence.  People  v.  Druse,  103  N.  Y.  655  ;  Alexander 
v.  Comm.,  105  Pa.  1  ;  Harrison  v.  Comm.,  79  Va.  374 ;  but  see  People 
v.  Harris,  97  Mich.  87.] 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  21 

in   consequence   of  it   by   or  by  the   authority  of  that 
person.1 

Ilhcstrations.     - 

(a)  The  question  is,  whether  A  murdered  B. 

The  facts  that,  at  the  instigation  of  A,  B  murdered  C  twenty-five 
years  before  B's  murder,  and  that  A  at  or  before  that  time  used 
expressions  showing  malice  against  C,  are  deemed  to  be  relevant,  as 
showing  a  motive  on  A's  part  to  murder  B.2 

(ab)  [The  question  is,  whether  A  murdered  B. 

The  fact  that  A  had  been  living  in  adultery  with  B's  wife  is  deemed 
to  be  relevant,  as  showing  motive.3 

The  fact  that  B  had  been  personally  pressing  A  for  payment  of  a 
debt  which  A  had  no  means  to  pay  is  deemed  to  be  relevant,  for  a 
like  reason.] 4 

(ac)  [A  is  indicted  and  tried  for  the  murder  of  his  eldest  daughter 
by  drowning  her. 

Evidence  tending  to  prove  that  A  caused  the  deaths  of  his  wife  and 
youngest  daughter  by  drowning  at  about  the  same  time,  and  also 
showing  that  he  married  another  woman  immediately  afterwards,  is 
deemed  to  be  relevant,  as  tending  to  prove  that  his  motive  was,  by 
putting  his  wife  and  children  out  of  existence,  to  enable  him  to  enter 
into  this  second  marriage.] 5 


1  Illustrations  (c),  (d)  and  (e).  [See  Harrington  v.  Keteltas,  92  N.  Y. 
40;  Morris  v.  French,  106  Mass.  326;  Banfield  \.  Whipple,  10  Allen, 
27  ;   People  v.  Ah  Fook,  64  Cal.  380.] 

2  R.  v.  Clewes,  4  C.  &  P.  221.  [See  Say  res  v.  Comm.,  88  Pa.  291; 
McCne  v.  Comm.,  78  id.  185  ;  State  v.  Dickson,  78  Mo.  438.  In  Good- 
win v.  State,  96  Ind.  550  (a  trial  for  murder)  threats  made  by  the  de- 
fendant thirty  years  before  against  the  deceased  were  allowed  to  be 
proved  ;  and  so  as  to  threats  made  thirteen  years  before  and  repeated 
in  later  years  (State  v.  Glahn,  97  Mo.  679  ;  see  Pulliam  v.  State,  88 
Ala.  1).  But  the  jury  may  consider  the  remoteness  of  such  evidence 
in  determining  its  weight.] 

z\Comm.  v.Ferrigan,  44  Pa.  386;    see  Comm.  v.  Choate,  105  Mass. 

458  ;  People  v.  Scott,  153  N.  Y.  40  ;    Pierson  v.  People,  79  N.  Y.  424  ; 

State  v.  Reed,  53  Kan.  767  ;  Pate  v.  State,  94  Ala.  14.] 
4  [Comm.  v.  Webster,  5  Cush.  295  ;  see  97  Mass.  566.] 
h[Hawcs  v.  State,  88  Ala.  37  ;  cf.  People  v.  Craig,  in  Cal.  460.] 


A  DIGEST  OF  [Part  I. 


(/;)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  A  procured  the  instruments  with  which  the  crime  was 
committed  is  deemed  to  be  relevant.1 

(be)  [A,B,  and  C  are  tried  for  the  murder  of  D. 

The  facts  that  at  the  time  of  the  alleged  crime  these  persons  were 
members  of  a  secret  society,  organized  for  the  commission  of  crimes 
i  if  violence  against  person  and  property,  and  for  the  protection  of  one 
another  from  detection  and  punishment,  and  that  on  the  night  before 
the  murder  they  met  together  and  planned  its  commission,  are  deemed 
to  be  relevant.]  - 

(c)  A  is  accused  of  a  crime. 

The  facts  that,  either  before  or  at  the  time  of,  or  after  the  alleged 
crime,  A  caused  circumstances  to  exist  tending  to  give  to  the  facts  of 
the  case  an  appearance  favorable  to  himself,  or  that  he  destroyed  or 
concealed  things  or  papers,  or  prevented  the  presence  or  procured 
the  absence  of  persons  who  might  have  been  witnesses,  or  suborned 
persons  to  give  false  evidence,  are  deemed  to  be  relevant.3 

(d)  The  question  is,  whether  A  committed  a  crime. 

The  facts  that,  after  the  commission  of  the  alleged  crime,  he  ab- 
sconded, or  was  in  possession  of  property  or  the  proceeds  of  property 
acquired  by  the  crime,  or  attempted  to  conceal  things  which  were  or 
might  have  been  used  in  committing  it,  and  the  manner  in  which  he 
conducted  himself  when  statements  on  the  subject  were  made  in  his 
presence  and  hearing,  are  deemed  to  be  relevant.4 


1  R.  v.  Palmer  (passim) ;  reported  in  Stephen's  General  View  of  the 
Crim.  Law  of  England.  [Comm.  v.  Blair,  126  Mass.  40;  People  v. 
Hope,  62  Cal.  291  ;  Colt  v.  People,  1  Park.  Cr.  611  ;  see  La  Beau  v. 
People,  6  id.  371,  34  N.  Y.  223.] 

'2  [Hester  v.  Comm.,  85  Pa.  139 ;  McManus  v.  Comm.,  91  id.  57  ;  Spies 
v.  People,  122  111.  1,  the  noted  dynamite  bomb  case  in  Chicago.] 

3  R.  v.  Patch,  Wills'  Circ.  Ev.  230  ;  R.  v.  Palmer,  ub.  sup.  (passim). 
[Thus  the  concealment  of  an  accused  person  to  avoid  arrest  may  be 
shown  (Comm.  v.  Tolliver,  119  Mass.  312  ;  Ryan  v.  People,  79  N.  Y. 
593) ;  the  act  of  writing  letters  to  fasten  the  crime  on  others  (Gardiner 
v.  People,  6  Park.  Cr.  157),  or  to  keep  a  witness  away  from  the  trial 
(Adams  v.  People,  9  Hun,  89) ;  the  bribing  of  witnesses  to  leave  the 
State  (Slate  v.  Norton,  121  Mo.  537)  ;  the  alteration  of  documents  to 
conceal  a  fraud  (State  v.  Jamison,  74  la.  613).  As  to  suborning 
witnesses,  see  Donohue  v.  People,  56  N.  Y.  208  ;  Murray  v.  Chase,  134 
Mass.  92  ;  Sinll  \.  Bray,  56  Wis.  156.] 

4  Common  practice.       [Thus  an   accused  person's  flight  may  be 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  23 

(<?)  The  question  is,  whether  A  suffered  damage  in  a  railway 
accident. 

The  fact  that  A  conspired  with  B,  C,  and  D  to  suborn  false  wit- 
nesses in  support  of  his  case  is  deemed  to  be  relevant,1  as  conduct 
subsequent  to  a  fact  in  issue  tending  to  show  that  it  had  not  happened. 

Article  8.* 

statements    accompanying    acts,     complaints,    statements 
in  presence  of  a  person. 

Whenever  any  act  may  be  proved,  statements  accom- 
panying and  explaining  that  act  made  by  or  to  the  per- 
son doing  it  may  be  proved,  if  they  are  necessary  to 
understand  it.2 


*  See  Note  V.  [Appendix  ;  also  Art.  3,  note], 
shown,  not  as  creating  a  legal  presumption  of  guilt,  but  as  having  a 
tendency  to  establish  his  guilt  {Allen  v.  U.  S.,  164  U.  S.  492  ;  Conun. 
v.  Boroschino,  176  Pa.  103;  People  v.  Ross,  115  Cal.  233;  Comm.v. 
Annis,  15  Gray,  197  ;  People  v.  Ogle,  104  N.  Y.  511  ;  Fox  v.  People, 
95  111.  71) ;  his  attempt  to  avoid  or  escape  arrest  or  to  escape  from 
jail  {Jamison  v.  People,  145  111.  357;  Comm.  v.  Brigham,  147  Mass. 
414  ;  State  v.  Jackson,  95  Mo.  623  ;  State  v.  Stevens,  67  la.  557)  ;  his 
advice  to  an  accomplice  to  escape  {People  v.  Rathbnn,  21  We'nd.  509) ; 
his  possession  of  property  obtained  by  the  crime  {Stover  v.  People,  56 
N.  Y.  315  ;  Linsday  v.  People,  63  N.  Y.  143  ;  Comm.  v.Parmenler,  101 
Mass.  211  ;  Brown  v.  Comm.,  76  Pa.  319)  ;  his  acts  in  disposal  of  such 
property  {Foster  v.  People,  63  N.  Y.  619) ;  his  giving  a  false  account  of 
himself  when  arrested  {Comm.  v.  Goodwin,  14  Gray,  55;  People  v. 
Conroy,  97  N.  Y.  62,  80) ;  his  conduct  after  the  crime  was  committed. 
Greenfield  v .  People,  85  N.  Y.  75  ;  People  v.  Welsh,  63  Cal.  167  ;  and 
see  Ruloff's  case,  11  Abb.  Pr.  (N.  S.)  245.] 

1  Moriarty  v.  London,  Chatham  and  Dover  Ry.  Co.,  L.  R.  5  Q.  B. 
314  ;  compare  Gery  v.  Red/nan,  1  Q.  B.  D.  161.  [Fgan  v.  Bowker,  5 
Allen,  449  ;  Heslop  v.  Heslop,  82  Pa.  537  ;  Gulercile  v.  McKinley,  27 
Hun,  320;  Lyons  v.  Lawrence,  12  111.  App.  531.  So  as  to  bribing  a 
juror.  Hastings  v.  Stetson,  130  Mass.  76 ;  Taylor  v.  Gilman,  60  N.  H. 
506 ;  see  p  22,  note  3,  supra.} 

5  Illustrations  {a),  {ad),  {ac),  {b)  and  {ba).  Other  statements  made 
by  such  persons  are  relevant  or  not  according  to  the  rules  as  to  state- 


24  A  DIGEST  OF  [Part  I. 

In  criminal  cases  [of  rape]  the  conduct  of  the  person 
against  whom  the  offence  is  said  to  have  been  committed, 
and  in  particular  the  fact  that  soon  after  the  offence 
[she]  made  a  complaint  to  persons  to  whom  [she]  would 
naturally  complain,  are  deemed  to  be  relevant  ; '  but  the 
terms  of  the  complaint  itself  seem  to  be  deemed  to  be 
irrelevant. 


ments  hereinafter  contained.  See  Ch.  IV '.  post.  [Ay  lesford  Peerage 
Case,  L.  R.  n  App.  Cas.  i  ;  Swift  v.  Life  his.  Co.,  63  N.  Y.  186,  190  ; 
Kingsford  v.  Hood,  105  Mass.  495  ;  Place  v.  Gould,  123  Mass.  347  ; 
Merkel's  Appeal,  89  Pa.  340.] 

1  Illustration  (c).  [The  form  in  which  this  rule  is  stated  by  Mr. 
Stephen  makes  it  applicable  to  all  criminal  cases  (he  omits  the  words 
"of"  rape"  and  has  "he"  for  "she"  in  the  fourth  line),  but  the 
rule  is  regarded  in  this  country  as  one  peculiar  to  cases  of  rape, 
and  it  is  at  least  questionable  whether  it  applies  to  other  crimes  even 
under  English  law.  There  appear  to  be  only  two  English  decisions 
extending  the  rule  to  other  crimes  than  rape,  and  they  are  both  nisi 
prius  cases  and  of  slight  value.  (This  subject  is  fully  discussed  in  the 
Am.  Law  Rev.,  xiv.  829-838  ;  and  see  Haynes  v.  Co/nm.,  28  Gratt.  942.) 
Still  the  doctrine  of  res  gestce,  as  applied  to  other  crimes,  is  sometimes 
extended  so  far  as  to  make  the  analogy  to  cases  of  rape  a  noticeable 
one  (see  Driscoll  v.  People,  47  Mich.  413) ;  and  in  some  States  an 
analogous  rule  is  applied,  under  statutes,  to  bastardy  cases  (Benton  v. 
Starr,  58  Ct.  285  ;  Peed  v.  Haskins,  1 16  Mass.  198). 

This  rule,  as  applied  to  cases  of  rape  (or  an  attempt  to  commit  rape), 
is  fully  supported  by  American  decisions  (Baccio  v.  People,  41  N.  Y. 
265  ;  People  v.  O'  Sullivan,  104  N.  Y.  481  ;  State  v.Ivins,  36  N.  J.  L. 
233  ;  State  v.  Cook,  92  la.  483  ;  Cross  v.  State,  132  Ind.  65  ;  State  v. 
Carroll,  67  Vt.  477  ;  Stevens  v.  People,  158  111.  ill  ;  Parker  v.  State, 
67  Md.  329  ;  Lee  v.  State,  74  Wis.  45  ;  People  v.  Stewart,  97  Cal.  238). 
In  these  cases  evidence  of  the  particulars  or  details  of  the  complaint 
was  held  not  admissible,  and  such  is  the  general  American  rule  ;  but 
in  some  States  such  evidence  is  admitted  (State  v.  Kinney,  44  Ct.  153 ; 
Burt  v.  State,  23  O.  St.  394  ;  Hill  v.  State,  5  Lea,  725),  and  by  a  recent 
decision  this  is  now  the  English  rule  (R.  v.Lilly»ian,  [1896]  2  Q.  13. 
167).  Some  cases,  however,  say  that  the  particulars  are  provable  only 
when  the  person  so  complaining  is  a  girl  of  tender  years  (Hannon  v. 
State,  70  Wis.  448  ;  see  People  v.  Gage,  62  Mich.  271). 

Though,  in  general,  the  complaint  must  be  made  "  soon  after  "  the 
offence,  yet  if  a  longer  delay  in  making  it  be  adequately  explained, 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  25 

When  a  person's  conduct  is  in  issue,  or  is  deemed  to  be 
relevant  to  the  issue,  statements  made  in  his  presence 
and  hearing  by  which  his  conduct  is  likely  to  have  been 
affected,  are  deemed  to  be  relevant.' 


as  e.  g.,  if  the  delay  be  due  to  threats  made  by  the  perpetrator  of  the 
wrong,  to  duress,  to  lack  of  suitable  opportunity  to  complain,  etc.,  the 
fact  of  making  complaint  (and  also  the  particulars  in  States  admitting 
such  evidence)  may  still  be  proved  ;  and  especially  is  this  true  where 
the  injury  was  done  to  a  child.  Thus  a  delay  of  several  days,  and  in 
some  States  even  of  several  weeks  or  months,  when  thus  explained, 
has  been  held  not  to  exclude  the  evidence  {State  v.  Reid,  39  Minn. 
277  ;  People  v.  Duncan,  104  Mich.  303  ;  Dunn  v.  State,  45  O.  St.  249  ; 
People  v.  Terwilliger,  74  Hun,  310,  142  N.  Y.  629  ;  State  v,  Byrne,  47 
Ct.  465  ;  State  v.  Wilkins,  66  Vt.  1  ;  Jackson  v.  State,  91  Wis.  253). 
In  such  cases,  however,  the  lapse  of  time  may  be  considered  by  the 
jury  as  affecting  the  weight  of  the  evidence.    (Id.) 

The  making  of  a  complaint  is  generally  said  to  be  admissible, 
not  as  constituting  part  of  the  res  gestce,  but  as  a  fact  corroborative  of 
the  testimony  of  the  complainant  (Gr.  Ev.  iii.  §  213  ;  Baccio  v.  People, 
41  N.  Y.  265,  268  ;  State  v.  Mitchell,  68  la.  116  ;  R.  v.  Lillyman,  [1896] 
2  Q.  B.  167  ;  Am.  Law  Rev.,  xiv.  832  ;  see  the  cases  supra).  Hence,  if 
she  does  not  testify,  the  evidence  is  not  received,  and  that  too,  even 
though  she  is  incompetent  to  testify  {Hornbeck  v.  State,  35  O.  St.  277  ; 
State  v.  Meyers,  46  Neb.  152).  Some  American  decisions  hold,  how- 
ever, that  complaints  made  "immediately  after"  the  commission  of 
the  wrong  are  admissible  as  part  of  the  res  gestce  {People  v.  Gage,  62 
Mich.  271  ;  McMurrin  v.  Rigby,  80  la.  322  ;  Snow  den  v.  U.  S.,  2  App. 
D.  C.  89  ;  see  Note  V.,  Appendix). 

The  particulars  of  the  complaint  may  be  elicited  on  cross-exami- 
nation of  the  complainant,  or  may  be  proved  to  confirm  her  testimony 
after  it  has  been  impeached.  State  v.  Jones,  61  Mo.  232  ;  Barnett  v. 
State,  83  Ala.  40  ;  State  v.Langford,  45  La.  Ann.  1177.] 

1 R.  v.  Edmunds,  6  C.  &  P.  164  ;  Neil  v.  Jakle,  2  C.  &  K.  709. 
[Illustration  (d).  This  is  because  tacit  acquiescence  in  such  state- 
ments may  be  deemed  an  admission  of  their  truth  {Proctor  v.  Old 
Colony  R.  Co.,  154  Mass.  251  ;  Johnson  v.  Day,  78  Me.  224  ;  Jewett  v. 
Banning,  21  N.  Y.  27).  The  rule  applies  when  the  statements  made 
impute  a  crime,  as  well  as  in  other  cases  {Kelley  v.  People,  55  N.  Y.  565  ; 
Comm.  v.  Galavan,  9  Allen,  271  ;  Ettinger  v.  Comtn.,  98  Pa.  338 ;  State 
v.  Reed,  62  Me.  129  ;  Watt  v.  People,  126  111.  9  ;  Conway  v.  State,  118  Ind. 
482  ;  see  Art.  21,  note,  post) ;  but  it  does  not  apply  if  the  person  be  in- 


26  A  DIGEST  OF  [Part  I. 


Illustrations. 

(a)  The  question  is,  whether  A  committed  an  act  of  bankruptcy,  by 
departing  the  realm  with  intent  to  defraud  his  creditors. 

Letters  written  during  his  absence  from  the  realm,  indicating  such 
an  intention,  are  deemed  to  be  relevant  facts.1 

{ab)  [The  question  is,  whether  a  written  paper  which  A  destroyed 
was  his  will,  and  what  was  his  intent  in  destroying  it. 

Statements  made  by  A  at  the  time  of  destruction  that  the  paper  was 
his  will  and  giving  his  reasons  for  the  act  were  deemed  to  be  relevant. 
But  statements  made  after  the  destruction  were  deemed  not  to  be 
relevant.]2 

(ac)  [The  question  is,  whether  a  person  is  domiciled  in  the  town  of  B. 

Statements  made  by  him,  accompanying  his  removal  from  B  to 
the  city  of  C,  that  he  intended  to  make  his  home  in  C,  are  deemed  to 
be  relevant.]3 


capable  of  hearing  or  understanding  the  statements,  though  these  are 
made  in  his  presence  [Ldnergan  v.  People,  39  N.  Y.  39  ;  Wright  v. 
Maseras,  56  Barb.  521  ;  Martin  v.  Capital  his.  Co.,  85  la.  643  ;  Tufts  v. 
Charlestown,  4  Gray,  537  ;  Comm.  v.  Sliney,  126  Mass.  49).  So  if  the 
statements  are  made  in  a  judicial  proceeding,  silence  does  not  admit 
their  truth,  since  there  is  no  opportunity  to  respond  {People  v.  Willett, g2 
N.  Y.  29 ;  Collier  v.  Dick,  1 1 1  Ala.  263  ;  State  v.  Mullins,  101  Mo.  514; 
State  v.  Boyle,  13  R.  I.  537  ;  Johnson  v.  Holliday,  79  Ind.  151  ;  but  see 
B 'lane hard  v.Hodgkins,  62  Me.  119).  Nor  does  "silence  give  consent," 
if  the  circumstances  are  such  as  would  not  naturally  call  for  a  reply  or 
explanation  {Drury  v.  Hervey,  126  Mass.  519;  People  v.  Koerner, 
154  N.  Y.  355  ;  Fry  v.  Stowers,  92  Va.  13  ;  Peck  v.  Ryan,  1 10  Ala.  336 ; 
People  v.  Larubia,  140  N.  Y.  87 ;  Pierce 's  Admr-.  v.  Pierce,  66  Vt.  369 ; 
cf.  Hoffmann  v.  Hoffmann's  Excr.,  126  Mo.  486).  If  a  reply  is  actually 
made  in  any  case,  it  is  admissible  in  evidence  with  the  statement. 
Comm.  v.  Trefethcn,  157  Mass.  180  ;  People  v.  Driscoll,  107  N.  Y.  414  ; 
Slate  v.Rogers,  108  Mo.  202.] 

1  Raivson  v.  Haigh,  2  Bing.  99  ;  Batcman  v.  Bailey,  5  T.  R.  512. 
[  Eighmy  v.  People,  79  N.  Y.  546  ;    Waterman  v.  Whitney,  11  N.  Y. 

I57-] 

3  [Viles  v.  Waltham,  157  Mass.  542  ;  Fulham  v.  Howe,  62  Vt.  386  ; 
Deer  Isle  v.  Winterport,  87  Me.  37;  Roberts  Will,  8  Pai.  519;  cf. 
Chicago,  etc.  R.  Co.  v.  Chancellor,  165  111.  438.  So  where  a  person  on 
leaving  home  and  in  going  elsewhere  to  stay  or  live,  states  his  reasons 
for  so  doing,  such  declarations  are  admissible,  being  part  of  the  res 
gestae  {Johnson  v.  Sherivin,  3  Gray,  374  ;  Hunter  v.  State,  40  N.  J.  L. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  37 

(b)  The  question  is,  whether  A  was  sane. 

The  fact  that  he  acted  upon  a  letter  received  by  him  is  part  of  the 
facts  in  issue.  The  contents  of  the  letter  so  acted  upon  are  deemed 
to  be  relevant,  as  statements  accompanying  and  explaining  such 
conduct.1 

(ba)  [The  question  is,  whether  B  is  liable  for  the  malicious  prosecu- 
tion of  A. 

The  information  as  to  A's  guilt  upon  which  B  relied  in  instituting 
the  prosecution  is  deemed  to  be  relevant,  as  tending  to  show  whether 
A  had  probable  cause  for  the  prosecution  and  was  or  was  not  actuated 
by  malice.]'2 

(c)  The  question  is,  whether  A  was  ravished. 

The  fact  that,  shortly  after  the  alleged  rape,  she  made  a  complaint 
relating  to  the  crime,  and  the  circumstances  under  which  it  was  made, 
are  deemed  to  be  relevant,  but  not  (it  seems)  the  terms  of  the  com- 
plaint itself.3 

The  fact  that,  without  making  a  complaint,  she  said  that  she  had  been 
ravished,  is  not  deemed  to  be  relevant  as  conduct  under  this  Article, 
though  it  might  be  deemed  to  be  relevant  (e.g.)  as  a  dying  declaration 
under  Article  26. 

(d)  [The  question  is,  whether  A  committed  arson. 

The  fact  that  at  the  fire  or  soon  afterwards  A's  son  said  to  him, 
"  What  did  you  want  to  set  this  afire  for  ?  "  and  that  he  made  no  reply, 
is  deemed  to  be  relevant.]4 


495  ;  Rudd  v.  Rounds,  64  Vt.  432  ;  Cattison  v.  Cattison,  11  Pa.  275  ; 
Robinson  v.  State,  57  Md.  14  ;  cf.  Mutual  Life  Ins.  Co.  v.  Hillmon,  145 
U.  S.  285).  So  replies  given  at  the  house  of  an  absent  defendant  to  the 
sheriff,  who  is  attempting  to  serve  process  upon  him,  are  admissible 
to  show  whether  he  can  be  found  or  is  evading  service.  Buswell  v. 
Lincks,  8  Daly,  518 ;  Gr.  Ev.  i.  §  101.] 

1  Wright  v.  Doe  d.  Tat/iam,  7  A.  &  E.  324-5  (per  Denman,  C.  J.). 
[See  Barber's  Appeal,  63  Ct.  393  ;  Fosters  Excrs.  v.  Dickerson,  64  Vt. 

233-] 

*  \Fitzgibbon  v.  Brown,  43  Me.  169  ;  Dwain  v.  Descalso,  66  Cal.  415. 
So  as  to  actions  for  false  imprisonment.  Neall  v.  Hart,  115  Pa.  347  ; 
Perryman  v.  Lister,  L.  R.  4  E.  &  I.  App.  521.] 

3  7?.  v.  Walker,  2  M.  &  R.  212.  See  Note  V.,  Appendix.  [In  England 
now  evidence  is  received  of  the  particulars  of  the  complaint.  R.  v. 
Lillyman,  [1896]  2  Q.  B.  167.] 

i[Comm.v.  Brailey,  134  Mass.  527  ;  see  Brown  v.  State,  32  Tex. 
App.  119.] 


28  A  DIGEST  OF  [Part  I. 

Article  9. 

facts  necessary  to  explain  or  introduce  relevant  facts. 

Facts  necessary  to  be  known  to  explain  or  introduce  a 
fact  in  issue  or  relevant  or  deemed  to  be  relevant  to  the 
issue,  or  which  support  or  rebut  an  inference  suggested 
by  any  such  fact,  or  which  establish  the  identity  of  any 
thing  or  person  whose  identity  is  in  issue  or  is,  or  is 
deemed  to  be,  relevant  to  the  issue,  or  which  fix  the  time 
or  place  at  which  any  such  fact  happened,  or  which  show 
that  any  document  produced  is  genuine  or  otherwise,  or 
which  show  the  relation  of  the  parties  by  whom  any  such 
fact  was  transacted,  or  which  afforded  an  opportunity  for 
its  occurrence  or  transaction,  or  which  are  necessary  to 
be  known  in  order  to  show  the  relevancy  of  other  facts, 
are  deemed  to  be  relevant  in  so  far  as  they  are  necessary 
for  those  purposes  respectively.1 

Illustrations, 
(a)  The  question   is,  whether  a  writing   published  by  A  of  B  is 
libelous  or  not. 
The  position  and  relations  of  the  parties  at  the  time  when  the  libel 


1  [As  to  evidence  of  identity,  see  Udderzook  v.  Comm.,  76  Pa.  340  ; 
Johnson  v.  Comm.,  115  Id.  369;  Comm.  v.  Campbell,  155  Mass.  537; 
State  v.  Witham,  72  Me.  531  ;  of  the  relations  of  the  parties,  Meltz- 
ger  v.  Doll,  91  N.  Y.  365  ;  Craig's  Appeal,  jy  Pa.  448  ;  Siberry  v. 
State,  133  Ind.  677  ;  Roach  v.  Caldbeck,  64  Vt.  593  ;  to  support  or 
rebut  an  inference  suggested  by  other  facts  in  evidence,  State  v. 
A  damson,  43  Minn.  196  ;  O'Brien  v.  Comm.,  89  Ky.  354  ;  Morris  v. 
Spojford,  127  Mass.  85.  For  other  cases  of  relevant  evidence  under 
this  Article,  see  Pontius  v.  People,  82  N.  Y.  339, 350 ;  Bronner  v.  Frauen- 
thal,  37  N.  Y.  166  ;  Quincey  v.  White,  63  N.  Y.  370,  380  ;  Comm.  v. 
Annis,  15  Gray,  197;  Comm.  v.  Williams,  105  Mass.  62;  People  v. 
Whitson,  43  Mich.  421  ;  Wagenseller  v.  Simmers,  97  Pa.  465  ;  for 
cases  of  irrelevant  evidence,  see  Barnes  v.  Keene,  132  N.  Y.  13  ;  Phil. 
R.  Co.  v.  Henrice,  92  Pa.  431  ;  Thompson  v.  Bowie,  4  Wall.  463; 
Craves  v.  Jacobs,  8  Allen,  141.] 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  2g 

was  published  may  be  deemed  to  be  relevant  facts  as  introductory  to 
the  facts  in  issue.' 

The  particulars  of  a  dispute  between  A  and  B  about  a  matter  un- 
connected with  the  alleged  libel  are  not  deemed  to  be  relevant  under 
this  Article,  though  the  fact  that  there  was  a  dispute  may  be  deemed 
to  be  relevant  if  it  affected  the  relations  between  A  and  B.1 

(b)  The  question  is,  whether  A  wrote  an  anonymous  letter,  threaten- 
ing B,  and  requiring  B  to  meet  the  writer  at  a  certain  time  and  place 
to  satisfy  his  demands. 

The  fact  that  A  met  B  at  that  time  and  place  is  deemed  to  be 
relevant,  as  conduct  subsequent  to  and  affected  by  a  fact  in  issue. 

The  fact  that  A  had  a  reason,  unconnected  with  the  letter,  for  being 
at  that  time  at  that  place,  is  deemed  to  be  relevant,  as  rebutting  the 
inference  suggested  by  his  presence.'2 

(c)  A  is  tried  for  a  riot,  and  is  proved  to  have  marched  at  the  head 
of  a  mob.  The  cries  of  the  mob  are  deemed  to  be  relevant,  as  explan- 
atory of  the  nature  of  the  transaction.3 

(d)  The  question  is,  whether  a  deed  was  forged.  It  purports  to  be 
made  in  the  reign  of  Philip  and  Mary,  and  enumerates  King  Philip's 
titles. 

The  fact  that,  at  the  alleged  date  of  the  deed,  Acts  of  State  and 
other  records  were  drawn  with  a  different  set  of  titles,  is  deemed  to 
be  relevant.4 

(e)  The  question  is,  whether  A  poisoned  B,  Habits  of  B  known  to 
A,  which  would  afford  A  an  opportunity  to  administer  the  poison,  are 
deemed  to  be  relevant  facts.5 

(/)  The  question  is,  whether  A  made  a  will  under  undue  influence. 


1  Common  practice. 

2  R.  v.  Barnard,  19  St.  Tri.  815,  &c.  [S.  P.  Hoar  v.  Abbott,  146 
Mass.  290  ;  Schlemmer  v.  State,  51  N.  J.  L.  23  ;  People  v.  Dixon,  94 
Cal.  255  ;  Pr indie  v.  Glover,  4  Ct.  266  ;  Comm.  v.  Brady,  7  Gray,  320.] 

z  R.x.  Lord  George  Gordon,  21  St.  Tri.  520.  [See  Stone  v.  Segur, 
11  Allen,  568  ;  Goins  v.  State,  46  O.  St.  457  ;  Comm.  v.  Ratcliffe,  130 
Mass.  36  ;  Alexander  v.  U.  S.,  138  U.  S.  353  ;  McRae  v.  State,  71 
Ga.  96.] 

4  Lady  Lvy's  Case,  10  St.  Tri.  615. 

6  R.  v.  Donellan,  Wills'  Circ.  Ev.  192  ;  and  see  my  "  History  of  the 
Criminal  Law,"  ill,  371.  [Cf.  McMeed  v.  Conwi.,  114  Pa.  300;  People 
v.  Buchanan,  145  N.  Y.  1.] 


3o  A  DIGEST  OF  [Part  I. 

His  way  of  life  and  relations  with  the  persons  said  to  have  influenced 
him  unduly,  are  deemed  to  be  relevant  facts.1 

(g)  [The  question  is,  whether  A,  an  infant  child,  who  was  killed 
while  on  his  way  from  England  to  this  country,  was  domiciled  in 
New  York  State  at  the  time  of  his  death. 

The  fact  that  his  father,  having  resided  in  England,  had  lived  in 
New  York  several  months  prior  to  A's  death,  and  had  come  there  for 
the  purpose  of  making  his  home  and  living  in  that  State,  is  deemed 
to  be  relevant.]  '2 

(k)  [The  question  is,  whether  a  gold  watch,  chain,  and  locket,  sold 
to  a  wife,  are  necessaries,  for  which  the  husband  should  pay. 

The  fact  that  the  husband  wore  diamonds,  and  kept  a  fast  horse,  and 
had  paid  for  silk  dresses  worn  by  her,  is  deemed  to  be  relevant.]3 

id)  [The  question  is,  whether  A  was  employed  by  B. 

Conduct  of  A  during  the  term  of  such  employment,  inconsistent  with 
the  theory  of  such  employment,  is  deemed  to  be  a  relevant  fact.]4 

(/)  [The  question  is,  whether  A  has  survived  his  partner  B. 

Evidence  that  a  person  having  the  same  name  as  B  has  died  at  the 
place  of  B's  residence,  is  deemed  to  be  relevant.]5 

(k)  [The  question  is,  whether  A  has  been  appropriating  his  em- 
ployer's property. 

The  fact  that  for  several  years  A  has  been  living  far  beyond  his 
apparent  means  is  deemed  to  be  relevant,  as  tending  to  confirm  other 
evidence  of  dishonesty  in  taking  the  employer's  property.]6 

(/)  [The  question  is,  whether  A  murdered  B. 

Evidence  is  relevant  which  tends  to  identify  a  body  found  six  months 
after  B's  disappearance  as  that  of  B  by  showing  similarity  in  the  color 
of  the  hair,  in  the  size  of  the  body,  in  the  appearance  of  the  teeth,  etc. 


'  Boyse  v.  Rossborough,  6  H.  L.  C.  42-58.  [Horn  v.  Pullman,  72  N. 
Y.  269  ;  Coil  v.  Patchen,  77  N.  Y.  533  ;  May  v.  Bradlee,  127  Mass.  414  ; 
Spruit  v.  Spratt,  76  Mich.  384  ;  Frew  v.  Clarke,  80  Pa.  170  ;  Griffith 
v.  Diffenderffer,  50  Md.  466  ;  Kenyon  v.  Ashbridge,  35  Pa.  157.] 

2  [Kennedy  v.  Ryall,  67  N.  Y.  379.] 

s[Raynes  v.  Bennett,  1 14  Mass.  424.] 

*  [Miller  v.  Irish,  63  N.  Y.  652.] 

b[Daby  v. Ericsson,  45  N.  Y.  786.  Identity  of  name  is,  in  general, 
prima  facie  evidence  of  identity  of  person.     See  Art.  101,  note.] 

6  [Hackett  v.  King,  8  Allen,  144  ;  Martin  v.  State,  104  Ala.  71  ;  see 
N.  Y.  etc.  Ferry  Co.  v.  Moore,  1  N.  Y.  St.  R.  374,  102  N.  Y.  667  ;  Bos- 
Ion  &*  W.  R.  Co.  v.  Dana,  1  Gray,  83.] 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  31 

Evidence  of  the  following  facts  is  also  deemed  relevant . — that  blood- 
stains were  found  on  boards  where  an  accomplice  of  A  testified  the 
body  of  B  had  been  placed  ;  that  these  stains  were  of  human  blood  ; 
that  A  had  B's  watch  in  his  possession  a  few  months  after  B's  dis- 
appearance ;  that  the  accomplice  was  absent  from  home  on  the  night 
when,  as  he  swore,  he  aided  A  in  removing  the  body  to  another  place; 
that  A  was  seen  on  this  night  to  ride  in  the  direction  of  this  place.] ' 

(m)  [A,  having  suffered  injury  from  the  defective  condition  of  a 
highway,  machine,  structure,  etc.,  sues  B  (the  city  in  which  the  high- 
way lies,  or  the  owner  of  the  machine,  etc.),  claiming  that  such  defect 
and  the  consequent  injury  are  attributable  to  B's  negligence. 

Evidence  that  after  the  injury  happened  to  A,  the  defect  was 
repaired  by  B,  is  deemed  not  to  be  relevant  for  the  purpose  of  prov- 
ing that  B  was  negligent,  as  alleged,  before  the  injuryj'2 

(n)  [The  question  is,  whether  A,  a  physician,  has  been  guilty  of  mal- 
practice and  neglect. 

The  fact  that  A  has  not  presented  any  bill  or  asked  any  pay  for  his 
services  is  deemed  not  to  be  relevant.]3 

(0)  [The  question  is,  whether  a  credit  for  goods  sold  was  given  to 
the  defendant  or  his  son. 

Evidence  that  the  son  had  no  property  at  the  time  of  the  sale,  and 
was  entirely  irresponsible,  is  deemed  not  to  be  relevant.]4 


1  [Linsday  v.  People,  63  N.  Y.  143  ;  see  Greenfield  v.  People,  85  N. 
Y.  75  ;  People  v.  Beckwith,  108  N.  Y.  67  ;  People  v.  Johnson,  140  N.  Y. 
350;  State  v.  Ward,  61  Vt.  153;  People  v.  Sanders,  114  Cal.  216; 
Comm.  v.  Dorsey,  103  Mass.  412.] 

2  [Corcoran  v.  Peekskill,  108  N.  Y.  151  ;  Morse  v .  Minneapolis,  etc. 
R.  Co.,  30  Minn.  465;  Nal ley  v.  Hartford  Carpet  Co.,  51  Ct.  524  ; 
Langworthy  v.  Green  Township,  88  Mich.  207  ;  Lang  v.  Sanger,  76 
Wis.  71  ;  Terr e  Haute,  etc.  R.  Co.  v.  Clem,  123  Ind.  15  ;  Skinners  v. 
Proprietors,  154  Mass.  168  ;  Columbia  R.  Co.  v.  Hawthorne,  144  U.  S. 
202;  Sappenfield  v.  Alain  St.  R.  Co.,  91  Cal.  48.  In  some  States, 
however,  such  evidence  is  deemed  competent  as  an  implied  ad- 
mission of  prior  negligence.     (Id.)] 

z[Baird  v.  Gillctt,  47  N.  Y.  186  ;  cf.  McBride  v.  Grand  Rapids, 
49  Mich.  239  ;  Barnes  v.  Keene,  132  N.  Y.  13.] 

4  [Green  v.  Disbroiu,  56  N.  Y.  334  ;  but  see  Lee  v.  Wheeler,  1 1  Gray, 
236  ;  cf.  Buswell  Trimmer  Co.  v.  Case,  144  Mass.  350  ;  Canaday  v. 
Krum,  83  N.  Y.  67,  73  ;  McLoghliu  v.  Mohawk,  etc.  Bk.,  139  N.  Y. 
5I4,524-] 


32  A  DIGEST  OF  [Part  I. 

(p)  [The  question  is,  whether  A,  the  maker  of  a  promissory  note, 
paid  it  shortly  before  he  died. 

Evidence  that  for  a  year  before  his  death  he  had  been  hopelessly 
insolvent,  and  had  had  great  difficulty  in  procuring  means  to  meet 
his  obligations,  is  deemed  not  to  be  relevant.  "  It  is  common  for  both 
solvent  and  insolvent  men  to  pay  some  of  their  debts  and  to  leave 
some  unpaid."] ' 

(q)  [The  question  is,  whether  an  executor  is  liable  to  pay  a  note  of 
long  standing,  signed  by  his  testator. 

Evidence  that  the  testator  was  in  the  habit  of  paying  his  debts 
promptly,  or  that  another  person  had  agreed  to  pay  them  for  him,  or 
that  he  made  a  list  of  his  debts  in  which  this  note  was  not  included,  is 
deemed  not  to  be  relevant  for  the  purpose  of  proving  that  the  note 
has  already  been  paid.]2 

(r)  [The  question  is,  whether  A  is  the  father  of  B,  a  young  child. 

Evidence  that  B  resembles  A,  or  counter-evidence  to  show  non- 
resemblance,  is  deemed  not  to  be  relevant.3  But,  by  some  decisions, 
B  may  be  exhibited  to  the  jury  to  enable  them  to  judge,  from  its 
resemblance  or  non-resemblance  to  A,  whether  A  is  its  father.]4 


1  [Xenia  Bk.  v.  Stewart,  114  U.  S.  224  ;  but  see  Atwoodv.  Scott,  99 
Mass.  177  ;  cf.  Bean  v.  Tonnele,  94  N.  Y  381.] 

'2[Abercrombie  v.  Sheldon,  8  Allen,  532;  cf.  Martin  v.  Shannon, 
92  la.  374  ;  Burke  v.  Kaley,  138  Mass.  464  ;  Carroll  v.  Deimel,  95  N. 
Y.  252.] 

3[  Young  v.  Makepeace,  103  Mass.  50  ;  Jones  v.  Jones,  45  Md.  144  ; 
Eddy  v.  Gray,  4  Allen,  435  ;  cf .  People  v.  Carney,  29  Hun,  47  ;  but  see 
Faulk  v.  State,  52  Ala.  427.] 

4  [Gaunt  v.  State,  50  N.  J.  L.  490  ;  Scott  v.  Donovan,  153  Mass.  378  ; 
Crow  v.  Jordan,  49  O.  St.  655;  Gilmantonv.  Ham,  38  N.  H.  108; 
contra,  Rcitz  v.  State,  33  Ind.  187  ;  Clark  v.  Bradstreet,  80  Me.  454  ; 
Hanawalt  v '.  State,  64  Wis.  84  ;  Robnetl  v.  People,  16  111.  App.  299. 
In  Iowa  it  has  been  held  that  a  child  two  years  and  one  month  old 
might  be  exhibited  to  the  jury  {State  v.  Smith,  54  la.  104),  but  not  a 
child  three  months  old,  because  at  such  an  age  its  features  would  be 
too  immature  (State  v.  Danforth,  48  la.  43).  A  photograph  of  the 
alleged  father  has  been  admitted  in  evidence,  after  his  death,  for  the 
purpose  of  comparison  with  the  child,  the  latter  being  old  enough  to 
have  sufficiently  developed  features.  Shorten  v  Judd,  56  Kan.  43  ; 
see  Farrell  v.  IVezts,  160  Mass.  288  ;  cf.  McKenna  v.  Paper  Co.,  176 
Pa.  309,  where  photographs  were  compared  with  each  other  in  order 
to  ascertain  a  person's  identity.] 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  33 

(s)  [The  question  is,  whether  A  is  insane. 

The  fact  that  his  father,  mother,  or  other  blood  relation  is  or  has 
been  insane,  is  deemed  to  be  relevant.]1 


1  [State  v.  Hoyt,  47  Ct.  518  ;  Prentis  v.  Bates,  93  Mich.  234  ;  Baxter 
v.  Abbott,  7  Gray,  71  ;  Shaeffer  v.  State,  61  Ark.  241  ;   Walsh  v.  People, 
88  N.  Y.  458.     But  as  to  some  kinds  of  insanity,  it  may  be  necessary 
to  prove  them  to  be  inheritable  in  order  to  make  such  evidence  com-, 
petent ;  so  held  as  to  melancholia  from  intemperance.  Reichenbach  v. ' 
Ruddach,  127  Pa.  564.] 


34  A  DIGEST  OF  [Part  I. 


CHAPTER   III. 

OCCURRENCES  SIMILAR  TO  BUT  UNCONNECTED 
WITH  THE  FACTS  IN  ISSUE,  IRRELEVANT  EXCEPT 
IN  CERTAIN  CASES. 

Article  io.* 

similar  but  unconnected  facts. 

A  fact  which  renders  the  existence  or  non-existence  of 
any  fact  in  issue  probable  by  reason  of  its  general  resem- 
blance thereto,  and  not  by  reason  of  its  being  connected 
therewith  in  any  of  the  ways  specified  in  Articles  3-9, 
both  inclusive,  is  deemed  not  to  be  relevant  to  such  fact,1 
except  in  the  cases  specially  excepted  in  this  chapter. 


*  See  Note  VI.  [Appendix]. 
1  [Barney  v.  Richard,  157  U.  S.  352  ;  Wise  v.  Ackerman,  76  Md.  375. 
But  where  the  question  is  as  to  the  cause  of  a  certain  occurrence, 
the  fact  that  similar  occurrences  have,  under  like  conditions,  been 
produced  by  a  particular  cause  is  deemed  to  be  relevant  {Evans  v. 
Keystone  Gas  Co.,  148  N.  Y.  112;  Rockford  Gas  Light  Co.  v.  Ernst, 
68  111.  App.  300)  ;  and  where  the  question  is  whether  a  certain  state  of 
things  existed  at  a  given  time,  the  fact  that  a  cause  was  in  operation 
which,  under  like  conditions,  constantly  produced  such  a  result,  is 
deemed  to  be  relevant  (Up/iam  v.  Salem,  162  Mass.  483).  So  the 
quality  of  an  act  or  thing,  as  prudent  or  negligent,  safe  or  dangerous, 
etc.,  may  be  exhibited,  by  showing  that  under  like  conditions  it  has 
produced  similar  favorable  or  injurious  results,  as  in  the  case  in 
question  (see  Illustrations  //  to  m).  This  rule  is  analogous  to  that 
stated  in  Article  12, post.  But  if  the  conditions  are  not  substantially 
the  same  in  all  cases,  the  evidence  is  not  relevant.  Morse  v.  Minn. 
etc.  R.  Co.,  30  Minn.  465;  Hunt  v.  Lowell  Gas  Co.,  8  Allen,  169; 
Cleveland,  etc.  R.  Co.  v.  Newell,  104  Ind.  264  ;  Bloomington  v.  Legg, 
151  111.  9;  Shepardv.  Hill,  151  Mass.  540  ;  Randolph  v.  Bloomfield, 
77  la.  50  ;  Brewing  Co.  v.  Bauer,  50  O.  St.  560  ;  GriJJin  v.  Auburn,  58 
N.  H.  121  ;  Hodgkins  v.  Chappell%  128  Mass.  197  1  cf.  Stale  v.  Flint, 
60  Yt.  304.] 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  35 

Illustrations. 

(a)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  he  formerly  committed  another  crime  of  the  same 
sort,  and  had  a  tendency  to  commit  such  crimes,  is  deemed  to  be 
irrelevant.1 

(ab)  [A  is  indicted  and  brought  to  trial  for  the  robbery  of  a  bank- 
key  from  the  janitor  of  the  bank. 

Evidence  of  a  burglary  committed  on  the  bank  immediately  after 
the  taking  of  the  key,  of  the  breaking  open  of  the  safe  and  the  larceny 
of  the  valuables  therein,  is  deemed  to  be  relevant ;  also  that  defend- 
ant had  for  two  years  been  engaged  in  a  conspiracy  to  rob  the  bank, 
and  had  made  two  prior  attempts  to  carry  out  this  purpose.]'2 

(b)  The  question  is,  whether  A,  a  brewer,  sold  good  beer  to  B,  a 
publican.     The  fact  that  A  sold  good  beer  to  C,  D,  and  E,  other  pub- 


1  R.  v.  Cole,  1  Ph.  Ev.  508  (said  to  have  been  decided  by  all  the 
Judges  in  Mich.  Term,  18 10).  [People  v.  Sharp,  107  N.  Y.  427  ;  People 
v.  McLaughlin,  150  N.  Y.  365,  386  ;  Jordan  v.  Osgood,  109  Mass.  457  ; 
Costelo  v.  Crowell,  139  Mass.  588;  Janzen  v.  People,  159  111.  440; 
Boyd  v.  U.  S.,  142  U.  S.  450  ;  Shaffner  v  Comm.,  72  Pa.  60.  But  the 
commission  of  another  crime  may  be  shown,  if  it  supplies  a  motive  or 
constitutes  preparation  for  the  commission  of  the  one  in  question 
(Pierson  v.  People,  79  N.  Y.  424  ;  Comm.  v.  Choate,  105  Mass.  451, 458  ; 
Painter  v.  People,  147  111.  444;  People  v.  Harris,  136  N.  Y.  423; 
McConkey  v.  Comm.,  101  Pa.  416;  State  N.Kline,  54  la.  183;  see 
Illustration  (ab)  ;  also  Art.  7,  supra)  ;  or  if  it  tends  to  prove  any  fact 
constituting  an  element  of  the  crime  charged  (  Weed  v.  People,  56  N. 
Y.  628) ;  or  if  the  different  crimes  form  parts  of  one  general  scheme 
or  transaction  and  exhibit  the  same  general  purpose  (Illustration 
(ab)  ;  People  v.  Murphy,  135  N.  Y.  450  ;  Scott  v.  People,  141  111  195; 
Comm.  v.  Scott.  123  Mass.  222  ;  Brown  v.  Comm.,  76  Pa.  319  ;  Pa.  Co. 

for  Insurance  v,  Phila.  etc.  R.  Co.,  153  Pa.  160;  State  v.  Lee,  91  la. 
499  ;  People  v.  Mead,  50  Mich.  228  ;  People  v.  Smith,  106  Cal.  7}  ; 
Halleck  v.  State,  65  Wis.  147)  ;  and  in  other  like  cases  (see  Comm.  v. 
Jackson,  132  Mass.  16,  19  ;  Goerscn  v.  Comm.,  99  Pa.  388).  Thus 
former  attempts  to  commit  the  same  crime  may  be  proved  to  show 
criminal  intent,  the  identity  of  the  actor,  etc,  {Comm.  v.  Bradford, 
126  Mass.  42  ;  State  v.  Nugent,  71  Mo.  136  ;  Xicholas'  Case,  91  Va.  741 ; 
People  v.  O Sullivan,  104  N.  Y.  481).  These  latter  cases  fall  properly 
under  Arts.  11  and  12,  post.  The  whole  subject  is  well  discussed  in 
Farris  v.  People,  129  111.  521  and  People  v.  Sharp,  107  N.  Y.  427.] 

2  [Hope  v.  Peofile,  83  N.  Y.  418.] 


36  A  DIGEST  OF  [Part  I. 

licans,  is  deemed  to  be  irrelevant,1  (unless  it  is  shown  that  the  beer 
sold  to  all  is  of  the  same  brewing).'2 

(c)  [The  question  is,  whether  certain  shovel-handles  sold  by  A  to  B 
were  of  good  quality. 

Evidence  that  shovel-handles  sold  by  A  to  another  party  at  the  same 
time  were  of  good  quality,  is  deemed  to  be  relevant,  if  accompanied 
by  evidence  that  the  handles  sold  to  both  purchasers  were  of  the  same 
kind  and  quality.]3 

(d)  [The  question  is,  whether  A,  having  killed  a  person  at  night, 
knew  him  to  be  an  officer  of  the  law. 

The  fact  that  there  was  a  lighted  street  lamp  near  by  is  relevant,  as 
tending  to  show  that  A  could  see  the  official  uniform.  But  to  prove 
the  amount  of  light  cast  by  the  lamp  on  this  night,  evidence  showing 
the  amount  of  light  cast  by  the  same  lamp  on  a  night  four  months 
afterwards  is  irrelevant,  (the  conditions  not  being  shown  to  be  the 
same).]4 

(e)  [The  question  is,  whether  A  has  a  right  to  travel  on  a  railroad 
ticket  after  the  time  limited  therein  for  its  use,  without  the  payment 
of  fare. 

The  fact  that  he  has  at  other  times  purchased  similar  tickets  and 
used  them  after  the  time  specified,  without  being  required  to  pay  fare, 
is  irrelevant.]5 

(/)  [The  question  is,  what  is  the  value  of  a  certain  vessel. 

Evidence  to  prove  the  value  of  other  vessels  with  which  she" might 
be  compared  is  irrelevant.]6 


1  Holco)nbe  v.  Hewson,  2  Camp.  391 ;  [cf.  Lake  v.  Clark,  97  Mass. 
346.] 

s  See  Illustrations  to  Article  3  ;  [see  Comm.  v.  Goodman,  97  Mass. 
117;  Luetgertv.  Volker,  153  111.  385.] 

3  [Ames  v.  Quimby,  106  U.  S.  342  ;  cf.  Albany,  etc.  Co.  v.  Lundberg, 
121  U.  S.  451  ;  Pike  v.  Fay,  101  Mass.  134;  Thill's  Sons  v.  Perkins 
Lamp  Co.,  63  Ct.  478.] 

4  [  Yates  v.  People,  32  N.  Y.  509 ;  see  King  v.  N.  Y.  Central,  etc.  R. 
Co.,  72  N.  Y.  610;  Fillo  v.  Jones,  2  Abb.  Dec.  121  ;  Stone  v.  Ins.  Co., 
71  Mich.  81.] 

5  [Hill  v.  Syracuse,  etc.  R.  Co.,  63  N.  Y.  101  ;  cf.  Harris  v.  Howard, 
56  Vt.  695  ;  Dana  v.  Nat.  Bk.  of  Republic,  132  Mass.  156.] 

6  [Blanchard  v.  Steamboat  Co.,  59  N.  Y.  292  ;  Gouge  v.  Roberts,  53 
N.  Y.  619;  Huntington  v.  Atlrill,  118  N.  Y.  635;  but  see  Berney  v. 
Dins?nore,  141  Mass.  42  ;  Carr  v.  Moore,  41  N.  H.  iji.  But  in  Mas- 
sachusetts and  some  other  States  the  value  of  land  may  be  proved  by 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  37 

(g)  [The  question  is,  whether  a  servant  was  negligent  on  a  particular 
occasion. 

Evidence  that  he  was  negligent  on  previous  occasions  is  irrelevant; 
but  if  the  question  were  whether  the  master  was  negligent  in  retaining 
in  his  employ  a  careless  and  incompetent  servant,  evidence  of  the 
servant's  prior  acts  of  negligence  to  the  master's  knowledge,  would 
be  relevant.] ' 

(h)  [The  question  is,  what  sum  A  is  entitled  to  receive  from  B,  as 
compensation  for  services  rendered  by  A  as  B's  attorney,  agent,  or 
servant. 

Evidence  as  to  what  compensation  has  been  paid  to  other  persons 
by  B  for  similar  services  is  deemed  not  to  be  relevant.]'2 

(z)  [The  question  is,  whether  A  is  hired  by  his  employer  B  by  the 
week  or  by  the  year. 

Evidence  that  other  employees  of  B  are  hired  by  the  year  is  deemed 
to  be  irrelevant.]3 

(J)  [The  question  is,  whether  A,  having  been  injured  by  slipping 


showing  the  prices  received  upon  sales  of  other  lands  of  like  descrip- 
tion in  the  vicinity  at  times  not  too  remote  {Haven  v.  Coitnty  Commrs., 
155  Mass.  467 ;  St.  Louis,  etc.  R.  Co.  v.  Clark,  121  Mo.  169 ;  Laing  v. 
United  N.J.  R.  Co.,  54  N.  J.  L.  576;  Elmore  v.  Johnson,  143  111.  513  ; 
Mayor  oj  Baltimore  v.  Smith  Co.,  80  Md.  458;  Washburn  v.  Mil- 
waukee R.  Co.,  59  Wis.  364).  The  contrary  rule,  however,  prevails  in 
some  States  {Matter  oj  Thompson,  127  N.  Y.  463 ;  Becker  v.  Phila. 
etc.  R.  Co.,  177  Pa.  252;  Mills,  Em.  Domain,  §170;  cf.  Kerr  v.  So. 
Park  Commrs.,  117  U.  S.  379;  Witmark  v.  N.  Y.  Elev.  R.  Co.,  149 
N.  Y.  393).  What  was  paid  for  property  when  it  was  bought  is  some 
evidence  of  its  present  value,  hi  re  Johnston,  144  N.  Y.  563 ;  Ken- 
drick  v.  Beard,  90  Mich.  589.] 

1  [Baulec  v.  JV.  Y.  etc.  R.  Co.,  59  N.  Y.  356  ;  Whittaker  v.  Delaware, 
etc.  R.  Co.,  126  N.  Y.  544  ;  Western  Stone  Co.  v.  Whalen,  151  111.  472  ; 
Baltimore  Elevator  Co.  v.  Neal,  65  Md.  438 ;  Grube  v.  Mo.  Pac.  R. 
Co.,  98  Mo.  330;  cf.  Connors  v.  Morton,  160  Mass.  333;  Michigan 
Cent.  R.  Co.  v.  Gilbert,  46  Mich.  176,  contra,  Stale  v.  Railroad  Co., 
52  N.  H.  528;  see  p.  46.  n.  ^fiost ;  also  Arts.  12,  57,  and  notes.] 

3  [Playjord  v.  Hutchinson,  135  Pa.  426;  Seurer  v.  Horst,  31  Minn. 
479;  Linn  v.  Gilman,  46  Mich.  628;  Bonynge  v.  Field,  81  N.  Y.  159; 
cf.  Newhall  v.  Appleton,  102  N.  Y.  133.] 

3  [Lichtenhein  v.  Fisher,  6  App.  Div.  (N.  Y.)  385  ;  Schneider  v.  Hill, 
19  Misc.  56.] 


38  A  DIGEST  OF  [Part  I. 

and  falling  upon  a  sidewalk,  can  recover  damages  from  the  city  for 
its  alleged  neglect  to  keep  the  walk  in  a  safe  condition. 

The  fact  that  other  persons  slipped  and  fell  upon  the  same  walk, 
while  its  condition  remained  the  same  as  when  A  fell,  is  relevant  to 
show  that  it  was  unsafe  for  use  at  the  time  of  his  fall.] ' 

(/■)  [The  question  is,  whether  the  act  or  structure  of  A,  which  fright- 
ened B's  horse,  was  one  which  was  calculated  to  render  the  use  of  the  . 
highway  with  horses  dangerous.  ■ 

Evidence  that  other  horses  of  ordinary  steadiness  were  frightened  ' 
by  the  same  act  or  structure,  or  one  of  the  same  kind  under  like  cir- 
cumstances, is  relevant.] - 

(/)  [The  question  is,  whether  a  loom-attachment  will  work  success- 
fully on  a  certain  loom. 

The  fact  that  it  works  successfully  on  another  loom  of  substantially 
the  same  construction,  is  relevant.] :" 

(;;/)  [A,  having  been  injured  in  using  (as  he  lawfully  might,  as  cus- 


1  [District  of  Col.  v.  Amies,  107  U.  S.  519 ;  Quinlan  v.  Utica,  11  Hun, 
217,  74  N.  Y.  603;  Magee  v.  Troy,  48  Hun,  383,  119  N.  Y.  640;  Gillrie 
v.  Lockport,  122  N.  Y.  403  ;  Lombar  v.  East  Tawas,  86  Mich.  14; 
Topeka  v.  Sherwood,  39  Kan.  690;  Cook  v.  New  Durham,  64  N.  H. 
419;  Phelps  v.  Winona,  etc.  R.  Co.,  37  Minn.  485;  Birmingham  R.  Co. 
v.  Alexander,  93  Ala.  133;  Golden  v.  Clinton,  54  Mo.  App.  100;  Row- 
lands v.  Elgin,  66  111.  App.  66;  cf.  Eraser  v.  Schroedcr,  163  111.  459; 
Kent  v.  Lincoln,  32  Yt.  591.  But  some  cases  are  to  the  contrary 
{Phillips  v.  Willow,  70  Wis.  6;  Moore  v.  Richmond,  85  Ya.  538; 
Pre  inner  v.  ATewcastle,  83  Me.  415). 

Evidence  that  other  persons  had  been  injured  at  the  same  place 
has  also  been  received  to  show  that  the  city  had  notice  of  the  defect. 
City  of  Goshen  v.  England,  119  Ind.  368  ;  Alberts  v.  Vernon,  96  Mich. 
549;  Chicago  v.  Powers,  42  111.  169;  Ashtabula  v.  Bartram,  3  O.  C.  C. 
640.] 

:  [Crocker  v.  McGregor,  76  Me.  282;  Bonis  v.  Temple,  162  Mass. 
312;  /Ian  1 II  v.  Albemarle,  etc.  R.  Co.,  no  N.  C.  215;  Gordon  v. 
Boston  &=  M.  R.  Co.,  58  N.  H.  396 ;  House  v.  Metcalf,  27  Ct.  631  ;  cf. 
Lewis  v.  Eastern  R.  Co.,  60  N.  H.  187  ;  Brown  v.  Eastern,  etc.  R.  Co., 
22  Q\  B.  D.  391  ;  Piollct  v.  Simmers,  106  Pa.  95  ;  contra,  Cleveland, 
etc.  R.  Co.  v.  Wynant,  114  Ind.  525  ;    Ploorv.  Delafield,  69  Wis.  273.] 

3 [Briefly  v.  Davoll  Mills,  128  Mass.  291  ;  cf.  Locke  v.  Express, etc. 
Co.,  71  Mich.  263  ;  Bayer  v.  Rhinehart,  17  X.  Y.  S.  346,  137  N.  Y.  564  ; 
Tremblay  v.  I/arndcn,  162  Mass.  383  ;  Bradley  v.  Hartford,  etc.  Lns. 
Co.,  19  F.  R.  246.] 


Chap,  til.]  THE  LAW  OF  EVIDENCE.  39 

tomer,  passenger,  traveler,  etc.)  B's  appliance,  machine,  structure,  etc., 
claims  that  the  injury  is  due  to  B's  negligence  in  not  having  said 
appliance,  machine,  structure,  etc.,  in  reasonably  safe  condition  for 
use.  Evidence,  introduced  in  B's  behalf,  that  many  others  had  for  a 
long  time  used  the  same  thing  (or  an  identical  thing  or  things)  in  the 
same  condition,  and  that  no  similar  injury  had  ever  occurred,  is 
deemed  to  be  relevant.  Such  evidence  tends  to  show  that  the  appli- 
ance, machine,  structure,  etc.,  is  such  as  a  reasonably  prudent  person, 
exercising  reasonable  diligence,  would  properly  consider  safe  for  the 
purposes  for  which  it  was  designed.] ' 

(n)  [A  sues  B  (a  city,  village,  railway  company,  bridge  company, 
etc.)  to  recover  damages  for  an  injury  alleged  to  have  been  sustained 
through  a  defect  in  a  highway,  railway  track,  bridge,  etc.,  which  defect 
is  alleged  to  be  due  to  B's  neglect  or  default.  A  submits  no  evidence 
as  to  the  condition  of  the  way,  track,  bridge,  etc.,  at  the  precise  place 
where  the  injury  is  alleged  to  have  occurred,  but  offers  evidence  that 
the  same  was  defective  or  dangerous  in  the  immediate  vicinity  of  this 
place.  Such  evidence  is  deemed  to  be  relevant,  if  it  is  proved,  or  if 
the  circumstances  of  the  case  justify  the  conclusion,  that  the  condition 
of  the  place  where  the  injury  occurred  and  of  the  place  to  which  the 
evidence  relates  was  substantially  the  same.2 

A  also  submits  evidence  to  show  what  was  the  condition  of  the  place 


1  [Field  v.  Davis,  27  Kan.  400  (grain  elevator) ;  Doyle  v.  St.  Paul, 
etc.  R.  Co.,  42  Minn.  79  ;  McGrell  v.  Buffalo  Office  Bldg.  Co.,  153  N. 
Y.  265  (passenger  elevator);  Frobisherv.  Fifth  Ave.  Co.,  151  N.  Y. 
431  (omnibus) ;  Lafflin  v.  Buffalo,  etc.  R.  Co.,  106  N.  Y.  136  (platform 
of  railway  station)  ;  Loftus  v.  Union  Ferry  Co.,  84  N.  Y.  455  (ferry 
float) ;  Cleveland v.  N.J.  Steamboat  Co.,  68  N.  Y.  306  (steamboat)  ; 
cf.  Calkins  v.  Hartford,  33  Ct.  57  (sidewalk) ;  to  the  contrary  are 
Hodges  v.  Bearse,  129  111.  87  (elevator) ;  Langworthy  v.  Green  Typ, 
88  Mich.  207  (highway)  ;  Branch  v.  Libbey,  78  Me.  321  (highway).] 

2  [Barrett  v.  Hammond,  87  Wis.  654  ;  Vicksburg,  etc.  R.  Co.  v.  Put- 
nam, 118  U.  S.  545  ;  Nashville,  etc.  R.  Co.  v.  Johnson,  15  Lea,  6jy  (con- 
dition of  railway  track  shown  for  100  yards  on  either  side) ;  Ohio 
Valley  R.  Co.  v.  Watson,  93  Ky.  654  ;  Fort  Wayne  v.  Combs,  107  Ind. 
75  (break  in  sewer  100  feet  distant)  ;  Sidekum  v.  Washburn,  etc.R.  Co., 
93  Mo.  400  (railway  track,  \%.  miles  held  too  far  distant  and  evidence 
rejected)  ;  Campbell  v.  Kalamazoo,  80  Mich.  655  (plank  walk,  con- 
dition near  by  proved).  Evidence  of  this  kind  is,  also,  generally  re- 
ceived to  show  notice  of  the  condition  of  the  way,  track,  bridge,  etc., 
to  the  municipality,  railroad  company,  etc.,  in  order  to  establish  its 


40  A  DIGEST  OF  [Part  I. 

where  the  injury  occurred  some  time  before  the  injury  or  some  time 
after  the  injury,  as  tending  to  show  what  was  its  condition  at  the  time 
of  the  injury.  This  evidence  is  deemed  to  be  relevant,  if  it  is  also 
proved,  or  if  the  circumstances  justify  the  conclusion,  that  the  condi- 
tion of  the  place  has  continued  without  change  during  the  interval.]1 

(o)  [The  question  is,  whether  a  fire  was  caused  by  sparks  and  coals 
from  a  locomotive  of  a  railroad  company. 

The  fact  that  passing  locomotives  of  similar  construction  have  on 
other  occasions,  not  too  remote,  caused  fires  at  or  near  the  place  in 
question  by  scattering  sparks  and  coals,  is  deemed  to  be  relevant  ;  so 
also  is  Ihe  fact  that  they  have  thus  repeatedly  scattered  sparks  and 
coals,  though  no  actual  fires  were  thereby  caused,  since  such  a  cause 
may  have  occasioned  fire  in  this  instance,  though  not  in  others.  But 
preliminary  evidence  should  be  given  excluding  the  probability  that 
the  fire  in  question  originated  from  another  source.]  '2 


negligence  in  not  having  made  repairs  at  the  place  of  the  injury. 
Girardv.  Kalamazoo,  92  Mich.  610  ;  McConnell  v.  Osage,  80  la.  293  ; 
Shaw  v.  Sun  Prairie,  74  Wis.  105  ;  Shelbyville  v.  Brant,  61  111.  App. 
153  ;  McGuire  v.  Ogdensburgh,  etc.  R.  Co.,  18  N.  Y,  S.  313.] 

1  \Jessup  v.  Osceola  Co.,  92  la.  178  (condition  of  bridge  shown  "a  few 
days  after  ")  ;  Bloomington  v.  Osterlee,  139  111.  120  (two  weeks  after)  ; 
Swadley  v.  Mo.  Pac.  R.  Co.,  118  Mo.  268  ;  Stewart  v.  Everts,  76  Wis. 
35  (six  months  after) ;  Sullivan  v.  Syracuse,  77  Hun,  440  (three  days 
after) ;  McCulloch  v.  Dobson,  133  N.  Y.  1 14  (a  few  months) ;  Hunt  v. 
City  of  Dubuque,  96  la.  314  (one  year  before);  but  evidence  to 
show  the  condition  of  a  railway  track  one  or  more  years  afterwards 
has  been  rejected  as  too  remote  (Sto/ier  v.  Mo.  Pac.  R.  Co.,  91  Mo. 
509).  So  where  the  conditions  have  changed,  the  evidence  is  rejected, 
even  though  the  interval  be  short.  Woodcock  v.  Worcester,  138  Mass. 
268  (a  week  before).] 

3  {Field  v.  N.  Y.  C.  R.  Co.,  32  N.  Y.  339;  Crist  v.  Erie  R.  Co.,  58 
N.  Y.  638  ;  Grand  Trunk  R.  Co.  v.  Richardson,  91  U.  S.  454  ;  Boyce  v. 
Cheshire  R.  Co.,  43  N.  H.  627  ;  Ky.  Cent.  R.  Co.  v.  Barrow,  89  Ky. 
638  ;  Steele  v.  Pacific,  etc.  R.  Co.,  74  Cal.  323  ;  Campbell  v.  Mo.  Pac.  R. 
Co.,  121  Mo.  340  ;  see  Atchison,  etc,  R.  Co.  v.  Stanford,  12  Kan.  354  ; 
Albert  v.  Nor.  Central  R.  Co.,  98  Pa.  316.  In  some  of  these  cases  it  is 
also  said  that  evidence  of  this  kind  may  show  a  habit  of  negligence  in 
running  the  trains.  The  last  sentence  of  the  Illustration  states  a  rule 
declared  by  the  New  York  cases,  (and  see  Wiley  v.  West  fersey  R.  Co., 
44  N.  J.  L.  247  ;  Johnson  v.  Chicago,  etc.  R.  Co.,  yj  la.  666). 

So  where  it  is  claimed  that  the  fire  was  set  by  a  particular  engine, 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  41 

(p)  [The  question  is,  whether  a  fire  causing  the  destruction  of  a  cer- 
tain building  by  night  was  of  incendiary  origin. 

The  fact  that  an  attempt  was  made  on  the  same  night  to  set  fire  to  a 
neighboring  building  by  the  use  of  similar  means  is  relevant.] ' 

(0)  [The  question  is,  whether  the  foundering  of  a  vessel,  while  she  is 
being  towed  by  a  tug,  is  caused  by  her  being  overladen  and  unsea- 
worthy,  or  is  due  to  the  reckless  and  improper  rate  of  speed  at  which 
she  is  towed. 

The  fact  that  she  has  been  frequently  towed  in  safety  with  as  heavy 
or  heavier  loads  and  at  as  high  a  rate  of  speed  is  deemed  to  be 
relevant,  as  tending  to  show  that  negligence  in  towing  must  have 
caused  the  disaster.  The  fact  that  she  has  repeatedly  foundered 
while  being  carefully  towed  is  deemed  to  be  relevant,  as  indicating 
that  her  own  improper  condition  must  have  occasioned  the  loss.] 2 

(r)  [The  question  is,  whether  the  sickness  of  A,  a  seaman,  while  he 
was  upon  a  ship  at  sea  of  which  B  was  master,  was  due  to  B's  neglect 
in  failing  to  furnish  suitable  provisions  and  anti-scorbutics. 

Evidence  of  the  similar  sickness  of  others  of  the  crew  about  the 
same  time  was  deemed  to  be  relevant,  on  account  of  the  similarity  of 
the  conditions  and  circumstances  affecting  all  the  crew.] 3 


evidence  tending  to  show  that  other  fires  were  set  by  the  same  engine 
about  the  same  time  is  admissible  (Haseltine  v.  Concord  R.  Co.,  64 
N.  H.  545  ;  Patton  v.  St.  Louis,  etc.  R.  Co.,  87  Mo.  117  ;  Tanning  v. 
Chicago,  etc.  R.  Co.,  68  la.  502  ;  Brighthope  R.  Co.  v.  Rogers,  76  Va. 
443  ;  Loring  v.  Worcester,  etc.  R.  Co.,  131  Mass.  469).  In  some  States, 
moreover,  if  the  plaintiff  identifies  a  particular  engine  as  being  the 
alleged  cause  of  the  fire,  evidence  as  to  other  engines  is  in  such  a  case 
inadmissible.  Henderson  v.  Philadelphia,  etc.  R.  Co.,  144  Pa.  461  ; 
Gibbons  v.  Wisconsin,  etc.  R.  Co.,  58  Wis.  335  ;  Inman  v.  Elbertbn  R. 
Co.,  90  Ga.  663  ;  but  see  Thatcher  v.  Me.  Cent.  R.  Co.,  85  Me.  502, 
and  cases  supra.] 

1  [Faucett  v.  Nicholls,  64  N.  Y.  377  ;  State  v.  Thompson,  97  N.  C. 
496  ;  see  Comm.  v.  Gauvin,  143  Mass.  134  ;  Landell  v.  Hotchkiss,  1  T. 
&  C.  580 ;  Mead  v.  Husted,  49  Ct.  336.] 

3  [Baird  v.  Daly,  68  N.  Y.  547  ;  see  Wilson  v.  Granby,  47  Ct.  59  ; 
Beatrice  Gas  Co.  v.  Thomas,  41  Neb.  662  ;  Weldon  v.  Harlem  R.  Co., 
5  Bos  576.] 

3  [Baxter  v.  Doe,  142  Mass.  558  ;  Shea  v.  Glendale  Co.,  162  Mass. 
463.  But  to  prove  the  intoxication  of  A,  it  is  not  competent  to  prove 
that  B,  who  had  been  with  him  and  had  drunk  the  same  kinds  and 
amount  of  liquor,  was  intoxicated.     Comm.  v.  Cleary,  135  Pa.  64.] 


A  DIGEST  OF  [Part  I. 


Article  n.* 

ACTS   SHOWING   INTENTION,  GOOD   FAITH,  ETC. 

When  there  is  a  question  whether  a  person  said  or  did 
something,  the  fact  that  he  said  or  did  something  of  the 
same  sort  on  a  different  occasion  may  be  proved,  if  it 
shows  the  existence  on  the  occasion  in  question  of  any 
intention,  knowledge,  good  or  bad  faith,  malice,  or  other 
state  of  mind,  or  of  any  state  of  body  or  bodily  feeling, 
the  existence  of  which  is  in  issue,  or  is  or  is  deemed  to  be 
relevant  to  the  issue  ; '  but  such  acts  or  words  may  not 
be  proved  merely  in  order  to  show  that  the  person  so 
acting  or  speaking  was  likely  on  the  occasion  in  question 
to  act  in  a  similar  manner.2 


*  See  Note  VI.  [Appendix]. 

1  [This  rule  is  fully  considered  and  its  proper  limitations  stated  in 
Mayer  v.  People,  80  N.  Y.  364 ;  Cotnm.  v.  Jackson,  132  Mass.  16 ;  State 
v.  Kelley,  65  Vt.  531.  See  also  Gr.  Ev.  i.  §53  ;  People  v.  Dimick,  107 
N.  Y.  13;  TV.  Y.  Mutual  Life  Ins.  Co.  v.  Armstrong,  117  U.  S.  591  ; 
State  v.  Jamison,  74  la.  613;  Butler  v.  Watkins,  13  Wall.  456;  Tarbox 
v.  State,  38  O.  St.  581  ;  State  v.  Wentworth,  37  N.  H.  196 ;  p.  35,  ante, 
note  1.] 

2  [At  this  point  Mr.  Stephens  adds  the  following  rule  derived  from 
an  English  statute  (34  and  35  Vict.  c»  112,  s.  19) :  "  Where  proceedings 
are  laken  against  any  person  for  having  received  goods,  knowing 
them  to  be  stolen,  or  for  having  in  his  possession  stolen  property,  the 
fact  that  there  was  found  in  the  possession  of  such  person  other 
property  stolen  within  the  preceding  period  of  twelve  months,  is 
deemed  to  be  relevant  to  the  question  whether  he  knew  the  property 
to  be  stolen  which  forms  the  subject  of  the  proceedings  taken  against 
him.  If,  in  the  case  of  such  proceedings  as  aforesaid,  evidence  has 
been  given  that  the  stolen  property  has  been  found  in  the  possession  of 
the  person  proceeded  against,  the  fact  that  such  person  has  within  five 
years  immediately  preceding  been  convicted  of  any  offence  involving 
fraud  or  dishonesty,  is  deemed  to  be  relevant  for  the  purpose  of 
proving  that  the  person  accused  knew  the  property  which  was  proved 
to  be  in  his  possession  to  have  been  stolen,  and  may  be  proved  at  any 


Chap,  ill.]  THE  LAW  OF  EVIDENCE.  43 

Illustrations. 

(a)  A  is  charged  with  receiving  two  pieces  of  silk  from  B,  knowing 
them  to  have  been  stolen  by  him  from  C. 

The  facts  that  A  received  from  B  many  other  articles  stolen  by  him 
from  C  in  the  course  of  several  months,  and  that  A  pledged  all  of 
them,  are  deemed  to  be  relevant  to  the  fact  that  A  knew  that  the  two 
pieces  of  silk  were  stolen  by  B  from  C.1 

(b)  A  is  charged  with  uttering,  on  the  12th  December,  1854,  a  coun- 
terfeit crown  piece,  knowing  it  to  be  counterfeit. 

The  facts  that  A  uttered  another  counterfeit  crown  piece  on  the  nth 
December,  1854,  and  a  counterfeit  shilling  on  the  4th  January,  1855, 
are  deemed*to  be  relevant  to  show  A's  knowledge  that  the  crown  piece 
uttered  on  the  12th  was  counterfeit.2 


stage  of  the  proceedings;  provided  that  not  less  than  seven  days' 
notice  in  writing  has  been  given  to  the  person  accused  that  proof  is 
intended  to  be  given  of  such  previous  conviction.  The  fact  that  the 
prisoner  was  within  twelve  months  in  possession  of  other  stolen 
property  than  that  to  which  the  charge  applies  is  not  deemed  to  be 
relevant,  unless  such  property  was  found  in  his  possession  at  or  soon 
after  the  time  when  the  proceedings  against  him  were  taken,  (R.  v. 
Carter,  12  Q.  B.  D.  522;  and  see  R.  v.Drage,  14  Cox,  85.)"  This 
enactment,  he  says,  overrules,  to  a  strictly  limited  extent,  R.  v.  Oddy, 
2  Den.  C.  C.  264,  and  practically  supersedes  R.  v.  Dunn,  1  Moo.  C. 
C.  150,  and  R.  v.  Davis,  6  C.  &  P.  177. 

In  this  country  such  cases  are  governed  by  the  general  common 
law  rule.     See  Illustrations  and  cases  cited.] 

1  Dunn's  Case,  1  Moo.  C.  C.  146.  [S.  P.  Copperman  v.  People,  56 
N.  Y.  591 ;  Coleman  v.  People,  58  N.  Y.  555 ;  State  v.  Ward,  49  Ct.  429; 
Comm.  v.Johnson,  133  Pa.  293  ;  Shriedley  v.  State,  23  O.  St.  130  ;  see 
People  v.  McClure,  148  N.  Y.  95.  But  the  fact  that  A  received  prop- 
erty on  other  occasions  from  other  persons  than  B,  knowing  it  to  have 
been  stolen,  is  deemed  not  to  be  relevant.  Coleman  v.  People,  55 
N.  Y.  81.] 

*  R.  v.  Forster,  Dears.  456 ;  and  see  R.  v.  Weeks,  L.  &  C.  18.  [See 
Comm.  v.  Bigelow,  8  Met.  235;  Comm.  v.  Price,  10  Gray,  472;  Stalker 
v.  State,  9  Ct.  341  ;  People  v.  Dibble,  3  Abb.  Dec.  518. 

So  upon  a  trial  for  forgery  or  uttering  forged  instruments,  evidence 
of  other  recent  forgeries  or  utterings  by  the  defendant  is  admissible 
to  show  guilty  knowledge  or  intent.  People  v.  Everhardt,  104  N.  Y. 
591  ;  Comm.  v.  Russell,  156  Mass.  196  ;  Anson  v.  People,  148  111.  494 ; 
People  v.  Baird,  105  Cal.  126;  People  v.  Kemp,  76  Mich.  410.] 


44  A  DIGEST  OF  [Part  I. 

(c)  A  is  charged  with  attempting  to  obtain  money  by  false  pretences, 
by  trying  to  pledge  to  B  a  worthless  ring  as  a  diamond  ring. 

The  facts  that,  two  days  before,  A  tried,  on  two  separate  occasions, 
to  obtain  money  from  C  and  D  respectively,  by  a  similar  assertion  as 
to  the  same  or  a  similar  ring,  and  that  on  another  occasion  on  the  same 
day  he  obtained  a  sum  of  money  from  E  by  pledging  as  a  gold  chain 
a  chain  which  was  only  gilt,  are  deemed  to  be  relevant,  as  showing 
his  knowledge  of  the  quality  of  the  ring.1 

(d)  A  is'charged  with  obtaining  money  from  B  by  falsely  pretend- 
ing that  Z  had  authorized  him  to  do  so. 

The  fact  that  on  a  different  occasion  A  obtained  money  from  C  by 
a  similar  false  pretence  is  deemed  to  be  irrelevant,2  as  A's  knowledge 
that  he  had  no  authority  from  Z  on  the  second  occasion  Tiad  no  con- 
nection with  his  knowledge  that  he  had  no  authority  from  Z  on  the 
first  occasion. 

(e)  A  sues  B  for  damage  done  by  a  dog  of  B's,  which  B  knew  to  be 
ferocious. 

The  facts  that  the  dog  had  previously  bitten  X,  Y,  and  Z,  and  that 
they  had  made  complaints  to  B,  are  deemed  to  be  relevant.3 

(/)  The  question  is,  whether  A,  the  acceptor  of  a  bill  of  exchange, 
knew  that  the  name  of  the  payee  was  fictitious. 

The  fact  that  A  had  accepted  other  bills  drawn  in  the  same  manner 
before  they  could  have  been  transmitted  to  him  by  the  payee,  if  the 


1  R.  v.  Francis,  L.  R.  2  C.  C.  R.  128.  The  case  of  R.  v.  Cooper, 
I  Q.  B.  D.  (C.  C.  R.)  19,  is  similar  to  R.  v.  Francis,  and  perhaps 
stronger.  [S.  P.  Mayer  v.  People,  80  N.  Y.  364;  Comm.  v.  Coe,  115 
Mass.  481  ;  State  v.  Bayne,  88  Mo.  604;  see  People  v.  Henssler,  48 
Mich.  49.  Evidence  of  this  kind  is  also  relevant  in  civil  actions  to 
prove  guilty  knowledge  or  fraudulent  purpose.  Nail  v.  Naylor,  18 
N.  Y.  588 ;  Beuerlien  v.  O'Leary,  149  N.  Y.  33 ;  Lincoln  v.  Claflin,  7 
Wall.  132;  Hovey  v.  Grant,  52  N.  H.  569;  Lockwood  v.  Doane,  107 
111.  235.] 

2  R.  v.  Holt,  Bell,  C.  C.  280  ;  and  see  R.  v.  Francis,  ub.  sup.  p.  130. 
[Comm.  v  .Jackson,  132  Mass.  16 ;  Strong  v.  State,  86  Ind.  208  ;  Jack- 
son v.  People,  126  111.  139;  cf.  Hugatiir  v.  Cotter,  92  Wis.  1  ;  but  see 
People  v.  Shulman,  80  N.  Y.  373.] 

3  See  cases  collected  in  Roscoe's  Nisi  Prius,  739.  [Evans  v. 
McDermott,  49  N.  J.  L.  163;  Graham  v.  Payne,  122  Ind.  403;  Rey- 
nolds v.  Hussey,  64  N.  H.  64  ;  see  Godeau  v.  Blood,  52  Vt.  251  ;  Muller 
v.  McKesson,  73  N.  Y.  195.     So  evidence  of  the  general  repute  of  the 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  45 

payee  had  been  a  real  person,  is  deemed  to  be  relevant,  as  showing 
that  A  knew  that  the  payee  was  a  fictitious  person.1 

(g)  A  sues  B  for  a  malicious  libel.  Defamatory  statements  made 
by  B  regarding  A  for  ten  years  before  those  in  respect  of  which  the 
action  is  brought  are  deemed  to  be  relevant  to  show  malice.2 

(ga)  [The  question  is,  whether  A  committed  adultery  with  B. 

The  fact  that  on  other  occasions,  not  too  remote,  these  persons  had 
committed  adultery  is  deemed  to  be  relevant,  to  show  the  existence  of 
an  adulterous  disposition ;  but  not  to  show  the  commission  of  the 
particular  act  in  question.]3 


dog  in  the  neighborhood,  as  being  vicious  and  dangerous,  is  compe- 
tent, as  tending  to  raise  an  inference  that  the  owner  knew  of  such 
propensity.  Cameron  v.  Bryan,  89  la.  214;  Fake  v.  Addicks,  45 
Minn.  37.  J 

1  Gibson  v.  Hunter,  2  H.  Bl.  288. 

2  Barrett  v.  Long,  3  H.  L.  C.  395,  414.  [Evening  Journal  Ass'n  v. 
McDermott,  44  N.  J.  L.  430  ;  Comm.  v.  Place,  153  Pa.  314  ;  Beneway 
v.  Thorp,  7J  Mich.  181  ;  Fredricksoti  v.  Johnson,  60  Minn.  337;  Aus- 
tin v.  Remington,  46  Ct.  116;  Freeman  v.  Sanderson,  123  Ind.  264; 
Cruikshank  v.  Gordon,  118  N.  Y.  178.  It  is  generally  held  that  the 
charges  proved  to  show  malice  must  be  substantially  similar  to  the 
one  in  question,  and  that  they  may  have  been  made  either  before  it 
was  published  or  afterwards  (Id.;  Comm.  v.  Damon,  136  Mass.  441, 
448;  Conant  v.  Leslie,  85  Me.  257;  Brown  v.  Barnes,  39  Mich.  211; 
Cavanaugh  v.  Austin,  42  Vt.  576;  Howard  v.  Sexton,  4  N.  Y.  157). 
In  some  States  they  may  be  proved  though  made  after  suit  brought 
{Chamberlain  \.  Vance,  51  Cal.  75;  Larrabee  v.  Minnesota  Tribune 
Co.,  36  Minn.  141;  Post  Pub.  Co.  v.  Hallam,  59  F.  R.  530;  Knapp  v. 
Smith,  55  Vt.  311),  but  not  in  others  {Daly  v.  Byrne,  jj  N.  Y.  182; 
but  see  Turton  v.  N.  Y.  Recorder  Co.,  144  N.  Y.  144, 150).  By  some 
decisions,  also,  enhanced  damages  are  recoverable  in  the  same  action 
for  the  repeated  charges  {Leonard  v.  Pope,  27  Mich.  145;  cf.  Hintz 
v.  Graupner,  138  111.  158  ;  Alpin  v.  Morton,  21  O.  St.  536) ;  but  in  most 
States  damages  are  only  obtainable  for  the  particular  charge  sued 
upon,  while  the  evidence  of  repetitions  is  deemed  competent  to  show 
the  degree  of  malice  in  such  charge.  IFardv.  Dick,  47  Ct.  300;  Clark 
v.  Brown,  116  Mass.  504  ;  Enos  v.  Enos,  135  N.  Y.  609.] 

3  [Brooks  v.  Brooks,  145  Mass.  574  ;  Thayer  v.  Thayer,  101  id.  111  ; 
State  v.  Williams,  76  Me.  480  ;  Comm.  v.  Bell,  166  Pa.  405  ;  People  v. 
Patterson,  102  Cal.  239  ;  People  v.  Skutt,  96  Mich.  449  ;  State  v.  Potter, 
52  Vt.  33  ;  State  v.  Markins,  95  Ind.  464  ;  State  v.  Briggs,  68  la.  416  ; 
State  v.  Young,  99  Mo.  284.] 


[6  A  DIGEST  OF  [Part  I. 

(h)  A  is  sued  by  B  for  fraudulently  representing  to  B  that  C  was 
solvent,  whereby  B,  being  induced  to  trust  C,  who  was  insolvent, 
suffered  loss. 

The  fact  that,  at  the  time  when  A  represented  C  to  be  solvent,  C 
was  to  A's  knowledge  supposed  to  be  solvent  by  his  neighbors  and  by 
persons  dealing  with  him,  is  deemed  to  be  relevant,  as  showing  that  A 
made  the  representation  in  good  faith.1 

(/)  A  is  sued  by  B  for  the  price  of  work  done  by  B,  by  the  order  of 
C,  a  contractor,  upon  a  house,  of  which  A  is  owner. 

A's  defence  is  that  B's  contract  was  with  C. 

The  fact  that  A  paid  C  for  the  work  in  question  is  deemed  to  be 
relevant,  as  proving  that  A  did,  in  good  faith,  make  over  to  C  the 
management  of  the  work  in  question,  so  that  C  was  in  a  position  to 
contract  with  B  on  C's  own  account,  and  not  as  agent  for  A.'2 

(/)  A  is  accused  of  stealing  property  which  he  had  found,  and  the 
question  is,  whether  he  meant  to  steal  it  when  he  took  possession  of  it. 

The  fact  that  public  notice  of  the  loss  of  the  property  had  been 
given  in  the  place  where  A  was,  and  in  such  a  manner  that  A  knew 
or  probably  might  have  known  of  it,  is  deemed  to  be  relevant,  as 
showing  that  A  did  not,  when  he  took  possession'  of  it,  in  good  faith 
believe  that  the  real  owner  of  the  property  could  not  be  found.3 

(h)  The  question  is,  whether  A  is  entitled  to  damages  from  B,  the 
seducer  of  A's  wife. 

The  fact  that  A's  wife  wrote  affectionate  letters  to  A  before 
the  adultery  was   committed,   is   deemed  to  be   relevant,  as   show- 


1  Sheen  v.  Btempslead,  2  H.  &  C.  193.  [See  Slingerland  v.  Bennett, 
6  T.  &  C.  446  ;  Larkin  v.  Hapgood,  56  Vt.  597  ;  Gordo?i  v.  Ritenour, 
87  Mo.  54  ;  Killam  v.  Peirce,  153  Mass.  502  ;  West  v.  St.  Paul  Nat. 
Bk.,  54  Minn.  466  ;  Whitcher  v.  Shattuck,  3  Allen,  319  ;  cf.  Bliss  v. 
Johnson,  162  Mass.  323.] 

2  Gerish  v.  Charlier,  1  C.  B.  13.  [See  Moody  v.  Tenney,  3  Allen,  327  ; 
Regan  v.  Dickinson,  105  Mass.  112.] 

3  This  Illustration  is  adapted  from  Preston  s  Case,  2  Den.  C.  C.  353, 
but  the  misdirection  given  in  that  case  is  set  right.  As  to  the  rele- 
vancy of  the  fact,  see  in  particular  Lord  Campbell's  remark  on  p.  359. 
[Cf.  State  v.  Flint,  60  Yt.  304  ;  Woods  v.  Montevallo,  etc.  Co.,  84  Ala. 
560 ;  Stallings  v.  State,  33  Ala.  425.  So  in  order  to  prove  that  a 
master  knew  of  his  servant's  incompetency,  it  may  be  shown  that  the 
servant  had  a  general  reputation  for  incompetency  in  the  community. 
Driscollv.  Fall  River,  163  Mass.  105  ;  Western  Stone  Co.  v.  Whalen, 
151  III.472;  Grubex.Mo.  Pac.R.  Co., 98  Mo.  330;  see  p.  160, note, post.] 


Chap.  III.]  THE  LAW  OF  EVIDENCE. 


47 


ing  the  terms  on  which  they  lived  and  the  damage  which  A 
sustained.1 

(/)  The  question  is,  whether  A's  death  was  caused  by  poison. 

Statements  made  by  A  before  his  illness  as  to  his  state  of  health, 
and  during  his  illness  as  to  his  symptoms,  are  deemed  to  be  relevant 
facts.2 


1  Trelawney  v.  Coleman,  I  B.  &  A.  90.  [Gr.  Ev.  i.  §  102  ;  Palmer  v. 
Crook,  7  Gray,  418 ;  Perry  v.  Lovejoy,  49  Mich.  529 ;  Harter  v.  Crill, 
33  Barb.  283  ;  Long  v.  Booe,  106  Ala.  570  ;  Fratini  v.  Caslini,  66  Vt. 
273  ;  Holtz  v.  Dick,  42  0.  St.  23  ;  Horner  v.  Yance,  93  Wis.  352  ;  see 
Edgell  v.  Francis,  66  Mich.  303.  So,  in  general,  declarations  of  a 
person,  whether  oral  or  written,  expressing  present  mental  feeling, 
stale  of  mind,  or  intention,  are  admissible  in  evidence,  when  his  mental 
state,  intention,  etc.,  is  a  distinct  material  fact  to  be  proved.  Gr.  Ev.  i. 
§  102  ;  Mutual  Life  Lns.  Co.  v.  Hillmon,  145  U.  S.  285  ;  Comm.  v.  Tre- 
fethen,  157  Mass.  180  ;  Deer  Isle  v.  Winterport,  87  Me.  37  ;  Smith  v. 
Nat.  Benefit  Society,  123  N.  Y.  85  ;  but  see  State  v.  Fitzgerald,  130 
Mo.  407.] 

2  R.  v.  Palmer.  See  my  "  Gen.  View  of  Crim.  Law,"  pp.  363,  377,  (evi- 
dence of  Dr.  Savage  and  Mr.  Stephens).  [Gr.  Ev.  i.  §102.  It  is  a 
general  rule  that  expressions  of  present  bodily  pain  or  suffering  or 
symptoms  of  illness  are  admissible  as  part  of  the  res  gestcp,  and, 
whether  made  to  physicians  or  to  other  persons,  may  be  proved  by 
those  who  heard  them  {Northern  Pac.  R.  Co.  v.  Urlin,  158  U.  S.  271  ; 
and  see  cases  infra) ;  but  statements  as  to  past  sufferings,  or  as  to  the 
past  cause  of  the  injury  or  of  the  suffering,  are  not  admissible  (Insur- 
ance Co.  v.  Mosley,  8  Wall.  397  ;  State  v.  Fournier,  68  Vt.  262  ;  Globe 
Ins.  Co.  v.  Gerisch,  163  111.  625  ;  Keller  v.  Gilman,  93  Wis.  9 ;  Girard 
v.  Kalamazoo,  92  Mich.  610  ;  Carthage  Co.  v.  Andrews,  102  Ind.  138; 
Atchison,  etc.  R.  Co.  v.  Johns,  36  Kan.  769;  Co  nun.  v.  Jardine,  143 
Mass.  567  ;  Ashland  v.  Marlborough,  99  id.  47  ;  Wilson  v.  Granby,  47 
Ct.  59  ;  Lichtenwallner  v.  Laubach,  105  Pa.  366  ;  see  p.  8,  note  3,  ante). 
Statements  of  present  bodily  feelings  have  in  some  States  been  held 
admissible,  though  made  after  suit  brought,  especially  if  made  to  an 
attending  physician  with  a  view  to  medical  advice  or  treatment  (Cleve- 
land, etc.  R.  Co.  v.  Newell,  104  Ind.  264  ;  Hatch  v.  Fuller,  131  Mass. 
574) ;  but  not,  if  they  were  made  to  a  physician  for  the  sole  purpose 
of  enabling  him  to  testify  as  a  witness  on  the  trial  (Abbott  v.  Heath,  84 
Wis.  314  ;  Jones  v.  Portland,  88  Mich.  598  ;  but  see  Cleveland,  etc.  R. 
Co.  v.  Newell,  supra  ;  Matteson  v.  N.  Y.  Cent.  R.  Co.,  35  N.  Y.  487). 
Some  cases  even  assert  (mainly,  however,  as  dicta)  that  statements 
made  to  a  physician  for  medical  treatment  may  be  proved,  though 


48  A  DIGEST  OF  [Part  I. 

(m)  The  question  is,  what  was  the  state  of  A's  health  at  the  time 
when  an  insurance  on  her  life  was  effected  by  B. 

Statements  made  by  A  as  to  the  state  of  her  health  at  or  near  the 
time  in  question  are  deemed  to  be  relevant  facts.1 

(;/)  The  question  is,  whether  A,  the  captain  of  a  ship,  knew  that  a 
port  was  blockaded. 

The  fact  that  the  blockade  was  notified  in  the  Gazette  is  deemed  to 
be  relevant.2 

(<?)  [The  question  is,  whether  a  testator,  in  making  his  will,  was  con- 
trolled by  undue  influence. 

Statements  made  by  him  on  prior  occasions  as  to  his  testamentary 
intentions  in  the  disposition  of  his  property  are  deemed  to  be  relevant, 
as  showing  his  cherished  purposes  and  state  of  mind  when  the  will 
was  made ;  if  such  statements  are  consistent  with  the  provisions  of 
the  will,  they  tend  to  rebut  charges  of  undue  influence,  otherwise  to 
confirm  them.  But  statements  of  the  testator  to  show  the  fact  of 
undue  influence  ate  deemed  not  to  be  relevant.]3 


they  relate  to  past  (as  well  as  present)  feelings  and  symptoms  (Roosa 
v.  Boston  Loan  Co.,  132  Mass.  439  ;  Cleveland,  etc.  R.  Co.  v.  Newell, 
104  Ind.  264) ;  but  it  is  held  otherwise  in  New  York  {Davidson  v.  Cor- 
nell, 132  N.  Y.  228). 

In  New  York  a  more  limited  rule  prevails,  and  while  evidence  may 
be  given  of  an  injured  person's  groans,  screams,  and  exclamations 
showing  present  pain,  yet  his  mere  declarations,  made  some  time  after 
the  injury,  that  he  is  then  suffering  pain,  are  not  competent,  unless 
they  are  made  to  a  physician  for  the  purpose  of  treatment.  Roche  v. 
Brooklyn,  etc.  R.  Co.,  105  N.  Y.  294  ;  Davidson  v.  Cornell,  132  N.  Y. 
228  ;  S.  P.  Atlanta  R.  Co.  v.  Walker,  93  Ga.  462  ;  cf.  Co»i»i.  v. Leach, 
156  Mass.  99;  contra,  Board of  Co/tunrs.  v.  Leggett,  115  Ind.  544.] 

1  Aveson  v.  Lord  Kinnaird,  6  Ea.  188.  [See  Swift  v.  Life  Lns.  Co., 
63  N.  Y.  186 ;  Edington  v.  Life  Bis.  Co.,  67  N.  Y.  185  ;  Dilleberw.  Life 
Lns.  Co.,  69  N.  Y.  256.  By  these  New  York  cases  the  statements  of 
the  assured,  if  made  at  a  time  prior  to,  and  not  remote  from  the  appli- 
cation, are  deemed  relevant  to  show  his  knowledge  of  his  physical 
condition.  See  also  Kelsey  v.  Universal,  etc.  Lns.  Co.,  35  Ct.  225  ; 
State  v.  Cedicke,  43  N.  J.  L.  86 ;  and  cases  cited  under  last  Illustra- 
tion.] 

2  Harrat  v.  Wise,  9  B.  &  C.  712. 

3  [AW  v.  Potter,  40  Pa.  483;  Marx  v.  McGlynn,  88  N.  Y.  357; 
Haines  v.  Hayden,  95  Mich.  332;  Goodbar  v.  Lidikey,  136  Ind.  1; 
Jn  re  Calkins,  112  Cal.  296 ;   Hill  v.  Bahrns,  158  111.  314  ;    Gardner  v. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  49 

Article  12.* 
facts  showing  system. 

When  there  is  a  question  whether  an  act  was  accidental 
or  intentional,  the  fact  that  such  act  formed  part  of  a 
series  of  similar  occurrences,  in  each  of  which  the  person 
doing  the  act  was  concerned,  is  deemed  to  be  relevant.1 


*  See  Note  VI.  [Appendix]. 
Frieze,  16  R.  I.  640;  Thompson  v.  Ish,  99  Mo.  160;  Moore  v.  McDon- 
ald, 68  Md.  321 ;  Potter  v.  Baldwin,  133  Mass.  427 ;  Dye  v.  Young, 
55  la.  433  ;  see  Jones  v.  Mc  Lei  Ian,  76  Me.  49  ;  Hersterv.  Herster,  122 
Pa.  239.  So  subsequent  statements  or  acts  maybe  shown  which  indi- 
cate the  state  of  mind  when  the  will  was  made  (Shailer  v.  Bumslead, 
99  Mass.  112  ;  Waterman  v.  Whitney,  11  N.  Y.  157).  And  in  general, 
evidence  of  the  testator's  acts  or  declarations  may  be  given,  which 
show  his  mental  peculiarities,  settled  convictions,  deeply  rooted  feel- 
ings or  purposes,  or  any  enduring  state  of  mind,  as  they  existed  at  the 
making  of  the  will  {Shailer  v.  Bumstead,  supra).  So  as  to  making 
a  deed  {Howe  v.  Howe,  99  Mass.  88),  or  a  lease  {Sherman  v.  Wilder, 
106  Mass.  537),  or  a  gift  {Lane  v.  Moore,  151  Mass.  87  ;  Sherman  v. 
Sherman,  75  la.  136;  Meriden  Bk.v.  Wellington,  64  Ct.  553  ;  Ridden 
v.  Thrall,  125  N.  Y.  572  ;  see  Converse  v.   Wales,  4  Allen,  512). 

Similar  evidence  may  be  receivable  in  criminal  cases  to  show  the 
state  of  the  prisoner's  mind  when  the  crime  was  committed.  Comm. 
v.  Pomeroy,  117  Mass.  144  ;  Comm.  v.  Burlington,  136  id.  435  ;  People 
v.  Sessions,  58  Mich.  594,  601.] 

1  [State  v.  Lapage,  57  N.  H.  245,  294  ;  Comm.  v.  Robinson,  146  Mass. 
571  ;  Hawes  v.  State,  88  Ala.  37,  67  ;  State  v.Kelley,  65  Vt.  531  ; 
People  v.  Murphy,  135  N.  Y.  450  ;  State  v.  Slice,  88  la.  27  ;  Dawson 
v.  State,  32  Tex.  App.  535  ;  People  v.  Shulman,  80  N.  Y.  373;  Comm.  v. 
Bradford,  126  Mass.  42  ;  Goersen  v.  Comm.,  99  Pa.  388,  106  id.  477  ; 
Hope  v.  People,  83  N.  Y.  418  ;  see  Comm.  v.  Choate,  105  Mass.  451  ; 
Swan  v.  Comm.,  104  Pa.  218  ;  Dayton  v.  Monroe,  47  Mich.  193  ; 
Hayncs  v.  Christian,  30  Mo.  App.  198  ;  and  pp.  34,  35,  ante,  and 
notes. 

So  a  party's  system  or  course  of  business  may  be  proved  to  show 
whether  he  has  exercised  due  diligence  on  a  particular  occasion 
{Holly  v.  Boston  Gas  Co.,%  Gray,  123  ;  Fuller  v.  Naugatuck  R.  Co.,  21 
Ct.  557  ;    Wallace  v.  Central  Vt.  R.  Co.,  138  N.  Y.  302  ;   see  Coates  v. 


5° 


A  DIGEST  OF  [Part  I. 


Illustrations. 

(a)  A  is  accused  of  setting  fire  to  his  house  in  order  to  obtain  money 
for  which  it  is  insured. 

The  facts  that  A  had  previously  lived  in  two  other  houses  succes- 
sively, each  of  which  he  insured,  in  each  of  which  a  fire  occurred,  and 


Burlington,  etc.  R.  Co.,  62  la.  486;  Bailey  v  Rome,  etc.  R.  Co.,  139 
N.  Y.  302)  ;  and  the  usual  practice  of  others  in  the  same  business 
or  employment  under  like  circumstances  may  be  shown,  to  indica'te 
whether  ordinary  care  has  been  used  in  a  special  instance  (Maynard 
v.  Buck,  100  Mass.  40  ;  Cook  v.  Champlain,  etc.  Co.,  1  Den.  91  ; 
Jarvis  v.  Brooklyn  R.  Co.,  16  N.  Y.  S.  96,  133  N.  Y.  623;  Case  v. 
Perew,  46  Hun,  57,  122  N.  Y.  665  ;  Holland  v.  Tenn.  Coal  Co.,  91  Ala. 
444  ;  Myers  v.  Hudson  Iron  Co.,  150  Mass.  125,  138  ;  Daley  v.  Amer. 
Printing  Co.,  152  id.  581  ;  Reese  v.  Hershey,  163  Pa.  253;  Doyle  v. 
St.  Paid,  etc.  R.  Co.,  42  Minn.  79  ;  Whitsett  v.  Chicago,  etc.  R.  Co., 
67  la.  150;  Railway  Co.  v.  Manchester  Mills,  88  Tenn.  653;  cf. 
Veginan  v.  Morse,  160  Mass.  143  ;  but  see  Grand  Trunk  R.  Co. 
v.  Richardson,  91  U.  S.  454  ;  Chicago,  etc.  R.  Co.  v.  Clark,  108  111. 
113;  Bassett  v.  Shares,  63  Ct.  39 ;  Lake  Erie,  etc.  R.  Co.  v.  Mugg, 
132  Ind.  168  ;  Southern  Kansas  R.  Co.  v.  Robbins,  43  Kan.  145). 

With  the  cases  under  this  Article  may  be  compared  those  in  which  a 
system  of  conduct  or  action,  as  shown  by  a  series  of  similar  acts,  is 
proved,  in  order  to  establish  the  habit  of  a  person  or  animal,  the 
character  of  a  house,  etc.  (See  Baulec  v.N.  Y.  etc.  R.  Co.,  59  N.  Y. 
356;  Lanpherv.  Clark,  149  N.  Y.  472  ;  Comm.  v.  Meany,  151  Mass. 
55;  Beard  v.  State,  7 1  Md.275;  Cameron  v.  Bryan,  89  la.  214).  Thus 
the  vicious  habit  of  a  horse  for  shying,  balking,  etc.,  may  be  shown 
by  proving  cases  of  like  misbehavior,  both  before  and  after  the  act 
in  question  (Jfaggi  v.  Cutis,  123  Mass.  535  ;  Kennon  v.  Gilmer,  131  U. 
S.  22  ;  Chamberlain  v.  Enfield,  43  X.  H.  356  ;  cf.  Whitney  v.  Leomin- 
ster, 136  Mass.  25).  And  evidence  of  a  person's  repeated  acts  of 
drunkenness  may  be  admitted,  to  prove  habitual  drunkenness  (Comm. 
v.  Ryan,  134  Mass.  223  ;  Comm.  v.  McNamee,  1 12  Mass.  285  ;  Wright 
v.  Crawfordsville,  142  Ind.  636  ;  Ml  Gill  x.  McGill,  19  Fla.  341).  So 
sales  of  liquor  to  different  persons  at  different  times  may  be  proved  to 
show  that  the  seller  is  in  the  business  of  liquor  selling  (State  v.  Welch, 
64  X.  H.  525).  But  a  habit  of  lying  cannot  be  proved  by  evidence  of 
lies  told  on  other  occasions  (Comm.  v.  Kennon,  130  Mass.  39).  In 
New  Hampshire,  evidence  of  prior  acts  of  negligence  of  the  same 
kind  by  a  person  is  received,  as  tending  to  show  his  negligence  on  a 
particular  occasion  (Parkinson  v.  Nashua,  etc.  R.  Co.,  61  N.  H.  416) ; 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  51 

that  after  each  of  those  fires  A  received  payment  from  a  different  in- 
surance office,  are  deemed  to  be  relevant,  as  tending  to  show  that  the 
fires  were  not  accidental.1 

{b)  A  is  employed  to  pay  the  wages  of  B's  laborers,  and  it  is  A's 
duty  to  make  entries  in  a  book  showing  the  amounts  paid  by  him. 
He  makes  an  entry  showing  that  on  a  particular  occasion  he  paid 
more  than  he  really  did  pay. 

The  question  is,  whether  this  false  entry  was  accidental  or  inten- 
tional. 

The  fact  that  for  a  period  of  two  years  A  made  other  similar  false 


but  in  most  States  this  doctrine  is  denied  (see  Art.  10,  Illustration 
{g) ;  Robinson  v.  F.  &*  IV.  R.  Co.,  7  Gray,  92  ;  Brennan  v.  Friend- 
ship, 67  Wis.  223).  So  in  that  State,  on  the  question  at  what  speed 
an  engineer  drove  a  railway  train  at  a  certain  time  and  place,  evi- 
dence of  the  speed  at  which  he  drove  the  same  train  at  the  same 
place  on  other  days  may  be  admitted  {State  v.  B.  &*=  M.  R.  Co.,  58  N. 
H.  410  ;  S.  P.  Hall  v.  Brown,  id.  93  ;  cf.  Shaber  v.  St.  Raid,  etc.  R.  Co., 
28  Minn.  103).  But  it  is  elsewhere  held  that  to  prove  care  on  a  par- 
ticular occasion,  the  party's  habit  of  being  careful  cannot  be  shown 
{McDonald  v.  Savoy,  no  Mass.  49  ;  Chase  v.  Maine  Cent.  R.  Co.,  yj 
Me.  62  ;  Morris  v.  East  Haven,  41  Ct.  252  ;  Wooster  v.  Broadway, 
etc.  R'.  Co.,  72  Hun,  197  ;  but  see  Dorman  v.  Katie,  5  Allen,  38  ;  Toledo, 
etc.  R.  Co.  v.  Bailey,  145  111.  159)  ;  nor  can  the  fact  of  gambling  on  a 
certain  occasion,  when  intoxicated,  be  proved  by  showing  a  habit  so  to 
do  ( Thompson  v.  Bowie,  4  Wall.  463  ;  cf.  McMahon  v.  Harrison,  6  N. 
Y.  443  ;  Triplctt  v.  Goff's  Admr.,  83  Va.  784) ;  nor  drunkenness  on  a 
particular  occasion  by  showing  a  habit  of  intemperance  {Cotnm.  v. 
Werling,  164  Pa.  559)  ;  nor  the  taking  of  usury  on  one  occasion 
by  showing  prior  acts  of  taking  usury.  Ross  v.  Ackerman,  46  N.  Y. 
210.] 

1  R.  v.  Gray,  4  F.  &  F.  1102.  I  acted  on  this  case  in  R.  v  Stanley, 
Liverpool  Summer  Assizes,  1882,  but  I  greatly  doubt  its  authority. 
The  objection  to  the  admission  of  such  evidence  is  that  it  may 
practically  involve  the  trial  of  several  distinct  charges  at  once,  as  it 
would  be  hard  to  exclude  evidence  to  show  that  the  other  fires  were 
accidental.  [Cf.,  as  tending  to  support  R.  v.  Gray,  Hoxie  v.  Home 
Ins.  Co.,  32  Ct.  21  ;  Whitmore  v.  Supreme  Lodge  Knights,  100  Mo.  36  ; 
Conwi.  v.  McCarthy,  119  Mass.  354  ;  People  v.  Dimick,  107  N.  Y.  13. 
But  evidence  of  other  fires  in  defendant's  buildings  has  been  rejected, 
when  they  occurred  from  five  to  eleven  years  before  the  fire  in 
question.     State  v.  Raymond,  53  N.  J.  L.  260.] 


52  A  DIGEST  OF  [Part  I. 

entries  in  the  same  book,  the  false  entry  being  in  each  case  in  favor  of 
A,  is  deemed  to  be  relevant.1 

(c)  The  question  is,  whether  the  administration  of  poison  to  A,  by  Z, 
his  wife,  in  September,  1848,  was  accidental  or  intentional. 

The  facts  that  B,  C,  and  D  (A's  three  sons),  had  the  same  poison 
administered  to  them  in  December,  1848,  March,  1849,  and  April,  1849, 
and  that  the  meals  of  all  four  were  prepared  by  Z,  are  deemed  to  be 
relevant,  though  Z  was  indicted  separately  for  murdering  A,  B,  and 
C,  and  attempting  to  murder  D.2 

(ca)  [The  question  is,  whether  A  and  his  wife  intentionally  caused 
the  death  of  an  infant  child,  which  they  had  received  from  its  mother 
for  adoption  upon  the  payment  of  a  small  sum  of  money,  the  body  of 
the  child  having  been  found  buried  in  their  grounds. 

The  facts  that  the  defendants  had  received  several  other  infants 
from  their  mothers  for  adoption,  on  like  terms,  and  that  the  bodies  of 
a  number  of  infants  had  been  found  buried  in  a  similar  manner  in  the 
gardens  of  several  houses  which  they  had  occupied,  are  deemed  to 
be  relevant.] s 

(c6)  [The  question  is,  whether  the  firing  of  a  pistol  by  A  at  B, 
inflicting  a  serious  wound,  was  accidental  or  willful. 

Evidence  that  A  had  fired  his  pistol  at  two  other  persons  the  day 
before  was  deemed  to  be  relevant  to  show  that  the  act  was  willful]  ' 

(d)  A  promises  to  lend  money  to  B  on  the  security  of  a  policy  of 
insurance  which  B  agrees  to  effect  in  an  insurance  company  of  his 
choosing.  B  pays  the  first  premium  to  the  company,  but  A  refuses  to 
lend  the  money  except  upon  terms  which  he  intends  B  to  reject,  and 
which  B  rejects  accordingly. 


1  R.  v.  Richardson,  2  F,  &  F.  343.  [See  Lang  v.  State,  97  Ala.  41  ; 
Ossipce  v.  Grant,  59  N.  H.  70  ;  Funk  v.  Ely,  45  Pa.  444  ;  for  a  case  of 
forgery,  see  Rankin  v.  Blackwell,  2  Johns.  Cas.  198.] 

8  R.  v.  Geering,  18  L.  J.  M.  C.  215  ;  cf.  R.  v.  Garner,  3  F.  &  F.  681. 
These  cases  were  discussed  in  R.  v.  Neill  (or  Cream),  tried  at  the 
Central  Criminal  Court  in  October,  1892,  when  Hawkins,  J.,  admitted 
evidence  of  subsequent  administrations  of  strychnine  by  the  prisoner 
to  persons  other  than  and  unconnected  with  the  woman  of  whose 
murder  the  prisoner  was  then  convicted.  [See  Zoldoske  v.  State,  82 
Wis.  580  ;  Goersen  v.  Conim.,  99  Pa.  388,  106  id.  477  ;  People  v.  Foley, 
64  Mich.  148  ;  Weyman  v.  People,  4  Hun,  511,  518,  62  N.  Y.  623  ;  R.  v. 
Flannagan,  15  Cox,  403.] 

3  [ Makin  v.  Attorney  General,  [1894]  A.  C.  57.] 

4[State  v.  McDonald,  14  R.  I.  270.] 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  53 

The  fact  that  A  and  the  insurance  company  have  been  engaged  in 
similar  transactions  is  deemed  to  be  relevant  to  the  question  whether 
the  receipt  of  the  money  by  the  company  was  fraudulent.1 

Article   13.* 

existence  of  course  of  business,  when  deemed  to  be 
relevant. 

When  there  is  a  question  whether  a  particular  act  was 
done,  the  existence  of  any  course  of  office  or  business 
according  to  which  it  naturally  would  have  been  done,  is 
a  relevant  fact.2 

When  there  is  a  question  whether  a  particular  person 
held  a  particular  public  office,  the  fact  that  he  acted  in 
that  office  is  deemed  to  be  relevant.3 

When  the  question  is  whether  one  person  acted  as  agent 
for  another  on  a  particular  occasion,  the  fact  that  he  so 
acted  on  other  occasions  is  deemed  to  be  relevant.4 

Illustrations. 

(a)  The  question  is,  whether  a  letter  was  sent  on  a  given  day. 
The  post-mark  upon  it  is  deemed  to  be  a  relevant  fact.5 

(b)  The  question  is,  whether  a  particular  letter  was  dispatched. 


*  See  Note  VII.  [Appendix]. 

1  Blake  v.  Albion  Life  Assurance  Society,  4  C.  P.  D.  94. 

s  [Gr.  Ev.  i.  §§38,  40 ;  People  v.  Oyer  and  Terminer  Court,  83  N.  Y. 
436  ;  Twogood  v.  Mayor,  102  N.  Y.  216;  Beakes  v.  Da  Cutiha,  126  N.  Y. 
293 ;  Dun  lop  v.  United  States,  165  U.  S.  486  ;  State  v.  Taylor,  126  Mo. 
531  ;  Knickerbocker  Ins.  Co.  v.  Pendleton,  115  U.  S.  339;  Comm.  v. 
Kimball,  108  Mass.  473  ;  Hall  v.  Brown,  58  N.  H.  93.] 

3  1  Ph.  Ev.  449;  R.  N.  P.  46;  T.  E.  s.  139;  [see  Art.  90,  post,  last 
paragraph.] 

4  [Olcott  v.  Tioga  R.  Co.,  27  N.  Y.  546  ;  Seattle  v.  Delaware,  etc.  R. 
Co.,  90  N.  Y.  643  ;  Gallinger  v.  Lake  Shore  Co.,  67  Wis.  529  ;  Kent 
v.  Tyson,  20  N.  H.  121  ;  Thurber  v.  Anderson,  88  111.  167;  Kent's 
Comm.  ii.  615.  But  it  is  said  that  an  agency  to  commit  crimes  cannot 
be  proved  by  evidence  of  prior  like  crimes  committed  by  one  as  agent. 
People  v.  McLaughlin,  150  N.  Y.  365,  391.] 

6  R.  v.  Canning,  19  S.  T.  370.     [United  States  v.  Williams,  3  F.  R. 


54  A  DIGEST  OF  [Part  I. 

The  facts  that  all  letters  put  in  a  certain  place  were,  in  the  common 
course  of  business,  carried  to  the  post,  and  that  that  particular  letter 
was  put  in  that  place,  are  deemed  to  be  relevant.1 

(c)  The  question  is,  whether  a  particular  letter  reached  A. 

The  facts  that  it  was  posted  in  due  course,  properly  addressed,  and 
was  not  returned  through  the  Dead  Letter  Office,  are  deemed  to  be 
relevant.2 

(d)  The  facts  stated  in  Illustration  (d)  to  the  last  Article  are  deemed 
to  be  relevant  to  the  question  whether  A  was  agent  to  the  company.3 


484;  United  States  v.  Noelke,  17  Blatch.  554.  But  there  is  no  pre- 
sumption that  the  date  of  the  post-mark  was  the  day  of  depositing 
the  letter.  Shelburne  Falls  Bk.  v.  Townsley,  102  Mass.  177  ;  see 
Price  v.  McGoldrick,  2  Abb.  N.  C.  69.] 

1  Hctherington  v.  Kemp,  4  Camp.  193  ;  and  see  Skilbeck  v.  Garbett, 
7  Q.  B.  846,  and  Trotter  v.  Maclean,  13  Ch.  Div.  574.  [See  Howard 
v.  Daly,  61  N.  Y.  362;  Swampscott  Co.  v.  Rice,  159  Mass.  404;  Dix 
v.  Atkins,  128  Mass.  43  ;  Whitney  Works  v.  Moore,  61  Vt.  230;  Hall 
v.  Brown,  58  N.  H.  93,  97;  cf.  Hastings  v.  Brooklyn  Ins.  Co.,  138 
N.  Y.  473-] 

2  Warren  v.  Warren,  1  C.  M.  &  R.  250;  Woodcock  v.  Houlds- 
worth,  16  M.  &  W.  124.  Many  cases  on  this  subject  are  collected  in 
Roscoe's  Nisi  Priits,  pp.  374-5.  [Hedden  v.  Roberts,  134  Mass.  38  ; 
Rosenthal  v.  Walker,  m  U.  S.  185;  Folsom  v.  Cook,  115  Pa.  539; 
Sabre  v.  Smith,  62  N.  H.  663  ;  McFarland  v.  Accident  Ass' n,  124  Mo. 
204  ;  cf.  Ellison  v.  Lindsley,  33  N.  J.  Eq.  258,  note.  This  is  only 
pri)na  facie  evidence  that  the  letter  was  received,  not  a  conclusive 
presumption  of  law  {Huntley  v.  Whitticr,  105  Mass.  391  ;  Schutz  v. 
Jordan,  141  U.  S.  213 ;  Harrington  v.  Hickman,  148  Pa.  405  ;  Austin 
v.  Holland,  69  N.  Y.  571  ;  cf.  Marston  v.  Bigelow,  150  Mass.  45). 
The  same  rule  applies  to  telegrams.  U.  S.  v.  Babcock,  3  Dill.  571  ; 
Oregon  Steamship  Cc.  v.  Otis,  100  N.  Y.  446;  Eppingerv.  Scott,  112 
Cal.  369.] 

3  Blake  v.  Albion  Life  Assurance  Society,  4  C.  P.  D.  94. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  55 


CHAPTER  IV. 

rIEARSA  Y  IRRELEVANT  EXCEPT  IN  CERTAIN  CASES. 

Article  14.* 

hearsay  and  the  contents  of  documents  irrelevant. 

{a)  The  fact  that  a  statement  was  made  by  a  person  not 
called  as  a  witness,  and 

(b)  the  fact  that  a  statement  is  contained  or  recorded 
in  any  book,  document,  or  record  whatever,  proof  of 
which  is  not  admissible  on  other  grounds, 

are  respectively  deemed  to  be  irrelevant  to  the  truth  of 
the  matter  stated,  except  (as  regards  (a)  )  in  the  cases 
contained  in  the  first  section  of  this  chapter  ; ' 

and  except  (as  regards  (b) )  in  the  cases. contained  in 
the  second  section  of  this  chapter. 

Illustrations, 
(a)  A  declaration  by  a  deceased  attesting  witness  to  a  deed  that  he 
had  forged   it,  is  deemed  to  be  irrelevant  to  the  question  of  its 
validity.2 


*  See  Note  VIII.  [Appendix]. 

1  It  is  important  to  observe  the  distinction  between  the  principles 
which  regulate  the  admissibility  of  the  statements  contained  in  a 
document  and  those  which  regulate  the  manner  in  which  they  must 
be  proved.  On  this  subject  see  the  whole  of  Part  II.  [As  to  the 
general  rule  that  hearsay  evidence  is  excluded,  see  Stephens  v. 
Vroman,  16  N.  Y.  381  ;  Felska  v.  N.  Y.  Central  R.  Co.,  152  N.  Y.  339  ; 
Farrell  v.  Weitz,  160  Mass.  288  ;  Wallace  v.  Story,  139  Mass.  115  ; 
Hollister  v.  Cordero,  76  Cal.  649.J 

2  Stobart  v.Dryden,  1  M.  &  W.  615.  [Some  American  decisions 
deny  the  doctrine  of  this  case  (Boylan  v.  Meeker,  28  N.  J.  L.  274,  295  ; 


56  A  DIGEST  OF  [Part  I, 


(b)  The  question  is,  whether  A  was  born  at  a  certain  time  and  place. 
The  fact  that  a  public  body  for  a  public  purpose  stated  that  he  was 
born  at  that  time  and  place  is  deemed  to  be  irrelevant,  the  circum- 
stances not  being  such  as  to  bring  the  case  within  the  provisions  of 
Article  34.1 

(c)  [The  question  is,  whether  A,  a  person  on  trial  for  larceny,  was 
absent  from  the  State  at  a  particular  date. 

The  police  sergeant  of  a  city  in  the  State  may  not  testify  that  a 
police  officer  reported  to  him  on  that  date  that  he  had  seen  A  in  the 
street  that  night.]  '2 

(d)  [A  sues  a  railroad  company  to  recover  damages  for  personal 
injuries  caused  by  the  defendant's  negligence. 

A  written  statement  made  by  a  physician  while  he  was  treating  A 

for  these  injuries,  in  which  he  set  forth  the  nature  of  the  injuries  and 

their  effect  upon  A's  bodily  and  mental  condition,  is  deemed  to  be 

hearsay  evidence  and  therefore  inadmissible.]3 

/-  (e)  [A  sues   B   to   recover  for  services  rendered  as  attorney  and 

/  counselor  at  law  in  arguing  a  case  for  B  before  an  appellate  court. 

The  report  of  said  case  in  the  published  reports  of  said  court  is. 
deemed  incompetent  to  show  that  A  did  so  appear  and  argue  the 


case.j  ■  * 

/    (/)  [A  is  tried  for  the  murder  of  B.  \ 

I    A  statement  by  C  that  he  murdered  B  is  deemed  to  be  irrelevant.]5  I 


Otterson  v.  Hofford,  36  id.  129  ;  Neely  v.  Neely,  17  Pa.  227  ;  cf.  Losee 
v.  Losee,  2  Hill,  609 ;  In  re  Hesdra,  1 19  N.  Y.  615) ;  but  others  follow  it 
(Sewall  v.  Bobbins,  139  Mass.  164  ;  U.  S.  v.  Boyd,  8  App.  D.  C.  440  ; 
Boardnian  v.  IVoodmati,  47  N.  H.  120  ;  see  also  Gr.  Ev.  i.  §  126). 
That  the  declarations  of  other  deceased  witnesses  may  be  rejected  as 
hearsay,  see  Gray  v.  Goodrich,  7  Johns.  95  ;  Spats  v.  Lyons,  55  Barb. 
476.] 

1  Sturla  v.  Freccia,  L.  R.  5  App.  Cas.  623. 

-  \Comnt.  v.  Richer,  131  Mass.  581.] 

3  [  J  ricksburg,  etc.  R.  Co.  v.  O'Brien,  1 19  U.  S.  99.  But  such  state- 
ment might  be  used  by  the  physician  as  a  witness  to  refresh  his 
recollection.  Id.;  cf.  Russell v.  Hudson  River  R.  Co.,  17  N.  Y.  134; 
Armstrong  v.  Ackley,  71  la.  76  ;  Weaver  v .  Bromley ,  65  Mich.  212.] 

4  [Roraback  v.  Pennsylvania  Co.,  58  Ct.  292.] 

6  [Stale  v.  Beaudet,  53  Ct.  536,  545  ;  State  v.  Gee,  92  N.  C.  756 ; 
Munsli07ver  v.  State,  55  Md.  11  ;  Kelly  v.  State,  82  Ga.  441  ;  see  p.  7, 
note  5,  ante.] 


Chap.  IV.j  THE  LAW  OF  EVIDENCE.  57 

SECTION  I. 

HEARSAY,  WHEN  RELEVANT. 

Article  15.* 

admissions  defined. 

An  admission  is  a  statement,  oral  or  written,  suggesting 
any  inference  as  to  any  fact  in  issue  or  relevant  or 
deemed  to  be  relevant  to  any  such  fact,  made  by  or  on 
behalf  of  any  party  to  any  proceeding.'  Every  admission 
is  (subject  to  the  rules  hereinafter  stated)  deemed  to  be  a 


*  See  Note  IX.  [Appendix]. 

1  [It  is  an  impcrtant  rule  that  if  part  of  a  statement  made  by  a 
party  be  relevant  against  him  as  an  admission,  other  parts  of  the  same 
statement  which  in  any  way  qualify  or  explain  such  admission  are 
also  relevant,  though  they  are  in  such  party's  favor  (Gr.  Ev.  i.  §  201  ; 
Grattan  v.  Metropolitan  Ins.  Co.,  92  N.  Y.  274  ;  Gildersleeve  v.  Lan- 
don,  73  N.  Y.  609  ;  Insurance  Co.  v.  Newton,  22  Wall.  32  ;  Vanneter 
v.  Crossman,  42  Mich.  465  ;  Farley  v.  Rodocanachi,  100  Mass.  427  ; 
Hunter  v.  Pherson,  89  Me.  71  ;  as  to  letters,  see  Simmons  v.  Haas,  56 
Md.  153).  But  other  portions  of  the  same  conversation  or  statement, 
which  do  not  explain  or  affect  the  part  which  is  unfavorable  to  the 
declarant,  are  not  admissible  (Plainer  v.  Plainer,  78  N.  Y.  90) ;  nor 
are  independent  declarations  admissible  which  are  made  by  a  party 
in  his  own  favor  (Downs  v.  N.  Y.  C.  R.  Co.,  47  N.  Y.  83  ;  Corder  v. 
Corder,  124  111.  229  ;  Taylor  v.  Brown,  65  Md.  366  ;  Royal  v.  Chandler, 
79  Me.  265  ;  Tolbert  v.  Burke,  89  Mich.  132),  unless  they  form  part  of 
the  res gestce  (Brown  v.  Kenyon,  108  Ind.  283  ;  see  Art.  3,  notes).  But 
a  party  giving  evidence  of  the  opposing  party's  admissions  may  also 
disprove  those  parts  of  the  same  statement  which  are  in  the  other 
party's  favor,  but  are  nevertheless  receivable  in  evidence  (Mott  v. 
Consumers'  Ice  Co.,  73  N.  Y.  543). 

Oral  admissions  may  be  proved  by  any  witness  who  heard  them 
(Hartley  v.  Weideman,  175  Pa.  309)  ;  if  he  cannot  remember  the  exact 
words,  he  may  testify  to  the  substance  of  the  admission  (Gr.  Ev.  i. 
§  191  ;  Kittredge  v.  Russell,  1 14  Mass.  67). 

Admissions  may  also  be  implied  from  acts  and  conduct  (Gr.  Ev.  i. 
§§  195-199 ;  Hayes  v.  Kelley,  1 16  Mass.  300 ;  Greenfield  Bk.  v.  Crafts, 
2  Allen,  269 ;  Wesner  v.  Stein,  97  Pa.  322  ;  Lefever  v.  Johnson,  79  Ind. 


58  A  DIGEST  OF  [Part  I. 

relevant  fact  as  against  the  person  by  or  on  whose  behalf 
it  is  made,  but  not  in  his  favor  unless  it  is,  or  is  deemed 
to  be,  relevant  for  some  other  reason. 


554;  Foster  v.  Persc/1,68  N.  Y.  400).  Thus,  if  an  account  rendered 
be  not  objected  to  within  a  reasonable  time,  it  is  deemed  to  be  admit- 
ted by  the  party  charged  to  be  prima  facie  correct  ( Wiggins  v.  Burk- 
ham,  10  Wall.  129;  Samson  v.  Freedman,  102  N.  Y.  699).  Tender  of 
money  to  a  claimant  is  an  admission  of  liability  to  the  amount  of  the 
tender  {Rainwater  v.  Hummel,  79  la.  571;  Wilson  v.  Doran,  no 
N.  Y.  101).  The  act  of  a  landlord  in  making  repairs  after  an  injury 
is  an  admission  that  it  is  his  duty,  rather  than  that  of  the  tenant 
{Readman  v.  Conway,  126  Mass.  374).  So  if  a  partner  has  access  to 
the  books  of  the  firm,  the  book-entries  therein  are  admissible  against 
him  {Fairchild  v.  Fairchild,  64  N.  Y.  471  ;  Top/iff  v.  Jackson,  12  Gray, 
565).  But  failure  to  answer  a  letter  is  not  generally  deemed  an  ad- 
mission of  the  truth  of  its  contents  (  Wiedemann  v.  Walpole,  [1891] 
2  Q-  B.  534  ;  Thomas  v.  Gage,  141  N.  Y.  506 ;  Razor  v.  Razor,  149  111. 
621  ;  Fearing  x.  Kimball,  4  Allen,  125  ;  cf.  Oregon  Steamship  Co.  v. 
Otis,  100  N.  Y.  446  ;  Hays  v.  A/organ,  87  Ind.  231  ;  Murphy  v.  Gates, 
81  Wis.  370).  As  to  other  admissions  by  acquiescence,  see  Art.  8,  ante, 
last  paragraph. 

Admissions  made  incidentally  or  indirectly  are  competent  evidence 
as  well  as  those  made  directly  (Gr.  Ev.  i.  §  194  ;  Harrington  v.  Gable, 
81  Pa.  406;  see  Art.  17,  Illustration^-).  Admissions  made  in  a  plead- 
ing, sworn  to  by  a  party,  are  admissible  against  him  in  another  action 
{Cook  v.  Barr,  44  N.  Y.  156;  Elliott  v.  Hayden,  104  Mass.  180;  Folger 
v.  Boyington ,  67  Wis.  447),  though  only  made  upon  information  and 
belief  {Pope  v.  Ellis,  1 15  U.  S.  363  ;  cf.  Mayor  of  N.  Y.  v.  Fay,  53  Hun, 
553).  And  the  same  is  true  of  a  pleading  not  so  sworn  to,  if  the  admis- 
sions therein  were  derived  from  the  instructions  of  the  party,  or  were 
otherwise  authorized  or  adopted  by  him  {Johnson  v.  Russell,  144  Mass. 
409 ;  Rockland  v.  Farnsworth,  89  Me.  481  ;  Vogelv.  Osborne,  32  Minn. 
167);  aliter,  if  they  were  merely  the  suggestions  of  the  attorney  (Id. ; 
Denniev.  Williams,  135  Mass.  28;  Delaware  Co.  v.  Diebold  Co.,  133 
U.  S.  473;  Duff  v.  Duff  71  Cal.  513).  But  some  authorities  admit 
former  pleadings  as  evidence  of  admissions  without  insisting  so  rigor- 
ously upon  these  distinctions  {Coward  v.  Clan  ton,  79  Cal.  23  ;  Raridan 
v.  Cent.  Iowa  R.  Co.,  69  la.  527 ;  Lamar  v.  Pearre,  90  Ga.  377). 
Admissions  may  also  be  made  in  affidavits  or  depositions,  or  in  evi- 
dence given  in  a  former  proceeding,  etc.  (  Whiton  v.  Snyder,  88  N.  Y. 
299;  Comm.  v.  Reynolds,  122  Mass.  454  ;  Phenix  Ins.  Co.  v.  Clark,  58 
N.  H.  164  ;  Bogie  v.  Nolan,  96  Mo.  85).    Admissions  made  simply  for 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  59 

Article  16.* 
who  may  make  admissions  on  behalf  of  others,  and  when. 

Admissions  may  be  made  on  behalf  of  the  real  party  to 
any  proceeding- — 
/     By  any  nominal  party  to  that  proceeding-  ; 1  \ 

*  See  Note  X.  [Appendix], 
one  trial  cannot  be  used  in  another  [McKinney  v.  Salem,  jj  Ind.  213), 
but  the  rule  is  otherwise,  if  they  are  made  without  such  limitation 
(Holley  v.  Young,  68  Me.  215  ;  Owen  v.  Cowley,  36  N.  Y.  600  ;  Perry 
v.  Simpson,  etc.  Co.,  40  Ct.  313  ;  Central  Branch,  etc.  R.  Co.  v.  S/wup, 
28  Kan.  394  ;  Ex  parte  Hayes,  92  Ala.  120). 

Evidence  of  oral  admissions,  though  competent,  is  in  general  not 
conclusive,  and  may  need  to  be  received  with  great  caution  (Gr.  Ev.  i. 
§§199,  200  ;  Jones  v.  Knauss,  31  N.  J.  Eq.  609  ;  Haven  v.  Markstrum, 
67  Wis.  493  ;  Allen  v.  Kirk,  81  la.  658  ;  Miller  v.  Rowan,  108  Ala.  98). 
Still,  if  deliberately  made  and  clearly  proved,  they  may  be  of  much 
weight  (Id.).  Admissions  may,  in  proper  cases,  be  explained  and 
shown  to  be  incorrect,  or  to  have  been  made  by  mistake  or  inadvert- 
ence {Davis  v.  McCrocklin,  34  Kan.  218  ;  Stowe  v.  Bishop,  58  Vt.  498; 
Knobloch  v.  Mueller,  123  111.  554  ;  Dale  v.  Gilbert,  128  N.  Y.  625,  628; 
cf.  Brooks  v.  Belfast,  etc.  R.  Co.,  72  Me.  365).  But  admissions  are 
conclusive  when  they  amount  to  estoppels  (Gr.  Ev.  i.  §§204-208; 
Halloran  v.  Halloran,  137  111.  100) ;  and  admissions  made  in  plead- 
ing and  not  obviated  by  amendment,  are  conclusive  in  the  same  case 
(Tisdale  v.  Pres.  of  D.  &*  H.  Co.,  116  N.  Y.  416  ;  Peck  ham  Iron  Co. 
v.  Harper,  41  O.  St.  100  ;  see  Art.  60).  But  if  the  law  allows  a  party 
to  plead  several  pleas,  the  admissions  in  one  plea  cannot  be  used 
against  him  in  another.     Glenn  v.  Sunnier,  132  U.  S.  152.] 

'  [Mr.  Stephen  illustrates  this  rule  by  saying  that  the  admissions  of  an 

/assignor  of  a  chose  in  action,  who  is  the  nominal  plaintiff  in  an  action 

'    brought  for  the  benefit  of  his  assignee,  are  admissible  against  the 

,     latter.     But  in  New  York  and  many  other  States  of  this  country  the 

'    assignee  sues  in  his  own  name,  and  there  is,  therefore,  no  ground  for 

receiving  the  admissions  of  the  assignor  made  after  the  assignment  ; 

they  are  therefore  excluded  (Van  Gelder  v.   Van  Gelder,  81   N.  Y. 

625).     And  evidence  of  such  admissions  has  been  generally  rejected 

in  this  country,  even  when  the  rule  prevailed  that  the  assignee  must 

sue  in  the  assignor's  name  (  Wing  v.  Bishop,  3  Allen,  456  ;  Butler  v. 

Millelt,  47   Me.  492;    Sargeant  v.  Sargeant,   18   Yt.  371  ;    Dazey  v. 


60  A  DIGEST  OF  [Part  I. 

By  any  person  who,  though  not  a  party  to  the  pro- 
ceeding, has  a  substantial  interest  in  the  event ; ' 

By  any  one  who  is  privy  in  law,2  in  blood,3  or  in  estate4 
to  any  party  to  the  proceeding,  on  behalf  of  that  party. 


Mills,  5  Gilm.  (111.)  67  ;  Frear  v.  Evertson,  20  Johns.  142  ;  cf.  Fay  v. 
Guynon,  131  Mass.  31).  But  the  admissions  of  the  assignee,  made 
after  a  valid  assignment,  are  relevant  against  him.] 

1  [Gr.  Ev.  i.  §  180  ;  Fickett  v.  Swift,  41  Me.  65  ;  Bigelow  v.  Foss,  59 
Me.  162  ;  Barber's  Adm'r  v.  Be?ifiett,  60  Vt.  662  ;  Benjamin  v.  Smith, 
4  Wend.  332,  335,  12  Wend.  404,  407  ;  see  Taylor  v.  Grand  Trunk  R. 
Co.,  48  N.  H.  304.  But  the  declarations  of  a  person  who  is  not  a  party 
to  the  record  nor  a  witness  are  not  received  to  show  that  he  is  the 
real  party  in  interest  {Ryan  v.  Merriam,  4  Allen,  77). 

Under  this  head  is  sometimes  placed  the  rule  that  in  an  action 
against  a  sheriff  for  the  misconduct  of  his  deputy  the  admissions  of 
the  deputy  are  receivable,  on  the  ground  that  he  is  the  real  party  in 
interest  (Gr.  Ev.  i.  §  180,  note).  But  in  some  States  it  is  held  that  such 
declarations  are  only  receivable  when  they  accompanied  the  deputy's 
official  acts,  and  therefore  formed  part  of  the  res  gestce.  Barker  v. 
Binninger,  14  N.  Y.  270  ;  Stewart  v.  Wells,  6  Barb.  79.] 

2  [Thus  the  admissions  of  an  intestate  are  receivable  against  his  ad- 
ministrator {Brown  v.  Mailler,  12  N.  Y.  118;  Fellows  v.  Smith,  130 
Mass.  378  ;  Clouser  v.  Ruckman,  104  Ind.  588)  ;  and  of  testator  against 
executor  {Hurlbutv.  Hurlbut,  T28  N.  Y.  420;  Childs  v.  Jordan,  106 
Mass.  321).  So  in  an  action  by  a  widow  for  dower,  admissions  made 
by  her  husband  while  living  are  deemed  to  be  relevant  against  her. 
Van  Duyne  v.  Thayre,  14  Wend.  233.] 

3  [Admissions  made  by  an  ancestor  are  receivable  against  his  heirs. 
Spaulding  v.  Hallenbeck,  35  N.  Y.  204  ;  Enders  v.  Sternbergh,  2  Abb. 
Dec.  31 ;  Davis  v.  Melson,  66  la.  715  ;  Mc Sweeney  v.  McMillen,  96 
Ind.  298.] 

4  [Admissions  by  a  grantor  of  land  are  relevant  against  his  grantee  ; 
of  a  landlord  against  his  tenant ;  of  devisor  against  devisee  ;  of  any 
owner  of  land  against  those  who  subsequently  derive  title  from  or 
through  him  {Chadwick  v.Fonner,  69  N.  Y.  404  ;  New  Jersey  Zinc  Co. 
v.Lehigh  Zinc  Co.,  59  N.  J.  L.  189;  Potter  v.  Waite,  55  Ct.  236; 
Simpson  v.  Dix,  131  Mass.  179 ;  Pickering  v.  Reynolds,  1 19  Mass.  1 1 1). 
But  the  admissions  of  a  tenant  for  life  or  years  will  not  bind  the  re- 
versioner {Fitzgerald  v.  Brennan,  57  Ct.  511).  As  to  personal  property, 
see  p.  63,  post,  note. 

Not  only  those  declarations  by  an  owner  of  land,  or  by  one  claiming 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  61 

A  statement  made  by  a  party  to  a  proceeding  may-  be 
an  admission  whenever  it  is  made,1  unless  it  is  made  by  a 
person  suing  or  sued  in  a  representative  character  only, 


title,  which  are  in  disparagement  of  his  title,  are  admissible  against  the 
declarant  or  persons  in  privity  with  him  (see  Bowen  v.  Chase,  98  U.  S. 
254  ;  Dooley  v.  Baynes,  86  Va.  644),  but  also  those  statements  made  by 
him  while  in  possession,  which  show  the  character  of  his  possession  and 
by  what  title  he  claims  {Pitts  v.  Wilder,  1  N.  Y.  525  ;  Moore  v.  Hamil- 
ton, 44  N.  Y.666  ;  Creighton  v.  Hoppis,  99  Ind.  369 ;  Smith  v.  Putnam, 
62  N.  H.  369  ;  Hale  v.  Rich,  48  Vt.  217  ;  Hale  v.  Silloway,  1  Allen,  21}: 
as^.^.,  to  show  that  he  held  under  adverse  claim  of  title  (Aforss  v.  Salis- 
bury,  48  N.  Y.  636  ;  Snsq.  etc.  R.  Co.  v.  Quick,  68  Pa.  189 ;  Mississippi 
Co.  v.  Vowels,  101  Mo.  225);  or  as  the  tenant  or  agent  of  a  particular 
person  {Gibney  v.  Marchay,  34  N.  Y.  301  ;  Garber  v.  Doersom,  117  Pa. 
162  ;  Lucy  v.  Tenn.  etc.  R.  Co.,  92  Ala.  246) ;  or  to  show  the  extent  of 
occupation  or  boundary  {Abeel  v.  Van  Gelder,  36  N.  Y.  513  ;  Wood  v. 
Fiske,  62  N.  H.  173;  Flagg  v.  Mason,  141  Mass.  64;  Sharp  v. 
Blankenship,  79  Cal.  411).  Such  evidence  comes  properly  under  the 
doctrine  of  res  gestw,  and  by  some  decisions  such  statements  are  held 
admissible,  though  they  were,  when  made,  in  the  declarant's  own 
favor  (Gr.  Ev.  :.  3  109 ;  see  ante,  Art.  3,  notes ;  Bennett  v.  Camp,  54  Vt. 
36;  Sheaffer  \.  Eakman,  56  Pa.  144;  McConnell  \.  Hannah,  96  Ind. 
102  ;  contra,  Morrill  v.  Titcomb,  8  Allen,  100  ;  in  Roebke  v.  Andrews, 
26  Wis.  311,  the  question  is  fully  discussed,  pro  and  con  ;  cf.  Lampe 
v.  Kennedy,  60  Wis.  110;  the  same  question  arises  as  to  personal 
property.  Id.  ;  Mates  v.  Borne,  123  Ind.  522).  But  declarations  of  an 
owner  in  possession  of  land  will  not  be  received  in  place  of  record 
evidence,  nor  to  destroy  a  record  title.  Gibney  v.  Marchay,  supra  ; 
Dodge  v.  Trust  Co.,  93  U.  S.  379  ;  Hancock  Ins.  Co.  v.  Moore,  34  Mich. 
41  ;  but  see  Loomis  v.  Wadhams,  8  Gray,  557.] 

1  [Cook  v.  Barr,  44  N.  Y.  156  ;  Williains  v.  Sergeant,  46  N.  Y.  481  ; 
Wiggin  v.  B.  &*  A.  R.  Co.,  120  Mass.  201  ;  Hatch  v.  Brown,  63  Me. 
410;  Duncan  v.  Lawrence,  24  Pa.  154;  cf.  Shailer  v.  Bumstead,  99 
Mass.  112,  127.  So  if  one  be  substituted  as  a  party  after  suit  brought, 
his  admissions  are  receivable  (  Wadsworth  v.  Williams,  100  Mass. 
126).  The  admissions  of  a  party  to  a  suit  against  the  validity  of  the 
claim  sued  upon  have  been  held  competent  evidence,  though  made 
before  he  became  owner  of  the  claim  {Barber  s  Adnir  v.  Bennett,  60 
Vt.  662  ;  Taylor  v.  Grand  Trunk  R.  Co.,  48  N.  H.  304  ;  cf.  Fitzgerald 
v.  Weston,  52  Wis.  354).  But  statements  of  a  party  which  merely 
raise  a  suspicion  or  conjecture  as  to  the  existence  of  an  alleged  fact 


62  A  DIGEST  OF  [Part  1. 

in  which  case  (it  seems)  it  must  be  made  whilst  the  per- 
son making  it  sustains  that  character.1 

A  statement  made  by  a  person  interested  in  a  proceed- 
ing, or  by  a  privy  to  any  party  thereto,  is  not  an  admis- 
sion, unless  it  is  made  during  the  continuance  of  the  in- 
terest which  entitles  him  to  make  it.2 


cannot  constitute  an  admission  of  its  truth.  People  v.  Corey,  148 
N.  Y.  476.] 

1  [Gr.  Ev.  i.  §  179  ;  Lamar  v.  Micou,  112  U.  S.  452.  Thus  the  decla- 
rations of  an  executor  or  administrator  are  not  competent  as  admissions, 
unless  made  after  his  appointment  and  while  he  was  acting  in  that 
capacity  and  representing  the  estate  {Church  v.  Howard,  79  N.  Y. 
415  ;  Brooks  v.  Goss,  61  Me.  307  ;  Webster  v.  Le  Compte,  74  Md.  249  ; 
see  Heywood  v.  Heywood,  10  Allen,  105).  But  if  he  sues  or  is  sued 
in  an  individual  capacity,  his  admissions  made  at  other  times  are 
receivable  (see  Whiton  v.  Snyder,  88  N.  Y.  299).  And  his  admissions 
made  as  party  in  one  suit  are  receivable  against  him  as  party  in 
another  {Phillipps  v.  Middlesex ,  127  Mass.  262). 

Admissions  made  by  a  guardian  will  not  be  allowed  by  the  courts  to 
prejudice  the  rights  of  his  ward.  Buffalo  Loan,  etc.  Co.  v.  Knights 
Templar  Ass  n,  126  N.  Y.  450  ;   Cooper  v.  Mayhew,  40  Mich.  528.] 

'-'  [Thus  declarations  by  a  grantor  or  mortgagor  of  land,  which  were 
made  before  he  acquired  or  after  he  parted  with  his  title  or  interest,  are 
not  receivable  as  admissions  against  his  grantee  or  mortgagee  {Hutchins 
v.  Hutchins,  98  N.  Y.  56 ;  Chase  v.  Horton,  143  Mass.  118;  Ruckman  v. 
Cory,  129  U.  S.  387 ;  McLaughlin  v.  McLaughlin,  91  Pa.  462  ;  Miller  v. 
Cook,  135  111.  190);  nor  those  of  an  assignor  of  chattels  or  choses  in .action 
against  the  assignee,  when  they  were  made  after  the  assignment  and 
transfer  of  possession  {Coyne  v.  Weaver,  84  N.  Y.  386  ;  Burnham  v. 
Brennan,  74  N.  Y.  597;  Roberts  v.  Medbery,  132  Mass.  100;  Win- 
chester, etc.  Co.  v.  Creary,  1 16  U.  S.  161  ;  Ohio  Coal  Co.  v.  Davenport, 
37  O.  St.  194  ;  Turner  v.  Hardin,  80  la.  691).  But  if  a  transferor  of 
land  or  chattels  remains  in  possession,  his  declarations  characterizing 
that  possession  are  generally  deemed  competent,  under  the  doctrine 
of  res  gestw  {Pier  v.  Duff,  63  Pa.  59 ;  Robbins  v.  Spencer,  140  Ind.  483  ; 
Loos  v.  Wilkinson,  1 10  N.  Y.  195  ;  Merriam  v.  Swensen,  42  Minn.  383  ; 
Roberts  v.  Medbery,  supra;  see  Williams  v.  Williams,  142  N.  Y.  156). 
In  some  States  the  declarations  of  an  assignor  of  personal  property, 
made  while  he  remains  in  continuous  possession  of  it  after  the  assign- 
ment, are  receivable  to  show  fraud  as  to  creditors  {Adams  v.  Davidson, 
10  N.  Y.  309;  Tilson  v.  Tenvilliger,  56  N.  Y.  273  ;  Murch  v.  Swensen, 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  63 

Illustrations. 
(a)  The  assignee  of  a  bond  sues  the  obligor  in  the  name  of  the 
obligee. 


40  Minn.  421  ;  Boyd  v.  Jones,  60  Mo.  454  ;  Smith  v.  Boyer,  29  Neb.  76; 
Dodge  v.  Goodell,  16  R.  I.  48;  Kirby  v.  Masten,  70  N.  C.  540;  cf.  Loos 
v.  Wilkinson,  no  N.  Y.  195);  and  the  same  rule  has  been  applied  to 
declarations  of  grantors  of  land  {Osgood v.  Eatoti,  63  N.  H.  355  ;  U.  S, 
v.  Griswold,  8  F.  R.  556;  Byrdx.  Jones,  84  Ala.  336;  cf.  Williams  v. 
Williams,  142  N.  Y.  156;  Hart  v.  Randolph,  142  111.  521;  McCormicks 
v.  Williams,  56  la.  143).  But  the  declarations  of  a  grantor  cf  realty 
or  assignor  of  personalty,  made  after  the  transfer  of  possession,  cannot 
be  received  for  the  same  purpose  (Ho  lb  rook  v.  Ho  lb  rook,  113  Mass. 
74;  Flamiery  v.  Van  Tassel,  131  N.  Y.  639),  unless  there  be  a  con- 
spiracy between  the  parties  to  defraud  creditors  and  such  declarations 
are  made  in  pursuance  of  the  conspiracy  (Id. ;  Cuyler  v.  McCartney, 
40  N.  Y.  221  ;  Souder  v.  Schechterly,  91  Pa.  83  ;  Jones  v.  Simpson,  1 16 
U.  S.  609 ;  Daniels  v.  McGinnis,  97  Ind.  549 ;  see  Art.  4). 

The  admissions  of  an  assignor  of  a  chattel  or  chose  in  action,  made 
while  he  had  ownership  and  possession,  are  in  many  States  held  com- 
petent against  his  assignee  (Hanchcltv.  Kimbark,  1 18  111.  121  ;  Taylor 
v.  Hess,  57  Minn.  96;  Merrick  v.  Park  man,  18  Me.  407;  Alger  v. 
Andrews,  47  Vt.  238;  Magee  v.  Raiguel,  64  Pa.  no;  Bond  v.  Fitz- 
patrick,  4  Gray,  89  ;  Randegger  v.  Ehrhardt,  51  111.  101  ;  aliter,  as  to 
commercial  paper  negotiated  before  maturity) ;  but  the  rule  is  some- 
times limited  by  important  qualifications  (Coit  v.  Howd,  1  Gray,  547). 
This  rule  is  like  that  applied  to  real  estate  (see  p.  60,  note  4,  ante).  But 
in  New  York,  while  the  rule  as  to  realty  is  accepted,  a  different  rule 
is  applied  to  personalty,  and  it  is  held  that  the  declarations  of  the 
assignor,  though  made  before  the  assignment,  are  not  admissible 
against  an  assignee  for  value  or  for  the  benefit  of  creditors  (Paige  v. 
Cagwin,  7  Hill,  361  ;  Von  Sachs  v.  Kretz,  72  N.  Y.  548,  554  ;  Bush  v. 
Roberts,  m  N.  Y.  278),  unless  they  were  made  in  pursuance  of  .'. 
fraudulent  conspiracy  between  the  parties,  or  in  fraudulent  salts 
where  the  vendor  remains  in  continuous  possession,  etc.  (Flanncry  v. 
Van  Tassel,  127  N.  Y.  631).  The  same  rule  is  adopted  by. the  U.  S. 
Supreme  Court  (Dodge  v.  Trust  Co.,  93  U.  S.  379 ;  S.  P.  Deasey  v. 
Thurman,  1  Ida.  775).  But  against  other  assignees,  not  acquiring 
title  for  value  (as  an  executor,  etc.),  such  declarations  of  the  assignor 
are  competent  ( Von  Sachs  v.  Krctz,  supra).  And  an  assignor's  decla- 
rations may  be  proved  as  part  of  the  res  gesto?,  even  as  against  a 
holder  for  value  if  they  were  made  at  the  time  of  the  transfer  and 
serve  to  qualify  the  title.     Benjamin  v.  Rogers,  126  N.  Y.  60.] 


64  A  DIGEST  OF  [Part  I. 

An  admission  on  the  part  of  the  obligee  that  the  money  due  has 
been  paid  is  deemed  to  be  relevant  on  behalf  of  the  defendant.1 

(b)  An  admission  by  the  assignee  of  the  bond  in  the  last  Illustration 
would  also  be  deemed  to  be  relevant  on  behalf  of  the  defendant. 

(da)  [The  question  is,  whether  a  horse  was  sold  to  the  defendant  by 
the  plaintiff  for  $500,  or  was  entrusted  to  him  as  a  bailee. 

The  defendant  upon  seeing  an  entry  made  in  the  plaintiff's  book  of 
account  immediately  after  the  transaction,  charging  him  with  $500  as 
the  price  of  the  horse,  admitted  its  accuracy  ;  this  admission  is 
deemed  to  be  relevant  against  him.]  '2 

(bb)  [A  sues  B  to  recover  the  possession  of  land.  A  claims  under  C 
and  B  claims  under  D.  Declarations  made  by  D  while  in  possession 
of  the  land  that  C  was  the  owner  are  admissible  against  B.]3 

{be)  [The  admissions  of  a  holder  of  a  promissory  note  after  maturity, 
made  while  he  held  it,  are  deemed  to  be  relevant  against  a  subsequent 
holder.] 4 

(c)  A  statement  made  by  a  person  before  he  becomes  the  assignee 
of  a  bankrupt  is  not  deemed  to  be  relevant  as  an  admission  by  him  in 
a  proceeding  by  him  as  such  assignee.5 

(d)  Statements  made  by  a  person  as  to  a  bill  of  which  he  had  been 
the  holder  are  deemed  not  to  be  relevant  as  against  the  holder,  if  they 
are  made  after  he  has  negotiated  the  bill.6 

(e)  [A  sues  B  to  recover  his  salary  for  services  rendered  as  foreman 
of  B's  tannery. 

A  witness  X  testifies  that  B  had  declared  to  him  that  he  had  dis- 
charged A  and  that  he  was  to  pay  A  S400  a  year ;  and  that  in  the 
same  conversation  B  said  that  A  got  drunk,  was  absent  and  neglected 
his  business,  and  that  on  that  account  he  had  discharged  him.  These 
qualifying  statements  were  admitted  in  evidence  in  connection  with 
the  admission.] 7      

1  See  Moriarty  v.  L.  C.  &>  D.  Co.,  L.  R.  5  Q.  B.  320;  [see  p.  59,  note  i, 
ante.] 

'-'  [  Tanner  v.  Pa /shall,  4  Abb.  Dec.  356.] 

3  [Simpson  v.  Dix,  131  Mass.  179.] 

4  [Bond  v.  Fitzpatrick,  4  Gray,  89  ;  Kane  v.  Torbitt,  23  111.  App.  311; 
contra,  Clews  v.  Kehr,  go  N.  Y.  633.] 

5  Fenwick  v.  Thornton,  M.  &  M.  51  (by  Lord  Tenterden).  In  Smith 
v.  Morgan,  1  M.  &  R.  257,  Tindal,  C.  J.,  decided  exactly  the  reverse. 

6  Pocock  v.  Billing,  2  Bing.  269. 

'  [Bearss  v.  Copier,  10  N.  Y.  93  ;  see  Rouse  v.  Minted,  25  N.  Y.  170. 
But  the  fact  that  the  whole  statement  is  admissible  does  not  require 
the  same  weight  to  be  given  to  every  part  of  it.    Id.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  65 


Article  17.* 
admissions  by  agents  and  persons  jointly  interested  with 

PARTIES. 

Admissions  may  be  made  by  agents  authorized  to  make 
them  either  expressly  or  by  the  conduct  of  their  prin- 
cipals ;  but  a  statement  made  by  an  agent  is  not  an  ad- 
mission merely  because  if  made  by  the  principal  himself 
it  would  have  been  one.1 


*See  Note  XI.  [Appendix]. 

1  [Illustrations  (a),  (ab),  (c)  and  (d).  The  admission  of  an  agent,  in 
order  to  be  competent  evidence  against  his  principal,  must  relate  to, 
and  be  made  in  connection  with,  some  act  done  in  the  course  of  his 
agency,  so  as  to  form  part  of  the  res  gestae  {Anderson  v.  Ro7ne,  etc.  R. 
Co.,  54  N.  Y.  334  ;  Manhattan  Ins.  Co.  v.  Forty-second  St.  etc.  R.  Co., 
139  N.  Y.  146;  Goetz  v.  Batik  of  Kansas  City,  1 19  U.  S.  551 ;  Xenia  Bk. 
v.  Stewart,  1 14  U.  S.  224;  Lane  v.  B.  &°A.R.  Co.,  112  Mass.  455;  Giber- 
son  v.  Patterson  Mills  Co.,  174  Pa.  369;  Ohio,  etc.  R.  Co.  v.  Stein,  133 
Ind.  243;  Ayres  v.  Hubbard,  71  Mich.  594).  Or  else  they  must  be  ex- 
pressly authorized  (  White  v.  Miller,  71  N.  Y.  1 18,  136).  But  an  agent's 
declarations  are  not  admissible  to  prove  his  own  authority  (Stringham 
v.  St.  Nicholas  Ins.  Co.,  4  Abb.  Dec.  315;  Baltimore,  etc.  Ass'n  v. 
Post,  122  Pa.  579;  Swanstrom  v.  Improvement  Co.,  91  Mich.  367). 

A  wife's  declarations  are  competent  against  her  husband  when  she 
makes  them  as  his  agent,  within  this  rule  ;  and  so  of  a  husband's  ad- 
missions as  against  his  wife.  The  marital  relation  does  not  of  itself 
establish  the  agency,  but  it  must  be  otherwise  shown  to  exist ;  it  may 
be  express  or  implied  (Gr.  Ev.  i.  §  185  ;  Lay  Grae  v.  Peterson,  2 
Sandf.  338  ;  Deck  v.  Johnson,  I  Abb.  Dec.  497  ;  Rose  v.  Chapman,  44 
Mich.  312  ;  Phelps  v.  James,  86  la.  399  ;  Goodrich  v.  Tracy,  43  Vt.  314  ; 
see  McGregor  v.  Wait,  10  Gray,  72  ;    Wright  v.  Towle,  67  Mich.  255). 

The  admissions  of  a  member  or  officer  of  an  aggregate  corporation, 
who  is  not  a  party  to  the  action,  are  not  competent  evidence  against 
the  corporation,  unless  made  within  this  rule  while  he  was  acting  as 
its  authorized  agent  (Soper  v.  Buffalo,  etc.  R.  Co.,  19  Barb.  310  ;  N.  Y. 
Code  Civ.  Pro.  §  839  ;  Trucsdellv.  Chumar,  75  Hun,  416  ;  Allegheny 
Co.  Workhouse  v.  Moore,  95  Pa.  408  ;  2  How.  St.  (Mich.)  §  7512).  So 
the  admissions  of  an  inhabitant  of  a  municipal  corporation  are  not,  in 
this  country,  competent  evidence  against  the  corporation  ;  and  so  of 
the  admissions  of  a  public  officer,  unless  made  while  he  is  acting  as 


66  A  DIGEST  OF  [Part  I. 

A  report  made  by  an  agent  to  a  principal  is  not  an 
admission  which  can  be  proved  by  a  third  person.1 

Partners  and  joint  contractors  are  each  other's  agents 
for  the  purpose  of  making  admissions  against  each  other 
in  relation  to  partnership  transactions  or  joint  contracts.2 


agent  of  the  municipality,  and  as  part  of  the  res  gesto?.  Smyth  v. 
lla/igor,  72  Me.  249;  Weeks  v.  Needham,  156  Mass.  289;  Gray  v. 
Rollinsford,  58  N.  H.  253  ;  Petition  of  Landaff,  34  N.  H.  163.] 

1  Re  Devala  Co.,  22  Ch.  Div.  593  ;  [cf.  Insurance  Co.  of  N.  America 
v.  Gttardiola,  129  U.  S.  642.] 

2  [Illustrations  (e)  and  (/).  This  is  a  well-settled  rule  as  to  the  admis- 
sions of  a  partner  made  during  the  existence  of  the  partnership  ( Union 
Nat.  Bk.  v.  Underhill,  102  N.  Y.  336;  Van  Keuren  v.  Parmelee,  2  N.  Y. 
512;  Smith  v.  Collins,  115  Mass.  388;  Western  Assurance  Co.  v.  Towle, 
65  Wis.  247;  Griffin  v.  Steams,  44  N.  H.  498;  Slipp  v. Hartley,  50  Minn. 
118;  Ruckman  v.  Decker,  23  N.  J.  Eq.  283).  The  existence  of  the  part- 
nership, however,  must  be  first  shown,  and  the  admissions  of  one  alleged 
partner  are  not  competent  against  others  to  prove  them  to  be  partners, 
though  each  one's  admissions  are  receivable  against  himself  to  show 
him  to  be  a  partner  {Robins  v.  Warden,  1 1 1  Mass.  244  ;  McNeilatis 
Estate,  167  Pa.  472  ;  Bundy  v.  Bruce,  61  Vt.  619  ;  Armstrong  v.  Potter, 
103  Mich.  409  ;  Vannoy  v.  Klein,  122  Ind.  416  ;  Greenwood  x.  Sias,  21 
Hun,  391  ;  Pleasants  v.  Pant,  22  Wall.  1 16).  One  partner  cannot  con- 
fess judgment  against  another,  even  for  a  partnership  debt  {McCleery 
v.  Thompson,  130  Pa.  443;  Hall  v.  Panning,  91  U.  S.  160,  170). 

Different  rules  prevail  in  different  States  as  to  whether  the  admis- 
sions of  one  partner,  made  after  a  dissolution  of  the  firm,  shall  be 
receivable  against  the  others.  In  some  States  they  are  admissible 
against  the  others,  when  made  in  regard  to  past  debts  or  transactions 
of  the  firm,  but  not  so  as  to  create  new  contracts  or  obligations  ( Gay  v. 
Bowen,  8  Met.  100  ;  Buxton  v.  Edwards,  134  Mass.  567,  579  ;  Hinkley 
v.  Gilligan,  34  Me.  101  ;  Rich  v.  Flanders,  39  N.  H.  304,  339  ;  cf. 
Feigley  v.  Whitaker,  22  O.  St.  606  ;  Davis  v.  Poland,  92  Ya.  225) ;  and 
they  are  also  competent  in  some  States  to  arrest  and  start  anew  the 
running  of  the  Statute  of  Limitations  as  to  a  partnership  debt  which  is 
not  yet  barred  {Merrill  v.  Day,  38  N.  J.  L.  32  ;  Bissell  v.  Adams,  35 
Ct.  299  ;  McClurg  v.  Howard,  45  Mo.  365).  But  in  New  York  ad- 
missions by  one  as  to  dealings  of  the  firm  before  dissolution  are  not 
competent  against  the  others,  nor  will  his  admissions  affect  the  run- 
ning of  the  Statute  of  Limitations  except  as  to  himself  {Bakers. 
Stackpole,  9  Cow.  420  ;    Van  Keuren  v.  Parmelee,  supra)  ;   though  if 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  67 

Barristers  and  solicitors  are  the  agents  of  their  clients 
for  the  purpose  of  making  admissions  whilst  engaged  in 
the  actual  management  of  the  cause,  either  in  court  or  in 
correspondence  relating  thereto ;    but  statements  made 


one  is  authorized  to  act  as  agent  in  the  business  of  winding  up,  the 
declarations  which  he  makes  in  the  course  of  his  agency  are  com- 
petent against  all  {Nichols  v.  White,  85  N.  Y.  531).  When  a  partner 
retires,  the  remaining  members  cannot  bind  him  by  their  admissions 
(Pringle  v.  Lev e rich,  97  N.  Y.  181).  Some  other  States  have  adopted 
similar  rules  {Bell  v.  Morrison,  1  Pet.  351  ;  Cronkhite  v.  Herrin,  15 
F.  R.  888  ;  Wilson  v.  Waugh,  101  Pa.  233  ;  Gates  v.  Fisk,  45  Mich. 
522  ;  Conkey  v.  Barbour,  22  Ind.  196 ;  Nat.  Bk.  of  Commerce  v. 
Header,  40  Minn.  325  ;  Maxey  v.  Strong,  53  Miss.  280  ;  see  Parsons 
on  Partnership,  pp.  184-197). 

As  respects  creditors  who  have  had  dealings  with  the  firm  but  to 
whom  no  notice  of  dissolution  has  been  given,  part  payments  by  one 
partner  after  dissolution  will  prevent  the  bar  of  the  Statute  of 
Limitations  as  to  the  other  partners  {Davison  v.  Sherburne,  57  Minn. 
355  ;  Buxton  v.  Edwards,  134  Mass.  355  ;  Tappaii  v.  Kimball,  30 
N.  H.  136  ;  Gates  v.  Fisk,  45  Mich.  522). 

So  in  some  States  the  admissions  of  one  joint  debtor  or  contractor 
are  received  against  the  others,  and  will  also  arrest  and  start  anew 
the  running  of  the  Statute  of  Limitations  as  respects  all,  except  so 
far  as  the  statutes  cited  below  (see  p.  69,  note  2)  modify  this  rule 
{Dennie  v.  Williams,  135  Mass.  28  ;  Shepley  v.  Waterhouse,  22  Me. 
497;  Clark  v.  Sigourney,  17  Ct.  510;  Woonsocket  Inst.v.  Ballou,  16 
R.  I.  351  ;  Schindel  v.  Gates,  46  Md.  604  ;  Block  v.  Dorman,  51  Mo.  31  ; 
see  Parker  v.  Butterworth,  46  N.  J.  L.  244).  In  other  States  a  con- 
trary or  modified  doctrine  is  held  {Campbell  v.  Brown,  86  N.  C.  376  ; 
see  Kallenbach  v.  Dickinson,  100  111:  427,  which  enumerates  the  States 
having  the  diverse  rules,  and  cites  many  leading  cases).  Thus  it  is 
held  in  a  number  of  the  States  that  one  cannot  bind  the  others  so  as 
to  affect  their  defence  that  the  claim  is  barred,  but  can  only  bind  him- 
self {Shoemaker  x.  Benedict,  11  N.  Y.  176  ;  Bush  v.  Stowell,  71  Pa. 
208  ;  Clark  v.  Burn,  86  id.  502  ;  Hance  v.  Hair,  25  O.  St.  349  ; 
Willoughby  v.  Irish,  35  Minn.  63  ;  Steele  v.  Souder,  20  Kan.  39  ; 
Miller  v.  Miller,  4  McArth.  109).  In  New  York  it  is  well  settled  that 
a  joint  debtor  or  joint  contractor  has  no  authority  to  bind  his  associate, 
unless  he  is  the  agent  or  in  some  other  way  the  representative  of  such 
person  (IVallisv.  Randall,  81  N.  Y.  164  ;  Lewis  v.  Woodworth,  2  N. 
Y.  512  ;  McMullen  v.  Rafferty,  89  N.  Y.  456  ;  see  Rogers  v.  Anderson, 
40  Mich.  290).    The  rule  in  any  State  as  to  joint  debtors  ;s  much  the 


A  DIGEST  OF  [Part  I. 


by  a  barrister  or  solicitor  on  other  occasions  are  not  ad- 
missions merely  because  they  would  be  admissions  if 
made  by  the  client  himself.1 


same  as  to  partners  after  dissolution  ;  so,  also,  it  is  held  in  most  States 
that  the  admissions  of  one  such  partner  or  debtor,  made  after  the 
claim  is  already  barred,  will  not  revive  it  against  the  others.  New- 
man v.  McComas,  43  Md.  70  ;  Parker  v.  Butterworth,  46  N.  J.  L.  244  ; 
Harris  v.  Odeal,  39  Mo.  App.  270  ;  Davis  v.  Polatid,  92  Va.  225  ; 
Bates  on  Partnership,  ii.  703.] 

1  [Illustrations  (g)  and  (//).  This  rule  is  generally  applicable  in  this 
country  to  attorneys  and  counsellors  ;  the  admissions  may  be  oral  or 
written  (Gr.  Ev.  i.  §  186;  Lewis  v.  Sumner,  13  Met.  269;  Loomis  v.  N.  Y. 
etc.  R.  Co.,  159  Mass.  39 ;  Ohlquest  v.  Farwell,  ji  la.  231  ;  Isabel le  v. 
Iron  Cliffs  Co.,  57  Mich.  120;  Nichols  v. /ones,  32  Mo.  App.  657;  Ohio, 
etc.  R.  Co.  v.  Rooker,  134  Ind.  343 ;  Oliver  v.  Bennett,  65  N.  Y.  559; 
Rogers  v.  Greenwood,  14  Minn.  333),  So  the  "stipulations"  of  attorneys 
in  relation  to  the  conduct  of  the  cause  are,  in  general,  binding  upon 
their  clients  [Bray  v.  Doheny,  39  Minn.  355  ;  Garrett  v.  Hanshue,  53 
O.  St.  482;  Ex  parte  Hayes,  92  Ala.  120;  Townsendw.  Mastcrson  Co., 
15  N.  Y.  587) ;  it  is  common  practice  to  require  that  stipulations  shall 
be  in  writing  {State  v.  Stewart,  74  la.  336;  People  v.  Stephens,  52  N.  Y. 
306).  A  plaintiff  may  be  nonsuited  on  admissions  contained  in  his 
attorney's  opening  speech  (Oscanyan  v.  Arms  Co.,  103  U.  S.  261  ; 
Person  v.  Wilcox,  19  Minn.  449  ;  Clews  v.  N.  Y.  Banking  Assy  n,  105 
N.  Y.  398  ;  Evans  v.  Montgomery,  95  Mich.  497  ;  cf.  Converse  v. 
Sickles,  146  N.  Y.  200).  As  to  unsolemn  admissions,  or  those  made 
in  casual  conversation,  etc.,  which  are  not  usually  allowed  to  be 
proved  against  the  client,  see  Rockwell  v.  Taylor,  41  Ct.  55  ;  McKeen 
v.  Gammon,  33  Me.  187  ;  Douglass  v.  Mitchells  Excr.,  35  Pa.  441  ; 
Treadway  v.  S.  C.  etc.  R.  Co.,  40  la.  526  ;  Pickert  v.  Hair,  146  Mass. 
1  ;  Fay  v.  Hebbard,  42  Hun,  490.  As  to  admissions  made  by  an 
attorney  on  a  former  trial,  or  contained  in  the  pleadings,  see  the 
cases  cited  in  the  preceding  Article  (p.  58,  ante).  An  admission  made 
by  counsel  may  be  withdrawn  by  permission  of  the  court  (Sullivan  v. 
Eddy,  154  111.  199).  In  this  country  it  is  the  general  rule  that  an  at- 
torney cannot  compromise  or  settle  a  suit  without  his  client's  consent 
(Mandeville  v.  Reynolds,  68  N.  Y.  528;  Dalton  v.  West  End,  etc.  R. 
Co.,  159  Mass.  221  ;  State  v.  Clifford,  124  Mo.  492  ;  Eaton  v.Knowles, 
61  Mich.  625  ;  Brockley  v.  Brockley,  122  Pa.  1  ;  Wethcrbce  v.  Fitch, 
117  III.67).  Sometimes,  however,  an  attorney's  compromise,  if  fair 
and  reasonable,  has  been  sustained,  though  made  without  such  con- 
sent (  Whipple  v.  Whitman,  13  R.  I.  512).    English  law  allows  counsel 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  69 

The  fact  that  two  persons  have  a  common  interest  in 
the  same  subject-matter  does  not  entitle  them  to  make 
admissions  respecting  it  as  against  each  other.1 

In  cases  in  which  actions  founded  on  a  simple  contract 
have  been  barred  by  the  Statute  of  Limitations  no  joint 
contractor  or  his  personal  representative  loses  the  benefit 
of  such  statute,  by  reason  only  of  any  written  acknowledg- 
ment or  promise  made  or  signed  by  (or  by  the  agent 
duly  authorized  to  make  such  acknowledgment  or  promise 
of)  any  other  or  others  of  them  (or  by  reason  only  of 
payment  of  any  principal,  interest,  or  other  money,  by 
any  other  or  others  of  them).2 


to  make  compromises.    Mathews  v.  Munster,  20  Q.  B.D.  141;  Lewis  s 
v.  Lewis,  45  Ch.  D.  281.] 

1  [Illustration  (z).  Gr.  Ev.  i.  §  176.  Thus  the  admission  of  one  ex- 
ecutor or  administrator  is  not  competent  against  his  co-executor  or 
co-administrator  to  establish  a  demand  against  the  estate  of  the 
deceased,  nor  is  it  receivable  against  heirs  or  devisees  {Church  v. 
Howard,  79  N.  Y.  415,  418  ;  Davis  v.  Gallagher,  124  N.  Y.  487) ;  nor 
the  admission  of  one  devisee  or  legatee  against  another  {Clark  v. 
Morrison,  25  Pa.  453  ;  La  Ban  v.  Vanderbilt,  3  Redf.  384  ;  McMillan 
v.  McDill,  no  111.  47;  Shailerv.  Buinstead,  99  Mass.  112,  127);  nor 
of  one  tenant  in  common  against  another  {Dan  v.  Brown,  4  Cow.  483  ; 
Pier  v.  Dttff,  63  Pa.  59) ;  nor,  generally,  of  one  defendant  in  a  tort 
action  against  another,  unless  made  as  part  of  the  res  gestae,  as  in  con- 
spiracy {Carpenter  v.  Shelden,  5  Sandf.  77;  Wilson  v.  O' Day,  5  Daly, 
354;  cf.  Edgerton  v.  Wolf,  6  Gray,  453  ;  see  Art.  4).  As  to  the  admis- 
sions of  a  cestui  que  trust,  see   Warren  v.  Carey,  145  Mass.  78.] 

2  9  Geo.  IV.  c.  14,  s.  1.  The  first  set  of  words  in  parenthesis  was 
added  by  19  &  20  Vict.  c.  97,  s.  13  ;  the  second  set  by  s.  14  of  the  same 
Act.  The  language  is  slightly  altered.  [Similar  statutes  have  been 
passed  in  several  States  of  this  country  (Mass.  Pub.  St.  c.  197,  s.  17; 
N.  J.  Rev.,  p.  595,  s.  10;  Maine  Rev.  St.  c.  82,  ss.  98,  100;  Faulkner  v. 
Bailey,  123  Mass.  588  ;  Bailey  v.  Corliss,  51  Vt.  366  ;  Gates  v.  Fisk, 
45  Mich.  522  ;  Bottles  v.  Miller,  wz  Ind.  584  ;  Nat.  Bk.of ' Delavan  v. 
Cotton,  53  Wis.  31).  In  New  York  and  some  other  States  a  similar 
common  law  rule  prevails  ;  but  in  a  number  of  the  States  the  con- 
trary rule  of  the  English  common  law  prevails,  which  was  estab- 
lished by  Whitcombv.  Whiting.  See  pp.  66-68,  ante,  note;  also  Illus- 
tration (/),  post.] 


70  A  DIGEST  OF  [Part  I. 

A  principal,  as  such,  is  not  the  agent  of  his  surety  for 
the  purpose  of  making  admissions  as  to  the  matters  for 
which  the  surety  gives  security.1 

Illustrations. 

(a)  The  question  is,  whether  a  parcel,  for  the  loss  of  which  a  rail- 
way company  is  sued,  was  stolen  by  one  of  their  servants.  State- 
ments made  by  the  station  master  to  a  police  officer,  suggesting  that 
the  parcel  had  been  stolen  by  a  porter,  are  deemed  to  be  relevant,  as 
against  the  railway,  as  admissions  by  an  agent.2 

(ab)  [In  an  action  against  a  railroad  company  for  an  injury  sustained 
by  plaintiff  from  a  collision  of  trains  caused  by  a  misplaced  switch,  the 
statements  of  a  brakeman,  made  after  the  disaster,  that  he  opened  the 
switch,  were  offered  in  evidence  against  the  company.  They  were  held 
not  admissible,  not  having  been  made  as  part  of  the  res  gesto?.] 3 

(b)  A  allows  his  wife  to  carry  on  the  business  of  his  shop  in  his  ab- 
sence. A  statement  by  her  that  he  owes  money  for  goods  supplied  to 
the  shop  is  deemed  to  be  relevant  against  him  as  an  admission  by  an 
agent.4 

(c)  A  sends  his  servant,  B,  to  sell  a  horse.  What  B  says  at  the  time 
of  the  sale,  and  as  part  of  the  contract  of  sale,  is  deemed  to  be  a 
relevant  fact  as  against  A,  but  what  B  says  upon  the  subject  at  some 
different  time  is  not  deemed  to  be  relevant  as  against  A,5  (though  it 
might  have  been  deemed  to  be  relevant  if  said  by  A  himself). 


1  [Illustration  (J).  Gr.  Ev.  i.  §  187  ;  Hatch  v.  Elkins,  65  N.  Y.  489  ; 
Rae  v.  Beach,  76  N.  Y.  164  ;  Wells  v.  Kavanagh,  70  la.  519  ;  Lewis 
v.  Lee  Co.,  73  Ala.  148  ;  Chelmsford  Co.  v.  Demarest,  7  Gray,  1.  But 
declarations  of  the  principal  are  admissible  when  forming  part  of  the 
res  gestw.  Id. ;  Bank  of  Brighton  v.  Smith,  12  Allen,  243  ;  see  Agri- 
cultural Ins.  Co.  v.  Keeler,  44  Ct.  161 ;  Bissell  v.  Saxton,  66  N.  Y.  55.] 

•  Kirkstall  Brewery  v.  Furness  Ry.,  L.  R.  9  Q.  B.  468.  [See  Green 
v.  />'.  &*  I.  B.  Co.,  128  Mass.  221  ;  B.  &>  AI.  R.  Co.  v.  Ordway,  140 
Mass.  510  ;  Atchison,  etc.  R.  Co.  v.  Wilkinson,  55  Kan.  83  ;  B.  il~-  O. 
R.  Co.  v.  Campbell,  36  O.  St.  647  ;  Steamboat  Co.  v.  Brockett,  121  U.  S. 
637  ;  cf.  Hoag  v.  Lamonf,  60  X.  Y.  96.] 

3  [Patterson  v.  Wabash,  etc.  R.  Co.,  54  Mich.  91  ;  see  Art.  3,  Illustra- 
tion ica),  ante.] 

4  Clifford  v.  Burton,  1  Bing.  199;  [Riley  v.  Suydam,  4  Barb.  222; 
sec  Stale  v.  Lemon,  92  N.  C.  790.] 

5  Hclycar  v.  Ilawkc,  5  Esp.  72  ;  [see   Wait  v.  Borne,  123  N.  Y.  592.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  71 

(d)  The  question  is,  whether  a  ship  remained  at  a  port  for  an  un- 
reasonable time.  Letters  from  the  plaintiff's  agent  to  the  plaintiff 
containing  statements  which  would  have  been  admissions  if  made  by 
the  plaintiff  himself  are  deemed  to  be  irrelevant  as  against  him.1 

(<?)  A,  B,  and  C  sue  D  as  partners  upon  an  alleged  contract  re- 
specting the  shipment  of  bark.  An  admission  by  A  that  the  bark  was 
his  exclusive  property  and  not  the  property  of  the  firm  is  deemed  to 
be  relevant  as  against  B  and  C.2 

(/)  A,  B,  C,  and  D  make  a  joint  and  several  promissory  note. 
Either  can  make  admissions  about  it  as  against  the  rest.3 

(g)  The  question  is,  whether  A  accepted  a  bill  of  exchange.  A 
notice  to  produce  the  bill  signed  by  A's  solicitor  and  describing  the 
bill  as  having  been  accepted  by  A  is  deemed  to  be  a  relevant  fact.4 

(h)  The  question  is,  whether  a  debt  to  A,  the  plaintiff,  was  due  from 
B,  the  defendant,  or  from  C.  A  statement  made  by  A's  solicitor  to 
B's  solicitor  in  common  conversation  that  the  debt  was  due  from  C  is 
deemed  not  to  be  relevant  against  A.5 

(i)  One  co-part-owner  of  a  ship  cannot,  as  such,  make  admissions 
against  another  as  to  the  part  of  the  ship  in  which  they  have  a  common 
interest,  even  if  he  is  co-partner  with  that  other  as  to  other  parts  of 
the  ship.6 

(/)  A  is  surety  for  B,  a  clerk.  B  being  dismissed  makes  statements 
as  to  sums  of  money  which  he  has  received  and  not  accounted  for. 
These  statements  are  not  deemed  to  be  relevant  as  against  A,  as  ad- 
missions.7 

1  Langhorn  v.  Allnutt,  4  Tau.  511. 

2  Lucas  v.  De  La  Coitr,  1  M.  &  S.  249.  [Cf.  Brake  v.  Kimball,  5 
Sandf.  237  ;  Harding  v.  Butler,  156  Mass.  34;  but  see  Williams  v. 
Lewis,  115  Ind.  45.] 

3  Whitcomb  v.  Whiting,  1  S.  L.  C.  644.  [The  decisjon  in  this  case 
was  that  the  acknowledgment  of  one  of  the  drawers  of  a  joint  and 
several  note  took  it  out  of  the  Statute  of  Limitations  as  against  the 
others.  This  case  is  followed  in  some  States  of  this  country,  rejected 
in  others.  Kallenbach  v.  Dickinson,  100  111.  427  ;  Murdoch  v.  Water- 
man, 145  N.  Y.  55,  63  ;  see  p.  67,  ante,  note.] 

4  Holt  v.  Squire,  Ry.  &  Mo.  282. 

5  Fetch  v.  Lyon,  9  Q.  B.  147  ;   [Saunders  v.  McCarthy,  8  Allen,  43.] 

6 /aggers  v.  Binning,  1  Stark.  64.  [The  New  Orleans,  106  U.  S.  13; 
McLellan  v.  Cox,  36  Me.  95  ;  see  Smith  v.  Aldrich,  12  Allen,  553.] 

1  Smith  v.  Whippingham,  6  C.  &  P.  78.  See  also  Evans  v.  Beattie, 
5  Esp.  26 ;  Bacon  v.  Chesney,  1  Stark.  192  ;  Caermarthen  R.  Co.  v. 
Manchester  R.  Co.,  L.  R.  8  C.  P.  685. 


72  A  DIGEST  OF  [Part  I. 

Article  18.* 
admissions  by  strangers. 

vStatements  by  strangers  to  a  proceeding-  are  not 
relevant  as  against  the  parties,1  except  in  the  cases  here- 
inafter mentioned. 

In  actions  against  sheriffs  for  not  executing  process 
against  debtors,  statements  of  the  debtor  admitting  his 
debt  to  be  due  to  the  execution  creditor  are  deemed  to  be 
relevant  as  against  the  sheriff.2 

In  actions  by  the  trustees  of  bankrupts  an  admission 
by  the  bankrupt  of  the  petitioning  creditor's  debt  is 
deemed  to  be  relevant  as  against  the  defendant.3 

Article  19. f 

ADMISSION   BY   PERSON   REFERRED   TO   BY  PARTY. 

When  a  party  to  any  proceeding  expressly  refers  to  any 
other  person  for  information  in  reference  to  a  matter  in 


*  See  Note  XII.  [Appendix].       |  See  Note  XIII.  [Appendix]. 

1  Coole  v.  Braham,  3  Ex.  183.  \Nelson  v.  Flint,  166  U.  S.  276; 
Brown  v.  Mailler,  12  N.  Y.  118;  Happy  v.  Mosher,  48  N.  Y.  313; 
Lyon  v.  Manning,  133  Mass.  439;  Wilson  v.  Boivden,  113  id.  422; 
Montgomery  v.  Brush,  121  111.  513.  But  statements  made  by  a 
stranger  in  the  presence  and  hearing  of  a  party,  and  naturally  calling 
for  a  reply,  may  be  deemed  admissions  of  the  party  if  he  keeps  silent; 
see  ante,  p.  25,  note  1.] 

'-'  Kempland  v.  Macaulay,  Peake,  95  ;  Williams  v.  Bridges,  2  Stark. 
42  ;  [Mart  v.  Stevenson,  25  Ct.  499  ;  Pugh  v.  M'Bae,  2  Ala.  393.] 

8  Jarrett  v.  Leonard,  2  M.  &  S.  265,  (adapted  to  the  new  law  of  bank- 
ruptcy). [This  rule  as  thus  stated  is  peculiarly  applicable  to  English 
practice.  But  in  New  York  it  is  held  that  the  declarations  of  a  bank- 
rupt, made  before  the  bankruptcy,  are  competent  against  his  assignee 
in  bankruptcy,  to  establish  or  support  a  claim  against  the  bankrupt's 
estate.  Von  Sachs  v.  Kretz,  72  X.  Y.  548;  see  Holt  v.  Walker,  26 
Me.  107  ;  Carnes  v.  White,  15  Gray,  378;  Wellington  v.  Jackson,  121 
Mass.  157  ;  ///  re  Clark,  9  Blatch.  379] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  73 

dispute,  the  statements  of  that  other  person  may  be  admis- 
sions as  against  the  person  who  refers  to  him.1 

Illustration. 
The  question  is,  whether  A  delivered  goods  to  B.     B  says,  "  If  C  " 
(the  carman)  "  will  say  that  he  delivered  the  goods,  I  will  pay  for 
them."    C's  answer  may  as  against  B  be  an  admission.2 

Article   20.* 
admissions  made  without  prejudice. 

No  admission  is  de'emed  to  be  relevant  in  any  civil  action 
if  it  is  made  either  upon  an  express  condition  that  evi- 
dence of  it  is  not  to  be  given,3  or  under  circumstances 
from  which  the  judge  infers  that  the  parties  agreed  to- 


*  See  Note  XIV.  [Appendix]. 

1  [Gr.  Ev.  i.  §  182  ;  Gott  v.  Dinstnore,  1 1 1  Mass.  45  ;  Wehle  v.  Spel- 
man,  1  Hun,  634,  4  T.  &  C.  649  ;  Chadsey  v.  Greene,  24  Ct.  562  ; 
Chapman  v.  Twitchell,  37  Me.  59;  Folsom  v.  Batchelder,  22  N.  H. 
47  ;  Beebe  v.  Knapp,  28  Mich.  53  ;  cf.  Adler-Gold?nan  Co.  v.  Adams 
Exp.  Co.,  53  Mo.  App.  284.  But  the  statements  of  the  referee  are 
only  admissible  when  they  relate  to  the  subject-matter  of  the  refer- 
ence {Duval  v.  Covenhover,  4  Wend.  561  ;  Lambert  v.  People,  76  N.  Y. 
220  ;  Allen  v.  Killinger,  8  Wall.  480),  and  when  he  was  referred  to 
in  such  a  way  as  to  show  an  intention  to  give  him  authority  like  that 
of  an  agent  to  make  admissions  (Rosenbury  v.  Angell,  6  Mich.  508  ; 
Proctor  x.  Old  Colony  R.  Co.,  154  Mass.  251).  Statements  made  by 
the  referee  before  the  reference  are  also  not  admissible  (Co/in  v. 
Goldman,  76  N.  Y.  284). 

If  persons  speaking  different  languages  communicate  by  an  inter- 
preter, his  version  of  their  words  may  be  proved  as  their  own  declara- 
tions (Gr.  Ev.  i.  §183;  Comm.  v.  Vose,  157  Mass.  393;  Wright  v. 
Maseras,  56  Barb.  521  ;  Miller  v.  Lathrop,  50  Minn.  91).  But  evi- 
dence of  statements  made  by  an  interpreter  that  a  party  had  made 
admissions  to  him  is  hearsay  and  inadmissible.  Territory  v.  Big 
Knot,  6  Mont.  242.] 

2  Daniel  v.  Pitt,  1  Camp.  366,  n.;  see,  too,  R.  v.  Mallory,  13  Q.  B.  D. 
33.     This  is  a  weaker  illustration  than  Daniel  v.  Pitt. 

3  Cory  v.  Bretton,  4  C.  &  P.  462  ;  [Copelandv.  Taylor,  99  Mass.  613.] 


74  A  DIGEST  OF  [Part  I. 

gether  that  evidence  of  it  should  not  be  given,1  or  if  it 
was  made  under  duress.2 

Illustrations. 

(a)  [A  sued  B  to  recover  a  debt  for  services  rendered.  B  denied 
the  indebtedness.  A  year  after  the  action  was  begun  B  wrote  this 
letter  to  A  :  "  Dear  Sir  :  To  save  cost  and  stop  further  litigation,  I  am 
willing  to  send  you  my  check  for  fifty  dollars  in  full  liquidation  of 
your  claim."  On  the  trial  this  letter  was  held  not  receivable  in  evi- 
dence against  B  as  an  admission.]3 

(d)  [A  sued  B  intmvjej^ior  a  colt.  Both  were  brought  together  by 
friends,  that  they  might  talk  over  and  settle  the  case.     During  the 


1  Paddock  v.  Forester,  3  M.  &  G.  918.  [Under  this  rule  statements 
incorporating  the  express  qualification  that  they  shall  be  "  without 
prejudice  "  are  deemed  not  to  be  relevant  as  admissions  (  Walker  v. 
Wilsher,  23  Q.  B.  D.  335  ;  Perkins  v.  Concord  R.  Co.,  44  N.  H.  223). 
So  statements  made  as  offers  to  compromise  a  claim,  or  to  "  buy  peace," 
as  it  is  termed,  are  not  competent  e/idence  as  admissions  (Illustration 
(a)  ;  Gr.  Ev.  i.  §  192  ;  Draper  v.  Hatfield,  124  Mass.  53  ;  Home  Ins. 
Co  v.  Baltimore,  etc.  Co.,  93  U.  S.  527  ;  Tennant  v.  Dudley,  144  N.  Y. 
504  ;  Slingerland  v.  Norton,  58  Hun,  578  ;  Montgomery  v.  Allen,  84 
Mich.  656  ;  Louisville,  etc.  R.  Co.  v.  Wright,  115  Ind.  378).  They  are 
equivalent  to  statements  "without  prejudice"  {West  v.  Smith,  101 
U.  S.  263,  273;  Reynolds  v.  Manning,  15  Md.  510;  White  v.  Old 
Dominion  St' ft  Co.,  102  N.  Y.  660).  But  an  admission  of  an  inde- 
pendent fact  is  relevant,  though  made  during  a  negotiation  for  com- 
promise (Illustration  (d);  Barllettv.  Tarbox,  1  Abb.  Dec.  120  ;  Durgin 
v.  Somers,  117  Mass.  55  ;  Arthur  v.  James,  28  Pa.  236  ;  Doon  v.  Ravey, 
49  Yt.  293  ;  Beaudette  v.  Gagne,  87  Me.  534  ;  Manistee  Nat.  Bk.  v. 
Seymour,  64  Mich.  59  ;  Broschart  v.  Tuttle,  59  Ct.  1  ;  Colburn  v.  Gro- 
ton,  66  N.  H.  151  ;  Binfordv.  Young,  115  Ind.  174  ;  cf.  Brice  v.  Bauer, 
108  N.  Y.  428).    This  is  the  general  American  rule.] 

2  Stockfleth  v.  De  Tastet,  per  Ellenborough,  C.  J.,  4  Camp.  1 1.  [But 
admissions  made  by  a  party,  while  testifying  as  witness  in  a  prior  suit, 
are  relevant  against  him  ;  the  legal  constraint  to  testify  is  not  deemed 
"duress"  under  this  rule  (Gr.  Ev.  i.  §  193  ;  see  Art.  15,  ante,  note; 
Tooker  v.  Gonner,  2  Hilt.  71). 

A  court  of  equity  will  sometimes  restrain  the  use  of  admissions 
obtained  by  fraud  and  duress.     Callender  v.  Callender,  53  How.  Pr. 

364.] 

'•'■[Smith  v.  Satterlee,  130  N.  Y.  677.] 


Chap.  IV.J  THE  LAW  OF  EVIDENCE.  75 

conversation  A  said  he  would  be  glad  to  have  the  colt,  to  which  B 
replied,  "  I  sold  the  colt  about  four  weeks  after  I  got  it."  Then  A 
said,  "  I  demanded  the  colt,  you  recollect  ?  "  and  B  answered,  "Yes." 
No  settlement  being  effected,  these  declarations  were  held  admissible 
against  B  on  the  trial,  as  admissions  that  he  had  sold  the  property, 
and  that  a  demand  for  it  had  been  made  upon  him.l J 

s 


[#LE    21. 


Artk 
confessions  defined. 


A  confession  is  an  admission  made  at  any  time  by  a 
person  charged  with  a  crime,  stating  or  suggesting  the 
inference  that  he  committed  that  crime.2      Confessions, 


1  [Dickinson  v.  Dickinson,  9  Met.  471.] 

2  [The  word  "  confession  "  denotes  an  acknowledgment  of  guilt. 
Acknowledgments  of  other  matters  of  fact  in  a  criminal  case  are 
termed  "admissions"  (Gr.  Ev.  i.  §  170  ;  People  v.  Hickman,  113  Cal. 
80,  86  ;  Fletcher  v.  State,  90  Ga.  468  ;  Taylor  v.  State,  37  Neb.  788  ; 
State  v.  Heidenreich,  29  Or.  381). 

Confessions  may  not  only  be  made  expressly,  but  may  also  be  im- 
plied from  a  person's  keeping  silence  when  he  is  charged  with  a 
crime  under  such  circumstances  that  he  would  naturally  reply  (Spar/ 
v.  United  States,  156  U.  S.  51  ;  Comm.  v.  McCabe,  163  Mass.  98; 
Richards  v.  State,  82  Wis.  172  ;  see  Art.  8,  ante,  last  paragraph,  and 
note).  This  is  true  in  some  States,  even  though  he  be  under  arrest  at 
the  time  (Kelley  v.  People,  55  N.  Y.  565  ;  Murphy  v.  State,  36  O.  St. 628 ; 
Ackerson  v.  People,  124  111.  563  ;  cf.  Ettinger  v.  Comm.,  98  Pa.  338; 
contra,  Comm.  v.  McDcnnott,  12-3  Mass.  440;  State  v.  Howard,  102 
Mo.  142). 

It  is  a  general  rule  that  an  extra-judicial  confession  (i.  e.,  one  made 
out  of  court)  is  not  sufficient  to  sustain  a  conviction,  unless  corroborated 
by  additional  proof  of  the  corpus  delicti  (Gr.  Ev.  i.  §  217  ;  People  v. 
Hennessy,  15  Wend.  147;  N.  Y.  Code  Cr.  Pro.  §  395;  Campbell 'v. 
People,  159  III.9;  People  v.  Simonsen,  107  Cal.  345;  Ryan  v.  State, 
100  Ala.  94  ;  State  v.  Walker,  98  Mo.  95  ;  Gray  v.  Comm.,  ioi-Pa.  380  ; 
People  v.Lane,  49  Mich.  340  ;  Blackburn  v.  State,  23  O.  St.  146  ;  State 
v.  Knowles,  48  la.  598).  It  is  also  an  important  rule  that  the  whole  of 
a  confession  is  to  be  taken  together,  so  that  the  prisoner  may  have 
the  benefit  of  all  qualifying  or  exculpatory  statements  incorporated 
therein  (Gr.  Ev.  i.  §218  ;  State  v.  McDonnell, 32  Vt. 491  ;  Moreheadw. 


76  A  DIGEST  OF  [Part  I. 

if  voluntary,  are  deemed  to  be  relevant  facts  as  against 
the  persons  who  make  them  only.1 

Article  22.* 

confession  caused  by  inducement,  threat,  or  promise, 
when  irrelevant  in  criminal  proceeding. 

No  confession  is  deemed  to  be  voluntary  if  it  appears 
to  the  judge  to  have  been  caused  by  any  inducement, 


*  See  Note  XV.  [Appendix]. 
State,  34  O.  St.  212  ;  Corbett  v.  State,  31  Ala.  329;  see  People  v. 
Ruloff,  3  Park.  Cr.  401).  But  part  of  a  conversation  may  be  proved, 
if  it  amounts  to  a  confession  which  is  substantially  complete  {Comm. 
v.  Pitsinger,  no  Mass.  101  ;  Levison  v.  State,  54  Ala.  520).  Facts 
which  explain  or  qualify  a  confession,  or  show  it  to  be  untrue  in 
whole  or  in  part,  may  be  adduced  in  evidence  by  the  defendant 
{State  v.  Hutchinson,  60  la.  478  ;  People  v.  Fox,  121  N.  Y.  449). 

Judicial  confessions  will  warrant  a  conviction  without  corroborative 
proof  of  the  corpus  delicti  {State  v.  Lamb,  28  Mo.  218  ;  Dantz  v.  State, 
87  Ind.  398) ;  as  e.g.,  upon  a  plea  of  "guilty"  in  cases  either  of  felony 
or  misdemeanor  {Hallinger  v.  Davis,  146  U.  S.  314  ;  Green  v.  Com?n., 
12  Allen,  155  ;  Comm.  v.  Brown,  150  Mass.  331  ;  Craig  v.  State,  49O. 
St.  415  ;  People  v.  Lennox,  67  Cal.  113),  or  a  plea  of  non  volo  contendere 
{Comt/i.  v.  Holstine,  132  Pa.  357).  But  the  court  may  permit  a  plea  of 
"guilty  "  to  be  withdrawn,  when  it  is  due  to  the  prisoner's  ignorance 
weakness  or  fears,  to  deception  or  duress  practiced  upon  him,  or  other 
like  causes  {Myers  v.  State,  115  Ind.  554  ;  Gardner  v.  People,  106  111. 
76  ;  State  v.  Stephens,  71  Mo.  535  ;  U.  S.  v.  Bayaud,  21  Blatch.  217). 
A  plea  so  withdrawn  cannot  afterwards  be  proved  against  the  prisoner 
as  a  confession  {People  v.  Ryan,  82  Cal.  617).  In  New  York  no  con- 
viction may  be  had  upon  a  plea  of  guilty  in  cases  punishable  with 
death.  N.  Y.  Code  Cr.  Pro.  §  332.] 
f1  [Thus  the  confession  of  one  of  two  or  more  defendants  in  a  criminal 
ase,  not  made  in  the  presence  of  the  others,  is  evidence  against  him- 
self only,  and  not  against  the  others  {Spar/  v.  United  States,  15c*  U. 
J&.  51  ;  Comm.  v.  Ingraham,  7  Gray,  46  ;  State  v.  Albert,  73  Mo.  347  ; 
People  v.  Stevens,  47  Mich.  41 1  ;  Fife  v.  Comm.,  29  Pa.  429  ;  Ackerson 
v.  People,  124  111.  563).  As  to  the  declarations  of  conspirators,  see 
Art.  4,  ante.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  77 

threat,  or  promise,  proceeding  from  a  person  in  authority, 
and  having-  reference  to  the  charge  against  the  accused 
person,  whether  addressed  to  him  directly  or  brought  to 
his  knowledge  indirectly  ; ' 

and  if  (in  the  opinion  of  the  judge)2  such  inducement, 
threat,  or  promise,  gave  the  accused  person  reasonable 


1  [The  admissibility  of  confessions  is  to  be  determined  by  the  judge, 
their  weight  by  the  jury  (  Willett  v.  People,  27  Hun,  469  ;  Comm.  v. 
Culver,  126  Mass.  464  ;  Palmer  v.  State,  136  Ind.  393  ;  State  v.  Kin- 
der,  96  Mo.  548  ;  State  v.  Holden,  42  Minn.  350  ;  Biscoe  v.  State,  67 
Md.  6  ;  Lefevre  v.  State,  50  O.  St.  584  ;  and  cases  infra).  But  in  some 
States,  as  in  England,  when  a  confession  is  offered  in  evidence,  the 
burden  of  proof  is  on  the  prosecutor  to  show  it  to  be  voluntary 
{Bradford  v.  State,  104  Ala.  68  ;  Wrye  v.  State,  95  Ga.  467  ;  Nicholson 
v.  State,  38  Md.  140  ;  People  v.  Soto,  49  Cal.  67  ;  Thompson  v.  Comm., 
20  Gratt.  724  ;  R.  v.  Thompson,  [1893]  2  Q.  B.  12).  In  other  States  it  is 
considered  prima  facie  voluntary,  but  the  defendant  may  object  to  its 
being  admitted  in  evidence  and  show  it  to  have  been  improperly  ob- 
tained and  so  cause  its  exclusion  (Comm.  v.  Sego,  125  Mass.  210; 
Comm.  v.  Culver,  supra  ;  Rufcr  v.  State,  25  O.  St.  464  ;  State  v. 
Meyers,  99  Mo.  107  ;  People  v.  Barker,  60  Mich.  277  ;  State  v.  Davis, 
34  La.  Ann.  351  ;  cf.  People  v.  Fox,  121  N.  Y.  448).  In  some  States, 
moreover,  when  the  evidence  is  conflicting  whether  a  confession  is 
voluntary  or  not,  the  question  may  be  left  to  the  jury,  with  instructions 
to  disregard  the  confession  if  they  find  it  to  be  involuntary.  Comm. 
x.Preece,  140  Mass.  276  ;  Burdge  v.  State,  53  O.  St.  512;  Wilson  v. 
U.  S.,  162  U.  S.  613  ;  contra,  Ellis  v.  State,  65  Miss.  44.] 

'2  It  is  not  easy  to  reconcile  the  cases  on  this  subject.  In  R.  v. 
Baldry,  decided  in  1852  (2  Den.  C.  C.  430),  the  constable  told  the  pris- 
oner that  he  need  not  say  anything  to  criminate  himself,  but  that  what 
he  did  say  would  be  taken  down  and  used  as  evidence  against  him. 
It  was  held  that  this  was  not  an  inducement,  though  there  were 
earlier  cases  which  treated  it  as  such.  In  R.  v.Jarvis,  L.  R.  1  C.  C. 
R.  96,  the  following  was  held  not  to  be  an  inducement :  "  I  think  it  is 
right  I  should  tell  you  that,  besides  being  in  the  presence  of  my 
brother  and  myself  "  (prisoner's  master),  "  you  are  in  the  presence  of 
two  officers  of  the  police  ;  and  I  should  advise  you  that  to  any  question 
that  may  be  put  to  you,  you  will  answer  truthfully,  so  that  if  you  have 
committed  a  fault  you  may  not  add  to  it  by  stating  what  is  untrue. 
Take  care.  We  know  more  than  you  think  we  know."  So  in  R.  v. 
Reeve,  L.  R.  1  C.  C.  R.  362,  where  the  words  were,  "  You  had  better,  as 


78  A  DIGEST  OF  [Part  I. 

grounds  for  supposing  that  by  making  a  confession  he 
would  gain  some  advantage  or  avoid  some  eyil  in  reference 
to  the  proceedings  against  him.1 


good  boys,  tell  the  truth,"  the  confession  was  held  admissible.  In  R.  v. 
Fennell,  7  Q.  B.  D.  147,  the  prosecutor,  in  the  presence  of  the  police 
inspector,  said  to  the  prisoner:  "The  inspector  tells  me  you  are  making 
housebreaking  implements  ;  if  that  is  so,  you  had  better  tell  the  truth, 
it  may  be  better  for  you  ;  "  these  words  were  held  to  exclude  the  con- 
fession which  followed.  There  are  later  cases  (unreported)  which 
follow  these.  [See  Illustrations  (aa)  and  (ab)  ;  Comm.  v.  Preece,  140 
Mass.  276 ;  State  v.  Anderson,  96  Mo.  241  ;  Ross  v.  State,  67  Md.  286 ; 
Kelly  v.  State,  72  Ala.  244  ;  Bram  v.  U.  S.,  168  U.  S.  532.] 

1  [People  v.  Phillips,  42  N.  Y.  200  ;  Comm.  v.  Curtis,  97  Mass.  574  ; 
Fife  v.  Comm.,  29  Pa.  429  ;  Flagg  v.  People,  40  Mich.  706  ;  Robinson 
v.  State,  159  111.  115;  State  v.  Jones,  54  Mo.  478.  But  a  confession 
made  to  a  person  in  authority,  even  though  obtained  by  his  induce- 
ments, solicitations,  or  inquiries,  is  deemed  to  be  voluntary,  if  no  in- 
ducements, threats,  or  promises  are  used  which  are  calculated  to 
excite  hope  or  fear  in  respect  to  the  proceedings  against  the  prisoner 
(Illustration  (ac) ;  Com?n.  v.  Sego,  125  Mass.  210  ;  People  v.  IVents,  37 
N.  Y.  303  ;  State  v.  Fortner,  43  la.  494  ;  Comm.  v.  Morey,  1  Gray,  461.; 
Fife  v.  Comm.,  supra)  ;  and  the  same  is  true  if  improper  threats  or 
promises  are  made,  but  it  satisfactorily  appears  that  the  confession 
was  not  induced  thereby  (Hartley  v.  People,  156  111.  234).  So  confes- 
sions made  by  the  prisoner  while  in  custody  are  competent,  if  the 
officer  use  no  such  improper  inducements  or  threats  (People  v.  Cox, 
80  N.  Y.  501  ;  Pierce  v.  U.  S.,  160  U.  S.  535  ;  McQueen  v.  State,  94 
Ala.  50  ;  Comm.  v.  Cttffce,  108  Mass.  285  ;  Comm.  v.  Mosler,  4  Pa.  264; 
People  v.  Eckman,  72  Cal.  582),  and  that,  too,  even  if  the  prisoner  be 
in  irons  and  expecting  to  die  from  the  effects  of  poison  (State  v.  Gor- 
/,\j?>i,  6j  Yt.  365  ;  cf.  Sparfv.  U.  S.,  156  U.  S.  51)  ;  and  the  same  rule 
applies  even  though  the  arrest  be  illegal  (Balbo  v.  People,  80  N.  Y. 
484).  The  fact  that  confessions  are  made  under  actual  fear  does  not 
make  them  involuntary,  if  this  fear  were  not  excited  by  inducements 
or  threats  of  the  kind  which  this  Article  describes  (Comm.  v.  Smith, 
119  Mass.  305).  So  the  hope  of  immunity  (no  promise  of  immunity 
having  been  made)  will  not  render  a  confession  inadmissible  (State 
v.  Griffin,  48  La.  Ann.  1409  ;  Comm.  v.  Sego,  125  Mass.  210,  213). 

If  an  accomplice  agrees  to  turn  State's  evidence,  upon  a  promise 
that  he  shall  not  be  prosecuted,  and  thereupon  makes  a  confession 
but  afterwards  refuses  to  testify,  his  confession  maybe  proved  against 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  79 

. : . , * 

A  confession  is  not  involuntary,  only  because  it  appears 
to  have  been  caused  by  the  exhortations  of  a  person  in 
authority  to  make  it  as  a  matter  of  religious  duty,1  or  by 
an  inducement  collateral  to  the  proceeding,2  or  by  in- 
ducements held  out  by  a  person  not  in  authority.3 


him  (Comm.  v.  Knapp,  10  Pick.  477  ;   U.  S.  v.  Hinz,  35  F.  R.  272  ;  State 
v.  Moran,  15  Or.  262  ;  but  see  Neeley  v.  State,  27  Tex.  App.  324). 

In  some  States  these  common  law  rules  are  changed  by  statute. 
Thus  in  New  York  it  is  now  provided  that  a  confession,  whether  made 
in  judicial  proceedings  or  to  a  private  person,  can  be  given  in  evi- 
dence, unless  made  under  the  influence  of  fear  produced  by  threats, 
or  upon  a  stipulation  of  the  district  attorney  not  to  prosecute  therefor ; 
but  there  must  be  additional  proof  of  the  commission  of  the  crime  to 
warrant  conviction  (Code  Cr.  Pro.  §395;  People  v.  McCallan,  103 
N.  Y.  588  ;  People  v.  Deacons,  109  N.  Y.  374  ;  cf.  Benson  v.  State,  119 
Ind.  488).  But  cases  decided  in  New  York  before  this  statute  are 
cited  herein,  since  they  well  illustrate  the  common  law  rule.] 

1  [Illustration  (b) ;  cf.  Comm.  v.  Drake,  15  Mass.  161.] 

2  [Illustration  (c) ;  State  v.  Tatro,  50  Vt.  483  ;  People  v.  Cox,  80  N.  Y. 
501  ;  State  v.  Wentworth,  yj  N.  H.  196  ;  State  v.  Hopkirk,  84  Mo.  278  ; 
Stone  v.  State,  105  Ala.  60,  69.] 

3  [It  is  also  the  general  rule  in  this  country  that  confessions  obtained 
by  the  inducements  of  favor  or  threats  of  harm,  held  out  by  a  person 
twt  in  authority  as  respects  the  prosecution,  are  admissible  (  U.  S.  v. 
Stone,  8  F.  R.  232  ;  Smith  v.  Comm.,  10  Gratt.  734  ;  Shifflet  v.  Comm., 
14  Id.  652  ;  Young  v.  Comm.,  8  Bush  (Ky.),  366;  State  v.  Holden,  42 
Minn.  350;  State  v.  Morgan,  35  W.  Va.  260;  State  v.  Patterson,  73 
Mo.  695  ;  cf.  Ulrich  v.  People,  39  Mich.  245  ;  State  v.  Potter,  18  Ct. 
166  ;  see  next  note).  Promises  or  threats  made  by  a  third  person  in 
the  presence  of  one  in  authority  and  with  his  apparent  sanction  may, 
however,  be  regarded  as  made  by  the  person  in  authority  (Id.).  But 
in  a  few  States  confessions  are  excluded  which  are  obtained  by  threats 
of  harm  or  promises  of  favor  held  out  by  any  one  connected  with  the 
prosecution,  or  by  a  person  who  may  be  fairly  supposed  by  the  accused 
to  have  power  to  secure  the  benefit  promised  or  the  harm  threatened 
{Murphy  v.  State,  63  Ala.  1  ;  Spears  v.  State,  2  O.  St.  583  ;  Miller 
v.  State,  94  Ga.  1,  12;  Beggarly  v.  State,  8  Baxt.  520;  cf.  Comm.  v. 
Tuckerman,  10  Gray,  173,  190 ;  Gregg  v.  State,  106  Ala.  44  ;  People  v. 
Wolcott,  51  Mich.  612).  Moreover,  confessions  extorted  by  mob 
violence,  or  by  like  forcible  means,  are  excluded,  though  the  persons 
using  such  means  have  no  authority  as  respects  the  prosecution.  Mil- 


80  A  DIGEST  OF  [Part  I. 

• ; 

The  prosecutor,  officers  of  justice  having  the  prisoner 
in  custody,  magistrates,  and  other  persons  in  similar 
positions,  are  persons  in  authority.1  The  master  of  the 
prisoner  is  not  as  such  a  person  in  authority,  if  the  crime 
of  which  the  person  making  the  confession  is  accused  was 
not  committed  against  him.2 

A  confession  is  deemed  to  be  voluntary  if  (in  the 
opinion  of  the  judge)  it  is  shown  to  have  been  made  after 
the  complete  removal  of  the  impression  produced  by  any 
inducement,  threat,  or  promise  which  would  otherwise 
render  it  involuntary.3 

Facts  discovered  in  consequence  of  confessions  im- 
properly obtained,  and  so  much  of  such  confessions  as 
distinctly  relate  to  such  facts,  may  be  proved.4 

Illustrations, 

(a)  The  question  is,  whether  A  murdered  B. 

A  handbill  issued  by  the  Secretary  of  State,  promising  a  reward  and 
pardon  to  any  accomplice   who  would  confess,   is  brought  to  the 


ler  v.  People,  39  111.  457  ;    Young  v.  State,  68  Ala.  569 ;    Williams  v. 
State,  72  Miss.  117  ;  State  v.  Resells,  34  La.  Ann.  381.] 

1  [People  v.  Ward,  15  Wend.  231  ;  Wolf  v.  Comm.,  30  Gratt.  833; 
State  v.  Brock?nan,  46  Mo.  566 ;  Rector  v.  Comm.,  80  Ky.  468 ;  U.  S. 
v.  Pocklington,  2  Cr.  C.  C.  293 ;  State  v.  Staley,  14  Minn.  105  ;  and 
cases  cited  in  last  note  and  in  note  1,  on  p.  78.  A  private  detective 
has  been  held  not  to  be  a  person  in  authority.  Early  v.  Comm.,  86 
Ya.  921  ;    U.  S.  v.  Stone,  8  F.  R.  232.] 

2  [Smith  v.  Comm.,  10  Gratt.  734 ;  cf.  Comm.  v.  Sego,  125  Mass.  210.] 

3  [The  removal  of  the  impression  must  be  complete.  Illustration  (e)\ 
Ward  v.  People,  3  Hill,  395  ;  Comm.  v.  Howe,  132  Mass.  250 ;  Thomp- 
son v.  Comm.,  20  Gratt.  724  ;  Stale  v.  Brown,  73  Mo.  631  ;  Rizzolo  v. 
Comm.,  126  Pa.  54;  cf.  Comm.  v.  Cullen,  m  Mass.  435;  People  v. 
Barker,  60  Mich.  277.] 

4  [Illustration  (/) ;  Duffy  v.  People,  26  N.  Y.  588  ;  People  v.  Hoy  Yen, 
34  Cal.  176  ;  Comm.  v.  James,  99  Mass.  438 ;  Pressley  v.  State,  1 1 1  Ala. 
34;  State  v.  Winston,  116  N.  C.  990;  State  v.  Mortimer,  20  Kan.  93; 
Laros  v.  Comm.,  84  Pa.  200;  see  Murphy  v.  People,  63  N.  Y.  590. 
Some  of  these  cases  seem  to  adopt  a  more  restricted  rule  than  that  of 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  81 

knowledge  of  A,  who,  under  the  influence  of  the  hope  of  pardon, 
makes  a  confession.    This  confession  is  not  voluntary.1 

(aa)  [A,  having  been  committed  to  jail  on  a  charge  of  murder,  the  I 
/  committing  magistrate  visits  him  and  tells  him  that  "  it  would  be  I 
I  better  for  him  to  tell  the  truth  and  have  no  more  trouble  about  it."  i 
!;  He  also  tells  A  that  he  can  make  him  no  promises.  Thereupon  A/ 
i  makes  a  confession.  The  confession  is  not  voluntary,  and  is  therefore 
^inadmissible.] 2 

(ad)  [A,  in  prison  on  a  charge  of  murder,  sent  for  the  sheriff  to 
come  and  see  him  and  asked  the  sheriff  if  it  would  be  best  to  tell  the 
truth  about  it.  The  sheriff  replied  that  it  was  always  best  for  him,  or 
for  any  one  else,  to  tell  the  truth  about  anything.  The  sheriff  also 
said,  "  If  you  are  going  to  tell  the  straight  truth,  I  will  listen  to  it  and 
want  to  hear  it ;  and  if  you  are  not  going  to  tell  the  truth,  I  don't  want 
to  hear  it."  A  then  made  a  confession.  The  confession  is  voluntary.]3 
(ac)  [A,  a  boy  fourteen  years  old,  was  arrested  by  two  police  officers 
on  a  charge  of  murder.  Having  searched  him,  stripped  him  of  his 
clothing,  and  put  him  in  a  cell,  they  took  him  out  of  the  cell  at  night 
and  questioned  him  for  two  hours,  without  warning  him  of  his  right 
not  to  answer,  or  offering  him  opportunity  to  consult  friends  or  counsel. 
Answers  made  by  him  tending  to  show  his  guilt  were  deemed  volun- 
tary confessions,  as  the  officers  had  made  no  promises  of  favor  or 
threats  of  harm.]4 

(b)  A  being  charged  with  the  murder  of  B,  the  chaplain  of  the  gaol 
reads  the  Commination  Service  to  A,  and  exhorts  him  upon  religious 
grounds  to  confess  his  sins.  A,  in  consequence,  makes  a  confession. 
This  confession  is  voluntary.5 


the  text,  as  to  admitting  proof  of  words  of  confession,  though  they  all 
hold  that  the  "  facts  discovered  "  may  be  proved.] 

1  R.  v.  Boswell,  C.  &  M.  584. 

^[Biscoe  v.  State,  67  Md.  6;  S.  P.  Comm.  v.  Nott,  135  Mass.  269; 
Comm.' v.  Myers,  160  Mass.  530;  People  v.  Phillips,  42  N.  Y.  200; 
State  v.  Walker,  34  Vt.  296;  State  v.  York,  37  N.  H.  175  ;  People  v. 
Thompson,  84  Cal.  598.] 

3\Maull  v.  State,  95  Ala.  1  ;  cf.  Comm.  v.  Morey,  1  Gray,  461  ;  Heldt 
v.  State,  20  Neb.  492.] 

4  [Comm.  v.  Ciiffee,  108  Mass.  285.] 

5  R.  v.  Gilham,  1  Moo.  C.  C.  186.  In  this  case  the  exhortation  was 
that  the  accused  man  should  confess  "to  God,"  but  it  seems  from  parts 
of  the  case  that  he  was  urged  also  to  confess  to  man  "  to  repair  any 
injury  done  to  the  laws  of  his  country."    According  to  the  practice  at 


82  A  DIGEST  OF  [Part  I. 

(c)  The  gaoler  promises  to  allow  A,  who  is  accused  of  a  crime,  to 
see  his  wife,  if  he  will  tell  where  the  property  is.  A  does  so.  This  is 
a  voluntary  confession.' 

(d)  A  is  accused  of  child  murder.  Her  mistress  holds  out  an  in- 
ducement to  her  to  confess,  and  she  makes  a  confession.  This  is 
a  voluntary  confession,  because  her  mistress  is  not  a  person  in  au- 
thority.2 

(e)  A  is  accused  of  the  murder  of  B.  C,  a  magistrate,  tries  to  induce 
A  to  confess  by  promising  to  try  to  get  him  a  pardon  if  he  does  so. 
The  Secretary  of  State  informs  C  that  no  pardon  can  be  granted,  and 
this  is  communicated  to  A.  After  that  A  makes  a  statement.  This 
is  a  voluntary  confession.3 

(/)  A,  accused  of  burglary,  makes  a  confession  to  a  policeman 
under  an  inducement  which  prevents  it  from  being  voluntary.  Part 
of  it  is  that  A  had  thrown  a  lantern  into  a  certain  pond.  The  fact  that 
he  said  so,  and  that  the  lantern  was  found  in  the  pond  in  consequence, 
may  be  proved.4 

Article  23.* 
confessions  made  upon  oath,  etc. 

Evidence  amounting  to  a  confession  may  be  used  as 
such  against  the  person  who  gives  it,  although  it  was 
given  upon  oath,  and  although  the  proceeding  in  which 
it  was  given  had  reference  to  the  same  subject-matter  as 
the  proceeding  in  which  it  is  to  be  proved,  and  although 
the  witness  might  have  refused  to  answer  the  questions 


*  See  Note  XVI.  [Appendix], 
that  time,  no  reasons  are  given  for  the  judgment.  The  principle  seems 
to  be  that  a  man  is  not  likely  to  tell  a  falsehood  in  such  cases  from 
religious  motives.  The  case  is  sometimes  cited  as  an  authority  for  the 
proposition  that  a  clergyman  may  be  compelled  to  reveal  confessions 
made  to  him  professionally.     It  has  nothing  to  do  with  the  subject. 

1  R.  v.  Lloyd,  6  C.  &  P.  393. 

2  R.  v.  Moore,  2  Den.  C.  C.  522. 

3  R.  v.  Clewes,  4  C.  &  P.  221. 

4  R.  v.  Gould,  9  C.  &  P.  364.     This  is  not  consistent,  so  far  as  the 
proof  of  the  words  goes,  with  A',  v.  Warwickshall,  1  Leach,  265. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  83 

put  to  him  ; l  but  if,  after  refusing  to  answer  any  such 
question,  the  witness  is  improperly  compelled  to  answer 
it,  his  answer  is  not  a  voluntary  confession.2 

Illustrations. 

(a)  The  answers  given  by  a  bankrupt  in  his  examination  may  be 
used  against  him  in  a  prosecution  for  offences  against  the  law  of 
bankruptcy.3 

(b)  A  is  charged  with  maliciously  wounding  B. 

Before  the  magistrates  A  appeared  as  a  witness  for  C,  who  was 
charged  with  the  same  offence.  A's  deposition  may  be  used  against 
him  on  his  own  trial.4 

(ba)  [A  is  tried  for  burglary.  On  a  former  trial  of  the  same  case 
A  voluntarily  became  a  witness  in  his  own  behalf.     Answers  given 


1  [Comm.  v.  Bradford,  126  Mass.  42  ;  State  v.  Glahn,  97  Mo.  679; 
People  v.  Mitchell,  94  Cal.  550 ;  State  v.  Witham,  72  Me.  531.  On  the 
trial  of  a  person  for  crime,  testimony  voluntarily  given  by  him  under 
oath  in  a  prior  action  or  proceeding,  and  amounting  to  a  confession, 
is  receivable  {Dickerson  v.  State,  48  Wis.  288  ;  Alston  v.  State,  41  Tex. 
39).  So  confessions  contained  in  a  voluntary  affidavit  are  admissible 
(Behlerv.  Stale,  112  Ind.  140).  But  it  is  provided  in  some  States  by 
statute  that  on  the  preliminary  examination  of  a  prisoner  before  a 
committing  magistrate,  he  shall  not  be  put  under  oath  ;  if,  therefore, 
he  is  compelled  to  take  an  oath  and  then  makes  a  confession,  such 
confession  is  inadmissible  (Gr.  Ev.  i.  §§224-229;  N.  Y.  Code  Cr.  Pro. 
§  198  ;  Hendrickson  v.  People,  10  N.  Y.  9,  27,  30;  People  v.  Motidon, 
103  N.  Y.  21 1 ;  Comm.  v.  Harman,  4  Pa.  269;  N.  C.  Code,  §1145;  State 
v.  Matthews,  66  N.  C.  106;  see  Wilson  v.  U.  S.,  162  U.  S.  613,  623; 
U.  S.  v.  Duffy,  1  Cr.  C.  C.  164;  People  v.  Kelley,  47  Cal.  125).  In  other 
States  he  may,  at  his  own  option,  testify  under  oath  at  such  an  exami- 
nation ;  if,  therefore,  he  does  so  testify  and  makes  confessions,  they 
are  admissible  against  him  on  his  subsequent  trial.  State  v.  Glass, 
50  Wis.  218  ;  Jackson  v.  State,  39  O.  St.  37  ;  State  v.  Miller,  35  Kan. 
328;  cf.  Comm.  v.  Clark,  130  Pa.  641.] 

'2  R.  v.  Garbett,  1  Den.  C.  C.  236.  See  also  R.  v.  Owen,  20  Q.  B.  D. 
829,  as  explained  in  R.  v.  Paul,  25  Q.  B.  D.  202.  [Gr.  Ev.  i.  §  451  ; 
ffendricksofi  v.  People,  10  N.  Y.  9,  27,  31  ;  see  Art.  120,  note,  post.] 

3  R.  v.  Scott,  1  D.  &  B.  47;  R.  v.  Robinson,  L.  R.  1  C.  C.  R.  80;  R.  v. 
Widdop,  L.  R.  2  C.  C.  R.  5.  [So  as  to  testimony  before  a  fire  inquest. 
Comm.  v.  Wesley,  166  Mass.  248.] 

4  R.  v.  Chidley  &*  Cummins,  8  Cox,  365  ;  [see  People  v.  Thayer,  1 
Park.  Cr.  595.] 


84  A  DIGEST  OF  [Part  I. 

by  him  upon  cross-examination  on  this  former  trial,  and  tending  to 
show  his  guilt,  may  be  proved  against  him.]  ' 

(e)  [A  is  tried  for  the  murder  of  B. 

Statements  made  by  A  under  oath  at  the  coroner's  inquest  upon 
he  body  of  B  are  competent  evidence  against  him,  though  he  knew 
•vhen  he  made  the  statements  that  he  was  suspected  of  the  crime;'2 
out  not,  if  at  the  time  he  was  under  arrest  for  the  crime,  and  was 
taken  before  the  coroner  and  put  under  oath  without  his  own  consent 
or  request.] 3 

Article  24. 

confession  made  under  a  promise  of  secrecy. 

If  a  confession  is  otherwise  relevant,  it  does  not  become 
irrelevant,  merely  because  it  was  made  under  a  promise 
of  secrecy,4  or  in  consequence  of  a  deception  practised  on 
the  accused  person  for  the  purpose  of  obtaining  it,5  or 


1  [State  v.  Eddings,  71  Mo.  545.] 

^[Teachout  v.  People,  41  N.  Y.  7  ;  State  v.  Gilman,  51  Me.  206; 
People  v.  Martinez,  66  Cal.  278  ;  Wilson  v.  State,  1 10  Ala.  1  ;  Newton 
v.  State,  21  Fla.  53;  see  Williams  v.  Cotnm.,  29  Pa.  102;  State  v. 
Coffee,  56  Ct.  399 ;  Mack  v.  State,  48  Wis.  271  ;  State  v.  Taylor,  36 
Kan.  329.  Some  States,  however,  exclude  confessions  made  under 
such  circumstances.  State  v.  Young,  119  Mo.  495;  State  v.  Senn, 
32  S.  Car.  392 ;  Wood  v.  State,  22  Tex.  App.  431  ;  State  v.  Hobbs,  37 
W.  Va.  812.] 

3  [People  v.  Mofidon,  103  N.  Y.  21 1  ;  Parkas  v.  State,  60  Miss.  847  ; 
Lyons  v.  People,  137  111.  602.  So  as  to  statements  made  before  the 
grand  jury  by  the  prisoner  while  under  arrest  (Stale  v.  Clifford,  86 
la.  550).  If,  however,  a  prisoner  voluntarily  appears  before  a  coroner 
and  testifies  under  oath,  confessions  so  made  are  provable  against 
him.  Id. ;  People  v.  Chapleau,  121  N.  Y.  266  ;  see  State  v.  Wisdom, 
119  Mo.  539.] 

4  [Stale  v.  Squires,  48  N.  H.  364.] 

5  [Illustration  (a);  People  v.  Wentz,  37  N.  Y.  303,  305,  306;  Pricev. 
State,  18  O.  St.  418;  State  v.  Phelps,  7 4  Mo.  128;  Hardy  v.  United 
States,  3  App.  U.  C.  35  ;  Stone  v.  State,  105  Ala.  60;  Wigginton  v. 
Cotnm.,  92  Ky.  282;  Stale  v.  Staley,  14  Minn.  105.  Hope  of  immunity 
aroused  by  taking  advantage  of  the  prisoner's  superstition  does  not 
exclude  his  contession.     Slate  v.  Harrison,  115  N.  C.  707  ] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  85 

when  he  was  drunk,1  or  because  it  was  made  in  answer 
to  questions  which  he  need  not  have  answered,  whatever 
may  have  been  the  form  of  those  questions,2  or  because 
he  was  not  warned  that  he  was  not  bound  to  make  such 
confession,  and  that  evidence  of  it  might  be  given  against 
him.3 

Illustration, 
(a)  [A  is  indicted  for  the  murder  of  B.  A  detective,  with  the  con- 
nivance of  the  prosecuting  attorney,  has  himself  arrested  and  indicted 
on  a  fictitious  charge  of  forgery,  and,  while  imprisoned  in  jail  on  this 
charge,  ingratiates  himself  in  the  confidence  of  A,  and  by  this  means 
obtains  confessions  from  the  latter  as  to  the  murder  of  B.  These 
confessions  may  be  proved  against  A.]  4 


1  [Comm.  v.  Howe,  9  Gray,  no;  Jefferds  v.  People,  5  Park.  Cr.  522; 
People  v.  Fox,  121  N.  Y.  449  ;  State  v.  Grear,  28  Minn.  426  ;  People 
v.  Ramirez,  56  Cal.  533;  State  v.  Feltes,  51  la.  495;  Williams  v.  Stale, 
12  Lea,  211;  White  v.  State,  32  Tex.  App.  625;  Eskridge  v.  State,  25 
Ala.  30.  The  intoxication  affects  the  credibility,  not  the  competency, 
of  the  evidence  ;  if  it  be  extreme,  the  jury  may  give  the  confession 
little  or  no  weight  (Id.).  Words  spoken  in  sleep  are  not  admissible 
as  a  confession  {People  v.  Robinson,  19  Cal.  41)  ;  but  where  it  was 
doubtful  whether  the  accused  was  asleep  or  awake,  his  words  were 
allowed  to  go  to  the  jury  (State  v.  Morgan,  35  W.  Va.  260).  A  con- 
fession made  by  a  prisoner  in  a  prayer  that  was  overheard  was  allowed 
to  be  proved.     Woolfolk  v.  State,  85  Ga.  69,  101.] 

^[People  v.  IVentz,  37  N.  Y.  303,  306  ;  Comm.  v.  Cuffee,  108  Mass. 
285.] 

3  Cases  collected  and  referred  to  in  1  Ph.  Ev.  420,  and  T.  E.  s.  804. 
See,  too,  Joy,  ss.  iii.,  iv.,  v.  [  Wilson  v.  United  States,  162  U.  S.  613, 
623 ;  Comm.  v.  Cuffee,  108  Mass.  285.  Such  a  warning  is,  however, 
sometimes  given,  though  not  required,  and  is  important  evidence, 
tending  to  show  that  the  confession  was  voluntary  (State  v.  Gilman, 
51  Me.  206;  People  v.  Simpson,  48  Mich.  474;  People  v.  Chapleau,  121 
N.  Y.  266)  ;  and  sometimes,  upon  a  preliminary  examination  before 
a  committing  magistrate,  it  is  required  by  statute.  N.  Y.  Code  Cr. 
Pro.  §  196  ;  N.  C.  Code,  §  1 146  ;  State  V.  Rogers,  112  N.  C,  874  ;  State 
v.  Hatcher,  29  Or.  309  ;  Coffee  v.  State,  25  Fla.  501  ;  Salas  v.  State, 
31  Tex.  App.  485.] 

4  [State  v.  Brooks,  92  Mo.  542;  Burton  v.  State,  107  Ala  108;  Heldt 
v.  State,  20  Neb.  492.] 


86  A  DIGEST  OF  [Part  I. 


Article  25. 

statements  by  deceased  persons,  when  deemed  to  be 
relevant. 

Statements,  written  or  oral,  of  facts  in  issue  or  rele- 
vant or  deemed  to  be  relevant  to  the  issue  are  deemed 
to  be  relevant,  if  the  person  who  made  the  statement  is 
dead,  in  the  cases,  and  on  the  conditions,  specified  in 
Articles  26-31,  both  inclusive.1  In  each  of  those  Articles 
the  word  "  declaration "  means  such  a  statement  as  is 
herein  mentioned,  and  the  word  "  declarant "  means  a 
dead  person  by  whom  such  a  statement  was  made  in  his 
lifetime. 

Article  26.* 

dying  declaration  as  to  cause  of  death. 

A  declaration  made  by  the  declarant  as  to  the  cause  of 
his  death,  or  as  to  any  of  the  circumstances  of  the  trans- 
action which  resulted  in  his  death,2  is  deemed  to  be 
relevant 

*  See  Note  XVII.  [Appendix]. 

1  [See  Putnam  v.  Fisher,  52  Vt.  191.] 

2  [Gr.  Ev.  i.  §  156  ;  State  v.  Mace,  118  N.  C.  1244  ;  Sullivan  v.  State, 
102  Ala.  135.  But  such  declarations  are  not  competent  evidence  of 
prior  or  subsequent  occurrences,  as  e.  g.,  of  antecedent  threats  {State 
v.  Wood,  53  Vt.  560  ;  Hackett  v.  People,  54  Barb.  370  ;  Jones  v.  State, 
71  Ind.  66  ;  People  v.  Fong  Ah  Sing,  64  Cal.  253),  nor  of  matters  of 
opinion,  but  only  of  facts  to  which  declarant  would  be  competent  to 
testify  as  a  witness  (Gr.  Ev.  i.  §  159;  Boyle  v.  State,  105  Ind.  469; 
People  v.  Lanagan,  81  Cal.  142  ;  State  v.  Baldwin,  79  la.  714  ; 
State  v.  Chambers,  87  Mo.  406  ;  People  v.  Shaw,  3  Hun,  272,  63  N.  Y. 
36).  Dying  declarations  are  admissible  in  favor  of  the  defendant,  as 
well  as  against  him  {Mattox  v.  U.  S.,  146  U.  S.  140  ;  People  v.  Knapp, 
26  Mich.  112;  but  see  Moeck  v.  People,  100  111.  242).  Though  made  in 
answer  to  leading  questions,  or  obtained  by  solicitation,  or  expressed 
by  signs  instead  of  words,  they  are  still  competent  evidence  {Maine 
v.  People,  9  Hun,  113;  Comm.  v.  Casey,  11  Cush.  417  ;  State  v.  Foot 
You,  24  Or.  61  ;  Jones  v.  State,  71  Ind.  66).  The  constitutional  pro- 
vision that  the  accused  shall  be;  confronted  with  the  witnesses  atrainst 


I 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  87 

only  in  trials  for  the  murder  or  manslaughter  of  the 
declarant ; ' 

and  only  when  the  declarant  is  shown,  to  the  satisfaction 
of  the  judge,2  to  have  been  in  actual  danger  of  death, 
and  to  have  given  up  all  hope  of  recovery  at  the  time 
when  his  declaration  was  made.3 


him  does  not  exclude  evidence  of  dying  declarations.  Brown  v. 
Comm.,  73  Pa.  321,  328;  State  v.  Dickinson,  41  Wis.  299  ;  Comm.v. 
Carey,  12  Cush.  246  ;  Robbins  v.  State,  8  0.  St.  131.] 

1  [People  v.  Davis,  56  N.  Y.  95  ;  Kilpatrick  v.  Comm.,  31  Pa.  198  ; 
Scott  v.  People,  63  111.  508  ;  Puryear  v.  Comm.,  83  Va.  15  ;  and  other 
cases  under  this  Article.  Thus  such  evidence  is  not  received  in  civil 
actions  {Wilson  v.Boerem,  15  Johns.  286;  Thayer  v.  Lombard,  165 
Mass.  174  ;  Hood  v.  Pioneer  Co.,  95  Ala.  461),  and  that  too,  though  they 
be  actions  for  injury  causing  death  {Daily  v.  N.  Y.  etc.  R.  Co.,  32  Ct. 
356  ;  Waldele  v.  N.  Y.  C.  R.  Co.,  19  Hun,  69  ;  Marshall  v.  Chicago,  etc. 
R.  Co.,  48  111.  475) ;  nor  is  it  received  in  other  criminal  cases  than  those 
of  homicide  (Illustration  (b);  Johnson  v.  State,  50  Ala.  456).  But 
sometimes  these  rules  are  changed  by  statute.     See  p.  90,  note  2, post.] 

2  [Gr.  Ev.  i.  §  160 ;  Slate  v.  Nocton,  121  Mo.  537  ;  People  v.  Smith, 
104  N.  Y.  491  ;  State  v.  Baldwin,  79  la.  714 ;  Westbrook  v.  People,  126 
111.  81.  The  person  offering  the  declarations  in  evidence  must  show 
that  they  were  made  under  the  sense  of  impending  death.  This  may 
be  shown  by  the  declarant's  own  statements,  by  his  acts  indicating  a 
sense  that  death  is  near,  and  by  other  attendant  circumstances 
(Illustrations  (ab),  [ac);  Gr.  Ev.  i.  §  158  ;  People  v.  Simpson,  48  Mich. 
474;  Kehoev.  Comm.,  85  Pa.  127;  Westbrook  v.  People,  126  111.  81  ; 
State  v.  Nelson,  101  Mo.  464  ;  State  v.  Baldwin,  79  la.  714  ;  State  v. 
Swift,  57  Ct.  496).  Thus  the  fact  that  he  received  extreme  unction 
has  been  admitted  in  evidence  as  bearing  upon  this  question  {Carver 
v.  United  States,  164  U.  S.  694).  It  is  discretionary  with  the  trial  court 
whether  this  preliminary  evidence  shall  be  given  in  the  presence  of 
the  jury.  People  v.  Smith,  104  N.  Y.  491  ;  Doles  v.  State,  97  Ind.  555  ; 
State  v.  Furney,  41  Kan.  115  ;  cf.  North  v.  People,  139  111.  81.] 

3  [Brotherton  v.  People,  75  N.  Y.  159  ;  Allison  v.  Comm.,  99  Pa.  17  ; 
State  v.Johnson,  118  Mo.  491  ;  Simons  v.  People,  150  111.  66  ;  Hale  v. 
Comm.,  89  Va.  171;  Comm.  v.  Brewer,  164  Mass.  577;  and  cases 
supra.  Even  a  faint  hope  of  recovery  excludes  the  declarations 
{People  v.  Gray,  61  Cal.  164  ;  Comm.  v.  Roberts,  108  Mass.  296).  If 
hope  be  expressed,  but  afterwards,  when  hope  is  gone,  declarations 
are  made,  they  are  competent  {Small  \.  Comm.,qi  Pa.  304  ;    Stale  v. 


. 


A  DIGEST  OF  [Part  I. 


Such  a  declaration  is  not  irrelevant  merely  because  it 
was  intended  to  be  made  as  a  deposition  before  a  magis- 
trate, but  is  irregular.' 


Evans,  124  Mo.  397 ;  Johnson  v.  State,  102  Ala.  1 ;  Mockabee  v.  Comm., 
78  Ky.  380  ;  cf.  Carver  v.  United  States,  160  U.  S.  553).  And  it  has 
been  held  that  declarations  made  when  there  was  no  hope  are 
admissible,  though  the  dying  person  lingered  several  days,  and  during 
this  time  expressed  some  hope  {Swisher  v.  Comm.,  26  Gratt.  963  ; 
State  v.  Kilgore,  70  Mo.  546  ;  State  v.  Reed,  53  Kan.  767). 

It  is  not  necessary  that  the  declarant  should  die  immediately.  In 
one  case  he  died  fourteen  days  after  making  the  statement  (Jones  v. 
State,  71  Ind.  66),  in  others,  seventeen  days  (Comm.  v.  Cooper,  5  Allen, 
495  ;  Lowry  v.  State,  12  Lea,  142),  and  in  one  case,  four  months 
(State  v.  Craine,  120  N.  C.  601). 

The  sense  of  impending  death  is  deemed  equivalent  to  the  sanction 
of  an  oath.  Hence  dying  declarations  made  by  persons  disqualified 
to  act  as  witnesses  in  court  are  not  competent,  as  e.  g.,  atheists  (Don- 
nelly v.  State,  26  N.  J.  L.  463  and  601)  ;  but  aliter  in  States  where  their 
disability  to  testify  has  been  removed  (People  v.  Chin  Mook  Sow,  51 
Cal.  597  ;  State  v.  Elliott,  45  la.  486;  see  Art.  107,  noie,post).  So  the 
declarations  of  very  young  children  are  not  received  (Gr.  Ev.  i.  §  157), 
or  of  a  person  who  would  be  incompetent  as  a  witness  from  mental 
debility  (Mitchell 'v.  State,  71  Ga.  128,  146;  cf.  Comm.  v.  Slraesser, 
153  Pa.  451).  As  to  the  contradiction  of  dying  declarations,  see  Art. 
135,  fost. 

Though  dying  declarations  are  deemed  to  have  a  sanction  equal  to 
that  of  an  oath,  yet  they  are  not  of  the  same  value  and  weight  as  the 
direct  evidence  of  a  witness  subject  to  cross-examination.  People  v. 
Kraft,  148  N.  Y.  631  ;  cf.  State  v.  Reed,  137  Mo.  125.] 

1  {People  v.  Knapp,  1  Edm.  Sel.  Cas.  177.  If  the  declarations  be  re- 
duced to  writing  by  a  bystander,  but  are  not  read  over  to  the  dying 
person,  nor  signed  by  him,  parol  evidence  of  the  declarations  is  com- 
petent (Allison  v.  Comm.,  99  Pa.  17  ;  State  v.  Sullivan,  51  la.  142; 
Darby  v.  State,  92  Ala.  9);  but  the  writing  is  not,  though  it  may  be 
used  to  refresh  memory  (State  v.  Fraunburg,  40  la.  555).  So  parol 
evidence  was  received  when  the  memorandum  was  lost  (State  v. 
Patterson,  45  Yt.  308).  Where  the  writing  was  read  over  to  decedent 
and  signed  by  him,  it  was  held  competent  evidence,  though  it  was  not 
so  taken  as  to  constitute  a  deposition  (State  v.  Kindle,  47  O.  St.  358  ; 
People  v.  Bemmerly,  87  Cal.  117;  Jones  v.  State,  71  Ind.  66);  and 
where  it  was  subscribed  and  sworn  to  by  him,  but  was  inadmissible  as 
a  deposition,  its  use  to  refresh  recollection  was  held  allowable  (Comm. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  89 

Illustrations. 

(a)  The  question  is,  whether  A  has  murdered  B. 

B  makes  a  statement  to  the  effect  that  A  murdered  him. 

B,  at  the  time  of  making  the  statement,  has  no  hope  of  recovery, 
though  his  doctor  had  such  hopes,  and  B  lives  ten  days  after  making 
the  statement.     The  statement  is  deemed  to  be  relevant.1 

B,  at  the  time  of  making  the  statement  (which  is  written  down),  says 
something,  which  is  taken  down  thus  :  "  I  make  the  above  statement 
with  the  fear  of  death  before  me,  and  with  no  hope  of  recovery."  B, 
on  the  statement  being  read  over,  corrects  this  to  "  with  no  hope  at 
present  of  my  recovery."  B  dies  thirteen  hours  afterwards.  The 
statement  is  deemed  to  be  irrelevant.2 

(ad)  [A  woman  had  been  shot  in  the  head,  and  the  surgeon  attending 
her  had  told  her  that  she  was  liable  to  die  at  any  moment ;  that  an 
operation  which  he  would  perform  would  be  the  only  chance  for  her 
recovery.  He  asked  her  if  she  expected  to  get  well,  and  she  said  ; 
"  No,  I  do  not  expect  to  get  well,  but  I  would  like  to  get  well."  She 
then  said  that  A  was  the  person  who  shot  her.  On  the  trial  of  A  for 
murder,  this  statement  was  held  inadmissible.]3 

(ac)  [The  question  is,  whether  A  has  murdered  B. 

B,  having  received  a  very  dangerous  wound  in  the  neck,  severing 
the  jugular  vein,  raised  the  cry  of  "  murder,"  and  then,  bleeding 
profusely,  fell  upon  his  bed.  X,  hearing  the  alarm,  came  quickly  to 
the  room,  when  B  cried  out  that  he  had  been  stabbed,  that  he  had 
been  murdered,  that  his  throat  had  been  cut.  X  asked  him  who  did  it, 
and  B  answered:  "A,  your  bookkeeper."     B  died  about  an  hour  and  a 


v.  Haney,  127  Mass.  455  ;  cf.  State  v.  Whitson,  in  N.  C.  695).  Some 
cases,  however,  have  held  that  the  writing,  if  signed  by  the  decedent, 
is  the  primary  evidence,  and  that  unless  the  absence  of  the  writing  is 
accounted  for,  parol  evidence  will  not  be  received  (Gr.  Ev.  i.  §  161  ; 
Boulden  v.  State,  102  Ala.  78  ;  Turner  v.  State,  89  Tenn.  548  ;  Say/or 
v.  Comm.,  97  Ky.  184). 

Oral  declarations  may  be  testified  to  by  any  one  who  heard  and 
remembers  them,  and  he  is  only  required  to  state  their  substance 
{Comm.  v.  Haney,  supra  ;  Montgomery  v.  State,  n  O.  424 ;  Starkey  v. 
People,  17  111.  17);  but  they  must  be  substantially  complete.  Gr.  Ev. 
i.  §  159  ;  State  v.  Patterson,  45  Vt.  308.] 

1  R.  v.  Mosley,  1  Moo.  C.  C.  97  ;  [cf .  People  v.  Grunzig,  1  Park.  Cr.  299.] 

2  R.  v.  Jenkins,  L.  R.  1  C.  C.  R.  187  ;  [cf.  People  v.  Evans,  40  Hun, 
492  ;  People  v.  Hodgdon,  55  Cal.  72  ;  Jackson  v.  Comm.,  19  Gratt.  656.] 

3  [Peak  v.  Stale,  50  N.  J.  L.  179  ;  cf.  Young  v.  State,  95  Ala.  4.] 


90  A  DIGEST  OF  [Part  I. 

half  afterwards.     On  the  trial  of  A  it  was  held  that  X  might  testify  to 
this  statement  made  by  B.] ' 

(/>)  The  question  is,  whether  A  administered  drugs  to  a  woman  with 
intent  to  procure  abortion.  The  woman  makes  a  statement  which 
would  have  been  admissible  had  A  been  on  his  trial  for  murder. 
The  statement  is  deemed  to  be  irrelevant.2 

(c)  The  question  is,  whether  A  murdered  B.  A  dying  declaration 
by  C  that  he  (C)  murdered  B  is  deemed  to  be  irrelevant.3 

(d)  The  question  is,  whether  A  murdered  B. 

B  makes  a  statement  before  a  magistrate  on  oath,  and  makes  her 
mark  to  it,  and  the  magistrate  signs  it,  but  not  in  the  presence  of  A, 
so  that  her  statement  was  not  a  deposition  within  the  statute  then  in 
force.  B,  at  the  time  when  the  statement  was  made,  was  in  a  dying 
state,  and  had  no  hope  of  recovery.  The  statement  is  deemed  to  be 
relevant.4 

}  ^  Article  27.* 

j5eclarations  made  in  the  course  of  business  or  profes- 
sional duty. 

A  declaration  is  deemed  to  be  relevant  when  it  was 
made  by  the  declarant  in  the  ordinary  course  of  business, 
and  in  the  discharge  of  professional  duty,6  at  or  near  the 


*See  Note  XVIII.  [Appendix]. 

1  {Donnelly  v.  State,  26  N.  J.  L.  463  and  601.] 

">  R.  v.  Hind,  Bell,  253,  following  R.  v.  Hutchinson,  2  B.  &  C.  608,  n., 
quoted  in  a  note  to  7?.  v.  Mead.  [People  v.  Davis,  56  N.  Y.  95  ;  State  v. 
Harper,  35  O.  St.  78  ;  Railing  v.  Coinm.,  no  Pa.  100.  Aliter,  upon  a 
trial  for  murder  or  manslaughter,  caused  by  an  attempt  to  procure  an 
abortion  {State  v.  Dickinson,  41  Wis.  299  ;  State  v.  Leeper,  70  la.  748  ; 
cf.  Montgo)nery  v.  State,  80  Ind.  338).  Now,  however,  in  some  States, 
by  statute,  dying  declarations  of  the  woman  are  admissible  in  a  trial  for 
an  attempt  to  procure  an  abortion.  N.  Y.  Rev.  St.  (Birdseye's  2d  ed.) 
i.  6;  Laws  of  Mass.  of  1889,  c.  100;  Comm.  v.  Bishop,  165  Mass.  148.] 

3  Gray's  Case,  Ir.  Cir.  Rep.  76  ;  [People  v.  Hall,  94  Cal.  595  ;  Davis 
v.  Comm.,  95  Ky.  19  ;   West  v.  State,  76  Ala.  98.] 

4  R.  v.  Woodcock,  1  East,  P.  C.  356.  In  this  case,  Eyre,  C.  B.,  is  said 
to  have  left  to  the  jury  the  question,  whether  the  deceased  was  not  in 
fact  under  the  apprehension  of  death.  1  Leach,  504.  The  case  was 
decided  in  1789.     It  is  now  settled  that  the  question  is  for  the  judge. 

5  Doe  v.  Turford,  3  B.  &  Ad.  890.  [Gr.  Ev.  i.  §§115-120;  Chaffee 
v.  U.  S„  18  Wall.  516;  Fisher  v.  Mayor,  67  N.  Y.  73,  jj  ;  Skipworth 
v.  Deyell,  83  Hun,  307  ;  Kennedy  v.  Doyle,  10  Allen,  161  ;    Wheeler  v. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  9i 

time  when  the  matter  stated  occurred,  and  of  his  own 
knowledge.1 

Walker,  45  N.  H.  355;  Macomb  v.  Wilkinson,  83  Mich.  486;  Reynolds 
v.  Simmer,  126  111.  58;  Culver  v.  Marks,  122  Ind.  554;  Sands  v.  Ham- 
mell,  108  Ala.  624;  Laird  v.  Campbell,  100  Pa.  159;  State  v.  PJiair,  48 
Vt.  366.  Thus  the  books  or  registers  of  a  deceased  notary  are  admis- 
sible to  prove  his  acts  as  to  the  presentment,  demand,  and  notice  of 
non-payment  of  negotiable  paper  (Halliday  v.  Martinet,  20  Johns. 
168  ;  Porter  v.  Judson,  1  Gray,  175  ;  Nicholls  v.  Webb,  8  Wheat.  326 ; 
see  N.  Y.  Code  Civ.  Pro.  §§  924,  962) ;  and  so  as  to  entries  of  the 
deceased  clerk  of  a  notary  (Gawtry  v.  Doane,  51  N.  Y.  84).  So  entries 
made  by  merchants'  clerks,  bank  tellers  or  messengers,  or  by  other 
persons,  as  attorneys,  physicians,  etc.,  in  the  ordinary  course  of  busi- 
ness and  of  professional  duty  as  part  of  the  res  gestce,  are  competent 
after  their  death  (Leland  v.  Cameron,  31  N.  Y.  115  ;  Johnson  v.  Cow- 
drey,  19  N.  Y.  S.  678  ;  Sheldon  v.  Benham,  4  Hill,  129  ;  Anns  v. 
Middleton,  23  Barb.  571  ;  Hedrick  v.  Hughes,  15  Wall.  123).  In  some 
States  such  evidence  is  admissible  though  the  book  entries  may  have 
been  in  favor  of  the  person  making  them  (Lassone  v.  Boston,  etc.  R. 
Co.,  66  N.  H.  345  ;  Augusta  v.  Windsor,  19  Me.  317  ;  cf.  Donovan  v. 
Boston,  etc.  R.  Co.,  158  Mass.  450).  The  handwriting  of  the  deceased 
person  should  be  proved  (Chaffee  v.  U.  S.,  18  Wall.  516  ;  Hoover  v. 
Gehr,  62  Pa.  136  ;  Chenango  Bridge  Co.  v.  Lewis,  63  Barb.  11 1).  In 
some  States  such  evidence  is  also  admitted  if  the  person  making  the 
entries  has  become  insane  (Union  Bk.  v.  Knapp,  3  Pick.  96),  or  has 
gone  to  parts  unknown  (New  Haven,  etc.  Co.  v.  Goodwin,  42  Ct.  230 ; 
Reynolds  v.  Manning,  15  Md.  510  ;  see  Chaffee  v.  U.  S.,  supra),  or  is 
out  of  the  State  (Heiskell  v.  Rollins,  82  Md.  14;  McDonald  v.  C antes, 
90  Ala.  147;  Rigby  v.  Logan,  45  S.  Car.  651 ;  Bridgewater  v.  Roxbury, 
54  Ct.  213  ;  Hay  v.  Kramer,  2  W.  &  S.  137).  In  New  York,  however, 
if  the  clerk,  etc.,  is  out  of  the  State,  his  deposition  must  be  taken 
(Brewster  v.  Doane,  2  Hill,  537  ;  Fisher  v.  Mayor,  67  N.  Y.  jt,  ;  but 
see  Code  Civ.  Pro.  §924).  But  it  is  a  general  rule  that  if  he  is  alive 
and  within  the  State,  he  should  be  made  a  witness  and  authenticate 
the  entries  (Ocean  Bk.  v.  Carll,  55  N.  Y.  440;  Nelson  v.  Mayor  of 
N.  Y.,  131  N.  Y.  4  ;  Bartholomew  v.  Farwell,  41  Ct.  107  ;  Briggs  v. 
Rafferty,  14  Gray,  525  ;  House  v.  Beak,  141  111.  290).  As  to  what  is  a 
sufficient  authentication,  see  Bank  of  Monroe  v.  Culver,  2  Hill,  531  ; 
Moots  v.  State,  21  0.  St.  653  ;  Anderson  v.  Edwards,  123  Mass.  273. 
As  to  the  admissibility  of  entries  or  memoranda,  not  made  in  the  regu- 
lar course  of  business,  see  Art.  136,  note  ;  Taylor  v.  Chicago,  etc.  R. 
Co.,  80  la.  431.] 
1  [It  is  a  general  rule  in  this  country  that  entries  made  by  a  parly 


92  A  DIGEST  OF  [Part  I. 

Such  declarations  are  deemed  to  be  irrelevant,  except 
so  far  as  they  relate  to  the  matter  which -the  declarant 
stated  in  the  ordinary  course  of  his  business  or  duty,  or 


himself  in  his  own  books  of  account,  in  the  regular  course  of  business, 
are  admissible  in  his  own  favor,  when  properly  authenticated,  as  evi- 
dence of  goods  sold  and  delivered,  of  services  rendered,  and  some- 
times of  other  matters.  But  different  modes  of  authentication  are 
prescribed  in  different  States.  Thus  in  New  York  it  must  be  shown 
by  the  party  offering  the  books  that  they  are  the  regular  books  of 
account ;  that  there  had  been  regular  dealings  between  the  parties, 
resulting  in  more  than  a  single  charge  ;  that  he  kept  no  clerk  ;  that 
some  of  the  articles  charged  have  been  delivered,  or  some  items  of 
service  rendered  ;  and  that  other  persons  dealing  with  him  have  set- 
tled their  accounts  by  his  books  and  found  them  accurate  (  Vosburgh 
v.  Thayer,  12  Johns.  461  ;  West  v.  Van  Tuyl,  119  N.  Y.  620  ;  Dooley 
v.  Moan,  57  Hun,  535).  This  rule  also  prevails  in  Illinois  (House  v. 
Beak,  141  111.  290).  As  to  the  meaning  of  "clerk  "  under  the  rule,  see 
McGoldrick  v.  Traphagen,  88  N.  Y.  334  ;  Ativoodv.  Barney,  80  Hun, 
1 ;  Smith  v.  Smith,  13  App.  Div.  (N.  Y.)  207;  as  to  a  physician's  books, 
see  Knight  v.  Cunnington,6  Hun,  100  ;  Davis  v.  Seaman,  64  Hun,  572. 
But  such  entries  are  not  admissible  to  sustain  a  charge  for  money  lent 
(Low  v.  Payne,  4  N.  Y.  247),  but  only  for  sales  and  dealings  in  the 
ordinary  course  of  business  (Griesheimer  v.  Tanenbaum,  124  N.  Y. 
650)  ;  books  or  entries  relating  to  cash  items  or  dealings  between  the 
parties  are  not  admissible  (Smith  v.  Rents,  131  N.  Y.  169).  The  fact 
that  parties  are  now  competent  witnesses  does  not  exclude  their  books 
as  evidence  (Stroud  v.  Tilton,  4  Abb.  Dec.  324). 

Book  entries  by  a  party  against  his  interest  are  relevant  as  admis- 
sions (Adams  v.  Olin,  61  Hun,  318  ;   Griggs  v.  Day,  136  N.  Y.  152). 

In  many  of  the  States  the  party's  suppletory  oath  (or  that  of  his  ex- 
ecutor or  administrator  if  the  party  be  dead)  is  required  to  authenticate 
his  own  book  entries  which  are  in  his  own  favor,  but  there  are  diverse 
rules  as  to  the  matters  which  may  be  proved  by  such  entries.  Gener- 
ally, however,  they  are  received  to  prove  items  of  work  done  and  goods 
sold  and  delivered,  when  the  entries  have  been  made  in  the  regular 
course  of  business  (Pratt  v.  White,  132  Mass.  477  ;  Kaiser  v.  Alex- 
ander, 144  Mass.  71  ;  Oberg  v.  Brecn,  50  N.  J.  L.  145  ;  Lyman  v. 
Bechtel,  55  la.  437;  Corrv.  Sellers,  100  Pa.  169;  Smith  v.  Law,  47 
Ct.  431).  As  to  the  effect  of  making  parties  competent  witnesses,  see 
Nichols  v.  I  lay  ncs,  78  Pa.  174  ;  Montague  v.  Dougan,  68  Mich.  98. 
The  rules  in  the  different  States  are  stated  in  the  note  to  Price  v. 
Torrington,  S.  L.  C.  (Am.  Ed.)     (See  Miller  v.  Shay,  145  Mass.  162  ; 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  93 

if  they  do  not  appear  to  be  made  by  a  person  duly  author- 
ized to  make  them.1 

Illustrations. 

(a)  The  question  is,  whether  A  delivered  certain  beer  to  B. 

The  fact  that  a  deceased  drayman  of  A's,  on  the  evening  of  the 
delivery,  made  an  entry  to  that  effect  in  a  book  kept  for  the  purpose, 
in  the  ordinary  course  of  business,  is  deemed  to  be  relevant.'2 


Countryman  v.  Bunker,  10 1  Mich.  218  and  note;  Stallings  v.  Gotl- 
schalk,  jy  Md.  429  ;  Hooper  v.  Taylor,  39  Me.  224  ;  Anchor  Milling 
Co.  v.  Walsh,  108  Mo.  277  ;  White  v.  Whitney,  82  Cal.  163  ;  Schettler 
v.  Jones,  20  Wis.  433  ;  Karr  v.  Stivers,  34  la.  123  ;  Wells'  Adm'r  v. 
Ayers,  84  Va.  341.) 

The  book  to  be  produced  in  evidence  is  the  book  of  original  entries 
(Woolsey  v.  Bohn,  41  Minn.  235;  Stetson  v.  Wolcott,  15  Gray,  545). 
If  this  be  a  ledger,  it  will  be  competent  {Hoover  v.  Gehr,  62  Pa.  136  ; 
Swain  v.  Cheney,  41  N.  H.  232  ;  Faxon  v.  Hollis,  13  Mass.  427);  but 
not  where  the  ledger  is  used  for  posting  entries  originally  made  in 
another  book  (  Vilmarv.  Schall,  3  J.  &  Sp.  67;  Fitzgerald  v.  McCarty, 
55  la.  702  ;  Hustons  Estate,  167  Pa.  217).  Sometimes  day-book  and 
ledger  are  taken  together  as  the  book  of  original  entries  (McGoldrick 
v.  Traphagen,  88  N.  Y.  334  ;  Bonnellv.  Mawha,  37  N.  J.  L.  198). 

Sometimes  entries  or  memoranda  are  first  made  upon  a  slate  or 
paper,  and  afterwards  transcribed  into  the  regular  account  books. 
Where  this  is  done  on  the  same  day  or  within  two  or  three  days,  as 
a  common  business  practice,  the  books  are  generally  admitted  in 
evidence  {Stroud  v.  Tilton,  4  Abb.  Dec.  324  ;  McGoldrick  v.  Traph- 
agen, 88  N.  Y.  334  ;  Van  Wie  v.  Loomis,  jj  Hun,  399  ;  Nichols  v. 
Vinson,  9  Houst.  274  ;  Chishohn  v.  Beanian  Co.,  160  111.  101  ;  Hoover 
v.  Gehr,  62  Pa.  136;  Barker  v.  Haskell,  9  Cush.  218).  But  sometimes 
they  have  been  admitted  after  a  much  longer  interval  (Hall  v.  Glidden, 
39  Me.  445,  two  to  four  weeks  ;  Redlich  v.  Bauerlee,  98  111.  134,  four 
weeks).  But  in  Forsythe  v.  Norcross,  5  Watts,  432,  a  six  days'  inter- 
val was  held  too  long  (cf.  Rumsey  v.  N.  Y.  etc.  Telephone  Co.,  49  N.  J. 
L.  322).  As  to  the  mode  of  proof  when  the  party  is  dead  or  insane, 
see  Hoover  v.  Gehr,  62  Pa.  136  ;  Pratt  v.  White,  132  Mass.  477  ;  Hol- 
brook  v.  Gay,  6  Cush.  215.] 

1  [Skipworth  v.  Deyell,  83  Hun,  307  ;  Riley  v.  Boehm,  167  Mass.  183  ; 
Fulton's  Estate,  178  Pa.  78  ;  Burley  v.  German- American  Bk.,  m  U. 
S.  216  ;  and  cases  supra.~\ 

2  Price  v.  Torrington,  1  S.  L.  C.  328,  7th  ed. 


04  A  DIGEST  OF  [Part  I. 

(b)  The  question  is,  what  were  the  contents  of  a  letter  not  produced 
after  notice. 

A  copy  entered  immediately  after  the  letter  was  written,  in  a  book 
kept  for  that  purpose,  by  a  deceased  clerk,  is  deemed  to  be  relevant.1 

(c)  The  question  is,  whether  A  was  arrested  at  Paddington,  or  in 
South  Molton  Street. 

A  certificate  annexed  to  the  writ  by  a  deceased  sheriff's  officer,  and 
returned  by  him  to  the  sheriff,  is  deemed  to  be  relevant  so  far  as  it 
relates  to  the  fact  of  the  arrest ;  but  irrelevant  so  far  as  it  relates  to 
the  place  where  the  arrest  took  place.'2 

(d)  The  course  of  business  was  for  A,  a  workman  in  a  coal-pit,  to 
tell  B,  the  foreman,  what  coals  were  sold,  and  for  B  (who  could  not 
write)  to  get  C  to  make  entries  in  a  book  accordingly. 

The  entries  (A  and  B  being  dead)  are  deemed  to  be  irrelevant,  be- 
cause B,  for  whom  they  were  made,  did  not  know  them  to  be  true.3 

(e)  The  question  is,  what  is  A's  age.  A  statement  by  the  incumbent 
in  a  register  of  baptisms  that  he  was  baptized  on  a  given  day  is  deemed 
to  be  relevant.  A  statement  in  the  same  register  that  he  was  born  on 
a  given  day  is  deemed  to  be  irrelevant,  because  it  was  not  the  incum- 
bent's duty  to  make  it.4 


1  Prittv.  Fairclough,  3  Camp.  305. 

2  Chambers  v.  Bernasconi,  1  C.  M.  &  R.  347  ;  see,  too,  Smith  v. 
Blakey,  L.  R.  2  Q.  B.  326. 

3  Brain  v.  Preece,  11  M.  &  W.  773.  [S.  P.  Gould  v.  Conway,  59 
Barb.  355  ;  Kent  v.  Garvin,  1  Gray,  148  ;  Chaffee  v.  U.S.,  18  Wall. 
516,  543  ;  Hoffman  v.  N.  Y.  C.  R.  Co.,  14  J.  &  Sp.  526,  87  N.  Y.  25  ; 
Thomas  v.  Price,  30  Md.  483.  Entries  made  in  the  usual  course  of 
business  upon  information  communicated  by  others  have,  however, 
been  held  competent,  when  their  correctness  is  authenticated  by  the 
testimony  of  those  who  made  such  reports  and  entries,  or  by  other 
satisfactory  proof.  Payne  v.  Hodge,  7  Hun,  612,71  N.  Y.  598  ;  Mayor 
of  N.  Y.  v.  Second  Ave.  R.  Co.,  102  N.  Y.  572  ;  Chisholm  v.  Beaman 
Co.,  160  111.  101  ;  Chicago  Lumbering  Co.  v.  Hewitt,  64  F.  R.  314  ; 
Harwood  v.  Mnlry,  8  Gray,  250;  Smith  v.  Law,  47  Ct.  431  ;  cf. 
Chateaugay  Lroti  Co.  v.  Blake,  144  U.  S.  476  ;  Cobb  v.  Wells,  124  N. 
Y.  77  ;  Powers  v.  Savin,  64  Hun,  560,  139  X.  Y.  652.] 

*  R.  v.  Clapham,  4  C.  &  P.  29.  [Durfee  v.  Abbott,  61  Mich.  471  ; 
W hitc her  \.  McLaughlin,  115  Mass.  167;  Blackburn  v.  Crawfords, 
3  Wall.  175  ;  Weaver  v.  Leiman,  52  Md.  708;  Sitlerv.  Gehr,  105  Pa. 
577  ;  see  Hunt  v.  Order  of  Friends,  64  Mich.  671.  So  as  to  a  register 
of  marriages  {Maxwell  v.  Chapman,  8  Barb.  579);   and  a  hospital 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  95 

(/)  The  question  is,  whether  A  was  married.  Proceedings  in  a 
college  book,  which  ought  to  have  been,  but  was  not,  signed  by  the 
registrar  of  the  college,  were  held  to  be  irrelevant.1 


Article   28.* 

declarations  against  interest. 

A  declaration  is  deemed  to  be  relevant  if  the  declarant 
had  peculiar  means  of  knowing  the  matter  stated,  if  he 
had  no  interest  to  misrepresent  it,  and  if  it  was  opposed 
to  his  pecuniary  or  proprietary  interest.2  The  whole  of 
any  such  declaration,  and  of  any  other  statement  referred 
to  in  it,  is  deemed  to  be  relevant,  although  matters  may 
be  stated  which  were  not  against  the  pecuniary  or  pro- 


*  See  Note  XIX.  [Appendix]. 

record.  Townsend  v.  Peppercll,  99  Mass.  40  ;  see  Butler  v.  St.  Louis 
Ins.  Co.,  45  la.  93.] 

1  Fox  v.  Bearblock,  17  Ch.  Div.  429. 

2  These  are  almost  the  exact  words  of  Bayley,  J.,  in  Gleadow  v. 
A  thin,  1  C.  &  M.  423.  The  interest  must  not  be  too  remote.  Smith 
v.  Blakey,  L.  R.  2  Q.  B  326.  [Gr.  Ev.  i.  §§  147-155  ;  Lyon  v.  Rickey, 
141  N.  Y.  225;  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178,  192; 
Brennan  v.  Hall,  131  N.  Y.  160;  Taylor  v.  Gould,  57  Pa.  152  ;  Hoben- 
sack  v.  Halli/ian,  17  id.  154,  158  ;  Hart  v.  Kendall,  82  Ala.  144  ;  Bart- 
lett  v.  Patlon,  33  W.  Va.  7 1  ;  Lamar  v.  Pearre,  90  Ga.  377  ;  Scott  Co. 
v.  Fluke,  34  la.  317;  Zimmerman  v '.  Bloom,  43  Minn.  163;    Dea/i  v. 

IVilkerson,  126  Ind.  338  ;  cf.  Lassone  v.  Boston,  etc.  R.  Co.,  66  N.  H. 
345  ;  Chase  v.  Smith,  5  Vt.  556  ;  Bird  v.  Hueston,  10  O.  St.  418.  The 
doctrine  is  also  recognized  in  dicta  in  Comm.  v.  Densmore,  12  Allen, 
537  ;  Dwight  v.  Brown,  9  Ct.  83,  92.  The  declarant,  must  be  dead 
(Id. ;  Trammel!  v.  Hudmon,  78  Ala.  222).  The  statement  in  Lawrence 
v.  Kimball,  1  Met.  527,  that  the  rule  applies  only  to  written  entries  or 
statements,  and  not  to  oral  declarations,  is  contrary  to  the  weight  of 
authority.  R.  v.  Exeter,  L.  R.  4  Q.  B.  341  ;  County  of  Mahaska  v. 
Ingalls,  16  la.  81  ;  White  v.  Chouteau,  10  Barb,  202  ;  Baker  v.  Taylor, 
54  Minn.  71.] 

J 


96  A  DIGEST  OF  [Part  I. 

prietary  interest  of  the  declarant ; '  but  statements,  not 
referred  to  in,  or  necessary  to  explain  such  declara- 
tions, are  not  deemed  to  be  relevant  merely  because 
they  were  made  at  the  same  time  or  recorded  in  the 
same  place.2 

A  declaration  may  be  against  the  pecuniary  interest  of 
the  person  who  makes  it,  if  part  of  it  charges  him  with  a 
liability,  though  other  parts  of  the  book  or  document  in 
which  it  occurs  may  discharge  him  from  such  liability  in 
whole  or  in  part,  and  (it  seems)  though  there  may  be  no 
proof  other  than  the  statement  itself  either  of  such  lia- 
bility or  of  its  discharge  in  whole  or  in  part.3 

A  statement  made  by  a  declarant  holding  a  limited 
interest  in  any  property  and  opposed  to  such  interest  is 
deemed  to  be  relevant  only  as  against  those  who  claim 
under  him,  and  not  as  against  the  reversioner.4 

An  indorsement  or  memorandum  of  a  payment  made 
upon  any  promissory  note,  bill  of  exchange,  or  other 
writing,  by  or  on  behalf  of  the  party  to  whom  such  pay- 
ment was  made,  is  not  sufficient  proof  of  such  payment 
to  take  the  case  out  of  the  operation  of  the  Statutes  of 
Limitation  ; 5  but  any  such  declaration  made  in  any  other 
form  by,  or  by  the  direction  of,  the  person  to  whom  the 
payment  was  made  is,  when  such  person  is  dead,  suffi- 
cient proof  for  the  purpose  aforesaid.6 

Any  indorsement  or  memorandum  to  the  effect  above 
mentioned  made  upon  any  bond  or  other  specialty  by 
a  deceased  person,  is  regarded  as  a  declaration  against 


1  \Livingston  v.  Ar?ioux,  56  N.  Y.  507;   Elswortli  v.  Muldoon,  15 
Abb.  Pr.  (N.  S.)  .140,  448.] 
8  Illustrations  (a),  (b)  and  (c). 

3  Illustrations  (d)  and  {e). 

4  Illustration  (g) ;   see  Lord  Campbell's  judgment  in  case  quoted, 
p.  177. 

s9  Geo.  IV.  c.  14,  s.  3. 

6  Bradley  v.  James,  13  C.  B.  822.    Newbouldv.  Smith,  29  Ch.  Div. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  97 

the  proprietary  interest  of  the  declarant  for  the  purpose 
above  mentioned,  if  it  is  shown  to  have  been  made  at 
the  time  when  it  purports  to  have  been  made  ; '  but  it 
is  uncertain  whether  the  date  of  such  indorsement  or 
memorandum  may  be  presumed  to  be  correct  without 
independent  evidence.2 

Statements  of  relevant  facts  opposed  to  any  other  than 
the  pecuniary  or  proprietary  interest  of  the  declarant  are 
not  deemed  to  be  relevant  as  such.3 


877,  seems  scarcely  consistent  with  this.  It  was  a  decision  of  North,  J. 
On  appeal,  33  Ch.  Div.  138,  the  court  expressed  no  opinion  on  the 
admissibility  of  the  entry  rejected  by  North,  J. 

1  3  &  4  Will.  IV.  c.  42,  which  is  the  Statute  of  Limitations  relating  to 
specialties,  has  no  provision  similar  to  9  Geo.  IV.  c.  14,  s.  3.  Hence,  in 
this  case  the  ordinary  rule  is  unaltered. 

2  See  the  question  discussed  in  1  Ph.  Ev.  302-5,  and  T.  E.  ss.  625-9, 
and  see  Article  85.  [The  general  rule  in  this  country,  independently 
of  statute,  is  that  an  indorsement  on  a  bond,  bill,  note,  etc.,  made  by 
the  obligee  or  promisee,  without  the  privity  of  the  debtor,  cannot  be 
admitted  as  evidence  of  payment  in  favor  of  the  party  making  such 
indorsement,  unless  it  be  shown  that  it  was  made  at  a  time  when  its 
operation  would  be  against  the  interest  of  the  party  making  it, — that  is, 
before  the  statute  has  barred  the  claim.  The  date  of  the  indorsement 
is  not  sufficient  to  show  this,  but  there  must  be  independent  evidence 
to  this  point.  But  it  is  not  necessary  that  the  declarant  be  dead,  in 
order  that  the  indorsement  be  received  in  evidence.  Indorsements  by 
the  debtor,  or  with  his  consent  and  privity,  are  competent.  {Mills  v. 
Davis,  1 13  N.  Y.  243  ;  In  re  Kellogg,  104  N.  Y.  648  ;  Runner  s  Appeal, 
121  Pa.  649 ;  Coon's  Appeal,  52  Ct.  186  ;  Haver  v.  Schzuyhart,  39  Mo. 
App.  303  ;  Hamilton  v.  Coffin,  45  Kan.  556;  Curtis  v.  Daughdrill,  yi 
Ala.  590;  Clough  v.  McDaniel,  58  N.  H.  201  ;  White  v.  Beaman,  85 
N.  C.  3  ;  Clark  v.  Burn,  86  Pa.  502.)  Sometimes  a  similar  rule  is 
established  by  statute  {Young  v.  Perkins,  29  Minn.  173). 

A  number  of  the  States  have  statutes  similar  to  the  present  English 
statute  (9  Geo.  IV.  c.  14),  stated  in  the  text.  Mass.  Pub.  St.  c.  197,  s.  16 ; 
Me.  Rev.  St.  c.  81,  s.  100  ;  Libby  v.  Brown,  78  Me.  492  ;  Rogers  v. 
Anderson,  40  Mich.  290 ;  N.  J.  Rev.  p.  596  ;  Ind.  Rev.  St.  s.  303  ;  Wis. 
Rev.  St.  s.  4247.] 

3  Illustration  (/z).  {United  States  v.  Mulholland,  50  F.  R.  413; 
Maine  v.  People,  9  Hun,  1 13.] 


A  DIGEST  OF  [Part  I. 


Illustrations. 

(a)  The  question  is,  whether  a  person  was  born  on  a  particular  day. 
An  entry  in  the  book  of  a  deceased  man-midwife  in  these  words  is 

deemed  to  be  relevant : ' 

"\V.  Fowden,  Junr.'s  wife, 

Filius  circa  hor.  3  post  merid.  natus  H. 

W.  Fowden,. Junr., 

App.  22,  filius  natus, 
Wife,  .£1  6s.  id. 
Pd.  25  Oct.,  1768." 

(b)  The  question  is,  whether  a  certain  custom  exists  in  a  part  of  a 
parish. 

The  following  entries  in  the  parish  books,  signed  by  deceased 
church-wardens,  are  deemed  to  be  relevant : — 

"  It  is  our  ancient  custom  thus  to  proportion  church-lay.  The 
chapelry  of  Haworth  pay  one-fifth,  etc." 

Followed  by — 

"  Received  of  Haworth,  who  this  year  disputed  this  our  ancient 
custom,  but  after  we  had  sued  him,  paid  it  accordingly, — ,£8,  and  £1 
for  costs." '-' 

(e)  The  question  is,  whether  a  gate  on  certain  land,  the  property  of 
which  is  in  dispute,  was  repaired  by  A. 

An  account  by  a  deceased  steward,  in  which  he  charges  A  with  the 
expense  of  repairing  the  gate,  is  deemed  to  be  irrelevant,  though  it 
would  have  been  deemed  to  be  relevant  if  it  had  appeared  that  A 
admitted  the  charge.3 

(d)  The  question  is,  whether  A  received  rent  for  certain  land. 

A  deceased  steward's  account,  charging  himself  with  the  receipt  of 
such  rent  for  A,  is  deemed  to  be  relevant,  although  the  balance  of  the 
whole  account  is  in  favor  of  the  steward.4 

(e)  The  question  is,  whether  certain  repairs  were  done  at  A's  ex- 
pense. 

A  bill  for  doing  them,  receipted  by  a  deceased  carpenter,  is  deemed 

to  be  k  .      ,        '    c  >  there  being  no  other  evidence  either  that  the 
( irrelevant,'' ) 

repairs  were  done  or  that  the  money  was  paid. 


1  Higham  v.  Ridgway,  2  S.  L.  C.  318,  7th  ed. 

2  Stead  v.  Heaton,  4  T.  R.  669. 

3  Doe  v.  Bcviss,  7  C.  B.  456. 

4  Williams  v.  Graves,  8  C.  &  P.  592. 

1  A\  v.  Heyford,  note  to  Higham  v.  Ridgway,  2  S.  L.  C.  333,  7th  ed. 
iDoev.  Vowles,  1  Mo.  &  Ro.  261,    In  Taylors.  IVitham,  3  Ch.  Diy, 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  99 

(/)  The  question  is,  whether  A  (deceased)  gained  a  settlement  in 
the  parish  of  B  by  renting  a  tenement. 

A  statement  made  by  A,  whilst  in  possession  of  a  house,  that  he 
had  paid  rent  for  it,  is  deemed  to  be  relevant,  because  it  reduces  the 
interest  which  would  otherwise  be  inferred  from  the  fact  of  A's  pos- 
session.1 

(g)  The  question  is,  whether  there  is  a  right  of  common  over  a 
certain  field. 

A  statement  by  A,  a  deceased  tenant  for  a  term  of  the  land  in  ques- 
tion, that  he  had  no  such  right,  is  deemed  to  be  relevant  as  against 
his  successors  in  the  term,  but  not  as  against  the  owner  of  the  field.2 

(h)  The  question  is,  whether  A  was  lawfully  married  to  B. 

A  statement  by  a  deceased  clergyman  that  he  performed  the 
marriage  under  circumstances  which  would  have  rendered  him  liable 
to  a  criminal  prosecution  is  not  deemed  to  be  relevant  as  a  statement 
against  interest.3 


lRTICLe   29. 
declarations  by  testators  as  to  contents  of  will. 

The  declarations  of  a  deceased  testator  as  to  his  testa- 
mentary intentions,  and  as  to  the  contents  of  his  will,  are 
deemed  to  be  relevant 

when  his  will  has  been  lost,  and  when  there  is  a  ques- 
tion as  to  what  were  its  contents  ; 4  and 


605,  Jessel,  M.  R.,  followed  R.  v.  Heyford,  and  dissented  from  Doe 
v.  Vowles. 

1  R.  v.  Exeter,  L.  R.  4  Q.  B.  341. 

2  Papendick  v.  Bridgewater,  5  E.  &  B.  166.  [See  Lyoti  v.  Richer,  141 
N.  Y.  225  ;  Lamar  v.  Pearre,  90  Ga.  377.] 

3  Sussex  Peerage  Case,  11  C.  &  F.  108. 

4  [In  re  Page,  118  111.  576;  Southworth  v.  Adams,  11  Biss.  256; 
McDonald  v.  McDonald,  142  Ind.  55;  In  re  Lambie,  97  Mich.  49; 
Valentine's  Will,  93  Wis.  45  ;  Pickens  v.  Davis,  134  Mass.  252  ;  In  re 
Johnson's  Will,  40  Ct.  587  ;  Collagan  v.  Bums,  57  Me.  449  ;  Behrens 
v.  Behrens,  47  O.  St.  323  ;  Byers  v.  Hoppe,  61  Md.  206  ;  Apperson  v. 
Dowdy,  82  Va.  776  ;  Harris  v.  Knight,  L.  R.  15  P.  D.  170  ;  cf.  Mutual 
Life  Bis.  Co.  v.  Hillmon,  145  U.  S.  285,  298  ;  Gardner  v.  Gardner,  177 
Pa.  2i&.    It  is  provided  in  New  York  by  statute  that  in  an  action  to 


A  DIGEST  OF  [Part  I. 


when  the  question  is  whether  an  existing  will  is  genu- 
ine or  was  improperly  obtained  ; '   and 

when  the  question  is  whether  any  and  which  of  more 
existing  documents  than  one  constitute  his  will.'1 

In  all  these  cases  it  is  immaterial  whether  the  declara- 
tions were  made  before  or  after  the  making  or  loss  of  the 
will.3 

Article   30.* 

declarations  as  to  public  and  general  rights. 

Declarations  are  deemed  to  be  relevant  (subject  to  the 
third  condition  mentioned  in  the  next  Article)  when  they 


*  See  Note  XX.  [Appendix].  Also  see  Weeks  v.  Sparke,  1  M.  & 
S.  679;  Crease  v.  Barrett,  I  C.  M.  &  R.  917.  Article  5  has  much  in 
common  with  this  Article.  Lord  Blackburn's  judgment  in  Neillv. 
Duke  of  Devonshire,  8  App.  Cas.  186-7,  especially  explains  the  law. 


establish  a  lost  or  destroyed  will,  or  in  an  application  to  have  it 
admitted  to  probate,  its  provisions  must  be  proved  by  at  least  two 
credible  witnesses,  a  correct  copy  or  draft  being  equal  to  one  witness 
(Code  Civ.  Pro.  §§  1865,  2621  ;  Everitt  v.  Everitt,  41  Barb.  385).  That 
evidence  of  the  testator's  declarations  as  to  its  contents  may  be  re- 
ceived in  such  cases,  see  Hatch  v.  Sigman,  1  Demarest,  519.  But  in 
certain  proceedings  of  other  kinds  it  is  held  that  proof  by  one  witness 
is  sufficient.  Harris  v.  Harris,  26  N.  Y.  433  ;  Upton  v.  Bernstein,  73 
Hun,  516.] 

1  [See  Art.  11,  Illustration  {0);  Taylor  Will  Case,  10  Abb.  Pr.  (N.  S.) 
300  ;  Crispell  v.  Dubois,  4  Barb.  393  ;  Hoppe  v.  Byers,  60  Md.  381  ;  cf. 
Beadles  v.  Alexander,  9  Baxt.  604  ;  Boylan  v.  Meeker,  28  N.  J.  L.  274.] 

8  [Valentine s  Will,  93  Wis.  45.  In  New  York  it  is  essential  to  the 
valid  execution  of  a  will  that  the  testator  declare  to  the  attesting 
witnesses  that  it  is  his  last  will  and  testament  (2  R.  S.  *  63,  s.  38).  This 
is  called  the  "  publication  "  of  the  will.  Evidence  of  such  declarations 
is  accordingly  receivable  upon  a  proceeding  for  the  admission  of  the 
will  to  probate.  Or  his  assent  to  such  declarations,  when  made  for 
him  by  others  in  his  presence,  may  be  enough  {Gilbert  v.  Knox,  52 
N.  Y.  125  ;  Lane  v.  Lane,  95  N.  Y.  494).  And  similar  evidence  is 
received  in  other  States.  E/kinton  v.  Brick,  44  N.  J.  Eq.  154  ;  Denny 
v.  Pinney,  60  Yt.  524  ;  Estate  of  Johnson,  57  Cal.  529.] 

3  Sugden  v,  St.  Leonards^  L.  R.  1  P,  D.  (C.  A.)  154.    [This  is  cited  by 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  101 

relate  to  the  existence  of  any  public  or  general  right  or 
custom  or  matter  of  public  or  general  interest.1  But 
declarations  as  to  particular  facts  from  which  the  exist- 
ence of  any  such  public  or  general  right  or  custom  or 


the  author  as  authority  for  the  whole  Article.]  In  questions  between 
the  heir  and  the  legatee  or  devisee,  such  statements  would  probably  be 
relevant  as  admissions  by  a  privy  inlaw,  estate,  or  blood  ( Gould  v. 
Lakes,  L.  R.  6  P.  D.  i  ;  Doe  v.  Palmer,  16  Q.  B.  747).  The  decision  in 
this  last  case  at  p.  757,  followed  by  Quick  v.  Quick,  3  Sw.  &  Tr.  442, 
is  overruled  by  Sugden  v.  St.  Leonards.  [Since  the  decision  of 
Sugden  v.  St.  Leonards,  it  has  been  questioned  in  the  English  House 
of  Lords  whether  post-testamentary  declarations  of  a  testator  as  to 
the  contents  of  his  will  should  be  deemed  admissible.  Woodward  v. 
Goulstone,  11  App.  Cas.  469  ;  cf.  Atkinson  v.  Morris,  [1897]  P.  40.] 

1  [The  general  doctrine  of  this  Article  is  fully  recognized  in  this 
country  (Gr.  Ev.  i.  §§  127-140,  145;  Ellicott  v.  Pearl,  10  Pet.  412; 
Shuttle  v.  Thompson,  15  Wall.  151  ;  McKinnon  v.  Bliss,  21  N.  Y.  206, 
218;  People  v.  Velarde,  59  Cal.  457  ;  Drury  v.  Midland  R.  Co.,  127 
Mass.  571  ;  Woostcr  v.  Butler,  13  Ct.  309  ;  Birmingham  v.  Anderson, 
40  Pa.  506  ;  Hampson  v.  Taylor,  15  R.  I.  83  ;  Young  v.  Kansas  City, 
etc.  R.  Co.,  39  Mo.  App.  52  ;  Mullancy  v.  Duffy,  145  111.  559).  Thus 
the  boundaries  established  by  the  United  States  surveys  are  provable 
by  such  evidence  of  common  repute,  when  the  monuments  have  dis- 
appeared (Thoen  v.  Roche,  57  Minn.  135).  But  in  many  States 
evidence  is  also  received  of  the  declarations  of  deceased  persons  as 
to  the  boundaries  of  private  estates  ;  but  the  limitations  of  this  doctrine 
are  different  in  different  States.  In  some  States  such  declarations, 
if  made  by  one  in  possession  of  land  owned  by  him,  while  he  was 
pointing  out  the  boundaries  on  the  land  itself,  are  admissible,  when 
nothing  appears  to  show  an  interest  to  deceive  or  misrepresent ;  the 
declarations  are  part  of  the  res  gestae  {Long  v.  Colton,  1 16  Mass.  414  ; 
Robinson  v.  Dewhurst,  68  F.  R.  336  ;  Royal  v.  Chandler,  83  Me.  150). 
In  other  States  the  declarations  of  deceased  surveyors',  made  while 
they  were  surveying  the  land,  or  of  other  deceased  persons  having 
special  means  of  knowledge  of  the  facts  stated,  made  while  they 
were  pointing  out  t>r  describing  the  boundaries,  are  deemed  compe- 
tent, if  no  interest  to  misrepresent  appears  {Kramer  v.  Goodlander, 
98  Pa.  366;  Clement  v.  Packer,  125  U.  S.  309;  Lemmon  v.  Hartsook, 
80  Mo.  13  ;  Powers  v.  Silsby,  41  Vt.  288  ;  Smith  v.  Forrest,  49  N.  H. 
230;  Kinney  v.  Farnsivorth,  17  Ct.  355  ;  Fry  v.  Stowers,  92  Va.  13; 
Bethea  v.  Byrd,  95  N.  C.  309 ;  contra,  Chapman  v.  Twitchell,  37  Me. 
59;  cf.  Jackson  v,  McCall,  10  Johns.  377);  though  such  declarations 


102  A  DIGEST  OF  [Part  I. 


matter  of  public  or  general  interest  may  be  inferred,  are 
deemed  to  be  irrelevant.' 

A  right  is  public  if  it  is  common  to  all  her  Majesty's 
subjects,2  and  declarations  as  to  public  rights  are  relevant 
whoever  made  them. 

A  right  or  custom  is  general  if  it  is  common  to  any 
considerable  number  of  persons,  as  the  inhabitants  of  a 
parish,  or  the  tenants  of  a  manor. 

Declarations  as  to  general  rights  are  deemed  to  be 
relevant  only  when  they  were  made  by  persons  who  are 
shown,  to  the  satisfaction  of  the  judge,  or  who  appear 
from  the  circumstances  of  their  statement,  to  have  had 
competent  means  of  knowledge. 

Such  declarations  may  be  made  in  any  form  and 
manner. 

Illustrations. 

(a)  The  question  is,  whether  a  road  is  public. 

A  statement  by  A  (deceased)  that  it  is  public  is  deemed  to  be  rele- 
vant.3 


relate  to  "particular  facts"  showing  boundaries,  they  are  still  held 
admissible  in  many  of  these  States  (Id.;  Hinuiicutt  v.  Peyton,  102  U.S. 
333).  So  ancient  deeds,  wills,  and  other  solemn  instruments  are 
sometimes  deemed  competent  to  prove  matters  of  a  private  nature, 
though  evidence  of  verbal  declarations  would  be  excluded  (Oldtown 
v.  Shapleigh,  33  Me.  278  ;  Greenfield  v.  Camden,  74  Me.  56  ;  Ward 
v.  Oxford,  8  Pick.  476  ;  see  Wright  v.  Boston,  126  Mass.  161). 

When  private  and  public  boundaries  coincide,  evidence  of  reputa- 
tion as  to  the  latter  will  avail  to  prove  the  former.  Curtis  v.  Aaro/isou, 
49  N.  J.  L.  68,  76  ;  Muttaney  v.  Duffy,  145  111.  559.] 

x\F{all  v.  Mayo,  97  Mass.  416;  5.  W.  School  Dist.  v.  Williams, 
48  Ct.  504;  Fraser  v.  Hunter,  5  Cr.  C.  C.  470.  So  declarations  con- 
(lining  private  rights  are,  in  general,  deemed  to-be  irrelevant  (Id.; 
Boston,  etc.  Co.  v.  Hanlon,  132  Mass.  483;  Curtis  v.  Aaronson,  49 
X.  J.  L.  68);  but  see  last  note  as  to  private  boundaries.] 

2  [Or  in  this  country,  to  all  the  citizens  of  the  State  ;  the  "  who- 
ever" which  follows  would  apply  to  any  such  citizen.  Gr.  Ev.  i. 
§  128.] 

u  Crease  v.  Barrett,  per  Parke,  B.,  1  C.  M.  &  R.  929. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  103 

A  statement  by  A  (deceased)  that  he  planted  a  willow  (still  stand- 
ing) to  show  where  the  boundary  of  the  road  had  been  when  he  was 
a  boy  is  deemed  to  be  irrelevant.1 

(ad)  [The  question  is,  whether  certain  fences  and  trees  have  been 
placed  by  A  on  his  own  land  or  within  the  limits  of  the  public  high- 
way. 

Old  men  who  lived  in  the  vicinity  of  the  highway  fifty  years  or  more 
ago  may  be  allowed  to  state  where  the  line  of  the  highway  was  re- 
puted to  be  when  they  were  young  men. 

Extracts  from  ancient  records  of  the  town,  showing  the  boundaries 
of  the  highway  when  laid  out,  are  deemed  to  be  relevant.]2 

(b)  The  following  are  instances  of  the  manner  in  which  declara- 
tions as  to  matters  of  public  and  general  interest  may  be  made: — They 
may  be  made  in 

Maps  prepared  by,  or  by  the  direction  of,  persons  interested  in  the 
matter ; 3 

Copies  of  court  rolls  ;4 

Deeds  and  leases  between  private  persons  ; 5 

Verdicts,  judgments,  decrees,  and  orders  of  courts,  and  similar 
bodies,6  if  final.1 

Article  31.* 
declarations  as  to  pedigree. 

A  declaration  is  deemed  to  be  relevant  (subject  to  the 
conditions  hereinafter  mentioned),  if  it  relates  to  the 
existence  of  any  relationship  between  persons,  whether 


*  See  Note  XXI.  [Appendix]. 
'/?.  v.  Bliss,  7  A.  &  E.  550. 

2  [Stale  v.  Vale  Mills,  63  N.  H.  4.] 

3  Implied  in  Hammond  -v.  Bradstreet,  10  Ex.  390,  and  Bipe  v.  Ful- 
cher,  1  E.  &  E.  in.  In  each  of  these  cases  the  map  was  rejected  as 
not  properly  qualified.  [Cf.  McCansland  v.  Fleming,  63  Pa.  36; 
Smith  v.  Forrest,  49  N.  H.  230;  see  p.  w^^ost,  note  2.] 

4  Crease  v.  Barrett,  1  C.  M.  &  R.  928. 

6  Flaxton  v.  Dare,  10  B.  &  C.  17  ;  [Drury  v.  Midla?id  R.  Co.,  127 
Mass.  571.] 

6  Duke  of  Newcastle  v.  Broxtowe,  4  B.  &  Ad.  273 ;  [  Willey  v.  Boris- 
mouth,  35  N.  H.  303.] 

1  Pirn  v.  Cur  re  II,  6  M.  &  W.  234,  266. 


104  A  DIGEST  OF  [Part  I. 

living  or  dead,  or  to  the  birth,  marriage,  or  death  of 
any  person,  by  which  such  relationship  was  constituted, 
or  to  the  time  or  place  at  which  any  such  fact  occurred, 
or  to  any  fact  immediately  connected  with  its  occur- 
rence.1 

Such  declarations  may  express  either  the  personal 
knowledge  of  the  declarant,  or  information  given  to  him 
by  other  persons  qualified  to  be  declarants,  but  not  in- 
formation collected  by  him  from  persons  not  qualified  to 
be  declarants.2     They  may  be  made  in  any  form   and  in 


1  Illustration  (a).  [Eisenlord  v.  Clum,  126  N.  Y.  552;  Jackson  v. 
King,  5  Cow.  237  ;  Haddock  v.  B.  &>  M.  R.  Co.,  3  Allen,  298 ;  Fulker- 
son  v.  Holmes,  1 17  U.  S.  389 ;  Pickens 's  Estate,  163  Pa.  14  ;  Shorten  v. 
Jitdd,  56  Kan.  43  ;  Robbs  Estate,  37  S.  Car.  19  ;  Jackson  v.  Jackson,  80 
.M<1.  176;  Weaver  v.  Leiman,  52  Md.  708;  Van  Sickle  v.  Gibson,  40 
Mich.  170  ;  Cuddy  v.  Brown,  78  111.  415  ;  Morrill  v.  Foster,  33  N.  H. 
379  ;  Eaton  v.  Tallmadge,  24  Wis.  217  ;  Dawson  v.  May  all,  45  Minn. 
408.  The  declarant  must  be  dead  (Id.;  Mooers  v.  Bunker,  29  N.  H.  420). 
But  such  evidence  is  not  generally  received  in  this  country  to  show 
the  place,  though  it  is  deemed  competent  to  show  the  time,  of  birth, 
marriage,  or  death  {Ada/us  v.  Swansea,  1 16  Mass.  591,  596  ;  McCarty 
v.  Terry,  7  Lans.^36  ;  Union  v.  Plainfield,  39  Ct.  563  ;  Greenfield  v. 
Camden,  74  Me.  56;  Tylerv.Elanders,  57  N.  H.  618;  Swink  v.  French, 
11  Lea,  78;  but  see  Byers  v.  Wallace,  87  Tex.  503,  511  ;  Wise  v. 
Wytin,  59  Miss.  588  ;  Jackson  v.  Jackson,  80  Md.  176).  A  person's 
age  may  be  a  question  of  pedigree  ( Watson  v.  Brewster,  1  Pa.  381  ; 
Conn.  Life  Ins.  Co.  v.  Schweuk,  94  U.  S.  593,  598),  and  he  may  testify 
to  his  own  age,  stating  what  he  learned  thereon  from  deceased  parents, 
from  family  tradition,  etc.  (Slate  v.  Marshall,  137  Mo.  463;  Covmi.  v. 
Stevenson,  142  Mass.  466  ;  State  v.  McClain,  49  Kan.  730  ;  Morrison 
v.  Emslcy,  53  Mich.  564  ;  People  v.  Rats,  1 15  Cal.  132  ;  Holton  v.  Man- 
teujfel,%\  Minn.  185;  Stevenson  v.  Kaiser,  29  N.  Y.  S.  1122);  some- 
times his  testimony  has  been  received,  though  his  parents  were  still 
living  (  West  Virginia  v.  Cain,  9  W.  Va.  559  ;  Pearce  v.  Kyzer,  16  Lea, 
521  ;  cf.  Krcitz  v.  Behrensmeyer,  125  111.  141).  The  personal  appear- 
ance of  the  person  whose  age  is  in  question  may  also  be  considered 
by  the  jury.  Hermann  v.  State,  73  Wis.  248  ;  Comm.  v.  Phillips,  162 
Mass.  504.] 

8  Davies  v.  Lowndes,  6  M.  &  G.  527.  [Jewell's  Lessee  v.  Jewell, 
I  How.  (U.  S.)  219,  231  ;  Eisenlordv.  Clum,  126  N.  Y.  552,  565.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  105 

any  document  or  upon  anything  in  which  statements  as 
to  relationship  are  commonly  made.1 

The  conditions  above  referred  to  are  as  follows — 

( 1 )  Such  declarations  are  deemed  to  be  relevant  only 
in  cases  in' which  the  pedigree  to  which  they  relate  is  in 
issue,  and  not  to  cases  in  which  it  is  only  relevant  to  the 
issue  ; 2 

(2)  They  must  be  made  by  a  declarant  shown  to  be 
legitimately  related  by  blood  to  the  person  to  whom  they 
relate ;  or  by  the  husband  or  wife  of  such  a  person.3 


1  Illustration  (c). 

2  Illustration  (b).  \Comm.  v.  Felch,  132  Mass.  22;  but  see  North 
Brookpeld  v.  Warren,  16  Gray,  174.  Thus  birth,  marriage,  and  death 
cannot  be  proved  by  such  evidence  in  cases  in  which  pedigree  is  not 
in  issue.  Blaisdell  v.  Bickum,  139  Mass.  250  ;  Eisenlord  v.  Clum, 
126  N.  Y.  552,  566  ;  Ross  v.  Loomis,  64  la.  432.] 

3  Shrewsbury  Peerage  Case,  7  H.  L.  C.  26.  For  Scotch  law,  see 
Laziderdale  Peerage  Case,  10  App.  Cas.  692  ;  also  Lovat  Peerage 
Case,  Id.  763.  In  In  re  Turner,  Glenister  v.  Harding,  29  Ch.  Div. 
985,  a  declaration  by  a  deceased  reputed  father  of  his  daughter's 
illegitimacy  was  admitted  on  grounds  not  very  clear  to  me,  and  on  the 
authority  of  two  Nisi  Prius  cases,  Morris  v.  Davies,  3  C.  &  P.  215,  and 
1  Mo.  &  Ro.  269.  See  note  to  Art.  34.  [The  rule  generally  stated  in 
American  cases  is  that  the  pedigree  of  a  person  may  be  shown  by  the 
declarations  of  deceased  persons  related  to  him  by  blood  or  marriage 
(Gr.  Ev.  i.  §  103  ;  Northrop  v.  Hale,  76  Me.  306  ;  Haddock  v.  B.  &*M.R. 
Co.,  3  Allen,  298  ;  Sitter  v.  Gehr,  105  Pa.  577  ;  Conn.  Life  Ins.  Co.  v. 
Schwenk,  94  U.  S.  593,  598).  But  whether  all  relatives  by  marriage, 
both  near  and  remote,  are  competent  to  make  such  declarations  is 
undetermined  (see  People  v.  Fulton  Fire  Ins.  Co.,  25  Wend.  205).  In 
Jewell ' s  Lessee  v.  Jewell,  1  How.  (U.  S.)  219,  the  declarations  of  a 
deceased  husband,  that  the  parents  of  his  wife  were  not  married,  were 
received.  So  the  declarations  or  conduct  of  deceased  persons  may 
be  shown  to  prove  their  children  or  grandchildren  illegitimate  {Had- 
dock v.  B.  &>  M.  R.  Co.,  3  Allen,  298 ;  Barnum  v.  Barnum,  42  Md. 
251  ;  but  see  Flora  v.  Anderson,  75  F.  R.  217),  or  to  prove  legitimacy 
(Kenyon  v.  Ashbridge,  35  Pa.  157;  cf.  Alexander  v.  Chamberlain,  1 
T.  &  C.  600).  The  declarations  of  a  deceased  woman  have  been 
received  to  show  her  sister's  son  to  be  illegitimate  {Northrop  v.  Hale, 
76  Me.  306).     But  the  relationship  of  the  declarant  must  in  any  case 


106  A  DIGEST  OF  [Part  I. 

(3)  They  must  be  made  before  the  question  in  relation 
to  which  they  are  to  be  proved  has  arisen ;  but  they  do 
not  cease  to  be  deemed  to  be  relevant  because  they  were 
made  for  the  purpose  of  preventing  the  question  from 
arising.1 

This  condition  applies  also  to  statements  as  to  public 
and  general  rights  or  customs  and  matters  of  public  and 
general  interest. 

Illustrations. 

(a)  The  question  is,  which,  of  three  sons  (Fortunatus,  Stephanus,  and 
Achaicus)  born  at  a  birth  is  the  eldest. 

The  fact  that  the  father  said  that  Achaicus  was  the  youngest,  and 
he  took  their  names  from  St.  Paul's  Epistles  (see  1  Cor.  xvi.  17),  and 
the  fact  that  a  relation  present  at  the  birth  said  that  she  tied  a  string 
round  the  second  child's  arm  to  distinguish  it,  are  relevant.2 

(b)  The  question  is,  whether  A,  sued  for  the  price  of  horses  and 
pleading  infancy,  was  on  a  given  day  an  infant  or  not. 

The  fact  that  his  father  stated  in  an  affidavit  in  a  chancery  suit,  to 


be  shown  by  other  evidence  than  the  declarations  themselves  (Black- 
burn v.  Crawfords,  3  Wall.  175;  Lamoreaux  v.Att'y  General,  89  Mich. 
146;  Thompson  v.  Wool/,  8  Or.  454);  it  is  said,  however,  that  onl> 
slight  proof  of  such  relationship  will  be  required  (Fulkerson  v.  Holmes, 
117  U.  S.  389 ;  see  Northrop  v.  Hale,  76  Me.  306,  309). 

The  declarations  of  deceased  neighbors,  acquaintances,  servants,  or 
other  strangers  are  not  competent  evidence.  In  re  Seabtiry,  1  App. 
Div.  (N.  Y.)  231  ;  Chapman  v.  Chapman,  2  Ct.  347 ;  Cames  v.  Cran- 
dall,  10  la.  377  ;  De  Haven  v.  De  Haven,  77  Ind.  236;  and  cases  supra; 
contra,  Carter  \.  Montgomery,  2  Tenn.  Ch.  216.] 

1  Berkeley  Peerage  Case,  4  Camp.  401-417  ;  and  see  lovat  Peerage 
Case,  10  App.  Cas.  797.  [The  form  in  which  this  rule  is  usually  stated 
is  that  the  declarations  must  have  been  made  ante  litem  mota?n,  i.  e., 
before  a  controversy  arose  about  the  matter.  People  v.  Fulton  Fire 
Ins.  Co.,  25  Wend.  205  ;  Stein  v.  Bowman,  13  Pet.  209;  Chapman  v. 
Chapman,  2  Ct.  347 ;  Northrop  v.  Hale,  76  Me.  306 ;  Metheny  v.  Bohn, 
160  111.  263  ;  Comm.  v.  Fetch,  132  Mass.  23  ;  Barnttm  v.  Barnum,  42 
Md.  251,  304  ;  Caujolle  v.  Ferric",  23  N.  Y.  90,  104.] 

2  Vin.  Abr,  tit.  Evidence,  T.b.91.    The  report  calls  the  son  Achicus. 


(map.  IV.]  THE  LAW  OF  EVIDENCE.  107 

which  the  plaintiff  was  not  a  party,  that  A  was  born  on  a  certain  day, 
is  irrelevant.1 

(c)  The  question  is,  whether  one  of  the  cestuis  que  vie  in  a  lease  for 
lives  is  living. 

The  fact  that  he  was  believed  in  his  family  to  be  dead  is  deemed  to 
be  irrelevant,  as  the  question  is  not  one  of  pedigree.2 

{d)  The  following  are  instances  of  the  ways  in  which  statements  as 
to  pedigree  may  be  made :  By  family  conduct  or  correspondence  ;  in 
books  used  as  family  registers  ;  in  deeds  and  wills  ;  in  inscriptions  on 
tombstones,  or  portraits  ;  in  pedigrees,  so  far  as  they  state  the 
relationship  of  living  persons  kgibwn  to  the  compiler.3 

/•/  ''Article  32.* 
evidence  given  in  former  proceeding,  when  relevant. 

Evidence  given  by  a  witness  in  a  previous  action  is 
relevant  for  the  purpose  of  proving  the  matter  stated  in 
a  subsequent  proceeding,  or  in  a  later  stage  of  the  same 


*  See  Note  XXII.  [Appendix]. 

1  Guthrie  v.  Haines,  13  O.  B.  D.  818  (1884).  In  this  case  all  the 
authorities  on  this  point  are  fully  considered. 

2  Whittuck  v.  Walters,  4  C.  &  P.  375.  [For  cases  in  which  death 
has  been  deemed  a  question  of  pedigree,  see  Cochrane  v.  Libby,  18 
Me.  39 ;  Webb  v.  Richardson,  42  Vt.  465  ;  Clark  v.  Owens,  18  N.  Y. 
434-] 

3  In  1  Ph.Ev.  203-215,  and  T.  E.  ss.  583-7,  these  and  many  other  forms 
of  statement  of  the  same  sort  are  mentioned  ;  and  see  Davies  v. 
Lowndes,  6  M.  &  G.  527.  [See  Bassom  v.  Forsyth,  32  N.  J.  Eq.  277, 
note.  The  following  are  instances :  family  conduct  or  reputation 
{Eaton  v.  Tallmadge,  24  Wis.  217;  Clark  v.  Owens,  18  N.  Y.  434; 
Harland  v.  Eastman,  107  111.  535  ;  Pickens's  Estate,  163  Pa.  14),  at 
least,  if  the  reputation  be  based  upon  declarations  of  deceased  mem- 
bers of  the  family  {Hurlbut's  Estate,  68  Vt.  366)  ;  family  Bible  {Green- 
leaf  v.  Dubuque,  etc.  R.  Co.,  30  la.  301  ;  Himt  v.  Johnson,  19  N.  Y.  279, 
286)  ;  will  {Pearson  v.  Pearson,  46  Cal.  610)  ;  parchment  pedigree  and 
inscription  on  tombstone  {North  Brookficld  \.  Warren,  16  Gray,  171  ; 
McClaskey  v.  Parr,  54  F.  R.  781)  ;  a  soldier's  private  record  book  of 
pedigree  {Hunt  v.  Order  of  Chosen  Friends,  64  Mich.  671) ;  deeds 
{Scharffv.  Keener,  64  Pa.  376  ;  Fulkerson  v.  Holmes,  117  U.  S.  389). 
The  persons  executing  such  instruments  must  have  been  relatives 
{Sitlerv.  Gehr,  105  Pa.  577);  as  to  the  testimony  of  a  witness  who 


ioS  A   :  OF  [Part  I. 


proceeding',  when  the  witness  is  dead,1  or  is  mad,2  or  so 
ill  that  he  will  probably  never  be  able  to  travel,3  or  is 
kept  out  of  the  way  by  the  adverse  party,4  or  in  civil,  but 
not,  it  seems,  in  criminal,  cases,  is  out  of  the  jurisdiction 
of  the  court,5  or,  perhaps,  in  civil,  but  not  in  criminal, 
cases,  when  he  cannot  be  found.6 


derives  his   information  from  documents,  etc.,  of  these  kinds,  see 
Eastman  v.  Martin,  19  N.  H.  152.] 

1  Mayor  of  Doncaster  v.  Day,  3  Tau.  262. 

2  R.  v.  Eriswell,  3  T.  R.  720. 

3  R.  v.  Hogg,  6  C.  &  P.  176. 

4  R.  v.  Scaife,  17  Q.  B.  238,  243. 

*  Fry  v.  Wood,  1  Atk.  444 ;   R.  v.  Scaife,  17  Q.  B.  243. 

6  Godbolt,  p.  326,  case  418  ;  R.  v.  Scaife,  ij  Q.  B.  243.  [The  death 
of  the  witness  will  in  all  States  admit  his  former  testimony.  Insanity, 
also,  is  generally  deemed  a  sufficient  ground  (  Whitaker  v.  Marsh,  62 
N.  H.  477;  Stein  v.  Swensen,  46  Minn.  360;  Howard  v.  Patrick,  38 
Mich.  795  ;  Morehouse  v.  Morehouse,  17  Abb.  N.  C.  407).  As  to  other 
disabilities,  there  is  much  difference  of  doctrine.  Thus,  in  civil  cases, 
the  New  York  rule  is  that  absence  from  the  jurisdiction,  or  the  fact  that 
the  witness  cannot  be  found,  is  not  enough  (  Weeks  \.Lowerre,Z  Barb. 
530  ;  Mutual  Life  his.  Co.  v.  Anthony,  50  Hun,  101)..  In  Pennsylvania 
such  evidence  is  received,  if  the  witness  has  died,  has  become  insane, 
is  sick  and  unable  to  attend,  has  lost  his  memory  through  disease  or 
old  age,  is  out  of  the  jurisdiction,  cannot  be  found,  or  has  become  in- 
competent to  testify  by  reason  of  the  death  of  the  opposite  party  to 
the  suit  (  Walbridge  v.  Knippcr,  96  Pa.  48  ;  Ballman  v.  Heron,  169  Pa. 
510;  Thornton  v.  Britton,  144  Pa.  126).  In  Illinois,  death,  insanity,  or 
the  keeping  of  the  witness  away  by  the  adverse  party,  is  sufficient  {Stout 
v.  Cook,  47  111.  530;  cf.  Cassadayx.  Trustees,  105  111.  560).  Absence  from 
the  jurisdiction  is  held  sufficient  in  California,  Nebraska,  Michigan,  and 
Iowa  {Benson  v.  Shotwell,  103  Cal.  163;  Young  v.  Sage,  42  Neb.  38; 
Hudson  v.  Roos,  76  Mich.  173;  cf.  Kellogg  v.  Secord,  42  Mich.  318; 
Fleming  v.  Shenandoah,  71  la.  456;  cf.  Bank  of  Monroe  v.  Gifford, 
79  la.  300) ;  but  not  in  New  Jersey  {Berney  v.  Mitchell,  34  N.  J.  L.  337, 
and  that,  too,  even  though  he  cannot  be  found,  Id.) ;  nor  in  Missis- 
sippi {Gastrch l\.  Phillips,  64  Miss.  473);  in  Minnesota,  if  a  witness 
resides  beyond  the  jurisdiction  of  the  court,  his  former  testimony  may 
be  proved  {Minneapolis  Mill  Co.  v.  Minn.  etc.  R.  Co.,  51  Minn.  304; 
S.  P.  Dunbar  v.  McGill,  69  Mich.  297).  Sickness  which  renders  the 
witness  unable  to  attend  is  sometimes  held  sufficient  {Chase  v.  Spring- 
vale  Mills  Co.,  75  Me.  156  ;  Scoville  v.  Hannibal,  etc.  R.  Co.,  04  Mo. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  109 

Provided  in  all  cases — 

(1)  That  the  person  against  whom  the  evidence  is  to 


84  ;  cf.  Central  R.  Co.  v.  Murray,  97  Ga.  326  ;  Bemey  v.  Mitchell,  34 
N- J-  L.  337,341). 

In  criminal  cases,  death  of  the  witness  is  deemed  sufficient  {Mattox 
v.  U.  S.,  156  U.  S.  237 ;  Bass  v.  State,  136  Ind.  165  ;  State  v.  Elliott, 
90  Mo.  350;  State  v.  George,  60  Minn.  503  ;  Bar.nett  v.  People,  54  111. 
325  ;  People  v.  Dowdigan,  67  Mich.  95  ;  Jackson  v.  Slate,  81  Wis.  127; 
State  v.  Fitzgerald,  63  la.  268) ;  but  not  his  absence  from  the  juris- 
diction (U.  S.  v.  Angell,  11  F.  R.  34  ;  Brogy  v.  Comm.,  10  Gratt. 
722 ;  People  v.  Newman,  5  Hill,  295  ;  People  v.  Gordon,  99  Cal.  227; 
Pittman  v.  State,  92  Ga.  480 ;  Owens  v.  State,  63  Miss.  450 ;  contra, 
McNamara  v.  Sfa/i,  60  Ark.  400 ;  Thompson  v.  State,  106  Ala.  67,  if 
the  absence  be  permanent  or  indefinite);  nor  his  illness  {Comm.  v. 
McKenna,  158  Mass.  207;  State  v.  Staples,  47  N.  H.  113).  But  if  the 
witness  is  wrongfully  kept" away  by  the  defendant,  the  former  evidence 
against  such  defendant  has  been  received  {Reynolds  v.  U.  S.,  98  U.  S. 
145  ;  Stale  v.  tlouser,  26  Mo.  431  ;  contra,  Bergen  v.  State,  17  111.  426). 
And  now,  in  some  States,  by  statute,  depositions  given  on  a  prelimi- 
nary examination  before  a  magistrate  may  be  read  in  evidence  on  the 
trial,  if  the  witness  is  dead,  or  insane,  or  cannot  with  due  diligence  be 
found  {People  v.  Fish,  125  N.  Y.  137  ;  People  v.  Gardner,  98  Cal.  127  ; 
State  v.  King ,  86  N.  C.  603  ;  cf .  Mattox  v.  U.  S.,  1 56  U.  S.  237 ;  the 
rule  in  Pennsylvania  is  broader  still,  Comm.  v.  Cleary,  148  Pa.  26). 
The  constitutional  provision  that  the  defendant  shall  be  confronted 
with  the  witnesses  against  him  is  generally  held  not  to  exclude  this 
kind  of  evidence  {People  v.  Sligh,  48  Mich.  54  ;  see  all  the  cases  in 
this  paragraph). 

The  former  testimony  maybe  proved  by  any  witness  who  heard  and 
remembers  it,  if  he  can  state  the  substance  of  the  whole  of  it  (  Woods 
v.  Keyes,  14  Allen,  236  ;  Hcplcr  v.  Mt.  Carmel  Bk.,  97  Pa.  420 ;  Har- 
rison v.  Charlton,  42  la.  573  ;  Black  v.  Woodrow,  39  Md.  194  ;  German 
Nat.  Bk.  v.  Leonard,  40  Neb.  677 ;  Fmery  v.  Fowler,  39  Me.  326). 
He  need  only  state  the  substance  of  such  testimony,  not  its  precise 
language  ;  nor  need  his  language  be  even  substantially  the  same 
(Gr.  Ev.  i.  §  165  ;  Ruch  v.  Rock  Island,  97  U.  S.  693  ;  Hepler  v.  Mt. 
Carmel  Bk.,  97  Pa.  420 ;  U.  S.  v.  Macomb,  5  McL.  286  ;  State  v.  Able, 
65  Mo.  357;  Summons  v.  Slate,  5  O.  St.  325;  Lime  Rock  Bk.  v.  Hewett, 
52  Me.  531  ;  State  v.  O 'Brien,  81  la.  88).  But  in  Massachusetts  sub- 
stantially the  original  language  must  be  given  {Costigan  v.  Lunt,  127 
Mass.  354).  The  New  York  cases  seem  to  support  the  former  rule, 
but  they  do  not  appear  to  be  entirely  in  accord  {Crawford  v.  Loper, 


no  A  DIGEST  OF  [Pari  j 

be  given  had  the  right  and  opportunity  to  cross-examine 
the  declarant  when  he  was  examined  as  a  witness;1 

(2)  That  the  questions  in  issue  were  substantially  the 
same  in  the  first  as  in  the  second  proceeding- ; ' 


25  Barb.  449;  Martin  v.  Cope,  3  Abb.  Dec.  182;  Clark  v.  Vorce,  15 
Wend.  193  ;  Wilbur  v.  Selden,  6  Cow.  162).  In  Mclntyre  v.  N.  Y.  C. 
R.  Co.,  27  N.  Y.  287,  291,  a  witness,  who  took  minutes  of  the  deceased 
witness's  former  testimony,  said  : — "  I  designed  to  take  the  substance 
of  the  testimony  as  given  by  the  witness,  and  presume  I  have ;  I 
have  no  recollection  of  the  testimony  aside  from  what  I  have  here ; 
should  judge  that  it  was  not  possible  for  me  to  take  the  whole  testi- 
mony verbatim;  did  not  aim  to  take  more  than  the  substance."  On 
this  basis  the  testimony  of  the  deceased  witness  was  allowed  to  be 
proved. 

Such  former  testimony  may  be  proved  by  a  stenographer  from 
memory  {Moore  v.  Moore,  39  la.  461)1  or  by  using  his  minutes  to 
refresh  recollection  {Sage  v.  State,  127  Ind.  15  ;  State  v.  George,  60 
Minn.  503) ;  by  a  juror  who  heard  it  (Huichings  v.  Corgan,  59  111.  70); 
by  an  attorney  (Earl  v.  Tapper,  45  Vt.  275;  Costigan  v.  Lunt,  127 
Mass.  354,  who  may  refresh  his  recollection  by  his  minutes,  Id.) ;  by 
the  judge's  minutes,  duly  authenticated  by  him  as  to  completeness 
and  accuracy  (Martin  v.  Cope,  3  Abb.  Dec.  182  ;  Whitcher  v.  Morey, 
39  Vt.  459) ;  by  the  minutes  of  stenographers,  counsel,  masters  in 
chancery,  etc.,  if  they  are  duly  shown  to  have  been  taken  correctly 
(Luctgcrt  v.  /  'olker,  153  111.  385  ;  Labar  v.  Crajie,  56  Mich.  585  ;  Jack- 
son v.  State,  81  Wis.  127;  Qiiinn  v.  Halbert,  57  Vt.  178;  Rhine  v. 
Robinson,  27  Pa.  30;  Yale  v.  Conistock,  112  Mass.  267);  by  a  bill  of 
exceptions  or  "case,"  duly  authenticated  as  containing  the  evidence 
fully  and  accurately  (Davis  v.  Kline,  96  Mo.  401  ;  Slingerlainl  v. 
Slingerland,  46  Minn.  100;  Wilson  v.  Noonan,  35  Wis.  321  ;  cf.  Solo- 
mon R.  Co.  v.  Jones,  34  Kan.  443  ;  contra,  Stem  v.  People,  102  111.  540); 
and  by  other  like  methods. 

These  rules  apply  also  to  the  former  testimony  of  a  deceased  party. 
But  by  statute  in  some  States,  if  this  testimony  is  not  proved  on  the 
second  trial,  the  surviving  party  cannot  be  a  witness  to  testify  against 
the  decedent's  representatives  (Emerson  v.  Bleakley,  2  Abb.  Dec.  22  ; 
Bradley  v.  Mirick,^\  N.  Y.  293  ;  Stewart  v.  First  Nat.  Bk.,  43  Mich. 
257  ;  see  Blair  v.  Ellsworth,  55  Vt.  415). 

Former  testimony  given  before  arbitrators  may  be  proved.  Wal- 
bridge  v.  Knipper,  96  Pa.  48  ;  Bailey  v.  Woods,  17  N.  H.  365  ;  contra, 
Jessup  v.  Cook,  6  N.  J.  L.  434  ;  cf.  Jackson  v.  Bailey,  2  Johns.  17.] 

1  [See  p.  in,  note  1,  and  cases  cited.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  in 

Provided  also — 

(3)  That  the  proceeding,  if  civil,  was  between  the  same 
parties  or  their  representatives  in  interest ; ' 

(4)  That,  in  criminal  cases,  the  same  person  is  accused 
upon  the  same  facts.2 

If  evidence  is  reduced  to  the  form  of  a  deposition,  the 
provisions  of  Article  90  apply  to  the  proof  of  the  fact  that 
it  was  given.3 

The  conditions  under  which  depositions  may  be  used 
as  evidence  are  stated  in  Articles  140-142. 


1  Doe  v.  Tat  ham,  1  A.  &  E.  319;  Doe  v.  Derby,  1  A.  &  E.  783,  785, 
789.  See,  as  a  late  illustration,  as  to  privies  in  estate,  Hanover  v. 
Honifray,  19  Ch.  D.  224.  In  this  case  the  first  set  of  proceedings 
was  between  lords  of  the  same  manor  and  tenants  of  the  same  manor 
as  the  parties  to  the  second  suit.  [Osborn  v.  Pell,  5  Den.  370 ;  Jackson 
v.  Crissey,  3  Wend.  251 ;  Chase  v.  Springvale  Mills  Co.,  75  Me.  156; 
Walbridge  v.  Knipper,  96  Pa.  48,  5 1  ;  Marshall  v.  Hancock,  80  Cal. 
82 ;  Lane  v.  Brainerd,  30  Ct.  565  ;  Orr  v.  Hadley,  36  N.  H.  575  ;  and 
cases  supra.  It  is  enough  that  the  opportunity  for  cross-examination 
exist,  though  it  is  not  exercised  (Bradley  v.  Mirick,  91  N.  Y.  293). 
Privies  in  blood,  in  law,  or  in  estate,  are  "representatives  in  interest" 
within  this  rule  (Jackson  v.  Lawson,  15  Johns.  539;  Yale  v.  Comstock, 
1 12  Mass.  267).  So  the  plaintiffs  in  one  suit  may  be  defendants  in  the 
other.  And  if  the  parties  to  the  second  suit  were  all  parties  to  the 
first,  the  evidence  is  admissible,  though  there  were  additional  parties 
to  the  first  suit  (Allen  v.  Chouteau,  102  Mo.  309) ;  aliter,  if  new  parties 
are  introduced  into  the  second  suit  (Orr  v.  Hadley,  36  N.  H.  575). 
The  testimony  of  a  deceased  witness  is,  however,  inadmissible,  unless 
he  would,  if  living,  have  been  a  competent  witness  in  the  second  suit 
(Eaton  v.  Alger,  47  N.  Y.  345).  The  testimony  of  a  witness  given  at 
a  coroner's  inquest  is  not  admissible  in  an  action  to  recover  damages 
for  causing  the  death  of  the  deceased,  though  the  witness  has  since 
died  (Cook  v.  N.  Y.  Central  R.  Co.,  5  Lans.  401  ;  Pittsburgh,  etc.  R. 
Co.  v.  McGrath,  115  111.  172  ;  cf.  McLain  v.  Comm.,  99  Pa.  86  ;  U.  S. 
Life  Ins.  Co.  v.  Vocke,  129  111.  557).  The  inquest  is  not  an  action  or 
judicial  proceeding  between  the  parties.] 

'2  Bcestons  Case,  Dears.  405.  [See  the  criminal  cases  cited  in  note 
on  p.  109,  ante.] 

3  [See  Chase  v.  Springvale  Mills  Co.,  75  Me.  156;  People  v.  Pish, 
125  N.Y.  136.] 


ii2  A  DIGEST  OF  [Part 


SECTION   II. 

STATEMENTS  IN  BOOKS,  DOCUMENTS,  AND 
RECORDS,    WHEN  RELEVANT. 

Article  $$. 
recitals  of  public  facts  in  statutes  and  proclamations.1 

When  any  act  of  state  or  any  fact  of  a  public  nature  is 
in  issue  or  is,  or  is  deemed  to  be,  relevant  to  the  issue, 
any  statement  of  it  made  in  a  recital  contained  in  any 
public  Act  of  Parliament,  or  in  any  royal  proclamation 
or  speech  of  the  Sovereign  in  opening  Parliament,  or  in 
any  address  to  the  Crown  of  either  House  of  Parliament, 
is  deemed  to  be  a  relevant  fact.3 

Article  34. 

relevancy  of  entry  in  public  record  made  in  perform- 
ance of  duty. 

An  entry  in  any  record,  official  book,  or  register  kept  in 
any  of  Her  Majesty's  dominions3  or  at  sea,  or  in  any 


1  [This  Article  may  be  adapted  to  American  law  by  making  it  read 
as  follows  :  When  any  act  of  state  or  any  fact  of  a  public  nature  is  in 
issue,  or  is,  or  is  deemed  to  be,  relevant  to  the  issue,  any  statement  of 
it  made  in  a  recital  contained  in  any  public  statute,  or  in  any  procla- 
mation of  the  Executive,  or  in  state  papers  communicated  by  the 
Executive  to  the  Legislature,  or  published  under  public  authority,  or 
in  legislative  journals  or  resolutions,  is  deemed  to  be  a  relevant  fact 
(Gr.  Ev.  i.§49i  ;  McKinnon  v.  Bliss,  21  N.  Y.  206  ;  Radcliffv.  United 
Ins.  Co.,  7  Johns.  38,  51  ;  Root  v.  King,  7  Cow.  613  ;  Spongier  v. 
Jacoby,  14  111.  297  ;  Whiton  v.  Albany,  etc.,  Ins.  Co.,  109  Mass.  24,  and 
cases  cited  ;  Worcester  v.  Northborough,  140  Mass.  397  ;  Clemens  v. 
Meyer,  44  La.  Ann.  390  ;  see  Armstrongs.  U.  S.,  13  Wall.  154).  So 
of  recitals  in  the  official  precept  of  a  governor  (Comm.  v.  Hall,  9 
Gray,  262).  As  to  the  effect  of  recitals  in  private  statutes,  see  McKin- 
non v.  Bliss,  supra.] 

2  R.  v.  Francklin,  17  S.  T.  636  ;  R.  v.  Sutton,  4  M.  &  S.  532. 

3  [For  this  country  this  should  read,  "  in  any  State  or  Territory  or  the 
District  of  Columbia."] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  113 

foreign  country,  stating,  for  the  purpose  of  being  referred 
to  by  the  public,  a  fact  in  issue  or  relevant  or  deemed  to 
be  relevant  thereto,  and  made  in  proper  time  by  any 
person  in  the  discharge  of  any  duty  imposed  upon  him  by 
the  law  of  the  place  in  which  such  record,  book,  or  register 
is  kept,  is  itself  deemed  to  be  a  relevant  fact.1 


1  Sturla  v.  Freccia,  5  App.  Cas.  623  ;  see  especially  pp.  633-4  and 
643-4;  Lyell  v.  Kennedy,  14  App.  Cas.  437;  T.  E.  (from  Greenleaf) 
ss.  1429,  1432.  See  also  Queen  s  Proctor  v.  Fry,  L.  R.  4  P.  D.  230.  In 
hi  re  Turner,  Glenislerv.  Harding,  29  Ch.  D.  990,  Chitty,  J.,  in  a  pedi- 
gree case,  held,  though  with  some  hesitation,  and  though  it  was  not 
necessary  to  the  decision  of  the  case,  that  a  statement  of  age  in  a  bap- 
tismal register,  made  under  52  Geo.  III.  c.  146,  might  be  looked  at  in  a 
question  of  legitimacy.  His  authorities  were  Morris  v.  Davies,  3  C. 
&  P.  215,  and  Cope  v.  Cope,  1  M.  &  R.  269.  These  are  only  Nisi  Prius 
decisions,  though  spoken  of  by  Chitty,  J.,  as  binding  on  him.  See  note 
to  Article  31.  [Gr.  Ev.  i.  §§483-485,  493-495  ;  Evanston  v.  Gunn,  99 
U.  S.  660  ;  Sandy  White  v.  United  States,  164  U.  S.  100  ;  Gurney  v. 
Howe,  9  Gray,  404  ;  Pells  v.  Webquish,  129  Mass.  469  ;  Gait  v.  Gallo- 
ways Pet.  332  ;  Cassaday  v.  Trustees,  105  111.  560;  Bell  v.  Kendrick, 
25  Fla.  778  ;  Succession  of  Justus,  48  La.  Ann.  1096  ;  Jacobi  v.  Order 
of  Germania,  73  Hun,  602  ;  Bissell  v.  Hamblin,  6  Duer,  512  ;  People 
v.  Zeyst,  23  N.  Y.  140  ;  cf.  Tessma?tn  v.  United  Friends,  103  Mich.  185; 
see  Art.  27,  Illustration  (e),  ante.  Thus  records  of  the  weather  kept 
by  officers  of  the  United  States  Signal  Service  are  admissible  {Evans- 
ton  v.  Gunn,  supra  ;  Chicago,  etc.  R.  Co.  v.  Trayes,  17  111.  App.  136  ; 
cf.  People  v.  Dow,  64  Mich.  717). 

This  rule  is  limited  to  such  statements  in  official  documents  as  the 
officers  make  in  the  regular  course  of  official  duty  (Id.;  United  States 
v.  Corwin,  129  U.  S.  381  ;  Rindge  v.  Walker,  61  N.  H.  58 ;  Erwin  v. 
English,  61  Ct.  502). 

The  books  of  a  private  corporation  are  of  the  nature  of  public  books 
as  between  the  members  (Gr.  Ev.  i.  §  493).  When  they  are  duly  kept  in 
the  regular  course  of  business,  they  are,  in  general,  competent  to  show 
the  acts  and  proceedings  of  the  corporation  (  Wctherbee  v.  Baker, 
35  N.  J.  Eq.  501  ;  Ten  Eyck  v.  Railroad  Co.,  74  Mich.  226  ;  Hubbellv. 
Meigs,  50  N.  Y.  480;  Turnpike  Co.  v.  M'Kcan,  10  Johns.  154;  see 
Angell  &  Ames  on  Corp.  §§  679,  681).  So  they  are  evidence  in  favor 
of  the  corporation,  to  show  that  it  was  properly  organized  {McFarlan 
v.  Triton  Ins.  Co.,  4  Den.  392).  But  they  are  not  generally  competent 
evidence  in  favor  cf  the  corporation  against  a  stranger  (Graville  v. 


ii4  A  DIGEST  OF  [Part  I. 


Article  35. 

relevancy  of  statements  in  works  of  history,  maps, 
charts,  and  plans. 

Statements  as  to  matters  of  general  public  history  made 
in  accredited  historical  books  are  deemed  to  be  relevant, 
when  the  occurrence  of  any  such  matter  is  in  issue  or  is, 
or  is  deemed  to  be,  relevant  to  the  issue  ;  but  statements 
in  such  works  as  to  private  rights  or  customs  are  deemed 
to  be  irrelevant.1 

(Submitted)  Statements  of  facts  in  issue,  or  relevant  or 
deemed  to  be  relevant  to  the  issue,  made  in  published 
maps  or  charts  generally  offered  for  public  sale  as  to 
matters  of  public  notoriety,  such  as  the  relative  position 
of  towns  and  countries,  and  such  as  are  usually  repre- 
sented or  stated  in  such  maps  or  charts,  are  themselves 


N.  Y.  C.  R.  Co.,  34  Hun,  224  ;  Railroad  Co.  v.  Cutinington,  39  O.  St. 
327  ;  Chase  v.  Sycamore,  etc.  R.  Co.,  38  111.  215);  nor  even  against  a 
member  or  director,  of  his  contracts  or  private  dealings  with  the 
company,  for  in  that  respect  he  is  to  be  deemed  a  stranger  (Haynes  v. 
Brown,  36  N.  H.  545  ;  Ruddv.  Robinson,  126  N.  Y.  113). 

The  stock  books  of  a  corporation  are  prima  facie  evidence  to  show 
who  are  its  stockholders  (  Turnbull  v.  Payson,  95  U.  S.  418  ;  Vattder- 
iverken  v.  Glenn,  85  Ya.  9  ;  Lehman  v.  Glenn,  87  Ala.  618).  The  right 
of  a  stockholder  to  inspect  the  books  may  be  enforced  by  mandamus 
in  proper  cases  (Phoenix  Iron  Co.  v.  Commonwealth,  113  Pa.  563  ; 
People  v.  Pacific  Mail  Co.,  50  Barb.  280). 

As  to  entries  in  other  books  of  a  private  or  guasi-offycia.]  character, 
see  Art.  27,  ante.] 

1  See  cases  in  2  Ph.  Ev.  155-6,  and  Read  v.  Bishop  of  Lincoln, 
[1892]  A.  C.  644,  at  pp.  652-4.  [McKinnon  v.  Bliss,  21  N.  Y.  206,  216; 
Bogardus  v.  Trinity  Church,  4  Sandf.  Ch.  633;  Crillx.  Rome,  47  How. 
Pr.  400  ;  Morris  v.  Manner,  7  Pet.  554  ;  State  v.  Wagner,  61  Ale.  178, 
188  ;  Spalding  v.  Hedges,  1  Pa.  240,  243.  These  cases  favor  the  view 
that  if  the  author  is  living,  he  should  be  called  as  a  witness  to  be  exam- 
ined as  to  the  sources  and  accuracy  of  his  knowledge.  Mere  local 
tries  arc  nut  admitted  in  evidence.    Roe  v.  St/vug,  107  X.  Y.  350.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  115 

deemed  to  be  relevant  facts;1  but  such  statements  are 
irrelevant2  if  they  relate  to  matters  of  private  concern,  or 


1  In  P.  v.  Orton,  maps  of  Australia  were  given  in  evidence  to  show 
the  situation  of  various  places  at  which  the  defendant  said  he  had 
lived. 

8  E.g.,  a  line  in  a  tithe  commutation  map,  purporting  to  denote  the 
boundaries  of  A's  property,  is  irrelevant  in  a  question  between  A  and 
B  as  to  the  position  of  the  boundaries  :    Wilberforce  v.  Hearfield,  5 

Ch.  Div.  705,  and  see  Hammond  \. ,  10  Ex.  390.     [As  a  general 

rule,  maps,  surveys,  and  plans  of  land  are  not  competent  evidence, 
unless  their  accuracy  is  shown  by  other  evidence  in  the  case  {Johnston 
\.  Jones,  1  Black,  209  ;  Donohue  v.  Whitney,  133  N.  Y.  178 ;  Comm.  v. 
Switzer,  134  Pa.  383  ;  Burwell  v.  Sneed,  104  N.  C.  118  ;  Wilkinson  v. 
State,  106  Ala.  23  ;  Rowland  v.  McCoivn,  20  Or.  538  ;  Whitehouse  v. 
Bickford,  29  N.  H.  471),  as  e.  g.,  by  the- testimony  of  the  surveyors  who 
prepared  them  (Curtiss  v.  Ayrault,  3  Hun,  487).  But  a  map  of  public 
land,  made  by  a  public  surveyor,  and  duly  certified  and  filed  in  a 
public  office,  as  prescribed  by  statute,  is  admissible  perse  {People  v. 
Denison,  17  Wend.  312  ;  S.  P.  Comm.  v.  King,  150  Mass.  221  ;  Henry 
v.  Dulle,  74  Mo.  443  ;  Galvin  v.  Palmer,  113  Cal.  46).  Ancient  maps,, 
duly  authenticated  as  genuine,  are  admissible,  to  show  matters  of 
public  and  general  right  {Lawrence  v.  Tennant,  64  N.  H.  532  ;  Mc- 
Cattslandv.  Fleming,  63  Pa.  36  ;  cf.  Missouriv.  Kentucky,  II  Wall.  395  ; 
see  Art  30,  ante)  ;  or,  in  some  States,  to  establish  private  boundaries 
{Gibson  v.  Poor,  21  N.  H.  440;  Whitmans.  Shaw,  166  Mass.  451) 
But  an  ancient  map  of  partition,  showing  the  division  of  land  among 
private  owners,  is  not  evidence  of  title  {Jackson  v.  Witter,  2  Johns.  180). 

Where  a  plan  or  map  of  land  is  prepared,  and  is  referred  to  in 
making  conveyances  of  such  land,  it  is  evidence  to  show  boundary  or 
location,  or  to  explain  the  contract  {Clark  v.  N.  Y.  Life  Ins.  Co.,  64  X.  V. 
33;  Kingslandv.  Chittenden,  6  Lans.  15  ;  Crawford V.  Loper,  25  Barb. 
449).  So  in  dedicating  land  to  the  public  {Derby  v.  Ailing,  40  Ct.  410). 
But  if  made  by  a  stranger  without  authority,  it  cannot  be  received  to 
vary  or  contradict  a  title  under  a  previous  deed  {Marble  v.  McMinn, 
57  Barb.  610  ;  ct.  Jackson  v.  Frost,  5  Cow.  346).  Sometimes  maps  are 
admissible  by  statute,  as  e.g.,  maps  of  the  public  canals  of  New  York 
{Carpenter  v.  Co  hoes,  81  N.  Y.  21). 

Some  other  rules  as  to  the  admissibility  of  books,  papers,  etc.,  may 
here  be  noticed.  Thus  it  is  generally  held  that  a  medical  or  other 
scientific  treatise  is  not  competent  evidence  to  prove  the  truth  of 
matters  stated  therein  {Comm.  v.  Sturtivant,  117  Mass.  122;  Harris 


n6  A  DIGEST  OF  [Part  I. 

matters  not  likely  to  be  accurately  stated  in  such  docu- 
ments. 


v.  Panama  R.  Co.,  3  Bos.  7  ;  Fox  v.  Peninsular,  etc.  Works,  84  Mich. 
676;  Gallagher  v.  Market  St.  R.  Co.,  67  Cal.  13  ;  Epps  v.  State,  102 
Ind.  539;  Boyle  v.  State,  57  Wis.  472  ;  contra,  Bales  v.  State,  63  Ala. 
30 ;  Burg  v.  Chicago,  etc.  R.  Co.,  90  la.  106  [by  statute]) ;  nor  can  such 
books  be  read  in  argument  to  the  jury  ( Washburn  v.  Cuddihy,  8  Gray, 
430;  Boyle  v.  State,  supra;  People  v.  Wheeler,  60  Cal.  581  ;  but  see 
Richmond's  Appeal,  59  Ct.  226),  nor  given  in  evidence  to  sustain  or 
contradict  the  opinion  of  a  witness  [Davis  v.  State,  38  Aid.  15  ;  Knoll 
v.  State,  55  Wis.  249) ;  nor  is  it  proper  to  examine  a  witness  in  such  a 
way  as  to  get  the  contents  of  such  books  before  the  jury  (  Waterman 
v.  Chicago,  etc.  R.  Co.,  82  Wis.  613  ;  Lilley  v.  Parkinson,  91  Cal.  655  ; 
Marshall  v.  Brown,  50  Mich.  148).  But  such  a  book  may  be  read  to 
discredit  a  witness  when  he  has  referred  to  it  as  supporting  his  state- 
ments (Pinney  v.  Cahill,  48  Mich.  584 ;  Ripon  v.  Bittel,  30  Wis.  614  ; 
N.  J.  Zi)ic,  etc.  Co.  v.  Lehigh,  etc.  Zinc  Co.,  59  N.  J.  L.  189  ;  Blooming- 
ton  v.  Shrock,  1 10  111.  219  ;  Hess  v.  Lowrey,  122  Ind.  225).  An  engrav- 
ing in  a  medical  book  is  not  competent  evidence  {Ordway  v.  Haynes, 
50  N.  H.  159).  So  counsel  should  not  in  general  be  allowed  to  read  to 
the  jury  extracts  from  other  books  or  from  newspapers  {Baldwin  v. 
Bricker,  86  Ind.  221  ;  Williams  v.  Brooklyn  Elev.  R.  Co.,  126  N.  Y.  96). 
The  reading  of  law  books  by  counsel  to  the  jury  is  sanctioned  in  some 
States  (N.  &>  W.  R.  Co.  v.  Harmon's  .ldmr.,83  Va.  553  ;  Hannah  v. 
Slate,  11  Lea,  201),  prohibited  in  others  [Yarbrough  v.  State,  105  Ala. 
45  ;  Lendberg  v.  Iron  Mining  Co.,  75  Mich.  84  ;  Steffenson  v.  Chicago, 
etc.  R.  Co.,  48  Minn.  285),  but  in  many  States  is  subject  to  the  discre- 
tion of  the  trial  court,  which  may  permit  or  refuse  or  limit  the  privilege 
(Comm.  v.  Hill,  145  Mass.  305;  State  v.  Fitzgerald,  130  Mo.  407; 
Gregory  v.  Ohio  Riv.  R.  Co.,  37  W.  Va.  606  ;  Blum  v.  Jones,  86  Tex. 
492  ;  People  v.  Anderso?i,  44  Cal.  65  ;  Curtis  v.  Stale,  36  Ark.  284  ;  cf. 
Williams  v.  Brooklyn  Elev.  R.  Co.,  126  N.  Y.  96).  In  some  States, 
moreover,  where  the  jury  are,  in  criminal  cases,  judges  of  the  law  as 
well  as  of  the  facts,  such  reading  of  lawbooks  is  matter  cf  right  in 
criminal  cases, but  not  permissible  in  civil  cases  (  Wohlford  v.  People, 
148  111.  296  ;  Stout  v.  State,  96  Ind.  407  ;  Johnson  v.  Culver,  1 16  Ind. 
278  ;  State  v.  Whitmore,  53  Kan.  343  ;  Hudson  v.  Hudson,  90  Ga.  582; 
Powell  v.  State,  65  Ga.  707). 

A  price  current  list,  if  shown  by  extrinsic  evidence  to  be  reliable,  is 
competent  to  prove  market  value  {Cliquofs  Champagne,  3  Wall.  114; 
Whelan  v.  Lynch,  60  X.  Y.  469;  Seligman  v.  Rogers,  113  Mo.  642  ; 
see  Whitney  v.  Thacher,  117  Mass.  523  ;  Peter  v.  Thickstun,  51  Mich. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE. 

Articles  36,  37,  38. 
entries  in  bankers'  books.1 


5^Art 


Article  39.* 

JUDGMENT. 

The  word  "judgment "  in  Articles  40-47  means  any  final 
judgment,  order,  or  decree  of  any  court. 

The  provisions  of  Articles  40-45,  inclusive,  are  all  sub- 
ject to  the  provisions  of  Article  46. 

Article  40. 
all  judgments  conclusive  proof  of  their  legal  effect. 

All  judgments  whatever  are  conclusive  proof  as  against 
all  persons  of  the  existence  of  that  state  of  things  which 


*  See  Note  XXIII.  [Appendix]. 
589);  standard  life  and  annuity  tables,  as  the  Northampton  or  Carlisle 
tables,  to  show  expectancy  of  life  (  Vicksburg,  etc.  R.  Co.  v.  Putnam,  1 1 8 
U.  S.  545  ;  Sauter  v.  N.  Y.  C  R.  Co.,  66  N.  Y.  50  ;  Steinbrunner  v.  Pitts- 
burgh, etc.  R.  Co.,  146  Pa.  504  ;  De7iman  v.  Johnston,  85  Mich.  387; 
Joliet  v.  Blower,  155  111.  414);  an  almanac  to  show  time  of  sunrise,  etc. 
{State  v.  Morris,  47  Ct.  179;  Munshower  v.  State,  55  Md.  11).  So 
market  reports. have  been  received  (Aulls  v.  Young,  98  Mich.  231  ;  cf. 
Vogt  v.  Cope,  66  Cal.  31),  and  a  weather  record  kept  at  a  State  asylum 
{De  Armondv.  Neasmith,  32  Mich.  231).  But  a  gazetteer  is  not  ad- 
missible to  prove  relative  distances  of  places  {Spalding  v.  Hedges,  2 
Pa.  240),  nor  an  encyclopaedia  to  prove  facts  of  recent  occurrence 
stated  therein  ( IVhiton  v.  Albany,  etc.  Bis.  Co.,  109  Mass.  24  ;  cf.  Wor- 
den  v.  Humeston,  etc.  R.  Co.,  76  la.  310);  nor  are  law  reports  of  for- 
merly decided  cases  competent  to  prove  the  facts  of  those  cases 
{Mackay  v.  Easton,  19  Wall.  619),  nor  to  prove  a  local  custom  of 
trade.    Iron  Cliffs  Co.  v.  Buhl,  42  Mich.  86.] 

1  [Articles  36,  37,  and  38  state  the  provisions  of  special  English 
statutes  relating  to  entries  in  bankers'  books.  As  they  are  peculiar 
to  English  law,  they  are  not  retained  here  in  the  text,  but  will  be 
found  in  the  Appendix,  Note  XLIX.  As  to  the  admissibility  of  corpo- 
ration books  in  this  country,  see  Articles  27  and  34,  ante,  and  notes.] 


n8  A  DIGEST  OF  [Part  I. 

they  actually  effect,  when  the  existence  of  the  state  of 
things  so  effected  is  a  fact  in  issue  or  is,  or  is  deemed  to 
be,  relevant  to  the  issue.1  The  existence  of  the  judgment 
effecting  it  may  be  proved  in  the  manner  prescribed  in 
Part  II. 

Illustrations. 

(a)  The  question  is,  whether  A  has  been  damaged  by  the  negligence 
of  his  servant  B  in  injuring  C's  horse. 

A  judgment  in  an  action,  in  which  C  recovered  damages  against  A, 
is  conclusive  proof  as  against  B,  that  C  did  recover  damages  against 
A  in  that  action.2 

(/;)  The  question  is,  whether  A,  a  shipowner,  is  entitled  to  recover  as 
for  a  loss  by  capture  against  B,  an  underwriter. 

A  judgment  of  a  competent  French  prize  court,  condemning  the  ship 
and  cargo  as  prize,  is  conclusive  proof  that  the  ship  and  cargo  were 
lost  to  A  by  capture.3 

(c)  The  question  is,  whether  A  can  recover  damages  from  B  for  a 
malicious  prosecution. 

The  judgment  of  a  court  by  which  A  was  acquitted  is  conclusive 
proof  that  A  was  acquitted  by  that  court.4 

(d)  A,  as  executor  to  B,  sues  C  for  a  debt  due  from  C  to  B. 


1  [Gr.  Ev.  i.  §§  527,  538,  539  ;  Dorrellv.  State,  83  Ind.  357  ;  Chamber- 
lain v.  Carlisle,  26  X.  H.  540  ;  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388 ; 
Spencer  v.  Dearth,  43  Vt.  98,  105  ;  Harrington  v.  Wadsworth,  63 
N.  H.  400;  Aron  v.  Chaffe,  72  Miss.  159;  Smith  v.  Chapin,  31  Ct. 
530.  Thus  when  a  judgment  forms  a  muniment  of  title  or  a  link  in 
a  chain  of  title,  it  is  competent  evidence,  not  only  as  against  parties 
and  privies,  but  also  as  against  strangers.  Gage  v.  Goudy,  141  111. 
215  ;  Murray  v.  Deyo,  10  Hun,  3  ;  Railroad  Equipment  Co.  v.  Blair, 
1  15  X.  Y.  607.] 

3  Green  v.  New  River  Company,  4  T.  R.  590.  See  Article  44,  Illus- 
tration (a).  [See  Kip  v.  Brigham,  7  Johns.  168 ;  Dubois  v.  Hermance, 
56  X.  Y.  673  ;  Masser  v.  Strickland,  17  S.  &  R.  354  ;  and  post,  Art.  44, 
Illustration  (ad).] 

:  Involved  in  Geyer  v.  Aguilar,  7  T.  R.  681  ;  [cf.  Rose  v.  Himely,  4 
Cr.  241.] 

4  Leggatt  x.  Tollervey,  14  Ex.  301  ;  and  see  Caddy  v.  Barlow,  1 
Man.  &  R.  277.  [See  Sayles  v.  Briggs,  4  Met.  421  ;  Burt  v.  Place,  4 
Wend.  59I.] 


Chap.  IV.]  .  THE  LAW  OF  EVIDENCE.  119 

The  grant  of  probate  to  A  is  conclusive  proof  as  against  C,  that  A  is 
B's  executor.1 

(e)  A  is  deprived  of  his  living  by  the  sentence  of  an  ecclesiastical 
court. 

The  sentence  is  conclusive  proof  of  the  fact  of  deprivation  in  all 
cases.2 

(/)  A  and  B  are  divorced  a  vinculo  matrimonii  by  a  sentence  of 
the  Divorce  Court. 

The  sentence  is  conclusive  proof  of  the  divorce  in  all  cases.3 


1  Allan  v.  Dundas,  3  T.  R.  125-130.  In  this  case  the  will  to  which 
probate  had  been  obtained  was  forged.  [Kelly  v.lVest,  80  N.  Y.  139  ; 
N.  Y.  Code  Civ.  Pro.  §  2591  ;  Emery  v.Hildrelh,  2  Gray,  228  ;  Day  v. 
Floyd,  130  Mass.  488  ;  Mutual  Ins.  Co.  v.  Tisdale,  91  U.  S.  238,  243  ; 
Steen  v.  Bennett,  24  Yt.  303  ;  Quidort  v.  Pergeaux,  18  N.  J.  Eq.  472. 
So  as  to  guardian  (Farrar  v.  Olmstead,  24  Vt.  123);  or  receiver 
(  Whittlesey  v.  Frantz,  74  N.  Y.  456);  or  trustee  (Basselt  v.  Crafts,  129 
Mass.  513).  But  the  grant  of  administration  upon  the  estate  of  a 
living  person  is  wholly  void  for  lack  of  jurisdiction  (Stevenson  v. 
Superior  Ct.,  62  Cal.  60  ;  Jochumsen  v.  Suffolk  Sav.  Bk.,  3  Allen,  87; 
Melia  v.  Simmons,  45  Wis.  334;  Springer  \.  Shavender,  118  N.  C. 
33;  Thomas  v.  People,  107  111.  517;  Devlin  v.  Comm.,  101  Pa.  273; 
Lavin  v.  Emigrant  Sav.  Bk.,  18  Blatch.  1,  36  ;  cf.  Plume  v.  Howard 
Sav.  Inst.,  46  N.  J.  L.  211).  But  in  New  York,  by  statute,  the  deter- 
mination by  the  surrogate  of  the  fact  of  death  is  deemed  conclusive, 
so  far  as  to  render  the  acts  of  the  administrator  valid  until  his 
authority  is  revoked  (Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y. 
460);  but  this  power  of  the  surrogate  does  not  extend  to  his  clerk 
(S.  C.  76  N.  Y.  316;  cf.  Bolton  v.  Schriever,  135  N.  Y.  65  ;  Davis  v. 
Greve,  32  La.  Ann.  420).  The  U.  S.  Supreme  Court,  however,  holds 
that  a  State  law  declaring  a  judicial  determination  that  a  man  is  dead 
conclusive  upon  him,  though  he  was  not  served  with  process,  and 
vesting  his  property  in  his  administrator,  is  void,  as  depriving  him  of 
his  property  without  due  process  of  law.  Scott  v.  McNeal,  154  U. 
S.  34-] 

*  Judgment  of  Lord  Holt  in  Philips  v.  Bury,  2  T.  R.  346,  351  ;  [cf. 
Boulditi  v.  Alexander,  15  Wall.  131.] 

3  Assumed  in  Needham  v ■.  Bremner,  L.  R.  1  C.  P.  582.  [Hood  v. 
Hood,  no  Mass.  463  ;  Burlenv.  Shannon,  3  Gray,  387  ;  Hunt  v.  Hunt, 
72  N.  Y.  217;  In  re  Eickhoff,  101  Cal.  600;  as  to  impeaching  the 
judgment  for  lack  of  jurisdiction,  see  People  v.  Baker,  76  N.  Y.  78  ; 
Adams  v.  Adams,  154  Mass.  290. 1 


120  A  DIGEST  OF  [Part  I. 

(.£")  [The  question  is,  whether  A,  an  alien  born,  is  a  citizen  of  the 
United  States. 

The  record  of  a  judgment  of  a  competent  court  admitting  him  to 
become  a  citizen  and  reciting  the  facts  which  entitled  him  to  such 
judgment  is  conclusive  proof  of  his  citizenship.]1 


JUDGMENTS   CONCLUSIVE  AS   BETWEEN  PARTIES  AND   PRIVIES   OF 
FACTS   FORMING   GROUND   OF   JUDGMENT. 

Every  judgment  is  conclusive  proof  as  against  parties 
and  privies  of  facts  directly  in  issue  in  the  case,  actually 
decided  by  the  court,  and  appearing2  from  the  judgment 


1  [McCarthy  v.  Marsh,  5  N.  Y.  263  ;  Mutual  Ins.  Co.  v.  Tisdale,  91 
U.  S.  238,  245  ;  People  v.  McGowan,  77  111.  644  ;  State  v.  Macdonald, 
24  Minn.  48  ;  see  Behrensmeyer  v.  Kreitz,  135  111.  591,630.] 

2  [Gr.  Ev.  i.  §  528  et  seq. ;  Shaw  v.  Broadbent,  129  N.  Y.  114;  Mar- 
stellerv.  Marsteller,  132  Pa.  517;  Orthwein  v.  Thomas,  127  111.  554; 
Sanderson  v.  Peabody,  58  N.  H.  116.  But  it  is  generally  held  in  this 
country  that  a  judgment  is  conclusive  between  parties  and  privies  as 
to  facts  actually  decided,  whether  these  do  or  do  not  appear  upon  the 
record  ;  such  as  do  not  so  appear  may  be  shown  by  parol  evidence  to 
have  been  litigated  and  determined  {Campbell  v.  Ra?ikin,  99  U.S. 
261  ;  Bowe  v.  Wilkins,  105  N.  Y.  322  ;  Stone  v.  St.  Louis  Stamping  Co., 
155  Mass.  267  ;  Title  Co.  v.  Shallcross,  147  Pa.  485  ;  Harding  v.  Bader, 
75  Mich.  323  ;  Pahner  v.  Sanger,  143  111.  34  ;  Perkins  v.  Brazos,  66  Ct. 
248  ;  Stale  v.  Waterman,  87  la.  255  ;  see  Art.  44,  Illustration  (cc)). 
But  such  evidence  must  not  contradict  the  record  (  Wilson's  Excr.  v. 
Deen,  121  U.  S.  525;  Lorillard  v.  Clyde,  122  N.  Y.  41  ;  Embden  v. 
Lisherness,  89  Me.  578).  A  judgment  binds  one  who  is  a  real  party 
in  interest,  even  if  he  is  not  a  party  of  record  {Marsh  v.  Smith,  73  la. 
295  ;  Cheney  v.Patton,  144  111.  373  ;  Claflin  v.  Fletcher,  10  Biss.  281). 

A  judgment  ts  said  to  be  conclusive  not  only  as  to  matters  which 
were,  but  also  as  to  those  which,  under  the  issues,  might  have  been, 
litigated  and  determined  in  the  action  {Pray  v.  Hegeman,  98  N.  Y. 
351  ;  Huntley  v.  Holt,  59  Ct.  102  ;  Wright  v.  Anderson,  1 17  Ind.  315  ; 
Bassett  v.  Ct.  Riv.  R.  Co.,  150  Mass.  178  ;  Diamond  State  Iroti  Co.  v. 
Rarig,  93  Ya.  595  ;  Pctersine  v.  Thomas,  28  O.  St.  596).  Thus,  if  part 
of  a  single  cause  of  action  be  sued  on  and  judgment  recovered,  it  bars 


(map.  IV.]  THE  LAW  OF  EVIDENCE.  121 


itself  to  be  the  ground  on  which  it  was  based ;    unless 


an  action  for  the  residue  (Illustrations  (<?),  {g),  (h) ;  Secor  v.  Sturgis, 
16  N.  Y.  548  ;  Baird  v.  U.  S.,  96  U.  S.  430  ;  Bennett  v.  Hood,  1  Allen, 
47  ;  Buck  v.  Wilson,  113  Pa.  423).  So  a  judgment  is  conclusive  as  to 
the  grounds  of  recovery  or  defence  which,  under  the  issues,  might 
have  been  but  were  not  presented  (Illustration  (_/")  ;  Beloit  v.  Morgan, 
7  Wall.  619  ;  Harmon  v.  Auditor,  123  111.  122;  Lieb  v.  Lichtenstein, 
121  Ind.  483)  ;  if,  therefore,  judgment  goes  against  a  defendant,  this 
will  bar  any  subsequent  action  by  him,  based  on  a  ground  of  defence 
which  he  might  have  interposed  in  the  former  suit  (Illustrations  (/), 
(/) ;  White  v.  Merritt,  7  N.  Y.  352  ;  Homer  v.  Fish,  1  Pick.  435  ; 
Gleason  v.  Knapp,  56  Mich.  291  ;  Johnson  Co.  v.  Wharton,  152  U.  S. 
252  ;  Malkmey  v.  Horan,  49  N.  Y.  in  ;  Reich  v.  Cochran,  151  N.  Y. 
122).  But  matters  of  set-off  and  recoupment  (and  sometimes  other 
matters),  though  not  set  up  by  the  defendant  in  actions  where  they 
might  be  so  pleaded,  may  still  be  sued  on  independently,  unless  a 
recovery  upon  them  would  be  inconsistent  with  what  was  decided  by 
the  former  judgment  {Brown  v.  Gallaudet,  80  N.  Y.  413  ;  Malloney 
v.  Horan,  49  N.  Y.  m  ;  Yates  v.  Fassett,  5  Den.  21  ;  Bascovi  v.  Man- 
ning, 52  N.  H.  132;  Fiske  v.  Steele,  152  Mass.  260;  Mimnangh  v. 
Partlin,  67  Mich.  391)  ;  if,  however,  such  matters  are  pleaded  and 
determined  by  way  of  counterclaim,  the  judgment  will  bar  any  sub- 
sequent action  upon  them  {Howe  v.  Lewis,  121  Ind.  no;  Patrick  v. 
Shaffer,  94  N.  Y.  423). 

When  a  second  suit  is  upon  a  differe7it  cause  of  action,  though  be- 
tween the  same  parties,  the  former  judgment  is  a  bar  only  as  to  the 
matters  which  actually  were,  and  not  as  to  those  which  might  have 
been,  litigated  and  determined  {Nesbitt  v.  Riverside  Dist.,  144  U.  S. 
610  ;  Foye  v.  Patch,  132  Mass.  105  ;  Metcalfv.  Gilmore,  63  N.  H.  174  ; 
City  of  Paterson  v.  Baker,  51  N.  J.  Eq.  49  ;  Bond  v.  A/arkstrum,  102 
Mich.  11  ;  Hixson  v.  Ogg,  53  O.  St.  361  ;  Wright  v.  Griffey,  147  111. 
496). 

Some  additional  rules  of  importance  concerning  judgments  are  the 
following  :  {a)  A  judgment,  in  order  to  conclude  parties  and  privies, 
must  be  a  final  decision  on  the  merits  (Gr.  Ev.  i.  §§  529,  530  ;  Webb  v. 
Buckelew,  82  N.  Y.  555).  Thus  a  judgment  of  nonsuit  or  of  dismissal 
of  the  complaint  in  an  action  at  law  does  not  bar  another  action  {Smith 
v.  McNeal,  109  U.  S.  426  ;  Wheeler  v.  Ruckman,  51  N.  Y.  391),  though 
a  dismissal  in  equity  on  the  merits  will  have  that  effect  {Lyon  v.  Perin 
Mfg.  Co.,  125  U.  S.  698  ;  Edgar  v.  Buck,  65  Mich.  356;  aliter,  if  not 
on  the  merits,  Hughes  v.  U.  S.,  4  Wall.  232  ;  Henninger  v.  Heald,  51 
N.  J.  Eq.  74  ;  see  N.  Y.  Code  Civ.  Pro.  §  1209).    So  if  there  be  a  dis- 


122  A  DIGEST  Of  [Par* 


evidence  was  admitted  in  the  action  in  which  the  judg- 


continuance  {Loeb  v.  Willis,  ioo  N.  Y.  231),  or  the  action  be  prema- 
turely brought  {Rose  v.  Hawley,  141  N.  Y.  366  ;  Brackett  v.  People,  115 
111.  29),  or  a  plea  in  abatement  be  sustained  {Atkins  v.  Anderson,  63 
la.  139),  judgment  for  such  causes  is  no  bar.  A  verdict  without  judg- 
ment entered  is  no  bar  {Springer  v.  Bien,  128  N.  Y.  99  ;  Smith  v.  Mc- 
Cool,  16  Wall.  560).  {b)  Judgment  on  demurrer,  rendered  for  defend- 
ant on  the  merits,  is  a  bar  to  another  action  on  substantially  the  same 
complaint ;  but  not  to  an  action  on  a  new  complaint  founded  on  the 
same  transaction  but  containing  new  or  amended  averments  so  as  to 
present  a  good  cause  of  action  {Gould  v.  Evansville  R.  Co.,  91  U.  S. 
533  I  Wiggins  Co.  v.  Ohio,  etc.  R.  Co.,  142  U.  S.  396  ;  Rodman  v.  Mich. 
Cent.  R.  Co.,  59  Mich.  395  ;  Slowellv.  Chamberlain,  60  N.  Y.  272; 
Detrick  v.  Sharrar,  95  Pa.  521  ;  but  see  Lamb  v.  McConkcy,  76  la.  47). 
{c)  Judgment  by  confession  or  default  is  a  bar  {Town  v.  Smith,  14 
Mich.  348  ;  Goebel  v.  Iffla,  in  N.  Y.  170  ;  Last  Chance  Mining  Co.  v. 
Tyler  Co.,  157  U.  S.  683  ;  Spring  Run  Co.  v.  Tosier,  102  Pa.  342);  so  is 
judgment  by  retraxit  {U.  S.  v.  Parker,  120  U.  S.  89),  and  judgment 
entered  upon  an  offer  made  by  the  adverse  party  and  accepted  {Shep- 
herd'v.  Moodhe,  150  N.  Y.  183).  {d)  An  interlocutory  order  is  not,  in 
general,  conclusive  between  parties  (  Webb  v.  Buckelew,  82  N.  Y.  555  ; 
Riggs  v.  Pursell,  74  N.  Y.  380  ;  Selz  v.  Presburger,  49  N.  J.  L.  396 ; 
Allison  v.  Whittier,  101  N.  C.  490  ;  Heidelv.  Be7iedict,  61  Minn.  170; 
Miami  Nat.  Bk.  v.  Barkalow,  53  Kan.  68  ;  but  see  Commrs.  of  Wil- 
son Co.  v.  Mcintosh,  30  Kan.  234);  aliter,  as  to  final  orders  on  the  mer- 
its in  special  proceedings,  where  there  are  opposing  parties  who  have 
full  opportunity  to  be  heard  (Id. ;  Culrose  v.  Gibbons,  130  N.  Y.  447  ; 
Spitley  v.  Frost,  15  F.  R.  299  ;  cf.  Prauenlhal's  Appeal,  100  Pa.  290). 
{e)  A  judgment  of  a  court  of  competent  jurisdiction,  whether  of  law, 
equity,  admiralty,  etc.,  will  bar  an  action  on  the  same  ground  in  an- 
other court  whose  jurisdiction  is  of  a  different  nature  (  Westcott  v.  Ed- 
munds, 68  Pa.  34  ;  Powers  v.  Chelsea  Sav.  Bk.,  129  Mass.  44  ;  Good- 
rich v.  City,  5  Wall.  566  ;  People  v.  Rickert,  159  111.  496).  Thus  if  one 
sues  on  a  contract  at  law  as  it  is,  and  judgment  is  rendered  against 
him,  he  cannot  afterwards  sue  in  equity  to  reform  the  contract 
{Steinbach  v.  Relief  his.  Co.,  77  N.  Y.  498). 

Special  rules  apply  to  particular  actions  or  proceedings  :  {a)  In 
an  action  of  ejectment,  at  common  law,  one  judgment  does  not  bar 
repeated  actions  between  the  same  parties  {Small  v.  Mitchell,  143  U. 
S.  99  ;  Stevens  v.  Hughes,  31  Pa.  381,  384  ;  Sutton  v.  Dameron,  100 
Mo.  141);  but  by  statute  in  some  States  concurrent  judgments  in  two 
successive  actions  will  be  a  bar  {Rlanchard  v.  Brown,  3  Wall.  245  ;  X. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  123 

ment  was  delivered  which  is  excluded  in  the  action  in 
which  that  judgment  is  intended  to  be  proved.1 

Illustrations. 

(a)  The  question  is,  whether  C,  a  pauper,  is  settled  in  parish  A  or 
parish  B. 

D  is  the  mother  and  E  the  father  of  C.  D,  E,  and  several  of  their 
children  were  removed  from  A  to  B  before  the  question  as-  to  C's 
settlement  arose,  by  an  order  unappealed  against,  which  order  de- 
scribed D  as  the  wife  of  E. 

The  statement  in  the  order  that  D  was  the  wife  of  E  is  conclusive 
as  between  A  and  B.2 

{b)  A  and  B  each  claim  administration  to  the  goods  of  C,  deceased. 

Administration  is  granted  to  B,  the  judgment  declaring  that,  as  far 
as  appears  by  the  evidence,  B  has  proved  himself  next  of  kin. 

Afterwards  there  is  a  suit  between  A  and  B  for  the  distribution  of 
the  effects  of  C.  The  declaration  in  the  first  suit  is  in  the  second  suit 
conclusive  proof  as  against  A  that  B  is  nearer  of  kin  to  C  than  A.3 


Y.  Code  Civ.  Pro.  §  1525  ;  Britton  v.  Thornton,  112  U.  S.  526),  while 
in  other  States  one  judgment  is  a  bar  {Sturdy  v.  Jackaway,  4  Wall. 
174).  (b)  A  judgment  for  damages  for  a  nuisance  or  trespass  will  not 
bar  an  action  for  a  continuance  of  the  injury  ;  but  if  the  act  complained 
of  is  permanent  in  its  nature,  prospective  damages  are  recoverable  in 
the  first  action,  and  the  first  judgment  will  therefore  be  a  bar  {Schlitz 
Brewing  Co.  v.  Compton,  142  111.  511  ;  Ulinev.N.  Y.  Cent.  R.  Co., 
101  N.  Y. 98;  Bizerv.  Ottumwa  Co.,yo  la.  145).  (c)  A  decision  upon 
one  writ  of  habeas  corpus,  refusing  to  discharge  a  prisoner,  does  not 
bar  the  issuing  of  another  writ  by  another  court  or  officer  {Bradley  v. 
Beetle,  153  Mass.  154  ;  In  re  Snell,  31  Minn,  no ;  People  v.  Brady,  56 
N.  Y.  182);  aliter,a.s  to  a  decision  discharging  the  prisoner  on  the  same 
state  of  facts  (  Weir  v.  Marley,  99  Mo.  484  ;  McConologue's  Case,  107 
Mass.  154),  and  as  to  a  decision  determining  the  right  to  the  custody 
of  an  infant  child.  Mercein  v.  People,  25  Wend.  64  ;  State  v.  Bechdel, 
37  Minn.  360.] 

XR.  v.  Hutchins,  5  Q.  B.  D.  353,  supplies  a  recent  illustration  of  this 
principle.  [Cf.  Putnam  v.  Clark,  34  X.  J.  Eq.  532  ;  Maybee  v.  Avery, 
18  Johns.  352  ;  Quinn  v.  Quinn,  16  Vt.  426.] 

2 R.  v.  Hartington  Middle  Quarter,  4  E.  &  B.  780  ;  and  see  Flitters 
v.  Allfrey,  L.  R.  10  C.  P.  29  ;  and  contrast  Dover  v.  Child,  1  Ex.  D. 
172  ;  [see  Bethlehem  v.  Watertown,  47  Ct.  237.] 

3  Barrs  v.  Jackson,  1  Phi  11.  582,  587,  588  ;  [see  Caujollev.  Ferrie,  13 
Wall.  465  ;  White  v.  Weatherbee,  126  Mass.  450.] 


124  A  DIGEST  OF  [Part  I. 

(c)  A  company  sues  A  for  unpaid  premium  and  calls.  A  special 
case  being  stated  in  the  Court  of  Common  Pleas,  A  obtains  judgment 
on  the  ground  that  he  never  was  a  shareholder. 

The  company  being  wound  up  in  the  Court  of  Chancery,  A  applies 
for  the  repayment  of  the  sum  he  had  paid  for  premium  and  calls. 
The  decision  that  he  never  was  a  shareholder  is  conclusive  as  between 
him  and  the  company  that  he  never  was  a  shareholder,  and  he  is 
therefore  entitled  to  recover  the  sums  he  paid.1 

(d)  A  obtains  a  decree  of  judicial  separation  from  her  husband  B, 
on  the  ground  of  cruelty  and  desertion,  proved  by  her  own  evidence. 

Afterwards  B  sues  A  for  dissolution  of  marriage  on  the  ground  of 
adultery,  in  which  suit  neither  B  nor  A  can  give  evidence.  A  charges 
B  with  cruelty  and  desertion.  The  decree  in  the  first  suit  is  deemed 
to  be  irrelevant  in  the  second.2 

(e)  [A  sues  B  to  recover  damages  for  the  conversion  of  some  bed- 
quilts  and  obtains  judgment. 

This  judgment  defeats  a  recovery  in  a  subsequent  action  for  the 
conversion  of  a  bed  which  was  taken  by  B  at  the  same  time  with  the 
quilts.]3 

{/)  [A  sues  B  for  the  conversion  of  a  derrick  and  by  mistake  omits 
to  allege  and  claim  certain  special  damages  which  resulted  from  the 
conversion.     He  recovers  judgment  for  the  value  of  the  derrick. 

This  judgment  bars  a  subsequent  action  by  A  to  recover  these 
special  damages.] 4 

(g)  [B  owes  A,  upon  a  running  account  for  meat  bought  from  time 
to  time  during  ten  months,  $160.  A  sues  B  for  gioo  and  recovers 
judgment. 

This  judgment  bars  a  subsequent  action  by  A  for  the  remaining 
$60.] 5  

1  Bank  of  Hindustan,  etc.,  Allison  s  Case,  L.  R.  9  Ch.  App.  24. 

2  Stoate  v.  Stoate,  2  S.  &  T.  223  ;  both  would  now  be  competent  wit- 
nesses in  each  suit.  [See  Woodruff  \.  Woodruff,  11  Me.  475  ;  Bradley 
v.  Bradley,  id.  367.] 

3[Farrington  v.  Payne,  15  Johns.  432;  S.  P.  McCaffrey  v.  Carter, 

125  Mass.  330;  Funk  v.  Funk,  35   Mo.  App.  246;   cf.  Brunsden  v. 
Humphrey,  14  Q.  B.  D.  141  ;  Bliss  v.  Ar.  Y.  Cent.  R.  Co.,  160  Mass. 

447.  455-1 

4  [Sullivan  v.  Baxter,  150  Mass.  261.] 

6  \Memmer  v.  Carey,  30  Minn.  458  ;  Coal  Co.  v.  Brick  Co.,  52  Kan. 
747  ;  Stevens  v.  Lockwood,  13  Wend.  614  ;  contra,  Badger  v.  Titcofnb, 
15  Pick.  409  ;  cf.  Secor  v.  Sturgis,  16  X.  Y.  548.] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  125 

(//)  [B,  A's  tenant,  has  agreed  to  pay  rent  monthly  in  advance. 
When  twenty-five  months'  rent  ^s  in  arrear,  A  brings  one  action 
against  B  for  the  rent  of  the  first  twenty-four  months,  and  another 
action  for  that  of  the  last  month.  This  action  for  a  month's  rent  is 
tried  first  and  A  recovers  judgment. 

This  judgment  bars  the  maintenance  of  the  action  for  the  twenty- 
four  months'  rent.] ' 

(z)  [A,  a  physician,  sues  B,  his  patient,  in  a  justice's  court  to  recover 
the  value  of  his  medical  services,  and  upon  B's  default  to  appear  and 
contest  the  action,  recovers  judgment. 

B  afterwards  sues  A  in  a  superior  court  to  recover  damages  for 
malpractice  in  rendering  said  services.  The  former  judgment  is  con- 
clusive in  bar  of  the  action.  The  alleged  malpractice  being  incon- 
sistent with  the  claim  that  the  physician's  services  were  of  any  value, 
it  follows  that  the  former  judgment,  determining  that  they  did  have 
value,  bars  the  action  for  malpractice.  B  might  have  proved  the 
malpractice  in  the  first  suit  to  prevent  the  recovery  of  judgment  by 
the  physician.]  '2 

00  [A  sues  B  on  a  promissory  note,  and  the  suit  not  being  defended, 
enters  judgment  for  its  full  face  value,  without  crediting  B  with  a 
payment  already  made  thereon.  This  judgment  bars  a  subsequent 
action  by  B  to  recover  the  amount  of  said  payment.] 3 

{k)  [A  sues  B,  his  wife,  for  divorce  on  the  ground  of  desertion. 
Upon  a  prior  petition  by  B  against  A  for  separate  maintenance,  it  was 
decreed  that  B's  living  apart  from  A  was  for  justifiable  cause. 

This  decree  bars  the  action  for  divorce.]4 


1  \Burritt  v.  Belfy,  47  Ct.  323  ;  see  Whitaker  v.  Haivley,  30  Kan. 
317  ;  Reformed  Dutch  Church  v.  Brown,  54  Barb.  191.  The  authori- 
ties are  not  in  accord  as  to  whether  a  judgment  for  an  instalment  of 
interest  upon  a  note,  after  the  principal  is  due,  bars  a  subsequent  ac- 
tion for  the  principal.    Dulancy  v.  Payne,  101  111.  325.] 

2  [Blair  v.  Bartlett,  75  N.  Y.  150  ;  Bell  v.  Merrifield,  109  N.  Y.  202, 
210  ;  S.  P.  Dunham  v.  Bower,  JJ  N.  Y.  76  ;  contra,  Ressequie  v.  Byers, 
52  Wis.  650  ;  Sykes  v.  Bonner,  1  Cine.  (O.)  464  ;  see  Goble  v.  Dillon, 
86  Ind.  327  ;  Lawson  v.  Conaway,  37  W.  Va.  159  ;  Howell  v.  Goodrich, 
69  111.  556  ;  Haynes  v.  Ordway,  58  X.  H.  167  ;  Schopen  v.  Baldwin,  83 
Hun,  234.] 

3[Binck  v.  Wood,  43  Barb.  315  ;  Greenabaimi  v.  Elliott,  60  Mo.  25  ; 
Fuller  v.  Shattuck,  13  Gray,  70  ;  Litch  v.  Clinch,  136  111.  410  ;  but  see 
Lent  v.  N.  Y.  £-=  M.  R.  Co.,  130  N.  Y.  504.] 

4  [Miller  v.  Miller,  150  Mass.  in.] 


126  A  DIGEST  OF  [Part  I. 

(/)  [An  assignee  in  bankruptcy  sued  several  defendants  to  de- 
termine the  title  to  certain  goods,  and  it  was  adjudged  that  the  title 
was  in  him.  One  of  these  defendants,  who  claimed  title  in  himself 
and  had  put  it  in  issue  in  this  suit,  afterwards  sued  another  of  them  to 
recover  the  same  goods. 

The  judgment  in  the  first  suit  is  conclusive  against  the  right  to  re- 
cover in  the  second.] x 

(/;/)  [A  sues  B  for  the  conversion  of  goods  which  are  a  part  of  those 
included  in  a  certain  bill  of  sale  given  by  C  to  B,  and  A  recovers 
judgment  on  the  ground  that  the  bill  of  sale  is  fraudulent  and  void. 
B  afterwards  sues  A  for  the  residue  of  the  goods  covered  by  the  bill 
of  sale. 

The  former  judgment  is  deemed  conclusive  upon  the  question  of 
fraud,  and  defeats  B's  recovery.]2 

(n)  [A  sues  B  to  recover  the  price  of  goods  sold  and  obtains  judg- 
ment. 

Afterwards  A  sues  B  to  recover  damages  for  fraud  in  obtaining  a 
credit  for  the  goods.    The  former  judgment  defeats  recovery.]  3 

Article  42. 

statements  in  judgments  irrelevant  as  between  strangers, 
except  in  admiralty  cases. 

Statements  contained  in  judgments  as  to  the  facts  upon 
which  the  judgment  is  based  are  deemed  to  be  irrelevant 
as  between  strangers,  or  as  between  a  party  or  privy  and 
a  stranger,4  except5  in  the  case  of  judgments  of  courts  of 


1  \Tuska  v.  O'Brien,  68  N.  Y.  446.] 

■  [Doty  v.  Brown,  4  N.  Y.  71;  see  Wilson's  Excr.  v.  Deen,  121  U.  S. 
525  ;  Strauss  v.  Meertief,  64  Ala.  299.] 

a  [Cay /us  v.  N.  Y.  etc.  R.  Co.,  76  N.  Y.  609.  It  is  a  general  rule  that 
a  prior  recovery  will  bar  a  subsequent  action  for  the  same  claim,  though 
the  forms  of  action  be  entirely  different.  Gr.  Ev.  i.  §§  532,  533  ;  Walsh 
v.  Chesapeake,  etc.  R.  Co.,  59  Md.  423  ;  Rendall  v.  School  Dist.,  75  Me. 
358  ;  Bradley  v.  Brigham,  149  Mass.  141.] 

4  [Campbell  v.  Hall,  16  N.  Y.  575  ;  Railroad  Co.  v.  Nat.  Bk.,  102  U. 
S.  14  ;  Jones  v.  Vert,  121  Ind.  140  ;  Wing  v.  Bishop,  3  Allen,  456.] 

5  [This  exception  is  treated  by  Lord  Eldon  as  an  objectionable  anom- 
aly in  Lothian  v.  Henderson,  3  B.  &  P.  545-     See,  too,  Castrique  v. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  127 

admiralty  condemning  a  ship  as  prize.1  In  such  cases  the 
judgment  is  conclusive  proof  as  against  all  persons  of  the 
fact  on  which  the  condemnation  proceeded,  where  such 
fact  is  plainly  stated  upon  the  face  of  the  sentence. 

Illustrations, 
(a)  The  question  between  A  and  B  is,  whether  certain  lands  in  Kent 
had  been  disgavelled.  A  special  verdict  on  a  feigned  issue  between 
C  and  D  (strangers  to  A  and  B),  finding  that  in  the  2d  Edw.  VI.  a  dis- 
gavelling  act  was  passed  in  words  set  out  in  the  verdict,  is  deemed  to 
be  irrelevant.2 


Imrie,  L.  R.  4  E.  &  I.  App.  434-5.  [See  Brigham  v.  Fayerweather, 
140  Mass.  411.] 

1  [A  judgment  of  a  court  of  admiralty  condemning  a  ship  as  prize, 
or  of  any  competent  court  condemning  property  under  laws  of  forfeit- 
ure, belongs  to  the  class  of  judgments  commonly  called  judgments 
in  rem.  It  is  a  general  rule  that  such  judgments  are  conclusive,  not 
only  as  to  parties  and  privies,  but  even  as  to  all  the  world  (Gelston  v. 
Hoyt,  13  Johns.  561,  3  Wheat.  246;  Shores  v.  Hooper,  153  Mass.  228, 
233  ;  Brigham  v.  Fayerweather,  140  Mass.  411,  413  ;  Risley  v.  Phenix 
Bk.,  83  N.  Y.  318,  332).  Decisions  as  to  personal  status,  viz.,  marriage, 
divorce,  bastardy,  etc.,  are  often  included  in  the  same  category  (Gr. 
Ev.  i.  §§  525,  541-546;  McClurgv.  Terry,  21  N.  J.  Eq.  225  ;  see  Art. 
40,  Illustration  (/),  ante).  But  an  adjudication  as  to  personal  status 
may,  in  some  cases,  only  be  effectual  within  the  limits  of  the  State 
in  which  the  decision  is  rendered  {People  v.  Baker,  76  N.  Y.  78  ;  Wh. 
Ev.  ii.  §§  815-818;  cf.  Bishop,  M.  D.  &  S.  ii.  §§  150-158).  So  attach- 
ment suits  against  non-residents  are  in  the  nature  of  actions  in  rem, 
the  property  attached  being  the  res  {Pennoyer  v.  Neff,  95  U.  S.  714  ; 
McKinncy  v.  Collins,  88  N.  Y.  216).  This  general  doctrine  as  to  judg- 
ments in  rem  is  virtually  included  in  Article  40,  supra.  See  Appendix, 
Note  XXIII. 

The  English  rule  stated  in  this  Article,  that  the  judgment  of  con- 
demnation is  conclusive,  not  only  as  to  title  but  also  as  to  the  grounds 
of  condemnation  stated  therein,  is  upheld  also  in  some  American 
courts  (Croudson  v.  Leonard,  4  Cr.  434  ;  Baxter  v.  New  Fug.  /us.  Co., 
6  Mass.  277 ;  see  Citshing  v.  Laird,  107  U.  S.  69,  80 ;  Brigham  v. 
Fayerweather,  140  Mass.  411,413).  But  in  New  York  it  is  only  prima 
facie  evidence  of  such  facts,  and  in  a  collateral  action  such  evidence 
may  be  rebutted.    Dnrant  v.  Abendroth,  97  N.  Y.  132,  141.] 

-  Doe  v.  Brydges,  6  M.  &  G.  282. 


128  A  DIGEST  OF  [Part  I. 

{b)  The  question  is,  whether  A  committed  bigamy  by  marrying  B 
during  the  lifetime  of  her  former  husband  C. 

A  decree  in  a  suit  of  jactitation  of  marriage,  forbidding  C  to  claim 
to  be  the  husband  of  A,  on  the  ground  that  he  was  not  her  husband, 
is  deemed  to  be  irrelevant.1 

(c)  The  question  is,  whether  A,  a  shipowner,  has  broken  a  warranty 
to  B,  an  underwriter,  that  the  cargo  of  the  ship  whose  freight  was  in- 
sured by  A  was  neutral  property. 

The  sentence  of  a  French  prize  court  condemning  ship  and  cargo, 
on  the  ground  that  the  cargo  was  enemy's  property,  is  conclusive  proof 
in  favor  of  B  that  the  cargo  was  enemy's  property',  (though  on  the  facts 
the  court  thought  it  was  not).2 

(d)  [The  question  is,  whether  A  or  C  is  rightfully  entitled  to  hold  a 
public  office. 

A  judgment  in  a  previous  action  between  A  and  B  to  determine  the 
title  to  the  same  office,  in  which  it  was  declared  that  A  had  the  rightful 
title,  is  deemed  to  be  irrelevant  as  against  C] 3 

Article  43. 
effect  of  judgment  not  pleaded  as  an  estoppel. 

If  a  judgment  is  not  pleaded  by  way  of  estoppel,  it  is  as 
between  parties  and  privies  deemed  to  be  a  relevant  fact, 
whenever  any  matter  which  was  or  might  have  been  de- 
cided 4  in  the  action  in  which  it  was  given  is  in  issue,  or 
is  or  is  deemed  to  be  relevant  to  the  issue,  in  any  sub- 
sequent proceeding. 

Such  a  judgment  is  conclusive  proof  of  the  facts  which 
it  decides,  or  might  have  decided,4  if  the  party  who  gives 
evidence  of  it  had  no  opportunity  of  pleading  it  as  an 
estoppel.5 

1  Duchess oj Kingston  s Case, 2S. L.C.760;  [see  William s\.  Williams, 
3  Barb.  Ch.  628.] 

2  Geyer  v.  Aguilar,  7  T.  R.  681  ;  [see  p.  127,  note  1,  ante.'] 

3  [People  v.  Murray,  73  N.  Y.  535.] 

*  [That  a  judgment  is  conclusive  as  to  what  "might  have  been  de- 
cided," see  p.  120,  note  2,  ante.] 
5  [It  is  held  in  a  number  of  the  States  of  this  country  that  a  judg- 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  129 


Illustrations. 

(a)  A  sues  B  for  deepening  the  channel  of  a  stream,  whereby  the 
flow  of  water  to  A's  mill  was  diminished. 

A  verdict  recovered  by  B  in  a  previous  action  for  substantially  the 
same  cause,  and  which  might  have  been  pleaded  as  an  estoppel,  is 
deemed  to  be  relevant,  but  not  conclusive  in  B's  favor.1 

(b)  A  sues  B  for  breaking  and  entering  A's  land,  and  building 
thereon  a  wall  and  a  cornice.  B  pleads  that  the  land  was  his,  and. 
obtains  a  verdict  in  his  favor  on  that  plea. 

Afterward  B's  devisee  sues  A's  wife  (who  on  the  trial  admitted  that 
she  claimed  through  A)  for  pulling  down  the  wall  and  cornice.  As 
the  first  judgment  could  not  be  pleaded  as  an  estoppel  (the  wife's 
right  not  appearing  on  the  pleadings),  it  is  conclusive  in  B's  favor 
that  the  land  was  his.- 


ment  is  equally  conclusive  when  given  in  evidence,  as  if  pleaded, 
even  though  there  was  an  opportunity  to  plead  it  {Chamberlain  v. 
Carlisle,  26  N.  H.  540  ;  Westcott  v.  Edmunds,  68  Pa.  34  ;  Tray  hem  v. 
Colburn,  66  Md.  277  ;  So.  Pac.  R.  Co.  v.  U.  S.,  168  U.  S.  1 ;  see  Foye  v. 
Patch,  132  Mass.  105  ;  Plain  v.  Plain,  45  Vt.  538  ;  Sheldon  v.  Patterson, 
55  111=  507) ;  so  also  as  to  a  foreign  judgment  (  Whiting  v.  Purge/;  78 
Me.  287).  But  in  many  States  a  statutory  rule  requires  that  special 
defences  (under  which  the  defence  of  "  estoppel  by  former  recovery" 
is  ordinarily  included)  be  specially  pleaded,  if  there  is  an  opportunity 
so  to  do,  in  order  that  evidence  thereof  shall  be  admissible  ;  when  so 
pleaded  and  proved  the  judgment  is  conclusive  ;  so  also  if  it  is  proved 
in  cases  where  there  was  no  opportunity  to  plead  it  (Panning  v.  Hiber- 
nia  Ins.  Co.,  37  O.  St.  344  ;  Meiss  v.  Gill,  44  O.  St.  253  ;  Piercy  v. 
Sabin,  10  Cal.  22  ;  IVixson  v.  Devine,  67  Cal.  341 ;  Howe  v.  Minnesota 
Milk  Ci?.,44Minn.  460  ;  Pays  v.  Trulsgn,2$  Or.  109;  Prazillx.  Isham, 
12  N.  Y.  9;  Gregory  x.  Kcnyon,  34  Neb.  640;  Porter  v.  Leache,  56 
Mich.  40).  But  where  a  judgment  is  sought  to  be  used,  not  by  way  of 
estoppel  or  bar  to  the  action,  but  as  evidence  of  a  material  fact  in 
issue,  it  may  be  given  in  evidence  without  being  specially  pleaded. 
Krekeler  v.  Ritter,  62  N.  Y.  372  ;   Swank  v.  St.  Paul  R.  Co.,  61  Minn. 

423-] 

1  Vooght  x.  Winch,  2  B.  &  A.  662  ;  and  see  Feversham  x.  Emerson, 
11  Ex.  391.  [See  Plate  v.  X.  Y.  C.  R.  Co.,  37  N.  Y.  472  ;  Powyer  v. 
Schofield,  1  Abb.  Dec.  177;  Newell  x.  Carpenter,  118  Mass.  411.] 

•  JVhitaker  v.  Jackson,  2  H.  &  C.  9?*  This  hari  previously  been 
doubted.     See  2  Ph.  Ev.  24,  note  4. 


i3o  A  DIGEST  OF  [Part  I. 


Article  44. 
judgments  generally  deemed  to  be  irrelevant  as 

BETWEEN   STRANGERS. 

Judgments  are  not  deemed  to  be  relevant  as  rendering 
probable  facts  which  may  be  inferred  from  their  existence, 
but  which  they  neither  state  nor  decide — 

as  between  strangers  ; ' 

as  between  parties  and  privies  in  suits  where  the  issue 
is  different,  even  though  they  relate  to  the  same  occur- 
rence or  subject-matter  ;2 

or  in  favor  of  strangers  against  parties  or  privies.3 


1  [Gr.  Ev.  i.  §§  522,  523  ;  Bartlett  v.  Boston  Gas  Co.,  122  Mass.  209; 
Schrauth  v.  Dry  Dock  Bk.,  86  N.  Y.  390  ;  see  p.  126,  note  4,  ante.] 

2  [Gr.  Ev.  i.  §§  532,  533  ;  Bell  v.  Merrifield,  109  N.  Y.  202  ;  Coleman  s 
Appeal,  62  Pa.  252  ;  Russell  v.  Place,  94  U.  S.  606  ;  Norton  v.  Huxley, 
13  Gray,  285  ;  see  Illustrations  (ca),  {cb).  So  a  judgment  is  not  binding 
on  the  parties  as  to  matters  not  passed  upon,  though  they  are  stated 
in  the  complaint  {Sweety.  Tuttle,  14  N.  Y.  465),  or  are  given  in  evi- 
dence (see  Illustration  (cc) ;  Belden  v.  State,  103  N.  Y.  1),  or  are  im- 
properly set  up  by  way  of  counterclaim  {People  v.  Denison,  84  N.  Y. 
272);  nor  as  to  matters  which  the  judgment  does  affirm,  but  which  are 
immaterial  to  the  issue  and  not  actually  in  controversy  ( Whitney  v. 
Marshall,  138  Ind.  472  ;  House  v.  Lockzuood,  137  N.  Y.259  ;  Concha  v. 
Concha,  1 1  App.  Cas.  541  ;  Munday  v.  /  'ail,  34  N.  J.  L.  418);  nor  as  to 
matters  which  are  only  incidentally  cognizable,  or  to  be  inferred  by 
argument  from  the  judgment  (Gr.  Ev.  i.  §  528  ;  Hopkins  v.  Lee,  6 
Wheat.  109 ;  Schwan  v.  Kelly,  173  Pa.  65  ;  Kitson  v.  Farwell,  132  111. 
527  ;  Burlen  v.  Shannon,  99  Mass.  200) ;  nor  is  a  judgment  against  a 
party  as  an  individual  binding  on  him  in  a  suit  wherein  he  appears  in 
a  representative  capacity  {Collins  v.  Hydorn,  135  X.  Y.  320  ;  Lander  \. 
A  mo,  65  Me.  26).  A  party  sought  to  be  bound  by  a  former  judgment 
must  have  been  a  party  to  both  actions  in  the  same  character  or 
capacity  (Stale  v.  Branch,  134  Mo.  592;  Fuller  v.  Metropolitan  Ins. 
Co. ,68  Ct  55  ;  Kitts  v.  Willson,  140  Ind.  604).  A  judgment  against  an 
administrator  in  one  State  is  no  evidence  of  debt  in  a  subsequent  ac- 
Uon  in  another  State  against  an  administrator  of  the  same  decedent. 
Johnson  v.  Powers,  139  U.  S.  156;  McGarveyv.  Darnall,  134  111.  367.] 

3  [Burdick  v.  Norwich,  49  Ct.  225  ;  Bissill  v.  Kellogg,  65  X.  Y.  432  ; 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  131 

But  a  judgment  is  deemed  to  be  relevant  as  between 
strangers : 

(1)  if  it  is  an  admission,1  or 

(2)  if  it  relates  to  a  matter  of  public  or  general  interest, 
so  as  to  be  a  statement  under  Article  30.* 

Illustrations. 

(a)  The  question  is,  whether  A  has  sustained  loss  by  the  negligence 
of  B,  nis  servant,  who  has  injured  C's  horse. 

A  judgment  recovered  by  C  against  A  for  the  injury,  though  con- 
clusive as  against  B  as  to  the  fact  that  C  recovered  a  sum  of  money 
from  A,  is  deemed  to  be  irrelevant  to  the  question  whether  this  was 
caused  by  B's  negligence.3 

(ab)  [B  unlawfully  creates  an  obstruction  in  the  street  of  a  city,  and 
A,  being  injured  thereby,  sues  the  city  for  damages.  The  city  gives 
notice  to  B  to  defend  the  action,  and  that  he  will  be  liable  for  the 


Stamp  v.  Franklin,  144  N.  Y.  607  ;  see  Phillips  v.  Jamieson,  51  Mich. 
153.  But  a  judgment  against  one  of  two  or  more  joint  tortfeasors,  if 
followed  by  satisfaction  (not  otherwise),  is  available  to  bar  a  suit  against 
another  (Knapp  v.  Roche,  94  N.  Y.  329  ;  Roodhouse  v.  Christian,  158 
111.  137  ;  The  Beaconsfield,  158  U.  S.  303  ;  Cleveland  v.  Bangor,  87  Me. 
259  ;  Savage  v.  Stevens,  128  Mass.  254  ;  Seilherv.  Phila.  Traction  Co., 
125  Pa.  397);  and  the  rule  is  the  same  as  to  a  judgment  against  one  of 
two  or  more  persons  jointly  and  severally  liable  on  contract  (Sawyer 
v.  White,  19  Vt.  40);  but  judgment  against  one  of  two  or  more  joint 
contractors  bars  an  action  against  the  others,  unless  they  were  out  of 
the  jurisdiction  so  that  they  could  not  be  served  with  process.  Kings- 
ley  v.  Davis,  104  Mass.  178  ;  Russell  v.  McCall,  141  N.  Y.  437,  450; 
Yoho  v.  McGovern,  42  O.  St.  11;  Kendall  v.  Hamilton,  4  App.  Cas. 
504;  cf.  IVegg  Prosserx.  Evans,  [1895]  1  Q.  B.  108.] 

1  [Gr.  Ev.  i.  §  527  a  ;  Rudolph  v.  Landwerlen,  92  Ind.  34  ;  St.  Louis 
Ins.  Co.  v.  Cravens,  69  Mo.  72  ;  Parks  v.  Mosher,  ji  Me.  304,  holding 
it  open  to  explanation  ;  sec  Clark  v.  Dillon,  97  N.  Y.  370.] 

-  [See  Patterson  v.  Games,  6  How.  (U.  S.)  550,  599  ;  People  v.  Buck- 
laud,  13  Wend.  594.] 

3  Green  v.  New  River  Company,  4  T.  R.  589.  [Bank  0/ Oswego  v. 
Babcock,  5  Hill,  152  ;  Grand  Trunk  R.  Co.  v.  Latham,  63  Me.  177; 
Oceanic  Nav.  Co.  v.  Compania,  134  N.  Y.  ^61:  Drummondv  Prest- 
man,  12  Wheat.  515  ;  see  next  note.] 


132  A  DIGEST  OF  [Part  I. 

amount  recovered.     B  does  not  defend  the  action,  and  A  recovers 
judgment. 

In  a  suit  afterwards  brought  by  the  city  against  B  for  indemnity,  the 
prior  judgment  is  conclusive  evidence  against  B  of  the  city's  liability 
to  A,  of  the  amount  of  damages  recoverable,  and  that  the  injury  was 
not  caused  by  any  default  on  A's  part ;  but  is  not  competent  to  prove 
that  the  injury  was  caused  by  B's  negligence,  which  must  therefore  be 
shown.] '  

1  [City  of  Rochester-*.  Montgomery,  ~i  X.  Y.  65  ;  Robbins  v.  CJiicago, 
4  Wall.  657,  2  Black,  418;  Brookville  v.  Arthurs,  130  Pa.  501;  St. 
Joseph  v.  Union  R.  Co.,  1 16  Mo.  636  ;  Boston  v.  Worthington,  10  Gray, 
496  ;  cf.  Mayor  v.  Brady,  151  N  Y.  611  ;  Portland  v.  Richardson,  54 
Me.  46.  The  notice  need  not  be  express  {Village  of  Port  Jervisv. 
First  Nat.  Bk.,  96  N.  Y.  550). 

The  same  principle  applies  in  other  cases  where  one  party  is  prima- 
rily liable,  but  has  a  remedy  over  against  another  to  obtain  indemnity 
[Heiserv.  Hatch,  86  X.  Y.  614  ;  Carleton  v.  Lombard,  149  X.  Y.  137, 
152  ;  Hoppaugh  v.  McGrath,  53  X.  J.  L.  81  ;  Davis  v.  Smith,  79  Me. 
351  ;  Chicago,  etc.  R.  Co.  v.  Packet  Co.,  70  111.  217).  As  a  general 
rule,  a  judgment  against  a  principal  is  not  binding  upon  his  surety 
(though  it  may  be  used  to  prove  the  fact  of  its  recovery),  unless  the 
latter  agreed  to  indemnify  against  the  results  of  the  suit,  or  unless  he 
had  notice  and  opportunity  to  defend  {Thomas  v.  Hubbcll,  15  X.  Y. 
405  ;  Grammes  v.  St.  Paul  Trust  Co.,  147  111.  634  ;  Ball  v.  Chancellor, 
47  X.  J.  L.  125  ;  cf.  Giltinan  v.  Strong,  64  Pa.  242).  But  sureties  upon 
official  bonds,  as  administrators'  bonds,  sheriffs'  bonds,  etc.,  are  often 
held- concluded  by  such  judgments  (in  the  absence  of  fraud  or  collu- 
sion), though  they  had  no  notice,  such  being  deemed  the  obligation 
of  their  contracts  (Harrison  v.  Clark,  87  X.  Y.  572  ;  Wheeler  v.  Sweet, 
137  X.  Y.  435  ;  Tute  v.  James,  50  \'t.  124  ;  McMicken  x.  Comm.,  58  Pa. 
213  ;  Stovall  v.  Banks,  10  Wall.  583  ;  Nevitt  v.  Woodburn,  160  111.  203; 
'Tracy  v.  Goodwin,  5  Allen,  409  ;  cf.  New  Haven  x.  Chidsey,  68  Ct. 
397).  In  some  States,  however,  a  judgment  against  a  principal  in  an 
official  bond  is  only  prima  facie  evidence  against  the  sureties  (Beau- 
chaine  x.  McKinnon,  55  Minn.  318;  Norris  x.  Mersereau,  74  Mich.  687; 
Stephens  v.  Shafer,  48  Wis.  54  ;  cf.  Moses  x.  United  Stales,  166  U.  S. 
571).  As  to  the  different  kinds  of  indemnity  contracts  and  the  neces- 
sity of  giving  notice,  see  Bridgeport  Bis.  Co.  v.  Wilson,  34  X.  Y.  275, 
280  ;  cf.  Konitsky  x.  Meyer,  49  X.  Y.  571. 

A  judgment  recovered  by  the  holder  of  a  bill  or  note  against  an 
indorser  does  not,  unless  it  has  been  satisfied,  bar  an  action  against 
the  acceptor  or  maker.  Gilmore  v.  Ca*~~**  Ma?"  ,7i;  Ra*'lr~id  Co. 
x.  Xat.  Bk.,  102  U.  S.  14. ] 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  133 

(b)  The  question  whether  a  bill  of  exchange  is  forged  arises  in  an 
action  on  the  bill.  The  fact  that  A  was  convicted  of  forging  the  bill 
is  deemed  to  be  irrelevant.1 

(c)  A  collision  takes  place  between  two  ships,  A  and  B,  each  of 
which  is  damaged  by  the  other. 

The  owner  of  A  sues  the  owner  of  B,  and  recovers  damages  on  the 
ground  that  the  collision  was  the  fault  of  B's  captain.  This  judgment 
is  not  conclusive  in  an  action  by  the  owner  of  B  against  the  owner  of 
A,  for  the  damage  done  to  B.2     {Semble,  it  is  deemed  to  be  irrelevant.) :: 

(ca)  [A  recovers  damages  from  B  for  a  wrongful  dismissal  from  B's 
employment  before  the  term  of  service  had  expired. 

This  judgment  does  not  preclude  a  recovery  by  A  in  a  subsequent 
action  of  the  sum  due  for  wages  during  the  time  he  was  actually  em- 
ployed, and  payable  before  the  dismissal.] 4 

(cb)  [The  will  of  A  is  duly  admitted  to  probate  by  a  surrogate's  court 
having  competent  jurisdiction. 

A's  widow  afterwards  brings  action  for  the  admeasurement  of  her 
dower. 

The  surrogate's  record  of  probate  of  A's  will  is  not  deemed  to  be 
relevant  to  prove  A's  death.] 5 

(cc)  [A  sues  B  to  recover  the  value  of  board  furnished  to  B's  wife, 
and  recovers  judgment;  but  the  judgment  does  not  state  whether  it  is 
rendered  (1)  because  B's  wife  had  left  him  on  account  of  his  cruelty, 
or  (2)  because  she  was  absent  from  him  on  his  credit  by  his  consent. 
Evidence  to  support  both  grounds  was  given  on  the  trial. 

A  afterwards  sues  B  to  recover  board  for  a  subsequent  period,  and 


1  Per  Blackburn,  J.,  in  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App.  434. 
[Gr.  Ev.  i.  §  537  ;  Corbley  v.Wilson,  71  111.  209  ;  People  v.  Kenyon,  93 
Mich.  19  ;  State  v.  Bradnack,  69  Ct.  212  ;  see  Mutual  Ins.  Co.  v.  Tis- 
dale,  91  U.  S.  238,  244  ;  Willson  v.  Manhattan  R.  Co.,  2  Misc.  127,  144 
N.  Y.  632  ;  Harger  v.  Thomas,  44  Pa.  128.] 

2  The  Calypso,  1  Swab.  Ad.  28. 

3  On  the  general  principle  in  Duchess  of  Kingston's  Case,  2  S.  L.  C. 
813. 

4  [Perry  v.  Bickerson,Ss  N.  Y.  345;  cf.  Ohnstead v.  Bach.jS  Md. 
I32-] 

"[Carroll  v.  Carroll,  60  N.  Y.  121;  S.  P.  Mutual  Ins.  Co.  v.  Tisdale, 
91  U.  S.  238  ;  cf.  Matter  of  Patteson,  146  N.  Y.  327  ;  Pick  v.  Strong,  26 
Minn.  303  ;  Kearne^  v.  Venn,  15  Wall.  51  :  Bn>ham  v.  Faverisjeat^"r^ 
140  Mass.  41 1.1 


134  A  DIGEST  OF  [Part  I. 

sues  now  expressly  on  the  ground  that  B's  wife  had  left  him  for  his 
cruelty.  The  former  judgment  is  conclusive  evidence  that  B's  wife 
was  absent  from  him  during  the  prior  period  for  some  justifiable  cause, 
but  not  that  that  cause  was  his  cruelty,  unless  the  jury  find,  from  parol 
evidence  submitted  to  show  what  was  proved  in  the  former  trial,  that 
the  former  jury  gave  their  verdict  on  the  ground  of  cruelty.] ' 

{d)  A  is  prosecuted  and  convicted  as  a  principal  felon. 

B  is  afterwards  prosecuted  as  an  accessory  to  the  felony  committer 
by  A. 

The  judgment  against  A  is  deemed  to  be  irrelevant  as  against  B, 
though  A's  guilt  must  be  proved  as  against  B.2 

(<?)  A  sues  B,  a  carrier,  for  goods  delivered  by  A  to  B. 

A  judgment  recovered  by  B  against  a  person  to  whom  he  had  deliv- 
ered the  goods,  is  deemed  to  be  relevant  as  an  admission  by  B  that  he 
had  them.3 

(/)  A  sues  B  for  trespass  on  land. 

A  judgment,  convicting  A  for  a  nuisance  by  obstructing  a  highway 
on  the  place  said  to  have  been  trespassed  on,  is  (at  least)  deemed  to 
be  relevant  to  the  question  whether  the  place  was  a  public  highway 
(and  is  possibly  conclusive).4 

Article  45. 

judgments  conclusive  in  favor  of  judge. 

When  any  action  is  brought  against  any  person  for 
anything  done  by  him  in  a  judicial  capacity,  the  judg- 
ment delivered,  and  the  proceedings  antecedent  thereto, 


1  \Thtrlcn  v.  Shannon,  14  Gray,  433  ;  cf.  Lewis  v.  Ocean  Nav.  Co., 
125  N.  V.  341.] 

'•'  Semble  from  R.  v.  Turner,  1  Moo.  C.  C.  347.  [In  this  country  it  is 
generally  held  that  the  judgment  against  A  is  admissible  in  such  a 
case,  and  is  prima  facie  evidence  of  A's  guilt,  but  not  conclusive.  B 
may,  therefore,  controvert  it.  Levy  v.  People,  80  N.  Y.  327  ;  State  v. 
Mosley,  31  Kan.  355  ;  Anderson  v.  State,  63  Ga.  675  ;  State  v.  Glcim, 
17  Mont.  17  ;  Bishop,  New  Cr.  Pro.  ii.  §  12  ;  cf.  Comm.  v.  Elisha,  3 
Gray,  460 ;  Jones  v.  People,  20  Hun,  545,  81  N.  Y.  637.] 

3  Buller,  N.  P.  242,  b. 

4  Petrie  v.  Nutlall,  1 1  Ex.  569. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  135 

are  conclusive  proof  of  the  facts  therein  stated,  whether 
they  are  or  are  not  necessary  to  give  the  defendant  juris- 
diction, if,  assuming  them  to  be  true,  they  show  that  he 
had  jurisdiction. 

Illustration. 

A  sues  B  (a  justice  of  the  peace)  for  taking  from  him  a  vessel  and 
500  lbs.  of  gunpowder  thereon.  B  produces  a  conviction  before  him- 
self of  A  for  having  gunpowder  in  a  boat  on  the  Thames  (against  2 
Geo.  III.  c.  28). 

The  conviction  is  conclusive  proof  for  B,  that  the  thing  called  a  boat 
was  a  boat.1 

Article  46. 
fraud,  collusion,  or  want  of  jurisdiction  may  be  proved. 

Whenever  any  judgment  is  offered  as  evidence  under 
any  of   the  Articles  hereinbefore   contained,  the  party 


1  Brittain  v.  Kinnaird,  1  B.  &  B.  432.  [People  v.  House  of  Mercy, 
133  N.  Y.  207 ;  People  v.  N.  Y.  Protectory,  106  N.  Y.  604  ;  see  Harman 
v.  Brotherson,  1  Den.  537  ;  People  v.  Collins,  19  Wend.  56,  62  ;  Udells 
v.  Stevens,  2  Gray,  115,1 19.  It  is  stated  as  a  general  rule  (not  limited 
to  actions  against  judges)  that  when  the  jurisdiction  of  a  court  depends 
upon  a  fact  which  the  court  is  required  to  ascertain  and  determine  in 
its  decision,  such  decision  is  final,  until  reversed  or  vacated  in  a  diiect 
proceeding  for  that  purpose  (Otis  v.  The  Rio  Grande,  1  Woods,  279; 
Cotton  v.  Beardsley,  38  Barb.  29,  51  ;  Ex  parte  Sternes,  77  Cal.  156; 
Dyckman  v.  Mayor  of  N.  Y.,  5  N.  Y.  434, 440 ;  see  Austin  v.  Vrooman, 
128  N.  Y.  229 ;  Bolton  v.  Shriever,  135  N.  Y.  65),  and  will  protect  all 
persons  acting  upon  it  in  good  faith.  But  in  other  cases  in  which  some 
fact  must  exist  to  give  jurisdiction,  a  court  or  judicial  officer  cannot 
acquire  jurisdiction  simply  by  deciding  that  such  fact  exists  ;  the 
proceeding  is  a  nullity,  and  its  invalidity  maybe  shown  in  a  collateral 
proceeding  (Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460,  464 ; 
Scott  v.  McNeal,  154  U.  S.  34 ;  People  v.  Bd.  of  Health,  140  N.  Y.  1  ; 
Miller  v.  Amsterdam,  149  N.  Y.  288;  see  McLean  v.  Jephson,  123 
N.  Y.  142).  The  distinction  between  the  two  classes  of  cases  is  con- 
sidered in  People  s  Sav.  Bk.  v.  Wilcox,  15  R.  I.  258,  and  Noble  v. 
Union  Riv.  R.  Co.,  147  U.  S.  165,  173.] 


136  A  DIGEST  OF  [Part  1. 

against  whom  it  is  so  offered  may  prove  that  the  court 
which  gave  it  had  no  jurisdiction,1  or  that  it  has  been 


1  [On  the  ground  that "  a  record  imports  absolute  verity,"  it  is  a  gen- 
erally received  common  law  doctrine  in  this  country  that  while  the 
judgment  of  a  domestic  court  of  general  jurisdiction,  acting  in  the 
scope  of  its  general  powers,  may  be  avoided  by  a  party  or  privy  in  a 
collateral  proceeding  for  lack  of  jurisdiction  apparent  on  the  face  of 
the  record  itself,  yet  that  it  cannot  be  so  impeached  when  the  recitals 
of  the  record  show  that  the  court  had  jurisdiction  (Blaisdell  v.  Pray, 
68  Me.  269 ;  Finneran  v.  Leonard,  7  Allen,  54  ;  Cuh'er's  Appeal,  48 
Ct.  165,  173;  McCahill  v.  Equitable  Assur.  Soc,  26  N.  J.  Eq.  531 
Frankel  v.  Satterfield,  9  Houst.  201  ;  Adams  v.  Cowles,  95  Mo.  501 
Sandwich  Co.  v.  Earl,  56  Minn.  390  ;  Hill  v.  City  Cab  Co.,  79  Cal.  188 
People  v.  Seelye,  146  111.  189;  Harman  v.  Moore,  112  Ind.  221  ;  Wall 
v.  Wall,  123  Pa  545)  ;  nor  when  the  record  fails  to  recite  facts  show- 
ing jurisdiction,  for  then,  as  to  such  courts,  jurisdiction  is  presumed 
(Galpin  v.  Page,  18  Wall.  350;  Bateman  v.  Miller,  118  Ind.  345; 
McClanahan  v.  West,  too  Mo.  309;  In  re  Eickhoff,  101  Cal.  600). 
But  there  has  been  much  diversity  of  opinion  as  to  the  doctrine  that 
such  a  record  cannot  be  impeached  collaterally  when  its  recitals 
show  jurisdiction  or  are  silent  on  the  point  {Ferguson  v.  Crawford,  70 
N.  Y.  253,  86  N.  Y.  609  ;  Martin  v.  Gray,  19  Kan.  458  ;  In  re  Watson, 
30  Kan.  753 ;  Frankel  v.  Satterfield,  supra).  Judgments  of  inferior 
courts,  or  of  courts  of  limited  jurisdiction,  or  even  of  courts  of  general 
jurisdiction  acting  in  the  exercise  of  special  statutory  powers  not  ac- 
cording to  the  course  of  the  common  law,  may,  however,  be  attacked 
collaterally,  as  a  general  rule,  for  lack  of  jurisdiction  ;  the  jurisdiction 
of  such  courts  is  not  presumed,  but  must  be  affirmatively  made  to 
appear  (Id.;  Coit  v.  Haven,  30  Ct.  190  ;  Galpin  v. Page,  supra ;  People 
v.  Warden,  100  N.  Y.  20;  Fahey  v.  Mottu,  67  Md.  250;  Richardson 
v.  Seevers,  84  Ya.  259  ;  Furgeson  v.  Jones,  17  Or.  204  ;  Smith  v.  Claus- 
tneier,  136  Ind.  120;  State  v.  Mobile,  etc.  R.  Co.,  108  Ala.  31  ;  but  see 
Hahn  v.  Kelly,  34  Cal.  391).  The  States  differ,  however,  to  some 
extent,  in  classifying  courts  as  superior  or  inferior  under  these  rules. 
Thus  generally  a  court  of  a  justice  of  the  peace  is  ranked  as  an  inferior 
court  (  Turner  v.  Roby,  3  N.  Y.  193;  Fahey  v.  Mottu,  67  Md.  250;  Clay- 
born  v.  Tompkins,  141  Ind.  19),  but  in  some  States  it  is  classed  with 
the  superior  courts  {Hendrick  v.  Whittemore,  105  Mass.  23,  28).  So 
probate  courts  or  orphans'  courts  are  of  limited  jurisdiction  in  some 
States  {Fowle  v.  Coe,  63  Me.  245;  Peoples  Sav.  Bk.  v.  Wilcox,  15 
R.  I.  258;  Sears  v.  Terry,  26  Ct.  273;  cf.  Smith  v.  Wild  man,  178  Pa. 
245),  but  in  others  of  superior  jurisdiction  (J/accyv.  Stark,  116  Mo. 


Chap.  IV.]       ,     THE  LAW  OF  EVIDENCE.  137 

reversed,1  or,  if  he  is  a  stranger  to  it,  that  it  was  obtained 
by  any  fraud  or  collusion,2  to  which  neither  he  nor  any 
person  to  whom  he  is  privy  was  a  party.3 

If  an  action  is  brought  in  an  English  court  to  enforce 
the  judgment  of  a  foreign  court,  and  probably  if  an  action 


481  ;  State  v.  Mobile,  etc.  R.  Co.,  108  Ala.  29,  39 ;  Bolton  v.  Schriever, 
135  N.  Y.  65  ;  Clark  v.  Costello,  59  N.  J.  L.  234). 

These  rules  as  to  questioning  jurisdiction  are  subject  to  the  limita- 
tion set  forth  in  Article  45,  note  1  {Noble  v.  Union  Riv.  R.  Co.,  147 
U.  S.  165). 

In  some  States,  however,  in  which  equitable  defences  are  allowed 
in  legal  actions,  fraud  in  acquiring  jurisdiction  may  be  interposed  as 
a  defence  against  the  judgments  of  even  the  higher  courts,  notwith- 
standing this  contradicts  the  record  {Ferguson  v.  Crawford,  supra-; 
Clark  v.  Little,  41  la.  497  ;  Hogg  v.  Link,  90  Ind.  346 ;  see  Morrill  v. 
Morrill,  20  Or.  96). 

As  to  all  courts,  it  is  a  general  rule  that  their  judgments  cannot  be 
impeached  collaterally  by  parties  or  privies  for  error  or  irregularity. 
Comstock  v.  Crawford,  3  Wall.  396 ;  Weiss  v.  Guerinean,  109  Ind. 
438;   Caulfeldv.  Sullivan,  85  N.  Y.  153.] 

1  [Smit/i  v.  Frankfield,  jj  N.  Y.  414  ;  Clodfelter  v.  Hulett,  92  Ind. 
426.  While  an  appeal  from  a  judgment  is  pending,  the  judgment 
still  operates  as  an  estoppel  {Parkhurst  v.  Berdell,  no  N.  Y.  386; 
Smith  v.  Schreiner,  86  Wis.  19  ;  Moore  v.  Williams,  132  111.  589). 
But  in  some  States  the  .contrary  rule  prevails.  Harris  v.  Barnhart, 
97  Cal.  546  ;  Sherman  v.  Dilley,  3  Nev.  21.] 

2  [A  stranger  but  not  a  party,  may  avoid  a  judgment  collaterally  for 
fraud  {Ogle  v.  Baker,  137  Pa.  378  ;  /;/  re  Burdick,  162  111.  48  ;  Davis 
v.  Davis,  61  Me.  395).  So  a  stranger  may  impeach  a  judgment  col- 
laterally for  lack  of  jurisdiction  {Buffum  v.  Ramsdell,  55  Me.  252  ; 
Fall  River  v.  Riley,  140  Mass.  488).  But  as  a  party  may  in  a  proper 
case  bring  suit  in  equity  to  avoid  a  judgment  procured  by  fraud  [Mar- 
shall v.  Holmes,  141  U.  S.  589  ;  Mayor  v.  Brady,  1 15  N.  Y.  599),  so  in 
some  States  he  may  set  up  such  fraud  as  an  equitable  defence  {Man- 
deville  v.  Reynolds,  68  N.  Y.  543-546  ;  Ferguson  v.  Crawford,  70  N.  Y. 
253  ;  Stowell  v.  Eld?-ed,  26  Wis.  504  ;  Hallack  v.  Loft,  19  Col.  74  ;  see 
Duringer  \ .  Moschino,  93  Ind.  495).  And  when  the  fraud  is  in  acquir- 
ing jurisdiction,  the  rules  in  note  1,  p.  136,  supra,  apply;  see  Bollingv. 
Speller,  96  Ala.  269.] 

3  Cases  collected  in  T.  E.  ss.  1 524-1 525,  s.  1530.  See,  too,  2  Ph.  Ev. 
35,  and  Ochsenbein  v.  Papelier,  L.  R.  8  Ch.  695. 


138  A  DIGEST  OF  [Part  I. 

is  brought  in  an  English  court  to  enforce  the  judgment 
of  another  English  court,  any  such  matter  as  aforesaid 
may  be  proved  by  the  defendant,  even  if  the  matter 
alleged  as  fraud  was  alleged  by  way  of  defence  in  the 
foreign  court  and  was  not  believed  by  them  to  exist.1 

Illustration, 
(a)  [Judgment  is  rendered  against  A  in  a  common  law  action  for 
damages  in  a  domestic  court  of  general  jurisdiction.  He  has  never 
been  served  with  process  in  the  action  nor  has  he  authorized  any 
attorney  to  appear  for  him  and  thus  give  the  court  jurisdiction  over 
his  person.  In  fact,  however,  B,  a  duly  admitted  attorney  of  the  court, 
has  appeared  for  A  in  the  action  and  the  recitals  of  the  record  show 
such  appearance.  A  cannot  impeach  the  judgment  collaterally  on 
the  ground  that  B  had  no  authority  to  appear  for  him.  He  may,  how- 
ever, attack  the  judgment  by  a  direct  proceeding  for  that  purpose,  as 
by  a  motion  in  the  original  action  to  vacate  it.]  2 

Article  47. 
foreign  judgments. 

The  provisions  of  Articles  40-46  apply  to  such  of  the 
judgments  of  courts  of  foreign  countries  as  can  by  law 


1  Abouloff  v.  Oppenheimer,  10  Q.  B.  D.  295.  [It  was  held  in  this 
case  that  fraud  in  procuring  a  judgment  in  a  foreign  court  was  a  good 
defence  to  an  action  upon  the  judgment,  though  the  fact  whether  such 
fraud  existed  had  been  investigated  in  the  foreign  court.  To  the  same 
effect  is  Vadala  v.  Lawes,  25  Q.  B.  D.  310.  As  to  the  American  law 
on  this  question,  see  Art.  47,  note.] 

2  [Vilas  v.  Pittsburgh,  etc.  R.  Co.,  123  N.  Y.  440  ;  Mutual  Life  Ins. 
Co.  v.  Pinner,  43  N.  J.  Eq.  52  ;  Bradley  v.  Welch,  100  Mo.  258  ;  Cor- 
bitt  v.  Timmerman,  95  Mich.  581 ;  Reynolds  v.  Fleming,  30  Kan.  106  , 
Cleveland  v.  Hopkins,  55  Wis.  387  ;  Denton  v.  Roddy,  34  Ark.  642. 
By  some  authorities,  also,  an  action  for  damages  will  lie  against  the 
attorney,  if  any  loss  has  been  sustained  by  his  unauthorized  act 
{Everett  v.  Warner  Bk.,  58  N.  H.  340;  Hackett  v.  McMillan,  112 
N.  C.  513).     In  Ferguson  v.  Crawford,  70  N.  Y.  253,  where  there  was 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  139 

be  enforced  in  this  country,  and  so  far  as  they  can  be  so 
enforced.1 


what  purported  to  be  an  attorney's  appearance,  but  this  was  a  forgery, 
this  fraud  was  held  available  by  way  of  equitable  defence  to  impeach 
the  judgment.  Some  States  allow  judgments  entered  upon  an  un- 
authorized appearance  to  be  collaterally  attacked.  Bruschke  v.  N. 
Chicago  Verein,  145  111.  433  ;  cf.  Shelton  v.  Tiffiii,  6  How.  (U.  S.)  163.] 

1  The  cases  on  this  subject  are  collected  in  the  note  on  the  Duchess 
of  Kingston  s  Case,  2  S.  L.  C.  813-845.  A  list  of  the  cases  will  be  found 
in  R.  N.  P.  221-3.  The  last  leading  cases  on  the  subject  are  Godard 
v.  Gray,  L.  R.  6  Q.  B.  139,  and  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App. 
414.  See,  too,  Schisby  v.  Westenholz,  L.  R.  6  Q.  B.  155  ;  Rousillon  v. 
Rousillon,  14  Ch.  D.  370  ;  and  Nonvion  v.  Freeman,  15  App.  Cas.  1. 

[The  judgments  of  sister  States  are  in  this  country  ranked  as  foreign 
judgments  within  this  rule.  The  U.  S.  Constitution  (Art.  4,  §1)  de- 
clares that  "  full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State," 
and  Congress  has  enacted  that  "  the  said  records  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United  States  as 
they  have  by  law  or  usage  in  the  courts  of  the  State  from  which  they 
are  taken  "  (U.  S.  Rev.  St.  §905  ;  see  Huntington  v.  Attrill,  146  U.  S. 
657;  Harrington  v.  Harrington,  154  Mass.  517;  Dow  v.  Blake,  148 
111.  76  ;  Fairchild  v.  Fairchild,  53  N.  J.  Eq.  678).  Nevertheless,  such 
judgments  may  be  avoided  collaterally  for  lack  of  jurisdiction,  even 
in  contradiction  of  recitals  in  the  record  showing  jurisdiction  ( Thomp- 
son v.  Whitman,  18  Wall.  457 ;  Graham  v.  Spencer,  14  F.  R.  603 ; 
Gregory  v.  Gregory,  78  Me.  187  ;  Cross  v.  Cross,  108  N.  Y.  628  ;  Royal 
Arcanum  v.  Carley,  52  N.  J.  Eq.  642  ;  Price  v.  Schaeffler,  161  Pa.  530 ; 
Gree7tzweig  v.  Sterlinger,  103  Cal.  278  ;  Napton  v.  Leatt>n,  71  Mo.  358  ; 
People  v.  Dawell,  25  Mich.  247  ;  Pennywit  v.  Foote,  27  O.  St.  600 ; 
Gilman  v.  Gilman,  126  Mass.  26);  so  they  may  be  avoided  for  fraud 
in  acquiring  jurisdiction  over  the  person  {Stanton  v.  Crosby,  9  Hun, 
370  ;  Toof  v.  Fooley,  87  la.  8  ;  cf.  Brown  v.  Eaton,  98  Ind.  591).  So 
fraud  otherwise  committed  in  procuring  the  judgment  (if  the  party 
was  debarred,  without  fault  on  his  part,  from  availing  himself  of  such 
fraud  as  a  defence  in  the  original  suit),  would  be  a  sufficient  ground 
in  equity  to  have  the  judgment  set  aside  {Doughty  v.  Doughty,  27  N.  J. 
Eq.  315  ;  Payne  v.  O'  Shea,  84  Mo.  129  ;  cf.  Davis  v.  Cornice,  151  N.  Y. 
172),  and  may  be  set  up  in  some  States  as  an  equitable  defence  to  the 
judgment  {Dobso?i  v.  Pearce,  12  N.  Y.  156  ;  Rogers  v.  Gwinn,  21  la. 
58  ;  Keeler  v.  Elston,  22  Neb.  310  ;  see  Hunt  v.  Hunt,  72  N.  Y.  217). 
Except  in  equity,  however,  fraud  in  obtaining  such  a  judgment  is  not 


i4o  A  DIGEST  OF  [Part 


a  sufficient  defence  to  an  action  upon  it  {Simmons  v.  Suit/,  138  I  .  S. 
439,459;  Allison  v.  Chapman,  [9  F.  R.  488;  see  Mooney  v.  /finds, 
160  Mass.  469;  Ambler  x.  Whipple,  139  111.  311).  Such  judgments  are, 
moreover,  not  impeachable  upon  the  merits  for  error  or  for  irregu- 
larity {Pringie  v.  Woodworth,  90  N.  Y.  502  ;  Christmas  v.  Russell,  5 
Wall.  290  ;  Harryman  v.  Roberts,  52  Md.  64  ;  National  Bk.  v.  Wallis, 
59  N.  J.  L.  46  ;  see  Nichols  v.  Nichols,  25  N.  J.  Eq.  60). 

Similar  principles  apply  to  foreign  judgments.  They  may  be  im- 
peached for  lack  of  jurisdiction,  but  are  generally  held  to  be  conclu- 
sive upon  the  merits  {Ritchie  v.  McMullen,  159  U.  S.  235  ;  Dunstan  v. 
Higgins,  138  N.  Y.  20;  Shepardv.  Wright,  113  N.  Y.  582 ;  Lazier  v. 
Westcott,  26  N.  Y.  146;  Fisher  v.  Fielding,  67  Ct.  91;  McEwan  v. 
Zimmer,  38  Mich.  765;  Smith  v.  Grady,  68  Wis.  215;  Rischcff  v. 
Wethcrel,  9  Wall.  812  ;  7fo//*  v.  /fo///,  104  111.  35).  It  is  also  generally 
declared  that  they  are  impeachable  for  fraud  (see  cases  supra  ;  Baker 
v.  Palmer,  83  111.  568),  but  for  what  forms  of  fraud  or  under  what  cir- 
cumstances is  wholly  unsettled  in  this  country  {Hilton  v.  Guyot,  159 
U.  S.  1 13,  206,  207).  An  important  decision  of  the  U.  S.  Supreme  Court 
holds,  however,  that  a  judgment  rendered  in  a  foreign  country,  as 
France,  which  does  not  regard  our  own  judgments  as  conclusive,  will 
not  be  deemed  conclusive  in  our  courts,  but  only  prima  facie  evidence 
of  the  justice  of  the  claim  upon  which  the  judgment  was  recovered 
{Hilton  v.  Guyot,  supra). 

As  to  the  effect  of  a  judgment  in  another  State  obtained  by  default 
upon  service  of  process  by  publication  on  a  non-resident  or  foreign 
corporation  and  an  attachment  of  defendant's  property,  see  Pennoyer 
v.Neff,^  U.  S.  714;  Fitzsimons  v.  Marks,  66  Barb.  333;  Gil  man  v. 
Gilman,  126  Mass.  26.  Such  judgment  only  avails  as  quasi  in  rem  to 
reach  the  property  attached,  but  is  not  valid,  either  in  the  State  where 
rendered  or  in  other  States,  as  a  judgment  in  personam  (Id.;  St.  Clair 
v.  Cox,  106  U.  S.  350  ;  National  Bk.  v.  Peabody,  55  Vt.  492  ;  Needham 
v.  Thayer,  147  Mass.  536;  Eastman  v.  Dearborn,  63  N.  H.364;  Ward  v. 
Boyce,  152  N.  Y.  191);  see  generally  as  to  judgments  in  rem,  Durant 
f.  Abendroth,g7  N.Y.  132.] 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  141 


CHAPTER  V.* 

OPINIONS,   J  J  'HEX  RELE  VA  NT  A  ND   WHEN  NO  T. 

Article  48. 

opinion  generally  irrelevant. 

The  fact  that  any  person  is  of  opinion  that  a  fact  in  issue, 
or  relevant  or  deemed  to  be  relevant  to  the  issue,  does  or 
does  not  exist  is  deemed  to  be  irrelevant  to  the  existence 
of  such  fact,1  except  in  the  cases  specified  in  this  chapter.2 


*  See  Note  XXIV.  [Appendix]. 

1  [It  is  a  general  rule  that  witnesses  must  give  evidence  oi  facts,  not 
of  opinions  (Conn.  Ins.  Co.  v.  Lathrop,  in  U.  S.  612,  618;  Graham 
v.  Pa.  Co.,  139  Pa.  149 ;  Coatcs  v.  Burlington,  etc.  R.  Co.,  62  la.  486; 
Chamberlain  v.  Piatt,  68  Ct.  126;  Teerpenningw.  Corn  Ex.  Ins.  Co., 
43  N.  Y.  279).  This  is  especially  true  of  opinions  relating  directly  to 
the  questions  of  law  or  fact  at  issue  in  the  action.  These  are  ques- 
tions to  be  determined  by  court  or  jury  from  the  facts  in  evidence. 
Id.;  Bitffum  v.  Jones,  144  Mass.  29;  Cannon  v.  People,  141  111.  270; 
Insley  v.  Shire,  54  Kan.  793  ;  see  Illustrations  (b)  and  (c).] 

2  [Besides  the  exceptions  stated  by  the  author,  the  following  are 
recognized:  (1)  The  subscribing  witnesses  to  a  will  may  state  their 
opinions  as  to  the  testator's  sanity  at  the  time  of  executing  the  will 
{Egbert  v.  Egbert,  78  Pa.  326  ;  Williams  v.  Spender,  150  Mass.  346  ; 
Hewlett  v.  Wood,  55  N.  Y.  634).  (2)  In  many  States,  witnesses  who 
are  not  experts  may  state  their  opinion  as  to  a  person's  sanity  or  in- 
sanity, in  connection  with  a  statement  of  the  facts  within  their  personal 
knowledge  and  observation,  upon  which  that  opinion  is  based  (Conn. 
Ins.  Co.  v.  Lathrop,  in  U.  S.  612  ;  Hardy  v.  Merrill,  56  N.  H.  227  ; 
Foster  s  Excrs.  v.  Dickerson,  64  Yt.  233  ;  Kimberlys  Appeal,  68  Ct. 
428 ;  Genz  v.  State,  58  N.  J.  L.  482  ;  Elcessor  v.  Elcessor,  146  Pa.  359 ; 
Stumph  v.  Muller,  142  Ind.  442  ;  Denning  v.  Butcher,  91  la.  425  ; 
N.  Y.  etc.  R.  Co.  v.  Luebeck,  157  111.  595;  Holland  v.  Zollner,  102  Cal. 
633  ;  Chase  v.  Winans,  59  Md.  475  ;  Fishburne  v.  Ferguson,  84  Va.  87; 
Newcomb  v.  Newcomb,  96  Ky.  120  ;  Prentis  v.  Bates,  93  Mich.  234; 


U2  A  DIGEST  OF  [Part  I. 

Illustrations, 
(a)  The  question  is,  whether  A,  a  deceased  testator,  was  sane  or  not 
when  he  made  his  will.     His  friends'  opinions  as  to  his  sanity,  as  ex- 


State  v.  Williamson,  106  Mo.  162  ;  Baughman  v.  Baughman,  32  Kan. 
538).  In  New  York  this  is  not  permissible,  but  the  witness  may  testify 
to  acts  and  declarations  known  or  observed  by  him,  and  characterize 
them  as  rational  or  irrational  acts  or  declarations  (Holcomb  v.  Hol- 
comb, 95  N.  Y.  316  ;  People  v.  Strait,  148  N.  Y.  566).  And  so  in  Massa- 
chusetts testimony  of  opinion  as  to  general  soundness  or  unsoundness 
of  mind  is  not  received  from  non-experts,  but  still  it  has  been  held 
permissible  to  ask  such  a  witness  whether  he  ever  observed  any  fact 
which  led  him  to  infer  that  there  was  any  derangement  of  intellect, 
or  whether  a  person  had  failed  mentally  within  a  given  time  {May  v. 
Bradlee,  127  Mass.  414  ;  Clark  v.  Clark,  168  Mass.  523).  (3)  So  gen- 
erally the  opinions  of  non-experts,  when  based  upon  facts  known  and 
observed  by  them,  are  admissible  as  to  many  matters  upon  which  men 
in  general,  without  expert  training,  are  competent  to  form  a  reliable 
opinion.  An  important  reason  for  this  rule  is  that  if  only  the  facts 
upon  which  such  opinions  were  based  could  be  stated  to  the  jury,  such 
facts  could  not  usually  be  described  so  perfectly  as  to  enable  the'  jury 
to  form  a  just  and  satisfactory  conclusion  from  them  {Koccis  v.  State, 
56  N.  J.  L.  44  ;  Shelby  v.  Clagett,  46  O.  St.  549  ;  Laughlin  v.  Street  A'. 
Co.,  62  Mich.  220  ;  State  v.  Rainsbarger,  71  la.  746).  Such  testimony 
of  opinion  is  received  as  to  a  person's  identity  (State  v.  Dickson,  78 
Mo.  438;  People  v.  Rolfe,  61  Cal.  540);  a  person's  age  (Comm.  v. 
O'Brien,  134  Mass.  198  ;  Eisner  v.  Supreme  Lodge,  98  Mo.  640) ;  a 
person's  appearance  or  state  of  health  (Cartilage  Turnpike  Co.  v. 
Andrews,  102  Ind.  138;  Chicago  R.  Co.  v.  Van  Vleck,  143  111.  480; 
Smalley  v.  Appleton,  70  Wis.  3401  ;  whether  a  person  was  drunk  or 
sober  (Felska  v.  N.  Y.  C.  R.  Co.,  152  X.  Y.  339  ;  Cook  v.  Bis.  Co.,  84 
Mich.  12  ;  Castner  v.  Sliker,  33  N.  J.  L.  507) ;  sick  or  well  (Elliott  v. 
Van  Buren,  33  Mich.  49;  Robinson  v.  Exempt  Fire  Co.,  103  Cal.  1  ; 
Higbie  v.  Life  Ins.  Co.,  53  N.  Y.  603  ;  but  not  as  to  the  nature  of  a 
sickness,  Shawneetown  v.  Mason,  82  111.  337) ;  nervous,  or  calm,  or 
excited,  or  angry  (Dimiel;  v.  Downs,  82  111.  570;  White  v.  Beatty,  64 
la.  333)  ;  that  a  person  had  good  eyesight  (Adams  v.  People,  63  N.  Y. 
621) ;  that  a  horse  was  frightened  or  tired  (Darling v.  Westmoreland, 

52  X.  H.  401  ;  State  v.  Ward,  61  \'t.  153) ;  that  a  highway  was  in  good 
repair  or  was  dangerous  (A'elleher  v.  Keokuk,  60  la.  473;  Ryan  v. 
Bristol,  63  Ct.  26) ;  and  many  like  matters.  See  many  illustrations 
given  in  Sydleman  v.  Beckwith,  43  Ct.  9 ;  Hardy  v.  Merrill,  56  X.  H. 
227;  Comm.  v.  Sturtivant,  117  Mass.  122;  McKillop  \ .  Duluth  R.  Co., 

53  Minn.  532  ;  see  Illustrations  (d)  and  (e).] 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  143 

pressed  by  the  letters  which  they  addressed  to  him  in  his  lifetime,  are 
deemed  to  be  irrelevant.1 

(b)  [An  action  is  brought  to  recover  damages  for  a  tort  or  breach  of 
contract,  or  compensation  is  sought  for  land  taken  by  eminent  domain. 
The  opinions  of  witnesses  as  to  the  amount  of  damage  sustained  by 
the  plaintiff  from  the  act  complained  of  are  deemed  to  be  irrelevant. 
The  jury  are  to  estimate  the  damages  from  the  facts  proved.]2 


1  Wright  v.  Doe  d.  Tat  ham,  7  A.  &  E.  313;  [as  to  this  case,  see 
Conn.  Ins.  Co.  v.  Lathrop,  m  U.  S.  612,  622  ;  People  v.  Montgomery, 
13  Abb.  Pr.  (N.  S.)  207,  249.] 

2  {Morehouse  v.  Mathews,  2  N.  Y.  514  ;  Roberts  v.  N.  Y.  El.  R.  Co., 
128  N.  Y.  455;  Bain  v.  Cushman,  60  Vt.  343;  Railway  Co.  v.  Gardner, 
45  O.  St.  309;  Hartley  v.  Keokuk,  etc.  R.  Co.,  85  la.  455  ;  Spencer  v. 
Metropolitan  R.  Co.,  120  Mo.  154 ;  Atchison,  etc.  R.  Co.  v.  Wilkinson, 
55  Kan.  83  ;  Jameson  v.  Kent,  42  Neb.  412  ;  but  in  some  States  such 
testimony  is  admissible  {Chicago,  etc.  R.  Co.  v.  Nix,  137  III.  141  ; 
Portland,  etc.  R.  Co.  v.  Deering,  78  Me.  61  ;  Shattuck  v.  Stoneham  R. 
Co.,  6  Allen,  115). 

It  is  a  general  rule,  however,  that  evidence  of  opinion  as  to  the  value 
of  houses,  lands,  chattels,  medical,  legal,  or  other  services,  etc.,  will 
be  received  from  persons  having  special  knowledge  and  experience 
concerning  such  matters  (Hills  v.  Home  Ins.  Co.,  129  Mass.  345  ;  Shea 
v.  Hudson,  165  Mass.  43  ;  Montana  R.  Co.  v.  Warren,  137  U.  S.  348; 
McElhenyv.  Bridge  Co.,  153  Pa.  108;  Wallace  v.  Schaub,  81  Md.  594; 
Louisville,  etc.  R.  Co.  v.  Wallace,  136  111.  87  ;  Edgecomb  v.  Buckhout, 
146  N.  Y.  332  ;  Whiton  v.  Snyder,  88  N.  Y.  299;  Reynolds  v.  Robinson, 
64  N.  Y.  589).  This  is  in  the  nature  of  expert  testimony,  though  it  is 
not  necessary  that  a  witness  as  to  the  value  of  property  should  be  a 
skilled  expert,  in  the  strict  sense  of  that  term  (Kelley  v.  Richardson, 
69  Mich.  430  ;  Erickson  v.  Draskowski,  94  id.  551  ;  Latham  v.  Brown, 
48  Kan.  190) ;  thus  not  only  real  estate  brokers  or  appraisers,  but  also 
other  persons  conversant  with  land  values  in  a  certain  locality,  may 
testify  as  to  the  value  of  a  particular  lot  or  farm  there  situated  {Clark 
v.  Baird,  9  N.  Y.  183  ;  Blake  v.  Griswold,  103  N.  Y.  429  ;  Lyman  v. 
Boston,  164  Mass.  99  ;  Lee  v.  Springfield  Co.,  176  Pa.  223  ;  Mayor  of 
Baltimore  v.  Smith,  80  Md.  458;  Pike  v.  Chicago,  155  111.  656;  Kansas 
City  R.  Co.  v.  Eh  ret,  41  Kan.  22  ;  but  see  Laing  v.  United  N.  J.  R. 
Co.,  54  N.  J.  L.  576).  But  such  opinion  evidence  is  not  necessarily 
controlling  upon  the  judgment  of  the  jury  (Head  v.  Hargrave,  105 
U.  S.  45)- 

Evidence  of  opinion  has  been  received  as  to  the  value  of  land  both 


[44  A  DIGEST  OF  [Part  I. 

(c)  [The  question  is,  which  of  two  deeds  conveys  a  greater  right.  A 
witness  cannot  be  examined  as  to  his  opinion  upon  this  point.]1 

(d)  [In  an  action  for  breach  of  promise  of  marriage,  the  question  is 
whether  the  plaintiff  was  sincerely  attached  to  the  defendant. 

Witnesses  who  lived  with  the  plaintiff  during  the  courtship  and  ob- 
served her  deportment  may  give  in  evidence  their  opinions  upon  this 
question.]2 

(e)  [The  question  is,  upon  a  trial  for  murder,  whether  certain  hairs 
are  human  hairs  and  like  the  hair  of  the  deceased. 

Witnesses,  who  knew  the  deceased,  may  state  their  opinions  on  this 
point,  though  they  are  not  experts.] 3 

Article  49. 
opinions  of  experts  on  points  of  science  or  art. 

When  there  is  a  question  as  to  any  point  of  science  or 
art,  the  opinions  upon  that  point  of  persons  specially 
skilled  in  any  such  matter  are  deemed  to  be  relevant 
facts. 

Such  persons  are  hereinafter  called  experts. 

The  words  "science  or  art"  include  all  subjects  on 
which  a  course  of  special  study  or  experience  is  neces- 
sary to  the  formation  of  an  opinion,4  and  amongst  others 
the  examination  of  handwriting. 


before  and  after  an  injury  thereto,  or  before  and  after  a  part  thereof 
has  been  taken  by  eminent  domain  {Sexton  v.  N.  Bridgewater,  116 
Mass.  200;  Carter  v.  Thurston,  58  N.  H.  104  ;  Lewis  v.  Springfield 
Co.,  176  Pa.  230).  This  is  not  only  allowed  in  States  which  receive 
opinion  evidence  as  to  damages  (Id.;  Snow  v.  B.  &*  M.  R.  Co.,  65 
Me.  230),  but  also  in  States  which  reject  such  evidence.  Yost  v.  Con- 
roy,  92  Ind.  464  ;  Cleveland,  etc.  R.  Co.  v.  Ball,  5  O.  St.  568  ;  Roberts 
v.  N.  Y  El.  R.  Co.,  128  N.  Y.  455,  467.] 

1  [Bennett  v.  Clenicnce,  6  Allen,  10.] 

2  \McKee  v.  Nelson,  4  Cow.  355  ;  see  Vanderpool  v.  Richardson,  52 
Mich.  336;  State  v.  Stackhonse,  24  Kan.  445.] 

z[Comm.  v.  Dorsey,  103  Mass.  412.] 

4 1  S.  L.  C.  555,  7th  ed.  (note  to  Carter  v.  Bochin);  28  Vict.  c.  18,  s. 
18.     [Gr.  Ev.  i.  §  440 ;  Spring  Co.  v.  Edgar,  99  U.  S.  645,  657  ;  Jones  v. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  145 


When  there  is  a  question  as  to  a  foreign  law,  the  opin- 
ions of  experts  who  in  their  profession  are  acquainted 
with  such  law  are  the  only  admissible  evidence  thereof, 
though  such  experts  may  produce  to  the  court  books 
which  they  declare  to  be  works  of  authority  upon  the 
foreign  law  in  question,  which  books  the  court,  having 
received  all  necessary  explanations  from  the  expert,  may 
construe  for  itself.1 


Tucker,  41  N.  H.  546 ;  Coyle  v.  Comm.,  104  Pa.  1 17  ;  Muldowney  v.  ///. 
Cent.  R.  Co.,  36  la.  462  ;  Ferguson  v.  Hubbell,  97  N.  Y.  507.  An  expert 
may  not  only  testify  to  opinions,  but  may  state  general  facts  which 
are  the  result  of  scientific  knowledge  {Emerson  v.  Lowell  Gas  Co.,  6 
Allen,  146) ;  or  may  testify  as  to  the  natural  and  reasonably  probable 
future  consequences  of  a  certain  state  of  facts  concerning  which  his 
special  knowledge  qualifies  him  to  judge  (Slrohm  v.  A7.  Y. etc.  R.  Co., 
96  N.  Y.  305  ;  Louisville,  etc.  R.  Co.  v.  Lucas,  119  Ind.  583  ;  Clason  v. 
Milwaukee,  30  Wis.  316;  cf.  Turner  v.  Newburgh,  109  N.  Y.  301). 
But  the  opinions  of  experts  are  not  admissible  upon  matters  of  com- 
mon knowledge  ;  as  these  are  within  common  observation  and  ex- 
perience, the  jurors  are  deemed  qualified  to  judge  without  expert  aid 
{Ferguson  v.  Hubbell,  supra  ;  Milwaukee  R.  Co.  v.  Kellogg,  94  U.  S. 
469;  N.J:  Traction  Co.  v.  Brabban,  57  N.  J.  L.  691 ;  Hughes  v.  Richter, 
161  111.  409;  Stumore  v.  Shaw,  68  Md.  11  ;  Doonerx.  Canal  Co.,  164 
Pa.  17  ;  Knoll  v.  State,  55  Wis.  249;  see  Illustrations  £■  and  h).  Nor, 
in  general,  is  expert  testimony  received  as  to  the  very  point  in  issue 
in  the  case  (Illustration  (7);  Seymour  v.  Fellows,  77  N.  Y.  180;  Buxton 
v.  Somerset  Works,  121  Mass.  446;  Noonanv.  Stale,  55  Wis.  258  ;  ///. 
Cent.  R.  Co.  v.  People,  143  111.  434);  though  this  is  sometimes  permis- 
sible, when  the  jury  need  such  aid  to  properly  decide  the  question. 
Transportation  Line  v.  Hope,  95  U.  S.  297  ;  Van  Wycklen  v.  Brook- 
lyn, 118  N.  Y.  424  ;   Quinn  v.  N.  Y.  etc.  R.  Co.,  56  Ct.  44.] 

1  Baron  de  Bodes  Case,  8  Q.  B.  250-267  ;  Di  Sora  v.  Phillipps,  10  H. 
L.  624  ;  Castrique  v.  Lmrie,  L.  R.  4  E.  &  I.  App.  434  ;  see,  too,  Pictons 
Case,  30  S.  T.  510-51 1.  [That  the  unwritten  or  common  law  of  other 
States  or  countries  may  be  proved  by  expert  testimony  is  well  settled 
in  this  country  (Mowry  v.  Chase,  100  Mass.  79;  Funis  v.  Smith,  14 
How.  (U.  S.)  400 ;  Jenne  v.  Harrisville,  63  N.  H.  405  ;  In  re  Roberts' 
Will,  8  Pai.  446),  and  is  often  declared  in  statutes,  which  also  gener- 
ally provide  that  in  proving  the  common  law  of  another  State  or  Ter- 
ritory in  the  United  States,  the  books  of  reports  of  cases  may  be  given 


i46  A  DIGEST  OF  [Part  I. 

It  is  the  duty  of  the  judge  to  decide,  subject  to  the 
opinion  of  the  court  above,  whether  the  skill  of  any  per- 
son in  the  matter  on  which  evidence  of  his  opinion  is 


in  evidence  (see  e.g.,  N.  Y.  Code  Civ.  Pro.  §  942  ;  Maine  Rev.  St.  c.  82, 
ss.  108,  109;  Mass.  Pub.  St.  c.  169,  ss.  72,  73;  1  N.  J.  Rev.  p.  381 ;  2  How. 
St.  (Mich.)  §§  7508,  7509).  Sometimes  the  latter  provision  is  also  ex- 
tended to  the  law  of  foreign  countries  (Id. ;  see  The  Pawashick,  2 
Lowell,  142). 

In  proof  of  foreign  written  law,  expert  evidence  is  deemed  admis- 
sible in  some  States,  either  with  or  without  a  copy  of  such  law  {Bar- 
rows v.  Downs,  9  R.  I.  446 ;  Hall  v.  Costello,  48  X.  H.  176  ;  see  Hen- 
nessy  v.  Farrelly,  13  Daly,  468);  but  sometimes  statutes  provide  that 
such  evidence  may  be  rejected,  unless  accompanied  by  such  a  copy 
{Pierce  v'.Indseth,  106  U.  S.  546  ;  see  statutes  supra).  But  other  modes 
of  proof  are  also  in  common  use,  as  by  an  officially  printed  volume  of 
the  law  or  a  duly  authenticated  copy  (see  Art.  84,  post).  This  is  the 
generally  established  mode  of  proving  the  statute  law  of  Congress  or 
of  the  sister  States  (see  Art.  Si, post).  An  expert  or  other  credible 
witness  may  testify  as  to  the  official  or  authoritative  character  of  the 
printed  volume,  etc.  {Pacific  Gas  Co.  v.  W'heelock,  80  N.  Y.  278; 
Hynes  v.  McDermott,  82  N.  Y.  41,  54  ;  Spaulding  v.  Vincent,  its,  Vt. 
501;  Dundee  Mortgage  Co.  v.  Cooper,  26  F.  R.  665).  The  construc- 
tion of  a  statute  of  another  State  by  the  courts  of  that  State  may  be 
shown  by  expert  testimony  or  by  the  law  reports  of  that  State  or  by 
both  {Bollinger  v.  Gallagher,  163  Pa.  245,  170  Pa.  84). 

The  expert  is  usually  a  lawyer  of  the  State  or  country  whose  law  is 
to  be  proved,  but  the  testimony  of  other  persons  acquainted  with  the 
law  may  be  received  in  proper  cases  (  Vander  Donct  v.  Thellusson,  8 
C.  B.  812;  Pickardv.  Bailey,  26  N.  H.  152;  American  Life  Ins.  Co. 
v.  Rosenagle,  77  Pa.  507). 

Evidence  of  the  foreign  law  must  be  first  introduced  in  the  trial 
court,  not  in  the  appellate  court.  The  question  what  the  foreign  law 
is  is  usually  deemed  a  question  of  fact,  unless  it  involves  merely  the 
construction  of  a  written  statute  or  judicial  opinion,  when  it  is  a  ques- 
tion of  law  {Hanley  v.  Donoghue,  116  U.  S.  1;  UJfordx.  Spaulding, 
156  Mass.  65  ;  Molsons  Bk.  v.  Boardman,  47  Hun,  135  ;  Alexanders. 
Pennsylvania  Co.,  48  O.  St.  623).  In  the  absence  of  proof  of  the  for- 
eign law  or  that  of  another  State,  the  law  of  the  forum  is  applied  (Me- 
Intyre  v.  B.  <S^  M.  R.  Co.,  163  Mass.  189  ;  Musser  v.  Staujffer,  178  Pa. 
99;  Slaughter  v.  Bernards,  88  Wis.  in).  In  this  country,  when  the 
law  of  a  sister  State  is  not  proved,  it  is  the  common  law  of  the  forum, 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  147 

offered  is  sufficient  to  entitle  him  to  be  considered  as  an 
expert.1 

The  opinion  of  an  expert  as  to  the  existence  of  the 


and  not  the  statute  law,  which  is  generally  held  applicable  {Carpenter 
v.  Grand  Trunk  R.  Co.,  72  Me.  388 ;  O'Reilly  v.  N.  Y.  etc.  R.  Co.,  16 
R.  I.389;  Kelley  v.  Kelley,  161  Mass.  n  1;  Lane  v.  Wheelwright,  69 
Hun,  180,  143  N.  Y.  634  ;  Jackson  v.  Pittsburgh,  etc.  R.  Co.,  140  Ind. 
241 ;  Rice  v.  Rankans,  101  Mich.  380,  note  ;  Mohr  v.  Miesen,  47  Minn. 
228  ;  Burdict  v.  Mo.  Pac.  R.  Co.,  123  Mo.  221 ;  Kahl  v.  Memphis,  etc. 
R.  Co.,  95  Ala.  337 ;  Thorn  v.  IVeatherly,  50  Ark.  237 ;  Pattillo  v. 
Alexander,  96  Ga.  60 ;  see  Harris  v.  White,  81  N.  Y.  532,  544),  except 
when  the  sister  State  (as  e.  g.,  Texas)  derived  its  system  of  law  from 
some  other  source  than  the  English  law,  in  which  case  the  general 
law  of  the  forum,  both  written  and  unwritten,  is  applied  (Hurley  v. 
Mo.  Pac.  R.  Co.,  57  Mo.  App.  675  ;  Buchanan  v.  Hubbard,  119  Ind. 
187  ;  Brown  v.  Wright,  58  Ark.  20 ;  Davison  v.  Gibson,  56  F.  R.  443  ; 
so  as  to  a  foreign  country,  Savage  v.  O 'Neil,  44  N.  Y.  298).  In  some 
States,  however,  the  general  law  of  the  forum  is  applied  in  all  cases 
when  the  law  of  the  other  State  or  country  is  not  proved.  Cavallaro 
v.  Texas,  etc.  R.  Co.,  1 10  Cal.  348  ;  Bennett  v.  Cadwell ' s  Excr.,  70  Pa. 
253  ;  Neese  v.  Fanners'  Ins.  Co.,  55  la.  604  ;  Smith  v.  Mason,  44  Neb. 
61 1  ;  see  p.  163,  note  2,  post.] 

1  Bristow  v.  Sequeville,  6  Ex.  275  ;  Rowley  v.  L.  &°  N.  W.  Railway, 
L.  R.  8  Ex.  221  ;  hi  the  Goods  of  Bonelli,  L.  R.  1  P.  D.  69 ;  and  see 
hi  the  Goods  of  Dost  Aly  Khan,  6  P.  D.  6.  [Slocovich  v.  Orient  Ins. 
Co.,  108  N.  Y.  56;  Stillwell,  etc.  Co.  v.  Phelps,  130  U.  S.  520 ;  Struthers 
v.  Phila.  etc.  R.  Co.,  174  Pa.  291  ;  Perkins  v.  Stickney,  132  Mass.  217. 
The  decision  of  the  trial  judge  on  this  point  will  be  deemed  conclusive, 
unless  clearly  shown  to  be  erroneous  (Id.;  Marston  v.  Dinghy,  88  Me. 
546  ;  N.  J.  Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  N.  J.  L.  189  ;  Stevens 
v.  Minneapolis,  42  Minn.  136).  The  witness  need  not  be  still  in  the 
practice  of  his  profession,  etc.  (Roberts  v.  Johnson,  58  N.  Y.  613;  cf. 
Seckingerv.  Mfg  Co.,  129  Mo.  590). 

The  opinion  of  an  expert  is  admissible  though  he  has  no  personal 
knowledge  of  the  facts  of  the  case.  But  in  the  question  asking  his 
opinion,  the  facts,  as  counsel  claim  them  to  exist,  should  then  be 
stated  in  hypothetical  form  ;  and  in  framing  the  question,  counsel  may 
assume  such  a  state  of  facts  as  the  evidence  fairly  tends  to  justify 
(Steams  v.  Field,  90  N.  Y.  640  ;  Jewell  v.  Brooks,  134  Mass.  505  ; 
Barber  s  Appeal,  63  Ct.  393  ;  Meeker  v.  Meeker,  74  la.  352  ;  Hicks  v. 
Citizens'  R.  Co.,  124  Mo.  115);  but  in  cross-examination  counsel  need 


148  A  DIGEST  OF  [Part  I. 

facts  on  which  his  opinion  is  to  be  given  is  irrelevant, 
unless  he  perceived  them  himself.1 

Illustrations. 

(a)  The  question  is,  whether  the  death  of  A  was  caused  by  poison. 
The  opinions  of  experts  as  to  the  symptoms  produced  by  the  poison 
by  which  A  is  supposed  to  have  died,  are  deemed  to  be  relevant.4 


not  be  so  restricted  {People  v.  Augsbury,  g7  N.  Y.  501).  This  rule  that 
a  hypothetical  question  must  be  asked  applies  even  though  the  witness 
has  heard  the  evidence  of  the  facts  as  given  by  prior  witnesses,  if  the 
facts  are  controverted  or  doubtful  {Guiterman  v ■.  Liverpool,  etc.  St. 
Co.,  83  N.  Y.  358;  People  v.  McElvaine,  121  N.  Y.  250;  Dexter  v. 
Hall,  15  Wall.  9;  Coy  lev.  Comm.,  104  Pa.  117;  Stoddard  v.  Win- 
chester, 157  Mass.  567  ;  Pylev.  Pyle,  158  111.  289  ;  Bennett  v.  State,  57 
Wis.  69).  But  in  some  cases,  as  where  the  facts  are  not  in  dispute,  or 
the  evidence  heard  is  clear  and  plain  and  hot  difficult  to  bear  in  mind, 
the  expert,  having  heard  the  evidence  in  the  case,  may  be  asked  his 
opinion  thereon,  without  a  full  hypothetical  statement  of  the  facts 
{Seymour  v.  Fellows,  77  N.  Y.  178  ;  People  v.  Theobald,  92  Hun,  182  ; 
State  v.  Watson,  81  la.  380  ;  Gates  M.Fleischer,  67  Wis.  504  ;  Huntw. 
Lowell  Gas  Co.,  8  Allen,  169  ;  State  v.  Klinger,  46  Mo.  224  ;  State  v. 
Hayden,  51  Vt.  296).  And  where  the  expert  bases  his  opinion  upon 
his  knowledge  of  the  facts,  a  hypothetical  case  need  not  be  stated 
{Mercer  \.  Vose,  67  N.  Y.  56  ;  Niendorffv.  Manhattan  R.  Co.,  4  App. 
Div.  (N.  Y.)  46  ;  Bellefontaine,  etc.  R.  Co.  v.  Bailey,  1 1  O.  St.  333).  A 
medical  expert  may  testify  as  to  the  mental  condition  of  a  person  who 
has  been  his  patient,  or  whom  he  has  personally  examined,  without 
first  disclosing  the  facts  on  which  his  opinion  is  based.  People  v. 
Youngs,  151  N.  Y.  210  ;  Crockett  v.  Davis,  81  Aid.  134  ;  cf.  People  v. 
Nino,  149  N.  Y.  317.] 

1  1  Ph.  Ev.  507  ;  T.  E.  s.  1278.  [Carpenter  v.  Eastern  Trans.  Co.,  71 
X.  Y.  574.  So  his  opinion  is  not  received  as  to  the  effect  of  the  evidence 
in  establishing  controverted  facts  {Hunt  v.  Lowell  Gas  Co.,  8  Allen, 
169  ;  People  v.  Barber,  115  N.  Y.  475  ;  see  Priest  v.  Groton,  103  Mass. 
530).  Nor  is  a  witness's  opinion  received  as  to  a  matter  of  legal  or 
moral  obligation.  Gr.  Ev.  i.  §  441  ;  Milwaukee,  etc.,  R.  Co.  v.  Kellogg, 
99  U.  S.  469,  473  ;  Seliger  v.  Bastian,  66  Wis.  521  ;  McKean  v.  R.  Co., 
55  la.  192  ;  cf.  Cochrane  v.  Little,  71  Md.  323  ;  Monroe  v.  Lattin,  25 
Kan.  351.] 

8  R.  v.  Palmer  {passim).  See  my  History  of  Crim.  Law,  iii.  389 
[Stephens  v.  People,  4  Park.  Cr.  396.] 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  149 

(b)  The  question  is,  whether  A,  at  the  time  of  doing  a  certain  act, 
was,  by  reason  of  unsoundness  of  mind,  incapable  of  knowing  the  na- 
ture of  the  act,  or  that  he  was  doing  what  was  either  wrong  or  con- 
trary to  law. 

The  opinions  of  experts  upon  the  question  whether  the  symptoms 
exhibited  by  A  commonly  show  unsoundness  of  mind,  and  whether 
such  unsoundness  of  mind  usually  renders  persons  incapable  of  know- 
ing the  nature  of  the  acts  which  they  do,  or  of  knowing  that  what  they 
do  is  either  wrong  or  contrary  to  law,  are  deemed  to  be  relevant.1 

(c)  The  question  is,  whether  a  certain  document  was  written  by  A. 
Another  document  is  produced  which  is  proved  or  admitted  to  have 
been  written  by  A. 

The  opinions  of  experts  on  the  question  whether  the  two  documents 
were  written  by  the  same  person,  or  by  different  persons,  are  deemed 
to  be  relevant.2 

(d)  The  opinions  of  experts  on  the  questions,  whether,  in  Illustra- 
tion (a),  A's  death  was  in  fact  attended  by  certain  symptoms  ;  whether, 
in  Illustration  (b),  the  symptoms  from  which  they  infer  that  A  was  of 
unsound  mind  existed  ;  whether,  in  Illustration  (c),  either  or  both  of 
the  documents  were  written  by  A,  are  deemed  to  be  irrelevant.3 

(e)  [The  question  is,  whether  certain  blood-stains  have  been  caused 
by  human  blood  or  by  the  blood  of  animals. 

The  opinion  of  an  expert  that  some  of  the  stains  are  of  the  one  sort 
and  some  of  the  other  is  deemed  to  be  relevant.4 

But  a  non-expert  may  give  evidence  that  stains  recently  made  are 
caused  by  blood.]5 

(f)  [The  question  is,  whether  certain  circumstances  affecting  prop- 
erty insured  are  material  to  the  risk. 


1  R.  v.  Dove  (passim).  History  Crim.  Law,  iii.  426.  [See  People  v. 
Tuczkewitz,  149  N.  Y.  240  ;  U.  S.  v.  Guiteau,  1  Mackey,  498  ;  State  v. 
Hay  den,  51  Vt.  296.] 

2  28  Vict.  c.  18,  s.  8  ;  [see  Art.  52,  and  note;  Ludlow  v.  Warshing, 
108  N.  Y.  520.] 

3  [But  that  an  expert  may  testify  that  the  disputed  document  was 
written  by  A,  see  Costello  v.  Crowell,  133  Mass.  352  ;  see  Art.  52.] 

4  \Linsday  v.  People,  63  N.  Y.  143,  147,  156.] 

5  {Greenfield  v.  People,  85  N.  Y.  75  ;  State  v.  Welch,  36  W.  Va.  690 ; 
State  Y.Robinson,  117  Mo.  649.  In  McLain  v.  Comm.,  99  Pa.  86,  it  was 
even  held  that  a  non-expert  might  testify  that  stains  were  made  by 
human  blood,  and  that,  too,  though  the  stains  were  not  freshly  made.] 


150  A  DIGEST  OF  [Part  I. 

The  opinions  of  experts  upon  the  materiality  of  these  circumstances 
are  deemed  to  be  relevant,  except  in  cases  where  the  question  is 
within  the  scope  of  common  knowledge  and  observation,  so  that  jurors 
may  be  deemed  capable  of  determining  it  without  expert  aid.]1 

(g)  [The  question  is,  whether  a  railway  train  stopped  long  enough 
at  a  station  to  enable  passengers  to  get  off. 

The  opinion  of  an  expert  upon  this  question  is  deemed  to  be  irrele- 
vant.] s 

(h)  [The  question  is,  on  a  trial  for  murder,  whether  a  certain  piece 
of  paper  has  the  appearance  of  wadding  shot  from  a  gun. 

The  opinion  of  an  expert  upon  this  point  is  deemed  to  be  irrele- 
vant.] 3 

(/)  [The  question  is,  whether  B,  who,  while  engaged  in  constructing 
a  railroad,  built  brush  fires,  took  proper  precautions  to  prevent  their 
spreading  to  the  adjacent  land  of  A.  X,  a  railroad  engineer,  experi- 
enced in  railroad  construction,  is  called  as  an  expert  to  testify  on  this 
question.  His  testimony  is  inadmissible,  since  this  is  a  matter  which 
men  of  ordinary  experience  and  intelligence  could  determine  without 
such  aid.]4 

(j)  [A,  an  employee  in  B's  machine  shop,  was  injured  by  the  break- 
ing of  a  belt  used  to  move  machinery.  The  belt  was  fastened  with  a 
belt-fastener  which  gave  way.  A  sued  B  for  damages  for  this  injury, 
alleging  negligence.  At  the  trial  experts  in  the  use  of  belts  and 
fasteners  were  asked  to  state  their  opinion  as  to  the  safety  and  fitness 
of  the  kind  of  belt-fastener  which  caused  A's  injury.  This  evidence 
was  deemed  to  be  irrelevant.  The  main  question  at  issue  was, 
whether  the  fastener  was  suitable  and  safe,  and  this  should  be  deter- 
mined by  the  jury,  not  by  the  opinions  of  experts.]5 


1  [Cornish  v.  Farm,  etc.  Ins.  Co.,  74  N.  Y.  295  ;  Schenck  v.  Mercer 
Co.  Ins.  Co.,  24  N.  J.  L.  447;  Russell  v.  Cedar  Ins.  Co.,  78  la.  216; 
Franklin  Ins.  Co.  v.  Gruver,  100  Pa.  266.  But  the  cases  are  not  en- 
tirely agreed  as  to  what  questions  are  appropriate  for  expert  testimony 
under  this  rule  ;  see  Luce  v.  Dorchester  Ins.  Co.,  105  Mass.  297  ; 
Thayer  v.  Providence  Ins.  Co.,  70  Me.  531  ;   Kent's  Comm.,  iii.  285.] 

-'  {Keller  v.  N.  Y.  C.  R.  Co.,  2  Abb.  Dec.  480 ;  Madden  v.  Mo.  Pac. 
R.  Co.,  50  Mo.  App.  666  ;  cf.  a  Neil  v.  Dry  Dock,  etc.  R.  Co.,  129  N.  Y. 
125  ;  I?  1  land  Coasting  Co.  v.  Tolson,  139  U.  S.  551.] 

*[Manke  v.  People,  17  Hun,  410,  78  N.  Y.  611.] 

1  I  Pulsifer  v.  Berry,  87  Me.  405  ;  Ferguson  v.  Hubbell,  97  N.  Y.  507.] 

'  \Harley  v.  Buffalo  Car  Co.,  142  N,  Y.  31.] 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  151 

Article  50.* 
facts  bearing  upon  opinions  of  experts. 

Facts,  not  otherwise  relevant,  have  in  some  cases  been 
permitted  to  be  proved,  as  supporting  or  being  incon- 
sistent with  the  opinions  of  experts.1 

Illustrations. 

(a)  The  question  was,  whether  A  was  poisoned  by  a  certain  poison. 

The  fact  that  other  persons,  who  were  poisoned  by  that  poison,  ex- 
hibited certain  symptoms  alleged  to  be  the  symptoms  of  that  poison, 
was  deemed  to  be  relevant.'2 

{b)  The  question  is,  whether  an  obstruction  to  a  harbor  is  caused  by 
a  certain  bank.     An  expert  gives  his  opinion  that  it  is  not. 

The  fact  that  other  harbors  similarly  situated  in  other  respects,  but 
where  there  were  no  such  banks,3  began  to  be  obstructed  at  about  the 
same  time,  is  deemed  to  be  relevant. 

Article  51. 
opinion  as  to  handwriting,  when  deemed  to  be  relevant. 

When  there  is  a  question  as  to  the  person  by  whom  any 
document  was  written  or  signed,  the  opinion  of  any  per- 


*  I  have  altered  the  wording  of  this  Article,  so  as  to  make  it  less 
absolute  than  it  was  in  earlier  editions.  The  admission  of  such  evi- 
dence is  rare  and  exceptional,  and  must  obviously  be  kept  within 
narrow  limits.  At  the  time  of  Palmer's  trial  only  two  or  three  cases 
of  poisoning  by  strychnine  had  occurred. 

1  \Comm.  v.  Leach,  156  Mass.  99;  Lincoln  v.  Taunton  Mf'g  Co.,  9 
Allen,  181 ;  Tilton  v.  Miller,  66  Pa.  388  ;  cf.  Doyle  v.  N.  Y.  Infirmary, 
80  N.  Y.  631;  Olmsted  v.  Gere,  100  Pa.  127.] 

2  R.  v.  Palmer,  printed  trial,  p.  124,  etc.  History  Crim.  Law,  iii. 
389.  In  this  case  (tried  in  1856)  evidence  was  given  of  the  symptoms 
attending  the  deaths  of  Agnes  Senet,  poisoned  by  strychnine  in  1845, 
Mrs.  Serjeantson  Smith,  similarly  poisoned  in  1848,  and  Mrs.  Dove, 
murdered  by  the  same  poison  subsequently  to  the  death  of  Cook,  for 
whose  murder  Palmer  was  tried. 

3  Folkes  v.  Chadd,  3  Doug.  157;  [cf.  Hawks  v.  Charlemont,  no 
Mass.  no.] 


152  A  DIGEST  OF  [Part  I. 

son  acquainted  with  the  handwriting  of  the  supposed 
writer  that  it  was  or  was  not  written  or  signed  by  him,  is 
deemed  to  be  a  relevant  fact.1 

A  person  is  deemed  to  be  acquainted  with  the  hand- 
writing of  another  person  when  he  has  at  any  time  seen 
that  person  write,5  or  when  he  has  received  documents 
purporting  to  be  written  by  that  person  in  answer  to 
documents  written  by  himself  or  under  his  authority,  and 
addressed  to  that  person,3  or  when,  in  the  ordinary  course 
of  business,  documents  purporting  to  be  written  by  that 
person  have  been  habitually  submitted  to  him.4 


1  [For  a  valuable  article  on  this  subject,  see  Am.  Law  Rev.  xvi.  569.] 

2  [Comm.  v.  Hall,  164  Mass.  152;  State  v.  Harvey,  131  Mo.  339; 
Karr  v.  State,  106  Ala.  1 ;  State  v.  Farrington,  90  la.  673.  Having 
seen  him  write  once  is  enough;  this  affects  the  weight,  not  the  com- 
petency, of  the  testimony  {Hammond  v.  Varian,  54  N.  Y.  398 ;  Comm. 
v.  Nefus,  135  Mass.  533  ;  McNairv.  Comm.,  26  Pa.  388  ;  State  v.  Stair, 
87  Mo.  268  ;  Diggings  Estate,  68  Vt.  198).  So  a  person's  mark,  having 
some  distinctive  peculiarity,  may  be  proved  in  this  way  (Strong's 
Excrs.  v.  Brewer,  17  Ala.  706;  Fogg  v.  Dennis,  3  Humph.  47 ;  Jack- 
son v.  Van  Ditscn,  5  Johns.  144;  George  v.  Surrey,  1  M.  &  M.  516; 
contra,  Shinkle  v.  Crock,  17  Pa.  159).  But  a  person  who  sees  another 
write,  or  examines  his  handwriting,  expressly  for  the  purpose  of  being 
able  to  testify,  is,  in  general,  an  incompetent  witness  (Reese  v.  Reese, 
90  Pa.  89  ;  Board  of  Trustees  v.  Misenhciincr,  78  111.  22  ;  Hynes  v.  J/c- 
Dermott,  82  N.  Y.  41,  53).  A  witness  may  testify  as  to  handwriting 
who  cannot  read  or  write  himself.     Foye  v.  Patch,  132  Mass.  105.] 

3  [Chaffee  v.  Taylor,  3  Allen,  598;  Clark  v.  Freema7i,  25  Pa.  133; 
Thomas  v.  State,  103  Ind.  419;  Riggs  v.  Powell,  142  111.  453  ;  Cun- 
ningham v.  Hudson  River  Bk.,  21  Wend.  557;  Empire  M/'g  Co.  v. 
Stuart,  46  Mich.  482.  So  if  the  witness  has  received  letters  or  other 
writings  of  a  person,  who  has  afterwards,  by  words  or  acts,  acknowl- 
edged their  genuineness  (Gr.  Ev.  i.  §  577 ;  Johnson  v.  Daverne,  19 
Johns.  134;  Snyder  v.  McKeever,  10  111.  App.  188  ;  Flowers  v.  Fletcher, 
40  \V.  Va.  103  ;  Pinkham  v.  Cockell,  77  Mich.  265,  272  ;  Violet  v.  Rose, 
39  Neb.  660  ;  White  v.  Tolliver,  1 10  Ala.  300);  but  not  if  he  has  only 
seen  letters  to  strangers,  purporting  to  be  those  of  the  person  in  ques- 
tion. Phila.  etc.  R.  Co.  v.  Hickman,  28  Pa.  318;  Gibson  v.  Trow- 
bridge Co.,  96  Ala.  357  ;  Nunes  v.  Perry,  113  Mass.  274.] 

4  See  Illustration.    [Berg  v.  Peterson,  49  Minn.  420  ;   Tit/ordv.  Knott, 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  153 

Illustration. 

The  question  is,  whether  a  given  letter  is  in  the  handwriting  of  A, 
a  merchant  in  Calcutta. 

B  is  a  merchant  in  London,  who  has  written  letters  addressed  to  A, 
and  received  in  answer  letters  purporting  to  be  written  by  him.  C  is 
B's  clerk,  whose  duty  it  was  to  examine  and  file  B's  correspondence. 
D  is  B's  broker,  to  whom  B  habitually  submitted  the  letters  purport- 
ing to  be  written  by  A  for  the  purpose  of  advising  with  him  thereon. 

The  opinions  of  B,  C,  and  D  on  the  question  whether  the  letter  is 
in  the  handwriting  of  A  are  relevant,  though  neither  B,  C,  nor  D  ever 
saw  A  write.1 

The  opinion  of  E,  who  saw  A  write  once  twenty  years  ago,  is  also 
relevant.'2 

Article  52. 

comparison  of  handwritings. 

Comparison  of  a  disputed  handwriting  with  any  writ-, 
ing  proved  to  the  satisfaction  of  the  judge  to  be  genuine 
is  permitted  to  be  made  by  witnesses,  and  such  writings, 
and  the  evidence  of  witnesses  respecting  the  same,  may 
be  submitted  to  the  court  and  jury  as  evidence  of  the 
genuineness  or  otherwise  of  the  writing  in  dispute.  This 
paragraph  applies  to  all  courts  of  judicature,  criminal 


2  Johns.  Cas.  211  ;  Comm.  v.  Smith,  6  S.  &  R.  568.  Thus  public 
officers  who  have  seen  many  official  documents  filed  in  their  office, 
having  the  signature  of  a  certain  justice,  may  testify  as  to  an  alleged 
signature  of  his  {Rogers  v.  Ritter,  12  Wall.  317  ;  Amherst  Bk.  v.  Root, 
2  Met.  522  ;  Burdell  v.  Taylor,  89  Cal.  613).  As  to  signatures  upon 
ancient  writings,  a  person  may  testify  who  has  gained  his  knowledge 
by  inspecting  other  ancient  authentic  documents  bearing  the  same 
signature.    Jackson  v.  Brooks,  8  Wend.  426,  15  id.  111.] 

1  Doe  v.  Sucker  more,  5  A.  &  E.  705  (Coleridge,  J.) ;  730  (Patteson, 
J«);  739-40  (Denman,  C.  J.). 

2  R.  v.  Home  Tooke,  25  S.  T.  71-2.  [In  Wilson  v.  Van  Leer,  127  Pa. 
371,  the  witness  had  seen  the  person  whose  signature  was  in  question 
write  his  nam*  twice,  thirty-two  years  before  ;  and  once,  twenty-three 
years  before  ;  see  also  Brachman  v.  Hall,  1  Disney,  539.] 


154  A  DIGEST  OF  [Part  I. 

or  civil,  and  to  all  persons  having  by  law,  or  by  consent 
of  parties,  authority  to  hear,  receive,  and  examine  evi- 
dence.1 

'  17  &  18  Vict.  c.  125,  s.  27  ;  28  Vict.  c.  18,  s.  8.  [There  are  diverse 
rules  on  this  subject  in  different  States.  A  rule  substantially  like  the 
English  rule  prevails  in  all  the  New  England  States,  in  New  York, 
New  Jersey,  Maryland,  Virginia,  Kentucky,  Tennessee,  Mississippi, 
Ohio,  Iowa,  Kansas,  California,  Colorado,  Oregon,  and  Nebraska 
(State  v.  Thompson,  80  Me.  194;  State  v.  Hastings,  53  N.  H.  452; 
Powell  v.  Fuller,  59  Vt.  688  ;  Costelo  v.  Crowell,  139  Mass.  588  ;  Pub. 
St.  R.  I.  c.  214,  s.  542  ;  State  v.  Griswold,  67  Ct.  290 ;  People  v.  Corey, 
148  N.  Y.  476  ;  Laws  of  1888,  N.  Y.  c.  555  ;  N.  J.  Rev.  p.  381  ;  Laws  of 
Md.  1888,  c.  545  ;  Hanriot  v.  Sherwood,  82  Va.  1  ;  Andrews  v. 
Hay  den's  Admr,  88  Ky.  455  ;  Powers  v.  McKenzie,  90  Tenn.  167 ; 
Wilson  v.  Beanchamp,  50  Miss.  24  ;  Koons  v.  State,  36  O.  St.  195  ; 
Sankey  v.  Cook,  82  la.  125  ;  State  v.  Zimmerman,  47  Kan.  242  ;  Mar- 
shall v.  Hancock,  80  Cal.  82  ;  Laws  of  1893,  Col.  c.  88  ;  Holmes  v. 
Goldsmith,  147  U.  S.  150;  First  Nat.  Bk.  v.  Carson,  48  Neb.  764). 
But  in  many  States,  collateral  and  irrelevant  writings  cannot  be 
introduced  for  comparison  (Snidery.  Burks,  84  Ala.  53  ;  People  v. 
Parker,  67  Mich.  222  ;  State  v.  Thompson,  132  Mo.  301  ;  Him  rod  v. 
Oilman,  147  111.  293  ;  Hazleton  v.  Union  Bank,  32  Wis.  34  ;  cf.  State 
v.  Koontz,  31  W.  Va.  127  ;  Tunstall  v.  Cobb,  109  N.  C.  316  ;  Smyth  v. 
Caswell,  67  Tex.  567) ;  so  in  the  Federal  courts  (Stokes  v.  U.  S.,\ 57  U.  S. 
187) ;  generally,  however,  in  these  States  genuine  writings  which  are 
properly  in  evidence  in  the  case  for  other  purposes  may  be  used  for 
comparison  by  the  jury,  and  in  a  number  of  them  such  comparison 
may  be  made  by  experts  to  aid  the  jury  (Id.;  see  Kirksey  v.  Kirksey, 
41  Ala.  626  ;  Vinton  v.  Peck,  14  Mich.  287  ;  Williams  v.  Conger,  125 
U.  S.  397).  In  Indiana  and  Minnesota  comparison  maybe  made  with 
writings  already  in  evidence  in  the  case  and  also,  by  experts  with 
other  writings  which,  though  not  relevant,  are  admitted  to  be  genuine 
(McDonald  v.  McDonald,  142  Ind.  55,  69;  Morrison  v.  Porter,  35 
Minn.  425  ;  cf.  Dietz  v.  Fourth  Nat.  Bk.,  69  Mich.  287).  In  Pennsyl- 
vania comparison  with  writings  proved  to  be  genuine  may  be  made 
by  the  jury  as  corroborative  evidence,  but  not  by  experts  (Rockeys 
Estate,  155  Pa.  453).  See  this  general  subject  fully  treated  in  Am. 
Law  Rev.  xvii.  21  ;  Gr.  Ev.  i.  §§  576-582. 

A  person's  signature  or  other  writing  made  by  him  in  court  at  the 
trial  will  not  generally  be  allowed  to  be  used  for  comparison  (Cotnm.  v. 
Allen,  128  Mass.  46;  Hickory  v.  U.  S.,  151  U.  S.  303;  Gilbertv.  Simpson, 
6  Daly,  29;    Williams  v.  State,  61  Ala.  33).    But  this  is  sometimes  per- 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  155 




(m~> 


Article  53. 


OPINION   AS  TO   EXISTENCE   OF    MARRIAGE,    WHEN   RELEVANT. 

When  there  is  a  question  whether  two  persons  are  or 
are  not  married,  the  facts  that  they  cohabited  and  were 
treated  by  others  as  man  and  wife  are  deemed  to  be  rele- 
vant facts,  and  to  raise  a  presumption  that  they  were 
lawfully  married,  and  that  any  act  necessary  to  the  va- 
lidity of  any  form  of  marriage  which  may  have  passed 
between  them  was  done ;  but  such  facts  are  not  sufficient 
to  prove  a  marriage  in  a  prosecution  for  bigamy  or  in 
proceedings  for  a  divorce,  or  in  a  petition  for  damages 
against  an  adulterer.1 


mitted  upon  cross-examination  of  the  person  whose  signature,  etc.,  is 
in  question,  or  when  the  writing  is  made  at  the  request  of  the  opposite 
party  who  offers  it  for  comparison  {Chandler  v.  LeBarron,  45  Me.  534  ; 
People  v.  De  Kroyft,  49  Hun,  71  ;  U.  S.  v.  Mullaney,  32  F.  R.  370; 
Bradford  v.  People,  22  Col.  157;  King  v.  Donahue,  no  Mass.  155). 
Nor  may  a  person's  signature,  counterfeited  by  another,  be  submitted 
to  expert  witnesses  on  cross-examination,  to  test  their  capacity  as 
experts  or  their  knowledge  of  the  person's  handwriting  {Gaunt  v. 
Harkness,  53  Kan.  405  ;  Rose  v.  First  Nat.  Bk.,  91  Mo.  399). 

Letterpress  copies  cannot  be  used  for  comparison  {Cohen  v.  Teller, 
93  Pa.  123  ;  Co/n/11.  v.  Eastman,  1  Cus'h.  189).  But  photographic 
copies  may  be,  when  the  originals  are  also  before  the  court  {Hynes  v. 
McDermott,  82  N.  Y.  41  ;  Marcy  v.  Barnes,  16  Gray,  161  ;  but  see 
To?ne  v.  Parkersburgh,  etc.  R.  Co.,  39  Md.  36). 

Experts  in  handwriting  may  also  testify  to  other  matters ;  as  e.g., 
whether  a  writing  is  forged  or  altered,  when  a  writing  was  probably 
made,  whether  all  its  parts  are  in  the  same  handwriting,  what  certain 
words,  difficult  to  decipher,  really  are,  etc.  Travis  v.  Brown,  43  Pa. 
9;  Witheev.  Rowe,  45  Me.  571;  Dreslerv.  Hard,  127  N.  Y.  235; 
Pearson  v.  Hardin,  95  Mich.  360  ;  Eisfieldx.  Dill,  71  la.  442.] 

1  Morris  v.  Miller,  4  Burr.  2057  ;  Birt  v.  Barlow,  1  Doug.  170  ;  and 
see  Calherwoodv.  Caslon,  13  M.  &  W.  261.  Compare  R.  v.  Main- 
waring,  D.  &  B.  132.  See,  too,  De  Thoren  v.  A.  G.,  1  App.  Cas. 
686  ;  Piers  v.  Piers,  2  H.  &  C.  331.  Some  of  the  references  in  the 
report  of  De  Thoren  v.  A.  G.  are  incorrect.  This  Article  was  not  ex- 
pressed strongly  enough  in  the  former  editions.    [Gall  v.  Gall,  114 


156  A  DIGEST  OF  [Part  1. 

Article  54. 
grounds  of  opinion,  when  deemed  to  be  relevant. 

Whenever  the  opinion  of  any  living  person  is  deemed 
to  be  relevant,  the  grounds  on  which  such  opinion  is 
based  are  also  deemed  to  be  relevant.1 

Illustratio7i. 
An  expert  may  give  an  account  of  experiments  performed  by  him 
for  the  purpose  of  forming  his  opinion.2 


N.  Y.  109  ;  Greenawalt  v.  McEnelley,  85  Pa.  352  ;  Maryland  v.  Bald- 
win, 1 12  U.  S.  490  ;  Wallaces  Case,  49  N.  J.  Eq.  530  ;  Peet  v.  Peet,  52 
Mich.  464  ;  White  v.  White,  82  Cal.  427  ;  Jackson  v.  Jackson,  80  Md. 
176,  82  Md.  17  ;  Mass.  Pub.  St.  c.  145,  s.  31.  Cohabitation  and  repute 
do  not,  however,  constitute  marriage  ;  they  are  only  evidence  of  mar- 
riage, and  the  presumption  of  marriage  arising  therefrom  may  be 
rebutted  (Collins  v.  Voorhees,  47  N.  J.  Eq.  555  ;  Grimm's  Estate,  131 
Pa.  199  ;   Clayton  v.  War  dell,  4  N.  Y.  230). 

Such  evidence  of  repute,  etc.,  has  been  deemed  sufficient  to  prove  a 
marriage  in  bastardy  proceedings  (State  v.Worthingham,  23  Minn. 
528),  but  not  in  criminal  prosecutions  for  bigamy,  incest,  adultery, 
loose  and  lascivious  cohabitation,  nor  in  actions  fur  criminal  conver- 
sation (Hayes  v.  People,  25  N.  Y.  390  ;  Green  v.  State,  21  Fla.  403  ; 
State  v.  Roswell,  6  Ct.  446  ;  State  v.  Hodgskins,  19  Me.  155  ;  Dann  v. 
Kingdom,  1  T.  &  C.  492  ;  Co7nm.  v.  Littlejohn,  15  Mass.  163  ;  Hutch- 
ins  v.  Kimmell,  31  Mich.  126  ;  Hilcr  v.  Peojle,  156  111.  511;  cf.  State 
v.  Sherwood,  68  Vt.  414  ;  State  v.  Cooper,  103  Mo.  266).  But  in  some 
States  it  is  deemed  sufficient  in  divorce  suits  (Bishop,  M.  D.  &  S.  ii. 
§§  746-758  ;  see  Collins  v.  Collins,  80  N.  Y.  10). 

A  marriage  may  generally  be  proved  by  admissions  either  in  civil 
or  criminal  cases  (Miles  v.  State,  103  U.  S.  304  ;  Womack  v.  Tankersley, 
78  \'a.  242  ;  State  v.  Wylde,  no  N.  C.  500  ;  but  see  Eisenlord  v.  Clum, 
126  N.  Y.  552,  562);  especially  is  this  true  if  evidence  of  cohabitation 
and  repute  be  superadded.     Id.;  State  v.  Hughes,  35  Kan.  626.] 

1  [Thus  the  expert  may  state  his  reasons  for  his  opinion.  Hawkins 
v.  Fall  River,  1 19  Mass.  94  ;  Steam  Mill  Co.  v.  Water  Power  Co.,  78 
Me.  274.] 

2  [Eidt  v.  Cutter,  127  Mass.  522  ;  Sullivan  v.  Comm.,  93  Pa.  284 ; 
Moore  v.  State,  96  Tenn.  209 ;  Linsday  v.  People,  63  N.  Y.  143,  156 ; 
People  v.  Morrigan,  29  Midi.  5.     So  an  expert  may  be  permitted  to 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  157 


perform  experiments  before  the  jury,  or  make  illustrations  on  a  black- 
board, to  explain  his  testimony  {Leonard  v.  Southern  Pac.  Co.,  21  Or. 
555;  AIcKayx.  Lasher,  121  N.  Y.477;  Pennsylvania  Coal  Co.  v.  Kelly, 
1 56  111.  9).  Evidence  of  experiments  may,  however,  be  rejected  unless 
they  were  performed  under  conditions  like  those  existing  in  the  case 
on  trial  ( Comni.  v.  Piper,  120  Mass.  185  ;  People  v.  Slack,  go  Mich.  448  ; 
State  v.  Fletcher,  24  Or.  295).  Experiments  performed  by  jurors,  away 
from  the  court-room,  have  been  held  sufficient  ground  for  a  new  trial. 
People  v.  Colliding,  in  Cal.  616.] 


^ 


158  A  DIGEST  OF  [Part  I. 


CHAPTER  VI  * 

CHARACTER,    WHEN   DEEMED     TO    BE    RELEVANT 
AND   WHEN  NOT. 

Article  55. 
character  generally  irrelevant. 

The  fact  that  a  person  is  of  a  particular  character  is 
deemed  to  be  irrelevant  to  any  inquiry  respecting  his 
conduct,  except  in  the  cases  mentioned  in  this  chapter. 

Article  56. 
.  evidence  of  character  in  criminal  cases. 

In  criminal  proceedings,  the  fact  that  the  person  ac- 
cused has  a  good  character,  is  deemed  to  be  relevant ; ' 
but  the  fact  that  he  has  a  bad  character  is  deemed  to  be 


*  See  Note  XXV.  [Appendix]. 
1  [Edgington  v.  U.  S.,  164  U.  S.  361;  People  v.  Sweeney,  133  N.  Y. 
609  ;  Co?nm.  v.  Cleary,  135  Pa.  64  ;  People  v.  Harrison,  93  Mich.  594  ; 
Jackson  v.  State,  81  Wis.  127.  It  is  generally  held  that  the  proof  must 
be  of  good  character  in  respect  to  the  trait  involved  in  the  charge 
(  People  v.  Fair,  43  Cal.  137  ;  Comm.  v.  Nagle,  157  Mass.  554  ;  Kahlen- 
beck  v.  State,  1 19  Ind.  118;  Griffin  v.  State,  14  O.  St.  55  ;  State  v.  King, 
78  Mo.  555  ;  see  Cancemi  v.  People,  16  N.  Y.  501;  Gr.  Ev.  iii.  §  25). 
Such  evidence  is  now  generally  received,  whether  the  evidence  to 
show  the  prisoner's  guilt  be  direct  or  circumstantial  ;  even  when  it  is 
direct,  evidence  of  good  character  may  affect  its  credibility,  or  tend  to 
create  a  doubt  as  to  guilt  (Id.;  Remsen  v.  People,  43  N.  Y.  6  ;  People 
v.  Jassifio,  100  Mich.  536 ;  State  v.  Keefe,  54  Kan.  197  ;  Comm.  v. 
Leonard,  140  Mass.  473  ;  State  v.  Howell,  100  Mo.  628  ;  State  v.  Rod- 
man, 62  la.  456).  If  defendant  fails  to  offer  evidence  of  his  good  char- 
acter, no  presumption  arises  that  he  is  guilty  of  the  offence  charged 
or  that  he  is  of  bad  character.    People  v.  Evans,  72  Mich.  367.] 


Chap.  VI.]  THE  LAW  OF  EVIDENCE.  159 

irrelevant,  unless  it  is  itself  a  fact  in  issue,  or  unless  evi- 
dence has  been  given  that  he  has  a  good  character,  in 
which  case  evidence  that  he  has  a  bad  character  is  ad- 
missible.1 

2  In  this  Article  the  word  "character"  means  reputation 
as  distinguished  from  disposition,  and  evidence  may  be 
given  only  of  general  reputation  and  not  of  particular 
acts  by  which  reputation  or  disposition  is  shown.3 

Article  57. 
character  as  affecting  damages.4 

In  civil  cases,  the  fact  that  a  person's  general  repu- 
tation is  bad  may,  it  seems,  be  given  in  evidence  in 
reduction  of  damages ;  but  evidence  of  rumors  that  his 
reputation  was   bad,  and    evidence   of    particular  facts 


1  [People  v.  White,  14  Wend,  in  ;  State  v.  Lapage,  57  N.  H.  245  ; 
State  v.  Hull,  18  R.  I.  207  ;  People  v.  Fair,  43  Cal.  137.  But  when  de- 
fendant becomes  a  witness  in  his  own  behalf,  he  may  be  impeached 
like  any  other  witness  by  proof  of  bad  character  {State  v.  Nelson,  98 
M-o.  414  ;  see  post,  Art.  133,  note).  For  additional  rules  in  criminal 
cases,  see  Art.  13^,  post ;  Art.  7,  note  3,  ante.] 

2  [Just  before  this  last  paragraph,  Mr.  Stephen  inserts  in  this  Article 
certain  special  statutory  rules  of  the  English  law.  They  will  be  found 
in  the  Appendix,  Note  L.] 

3  R.  v.  Rowton,  1  L.  &  C.  520.  \_Comm.  v.  O'Brien,  119  Mass.  342  ; 
Snyder  v.  Covim.,%5  Pa.  519;  People  v.  Sharp,  107  N.  Y.  427,  457; 
State  v.  Lapage,  57  N.  H.  245  ;  McQueen  v.  State,  108  Ala.  54  ;  Ber- 
neker  v.  State,  40  Neb.  810.  The  reputation  of  a  person  must  be  that 
in  his  own  community  {C«nkcy  v.  People,  1  Abb.  Dec.  418  ;  Cart  ha  us 
v.  State,  78  Wis.  560).  In  Iowa  and  Minnesota,  however,  evidence  of 
"disposition  "  is  received,  as  well  as  of  "general  reputation."  State 
v.  Sterrett,  68  la.  76  ;  Stale  v.  Lee,  22  Minn.  407.]  R.  v.  Turberfield, 
1  L.  &  C.  495,  is  a  case  in  which  the  character  of  a  prisoner  became 
incidentally  relevant  to  a  certain  limited  extent. 

4  [Mr.  Stephen  ends  this  Article  with  a  paragraph  stating  a  peculiar 
rule  of  the  English  law  in  regard  to  actions  for  libel  and  slander.  It 
will  be  found  in  the  Appendix,  Note  L.] 


160  A  DIGEST  OF  [Part  I. 

showing-  that  his  disposition  was  bad,  cannot  be  given  in 
evidence.' 


1  Scott  v.  Sampson,  8  Q.  B.  D.  491,  in  which  all  the  older  cases  are 
minutely  examined  in  the  judgment  of  Cave,  J.  [This  rule  is  expressed 
too  broadly  by  Mr.  Stephen.  The  case  of  Scott  v.  Sampson,  upon 
which  it  is  based,  does  not  state  it  as  applicable  to  ail  civil  cases,  but 
only  to  actions  for  libel  ox  slander. 

Evidence  of  a  party's  character  is  generally  incompetent  in  civil 
actions  (Gr.  Ev.  i.  §  55  ;  Fahey  v.  Crotty,  63  Mich.  383  ;  Vawter  v. 
Hultz,  112  Mo.  633  ;  American  Ins.  Co.  v.  Hazen,  no  Pa.  530).  Thus 
in  an  action  for  assault  and  battery,  the  defendant  cannot  prove  the 
plaintiff's  bad  character  {Corning  v.  Cornvig,  6  N.  Y.  97  ;  Bruce  v. 
Priest,  5  Allen,  100),  nor  his  own  good  character  {Day  v.  Ross,  154 
Mass.  13  ;  Elliott  v.  Russell,  92  Ind.  526);  nor  can  the  plaintiff's  bad 
repute  be  shown  in  an  action  for  the  seduction  of  his  daughter  {Dain 
v.Wyckoff,  18  N.  Y.  45);  nor  that  of  a  party  to  a  note  in  an  action 
thereon  {Battles  v.  Laudenslager,  84  Pa.  446);  nor  the  character  of 
either  party  for  care  and  prudence  in  an  action  for  negligence  {Mc- 
Donald v.  Savoy,  1 10  Mass.  49  ;  Chase  v.  Me.  Cent.  R.  Co.,  77  Me.  62  ; 
Holtzman  v.  Hoy,  1 18  111.  534  ;  Hall  v.  Rankin,  87  la.  261).  So  in  an 
action  against  a  master  for  the  negligence  of  his  servant,  evidence  of 
the  servant's  good  or  bad  reputation  as  to  carefulness  is  excluded 
{Malcolm  v.  Fuller,  152  Mass.  160  ;  Williams  v.  Edmunds,  75  Mich. 
92),  unless  the  question  is  as  to  the  master's  negligence  in  employing 
an  incompetent  servant  {Monahan  v.  Worcester,  150  Mass.  439  ;  Lake 
Shore,  etc.  R.  Co.  v.  Stupalc,  123  Ind.  210 ;  cf.  Park  v.  N.  Y.  C.  R.  Co., 
155  N.  Y.  215  ;  see  Art.  10,  Illustration  (g),  ante).  So  evidence  of  the 
defendant's  good  character  is  not  admissible  in  his  behalf  in  a  civil 
action,  even  though  he  be  charged  with  fraud  {Gough  v.  St.  John,  16 
Wend.  646;  Boardman  v.  Woodman,  47  N.  H.  120;  Simpson  v. 
Wcstenberger,  28  Kan.  756  ;  Leinkau/v.  Brinker,  62  Miss.  255  ;  contra, 
Werts  v.  Spearman,  22  S.  Car.  200);  nor  can  the  good  character  of  a 
party  to  a  civil  action  be  shown  to  rebut  a  charge  of  crime  made 
against  him  therein  by  the  other  party  {Stone  v.  Haivkeye  Ins.  Co.,  68 
la-  737  ;  Gebhart  v.  Burkett,  57  Ind.  378  ;  but  see  Lamagdelaine  v. 
Tremblay,  162  Mass.  339  ;  as  to  libel  and  slander  cases,  see  cases 
infra).  Nor  generally  can  the  good  character  of  any  party  or  person 
interested  in  the  action  be  shown,  except  in  answer  to  evidence  from 
the  other  side  attacking  his  character  (  Pratt  v.  Andrews,  4  X.  Y.403  ; 
see  Young  v.  Johnson,  123  X.  Y.  226  ;  Mosley  v.  Ins.  Co.,  55  \'t.  142). 

In  some  cases  the  question  of  character  is  involved  in  the  nature  of 
the  action,  and  evidence  of  general  reputation  is  received.    Thus  in 


Chap.  VI.]  THE  LAW  OF  EVIDENCE.  i6r 


actions  for  libel  or  slander,  evidence  may  be  given  of  the  plaintiff's 
general  bad  reputation,  in  mitigation  of  damages  {Homer  v.  McFarlin, 
4  Den.  509  ;  Drown  v.  Allen,  91  Pa.  393  ;  Bathricky.  Detroit  Post  Co., 
50  Mich.  629  ;  Nellis  v.  Cramer,  86  Wis.  337);  but  not  that  reports  were 
in  circulation  charging  him  with  the  act  imputed  {Kennedy  v.  Gifford, 
19  Wend.  296  ;  Pease  v.  Shippen,  80  Pa.  513  ;  Mahoney  v.  Belford,  132 
Mass.  393  ;  Sickra  v.  Small,  87  Me.  493  ;  Hanners  v.  McClelland,  74  la. 
318  ;  contra,  Case  v.  Marks,  20  Ct.  248),  at  least  if  the  defendant  did 
not  know  of  such  reports  when  he  made  the  charge  {Hatfield  v.  Lasher, 
81  N.  Y.  246  ;  Lathrop  v.  Adams,  133  Mass.  471  ;  Larrabee  v.  Minn. 
Tribune  Co.,  36  Minn.  141  ;  cf.  Hoboken  Printing  Co.  v.Kahn,  58  N.  J. 
L.  359);  nor  can  particular  acts  of  misconduct  be  proved  {McLaughlin 
v.  Cowley,  131  Mass.  70  ;  Hallowell  v.  Guntle, 82  Ind.  554);  nor  can  the 
defendant  prove  his  own  bad  character  {Hastings  v.  Stetson,  130  Mass. 
76).  In  actions  for  libel  and  slander,  as  in  other  civil  actions,  the 
plaintiff  cannot  give  evidence  of  his  own  good  character  until  it  has 
been  assailed  by  the  other  side  {Hitchcock  v.  Moore,  70  Mich.  112  ; 
Chubb  v.  Gsell,  34  Pa.  114;  Blakeslee  v.  Hughes,  50  O.  St.  490 ;  Cooper 
v.  Phipps,  24  Or.  357);  but  some  States  admit  such  evidence  {Adams 
v.  Lawson,  17  Gratt.  250;  Shroyer  v.  Miller,  3  W.  Va.  158),  others 
admit  it  when  the  defendant  has  charged  the  plaintiff  with  crime 
{Downey  v.  Dillon,  52  Ind.  442  ;  see  Howland  v.  Blake  Mfg.  Co.,  156 
Mass.  543,  568),  and  it  has  also  been  admitted  when  plaintiff's 
character  has  been  expressly  put  in  issue  by  the  pleadings  {Stafford 
v.  Morning  Journal  Ass  n,  142  N.  Y.  598  ;  contra,  Lotto  v.  Davenport, 
50  Minn.  99).  In  actions  for  malicious  prosecution,  plaintiff's  general 
bad  repute  may  be  shown  to  reduce  the  damages  {Gregory  v.  Cham- 
bers, 78  Mo.  294;  Rosenkrans  v.  Barker,  115  111.  331  ;  O'Brien  v. 
Frasier,  47  N.  J.  L.  349);  and  sometimes  such  evidence  is  received  as 
affecting  the  existence  of  probable  cause  {Mclntire  v.  Levering,  148 
Mass.  546  ;  Woodworth  v.  Mills,  61  Wis.  44  ;  as  to  an  action  for  false 
imprisonment,  see  Amer.  Express  Co.  v.  Patterson,  73  Ind.  430).  In 
actions  for  criminal  conversation,  seduction,  breach  of  promise  of 
marriage,  and  indecent  assault,  the  woman's  bad  reputation  for 
chastity  maybe  proved  {Sanborn  v.  Xcilson,  4  N.  H.  501  ;  Van  Storch 
v.  Griffin,  71  Pa.  240;  White  \.  Murtland,  71  111.  250  ;  Hogau  v. 
Cregan,  6  Rob.  138  ;  Mitchell  \.  Work,  13  R.  I.  645  ;  as  to  proof  of 
specific  acts  of  unchastity  in  such  cases,  see  Id.;  Art  134,  note,  post; 
Gr.  Ev.  ii.  §§  56  and  579).  As  to  proving  the  character  of  a  witness, 
see  Art.  133,  post. 

"  Character"  in  this  Article  and  note  means  general  reputation  (ex- 
cept as  otherwise  stated)  and  cannot  be  shown  by  proof  of  specific 
acts  {Miller  \.  Curtis,  158  Mass.  127,  131).  Usually  the  reputation 
proved  concerns  the  particular  trait  involved  in  the  cause  of  action 


[62  A  DIGEST  OF  [Part  I. 

{Warner  v.  Lockerby,  31  Minn.  421  ;  Maxwell  \.  Kennedy,  50  Wis. 
645  ;  see,  generally,  the  cases  in  this  note),  but  sometimes  evidence  of 
general  moral  character  is  also  received.  Clark  v.  Brown,  116  Mass. 
504,  slander  case  ;  Duval  v.  Davey,  32  O.  St.  604,  612  ;  Post  Pub'g 
Co.  v.  Hallam,  59  F.  R.  530  ;  Sickra  v.  Small,  87  Me.  493  ;  see  Root 
v.  King,  7  Cow.  613,  4  Wend.  113.] 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  163 


PART  II. 

ON    PROOF. 

CHAPTER  VII. 

FACTS  PROVED  OTHERWISE   THAN  BY  EVIDENCE— 
JUDICIAL  NOTICE.  C 

Article  58.* 
of  what  facts  the  court  takes  judicial  notice. 

It  is  the  duty  of  all  judges  to  take  judicial  notice  of  the 
following  facts : — 


*  See  Note  XXVI.  [Appendix]. 


[It  is  the  duty  of  courts  in  this  country  to  take  judicial 
notice  of  the  following  facts  : 

(1)  The  common  law  and  public  statute  law  of  their  own 
State,1  but  not  the  law  of  any  other  State  or  country;'2  but 


1  {Shaw  v.  Tobias,  3  N.  Y.  188  ;  Unity  v.  Burrage,  103  U.  S.  447.  So 
of  the  law  merchant  {Reed  v.  Wilson,  41  N.  J.  L.  29);  of  the  charter  of 
a  municipal  corporation,  being  a  public  statute  (Slier  v.  Oskaloosa,  41 
la.  353  ;  Kansas  City  v.  Vineyard,  128  Mo.  75  ;  Winooski  v.  Gokey,  49 
Vt.  282  ;  in  some  States  all  acts  of  incorporation  are  public  laws,  Mass. 
Pub.  St.  c.  169,  s.  68  ;  State  v.  McAllister,  24  Me.  139) ;  of  the  laws  of 
the  antecedent  government,  when  there  has  been  a  union  or  division 
of  states  or  countries  (U.  S.  v.  Perot,  98  U.  S.  428  ;  Stokes  v.  Macken, 
62  Barb.  145);  but  not  of  private  statutes  (Timlow  v.  P.  &*  R.  R.  Co., 
99  Pa.  284),  unless,  as  often  now  happens,  a  special  law  authorizes  it 
(Railroad  Co.  v.  Bank  of  Ashland,  12  Wall.  226  ;  Case  v  Kelly,  133 
U.  S.  21);  nor  of  municipal  ordinances  (Porter  v.  Waring,  69  N.  Y. 
250  Centrdl  Sav.  Bk.  v.  Baltimore,  71  Md.  515  ;  St.  Louis  v.  Roche, 
128  Mo.  541),  except  in  the  courts  of  the  municipality.  Ex  parte 
Davis,  115  Cal.  445  ;  Foley  v.  State,  42  Neb.  233  ;  cf.  Hankinson  v. 
Trenton,  51  N.  J.  L.  495.] 

'-'  {Liverpool  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397  ;  Monroe  v. 


[64  A  DIGEST  OF  [Part  II. 

( i )  All  unwritten  laws,  rules,  and  principles  having  the 
force  of  law  administered  by  any  court  sitting  under  the 
authority  of  Her  Majesty  and  her  successors  in  England 
or  Ireland,  whatever  may  be  the  nature  of  the  jurisdic- 
tion thereof.1 

(2)  All  public  Acts  of  Parliament,1  and  all  Acts  of  Par- 
liament whatever,  passed  since  February  4,  185 1,  unless 
the  contrary  is  expressly  provided  in  any  such  Act.2 


1  Ph.  Ev.  460-1  ;  T.  E.  s.  4,  and  see  36  &  37  Vict.  c.  66  (Judicature 
Act  of  1873),  s-  25- 

'2  13  &  14  Vict.  c.  21,  ss.  7,  8,  and  see  (for  date)  caption  of  session  of 
14  &  15  Vict. 

the  Federal  courts,  in  the  exercise  of  their  original  jurisdic- 
tion, take  notice  of  the  public  laws  of  the  several  States  when 
such  laws  are  properly  applicable  to  cases  heard  before 
them,'  and,  in  like  manner,  general  acts  of  Congress  will  be 
noticed  in  State  courts.2 

(2)  The  existence  of  the  legislature,  the  time  and  place  of 


Douglas,  5  N.  Y.  447  ;  see  p.  145,  note  1,  ante.  But  in  a  few  States  of 
this  country  it  has  been  held  that  in  giving  full  faith  and  credit  to  the 
public  acts  and  records  of  another  State  (see  Art.  47,  note,  ante),  judi- 
cial notice  will  be  taken  of  the  law  of  that  State  {Paine  v.  Ins.  Co.,  1 1 
R.  I.  411;  Ohio  v.  Hinchman,  27  Pa.  479  ;  cf.  Carpenter  v.  Dexter,  8 
Wall.  513;  Wilson  v.  Phoenix  Mfg.  Co.,  40  W.  \'a.  413).  The  great 
weight  of  authority,  however,  is  to  the  contrary.  Hanley  v.  Donoghue, 
116  U.  S.  1,  5  ;  Sammis  v.  Wight  man,  31  Fla.  10;  Osborn  v.  Black- 
burn, 78  Wis.  209.] 

1  [Lamar  v.  Micou,  114  U.  S.  218.  But  the  U.  S.  Supreme  Court, 
upon  writ  of  error  to  the  highest  court  of  a  State,  does  not  take  judi- 
cial notice  of  the  law  of  another  State,  not  proved  in  that  court  and 
made  part  of  the  record  sent  up,  unless  by  the  local  law  that  court 
takes  judicial  notice  of  it.  Liverpool  Steam  Co.  v.  Phenix  Ins.  Co., 
129  U.  S.  397,  445  ;  Lloyd  v.  Matthews,  155  U.  S.  222  ;  see  last  note.] 

8  [Kessel  v.  Albelis,  56  Barb.  362;  Bird  v.  Com///.,  21  Gratt.  800; 
Schwerdtle  v.  Placer  Co.,  108  Cal.  589.  So  of  the  decisions  of  the  U. 
S.  Supreme  Court,  construing  acts  of  Congress.  Southern  Pac.  R.  Co. 
v.  Painter,  113  Cal.  247.] 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  165 

(3)  The  general  course  of  proceeding  and  privileges  of 
Parliament  and  of  each  House  thereof,  and  the  date  and 
place  of  their  sittings,  but  not  transactions  in  their 
journals.1  

1  Ph.  Ev.  460;  T.  E.  s.  5. 

its  sessions,  its  usual  course  of  proceeding,  and  the  privileges 
of  its  members,1  but  not  the  transactions  in  its  journals.'2 

(3)  General  customs  observed  in  the  transaction  of  busi- 
ness.3   

1  [Gr.  Ev.  i.  §  6  ;  Coleman  v.  Dobbins,  8  Ind.  156,  162.  Thus  the 
courts  will  notice  which  of  two  bodies  of  men  is  the  rightful  legisla- 
ture, when  each  claims  the  right  (Opinion  of  Justices,  70  Me.  609). 
The  doings  of  the  executive  and  legislative  departments  of  the  gov- 
ernment will  be  noticed.  Id.;  Prince  v.  Skillin,  71  Me.  361;  Mnllan 
v.  State,  114  Cal.  578 ;  cf.  In  re  Gunn,  50  Kan.  155.] 

■[Grob  v.  Cushman,  45  111.  119;  Bnrt  v.  Winona,  etc.  R.  Co.,  31 
Minn.  472.  This  rule  is  chiefly  applied  in  holding  that  the  courts  will 
not  take  notice  of  such  journals  in  order  to  impeach  the  validity  of  an 
enrolled  act  of  the  legislature,  which  has  been  officially  attested  by 
the  presiding  officers  of  both  houses  and  approved  by  the  executive 
{Harwood  v.  Wentivorth,  162  U.  S.  547  ;  Ex  parte  Wren,  63  Miss.  512; 
Carr  v.  Coke.  1 16  N.  C.  223  ;  State  v.  Denny,  1 18  Ind.  449,  455  ;  Weeks 
v.  Smith,  81  Me.  538).  In  many  States,  however,  judicial  notice  will 
be  taken  of  the  journals,  under  such  circumstances,  to  determine 
whether  the  statute  was  duly  passed  by  the  legislature  {Rode  v.  Phelps, 
80  Mich.  598  ;  A/oogv.  Randolph,  77  Ala.  597  ;  Ate  Donald  v.  State,  80 
Wis.  407  ;  Stale  v.  Hocker,  36  Fla.  358  ;  Robertson  v.  People,  20  Col. 
279  ;  cf.  Rumsey  v.  N.  Y.  etc.  R.  Co.,  130  N.  Y.  88  ;  Division  of  How- 
ard Co.,  15  Kan.  194  ;  see  cases  collected  in  Field  v.  Clark,  143  U.  S. 
649,  660-  It  is  held  also  in  some  cases  that  the  journals  may  be 
judicially  noticed  for  other  purposes.  Edgar  v.  Board  of  Coinmrs., 
70  Ind.  331;  ///.  Cent.  R.  Co.  v.  Wren,  43  111.  yj.] 

3  [Cameron  v.  Blackrnan,  39  Mich.  108  ;  Atchison,  etc.  R.  Co.  v.  Head- 
land, 18  Col.  477  ;  Nash  v.  Classen,  163  111. 409  ;  Merchants'  Nat.  Bank 
v.  Hall,  83  N.  Y.  338.  In  this  last  case,  the  court  took  notice  of  the 
practice  of  banks  to  grant  renewals  of  obligations  upon  payment  of  a 
new  discount.  So  the  general  mode  of  doing  banking  business,  bank- 
ing hours,  etc.,  are  noticed.  State  v.  Arnold,  140  Ind.  628  ;  Hutchin- 
son v.  Manhattan  Co.,  150  N.  Y.  250  ;  American  Nat.  Bank  v.  Bushey, 
45  Mich.  135.] 


166  A  DIGEST  OF  [Part  II. 

(4)  All  general  customs  which  have  been  held  to  have 
the  force  of  law  in  any  division  of  the  High  Court  of  Jus- 
tice or  by  any  of  the  superior  courts  of  law  or  equity, 
and  all  customs  which  have  been  duly  certified  to  and 
recorded  in  any  such  court.1 

(5)  The  course  of  proceeding  and  all  rules  of  practice 


1  The  old  rule  was  that  each  court  took  notice  of  customs  held  by  or 
certified  to  it  to  have  the  force  of  law.  It  is  submitted  that  the  effect 
of  the  Judicature  Act,  which  fuses  all  the  courts  together,  must  be  to 
produce  the  result  stated  in  the  text.  As  to  the  old  law,  see  Piper  v. 
Chappell,  14  M.  &  W.  649-50.  Ex  parte  Powell,  hi  re  Matthews,  1 
Ch.  D.  505-7,  contains  some  remarks  by  Lord  Justice  Mellish  as  to 
proving  customs  till  they  come  by  degrees  to  be  judicially  noticed. 

(4)  The  course  of  proceeding  and  all  rules  of  practice  in 
force  in  the  court  itself  ;'  its  own  record  books  and  entries 
therein  ;3  the  other  courts  established  by  law  in  the  same 
State,  their  judges,  extent  of  jurisdiction  and  course  of  pro- 
ceeding ;3  but  appellate  courts  will  not  take  judicial  notice 


1  [Wh.  Ev.  i.  §  324.  The  terms  of  court  are  noticed  {Kidder  v.  Blais- 
dcll,  45  Me.  461 ;  Rodgers  v.  State,  50  Ala.  102)  ;  but  not  the  pendency 
of  another  action  in  the  same  or  another  court.  Eyster  v.  Gaff,  91  U. 
S.  521  ;  State  v.  Wilson,  39  Mo.  App.  114.] 

2  [Fellers  v.  Lee,  2  Barb.  488  ;  Robinson  v.  Brown,  82  111.  279  ;  Den- 
ney  v.  State,  144  Ind.  504  ;  Hallenbach  v.  Schnabcl,  101  Cal.  312.  A 
court  will  take  notice  of  its  own  orders  or  prior  proceedings  in  the 
same  case  {State  v.  Ulricli,  no  Mo.  350  ;  Jordan  v.  Circuit  Ct.,  69  la. 
177  ;  State  v.  Stevens,  56  Kan.  720 ;  cf.  Garrcison  v.  Fcrrall,  92  la. 
728);  but  not  of  a  former  judgment  or  decree  between  the  same  par- 
ties in  the  same  or  another  court.  Ralphs  v.  Jlcnsler,  97  Cal.  296; 
McCormick  v.  Herndon,  67  Wis.  648  ;  Schuler  v.  Israel,  120  U.  S.  506, 
509;  Enix  v    Miller,  54  la.  551.] 

z\Vahle  v.  Brackenseik,  145  111.  231  ;  State  v.  Wright,  16  R.  I.  518  ; 
State  v.  Higgins,  124  Mo.  640  ;  Hatcher  v.  Rocheleau,  18  N.  Y.  86,  90; 
Kennedy  v.  Comm.,  78  Ky.  |  (7  ;  Kilpatrick  v.  Com  in.,  31  Pa.  198.  This 
last  case  holds  that  the  superior  courts  will  take  notice  who  are  the 
judges  of  the  inferior  State  tribunals, — which  by  common  law  was  a 
doubtful  question  (see  Gr.  Ev.  i.  §6,  note).  The  fact  that  a  judge 
has  resigned  is  judicially  noticed.     People  v.  M<  ( 'onnell,  155  111.  192.] 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  167 

in  force  in  the  Supreme  Court  of  Justice.  Courts  of  a 
limited  or  inferior  jurisdiction  take  judicial  notice  of 
their  own  course  of  procedure  and  rules  of  practice,  but 
not  of  those  of  other  courts  of  the  same  kind,  nor  does 
the  Supreme  Court  of  Justice  take  judicial  notice  of  the 
course  of  procedure  and  rules  of  practice  of  such  courts.1 

(6)  The  accession  and  (scmblc)  the  sign  manual  of  Her 
Majesty  and  her  successors.2 

(7)  The  existence  and  title  of  every  State  and  Sover- 
eign recognized  by  Her  Majesty  and  her  successors.3 


1 1  Ph.  Ev.  462-3  ;  T.  E.  s.  19.         -  1  Ph.  Ev.  458  ;  T.  E.  ss.  16, 12. 
3 1  Ph.  Ev.  460  ;  T.  E.  s.  3. 


of  the  rules  of  practice  in  inferior  courts  when  reviewing 
their  judgments  or  decrees.1 

(5)  The  official  status  and  signatures  of  officers  of  the  court, 
as  attorneys,  clerks  of  court,  etc.2 

(6)  The  political  constitution  of  their  own  government ;  the 
accession  of  the  President  of  the  United  States  or  of  the 
executive  of  the  State,  and  their  signatures  ;3  the  official 
status  of  the  chief  public  officers  of  the  United  States  or  of 
the  State,  as  e.  g.,  cabinet  officers,   foreign  ministers,  sen- 


1  \Knarr  v.  Conaivay,  42  Ind.  260  ;  Anderson  v.  McCormick,  129  111. 
308  ;  Cutter  v.  Caruthers,  48  Cal.  178  ;  Cherry  v.  Baker,  17  Md.  75  ; 
Kindel  v.  Le  Bert,  23  Col.  385 ;  but  see  Oliver  v.  Palmer,  1 1  G.  &  J. 
426.  The  Federal  courts  take  judicial  notice  of  the  rules  and  regu- 
lations of  the  Department  of  the  Interior  and  other  departments. 
Ca/uzv.  U.  S.,  152  U.  S.  211.] 

*[Mackinnon  v.  Barnes,  66  Barb.  91;  Hanunann  v.  Mink,  99  Ind. 
279;  Buellx.  State,  72  Ind.  523  ;  Ferris  v.  Commercial  Nat.  Bk.,  158 
111.  237  ;  State  v.  Barrett,  40  Minn.  65  (deputy  clerk);  State  v.  Kin- 
ney, 81  Mo.  101  ;  State  v.  Myers,  85  Tenn.  203  ;  Avery  v.  Maude,  112 
Cal.  565.  Thus  the  signature  of  an  attorney,  admitting  service  of 
papers,  will  be  noticed.     Ripley  v.  Burgess,  2  Hill,  360.] 

3[Yountv.  Howell,  14  Cal.  465  ;  Wells  v.  Company,  47  N.  H.  235; 
State  v.  IVilliams,  5  Wis.  308.] 


168  A  DIGEST  OF  [Part  II. 

(8)  The  accession  to  office,  names,  titles,  functions,  and 
when  attached  to  any  decree,  order,  certificate,  or  other 
judicial  or  official  documents,  the  signatures  of  all  the 
judges  of  the  vSupreme  Court  of  Justice.1 

(9)  The  Great  Seal,  the  Privy  Seal,  the  seals  of  the  Su- 
perior Courts  of  Justice,2  and  all  seals  which  any  court  is 

1  1  Ph.  Ev.  462;  T.  E.  s.  19;  and  as  to  latter  part,  8  &  9  Vict.  c.  113,  s.  2, 
as  modified  by  36  &  37  Vict.  c.  66,  s.  76  (Judicature  Act  of  1873). 

2  The  Judicature  Acts  confer  no  seal  on  the  Supreme  or  High  Court 
or  its  divisions. 

ators,  and  the  like,1 — also  of  sheriffs  and  marshals  (and  their 
signatures),2  but  not  of  their  deputies.3 

(7)  The  existence  and  title  of  every  State  and  sovereign 
recognized  by  the  national  government  ;4  also  their  public 
seals  when  attached  to  public  acts,  decrees,  judgments  or 
other  official  documents.5 

(8)  The  law  of  nations  ;6   foreign  admiralty  and  maritime 


1  [State  v.  Myers,  85  Tenn.  203,  208  ;  York,  etc.  R.  Co.  v.  Winans,  17 
How.  (U.  S.)  30  ;  see  Brown  v.  Piper,  91  U.  S.  37,42.  The  signatures 
of  heads  of  departments  will  be  noticed.     Comm.  v.  Dunlop,  89  Va. 

43I-] 

! {Thompson  v.  Haskell,  21  111.  215  ;  Ingram  v.  State,  27  Ala.  17. 
Some  cases  say  that  notice  will  be  taken  of  all  county  officers  [Farley 
v.  McConnell,  7  Lans.  428  ;  Himmelntann  v.  Hoadley,  44  Cal.  213),  at 
least  if  the  court  sits  therein  (T/iielmann  v.  Burg,  73  111.  293).  Thus 
it  has  been  noticed  who  are  notaries  public  of  the  county  in  which  the 
court  is  held  {Hertig  v.  People,  159  111.  237).  So  notice  has  been  taken 
of  justices  and  aldermen  {Fox  v.  Comm.,  81*  Pa.  511),  and  as  to  who 
were  elected  officers  at  a  general  election.  State  v.  Seibert,  130  Mo. 
202.] 

3  [Gr.  Ev.  i.§6  ;  Ward  v.  Henry,  19  Wis.  76  ;  contra,  under  a  statute, 
Burke  v.  Lacock,  41  Minn.  250,  255.] 

4  [  Jones  v.  U.  S.,  137  U.  S.  202.  The  recognition  must  be  by  the  ex- 
ecutive branch  of  the  government,  before  the  courts  will  take  such 
judicial  notice.     Gelston  v.  Hoyt,  13  Johns.  561,  587,  3  Wheat.  249.] 

5  [Lazier  v.  Westcott,  26  N.  Y.  146  ;  Griswold  v.  Pitcaim,  2  Ct.  85  ; 
Coit  v.  Mi '/liken,  1  Den.  376.] 

6[7'//e  Scotia,  14  Wall.  170.] 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  169 

authorized  to  use  by  any  act  of  Parliament,1  certain  other 
seals  mentioned  in  acts  of  Parliament,1  the  seal  of  the 

1  Doe  v.  Edwards,  g  A.  &  E.  555.     See  a  list  in  T.  E.  s.  6. 

courts  and  their  seals  ;'  the  seals  of  notaries  public  ;2  the 
seals  of  their  own  State  and  of  the  United  States,  and  of  the 
courts  thereof  which  have  seals  ;3  but  not  the  seals  of  foreign 
municipal  courts  or  of  foreign  officers.4 

(9)  Public  proclamations  by  the  executive  branch  of  the 
government,  as  of  war,  peace,  amnesty,  etc.  ;6  treaties  made 
with  foreign  countries  ;6  executive  decrees  or  messages  of  a 
public  nature  and  ordinances  of  state  ;7  days  of  general 
political  elections.8 

(10)  The  extent  of  territory  included  within  their  own  State 
or  within  the  national  domain  ;9    the  civil  divisions  of  the 


1  [  Thompsoti  v.  Stewart,  3  Ct.  171 ;  Mumford  v.  Bowne,  Anth.  N.  P. 

56.] 

'2  [Pierce  v.  Indseth,  106  U.  S.  546  ;  Johnson  v.  Brown,  154  Mass.  105  ; 
Barky dt  v.  Alexander,  59  Mo.  App.  188.] 

3  [Bobinson  v.  Gilman,  20  Me.  299  ;  Delafieldw,  Hand,  3  Johns.  310, 
314  ;  Williams  v.  Wilkes,  14  Pa.  228.  The  seal  of  a  Federal  court  will 
be  noticed  in  other  Federal  courts  and  in  State  courts.  Turnbull  v. 
Payson,  95  U.  S.  418  ;  Adams  v.  Way,  33  Ct.  419.] 

i[DelaJield  v.  Hand,  supra;  Vandervoort  v.  Smith,  2  Cai.  155; 
Church  v.  Hubbart,  2  Cr.  187.  These  rules  are  sometimes  modified 
by  statutory  provisions,  providing  how  foreign  records  shall  be  proved. 
See  N.  Y.  Code  Civ.  Pro.  §§952-956  ;  Hinton  v.  Life  Ins.  Co.,  116  N.  C. 
22.] 

5  [Armstrong-  v.  U.  S.,  13  Wall.  154.] 

6  [U.  S.  v.  Bauscher,  119  U.  S.  407  ;  People  v.  Stout,  81  Hun,  336.] 

1  [  Wells  v.  Mo.  Pac.  B.  Co.,  no  Mo.  286  ;  Turner  s  Admr.  v.  Batton, 
49  Ala.  406,  410  ;  but  not  the  orders  of  a  military  commander  {Burke 
v.  Miltenberger,  19  Wall.  519),  unless  they  have  become  matters  of 
public  history  {Holmes  v.  Kring,  93  Mo.  452  ;  Lanfear  v.  Mestier,  18 
La.  Ann.  497);  nor  executive  acts  of  a  private  nature,  affecting  per- 
sons not  citizens.     Dole  v.  Wilson,  16  Minn.  525.] 

8  [Mills  v.  Green,  159  U.  S.  651  ;  State  v.  Minnick,  15  la.  123  ;  Cope- 
land  v.  State,  126  Ind.  51  ;  Jackson  Co.  v.  Arnold,  135  Mo.  207.] 

9  [Jones  v.  U.  S.,  137  U.  S.  202  ;  State  v.  Wagner,  61  Me.  178  ;  Slate 
v.  Ditnwcll,  3  R.  I.  127.] 


170  A  DIGEST  OF  [Part  II. 

Corporation  of  London,1  and  the  seal  of  any  notary  public 
in  the  Queen's  dominions.2 

(10)  The  extent  of  the  territories  under  the  dominion 
of  Her  Majesty  and  her  successors ;  the  territorial  and 


1  i  Ph.  Ev.  464  ;  T.  E.  s.  6. 

2  Cole  v.  Sherard,  11  Ex.  482.      As  to  foreign  notaries,  see  Earfs 
Trust,  4  K.  &  J.  300. 


country  or  State,  as  into  States,  counties,  cities,  towns,  etc. ;' 
the  relative  positions  of  such  divisions  in  the  State,  as  that  a 
city  or  town  is  in  a  certain  county  ;2  the  chief  geographical 
features  of  the  State  ;3  the  existence  of  war  against  the 
United  States  ;4  other  public  matters  directly  concerning  the 
general  government  of  the  State  or  country  ;5  the  existence 


x\Comm.  v.  Desmond,  103  Mass.  445;  Chapman  v.Wilber,  6  Hill, 
475  ;  Rogers  v.  Cady,  104  Cal.  288  ;  Pitts  v.  Lewis,  81  la.  51 ;  People  v. 
Waller,  70  Mich.  237  ;  State  v.  Cunningham,  81  Wis.  440.] 

''  [People  v.  Suppiger,  103  111.  434  ;  State  v.  Powers,  25  Ct.  48  ;  State 
v.  Reader,  60  la.  527  ;  Bryan  v.  Scholl,  109  Ind.  367  ;  People  v.  Wood, 
131  N.  Y.  617.  So  notice  is  taken  that  a  certain  town  is  or  is  not  with- 
in a  certain  distance  of  the  place  of  trial  or  the  seat  of  government 
(Hinckley  v.  Beckwith,  23  Wis.  328;  Benson  v.  Clark,  151  111.  495; 
Hoyt  v.  Russell,  117  U.  S.  401).  Such  local  divisions  may  be  deter- 
mined by  public  statutes  and  be  noticed  for  that  reason.  Bronson  v. 
Gleason,  7  Barb.  472  ;  R'ansas  City,  etc.  R.  Co.  v.  Burge,  40  Kan.  736.] 

3  [  Wiimipiseogee  Lake  Co.  v.  Young,  40  N.  H.  420  ;  State  v.  Thonip- 
wn,  85  Me.  189  ;  People  v.  Brooks,  101  Mich.  98  ;  Note  to  10  Abb.  N.  C. 
117.  The  population  of  the  State  or  its  counties,  etc.,  as  shown  by  the 
census  is  noticed  (State  v .Wojford,  121  Mo.  61  ;  Denneyv.  State,  144 
Ind.  503  ;  People  v.  McKane,  80  Hun,  322,  143  N.  Y.  455  ;  Worcester 
Nat.  Bk.  v.  Cheney,  94  111.  430);  the  boundaries  of  a  State  or  county 
(State  v.  Pennington,  124  Mo.  388);  what  rivers  in  the  State  are  navi- 
gable (Woodv.  Fowler,  26  Kan.  682  ;  Comm.  v.  King,  150  Mass.  221); 
but  not  the  width  of  streets  or  sidewalks  in  a  city  (Porter  v.  Waring, 
69  N.  Y.  250).  The  distance  between  great  cities  in  different  States  has 
been  noticed.  Pearce  v.  Langfit,  101  Pa.  507  ;  but  see  Goodwin  v. 
Appleton,  22  Me.  453.] 

4  [Swinnerton  v.  Columbian  Lns.  Co.,  37  N.  Y.  174.] 

b  [Opinion  of  Justices,  70  Me.  6oq  ;  People  v.  Snyder,  41  N.  Y.  397.] 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  171 

political  divisions  of  England  and  Ireland,  but  not  their 
geographical  position  or  the  situation  of  particular  places  ; 
the  commencement,  continuance,  and  termination  of  war 
between  Her  Majesty  and  any  other  Sovereign ;  and  all 

of  foreign  countries  and  that  they  have  a  government  and 
courts  and  a  system  of  law  like  our  own.1  The  Federal  courts 
take  notice  of  the  ports  of  the  United  States  in  which  the 
tide  ebbs  and  flows,  and  of  the  boundaries  of  the  several 
States  and  judicial  districts.2 

(11)  Matters  which  must  have  happened  according  to  the 
ordinary  course  of  nature  ;3  natural  and  artificial  divisions 
of  time  ■*  the  ordinary  meaning  of  English  words'  and  com- 
mon abbreviations  ;5  legal  weights  and  measures  and  moneys 


1  [Lazier  y.  Westcott,  26  N.  Y.  148  ;  Morse  v.  Hewlett,  28  Mich.  481.] 

2  [Gr.  Ev.  i.  §  6 ;  Thorson  v.  Peterson,  9  F.  R.  517.  So  of  internal 
revenue  districts.     U.  S.  v.  Jackson,  104  U.  S.  41.] 

3  [  Wood  v.  Ins.  Co.,  46  N.  Y.  421,  426  ;  Djxon  v.  Niccolls,  39  111.  372  ; 
as  the  time  when  the  sun  or  moon  rises  or  sets  on  a  certain  dav 
{People  v.  Mayer,  113  Cal.  618  ;  State  v.  Morris,  47  Ct.  179  ;  Case  v. 
Perew,  46  Hun,  57);  and  the  succession  of  the  seasons.  Ross  v.  Bos- 
well,  60  Ind.  235  ;    Garth  v.  Caldwell,  72  Mo.  622.] 

4  [Wh.  Ev.  i.  §  335.  Thus  notice  is  taken  of  the  coincidence  of  days 
of  the  week  with  days  of  the  month,  as  e.g.,  upon  what  day  a  par- 
ticular date  falls  {Phila.  etc.  R.  Co.  v.  Lehman,  56  Md.  209  ;  Bank  v. 
Kingsley,  84  Me.  in  ;  Roberts  v.  Farmers ',  etc.  Bk.,  136  Ind.  154  ; 
Mechanics'  Bank  v.  Gibson,  7  Wend.  460),  and,  in  general,  of  the 
calendar.     State  v.  Harris,  121  Mo.  445.] 

5  [Nix  v.  Hedden,  149  U.  S.  304  (meaning  of  "  fruit "  and  "  vegetable  "); 
Toplits  v.  Hedden,  146  U.  S.  252,  257  ("bonnets");  Cook  v.  State,  no 
Ala.  40  ("oleomargarine  ");  Comm.  v.  Marzynski,  149  Mass.  68  (that 
"cigars"  are  not  drugs);  State  v.  Intoxicating  Liquors,  73  Me.  278 
("C.  O.  D.");  Moseley  v.  Mastin,  37  Ala.  216  ("admr.");  South  Mo. 
Co.  w.Jeffries,  40  Mo.  App.  360.  So  of  the  meaning  of  current  ex- 
pressions which  every  one  understands  {Bailey  v.  Kalamazoo  Pubg 
Co.,  40  Mich.  251  ;  but  see  Baltimore  v.  State,  15  Md.  376,  484);  but 
not  of  uncommon  or  extraordinary  meanings  given  to  English  words 
in  particular  localities  {People  v.  Gastro,  75  Mich.  127).  In  Accola  v. 
Chicago,  etc.  R.  Co.,  70  la.  185,  the  court  would  not  notice  the  mean- 
ing of  the  abbreviation,  "  C,  B.  &  Q.  R.  Co.,"  used  in  a  pleading.] 


172 


A  DIGEST  OF  [Part  II. 


other    public    matters   directly   concerning  the   general 
government  of  Her  Majesty's  dominions.1 

(n)   The  ordinary  course  of  nature,  natural  and  arti 
ficial  divisions  of  time,  the  meaning  of  English  words.2 


1 1  Ph.  Ev.  466,  460,  458  ;  and  T.  E.  ss.  15-16. 
2 1  Ph.  Ev.  465-6  ;  T.  E.  s.  14. 


of  the  country  j1  matters  of  general  public  history,2  but  not 
those  of  mere  private  or  local  history  ;3  other  matters  of  such 
general  and  public  notoriety  that  every  one  may  fairly  be 
presumed  to  be  acquainted  with  them.4 


1  [Gr.  Ev.  i.  §  5  ;  Johnston  v.  Hedden,  2  Jr>hns.  Cas.  274.] 

2  [Thomas  v.  Stigers,  5  Pa.  480  ;  Mode  v.  Beasley,  143  Ind.  306  ;  Bis- 
sing  v.  Smith,  85  Hun,  564;  Mayor  of  A7.  Y.  v.  Sands,  105  N.  Y.  210,  217; 
Howard  v.  Moot,  64  N.  Y.  262  ;  as  e.  g.,  the  civil  war  in  this  country, 
1861-65,  and  its  duration.  Cross  v.  Sabin,  13  F.  R.  308  ;  Turners 
Admr.  v.  Patton,  49  Ala.  406  ;  Swinnerton  v.  Columbian  his.  Co.,  37 
N.  Y.174.] 

3  [McKinnon  v.  Bliss,  21  N.  Y.  206.] 

4  [King  v.  Gallun,  109  U.  S.  99 ;  Gilbert  v.  Flint,  etc.  R.  Co.,  51 
Mich.  488  ;  Menomitiee  Co.  v.  Milwaukee,  etc.  R.  Co.,  91  Wis.  447  ; 
State  v.  Me.  Cent.  R.  Co.,  86  Me.  309  ;  as  e.g.,  the  ordinary  duration 
of  human  life  {Johnson  v.  Hudson  R.R.  Co., 6  Duer,634);  the  average 
height  of  the  human  body  {Hunter  v.  N.  Y.  etc.  R.  Co.,  116  N.  Y.  615); 
the  usual  length  of  time  for  a  voyage  across  the  Atlantic  {Oppenhcim 
v.  Wolf,  3  Sandf.  Ch.  571);  the  usual  time  to  run  trains  between 
prominent  cities  {Pearce  v.  Langfit,  101  Pa.  507  ;  contra,,  Wiggins  v. 
Burkham,  10  Wall.  129);  the  practice  of  checking  baggage  in  this 
country  {Isaacson  v.N.  Y.  C.R.  Co.,  94  N.  Y.  278);  the,  nature  and 
properties  of  such  things  as  natural  or  artificial  gas,  electricity,  gun- 
powder, kerosene,  tobacco  and  the  like  {Jamieson  v.  Ind.  Nat.  Gas 
Co.,  128  Ind.  555  ;  In  re  Jacobs,  98  N.  Y.  98,  113  ;  State  v.  Hays,  78  Mo. 
307;  State  v.  Johnson,  118  Mo.  491  ;  Crawfordsville  v.  Braden,  130 
Ind.  149);  that  whiskey,  brandy,  gin,  ale,  and  strong  beer  are  in- 
toxicating (JUatz  v.  Rohrbach,  116  N.  Y.  450  ;  Thomas  v.  Comm.,  90 
Va.  92  ;  Eagan  v.  State,  53  Ind.  162);  but  not  that  all  malt  liquors  are 
intoxicating.  Id.;  Schlicht  v.  State,  56  Ind.  188  ;  but  see  Briffit  v. 
State,  58  Wis.  39.] 


Chap.  VII. 1  THE  LAW  OF  EVIDENCE.  173 

(12)  All  other  matters  which  they  are  directed  by  any 
statute  to  notice.1 


1  E.g.,  the  Articles  of  War.     See  sec.  1  of  the  Mutiny  Act. 

(12)  Matters  of  general  knowledge  and  experience  within 
their  jurisdiction  ;'  and  matters  which  they  are  directed  by 
any  statute  to  notice.] 

Article  59. 
as  to  proof  of  such  facts. 

No  evidence  of  any  fact  of  which  the  court  will  take 
judicial  notice  need  be  given  by  the  party  alleging-  its 
existence;2  but  the  judge,  upon  being  called  upon  to  take 
judicial  notice  thereof,  may,  if  he  is  unacquainted  with 
such  fact,  refer  to  any  person  or  to  any  document  or  book 
of  reference  for  his  satisfaction  in  relation  thereto,  or  may 
refuse  to  take  judicial  notice  thereof  unless  and  until  the 
party  calling  upon  him  to  take  such  notice  produces  any 
such  document  or  book  of  reference.3 


1  {Howard  v.  Moot,  64  N.  Y.  262,  271  ;  Hilliker  v.  Coleman,  73 
Mich.  170  ;  People  v.  Powers,  147  N.  Y.  104,  no ;  Opinion  of  Justices,  70 
Me.  609  ;  as  e.g.,  the  result  of  an  election  affecting  the  organization  of 
a  county  {Andrews  v.  Knox  Co.,  70  111.  65  ;  Thomas  v.  Comm.,  90  Va. 
92  ;  but  see  Whitman  v.  State,  80  Md.  410);  the  effect  of  elevated 
railroads  upon  the  business  of  the  streets  through  which  they  run. 
Bookman  v.  N.  V.  El.  R.  Co.,  137  N.  Y.  302.] 

2  [In  Hoyt  v.  Russell,  117  U.  S.  401,  judgment  was  reversed  because 
the  court  below  required  proof  of  a  fact  of  which  it  was  bound  to  take 
judicial  notice.     Cf.  State  v.  Main,  69-Ct.  123,  136.] 

3T.  E.  (from  Greenleaf)  s.  20.  E.g.,  a  judge  will  refer  in  case  of 
need  to  an  almanac,  or  to  a  printed  copy  of  the  statutes,  or  write  to 
the  Foreign  Office,  to  know  whether  a  State  had  been  recognized. 
[Gr.  Ev.  i.  §  6  ;  Nix  v.  Hedden,  149  U.  S.  304  ;  Jones  v.  U.  S.,  137  U.  S. 
202  ;  Walton  v.  Stafford,  14  App.  Div.  (N.  Y.)  310  ;  Vahle  v.  Bracken 
seik,  145  111.  236  ;  Bowcn  v.  Mo.  Pac.  R.  Co.,  118  Mo.  541  ;  Heffernan 
v.  Harvey,  41  W.  Va.  766  ;    Wilson  v.  Van  Leer,  127  Pa.  372  ;  Hall  v. 


174  A  DIGEST  OF  [Part  II. 

Article  Go. 

evidence  need  not  be  given  of  facts  admitted. 

No  fact  need  be  proved  in  any  proceeding  which  the 
parties  thereto  or  their  agents  agree  to  admit  at  the  hear- 
ing, or  which  they  have  admitted  before  the  hearing  and 
with  reference  thereto,  or  by  their  pleadings.1  Provided 
that  in  a  trial  for  felony  the  prisoner  can  make  no  admis- 
sions so  as  to  dispense  with  proof,  though  a  confession 
may  be  proved  as  against  him,  subject  to  the  rules  stated 
in  Articles  21-24.2 


Brown,  58  N.  H.  95  ;  State  v.  Wagner,  61  Me.  178  ;  State  v.  Morris, 
47  Ct.  179  ;  State  v.  Clare,  5  la.  509.  Counsel  should  cite  statutes  and 
decisions  to  the  court,  even  though  the  Courtis  bound  to  judicially 
notice  them  {State  v.  Farlee,  74  la.  451).  But  a  judge  is  not  to  take 
judicial  notice  of  matters  merely  because  he  in  fact  knows  them. 
Lena/tan  v.  People,  5  T.  &  C.  265.] 

1  Rules  of  Supreme  Court,  Order  xxxii.  [Coffin  v.  Hydraulic  Co., 
136  N.  Y.  655;  Waldron  v.  IValdron,  156  U.  S.  361;  McGowan  v. 
McDonald,  in  Cal.  57;  State  v.  Brooks,  99  Mo.  137;  Atkinson  v. 
Linden  Co.,  138  111.  187  ;  Burke  v.  Mascarich,  81  Cal.  302  ;  Mussclman 
v.  Wise,  84  Ind.  248.  So  evidence  offered  by  a  party  contradicting 
his  admissions  in  the  pleadings  is  not  competent  {Getty  v.  Ham lin, 
46  Hun,  1),  and  a  finding  or  judgment  contrary  to  such  admissions 
is  error  (Reinhart  v.  Lugo,  75  Cal.  639  ;  Paige  v.  Willett,  38  N.  Y.  28). 

A  demurrer  admits  facts  well  pleaded,  but  only  for  the  purposes  of 
the  argument  on  the  demurrer ;  it  is  not  evidence  of  such  facts  on  the 
trial  of  the  issue  of  fact  {State's  Att'y  v.  Branford,  59  Ct.  402  ;  cf. 
Gray  v.  Gray,  143  N.  Y.  354),  unless  the  party  demurring  obtains 
leave  to  withdraw  his  demurrer  from  the  record  and  goes  to  trial 
without  having  done  so.  Cutler  \.  Wright,  22  N.  Y.  472.]  The  fact 
that  a  document  is  admitted  does  not  make  it  relevant  and  is  not 
equivalent  to  putting  it  in  evidence.  Watson  v.  Rodwell,  11  Ch.  D. 
150,  per  James,  L.  J. 

2  1  Ph.  Ev.  391 ,  n.  6.  In  R.  v.  Thornhill,  8  C.  &  P.  575,  Lord  Abinger 
acted  upon  this  rule  in  a  trial  for  perjury.  [In  this  case  Lord  Abinger 
rejected  evidence  of  admissions  made  by  defendant's  counsel  before 
the  trial,  but  said  that  admissions  made  at  the  trial  might  be  allowed. 
See  Gr.  Ev.  iii.  §  39.] 


Chap.  VIII.]  THE  LAW  OF  EVIDENCE.  175 


CHAPTER  VIII. 

OF  ORAL  EVIDENCE. 

Article  61. 
proof  of  facts  by  oral  evidence. 

All  facts  may  be  proved  by  oral  evidence  subject  to  the 
provisions  as  to  the  proof  of  documents  contained  in  Chap- 
ters IX.,  X.,  XL,  and  XII. 

Article  62.* 

ORAL   EVIDENCE    MUST   BE   DIRECT. 

Oral  evidence  must  in  all  cases  whatever  be  direct ;  that 
is  to  say  — 

If  it  refers  to  a  fact  alleged  to  have  been  seen,  it  must 
be  the  evidence  of  a  witness  who  says  he  saw  it ; 

If  it  refers  to  a  fact  alleged  to  have  been  heard,  it  must 
be  the  evidence  of  a  witness  who  says  he  heard  it ; 

If  it  refers  to  a  fact  alleged  to  have  been  perceived  by 
any  other  sense  or  in  any  other  manner,  it  must  be  the 
evidence  of  a  witness  who  says  he  perceived  it  by  that 
sense  or  in  that  manner  ; ' 


*  See  Note  XXVII.  [Appendix]. 
1  [See  Teerpenning  v.  Com  Ex.  Ins.  Co.,  43  N.  Y.  279  ;  People  v. 
Chin  Hane,  108  Cal.  597  ;  Simpson  v.  Smith,  27  Kan.  565,  570 ;  Rea 
v.  Harrington,  58  Vt.  181;  Fassin  v.  Hubbard,  55  N.  Y.  465.  A  wit- 
ness may  testify  as  to  a  communication  received  through  the  tele- 
phone (  Wolfe  v.  Mo.  Pac.  R.  Co.,  97  Mo.  473  ;  Oskamp  v.  Gadsden, 
35  Neb.  7;  Miles  v.  Andrew,  153  111.  262);  but  identification  of  the 
speaker,  as  e.  g.,by  the  sound  of  his  voice,  may  be  necessary  {People 


176  A  DIGEST  OF  [Part  II. 

If  it  refers  to  an  opinion,  or  to  the  grounds  on  which 
that  opinion  is  held,  it  must  be  the  evidence  of  the  person 
who  holds  that  opinion  on  those  grounds. 


v.  McKane,  143  N.  Y.  455,  474).  A  witness  may  testify  to  his  impres- 
sion, if  this  is  based  upon  his  own  recollection  of  facts  which  he  saw, 
heard,  perceived,  etc.,  and  not  upon  hearsay  or  inference  (Gr.  Ev.  i. 
§  440  ;  Blake  v.  People,  73  N.  Y.  586  ;  Humphries  v.  Parker,  52  Me. 
502  ;  Whitman  v.  Morey,  63  N.  H.  448, 457  ;  State  v.  Ward,  61  Vt.  153  ; 
Dexter  v.  Harrison,  146  111.  169  ;  Lovejoy  v.  Howe,  55  Minn.  353  ;  Ala. 
Southern  R.  Co.  v.  Hill,  93  Ala.  515  ;  Tail  v.  Hall,  71  Cal.  149  ;  Du- 
vall's  Excr.  v.  Darby,  38  Pa.  56).  So  testimony  as  to  what  the  wit- 
ness "understood"  or  "supposed"  has  been  received,  when  it  really 
expresses  his  knowledge  and  recollection  of  what  was  said  or  doneor 
agreed  upon,  etc.  (Fiske  v.  Gowing,  61  N.  H.  431  ;  Leach  v.  Ban- 
croft, Id.  411;  Ganserv.  Fireman  s  Ins.  Co.,  38  Minn.  74  ;  Moody  v. 
Davis,  10  Ga.  403);  but  usually  such  evidence  is  inadmissible,  as  con- 
stituting only  hearsay  or  opinion  {Fosdick  v.  Van  Arsdale,  74  Mich. 
303  ;  Kingsbury  v.  Moses,  45  N.  H.  222  ;  Mather  v.  Parsons,  32  Hun, 
338  ;  Crow  ell v.  Western  Res.  Bk.,  3  O.  St.  406).  So  evidence  of  one's 
intent,  understanding,  etc.,  is  not  received  to  show  or  vary  the  mean- 
ing of  a  written  instrument,  nor  can  one's  undisclosed  intent  at  the 
time  of  making  a  contract  be  proved  to  bind  the  other  party  (Ricker- 
son  v.  Hartford  Ins.  Co.,  149  N.  Y.  307  ;  Bartley  v.  Phillips,  179  Pa. 
175).  A  witness  may  testify  to  his  own  intent  or  motive  or  belief,  when 
that  is  material  in  the  case  (Bayliss  v.  Cocke rofi,  81  N.  Y.  363  ;  Wal- 
lace v.  U.  S.,  162  U.  S.  466,  477  ;  Brown  v.  Mass.  Ins.  Co.,  151  Mass. 
127  ;  Phelps  v.  George's,  etc.  R.  Co.,  60  Md.  536  ;  Wohlford  v.  People, 
148  111.  296  ;  Ross  v.  State,  116  Ind.  495  ;  Angellv.  Pickard,  61  Mich. 
561;  Plank  v.  Gri?nm,  62  Wis.  251;  contra,  Ala.  Fertilizing  Co.  v. 
Reynolds,  79  Ala.  497),  but  not  to  the  intent  or  motive  of  another  per- 
son {Nlfrs.  &*  Traders'  Bk.  v.  Koch,  105  N.  Y.  630  ;  Cihak  v.  Klekr, 
117  111.  643  ;  Garrett  v.  Trabue,  82  Ala.  227).  So  a  witness  may  not 
testify  to  a  conclusion  of  law  (Wh.  Ev.  i.  §§  507,  509  ;  Nicolay  v.  I  ~ngc>\ 
80  N.  Y.  54  ;  Wardv.  Kilpa trick,  85  N.  Y.  413  ;  Providence  Tool  Co. 
v.  U.  S.  Mfg.  Co.,  120  Mass.  35  ;  Fisher  v.  Green,  142  111.  80  ;  Young 
v.  Newark  Jus.  Co.,  59  Ct.  41 ;   G abbey  v.  Forgens,  38  Kan.  62). 

Objects  which  have  a  material  bearing  on  the  case  may  be  shown 
to  the  jury,  and  thus  have  the  effect  of  evidence  ;  as  the  weapon  or  in- 
strument used  to  commit  a  crime,  bloody  garments,  a  person's  injured 
limb,  etc.  (Wh.  Ev.  i.  §§  345-347;  People  v.  Gonzalez,  35  N.  Y.  49;  King 
v.  N.  Y.  C.  R.  Co.,  72  X.  Y.  607  ;  Louisville,  etc.  R.  Co.  v.  Wood,  113 
Ind.  544  ;  Lanark  v.  Dougherty,  153  111.  163  ;  Langworthy  v.  Green,  95 


Chap.  VIII.]  THE  LAW  OF  EVIDENCE.  177 

Mich.  Q3  ;  State  v.  Ward,  61  Vt.  153);  but  if  such  an  exhibition  would 
be  indecent  or  offensive,  it  may  be  denied  {Knowles  v.  Crampton,  55 
Ct.  336).  So  the  jury  may  be  permitted  to  view  the  locus  in  quo  (  Vane 
v.  Evans  ton,  150  111.  616).  A  person  may  be  produced  before  a  jury 
to  enable  them  to  judge  as  to  his  being  a  minor  {Comm.  v.  Emmons, 
98  Mass.  6  ;  Herrman  v.  State,  73  Wis.  248  ;  N.  Y.  Pen.  Code,  §  19; 
contra,  Louisville,  etc.  R.  Co.  v.  Wood,  113  Ind.  544,  550);  and  a  wit- 
ness under  examination  or  one  present  in  court  as  a  party  may  be 
required  by  the  court  to  uncover  his  or  her  face  or  to  stand  up  to  be 
identified  {Rice  v.  Rice,  47  N.  J.  Eq.  559  ;  People  v.  Goldenson,  76  Cal. 
328  ;  People  v.  Gardner,  144  N.Y.  1 19  ;  Williams  v.  State,  98  Ala.  52). 
So  photographs  or  drawings  of  persons  or  places,  if  properly  verified 
as  being  accurate,  may  be  introduced  in  evidence  ( Udderzook' s  Case, 
76  Pa.  340  ;  Ccwley  v.  People,  83  N.  Y.  464  ;  Comm.  v.  Robertson,  162 
Mass.  90  ;  Wilson  v.  U.  S.,  162  U.  S.  613  ;  Cleveland,  etc.  R.  Co.  v. 
Monaghan,  140  111.  475  ;  Leidlein  v.  Meyer,  95  Mich.  586  ;  People  v. 
Johnson,  140  N.  Y.  350  ;  cf.  Gilbert  v.  West  End  R.  Co.,  160  Mass.  403). 
But  whether  a  person  suing  for  personal  injuries  can  be  required  by 
the  court  to  submit  to  an  examination  by  physicians  is  a  matter  upon 
which  the  authorities  are  conflicting  ;  that  he  can,  see  Atchison,  etc. 
R.  Co.  v.  Thul,  29  Kan.  466  ;  Turnpike  Co.  v.  Baily,  37  O.  St.  104  ; 
White  v.  Milwaukee  R.  Co.,  61  Wis.  536  ;  Schroeder  v.  Railroad  Co., 
47  la.  375;  Railway  Co.  v.  Dobbins,  60  Ark.  481 ;  Fullerton  v.  Fordyce, 
121  Mo.  1 ;  Graves  v.  Battle  Creek,  95  Mich.  266  ;  N.  Y.  Code  Civ.  Pro. 
§  873  ;  that  he  cannot,  Union  Pac.  R.  Co.  v.  Botsford,  141  U.  S.  250  ; 
Peoria,  etc.  R.  Co.  v.  Rice,  144  111.  229;  Pennsylvania  Co.  v.  Newmeyer, 
129  Ind.  401.  In  suits  for  divorce  because  of  impotence,  it  is  well  set- 
tled that  the  court  has  the  power.  Bishop,  M.  D.  &  S.  ii.  §§  1298-1315; 
Anonymous,  89  Ala.  291;  Cahn  v.  Cahn,  21  Misc.  506;  cf.  McGuJ  v, 
State,  88  Ala.  147.] 


178  A  DIGEST  OF  [Part  II. 


CHAPTER   IX. 

OF  DOCUMENTARY  EVIDENCE— PRIMARY  AND 
SECONDARY,  AND  ATTESTED  DOCUMENTS. 

Article  6$. 

proof  of  contents  of  documents. 

The  contents*  of  documents  may  be  proved  either  by  pri- 
mary or  by  secondary  evidence. 

Article  64. 

primary  evidence. 

Primary  evidence  means  the  document  itself  produced 
for  the  inspection  of  the  court,  accompanied  by  the  pro- 
duction of  an  attesting  witness  in  cases  in  which  an  attest- 
ing witness  must  be  called  under  the  provisions  of  Articles 
66  and  67  ;  or  an  admission  of  its  contents  proved  to  have 
been  made  by  a  person  whose  admissions  are  relevant 
under  Articles  15-20.1 


1  Slatterie  v.  Pooley,  6  M.  &  W.  664.  [This  doctrine  that  the  con- 
tents of  a  document  may  be  proved  by  a  party's  admissions  is  accepted 
in  several  States  (Loo?/iis  v.  Wadhams,  8  Gray,  557  ;  Edgar  v.  Rich- 
ardson, 33  O.  St.  581 ;  Taylor  v.  Peck,  21  Gratt.  1 1 ;  Edwards  v.  Tracy, 
62  Pa.  374  ;  Blackington  v.  Rockland,  66  Me.  332  ;  Hoeflingv.  Ham- 
bleton,  84  Tex.  517  ;  Morey  v.  Hoy  I,  62  Ct.  542  ;  cf.  Morrill  v.  Robin- 
son, 71  Me.  24).  But  in  New  York  and  New  Jersey  it  is  rejected 
{Sherman  v.  People,  13  Hun,  575  ;  Cumberland  Ins.  Co.  v.  Giltinan, 
48  N.  J.  L.  495),  though  such  evidence  is  receivable  if  the  document  is 
lost  or  destroyed.  Mandeville  v.  Reynolds,  68  N.  Y.  528,  537  ;  Corbin 
v.  Jackson,  14  Wend.  619 ;  see  Gr.  Ev.  i.  §  96  ;  \Vh.  Ev.  ii.  §§  1091- 
1093-] 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  179 

Where  a  document  is  executed  in  several  parts,  each 
part  is  primary  evidence  of  the  document : ! 

Where  a  document  is  executed  in  counterpart,  each 
counterpart  being  executed  by  one  or  some  of  the  parties 
only,  each  counterpart  is  primary  evidence  as  against  the 
parties  executing  it.2 

Where  a  number  of  documents  are  all  made  by  print- 
ing, lithography,  or  photography,  or  any  other  process  of 
such  a  nature  as  in  itself  to  secure  uniformity  in  the 
copies,  each  is  primary  evidence  of  the  contents  of  the 
rest ; 3  but  where  they  are  all  copies  of  a  common  original, 


1  [Each  of  several  duplicate  originals  is  primary  evidence  {Lewis  v. 
Payn,  8  Cow.  71 ;  Hubbard  v.  Russell,  24  Barb.  404  ;  Totten  v.  Bucy, 
57  Md.  446  ;  Gardner  v.  Eberhart,  82  111.  316  ;  cf.  Crossvian  v.  Cross- 
man,  95  N.  Y.  145  ;  see  p.  191,  note  1,  post).  So  a  copy  may,  under 
special  circumstances,  be  deemed  primary  evidence.  Carroll  v. 
Peake,  1  Pet.  18  ;  Aaltman  v.  Ritter,  81  Wis.  395.] 

2  Roe  d.  West  v.  Davis,  7  Ea.  362.  [Loring  v.  Whittemore,  13  Gray, 
228  ;  Nicoll  v.  Burke,  8  Abb.  N.  C.  213  ;  Cleveland,  etc.  R.  Co.  v.  Per- 
kins, 17  Mich.  296  ;  Anglo-A?ner.  Co.  v.  Camion,  31  F.  R.  313.  vIt  is 
not  usual  now  to  execute  instruments  in  counterpart.  Roland  v. 
Pinckney,  8  Misc.  458.] 

3  R.  v.  Watson,  2  Stark.  129.  This  case  was  decided  long  before  the 
invention  of  photography  ;  but  the  judgments  delivered  by  the  court 
(Ellenborough,  C.  J.,  and  Abbott,  Bayley,  and  Holroyd,  JJ.)  establish 
the  principle  stated  in  the  text.  [Wh.  Ev.  i.  §§  70,  92  ;  see  Huffv. 
Bennett,  4  Sandf.  120  ;  Simmons  v.  Holster,  13  Minn.  249. 

When  a  telegram  is  to  be  proved,  the  primary  evidence,  in  contro- 
versies between  the  sender  and  the  company,  is  the  original  message 
delivered  to  the  company  for  transmission  (  W.  U.  Tel.  Co.  v.  Hopkins, 
49  Ind.  223;  but  see  Conyers  v.  Postal  Tel.  Co.,  92  Ga.  619);  and  the 
same  is  true  when  the  question  is  whether  the  alleged  sender  of  a  dis- 
patch did  actually  send  it,  or  authorize  it  to  be  sent  ( Oregon  Steams/iip 
Co.  v.  Otis,  100  N.  Y.  446).  But  when  a  contract  is  made  by  telegrams, 
and  the  sender  takes  the  initiative  by  sending  the  offer,  thus  making 
the  company  his  agent  to  transmit  the  message,  the  primary  evidence 
to  prove  the  contract  is  the  message  of  the  sender  as  delivered  to  the 
receiver  and  the  answering  message  of  the  receiver  as  delivered  by 
him  to  the  office  for  transmission  {Durkee  v,  Vt.  R.  Co.,  29  Yt.  127; 


i8o  A  DIGEST  OF  [Part  II. 

no  one  of  them  is  primary  evidence  of  the  contents  of  the 
original.1 

Article  65. 

PROOF   OF    DOCUMENTS   BY   PRIMARY    EVIDENCE. 

The  contents  of  documents  must,  except  in  the  cases 
mentioned  in  Article  71,  be  proved  by  primary  evidence  ; 
and  in  the  cases  mentioned  in  Article  66  by  calling-  an 
attesting  witness.3 

Article  66.* 

proof  of  execution  of  document  required  by  law  to  be 
attested. 

If  a  document  is  required  by  law  to  be  attested,4  it  may 
not  be  used  as  evidence  (except  in  the  cases  mentioned 


*  See  Note  XXVIII.  [Appendix]. 
Howley  v.  Whipple,  48  N.  H.  487  ;  Nickersoii  v.  Spindell,  164  Mass. 
25  ;  Ayer  v.  Tel.  Co.,  79  Me.  493',  500  ;  Savelandv.  Green,  40  Wis.  431 ; 
cf.  Smith  v.  Easton,  54  Md.  138  ;  Trevor  v.  Wood,  36  N.  Y.  307  ;  see 
cases  collected  in  14  Abb.  N.  C.  394).  So  in  other  cases  where  the 
sender  takes  the  initiative  in  sending  directions  by  telegraph,  or  an 
offer  or  request,  the  message  received  by  the  addressee  is  primary 
evidence  {Anhetiser-Busch  Ass  71  v.  Hutmacher,  127  111.  652  ;  Magie 
v.  Herman,  50  Minn.  424;  cf.  Comm.  v.  Jeffries,  7  Allen,  548).  But 
when  the  sendee  employs  the  telegraph  company,  the  primary  evi- 
dence is  the  message  delivered  to  the  operator.  Id.] 

1  Noden  v.  Murray,  3  Camp.  224.  [Letter-press  copies  of  documents 
are  secondary  evidence  {Foot  v.  Bentley,  44  N.  Y.  166  ;  State  v.  Hal- 
stead,  73  la.  376  ;  McDowell  v.  J£t7ia  Ins.  Co.,  164  Mass.  444  ;  King 
v.  Worthington,  73  111.  161).  So  of  photographic  copies.  Duffinv. 
People,  107  111.  113  ;  Maclean  v.  Scripps,  52  Mich.  214  ;  White  Co.  v. 
Gordon,  124  Ind.  495.] 

2[Gr.  Ev.  i.  §§  82-88;  Wh.  Ev.  i.  §§  60-160;  Kain  v.  Larkin,  131 
N.  Y.  300,  311;  Woods  v.  Burke,  67  Mich.  674  ;  Martin  v.  McCray,  171 
Pa.  575-] 

3  [One  who  subscribes  an  instrument  as  a  witness,  but  without  the 
knowledge  or  consent  of  the  parties,  is  not  to  be  deemed  an  attesting 
witness.  Gr.  Ev.  i.  §  569  a  ;  Sherwood  v.  Pratt,  63  Barb.  137  ;  Huston 
v.  Ticknor,  99  Pa.  231.] 

4  [See  Art.  69,  note.] 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  181 

or  referred  to  in  the  next  Article)  if  there  be  an  attesting 
witness  alive,  sane,  and  subject  to  the  process  of  the 
court,  until  one  attesting  witness  at  least  has  been  called 
for  the  purpose  of  proving  its  execution.1 

If  it  be  shown  that  no  such  attesting  witness  is  alive  or 
can  be  found,  it  must  be  proved  that  the  attestation  of  one 
attesting  witness  at  least  is  in  his  handwriting,  and  that 
the  signature  of  the  person  executing  the  document  is  in 
the  handwriting  of  that  person.2 


1  [Gr.  Ev.  i.  §  569  ;  Wh.  Ev.  i.  §§  723-725  ;  Henry  v.  Bishop,  2  Wend. 
575  ;  International,  etc.  R.  Co.  v.  McRae,  82  Tex.  614  ;0Barryv.  Ryan, 

4  Gray,  523.  Only  one  witness  need  testify,  though  there  be  two  or 
more  (O' Sullivan  v.  Overton,  56  Ct.  102;  White  v.  Wood,  8  Cush. 
413;  Melcherv.  Flanders,  40  N.  H.  139).  But  the  absence  of  all 
must  be  accounted  for,  before  evidence  of  handwriting  will  be  ad- 
mitted. Jackson  v.  Gager,  5  Cow.  383  ;  Tarns  v.  Hitner,  9  Pa.  441  ; 
Turner  v.  Green,  2  Cr.  C.  C.  202.] 

2  [The  same  general  rule  is  established  by  statute  in  some  States  in 
regard  to  deeds  (Mass.  Pub.  St.  c.  120,  ss.  8,  10;  Maine  Rev.  St.  c. 
72,  s.  19  ;  Vt.  Rev.  St.  ss.  1938,  1943).  But  generally  in  this  country  it 
is  sufficient  to  prove  the  signature  either  of  a  witness  or  of  the  party, 
without  proving  both  (Borst  v.Empie,  5  N.  Y.  33).  Proof  of  the 
signature  of  one  witness  is  sufficient  proof  of  execution  {Stebbins  v. 
Duncan,  108  U.  S.  32;  Gelolt  v.  Goodspeed,  8  Cush.  411;  Va?i 
Rensselaer  v.  Jones,  2  Barb.  643);  but  proof  of  the  party's  identity  may 
be  needed  besides,  in  cases  of  doubt  or  suspected  fraud  (Id.;  Brown 
v.  Kimball,  25  Wend.  259);  and  the  signatures  of  other  witnesses  or  of 
the  party  may,  of  course,  always  be  proved,  in  addition  to  that  of  one 
witness  {Jackson  v.  Chamberlain,  8  Wend.  620;  Serin's  v.  Nelson,  14 
N.  J.  Eq.  94).  In  New  York  and  some  other  States  the  signature  of  a 
witness  must  always  be  proved,  if  practicable,  before  that  of  a  party 
can  be  ( Willson  v.  Belts,  4  Den.  201 ;  Stebbins  v.  Duncan,  108  U.  S.  32 ; 
see  McVicker  v.  Conkle,  96  Ga.  584,  criticising  the  rule);  but  if  the 
witness's  handwriting  cannot  be  proved,  then  the  party's  should  be 
{Jackson  v.  Waldron,  13  Wend.  178  ;    Lessee  of  Clarke  v.  Courtney, 

5  Pet.  319).  But  in  a  number  of  the  States  the  writing  of  the  party 
may  be  proved  without  proving  that  of  a  witness  {Jones  v.  Roberts, 
65  Me.  273;  Cox  v.  Davis,  17  Ala.  714;  Landers  v.  Bolton,  26  Cal. 
393;  Wellfordv.  Eakin,  1  Cr.  C.  C  264);  that  the  handwriting  of 
either  or  both  may  be  proved,  see  Snider  v.  Burks,  84  Ala.  53,  56 ; 


A  DIGEST  OF  [Part  II. 


The  rule  extends  to  cases  in  which — 

the  document  has  been  burnt,1  or  canceled,2  [or  lost]  ; : 


Gelott  v.  Goodspeed,  8  Cush.  411  ;  cf.  Troeder  v.  Hyams,  153  Mass. 
536. 

Besides  death  or  insanity  {Neely  v.  Neely,  17  Pa.  227  ;  McKay  v. 
Lasher,  121  N.  Y.  477),  absence  of  witnesses  from  the  State  will  let  in 
proof  of  handwriting  ;  it  is  not  necessary  to  send  a  commission  to  take 
their  depositions  {Trustees  of  Charities  v.  Connolly,  157  Mass.  272; 
Hanrick  v.  Patrick,  119  U.  S.  156;  Grogan  v.  U.  S.  Industrial  his. 
Co.,  90  Hun,  521  ;  Lush  v.  Druse,  4  Wend.  313;  N.J.  Zinc  Co.  v. 
Lehigh  Zinc  Co.,  59  N.  J.  L.  189  ;  Gallagher  v.  London  Assur.  Corp., 
149  Pa.  25  ;  Ballinger  v.  Davis,  29  la.  512).  So  handwriting  may  be 
proved  when  no  witness  can  be  found  after  diligent  search,  or  none 
who  is  competent  to  testify  (Gr.  Ev.  i.  §  572  ;  Pelletreau  v.  Jackson, 
11  Wend,  no  ;   li'oodman  v.  Segar,  25  Me.  90). 

Special  statutes  in  some  States  require  proof  of  certain  documents 
by  more  than  one  witness,  as  e.  g.,  proof  of  a  will  by  both  or  all  the 
subscribing  witnesses  upon  an  application  for  the  admission  of  the 
will  to  probate  (N.  Y.  Code  Civ.  Pro.  §  2618  ;  Ohio  R.  S.  s.  5926  ;  111. 
R.  S.  c.  148,  ss.  2  &  6).  But  in  other  proceedings  than  those  for  probate, 
the  testimony  of  one  subscribing  witness  to  the  will  may  be  sufficient 
{Upton  v.  Bernstein,  76  Hun,  516).  In  several  States  a  will  may  be 
proved,  upon  an  application  for  probate,  by  one  witness,  if  the  pro- 
bate is  not  contested  (Mass.  Pub.  St.  c.  129,  s.  1  ;  R.  S.  of  N.  H.  c.  187, 
s.  6  ;  Wis.  R.  S.  ii.  p.  2014).  If  any  witness  or  witnesses  to  a  will  are 
dead,  insane,  absent,  etc.,  proof  of  handwriting  may  be  given  ;  by 
some  statutes  the  signature  of  the  testator  must  be  proved  as  well  as 
that  of  the  witness  or  witnesses.  Id.;  N.  Y.  Code  Civ.  Pro.  §  2620; 
Denny  v.  Pinncy,  60  Yt.  524  ;  cf.  Collyer  v.  Collyer,  4  Dem.  53.] 

1  Gillies  v.  Smither,  2  Stark.  528.  [But  where  the  instrument  which 
was  burned  was  a  deed  which  had  been  duly  acknowledged,  it  was 
held  not  necessary  to  call  the  subscribing  witness  to  prove  its 
execution.  Simmons  v.  Haven,  101  N.  Y.  427  ;  see  Art.  67,  post, 
note  4.] 

2  Breton  v.  Cope,  Pea.  R.  43. 

z  [Hewitt  v.  Morris,  5  J.  &  Sp.  18;  Kelsey  v.  Hanmer,  18  Ct.  311; 
Porter  v.  Wilson,  13  Pa.  641 ;  Wells  v.  Jackson  Iron  Co.,  48  N.  H.  491 ; 
cf.  Jackson  v.  Frier,  16  Johns.  193  ;  Moore  v.  Livingston,  28  Barb.  543  ; 
Kimball  v.  Morrill,  4  Me.  368.  If,  however,  by  reason  of  the  loss,  it 
cannot  be  ascertained  who  were  the  subscribing  witnesses,  other 
evidence  is  admissible.  Jackson  v.  Vail,  7  Wend.  125  ;  Davis  v. 
Spooner,  3  Pick.  284.] 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  183 

the  subscribing  witness  is  blind  ; ' 

the  person  by  whom  the  document  was  executed  is  pre- 
pared to  testify  to  his  own  execution  of  it ; 2 

the  person  seeking  to  prove  the  document  is  prepared 
to  prove  an  admission  of  its  execution  by  the  person  who 
executed  it,  even  if  he  is  a  party  to  the  cause,3  unless  such 
admission  be  made  for  the  purpose  of,  or  has  reference  to 
the  cause.4 

Article  67.* 
cases  in  which  attesting  witness  need  not  be  called. 

In  the  following  cases,  and  in  the  case  mentioned  in 
Article  88,  but  in  no  others,  a  person  seeking  to  prove  the 
execution  of  a  document  required  by  law  to  be  attested  is 


*See  Note  XXVIII.  [Appendix]. 

1  Cronk  v.  Frith,  9  C.  &  P.  197;  [see  Cheeney  v.  Arnold,  18  Barb. 
434-] 

2  R.  v.  Harringworth,  4  M.  &  S.  353.  [This  is  true,  though  parties 
are  now  competent  to  testify.  Brigham  v.  Palmer,  3  Allen,  450 ; 
Jones  v.  Underwood,  28  Barb.  481  ;  Weigandv.  Sichel,  4  Abb.  Dec. 
592  ;  Fletcher  v.  Perry,  97  Ga.  368  ;  Russell  v.  Walker,  73  Ala.  315  ; 
Hess  v.  Griggs,  43  Mich.  397  ;  cf.  Rayburn  v.  Mason  Lumber  Co.,  57 
Mich.  273  ;  contra,  Bowling  v.  Hax,  55  Mo.  446  ;  Garrett  v.  Hanshue, 
53  O.  St.  482.] 

*  Call  v.  Dunning,  4  Ea.  53.  See,  too,  Whyma7i  v.  Garth,  8  Ex. 
803  ;  Randall  v.  Lynch,  2  Camp.  357.  [Fox  v.  Riel,  3  Johns.  477 ; 
Smith  v.  Carotin,  1  Cr.  C.  C.  99  ;  Richmond,  etc.  R.  Co.  v.  Jones,  92 
Ala  218  ;  Kinney  v.  Flynn,  2  R.  I.  319  ;  Warner  v.  B.  &*  O.  R.  Co., 
31  O.  St.  265.  But  a  contrary  rule  became  established  in  New  York 
as  to  negotiable  paper  (see  Jones  v.  Underwood,  28  Barb.  483  ;  S.  P. 
Williams  v.  Floyd,  1 1  Pa.  499  ;  but  see  Art.  69,  post,  note  2). 

If  the  witnesses  are  dead,  and  the  document  lost  or  canceled,  so 
that  handwriting  cannot  be  proved,  evidence  of  admissions  is  re- 
ceivable {Jackson  v.  Vail,  7  Wend.  125;  Kingwood  v.  Bethlehem,  13 
N.  J.  L.  221  ;  Elliott  v.  Dyche,  78  Ala.  150).  So  if  the  witnesses'  testi- 
mony is  insufficient.    Frost  v.  Deering,  21  Me.  156.] 

4  [Gr.  Ev.  i.  §§  569,  572  ;  Blake  v.  Sawin,  10  Allen,  340  ;  Jones  v. 
Henry,  84  N.  C.  320.     Such  admissions  may  be  made  in  the  pleadings 


1 84  A  DIGEST  OF  [Part  II. 

not  bound  to  call  for  that  purpose  cither  the  party  who 
executed  the  deed  or  any  attesting  witness,  or  to  prove 
the  handwriting  of  any  such  party  or  attesting  witness — 
(  t  )  When  he  is  entitled  to  give  secondary  evidence  of 
the  contents  of  the  document  under  Article  71  (a);1 

(2)  When  his  opponent  produces  it  when  called  upon, 
and  claims  an  interest  under  it  in  reference  to  the  subject- 
matter  of  the  suit ; 2 

(3)  When  the  person  against  whom  the  document  is 
sought  to  be  proved  is  a  public  officer  bound  by  law  to 
procure  its  due  execution,  and  who  has  dealt  with  it  as  a 
document  duly  executed.3  4 


{Robert  v.  Good,  36  N.  Y.  408  ;  Thorpe  v.  Keokuk  Coal  Co.,  48  N.  Y. 
253).  So  both  parties  may  waive  proof  by  witness.  Forsythe  v.  Har- 
din,62  111.  206.] 

1  Cooke  v.  Tanswell,  8  Tau.  450 ;  Poole  v.  Warren,  8  A.  &  E.  588. 
[Razaleyv.  Doe,  6  Blackf.  (Ind.)  143.  In  Bright  v.  Young,  15  Ala.  112, 
which  was  a  case  of  this  kind,  the  subscribing  witness  was  examined, 
but  failed  to  prove  the  execution  of  the  instrument  with  any  degree 
of  certainty,  and  it  was  held  that  circumstantial  evidence  was  then 
receivable  to  show  its  execution  and  identity.  See /ackson  v.  Woolsey, 
1 1  Johns.  446.] 

2  Pearce  v.  Hooper,  3  Tau.  60  ;  Rearden  v.  A/inter,  5  M.  &  G.  204. 
[Gr.  Ev.  i.  §  571;  /aekson  v.  Kingsley,  17  Johns.  158;  McGregor  v. 

Wait,  10  Gray,  72  ;  Woodstock  Iron  Co.  v.  Reed,  84  Ala.  493;  see 
Balliett  v.  Fink,  28  Pa.  266  ;  Adams  v.  O  Connor,  100  Mass.  515.]  As 
to  the  sort  of  interest  necessary  to  bring  a  case  within  this  exception, 
see  Collins  v.  Bayntun,  1  Q.  B.  118. 

3 Plumer  v.  Briscoe,  11  Q.  B.  46  ;  [Scott  v.  Waithman,  3  Stark.  168  ; 
Gr.  Ev.  i.  §§  571,  573  ;  see  Battle  v.  Baird,  118  N.  C.  854;  McVicker 
v.  Conkle,  96  Ga.  584,  585.]  Bailey  v.  Bidwell,  13  M.  &  W.  73,  would 
perhaps  justify  a  slight  enlargement  of  the  exception,  but  the  circum- 
stances of  the  case  were  very  peculiar.  Mr.  Taylor  (ss.  1650-1)  con- 
siders it  doubtful  whether  the  rule  extends  to  instruments  executed 
by  corporations,  or  to  deeds  enrolled  under  the  provisions  of  any  act 
of  Parliament,  but  his  authorities  hardly  seem  to  support  his  view; 
at  all  events,  as  to  deeds  by  corporations. 

*■*  [The  following  are  additional  exceptions  : 
(a)  It  is  a  rule  in  some  States  that  proof  by  a  subscribing  witness  is 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  185 

Article  68. 
proof  when  attesting  witness  denies  the  execution. 

If  the  attesting  witness  denies  or  does  not  recollect  the 
execution  of  the  document,  its  execution  may  be  proved 
by  other  evidence.1  .      ^^. 

Article  69. 

proof  of  document  not  required  by  law  to  be 

attested. 

An  attested  document  not  required  by  law  to  be  at- 
tested may  in  all  cases  whatever,  civil  or  criminal,  be 
proved  as  if  it  was  unattested.2 


not  required  when  the  instrument  is  not  directly  in  issue,  but  only 
comes  incidentally  or  collaterally  in  question  (Gr.  Ev.  i.  §  573  b ;  Wh. 
Ev.  i.  §  724  ;  Kitchen  v.  Smith,  lot  Pa.  452  ;  Ayers  v.  Hewett,  19  Me. 
281 ;  Rand  v.  Dodge,  17  N.  H.  343,  357  ;  Curtis  v.  Belknap,  21  Vt.  433  ; 
Steiner  Bros.  v.  Tranum,  98  Ala.  315  ;  see  Co  mm.  v.  Castles,  9  Gray, 
121  ;  Smith  v.  N.  Y.  C.  R.  Co.,  4  Abb.  Dec.  262  ;  post,  p.  190,  note). 

(b)  In  many  States  recorded  deeds  and  other  instruments  may  be 
proved  by  duly  authenticated  copies,  without  calling  any  subscribing 
witness  ;  or  the  deed,  etc.,  as  acknowledged  or  proved  and  certified, 
so  as  to  be  recorded,  may  be  given  in  evidence.  But  the  rules  vary 
in  different  States.  See  Gragg  v.  Learned,  109  Mass.  167  ;  Sudlow  v. 
Warshing,  108  N.  Y.  520  ;  Brown  v.  Oldham,  123  Mo.  621 ;  N.  Y.  Code 
Civ.  Pro.  §§  935-937  ;  Maine  Rev.  St.  c.  82.  s.  no  ;  Wh.  Ev.  i.  §740.] 

1  "Where  an  attesting  witness  has  denied  all  knowledge  of  the 
matter,  the  case  stands  as  if  there  were  no  attesting  witness."  Talbot 
v.  Hodson,  7  Tau.  251,  254.  [Hamsher  v.  Kline,  57  Pa.  397;  Matter 
of  Cottrell,  95  N.  Y.  329  ;  Patterson  v.  Tucker,  9  N.  J.  L.  322  ;  Barne- 
wall  v.  Murrell,  108  Ala.  366;  Thomas  v.  Le  Baron,  8  Met.  355 ;  Webb 
v.  Dye,  18  W.  Va.  376 ;  cf.  Tompson  v.  Fisher,  123  Mass.  559.  So  gen- 
erally if  the  witness's  testimony  is  inadequate  to  prove  execution. 
Harrington  v.  Gable,  81  Pa.  406  ;  Frost  v.  Deering,  21  Me.  156.] 

2 17  &  18  Vict.  c.  125,  s.  26  ;  28  &  29  Vict.  c.  18,  ss.  1,  7.  [Similar 
statutes  are  in  force  in  some  States  of  this  country  (Laws  of  1883,  N. 
Y.  c.  195  ;  Pub.  St.  R.  I.  c.  214,  s.  41 ;  3  How.  St.  (Mich.)  §  7531,  a  ; 


i86  A  DIGEST  OF  [Part  II. 


Article  70. 
secondary  evidence. 

Secondary  evidence  means — 

( 1 )  Examined  copies,  exemplifications,  office  copies,  and 
certified  copies  :l 

(2)  Other  copies  made  from  the  original  and  proved  to 
be  correct : 2 

(3)  Counterparts  of  documents  as  against  the  parties 
who  did  not  execute  them  : 3 

(4)  Oral  accounts  of  the  contents  of  a  document  given 
by  some  person  who  has  himself  seen  it.4 

Article  71. 

cases  in  which  secondary  evidence  relating  to 
documents  may  be  given. 

Secondary  evidence  may  be  given  of  the  contents  of  a 
document  in  the  following  cases  : — 


Laws  of  Md.  of  1888,  c.  545  ;  cf.  111.  Rev.  St.  p.  543,  s.  51  (ed.  1883) ; 
Medary  v.  Cathers,  161  Pa.  87).  But  by  the  common-law  rule,  which 
still  generally  prevails,  if  a  document  is  actually  attested,  though  the 
law  does  not  require  its  attestation,  its  execution  must  be  proved  by 
the  attesting  witness,  or  as  otherwise  prescribed  in  Art.  66  {Giannonc 
v.  Fleetwood,  93  Ga.  491). 

As  to  the  proof  of  unattested  documents,  see  Nichols  v.  Allen,  112 
Mass.  23  ;  St.  John  v.  Amer.  Ins.  Co.,  2  Duer,  419  ;  Seibold  v.  Rogers, 
no  Ala.  438  ;  Pullen  v.  Hutchinson,  25  Me.  249.] 

1  See  Chapter  X. 

2  [See  p.  180,  note  1.  A  copy  of  a  copy  is  sometimes  admissible. 
Cameron  v.  Peck,  37  Ct.  555  ;    Winn  v.  Patterson,  9  Pet.  663.] 

zMunnv.  Godbold,  3  Bing.  292.    [Loringv.  Whittanore,  13  Gray, 
228  ;  see  p.  179,  note  2.] 
4  [The  witness  must  be  able  to  prove  the  substance  of  the  contents  of 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  187 

(a)  When  the  original  is  shown  or  appears  to  be  in  the 
possession  or  power  of  the  adverse  party, 

and  when,  after  the  notice  mentioned  in  Article  72,  he 
does  not  produce  it ;  * 

(b)  When  the  original  is  shown  or  appears  to  be  in  the 
possession  or  power  of  a  stranger  not  legally  bound  to 
produce  it,  and  who  refuses  to  produce  it  after  being 
served  with  a  subpoena  duces  tecum,  or  after  having  been 
sworn  as  a  witness  and  asked  for  the  document  and  hav- 
ing admitted  that  it  is  in  court ; 2 


the  document.  Edwards  v.  Noyes,  65  N.  Y.  125  ;  Richard's  Appeal, 
122  Pa.  547  ;  Mayor  of  Baltimore  v.  War,  yy  Md.  593  ;  Camden  v. 
Belgrade,  78  Me.  204.] 

1  R.  v.  Watson,  2  T.  R.  201.  Entick  v.  Carrington,  19  S.  T.  1073,  's 
cited  by  Mr.  Phillips  as  an  authority  for  this  proposition.  I  do  not 
think  it  supports  it,  but  it  shows  the  necessity  for  the  rule,  as  at  com- 
mon law  no  power  existed  to  compel  the  production  of  documents. 
[Comm.  v.  Shurti,  145  Mass.  150;  Dunbar  v.  U.  S.,  156  U.  S.  185; 
Bishop  v.  Amer.  Preservers'  Co.,  157  111.  284  ;  Carland  v.  Cunning- 
ham,  2,7  Pa.  228;  Keagle  v.  Pessell,  91  Mich.  618;  Gaffer  v.  Amer. 
Mortgage  Co.,  yy  la.  736  ;  Golden  v.  Cornier,  89  Ala.  598  ;  see  Art. 
y 2,  post.  The  party  refusing  to  produce  on  notice  incurs  the  penalty 
of  having  all  inferences  from  the  secondary  evidence,  if  such  evidence 
be  imperfect,  vague,  or  uncertain,  taken  most  strongly  against  himself 
(Cahen  v.  Continental  Ins.  Co.,  69  N.  Y.  300  ;  Cartierv.  Troy  Lumber 
Co.,  138  111.  533  ;  McGuiness  v.  School  District,  39  Minn.  499). 

Notice  need  not  be  given  to  a  party  who  has  admitted  that  the 
original  document  is  lost  or  destroyed.  R.  v.  Haworth,  4  C.  &  P.  254  ; 
Barmby  v.  Phimmer,  29  Neb.  64  ;  but  see  Burlington  Lumber  Co.  v. 
Whitebreast  Co.,  66  la.  292.] 

2  Mills  v.  Oddy,  6  C.  &  P.  732  ;  Marston  v.  Downes,  1  A.  &  E.  31. 
[As  where  an  attorney  refuses  to  produce  a  document  of  his  client 
{Brandt  v.  Klein,  \y  Johns.  335  ;  Hubbell  v.Judd,  etc.  Oil  Co.,  19  Alb. 
L.  J.  97  ;  Stokoe  v.  St.  Paul,  etc.  R.  Co.,  40  Minn.  545  ;  see  Arts.  1 15, 
118,  119, post);  or  a  witness  refuses,  because  the  document  will  crim- 
inate him  {State  v.  Gurnee,  14  Kan.  in);  or  the  document  is  a  public 
one  on  file  in  a  public  office  and  so  not  required  to  be  produced.  Cor- 
belt  v.  Gibson,  16  Blatch.  334  ;  cf  In  re  Hirsch,  74  F.  R.  928  ;  see  p. 
193,  note  1,  post.] 


A  DIGEST  OF  [Part  II. 


(c)  When  the  original  has  been  destroyed  or  lost,  and 
proper  search  has  been  made  for  it ; ' 

[d)  When  the  original  is  of  such  a  nature  as  not  to  be 
easily  movable,2  or  is  in  a  country  from  which  it  is  not 
permitted  to  be  removed  ; 3 


1  i  Ph.  Ev.  452;  2  Ph.  Ev.  281 ;  T.  E.  (from  Greenleaf)  s.  309.  [Man- 
deville  v.  Reynolds,  68  N.  Y.  528  ;  Slebbins  v.  Duncan,  108  U.  S.  32 ; 

JMc  Council  v.  Wildes,  153  Mass.  487  ;  Gorgas  v.  Hertz,  150  Pa.  538. 
Diligent  search  must  ordinarily  be  shown,  exhausting  all  reasonable 
means  of  discovery  (Simpson  v.  Dull,  3  Wall.  460  ;  Johnson  v.  Am- 
wine,  42  N.  J.  L.  451;  Kearney  v.  Mayor  of  N.  Y,  92  N.  Y.  617  ;  Dar- 
row  v.  Pierce,  91  Mich.  63  ;  Mullanphy  Bk.  v.  Schott,  135  111.  655  ; 
McCollisterv.  Yard,  90  la.  621).  But  the  less  the  importance  of  the 
instrument,  the  less  the  diligence  required  (American  Ins.  Co.  v. 
Rosenagle,  77  Pa.  507  ;  Hatch  v.  Carpenter,  9  Gray,  271).  Proof  of 
the  existence  and  genuineness  of  the  lost  instrument  is  required,  in 
order  that  secondary  evidence  may  be  admissible.  Nichols  v.  King- 
dom  Iron  Co.,  56  N.  Y.  618  ;  Guntherv.  Bennett,  72  Md.  384  ;  Krise  v. 
Neason,  66  Pa.  253.]  The  loss  may  be  proved  by  an  admission  of  the 
party  or  his  attorney  (R.  v.  Haworth,  4  C.  &  P.  254  ;  [Pentecost  v. 
Stale,  107  Ala.  81]). 

[A  party  who  has  voluntarily  destroyed  a  document  cannot  give 
secondary  evidence  of  its  contents,  unless  he  shows  his  act  to  have 
been  with  innocent  intent.  Potter  v.  Adams,  125  Mo.  118;  Steele  v. 
Lord,  70  N.  Y.  280  ;  Bagley  v.  McMickle,  9  Cal.  430  ;  Jones  v.  Knauss, 
31  N.  J.  Eq.  609  ;  Joannes  v.  Bennett,  5  Allen,  169.] 

2  Mortimer  v.  McCallan,  6  M.  &  W.  67,  68,  (this  was  the  case  of  a 
libel  written  on  a  wall);  Bruce  v.  Nicolopulo,  11  Ex.  133,  (the  case  of 
a  placard  posted  on  a  wall).  [Gr.  Ev.  i.  §  94  ;  North  Brookfield  v. 
Warren,  16  Gray,  171,  (inscription  on  a  tombstone);  Stearns  v.  Doe,  12 
Gray,  482,  (name  of  a  vessel);  cf.  Cozzens  v.  Higgins,  1  Abb.  Dec.  451, 
(photograph  of  a  place  ;  see  Art.  62,  ante,  and  note).] 

3  Alivon  v.  Fumival,  1  C.  M.  &  R.  277,  291-2.  [Mauri  v.  Heffernan, 
13  Johns.  58.  So  if  the  original  is  in  the  possession  of  a  person  in  an- 
other State  or  country,  so  that  its  production  cannot  be  compelled 
(Elwell  v.  Mersick,  50  Ct.  272  ;  Tucker  v.  Woolsey,  6  Lans.  482  ;  Stevens 
v.  Miles,  142  Mass.  571;  Knickerbocker  v.  Wilcox,  83  Mich.  200; 
Beattie  v.  Hilliard,  55  N.  H.  428  ;  Fosdick  v.  Van  Horn,  40  O.  St.  459  ; 
Burton  v.  Driggs,  20  Wall.  125,  134;  Memphis,  etc.  R.  Co.  v.  Hcm- 
bree,  84  Ala.  182  ;  Zellerbach  v.  Allenberg,  99  Cal.  57  ;  Otto  v.  Trump, 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  189 

(e)  When  the  original  is  a  public  document ; J 

{/)  [When  the  party  has  been  deprived  of  the  original 
by  fraud,  so  that  it  cannot  be  procured.]  2 

(g)  When  the  original  is  a  document  for  the  proof  of 
which  special  provision  is  made  by  any  act  of  Parliament, 
or  any  law  in  force  for  the  time  being  ; 3  or 

(h)  When  the  originals  consist  of  numerous  documents 
which  cannot  conveniently  be  examined  in  court,  and  the 
fact  to  be  proved  is  the  general  result 4  of  the  whole  col- 


115  Pa.  425,  430).  These  cases  do  not  declare  it  necessary  to  take 
his  deposition,  but  in  some  cases  his  deposition  has  been  taken, 
and  secondary  evidence  of  the  document  received  because  he  would 
not  give  up  the  original  {Bullis  v.  Eastern,  96  la.  513;  Deitz  v. 
Regnier,  27  Kan.  94  ;  L Herbette  v.  Pittsfield  Nat.  Bk.,  162  Mass. 
137;  in  these  foregoing  cases  he  gave  a  copy  which  was  used; 
Forrest  v.  Forrest,  6  Duer,  102,  137  ;  Fisher  v.  Greene,  95  111.  94). 
Some  cases,  however,  hold  that  mere  absence  of  the  document  from 
the  State  is  not  enough,  but  that  the  deposition  of  the  witness 
should  be  taken  or  some  proper  effort  made  to  obtain  the  original. 
Wiseman  v.  N.  P.  R.  Co.,  20  Or.  425  ;  Wood  v.  Cidlen,  13  Minn. 
394  ;  Shaw  v.  Mason,  10  Kan.  184  ;  see  Knowlton  v.  Knowlton, 
84  Me.  283;  Thomson  -  Houston  Electric  Co.  v.  Palmer,  52  Minn. 
1 74-] 

1  See  Chapter  X. ;  [including  public  records  ;  see  Gr.  Ev.  i.  §  91.] 

2  [Grimes  v.  Kimball,  3  Allen,  518  ;  Nealley  v.  Greenough,  25  N.  H. 
325  ;  Mitchell  v.Jacobs,  17  111.  235  ;  see  Marlow  v.  Marlon/,  77  111. 

633- 

This  paragraph  is  substituted  for  one  which  is  peculiar  to  English 
law.     It  will  be  found  in  the  Appendix,  Note  XLIX.] 

3  See  Chapter  X.    [Many  such  statutes  are  in  force  in  this  country.] 

4  Roberts  v.  Doxen,  Peake,  116;  Meyer  v.  Sefton,  2  Stark.  276.  The 
books,  etc.,  should  in  such  a  case  be  ready  to  be  produced  if  required. 
Johnson  v.  Kershaw,  1  De  G.  &  S.  264.  [Gr.  Ev.  i.  §  93  ;  Wh.  Ev.  i. 
§  80  ;  Burton  v.  Driggs,  20  Wall.  125  ;  Von  Sachs  v.  Kretz,  72  N.  Y. 
548  ;  Boston  6>-»  W.  R.  Co.  v.  Dana,  1  Gray,  83  ;  Chicago,  etc.  R.  Co. 
v.  Wolcott,  141  Ind.  267;  State  v.  Findley,  101  Mo.  217  ;  Wolfordv. 
Farnham,  47  Minn.  95.] 


iqo  A  DIGEST  OF  [Part  II. 

lection ;    provided  that  that  result  is  capable  of  being 
ascertained  by  calculation.1 


1  [Besides  the  cases  here  stated,  another  has  been  asserted,  viz., 
that  parol  evidence  of  the  contents  of  documents  may  be  given,  when 
they  do  not  form  the  foundation  of  the  cause,  but  merely  relate  to 
some  collateral  fact  (M Fadden  v.  Kingsbury,  1 1  Wend.  667  ;  Roose- 
velt \.  Eckard,  17  Abb.  N.  C.  58;  Maxwell  v.  Hofheimer,  81  Hun, 
551  ;  Coonrodv.  Madden,  126  Ind.  197  ;  Rodgers  v.  Crook,  97  Ala.  722  ; 
Faulcon  v.  Johnston,  102  N.  C.  264  ;  cf.  Daniels  v.  Smith,  130  N.  Y. 
696  ;  Phinney  v.  Holt,  50  Me.  570).  This  doctrine  has  been  criti- 
cised (Ph.  Ev.  Amer.  Ed.,  ii.  *5 13  ;  Jones  v.  Underwood,  28  Barb. 
481),  but  there  is  now  much  weighty  authority  in  its  support. 

So  the  contents  of  a  document,  as  a  notice,  placard,  inscription, 
etc.,  may  be  proved  by  parol,  as  a  means  of  describing  the  place 
where  it  hangs,  of  identifying  the  object  to  which  it  is  attached,  of 
showing  the  nature  and  purpose  of  a  display  or  exhibition  in  which  it 
is  carried,  etc.  {Comm.  v.  Brown,  124  Mass.  318  ;  Comm.  v.  Morrell, 
99  id.  542  ;  R.  v.  Hunt,  3  B.  &  Aid.  566).  Parol  evidence  has  also 
been  received  of  the  contents  of  a  document  which  was  a  transient 
casual  paper,  not  likely  to  be  preserved,  or  when  such  contents  were 
referred  to  incidentally  or  by  way  of  inducement  or  recital,  etc.  {State 
v.  Credle,  91  N.  C.  640  ;  People  v.  Jones,  106  N.  Y.  523,  526 ;  Chrysler 
v.  Renois,  43  N.  Y.  209 ;  N.  J.  Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  N.  J. 
L.  189,  193  ;  Massey  v.  Farmers'  Nat.  Bk.,  113  111.  334). 

A  document  may  also  be  so  far  collateral  to  the  question  in  issue, 
though  relating  to  the  same  subject-matter,  that  its  production  is 
not  required,  nor  proof  of  its  contents  necessary.  In  such  a  case 
parol  evidence  is  receivable  of  the  transaction  to  which  it  relates  ;  as 
e.g.,  where  a  contract  is  made  by  parol,  but  a  written  memorandum 
of  its  terms  is  made  at  the  same  time  ;  the  writing  may,  however,  be 
competent  evidence  to  corroborate  the  oral  testimony  (Lathrop  v. 
Brain  hall,  64  N.  Y.  365  ;  Thomas  v.  Nelson,  69  N.  Y.  118  ;  Mobile, 
etc.  R.  Co.  v.  Jurey,  1 1 1  U.  S.  584  ;  Freeman  v.  Bartlett,  47  N.  J.  L.  33  ; 
Adams  v.  Sullivan,  100  Ind.  8).  So  the  existence  of  a  fact  or  a  state 
of  facts,  as  a  tenancy,  a  partnership,  etc.,  may  be  proved  by  parol 
evidence,  though  it  was  created  by  the  use  of  a  document  (Ham»io>: 
v.  Sexton,  69  Ind.  37  ;  Uhl  v.  Moorhous,  137  Ind.  445  ;  Gallagher  v. 
London  Assur.  Corp.,  149  Pa.  25  ;  State  v.  Grant,  104  N.  C.  908  ;  East 
v.  Pace,  57  Ala.  521),  or  though  a  writing  was  made  as  some  record  or 
memorial  thereof  {Hewitt  v.  State,  121  Ind.  245  ;  Comm.  v.  Dill,  156 
Mass.  226;  cf.  Comm.  v.  Stevens,  155  id.  291).  So  the  payment  of  a 
debt  may  be  proved  by  parol,  without  producing  the  written  receipt 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  191 

Subject  to  the  provisions  hereinafter  contained,  any 
secondary  evidence  of  a  document  is  admissible.1 

In  case  {h)  evidence  may  be  given  as  to  the  general 
result  of  the  documents  by  any  person  who  has  examined 
them,  and  who  is  skilled  in  the  examination  of  such 
documents. 

Questions  as  to  the  existence  of  facts  rendering 
secondary  evidence  of  the  contents  of  documents  ad- 
missible are  to  be  decided  by  the  judge,  unless  in  de- 
ciding such  a  question  the  judge  would  in  effect  decide 
the  matter  in  issue.* 


{Kingsbury  v.  Moses,  45  N.  H.  222) ;  so  oftentimes  of  written  proposals, 
notices,  demands,  etc.  (Gr.  Ev.  i.  §§  89,  90  ;  Wh.  Ev.  i.  §§  64, 77  ;  Jones 
v.  Call,  93  N.  C.  170  ;  Mich.  Land,  etc.  Co.  v.  Republic  T'p,  65  Mich. 
628).  So  collateral  facts  about  a  document  may  be  proved  by  parol 
(  Winslow  v.  State,  76  Ala.  42  ;  see  p.  224,  note  3,  post). 

As  to  proof  of  a  person's  holding  a  public  office,  see  Art.  go,  post, 
last  paragraph.] 

1  If  a  counterpart  is  known  to  exist,  it  is  the  safest  course  to  produce 
or  account  for  it  (Munn  v.  Godbold,  3  Bing.  297  ;  R.  v.  Castleton,  7 
T.  R.  236). 

[It  is  the  English  doctrine  that  there  are  no  degrees  in  secondary 
evidence,  and  a  party  may  introduce  any  form  thereof  (as  e.  g.,  oral 
testimony  instead  of  a  copy),  if  the  original  cannot  be  had.  Some 
American  States  adopt  the  same  doctrine  (Comm.  v.  Smith,  151  Mass. 
491  ;  Magie  v.  Herman,  50  Minn.  424  ;  Eslow  v.  Mitchell,  26  Mich. 
500;  Carpenter  v.  Dame,  10  Ind.  125).  But  generally  in  this  country 
a  party  must  produce  the  best  form  of  secondary  evidence  that  is  or 
appears  to  be  procurable  by  him,  as  e.  g.,  a  copy  instead  of  oral 
testimony  (Cornell  v.  Williams,  20  Wall.  226  ;  Reddington  v.  Oilman, 
1  Bos.  235  ;  Lazzaro  v.  Maugham,  10  Misc.  230 ;  Mandeville  v. 
Reynolds,  68  N.  Y.  528,  533  ;  Stevenson  v.  Hoy,  43  Pa.  191  ;  Illinois 
Land  Co.  v.  Bonner,  75  111.  315;  Harvey  v.  Thorpe,  28  Ala.  250; 
Higgins  v.  Reed,  8  la.  298  ;  Ford  v.  Cunningham,  87  Cal.  209). 

As  to  counterparts,  see  Poignand  v.  Smith,  8  Pick.  272  ;  Riggs  v. 
Tayloe,  9  Wheat.  483  ;  Art.  64,  ante.  Of  duplicate  originals,  all  must 
be  shown  to  be  lost,  destroyed,  etc.,  before  secondary  evidence  will  be 
received.  Dyer  v.  Fredericks,  63  Me.  173,  592  ;  McMakin  v.  Weston, 
64  Ind.  270  ;  Ala.  Southern  R.  Co.  v.  Alt.  Vernon  Co.,  84  Ala.  173.] 

2  [Mason  v.  Libbey,  90  N.  Y.  683  ;  Elivell  v.  Mersick,  50  Ct.  272.] 


192  A  DIGEST  OF  [Part  II 


Article  72.* 
rules  as  to  notice  to  produce. 

Secondary  evidence  of  the  contents  of  the  documents 
referred  to  in  Article  71  (a)  may  not  be  given,  unless  the 
party  proposing  to  give  such  secondary  evidence  has, 

if  the  original  is  in  the  possession  or  under  the  control 
of  the  adverse  party,  given  him  such  notice  to  produce  it 
as  the  court  regards  as  reasonably  sufficient  to  enable  it 
to  be  procured  ; '  or  has, 

if  the  original  is  in  the  possession  of  a  stranger  to  the 


*  See  Note  XXIX.  [Appendix]. 

1  Dtuyer  v.  Collins,  7  Ex.  648.  [Foster  y.  Newbrough,  58  N.  Y.  481; 
Draper  v.  Hatfield,  124  Mass.  53  ;  People  v.  Walker,  38  Mich.  159  ; 
Dunbar  v.  U.  S.,  156  U.  S.  185  ;  Mayor  of  Baltimore  v.  War,  77  Md. 
593,  603  ;  Trelever  v.  Northern  Pac.  R.  Co.,  89  Wis.  598  ;  Eilbert  v. 
Finlcbeiner,  68  Pa.  243.  Notice  is  not  required  unless  the  original  is 
in  the  party's  possession  or  control  {Roberts  v.  Spencer,  123  Mass.  397 ; 
Baker  v.  Pike,  33  Me.  213  ;  Shepard  v.  Giddings,  22  Ct.  282).  The 
notice  may  be  given  to  the  party's  attorney  (Brown  v.  Littlefield,  7 
Wend.  454;  Den  v.  M'Allister,  7  N.  J.  L.  46).  The  notice  must  be 
given  a  sufficient  time  beforehand  (Bourne  v.  Buffingtoti,  125  Mass. 
481;  U.  S.  v.  Duff,  6  F.  R.  45  ;  DeWitt  v.  Prescott,  51  Mich.  298  ; 
McPherson  v.  Rathbone,  7  Wend.  216  ;  Utica  Ins.  Co.  v.  Cadwell,  3 
Wend.  296);  if  the  time  allowed  be  unreasonably  short,  secondary 
evidence  will  not  be  admissible  (Id.;  Mortlock  v.  Williams,  76  Mich. 
568  ;  Dade  v.  sEtna  Pis.  Co.,  54  Minn.  336).  The  notice  must  also 
definitely  describe  the  document  required  ( Walden  v.  Davison,  1 1 
Wend.  65  ;  Arnstine  v.  Preat,  71  Mich.  561;  McDowell  v.  AZtna  Ins. 
Co.,  164  Mass.  444  ;  see  Gr.  Ev.  i.  §  563  ;  Art.  71,  ante ;  Arts.  138,  139, 
post).  Whether  sufficient  notice  has  been  given  is  a  question  for  the 
court  to  determine  (Comm.  v.  Sullivan,  156  Mass.  229  ;  Hanselmau  v. 
Doyle,  90  Mich.  142). 

In  the  Federal  courts,  the  production  of  books  and  writings  by  a 
party  may  also  be  required  under  a  special  statute  in  actions  at  law 
1  V .  S.  Rev.  St.  §  724  ;  Lowenstein  v.  Carey,  12  F.  R.  811,  and  note  ; 
Exchange  .Wit.  Bk.  v.  Washita  Co.,  61  id.  190).  Statutes  in  many 
States  also  allow  discovery  and  inspection  of  documents  before  trial. 
N.  Y.  Code  Civ.  Pro.  §§  803-809  ;  Mass.  Pub.  St.  c.  167,  ss.  49-60  ;  Laws 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  193 

action,  served  him  with  a  subpoena  duces  tecum  requiring 
its  production ; ' 

if  a  stranger  so  served  does  not  produce  the  document, 
and  has  no  lawful  justification  for  refusing  or  omitting  to 
do  so,  his  omission  does  not  entitle  the  party  who  served 
him  with  the  subpcena  to  give  secondary  evidence  of  the 
contents  of  the  document.2 

Such  notice  is  not  required  in  order  to  render  secondary 
evidence  admissible  in  any  of  the  following  cases — 

(1)  When  the  document  to  be  proved  is  itself  a  notice  ; 3 


of  Me.  of  1893,  c.  217 ;  Pynchon  v.  Day,  118  111.  9 ;  Arnold  v.  Paw- 
tuxet  Co.,  18  R.  I.  189.] 

1  Newton  v.  Chaplin,  10  C.  B.  56-69.  \_Aikin  v.  Martin,  1 1  Pai.  499  ; 
Lane  v.  Cole,  12  Barb.  680  ;  Baker  v.  Pike,  33  Me.  213  ;  In  re  S 'hep- 
hard,  3  F.  R.  12.  So  on  examinations  before  masters  and  commis- 
sioners in  Federal  practice  {Erie  R.  Co.  v.  Heath,  8  Blatch.  413  ;  U.  S. 
v.  Tilden,  10  Ben.  566).  Such  a  subpoena  may  be  served  on  a  party, 
now  that  parties  are  competent  witnesses  {Shelp  v.  Morrison,  13  Hun, 
1 10  ;  Murray  v.  Els  ton,  23  N.  J.  Eq.  212  ;  Cummer  v.  Kent  Judge,  38 
Mich.  351;  but  see  Campbell  v.  Johnston,  3  Del.  Ch.  94),  or  on  a  cor- 
poration, by  serving  the  proper  officer  {Johnson  Steel  Rail  Co.  v. 
North  Branch  Co.,  48  F.  R.  195  ;  Ex  parte  Brown,  72  Mo.  83  (tele- 
grams); U.  S.  v.  Babcock,  3  Dill.  566  (telegrams);  N.  Y.  Code  Civ.  Pro. 
§  868  ;  In  re  Sykes,  10  Ben.  162).  The  writ  should  describe  documents 
definitely  {State  v.  Davis,  117  Mo.  614  ;  U.  S.  v.  Hunter,  15  F.  R.  712  ; 
Ex  parte  Jayncs,  70  Cal.  638),  and  is  compulsory,  unless  it  is  set  aside, 
or  the  witness  is  privileged  {Boncsteel 'v.  Lynde,  8  How.  Pr.  226,  352  ; 
Corbett  v.  Gibson,  16  Blatch.  334  ;  In  re  Hirsch,  74  F.  R.  928  ;  John- 
son v.  Donaldson,  3  F.  R.  22;  see  Art.  71  {b),  ante;  Arts.  1 18-120, 
post).  A  subpcena  duces  tecum  may  only  be  used  to  compel  the  pro- 
duction of  documents,  books,  drawings,  and  the  like,  but  not  of  such 
objects  as  iron  plates,  patterns  for  stove  castings,  etc.  Johnson  Steel 
Rail  Co.  v.  North  Branch  Co.,  48  F.  R.  191.] 

2  R.  v.  Llanjaethly,  2  E.  &  B.  940.  [The  recusant  witness  may  be 
sued  for  damages  {Lane  v.  Cole,  12  Barb.  680),  punished  for  contempt 
{Holly  MJg.  Co.  v.  Venner,  74  Hun,  ^58,  143  N.  Y.  639),  and  is  gener- 
ally subject  also  to  a  statutory  penalty.  When  he  is  a  party,  his  plead- 
ing has  sometimes  been  stricken  out.   Shelp  v.  Morrison,  13  Hun,  1 10.] 

3  [Quinlcy  v.  Atkins,  9  Gray,  370  ;  Michigan,  etc.  Land  Co.  v.  Re- 
public Township,  65  Mich,  628  ;  Pensacola,  etc.  R.  Co.  v.  Brayton,  34 


194  A  DIGEST  OF  [Part  II. 

(2)  "When  the  action  is  founded  upon  the  assumption 
that  the  document  is  in  the  possession  or  power  of  the 
adverse  party  and  requires  its  production  ; ' 

(3)  "When  it  appears  or  is  proved  that  the  adverse  party 
has  obtained  possession  of  the  original  from  a  person  sub- 
poenaed to  produce  it ; 2 

(4)  WThen  the  adverse  party  or  his  agent  has  the  original 
in  court.3  4 

Fla.  471;  Edwards  v.  Bonneau,  1  Sandf.  610;  Gethin  v.  Walker,  59 
Cal.  502  ;  Morrow  v.  Comm.,  48  Pa.  305  ;  Central  Bk.  v.  Allen,  16 
Me.  41.] 

1  How  v.  Hall,  14  Ea.  247.  In  an  action  on  a  bond,  no  notice  to  pro- 
duce the  bond  is  required.  See  other  illustrations  in  2  Ph.  Ev.  373  ; 
T.  E.  s.  422.  [Lawson  v.  Bachman,  81  N.  Y.  616  ;  Morrill  v.  B.  &= 
M.  R.  Co.,  58  N.  H.  68  ;  Dana  v.  Conant,  30  Vt.  246  ;  Railway  Co.  v. 
Cronin,  38  O.  St.  122  ;  as  e.  g.,  in  an  action  of  trover  for  the  document 
{Hotchkiss  v.  Mosher.  48  N.  Y.  478).  The  rule  applies  also  in  criminal 
cases,  as  e.  g.,  where  the  defendant  was  charged  by  the  indictment 
with  fraudulently  possessing  himself  of  certain  documents.  State  v. 
Maybcrry,  48  Me.  218  ;  cf.  People  v.  Swetland,  77  Mich.  53.] 

2  Leeds  v.  Cook,  4  Esp.  256.  [Gray  v.  Kemahan,  2  Mill  (S.  Car.)  65  ; 
cf.  Bonestecl  v.  Lynde,  8  How.  Pr.  226,  352.'  So  where  a  party  tore  off 
a  part  of  a  document  with  intent  to  destroy,  notice  to  produce  the  por- 
tion he  took  was  held  unnecessary.     Scott  v.  Pentz,  5  Sandf.  572.] 

3  Formerly  doubted,  see  2  Ph.  Ev.  278,  but  so  held  in  Dwyer  v.  Col- 
lins, 7  Ex.  639.  [A  verbal  notice'in  court  is  in  this  case  sufficient  to 
let  in  secondary  evidence  (Overlock  v.  Hall,8i  Me/348  ;  Field  v.  Ze- 
mansky,  9  111.  App.  479;  Winslow  v.  State,  92  Ala.  78;  Downer  v. 
Button,  26  N.  H.  338,  343  ;  Chadwick  v.  U.  S.,  3  F.  R.  750  ;  Kerr  v. 
McGuire,  28  N.  Y.  446;  see  Atwellv.  Miller,  6  Md.  10;  Barton  v. 
Kane,  1 7  Wis.  37  ;  Dole  v.  Belden,  1  X.  Y.  S.  667);  but  some  early  cases 
are  to  the  contrary  (  Watkins  v.  Pintard,  1  N.  J.  L.  (Coxe)  378  ;  Mi/li- 
ken v.  "Barr,  7  Pa.  23).  The  court  may  compel  a  witness  to  produce 
a  document  which  he  has  in  court.  Boynlon  v.  Boynton,  25  How.  Pr. 
490,  41  N.  Y.  619 ;  Shelp  v.  Morrison,  13  Hun,  no,  113;  McGregor  v. 

Wait,  10  Gray,  72.] 

4  [Additional  rules  are  as  follows  : 

(a)  A  duplicate  original  maybe  given  in  evidence,  without  giving 
notice  to  produce  the  other  (Gr.  Ev.  i.  §  561;  Totten  v.  Bucy,  57  Md. 
446  ;  Wcstbrook  v.  Fulton,  79  Ala.  510  ;  see  Art.  64,  ante). 

{b)  Absence  of  the  party  having  the  document  from  the  State  is  no 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  195 


excuse  for  not  giving  notice,  if  he  can  be  found  (Car/and  v.  Cunning- 
ham, 37  Pa.  228  ;  Dade  v.  A£ttia  Ins.  Co.,  54  Minn.  336).  Aliter,  if  a 
stranger  out  of  the  State  have  the  document  {Stirling  v.  Buckingham, 
46  Ct.  461;  see  Burton  v.  Driggs,  20  Wall.  125, 134  ;  Art.  71  (d),ante). 
(c)  In  States  where  the  contents  of  an  instrument  may  be  proved  by 
parol,  because  it  is  only  collaterally  in  question,  notice  to  produce  the 
instrument  is  not  necessary.  Coonrodv.  Madden,  126  Ind.  197  ;  Askew 
v.  Steiner,  76  Ala.  2j8,  221 ;  see  ante,  p.  190,  note.] 


i^ 


ro6  A  DIGEST  OF  [Part  II. 


CHAPTER  X. 
PROOF  OF  PUBLIC  DOCUMENTS, 

Article  73. 

PROOF  OF  PUBLIC  DOCUMENTS. 

When  a  statement  made  in  any  public  document,  register, 
or  record,  judicial  or  otherwise,  or  in  any  pleading  or 
deposition  kept  therewith  is  in  issue,  or  is  relevant  to  the 
issue  in  any  proceeding,  the  fact  that  that  statement  is 
contained  in  that  document,  may  be  proved  in  any  of  the 
ways  mentioned  in  this  chapter.1 

Article  74. 

PRODUCTION  OF   DOCUMENT   ITSELF. 

The  contents  of  any  public  document  whatever  may  be 
proved  by  producing  the  document  itself  for  inspection 
from  proper  custody,  and  identifying  it  as  being  what  it 
professes  to  be.2 


1  See  Articles  34  and  90. 

'-'  [Gr.  Ev.  i.  §§  479,  482-484  ;  Wh.  Ev.  i.  §§635-660;  Arts.  33  and  34, 
ante,  and  cases  cited;  Evanston  v.  Gunn,  99  U.  S.  660;  Taylor  v. 
Adams,  115  111.  570;  Phelps  v.  Hunt,  43  Ct.  194.  A  printed  report  of 
a  decision  is  not  competent  original  evidence  of  a  judgment  {Donellan 
v.  J  lardy,  57  Ind.  393),  unless  the  original  record  has  been  destroyed 
{Frost  v.  Frost,  21  S.  Car.  501).  If  a  public  record  be  lost,  its  contents 
may  be  proved  by  the  testimony  of  a  witness,  no  better  evidence  being 
available.    Richard 's  Appeal,  122  Pa.  547.] 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  197 


Article  75* 
examined  copies. 

The  contents  of  any  public  document  whatever  may  in 
all  cases  be  proved  by  an  examined  copy.1 

An  examined  copy  is  a  copy  proved  by  oral  evidence 
to  have  been  examined  with  the  original  and  to  corre- 
spond therewith.2  The  examination  may  be  made  either 
by  one  person  reading  both  the  original  and  the  copy,  or 
by  two  persons,  one  reading  the  original  and  the  other 
the  copy,  and  it  is  not  necessary  (except  in  peerage  cases3) 
that  each  should  alternately  read  both.4 

Article  j6.\ 

[general  records  of  the  nation  or  state.] 

[Copies  of  any  documents,  records,  books,  or  papers  in 
any  of  the  executive  departments  of  the  United  States 
Government,  authenticated  under  the  seals  of  such  de- 
partments, respectively,  are  admitted  in  evidence  equally 
with  the  originals  ;  and  the  same  is  true  of  copies  of  doc- 


*  See  Note  XXX.  [Appendix] ;  also  Doe  v.  Ross,  7  M.  &  W.  106. 
■j"  [For  original  Article,  see  Note  LI.  Appendix.] 

1  [Gr.  Ev.  i.  §§  485,  508 ;  State  v.  Loughlin,  66  N.  H.  266.] 

2  [Gr.  Ev.  i.  §  508  ;  State  v.  Lynde,  77  Me.  561 ;  State  v.  Sfiaulding, 
60  Vt.  228  ;  Hill  v.  Packard,  5  Wend.  376,  387  ;  Amer.  Life  Ins.  Co.  v. 
Rosenagle,  77  Pa.  507  ;  see  N.  Y.  Code  Civ.  Pro.  §  962.  It  is  also  called 
a  "sworn  copy"  (Id.;  Gr.  Ev.  i.  §§  485,  501 ;  Hubbell v.  Meigs,  50  N. 
Y.  480,  492  ;  Moore  v.  Gaiis  Mfg.  Co.,  113  Mo.  98 ;  State  v.  Clothier, 
30  N.  J.  L.  351).  An  examined  copy  must  be  made  by  comparison 
with  the  original  document,  not  by  comparison  with  some  other  copy. 
Lasater  v.  Van  Hook,  77  Tex.  650.] 

3  Slane  Peerage  Case,  5  C.  &  F.  42. 

4  2  Ph.  Ev.  200,  231 ;  T.  E.  ss.  1379, 1389  ;  R.  N.  P.  113.  [Kellogg  v. 
Kellogg,  6  Barb.  116 ;  see  Krise  v.  Neason,  66  Pa.  253.] 


198  A  DIGEST  OF  [Part  II. 

uments  in  various  public  offices,  certified  by  the  proper 
public  officer  and  authenticated  under  his  seal  of  office.1 

A  similar  rule  as  to  the  proof  in  State  courts  of  public 
documents  in  State  offices  is  commonly  established  by 
statutes  of  the  States,  respectively.]  a 

Article  77.* 
exemplifications. 

An  exemplification  is  a  copy  of  a  record  set  out  either 
under  the  Great  Seal  or  under  the  Seal  of  a  court.3 

A  copy  made  by  an  officer  of  the  court,  bound  by  law 
to  make  it,  is  equivalent  to  an  exemplification,  though  it  is 
sometimes  called  an  office  copy.4 


*See  Note  XXXI.  [Appendix]. 

1  [U.  S.  Rev.  St.  ss.  882-898  ;  Ballew  v.  U.  S.,  160  U.  S.  iol ;  decisions 
collected  in  Bump's  Federal  Procedure,  pp.  552-562,  and  Foster's  Fed. 
Pr.  1,  §  268,  2d  ed.] 

2  [See  N.  Y.  Code  Civ.  Pro.  §§  933,  957,  958  ;  Mass.  Pub.  St.  c.  169, 
s.  70.  So  statutes  may  provide  that  documents  in  U.  S.  offices  may  be 
so  proved  in  State  courts.     N.  Y-.  Code  Civ.  Pro.  §§  943,  944.] 

3  [The  term  applies  primarily  to  domestic  judicial  records,  and  is 
here  defined  from  that  point  of  view  (Gr.  Ev.  i.  §§  488,  501 ;  Wh.  Ev. 
i.  §  95  ;  Traction  Co.  v.  Board  of  Works,  57  N.  J.  L.  315,  316  ;  Patterson 
v. Winn,  5  Pet.  233).  But  it  is  often  now  applied  both  to  domestic  and 
to  foreign  records,  laws,  and  documents,  whether  judicial  or  non- 
judicial. Lincoln  v.  Battelle,  6  Wend.  475  ;  Ropes  v.  Kemps,  38  Fla. 
233;  Lazier  v.  Westcott,  26  N.  Y.  146;  Watson  v.  Walker,  23  N.  H. 
471 ;  Spaulding  v.  Vincent,  24  Yt.  501.] 

4  [  Traction  Co.  v.  Board  of  Works,  57  N.  J.  L.  316.  This  rule  applies 
to  all  courts  within  the  same  jurisdiction  (Gr.  Ev.  i.  §  507).  Copies  of 
public  records,  whether  judicial  or  otherwise,  made  by  a  public  officer 
authorized  by  law  to  make  them,  are  also  often  termed  "  office  copies," 
as  e  g.,  copies  of  recorded  deeds  (Graggv.  Learned,  109  Mass.  167; 
JLlwell  v.  Cunningkam,  74  Me.  127).     They  are  also  called  "certified 

copies"  (Samuels  v.  Borrowscale,  104  Mass.  207).  They  are  declared 
admissible  in  many  cases  in  courts  of  the  same  jurisdiction  without 
further  authentication.  The  officer  may  be  required  to  attach  his  seal 
of  office,  if  he  has  one.    See  Art.  79.] 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  199 

An  exemplification  is  equivalent  to  the  original  docu- 
ment exemplified.1 

Article  78.* 
copies  equivalent  to  exemplifications. 

A  copy  made  by  an  officer  of  the  court,  who  is  author- 
ized to  make  it  by  a  rule  of  court,  but  not  required  by  law 
to  make  it,  is  regarded  as  equivalent  to  an  exemplifica- 
tion in  the  same  cause  and  court,  but  in  other  causes  or 
courts  it  is  not  admissible  unless  it  can  be  proved  as  an 
examined  copy.2 

Article  79. 
certified  copies. 

It  is  provided  by  many  statutes  that  various  certificates, 
official  and  public  documents,  documents  and  proceedings 
of  corporations,  and  of  joint  stock  and  other  companies, 
and  certified  copies  of  documents,  by-laws,  entries  in 
registers  and  other  books,  shall  be  receivable  in  evidence 
of  certain  particulars  in  courts  of  justice,  provided  they 
are  respectively  authenticated  in  the  manner  prescribed 
by  such  statutes.3 

*  See  Note  XXXI.  [Appendix]. 

1  [This  is  spoken  of  domestic  records,  etc.;  foreign  records  may 
need  additional  authentication.     Gr.  Ev.  i.  §  501 ;  Art.  84,  post.] 

-  [Gr.  Ev.  i.  §  507;  Wh.  Ev.  i.  §§  104,  105 ;  Kellogg  v.  Kellogg,  6  Barb. 
116,  130  ;  Traction  Co.  v.  Board  of  Works,  57  N.  J.  L.  313,  316.  These 
are  called  "office  copies"  (Id.).  But  certified  copies  authorized  by- 
statute  (or  "office  copies  '  in  the  broader  sense  of  the  term  ;  see  pre- 
ceding Article)  are  now  commonly  used  in  their  place,  being  admis- 
sible in  all  domestic  courts.] 

3  8  &  9  Vict.  c.  113,  preamble.  Many  such  statutes  are  specified  in 
T.  E.  s.  1440  and  following  sections.  See,  too,  R.  N.  P.  114-5.  [See, 
e.  g.,  U.  S.  Rev.  St.  ss.  882-900 ;  N.  Y.  Code  Civ.  Pro.  §§  921-924,  928- 
941,  943-947,  957-962  ;  Northumberland  Co.  v.  Zimmerman,  75  Pa.  26; 


200  A  DIGEST  OF  [Part  II. 

Whenever,  by  virtue  of  any,  such  provision,  any  siich 
certificate  or  certified  copy  as  aforesaid  is  receivable  in 
proof  of  any  particular  in  any  court  of  justice,  it  is  admis- 
sible as  evidence  if  it  purports  to  be  authenticated  in  the 
manner  prescribed  by  law  without  proof  of  any  stamp, 
seal,  or  signature  required  for  its  authentication  or  of  the 
official  character  of  the  person  who  appears  to  have  signed 
it.' 

"Whenever  any  book  or  other  document  is  of  such  a  pub- 
lic nature  as  to  be  admissible  in  evidence  on  its  mere  pro- 
duction from  the  proper  custody,  and  no  statute  exists 


El-wood  v.  Flannigan,  104  U.  S.  562  ;  Get/tin  v.  Walker,  59  Cal.  502 ; 
Preston  v.  Evans,  56  Md.  476.  In  some  States  such  copies  may  be  used 
by  virtue  of  immemorial  usage  {Chamberlin  v.  Ball,  15  Gray,  352). 
But  it  is  sometimes  provided,  as  in  New  York,  that  the  common-law 
methods  of  proof  may  be  used,  as  well  as  the  special  statutory  methods 
(Code  Civ.  Pro.  §962). 

Certificates  or  certified  copies  are  not  admissible  in  evidence  unless 
authorized  by  law,  and  then  only  as  to  matters  which  the  officer  is 
required  or  authorized  to  certify.  Water  Comm'rs  v.  Lansing,  45 
N.  Y.  19;  Parr  v.  Greenbush,  72  N.  Y.  463;  Way  land  v.  Ware,  109 
Mass.  248  ;  Jay  v.  East  Livernwre,  56  Me.  107  ;  Francis  v.  Newark, 
58  X.  J.  L.  522  ;  People  v.  Lee,  112  111.  113.] 

1  Ibid.,  s.  1.  I  believe  the  above  to  be  the  effect  of  the  provision, 
but  the  language  is  greatly  condensed.  Some  words  at  the  end  of  the 
section  are  regarded  as  unmeaning  by  several  text-writers.  See,  e.g., 
R.  X.  P.  116  ;  2  Ph.  Ev.  241  ;  T.  E.  s.  7,  note  1.  Mr.  Taylor  says  that 
the  concluding  words  of  the  section  were  introduced  into  the  act  while 
passing  through  the  House  of  Commons.  He  adds,  they  appear  to 
have  been  copied  from  1  &  2  Vict.  c.  94,  s.  13  (see  Art.  76)  "by  some 
honorable  member  who  did  not  know  distinctly  what  he  was  about." 
They  certainly  add  nothing  to  the  sense.  [*S.  P.  Thurman  v.  Cameron, 
24  Wend.  87  ;  Trustees  of  Canandarqua  Academy  v.  McKecJinie,  19 
Hun,  62,  90  X.  Y.  618  ;  Keichline  v.  Keichline,  54  Pa.  75  ;  Kingman  v. 
Coivlcs,  103  Mass.  283  ;  Harris  v.  Doe,  4  Blackf .  369  ;  Galvin  v.  Palmer, 
113  Cal.  46  ;  Bixby  v.  Carskaddon,  55  la.  533.  Such  copies  or  certifi- 
cates are,  however,  generally  deemed  only  presumptive  ox  prima  facie 
evidence,  open  to  rebuttal.  Id.;  see  N.  Y.  Code  Civ.  Pro.  §§921-924, 
928,  936.] 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  201 

which  renders  its  contents  provable  by  means  of  a  copy, 
any  copy  thereof  or  extract  therefrom  is  admissible  in 
proof  of  its  contents,1  provided  it  purport  to  be  signed 
and  certified  as  a  true  copy  or  extract  by  the  officer  to 
whose  custody  the  original  is  intrusted.2  3 

Article   80.* 

[documents  and  records  of  the  several  states  admissible 
throughout  the  united  states.]4 

[The  records  and  judicial  proceedings  of  the  courts  of 
any  State  or  Territory  or  of  any  country  subject  to  the 
jurisdiction  of  the  United  States,  shall  be  proved  or  ad- 


*[For  the  original  Article,  see  Note  LI.  Appendix.] 
1  The  words  "provided  it  be  proved  to  be  an  examined  copy  or  ex- 
tract or,"  occur  in  the  act,  but  are  here  omitted  because  their  effect  is 
given  in  Article  75. 

2 14  &  15  Vict.  c.  99,  s.  14.  [Some  American  decisions  have  main- 
tained this  rule  as  a  common-law  principle  (Gr.  Ev.  i.  §  485  ;  U..  S.  v. 
Percheman,  7  Pet.  51;  People  v.  Lee,  112  111.  113);  but  the  weight  of 
authority  is  that  certified  copies  of  public  documents  are  not  admis- 
sible unless  authorized  by  statute  (  Traction  Co.  v.  Board  of  Works, 
57  N.  J.  L.  313  ;  Selden  v.  Canal  Co.,  29  N.  Y.  634  ;  see,  also,  cases 
cited  in  note  1,  p.  200,  ante).  But  the  use  of  certified  copies  is  now  so 
generally  authorized  by  statute  that  this  question  as  to  the  common- 
law  doctrine  has  become  of  little  practical  importance.] 

3  [At  this  point  Mr.  Stephen  adds  the  English  statutory  rule  that 
"every  such  officer  must  furnish  such  certified  copy  or  extract  to  any 
person  applying  at  a  reasonable  time  for  the  same,  upon  payment  of 
a  reasonable  sum  for  the  same,  not  exceeding  fourpence  for  every 
folio  of  ninety  words.  14  &  15  Vict.  c.  99,  s.  14."  So  in  this  country  it 
is  a  general  rule  that  when  the  use  of  certified  copies  is  authorized  by 
statute,  the  proper  officer  must  give  such  a  copy  on  payment  of  his 
legal  fees  for  the  same.  U.  S.  Rev.  St.  ss.  213,  460,  461,  828,  892,  4194, 
4195  ;  N.  Y.  Code  Civ.  Pro.  §  961.] 

4  [The  acts  of  Congress  herein  stated  were  enacted  under  the  author- 
ity of  the  constitutional  provision  declaring  that  "  full  faith  and  credit 


2o2  A  DIGEST  OF  [Part  II. 

mitted  in  any  other  court  within  the  United  States,  by  the 
attestation  of  the  clerk,  and  the  seal  of  the  court  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  that  the  said  attesta- 
tion is  in  due  form.1  And  the  said  records  and  judicial 
proceedings,  so  authenticated,  shall  have  such  faith  and 
credit  given  to  them  in  every  court  within  the  United 


shall  be  given  in  each  State  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  State.  And  the  Congress  may,  by 
general  laws,  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof."  U.  S.  Constitu- 
tion, Art.  iv.  §  i.] 

1  [As  to  the  construction  of  this  provision,  see  Gr.  Ev.  i.  §§  504-506; 
Wh.  Ev.  i.  §§  96-103;  First  Nat.  Bk.  v.  Crosby,  179  Pa.  63.  The 
authorities  are  fully  collected  in  Bump's  Fed.  Pro.  pp.  566-616.  The 
attestation  must  be  made  by  the  clerk  of  the  court ;  that  of  a  deputy 
clerk  is  not  sufficient  {Morris  v.  Patchin,  24  N.  Y.  394);  if  the  court 
has  ceased  to  exist  and  its  records  have  been  transferred  to  another 
court,  the  clerk  of  the  latter  should  attest  {Folsom  v.  Blood,  58  N.  H. 
11).  If  the  court  has  no  seal,  this  fact  should  be  stated.  The  certificate 
must  be  added  by  the  judge  of  the  court,  if  there  be  only  one,  but, 
when  there  are  more  than  one,  by  the  chief  or  presiding  judge  of  the 
court,  if  any  judge  bears  such  title  (  Van  Storch  v.  Griffin,  71  Pa.  240; 
People  v.  Smith,  121  N.  Y.  578  ;  Andrews  v.  Flack,  88  Ala.  294  ;  Jhrr- 
low  v.  Steel,  65  Mo.  611) ;  this  certificate  must  be  that  the  attestation 
is  in  due  form  {i.e.,  in  the  form  required  in  the  State  whence  the 
record  comes);  if  the  judge  certifies,  not  this  fact  but  some  other,  the 
certificate  is  insufficient  {Craigv.  Brown, 1  Pet.  C.  C.  352;  Morris 
v.  Patchin,  supra  ;  see  Burnett  v.  Weld,  76  X.  Y.  103).  If  the  judge 
is  also  clerk  of  the  court,  he  must  attest  and  certify  in  each  capacity 
{Keith  Bros.  v.  Stiles,  92  Wis.  15).  This  statute  does  not  apply  to  the 
Federal  courts,  but  their  records,  when  certified  by  the  clerk  of  the 
court  under  its  seal,  are  admissible  in  State  courts  and  Federal  courts 
alike  {Tiirnbull  v.  Payson,  95  U.  S.  418).  Nor  does  it  apply,  as  is 
generally  held,  to  courts  of  inferior  jurisdiction,  as  courts  of  justices 
of  the  peace  {FarnswortJi  v.  Briggs,  6  N.  H.  561  ;  Ransom  v.  Wheeler, 
12  Abb.  Pr.  139;  Case  v.  Hucy,  26  Kan.  553;  Snyder  v.  Wise,  10  Pa. 
157).  The  mode  of  proving  their  dockets  and  judgments  is  that  pre- 
scribed by  the  laws  of  the  several  States,  or  by  common  law.  See 
N.  Y.  Code  Civ.  Pro.  §§  948-95 1  ;  Gr.  Ev.  i.  §  505  ;  Case  v.  Huey,  supra.] 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  203 

States  as  they  have  by  law  or  usage  in  the  courts  of  the 
State  from  which  they^ire  taken.1 

All  records  and  exemplifications  of  books,  which  may 
be  kept  in  any  public  office  of  any  State  or  Territory,  or 
of  any  countsy  subject  to  the  jurisdiction  of  the  United 
States,  not  appertaining  to  a  court,  shall  be  proved  or  ad- 
mitted in  any  court  or  office  in  any  other  State  or  Terri- 
tory, or  in  any  such  country,  by  the  attestation  of  the 
keeper  of  the  said  records  or  books,  and  the  seal  of  his 
office  annexed,  if  there  be  a  seal,  together  with  a  certifi- 
cate of  the  presiding  justice  of  the  court  of  the  county, 
parish,  or  district,  in  which  said  office  may  be  kept,  or  of 
the  governor,  or  secretary  of  state,  the  chancellor  or 
keeper  of  the  great  seal  of  the  State  or  Territory,  or 
country,  that  the  said  attestation  is  in  due  form,  and  by 
the  proper  officers.  If  the  said  certificate  is  given  by  the 
presiding  justice  of  a  court,  it  shall  be  further  authenti- 
cated by  the  clerk  or  prothonotary  of  the  said  court,  who 
shall  certify,  under  his  hand  and  the  seal  of  his  office, 
that  the  said  presiding  justice  is  duly  commissioned  and 
qualified ;  or,  if  given  by  such  governor,  secretary,  chan- 
cellor or  keeper  of  the  great  seal,  it  shall  be  under  the 
great  seal  of  the  State,  Territory,  or  country  aforesaid  in 
which  it  is  made.  And  the  said  records  and  exemplifica- 
tions, so  authenticated,  shall  have  such  faith  and  credit 
given  to  them  in  every  court  and  office  within  the  United 
vStates  as  they  have  by  law  or  usage  in  the  courts  or  of- 
fices of  the  State,  Territory,  or  country  as  aforesaid,  from 
which  they  are  taken.2 

But  these  provisions  do  not  preclude  the  several  States 


1  [U.  S.  Rev.  St.  s.  905  ;  as  to  the  effect  of  such  records,  see  ante, 
Art.  47,  note.] 

2  [U.  S.  Rev.  St.  s.  906  ;  Chase  v.  Caryl,  57  N.  J.  L.  545  ;  Bump's 
Fed.  Pro.  p.  618  ;  as  to  the  scope  of  this  section,  see  Snyder  v.  Wise, 
10  Pa.  157,  158.] 


204  A  DIGEST  OF  [Part  II. 

from  establishing  other  modes  of  proving  in  their  own 
courts  the  records  of  other  States.]  ' 

Article  8i.* 
[officially  printed  copies.] 

[The  Revised  Statutes  of  the  United  States,  printed  un- 
der the  direction  of  the  Secretary  of  State  at  the  govern- 
ment printing-office  and  embracing  the  statutes  of  the 
United  States  general  and  permanent  in  their  nature,  in 
force  on  December  i,  1873,  as  revised  and  consolidated, 
and  including  also  the  amendatory  acts  passed  by  Con- 
gress between  that  date  and  the  year  1878,  shall  be  legal 
evidence  of  the  laws  therein  contained,  in  all  the  courts 
of  the  United  States  and  of  the  several  States  and  Terri- 
tories, but  shall  not  preclude  reference  to,  nor  control,  in 
case  of  any  discrepancy,  the  effect  of  any  original  act  as 
passed  by  Congress  since  December  1,  1873.  And  copies 
of  the  acts  of  Congress,  printed  as  aforesaid  at  the  close 
of  each  session  of  Congress,  shall  be  legal  evidence  of  the 
laws  and  treaties  therein  contained,  in  said  courts.2 


*  [For  the  original  Article,  see  Note  LI.  Appendix.] 
1  [Kingman  v.  Cowles,  103  Mass.  283  ;  In  re  Ellis'  Estate,  55  Minn. 
401  ;  Gardefi  City  Co.  v.  Miller,  157  111.  225  ;  Otto  v.  Trump,  115  Pa. 
425  ;  Haives  v.  State,  88  Ala.  37  ;  Gr.  Ev.  i.  §§  489,  505.  Some  States 
have  adopted  special  statutes  of  this  kind  (Id.;  Mass.  Pub.  St.  c.  169, 
s.  67);  but  usually  the  modes  prescribed  by  the  acts  of  Congress  are 
followed.  The  common-law  methods,  as  by  exemplified  or  examined 
copy,  may  also  be  used.  Otto  v.  Trump,  supra  ;  Dean  v.  Chapin,  22 
Mich.  275.] 

•  [U.S.  Rev.  St.  (ed.  1878),  Appendix,  pp.  1 090-1 092 ;  so  as  to  the 
supplement  to  the  Revised  Statutes  (21  Stat.  L.  308;  see  Wright  v. 
U.  S.,  15  Ct.  of  CI.  80).  The  acts  of  Congress  were  formerly  published 
by  Little  and  Brown,  of  Boston,  and  it  is  provided  also  that  their 
edition  shall  be  evidence  of  the  laws  and  treaties  therein  contained 
(U.  S.   Rev.  St.  §  908).     If  there  is  any  variance  between  an  act  of 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  205 

It  is  common  for  State  statutes  to  provide  that  the 
statute  law  of  that  State,  and  of  other  States  and  Terri- 
tories, and  of  the  United  States,  may  be  read  in  evidence 
in  its  courts  from  a  printed  book,  paper,  or  other  publica- 
tion, duly  published  under  official  authority  and  direc- 
tion.] : 

Article  82.* 
[proof  of  the  statutes  of  any  state  or  territory.] 

[The  acts  of  the  legislature  of  any  State  or  Territory, 
or  of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  shall  be  authenticated  by  having-  the  seals  of  such 
State,  Territory,  or  country  affixed  thereto,  and  shall  then 


*  [For  the  original  Article,  see  Note  LI.  Appendix.] 
Congress,  as  found  in  the  printed  volume  of  statutes,  and  the  original, 
as  enrolled  and  deposited  with  the  Secretary  of  State,  the  latter  must 
prevail  {McLaughlin  v.  Menotti,  105  Cal.  572),  and  the  same  rule  holds 
good  as  to  State  statutes.     Bruce  v.  State,  48  Neb.  570.] 

1  [Harryman  v.  Roberts,  52  Md.  64  ;  Tenant  v.  Tenant,  no  Pa.  478 ; 
Bride  v.  Clark,  161  Mass.  130;  People  v.  McQuaid,  85  Mich.  123; 
Eagan  v.  Cojinelly,  107  111.  458 ;  Falls  v.  U.  S.  Savings,  etc.  Co.,  97 
Ala.  417  ;  Leach  v.  Linde,  70  Hun,  145,  142  N.  Y.  628  ;  Glenn  v.  Hunt, 
120  Mo.  330 ;  Rogero  v.  Zippel,  33  Fla.  625  ;  see  Mass.  Pub.  St.  c.  169, 
ss.  69,  71 ;  N.  Y.  Code  Civ.  Pro.  §§  932, 942,  extending  the  same  rule  to 
printed  copies  of  any  proclamation,  edict,  decree,  or  ordinance,  by  the 
executive  power  of  any  other  State  or  country.  If  the  official  publica- 
tion of  the  law  of  another  State  or  country  be  not  of  recent  date,  still  it 
will  be  presumed  to  contain  the  existing  law,  in  the  absence  of  evi- 
dence to  the  contrary  {In  re  Huss,  126  N.  Y.  537  ;  People  v.  Caldcr,  30 
Mich.  85). 

In  some  States  where  no  statutes  exist  authorizing  the  statute  law 
of  other  States  to  be  read  from  a  printed  volume,  this  has  yet  been 
allowed  by  the  courts  (Gr.  Ev.  i.  §§  480,  489).  The  common-law  mode 
of  proof  is  by  exemplification  under  the  great  seal,  or  by  examined 
copy,  and  this  may  still  be  used  (Id.).  The  evidence  of  experts  may 
also  be  received  (see  p.  145,  ante,  note  1).  As  to  the  cases  in  which 
statutes  are  judicially  noticed,  see  Art.  58  (1),  ante.] 


206  A  DIGEST  OF  [Part  II. 

be  admitted  in  evidence  in  every  other  court  within  the 
United  States.' 

But  this  provision  does  not  preclude  the  several  States 
from  establishing  other  modes  of  proving  in  their  own 
courts  the  written  law  of  other  States.]  2 

Article  83.* 
[proclamations,  acts  of  state,  legislative  journals,  etc] 

[The  contents  of  State  papers,  public  documents,  and 
legislative  journals,  printed  by  the  official  printer  under 
the  authority  of  Congress  or  a  State  legislature  respec- 
tively (or  of  the  proper  branch  thereof),3  may  be  proved 
by  the  production  of  such  a  printed  copy,  as  well  as  by 
the  production  of  the  originals.4  Executive  proclama- 
tions and  acts  of  state  may  be  proved  by  an  officially 
printed  copy.5 

Extracts  from  the  journals  of  the  Senate  of  the  United 
States,  or  of  the  House  of  Representatives    and  of  the 


*  [For  the  original  Article,  see  Note  LI.  Appendix.] 

1  [U.  S.  Rev.  St.  s.  905  ;  Bump's  Fed.  Pro.  p.  566 ;  Grant  v.  Coal  Co., 
80  Pa.  208 ;  U.  S.  v.  Amedy,  11  Wheat.  392 ;  cf.  McClerkin  v.  State, 
105  Ala.  107.] 

2  [Gr.  Ev.  i.  §  489 ;  Ansley  v.  Meikle,  81  Ind.  260 ;  as  to  the  other 
modes  of  proof  allowed,  see  Art.  81  and  notes;  also  Art.  49,  ante,  and 
note  1  on  p.  145  ;  this  last  Article  also  shows  the  mode  of  proving  the 
common  law  of  other  States.] 

3[  Whiton  v.  Albany,  etc.  Ins.  Co.,  109  Mass.  24.] 

4  [Gr.  Ev.  i.  §  479;  Watkins  v.  Hobnan,  16  Pet.  25;  Bryan  v.  Forsyth, 
19  How.  (U.  S.)  334  ;  Gregg  v.  Forsyth,  24  Id.  179 ;  Clemens  v.  Meyer, 
44  La.  Ann.  390;  Milfordv.  Greenbiish,  ~j  Me.  330;  Lincoln  v.  Han- 
gan,  45  Minn.  451  ;  Root  v.  King,  7  Cow.  613  ;  Post  v.  Supervisors,  105 
U.  S.  667;  cf.  Marks  v.  Orth,  121  Ind.  10.] 

6  [Gr.  Ev.  i.  §§  479,  492  ;  Lurton  v.  Gilliam,  2  111.  (1  Scam.)  577  ;  but 
proclamations  are,  in  general,  judicially  noticed  ;  see  ante,  Art.  58. 

There  is  a  statute  in  New  York  as  to  the  proof  of  executive  de- 
crees and  proclamations  of  other  States  and  countries  ;  see  ante, 
p.  205,  note  1.] 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  207 

executive  journal  of  the  Senate  when  the  injunction  of 
secrecy  is  removed,  certified  by  the  secretary  of  the  Sen- 
ate or  by  the  clerk  of  the  House  of  Representatives,  shall 
be  admitted  as  evidence  in  the  courts  of  the  United  States, 
and  shall  have  the  same  force  and  effect  as  the  originals 
would  have,  if  produced  and  authenticated  in  court.]  1 

Article  84.* 

[foreign  written  laws,  acts  of  state,  records,  etc.] 

[Foreign  written  laws,  acts  of  state,  and  judicial  records 
may  be  proved  by  an  exemplification  of  a  copy  under  the 
great  seal  of  the  state,  or  by  a  copy  proved  to  be  a  true 
copy  by  a  witness  who  has  examined  and  compared  it 
with  the  original,  or  by  a  certificate  of  an  officer  properly 
authorized  by  law  to  give  a  copy,  which  certificate  must 
itself  be  duly  authenticated.2  Moreover,  in  some  juris- 
dictions, a  foreign  written  law  may  be  proved  by  the 
statute  book  containing  it,  officially  published  by  the  gov- 
ernment which  made  the  law,  either  with  or  without  the 
testimony  of  experts.] 3 


*  [For  the  original  Article,  see  Note  LI.  Appendix.] 

1  [U.  S.  Rev.  St.  s.  895.  For  a  like  rule  in  State  courts,  see  Post  v. 
Supervisors,  105  U.  S.  667  ;  cf.  Soicthivark  Bk.  v.  Comm.,  26  Pa.  446; 
see  ante,  p.  165,  note  2.] 

2  [These  are  the  recognized  common-law  methods.  Gr.  Ev.  i.  §§  488, 
514;  Church  v.  Hubbart,  2  Cr.  187  ;  Lincoln  v.  Battelle,  6  Wend.  475 ; 

Watson  v.  Walker,  23  N.  H.  471  ;  Gunn  v.  Peakes,  36  Minn.  177; 
Jacobi  v.  Order  of  Germania,  73  Hun,  602 ;  cf.  Tess7)iann  v.  United 
Friends,  103  Mich.  185.] 

3  [This  is  provided  in  some  States  by  statute  (Mass.  Pub.  St.  c.  169, 
s.  73  ;  Maine  Rev.  St.  c.  82,  s.  109;  N.  Y.  Code  Civ.  Pro.  §942  ;  Laws 
of  N.  J.  of  1893,  c.  38 ;  see  In  re  Huss,  126  N.  Y.  537  ;  p.  145,  note  1, 
ante),  but  is  declared  in  Ennis  v.  Smith,  14  How.  (U.  S.)  401,  as  a 
common-law  doctrine  ;  but  see  Hynes  v.  McDermott,  82  N.  Y.  41,  56. 
Sometimes  expert  testimony  is  received  without  a  printed  copy  of  the 


2o8  A  DIGEST  OF  [Part  II. 


law;  see  Art.  49,  ante,  and  note  1  on  p.  145,  which  also  states  the 
mode  of  proving  a  foreign  unwritten  law.  As  to  proof  of  the  statutes 
of  sister  States,  see  Articles  81  and  82,  ante,  and  notes. 

Special  State  statutes  are  also  in  force,  establishing  modes  of  proving 
foreign  records,  etc.  (Dunstan  v.  Higgins,  138  N.  Y.  70;  Wickershaui 
v.  Johnstoji,  104  Cal.  407  ;  Fisher  v.  Fielding,  67  Ct.  94  ;  N.  Y  Code 
Civ.  Pro.  §§952-956).  But  these  are  not  generally  made  exclusive  of 
common-law  methods.     Id.  §962.] 


Chap.  XL]  THE  LAW  OF  EVIDENCE.  209 


CHAPTER  XI. 
PRESUMPTIONS  AS  TO  DOCUMENTS. 

Article  85. 
presumption  as  to  date  of  a  document. 

When  any  document  bearing  a  date  has  been  proved,  it  is 
presumed  to  have  been  made  on  the  day  on  which  it 
bears  date,1  and  if  more  documents  than  one  bear  date  on 
the  same  day,  they  are  presumed  to  have  been  executed 
in  the  order  necessary  to  effect  the  object  for  which  they 
,were  executed,2  but  independent  proof  of  the  correctness 
of  the  date  will  be  required  if  the  circumstances  are  such 
that  collusion  as  to  the  date  might  be  practised,  and 
would,  if  practised,  injure  any  person,  or  defeat  the 
objects  of  any  law.3 


1  [Gr.  Ev.  i.  §  40,  n.;  Wh.  Ev.  ii.  §  977  ;  Livingston  v.Arnoux,  56 
N.  Y.  507,  519  ;  Smith  v.  Porter,  10  Gray,  66  ;  Pringle  v.  Pringle,  59 
Pa.  281.  So  a  deed,  found  in  the  hands  of  the  grantee,  is  presumed 
to  have  been  delivered  on  the  day  of  its  date  {People  v.  Snyder,  41 
N.  Y.  397;  Scobey  v.Walker,  114  Ind.  254);  but  this  is  not  true  of 
forged  instruments  {Remington  Co.  v.  O' Dougherty,  81  N.  Y.  474). 
The  presumption  as  to  all  instruments  may  be  rebutted  by  proof  of 
the  real  date  of  execution.  Parke  v.  Neeley,  90  Pa.  52  ;  Gennania 
Bank  v.  Distler,  67  Barb.  333,  64  N.  Y.  6i2  ;   Knisely  v.  Sampson,  100 

HI.  573-1 

8  {Dudley  v.  Cadwell,  19  Ct.218;  Jones  v.  Phelps,  2  Barb.  Ch.  440;  see 
Gilman  v.  Moody,  43  N.  H.  239.  So  it  is  a  general  principle  that  two 
or  more  instruments  of  the  same  date,  between  the  same  parties,  and 
relating  to  the  same  subject-matter,  form  parts  of  the  same  agreement 
or  transaction.  Mott  v.  Richtmyer,  57  N.  Y.  49, 65 ;  Hagerty  v.  White, 
69  Wis.  317.] 

3i  Ph.  Ev.  482-3;  T.  E.  s.  137;  Best,  s.  403;  [see  Philpot  v. 
Gruninger,  14  Wall.  570.] 


2io  A  DIGEST  OF  [Part  II. 


Illustrations. 

(a)  An  instrument  admitting  a  debt,  and  dated  before  the  act  of 
bankruptcy,  is  produced  by  a  bankrupt's  assignees,  to  prove  the 
petitioning  creditor's  debt.  Further  evidence  of  the  date  of  the 
transaction  is  required  in  order  to  guard  against  collusion  between 
the  assignees  and  the  bankrupt,  to  the  prejudice  of  creditors  whose 
claims  date  from  the  interval  between  the  act  of  bankruptcy  and  the 
adjudication.1 

(6)  In  a  petition  for  damages  on  the  ground  of  adultery  letters  are 
produced  between  the  husband  and  wife,  dated  before  the  alleged 
adultery,  and  showing  that  they  were  then  on  affectionate  terms. 
Further  evidence  of  the  date  is  required  to  prevent  collusion  to  the 
prejudice  of  the  person  petitioned  against.2 


Article  86. 
presumption  as  to  stamp  of  a  document.3 

When  any  document  is  not  produced  after  due  notice 
to  produce,  and  after  being  called  for,  it  is  presumed  to 
have  been  duly  stamped,4  unless  it  be  shown  to  have 
remained  unstamped  for  some  time  after  its  execution.6 


1  Anderson  v.  Weston,  6  Bing.  X.  C.  302;  Sinclair  v.  Baggallay,  4 
M.  &  W.318. 

2  Houlston  v.  Smith,  2  C.  &  P.  24.  [Gr.  Ev.  i.  §  102,  ii.  §  57  ; 
Fratini  v.  Caslini,  66  Yt.  273  ;  see  Art.  11,  Illustration  (fc),  ante.] 

"[The  general  abolition  in  this  country,  until  recently,  of  laws  requir- 
ing stamps  upon  written  instruments  has  caused  a  dearth  of  modern 
decisions  upon  this  subject.  Analogous  decisions  of  interest  under  the 
former  law  requiring  revenue  stamps  are  Van  Rensellaerv.  Vickery, 
3  Lans.  57  ;  Long  v.  Spencer,  78  Pa.  303  ;  for  a  case  in  which  stamps 
were  used  as  seals,  see  Van  Bokkelen  v.  Taylor,  62  X.  Y.  105.] 

4  Closmadeuc  v.  Carrel,  18  C.  I>.  44.  In  this  case  the  growth  of  the 
rule  is  traced,  and  other  cases  are  referred  to,  in  the  judgment  of 
Cress  well,  J. 

■'  Marine  Investment  Co.  v.  Haviside,  L.  R.  5  E.  &  I.  App.  624. 


Chap.  XL]  THE  LAW  OF  EVIDENCE.  211 

Article  87. 

presumption  as  to  sealing  and  delivery  of  deeds. 

When  any  document  purporting  to  be  and  stamped  as 
a  deed,  appears  or  is  proved  to  be  or  to  have  been  signed 
and  duly  attested,  it  is  presumed  to  have  been  sealed 
and  delivered,  although  no  impression  of  a  seal  appears 
thereon.1  

1  Hall  v.  Bainbridge,  12  Q.  B.  699-710 ;  Re  Sandilands,  L.  R.  6  C.  P. 
411.  [These  cases,  so  far  as  they  support  this  Article,  are  based  upon 
the  English  rule,  that  neither  an  impression  upon  wax  or  other  tena- 
cious substance,  nor  a  scroll  or  other  mark,  is  necessary  to  constitute 
a  seal ;  (thus  in  Re  Sandilands  it  was  declared  that  sealing  might  be 
done  with  the  end  of  a  ruler  or  anything  else  and  that  there  need  be 
no  visible  impression).  But  in  this  country,  except  in  States  which 
have  abolished  the  use  of  seals,  the  general  rule  is  that  no  deed  or 
other  specialty  is  complete  without  a  seal  in  one  or  the  other  of  these 
forms,  though  in  many  States  a  mere  scroll  or  similar  device,  and  in 
some  a  mere  flourish  or  dash,  if  intended  as  a  seal,  is  deemed  sufficient 
{Hacker  s  Appeal,  121  Pa.  192  ;  Lorah  v.  Nissley,  156  Pa.  329  ;  Osbom 
v.  Kistler,  35  O.  St.  99 ;  Deininger  v.  McConnell,  41  111.  227  ;  cf.  Jack- 
sonville, etc.  R.  Co.  v.  Hooper,  160  U.  S.  514).  If,  therefore,  an  instru- 
ment has  no  seal  upon  it,  in  the  form  recognized  as  valid  in  the  par- 
ticular State,  the  fact  that  it  purports  to  be  sealed,  and  is  attested  as 
such,  is  not  sufficient  to  make  it  a  deed  {Chilton  v.  People,  66  111.  501 ; 
State  v.  Humbird,  54  Md.  327  ;  State  v.  Thompson,  49  Mo.  188  ;  Taylor 
v.  Glaser,  2  S.  &  R.  502 ;  Boothbay  v.  Giles,  68  Me.  160 ;  Cadell  v. 
Allen,  99  N.  C.  542  ;  cf.  Rensens  v.  Staples,  52  F.  R.  91).  But  where  a 
deed  is  proved  by  the  public  records,  and  no  seal  has  been  recorded, 
the  fact  that  the  instrument  purports  to  have  been  sealed  and  is  so 
attested  will  raise  the  presumption  of  a  seal  upon  the  original  {Flow- 
ery Co.  v.  Bonanza  Co.,  16  Nev.  302  ;  Starkweather  v.  Martin,  28 
Mich.  471 ;  McCoy  v.  Cassidy,  96  Mo.  429;  Le  Franc  v.  Richmond,  5 
Sawy.  601 ;  cf.  Todd  v.  Union  Dime  Inst.,  118  N.  Y.  337 ;  Rensens  v. 
Lawson,  91  Va.  226 ;  Heath  v.  Cotton  Mills,  115  N.  C.  202  ;  Beardsley 
v.  Day,  52  Minn.  451 ;  contra,  Switzer  v.  Knapps,  10  la.  72  ;  Williams 
v.  Bass,  22  Vt.  352).  If  a  seal  is  omitted  by  mistake,  equity  will  cause 
the  omission  to  be  supplied  or  will  assume  that  the  instrument  is  sealed 
{Harding  M.Jewell,  73  Me.  426  ;  Probate  Ct.  v.  May,  52  Vt.  182  ;  Bar- 
nard v.  Gantz,  140  N.  Y.  249 ;  Henklonan  v.  Peterson,  154  111.  419). 

If  an  instrument,  when  given  in  evidence,  bears  a  seal,  this  is  pre- 


212  A  DIGEST  OF  [Part  II. 

Article  88. 
presumption  as  to  documents  thirty  years  old. 

Where  any  document  purporting  or  proved  to  be  thirty 
years  old  is  produced  from  any  custody  which  the  judge 
in  the  particular  case  considers  proper,  it  is  presumed 
that  the  signature  and  every  other  part  of  such  document 
which  purports  to  be  in  the  handwriting  of  any  particular 


sumed  to  be  the  seal  of  the  party  signing  {Mill  Dam  Fonndery  v. 
Hovey,  21  Pick.  417,  428;  Trustees  of  Canandarqua  Academy  v.  Mc- 
Kechnie,  go  X.  Y.  618);  and  upon  proof  of  the  signature,  it  maybe 
presumed  that  the  instrument  was  regularly  sealed  and  delivered, 
especially  if  there  be  a  recital  stating  the  fact  of  sealing  ;  such  recital 
is,  however,  by  the  weight  of  authority,  held  unnecessary,  though  it 
may  be  material  to  show  that  a  particular  device  was  intended  as  a 
seal  {Merritt  v.  Cornell,  1  E.  D.  Sm.  335  ;  Miller  v.  Binder,  28  Pa. 
489 ;  Bradford  v.  Randall,  5  Pick.  496 ;  Trasher  v.  Everhart,  3  G.  & 
J.  234  ;  Force  v.  Craig,  7  N.  J.  L.  272 ;  Anthony  v.  Harriso7i,  14  Hun, 
200,  74  N.  Y.  613 ;  cf.  Corlies  v.  Van  Note,  16  N.  J.  L.,  324 ;  but  see 
Cleggv.  Lemessurier,\^  Gratt.  108).  But  the  presumption  is  rebuttable 
(Koehlerv.  Black  River  Co.,  2  Black,  715).  Still  the  fact  that  an  in- 
strument bears  a  seal  and  also  purports  to  be  sealed  is  evidence  for 
the  jury  that  it  was  sealed  when  signed,  though  the  obligor  denies  this 
(Brolley  v.  Lap  ham,  13  Gray,  294  ;  State  v.  Peek,  53  Me.  284, 286);  and 
the  obligor  may  even  be  estopped  to  deny  the  seal,  if  the  obligee  has 
acted  in  good  faith  upon  the  instrument  as  being  duly  sealed  (Metro- 
politan Ins.  Co.  v.  Bender,  124  X.  Y.  47 ;  but  see  Burnet  v.  Abbott,  53 
Vt.  120). 

In  a  number  of  the  States,  by  statute,  the  use  of  seals  by  private 
persons  is  now  unnecessary,  as  e.g.,  Ohio,  Indiana,  Iowa,  Kansas,  Ne- 
braska, Tennessee,  etc. 

When  a  deed  with  the  regular  evidence  of  its  execution  upon  its  face 
is  found  in  the  hands  of  the  grantee,  it  is  presumed  to  have  been  duly 
delivered  (Butrick  v.  Tilton,  141  Mass.  93;  Strough  v.  Wilder,  119 
N.  Y.  530 ;  Harshbarger  v.  Carroll,  163  111.  636);  so  if  it  is  upon  record 
duly  acknowledged  and  attested  (Munoz  v.  Wilson,  m  X.  Y.  295; 
Johnson  v.  Seidel,  150  Pa.  397;  Stevens  v.  Castel,  63  Mich,  in,  collect- 
ing also  the  cases  which  hold  differently).  But  these  presumptions 
are  also  rebuttable.  Id.;  Black  v.  Sharkey,  104  Cal.  279  ;  Townsend 
v.  Rackham,  143  X.  Y.  516;  see  Washb.R.  P.  iii.  312  (5th  ed).] 


Chap.  XL]  THE  LAW  OF  EVIDENCE.  213 

person  is  in  that  person's  handwriting,  and,  in  the  case  of 
a  document  executed  or  attested,  that  it  was  duly  executed 
and  attested,  by  the  persons  by  whom  it  purports  to  be 
executed  and  attested  ; '  and  the  attestation  or  execution 
need  not  be  proved,  even  if  the  attesting  witness  is  alive 
and  in  court.2 

Documents  are  said  to  be  in  proper  custody  if  they  are 
in  the  place  in  which,  and  under  the  care  of  the  person 
with  whom,  they  would  naturally  be  ;  but  no  custody  is 
improper  if  it  is  proved  to  have  had  a  legitimate  origin, 


1  2  Ph.  Ev.  245-8 ;  Starkie,  521-6 ;  T.  E.  s.  74  and  ss.  593-601 ;  Best, 
s.  220.  [Wh.  Ev.  i.  §§  194-199,  703,  732  ;  Gr.  Ev.  i.  §§  21,  142-144,  570; 
Applegate  v.  Lexington,  etc.  Mining  Co.,  117  U.  S.  255  ;  Dodge  v.  Gal- 
latin,  130  N.  Y.  1 18  ;  Bell  v.  Brewster,  44  O.  St.  690  ;  Fowler  v.  Scott, 
64  Wis.  509;  Geer  v.  Lumber  Co.,  134  Mo.  85  ;  Scharff 'v.  Keener,  64 
Pa.  376;  Goodwin  v.  Jack,  62  Me.  414.  The  age  of  a  will  under  this 
rule  is  reckoned  from  the  testator's  death  (Staring  v.  Bowen,  6  Barb. 
109).  If  material  and  suspicious  alterations  appear  upon  the  instru- 
ment, they  should  be  explained  by  the  party  offering  it  in  evidence 
(Rodriguez  v.  Hay  ties,  76  Tex.  225  ;  Wisdom  v.  Reeves,  no  Ala.  418; 
Herrick  v.  Malin,  22  Wend.  388).  It  has  been  a  mooted  question, 
whether,  if  the  document  were  a  conveyance  of  land,  it  would  be 
necessary  to  prove,  besides  its  age  and  its  production  from  the  proper 
custody,  that  there  had  been  possession  of  the  land  under  it  and  in 
accordance  with  its  terms.  The  better  opinion  is  that  evidence  of 
possession  is  not  strictly  necessary,  but  other  corroborative  evidence 
may  be  received  to  establish  the  genuineness  of  the  instrument  (Ha- 
vens v.  Sea  Shore  Co.,  47  N.  J.  Eq.  365  ;  Nowlin  v.  Burwell,  75  Va. 
551;  Applegate  v.  Lexington,  etc.  Mining  Co.,  supra;  Long  v.  Mc- 
Dow,  87  Mo.  197 ;  Whitman  v.  Heneberry,  73  111.  109;  Walker  v. 
Walker,  67  Pa.  185;  Boston  v.  Richardson,  105  Mass.  351;  Clark  v. 
Owens,  iS  N.  Y.  434  ;  Enders  v.  Sternbergh,  2  Abb.  Dec.  31 ;  see  Gr. 
Ev.  i.  §  144,  n.).  But  evidence  of  possession  is  the  best  means  of  cor- 
roboration, and  should  be  produced  when  practicable  (Willson  v. 
Belts,  4  Den.  201).  Unless  there  be  some  satisfactory  corroboration, 
the  execution  of  the  document  must  be  proved  ;  its  age  alone  is  not 
enough  to  authenticate  it.  Jackson  v.  Luquere,  5  Cow.  221 ;  Martin  v. 
Rector,  24  Hun,  27.] 

2  [Jackson  v.  Christman,  4  Wend.  277;  Mc Reynolds  v.  Longenberger, 
'57  Pa.  13.] 


214  A  DIGEST  OF  [Part  II. 

or  if  the  circumstances  of  the  particular  case  are  such  as 
to  render  such  an  origin  probable.1 

Article  89. 

PRESUMPTION   AS  TO   ALTERATIONS. 

No  person  producing  any  document  which  upon  its 
face  appears  to  have  been  altered  in  a  material  part  can 
claim  under  it  the  enforcement  of  any  right  created  by  it, 
unless  the  alteration  was  made  before  the  completion  of 
the  document  or  with  the  consent  of  the  party  to  be 
charged  under  it  or  his  representative  in  interest.3 


1  [  Whitman  v.  Shaw,  166  Mass.  451, 460;  Nowlin  v.  Burwell,  75  Va. 
551;  Beard  v.  Ryan,  78  Ala.  37  ;  and  see  other  cases  in  notes  1  and  2, 
supra,  on  p.  213.] 

'-  [Gr.  Ev.  i.  §  565  ;  Angle  v.  Life  Ins.  Co.,  92  U.  S.  330  ;  Drum  v. 
Drum,  133  Mass.  566  ;  Hunt  v.  Gray,  35  N.  J.  L.  227  ;  Russell  v.  Reed, 
36  Minn.  376.  A  material  alteration  made  by  a  party  intentionally 
after  execution  avoids  the  instrument,  though  it  be  innocently  made 
{Booth  v.  Powers,  56  N.  Y.  22  ;  Eckert  v.  Pickel,  59  la.  545  ;  Craig- 
head v.  McLoney,  99  Pa.  211) ;  but  then,  in  the  case  of  a  contract,  a 
recovery  may  be  had  on  the  original  consideration  (Id.;  Miller  v. 
Stark,  148  Pa.  164),  though  the  rule  is  otherwise,  if  the  alteration  be 
fraudulent  {Meyer  v.  Huneke,  55  N.  Y.  412;  Warder  v.  Willy ard,  46 
Minn.  531).  Some  authorities,  however,  hold  that  a  material  alter- 
ation, if  made  innocently  or  to  correct  a  mistake,  does  not  vitiate  the 
instrument  {Poole  v.  Hambrick,  70  Miss.  157  ;  Croswell  v.  Labree,  81 
Me.  44).  A  negotiable  instrument,  materially  altered  by  a  party,  is 
void  even  in  the  hands  of  an  innocent  purchaser  for  value  (Benedict 
v.  Cowden,  49  X.  V.  396;  Charlton  v.  Reed,  61  la.  166;  Gettysburg 
Nat.  Bk.  v.  Chisolm,  169  Pa.  564  ;  Newman  v.  King,  54  O.  St.  273  ; 
Angle  v.  Life  Ins.  Co.,  supra).  Alterations  in  a  deed  of  land,  how- 
ever,  will  not  divest  the  title  conveyed  by  it,  though  they  will,  if 
material,  avoid  the  covenants  (Gr.  Ev.  i.  §  265  ;  Herrick  v.  Malin,  22 
Wend.  388  ;  Woods  v.  Hilderbrand,  46  Mo.  284  ;  Wallace  v.  Harm- 
stad,  15  Pa.  462  ;  cf.  Potter  v.  Adams,  125  Mo.  1 18). 

Alterations  before  execution  should  be  noted  in  the  attestation 
clause  (Gr.  Ev.  i.  §  564).  Alterations  by  consent  of  parties  do  not 
avoid  the  instrument  {Benny  v.  Corwithe,  18  Johns.  499  ;    Taddiken  v. 


Chap.  XL]  THE  LAW  OF  EVIDENCE.  215 

This  rule  extends  to  cases  in  which  the  alteration  was 
made  by  a  stranger,  whilst  the  document  was  in  the 
custody  of  the  person  producing  it,  but  without  his 
knowledge  or  leave.1 

Alterations  and  interlineations  appearing  on  the  face 
)f  a  deed  are,  in  the  absence  of  all  evidence  relating  to 
them,  presumed  to  have  been  made  before  the  deed  was 
completed.2 

Cantrell,  69  N.  Y.  597),  though  they  may  have  that  effect  as  to  sureties, 
if  made  without  their  consent.  Paine  v.  Jones,  76  N.  Y.  274  ;  Eckert 
v.  Louis,  84  Ind,  99  ;   Thompson  v.  Massif,  41  O.  St.  307.] 

1  Pigot's  Case,  1 1  Rep.  47  ;  Davidson  v.  Cooper,  1 1  M.  &  W.  778  ; 
13  M.  &  W.  343  ;  Aldous  v.  Cornwell,  L.  R.  3  Q.  B.  573.  This  qualities 
one  of  the  resolutions  in  Pigot's  Case.  The  judgment  reviews  a  great 
number  of  authorities  on  the  subject.  [It  is  the  general  rule  in  this 
country,  however,  that  unauthorized  alterations  by  a  stranger,  even 
though  material,  do  not  affect  the  validity  of  the  document  {Drum  v. 
Drum,  133  Mass.  566;  Hunt  v.  Gray,  35  N.  J.  L.  227;  Bigelow  v. 
Stilphens,  35  Vt.  521  ;  Waring  v.  Smyth,  2  Barb.  Ch.  119;  Mix  v. 
Royal  Ins.  Co.,  169  Pa.  639  ;  Sewing  Machine  Co.  v.  Dakin,  86  Mich. 
581  ;  Ames  v.  Brown,  22  Minn.  257  ;  Orlando  v.  Gooding,  34  Fla.  244  ; 
cf.  Gleason  v.  Hamilton,  138  N.  Y.  353),  and  the  fact  that  the  docu- 
ment is  in  the  party's  custody  at  the  time  seems  to  make  no  difference 
(Id.;  see  Nickerson  v.  Swett,  135  Mass.  514  ;  Kingan  v.  Silvers  Co., 
13  Ind.  App.  80).  The  stranger's  act  is  called  a  "spoliation,"  rather 
than  an  alteration.  Gr.  Ev.  i.  §  566  ;  John  v.  Hatfield,  84  Ind.  75  ; 
State  v.  McGonigle,  10 1  Mo.  353.] 

2  Doe  v.  Catomore,  16  Q.  B.  745.  [The  American  rule  differs  from 
the  English  in  many  States,  though  there  is  much  diversity  of  doctrine 
in  the  different  States.  It  is  generally  agreed,  however,  that  if  a 
material  alteration  appear  upon  the  face  of  a  document,  and  be 
suspicious  in  its  character  and  beneficial  to  the  party  claiming  the 
enforcement  of  a  right  under  the  document,  the  burden  of  proof  is 
upon  such  party  to  show  that  the  alteration  was  made  before  or  at 
the  time  of  execution,  or  is  for  other  reasons  proper  or  excusable  ; 
and  if  evidence  be  adduced  to  explain  any  material  alteration,  it  is 
submitted  to  the  jury,  who  are  to  determine  as  a  question  of  fact, 
when,  by  whom,  and  for  what  reason  the  alteration  was  made  {Nat. 
Ulster  Co.  Bk.  v.  Madden,  1 14  N.  Y.  280  (note);  Smith  v.  McGowan,  3 
Barb.  404  (deed)  ;  Smith  v.  U.  S.,  2  Wall.  219,  232  (bond);  Citizens' 
Nat,  Bk.  v.  Williams,  174  Pa.  66  (note) ;  Robinson  v.  Myers,  67  Pa.  9 


216  A  DIGEST  OF  [Part  II. 

Alterations  and  interlineations  appearing  on  the  face 
of  a  will  are,  in  the  absence  of  all   evidence  relating  to 


(deed)  ;  Wilson  v.  Hotchkiss'  Estate,  81  Mich.  172  (note)  ;  Comstock 
v.  Smith,  26  Mich.  306  (covenant  in  deed)  ;  Ely  v.  Ely,  6  Gray,  439 
(mortgage);  Drum  v.  Drum,  133  Mass.  566  (note);  Dodge  v.  Haskell, 
69  Me.  429  (note);  Hodnett  v.  Pace,  84  Va.  873  (note);  Hill  v.  Nelms, 
86  Ala.  442  (mortgage);  Stillwell  v.  Patton,  108  Mo.  352  (note);  Sisson 
v.  Pearson,  44  111.  App.  81  (deed)).  But  if  the  alteration  be  not  sus- 
picious, such  explanatory  evidence  is  not  required  (Id.;  Zimmerman 
v.  Camp,  155  Pa.  152  ;  Brand  v.  Jo/inroive,  60  Mich.  210;  Paramore 
v.  Lindsey,  63  Mo.  63) ;  and  the  same  is  true  if  the  alteration  be  not 
apparent;  if  in  such  a  case  the  opposing  party  alleges  a  wrongful 
alteration,  the  burden  of  proving  it  is  on  him  {Williamsburgh  Bk.  v. 
Solon,  136  N.  Y.  465  ;  Insurance  Co.  v.  Brim,  in  Ind.  281). 

In  some  States  maintaining  the  above  rule,  it  is  held  that  if  the 
party  who  is  bound  to  explain  a  suspicious  material  alteration  offers  no 
evidence  for  the  purpose,  the  document  may  be  rejected  by  the  court 
as  inadmissible  in  evidence  {Burgwin  v.  Bishop,  91  Pa.  336  (lease); 
Hartley  v.  Corboy,  150  Pa.  23  (note):  Collins  v.  Ball,  82  Tex.  259 
(deed);  Tillou  v.  Clinton,  etc.  Ins.  Co.,  7  Barb.  564  (written  consent); 
but  see  Maybee  v.  Sniffen,  2  E.  D.  Sm.  1  (release) ;  this  is  the  Eng- 
lish rule  of  Knight  v.  Clements,  8  A.  &  E.  215).  In  other  States  the 
document,  upon  proof  of  execution,  is  submitted  to  the  jury  in  all 
cases  of  alteration,  with  or  without  explanatory  evidence  Aliunde, 
so  that  they  may  determine  from  its  inspection,  etc.,  when,  and  for 
what  purpose,  the  alteration  was  made  (Hoey  v.Jarman,  39  N.  J.  L. 
523,  40  id.  379  (specialty);  Cole  v.  Hills,  44  N.  H.  227  (note);  Stayner 
v.  Joyce,  120  Ind.  99  (note);  Goodin  v.  Plugge,  47  Neb.  284  (note); 
Dodge  v.  Haskell,  supra) ;  but  the  jury  must  be  satisfied  by  a  pre- 
ponderance of  evidence  that  any  material  alteration  was  rightfully 
made,  and  in  the  absence  of  evidence  to  show  this,  a  verdict  against 
the  validity  of  the  instrument  will  be  sustainable,  or  may  be  directed 
(Id.;  Putnam  v.  Clark,  33  N.  J.  Eq.  338,  343).  Under  both  these 
theories,  it  is  sometimes  said  that  there  is  a  presumption  of  fact  that 
a  material  alteration,  not  sufficiently  explained,  was  made  after 
execution.  It  is  denied,  however,  that  there  is  any  presumption  of 
law  as  to  the  time  of  alteration,  in  such  a  case,  though  such  a  doctrine 
has  been  often  asserted  {Ely  v.  Ely,  Comstock  v.  Smith,  supra  ; 
Closson  v.  Morrison,  47  N.  H.  482,  487  ;  Jordan  v.  Stewart,  23  Pa. 
244,  249). 

In  a  number  of  the  States  the  foregoing  rules  do  not  prevail,  but 
the  presumption  is  that  an  unexplained  alteration  of  an  instrument 


Chap.  XI. |  THE  LAW  OF  EVIDENCE.  217 


them,  presumed  to  have  been  made  after  the  execution  of 
the  will.1 

There  is  no  presumption  as  to  the  time  when  alterations 
and  interlineations,  appearing  on  the  face  of  writings  not 
under  seal,  were  made,2  except  that  it  is  presumed  that 
they  were  so  made  that  the  making  would  not  constitute 
an  offence.3 

An  alteration  is  said  to  be  material  when,  if  it  had  been 


was  made  before  or  at  the  time  of  execution  {Neil  v.  Case,  25  Kan. 
510  (note);  Beaman  v.  Russell,  20  Vt.  205  (note);  Franklin  v.  Baker, 
48  O.  St.  296  (note);  Wilson  v.  Hayes,  40  Minn.  531  (note);  Little  v. 
Herndon,  10  Wall.  26  (asserting  this  as  to  deeds,  following  the  English 
rule);  cf.  Hayden  v.  Goodnow,  39  Ct.  164).  Under  this  doctrine  the 
instrument  is  admissible  in  evidence,  though  no  explanatory  evidence 
is  offered  ;  if,  however,  such  evidence  is  introduced,  the  question  as 
to  the  time  and  purpose  of  the  alteration  is  for  the  jury  (Id.). 

There  are  other  theories,  also,  on  this  vexed  subject.  Thus  by  some 
authorities  there  is  a  presumption  of  law  that  suspicious  alterations 
were  made  after  execution,  but  other  alterations  before  {Cox  v. 
Palmer,  1  McCrary,  431  (mortgage);  Orlando  v.  Gooding,  34  Fla. 
244),  while  others  assert  that  an  apparent  alteration  raises  no  pre- 
sumption either  way  {Hagan  v.  Merchants'  etc.  his.  Co.,  81  la.  321 
(insurance  policy);  see  Wilson  v.  Hayes,  supra). 

In  general,  each  State,  as  the  cases  hitherto  cited  indicate,  applies 
one  and  the  same  rule  to  deeds,  bills  and  notes,  written  contracts  of 
any  kind,  and  other  like  documents.     As  to  wills,  see  next  note.] 

1  Simmons  v.  Rudall,  1  Sim.  (N.  S.)  136.  [Wetmore  v.  Carryl,  5 
Redf.  544  ;  Toebbe  v.  Williams,  80  Ky.  661  ;  contra,  Wikoff's  Case,  15 
Pa.  281  ;  see  In  re  Voorhees,  6  Dem.  162  ;  Linuard's  Appeal,  93  Pa. 
313  ;  Haynes  v.  Haynes,  33  O.  St.  598.  When  alterations  are  made 
after  execution,  it  is  generally  held  that  the  will  must  be  reexecuted  ; 
if  not,  the  will  stands  as  it  read  before  such  alteration  {Gardner  v. 
Gardiner,  65  N.  H.  230;  Simrell's  Estate,  154  Pa.  604;  Lovellv. 
Quitman,  88  N.  Y.  377  ;  Eschbach  v.  Collins,  61  Md.  478  ;  Giffin  v. 
Brooks,  48  O.  St.  211  ;  Hesterberg  v.  Clark,  166  111.  241),  except  in 
cases  where  the  alteration  is  by  cancellation  or  obliteration,  revoking 
the  will  in  whole  or  in  part.  Townshcnd  v.  Howard,  86  Me.  285  ; 
Bigelow  v.  Gillott,  123  Mass.  102.J 

2  Knight  v.  Clements,  8  A.  &  E.  215  ;  [see  p.  215,  note  2,  supra.] 
3A\  v.  Gordon,  Dears.  592;  [see  for  dan  v.  Stewart,  23  Pa.  244.] 


218  A  DIGEST  OF  [Part  II. 

made  with  the  consent  of  the  party  charged,  it  would 
have  affected  his  interest  or  varied  his  obligations  in  any 
way  whatever.1 

An  alteration  which  in  no  way  affects  the  rights  of  the 
parties  or  the  legal  effect  of  the  instrument,  is  immaterial.2 


1  [Craighead  v.  McLoney,  99  Pa.  21 1  ;  Booth  v.  Powers,  56  N.  Y.  22  ; 
Murray  v.  Klinzing,  64  Ct.  78 ;  Wood  v.  Steele,  6  Wall.  80.  Whether 
an  alteration  is  material  or  not,  is  a  question  for  the  court.  Id.;  Bel- 
fast Bk.  v.  Harriman,  68  Me.  522  ;  Keens  Excr.  v.  Mofiroe,  75  Va. 
424-] 

8  This  appears  to  be  the  result  of  many  cases  referred  to  in  T.  E.  ss. 
1619-20  ;  see  also  the  judgments  in  Davidson  v.  Cooper  and  Aldous  y. 
Comwell,  referred  to  above.  [Immaterial  alterations  by  a  party  or 
stranger  do  not  avoid  an  instrument  {Casoni  v.  Jerome,  58  N.  Y.  315  ; 
Robertson  v.  Hay,  91  Pa.  242  ;  Cushing  v.  Field,  70  Me.  50  ;  Prudden 
v.  Nester,  103  Mich.  540  ;  Ryan  v.  First  Nat.  Bk.,  148  111.  349  ;  Mers- 
man  v.  Werges,  1 12  U.  S.  139  ;  Vose  v.  Dolan,  108  Mass.  155  ;  Derby  v. 
Thrall,  44  Vt.  413),  even  though  they  are  made  by  a  party  with 
fraudulent  intent  {Fuller  v.  Green,  64  Wis.  159  ;  JMoye  v.  Herndon,  30 
Miss.  116;  Robinson  v.Phamix  Ins.  Co.,  25  la.  43°);  but  in  some 
States  immaterial  alterations  by  a  party  do  avoid  an  instrument 
{Jones  v.  Crowley,  57  N.  J.  L.  222  ;  Kingston  Bk.  v.  Bosserman,  52 
Mo.  App.  269  ;  see  Gr.  Ev.  i.  §  568  ;  cf.  Co/um.  v.  Emigrant  Sav.  Bk., 
98  Mass.  12). 

If  blank  spaces  are  left  in  a  negotiable  bill  or  note  so  that  it  is 
incomplete,  any  bonajide  holder  may  fill  them  up,  and  the  instrument 
will  be  valid  in  the  hands  of  an  innocent  purchaser  for  value  ( Weyer- 
hauser  v.  Pun,  100  N.  Y.  150  ;  Bank  v.  Sargent,  85  Me.  349  ;  Brown 
v.  First  Nat.  Bk.,  115  Ind.  572  ;  Angle  v.  Life  Ins.  Co.,  92  U.  S.  330  ; 
Garrard  v.  Lewis,  10  Q.  B.  D.  30).  But  unwritten  spaces  in  a  complete 
note  or  bill  cannot  be  so  filled  {McGrath  v.  Clark,  56  N.  Y.  34  ;  Bruce 
v.  Westcott,  3  Barb.  374  ;  De  Pauw  v.  Bank,  126  Ind.  553  ^  Knoxville 
Nat.  Bk.v.  Clark,  51  la.  264;  Simmons  v.  Atkinson,  69  Miss.  862; 
Burrows  v.  Klunk,  70  Md.  451  ;  Greenfield  Sav.  Bk.  v.  Stowcll,  123 
Mass.  196).  But  there  are  cases  to  the  contrary,  which  are  collected 
in  this  last  decision.  As  to  filling  blanks  in  deeds  or  bonds,  see 
Washb.  R.  P.  iii.  252-256  (5th  ed.);  Bell  v.  Kennedy,  100  Pa.  215; 
Chicago  v.  Gage,  95  111.  593  ;  State  v.  Mathews,  44  Kan.  596  ;  Allen  v. 
Withrow,  1 10  U.  S.  1 19 ;  Brim  v.  Fleming,  135  Mo.  597  ;  Lafferty  ve 
Lajfcrty,  \i  W    Va.  783.] 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  21a 


CHAPTER   XII. 

OF  THE  EXCLUSION  OF  ORAL  BY  DOCUMENTARY 
EVIDENCE,  AND  OF  THE  MODIFICATION  AND 
INTERPRETATION  OF  DOCUMENTARY  BY  ORAL 
EVIDENCE. 


Article-  90.* 


EVIDENCE    OF    TERMS    OF    CONTRACTS,    GRANTS,    AND    OTHER    DIS- 
POSITIONS  OF   PROPERTY   REDUCED   TO   A   DOCUMENTARY   FORM. 

When  any  judgment  of  any  court  or  any  other  judicial  or 
official  proceeding,  or  any  contract  or  grant,  or  any  other 
disposition  of  property,  has  been  reduced  to  the  form  of 
a  document  or  series  of  documents,  no  evidence  may  be 
given  of  such  judgment  or  proceeding,  or  of  the  terms 
of  such  contract,  grant,  or  other  disposition  of  property, 
except  the  document  itself,  or  secondary  evidence  of  its 
contents  in  cases  in  which  secondary  evidence  is  admis- 
sible under  the  provisions  hereinbefore  contained.1  Nor 
may  the  contents  of  any  such  document  be  contradicted, 
altered,  added  to,  or  varied  by  oral  evidence.2 


*See  Note  XXXII.  [Appendix]. 

1  Illustrations  (a)  and  (b).  See  ante,  Arts.  63-84.  [Contemporaneous 
writings  between  the  same  parties,  relating  to  the  same  subject-mat- 
ter, are  admissible  in  evidence  (Gr.  Ev.  i.  §  283  ;  Wilson  v.  Randall, 
6rj  N.  Y.  338;  McNamara  v.  Gargett,  68  Mich.  454  ;  Windmill  Co.  v. 
Piercy,  41  Kan.  763);  but  neither  of  them  can  be  varied  by  parol  evi- 
dence (Myers  v.  Munson,  65  la.  423).  So  writings  referred  to  in  an- 
other instrument  are  admissible  with  such  instrument.  Maxted  v. 
Seymour,  56  Mich.  129  ;  Amos  v.  Amos,  1 17  Ind.  19.] 

'2  [Gr.  Ev.  i.  §§  275-282  ;  Wh.  Ev.  li.  §§  920-927.  This  rule  of  the 
English  courts  is  well  established  in  this  country.  It  excludes  (sub- 
ject to  the  modifying  rules  hereinafter  stated)  evidence  of  prior,  con- 
temporaneous, or  subsequent  oral  declarations  or  stipulations  of  the 


220  A  DIGEST  OF  [Part  II. 

Provided  that  any  of  the  following  matters  may  be 
proved : — 

(i)  Fraud,  intimidation,  illegality,  want  of  due  execu- 
tion, want  of  capacity  in  any  contracting  party,  the  fact 
that  it  is  wrongly  dated,1  want  or  failure  of  consideration, 
or  mistake  in  fact  or  law,  or  any  other  matter  which,  if 
proved,  would  produce  any  effect  upon  the  validity  of 
any  document,  or  of  any  part  of  it,  or  which  would  entitle 
any  person  to  any  judgment,  decree,  or  order  relating 
thereto.2 


parties  {Mottv.  Richtmyer,  57  N.  Y.  49;  Seitz  v.  Brewers  Co.,  141 
U.  S.  510;  Wodock  v.  Robinson,  148  Pa.  503  ;  Johnson  v.  Glover,  121 
111.  283  ;  Caulfield  v.  Hermann,  64  Ct.  325  ;  Tuttle  v.  Burgett,  53  O.  St. 
498 ;  Boyd  v.  Paul,  125  Mo.  9;  Black  v.  Bachelder,  120  Mass.  171; 
Naumbergv.  Young,  44  N.  J.  L.  331).  But  in  Pennsylvania  it  is  ap- 
plied with  less  stringency  than  in  other  States  [G reenawalt  v.  Kohne, 
85  Pa.  369).  The  rule  as  to  wills  is  the  same  as  in  respect  to  other 
instruments.  Parol  evidence  is  not  received  of  the  testator's  oral 
declarations  of  intention,  except  in  the  special  cases  stated  in  the 
next  Article  (  Williams  v.  Freeman,  83  N.  Y.  561;  Warren  v.  Gregg, 
116  Mass.  304  ;  Mackie  v.  Story,  93  U.  S.  589 ;  Hoiltv.  Hoitt,  63  N.  H. 
475;  Hawke  v.  Chicago,  etc.  R.  Co.,  165  111.  561).  The  general  rule 
for  all  instruments  is  simply  this:  —  Ascertain  the  inte?itio>i  of  the 
party  or  parties  from  the  instrument  itself,  not  from  parol  evidence 
independent  of  the  instrument  (  Waters  v.  Bishop,  122  Ind.  516  ;  Eyer 
v.  Beck,  70  Mich.  179).  But,  as  is  shown  by  this  Article  and  the  next, 
parol  evidence  of  various  kinds  is  admissible  to  enable  one  to  find  the 
intent  in  the  instrument.    House  v.  Walch,  144  N.  Y.  418.] 

1  Reffellv.  Rcffell,  L.  R.  I  P.  &  D.  139.  [Kincaid  v.  Archibald,  73 
N.  Y.  189;  Battles  v.  Fobes,  21  Pick.  239;  Pigott  v.  O'Halloran,  37 
Minn.  415.  But  when  the  parties  to  a  contract  have  made  the  date  a 
material  part  thereof,  as  when  the  time  of  performance  is  fixed  with 
reference  to  it,  parol  evidence  is  not  admissible  to  change  it.  Bar- 
low v.  Buckingham,  68  la.  169;  Joseph  v.  Bigelow,  4  Cush.  82.]  Mr. 
Starkie  extends  this  to  mistakes  in  some  other  formal  particulars.  3 
Stark.  Ev.  787-8. 

2  Illustration  (c).  [Gr.  Ev.  i.  §§  284,  285  ;  Wh.  Ev.  ii.  §§  930-935, 
1009,  1054;  Trambly  v.  Ricard,  130  Mass.  259  (fraud);  Mayer  v. 
Dean,  115  N.  Y.  556  (fraud);  Paine  v.  Upton,  87  N.  Y.  327  (fraud, 
accident,   and    mistake);    Haughwout   v.    Garrison,  69    N.   Y.  339 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  221 

(2)  The  existence  of  any  separate  oral  agreement  as  to 
any  matter  on  which  a  document  is  silent,  and  which  is 
not  inconsistent  with  its  terms,  if  from  the  circumstances 
of  the  case  the  court  infers  that  the  parties  did  not  intend 


(usury) ;  Sherman  v.  Wilder,  106  Mass.  537  (illegality)  ;  Anthony  v. 
Harrison,  14  Hun,  198,  74  N.  Y.  613  ;  Baird  v.  Baird,  145  N.  Y.  659; 
Fire  Ins.  Ass'n  v.  Wickham,  141  U.  S.  564  (want  of  consideration). 
So  parol  evidence  is  admissible  to  show  the  real  consideration  of 
a  contract  or  deed,  though  different  from  that  expressed,  or  an  ad- 
ditional consideration,  not  inconsistent  with  that  expressed  {Hebbard 
v.  Hanghian,  70  N.  Y.  54 ;  Burnham  v.  Dorr,  72  Me.  198 ;  Snow 
v.  Alley,  156  Mass.  193  ;  Silvers  v.  Potter,  48  N.  J.  Eq.  539  ;  Koch  v. 
Roth,  150  111.  212;  cf.  Emmett  v.  Penoyer,  151  N.  Y.  564;  but  see 
Simanovich  v.  Wood,  145  Mass.  180;  Conant  v.  Nat.  State  Bk.,  121 
Ind.  323 ;  Davis  v.  Gann,  63  Mo.  App.  425);  to  show  a  deed  to  be  a 
mortgage  {Hassam  v.  Barrett,  115  Mass.  256  ;  Barry  v.  Hamburg  Ins. 
Co.,  no  N.  Y.  1;  German  Ins.  Co.  v.  Gibe,  162  111.  251;  McMillan  v. 
Bissell,  63  Mich.  66 ;  Pengh  v.  Davis,  96  U.  S.  332  ;  this  is  only  true  in 
equity  in  most  States);  to  show  a  bill  of  sale  of  goods  to  be  a  chattel 
mortgage  {Marsh  v.  McNair,  99  N.  Y.  174,  178  ;  Susman  v.  Whyard, 
149  N.  Y.  127;  Morgan's  Assignees  v.  Shinn,  15  Wall.  105  ;  Booth  v. 
Robinson,  55  Md.  419 ;  this  also,  in  most  States,  is  in  equity,  but  not  at 
law,  Philbrook  v.  Eaton,  134  Mass.  398);  to  establish  a  trust  in  per- 
sonal property,  or  a  constructive  or  resulting  trust  in  land,  though  a 
deed  or  other  writing  has  purported  to  carry  an  absolute  title  ( Minchin 
v.  Minchin,  157  Mass.  265;  Ducie  v.  Ford,  138  U.  S.  587;  Parker  v. 
Snyder,  31  N.J.  Eq.  164;  cf.  Zimmerman  v.  Barber,  176  Pa.  1);  to 
show  that  a  deed  was  intended  as  an  advancement  {Palmer  v.  Cul- 
bertson,  143  N.  Y.  213);  to  show  that  the  signer  of  an  unsealed  non- 
negotiable  instrument  signed  as  agent,  not  as  principal  [Brady  v.  iVally, 
151  N.  Y.  258,  262  ;  Barbie  v.  Goodale,  28  Or.  465  ;  Lerned  v.  Johns,  9 
Allen,  419;  contra  in  N.  J.,  Schenck  v.  Spring  Lake  Co.,  47  N.  J.  Eq. 
44  ;  as  to  sealed  instruments,  see  Henricus  v.  Englert,  137  N.  Y.  488); 
to  show  the  true  relations  of  the  parties  signing  an  instrument  as  be- 
tween themselves,  as  that  they  are  co-sureties  though  they  signed  as 
makers,  and  vice  versa,  etc.  {Mansfield  v.  Edwards,  136  Mass.  15; 
Paul  v.  Rider,  58  N.  H.  1 19;  Hubbard  v.  Gurncy,  64  N.  Y.  457 ;  Kiel  v. 
Choate,  92  Wis.  517  ;  Farwell  v.  Ensign,  66  Mich.  600);  to  show  that  a 
writing  purporting  to  be  a  contract  was  not  intended  as  such  {Griersou 
v.  Mason,  60  N.  Y.  394;  cf.  Michelsv.Olmstead,  157  U.  S.  198);  to  show 
which  of  two  contemporaneous  writings  expresses  the  real  intention 


222  A  DIGEST  OF  [Part  II. 

the  document  to  be  a  complete  and  final  statement  of  the 
whole  of  the  transaction  between  them.1 

(3)  The  existence  of  any  separate  oral  agreement,  con- 
stituting- a  condition  precedent  to  the  attaching  of  any 
obligation  under  any  such  contract,  grant,  or  disposition 
of  property.'-' 

of  the  parties  (Payson  v.  Lamson,  134  Mass.  593).  So  a  receipt  may  be 
contradicted  or  explained  by  parol,  except  in  so  far  as  it  constitutes  or 
contains  a  contract,  as,  e.  g.,  in  the  case  of  a  bill  of  lading  (Macdon- 
ald  v.  Dana,  154  Mass.  152  ;  Ryan  v.  Ward,  48  N.  Y.  204  ;  Goodwin  v. 
Goodwin,  59  N.  H.  548 ;  Chapin  v.  Chicago,  etc.  R.  Co.,  79  la.  582 ; 
Swain  v.  Frazier,  35  N.  J.  Eq.  326);  so  as  to  a  written  license  or  ad- 
mission (Fargis  v.  Walton,  107  N.  Y.  398;  Smith  v.  May  field,  163  111. 
447);  and  there  are  many  other  like  cases.] 

1  Illustrations  (d),  (e),  and  (ee).  [Gr.  Ev.  i.  §  284  a  ;  Thomas  v.  Scutt, 
127  N.  Y.  133;  Graffam  v.  Pierce,  143  Mass.  386;  Stahelin  v.  Lowle, 
87  Mich.  124  ;  Hand  v.  Ryan  Co.,  63  Minn.  539;  Rlattv.  A£tna  Ins. 
Co.,  153  111.  113,  121 ;  Greening  v.  Steele,  122  Mo.  287  ;  Sivers  v.  Sivers, 
97  Cal.  518 ;  Naumberg  v.  Young,  44  N.  J.  L.  331.  Thus,  e.  g.,  an  in- 
dependent collateral  agreement  may  be  shown  by  parol  ( Van  Brunt 
v.  Day,  81  N.  Y.  251;  Backus  v.  Sternberg,  59  Minn.  403;  Xeal  v. 
Flint,  88  Me.  73  ;  Ayer  v.  Bell  Mfg.  Co.,  147  Mass.  46).  But  the  rule 
in  the  text  does  not  apply  when  it  appears  from  inspection  of  the  in- 
strument that  it  was  intended  to  express  the  full  and  complete  inten- 
tions of  the  parties  {Eighmie  v.  Taylor,  98  N.  Y.  288  ;  Seitz  v.  Brew- 
ers' Co.,  141  U.  S.  510;  Dickson  v.  Hartman  Mfg.  Co.,  179  Pa.  343; 
Averill  v.  Sawyer,  62  Ct.  560);  nor  does  it  apply  to  contracts  which 
are  required  by  the  Statute  of  Frauds  to  be  in  writing.  Ringer  v.  Holtz- 
claw,  112  Mo.  519.] 

s  Illustrations  (/)  and  (g).  [  Wilson  v.  Powers,  131  Mass.  539;  Mc- 
Farland  x.  Sikes,  54  Ct.  250;  Reynolds  v.  Robinson,  no  N.  Y.  654; 
Higgins  v.  Ridgway,  153  N.  Y.  130;  Burke  v.  Delaney,  153  U.  S.  228 ; 
Smith  v.  Mussetter,  58  Minn.  159;  cf.  McCormick  Co.  v.  Wilson,  39 
Minn.  467.  Generally,  however,  in  this  country  a  condition  attached 
to  the  delivery  of  an  instrument  under  seal,  or  at  least  of  a  convey- 
ance of  land,  to  the  obligee  or  grantee,  whereby  it  is  to  take  effect 
only  upon  the  happening  of  a  contingent  event,  cannot  be  shown  by 
parol  {Newman  v.  Baker,  10  App.  D.  C.  187;  Blewitt  v.  Booriun,  142 
N-  Y.  357) ;  but  in  other  respects  specialties  and  deeds  are  subject 
to  this  rule,  as  well  as  instruments  not  under  seal  (  Wendlinger  v , 
Smith,  75  Ya.  309  ;  Brackett  v.  Barney,  2S  N.  Y.  333  ;  Slate  v.  U'allis, 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  223 

(4)  The  existence  of  any  distinct  subsequent  oral  agree- 
ment to  rescind  or  modify  any  such  contract,  grant,  or 
disposition  of  property,  provided  that  such  agreement  is 
not  invalid  under  the  Statute  of  Frauds,  or  otherwise.1 

(5)  Any  usage  or  custom  by  which  incidents  not  ex- 
pressly mentioned  in  any  contract  are  annexed  to  con- 
tracts of  that  description  ;  unless  the  annexing  of  such 


57  Ark.  73  ;  Keener  v.  Crago,  81  *  Pa.  166 ;  Harrisoii  v.  Morton,  83  Md. 
456).  It  has  been  held,  however,  not  applicable  to  wills  (Sewell  v. 
Slingluff,  57  Md.  537). 

But  conditions  other  than  such  "conditions  precedent"  as  the  text 
describes  cannot  be  engrafted  upon  a  writing  by  parol  evidence 
(  Wilson  v.  Decn,  74  N.  Y.  531 ;  Allen  v.  Furbish,  4  Gray,  504 ;  Holz- 
worth  v.  Koch,  26  0.  St.  33) ;  in  Pennsylvania,  however,  a  less  stringent 
rule  prevails,  and  parol  evidence  is  received  of  oral  promises  or  con- 
ditions on  the  faith  of  whi.ch  a  written  contract  has  been  executed. 
Cull  mans  v.  Lindsay,  114  Pa.  170.] 

1  Illustration  (h).  [Gr.  Ev.  i.§§  302-304;  Teal  v.  Bilby,  123  U.  S.  578  ; 
Hastings  v.  Lovcjoy,  140  Mass.  261;  West  Haven  Co.  v.  Redfield,  58 
Ct.  39 ;  Nicollv.  Burke,  78  N.  Y.  580  ;  Church  v.  Florence  Iron  Works, 
45  N.  J.  L.  129;  Holloway  v.  Frick,  149  Pa.  178.  Generally  the  sub- 
sequent agreement  requires  a  new  consideration  (Malone  v.  Dough- 
erty, 79  Pa.  46 ;  Stewart  v.  Keteltas,  36  N.  Y.  388,  392  ;  Barton  v.  Gray, 
57  Mich.  622  ;  Carruthers  v.  Mc Murray,  75  la.  173),  but  the  original 
consideration  may  be  deemed  sufficient  {Lynch  v.  Mc  Henry,  75  Wis. 
631;  cf.  Anderson  v.  Moore,  145  111.  61).  So  in  case  of  a  parol  waiver 
or  a  parol  extension  of  time  for  performance,  no  consideration  is  gen- 
erally required  {Stevens  v.  Taylor,  58  la.  664;  Mead  v.  Barker,  in 
N.  Y.  259 ;  Thomson  v.  Boor,  147  N.  Y.  402 ;  Cobbs  v.  Fire  Ass'n,  68 
Mich.  463).  As  to  the  modification  by  parol  of  a  contract  under  seal, 
see  Canal  Co.  v.  Ray,  101  U.  S.  522  ;  Quigley  v.  De  Haas,  98  Pa.  292  ; 
McCreery  v.  Day,  1 19  N.  Y.  1 ;  Hcrzog  v.  Sawyer,  61  Md.  344  ;  Blag- 
borne  v.  Hunger,  101  Mich.  375  ;  Alschulerv.  Schiff,  164  111.  298. 

The  authorities  are  conflicting  as  to  whether  a  contract  within  the 
Statute  of  Frauds  can  be  varied  by  a  subsequent  parol  agreement. 
Cummings  v.  Arnold,  3  Met.  486  ;  Negley  v.  Jcffers,  28  O.  St.  90 ;  Hill 
v.  Blake,  97  N.  Y.  216 ;  Thomson  v.  Pcor,  147  N.  Y.  402,  408 ;  Swain 
v.  Seamens,  9  Wall.  254,  272;  Backer  v.  Steward,  34  Yt.  127,  130; 
Williams  v.  Flood,  63  Mich.  487  ;  Burns  v.  Fidelity  Co.,  52  Minn.  31  ; 
see  Long  v.  Hartwell,  34  N.  J.  L.  116;  Reed  on  St.  of  Frauds,  ii. 
§473-] 


224  A  DIGEST  OF  [Part  II. 

incident  to  snch  contract  would  be  repugnant  to  or  incon- 
sistent with  the  express  terms  of  the  contract.' 

Oral  evidence  of  a  transaction  is  not  excluded  by  the 
fact  that  a  documentary  memorandum  of  it  was  made,  if 
such  memorandum  was  not  intended  to  have  legal  effect 
as  a  contract,  or  other  disposition  of  property.2 

Oral  evidence  of  the  existence  of  a  legal  relation  is  not 
excluded  by  the  fact  that  it  has  been  created  by  a  docu- 
ment, when  the  fact  to  be  proved  is  the  existence  of  the 
relationship  itself,  and  not  the  terms  on  which  it  was 
established  or  is  carried  on.3 


1  Illustration  (ha)  ;  Wigglesworth  v.  Dallison,  and  note  thereto, 
S.  L.  C.  598-628.  A  late  case  is  Johnson  v.  Raylton,  7  Q.  B.  D.  438,  in 
which  it  was  held  that  evidence  was  admissible  of  a  custom  that  in  a 
contract  with  a  manufacturer  for  iron  plates  he  warranted  them  to  be 
of  his  own  make.  [Gr.  Ev.  i.  §§  294,  295  ;  Walls  v.  Bailey,  49  N.  Y. 
464;  Page  v.  Cole,  120  Mass.  37;  Robinson  v.  U.  S.,  13  Wall.  363; 
Patlerson  v.  Croivther,  70  Md.  124;  Pennell  v.  Transportation  Co., 
94  Mich.  247.  But  evidence  of  usage  will  not  be  received  to  defeat 
a  settled  rule  of  law  or  the  plain  meaning  of  a  statute.  Barnard  v. 
Kellogg,  10  Wall.  383  ;  Corn  Exch.  Bk.  v.  Nassau  Bk.,  91  N.  Y.  74; 
Suburban  Elec.  Co.  v.  Elizabeth,  59  N.  J.  L.  134;  cf.  Armstrong  v. 
Granite  Co.,  147  N.  Y.  495.] 

2  Illustration  (i).  [firigg  v.  Hilton,  99  N.  Y.  517  ;  Lathrop  v.  B ram- 
hall,  64  N.  Y.  365  ;  Perrine  v.  Cooler's  Excrs.,  39  N.  J.  L.  449 ;  Irwin 
v.  Thompson,  27  Kan.  643  ;  Grant  v.  Frost,  80  Me.  202  ;  Kreuzberger 
v.  Wingfield,  96  Cal.  251  ;  see  ante,  p.  190,  note  1.] 

:;  Illustration  (J).  [Thus  the  existence  of  a  partnership  or  corporation 
may  be  proved  by  parol  (  Widdifieldv.  Widdificld,  2  Binn.245;  Cutler 
v.  Thomas,  25  Yt.  73  ;  Stale  v.  Grant,  104  N.  C.  908  ;  see  p.  190,  note  I, 
ante);  or  the  fact  of  a  tenancy  in  land  (  / /amnion  v.  Sexton, 691a.  37);  or 
the  ownership  of  property  (  Gallagher  v.  London  Assur.  Co.,  149  Pa.  25 ; 
cf.  Uhlv.  Moorhous,  137  Ind.  445).  So  various  collateral  facts  about  an 
instrument  may  be  proved  by  parol  ;  as  e.  g.,  the  purpose  or  object 
for  which  it  was  given  (IlutcJiins  v.  I/cbbarci,  34  N.  Y.  24  ;  Bunker  v. 
Barron,  79  Me.  62;  Bruce  v.  Slemp,  82  Va.  352);  the  reason  why  it  was 
not  indorsed  {Bank  v.  Kennedy,  17  Wall  19);  the  fact  that  notes  were 
sent  to  a  banking-house  for  collection  {Cecil  Bk.v.  Snively,2^  Md.  253); 
and  many  like  cases.  Sec  Brick  v.  /hick,  98  U.  S.  514;  Buchanon  v. 
Adams,  49  N.  J.  L.  636;  Shocnbcrgcr  v.  Ilackman,  37  Pa.  87.] 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  225 

The  fact  that  a  person  holds  a  public  office  need  not  be 
proved  by  the  production  of  his  written  or  sealed  appoint- 
ment thereto,  if  he  is  shown  to  have  acted  on  it.' 

Illustrations. 

{a)  A  policy  of  insurance  is  effected  on  goods  "in  ships  from  Suri- 
nam to  London."  The  goods  are  shipped  in  a  particular  ship,  which 
is  lost. 

The  fact  that  that  particular  ship  was  orally  excepted  from  the  pol- 
icy cannot  be  proved.'2 

(b)  An  estate  called  Gotton  Farm  is  conveyed  by  a  deed  which  de- 
scribes it  as  consisting  of  the  particulars  described  in  the  first  division 
of  a  schedule  and  delineated  in  a  plan  on  the  margin  of  the  schedule. 

Evidence  cannot  be  given  to  show  that  a  close  not  mentioned  in  the 
schedule  or  delineated  in  the  plan  was  always  treated  as  part  of  Got- 
ton Farm,  and  was  intended  to  be  conveyed  by  the  deed.3 

(c)  A  institutes  a  suit  against  B  for  the  specific  performance  of  a 
contract,  and  also  prays  that  the  contract  may  be  reformed  as  to  one 
of  its  provisions,  as  that  provision  was  inserted  in  it  by  mistake. 

A  may  prove  that  such  a  mistake  was  made  as  would  entitle  him  to 
have  the  contract  reformed.4 

(d)  A  lets  land  to  B,  and  they  agree  that  a  lease  shall  be  given  by 
A  toB. 

Before  the  lease  is  given,  B  tells  A  that  he  will  not  sign  it  unless  A 
promises  to  destroy  the  rabbits.  A  does  promise.  The  lease  is  after- 
wards granted,  and  reserves  sporting  rights  to  A,  but  does  not  mention 


1  See  authorities  collected  in  1  Ph.  Ev.  449-50;  T.  E.  s.  139.  [Gr.  Ev. 
'•  §§  83,  92  ;  Comm.  v.  Kane,  108  Mass.  423  ;  Cotton  v.  Beardsley,  38 
Barb.  29;  State  v.  Row,  81  la.  138  ;  Rite hie  v.  Widdemer,  59  N.  J.  L. 
290  ;  Lueierv.  Pierce,  60  N.  H.  13  ;  Golder  v.  Bressler,  105  111.  419,  428  ; 
cf.  Short  v.  Symmes,  150  Mass.  298.] 

'2  Weston  v.  Eames,  1  Tau.  115. 

3 Barton  v.  Dawes,  10  C.  B.  261-265. 

4  Story's  Equity  Jurisprudence,  chap.  v.  ss.  153-162.  [Gr.  Ev.  i. 
§  296  a;  Thompson  v.  Phenix  Bis.  Co.,  136  U.  S.  287  ;  Goode  v.  Riley, 
153  Mass.  585  ;  Park  Bros.  v.  Blodgett  Co.,  64  Ct.  28  ;  Christopher  St. 
R.  Co.  v.  23d  St.  R.  Co.,  149  N.  Y.  58  ;  N.  &-  W.  Branch  R.  Co.  v. 
Swank,  105  Pa.  555  ;  but  equity  will  not  reform  a  will.  Sherwood  v. 
Sherwood,  45  Wis.  357  ;  Stit?-gis  v.  Work,  122  Ind.  134J 


226  A  DIGEST  OF  [Part  II. 

the  destruction  of  the  rabbits.  B  may  prove  A's  verbal  agreement  as 
to  the  rabbits.1 

(e)  A  &  B  agree  verbally  that  B  shall  take  up  an  acceptance  of  A's, 
and  that  thereupon  A  and  B  shall  make  a  written  agreement  for  the 
sale  of  certain  furniture  by  A  to  B.  B  does  not  take  up  the  acceptance. 
A  may  prove  the  verbal  agreement  that  he  should  do  so.? 

(ee)  [A  makes  an  oral  assignment  to  B  for  a  valid  consideration  of 
a  portion  of  a  debt  due  to  A  by  a  bank,  and  at  the  same  time  gives  to 
B  a  check  to  enable  him  to  draw  the  amount  assigned.  The  check  is 
not  the  contract  between  the  parties  and  does  not  render  parol  evidence 
of  the  agreement  inadmissible.] 3 

(/)  A  &  B  enter  into  a  written  agreement  for  the  sale  of  an  interest 
in  a  patent,  and  at  the  same  time  agree  verbally  that  the  agreement 
shall  not  come  into  force  unless  C  approves  of  it.  C  does  not  approve. 
The  party  interested  may  show  this.4 

(g)  A,  a  farmer,  agrees  in  writing  to  transfer  to  B,  another  farmer, 
a  farm  which  A  holds  of  C.  It  is  verbally  agreed  that  the  agreement 
is  to  be  conditional  on  C's  consent.  B  sues  A  for  not  transferring  the 
farm.  A  may  prove  the  condition  as  to  C's  consent  and  the  fact  that 
he  does  not  consent.5 

(/i)  A  agrees  in  writing  to  sell  B  14  lots  of  freehold  land  and  make 
a  good  title  to  each  of  them.  Afterwards  B  consents  to  take  one  lot 
though  the  title  is  bad.  Apart  from  the  Statute  of  Frauds  this  agree- 
ment might  be  proved.6 


1  Morgan  v.  Griffiths,  L.  R.  6  Ex.  70  ;  and  see  Angell  v.  Duke,  L.  R. 
10  Q.  B.  174.  [L'f.  Willisw.  Hulbert,  1 17  Mass.  151  ;  Lewis  v.  Seabury, 
74  N.  Y.  400  ;  J)o:fge  v.  Zimmer,  1 10  N.  Y.  49  ;  Bradstreet  v.  Rich,  72 
Me.  233.  Morgan  v.  Griffiths  is  disapproved  in  Naumberg  v.  Young, 
44  N.J.  L.  331.] 

2  Lin ct 'ley  v.  Lacey,  17  C.  B.  (N.  S.)  578;  [see  Enge/horn  v.  Reit- 
lingcr,  \22  X.  Y.  80.] 

'■'■[Risicy  v.  Phenix  Bank,  83  N.  Y.  318  ;  cf.  Ludeke  v.  Sutherland, 
87  111.  481.] 

*Pym  v.  Campbell,  6  E.  &  B.  370.  [See  Ware  v.  Allen,  128  U.  S. 
590;  Fauncev.  Life  Ins.  Co.,  101  Mass.  279  ;  Seymour  \.  Cowing,  4 
Abb.  Dec.  200  ;  Whitford  v.  Laidler,  94  N.  Y.  145  ;  Miller  v.  Gamble, 
4  Barb.  146.] 

5  Wallis  v.  Littell,  11  C.  B.  (X.  S.)  369;  [see  Schmittler  v.  Simon, 
114  X.  Y.  184.] 

6  Goss  v.  Lord  'Nugent,  5  15.  &  Ad.  58,  65  ;  [see  Wiggin  v.  Goodrich, 
63  Me.  389.] 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  227 

(ha)  [A  written  contract  is  made  between  A  and  B  whereby  the 
former  is  engaged  as  manager  of  the  latter's  theatre  "at  a  weekly  sal- 
ary of  $40  per  week."  A  claims  payment  at  this  rate  for  every  week 
in  the  year.  Evidence  of  a  custom  in  the  theatrical  profession  to  pay 
wages  only  for  the  weeks  in  the  theatrical  season,  and  not  for  all  the 
weeks  of  the  year,  is  admissible.]  ' 

(i)  A  sells  B  a  horse,  and  orally  warrants  him  quiet  in  harness.  A 
also  gives  B  a  paper  in  these  words :  "  Bought  of  A  a  horse  for  7/. 
is.  6d." 

B  may  prove  the  oral  warranty.2 

(f)  The  question  is,  whether  A  gained  a  settlement  by  occupying 
and  paying  rent  for  a  tenement.  The  facts  of  occupation  and  pay- 
ment of  rent  may  be  proved  by  oral  evidence,  although  the  contract 
is  in  writing.3 


•r  A  DTtf 


Article  91.* 

what  evidence  may  be  given  for  the  interpretation  of 
documents. 

(1)  Putting  a  construction  upon  a  document  means 
ascertaining  the  meaning  of  the  signs  or  words  made 
upon  it,  and  their  relation  to  facts.4 


*  See  Note  XXXIII.  [Appendix]. 

1  [Leavitt  v.  Kennicott,  157  111.  235  ;  Grant  v.  Maddox,  15  M.  &  W. 
T37-] 

2  Allen  v.  Pink,  4  M.  &  W.  140.  [Filkitis  v.  Why  land,  24  N.  Y.  338  ; 
Dunham  v.  Barnes,  9  Allen,  352.] 

3B.v.  Hull,  7  B.  &  C.  611. 

4  [Usually  it  is  for  the  court  and  not  for  the  jury  to  construe  a  docu- 
ment ;  but  where  its  language  is  ambiguous  or  equivocal  or  technical, 
or  the  special  circumstances  of  the  case  affect  its  meaning,  or  the  facts 
attending  its  execution  need  to  be  ascertained,  etc.,  the  question  be- 
comes a  mixed  one  of  law  and  fact,  and  may  as  such  be  submitted  to 
the  jury  (Kenyon  v.  Knights  Templar  Ass '»,  122  N.  Y.  247  ;  Jordan  v. 
Patterson,  67  Ct.  47 3;  Shafer  v ;  Senseman,  125  Pa.  310;  Tompkins  v. 
Gardner  Co.,  69  Mich.  59;  Hamilton  x.  Liverpool  Ins.  Co.,  136  U.S. 
242) ;  so  where  a  contract  rests  partly  in  writing  and  partly  in  parol, 
the  jury  determine  what  the  contract  is  (Roberts  v.  Bonaparte,  73  Md. 
191).     If  printed  and  written  parts  of  a  document  conflict  with  each 


228  A  DIGEST  OF  [Part  II. 

(2)  In  order  to  ascertain  the  meaning  of  the  signs  and 
words  made  upon  a  document,  oral  evidence  maybe  given 
of  the  meaning  of  illegible  or  not  commonly  intelligible 
characters,  of  foreign^obsolete,  technical,  local,  and  pro-  ( 
vincial  expressknigfof  abbreviations,  and  of  common  . 
words  which,  from  the  context,  appear  to  have  been  used 
in  a  peculiar  sense;'  but  evidence  may  not  be  given  to 
show  that  common  words,  the  meaning  of  which  is  plain, 
and  which  do  not  appear  from  the  context  to  have  been 
used  in  a  peculiar  sense,  were  in  fact  so  used.2 

(3)  If  the  words  of  a  document  are  so  defective  or 
ambiguous  as  to  be  unmeaning,  no  evidence  can  be  given 
to  show  what  the  author  of  the  document  intended  to  say.3 


other,  the  written  parts  prevail  {Clark  v.  Woodruff,  83  N.  Y.  518; 
Haws  v.  Insurance  Co.,  130  Pa.  113;  Summers  v.  Hibbard,  153  111. 
102).  When  a  written  contract  is  ambiguous,  the  practical  construc- 
tion given  to  it  by  the  parties  may  be  considered,  and  is  of  much 
weight.  Dist.  of  Columbia  v.  Gallaher,  124  U.  S.  505;  Hosmer  v. 
McDonald,  80  Wis.  54.] 

1  Illustrations  (a),  (b),  (c).  [Gr.  Ev.  i.  §§  280,  292  ;  Houghton  v.  Wa- 
tertown  Ins.  Co.,  131  Mass.  300  ;  Hatch  v.  Douglas,  48  Ct.  1 16  ;  Atkin- 
son v.  Trucsdell,  127  N.  Y.  230  ;  Conestoga  Co.  v.  Finke,  144  Pa.  159 ; 
Mc Donough  v.  Jolly,  165  Pa.  542  ;  Elgin  x.Joslyn,  136  111.  525  ;  Con- 
verse v.  Wead,  142  111.  132  ;  Walrath  v.  Whittekind,  26  Kan.  482.  So 
where  an  instrument  appears  to  be  incomplete,  or  where  words  and 
phrases  used  are  ambiguous  or  unintelligible,  parol  proof  is  admis- 
sible to  supplement  the  incomplete  term,  and  to  explain  what  is  ob- 
scure or  doubtful.  Emmcttv.  Penoyer,  151  N.  Y.  564  ;  Quick  v.  Glass, 
128  Mo.  320.] 

•  Illustration  (d).  [Collcnder  v.  Dinsmore,  55  N.  Y.  200;  Gray  v. 
Shepard,  147  X.  Y.  177  ;  Moran  v.  Prather,  23  Wall.  492  ;  Odiome  v. 
Marine  Ins.  Co.,  101  Mass.  551.  Such  words  are  to  be  understood  in 
their  plain  and  ordinary  sense.  Id.;  Holston  Co.  v.  Campbell,  89  Va. 
396  ;  Hunt  v.  Gray,  76  la.  268.] 

:!  Illustrations  (e)  and  (/).  [Kelley  v.  Kelley,  25  Pa.  460  ;  Palmer  v. 
Albec,  50  la.  429  ;  cf.  Wootton  v.  Pedd's  Excrs.,  12  Gratt.  196.  This 
is  often  called  a  case  of  "  patent  ambiguity,"  but  the  better  term  for  it 
is  "  uncertainty."  The  same  terms  are  also  applied  when  the  mean- 
ing of  a  document  remains  uncertain,  even  after  evidence  of  "  sur- 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  229 

(4)  In  order  to  ascertain  the  relation  of  the  words  of  a 
document  to  facts,  every  fact  may  be  proved  to  which  it 
refers,  or  may  probably  have  been  intended  to  refer,1  or 
which  identifies  any  person  or  thing  mentioned  in  it.2 
Such  facts  are  hereinafter  called  the  "  circumstances  of 
the  case."3 

(5)  If  the  words  of  a  document  have  a  proper  legal 
meaning,  and  also  a  less  proper  meaning,  they  must  be 
deemed  to  have  their  proper  legal  meaning,  unless  such 
a  construction  would  be  unmeaning  in  reference  to  the 


rounding  circumstances"  and  other  permissible  explanatory  evidence 
(see  paragraphs  2  and  4  in  this  Article)  have  been  received  (Gr.  Ev.  i. 
§  300  ;  Kretschmer  v.  Hard,  18  Col.  223).  But  a  patent  ambiguity- 
may  not  be  resolved  by  parol  evidence  of  other  kinds,  as  e.  g.,  by 
evidence  of  a  testator's  parol  statements  of  intention  as  to  the  mean- 
ing of  his  will.  Lewis  v.  Douglas,  14  R.  I.  604  ;  Senger  v.  Senger, 
81  Va.  687  ;   Taylor  v.  Maris,  90  N.  C.  614.] 

1  See  all  the  Illustrations. 

2  Illustration  (g).  [Gr.  Ev.  i.  §§  286-290  ;  Coleman  v.  Manhattan 
Co.,  94  N.  Y.  229;  Reed  v.  Ins.  Co.,  95  U.  S.  23  ;  Bond's  Appeal,  31 
Ct.  183  ;  Stoops  v.  Smith,  100  Mass.  63  ;  Gilmors  Estate,  154  Pa.  523  ; 
Perry  v.  Bowman,  151  111.  25;  Andrews  v.  Dyer,  81  Me.  104.  This  evi- 
dence of  the  "  circumstances  of  the  case  "  or  (as  they  are  more  com- 
monly called)  "surrounding  circumstances"  is  received,  to  put  the 
court  in  the  position  of  the  parties  at  the  time  when  the  instrument 
was  drawn  and  thus  enable  it  to  comprehend  their  intentions  (Id.; 
Bingelv.  Vols,  142  111.  214  ;  Barnard  v.  Barlow,  50  N.  J.  Eq.  131). 
But  such  evidence  is  not  received  to  alter  or  modify  the  plain  lan- 
guage of  an  instrument,  nor  when  the  meaning  of  the  instrument  is 
clear  without  it  (Brawley  v.  U.  S.,  96  U.  S.  168  ;  Veazie  v.  Forsaith, 
76  Me.  172  ;  Humphreys  v.  N.  V.  etc.  R.  Co.,  121  N.  Y.  435  ;  Fruin  v. 
Crystal  R.  Co.,  89  Mo.  397  ;  Fowler  v.  Black,  136  111.  363). 

Under  this  rule,  proof  may  be  given  that  the  maker  of  the  instru- 
ment habitually  applied  a  nickname  or  peculiar  designation  used 
therein  to  a  particular  person  or  thing.  Foggs  v.  Taylor,  26  O.  St. 
604;  Ryerss  v.  Wheeler,  22  Wend.  148;  Banning  v.  Sisters  of  St. 
Francis,  35  N.  J.  Eq.  392,  note  ;  see  Illustrations  (e)  and  (gg).] 

3  As  to  proving  facts  showing  the  knowledge  of  the  writer,  and  for 
an  instance  of  a  documenfc-which  is  not  admissible  for  that  purpose, 
see  A  die  v.  Clark,  3  Ch.  D.  134,  142. 


230  A  DIGEST  OF  [Part  II. 

circumstances  of  the  case,  in  which  case  they  may  be 
interpreted  according  to  their  less  proper  meaning.' 

(6)  If  the  document  has  one  distinct  meaning  in 
reference  to  the  circumstances  of  the  case,  it  must  be 
construed  accordingly,  and  evidence  to  show  that  the 
author  intended  to  express  some  other  meaning  is  not 
admissible.2 

(7)  If  the  document  applies  in  part  but  not  with 
accuracy  or  not  completely  to  the  circumstances  of  the 
case,  the  court  may  draw  inferences  from  those  circum- 
stances as  to  the  meaning  of  the  document,  whether  there 
is  more  than  one,  or  only  one  thing  or  person  to  whom  or 
to  which  the  inaccurate  description  may  apply.  In  such 
cases  no  evidence  can  be  given  of  statements  made  by  the 
author  of  the  document  as  to  his  intentions  in  reference 
to  the  matter  to  which  the  document  relates,  though 
evidence  may  be  given  as  to  his  circumstances,  and  to  his 
habitual  use  of  language  or  names  for  particular  persons 
or  things.3 

1  Illustration  (//).  [Cromer  v.  Pinckncy,  3  Barb  Ch.  466  ;  Daugherty 
v.  Rogers,  119  Ind.  254;  hi  re  Fish,  [1894]  2  Ch.  83;  cf.  DeKay  v. 
Irving,  5  Den.  646.] 

'-'  Illustration  (/).  [American  Bible  Soc.  v.  Pratt,  9  Allen,  109  ;  Best 
v.  Hammond,  55  Pa.  409  ;  Drew  v.  Swift,  46  N.  Y.  204  ;  Jackson  v. 
Sill,  11  Johns.  201 ;  Cotton  v.  Smithwick,  66  Me.  360  ;  Jackson  v.  A /sop, 
67  Ct.  249  ;  Dunham  v.  Averill,  45  Ct.  61;  Fitzpatrick  v.  Fitzpatrick, 
36  la.  674  ;  Kurtz  v.  Hibner,  55  111.  514  ;  In  re  Seal,  [1894]  1  Ch.  316. 
The  meaning  of  plain  language  in  a  will  must  be  followed,  though  it 
make  the  will  void.      Win  Nostrandv.  Moore,  52  X.  Y.  12.] 

*  Illustrations  (/•),  (/),  (m).  [Morse  v.  Steams,  131  Mass.  389; 
Hinckley  v.  Thatcher,  i;y>  Mass.  477  ;  Fairfield  v.  Laivson,  50  Ct. 
501  ;  St.  lake's  Home  v.  Ass'n  for  Females,  52  X.  Y.  191  ;  Griscom  v. 
Evens,  40  X.  J.  L.  402,  42  id.  579  ;  Button  v.  .  Imer.  Tract  Soc,  23  \'t. 
336;  Appeal  of  Washington  and  Lee  Univ.,  11 1  Pa.  572  ;  Hallidayv. 
Hess,  83  111.  588.  This  rule  illustrates  the  well-known  maxim,  Falsa 
demonstratio  non  nocet,  cum  de  corpore  constat,  i.  e.,  a  false  description 
works  no  harm,  when  the  matter  of  substance  remains.  The  false 
part  of  the  description  is  rejected,  and  if  sufficient  remains  to  identify 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  231 

(8)  If  the  language  of  the  document,  though  plain  in 
itself,  applies  equally  well  to  more  objects  than  one, 
evidence  may  be  given  both  of  the  circumstances  of  the 
case  and  of  statements  made  by  any  party  to  the  docu- 
ment as  to  his  intentions  in  reference  to  the  matter  to 
which  the  document  relates.1 

(9)  If  the  document  is  of  such  a  nature  that  the  court 
will  presume  that  it  was  executed  with  any  other  than  its 
apparent  intention,  evidence  may  be  given  to  show  that 
it  was  in  fact  executed  with  its  apparent  intention.2 


a  particular  person  or  thing,  effect  can  be  given  to  the  instrument ; 
otherwise  it  is  void  for  uncertainty  (Id.;  Gr.  Ev.  i.  §§  291,  301  ;  see 
Illustration  («);  Muldoon  v.Deline,  135  N.  Y.  150;  Decker  v.  Decker, 
I2i  111.  341;  Eckford  v.  Eckford,  91  la.  54).  Evidence  of  "sur- 
rounding circumstances"  may  serve  to  correct  a  mistake  in  descrip- 
tion {Patch  v.  White,  117  U.  S.  210  ;  Hawkins  v.  Garland,  76  Va.  149;. 
The  expression  "latent  ambiguity"  is  sometimes  applied  to  cases 
falling  under  this  paragraph,  since  the  ambiguity  is  developed  by 
evidence  extrinsic  to  the  instrument.  Id.;  1 hornell v.  Brockton,  141 
Mass.  151  ;  Whitcomb  v.  Rod/nan,  156  111.  116  ;  Covert  v.  Sebern,  73 
la.  564.] 

1  Illustrations  (n),  (0).  [Gr.  Ev.  i.  §§  289,  290,  297,  298  ;  St.  Luke's 
Home  v.  Ass'n  for  Females,  52  N.  Y.  191,  198;  Trustees  v.  Colegrove, 
4  Hun,  362  ;  Griscom  v.  Evens,  supra  ;  Bod/nan  v.  .liner.  Tract  Soc, 
9  Allen,  447;  Fairfield  v.  Lawson,  50  Ct.  501  ;  Goff  v.  Roberts,  72 
Mo.  570  ;  Pfeifer  v.  Nat.  Ins.  Co.,  62  Minn.  536  ;  Morgan  v.  Burrows, 
45  Wis.  211.  These  are  also  (and  more  commonly  than  the  cases 
referred  to  in  the  preceding  note)  called  cases  of  "  latent  ambiguity," 
but  the  more  appropriate  name  is  "  equivocation"  (Gr.  Ev.  i.  §  289  ; 
Tucker  v.  Seamen's  Aid  Society,  7  Met.  188,  206  ;  Bradley  v.  Rees,  113 
111.  327).  This  form  of  latent  ambiguity  may  be  explained  by  evi- 
dence of  parol  statements  of  intention,  as  well  as  by  proof  of  "sur- 
rounding circumstances  ;  "  still  the  "  surrounding  circumstances  "  are 
often  found  to  suffice  as  a  means  of  determining  the  meaning  of  the 
document.  Gilmer  v.  Stone,  120  U.  S.  586  ;  Skinner  v.  Harrison  T'ft, 
1 16  Ind.  139  ;  Putnam  v.  Bond,  100  Mass.  58  ;  Ayers  v.  Weed,  16  Ct. 
291  ;  Tilton  v.  Amer.  Bible  Soc,  60  N.  H.  377  ;  Tyler  v.  Fickett,  73 
Me.  410  ;  Sargent  v.  Adams,  3  Gray,  72.] 

'  Illustration  [p).  [This  is  called  evidence  "to  rebut  an  equity"  (i.e., 
an  equitable   presumption),   and  oral   statements    of  intention    are 


232  A  DIGEST  OF  [Part  II 


Illustrations. 

(a)  A  lease  contains  a  covenant  as  to  "ten  thousand"  rabbits.  Oral 
evidence  to  show  that  a  thousand  meant,  in  relation  to  rabbits,  1200,  is 
admissible.1 

(b)  A  sells  to  B  "  1170  bales  of  gambier."  Oral  evidence  is  admis- 
sible to  show  that  a  "bale"  of  gambier  is  a  package  compressed  and 
weighing  2  cwt.2 

(c)  A,  a  sculptor,  leaves  to  B  "all  the  marble  in  the  yard,  the  tools 
in  the  shop,  bankers,  mod  tools  for  carving."  Evidence  to  show 
whether  "mod"  meant  models,  moulds,  or  modeling-tools,  and  to 
show  what  bankers  are,  may  be  given.3 

(d)  Evidence  may  not  be  given  to  show  that  the  word  "boats,"  in  a 
policy  of  insurance,  means  "boats  not  slung  on  the  outside  of  the  ship 
on  the  quarter."  i 

(e)  A  leaves  an  estate  to  K,  L,  M,  etc.,  by  a  will  dated  before  1838. 
Eight  years  afterwards  A  declares  that  by  these  letters  he  meant  par- 
ticular persons.  Evidence  of  this  declaration  is  not  admissible.  Proof 
that  A  was  in  the  habit  of  calling  a  particular  person  M  would  have 
been  admissible." 

(/)  A  leaves  a  legacy  to .     Evidence  to  show  how  the  blank 

was  intended  to  be  filled  is  not  admissible.6 


provable  for  the  purpose.  Gr.  Ev.  i.  §  296  ;  Van  Houten  v.  Post,  33 
N.  J.  Eq.  344  ;  Reynolds  v.  Robinson,  82  N.  Y.  103,  107 ;  Richardson  v. 
Evcland,  126  111.  37  ;  Bank  v.  Fordyce,  9  Pa.  275  ;  cf.  Phillips  v. 
M Combs,  53  N.  Y.  494.] 

1  Smith  v.  Wilson,  3  B.  &  Ad.  728.  [See  Soutier  v.  Kellerman,  18 
Mo.  509  ;  Brown  v.  Brown,  8  Met.  576.  But  except  in  special  cases 
like  these  where  words  have  a  peculiar  meaning  by  local  custom, 
usages  of  business,  etc.,  the  meaning  of  ordinary  words  cannot  be 
varied.     Butler  v.  Gale,  27  Vt.  739;  Mann  v.  Mann,  14  Johns.  1.] 

2  Gorrissen  v.Perrin,  2  C.  B.  (N.  S.)  681.  [See  Miller  v.  Stevens,  100 
Mass.  518  (meaning  of  "barrels");  Confederate  Arotc  Case,  19  Wall. 
548  (of  "dollars");  Carey  v.  Bright,  58  Pa.  70  (of  "collieries"); 
People  v.  Borda,  105  Cal.  636  (of  "corral  ");  Dana  v.  Fiedler,  12  N.  Y. 
40  ;  McDonough  v.  Jolly,  165  Pa.  542.] 

3  Goblet  v.  Beechy,  3  Sim.  24  ;  2  R.  &  M.  624.  [See  Ryerss  v. 
Wheeler,  22  Wend.  148,  153.] 

4  Blackett  v.  Royal  Exchange  Co  ,  2  C.  &  J.  244. 

5  Clayton  v.  Lord  Nugent,  13  M.  &  W.  200  ;  see  205-6.  [See  Beatty 
v.  Trustees,   39  N.  J.  Eq.  452.] 

6  Bay  lis  v.  A.  G.,  2  Atk.  239.     [See  Crooks  v.  Whitford,  47  Mich.  283 ; 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  233 

(g)  Property  was  conveyed  in  trust  in  1704  for  the  support  of  "  Godly 
preachers  of  Christ's  holy  Gospel."  Evidence  may  be  given  to  show 
what  class  of  ministers  were  at  the  time  known  by  that  name.1 

(gg)  [A  leaves  a  legacy  in  his  will  to  "The  Home  of  the  Friendless 
in  New  York."  There  is  no  institution  of  that  name,  but  the  legacy  is 
claimed  by  the  "  American  Female  Guardian  Society."  Evidence  may 
be  given  that  this  society  has  been  commonly  designated  by  the  name 
used  in  the  will,  both  by  its  officers  and  friends  and  by  the  testator,  and 
that  upon  its  circulars  and  business  signs  a  name  almost  identical  has 
been  used.]'2 

(h)  A  leaves  property  to  his  "children."  If  he  has  both  legitimate 
and  illegitimate  children,  the  whole  of  the  property  will  go  to  the 
legitimate  children.  If  he  has  only  illegitimate  children,  the  property 
may  go  to  them,  if  he  cannot  have  intended  to  give  it  to  unborn 
legitimate  children.3 

(z)  A  testator  leaves  all  his  estates  in  the  county  of  Limerick  and 
city  of  Limerick  to  A.  He  had  no  estates  in  the  county  of  Limerick, 
but  he  had  estates  in  the  county  of  Clare,  of  which  the  will  did  not 
dispose.  Evidence  cannot  be  given  to  show  that  the  words  "of  Clare" 
had  been  erased  from  the  draft  by  mistake,  and  so  omitted  from  the 
will  as  executed.4 

(ii)  [A  testator  devises  to  X  "all  that  my  farm  called  Trogues-farm, 


IVallize  v.  Wallize,  55  Pa.  242  ;  Lefevre  v.  Lefevre,  59  N.  Y.  434, 441  ; 
Vandervoort  v.  Dewey,  42  Hun,  68;  cf.  Crocker  v.  Crocker,  5  Hun, 
587.]  In  In  re  Bacon  s  Will,  Camp  v.  Coe,  31  Ch.  D.  460,  blanks  were 
left  in  a  will,  and  parol  evidence  was  admitted  to  rebut  any  presump- 
tion arising  from  them  against  the  prima  facie  claim  of  the  executor 
to  the  residue  undisposed  of. 

1  Shore  v.  Wilson,  9  C.  &  F.  365,  565-6.  [See  Robertson  v.  Bullions, 
1 1  N.  Y.  243, 259 ;  Hinckley  v.  Thatcher,  139  Mass.  477,  480  ;  Goddard 
v.  Foster,  17  Wall.  143.] 

2  \Lefevre  v.  Lefevre,  59  N.  Y.  434  ;  see  Sutton  v.  Bowker,  5  Gray, 
416;  Woodv.  Hammond,  16  R.  I.  98  ;  Missionary  Soc.   v.  Mead,  131 

111.  338-] 

3  Wig.  Ext.  Ev.  pp.  18  and  19,  and  note  of  cases.  [Appelv.  Byers, 
98  Pa.  479  ;  B rower  v.  Bowers,  1  Abb.  Dec.  214  ;  Hill  v.  C?-ook,  L.  R. 
6  H.  L.  265  ;  see  Gelston  v.  Shields,  16  Hun,  143,  78  N.  Y.  275.  So  the 
word  "  children  "  does  not  include  grandchildren,  except  when  there 
are  no  children,  in  the  usual  sense  of  the  word.  Mowatt  v.  Carow,  J 
Pai.  328  ;  West  v.  Rassman,  135  Ind.  278.] 

4  Miller  v.  Travers,  8  Bing.  244.    [See  Tucker  v.  Seamen  s  Aid  Soc, 


234  A  DIGEST  OF  [Part  II. 


now  in  the  occupation  of  C."  Evidence  of  "surrounding  circum- 
stances" being  received  showed  that  the  testator  owned  a  farm  called 
by  this  name,  but  that  only  part  of  it  was  in  the  occupation  of  C.  The 
last  part  of  the  description  being  inaccurate  was  therefore  rejected, 
and  it  was  held  that  the  whole  of  Trogues-farm  passed  to  the  devisee, 
thus  satisfying  the  word  "all "  in  the  first  part  of  the  description.]  ' 

(J)  A  leaves  a  legacy  to  "Mrs.  and  Miss  Bowden."  No  such  per- 
sons were  living  at  the  time  when  the  legacy  was  made,  but  Mrs. 
Washburne,  whose  maiden  name  had  been  Bowden,  was  living,  and 
had  a  daughter,  and  the  testatrix  used  to  call  them  Bowden.  Evidence 
of  these  facts  was  admitted.2 

(k)  A  devises  land  to  John  Hiscocks,  the  eldest  son  of  John  His- 
cocks.  John  Hiscocks  had  two  sons,  Simon,  his  eldest,  and  John,  his 
second  son,  who,  however,  was  the  eldest  son  by  a  second  marriage. 
The  circumstances  of  the  family,  but  not  the  testator's  declarations 
of  intention,  may  be  proved  in  order  to  show  which  of  the  two  was 
intended.3 

(/)  A  devises  property  to  Elizabeth,  the  natural  daughter  of  B.  B 
has  a  natural  son  John,  and  a  legitimate  daughter  Elizabeth.  The 
court  may  infer  from  the  circumstances  under  which  the  natural  child 
was  born,  and  from  the  testator's  relationship  to  the  putative  father, 
that  he  meant  to  provide  for  John.4 

{in)  A  leaves  a  legacy  to  his  niece,  Elizabeth  Stringer.  At  the  date 
of  the  will  he  had  no  such  niece,  but  he  had  a  great-great-niece  named 
Elizabeth  Jane  Stringer.  The  court  may  infer  from  these  circum- 
stances that  Elizabeth  Jane  Stringer  was  intended  ;  but  they  may  not 
refer  to  instructions  given  by  the  testator  to  his  solicitor,  showing  that 
the  legacy  was  meant  for  a  niece,  Elizabeth  Stringer,  who  had  died 


7  Met.  188  ;  Dunham  v.  Averill,  45  Ct.  61;  Sturgis  v.  Work,  122  Ind. 
I34-] 

1  [Goodlitle  v.  Southern,  1  M.  &  S.  299;  approved  in  Slingsby  v. 
Grainger,  8  H.  L.  C.  273,  282.  S.  P.  WinkZey  v.  Kainie,  32  N.  H.  268 ; 
Fitzpatrick  v.  Fitzpatrick,  36  la.  674.] 

2  Lee  v.  Pain,  4  Hare,  251-3  ;  [Gr.  Ev.  i.  §  291.] 

3  Doe  v.  Hiscocks,  5  M.  &  W.  363.  [/«  re  Taylor,  34  Ch.  D.  255  ;  In 
re  Chappell,  [1894]  P.  98  ;  see  Smith  v.  Smith,  1  Edw.  Ch.  189,  4  Pai. 
271;  Connolly  v.  Pardon,    1    Pai.   291;    Thayer  v.  Boston,  15   Gray, 

347-] 

4  Ryall  v.  Hannam,  10  Beav.  536. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  235 

before  the  date  of  the  will,  and  that  it  was  put  into  the  will  by  a  mis- 
take on  the  part  of  the  solicitor.1 

(n)  A  devises  one  house  to  George  Gord,  the  son  of  George  Gord, 
another  to  George  Gord,  the  son  of  John  Gord,  and  the  third  to  George 
Gord,  the  son  of  Gord.  Evidence  both  of  the  circumstances  and  of  the 
testator's  statements  of  intention  may  be  given  to  show  which  of  the 
two  George  Gords  he  meant.2 

(o)  A  appointed  "  Percival  ,  of  Brighton,  Esquire,  the  father," 

one  of  his  executors.  Evidence  of  surrounding  circumstances  may 
be  given  to  show  who  was  meant,  and  (probably)  evidence  of  state- 
ments of  intention.3 

(p)  A  /eaves  two  legacies  of  the  same  amount  to  B,  assigning  the 
same  motive  for  each  legacy,  one  being  given  in  his  will,  the  other  in 
a  codicil.  The  court  presumes  that  they  are  not  meant  to  be  cumula- 
tive, but  the  legatee  may  show,  either  by  proof  of  surrounding  circum- 
stances, or  of  declarations  by  the  testator,  that  they  were.4 

Article  92.* 
cases  to  which  articles  90  and  91  do  not  apply. 

Articles  90  and  91  apply  only  to  parties  to  documents, 
and  their  representatives  in  interest,  and  only  to  cases  in 
which  some  civil  right  or  civil  liability  dependent  upon 


*  See  Note  XXXIV.  [Appendix]. 

1  Stringer  v.  Gardiner,  27  Beav.  35  ;  4  De  G.  &  J.  468  ;  [cf.  Gallup 
v.  Wright,  61  How.  Pr.  286.] 

-  Doe  v.  Needs,  2  M.  &  W.  129.  [There  were  only  two  George  Gords 
to  claim  the  third  devise,  viz.,  those  who  were  named  as  the  recipients 
of  the  first  and  second  devises.  Hence  this  became  a  case  of  "  equiv- 
ocation," admitting  evidence  of  statements  of  intention.] 

3  If  1  the  Goods  of  de  Rosaz,  L.  R.  2  P.  D.  66.  [Mr.  Stephen's  state- 
ment, that "  probably  evidence  of  statements  of  intention  "  might  have 
been  given  in  this  case,  hardly  seems  warranted  by  the  decision.  No 
such  evidence  was  received,  and,  on  principle,  it  does  not  seem  com- 
petent. There  was  only  one  person  to  whom  the  description  accurately 
applied.] 

4  Per  Leach,  V.  C,  in  Hurst  v.  Leach,  5  Madd.  351,  360-1.  The 
rule  in  this  case  was  vindicated,  and  a  number  of  other  cases  both 
before  and  after  it  were  elaborately  considered  by  Lord  St.  Leonards, 


236  A  DIGEST  OF  [Part  II. 

the  terms  of  a  document  is  in  question.  Any  person  other 
than  a  party  to  a  document  or  his  representative  in  inter- 
est may,  notwithstanding  the  existence  of  any  document, 
prove  any  fact  which  he  is  otherwise  entitled  to  prove  ; ' 
and  any  party  to  any  document  or  any  representative  in 
interest  of  any  such  party  may  prove  any  such  fact  for 
any  purpose  other  than  that  of  varying  or  altering  any 
right  or  liability  depending  upon  the  terms  of  the  docu- 
ment.3 

Illustrations. 

a)  The  question  is,  whether  A,  a  pauper,  is  settled  in  the  parish  of 
Cheadle.  A  deed  of  conveyance  to  which  A  was  a  party  is  produced, 
purporting  to  convey  land  to  A  for  a  valuable  consideration.  The 
parish  appealing  against  the  order  was  allowed  to  call  A  as  a  witness 
to  prove  that  no  consideration  passed.3 

(b)  The  question  is,  whether  A  obtained  money  from  B  under  false 
pretences.  The  money  was  obtained  as  a  premium  for  executing  a 
deed  of  partnership,  which  deed  stated  a  consideration  other  than  the 
one  which  constituted  the  false  pretence.  B  may  give  evidence  of 
the  false  pretence,  although  he  executed  the  deed  mis-stating  the 
consideration  for  the  premium.4 


when  Chancellor  of  Ireland,  in  Hall  v.  Hall,  1  Dru.  &  War.  94,  m- 
133.  See,  too,  Jetwer  v.  Hinch,  L.  R.  5  P.  D.  106.  [See  p.  231,  note  2, 
ante,  and  cases  cited.] 

1  [Gr.  Ev.  i.  §  279;  IVilsoti  v.  Sullivan,  58  N.  H.  260;  Burnham  v. 
Dorr,  72  Me.  198 ;  Fonda  v.  Burton,  63  Vt.  355  ;  Hankinson  v.  Van- 
tine,  152  N.  Y.  20;  First  Nat.  Bk.  v.  Dunn,  55  N.  J.  L.  404  ;  Bruce  v. 
Roper  Co.,  87  Va.  381 ;  Needles  v.  Hani/an,  1 1  111.  App.  303  ;  Pfeifer 
v.  Nat.  Ins.  Co.,  62  Minn.  536,  538  ;  Burns  v.  Thompson,  91  Ind.  146. 
In  a  suit  between  a  party  to  an  instrument  and  a  stranger  to  it,  either 
of  them  may  prove  facts  by  parol  evidence  differing  from  the  contents 
of  the  instrument ;  so  also  may  strangers  to  the  instrument,  in  a  suit 
between  themselves  (Lowell  Mfg.  Co.  v.  Safeguard  Ins.  Co.,  88  N.  Y. 
591 ;  Clapp  v.  Banking  Co.,  50  O.  St.  528  ;  Dunn  v.  Price,  112  Cal.  46). 
And  even  in  a  controversy  between  the  parties,  the  rule  prohibiting 
parol  evidence  may  be  waived.     Brady  v.  Nally,  151  N.  Y.  258.] 

2 [See  Illustration  (/>).] 

3  R.  v.  Cheadle,  3  B.  &  Ad.  833. 

4  R.  v.  Adamson,  2  Moody,  286. 


Y 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  237 


PART   III. 


PRODUCTION   AND    EFFECT  OF 
EVIDENCE. 

CHAPTER  XIII* 
BURDEN  OF  PROOF. 

Article  93.1 
he  who  affirms  must  prove. 

Whoever  desires  any  court  to  give  judgment  as  to  any 
legal  right  or  liability  dependent  on  the  existence  or  non- 
existence of  facts  which  he  asserts  or  denies  to  exist,  must 
prove  that  those  facts  do  or  do  not  exist.1 

Article  94.! 
presumption  of  innocence. 

If  the  commission  of  a  crime  is  directly  in  issue  m  any 
proceeding,  criminal  or  civil,  it  must  be  proved  beyond 
reasonable  doubt.2 


*See  Note  XXXV.  [Appendix].    |See  Note  XXXVI.  [Appendix]. 

1  1  Ph.  Ev.  552;  T.  E.  (from  Greenleaf)  s.  337;  Best,  ss.  265-6; 
Starkie,  585-6.  [Gr.  Ev.  i.  §  74  ;  Wh.  Ev.  i.  §§  353-357  ;  Sawyer  v. 
Child,  68  Vt.  365  ;  Willett  v.  Rich,  142  Mass.  356.] 

3  [In  respect  to  trials  for  crime  this  rule  is  well  settled  {Miles  v.  U.  S., 
103  U.  S.  304  ;  People  v.  Downs,  123  N.  Y.  558  ;  Gardner  v.  State,  55 
N.  J.  L.  17;  Nevling  v.  Com/n.,  98  Pa.  322).  "Beyond  reasonable 
doubt "  is  sometimes  defined  to  mean  the  same  as  "  to  a  moral  certainty" 


238  A  DIGEST  OF  [Part  HI 


The  burden  of  proving  that  any  person  has  been  guilty 


{Comm.  v.  Costley,  1 18  Mass.  I ;  Morgan  v.  State,  48  O.  St.  371 ;  People 
v.  Paulsell,  115  Cal.  6;  Carrv.  State,  23  Neb.  749);  sometimes  as  re- 
quiring evidence  so  convincing  that  reasonable  men  would  unhesi- 
tatingly be  governed  by  it  in  their  most  important  and  serious  interests 
(Hopt  v.  Utah,  120  U.  S.  430 ;  Siberry  v.  State,  133  Ind.  677  ;  Fletcher 
v.  State,  90  Ga.  468);  and  other  definitions  are  given,  not  always  har- 
monious {People  v.  Barker,  153  N.  Y.  1 1 1 ;  Comm.  v.  Mudgett,  174  Pa. 
211;  Little  v.  People,  157  111.  153  ;  People  v.  .£k8r<?,  104  Mich.  341 ;  State 
v.  Rounds,  76  Me.  123  ;  Conun.  v.  Leach,  160  Mass.  542).  Every  con- 
stituent element  of  the  crime  must  be  proved  beyond  reasonable  doubt, 
but  this  is  not  required  as  to  each  evidentiary  fact  ( Wade  v.  State,  71 
Ind.  535  ;  Jamison  v.  People,  145  111.  357  ;  People  v.  Fairchild,  48  Mich. 
31;  Kallock  v.  State,  88  Wis.  663;  Porterfield  v.  Comm.,  91  Ya.  801; 
Clare  v.  People,  9  Col.  122;  cf.  State  v.  Magoon,  68  Vt.  289).  The 
court  should,  if  requested,  charge  the  jury  that  the  law  presumes  a 
person  accused  of  crime  to  be  innocent,  as  well  as  instruct  them  that 
guilt  must  be  proved  beyond  reasonable  doubt  {Coffin  v.  U.  S.,  156 
U.  S.  432 ;  Newsom  v.  State,  107  Ala.  133  ;  cf.  State  v.  Smith,  65  Ct. 
283). 

In  civil  cases,  on  the  contrary,  it  is  the  rule  that  only  a  preponder- 
ance of  evidence  is  required  to  sustain  a  verdict  {Seybolt  v.  N.  Y.  etc. 
R.  Co.,  95  N.  Y.  562  ;  Taylor  v.  Pelsing,  164  111.  331 ;  Hall  v.  WolffM 
la.  559;  Strand  v.  Chicago,  etc.  R.  Co.,  67  Mich.  380),  and  this  rule 
applies  both  to  a  plaintiff  in  proving  his  cause  of  action  {Farmers'  L. 
&=  T.  Co.  v.  Siefke,  144  N.  Y.  355)  and  to  a  defendant  in  establishing  his 
defence  {sEtna  Life  Pis.  Co.  v.  Ward,  140  U.  S.  76;  Phenix  Ins.  Co. 
v.  Picket,  119  Ind.  155).  If  the  evidence  on  the  two  sides  is  in  equi- 
poise, the  verdict  should  be  against  the  party  having  the  general  bur- 
den of  proof  upon  the  issue  {Broult  v.  Hanson,  158  Mass.  17  :  Whit- 
latch  v.  Fidelity,  etc.  Co.,  149  N.  Y.  45  ;  Birmingham  Union  R.  Co.  v. 
Hall,  90  Ala.  8  ;  Rogers  v.  Wallace,  10  Or.  387  ;  Gage  v.  Railway  Co's, 
88  Tenn.  724).  Preponderance  of  evidence  does  not  consist  merely  in 
having  a  greater  number  of  witnesses,  fur  "witnesses  are  to  be  weighed 
and  not  counted  "  {Fengar  v.  Brown,  57  Ct.  60;  State  v.  Mustek,  71  Mo. 
401;  Grant  v.  McPherson,  104  Cal.  165  ;  cf.  Kelley  v.  Brown,  18  R.  I. 
41);  still  if  opposing  witnesses  are  of  equal  credit,  excess  in  number 
may  count  for  much  with  the  court  or  jury  {Kentner  v.  Kline,  41  N.  J. 
Eq.  422  ;  Lillibridge  v.  Barber,  55  Ct.  366  ;  Peters  v.  Canfield,  74  Mich 
498  ;  but  see  Thomas  v.  Paul,  87  Wis.  607  ;  Braunsc hweiger  v .  Waits, 
179  Pa.  47). 

There  is  much  conflict  of  opinion  in  this  country  as  to  which  of  these 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  239 


of  a  crime  or  wrongful  act  is  on  the  person  who  asserts  it, 


rules  applies  in  civil  cases,  where  the  commission  of.  a  crime  is  in  issue. 
A  few  States  have  adopted  the  general  English  rule  {Grimes  v.  Hil- 
liary,  150  111.  141;  Williams  v.  Dickenson,  28  Fla.  go);  but  in  most 
States  only  a  preponderance  of  evidence  is  generally  required  to  prove 
the  crime  {People  v.  Briggs,  114.  N.  Y.  56;  Bairdv.  Abbey,  73  Mich. 
347;  Thoreson  v.  Northwestern  Bis.  Co.,  29  Minn.  107;  Continental 
Bis.  Co.  v./achnichen,  no  Ind.  59;  U.  S.  Express  Co.  v.  Jenkins,  73 
Wis.  471;  Coitv.  Churchill,  61  la.  296;  Smith  v.  Burrus,  106  Mo.  94). 
Thus  in  actions  for  libel  or  slander,  where  the  defendant  pleads  a 
"justification,"  viz.,  that  the  charge  of  crime  he  made  against  the 
plaintiff  was  true,  proof  beyond  a  reasonable  doubt  is  required  in 
some  States  to  support  this  plea  {Fowler  v.  Wallace,  131  Ind.  347; 
Burckhalter  v.  Coward,  16  S.  Car.  435  ;  Merk  v.  Gelzhaeuser,  50  Cal. 
631);  but  in  most  States  only  a  preponderance  of  evidence  is  required 
{Bell  v.  McGuinness,  40  O.  St.  204  ;  Ellis  v.  Buzzell,  60  Me.  209  ;  Fol- 
som  v.  Brawn,  25  N.  H.  1 14  ;  Currier  v.  Richardson,  63  Yt.  617  ;  Lewis 
v.  Skull,  67  Hun,  543  ;  McBee  v.  Fulton,  47  Md.  403  ;  Atlanta  Journal 
v.  Alaysou,  92  Ga.  640;  111.  Rev.  St.  c.  126,  s.  3;  Peoples  v.  Evening 
News,  51  Mich.  1 1 ;  Kidd  v.  Fleek,  47  Wis.  443  ;  Riley  v.  Morton,  65  la. 
306;  Edwards  v.  Knapp,  97  Mo.  432).  In  insurance  cases,  similar  to 
Illustration  {a),  the  great  weight  of  authority  is  against  the  English 
rule,  and  requires  only  a  preponderance  of  evidence  {Blaeser  v.  Mil- 
waukee Ins.  Co.,  37  Wis.  31;  Kane  v.  Hibernia  Bis.  Co.,  39  N.  J.  L. 
697  ;  Rothschild  v.  Amer.  Bis.  Co.,  62  Mo.  356  ;  Behrens  v.  Germania 
Bis.  Co.,  58  la.  26;  Johnson  v.  Agr.  Bis.  Co.,  25  Hun,  251,  and  see  114 
N.  Y.  56  ;  Schmidt  v.  N.  Y.  etc.  Ins.  Co.,  1  Gray,  529,  see  15  Gray,  413  ; 
Somerset  Co.  Ins.  Co.  v.  Usaw,  112  Pa.  80  ;  Hall  v.  Matthews,  118  Ind. 
527  ;  Monaghan  v.  Agr.  Ins.  Co.,  53  Mich.  238);  but  in  a  few  States 
the  English  rule  is  followed  {Germania  Ins.  Co.  v.  Klewer,  129  111.  599 ; 
Schultz  v.  Pacific  Ins.  Co.,  14  Fla.  73).  In  many  other  civil  cases 
involving  a  charge  of  crime,  the  rule  of  preponderance  has  been 
applied  {Roberge  v.  Burnham,  124  Mass.  277  (action  for  sale  of  liquor 
to  minor);  Mead  v.  Husted,  52  Ct.  53,  Kcndig  v.  Overhulser,  58  la.  195 
(action  for  setting  property  on  fire);  Munson  v.  Atwood,  30  Ct.  102 
(action  for  damages,  under  statute,  for  stealing  cattle) ;  Poertner  v. 
Poertner,  66  Wis.  644  (action  for  divorce  on  ground  of  adultery,  which 
is  a  crime  in  Wisconsin  ;  S.  P.  Lindley  v.  Lindley,  68  Vt.  421 ;  Nelson 
v.  Pierce,  18  R.  I.  539 ;  cf.  Allen  v.  Allen,  101  N.  Y.  658);  so  fraud  in 
a  civil  action  requires  only  preponderance  of  evidence,  even  though 
it  also  amounts  to  a  crime  {Jones  v.  Greaves,  26  O.  St.  2  ;  Hough  v. 
Dickinson,  58  Mich.  89;   Turner  v.  Hardin,  80  la.  691;  Bullard  v. 


240  A  DIGEST  OF  [Part  III. 

whether  the  commission  of  such  act  is  or  is  not  directly  in 
issue  in  the  action.1 


Creditors,  56  Cal.  600);  so,  in  most  States,  as  to  proof  of  bastardy  in 
proceedings  against  the  putative  father  {Scmon  v.  People,  42  Mich.  141 ; 
State  v.  Severson,  78  la.  653  ;  Reynolds  v.  State,  115  Ind.  421 ;  Johnson 
v.  People,  140  111.  350;  contra,  Van  Tassel  v.  State,  59  Wis.  351). 

There  are  some  issues  in  civil  actions  or  proceedings  which  require 
more  than  a  mere  preponderance  of  evidence  to  maintain  them.  The 
rule,  as  variously  stated,  declares  that  the  evidence  must  be  "clear, 
unequivocal  and  convincing,"  "clear,  precise  and  indubitable,"  "full, 
clear  and  satisfactory,"  "clear  and  conclusive,"  etc.  Such  an  amount 
or  weight  of  evidence  is  required  to  prove  a  deed  to  be  a  mortgage 
{C adman  v.  Peter,  118  U.  S.  73  ;  Wilson  v.  Parshall,  129  N.  Y.  223; 
Fisher  \.  IVitham,  132  Pa.  488 ;  Cake  v.  Skull,  45  N.  J.  Eq.  208  ;  Blake 
v.  Taylor,  142  111.  482  ;  Tilden  v.  Streeter,  45  Mich.  533) ;  to  reform  a 
deed  or  other  written  instrument  {Simmons  Creek  Coal  Co.  v.  Do  ran, 
142  U.  S.  417  ;  Schwass  v.  Hershey,  125  111.  653;  Phamix  Ins.  Co.  v. 
Ryland,  69  Md.  437  ;  Turner  v.  Shaw,  96  Mo.  22  ;  Boyertoivn  Nat.  Bk. 
v.  Hartman,  147  Pa.  558  ;  Christopher  St.  R.  Co.  v.  23d  St.  R.  Co.,  149 
N.  Y.  51 ;  Green  v.  Stone,  54  N.  J.  Eq.  387  ;  Pulaski  Iron  Co.  v.  Palmer, 
89  Va.  384);  to  establish  a  resulting  trust  (Burdettv.  May,  100  Mo.  13  ; 
Towle  v.  Wadsworth,  147  111.  80  ;  Alurphy  v.  Hanscome,  76  la.  192  ;  cf. 
.  I //fii  v.  Withrow,  no  U.  S.  119);  to  set  aside  a  written  instrument 
for  fraud  or  mistake  ( U.  S.  v.  Budd,  144  U.  S.  154  ;  Cummins  v.  Hurl- 
butt,  92  Pa.  165) ;  to  establish  a  gift  causa  mortis  {Devlin  v.  Green- 
wich Sav.  Bk.,  125  N.  Y.  756;  Barnum  v.  Reed,  136  111.  388);  to  sus- 
tain the  defence  of  usury  {Rosenstein  v.  Fox,  150  N.  Y.  354,  364  ;  Tay- 
lor v.  Morris,  22  N.  J.  Eq.  606 ;  Poppleton  v.  Nelson,  12  Or.  349) ;  to 
impeach  the  certificate  of  acknowledgment  in  a  deed  {Ford  v.  Os- 
•,  45  O.  St.  1 ;  Griffin  v.  Griffin,  125  111.  430 ;  Albany  Co.  Sav.  Bk. 
v.  McCarty,  149  N.  Y.  71 ;  Young  v.  Duvall,  109  U.  S.  573  ;  Lewars  v. 
Weaver,  121  Pa.  268).  It  is  sometimes  said  that  the  evidence  in  these 
cases  must  be  convincing  "beyond  reasonable  doubt"  {First  Prcsb. 
Church  v.  Logan,  jy  la.  326 ;  Bodwell  v.  Heaton,  40  Kan.  36 ;  Stock- 
bridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45  ;  Hupsch  v.  Resch, 
45  N.  J.  Eq.  657  ;  Strauch  v.  Hathaway,  101  111.  11),  but  this  has  been 
held  too  extreme  {Southard  v.  Curlcy,  134  N.  Y.  148).  Evidence  to 
show  a  statute  to  be  unconstitutional  should  be  beyond  reasonable 
doubt.    People  v.  Supervisors,  147  N.  Y.  1.] 

1  [Gr.  Ev.  i.  §§  35,  78-80  ;  Whitney  Arms  Co.  v.  Barlow,  68  N.  Y.  34 ; 
Slocovich  v.  Orient  Ins.  Co.,  108  N.  Y.  56;  Darn's  v.  Darn's,  123  Mass. 
590.     This  rule  will,  in  general,  make  it  necessary  to  prove  a  negative 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  241 

Illustrations. 

(a)  A  sues  B  on  a  policy  of  fire  insurance.  B  pleads  that  A  burned 
down  the  house  insured.  B  must  prove  his  plea  as  fully  as  if  A  were 
being  prosecuted  for  arson.1 

(/>)  A  sues  B  for  damage  done  to  A's  ship  by  inflammable  matter 
loaded  thereon  by  B  without  notice  to  A's  captain.  A  must  prove  the 
absence  of  notice.2 

(c)  The  question  in  1819  is,  whether  A  is  settled  in  the  parish  of  a 
man  to  whom  she  was  married  in  1813.  It  is  proved  that  in  1812  she 
was  married  to  another  person,  who  enlisted  soon  afterwards,  went 
abroad  on  service,  and  had  not  been  heard  of  afterwards.  The  burden 
of  proving  that  the  first  husband  was  alive  at  the  time  of  the  second 
marriage  is  on  the  person  who  asserts  it.3 


proposition,  if  that  is  a  constituent  element  of  the  crime  or  wrongful 
act.     Colorado  Coal  Co.  v.  U.  S.,  123  U.  S.  307  ;  see  Illustration  (b).~\ 

1  Thurlellv.  Beaumont,  1  Bing.  339;  [generally  denied  in  this  coun- 
try ;  see  note  on  p.  239,  supra,  and  10  Am.  Law  Rev.  642,  17  Am.  Law 
Reg.  N.  S.  302  ;   Welch  v.  JugenJieimer,  56  la.  1 1.] 

8  Williams  v.  East  India  Co.,  3  Ea.  102,  198-9.  [Harris  v.  White,  81 
N.  Y.  532,  547 ;  cf.  Boston,  etc.  R.  Co.  v.  Shanly,  107  Mass.  568.J 

3  R.  v.  Twyning,  2  B.  &  A.  386.  [The  ground  of  this  decision  was 
that  the  law  presumes  against  the  commission  of  crime.  The  woman 
was,  therefore,  presumed  innocent  of  bigamy,  though  the  second  mar- 
riage was  only  a  year  after  the  first  and  though  it  would  ordinarily  be 
presumed  that  the  first  husband  was  still  living  (see  Art.  99 ;  also  Art. 
95,  Illustration  i).  The  presumption  of  life  yielded  to  the  presumption 
of  innocence  and  the  person  asserting  her  guilt  of  bigamy  had,  con- 
sequently, the  burden  of  proving  that  the  first  husband  was  alive.  So 
in  this  country  it  is  held  that  the  law,  in  cases  like  this,  in  a  general 
way  prefers  the  presumption  of  innocence  to  that  of  the  continuance 
of  life  (Bishop,  M.  D.  &  S.  i.  §  953  ;  Gr.  Ev.  i.  §  35  ;  Nesbitv.  Nesbit,  3 
Dem.  329 ;  Jolinson  v.  Johnson,  1 14  111.  61 1 ;  Wilkie  v.  Collins,  48  Miss. 
511;  Hunter  v.  Hunter,  1 1 1  Cal.  261 ;  Squire  v.  State,  46  Ind.  459,  see 
86  Ind.  75  ;  Murray  v.  Murray,  6  Or.  17  ;  Dixon  v.  People,  18  Mich. 
84  ;  Kelly  v.  Drew,  12  Allen,  107  ;  cf.  Hyde  Park  v.  Canton,  130  Mass. 
505  ;  Dunlop  v.  U.  S.,  165  U.  S.  486,  503  ;  Howardv.  State,  75  Ala.  27  ; 
People  v.  Strassman,  112  Cal.  683).  So  a  divorce  from  a  prior  marriage 
has  been  presumed  in  order  to  sustain  the  validity  of  a  second  marriage. 
Schmisseurv.  Beatrie,  147  111.  210  ;  Boulden  v.  Mclntire,  1 19  Ind.  574  ; 
Erwin  v.  English,  61  Ct.  502  ;  In  re  Edwards,  58  la.  431;  cf.  Barnes 
v.  Barnes,  90  la.  282  ;  Castor  v.  Davis,  120  Ind.  231 ;  Randlett  v.  Rice, 
141  Mass.  385.] 


242  A  DIGEST  OF  [Part  III. 

Article  95. 

on  whom  the  general  burden  of  proof  lies. 

The  burden  of  proof  in  any  proceeding  lies  at  first  on 
that  party  against  whom  the  judgment  of  the  court 
would  be  given  if  no  evidence  at  all  were  produced  on 
either  side,  regard  being  had  to  any  presumption  which 
may  appear  upon  the  pleadings.1  As  the  proceeding  goes 
on,  the  burden  of  proof  may  be  shifted  from  the  party  on 


1  1  Ph.  Ev.  552  ;  T.  E.  ss.  338-9  ;  Starkie,  586-7  &  748  ;  Best,  s.  263 ; 
and  see  Abrath  v.  N.  E.  Ry.,  1 1  Q.  B.  D.  440,  especially  the  judgment 
of  Bowen,  L.  J.,  455-462.  [Gr.  Ev.  i.  §§  74-82  ;  Veiths  v.  Hagge,  8  la. 
163  ;  Wilder  v.  Cowles,  100  Mass.  487,  490  ;  Heinemann  v.  Heard,  62 
N.  Y.  448  ;  Jones  v.  Jones,  137  N.  Y.  610  ;  Judge  oj Probate  v.  Stone, 
44  N.  H.  593;  Lindley  v.  Sullivan,  133  Ind.  588;  Mc Reynolds  v. 
Burlington,  etc.  R.  Co.,  106  111.  152  ;  Ay.  Mfg.  Co.  v.  Louisville,  97 
Ky.  548.  If  the  defendant  in  an  action  pleads  a  traverse  or  denial 
(either  with  or  without  pleas  by  way  of  confession  and  avoidance, 
counterclaims,  etc.),  and  thus  denies  the  whole  or  any  material  part  of 
the  plaintiff's  claim,  the  plaintiff  has  the  burden  of  proof  at  first, 
for  he  must  prove  what  is  denied  in  order  to  establish  his  cause  of 
action  ;  and  this  is  true  whether  any  material  averment  thus  denied  is 
affirmative  or  negative  in  form  {Roberts  v.  Chittenden,  88  N.  Y.  33  ; 
Lake  Ontario  Bk.  v.  Judson,  122  X.  Y.  278;  Schutz  v.  Jordan,  141 
U.  S.  213  ;  RaJnn  v.  Deeg,  121  Ind.  283  ;  Carpenter  v.  First  Nat.  Bk., 
119  111.  352;  Boston  Relief  Co.  v.  Burnett,  1  Allen,  410;  Button  v. 
Frink,  51  Ct.  342  ;  see  Art.  96,  Illustration  c).  But  where  the  defend- 
ant so  pleads  (as  by  confession  and  avoidance  or  other  affirmative 
defence,  without  a  denial)  as  to  admit  all  the  allegations  of  the  com- 
plaint or  declaration  which  are  essential  to  the  cause  of  action,  the 
burden  of  proof  lies  upon  him,  the  issue  then  being  upon  such  matter 
of  defence  {Murray  v.  X.  Y.  Life  Ins.  Co.,  85  N.  Y.  236  ;  Conselyea  v. 
Swift,  103  X.  Y.  604  ;  Kent  v.  Mason,  79  111.  540  ;  Phenix  Ins.  Co.  v. 
Pickel,  119  Ind.  156;  Bixby  v.  Carskaddon,  70  la.  726;  Clark  v. 
Murphy,  164  Mass.  490);  if,  however,  the  action  is  for  unliquidated 
damages  and  the  defendant  pleads  only  an  affirmative  defence,  it  is 
held  in  a  number  of  our  States  that  the  plaintiff,  if  he  seeks  sub- 
stantial damages,  has  the  burden  of  proof  and  the  right  to  begin, 
since  the  amount  recoverable  is  not  admitted  upon  the  pleadings,  and 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  243 

whom  it  rested  at  first  by  his  proving  facts  which  raise  a 
presumption  in  his  favor.1 


the  plaintiff  must  therefore  prove  his  damages  {Johnson  v.  Josephs, 
75  Me.  544  ;  Dille  v.  Lovell,  37  O.  St.  415  ;  Waiisan  Boom  Co.  v. 
Dunbar,  75  Wis.  133;  Young  v.  Highland,  9  Gratt.  16;  Talhnadge 
v.  Press  Pubg  Co.,  14  N.  Y.  S.  331  ;  but  see  McCoy  v.  McCoy,  106 
Ind.  492).  The  party  having  the  right  to  begin  has  also,  in  general, 
the  right  to  close  the  case  (see  all  the  cases  supra),  but  in  some  States 
the  court  may,  in  its  discretion,  vary  this  order,  if  the  other  side  is  not 
prejudiced  thereby  {Carpenter  v.  First  Nat.  Bk.,  119  111.  352).  In 
Massachusetts  it  is  a  general  rule  that  the  right  to  open  and  close  be- 
longs to  the  plaintiff.    Dorr  v.  Tremont  Nat.  Bk.,  128  Mass.  349,  358.] 

1  [The  general  burden  of  proof  upon  the  main  issue  does  not  really 
shift  from  the  party  upon  whom  it  rests  at  the  beginning,  but  remains 
upon  him  throughout  the  trial  (Gr.  Ev.  i.  74,  n.;  Heincmann  v.  Heard, 
62  N.  Y.  448;  Fanners  L.  &>  T.  Co.  v.  Siefke,  144  N.  Y.  355 ;  Tarbox  v. 
Eastern  Steamboat  Co.,  50  Me.  339  ;  Phipps  v.  Mahon,  141  Mass.  471  ; 
Atkinson  v.  Goodrich  Transp.  Co.,  69  Wis.  5  ;  Scott  v.  Wood,%\  Cal.  398  ; 
Central  Bridge  Corp.  v.  Butler,  2  Gray,  132).  In  criminal  cases  it  re- 
mains on  the  government  throughout  the  trial  {Lilienthal's  Tobacco  v. 
U.  S.,  97  U.  S.  237,  266  ;  Tiffany  v.  Comm.,  121  Pa.  165  ;  People  v.  Mc- 
Whorter,  93  Mich.  641  ;  People  v.  Ribolski,  89  Cal.  493  ;  State  v.  Wingo, 
66  Mo.  181  ;  O'  Connelly.  People,  87  N.  Y.  377).  But  after  such  party  has 
given  evidence,  which,  in  the  absence  of  further  proof,  would  be  suffi- 
cient to  entitle  him  to  recover,  the  other  party  will  then  need  to  give 
evidence  in  rebuttal  or  defence,  whereupon  the  former  may  need  to 
furnish  additional  evidence  to  complete  the  requisite  proof  of  his  alle- 
gations. And  this  successive  transfer  from  one  party  to  the  other  of 
the  obligation  to  submit  evidence  is  what  is  often  called  the  "shifting 
of  the  burden,"  though  in  fact  what  really  takes  place  is  rather  a  shift- 
ing of  the  weight  of  evidence  as  the  trial  progresses  {Lamb  v.  Camden, 
etc.  R.  Co.,  46  N.  Y.  271 ;  Pease  v.  Cole,  53  Ct.  53;  Burnham  v.  Allen,  1 
Gray,  496;  Agneru  v.  U.  S.,  165  U.  S.  36;   Clark  v.  Hills,  67  Tex.  141). 

Sometimes,  upon  the  principle,  res  ipsa  loquitur,  the  party  holding 
the  affirmative  upon  the  issue  can  establish  a  sufficient  prima  facie 
case  by  showing  the  mere  occurrence  of  acts  which  raise  a  presump- 
tion in  his  favor  (Illustration  (_/);  Gleeson  v.  Va.  R.  Co.,  140  U.  S.  435  ; 
Houston  v.  Brush,  66  Vt.  331  ;  Graham  v.  Badger,  164  Mass.  42  ;  Len- 
71011  v.  Rawitzer,  57  Ct.  583  ;  Volkmar  v.  Manhattan  R.  Co.,  134  N.  Y. 
418  ;  Excelsior  Elec.  Co.  v.  Sweet,  57  N.  J.  L.  224  ;  Shafer  v.  Lacock, 
168  Pa.  496;  Howserv.  Cumberland,  etc.  R.  Co.,  80  Md.  146;  Och  v. 
Mo,  etc.  R.  Co.,  130  Mo.  27).     But  ordinarily  he  must  give  sufficient 


244  A  DIGEST  OF  [Part  III. 

Where  there  are  conflicting"  presumptions,  the  case  is 
the  same  as  if  there  were  conflicting  evidence.1 

Illustrations. 

(a)  It  appears  upon  the  pleadings  that  A  is  indorsee  of  a  bill  of  ex- 
change. The  presumption  is  that  the  indorsement  was  for  value,  and 
the  party  interested  in  denying  this  must  prove  it.3 

(ab)  [A,  the  indorsee  of  a  negotiable  instrument,  produces  it  in 
evidence  in  an  action  against  the  maker.  The  presumption  is  that  he 
acquired  it  bona  fide  for  value  before  maturity.  The  defendant  may 
then  prove  that  the  instrument  had  been  lost  or  stolen  before  A 
acquired  it,  or  that  there  was  fraud  or  illegality  in  its  inception.  The 
burden  then  falls  upon  A  to  prove  that  he  obtained  the  instrument  for 
value  before  maturity  and  in  good  faith,  without  knowledge  or  notice 
of  the  facts  impeaching  its  validity.] 3 

(b)  A,  a  married  woman,  is  accused  of  theft  and  pleads  not  guilty. 
The  burden  of  proof  is  on  the  prosecution.     She  is  shown  to  have 

been  in  possession  of  the  stolen  goods  soon  after  the  theft.    The  bur- 
den of  proof  is  shifted  to  A.      She  shows  that  she  stole  them  in  the 


evidence  to  prove  all  the  material  allegations  of  his  case,  regard 
being  had  to  the  different  degrees  of  proof  required  in  civil  and 
criminal  cases.  Comm.  v.  McKie,  I  Gray,  6 1  ;  Cosulich  v.  Standard 
Oil  Co.,  122  N.  Y.  1 1 8  ;  Ba/irv.  Lombard,  53  N.  J.  L.  233  ;  Mixter 
v.  Imperial  Coal  Co.,  152  Pa.  395  ;  Hart  v.  Washington  Club,  157  111. 
9  ;  Doivell  v.  Guthrie,  116  Mo.  646.] 

1  See  Illustration  (/). 

8  Mills  v.  Barber,  1  M.  &  W.  425.  [Harger  v.  Worrall,  69  X.  Y.  370  ; 
Gray's  Admr.  v.  Bk.  of  Kentucky,  29  Pa.  365  ;  Estabrook  v.  Boyle,  1 
Allen,  412  ;  cf.  Smith  v.  Sac  Co.,  11  Wall.  139.] 

:i  [Canajoharie  Nat.  Bk.  v.  DiefendorJ,  123  N.  Y.  191 ;  Smith  x.  Liv- 
ingston,  11 1   Mass.  342  ;  Lerch  Hardware  Co.  v.  First  Xat.  Bk.,  109 

a.  240;  A f c Corker  v.  Banks,  84  Md.  292  ;  Giberson  v./olley,  120  Ind. 
301 ;  Horrigan  v.  Wymant  90  Mich.  121 ;  Bank  of  Montreal  x.  Richter, 
55  Minn.  362  ;  Campbell  x.  Hoff,  129  Mo.  317  ;  cf.  Amer.  Ex.  Xat.  Ilk. 
v.  N.  Y.  Belting  Co  ,  148  N.  Y.  698.  This  is  the  generally  accepted 
rule,  though  a  few  authorities  state  that  ultimately  the  burden  is  on 
defendant  to  show  that  plaintiff  had  notice  of  impeaching  facts,  in- 
-tt  .id  of  on  plaintiff  to  show  that  he  had  no  notice.  Todd  x  Wich 
Bros.,  36  O.  St.  370,  390;  Kellogg  x.  Curtis,  6g  Me  212.] 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  245 

presence  of  her  husband.  The  burden  of  proving  that  she  was  not 
coerced  by  him  is  shifted  on  to  the  prosecutor.1 

(c)  A  is  indicted  for  bigamy.  On  proof  by  the  prosecution  of  the 
first  marriage,  A  proves  that  at  the  time  he-  was  a  minor.  This 
throws  on  the  prosecution  the  burden  of  proving  the  consent  of  A's 
parents.2 

(cc)  [A,  the  owner  of  goods,  sues  B,  a  bailee,  to  whom  he  has 
entrusted  them,  for  the  value  of  the  goods,  on  the  ground  that  they 
have  been  lost  or  injured  through  B's  neglect.  A  establishes  a  prima 
facie  case  of  negligence  by  proving  the  bailment  of  his  goods  and 
that  B,  upon  due  demand  made  by  A  for  their  delivery,  refused  to 
restore  them.  The  duty  then  resting  on  B  to  explain  the  loss  or  de- 
struction, he  shows  that  the  goods  were  taken  by  thieves  or  were 
destroyed  by  fire.  It  then  devolves  upon  A  to  prove  that  such  theft 
or  fire  was  the  result  of  defendant's  negligence.]3 


1  1  Russ.  Cri.  33  ;  2  id.  337.  [The  old  rule  that  the  recent  exclusive 
possession  of  stolen  goods  raises  a  legal  presumption  of  guilt,  is  still 
maintained  in  Missouri  (State  v.  Jennings,  81  Mo.  185  ;  Slate  v.  War- 
ford,  106  Mo.  55).  But  the  rule  now  generally  established  in  this  coun- 
try is  that  such  possession  only  raises  a  presumption  oifact,  or  affords 
prima  facie  evidence  of  guilt,  to  be  considered  by  the  jury,  and  juries 
are  instructed  that  if  the  possession  is  not  satisfactorily  explained,  they 
may  infer  guilt  or  are  authorized  to  find  guilt  (Wilson  v.  U.  S.,  162 
U.S.  613;  Coram,  v.  McGorty,  114  Mass.  299;  Stover  v.  People,  56 
N.  X.  315  ;  People  v.  Weldon,  in  N.  Y.  569 ;  Blaker  v.  State,  130  Ind. 
203  ;  Keating  v.  People,  160  111.  480 ;  State  v.  Richart,  57  la.  215  ;  State 
v.  Hoffman,  53  Kan.  700 ;  Porterfield  v.  Comm.,  91  Va.  801 ;  Orr  v. 
State,  107  Ala.  35  ;  Griffin  v.  State,  86  Ga.  257 ;  Bellamy  v.  State,  35 
Fla.  242  ;  Harper  v.  State,  71  Miss.  202).  Upon  either  theory  the  bur- 
den is  on  the  defendant  to  explain  his  possession.  Some  cases  regard 
the  recent  possession  as  simply  evidence  for  the  jury  tending  to  show 
guilt  (State  v.  Hodge,  50  N.  H.  510;  People  v.  Abbott,  161  Cal.  645). 
Similar  rules  are  generally  applied  in  trials  for  burglary,  arson  and 
like  offences,  but  in  some  States  such  evidence  is  not  deemed  prima 
facie  evidence  of  burglary  as  it  is  of  larceny  (State  v.  Jennings,  79  la. 
513  ;  People  v.  Wood,  99  Mich.  620  ;  Gravely  v.  Comm.,  86  Va.  396). 

As  to  presumed  coercion  of  wife  by  husband,  see  Art.  101,  note.] 

2  7?.  v.  Butler,  1  R.  &  R.  61.  [The  English  Marriage  Act,  then  in 
force,  provided  that  the  marriage  of  a  minor,  without  the  consent  of 
parents,  should  be  "null  and  void."] 

3  \Claflin  v.  Meyer,  75  X.  V.  260  ;    Stewart  v.  Stone,  127  N.  Y.  500; 


246  A  DIGEST  OF  [Part  III. 

(cd)  [When  the  probate  of  a  will  is  contested  on  the  ground  of  the 
alleged  insanity  of  the  testator,  it  is  for  the  proponent  to  establish  a 
prima  facie  case  in  favor  of  the  validity  of  the  will.  This  he  may  do 
by  the  evidence  of  the  subscribing  witnesses  that  the  testator  duly 
executed  the  will  and  was  of  sound  mind,  such  evidence  being  aided 
by  the  usual  presumption  of  sanity.  The  burden  is  then  upon  the 
contestant  to  produce  evidence  that  the  testator  was  of  unsound  mind. 
The  proponent  may  then  give  evidence  in  rebuttal.  The  genera! 
burden  of  proof,  however,  does  not  shift  during  the  trial  but  rests 
upon  the  proponent,  and  if,  when  all  the  evidence  on  both  sides  has 
been  received,  the  court  is  not  satisfied  by  a  preponderance  of  the 
evidence  that  the  testator  was  of  sound  mind,  the  will  should  not  be 
admitted  to  probate.] ' 


Dinsmore  v.  Abbott,  89  Me.  373;  Bus-well  v.  Fuller,  89  Me.  600; 
Willettv.  Rich,  142  Mass.  356  (where  the  goods  were  restored  in  a 
damaged  state);  Cross  v.  Brown,  41  N.  H.  283  ;  Denton  v.  C,  R.  I.  &* 
F.  R.  Co.,  52  la.  161.  But  in  some  States  the  bailee,  explaining  the 
cause  of  loss  or  injury,  must  also  show  that  it  was  not  due  to  his 
negligence  {Funkhouser  v.  Wagner,  62  111.  59  ;  Taussig  v.  Schields, 
26  Mo.  App.  318  ;  Bagley  Elev.  Co.  v.  Amer.  Exp.  Co.,  63  Minn.  142  ; 
cf.  Boies  v.  Hartford,  etc.  R.  Co.,  37  Ct.  272).  Similar  rules  apply  to 
carriers  of  goods  who  are  in  default  as  to  delivery.  Whitworth  v. 
Erie  R.  Co.,  87  N.  Y.  413  ;  Buck  v.  Pa.  R.  Co.,  150  Pa.  170  ;  Boehlv. 
Chicago,  etc.R.  Co.,  44  Minn.  191  ;  Transportation  Co.  v.  Downer,  n 
Wall.  129  ;  Hutchinson  on  Carriers,  2d  ed.,  §§  765-768.] 

1  \Crowninshield  v.  Crowninshield,  2  Gray,  524,  as  modified  by 
Baxter  v.  Abbott,  7  Gray,  71  ;  Matter  of  Flansburgh,  82  Hun,  49; 
Norton  v.  Paxton,  no  Mo.  456;  Prentis  v.  Rates,  93  Mich.  234; 
Chrisman  v.  Chrisman,  16  Or.  127  ;  cf.  Hardy  v.  Merrill,  56  N.  H. 
227;  Johnson  v.  Stivers,  95  Ky.  128.  Some  States,  however,  hold 
that  the  testator's  sanity  is  not  presumed  but  is  solely  a  matter  for 
proof  by  the  proponent  {Robinson  v.  Adams,  62  Me.  369  ;  McMechen 
v.  McMechen,  17  W.  Ya  683,  699;  Layman's  Will,  40  Minn.  371; 
Beazleyv.  Denson,  40  Tex.  416  ;  cf.  Williams  v.  Robinson,  42  Yt.  658). 
Other  States,  on  the  contrary,  hold  that  on  the  production^  the  will 
and  proof  of  its  due  formal  execution,  the  presumption  of  sanity 
(without  proof  thereof)  makes  a  sufficient  prima  facie  case  (Grubbsv. 
McDonald,  91  Pa.  236  ;  Higgins  v.  Carlton,  28  Md.  115;  McCulloch 
v.  Campbell,  49  Ark.  367;  Bamewallv.  Murrell,  108  Ala.  366;  cf. 
Elkinton  v.  Brick,  44  X.  J.  Eq.  154).  In  Illinois,  if  the  evidence  on 
both  sides  as  to  the  testator's  capacity  is  ecmally  balanced,  the  pre- 
sumption of  sanity  still  avails  the  proponent  and  the  will  is  admitted 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  247 

(ce)  [A  is  indicted  for  a  crime  and  pleads  not  guilty.  The  burden  is 
upon  the  prosecution  to  prove  that  he  committed  the  act  charged.  He 
then  gives  evidence  to  show  that  he  was  insane  when  the  act  was 
committed.  The  prosecution  may  then  give  evidence  to  prove  that 
he  was  sane,  and  if  the  entire  evidence  does  not  satisfy  the  jury  of  his 
sanity  beyond  a  reasonable  doubt,  A  must  be  acquitted.]1 


to  probate  ;  the  burden  of  proof  on  the  whole  case  is,  therefore,  said 
to  lie  upon  the  contestant  (Graybeal  v.  Gardner,  146  111.  337;  see 
Barber  s  Appeal,  63  Ct.  393). 

The  burden  of  proof  as  to  undue  influence  is  generally  held  to  lie 
upon  the  contestant,  after  it  has  been  made  to  appear  that  the  will 
was  duly  executed  by  a  person  of  competent  understanding  {Baldwin 
v.  Parker,  99  Mass.  79  ;  Will -of  Martin,  98  N.  Y.  193 ;  Dumont  v. 
Dumonf,  46  N.  J.  Eq.  223;  Webber  v.  Sullivan,  58  la.  260;  Arm- 
strong v.  Armstrong,  63  Wis.  162  ;  Morton  v.  Heidorn,  135  Mo.  608; 
Prentis  v.  Bates,  93  Mich.  234,  245  ;  McMechen  v.  McMechen,  17  W. 
Va.  683  ;  cf.  Freeman  v.  Hamilton,  74  Ga.  317).  But  when  the  contestant 
has  given  evidence  sufficient  to  establish  undue  influence,  the  burden 
of  rebutting  it  lies  on  the  proponent  {Matter  of  Green,  67  Hun,  527; 
Loder  v.Whelpley,  no  N.  Y.  239,  250;  Denning  v.  Butcher,  91  la. 
425,  440).  A  New  York  statute  provides  that,  in  order  that  a  will  may 
be  admitted  to  probate,  it  must  appear  to  the  surrogate  that  it  was 
duly  executed  and  that  the  testator  was  competent  to  make  a  will 
and  not  under  restraint  (Code  Civ.  Pro.  §  2623 ;  see  Matter  of  Mabie, 
5  Misc.  179). 

The  existence  of  a  special  confidential  relation  between  the  testator 
and  a  beneficiary  under  the  will  may  cast  the  burden,  as  to  undue  in- 
fluence or  coercion,  upon  the  proponent.  Will  of  Smith,  95  N.  Y. 
516;  Richmond's  Appeal,  59  Ct.  226;  Miller's  Estate,  179  Pa.  645; 
Henry  v.  Hall,  106  Ala.  84  ;  cf.  Denning  v.  Butcher,  91  la.  425  ;  see 
Art.  97  a.] 

1  [  Walker  v.  People,  88  N.  Y.  81;  People  v.  Nino,  149  N.  Y.  317; 
Davis  v.  U.  S.,  160  U.  S.  469 ;  State  v.  Bartlett,  43  N.  H.  224  ;  Comm. 
v.  Pomeroy  (Mass.)  cited  in  160  U.  S.  483  ;  Plummer  v.  State,  135  Ind. 
308  ;  Lilly  v.  People,  148  111.  467  ;  Revoir  v.  State,  82  Wis.  295  ;  State 
v.  Nixon,  32  Kan.  205;  Furst  v.  State,  31  Neb.  403;  Armstrong  v. 
State,  30  Fla.  170  ;  Ford  v.  State,  73  Miss.  734  ;  King  v.  State,  91  Tenn. 
617  ;  cf.  State  v.  Schweitzer,  57  Ct.  532.  But  in  most  of  the  States  it  is 
the  rule  that  the  defendant,  to  be  acquitted,  must  prove  his  insanity 
by  a  preponderance  of  evidence  [State  v.  Lawrence,  57  Me.  574  ; 
Graves  v.  State,  4;  N.  J.  L.  203  &  347  ;  Comm.  v.  Bezek,  168  Pa.  603 : 
Kclch  v    State,  55  O.  St.  146;   State  v.  Trout,  74  la.  545;    State  v. 


248  A  DIGEST  OF  [Part  III 


(d)  A  deed  of  gift  is  shown  to  have  been  made  by  a  client  to  his 
solicitor.  The  burden  of  proving  that  the  transaction  was  in  good 
faith  is  on  the  solicitor.1 


Grear,  29  Minn.  221;  State  v.  Lewis,  20  Nev.  333;  People  v.  Ward, 
105  Cal.  335  ;  State  v.  Wright,  134  Mo.  404  ;  Boiling  v.  State,  54  Ark. 
588  ;  Moore  v.  Comm.,  92  Ky.  630 ;  Dejarnette  v.  Comm.,  75  Va.  867  ; 
State  v.  Alexander,  30  S.  Car.  74;  Maxwell  v.  State,  89  Ala.  150; 
Keener  v.  State,  97  Ga.  388 ;  Boren  v.  State,  32  Tex.  Cr.  637.  In  a 
few  States  he  is  required  to  prove  his  insanity  beyond  a  reasonable 
doubt  {State  v.  Hansen,  25  Or.  391;  State  v.  Clements,  47  La.  Ann. 
1088). 

As  to  the  defence  of  alibi,  the  burden  is  also  on  the  defendant  to 
produce  evidence  to  prove  it.  In  most  States,  if  upon  such  evidence, 
either  by  itself  {Howard  v.  State,  50  Ind.  190  ;  Wallers  v.  State,  39  O. 
St.  216;  Bennett  v.  State,  30  Tex.  App.  341),  or  in  connection  with  the 
other  evidence  in  the  case,  the  jury  have,  at  the  end  of  the  trial,  a  rea- 
sonable doubt  of  guilt,  they  should  acquit  (Carlton  v.  People,  150  111. 
181;  Comm.  v.  Choate,  105  Mass.  451;  State  v.  Harvey,  131  Mo.  339; 
People  v.  Pong  Ah  Sing,  64  Cal.  253;  Ware  v.  State,  59  Ark.  379; 
Murphy  v.  State,  31  Fla.  166;  State  v.  Conway,  55  Kan.  323;  State  v. 
Stone,  117  N.  Y.  480).  In  a  few  States  the  defendant,  to  be  acquitted, 
must  prove  the  alidiby  a  preponderance  of  evidence  (Stalev.Bcasley, 
84  la.  83;  State  v.  Jackson,1^  S.  Car.  487).  In  still  other  States  the 
rule  is  that  defendant's  evidence  as  to  this  defence  should  preponder- 
ate, but  if  it  does  not,  and  yet,  with  the  other  evidence  in  the  case,  it 
leaves  a  reasonable  doubt  of  guilt,  there  should  be  an  acquittal  (State 
v.  Ward,  61  Vt.  153  ;  Miles  v.  State,  93  Ga.  117  ;  Rudy  v.  Comm.,  128 
Pa.  500  ;  State  v.  Freeman,  100  N.  C.  429;  Prince  v.  State,  100  Ala.  144). 

So  as  to  evidence  to  show  self-defence,  the  accused  is  entitled  to  the 
benefit  of  a  reasonable  doubt  (Plummer  v.  State,  135  Ind.  308  ;  State 
v.  Donahoe,  78  la.  486;  Hubbard  v.  State,  37  Fla.  156;  People  v. 
Coughlin,  65  Mich.  704;  People  v.  Riordan,  117  N.  Y.  71;  Tiffany  v. 
Comm.,  121  Pa.  165;  Miller  v.  State,  107  Ala.  40 ;  State  v.  Wingo,  66 
Mo.  181);  but  in  a  few  States  such  evidence,  adduced  by  the  defend- 
ant, must  preponderate  (Stale  v.  fones,  20  \V.  Va.  764  ;  Weaver  v. 
State,  24  O.  St.  584). 

In  some  States  it  is  held  that  upon  all  matters  of  defence,  the  ac- 
cused is  entitled  to  the  benefit  of  a  reasonable  doubt.  People  v.  Rior- 
dan, 1 17  N.  V.  71 ;  Gravely  v.  State,  38  Neb.  873  ;  People  v.  Boling,  83 
Cal.  380 ;  State  v.  Schweitzer,  57  Ct.  532  ;  People  v.  Coughlin,  65  Mich. 
704.] 

1  1  Story,  Eq.  Juris.,  s.  310,  n.  1,  quoting  Hunter  v.  Atkins,  3  M.  & 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  249 

(if)  It  is  shown  that  a  hedge  stands  on  A's  land.  The  burden  of 
proving  that  the  ditch  adjacent  to  it  is  not  A's  also  is  on  the  person 
who  denies  that  the  ditch  belongs  to  A.1 

(/)  A  proves  that  he  received  the  rent  of  land.  The  presumption 
is  that  he  is  owner  in  fee  simple,  and  the  burden  of  proof  is  on  the 
person  who  denies  it.'2 

(g)  A  finds  a  jewel  mounted  in  a  socket,  and  gives  it  to  B  to  look  at. 
B  keeps  it,  and  refuses  to  produce  it  on  notice,  but  returns  the  socket. 
The  burden  of  proving  that  it  is  not  as  valuable  a  stone  of  the  kind  as 
would  go  in  the  socket  is  on  B.3 

(/z)  A  sues  B  on  a  policy  of  insurance,  and  shows  that  the  vessel 
insured  went  to  sea,  and  that  after  a  reasonable  time  no  tidings  of  her 
have  been  received,  but  that  her  loss  has  been  rumored.  The  burden 
of  proving  that  she  has  not  foundered  is  on  B.4 

(z)  Z  in  1864  married  A.  In  1868  he  was  convicted  of  bigamy  in 
having  in  1868  married  B  during  the  life  of  A.  In  1879  ne  married  C. 
In  1880,  C  being  alive,  he  married  D,  and  was  prosecuted  for  bigamy 
in  marrying  D  in  the  lifetime  of  C.  The  prisoner  on  his  second  trial 
proved  the  first  conviction,  thereby  proving  that  A  was  living  in  1868. 
No  further  evidence  was  given.  A's  being  alive  in  1868  raises  a 
presumption  that  she  was  living  in  1879.  Z's  marriage  to  C  in  1879, 
being  presumably  innocent,  raises  a  presumption  that  A  was  then 
dead.  The  inference  [z.  <?.,  whether  A  was  alive  when  Z  married  C] 
ought  to  have  been  left  to  the  jury.5 

(J)  [While  A  was  passing  along  the  street  in  front  of  the  shop  of  B, 
a  dealer  in  flour,  a  barrel  of  flour  fell  from  an  upper  window  of  the 
shop  and  striking  A  knocked  him  down  and  injured  him.     In  an  action 


K.  113.     [  Whitehead  v.  Kennedy,  69  N.  Y.  462 ;  Dunn  v.  Record,  63 
Me.  17  ;  Cuthbertsori s  Appeal,  97  Pa.  163  ;  see  Art.  97  A,  post.] 

1  Guy  v.  West,  Selw.  N.  P.  1297. 

2  Doe  v.  Coulthred,  7  A.  &  E.  235.  [Burt  v.  Panjaud,  99  U.  S.  180  ; 
cf.  Linthicum  v.  Ray,  9  Wall.  241.] 

3  Armoury  v.  Delamirie,  1  S.  L.  C.  357.  [Gr.  Ev.  i.  §  37  ;  Clark  v. 
Miller,  4  Wend.  628;  McCown  v.  Quigtey,  147  Pa.  307;  but  see 
Berney  v.  Dinsmore,  141  Mass.  42.] 

4  Koster  v.  Reed,  6  B.  &  C.  19.  [See  Gordon  v.  Bowne,  2  Johns.  150  ; 
Berwind  v.  Greenwich  Ins.  Co.,  114  N.  Y.  231.] 

5  R.  v.  If  rillshire,  6  Q.  B.  D.  366.  [See  Comm.  v.  McGrath,  140  Mass. 
296;  Parker  v.  State,  77  Ala.  47 ;  State  v.  Plym,  43  Minn.  385 ;  Williams 
v.  Williams,6$  Wis.  58;  Art.94.rt7/zV,  Illustration  (c);  p  262, post,  note.] 


250  A  DIGEST  OF  [Pakt  III. 
£. 

by  A  against  B,  A  proved  only  the  fact  of  the  injury,  and  this  was  held 
sufficient  to  establish  -a  prima  facie  case  of  negligence  against  B,  so 
that  A  might  recover  in  the  absence  of  opposing  evidence.]1 


'ARTICLE    0,6. 
BURDEN   OF   PROOF   AS   TO   PARTICULAR   FACT. 

The  burden  of  proof  as  to  any  particular  fact  lies  on  that 
person  who  wishes  the  court  to  believe  in  its  existence, 
unless  it  is  provided  by  any  law  that  the  burden  of  prov- 
ing that  fact  shall  lie  on  any  particular  person  ; 3  but  the 
burden  may  in  the  course  of  a  case  be  shifted  from  one 


'  [Byrne  v.  Boadle,  2  H.  &  C.  722  ;  see  Scott  v.  Lo7idon,  etc.  Docks 
Co.,  3  id.  596  (fall  of  bags  of  sugar  from  warehouse);  Kearney  v.  Lon- 
don, etc.  ft.  Co.,  L.  R.  5  Q.  B.  411,  6  id.  759  (fall  of  brick  from  bridge 
over  highway);  Hogan  v.  Manhattan  R.  Co.,  149  N.  Y.  23  (fall  of 
piece  of  iron  from  elevated  railway);  Mullen  v.  St.  John,  57  N.  Y. 
567  (fall  of  building  into  highway);  Breen  v.  N.  Y.  C.  R.  Co.,  109  N.  Y. 
297  (injury  to  passenger  by  swinging  door  on  train);  Uggla  v.  West 
End R.  Co.,  160  Mass.  351  (fall  of  electric  railway  apparatus):  Sheri- 
dan v.Foley,  58  N.J.  L.  230  (fall  of  bricks  from  scaffold  or  hod); 
Treadwell  v.  Whittier,  80  Cal.  574  (fall  of  elevator);  cf.  Huey  v. 
Gahlenbeck,  121  Pa.  238.  The  maxim  res  ipsa  loquitur  is  frequently 
applied  to  cases  of  injury  by  carriers,  especially  railroad  companies, 
to  goods  or  passengers,  as  by  collision,  derailment  of  cars,  etc.  {Buck 
v.  Pa.  R.  Co.,  150  Pa.  170;  Bush  v.  Barrett,  96  Cal.  203;  Mont- 
gomery, etc.  R.  Co.  v.  Mallett,  92  Ala.  209  ;  Hutchinson  on  Carriers, 
2d  ed.  §§  798-801).  Oftentimes  they  are  made  subject  to  this  rule  by 
statute.  Louisville,  etc.  R.  Co.  v.  Spencer,  149  111.  97  ;  Chicago,  etc. 
R.  Co.  v.  Mc Bride,  54  Kan.  172.] 

2  For  instances  of  such  provisions  see  T.  E.  ss.  345-6-  \_Perley  v. 
Perley,  144  Mass.  104  ;  Fanners'  L.  &•  T.  Co.  v.  Siefke,  144  N.  Y.  354; 
Phenix  Ins.  Co.  v.  Picket,  1 19  Ind.  155.  Thus  the  defendant  must  prove 
any  affirmative  defences  which  he  sets  up,  as  payment,  usury,  fraud, 
illegality,  etc.  {Noble  v.  Fagnant,  162  Mass.  275  ;  Spencer  v.  Citizens 
Ins.  Co.,  142  X.  Y.  505;  Rosenstein  v.  Fox,  150  N.  Y.  354,  364; 
Haughwout  v.  Garrison,  69  X.  Y.  339  ;  Godfrey  v.  Crisler,  121  Ind. 
203;  .Etna  Life  Ins.  Co.  v.  Ward,  140  U.  S.  76.] 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  251 

side  to  the  other,  and  in  considering  the  amount  of  evi- 
dence necessary  to  shift  the  burden  of  proof,  the  court 
has  regard  to  the  opportunities  of  knowledge  with  re- 
spect to  the  fact  to  be  proved  which  may  be  possessed  by 
the  parties  respectively.1 

Illustrations. 

(a)  A  prosecutes  B  for  theft,  and  wishes  the  court  to  believe  that  B 
admitted  the  theft  to  C.    A  must  prove  the  admission. 

B  wishes  the  court  to  believe  that,  at  the  time  in  question,  he  was 
elsewhere.     He  must  prove  it.'2 

(aa)  [A  sues  B  for  negligence  causing  damage.  The  burden  of 
proving  B's  negligence  rests  upon  A,  but  A  need  not  prove  the  absence 
on  his  own  part  of  contributory  negligence  ;  such  negligence  of  A  is 
to  be  proved  by  B  as  matter  of  defence,  unless,  indeed,  it  has  been 
already  sufficiently  disclosed  by  A's  evidence.]3 

(b)  A,  a  shipowner,  sues  B,  an  underwriter,  on  a  policy  of  insurance 


1  [Harris  v.  White,  81  N.  Y.  532,  547,  548  ;  Selma,  etc.  R.  Co.  v.  U.  S., 
139  U.  S.  560  ;  Greeley  v.  Passaic,  42  N.  J.  L.  87  ;  State  v.  Hathaway, 
115  Mo.  36  ;  Robinson  v.  Robinson,  51  111.  App.  317.  Thus  it  is  held 
that  in  proceedings  against  a  person  who  has  been  selling  liquor, 
exercising  a  trade  or  profession,  or  doing  other  acts,  without  having 
the  license  prescribed  by  law,  the  burden  is  on  him  to  prove  that  he 
has  a  license,  not  on  the  prosecutor  to  prove  the  want  of  a  license. 
U.  S.  v.  Nelson,  29  F.  R.  202  ;  State  v.  Nulty,  57  Vt.  543  ;  Mass.  Pub. 
St.  c.  214,  s.  12  ;  Comm.  v.  Tozule,  138  Mass.  490 ;  State  v.  Higgins,  13 
R.  I.  330 ;  People  v.  Maxwell,  83  Hun,  157  ;  People  v.  Fulda,  52  Hun, 
65  ;  Plainfieldw.  Watson,  57  N.  J.  L.  525  ;  People  v.  Nedrow,  16  111. 
App.  192  ;  State  v.  Ahem,  54  Minn.  195  ;  St  Louis  v.  Weitzel,  130  Mo. 
600  ;  Evans  v.  State,  54  Ark.  227  ;  State  v.  Emery,  98  N.  C.  668  ;  Infor- 
mation  ag'st  Oliver,  21  S.  Car.  318  ;  cf.  People  v.  Cannon,  139  N.  Y. 
32,  46  ;  contra,  Hepler  v.  State,  58  Wis.  46  ;  State  v.  Kiihuke,  26  Kan. 
405.] 

2  [See  p.  248,  note.] 

8  [This  is  the  rule  in  a  majority  of  the  States  {Indianapolis,  etc.  R. 
Co.  v.  Horst,  93  U.  S.  291;  N.  J.  Exp.  Co.  v.  Nichols,  33  N.  J.  L.  434  ; 
Sopherstein  v.' Bertels,  178  Pa.  401 ;  State  v.  Bait.  &>  P.  R.  Co.,  58  Md. 
482  ;  Gill  v.  Homrighousen,  79  Wis.  634  ;  Lorimer  v.  St.  Paul  Ry.  Co., 
48  Minn.  391;  St.  Louis,  etc.  R.  Co.  v.  Weaver,  35  Kan.  412;  Omaha 
R.  Co.  v.  Martin,  48  Neb.  66  ;  MacDougall  v.  Central  R.  Co.,  63  Cal. 
431 ;  Moffatt  v.  Tenney,  ij  Col.  189  ;  Ford  v.  Umatilla  Co.,  15  Or.  313 ; 


252  A  DIGEST  OF  [Part  III. 

on  a  ship.  B  alleges  that  A  knew  of  and  concealed  from  B  material 
facts.  B  must  give  enough  evidence  to  throw  upon  A  the  burden  of 
disproving  his  knowledge;  but  slight  evidence  will  suffice  for  this 
purpose.1 

(c)  In  an  action  for  malicious  prosecution  the  plaintiff  must  prove 
( i )  his  innocence  ;  (2)  want  of  reasonable  and  probable  cause  for  the 
prosecution  ;  (3)  malice  or  indirect  motive  ;  and  he  must  prove  all 
that  is  necessary  to  establish  each  proposition  sufficiently  to  throw  the 
burden  of  disproving  that  proposition  on  the  other  side.8 

{</)  In  actions  for  penalties  under  the  old  game  laws,  though  the 
plaintiff  had  to  aver  that  the  defendant  was  not  duly  qualified,  and 
was  obliged  to  give  general  evidence  that  he  was  not,  the  burden  of 
proving  any  definite  qualification  was  on  the  defendant.3 


Gordon  v.  Richmond,  83  Va.  436 ;  Comer  v.  Coal,  etc.  Co.,  34  W.  Va. 
533  '<  Jordafi  v.  Asheville,  112  N.  C.  743  ;  Donahue  v.  Railroad  Co., 
32  S.  Car.  299 ;  Cahill  v.  Cincinnati  R.  Co.,  92  Ky.  345  ;  Stewart  v. 
Nashville,  96  Tenn.  50 ;  Jones  v.  Malvern  Co.,  58  Ark.  125  ;  Hudson  v. 
Wabash,  etc.  Ry.  Co.,  101  Mo.  13;  McDonald 'v.  Montgomery  R.  Co., 
1 10  Ala.  162  ;  Gulf,  etc.  R.  Co.  v.  Shieder,  88  Tex.  152).  But  in  some 
States  A  must  prove  B's  negligence  and  that  he  was  not  himself  guilty 
of  contributory  negligence.  Benson  v.  Titcomb,J2  Me.  31;  Boveev. 
Danville,  53  Vt.  183  ;  Mayo  v.  B.  &*  M.  R.  Co.,  104  Mass.  137 ;  Ryan 
v.  Bristol,  63  Ct.  26 ;  Whalen  v.  Citizens'1  Gas  Co.,  151  N.  Y.  70  ;  Thomas 
v.  Hoosier  Co.,  140  Ind.  518 ;  Chicago,  etc.  R.  Co.  v.  Levy,  160  111.  355  ; 
Denman  v.  Johnston,  85  Mich.  387  ;  Gamble  v.  Muffin,  74  la.  99.] 

1  Elkin  v.Janson,  13  M.  &  W.  655.  See,  especially,  the  judgment  of 
Alderson,  B.,  663-6.  [See  Insurance  Co.  v.  Folsom,  18  Wall.  237; 
Fiske  v.  New  Eng.  Ins.  Co.,  15  Pick.  310;  Livingston  v.  Dclajield,  3 
Cai.  49.  It  is  a  general  rule  that  in  proving  a  negative  averment, 
plenary  proof  is  not  required.  Gr.  Ev.  i.  §  78  ;  State  v.  Foster,  23  N. 
H.  348;  Schmisseur  v.  Beatrie,  itf  111.  210;  but  see  Colorado  Coal 
Co.  v.  U.  S.,  123  U.  S.  307,  318.] 

- .  lb  rath  v.  North  Eastern  Ry.,  11  Q.  B.  D.  441.  [Good  v.  French, 
1 1 5  Mass.  201 ;  Anderson  v.  How,  116  N.  Y.  336 ;  McClaJJerty  v.  Philp, 
151  Pa.  86.  Plaintiff's  innocence  is  shown  by  proving  the  termination 
of  the  alleged  malicious  proceeding  in  his  favor.  O'Brien  v.  Barry, 
106  Mass.  300;  Bobbins  v.  Robbins,  133  N.  Y.  597.] 

3 1  Ph.  Ev.  556,  and  cases  there  quoted.  The  illustration  is  founded 
more  particularly  on  R.  v.  Jarvis,  in  a  note  to  R.  v.  Stone,  1  Ea.  639, 
where  Lord  Mansfield's  language  appears  to  imply  what  is  stated 
above.  [See  Potter  v.  Dcyo,  19  Wend.  361;  Bliss  v.  Brainard,  41 
N.  H.  256.] 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  253 


Article  97. 

burden  of  proving  fact  to  be  proved  to  make 
evidence  admissible. 

The  burden  of  proving  any  fact  necessary  to  be  proved 
in  order  to  enable  any  person  to  give  evidence  of  any  other 
fact  is  on  the  person  who  wishes  to  give  such  evidence. 

Illustrations. 

{a)  A  wishes  to  prove  a  dying  declaration  by  B. 

A  must  prove  B's  death,  and  the  fact  that  he  had  given  up  all  hope 
of  life  when  he  made  the  statement.1 

(b)  A  wishes  to  prove,  by  secondary  evidence,  the  contents  of  a  lost 
document. 

A  must  prove  that  the  document  has  been  lost.2 


Article  97  a. 

burden  of  proof  when  parties  stand  in  a  fiduciary 
relation. 

When  persons  stand  in  a  relation  to  each  other  of  such 
a  nature  that  the  one  reposes  confidence  in  the  other,  or 
is  placed  by  circumstances  under  his  authority,  control  or 
influence,  when  the  question  is  as  to  the  validity  of  any 
transaction  between  them  from  which  the  person  in  whom 
confidence  is  reposed  or  in  whom  authority  or  influence 
is  vested  derives  advantage,  the  burden  of  proving  that 
the  confidence,  authority  or  influence  was  not  abused,  and 
that  the  transaction  was  in  good  faith  and  valid,  is  on  the 
person  in  whom  such  confidence  or  authority  or  influence 
is  vested,  and  the  nature  and  amount  of  the  evidence  re- 


1  [See  Art.  26,  ante.] 

2  [See  Art.  71,  ante;   Grimes  v.  miliary,  150  111.  141;  Hansen  v. 
Amer.  Ins.  Co.,  57  la.  741.] 


>54  A  DIGEST  OF  [Part  III. 


quired  for  this  purpose  depends  upon  the  nature  of  the 
confidence  or  authority,  and  on  the  character  of  the  trans- 
action.1 


1  See  Story's  Equity,  §  307  and  following  ;  also  Taylor  on  Evidence, 
s.  129  and  following.  The  illustrations  of  the  principle  are  innumer- 
able and  very  various.  [See  Pomeroy's  Eq.  Jur.,  §§  943-963.  Such 
confidential  relations  exist  between  trustee  and  cestui  que  trust,  attor- 
ney and  client,  physician  and  patient,  priest  and  penitent,  parent  and 
child,  guardian  and  ward,  husband  and  wife,  partner  and  co-partner, 
principal  and  surety,  principal  and  agent,  and  generally  where  per- 
sons are  associated  together  in  some  special  relation  of  trust  and  con- 
fidence. The  trustee,  attorney,  etc.,  must  prove  that  in  dealings  with 
the  other,  beneficial  to  himself,  he  took  no  advantage  but  exercised 
entire  good  faith  (Darlington's  Estate,  147  Pa.  624  ;  Barnard  v.  Gantz, 
140  N.  Y.  249;  Roby  v.  Colehour,  135  111.  300).  For  cases  of  attorney 
and  client,  see  Morrison  v.  Smith,  130  111.  305  ;  Porter  v.  Bergen,  54 
N.  J.  Eq.  405  ;  Burnham  v.  Heselton,  82  Me.  495  ;  Whipple  v.  Barton, 
63  N.  H.  613  ;  Tancre  v.  Reynolds,  35  Minn.  476  ;  Art.  95,  atite,  Illus- 
tration (d);  of  parent  and  child,  White  v.  Ross,  160  111.  56;  Clark  v. 
Clark,  174  Pa.  309 ;  of  guardian  and  ward,  Gillettv.  Wiley,  126  111.  310 ; 
McConkcy  v,  Cockey,  69  Md.  286 ;  of  priest  and  confiding  parishioner, 
Pirofii  v.  Corrigan,  47  N.  J.  Eq.  135  ;  Marx  v.  McGlytin,  88  N.  Y.  357  ; 
of  physician  and  patient,  Bogie  v.  Nolan,  96  Mo.  86  ;  of  business  ad- 
viser and  aged  or  feeble-minded  person  relying  upon  him,  Green  v. 
Roworth,  1 13  N.  Y.  462  ;  Zimmerman  v.  Bitner,  79  Md.  115;  Gates  v. 
Cornell,  72  Mich.  420  ;  Mott  v.  Mott,  49  N.  J.  Eq.  192  ;  Hall  v.  Knap- 
peftberger,  97  Mo.  509 ;  Stepp  v.  Framplon,  179  Pa.  284. J 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  255 


CHAPTER  XIV. 

ON  PRESUMPTIONS  AND  ESTOPPELS.* 

Article  98. 
presumption  of  legitimacy. 

The  fact  that  any  person  was  born  during  the  continu- 
ance of  a  valid  marriage  between  his  mother  and  any 
man,  or  within  such  a  time  after  the  dissolution  thereof 
and  before  the  celebration  of  another  valid  marriage, 
that  his  mother's  husband  could  have  been  his  father,  is 
conclusive  proof  that  he  is  the  legitimate  child  of  his 
mother's  husband,  unless  it  can  be  shown 

either  that  his  mother  and  her  husband  had  no  access 
to  each  other  at  any  time  when  he  could  have  been  be- 
gotten, regard  being  had  both  to  the  date  of  the  birth 
and  to  the  physical  condition  of  the  husband, 

or  that  the  circumstances  of  their  access  (if  any)  were 
such  as  to  render  it  highly  improbable  that  sexual  inter- 
course took  place  between  them  when  it  occurred.1 


*  See  Note  XXXV.  [Appendix]. 
1  [The  presumption  of  legitimacy,  it  is  said,  "  can  only  be  rebutted 
by  the  most  satisfactory  and  convincing  proof  that  the  husband  was 
not  the  father  of  the  child,"  or,  as  a  number  of  the  cases  express  it, 
"  by  proof  beyond  a  reasonable  doubt  "  (Gr.  Ev.  i.§  28,  ii.  §§  150-153  ; 
Cross  v.  Cross,  3  Pai.  139  ;    Van  Aerncuu  v.  Van  At  r nam,  1  Barb.  Ch. 
375  ;  Phillips  v.  Allen,  2  Allen,  453;  Egbert  v.  Greenwalt,  44  Mich. 
245  ;    Patterson  v.  Gaines,  6  How.  (U.  S.)  550  ;    Scanlon  v.  Walshe,  8 
Md.  118;    State  v.  Lavin,  80  la.  555  ;    Bullock  v.  Knox,  96  Ala.  195 
Grant  v.  Mitchell,  83  Me.  23  ;    Wilson  v.  Babb,  18  S.  Car.  59  ;  Scott  v. 
Hillenberg,  85  Va.  245  ;     Watts  v.  Owens,  62  Wis.  512  ;    Goss  v.  Pro- 
man,  89  Ky.  318  ;  Pittsford  v.  Chittenden,  58  Vt.  49 ;  see  N.  Y.  Rev.  St. 
i.642).     Legitimacy  will  be  presumed,  even  in  the  absence  of  proof 


256  A  DIGEST  OF  [Part  III. 

Neither  the  mother  nor  the  husband  is  a  competent 
witness'  as  to  the  fact  of  their  having  or  not  having  had 
sexual  intercourse  with  each  other,2  nor  arc  any  declara- 
tions by  them  upon  that  subject  deemed  to  be  relevant 
facts  when  the  legitimacy  of  the  woman's  child  is  in 
question,3  whether  the  mother  or  her  husband  can  be 
called  as  a  witness  or  not,  provided  that  in  applications  for 
affiliation  orders  when  proof  has  been  given  of  the  non- 
access  of  the  husband  at  any  time  when  his  wife's  child 
could  have  been  begotten,  the  wife  may  give  evidence4 
as  to  the  person  by  whom  it  was  begotten.5       Letters 


that  the  child's  parents  were  married  ;  such  former  marriage  will  be 
assumed  until  contrary  proof  is  given.  Matter  of  Matthews,  153 
N.  Y.  443-] 

1  [Boykin  v.  Boy  kin,  70  N.  C.  262  ;  People  v.  Court  of  Sessions,  45 
Hun,  54;  Abington  v.  Dnxbury,  105  Mass.  287;  Tioga  Co.  v.  South 
Creek  T'p,  75  Pa.  433  ;  Mink  v.  State,  60  Wis.  583 ;  Burnaby  v. 
Baillic,  42  Ch.  D.  282.  But  in  cases  between  third  parties  husband 
and  wife  may  testify  as  to  the  time  of  their  marriage,  the  time  of  a 
child's  birth,  and  any  other  independent  facts  affecting  the  question 
of  legitimacy.    Janes' s  Estate,  147  Pa.  527.J 

'2[Here  Mr.  Stephen  inserts  a  special  statutory  qualification  of  the 
English  law  (32  &  33  Vict.  c.  68,  s.  3),  viz., — "unless  the  proceedings 
in  the  course  of  which  the  question  arises  are  proceedings  instituted 
in  consequence  of  adultery."] 

i[Hemmen,way  v.  Towner,  1  Allen,  209;  Shuman  v.  Shuman,  83 
Wis.  250;  Dennison  v.  Page,  29  Pa.  420;  Bowles  v.  Bingham,  2 
Munf.  442.  But  their  conduct  and  declarations,  forming  part  of  the 
res  gesta,  and  thus  tending  to  show  what  relations  they  maintained 
towards  each  other,  their  recognition  of  the  child's  illegitimacy,  etc., 
may  be  proved  {Aylesford  Peerage  Case,  11  App.  Cas.  1  ;  Gossv. 
Pro/nan,  89  Ky.  318;  see  Janes' s  list, r/e,  147  Pa.  527,  531);  and  the 
same  has  been  held  as  to  the  declarations  of  the  wife's  alleged 
paramour  that  the  child  was  his.  Burnaby  v.  Baillie,  42  Ch  D.  282  ; 
but  see  Grant  v.  Mitchell,  83  Me.  23;  Montgomery  v .  Montgomery, 
3  Barb.  Ch.  132  ;  Sean/on  v.  II 'a/she,  81  Md.  118.] 

4  [Gr.  Ev.  i.  S,  344;  State  v.  McDowell,  101  N.  C.  734;  People  v. 
Overseers,  etc.,  15  Barb.  286;  Comm.  v.  Shepherd,  6  Binn.  283; 
cf.  Cuppy  v.  State,  24  Ind.  389;   Powers  v.  Wood,  143  Mass.  182.] 

R.  v.  Luffe,  8  Ea.  207  ;  Cope  v.  Cope,  1  Mo.  &  Ro.  272-4  ;  Legge  v. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  257 

written  by  the  mother  may,  as  part  of  the  res  gestce.  be 
admissible  evidence  to  show  illegitimacy,  though  the 
mother  could  not  be  called  as  a  witness  to  prove  the 
statements  contained  in  such  letters.1 

Article  99. 
presumption  of  death  from  seven  years*  absence. 

A  person  shown  not  to  have  been  heard  of  for  seven 
years  by  those  (if  any)  who  if  he  had  been  alive  would 
naturally  have  heard  of  him,  is  presumed  to  be  dead,  un- 
less the  circumstances  of  the  case  are  such  as  to  account 
for  his  not  being  heard  of  without  assuming  his  death ; 
but  there  is  no  presumption  as  to  the  time  when  he  died, 
and  the  burden  of  proving  his  death  at  any  particular 
time  is  upon  the  person  who  asserts  it.2 


Edmonds,  25  L.  J.  Eq.  125,  see  p.  135  ;  P.  v.  Mansfield,  1  Q.  B.  444; 
Morris  v.  Dairies,  3  C.  &  P.  215.  See,  as  an  illustration  of  these 
principles,  Hawes  v.  Draeger,  23  Ch.  D.  173.  [These  cases  are 
cited  by  Mr.  Stephen  as  authorities  upon  this  whole  Article.]  I  am 
not  aware  of  any  decision  as  to  the  paternity  of  a  child  born  say  six 
months  after  the  death  of  one  husband,  and  three  months  after  the 
mother's  marriage  to  another  husband.  Amongst  common  soldiers  in 
India  such  a  question  might  easily  arise.  The  rule  in  European 
regiments  is  that  a  widow  not  remarried  within  the  year  (it  used  to 
be  six  months)  must  leave  the  regiment :  the  result  was  and  is 
that  widowhoods  are  usually  very  short.  [In  a  recent  American  case 
it  appeared  that  a  child  was  born  seven  months  after  the  mother  was 
divorced  from  her  first  husband  and  four  months  and  twenty-one 
days  after  her  marriage  to  a  second  husband.  The  child  being  fully 
developed  at  birth  was  held  to  be  the  offspring  of  the  first  husband. 
Shuman  v.  Hurd,  79  Wis.  656 ;  Shuman  v.  Shuman,  83  Wis.  250 ;  cf. 
Drennan  v.  Douglas,  102  111.  341.] 

1  Aylesford  Peerage  Case,  11  App.  Cas.  1,  in  which  the  general  rule 
stated  above  is  considered  and  affirmed.     [See  note  3,  supra.] 

'•'  McMahon  v.  McElroy,  5  Ir.  Rep.  Eq.  1  ;  Hopewell  v.  De  Pinna,  2 
Camp.  113 ;  Nepean  v.  Doe,  2  S.  L.  C.  562, 681 ;  Nepean  v.  Knight,  2  M. 
&  W.  894,  912  ;  P.  v.  Lumley,  L.  R.  1  C.  C.  R.  196  ;  and  see  the  caution 
of  Lord  Denman  in  P.  v.  Harborne,  2  A.  &  E.  544.    All  the  cases  are 


2S8  A  DIGEST  OF  [Part  III 

There  is  no  presumption  as  to  the  age  at  which  a  per- 
son died  who  is  shown  to  have  been  alive  at  a  given 
time,  or  as  to  the  order  in  which  two  or  more  persons 
died  who  are  shown  to  have  died  in  the  same  accident, 
shipwreck,  or  battle." 


collected  and  considered  in  In  re  Pheni's  Trust,  L.  R.  5  Ch.  App.  139. 
The  doctrine  is  also  much  discussed  in  Prudential  Assurance  Com- 
pany v.  Edmonds,  2  App.  Cas.  487.  The  principle  is  stated  to 
the  same  effect  as  in  the  text  in  Re  Corbishley's  Trusts,  14  Ch.  D.  846. 
[Gr.  Ev.  i.  §  41  ;  Davie  v.  Briggs,  97  U.  S.  628  ;  Johnson  v.  Merithew, 
80  Me.  in  ;  Winship  v.  Conner,  42  N.  H.  341  ;  Stochbridge's  Case,  145 
Mass.  517  ;  O'Gara  v.  Eisenlohr,  38  N.  Y.  296 ;  Hoyt  v.  Newbold,  45 
N.  J.  L.  219  ;  Cooper  v.  Cooper,  86  Ind.  75  ;  State  v.  Henke,  58  la.  457 ; 
Flood  v.  Growney,  126  Mo.  262;  Shriverv.  Slate,  65  Md.  278;  Uni- 
versity v.  Harrison,  90  N.  C.  385  ;  Shown  v.  McMackin,  9  Lea,  601  ; 
cf.  In  re  Taylor,  20  N.  Y.  S.  960.  Some  American  cases  hold  that  the 
absent  person,  unheard  from,  is  presumed  to  have  lived  till  the  end  of 
the  seven  years  (Excrs.  of  Clarke  v.  Canfield,  15  N.  J.  Eq.  119 ;  Mu- 
tual Ben.  Co.' s  Petition,  174  Pa.  I  ;  Schaub  v.  Griffin,  84  Md.  557  ;  Reedy 
v.  Nullizen,  155  111.  636);  but  others  support  the  English  rule  stated 
in  this  Article  {Davie  v.  Briggs,  97  U.  S.  628 ;  McCartee  v.  Camel. 
1  Barb.  Ch.  455  ;  Evans  v.  Stewart,  81  Va.  724  ;  Whiteley  v.  Equita 
ble  Assur.  Soc.,  72  Wis.  170 ;  cf.  Corley  v.  Holloway,  12.  S.  Car.  380). 

From  special  circumstances  justifying  such  a  conclusion,  thejurl 
may  infer  death  from  an  absence  of  less  than  seven  years  ;  thus,  e.g -, 
death  was  inferred  after  six  months  in  regard  to  a  person  who  ha-i 
sailed  on  a  voyage  usually  taking  25  to  40  days,  no  tidings  of  thv 
vessel  having  been  received.  Johnson  v.  Merithew,  80  Me.  m  ;  ses 
Waitev.  Coaracy,  45  Minn.  159;  Matter  of  Stewart,  1  Connol.  86;  Cox 
v.  Ellsworth,  18  Neb.  664  ;  Hancock  v.  A/ner.  Life  Ins.  Co. ,62  Mo.  26.  \ 

1  Wing  v.  Angrave,  8  H.  L.  C.  183,  198 ;  and  see  authorities  in  lasl 
note.  [Gr.  Ev.  i.  §§  29,  30  ;  Newell  v.  Nichols,  75  N.  Y.  78  ;  Russell v 
Hallett,  23  Kan.  276  ;  Cove  v.  Leach,  8  Met.  371  ;  Padcn  v.  Briscoe,  81 
Tex.  563;  see  Fuller  v.Linzee,  135  Mass.  468.  The  question  of 
survivorship  is  wholly  one  of  fact,  depending  upon  evidence,  and  the 
burden  of  proof  lies  upon  him  who  asserts  that  one  person  survived 
the  other.  In  the  absence  of  evidence,  property  rights  are  disposed 
of  as  if  all  died  at  the  same  time  (Id.;  Johnson  v.  Merithew,  80  Me, 
hi;  Elite's  Will,  73  Wis.  445). 

In  California  and  Louisiana  there  are  special  legal  presumptions  as 
to  survivorship,  depending  on  the  age  and  sex  of  the  persons  who 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  259 


Article  100. 
presumption  of  lost  grant.1 

When  it  has  been  shown  that  any  person  has,  for  a 
long  period  of  time,  exercised  any  proprietary  right 
which  might  have  had  a  lawful  origin  by  grant  or  license 
from  the  Crown  or  from  a  private  person,  and  the  ex- 
ercise of  which  might  and  naturally  would  have  been 
prevented  by  the  persons  interested  if  it  had  not  had  a 
lawful  origin,  there  is  a  presumption  that  such  right  had 
a  lawful  origin  and  that  it  was  created  by  a  proper  in- 
strument which  has  been  lost.2 

Illustrations. 

(a)  The  question  is,  whether  B  is  entitled  to  recover  from  A  the  pos- 
session of  lands  which  A's  father  and  mother  successively  occupied 
from  1754  to  1792  or  1793,  and  which  B  had  occupied  (without  title) 
from  1793  to  1809.  The  lands  formed  originally  an  encroachment  on 
the  Forest  of  Dean. 

The  undisturbed  occupation  for  thirty-nine  years  raises  a  presump- 
tion of  a  grant  from  the  Crown  to  A's  father.3 


perished.  Cal.  Code  Civ.  Pro.  §  1963,  subd.  40  ;  Hollister  v.  Cordero, 
76  Cal.  649 ;  La.  Civ.  Code,  Art.  938.] 

1  The  subject  of  the  doctrine  of  lost  grants  is  much  considered  in 
Angus  v.  Dalton,  3  Q.  B.  D.  84,  6  App.  Cas.  740.  [See  Lehigh  R.  Co. 
v.  McFarlan,  43  N.  J.  L.  605  ;  McRoberts  v.  Bergman,  132  N.  Y.73.] 

'2  [Gr.  Ev.  i.  §§  46,  47  ;  Jackson  v.  McCall,  10  Johns.  377  ;  Fletcher  v. 
Fuller,  120  U.  S.  534  ;  Roe  v.  Strong,  1 19  N.  Y.  316  ;  Texas  Mex.  Ry. 
Co.  v.  Uribe,  85  Tex.  386;  Carter  \.  Fishing  Co.,  jj  Pa.  310;  Oak- 
smith's  Lessee  v.  Johnston,  92  U.  S.  343.  It  is  said  in  this  last  case  that 
in  this  country  there  can  seldom  be  occasion  to  presume  a  grant  from 
the  government,  except  in  cases  of  very  ancient  possessions  running 
back  to  colonial  days,  since,  from  the  beginning  of  the  century,  a 
record  has  been  preserved  of  all  such  grants.  See  Mission  of  the  I.  V. 
v.  Cronin,  143  N.  Y.  524.] 

3  Goodtitle  v.  Baldwin,  11  Ea.  488.  The  presumption  was  rebutted 
in  this  case  by  an  express  provision  of  20  Ch.  II.  c.  3,  avoiding  grants 
of  the  Forest  of  Dean.  See  also  Doe  d.  Devine  v.  Wilson,  10  Moo.  P, 
C.  502. 


260  A  DIGEST  OF  [Part  III. 

(b)  A  fishing  mill  dam  was  erected  more  than  1 10  years  before  1861 
in  the  River  Derwent,  in  Cumberland  (not  being  navigable  at  that 
place),  and  was  used  for  more  than  sixty  yfears  before  1861  in  the  man- 
ner in  which  it  was  used  in  1861.  This  raises  a  presumption  that  all 
the  upper  proprietors  whose  rights  were  injuriously  affected  by  the 
dam  had  granted  a  right  to  erect  it.1 

(<r)  A  borough  corporation  proved  a  prescriptive  right  to  a  several 
oyster  fishery  in  a  navigable  tidal  river.  The  free  inhabitants  of  an- 
cient tenements  in  the  borough  proved  that  from  time  immemorial  and 
claiming  as  of  right  they  had  dredged  for  oysters,  within  the  limits  of 
the  fishery,  from  February  2  to  Easter  Eve  in  each  year.  The  court 
presumed  a  grant  from  the  Crown  to  the  corporation  before  legal 
memory  of  a  several  fishery,  with  a  condition  in  it  that  the  free  in- 
habitants of  ancient  tenements  in  the  borough  should  enjoy  such  a 
right.2 

(d)  A  buikfs  a  windmill  near  B's  land  in  1829,  and  enjoys  a  free  cur- 
rent of  air  to  it  over  B's  land  as  of  right,  and  without  interruption  till 
i860.  This  enjoyment  raises  no  presumption  of  a  grant  by  B  of  a 
right  to  such  a  current  of  air,  as  it  would  not  be  natural  for  B  to  inter- 
rupt it.3 

(<?)  No  length  of  enjoyment  (by  means  of  a  deep  well),  of  water 
percolating  through  underground  undefined  passages,  raises  a  pre- 
sumption of  a  grant  from  the  owners  of  the  ground  under  which  the 
water  so  percolates  of  a  right  to  the  water.4 


1  Leconfichi  v.  Lonsdale,  L.  R.  5  C.  P.  657. 

'J  Goodman  v.  Mayor  of  Sa/tas/i,  6  App.  Cas.  633  (see  especially  650). 
Lord  Blackburn  dissented  on  the  ground  that  such  a  grant  would  not 
have  been  legal  (pp.  651-662).  See  same  case  in  6  Q.  B.  D.  106,  and 
5  C.  P.  D.  431,  both  of  which  were  reversed. 

:;  Webb  v.  Bird,  13  C.  B.  (N.  S  )  841.  [As  to  the  reasons  upon  which 
this  and  the  following  decision  are  to  be  supported,  see  Dalton  v. 
Angus,  6  App.  Cas.  796,  798, 824.  As  the  English  doctrine  that  a  right 
to  light  and  air  can  be  gained  by  prescription  is  generally  discarded 
in  this  country,  the  decision  in  Webb  v.  Bird  would  apply  here  a  for- 
tiori. See  Parker  x.  Foote,  19  Wend.  309;  Gilmore  v.  Drisccll,  viz 
Mass.  199,  207.] 

4  Chascmore  v.  Richards  7  H.  L.  C.  349.  [Mayor  of  Bradford  v. 
Pickles,  [1895]  A.  C.  587;  Chatfield  v.  Wilson,  2S  \'t.  49;  Wilson  v. 
New  Bedford,  108  Mass.  265  ;  Frazierv.  Brown,  12  O.  St.  294  ;  Roalh 
v.  Driscoll,  20  Ct.  533  ;  Wheatly  v.  Bough,  25  Pa.  528  ;  Ellis  v.  Dun- 
can, 21  Barb.  230,  29  N.  Y.  466 ;  see  Phelps  v.  Nowlen,  72  N.  Y.  39.] 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  261 


Article   ioi.* 
presumption  of  regularity  and  of  deeds  to  complete 

TITLE. 

When  any  judicial  or  official  act  is  shown  to  have  been 
done  in  a  manner  substantially  regular,  it  is  presumed 
that  formal  requisites  for  its  validity  were  complied  with.1 

When  a  person  in  possession  of  any  property  is  shown 
to  be  entitled  to  the  beneficial  ownership  thereof,  there 
is  a  presumption 2  that  every  instrument  has  been  exe- 
cuted which  it  was  the  legal  duty  of  his  trustees  to  exe- 
cute in  order  to  perfect  his  title.3 


*  See  Note  XXXVII.  [Appendix],  and  Macdougall  v.  Purrier,  3 
Bligh,  N.  S.  433.  R.  v.  Cresswell,  1  Q.  B.  D.  (C.  C.  R.)  446,  is  a  recent 
illustration  of  the  effect  of  this  presumption. 

1  [  Wood  v.  Morehouse,  45  N.  Y.  368  ;  State  v.  Potter,  52  Vt.  33  ;  Mo- 
Murray's  Heirs  v.  Erie,  59  Pa.  223;  Nofire  v.  U.  S.,  164  U.  S.  657; 
Piatt  v.  Grover,  136  Mass.  115  ;  Browne//  v.  Pa/mer,  22  Ct.  107,  119. 
The  maxim  in  such  cases  is  Omnia  prcesumuntur  rite  esse  acta  (Id.; 
Sche//'s  Excrs.  v.  Fanche,  138  U.  S.  562).  Thus  it  is  presumed  that 
public  officers  perform  their  duty  and  do  not  exceed  their  lawful  au- 
thority ;  also  that  corporations  act  within  their  lawful  powers,  etc.  (Id. 
Hoguc  v.  Corbitt,  156  111.  540;  State  v.  Williams,  99  Mo.  291;  Swar- 
thout  v.  Panic r,  143  N.  Y.  499,  504  ;  Sine/air  v.  Learned,  51  Mich.  335  ; 
Kent  v.  Quicksilver  Mining  Co.,  78  N.  Y.  159,  183;  cf.  Murphy  v. 
Chase,  103  Pa.  260  ;  Gr.  Ev.  i.  §§  38,  n.,  40,  n.).  As  to  similar  presump- 
tions from  lapse  of  time,  see  Gr.  Ev.  i.  §  20  ;  Hilton  v.  Bender,  69  N.  Y. 

75-] 

1  Doe  d.  Hammond  v.  Cooke,  6  Bing.  174,  179.  [Jackson  v.  Cole,  4 
Cow.  587  ;  Jackson  v.  Moore,  13  Johns.  513;  Lincoln  v.  French,  105 
N.  Y.  614  ;  Perry  on  Trusts,  i.  §  349,  4th  ed.] 

3  [Other  important  presumptions  are  :  ( 1)  That  a  previously  existing 
personal  relation  or  state  of  things  continues  to  exist,  until  the  contrary 
is  shown,  as  e.g.,  a  relation  between  parties  {Eames  v.  Eames,  41  N. 
H.  177);  a  law  {Matter  of  Huss,  126  N.  Y.  537);  residence  ( Greenfield 
v.  Camden,  74  Me.  56;  Nixon  v.  Palmer,  10  Barb.  175);  character 
(Graham  v.  Chrystal,  2  Abb.  Dec.  263);  habits  and  personal  appear- 
ance (Marston  v.  Dingier,  88  Me.  546);  insanity,  if  it  be  of  a  fixed  and 


262  A  DIGEST  OF  [Part  III. 

Article   102.* 

estoppel  by  conduct. 

When  one  person  by  anything  which  he  does  or  says, 
or  abstains  from  doing  or  saying,  intentionally  causes  or 
permits  another  person  to  believe  a  thing  to  be  true,  and 
to  act  upon  such  belief  otherwise  than  but  for  that  belief 


*  See  Note  XXXVIII.  [Appendix], 
permanent  character,  and  not  simply  temporary  or  occasional  (  Taylor 
v.  Pegram,  151  111.  107;  Wright  v.  Wright,  139  Mass.  177;  Wat/is  v. 
Lnhring,  134  Ind.  447;  People  v.  Lane,  101  Cal.  513;  State  v.  Hay- 
ward,  62  Minn.  474) ;  status  (Kidder  v.  Stevens,  60  Cal.  414);  and  many 
other  matters  (Gr.  Ev.  i.  §  41 ;  Cohoes  v.  D.  &°H  Canal  Co.,  134  X.  V. 
397).  The  presumption  is  rebuttable.  Its  force  and  duration  will  be 
affected  by  the  transient  or  permanent  nature  of  the  subject-matter 
(Donahue  v.  Coleman,  49  Ct.  464  ;  High  v.  Bk.  of  Commerce,  103  Cal. 
525,  and  cases  supra).  It  has  also  been  often  held  that  there  is  a 
legal  presumption  that  life  continues  (within  the  usual  limits  of  hu- 
man existence)  until  the  contrary  is  shown,  or  until  the  presumption 
of  death  attaches  under  the  rule  stated  in  Article  99  (Stevens  v.  Mc- 
Namara,  36  Me.  176;  Shriverv.  State,  65  Aid.  278;  Montgomery  v. 
Bevans,  1  Sawy.  653);  but  the  modern  English  and  some  American 
authorities  regard  it  as  a  presumption  of  fact,  to  be  weighed  by  the 
jury  with  all  the  evidence  in  the  case  bearing  upon  the  probability  that 
life  still  continues  (///  re  Pheni's  Trusts,  L.  R.  5  Ch.  App.  139;  State 
v.  Plym,  43  Minn.  385  ;  Comui.  v.  McGrath,  140  Mass.  296;  Whiteley 
v.  Equitable .  Issur.  Soc,  J2  Wis.  170  ;  see  Art.  95,  Illustration  (/),  ante). 

(2)  That  the  regular  course  of  business  in  a  public  office  or  in  the 
course  of  trade  or  conduct  of  affairs  is  followed  (Gr.  Ev.  i.  §§  38,  40); 
zse.g.,  that  letters  properly  mailed  reach  their  destination  (see  Art.  13, 
ante ;  -  lustin  v.  Holland,  69  N.  Y.  571);  that  a  bill  or  note  found  after 
circulation  in  the  hands  of  the  acceptor  or  maker  has  been  paid 
(Crimes  v.  Hilliary,  150  111.  141;  Connelly  v.  McKean,  64  Pa.  113); 
that  a  person  having  the  possession  of  property  is  the  owner  {Rawley 
v.  Brown,  71  X.  Y.  85;  Anderson  v.  McCormick,  129  111.  308;  Tre- 
vorrowv.  Trevorrow,  65  Mich.  234;  McClellan  v.  St.  Paul,  etc.  R. 
Co.,  58  Minn.  104).  These  are  disputable  presumptions,  and  are 
often  called  presumptions  of  fact  (Id.). 

(3)  That  a  man  intends  the  natural  and  probable  consequences  of  his 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  263 

he  would  have  acted,  neither  the  person  first  mentioned 
nor  his  representative  in  interest  is  allowed,  in  any  suit 
or  proceeding  between  himself  and  such  person  or  his 


acts  (Filkins  v.  People,  69  N.  Y.  101  ;  State  v.  Patterson,  116  Mo.  513). 
The  presumption  is  rebuttable  (Roberts  v.  Buckley,  145  N.  Y.  215). 

(4)  That,  in  trials  for  homicide,  malice  is  to  be  presumed  from  the 
deliberate  use  of  a  deadly  weapon  against  another,  in  the  absence  of 
evidence  of  explanatory  circumstances  (Comm.  v.  Hawkins,  3  Gray, 
463  ;  Friederich  v.  People,  147  111.  310;  State  v.  Hockett,  70  la.  442  ; 
State  v.  Mustek,  101  Mo.  260 ;  Hale  v.  Comm.,  89  Va.  171,  178  ;  State 
v.  Fuller,  1 14  N.  C.  885  ;  Robinson  v.  State,  108  Ala.  14  ;  Hawthorne 
v.  State,  58  Miss.  778).  The  presumption  is  rebuttable  (Id.;  Tiffany  v. 
Comm.,  121  Pa.  165;  People  v.  Wolf,  95  Mich.  625).  But  in  some 
States  such  killing  with  a  deadly  weapon  is  simply  held  to  furnish 
presumptive  evidence  for  the  jury  of  an  intent  to  kill  ( Thomas  v. 
People,  67  N.  Y.  218  ;  People  v.  Fish,  125  N.  Y.  136  ;  Newport  v.  State, 
140  Ind.  299  ;  cf.  State  v.  Earnest,  56  Kan.  31). 

(5)  That  a  wife  committing  a  crime  (except  treason,  murder,  and 
perhaps  robbery)  in  the  presence  of  her  husband,  acts  under  his 
coercion.  The  presumption  is  disputable  (People  v.  Ry land,  97  N.Y. 
126;  Comm.  v.  Moore,  162  Mass.  441;  State  w.Shee,  13  R.  I.  535; 
State  v.  Ma.  Foo,  no  Mo.  7).  In  New  York  this  presumption  has 
been  abolished  (Penal  Code,  §24). 

(6)  Omnia  proesumuntur  contra  spoliatorem  ;  hence  from  the  de- 
struction, suppression  or  fabrication  of  evidence,  unfavorable  in- 
ferences may  be  drawn,  to  the  disadvantage  of  the  person  committing 
such  acts  (Allen  v.  U.  S.,  164  U.  S.  492,  500;  Simes  v.  Rockwell,  156 
Mass.  373  ;  Eckel  v.  Eckel,  49  N.  J.  Eq.  587  ;  Winchell  v.  Edwards, 
57  111.  41  ;  In  re  Lambie,  97  Mich.  54;  Diamond  v.  Henderson,  47 
Wis.  172  ;  Pomeroy  v.  Benton,  77  Mo.  86).  The  presumption  may  be 
rebutted  (Id.;  Drosten  v.  Mueller,  103  Mo.  624). 

(7)  From  identity  of  name,  identity  of  person  is,  in  general,  pre- 
sumable (Aultman  v.  Ti/nm,  93  Ind.  158;  Goodell  v.  Hibbard,  32 
Mich.  47  ;  People  v.  Riley,  75  Cal.  98  ;  cf.  Linck  v.  Litchfield,  141  111. 
469);  but  the  contrary  may  be  shown  (Id.). 

(8)  A  debt  by  record  or  specialty,  if  unclaimed  or  unrecognized  for 
twenty  years,  is,  though  the  Statute  of  Limitations  does  not  include 
such  debts,  presumed  to  have  been  paid  ;  but  the  presumption  may 
be  rebutted  (Barker  v.  Jones,  62  N.  H.  497  ;  Fanton  v.  Middlebrook, 
50  Ct.  44  ;  Gregory  v.  Comm.,  121  Pa.  611).  In  some  States,  however, 
such  debts  are  now  included  within  the  Statute  of  Limitations.  IValker 
V.  Robinson,  136  Mass.  280 ;  Martin  v.  Stoddard,  127  N.  Y.  61.] 


264  A  DIGEST  OF  [Part  III. 

representative   in   interest,   to   deny   the   truth   of    that 
thing.1 

When  any  person  under  a  legal  duty  to  any  other  per- 
son to  conduct  himself  with  reasonable  caution  in  the 
transaction  of  any  business  neglects  that  duty,  and  when 
the  person  to  whom  the  duty  is  owing  alters  his  position 
for  the  worse  because  he  is  misled  as  to  the  conduct  of 
the  negligent  person  by  a  fraud,  of  which  such  neglect  is 
in  the  natural  course  of  things  the  proximate  cause,  the 
negligent  person  is  not  permitted  to  deny  that  he  acted 
in  the  manner  in  which  the  other  person  was  led  by  such 
fraud  to  believe  him  to  act.2 

Illustrations. 

(a)  A,  the  owner  of  machinery  in  B's  possession,  which  is  taken  in 
execution  by  C,  abstains  from  claiming  it  for  some  months,  and  con- 
verses with  C's  attorney  without  referring  to  his  claim,  and  by  these 
means  impresses  C  with  the  belief  that  the  machinery  is  B's.  C  sells 
the  machinery.    A  is  estopped  from  denying  that  it  is  B's.3 

(o)  A,  a  retiring  partner  of  B,  gives  no  notice  to  the  customers  of  the 
firm  that  he  is  no  longer  B's  partner.  In  an  action  by  a  customer,  he 
cannot  deny  that  he  is  B's  partner.4 


1  [Dickerson  v.  Colgrove,  ioo  U.  S.  578  ;  Morgan  v.  Railroad  Co., 
96  Id.  716  ;  Carroll  v.  M.  &*  R.  R.  Corp.,  1 1 1  Mass.  1  ;  Chase  s  Ap- 
peal, 57  Ct.  236 ;  Andrews  v.  AZtna  Ins.  Co.,  85  N.  Y.  334  ;  Union 
Dime  Sav.  hist.  v.Wilmot,  94  N.  Y.  221  ;  Mutual  Life  Ins.  Co.  v. 
Norris,  31  N.  J.  Eq.  583  ;  Slocumb  v.  Railroad  Co.,  57  la.  675  ;  Stevens 
v.  Ludlum,  46  Minn.  160 ;  Bates  v.  Swiger,  40  W.  Va.  421.] 

8  [Putnam  v.  Sullivan,  4  Mass.  45  ;  Chapman  v.  Rose,  56  N.  Y.  137  ; 
Ruddell  v.  Fhalor,  72  Ind.  533  ;  Ross  v.  Doland,  29  O.  St.  473  ;  Shirts 
v.  Overjohn,  60  Mo.  305  ;  cf.  Nance  v.  Lary,  5  Ala.  370 ;  Nat.  Bk. 
v.  Zeims,  93  la.  140.  An  estoppel  may  be  created  by  silence,  when 
there  is  a  duty  and  opportunity  to  speak.  Leather  Mfrs.  Bk.  v. 
Holley,  117  U.  S.  96 ;  Thompson  v.  Simpson,  128  N.  Y.  270 ;  O'Mulcahy 
v.  Holley,  28  Minn.  31  ;  Allen  v.  Shaw,  61  N.  H.  95.] 

:i  Pickardv.  Sears,  6  A.  &  E.  469, 474.  [See  Thompson  v.  Blanchard, 
4  N.  Y.  303  ;  Fall  Riv.  Bk.  v.  Buffinton,  97  Mass.  500 ;  Miles  v.  Lefi, 
60  la.  168  ;  Reiss  v.  Hanchett,  141  111.  419 ;  Putnam  v.  Tyler,  117  Pa. 
570  ;  cf.  Bray  v.  Flickinger,  69  la.  167.] 

4  (Per  Parke,  B.)  Freetnan  v.  Cooke,  2  Ex.  661.    [Elmira,  etc.  Co. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  265 

{c)  A  sues  B  for  a  wrongful  imprisonment.  The  imprisonment  was 
wrongful,  if  B  had  a  certain  original  warrant ;  rightful,  if  he  had  only 
a  copy.  B  had  in  fact  a  copy.  He  led  A  to  believe  that  he  had  the 
original,  though  not  with  the  intention  that  A  should  act  otherwise 
than  he  actually  did.  B  may  show  that  he  had  only  a  copy  and  not 
the  original.1 

{d)  A  sells  eighty  quarters  of  barley  to  B,  but  does  not  specifically 
appropriate  to  B  any  quarters.  B  sells  sixty  of  the  eighty  quarters  to 
C.  C  informs  A,  who  assents  to  the  transfer.  C  being  satisfied  with 
this,  says  nothing  further  to  B  as  to  delivery,  B  becomes  bankrupt. 
A  cannot,  in  an  action  by  C  to  recover  the  barley,  deny  that  he  holds 
for  C  on  the  ground  that,  for  want  of  specific  appropriation,  no  prop- 
erty passed  to  B.2 

(e)  A  signs  blank  cheques  and  gives  them  to  his  wife  to  fill  up  as 
she  wants  money.  A's  wife  fills  up  a  cheque  for  ,£50  2s.  so  carelessly 
that  room  is  left  for  the  insertion  of  figures  before  the  "50 "and  for 
the  insertion  of  words  before  the  "fifty."  She  then  gives  it  to  a  clerk 
of  A's  to  get  it  cashed.  He  writes  3  before  "50"  and  "three  hundred 
and"  before  "fifty."  A's  banker  pays  the  cheque  so  altered  in  good 
faith.    A  cannot  recover  against  the  banker.3 


v.  Harris,  124  N,  Y.  280;  Backus  v.  Taylor,  84  Ind.  503  ;  Lovejoy  v. 
Spafford,  93  U.  S.  430.  So  one  who  has  permitted  himself  to  be  held 
out  to  the  world  as  a  partner  in  a  firm  is  estopped  from  denying  that 
he  is  one  as  against  those  who  have  dealt  with  the  firm  in  the  bona 
fide  belief  that  he  is  a  partner.  Fletcher  v.  Pullen,  70  Md.  205  ; 
Brown  v.  Grant,  39  Minn.  404.] 

1  Howard  v.  Hudson,  2  E.  &  B.  1.  [See  Audenried  v.  Betteley,  3 
Allen,  382.] 

2  Knights  v.  Wiffen,  L.  R.  5  Q.  B.  660.  [See  Kent's  Comm.  iii.  85, 
note  1  (14th  ed.);  Barnard  v.  Campbell,  55  N.  Y.  456;  Anderson  v. 
Read,  106  N.  Y.  333,  353.] 

3  Young  v.  Grote,  4  Bing.  253.  [This  case  has  been  much  considered 
of  late  and  its  authority  is  carefully  limited  to  its  special  facts  {Green- 
field Sav.  Bk.  v.  Stowell,  123  Mass.  196;  Lehman  v.  Central  R.  Co., 
12  F.  R.  595  ;  McGrath  v.  Clark,  56  N.  Y.  34  ;  Holmes  v.  Trumpcr, 
22  Mich.  427  ;  cf.  Leas  v.  Walls,  101  Pa.  57  ;  Yocum  v.  Smith,  63  111. 
321;  Belknap  v.  Nat.  Bk.  of  N.  America,  100  Mass.  376;  Craw- 
ford v.  West  Side  Bk.,  100  N.  Y.  50).  In  a  recent  English  case  it  is 
shown  to  be  doubtful  on  what  ground  Young  v.  Grote  was  decjded, 
whether  on  the  theory  of  estoppel  arising  out  of  the  special  duty  of  a 
customer  to  protect  his  banker  against  danger  from  "  raised"  checks, 


266  A  DIGEST  OF  [Part  III. 

(/)  A  railway  company  negligently  issues  two  delivery  orders  for 
the  same  wheat  to  A,  who  fraudulently  raises  money  from  B  as  upon 
two  consignments  of  different  lots  of  wheat.  The  railway  is  liable  to 
B  for  the  amount  which  A  fraudulently  obtained  by  the  company's 
negligence.1 

(g)  A  carelessly  leaves  his  door  unlocked,  whereby  his  goods  are 
stolen.  He  is  not  estopped  from  denying  the  title  of  an  innocent  pur- 
chaser from  the  thief.2 

Article    103. 
estoppel  of  tenant  and  licensee. 

No  tenant,  and  no  person  claiming  through  any  tenant, 
of  any  land  or  hereditament  of  which  he  has  been  let  into 
possession,  or  for  which  he  has  paid  rent,  is,  till  he  has 
given  up  possession,  permitted  to  deny  that  the  landlord 
had,  at  the  time  when  the  tenant  was  let  into  possession 
or  paid  the  rent,  a  title  to  such  land  or  hereditament ; 3 


or  on  the  ground  that  any  one  who  signs  a  blank  check  authorizes  the 
person  in  whose  hands  it  is  to  fill  it  up  as  his  agent  (Scholfield v .  Earl 
of  Londesborough,  [1896]  A.  C.  514;  see  p.  218,  n.  2,  ante).  In  this  recent 
case  and  in  similar  American  cases  the  sum  stated  in  a  bill  or  note  was 
increased  by  the  filling  in  of  unwritten  spaces  by  a  forger,  but  the  ac- 
ceptor or  maker  was  held  not  liable.  The  proximate  cause  of  loss  to 
the  purchaser  of  the  bill  or  note  was  the  forgery.  Burrows  v.  Klunk, 
70  Md.  451;  Knoxville  Nat.  Bk.  v.  Clark,  51  la.  264  ;  Simmons  v.  At- 
kinson, 69  Miss.  862  ;  and  cases  supra.] 

1  Coventry  v.  Gt.  Eastern  Ry.  Co.,  1 1  Q.  B.  D.  776. 

2  Per  Blackburn,  J.,  in  Swan  v.  N.  B.  Australasian  Co.,  2  H.  &  C. 
181.  See  Baxendale  v.  Bennett,  3  Q.  B.  D.  525.  The  earlier  cases  on 
the  subject  are  much  discussed  mjorden  v.  Money,  5  H.  &  C.  209-16, 
234-5.  [Cf.  People  v.  Bank  N.  America,  75  N.  Y.  547  ;  Lowery  v. 
Telegraph  Co.,  60  N.  Y.  198  ;  Knox  v.  Eden  Musie  Co.,  148  N.  Y.  441  ; 
Dist.  of  Columbia  v.  Cornell,  130  U.  S.  655  ;  Zell's  Appeal,  103  Pa.  344.] 

3  Doe  v.  Barton,  1 1  A.  &  E.  307  ;  Doe  v.  Smyth,  4  M.  &  S.  347  ;  Doe 
v.  Pegg,  I  T.  R.  760,  note.  [Stott  v.  Rutherford,  92  U.  S.  107  ;  Prevot 
v.  Lawrence,  51  N.  Y.  219 ;  Tilyou  v.  Reynolds,  108  N.  Y.  558  ;  Streeter 
v.  Ilsley,  147  Mass.  141;  Sexton  v.  Car  ley,  147  111.  269;  Derrick  v. 
Luddy,6\  \'t.  462;  Washb.  R.  P.  i.  588  601,  5th  ed. ;  cf.  Robertson  v. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  267 

and  no  person  who  came  upon  any  land  by  the  license  of 
the  person  in  possession  thereof,  is,  whilst  he  remains  on 
it,  permitted  to  deny  that  such  person  had  a  title  to  such 
possession  at  the  time  when  such  license  was  given.1 

Article  104. 

estoppel  of  acceptor  of  bill  of  exchange. 

No  acceptor  of  a  bill  of  exchange  is  permitted  to  deny 
the  signature  of  the  drawer  or  his  capacity  to  draw,  or  if 
the  bill  is  payable  to  the  order  of  the  drawer,  his  capacity 
to  indorse  the  bill,  though  he  may  deny  the  fact  of  the 
indorsement ; 2  nor  if  the  bill  be  drawn  by  procuration, 
the  authority  of  the  agent,  by  whom  it  purports  to  be 
drawn,  to  draw  in  the  name  of  the  principal,3  though  he 
may  deny  his  authority  to  indorse  it.4  If  the  bill  is  ac- 
cepted in  blank,  the  acceptor  may  not  deny  the  fact  that 
the  drawer  indorsed  it.5 

Article  105. 

estoppel  of  bailee,  agent,  and  licensee. 

No  bailee,  agent,  or  licensee  is  permitted  to  deny  that 
the  bailor,  principal,  or  licensor,  by  whom  any  goods  were 


Pickreh,  109  U.  S.  608.    As  to  the  limitations  of  the  doctrine,  see  Cor- 
rigan  v.  Chicago,  144  111.  537.] 

1  Doe  v.  Baytup,  3  A.  &  E.  188.  [Glynn  v.  George,  20  N.  H.  114; 
Hamilton,  etc.,  Co.  v.  Railroad  Co.,  29  O.  St.  341.] 

2  Garland  v./acomd,  L.  R.  8  Ex.  216.  [  White  v.  Continental  Nat. 
Bk.,  64  N.  Y.  316;  Marine  Nat.  Bk.  v.  Nat.  City  Bk.,  59  N.  Y.  67; 
Hoffman  v.  Bank  of  Milwaukee,  12  Wall.  181;  National  Bank  v. 
Bangs,  106  Mass.  441.  See  as  to  this  whole  Article,  Daniel  Neg.  Inst. 
i- §§  532-541.] 

3  Sanderson  v.  Coleman,  4  M.  &  G.  209. 

4  Robinson  v.  Yarrow,  7  Tau.  455. 

6  L.  &*  S.  IV.  Bank  v.  Wentworth,  5  Ex.  D.  96.    [In  this  case  the 


268  A  DIGEST  OF  [Pari    !!! 

entrusted  to  any  of  them  respectively,  was  entitled  to 
those  goods  at  the  time  when  they  were  so  entrusted.' 

Provided  that  any  such  bailee,  agent,  or  licensee,  may 
show  that  he  was  compelled  to  deliver  up  any  such  goods 
to  some  person  who  had  a  right  to  them  as  against  his 
bailor,  principal,  or  licensor,  or  that  his  bailor,  principal, 
or  licensor,  wrongfully  and  without  notice  to  the  bailee, 
agent,  or  licensee,  obtained  the  goods  from  a  third  person 
who  has  claimed  them  from  such  bailee,  agent,  or  licen- 
see.2 

Every  bill  of  lading  in  the  hands  of  a  consignee  or  in- 
dorsee for  valuable  consideration,  representing  goods  to 
have  been  shipped  on  board  a  vessel,  is  conclusive  proof 
of  that  shipment  as  against  the  master  or  other  person 
signing  the  same,  notwithstanding  that  such  goods  or 
some  part  thereof  may  not  have  been  so  shipped,  unless 
such  holder  of  the  bill  of  lading  had  actual  notice  at  the 
time  of  receiving  the  same  that  the  goods  had  not  been 
in  fact  laden  on  board,  provided  that  the  master  or  other 
person  so  signing  may  exonerate  himself  in  respect  of 
such  misrepresentation  by  showing  that  it  was  caused 
without  any  default  on  his  part,  and  wholly  by  the  fraud 


drawer's  signature  and  the  indorsement  were  written  upon  the  bill 
after  it  had  been  accepted  in  blank.  "The  blank  acceptance  is  an 
acceptance  of  the  bill  which  is  afterwards  put  upon  it."  Schultz  v. 
Astley,  2  Bing.  N.  C.  544  ;  cf.  Weyerhauser  v.  Dun,  100  N.  Y.  150.] 

1  {Sinclair  v.  Murphy,  14  Mich.  392;  Osgood  v.  Nichols,  5  Gray, 
420;  Roberts  v.  Noyes,  76  Me.  590;  Bricker  v.  Stroud,  56  Mo.  App. 
183  ;  cf.  Jackson  v.  Allen,  120  Mass.  64,  79.] 

2  Dixon  v.  Hammond,  2  B.  &  A.  313 ;  Crossley  v.  Dixon,  10  H.  L.  C. 
293;  Gosling  v.  Birnie,  7  Bing.  339;  Hardman  v.  ll'ilcock,g  Bing. 
382  ;  Biddle  v.  Bond,  34  L.  J.  Q.  B.  137,  [6  B.  &  S.  225] ;  Wilson  v.  An- 
derton,  1  B.  &  Ad.  450.  As  to  carriers,  see  Sheridan  v.  New  Quay,  4 
C.  B.  (N.  S.)  618.  [The  Idaho,  93  U.  S.  575  ;  Western  Trans.  Co.  v. 
Barber,  56  N.  Y.  544;  King  v.  Richards,  6  Whart.  418;  Roberts  v. 
Noyes,  76  Me.  590 ;  Dusky  v.  Rudder,  80  Mo.  400  ;  Singer  Mfg.  Co.  v. 
King,  14  R.  I.  511.] 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  269 

of  the  shipper  or  of  the  holder,  or  some  person  under 
whom  the  holder  holds.1 


'  18  &  19  Vict.  c.  hi,  s.  3.  [But  it  is  held  that  a  ship-owner  is  not 
estopped  by  the  signature  of  a  bill  of  lading  by  the  master  from  show- 
ing that  the  goods  or  some  of  them  were  never  actually  put  on  board. 
Brown  v.  Powell  Co.,  L.  R.  10  C.  P.  562  ;  Cox  v.  Bruce,  18  Q.  B.  D. 
147 ;  see  McLean  v.  Fleming,  L.  R.  2  Sc.  App.  128. 

The  law  of  this  country  is  not  governed  by  statutes  like  the  above. 
The  general  rules  here  in  force  are  stated  in  Sears  v.  Wingate,  3  Allen, 
103:  "(1)  The  receipt  in  a  bill  of  lading  is  open  to  explanation  be- 
tween the  master  and  the  shipper  of  the  goods.  (2)  The  master  is  es- 
topped, as  against  a  consignee  who  is  not  a  party  to  the  contract  and 
as  against  an  assignee  of  the  bill  of  lading,  when  either  has  taken  it 
for  a  valuable  consideration  upon  the  faith  of  the  acknowledgments 
which  it  contains,  to  deny  the  truth  of  the  statements  to  which  he  has 
given  credit  by  his  signature,  so  far  as  those  statements  relate  to  mat- 
ters which  are  or  ought  to  be  within  his  knowledge.  (3)  When  the 
master  is  acting  within  the  limits  of  his  authority,  the  owners  are  es- 
topped in  like  manner  with  him  ;  but  it  is  not  within  the  general  scope 
of  the  master's  authority  to  sign  bills  of  lading  for  any  goods  not  actu- 
ally received  on  board."  There  is,  however,  a  noteworthy  difference 
of  opinion  in  regard  to  the  rule  stated  in  this  last  sentence.  In  the 
U.  S.  Supreme  Court  and  in  a  number  of  the  States  this  rule  is  adopted, 
and  it  isiheld  that  if  the  master  does  sign  a  bill  of  lading  for  goods 
not  actually  received  on  board,  his  act  does  not  bind  the  owner  of  the 
ship  even  in  favor  of  an  innocent  purchaser  {Pollard  v.  Vinton,  105 
U.  S.  7  ;  Nat.  Bk.  of  Commerce  v.  Chicago,  etc.  R.  Co.,  44  Minn.  224; 
Bait.  &*  O.  R.  Co.  v.  Wilkens,  44  Md.  11  ;  Dean  v.  King,  22  O.  St. 
118;  La.  Nat.  Bk.  v.  Laveille,  52  Mo.  380).  But  in  New  York  and 
some  other  States,  if  the  master  acts  within  his  apparent  authority 
in  such  a  case,  the  owner  is  held  bound  by  his  act  on  the  ground  of 
estoppel  {Bk.  of  Batavia  v.  N.  Y.  etc.  R.  Co.,  106  N.  Y.  195  ;  Brooke 
v.N.  Y.  etc.  R.  Co.,  108  Pa.  529 ;  Sioux  City,  etc.  R.  Co.  v.  First  Nat. 
Bk.,  10  Neb.  556;  Sav.  Bk.  v.  Atchison,  etc.  R.  Co.,  20  Kan.  519;  cf. 
Hanover  Bk.  v.  Anier.  Dock  Co.,  148  N.  Y.  612).  These  same  rules 
are  applied  to  the  bills  of  lading  of  railroad  companies.  Id.;  Fried- 
lander  v.  Texas,  etc.  R.  Co.,  130  U.  S.  416.] 


270  A  DIGEST  OF  [Part  III. 


CHAPTER   XV. 
OF  THE  COMPETENCY  OF  WITNESSES* 

Article  106. 

who  may  testify. 

All  persons  are  competent  to  testify  in  all  cases  except 
as  hereinafter  excepted.1 


*See  Note  XXXIX.  [Appendix]. 
1  [The  common  law  rules  disqualifying  parties  and  persons  interested 
in  the  e7>e?it  of  the  suit  from  being  witnesses  are  now  almost  univer- 
sally abolished  (see  N.  Y.  Code  Civ.  Pro.  §  828  ;  U.  S.  Rev.  St.  §  858; 
Mass.  Pub.  St.  c.  169,  s.  18 ;  and  generally  the  statutes  of  the  different 
States),  though  the  interest  of  a  witness  may  still  be  shown  to  affect 
his  credibility  {Pennsylvania  Co.  v.  Versten,  140  111.  637  ;  Will  of  Smil- 
ing, 136  N.  Y.  515  ;  Norwood  v.  Andrews,  71  Miss.  641).  But  there  is 
established  by  statute  in  the  several  States  one  important  exception, 
prohibiting  a  party  or  interested  person  from  testifying  in  an  action 
against  an  executor  or  administrator  concerning  a  transaction  with  the 
decedent.  These  statutes  differ  in  details,  but  their  general  features 
may  be  well  illustrated  by  the  law  of  New  York.  This  provides  that, 
in  a  civil  action  or  special  proceeding,  a.  party  or  person  interested  in 
the  C7'cnt  (or  a  predecessor  of  such  person)  shall  not  be  examined  as 
a  witness  in  his  own  behalf  or  interest  (or  in  behalf  of  his  successor  in 
interest),  against  the  executor,  administrator,  or  survivor  of  a  deceased 
person,  or  the  committee  of  a  lunatic  (or  the  successor  in  interest  of 
such  decedent  or  lunatic),  concerning  a  personal  transaction  or  com- 
munication between  the  witness  and  the  decedent  or  lunatic.  Such  tes- 
timony is,  however,  receivable  if  the  executor,  etc.,  is  examined  in  his 
own  behalf,  or  if  the  former  testimony  of  the  decedent  or  lunatic  con- 
cerning the  same  transaction,  etc.,  is  given  in  evidence  (N.  Y.  Code 
Civ.  Pro.  §  829;  Rogers  v.  Rogers,  153  N.  Y.  343).  The  intention  of  the 
statute  is  that  the  surviving  party  to  the  transaction  shall  not  have  the 
unfair  advantage  of  giving  his  version  of  the  matter  when  the  other 
party  is  prevented  by  death  from  being  heard  to  contradict  or  explain 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  271 

Article  107. 
what  witnesses  are  incompetent.' 

A  witness  is  incompetent  if  in  the  opinion  of  the  judge 
he  is  prevented  by  extreme  youth,  disease  affecting  his 
mind,  or  any  other  cause  of  the  same  kind,  from  recollect- 
ing the  matter  on  which  he  is  to  testify,  from  understand- 
ing the  questions  put  to  him,  from  giving  rational  answers 


it  {Card  v.  Card,  39  N.  Y.  317).  Thus  in  an  action  by  an  attorney 
against  the  executor  of  a  deceased  person  to  recover  for  legal  services 
rendered  to  the  decedent,  the  plaintiff  cannot  be  a  witness  and  testify 
as  to  advice  given  by  him  to  the  decedent  {Prague  v.  Lord,  67  N.  Y. 
495);  so  in  proceedings  for  the  probate  of  a  wili,  a  legatee  under  the 
will  may  not  testify  as  to  personal  transactions  with  the  testator  {Mat- 
ter of  Eysaman,  1 13  N.  Y.  62).  "  Personal  transaction  or  communica- 
tion" is  defined  in  Heyne  v.  Doerfler,  124.  N.  Y.  505,  and  "interest"  in 
Connelly  v.  O'  Connor,  117  N.  Y.  91;  see  also  Eisenlord  v.  Clum,  126 
N.  Y.  552.  A  release  of  one's  interest  may  make  him  a  competent 
witness  {Matter  of  Wilson,  103  N.  Y.  374). 

The  law  of  Congress  is  that  in  an  action  by  or  against  an  executor, 
etc.,  neither  party  shall  testify  against  the  other  as  to  transactions  with 
the  decedent,  unless  called  to  testify  thereto  by  the  opposite  party  or 
required  to  do  so  by  the  court  (U.  S.  Rev.  St.  §  858  ;  Potter v.  National 
Bank,  102  U.  S.  163).  As  to  the  law  of  other  States,  see  Gr.  Ev.  i.  §  329, 
15th  ed.;  English  v.  Porter,  63  N.  H.  206;  Rowland  v.  Phila.  etc.  R. 
Co.,  63  Ct.  4r5  ;  Woolverton  v.  Van  Syckel,  57  N.  J.  L.  393  ;  Stauffer  v. 
Ins.  Ass'n,  164  Pa.  205;  Thomas  v.  Miller,  165  Pa.  216;  Webster  v. 
Le  Compte,  74  Md.  249  ;  Barker  v.  Hebbard,  81  Mich.  267  ;  Williams 
v.  Edwards,  94  Mo.  447. 

There  is  a  special  rule  in  some  States  that  a  party  to  a  negotiable 
instrument  (as  an  indorser)  cannot  be  a  witness  to  prove  that  it  was 
invalid  in  its  inception  (as  for  usury)  to  the  prejudice  of  an  innocent 
holder  for  value  before  maturity  {Smith  v.  McGlinchy,  77  Me.  153; 
Davis  v.  Brown,  94  U.  S.  423  ;  John's  Admr.  v.  Pardee,  109  Pa.  545  ; 
cf.  Jones  v.  Matthews,  8  Lea,  84);  but  in  most  States  such  testimony 
is  admissible.  Gr.  Ev.  i.  §§383-385;  Haines  v.  Dennett,  11  N.  H. 
180;  Pecker  v.  Sawyer,  24  Vt.  459;  Williatns  v.  Walb ridge,  3  Wend. 

4I5-] 

1  See  Note  XL.  [Appendix].  A  witness  under  sentence  of  death 
was  said  to  be  incompetent  in  R.  v.  Webb.,  11  Cox,  133,  sed  quare. 


272  A  DIGEST  OF  [Part  III. 

to  those  questions,  or  from  knowing  that  he  ought  to  speak 
the  truth.1 

A  witness  unable  to  speak  or  hear  is  not  incompetent, 
but  may  give  his  evidence  by  writing  or  by  signs,  or  in 
any  other  manner  in  which  he  can  make  it  intelligible ; 
but  such  writing  must  be  written  and  such  signs  made  in 
open  court.3  Evidence  so  given  is  deemed  to  be  oral 
evidence.3 

1  [In  the  following  cases  children  were  deemed  competent  under 
this  rule  and  were  allowed  to  testify  (  Wheeler  v.  U.  S.,  159  U.  S.  523 
(child  five  years  of  age);  Comm.  v.  Robinson,  165  Mass.  426  (five  years 
and  nine  months);  People  v.  Linzey,  79  Hun,  23  (ten  years);  Draper 
v.  Draper,  68  111.  17  (ten  years);  McGuire  v.  People,  44  Mich.  286  (six 
years);  State  v.  Juneau,  88  Wis.  180  (five  years);  State  v.  Levy,  23 
Minn.  104  (eight  years);  State  v.  Doyle,  107  Mo.  36 (nine  years);  State 
v.  Douglas,  53  Kan.  669  (nine  years);  McGuffv.  State,  88  Ala.  147 
(seven  years);  see  Illustrations  (a)  and  (b)).  In  some  States,  by 
statute,  children  may  be  allowed  to  testify  in  special  cases  without 
taking  an  oath  (N.  Y.  Code  Cr.  Pro.,  §  392  ;  Hughes  v.  Detroit,  etc.  R. 
Co.,  65  Mich.  16  ;  cf.  White  v.  Comm.,  96  Ky.  180). 

Persons  of  unsound  mind  may  also  testify,  if  they  can  appreciate 
the  obligation  of  an  oath  and  have  sufficient  understanding  to  give 
intelligent  and  reliable  answers.  The  jury  may  consider  their  mental 
condition  as  affecting  their  credibility  (Illustration  (c);  Gr.  Ev.  i.  §365; 
District  0/  Columbia  v.  Armes,  107  U.  S.  519;  People  v.  N.  Y.  Hospi- 
tal, 3  Abb.  N.  C.  229 ;  Livingston  v.  Kriersted,  10  Johns.  362;  Pease  v. 
Burrowes,  86  Me.  153;  Kendallx.May,  10  Allen,  59;  Holcombx.  Hol- 
comb,  28  Ct.  177  ;  Coleman  v.  Comm.,  25  Gratt.  865  ;  Tucker  v.  Shaw, 
158  111.  326;  Bowdle  v.  Railway  Co.,  103  Mich.  272;  Cannaday  v. 
Lynch,  27  Minn.  435;  Worthington  v.  Mencer,  96  Ala.  310).  The  same 
general  rules  apply  to  intoxicated  persons.  Hartford  x.  Palmer,  16 
Johns.  143;  Gould  v.  Crawford,  2  Pa.  89;  cf.  State  v.  Costello,  62  la. 
404.] 

3  [Gr.  Ev.  i.  §  366 ;  Wh.  Ev.  i.  §§  406,  407  ;  Queen  v.  Halbert,  55  Vt. 
224,  57  Vt.  178;  Skaggs  v.  State,  108  Ind.  53;  State  v.  Howard,  118 
Mo.  127 ;  State  v.  Weldon,  39  S.  Car.  318.] 

3 [Persons  not  believing  in  the  existence  of  a  God  who  will  punish 
false  swearing  are  also  incompetent  witnesses  by  common  law  [Blair 
v.  Seaver,  26  Pa.  274  ;  People  v.  Matteson,  2  Cow.  433  ;  Free  v.  Buck- 
ingham, 59  N.  H.  219 ;  Arnd  v.  Amling,  53  Md.  192  ;  Clinton  v.  State, 
33  O.  St.  27 ;  Attorney  Gen' I  v.  Bradlaugh,  14  Q.  B.  D.  667).    But  this 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  273 


Illustrations, 
(a)  [Upon  a  criminal  trial  a  girl  thirteen  years  old  was  offered  as  a 
witness  for  the  prosecution.  The  defendant  objected  to  the  adminis- 
tration of  an  oath  to  her,  on  the  ground  that  she  was  ignorant  of  the 
nature  and  obligation  of  an  oath.  The  judge  asked  her  some  ques- 
tions, to  which  she  replied  that  she  understood  that  the  oath  was  to  tell 
the  truth,  and  that  she  would  be  punished  if  she  did  not  tell  the  truth 
after  taking  it,  but  that  she  did  not  know  how  or  by  whom  she  would 


disqualification  has  been  removed  in  many  States  or  rendered  less 
stringent  (Gr.  Ev.  i  §§  368-371 ;  Wh.  Ev.  i.  §§  395,  396 ;  Percey  v.  Pow- 
ers, 51  N.  J.  L.  432  ;  Hronek  v.  People,  134  111.  139  ;  Londenerv.  Lich- 
tenheim,  11  Mo.  App.  385  ;  People  v.  Copsey,  71  Cal.  548;  Bush  v. 
Comm.,  80  Ky.  244).  But  in  some  States,  where  atheism  no  longer  dis- 
qualifies, it  may  nevertheless  be  shown  to  affect  the  witness's  credit 
(Stanbro  v.  Hopkins,  28  Barb.  265  ;  Searcy  v.  Miller,  57  la.  613).  It  is 
the  general  rule,  however,  that  the  witness  must  not  himself  be  exam- 
ined as  to  his  religious  belief  (see  all  the  cases  ;  Dedric  v.  Hopson,  62 
la.  562). 

Infamous  persons,  i.  e.,  persons  convicted  of  treason,  felony,  or  the 
crimen  falsi,  are  also  incompetent  witnesses  at  common  law  in  the 
State  of  their  conviction.  The  crimen  falsi  includes,  in  general,  of- 
fences tending  to  pervert  the  administration  of  justice  through  false- 
hood and  fraud,  as  *?.£■.,  perjury,  forgery,  bribery  of  witnesses,  etc.  (Gr. 
Ev.  i.  §§  372-376;  Wh.  Ev.  i.  §  397 ;  Schuylkill  Co.  v.  Copley,  67  Pa. 
386 ;  State  v.  Randolph,  24  Ct.  363  ;  Benton  v.  Comm.,  89  Va.  570  ;  Syl- 
vester v.  State,  71  Ala.  17;  State  v.  Mullen,  33  La.  Ann.  159).  This 
disability  may  be  removed  by  a  reversal  of  the  judgment  or  by  a  full 
pardon  {Boyd  v.  U.  S.,  142  U.  S.  450  ;  Diehl  v.  Rodgers,  169  Pa.  316; 
Perkins  v.  Stevens,  24  Pick.  277  ;  Werner  v.  State,  44  Ark.  122  ;  Carr 
v.  State,  19  Tex.  App.  635),  though,  in  case  of  a  pardon,  it  has  been 
held  that  the  conviction  may  still  be  shown  to  affect  credibility  {Cur- 
tis v.  Cochran,  50  N.  H.  242).  Conviction  of  an  infamous  crime  by 
courts  in  other  States,  it  is  generally  held,  does  not  disqualify  (Gr.  Ev. 
i.  §§  376-378  ;  Logan  v.  U.  S.,  144  U.  S.  263  ;  Sims  v.  Sims,  75  N.  Y.  466  ; 
cf.  Pitner  v.  State,  23  Tex.  App.  366).  Now,  in  most  States,  under 
modern  statutes,  infamy  no  longer  disqualifies,  though  it  may  be  proved 
to  affect  credibility  (Wh.Ev.i.§  397;  N.Y.  Code  Civ.  Pro.  §832  ;  Mass. 
Pub.  St.  c.  169,  s.  19  ;  Quigley  v.  Turner,  150  Mass.  108  ;  Card  v.  Foot, 
57  Ct.  427  ;  People  v.  O 'Neil,  109  N.  Y.  251;  Matter  of  Noble,  124  111. 
266 ;  State  v.  Loehr,  93  Mo.  103  ;  Sutton  v.  Fox,  55  Wis.  531 ;  see  Art. 
130, post,  note).     In  some  States,  also,  conviction  for  a  non-infamous 


274  A  DIGEST  OF  [Part  III. 

be  punished.  As  the  district  attorney  did  not  care  to  call  her  then,  the 
judge  said  he  would  postpone  the  decision  of  her  competency,  and  she 
could  be  instructed  if  necessary.  The  next  day  she  was  offered  again, 
and  it  appeared  that  in  the  meantime  she  had  been  instructed  by  a 
Christian  minister.  She  testified  that  the  minister  told  her  that  God 
would  punish  her  if,  after  taking  the  oath,  she  testified  what  was  not 
true,  and  that  she  did  not  know  that  before.  The  judge  decided  that 
she  was  a  competent  witness  and  her  testimony  was  properly  re- 
ceived.] ' 

{b)  [A  girl  nine  years  old  was  offered  as  a  witness,  and  being  ques- 
tioned said  that  she  did  not  know  what  the  Bible  was  ;  had  never  been 
to  church  but  once  and  that  was  to  her  mother's  funeral ;  did  not  know 
what  book  it  was  she  laid  her  hand  on  when  sworn  ;  had  heard  tell 
of  God,  but  did  not  know  who  it  was ;  and  that,  if  she  swore  to  a  lie, 
she  would  be  put  in  jail,  but  did  not  know  that  she  would  be  punished 
in  any  other  way.    It  was  held  that  she  was  not  a  competent  witness.] 2 

(c)  [Upon  a  trial  for  manslaughter  for  the  killing  of  a  lunatic  patient 
in  an  insane  asylum,  A,  another  lunatic  patient,  was  offered  as  a  wit- 
ness for  the  prosecution.  Officers  of  the  asylum  testified  that  A  was 
under  a  delusion  that  he  had  a  number  of  spirits  about  him  which 
were  continually  talking  to  him,  but  that  they  had  found  him  perfectly 
rational  except  for  this  delusion,  and  that  they  believed  him  to  be 


crime  may  be  shown  to  affect  credibility  {State  v.  Watson,  63  Me.  128 ; 
Comm.  v.  Ford,  146  Mass.  131 ;  People  v.  Burns,  33  Hun,  296 ;  State  v. 
Sailer,  42  Minn.  258),  but  not  in  other  States  {Card  v.  Foot,  $7  Ct.  427 ; 
Coble  v.  State,  31  O.  St.  100 ;  Bartholomew  v.  People,  104  111.  601  (crim- 
inal cases);  Manners  v.  McClelland,  74  la.  318;  State  v.  Donelly,  130 
Mo.  642).  There  are  a  few  States,  moreover,  in  which  conviction  for 
perjury  or  subornation  of  perjury  is  declared  by  statute  to  render  a 
witness  incompetent.    Gr.  Ev.  i.  §  372,  note,  15th  ed.] 

1  [Comm.  v.  Lynes,  142  Mass.  577;  S.  P.  Day  v.  Day,  56  N.  H.  \\< 
(ten  years  old);  R.  v.  Baylis,  4  Cox,  23.  But  the  contrary  rule  ha; 
also  been  asserted,  viz.,  that  it  is  improper  to  privately  instruct  a  child 
and  thus  render  it  a  competent  witness.  Taylor  v.  State,  22  Tex. 
App.  529.] 

•  [Carter  v.  Stale,  63  Ala.  52  ;  similar  cases  are  McKelton  v.  State, 
88  Ala.  181  (thirteen  years  old);  ^Season  v.  Stale,  72  Ala.  191  (eleven 
years);  Adams  v.  State,  34  Fla.  185  (five  years);  Statev.  Belton,  24 
S.  Car.  185  (twelve  years);  Hoist  v.  State,  23  Tex.  App.  1  (seven 
years);  State  v.  Michael,  37  W.  Va.  565  (five  years);  Jones  v.  People, 
6  Park.  Cr.  126  (nine  years).] 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  275 

quite  capable  of  giving  an  account  of  any  transaction  that  happened 
before  his  eyes.  A,  being  then  examined,  said  :  "  I  am  fully  aware 
that  I  have  a  spirit  and  twenty  thousand  of  them  ;  they  are  not  all 
mine.  ,  .  .  Those  ascend  from  my  stomach  to  my  head  and  also 
those  in  my  ears ;  the  flesh  creates  spirits  by  the  palpitation  of  the 
nerves  and  the  rheumatics ;  all  are  now  in  my  body,  and  round  my 
head;  they  speak  to  me  incessantly, — particularly  at  night ;  .  .  .  they 
are  now  speaking  to  me  ;  they  are  not  separate  from  me ;  but  I  can't 
be  a  spirit,  for  I  am  flesh  and  blood.  ...  I  know  what  it  is  to 
take  an  oath ;  my  catechism  taught  me  from  my  infancy  when  it  is 
lawful  to  swear ;  it  is  when  God's  honor,  our  own  or  our  neighbor's 
good,  require  it.  .  .  .  When  I  swear,  I  appeal  to  the  Almighty  ;  it  is 
perjury,  the  breaking  a  lawful  oath  or  taking  an  unlawful  one  ;  he  that 
does  it  will  go  to  hell  for  all  eternity."  He  was  then  sworn,  and  gave 
a  perfectly  connected  and  rational  account  of  a  transaction  which  he 
reported  himself  to  have  witnessed.  It  was  held  on  appeal  that  his 
testimony  was  properly  received.] ' 

Article  108.* 
competency  in  criminal  cases. 

In  criminal  cases  the  accused  person  and  his  or  her 
wife  or  husband,  and  every  person  and  the  wife  or  hus- 
band of  every  person  jointly  indicted  with  him  and  tried 
at  the  same  time,2  is  incompetent 3  to  testify.4 

Provided   that  in   any  criminal  proceeding  against  a 


*  See  Note  XLI.  [Appendix]. 

1  [R.  v.  Hill,  2  Den.  C.  C.  254;  see  District  of  Columbia  v.  Antics, 
107  U.  S.  519.] 

2  Not  if  they  are  tried  separately  ;  Winsor  v.  R.,  L.  R.  1  Q  B.  390  ; 
Re  Bradlangh,  15  Cox,  217.     [See  p.  276,  note.] 

3  R.  v.  Payne,  L.  R.  1  C.  C.  R.  349,  and  R.  v.  Thompson,  Id.  377. 

4  [The  general  rules  of  the  common  law,  stated  in  this  Article,  are 
still  in  force  in  the  different  States,  unless  abolished  or  modified  by 
statute  (Gr.  Ev.  i.  §§  330,  334-346,  362  ;  Wh.  Cr.  Ev.  §§  390-402,  427  ; 
Hilcr  v.  People,  156  111.  511  ;  Holley  v.  State,  105  Ala.  100 ;  Holman  v. 
State,  72  Miss.  108;  State  v.  Pain,  48  La.  Ann.  311).  But  if  a  co- 
defendant  be  discharged  from  the  record,  as  by  the  entry  of  a  nolle 


276  A  DIGEST  OF  [Part  III. 


husband  or  wife  for  any  bodily  injury  or  violence  inflicted 


prosequi,  or  by  an  acquittal,  he  may  be  a  witness  upon  the  trial  of  the 
others  (Gr.  Ev.  i.  §  363;  Wh.  Cr.  Ev.  §  445 ;  Linsday  v.  People,  63  N.  Y. 
143  ;  Love  v.  People,  160  111.  501  ;  State  v.  Walker, 98  Mo.  95) ;  so  if  he 
be  convicted, or  plead  guilty, but  be  not  yet  sentenced  {Stale  v.  .1/. 
1 17  Mo.  302  ;  Brown  v.  Co)nm.,  86  Va.  935  ;  contra,  Kehoe  v.  Comm. 
85  Pa.  127),  or  even  after  sentence,  if  he  is  not  thereby  rendered  1 
famous  {State  v.  Jones,  51  Me.  125) ;  so  if,  though  jointly  indicted  with 
the  others,  he  is  to  have  a  separate  trial  {Benson  v.  U.  S.,  146  U.  S.  325  ; 
Noyes  v.  State,  41  N.  J.  L.  418  ;  State  v.  Bogue,  52  Kan.  79  ;  Smith  v 
Comm.,  90  Ya.  759 ;  Allen  v.  State,  10  O.  St.  287  ;  cf.  State  v.  Chiagk, 
92  Mo.  395  ;  People  v.  Van  Alstine,  57  Mich.  69;  Adams  v.  State,  28 
Fla.  511;  contra,  Staup  v.  Comm.,  74  Pa.  458). 

Husband  or  wife  may  testify,  by  common  law,  as  to  assault  and 
battery  upon  him  or  her  by  the  other,  or  an  attempt  to  murder,  and 
the  like  {People  v.  Northrup,  50  Barb.  147  ;  State  v.Pennington,  124 
Mo.  388  ;  Comm.  v.  Sapp,  90  Ky.  580 ;  Johnson  v.  State,  94  Ala.  53  ; 
for  a  further  exception,  see  page  298,  note  2).  So  if  either  spouse  be 
a  co-defendant  with  other  persons  and  be  discharged  from  the  record, 
as  by  a.  nolle  prosequi,  a  plea  of  guilty,  etc.,  the  other  spouse  is  a  com- 
petent witness  on  the  trial  of  the  rest  {Love  v.  People,  160  111.  501; 
State  v.  Miller,  100  Mo.  606  ;  State  v.  Guest,  100  N.  C.  410 ;  Woods  v. 
State,  76  Ala.  35  ;  Carr  v.  State,  42  Ark.  204). 

But  it  is  now  provided  by  the  laws  of  Congress  and  by  the  statutes 
of  many  States,  that  the  defendant  in  a  criminal  case  may  be  a  wit- 
ness in  his  own  behalf,  though  the  qualification  is  generally  added 
that  his  failure  to  testify  shall  not  create  any  presumption  against 
him;  so  comment  by  the  prosecuting  officer  upon  such  failure  to 
testify  is  often  prohibited  by  these  statutes  (Act  of  Congress,  Mar.  16, 
1878 ;  N.  Y.  Code  Cr.  Pro.  §  393  ;  Mass.  Pub.  St.  c.  169,  s.  18,  par.  3  ; 
Wh.  Cr.  Ev.  §§  428-436;  Wilson  v.  U.S.,  149  U.  S.  60 ;  Comm.  v. 
Scott,  123  Mass.  239;  People  v.  H ayes,  140N.  Y.  484;  Showalterv. 
State,  84  Ind.  562  ;  Watt  v.  People,  126  111.  9  ;  People  v.  Sansome,  98 
Cal.  235;  Yarorough  v.  Slate,  70  Miss.  593);  if,  however,  defendant 
docs  testify,  the  jury  may  consider  his  interest  in  the  result  of  the 
trial  as  affecting  his  credibility  (Reagan  v.  U.  S.,  157  U.  S.  301  ;  People 
v.  Crowley,  102  N.  Y.  234  ;  Doyle  v.  People,  147  111.  394  ;  State  v.  Pratt, 
121  Mo.  566).  So  by  the  statutes  of  some  States,  persons  jointly  in- 
dicted may  be  witnesses  for  or  against  each  other  (People  v.  Doivling, 
84  N.  Y.  478  ;  Comm.  v.  Brown,  130  Mass.  279 ;  Conway  v.  State,  1  iS 
Ind.  482  ;  State  v.  Smith,  86  N.  C.  705  ;  Kidwell  v.  Comm.,  97  Ky.  538  ; 
Wh.  Cr.  Ev.  §  445);  or  the  husband  or  wife  of  the  defendant  may  be 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  277 

upon  his  or  her  wife  or  husband,1  such  wife  or  husband  is 
competent  and  compellable  to  testify.3 

Article  109. 

[husband  and  wife  in  civil  cases— cases  of  adultery.] 

[In  civil  cases  the  lawful  husband  or  wife  of  a  party,  or 
of  a  person  whose  interests  are  directly  involved  in  the 
suit,  is  an  incompetent  witness  by  the  common  law.3  And 
even    after  the  marriage  is  dissolved   by  the  death  of 


a  witness,  except  to  disclose  confidential  communications  (N.  Y.  Pen. 
Code,  §  715  ;  Me.  Rev.  St.  c.  134,  s.  19  ;  Md.,  Laws  of  1888,  c.  545,  s.  3). 
By  some  statutes  husbands  and  wives  may  not  testify  against  each 
other  in  criminal  cases  except  for  a  crime  committed  by  one  against 
the  other.  Some  States  hold  that  not  only  criminal  acts  of  violence, 
but  also  adultery,  bigamy,  and  incest  are  crimes  against  the  other 
{State  v.  Chambers,  87  la.  1;  Lord  v.  State,  17  Neb.  526;  cf.  Jordan 
v.  State,  142  Ind.  422  ;  Dill  v.  People,  19  Col.  469);  but  other  decisions 
are  to  the  contrary  (Bassett  v.  U.  S.,  137  U.  S.  496;  People  v. 
Quanstrom,^  Mich.  254  ;  McLean  v.  State,  32  Tex.  App.  521).  Again, 
in  some  States  each  spouse  may  be  for  certain  purposes  a  witness,  if 
the  other  consent  {People  v.  Gordon,  100  Mich.  518;  State  v.  Willis, 
119  Mo.  485),  or  is  declared  competent,  but  not  compellable,  to  testify 
against  the  other  {Comm.  v.  Moore,  162  Mass.  441  ;  State  v.  McCord, 
8  Kan.  232);  and  there  are  also  other  special  statutory  rules.  See  the 
statutes  of  the  different  States.] 

1  Reeve  v.  Wood,  5  B.  &  S.  364.  Treason  has  been  also  supposed  to 
form  an  exception.     See  T.  E.  s.  1237. 

2  [At  this  point  Mr.  Stephen  adds  to  this  Article  certain  English 
statutory  qualifications,  and  also  inserts  Articles  108  A  and  108  B,  sum- 
marizing the  provisions  of  special  English  statutes,  which  provide 
that  accused  persons,  and  their  husbands  or  wives,  may  be  witnesses  in 
trials  for  particular  criminal  offences.  These  provisions,  as  stated 
by  Mr.  Stephen,  will  be  found  in  the  Appendix,  Note  LI  I.] 

3[Gr.  Ev.  i.  §§  334-346;  Banister  v.  Ovit,  64  Vt.  480  ;  Johnson  v. 
Fry,  88  Va.  695  ;  Craig  v.  Miller,  133  111.  300  ;  Carney  v.  Gleissner, 
58  Wis.  674  ;  Joice  v.  Branson,  73  Mo.  28  ;  Leahy  v.  Leahy,  97  Ky.  59. 
So  a  wife  cannot  testify  for  or  against  a  co-defendant  tried  with  her 
husband,  where  her  testimony  would  concern  her  husband  or  affect 


278  A  DIGEST  OF  [Part  III. 

either  party  or  by  divorce,  neither  party  thereto  can 
testify  as  to  the  facts  learned  through  the  confidence  of 
the  marital  relation,  but  may  as  to  other  facts.1  These 
rules  apply  to  proceedings  instituted  in  consequence  of 
adultery 2  as  well  as  to  other  civil  cases.]  s 


his  interests  (Gr.  Ev.  i.  §  335;  Cornelius  v.  ffambay,  150  Pa.  364). 
But  in  collateral  proceedings,  not  immediately  affecting  their  mutual 
interests,  the  testimony  of  husband  or  wife  may  be  received,  though 
tending  indirectly  to  criminate  the  other.  Gr.  Ev.  i.  §  342  ;  Keep  v. 
Griggs,  12  111.  App.  511;  see. post,  page  298,  note  2.] 

1  [French  v.  Ware,  65  Vt.  338 ;  Bigelow  v.  Sickles,  75  Wis.  427 ; 
Toovey  v.  Baxter,  59  Mo.  App.  470 ;  Lingreen  v.  ///.  Cent.  R.  Co.,  61 
111.  App.  174  ;  Babcock  v.  Booth,  2  Hill,  181  ;  Dickerman  v.  Graves, 
6  Cush.  308;  Robb's  Appeal,  98  Pa.  501  ;  Wottrich  v.  Freeman,  71 
N.  Y.  601  ;  Bishop,  M.  D.  &  S.  ii.  §§  1662-1665  ;  but  see  Rea  v.  Tucker, 
51  111.  1 10  ;  Hansehnan  v.  Dovel,  102  Mich.  505  ;  Swan  v.  Housman,  90 
Va.  816.  The  same  rule  has  been  applied  in  criminal  cases.  U.  S.  v. 
Guiteau,  1  Mackey,  498 ;  Comm.  v.  Sapp,  90  Ky.  580 ;  cf.  Owen  v. 
State,  78  Ala.  425.] 

2  [Id.  For  a  special  rule  in  bastardy  cases,  see  Art.  98,  ante.  The 
common  law  rules,  stated  in  this  Article,  are  still  in  force  in  the 
different  States,  unless  changed  by  statute.] 

3  [The  original  article  of  Mr.  Stephen,  stating  the  present  English 
law,  is  as  follows  : 

"COMPETENCY    IN   PROCEEDINGS    RELATING   TO  ADULTERY. 

"  In  proceedings  instituted  in  consequence  of  adultery,  the  parties 
and  their  husbands  and  wives  are  competent  witnesses,  provided  that 
no  witness  in  any  (such?)  proceeding,  whether  a  party  to  the  suit  or 
not,  is  liable  to  be  asked  or  bound  to  answer  any  question  tending  to 
show  that  he  or  she  has  been  guilty  of  adultery,  unless  such  witness 
has  already  given  evidence  in  the  same  proceeding  in  disproof  of  his 
or  her  alleged  adultery.  32  &  33  Vict.  c.  68,  s.  3.  (The  word  'such' 
seems  to  have  been  omitted  accidentally.)" 

In  this  country  also,  by  modern  statutes,  husband  and  wife  are  in 
many  States  allowed  to  testify  for  or  against  each  other  in  civil 
actions,  but  special  limitations  are  sometimes  imposed  in  cases 
grounded  upon  adultery.  Thus  in  New  York,  husband  or  wife  cannot 
testify  against  the  other  in  proceedings  founded  upon  an  allegation 
of  adultery,  except  to  prove  the  marriage  or  disprove  the  allegation 
of  adultery  ;  and  in  an  action  for  criminal  conversation  plaintiff's  wife 
cannot  testify  for  him,  but  may  for  the  defendant,  except  that  she 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  279 

Article  iio. 
communications  during  marriage. 

No  husband  is  compellable  to  disclose  any  communica- 
tion made  to  him  by  his  wife  during  the  marriage,  and  no 
.rife  is  compellable  to  disclose  any  communication  made 
to  her  by  her  husband  during  the  marriage.1 

cannot  disclose  confidential  communications  between  herself  and  her 
husband  without  his  consent  (Code  Civ.  Pro.  §  831).  In  other  cases 
they  may  testify,  but  neither  can  disclose  confidential  communications 
without  the  consent  of  the  other,  if  living  (Id.  §§  828,  831).  Similar 
provisions  are  in  force  in  several  other  States  (Ind.  Rev.  St.  §§  505, 
509 ;  3  How.  St.  (Mich.)  §  7546  ;  Wis.  Rev.  St.  §  4072  ;  Code  of  N.  C. 
§  588).  In  New  Jersey  husband  and  wife  may  testify  in  civil  actions 
generally,  including  proceedings  for  divorce  on  account  of  adultery, 
except  as  to  confidential  communications  (N.  J.  Rev.  i.  p.  378;  ii.  p. 
288;  Lippi?icott v .  Wikoff,  54  N.  J.  Eq.  107  ;  cf.  Br.  Purd.  Dig.  (Pa.) 
12th  ed.  i.  p.  817).  So  in  Massachusetts  they  may  testify,  except  as  to 
private  conversations  with  each  other  (Pub.  St.  c.  169,  §  18).  It  is  a 
special  provision  of  some  statutes  that  either  spouse,  having  acted  as 
agent  for  the  other,  may  testify  as  to  such  transactions  as  agent 
{Pfeferle  v.  State,  39  Kan.  128 ;  Reno  v.  Kingsbury,  39  Mo.  App.  240; 
111.  Rev.  St.  c.  51,  s.  5).  So  the  right  of  either  to  testify  is  sometimes 
made  to  depend  upon  the  other's  consent  ( Wolford  v.  Farnham,  44 
Minn.  159;  3  How.  St.  (Mich.)  §7546  ;  Cal.  Code  Civ.  Pro.  §  1881).  The 
statutes  of  the  different  States  have  many  diverse  provisions,  and 
should  be  specially  consulted  (see  Spitz  s  Appeal,  56  Ct.  184  ;  Bitner 
v.  Boone,  128  Pa.  567  ;  Reynolds  v.  Schaffer,  91  Mich.  494  ;  Howard 'v. 
Brower,  37  O.  St.  402  ;  Wh.  Ev.  i.§  431  ;  Bishop,  M.  D.  &  S.  ii.§§  777- 
786).  But  statutes  removing  the  disability  of  parties  ox  persons  inter- 
e<ted  to  testify  do  not  enable  husband  and  wife  to  be  witnesses  ;  there 
must  be  special  acts  for  this  purpose.  Lucas  v.  Brooks,  18  Wall.  436; 
Ah.  Ev.  i.  §430.] 

1  16  &  17  Vict.  c.  83,  s.  3.  It  is  doubtful  whether  this  would  apply  to 
a  widower  or  divorced  person,  questioned  after  the  dissolution  of  the 
marriage  as  to  what  had  been  communicated  to  him  whilst  it  lasted. 

[Sounder  modern  statutes  in  this  country,  it  is  the  general  rule  that 
confidential  communications  between  husband  and  wife  cannot  be 
disclosed  by  either  (see  Art.  109,  note).  These  do  not  include  all  com- 
munications made  between  husband  and  wife,  but  only  "such  as  are 


280  A  DIGEST  OF  [Part  III. 

Article  hi.* 
judges  and  advocates  privileged  as  to  certain  questions. 

It  is  doubtful  whether  a  judge  is  compellable  to  testify- 
as  to  anything  which  came  to  his  knowledge  in  court  as 


*  See  Note  XLII.  [Appendix], 
expressly  made  confidential,  or  such  as  are  of  a  confidential  nature  or 
induced  by  the  marital  relation  "  {Parkhurst  v.  Berdell,  1 10  N.  Y.  386  ; 
Warner  v.  Press  Co.,  132  N.  Y.  181 ;  Seitz  v.  Seitz,  170  Pa.  71 ;  Schmied 
v.  Frank,  86  Ind.  250 ;  cf.  Wood  v.  Chetivood,  27  N.  J.  Eq.  311;  U.  S. 
v.  Guitean,  1  Mackey,  498).  Some  statutes  omit  the  word  "confiden- 
tial," specifying  only  "  communications  "  as  privileged,  including  there- 
fore those  which  are  and  those  which  are  not  confidential  {Campbell 
v.  Chace,  12  R.  I.  333  ;  Leppla  v.  Tribune  Co.,  35  Minn.  310  ;  People  v. 
Miillings,  83  Cal.  138 ;  Comm.  v.  Sapp,  go  Ky.  580;  S.  P.  in  Mass.  as 
to  "private"  conversations,  Comm.  v.  Hayes,  145  Mass.  289).  "Com- 
munications" includes  both  oral  and  written  statements  {People  v. Hayes, 
140  N.  Y.  484  ;  Orrv.  Miller,  98  Ind.  436),  while  "conversations"  does 
not  include  writings  ( Comm.  v.  Caponi,  155  Mass.  534).  When  oral  com- 
munications are  overheard,  the  hearer  {Comm.  v.  Griffin,  1 10  Mass.  181; 
Gannon  v.  People,  127  111.  507  ;  State  v.  Gray,  55  Kan.  135)  or  the  hus- 
band or  wife  {Lyon  w.Prouty,  154  Mass.  488  ;  Sessions  v.  Trevitt,  39  O. 
St.  259 ;  contra,  Ca??ipbell  v.  Chace,  12  R.  I.  333  ;  cf.  Hopkins  v.  Grim- 
shaw,  165  U.  S.  342)  may  be  required  to  disclose  them.  So  written 
communications  may  be  used  as  evidence,  if  they  have  been  trans- 
ferred to  the  hands  of  third  persons,  not  agents  or  representatives  of 
the  recipient  {People  v.  Hayes,  140  N.  Y.484;  State  v.  Buffington,  20  Kan. 
599;  State  v.  Hoyt,  47  Ct.  518);  but  they  are  privileged,  if  in  the  pos- 
session of  the  recipient's  attorney  or  executor  {Selden  v.  State,  74  Wis. 
271;  Bowman  v.  Patrick,  32  F.  R.  368;  cf.  Brown  v.  Brown,  53  Mo. 
App  453)-  The  death  of  either  spouse  or  a  divorce  does  not  destroy 
the  privilege  as  to  communications  between  husband  and  wife  {Hitch- 
cock v.  Moore,  70  Mich.  112;  O 'Bryan  v.  Allen,  95  Mo. 68  ;  Hopkins  v. 
Grimshaw,  165  U.  S.  342  ;  Stanley  v.  Montgomery,  102  Ind.  102  ;  Goelz 
v.  Goelz,  157  111.  33).  When  a  husband  is  made  use  of  by  others  to  per- 
petrate a  fraud  upon  his  wife,  a  court  of  equity  may,  in  order  to  expose 
the  fraud,  permit  both  to  testify  to  their  conversations  about  the  mat- 
ter.    Moeckel  v.  Heim,  134  Mo.  576.] 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  281 


such  judge.1    It  seems  that  a  barrister  cannot  be  compelled 


1  R.  v.  Gazard,  8  C.  &  P.  595.  [A  judge  sitting  alone  to  try  a  cause 
cannot  be  a  witness  on  the  same  trial ;  nor  when  he  sits  with  others  and 
his  presence  is  necessary  to  a  duly  organized  court,  can  he  properly 
testify  in  the  cause  on  trial  {Dabney  v.  Mitchell,  66  Ala.  495  ;  Rogers 
v.  State,  60  Ark.  76  ;  Baker  v.  Thompson,  89  Ga.  486  ;  People  v.  Miller, 
2  Park.  Cr.  197  ;  see  McMillen  v.  Andrews,  10  O.  St.  112).  But  if  he 
does  testify  when  he  sits  with  others,  and  no  exception  is  taken  there- 
to, the  judgment  of  the  court  is  not  invalidated  {People  v.  Dohring, 
59  N.  Y.  374  ;  Wright  v.  McCampbell,  75  Tex.  644).  These  rules 
apply  also  to  other  judicial  officers,  as  referees,  etc.  {Morss  v.  Morss, 
11  Barb.  510;  see  Gr.  Ev.  i.  §§  249,  364).  A  judge's  testimony  as  to 
the  grour.ds  of  a  former  decision  rendered  by  him  has  also  been  ex- 
cluded {Agan  v.  Hey,  30  Hun,  591  ;  but  see  Supples  v.  Cannon,  44  Ct. 
430;  Taylor  v.  Larkift,  12  Mo.  103;  cf.  Barrett  v.  fames,  30  S.  Car. 
329  ;  Appeal  of  Allen,  38  Atl.  R.  (Ct.),  701). 

A  justice  may  be  a  witness  to  verify  his  minutes  or  docket  entries, 
in  proving  the  testimony  of  a  witness  in  a  former  case  tried  before  him 
{Huff  v.  Bennett,  4  Sandf.  120, 6  N.  Y.  337;  Spalding  v.  Lowe,  56  Mich. 
366 ;  Zitske  v.  Goldberg,  38  Wis.  216 ;  Welcome  v.  Batchelder,  23  Me. 
85  ;  Schallv.  Miller,  5  Whart.  156  ;  cf.  Corby  M.Wright,  9  Mo.  App. 
5);  or  in  proving  the  proceedings  before  him  or  the  judgment  rendered 
{Pollock  v.  Hoag,  4  E.  D.  Sm.  473  ;  Boomer  v.  Laine,  10  Wend.  526 ; 
McGrath  v.  Seagrave,  2  Allen,  443  ;  Hibbs  v.  Blair,  14  Pa.  413) ;  but 
his  entries,  not  so  verified,  are  not  good  evidence  {Schafer  v.  Schafer, 
93  Ind.  586  ;  State  v.  Whelehon,  102  Mo.  17).  So  a  justice  may  testify 
as  to  the  identity  of  an  issue  on  trial  with  one  formerly  tried  before 
him,  if  his  testimony  does  not  contradict  the  record  {State  v.  Water- 
man, 87  la.  255  ;  Black  v.  Miller,  75  Mich.  323) ;  or  as  to  admissions 
or  contradictory  evidence  in  testimony  previously  given  before  him 
{State  v.  Van  Winkle,  80  la.  15  ;  State  v.  Duffy,  57  Ct.  525) ;  or  upon 
what  papers  process  was  issued  by  him  {Heyward ' s  Case,  1  Sandf.  701), 
or  as  to  various  collateral  matters  {Highberger  v.  Stiffler,  21  Md.  338  ; 
fackson  v.  Humphrey,  1  Johns.  498). 

Auditors,  arbitrators,  etc.,  may  not  give  testimony  to  impeach  their 
report  or  award  {Packard  v.  Reynolds,  100  Mass.  153  ;  Schmidt  v. 
Glade,  126  111.  485  ;  Ellison  v.  Weathers,  78  Mo.  115  ;  see  Briggs  v. 
Smith,  20  Barb.  409;  aliter,  in  cases  of  fraud,  Withington  v.  Warren, 
10  Met.  431  ;  Pulliam  v.  Pensoncau,  33  111.  375).  But  they  may  testify 
as  to  matters  openly  occurring  before  them  on  the  hearing,  including 
admissions  of  a  party,  etc.  {Calvert  v.  Friebus,  48  Md.  44  ;  Tobin  v. 
fones,  143  Mass.  448 ;    Graham  v.  Graham,  9  Pa.  254) ;   or  in  support 


282  A  DIGEST  OF  [Part  III. 

to  testify  as  to  what  he  said  in  court  in  his  character  of  a 
barrister.1 

Article  112. 

evidence  as  to  affairs  of  state. 

No  one  can  be  compelled  to  give  evidence  relating  to 
any  affairs  of  state,  or  as  to  official  communications  be- 
tween public  officers  upon  public  affairs,  unless  the  officer 
at  the  head  of  the  department  concerned  permits  him  to 
do  so,2  or  to  give  evidence  of  what  took  place  in  either 


or  explanation  of  their  award,  or  as  to  collateral  facts  (Gr.  Ev.  ii.  §  78  ; 
Wh.  Ev.  i.  §  599;  Converse  v.  Colton,  49  Pa.  346;  Hale  v.  Huse,  10 
Gray,  99  ;  Robinson  v.  Shanks,  118  Ind.  125;  Duke  of  Bucclengh  v. 
Metr.  Bd.  of  Works,  L.  R.  5  E.  &  I.  App.  418). 

A  quasi-judicial  officer,  as  a  merchant  appraiser  under  tariff  laws, 
may  not  testify  to  his  own  neglect  of  duty  (Oelberman  v.  Mcrritt,  19 
F.  R.  408).  In  some  States,  also,  an  officer  who  has  taken  an  ac- 
knowledgment of  a  deed  is  not  a  competent  witness  to  prove  facts 
impeaching  his  certificate.  Mutual  Ins.  Co.  v.  Corey,  135  N.  Y.  334; 
Stone  v.  Montgomery,  35  Miss.  83.] 

1  Curry  v.  Walter,  1  Esp.  456.  [A  person  is  a  competent  witness  in 
a  case  in  which  he  is  acting  as  attorney  or  counsel  ;  but  the  practice 
is,  in  general,  disapproved,  and  should  only  be  resorted  to  in  case  of 
necessity,  as  where  it  is  requisite  to  prevent  injustice  (Gr.  Ev.  i.  §  364  ; 
French  v.  Hall,  1 19  U.  S.  152  ;  Freeman  v.  Fogg,  82  Me.  408  ;  Con- 
nelly v.  Straw,  53  Wis.  645  ;  Sebree  v.  Smith,  2  Ida.  330 ;  Little  v. 
McKcon,  1  Sandf.  607  ;  Follansbee  v.  Walker,  72  Pa.  228  ;  Potter  v. 
Ware,  1  Cush.  519;  Branson  v.  Caruthers,  49  Cal.  374;  Morgan  v. 
Roberts,  38  111.  65).  The  fact  of  his  being  attorney  in  the  case,  or  that 
his  fee  is  contingent  upon  the  result,  goes  to  his  credibility,  not  to  his 
competency  (Thon  v.  Rochester  R.  Co.,  83  Hun,  443  ;  C.  B.  U.  P.  R. 
Co.  v.  Andrews,  41  Kan.  370  ;  Moats  v.  Rymer,  18  \V.  Va.  642).  So 
the  practice  is  discountenanced  of  a  lawyer's  being  his  own  witness, 
when  he  is  acting  as  his  own  client.  Thresher  v.  Stonington  Bk.,  68 
Ct.  201.] 

2  Beatson  v.  Skene,  5  H.  &  N.  838.  [Cf.  Hennessy  v.  Wright,  21  Q.  B. 
D.  509.    So  in  this  country,  the  President,  the  governors  of  the  several 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  283 

House  of  Parliament,  without  the  leave  of  the  House, 
though  he  may  state  that  a  particular  person  acted  as 
Speaker.1 

Article  113. 
information  as  to  commission  of  offences. 

In  cases  in  which  the  government  is  immediately  con- 
cerned no  witness  can  be  compelled  to  answer  any  ques- 
tion, the  answer  to  which  would  tend  to  discover  the  names 
of  persons  by  or  to  whom  information  was  given  as  to  the 
commission  of  offences.2 

In  ordinary  criminal  prosecutions  it  is  for  the  judge  to 
decide  whether  the  permission  of  any  such  question  would 
or  would  not,  under  the  circumstances  of  the  particular 
case,  be  injurious  to  the  administration  of  justice.3 


States,  and  their  cabinet  officers,  are  not  bound  to  produce  papers  or 
disclose  information  committed  to  them,  in  a  judicial  inquiry,  when  in 
their  own  judgment  the  disclosure  would  on  public  grounds  be  inex- 
pedient (Gr.  Ev.  i.  §  251 ;  Appeal  of  Hartranft,  85  Pa.  433  ;  Thompson 
v.  German,  etc.  R.  Co.,  22  N.  J.  Eq.  in;  cf.  Totten  v.  U.  S.,  92  U.  S.  105). 
Nor  without  permission  of  government  can  other  persons  be  compelled 
to  make  such  disclosures  (see  Worthington  v.  Scribner,  109  Mass.  487). 
A  foreign  ambassador  in  the  United  States  is  not  bound  to  obey  a 
subpoena,  and  the  same  rule  is  sometimes,  by  treaty,  made  applicable 
to  foreign  consuls,  hi  re  Dillon,  7  Sawy.  561 ;  U.  S.  v.  Trumbull,  48 
F.  R.  94.] 

1  Chubb  v.  Salomons,  3  C.  &  K.  77  ;  Plunkett  v.  Cobbett,  5  Esp.  136.  - 

2  [At  this  point  Mr.  Stephen  adds  a  special  rule  of  the  English  law, 
not  applicable  here.     It  will  be  found  in  the  Appendix,  Note  LII.] 

3  R.  v.  Hardy,  24  S.  T.  811;  A.  G.  v.  Bryant,  15  M.  &  W.  169 ;  R.  v. 
Richardson,  3  F.  &  F.  693.  [Gr.  Ev.  i.  §  250  ;  Marks  v.  Bey/us,  25  Q. 
B.  D.  494  ;  U.  S.  v.  Moses,  4  Wash.  C.  C.  726 ;  Vogelv.  Gruaz,  1 10  U.  S. 
311 ;  People  v.  Laird,  102  Mich.  135 ;  State  v.  Soper,  16  Me.  293;  Worth- 
ington v.  Scribner,  109  Mass.  487.  This  last  case  maintains  that  the 
assent  of  the  government  is  required  before  a  witness  can  disclose 
such  information,  and  R.  v.  Richardson  is  questioned.] 


284  A  DIGEST  OF  [Part  III. 

Article   114. 
competency  of  jurors. 

A  petty  juror  may  not,1  and  it  is  doubtful  whether  a 
grand  juror  may,  give  evidence  as  to  what  passed  be- 


1  Vaise  v.  Delaval,  1  T.  R.  11;  Burgess  v.  Langley,  5  M.  &  G.  722. 
[Gr.  Ev.  i.  §  252  a  ;  Woodward  v.  Leavitt,  107  Mass.  453;  Rowe  v.  Can- 
ney,  139  Mass.  41;  Comm.  v.  White,  147  Mass.  76;  Dalrymple  v.  Wil- 
liams, 63  N.  Y.  361 ;  State  v.  Pike,  65  Me.  in;  Hutchinson  v.  Consum- 
ers' Coal  Co.,  36  N.  J.  L.  24.  It  is  a  general  rule,  often  applied  upon 
motions  for  a  new  trial,  that  the  affidavits  or  testimony  of  jurors  are 
not  admissible  to  impeach  their  own  verdict,  as  e.g.,  by  showing  their 
mistakes  or  misconduct,  or  their  improper  methods  of  reaching  a  ver- 
dict, or  the  motives  which  influenced  them,  or  what  was  said  or  done 
in  their  deliberations,  or  that  they  misunderstood  the  instructions  of 
the  court  or  the  effect  of  their  verdict,  etc.  {Bridgewater  v.  Plymouth, 
97  Mass.  382  ;  Williams  v.  Montgomery,  60  N.  Y.  648  ;  Meade  v.  Smith, 
16  Ct.  346;  Shepherd  \ .  Camden,  82  Me.  535  ;  Taylor  v.  Garnett,  no 
Ind.  166  ;  Sanitary  District  v.  Cullerton,  147  111.  385  ;  People  v.  Stimer, 
82  Mich.  17  ;  State  v.  Wood,  124  Mo.  412  ;  People  v.  Kloss,  115  Cal.  567  ; 
for  a  full  collection  of  cases,  see  24  Am.  Dec.  475  ;  12  Id.  142);  nor  are 
statements  of  like  character  made  by  them  out  of  court  after  the  trial 
provable  {Comm.  v.  Meserve,  156  Mass.  61;  Warren  v.  Spencer  Co., 
143  Mass.  155  ;  State  v.  Cooper,  85  Mo.  256).  But  their  testimony  has 
been  received  to  support  or  establish  their  verdict,  which  has  been  at- 
tacked or  impeached  by  evidence  aliunde,  or  to  exculpate  them  from 
alleged  misconduct  {Peck  v.  Brewer,  48  111.  54;  People  v.  Hunt,  59 
Cal.  430;  Clement  v.  Spear,  56  Vt.  401;  Chicago,  etc.  R.  Co.  v.Mc- 
Daniel,  134  Ind.  166;  State  v.  Rush,  95  Mo.  199),  though  some 
authorities  exclude  even  such  evidence,  when  it  discloses  the  conduct 
or  grounds  of  action  of  the  jurors  in  their  deliberations  (  Woodward  v. 
Leavitt,  supra;  Mattox  v.  U.  S.,  146  U.  S.  140;  contra,  Knight  v. 
Epson,  62  N.  H.  356  ;  Ketinedy  v.  Kennedy,  18  N.  J.  L.  450).  Jurors 
may  also  give  evidence  in  denial  or  explanation  of  acts  or  declarations 
made  by  them  outside  of  the  jury  room,  which  are  relied  upon  to 
show  bias  or  prejudice  {Chemical  Light  Co.  v.  Howard,  150  Mass. 
495  ;  State  v.  Harrison,  36  W.  Va.  729);  or  to  show  the  identity  of 
the  subject-matter  in  different  actions,  when  this  is  not  disclosed  by 
the  record  (Stap/eton  v.  King,  40  la.  278;  Follansbce  v.  Walker,  74 
Pa.  306;  see  Packet  Co.  v.  Sickles,  5  Wall.  580);   or  to  show  a  juror's 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  285 

tween  the  jurymen  in  the  discharge  of  their  duties.1  It  is 
also  doubtful  whether  a  grand  juror  may  give  evidence 
as  to  what  any  witness  said  when  examined  before  the 
grand  jury. 

Illustration. 
[Upon  a  motion  for  a  new  trial,  the  moving  party  offers  in  evi- 
dence the  affidavits  of  some  of  the  jurors  who  sat  upon  the  original 
trial  that  they  arrived  at  their  verdict  by  agreeing  that  each  juror 


acts  while  separated  from  his  fellows,  or  that  he  was  improperly  ap- 
proached outside  of  the  jury  room  by  a  party  or  witness,  etc.  {HeJJron 
v.  Gallupe,  55  Me.  563;  Johnson  v.  Witt,  138  Mass.  79);  or  to  show 
that  the  verdict  was  wrongly  announced  in  court  by  the  foreman  or 
was  wrongly  entered  {Peters  v.  Fogarty,  55  N.  J.  L.  386  ;  Dalrymple 
v.  Williams,  63  N.  Y.  361);  or  to  show  what  testimony  was  given  on  a 
former  trial  {Hewett  v.  Chapman,  49  Mich.  4);  and  even  in  some 
States  to  impeach  a  verdict  for  grounds  not  essentially  inherent 
therein  (Swails  v.  Cissna,  61  la.  693  ;  Brothers  v.  Jasper,  27  Kan.  770 ; 
Harris  v.  Slate,  24  Neb.  803;  cf.  Mattox  v.  U.  S.,  146  U.  S.  140). 
A  juror  may  be  a  witness  upon  the  same  trial  in  which  he  is  acting  as 
juror.  Howserx.  Comm.,  51  Pa.  332;  People  v.  Dohring,  59  N.  Y, 
374,  378;  Schmidt  v.  N.  Y.  etc.  R.  Co.,  1  Gray,  529;  White  v.  State, 
73  Miss.  50 ;  State  v.  Vari,  35  S.  Car.  175  ;  N.  Y.  Code  Cr.  Pro.  §  413  ; 
cf.  Richards  v.  State,  36  Neb.  17.] 

1  1  Ph.  Ev.  140 ;  T.  E.  s.  863.  [It  is  the  general  rule  in  this  country 
that  a  grand  juror  cannot  give  such  testimony  as  to  their  deliberations, 
proceedings,  votes,  etc.  (Gr.  Ev.  i.  §  252  ;  Wh.  Ev.  i.  §  601  ;  State  v. 
Hamlin,  47  Ct.  95;  People  v.  Hulbut,  4  Den.  133;  State  v.  Davis,  41  la. 
311  ;  Lovelandv.  Cooley,  59  Minn.  259;  State  v.  Comeau,  48  La.  Ann. 
249;  N.  Y.  Code  Cr.  Pro.  §  265  ;  Mass.  Pub.  St.  c.  213,  s.  13) ;  nor  can 
persons  who  were  present  in  the  grand  jury  room  by  lawful  authority, 
as  the  prosecuting  attorney,  the  clerk,  etc.  {Gitchell  v.  People,  146  111. 
1 75 ;  State  v.  Johnson,  1 1 5  Mo.  480 ;  but  see  Stale  v.  Grady,  84  Mo.  220). 
But  grand  jurors,  it  is  now  generally  held,  may  testify  whether  a  par- 
ticular person  did  or  did  not  give  evidence  before  them  {Comm.  v. 
Hill,  11  Cush.  137;  People  v.  Northey,  77  Cal.  619);  or  who  was  the 
prosecutor  {Huidckoper  v.  Cotton,  3  Watts,  56)  ;  or,  in  impeachment 
of  a  witness's  credibility,  may  disclose  his  testimony  before  them,  in 
order  to  show  that  it  differed  from  that  given  before  the  petty  jury 
{Comm.  v.  Mead,  12  Gray,  167  ;  State  v.  Benner,  64  Me.  267  ;  Stale  v. 
Wood,  53  N.  H.  484  ;  Gordon  v.  Comm.,  92  Pa.  216 ;  Burdick  v.  Hunt, 


286  A  DIGEST  OF  [Part  III. 

should  write  down  the  sum  which  he  wished  to  give  as  damages,  that 
the  aggregate  amount  should  be  divided  by  twelve,  and  that  the  sum 
so  ascertained  should  be  given  as  the  amount  of  their  verdict.  Though 
such  a  verdict  is  void,  the  affidavits  of  the  jurors  are  not  admissible 
to  show  its  invalidity.] ' 

Article  115.* 

PROFESSIONAL   COMMUNICATIONS. 

•  No  legal  adviser  is  permitted,  whether  during  or  after 
the  termination  of  his  employment  as  such,  unless  with 


*  See  Note  XLIII.  [Appendix]. 
43  Ind.  381;  Bressler  v.  People,  117  111.  422  ;  State  v.  Thomas,  99  Mo. 
235  ;  State  v.  Brown,  28  Or.  147;  Pellum  v.  State,  89  Ala.  28;  N.  Y. 
Code  Cr.  Pro.  §  266) ;  or  to  show  a  witness's  perjury,  confessions,  or  vol- 
untary statements,  made  before  the  grand  jury  (Id.;  U.  S.  v.  Negro 
Charles,  2  Cr.  C.  C.  76  ;  State  v.  Coffee,  56  Ct.  399 ;  Izer  v.  State,  jj  Md. 
no;  State  v.  Carroll,  85  la.  1;  State  v.  Moran,  15  Or.  262  ;  Covim.  v. 
Scowden,  92  Ky.  120 ;  Jenkins  v.  Stale,  35  Fla.  737 ;  Bishop's  New  Cr. 
Pro.  §§  857,  858);  or,  in  an  action  for  malicious  prosecution,  to  disclose 
the  evidence  given  against  plaintiff  before  the  grand  jury  {Hunter  v. 
Randall,  69  Me.  183;  contra,  Kennedy  v.  Holladay,  105  Mo.  24;  cf. 
Owens  v.  Owens,  81  Md.  518).  It  is  also  held  in  some  States  that  in  a 
direct  proceeding  to  set  aside  or  quash  an  indictment,  the  testimony 
of  the  grand  jurors  will  be  received,  that  twelve  of  their  number  did 
not  concur  in  finding  it  {Low's  Case,  4  Me.  439;  Territory  v.  Hart,  7 
Mont.  42  &  489  ;  People  v.  S hat  tuck,  6  Abb.  N.  C.  33  ;  and  so  as  to  other 
grounds  for  quashing,  see  U.  S.  v.  Farrington,  5  F.  R.  343);  but  some 
States  refuse  to  adopt  this  rule  {Gitckell  v.  People,  146  111.  175  ;  State 
v.  Grady,  84  Mo.  220 ;  see,  as  to  a  collateral  proceeding,  People  v.  Hul- 
but,  supra;  and  see  16  Am.  Dec.  281).  Some  States  declare  broadly 
that  the  evidence  of  grand  jurors  is  admissible  wherever  it  is  neces- 
sary, (without  disclosing  their  deliberations  or  their  votes),  to  uphold 
public  justice  or  protect  private  rights.  U.  S.  v.  Farrington,  5  F.  R. 
343;  Hunter  v.  Randall,  69  Me.  183;  N.  H.  Ins.  Co.  v.  Healey,  151 
Mass.  537  ;  State  v.  Coffee,  56  Ct.  399.J 

1  [Sawyer  v.  Hannibal,  etc.  R.  Co.,  37  Mo.  240 ;  Moses  v.  Cromwell, 
78  Va.  1  ;  Palmer  v.  People,  138  111.  356;  cf.  People  v.  Azoff,  105 
Cal.  632.  But  the  officer  in  charge  of  the  jury  may  testify  that  they 
rendered  such  a  "chance"  or  "quotient"   verdict,  as   it  is   called 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  287 

his  client's  express  consent,  to  disclose  any  communica- 
tion, oral  or  documentary,  made  to  him  as  such  legal  ad- 
viser, by  or  on  behalf  of  his  client,  during,  in  the  course, 
and  for  the  purpose  of  his  employment,  whether  in  refer- 
ence to  any  matter  as  to  which  a  dispute  has  arisen  or 
otherwise,  or  to  disclose  any  advice  given  by  him  to  his 
client  during,  in  the  course,  and  for  the  purpose  of  such 
employment.  It  is  immaterial  whether  the  client  is  or  is 
not  a  party  to  the  action  in  which  the  question  is  put  to 
the  legal  adviser.1 


(  Wright  v.  Abbott,  160  Mass.  395  ;  Chicago,  etc.  R.  Co.  v.  Mc Daniel, 
134  Ind.  166).  By  some  decisions  a  verdict  reached  by  this  method  is 
valid,  if  the  jurors  did  not  agree  beforehand  to  be  bound  by  the 
quotient,  but  left  its  adoption  to  subsequent  deliberation.  Luft  v. 
Lingane,  1 7  R .  I.  420  j  Dana  v.  Tucker,  4  Johns.  487  ;  Knight  v.  Epsom, 
62  N.  H.  356;  see  Moses  v.  Central  Pk.  etc.  R.  Co.,  3  Misc.  322.] 

1  [Gr.  Ev  i.  §§  237-246  ;  Wh.  Ev.  i.  §§  576-594  ;  N.  Y.  Code  Civ.  Pro. 
§§  835,  836  ;  Bacon  v.  Frisbie,  80  N.  Y.  394  ;  Root  v.  Wright,  84  Id.  72  ; 
Higbce  v.  Dresser,  103  Mass.  523  ;  Conn.  Life  Ins.  Co.  v.  Schacfer,  94 
U.  S.  457 ;  Earle  v.  Grout,  46  Vt.  113 ;  People  v.  Barker,  56  111.  299; 
Sweet  v.  Owens,  109  Mo.  1;  McLellan  v.  Longfellow,  32  Me.  494  ;  cf. 
Wade  v.  Ridley,  87  Me.  368  ;  Blount  v.  Kimpton,  155  Mass.  378.  The 
privilege  is  that  of  the  client  alone,  and  if  he  voluntarily  waives  it,  the 
attorney  may  testify ;  other  persons  have  no  right  to  insist  upon  it 
{Hunt  v.  Blackburn,  128  U.  S.  464  ;  Passmore  v.  Passmore's  Estate,  50 
Mich.  626).  The  client's  waiver  may  in  some  cases  be  implied,  as 
well  as  express,  as  e.g.,  by  failing  to  object  on  the  trial  to  the  attor- 
ney's testifying  {Sleeper  v.  Abbott,  60  N.  H.  162;  Hoyt  v.  Hoyt,  112 
N.  Y.  493,  515).  But  the  client's  becoming  himself  a  witness  in  the 
case  in  his  own  behalf  does  not  amount  to  a  waiver  {Montgomery  v. 
Pickering,  116  Mass.  227;  see  Duttcnhofer  v.  State,  34  O.  St.  91).  If 
a  testator  has  his  attorney  become  a  subscribing  witness  to  his  will, 
this  is  a  waiver  and  the  attorney  may  testify  as  to  the  execution  of  the 
will  on  the  proceedings  for  probate  {Re  Coleman,  1 1 1  N.  Y.  220;  Pence 
v.  Waugh,  135  Ind.  143;  Denning  v.  Butcher,  91  la.  425  ;  McMaster 
v.  Scrive?i,  85  Wis.  162  ;  In  re  Mullin,  1 10  Cal.  252). 

In  some  cases,  statements  made  to  an  attorney  with  a  view  to  re- 
taining him  have  been  held  privileged,  though  the  relation  was  never 
in  fact  established.  Sargent  v.  Hampden,  38  Me.  581 ;  State  v.  Tally, 
102  Ala.  25  ;  Denver  Tramway  Co.  v.  Owens,  20  Col.  107.] 


288  A  DIGEST  OF  [Part  III. 

This  Article  does  not  extend  to—, 

(i)  Any  snch  communication  as  aforesaid  made  in  fur- 
therance of  any  criminal  purpose,  whether  such  purpose 
was  at  the  time  of  the  communication  known  to  the  pro- 
fessional adviser  or  not ; ' 

(2)  Any  fact  observed  by  any  legal  adviser,  in  the  course 
of  his  employment  as  such,  showing  that  any  crime  or 
fraud  has  been  committed  since  the  commencement  of 
his  employment,  whether  his  attention  was  directed  to 
such  fact  by  or  on  behalf  of  his  client  or  not ; a 

(3)  Any  fact  with  which  such  legal  adviser  became  ac- 
quainted otherwise  than  in  his  character  as  such.3     The 


1  R.  v.  Cox  &*  Railton,  14  Q.  B.  D.  153.  The  judgment  in  this  case 
is  that  of  ten  judges  in  the  Court  for  Crown  Cases  Reserved,  and  ex- 
amines minutely  all  the  cases  on  the  subject.  These  cases  put  the 
rule  on  the  principle,  that  the  furtherance  of  a  criminal  purpose  can 
never  be  part  of  a  legal  adviser's  business.  As  soon  as  a  legal 
adviser  knowingly  takes  part  in  preparing  for  a  crime,  he  ceases  to 
act  as  a  lawyer  and  becomes  a  criminal, — a  conspirator  or  accessory, 
as  the  case  may  be.  [People  v.  Blakeley,  4  Park.  Cr.  176;  People  v. 
I  an  .  llstine,  57  Mich.  69  ;  State  v.  Kidd,  89  la.  54  ;  Dudley  v.  Beck, 
3  Wis.  274 ;  Orman  v.  State,  22  Tex.  App.  604  ;  cf.  State  v.  Barrows, 
52  Ct.  323.  The  English  decisions  include  cases  of  fraud  within  this 
exception  {In  re  Postlethwaite,  35  Ch.  D.  722  ;  R.  v.  Cox  &•»  Railton, 
supra),  and  recent  American  cases  have  adopted  the  same  doctrine 
(  Matthews  v.  Hoagland,  48  X.  J.  Eq.  455  ;  Hajnil  v.  England,  50  Mo. 
App.  338;  see  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528,  598). 
But  an  attorney  cannot  disclose  statements  made  to  him  by  his  client 
about  a  crime  committed  by  the  latter,  which  were  not  made  till  after 
the  crime  was  committed.    Alexander  v.  U,  S.,  138  U.  S.  353.] 

8  [See  Illustration  (a).] 
[Or.  Ev.  i.  §§ 244,  245 ;  Wh.  Ev.  i.  §§  588,  589;  State  v.  Fitzgerald, 68 
Vt.  125  ;  as  e.g.,  communications  made  to  him  before  he  became  legal 
adviser,  or  after  the  relation  ceased  {Jennings  v.  Sturdevant,  140  Ind. 
641  ;  Tkeisen  v.  Dayton,  82  la.  74;  Brady  v.  State,  39  Neb.  529);  or 
while  he  was  acting  in  some  other  capacity  than  as  attorney,  as  e.g., 
as  a  friend,  agent,  etc.  (Coon  \.  Swan,  30  Vt.  6;  Patten  v.  Glover,  1 
App.  D.  C.  466);  so  as  to  communications  not  relating  to  the  pro- 
fessional employment  {Mowell  v.  Van  Buren,  77  Hun,  569;  Mc- 
Donald v.  McDonald,  142  Ind.  55  ;   State  v.  Mewherter,  46  la.  88; 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  289 

expression  "legal  adviser"  includes  barristers  and  solici- 
tors,1 their  clerks,2  and  interpreters2  between  them  and 
their  clients.    It  does  not  include  officers  of  a  corporation 


Carroll  v.  Sprague,  59  Cal.  655  ;  cf.  State  v.  Hedgepeth,  125  Mo.  14). 
So  an  attorney  may  be  required  to  testify  as  to  many  collateral  mat- 
ters :  as  the  name  of  his  client  {Harriman  v.  Jones,  58  N.  H.  328),  or 
his  residence  {Alden  v.  Goddard,  73  Me.  345),  or  his  signature  {Brown 
v.  Jeivett,  120  Mass.  215);  or  that  in  collecting  a  claim  he  acted  for  his 
client  {Mulfordv.  Mullet;  3  Abb.  Dec.  330);  or  the  fact  of  his  employ- 
ment as  attorney  {Hampton  v.  Boy  Ian,  46  Hun,  151;  Eickman  v.  Troll, 
29  Minn.  124);  or  that  he  has  the  client's  papers  in  his  hands  {Stokoe 
v.  St.  Paul,  etc.  R.  Co.,  40  Minn.  545  ;  see  Art.  1 19);  so  as  to  communi- 
cations which  are  not  of  a  private  or  confidential  nature,  or  which  have 
ceased  to  be  such  {Snow  v.  Gould,  74  Me.  540;  Rosseau  v.  Bleau,  131 
N.  Y.  177  ;  Roper  v.  State,  58  N.  J.  L.  420),  or  as  to  communications 
made  to  him  by  persons  other  than  his  client  (  Turner  s  Estate,  167  Pa. 
609;  State  v.  Hedgepeth,  125  Mo.  14),  and  many  like  matters  (see  p. 
290,  note  2,  post ;  Co/nm.  v.  Goddard,  14  Gray,  402  ;  Crosby  v.  Berger, 
11  Pai.  377  ;  Hughes  v.  Boone,  102  N.  C.  137). 

A  communication  made  to  counsel  by  one  party  to  a  controversy 
while  the  others  are  present  is  not  privileged  from  disclosure  in  a  sub- 
sequent suit  between  such  parties  themselves  {Hurlbut  v.  Hurlbut, 
128  N.  Y.  420  ;  Goodwin  Cols  Appeal,  117  Pa.  514;  Colt  v.  JMcConnell, 
116  Ind.  249;  Lynn  v.  Lyerle,  113  111.  128 ;  Sparks  v.  Sparks,  51  Kan. 
195;  Cadyv.  Walker,  62  Mich.  157;  Murphy  v.  JVaterhouse,  113  Cal. 
467);  so,  where  two  persons  employ  an  attorney  in  the  same  business, 
as  to  communications  made  to  him  by  either  of  them  concerning  such 
business  {Gulick  v.  Gitlick,  39  N.  J.  Eq.  516;  Deip"s  Estate,  163  Pa. 
423 ;  In  re  Batter,  79  Cal.  304);  but  in  an  action  between  such  persons 
and  a  stranger,  the  communications  are  protected  (Id.;  Root  v.  I  Wright, 
84  N.  Y.  72). 

It  is  held  in  some  States  that,  after  a  testator's  death,  his  attorney 
may,  in  support  of  the  will  or  to  carry  out  the  testator's  intentions  as 
respects  those  claiming  under  him,  testify  as  to  directions,  communica- 
tions, etc.  made  by  said  testator.  Blackburn  v.  Cratvfords,  3  Wall. 
!75>  !93  ;  Doherty  v.  O'Callaghan,  157  Mass.  90  ;  /;/  re  Austin,  42  Hun, 
516;  Scott  v.  Harris,  113  111.  447 ;  Thompson  v.  Ish,  99  Mo.  160,  176; 
Layman's  Will,  40  Minn.  371;  Olmstcad  v.  Webb,  5  A  pp.  D.  C.  38.] 

1  Wilson  v.  Rastall,  4  T.  R.  753.  As  to  interpreters,  Id.  756.  [All 
attorneys  and  counselors  are  included  in  this  country.] 

-  Taylor  v.  Foster,  2  C.  &  P.  195  ;  Foote  v.  Hayne,  1  C.  &  P.  545. 
Quaere,  whether  licensed  conveyancers  are  within  the  rule  ?    Parke,  B., 


29o  A  DIGEST  OF  [Part  III. 

through  whom  the  corporation  has  elected  to  make  state- 
ments.' 

Illustrations. 

(a)  A,  being  charged  with  embezzlement,  retains  B,  a  barrister,  to 
defend  him.  In  the  course  of  the  proceedings  B  observes  that  an  entry 
has  been  made  in  A's  account  book,  charging  A  with  the  sum  said  to 
have  been  embezzled,  which  entry  was  not  in  the  book  at  the  com- 
mencement of  B's  employment. 

This  being  a  fact  observed  by  B  in  the  course  of  his  employment, 
showing  that  a  fraud  has  been  committed  since  the  commencement  of 
the  proceedings,  is  not  protected  from  disclosure  in  a  subsequent  action 
by  A  against  the  prosecutor  in  the  original  case  for  malicious  prose- 
cution.2 

in  Turquand  v.  Knight,  7  M.  &  W.  100,  thought  not.  Special  pleaders 
would  seem  to  be  on  the  same  footing.  [Gr.  Ev.  i.  §  239.  Communi- 
cations to  lawyers'  clerks,  agents,  and  interpreters  are  protected 
(Sibley  v.  Waffle,  16  N.  Y.  180  ;  Jackson  v.  French,  3  Wend.  337);  but 
statements  to  an  attorney's  clerk  by  one  who  did  not  know  him  to  be 
such,  but  who  did  know  he  was  not  a  lawyer,  have  been  held  not 
privileged  (Hawes  v.  State,  88  Ala.  37);  so  a  law  student  to  whom  a 
communication  is  made,  not  being  the  clerk  or  agent  of  the  attorney, 
may  be  required  to  testify  as  to  such  communication  (Barnes  v.  Har- 
ris, 7  Cush.  576;  Schubkagel  x.  Dierstcin,  131  Pa.  46;  Holman  v. 
Kimball,  22  \'t.  555)  ;  and  so  may  a  person  who  overhears  a  client's 
statements  to  his  lawyer  (Hoy  v.  Morn's,  13  Gray,  519 ;  Goddardx. 
Gardner,  28  Ct.  172  ;  People  v.  Buchanan,  145  N.  Y.  1 ;  Tyler  v.  Hall, 
106  Mo.  313).  A  lawyer  simply  employed  to  draft  deeds  or  other 
papers,  without  giving  legal  advice,  is  not  generally  within  the  rule  of 
privilege.  Todd  v.  Munson,  53  Ct.  579  ;  Childs  v.  Merrill,  66  Yt.  302  ; 
Han  ion  v.  Dolierty,  109  Ind.  37;  Stall iugs  v.  Hullum,  79  Tex.  42  i  ; 
Smith  v.  Long,  106  111.  485;  Hatton  v.  Robinson,  14  Pick.  416;  hut 
see  Linthicum  v .  Remington,  5  Cr.  C.  C.  546  ;  Carter  v.  West,  93  Ky. 
211.] 

1  Mayor  oj  Swansea  v.  Quirk,  5  C.  P.  D.  106;  nor  pursuivants  of  the 
Herald's  College,  Slade  v.  Tucker,  14  Ch.  D.  824 ;  [nor  a  solicitor  of 
patents  who  is  not  an  attorney  at  law  (Brungger  v.  Smith,  49  F.  K. 
1241;  nor  a  person  supposed  to  be  a  lawyer  but  who  is  not  one  in  fact 
(  Barnes  v.  Han  is,  7  Cush.  576).  But  in  Benedict  x.  State,  44  O.  St. 
679,  communications  to  one  whose  regular  business  had  been  for 
years  practising  law  before  justices  of  the  peace  were  held  privileged, 
though  he  had  not  been  admitted  to  the  bar.] 

3  Brown  v.  Foster,  1  H.  &  N.  736.     [This  case  was  so  decided  be- 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  291 

(b)  If  a  legal  adviser  witnesses  a  deed,  he  must  give  evidence  as  to 
what  happened  at  the  time  of  its  execution.1 

(c)  A  retains  B,  an  attorney,  to  prosecute  C  (whose  property  he  had 
fraudulently  acquired)  for  murder,  and  says,  "  It  is  not  proper  for  me 
to  appear  in  the  prosecution  for  fear  of  its  hurting  me  in  the  cause 
coming  on  between  myself  and  him  ;  but  I  do  not  care  if  I  give  ,£10,000 
to  get  him  hanged,  for  then  I  shall  be  easy  in  my  title  and  estate." 
This  communication  is  not  privileged.2 

Article  116. 
confidential  communications  with  legal  advisers. 

No  one  can  be  compelled  to  disclose  to  the  court  any 
communication  between  himself  and  his  legal  adviser, 
which  his  legal  adviser  could  not  disclose  without  his  per- 
mission, although  it  may  have  been  made  before  any  dis- 
pute arose  as  to  the  matter  referred  to.3 


cause  the  fact  in  question  was  not  information  communicated  by  the 
client,  but  knowledge  which  counsel  acquired  by  his  own  observation. 
For  a  like  rule,  see  Patten  v.  Moor,  29  N.  H.  163  ;  Daniel  v.  Daniel, 
39  Pa.  191;  Hcbbardx.  Haughian,  70  N.  Y.  54  ;  Comm.  v.  Bacon,  135 
Mass.  521  ;  Swaim  v.  Humphreys,  42  111.  App.  370.] 

1  Crawconr  v.  Salter,  18  Ch.  D.  34. 

2  Annesley  v.  Anglesea,  17  S.  T.  1223-4. 

3  Minet  v.  Morgan,  L.  R.  8  Ch.  App.  361,  reviewing  all  the  cases, 
and  adopting  the  explanation  given  in  Pearse  v.  Pearse,  1  De  G.  &  S. 
18-31,  of  Radcliffe  v.  Fursman,  2  Br.  P.  C.  514.  A  recent  illustration 
will  be  found  in  Mayor  of  Bristol  v.  Cox,  26  Ch.  D.  678.  [This  rule  ap- 
plies though  parties  to  actions  are  now  competent  witnesses  (Hemen- 
way  v.  Smith,  28  Vt.  701  ;  Barker  v.  Kuhn,  38  la.  392;  Swenk  v. 
People,  20  111.  App.  in  ;  Verdelli  v.  Grays  Harbor  Co.,  115  Cal.  517  ; 
Duttenhofer  v.  State,  34  O.  St.  91).  A  party  does  not  waive  the 
privilege  by  voluntarily  becoming  a  witness  in  his  own  behalf  (Id.; 
State  M.White,  19  Kan.  445  ;  Carnes  v.  Piatt,  15  Abb.  Pr.  (N.  S.)  337; 
contra,  Inhab.  of  Woburn  v.  Henshaw,  101  Mass.  193) ;  but  it  is 
deemed  a  waiver,  if  he  voluntarily  testifies  to  confidential  communi- 
cations made  by  him  to  his  attorney  {Oliver  v.  Pate,  43  Ind.  132  ;  cf. 
State  v.  Tall,  43  Minn.  273).  So  where  an  accomplice  turns  "  State's 
evidence,"  he  may  be  compelled  to  disclose  communications  to  his 


2c,*  A  DIGEST  OF  [Part  III. 


Illustration. 
[in  an  action  for  the  conversion  of  goods,  plaintiff  became  a  wit- 
ness m  his  own  behalf,  and,  having  given  his  evidence  in  chief,  he  was 
askea  on  cross-examination  as  to  statements  made  by  him  to  his  law- 
yer, on  the  day  the  goods  were  taken,  as  to  trading  the  goods  for  a 
note  and  as  to  the  validity  of  the  note.  Due  objection  being  made, 
the  witness  was  held  not  bound  to  answer  the  question.] ' 

Article  117.* 

CLERGYMEN   AND   MEDICAL   MEN. 

Medical  men2  and  (probably)  clergymen  maybe  com- 
pelled to  disclose  communications  made  to  them  in  pro- 
fessional confidence.3 


*  See  Note  XLIV.  [Appendix], 
counsel  as  to  the  offence  charged  {Jones  v.  State,  65  Miss.  179;  People 
v.  Gallagher,  75  Mich.  512).  But  a  party  to  an  action  cannot  be  com- 
pelled to  testify  as  to  knowledge,  information,  or  belief,  which  he  de- 
rived solely  from  privileged  communications  made  to  him  by  his 
attorney.    Lyell  v.  Kennedy,  L.  R.  9  App.  Cas.  81.] 

1  [fiigler  v.  Reyher,  43  Ind.  112.  So  a  patient  cannot  be  compelled 
to  disclose  communications  made  by  him  to  his  physician  which  the 
physician  could  not  disclose.  Post  v.  State,  14  Ind.  App.  452  ;  see 
next  Article.] 

2  Duchess  of  Kingston  s  Case,  20  S.  T.  572-3.  As  to  clergymen,  see 
Note  XLIV.  [Appendix]. 

8  [This  is  the  general  rule  of  the  common  law  (Gr.  Ev.  i.  §  247). 
But  in  a  number  of  the  States  of  this  country,  a  different  rule  has  been 
established  by  statute.  In  New  York,  e.g.,  it  is  provided  that  a 
clergyman  shall  not  be  allowed  to  disclose  a  confession  made  to  him 
in  his  professional  character,  in  the  course  of  discipline  enjoined  by 
the  rules  or  practice  of  his  religious  body  ( NT.  Y.  Code  Civ.  Pro.  §  833  ; 
see  People  v.  Gates,  13  Wend.  311);  and  that  a  person  duly  authorized 
to  practise  physic  or  surgery  shall  not  be  allowed  to  disclose  any  in- 
formation which  he  acquired  in  attending  a  patient  in  a  professional 
capacity,  and  which  was  necessary  to  enable  him  to  act  in  that 
capacity  (Code  Civ.  Pro.  §  834  ;  see  People  v.  Schuyler,  106  X.  Y.  298; 
People  x.  Murphy,  101  N.  Y.  126;  Fisher  v.  Fisher,  129  N.  Y.  654). 
But  this  privilege  may  be  waived  by  the  person  confessing  or  by  the 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  293 


Article  118. 

production  of  title-deeds  of  witness  not  a  party. 

No  witness  who  is  not  a  party  to  a  suit  can  be  com- 
pelled to  produce  his  title-deeds  to  any  property,1  or  any 


patient  (Code  Civ.  Pro.  §  836 ;  as  to  what  will  be  deemed  a  waiver, 
see  Morris  v.  N.  Y.  etc.  R.  Co.,  148  N.  Y.  88  ;  Alberti  v.  N.  Y.  etc.  R. 
Co.,  118  N.  Y.  77  ;  McKinney  v.  Grand  St.  etc.  R.  Co.,  104  N.  Y.  352). 
This  rule  as  to  physicians  applies  to  "  information  "  obtained  by  them, 
in  attending  a  patient,  by  their  own  observation  or  the  statements  of 
others,  as  well  as  to  communications  frcm  the  patient  himself  (Eding- 
ton  v.  Life  Ins.  Co.,  67  N.  Y.  185  ;  Rcnihan  v.  Dennin,  103  N.  Y.  573 ; 
S.  P.  Heuston  v.  Simpson,  1 15  Ind.  62  ;  Briesenmeister  v.  Knights,  81 
Mich.  525  ;  Gartside  v.  Conn.  Ins.  Co.,  76  Mo.  446).  But  it  does  not 
prevent  a  physician  from  testifying  upon  a  trial  for  murder  as  to  the 
condition  of  the  person  injured  whom  he  attended  before  death  ensued 
{Pierson  v.  People,  79  N.  Y.  424  ;  People  v.  Harris,  136  N.  Y.  423  ;  cf. 
People  v.  West,  106  Cal.  8q);  nor,  in  some  States,  does  it  exclude  the 
testimony  of  physicians,  in  probate  proceedings,  to  show  the  condition 
of  the  decedent  as  bearing  upon  his  testamentary  capacity,  his  rep- 
resentatives waiving  the  privilege  (Eraser  v.  Jennison,  42  Mich.  206; 
Morris  v.  Morris,  119  Ind.  341  ;  Denning  v.  Butcher,  91  la.  425; 
Thompson  v.  Ish,  99  Mo.  160;  N.  Y.  Code  Civ.  Pro.  §836;  contra, 
In  re  Flint,  100  Cal.  391). 

Similar  statutes  have  been  passed  in  Michigan,  Wisconsin,  Indiana, 
Iowa,  Kansas,  Missouri,  California,  Oregon,  etc.  See  Conn.  Ins.  Co. 
v.  Union  Trust  Co.,  112  U.  S.  250;  Gurlcy  v.  Park,  135  Ind.  440;  Ex- 
celsior Ass'n  v.  Riddle,  91  Ind.  84  ;  Kansas  City,  etc.  R.  Co.  v.  Murray, 
55  Kan.  336;  People  v.  Lane,  101  Cal.  513;  as  to  clergymen,  see 
Gillooley  v.  State,  58  Ind.  182  ;  as  to  modes  of  waiver  in  regard  to 
physicians,  see  Lane  v.  Boicourt,  128  Ind.  420 ;  Penn.  Ins.  Co.  v.  //  'ilcr, 
100  Ind.  92  ;  McConnell  v.  Osage,  80  la.  293  ;  Mellor  v.  Mo.  Pac.  R. 
Co.,  105  Mo.  455  ;  Carrington  v.  St.  Louis,  89  Mo.  208  ;  ///  re  Mullin, 
no  Cal.  252.] 

1  Pickering  v.  Noyes,  1  B.  &  C.  263  ;  Adams  v.  Lloyd,  3  H.  &  N.  351. 
[It  is  a  rule  of  chancery  practice  that  a  party  shall  not  be  compelled 
to  make  discovery  of  his  title-deeds  when  they  simply  support  his  own 
title,  but  only  when  they  support  the  title  of  his  adversary;  and  a  simi- 
lar rule  applies  to  other  documents  (Story,  Eq.  Jur.  ii.  §  1490  ;  Thomp- 
son v.  Engle,  4  N.  J.  Eq.  271 ;  Cullison  v.  Bossom,  1  Md.  Ch.  95  ;  Adams. 


294  A  DIGEST  OF  [Part  III. 

document  the  production  of  which  might  tend  to  crimi- 
nate him,  or  expose  him  to  any  penalty  or  forfeiture; '  but 


v.  Porter,  i  Cush.  170;  Machine  Co.  v.  Batchcldcr,  68  Vt.  431).  The 
same  rule  has  been  applied  in  some  States  under  modern  statutes  al- 
lowing the  discovery  and  inspection  of  documents  (Meakings  v.  Crom- 
well, 1  Sandf.  698  ;  Shoe  &*  Leather  Ass  n  v.  Bailey,  17  J.  &  Sp.  385  ; 
Stichterv.  Tilhnghast,  43  Hun,  95  ;  Lester  v.  People,  150  111. 408  ;  Mass. 
Pub.  St.  c.  167,  s.  56;  Wilson  v.  Webber,  2  Gray,  558  ;  Wetherbee  v. 
Winchester,  128  Mass.  293;  N.  H.  Pub.  St.  c.  224,  s.  14  (ed.  1891);  but 
see  Seligman  v.  Real  Est.  Trust  Co.,  20  Abb.  N.  C.  210;  Thebaudv. 
Hume,  15  N.  Y.  S.  664;  Herbage  v.  Utica,  109  N.  Y.  81). 

A  person  not  a  party  to  an  action  may  by  subpoena  duces  tecum  be  re- 
quired to  produce  his  private  papers  in  evidence  that  are  relevant  to 
the  issue,  if  they  do  not  tend  to  criminate  him  or  expose  him  to  a  pen- 
alty or  forfeiture  (Wh.  Ev.  i.§  537  ;  Burnham  v.  Morrissey,  14  Gray, 
226,  240  ;  In  re  Dunn,  9  Mo.  App.  255  ;  U.  S.  v.  Tilden,  10  Ben.  566  ; 
cf.  Davenbagh  v.  M'Kinnie,  5  Cow.  27  (deed);  Lane  v.  Cole,  12  Barb. 
680  (docket  book);  Bonestecl  v.  Lynde,  8  How.  Pr.  226,  352  (party 
subpeenaed  to  produce  lease  and  inventory);  Wertheim  v.  Continental 
R.  Co.,  15  F.  R.  716  (corporate  books);  Johnson  Co.  v.  North  Branch 
Co.,  48  F.  R.  191  (drawings  containing  valuable  trade  secrets  as  to  a 
process  of  manufacture).  Liut  the  court  may  relieve  him  from  the 
obligation  of  giving  them  in  evidence  (though  he  must  bring  them  into 
court),  if  this  would  be  prejudicial  to  his  rights  and  interests  ;  of  this 
the  court  is  to  judge  upon  inspection  (Gr.  Ev.  i.  §  246  ;  MiichelVs  Case, 
12  Abb.  Pr.  249,  259 ;  In  re  C  Toole,  1  Tucker,  39  ;  Bull  v.  Love  land, 
10  Pick.  9  ;  so  now  as  to  a. party,  Bonesteelv.  Lynde,  8  How.  Pr.  226, 233  ; 
Champlin  v.  Stoddart,  17  W.  D.  76;  cf.  Pynchon  v.  Day,  18  111.  App. 
1 47  ;  Moats  v.  Rymer,  1 8  W.  Va.  642  ;  Robinson  v.  Phila.  R.  Co. ,  28  F.  R. 
340).  Trade  secrets  have  been  protected  from  disclosure,  when  dis- 
closure was  not  necessary  for  the  determination  of  the  matter  before 
the  court.  Dobson  v.  Graham,  49  F.  R.  17;  Moxie  Co.  v.  Beach,  35 
F.  R.  465.] 

1  Whitaker  v.  Izod,  2  Tau.  115.  [Byass  v.  Sullivan,  21  How.  Pr.  50  ; 
Lawson  v.  Boyden,  160  111.  613  ;  Boyle  v.  Smithman,  146  Pa.  255  ;  John- 
son v.  Donaldson,  18  Blatch.  287.  The  seizure  or  compulsory  produc- 
tion of  a  man's  private  papers,  to  be  used  as  evidence  against  him  in 
a  prosecution  for  a  crime,  penalty,  or  forfeiture,  is  prohibited  by  the 
U.  S.  Constitution  (Boyd  v.  U.  S.,  1 16  U.  S.  616  ;  cf.  Slate  v.  Grisivold, 
67  Ct.  307),  and  also  by  State  Constitutions  (Lester  \.  People,  150  111. 
408;  cf.  People  v.  Spiegel,  143  N.  Y.  107;  State  v.  Pomeroy,  130  Mo. 
489 ;  State  v.  Davis,  108  Mo.  666).    In  this  last  case,  however,  this  rule 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  29$ 

a  witness  is  not  entitled  to  refuse  to  produce  a  document 
in  his  possession  only  because  its  production  may  expose 
him  to  a  civil  action,1  or  because  he  has  a  lien  2  upon  it.3 

Article  119. 

production"  of  documents  which  another  person,  having 
possession,  could  refuse  to  produce. 

No  solicitor,4  trustee,  or  mortgagee  can  be  compelled  to 
produce  (except  for  the  purpose  of  identification)  docu- 
ments in  his  possession  as  such,  which  his  client,  cestui 
que  trust,  or  mortgagor  would  be  entitled  to  refuse  to  pro- 
duce if  they  were  in  his  possession  ;  nor  can  any  one  who 
is  entitled  to  refuse  to  produce  a  document  be  compelled 
to  give  oral  evidence  of  its  contents.5 


was  held  not  applicable  to  physicians'  prescriptions,  which  a  State 
statute  required  druggists  to  preserve ;  this  was  because  they  were 
deemed,  under  the  statute,  to  be  public,  and  not  private,  papers.] 

1  Doe  v.  Date,  3  Q.  B.  609,  618.  [Wh.  Ev.  i.  §  537  ;  Bull  v.  Loveland, 
10  Pick.  9.] 

2  Hope  v.  Liddell,  7  De  G.  M.  &  G.  331;  Hunter  \.  Leathley,  10  B. 
&  C.  858  ;  Brassington  v.  Brassington,  1  Sim.  &  Stu.  455.  It  has  been 
doubted  whether  production  may  not  be  refused  on  the  ground  of  a 
lien  as  against  the  party  requiring  the  production.  This  is  suggested 
in  Brassington  v.  Brassington,  and  was  acted  upon  by  Lord  Den- 
man  in  Kemp  v.  King,  2  Mo.  &  Ro.  437  ;  but  it  seems  to  be  opposed  to 
Hunter  v.  Leathley,  in  which  a  broker  who  had  a  lien  on  a  policy  for 
premiums  advanced  was  compelled  to  produce  it  in  an  action  against 
the  underwriter  by  the  assured  who  had  created  the  lien.  See  Ley  v. 
Barlow  (Judgt.  of  Parke,  B.)  1  Ex.  801.  [See  Morley  v.  Green,  11  Pai. 
240  ;  Bull  v.  Loveland,  10  Pick.  9.] 

3 [Mr.  Stephen  ends  Art.  118  as  follows:  "No  bank  is  compellable 
to  produce  the  books  of  such  bank,  except  in  the  case  provided  for  in 
Art.  37  (42  &  43  Vict.  c.  11)."     See  Note  XLIX.,  Appendix.] 

4  Volant  v.  Soyer,  13  C.  B.  231 ;  Phelps  v.  Prew,  3  E.  &  B.  431.  [Bur- 
sill  v.  Tanner,  16  Q.  B.  D.  1.] 

5  Davies  v.  Waters,  9  M.  &  W.  608 ;  Few  v.  Guppy,  13  Beav.  454. 
[Formerly  when  a  party  to  a  suit  could  not  be  required  to  give  evi- 
dence, his  legal  adviser  could  likewise  not  be  compelled  to  produce 


296  A  DIGEST  OF  [Part  III. 

Article   120. 

WITNESS   NOT  TO   BE   COMPELLED  TO   CRIMINATE    HIMSELF. 

No  one  is  bound  to  answer  any  question  if  the  answer 
thereto  would,  in  the  opinion  of  the  judge,  have  a  tend- 


in  evidence  a  deed  or  other  document  entrusted  to  him  by  his  client, 
nor  to  disclose  its  contents.  Notice  to  produce  might  be  given  him 
(see  Art.  72,  ante),  and  he  might  be  examined  as  to  the  existence  of 
the  paper,  and  as  to  its  being  in  his  possession,  so  as  to  enable  the 
other  party  to  give  secondary  evidence  of  its  contents  (Gr.  Ev.  i.  §  241 ; 
Mitchell's  Case,  12  Abb.  Pr.  249,  258;  Coveney  v.  Tannahill,  1  Hill, 
33  ;  Durkee  v.  Leland,  4  Vt.  612  ;  Lessee  of  Rhoades  v.  Selin,  4  Wash. 
C.  C.  715  ;  Stokoe  v.  St.  Paul,  etc.  R.  Co.,  40  Minn.  545);  and  the  same 
rule  was  applied  to  the  agent  of  a  party,  as  e.  g.,  an  officer  of  a  cor- 
poration (Bank  of  Utica  v.  Hillard,  5  Cow.  419  ;  Westcott  v.  Atlantic 
Co.,  3  Met.  282).  In  equity,  however,  it  has  been  the  rule  that  a  party 
might,  in  some  cases,  be  required  to  make  discovery  of  his  deeds  and 
papers  (see  p.  293,  note  1,  ante),  and,  therefore,  that  his  attorney  would, 
in  such  cases,  be  bound  to  produce  them,  if  they  were  in  the  latter's 
possession  (  Wakeman  v.  Bailey,  3  Barb.  Ch.  482).  And  now  that  by 
modern  statutes  parties  may  be  subpoenaed  (see  Art.  72,  ante),  it  is  in 
like  manner  declared  that  whatever  papers  a  party  must  produce,  his 
attorney  must  produce  if  he  has  them  (Mitchell's  Case,  supra;  An- 
drews v.  Ohio,  etc.  R.  Co.,  14  Ind.  169  ;  In  re  IVhitlock,  15  N.  Y.  Civ.  Pro. 
R.  204  ;  Harrisburgh  Car  Co.  v.  Sloan,  120  Ind.  156;  Steed  v.  Cruise, 
70  Ga.  168  ;  cf .  Moats  v.  Rymer,  18  W.  Va.  642  ;  Hoyt  v.  Jackson,  3  Dem. 
388  ;  Prelford's  Appeal,  48  Ct.  247);  and  so  an  officer  of  a  corporation 
may  be  required  to  produce  the  corporate  books  and  papers  (  Wertheim 
v.  Continental R.  Co.,l$  F.R.716;  seep.  193, note  \,ante).  A  client  can- 
not combine  with  his  attorney  to  keep  papers  from  being  produced  by 
putting  them  in  the  latter's  possession  (People  v.  Sheriff,  29  Barb.  622  ; 
Edison  Electric  Co.  v.  U.  S.  Electric  Co.,  44  F.  R.  294  ;  Trustees  v. 
Blount,  70  Ga.  779).  But  papers  which  are  professional  communica- 
tions are  still  protected  (Mitchell's  Case,  supra ;  Mallory  v.  Benja- 
min, 9  How.  Pr.  419  ;  Hubbcll  v.Judd  Oil  Co.,  19  Alb.  L.  J.  97  ;  Arnold 
v.  Chesebrough,  41  F.  R.  74  ;  Liggett  v.  Glenn,  51  F.  R.  381;  Daven- 
port Co.  v.  Pa.  R.  Co.,  166  Pa.  480 ;  Pearce  v.  Foster,  15  Q.  B.  D.  114; 
and  see  p.  293,  note  \,ante).  In  a  criminal  case  an  attorney  cannot  be 
compelled  by  the  prosecution  to  produce  papers  entrusted  to  him  by 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  .  297 

ency  to  expose  the  witness,1  (or  the  wife  or  husband  of 

his  client,  to  be  used  as  evidence  against  the  client  (Comm.  v.  Moyer, 
15  Phila.  397  ;  Anonymous,  8  Mass.  370). 

The  agents  of  a  telegraph  company  are  bound  to  produce  telegraphic 
messages  upon  a  subpcena  duces  tecum.  Ex  parte  Brown,  72  Mo.  83  ; 
State  v.  Litchfield,  58  Me.  267;  In  ?-e  Storror,  63  F.  R.  564 ;  cf.  Ex  parte 
Jaynes,  70  Cal.  638  ;  see  p.  193,  note  I,  ante.] 

1  R.  v.  Boyes,  1  B.  &  S.  330 ;  followed  and  approved  in  Ex  parte  Rey- 
nolds, 20  Ch.  D.  298,  by  the  Court  of  Appeal.  [Gr.  Ev.  i.§§  451-453;  Wh. 
Ev-'-§§533-54r;  N.  Y.  Code  Civ.  Pro.  §837;  People  v.  Forbes,  143  N.Y. 
219  ;  Comm.  v.  Trider,  143  Mass.  180;  Eckstein 's  Petition,  148  Pa.  509; 
Temple  v.  Comm.,  75  Va.  892.  The  rule  applies  though  the  testimony 
of  the  witness  would  only  tend  to  criminate  him  or  would  only  furnish 
a  link  in  a  chain  of  evidence  which  might  lead  to  his  conviction  (Id. ; 
Illustration  (a);  State  v.  Simmons  Co.,  109  Mo.  118;  Stevens  v.  Slate, 
50  Kan.  712  ;  Ex  parte  Boscowitz,  84  Ala.  463).  The  privilege  is  that 
of  the  witness  and  not  of  the  party  to  the  suit,  and  may  be  waived 
by  the  witness  (Cloyes  v.  Thayer,  3  Hill,  564  ;  Comm.  v.  Shaw,  4  Cush. 
594  ;  State •  v.  Wetitworth,  65  Me.  234;  Chesapeake  Club  v.  State,  63  Md. 
446;  Samuel  v.  People,  164  111.  379;  State  v.  Van  Winkle,  80  la.  15), 
and  ceases  to  exist  if  a  criminal  prosecution  against  him  is  barred  by 
the  Statute  of  Limitations  (Wh.  Ev.  i.  §  540 ;  Childs  v.  Merrill,  66  Vt. 
302  ;  Lamscn  v.  Boyden,  160  111.  613  ;  Mahanke  v.  Cleland,  76  la.  401 ; 
cf.  Southern  Ry.  News  Co.  v.  Russell,  91  Ga.  808),  or  if  some  statute, 
requiring  criminating  evidence  to  be  given  in  certain  cases,  affords 
to  the  witness,  in  return,  absolute  immunity  from  prosecution  (Brown 
w.Walker,  161  U.  S.  591;  State  w.Nowell,  58  N.  H.  314  ;  Emery  s  Case, 
107  Mass.  172  ;  People  v.  Forbes,  143  N.  Y.  219 ;  Ex  parte  Cohen,  104 
Cal.  524);  the  privilege  is  not  lost,  however,  if  the  statute  simply  pro- 
vides that  the  criminating  evidence  cannot  afterwards  be  used  against 
the  witness  (Id.;  Counselman  v.  Hitchcock,  142  U.  S.  547  ;  Kendrick  v. 
Comm.,  78  Ya.  490 ;  but  see  People  v.  Kelley, 24  N.  Y.  74 ;  Comm.  v.  Bell, 
145  Pa.  374).  The  privilege  is  not  always  to  be  allowed  when  claimed, 
but  only  when  it  appears  to  the  court  from  the  nature  of  the  examina- 
tion that  the  witness  is  exposed  to  danger  if  he  should  be  compelled 
to  answer ;  but  this  appearing,  he  need  not  show  how  the  answer  will 
criminate  him  (Ex  parte  Reynolds,  20  Ch.  D.  294  ;  Youngs  v.  Youngs,  5 
Redf.  505  ;  La  Fontaine  v.  Underwriters,  83  N.  C.  132 ;  see  Illus- 
tration (b);  Friess  v.  N.  Y.  C.  R.  Co.,  67  Hun,  205  ;  La?nb  v.  Minister, 
10  Q.  B.  D.  no).  If  the  witness  discloses  without  objection  part  of  a 
transaction  criminating  him,  it  is  the  general  American  rule  that  he 
must  disclose  the  whole  (Com m.  v.  Pratt,  126  Mass.  462;  People  v. 
Freshour,  55  Cal.  375  ;  Coburn  v.  Odell,  30  N.  H.  540 ;  State  v.  Fay,  43 


298  A  DIGEST  OF  [Part  III. 

the  witness),  to  any  criminal  charge,  or  to  any  penalty  or 
forfeiture '  which  the  judge  regards  as  reasonably  likely 
to  be  preferred  or  sued  for ;  *  but  no  one  is  excused  from 


la.  651 ;  State  v.  Nichols,  29  Minn.  357  ;  see  Youngs  v.  Youngs,  supra ; 
Samuel  v.  People,  164  111.  379),  unless  the  partial  disclosure  is  made 
under  innocent  mistake  {Mayo  v.  Mayo,  1 19  Mass.  290).  But  in  Eng- 
land a  partial  statement  does  not  forfeit  the  privilege  {R.  v.  Garbett, 
1  Den.  C.  C.  236 ;  S.  P.  Chesapeake  Club  v.  State,  63  Md.  446).  Testi- 
mony given  under  compulsion  of  the  court,  contrary  to  the  privilege, 
cannot  be  used  against  the  witness  {Horstman  v.  Kaufman,  97  Pa. 
147  ;  see  Art.  23,  ante). 

When  a  defendant,  in  a  criminal  trial,  voluntarily  becomes  a  witness 
in  his  own  behalf,  it  is  held  in  many  States  that  he  thereby  waives  his 
privilege  as  to  criminating  himself  and  maybe  cross-examined  upon  all 
facts  relevant  to  the  issue  (Comm.  v.  Nichols,  114  Mass.  285  ;  State  v. 
Ober,  52  N.  H.  459;  State  v.  Witham,  72  Me.  531 ;  State  v.  Grisivold, 
67  Ct.  307  ;  People  v.  Tice,  131  N.  Y.  65 1  ;  Disque  v.  State,  49  N.  J.  L.  249 ; 
Thomas  v.  State,  103  Ind.  419;  State  v.  Wells,  54  Kan.  161  ;  State  v. 
Thomas,  98  N.  C.  599;  Thomas  v.  State,  100  Ala.  53  ;  see  Comm.  v. 
Smith,  163  Mass.  431  ;  Este  v.  Wilshire,  44  O.  St.  636).  In  some  States, 
however,  the  cross-examination  must  relate  to  matters  as  to  which  he 
was  examined  in  chief  {People  v.  Wong  Ah  Leong,  99  Cal.  440; 
State  v.  Graves,  95  Mo.  510 ;  see  Spies  v.  Illinois,  123  U.  S.  131  ;  also, 
Articles  127  and  129,  post). 

Where  a  defendant,  in  a  criminal  trial,  was  required  to  stand  up  in 
court  to  be  identified,  this  was  held  not  to  be  a  violation  of  the  rule 
that  no  person  shall  be  required  to  give  evidence  against  himself  in  a 
criminal  case.  People  \.  Gardner,  144N.  Y.  119;  but  see  Cooper  v. 
State, 86  Ala.  610 ;  cf.  O'Brien  v.  State,  125  Ind.  38  ;  Williams  v.  State, 
98  Ala.  52  ;  Myers  v.  State,  97  Ga.  99;  see  p.  177,  note,  ante.} 

1  [See  page  294,  note  1,  ante.] 

3  As  to  husbands  and  wives,  see  1  Hale,  P.  C.  301  ;  R.  v.  Cliviger,  2 
T.  R.  263 ;  Cartwrightv.  Green,  8  Ves.  405  ;  R.  v.  Bathivick,  2  B.  &  Ad. 
639 ;  R.  v.AH  Saints,  Worcester,  6  M.  &  S.  194.  These  cases  show  that 
even  under  the  old  law  which  made  the  parties  and  their  husbands 
and  wives  incompetent  witnesses,  a  wife  was  not  incompetent  to 
prove  matter  which  might  tend  to  criminate  her  husband.  R.  v. 
Cliviger  assumes  that  she  was,  and  was  to  that  extent  overruled.  As 
to  the  later  law,  see  R.  v.  Halliday,  Bell,  257.  The  cases,  however, 
do  not  decide  that  if  the  wife  claimed  the  privilege  of  not  answering 
she  would  be  compelled  to  do  so,  and  to  some  extent  they  suggest 
that  she  would  not.    [See  State  v.  Briggs,  9  R.  I.  361 ;  State  v.Bridg- 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  299 

answering  any  question  only  because  the  answer  may 
establish  or  tend  to  establish  that  he  owes  a  debt,  or  is 
otherwise  liable  to  any  civil  suit,  either  at  the  instance  of 
the  Crown  or  of  any  other  person.1 

Illustrations. 

(a)  [A,  testifying  before  the  grand  jury  in  regard  to  a  charge  under 
investigation  by  them  whether  certain  persons  had  been  guilty  of 
gambling  by  playing  with  cards  for  money,  was  asked,  "  Do  you 
know  of  any  person  playing  at  a  game  of  cards  for  money  in  this 
county  within  eighteen  months  past  ? "  He  answered,  "  I  do."  The 
foreman  then  asked  him,  "  Whom  did  you  see  playing  ? "  He  refused 
to  answer  on  the  ground  that  he  could  not  do  so  without  giving 
evidence  against  and  tending  to  criminate  himself.  The  court 
adjudged  him  guilty  of  contempt  for  refusing  to  answer;  but  it  was 
held  on  appeal  that  he  rightfully  claimed  his  privilege  ;  that,  as  he 
himself  had  played  in  the  game  with  the  persons  to  whom  his  first 
answer  related,  he  could  not  disclose  their  names  without  thereby 
furnishing  a  link  in  a  chain  of  testimony  tending  to  establish  his  own 
guilt.]2 

(b)  [A  was  indicted  and  put  on  trial  for  forgery  of  a  promissory 
note  purporting  to  have  been  executed  by  B.  The  prosecuting 
attorney  called  B  as  a  witness,  exhibited  the  note  to  him  and  asked 
him  if  the  name  affixed  was  his  signature.  He  declined  to  answer 
because  it  might  criminate  himself,  and  the  court  excused  him  from 
answering.  The  attorney  then  asked,  "  Have  you  ever  seen  this  note 
before?"     He  refused  to  answer  for  the  same  reason;  but  the  court 


man,  49  Vt.  202  ;  Royal  Ins.  Co.  v.  Noble,  5  Abb.  Pr.  (N.  S.)  54  ;  State 
v.  Wilson,  31  N.  J.  L.  77  ;  Cornelius  v.  Hambay,  150  Pa.  359  ;  State  v. 
Welch,  26  Me.  30  ;  Comm.  v.  Sparks,  7  Allen,  534  ;  Keep  v.  Griggs, 
12  111.  App.  511  ;  State  v.  Vol 'lander,  57  Minn.  225  ;  People  v.  Langtree, 
64  Cal.  256 ;    Woods  v.  Slate,  76  Ala.  35  ;  p.  277,  note  3,  ante.] 

1 46 Geo.  III.  c.  37.  See  R.  v.  Scott,  25  L.  J.  M.  C.  128, 7  Cox,  164,  and 
subsequent  cases  as  to  bankrupts,  and  Ex  parte  Scholfield,  6  Ch.  D. 
230.  Qucere,  Is  he  bound  to  produce  a  document  criminating  himself  ? 
See  Webb  v.  East,  5  Ex.  D.  23  &  109.  [Gr.  Ev.  i.  §  452  ;  N.  Y.  Code 
Civ.  Pro.  §  837  ;  In  re  Kip,  1  Pai.  601;  Bull  v.  Loveland,  10  Pick.  9; 
Lovvney  v.  Perham,  20  Me.  235  ;  Lees  v.  U.  S.,  150  U.  S.  476 ;  Gadsden 
v.  Woodward,  103  N.  Y.  242.] 

-  [Minters  v.  People,  139  111.  363  ;  cf.  Wardv.  Slate,  2  Mo.  120;  Peo- 
ple v.  Forbes,  143  N.  Y.  219.] 


300  A  DIGEST  OF  [Part  III, 

ruled  that  he  must  answer,  and  he  then  replied, "  Yes."  The  attorney 
then  asked,  "  When  ?  "  and  he  again  asserted  a  like  claim  of  privilege. 
The  court  again  ruled  that  he  must  answer,  and  he  then  stated  when 
he  saw  the  note.  On  appeal  it  was  held  that  the  witness  was  not 
entitled  to  a  privilege  as  respects  any  of  the  questions  asked,  since 
there  was  nothing  in  the  circumstances  of  the  case,  or  in  the  nature 
of  the  questions,  to  suggest  any  reasonable  apprehension  of  danger  to 
him  from  being  compelled  to  answer.  The  very  nature  of  the  offence 
charged  against  defendant  negatived  the  idea  of  the  witness's  being 
a  party  to  it,  and  there  was  nothing  in  the  character  of  the  evidence 
sought  to  be  elicited  from  him  that  would  reasonably  suggest  any  real 
or  appreciable  danger  that  it  would  or  could  tend  to  inculpate  him  in 
any  other  offence.] ' 

Article   121. 

corroboration,  when  required.8 

When   the  only  proof  against  a  person  charged  with 
a  criminal   offence   is   the   evidence   of   an    accomplice, 


1  [State  v.  Thaden,  43  Minn.  253,  following  the  English  rule.  Some 
American  decisions  state  the  rule  in  a  different  form, saying  that  "the 
witness  may  be  compelled  to  answer  when  he  contumaciously  refuses, 
or  when  it  is  perfectly  clear  and  plain  that  he  is  mistaken,  or  that  the 
answer  cannot  possibly  injure  him  or  tend  in  any  degree  to  subject  him 
to  the  peril  of  prosecution.  Where  it  is  not  so  perfectly  evident  that 
the  answer  called  for  cannot  incriminate  as  to  preclude  all  reasonable 
doubt  or  fair  argument,  the  privilege  must  be  recognized  and  pro- 
tected." People  v.  Forbes,  143  N.  Y.  219;  Janvrin  v.  Scamtnon,  29 
N.  H.  280.] 

2  [Mr.  Stephen  begins  this  Article  with  the  following  special 
statutory  rules  of  the  English  law,  (adding  also  another  rule,  which  will 
be  found  in  the  Appendix,  Note  LI  1 1.) : — "  No  plaintiff  in  any  action  for 
breach  of  promise  of  marriage  can  recover  a  verdict,  unless  his  or 
her  testimony  is  corroborated  by  some  other  material  evidence  in 
support  of  such  promise  (32  &  33  Vict.  c.  68  s.  2).  The  fact  that  the 
defendant  did  not  answer  letters  affirming  that  he  had  promised  to 
marry  the  plaintiff  is  not  such  corroboration  (  Wiedemann  v.  Walpole, 
[1891]  2  Q.  B.  534). 

"  No  order  against  any  person  alleged  to  be  the  father  of  a  bastard 
child  can  be  made  by  any  justices,  or  confirmed  on  appeal  by  any 
Court  of  Quarter  Session,  unless  the  evidence  of  the  mother  of  the 
said  bastard  child  is  corroborated  in  some  material  particular  to  the 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  301 

uncorroborated  in  any  material  particular,  it  is  the  duty 
of  the  judge  to  warn  the  jury  that  it  is  unsafe  to  convict 
any  person  upon  such  evidence,  though  they  have  a  legal 
right  to  do  so.1 

satisfaction  of  the  said  justices  or  court  respectively  (8  &  9  Vict.  c. 
"10,  s.  6  ;  35  &  36  Vict.  c.  6,  s.  4)." 

Generally  in  this  country  the  common-law  rule  applies  in  these  cases 
and  no  corroboration  is  required.  It  has  been  so  held  as  to  an  action 
for  breach  of  promise  of  marriage  {Giese  v.  Schultz,  65  Wis.  487 ;  cf. 
Ho m an  v.  Earle,  53  N.  Y.  267),  and  as  to  bastardy  proceedings  {State 
v.  Nichols,  29  Minn.  357 ;  State  v.  McGlothlen,  56  la.  544 ;  Olson  v. 
Peterson,  33  Neb.  358  ;  People  v.  Lyon,  83  Hun,  303  ;  State  v.  Tipton, 
15  Mont.  74 ;  for  a  special  rule  in  Massachusetts  and  Connecticut,  see 
Mass.  Pub.  St.  c.  85,  s.  16 ;  Leonard  v.  Bolton,  148  Mass.  66 ;  Benton 
v.  Starr,  58  Ct.  285). 

In  some  analogous  cases  corroboration  is  required.  Thus  in  New 
York  and  some  other  States,  seduction  under  promise  of  marriage  is 
declared  to  be  a  crime,  but  no  conviction  can  be  had  on  the  testimony 
of  the  female  seduced,  uncorroborated  by  other  evidence  {People  v. 
Kearney,  no  N.  Y.  188;  Zabriskie  v.  State,  43  N.  J.  L.  640;  Rice  v. 
Coinm.,  100  Pa.  28  ;  State  v.  McCaskey,  104  Mo.  644  ;  State  v.  Lockerby, 
50  Minn.  363 ;  State  v.  Smith,  34  la.  522 ;  La  Rosae  v.  State,  132  Ind. 
219;  Mill's  Case,  93  Va.  815);  so  in  some  States  as  to  criminal  pros- 
ecutions for  abduction,  rape,  and  like  offences  (N.  Y.  Pen.  Code,  §  283; 
People  v.  Plath,  100  N.  Y.  590  ;  State  v.  Keith,  47  Minn.  559  ;  Stale  v. 
Grossheim,  79  la.  75);  in  a  number  of  the  States,  however,  no  corrobo- 
ration is  required  in  trials  for  rape  {State  v.  Dusenberry,  112  Mo. 
277;  State  v.  Juneau,  88  Wis.  180;  State  v.  Connelly,  57  Minn.  482; 
Bamett  v.  State,  83  Ala.  40). 

So  in  some  States  it  is  a  general  rule  not  to  grant  a  divorce  upon  the 
uncorroborated  testimony  of  the  complainant  (Robbins  v.  Robbins,  100 
Mass.  150 ;  Mc Shane  v.  Mc Shane,  45  N.  J.  Eq.  341 ;  Cooper  v.  Cooper, 
88  Cal.  45  ;  Lewis  v.  Lewis,  75  la.  200  ;  Rie  v.  Rie,  34  Ark.  37  ;  contra, 
Flattery  v.  Flattery,  88  Pa.  27;  Sylvis  v.  Sylvis,  1 1  Col.  319),  or  upon  the 
uncorroborated  confessions  of  the  defendant  {Suiiaiierbellv.  Summer- 
bell,  37  N.  J.  Eq.  603 ;  Madge  v.  Madge,  42  Hun,  524  ;  Cal.  Civ.  Code, 
§  130;  cf.  N.  Y.  Code  Civ.  Pro.  §  1753);  so,  in  actions  for  divorce,  the 
evidence  of  prostitutes  and  private  detectives  has  been  held  to  need 
corroboration  {Moller  v.  Moller,  115  N.  Y.  466  ;  McCarthy  v.  McCar- 
thy, 143  N.  Y.  235  ;  McGrailv.  McGrail,  48  N.  J.  Eq.  532). 

For  other  cases,  in  which  corroboration  is  required,  see  Article  122.] 

'i  Ph.  Ev.  93-101;  T.  E.  ss.  887  891;  3  Russ.  Cri.  600-611.    [Gr.  Ev. 


302  A  DIGEST  OF  ^  .  [Part  III. 

Article  121  a. 
claim  on  estate  of  deceased  person. 

Claims  upon  the  estates  of  deceased  persons,  whether 
founded  upon  an  allegation  of  debt  or  of  gift,  ought  not 
to  be  maintained  upon  the  uncorroborated  testimony  of 


i-  §§  45.  380-382  ;  State  v.  Woolard,  1 1 1  Mo.  248  ;  State  v.  Patterson, 
52  Kan.  335.  It  is  held,  however,  in  many  States  to  be  a  rule  of  prac- 
tice to  warn  the  jury,  not  a  rule  of  law,  and  to  be  discretionary  with 
the  court  ( Comm.  v.  Wilson,  152  Mass.  12  ;  Comm.  v.  Bishop,  165  Mass. 
148;  Collins  v.  State,  98  111.  584;  Cheatham  v.  State,  67  Miss.  335; 
State  v.  Barber,  113  N.  C.  711;  State  v.  Kibling,  63  Vt.  636;  Itigalls 
v.  State,  48  Wis.  647).  Whether  such  warning  be  given  or  not,  how- 
ever, the  jury  may  convict  on  the  uncorroborated  testimony  of  the 
accomplice,  if  they  are  convinced  by  it  beyond  a  reasonable  doubt 
that  the  defendant  is  guilty  (Id.;  Cox  v.  Comm.,  125  Pa.  94 ;  Hoyt  v. 
People,  140  111.  588 ;  Ayers  v.  State,  88  Ind.  275  ;  State  v.  Maney,  54  Ct. 
178;  People  v.  Gallagher,  75  Mich.  512;  State  v.  Dana,  59  Vt.  614; 
Lamb  v.  State,  40  Neb.  312  ;  Campbell  v.  People,  159  111.  9).  Evidence 
is  deemed  properly  corroborative  which  tends  to  connect  the  accused 
with  the  commission  of  the  crime  {Comm.  v.  Holmes,  127  Mass.  424; 
State  v.  Maney,  54  Ct.  178  ;  State  v.  Donnelly,  130  Mo.  642  ;  Hester  v. 
Comm.,  85  Pa.  139;  Pobison  v.  State,  16  Lea,  146);  but  some  cases 
say  that  the  corroboration  must  be  as  to  some  material  part  of  the 
accomplice's  testimony  or  as  to  some  material  fact  {State  v.  Patterson, 
52  Kan.  335  ;  Slate  v.  Dana,  59  Yt.  614  ;   U.  S.  v.  Howell,  56  F.  R.  20). 

In  a  number  of  the  States  it  is  provided  by  statute  that  no  convic- 
tion can  be  had  on  the  testimony  of  an  accomplice,  unless  there  be 
corroborative  evidence  tending  to  connect  the  defendant  with  the  com- 
mission of  the  crime  {People  v.  Elliott,  106  N.  Y.  288 ;  People  v.  May- 
hew,  150  N.  Y.  346 ;  State  v.  Van  Winkle,  80  la.  15  ;  Malachi  v.  State, 
89  Ala.  134  ;  State  v.  J  'aughan,  58  Ark.  353  ;  State  v.farvis,  18  Or.  360 ; 
People  v.  Armstrong,  1 14  Cal.  570). 

Persons  who,  as  detectives,  informers,  and  the  like,  engage  with 
criminals  in  their  wrongful  designs  and  acts,  with  the  honest  purpose 
of  exposing  them  and  bringing  them  to  justice,  are  not  accomplices, 
within  the  above  rules,  and  their  testimony  does  not  need  corrobora- 
tion, unless  otherwise  open  to  question  (Gr.  Ev.  i.  §  382  ;  State  v.  Mc- 
Kean,  36  la.  343  ;  People  v.  Bolanger,  71  Cal.  17  ;  Comm.  v.  Hollister, 
157  Pa.  13 ;  State  v.  Hoxsie,  15  R.  I.  1 ;  Comm.  v.  Ingersoll,  145  Mass. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  303 

the  claimant,  unless  circumstances  appear  or  are  proved 
which  make  the  claim  antecedently  probable,  or  throw 
the  burden  of  disproving-  it  on  the  representatives  of  the 
deceased. 

Illustrations. 

(a)  A,  a  widow,  swore  that  her  deceased  husband  gave  her  plate, 
etc.,  in  his  house,  but  no  circumstances  corroborated  her  allegation. 
Her  claim  was  rejected.1 

(b)  A,  a  widow,  claimed  the  rectification  of  a  settlement  drawn  by 
her  husband  the  night  before  their  marriage,  and  giving  him  advan- 
tages which,  as  she  swore,  she  did  not  mean  to  give  him,  and  were 
not  explained  to  her  by  him.  Her  claim  was  admitted  though  un- 
corroborated.2 

Article  122. 

number  of  witnesses. 

In  trials  for  high  treason,  or  misprision  of  treason,  no 
one  can  be  indicted,  tried,  or  attainted  (unless  he  pleads 
guilty)   except  upon   the  oath  of  two  lawful  witnesses, 


231);  so  persons  forced  into  criminal  acts  are  not  accomplices  {People 
v.  Miller,  66  Cal.  468  ;  cf.  U.  S.  v.  Thompson,  31  F.  R.  331). 

Upon  the  mxx\m  falsus  in  uno,falsus  in  omnibus,  the  testimony  of  a 
witness  who' has  wilfully  and  knowingly  sworn  falsely  as  to  a  material 
point  may  be  disregarded  by  the  jury  unless  corroborated  {State  v. 
Martin,  124  Mo.  514  ;  City  of  Sandwich  v.  Dolan,  141  111.  430;  People 
v.  Clark,  84  Cal.  573  ;  Judge  v.  Jordan,  81  la.  5 19  ;  Cole  v.  Lake  Shore, 
etc.  R.  Co.,  95  Mich,  yj ;  Schmitt  v.  Milwaukee  R.  Co.,  89  Wis.  195  ; 
Moett  v.  People,  85  N.  Y.  373  ;  Lemmon  v.  Moore,  94  Ind.  40).  But  it  is 
not  a  rule  of  law  that  they  must  so  disregard  it  ( Id. ;  Comm.  v.  Billings, 
97  Mass.  405;  Hoge  v.  People,  117  111.  35;  Hillman  v.  Schwenk,6& 
Mich.  293  ;  Ala.  etc.  R.  Co.  v.  Frazier,  93  Ala.  45  ;  Bonnie  v.  Earl  I, 
12  Mont.  239  ;  but  see  People  v.  Paulsell,  115  Cal.  6).  The  rule  applies 
to  parties,  when  they  testify,  as  well  as  to  other  witnesses.  People  v. 
Petmecky,  99  N.  Y.  415  ;  Siebert  v.  People,  143  111.  571.] 

1  Finch  v.  Finch,  23  Ch.  D.  267.  [See  Devlin  v.  Greenwich  Sav.  Bk., 
125  N.  Y.  756  ;  Dills  v.  Stevenson,  17  N.  J.  Eq.  407 ;  Natch  v.  Atkin- 
son, 56  Me.  324.] 

2  Lovesy  v.  Smith,  1 5  Ch.  D.  655.    In  re  Gartiett,  Gandy  v.  Macaulay, 


304  A  DIGEST  OF  [Part  III. 

cither  both  of  them  to  the  same  overt  act,  or  one  of  them 
to  one  and  another  of  them  to  another  overt  act  of  the 
same  treason.1  If  two  or  more  distinct  treasons  of  divers 
heads  or  kinds  are  alleged  in  one  indictment,  one  witness 
produced  to  prove  one  of  the  said  treasons  and  another 
witness  produced  to  prove  another  of  the  said  treasons 
are  not  to  be  deemed  to  be  two  witnesses  to  the  same 
treason a  within  the  meaning  of  this  Article.3 

If  upon  a  trial  for  perjury  the  only  evidence  against 
the  defendant  is  the  oath  of  one  witness  contradicting 
the  oath  on  which  perjury  is  assigned,4  and  if  no  cir- 


31  Ch.  D.  1,  is  a  similar  case.  In  In  re  Hodgson,  Beckett  v.  Ramsdale, 
31  Ch.  D.  p.  183,  the  language  of  Hannen,  J.,  in  words  somewhat  re- 
laxes the  rule,  but  not,  I  think,  in  substance.  [The  ground  of  the 
decision  in  Lovesy  v.  SmitJi  was  that  the  husband  should  have  ex- 
plained to  the  wife,  in  the  clearest  terms,  the  provision  in  his  favor, 
and  that  as  the  settlement,  on  its  face,  was  not  such  as  the  court 
would  have  sanctioned  in  the  absence  of  agreement,  the  burden  of 
proof  was  on  the  husband's  representatives.  Cf.  Fanner  s  Excr.  v. 
Farmer,  39  N.  J.  Eq.  211.] 

1  [The  law  of  this  country  is  somewhat  different,  the  U.  S.  Constitu- 
tion (Art.  3,  s.  3)  providing  that  "  no  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court."  A  similar  provision  is  found  in 
many  of  the  State  Constitutions  as  to  treason  against  the  State.  Gr. 
Ev.  i.  §255.] 

3  7  &  8  Will.  III.  c.  3,  ss.  2,  4.    [Gr.  Ev.  i.  §  256.] 

3  [At  this  point  Mr.  Stephen  adds  the  following  special  rule  of  the 
English  law :  "  This  provision  does  not  apply  to  cases  of  high  treason 
in  compassing  or  imagining  the  Queen's  death,  in  which  the  overt  act 
or  overt  acts  of  such  treason  alleged  in  the  indictment  are, assas- 
sination or  killing  of  the  Queen,  or  any  direct  attempt  against  her  life, 
or  any  direct  attempt  against  her  person,  whereby  her  life  may  be 
endangered,  or  her  person  suffer  bodily  harm,  or  to  misprision  of  such 
treason.    39  &  40  Geo.  III.  c.  93."] 

4  3  Russ.  on  Crimes,  77-86.  [Perjury  may  be  proved  by  the  testi- 
mony of  two  witnesses,  or  by  that  of  one  witness  supplemented  by 
evidence  of  corroborating  circumstances  ;  but  not  by  the  uncorrobo- 
rated testimony  of  one  witness  (Gr.  Ev.  i.  §§  257-259 ;    Williams  v. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  305 

cumstances  are  proved  which  corroborate  such  witness, 
the  defendant  is  entitled  to  be  acquitted.1 


Comm.,  91  Pa.  493  ;  People  v.  Wells,  103  Cal.  631  ;  State  v.  Hawkins, 
115  N.  C.  712  ;  U.  S.  v.  Hall,  44  F.  R.  864  ;  State  v.  Jean,  42  La.  Ann. 
946  ;  Thomas  v.  State,  51  Ark.  138  ;  Brookin  v.  Stale,  27  Tex.  App.  701 ; 
Peo/>le  v.  Stone,  32  Hun,  41;  Stale  v.  Heed,  57  Mo.  252;  Comm.  v. 
Parker,  2  Cush.  212) ;  so  documentary  evidence  alone  may  suffice  U> 
prove  perjury  {U.  S.  v.  Wood,  14  Pet.  430).  But  proof  that  the  ac- 
cused, on  two  different  occasions,  swore  to  contradictory  statements  is 
not  sufficient.    Freeman  v.  State,  19  Fla.  552  ;  U.  S.  v.  Mayer,  Deady, 

127] 

1  [It  is  a  chancery  rule  that  where  a  bill  is  so  framed  as  to  compel 
an  answer  on  oath  and  such  answer  denies  the  allegations  of  the  bill, 
the  uncorroborated  evidence  of  one  witness  in  support  of  the  bill  will 
not  be  sufficient  basis  for  a  decree  (Gr.  Ev.  i.  §  260  ;  Morris  v.  White, 
36  N.  J.  Eq.  324  ;  Jones  v.  Abraham,  75  Va.  466  ;  Smith  v.  Ewing, 
151  Pa.  256;  Southern  Development  Co.  v.  Silva,  125  U.  S.  247; 
Deimelv.  Brown,  136  111.  586  ;  cf.  Shackelford  v.  Brown,  72  Miss.  380). 
But  in  New  York  and  some  other  States  this  rule  no  longer  exists 
(Stilwell  v.  Carpenter,  62  N.  Y.  639 ;  Quertermous  v.  Taylor,  62  Ark. 
598). 

After  some  doubt,  it  is  now  held  that  a  usage  of  business  may  be 
established  by  the  testimony  of  one  witness.  Robinson  v.  U.  S.,  13 
Wall.  363  ;  Bissell  v.  Campbell.  54  N.  Y.  353  ;  Jones  v.  Hoey,  128  Mass. 
585  ;  Adams  v.  Pittsburgh  Ins.  Co.,  95  Pa.  348;  Woottersv.Kauffman, 
67  Tex.  488.] 


3o6  A  DIGEST  OF  [Part  III. 


CHAPTER  XVI. 

OF  TAKING  ORAL  EVIDENCE,  AND  OF  THE 
EXAMINATION  OF  WITNESSES. 

Article   123. 

evidence  to  be  upon  oath,  except  in  certain  cases. 

All  oral  evidence  given  in  any  proceeding  must  be  given 
upon  oath,  except  as  is  stated  in  this  and  the  following 
Article.1 

Every  person  objecting  to  being  sworn,  and  stating, 
as  the  ground  of  such  objection,  either  that  he  has  no 
religious  belief,  or  that  the  taking  of  an  oath  is  contrary 
to  his  religious  belief,  may  make  his  solemn  affirmation, 
which  is  of  the  same  force  and  effect  as  if  he  had  taken 
the  oath,  and  if,  having  made  such  affirmation,  he  wil- 
fully and  corruptly  gives  false  evidence,  he  is  liable  to 
be  punished  as  for  perjury. 

Such  affirmation  must  be  as  follows: — 

"  I,  A.  B.,  do  solemnly,  sincerely,  and  truly  declare  and 
affirm," 

and  then  proceed  with  the  words  of  the  oath  prescribed 
by  law,  omitting  any  words  of  imprecation  or  calling  to 
witness.2 


1  [The  "following  Article"  (Art.  123  a)  contains  a  special  statutory 
rule  of  the  English  law.  It  will  be  found  in  the  Appendix,  Note 
LIIL] 

2  51  &  52  Vict.  c.  46,  the  Oaths  Act,  1888,  which  repeals  the  previous 
enactments  on  the  subject.     [Provisions  similar  to  those  set  forth  in 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  307 


Where  an  oath  has  been  duly  administered  and  taken, 
the  fact  that  the  person  to  whom  the  same  was  adminis- 
tered had,  at  the  time  of  taking  such  oath,  no  religious 
belief,  does  not  for  any  purpose  affect  the  validity  of  such 
oath.1 

Article  124. 

form  of  oaths  ;  by  whom  they  may  be  administered. 

Oaths  are  binding-  which  are  administered  in  such 
form  and  with  such  ceremonies  as  the  person  sworn 
declares  to  be  binding.2 


this  Article  have  been  generally  adopted  in  this  country  by  statute. 
Thus  it  is  provided  in  the  U.  S.  Revised  Statutes  (s.  1)  that  "the  re- 
quirement of  an  'oath*  shall  be  deemed  complied  with  by  making 
affirmation  in  judicial  form."  So  in  New  York,  a  solemn  declaration 
or  affirmation,  in  the  following  form,  is  administered  to  a  person  who 
declares  that  he  has  conscientious  scruples  against  taking  an  oath  : 
"You  do  solemnly,  sincerely,  and  truly,  declare  and  affirm,"  etc.  (Code 
Civ.  Pro.  §  847).  Other  States  have  like  provisions.  Under  such 
laws  a  wilful  false  oath  or  affirmation  constitutes  perjury.  Id.  §  851 ; 
U.  S.  Rev.  St.  s.  5392.] 

1  51  &  52  Vict.  c.  46,  s.  3. 

2  1  &  2  Vict.  c.  105.  For  the  old  law,  see  Omichundv.  Barker,  I 
S.  L.  C.  455.  [See  Attorney  General  v.  BradlaugJi,  14  Q.  B.  D.  667. 
By  the  regular  common-law  form,  the  oath  is  administered  upon 
the  Gospels,  the  witness  kissing  the  book,  the  usual  formula  repeated 

to  him  being,  "  You  do  swear  that,"  etc. "  So  help  you  God."   But 

often,  nowadays,  the  witness,  instead  of  kissing  the  book,  simply 
raises  his  hand  while  taking  the  oath.  But  the  rule  stated  in  this 
Article  is  everywhere  accepted  [McKinney  v.  People,  7  111.  540;  Green 
v.  State,  7 1  Ga.  487  ;  Comm.v.  Buzzell,  16  Pick.  153).  Thus  a  Mo- 
hammedan may  be  sworn  on  the  Koran,  a  Brahmin  or  a  Chinaman  by 
the  peculiar  methods  used  in  their  countries,  etc.  (People  v.  Jack- 
son, 3  Park.  Cr.  590  ;  State  v.  Chiagk,  92  Mo.  395  ;  Central,  etc.  R. 
Co.  v.  Rockafellow,  17  111.  541;  Bow  v.  People,  160  111.  438;  New- 
man v.  Newman,  7  N.  J.  Eq.  26).  But  if  such  persons  take  the 
usual  form  of  oath  without  objection,  they  are  liable  for  perjury,  if 


308  A  DIGEST  OF  [Part  III. 

Any  person  to  whom  an  oath  is  administered,  who  so 
desires,  may  be  sworn  with  uplifted  hand  in  the  form 
and  manner  usual  in  Scotland.1 

Every  person  now  or  hereafter  having-  power  by  law 
or   by   consent  of  parties  to  hear,  receive,   and   examine 
evidence,  is  empowered  to  administer  an  oath  to  all  su  1 
witnesses  as  are  lawfully  called  before  him.2 

Article  125. 

how  oral  evidence  may  be  taken. 

Oral  evidence  may  be  taken3  (according  to  the  law 
relating  to  civil  and  criminal  procedure) — 

In  open  court  upon  a  final  or  preliminary  hearing  ;4 


they  wilfully  swear  falsely  (Gr.  Ev.  i.  §  371;  Comm.  v.  Jarboe,  89 
Ky.  143)- 

In  many  States,  these  general  rules,  more  or  less  modified,  are  pre- 
scribed by  statute  (see  N.  Y.  Code  Civ.  Pro.  §§  845-851  ;  Mass.  Pub. 
St.  c.  169,  ss.  13-18  ;  Me.  R.  S.  c.  82,  s.  103  ;  111.  R.  S.  c.  101  ;  2  How.  St. 
(Mich.)  ss.  7537-7539).  If  an  oath  be  administered  substantially  in 
the  form  prescribed  by  statute,  it  is  valid,  and  the  witness  will  be  guiky 
of  perjury  if  he  wilfully  swears  falsely.  State  v.  Mazon,  90  N.  C.  676 ; 
State  v.  Dayton,  23  N.  J.  L.  49  ;  see  People  v.  Cook,  8  N.  Y.  67,  84.] 

1  51  &  52  Vict.  c.  46,  s.  5.    [See  p.  307,  note  2,  ante.] 

2  14  &  15  Vict.  c.  99,  s.  16.  [Similar  statutes  are  generally  in  force  in 
this  country.  See  U.  S.  Rev.  St.  ss.  101,  183,  474, 1778,  etc.;  N.  Y.  Code 
Civ.  Pro.  §  843  ;  Mass.  Pub.  St.  c.  169,  ss.  7,  12.] 

3  As  to  civd  procedure,  see  Order  xxxvii.  to  Judicature  Act  of 
1875  I  Wilson,  pp.  264-7.  As  to  criminal  procedure,  see  11  &  12  Vict. 
c.  42,  for  preliminary  procedure,  and  the  rest  of  this  chapter  for  final 
hearings. 

4  [As  to  preliminary  hearings  in  criminal  cases,  there  are  statutes  in 
force  in  the  several  States  of  this  country,  providing  for  an  examina- 
tion before  a  magistrate  into  the  circumstances  of  a  charge  against  an 
accused  person,  and  the  prisoner  may  be  examined,  as  well  as  witnesses 
for  and  against  him  (Bishop's  New  Cr.  Pro.  §§  225-239 ;  N.  Y.  Code  Cr. 
Pro.  §§  188-221;  see  Art.  23,  ante,  and  notes).  So  in  civil  cases,  stat- 
utes in  some  States  provide  for  the  examination  before  trial  of  the 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  309 

Or  out  of  court  for  future  use  in  court — 

(a)  upon  affidavit, 

(b)  under  a  commission,1 


parties  to  a  cause,  or  of  other  persons  whose  testimony  is  material  and 
necessary  and  may  otherwise  be  lost  (see  N.  Y.  Code  Civ.  Pro.  §§  870- 
886 ;  Mass.  Pub.  St.  c.  167,  ss.  49-60);  but  the  examination  of  a  party 
to  an  action  before  trial  is  not  permissible  in  actions  at  law  in  the 
Federal  courts.    Ex  parte  Fisk,  113  U.  S.  713.] 

1  The  law  as  to  commissions  to  take  evidence  is  as  follows  :  The  root 
of  it  is  13  Geo.  III.  c.  63.  Section  40  of  this  Act  provides  for  the  issue 
of  a  commission  to  the  Supreme  Court  of  Calcutta  (which  was  first  es- 
tablished by  that  Act)  and  the  corresponding  authorities  at  Madras 
and  Bombay  to  take  evidence  in  cases  of  charges  of  misdemeanor 
brought  against  governors,  etc.,  in  India  in  the  Court  of  Queen's 
Bench,  S.  42  applies  to  parliamentary  proceedings,  and  s.  44  to  civil 
cases  in  India.  These  provisions  have  been  extended  to  all  the  col- 
onies by  1  Will.  IV.  c.  22,  and  so  far  as  they  relate  to  civil  proceedings 
to  the  world  at  large.  3  &  4  Vict.  c.  105,  gives  a  similar  power  to  the 
courts  at  Dublin.  See  as  to  cases  in  which  commissions  will  not  be 
granted,  /;/  re  Boyse,  Crofton  v.  Crofton,  20  Ch.  D.  760 ;  and  Berdan 
v.  Greenwood,  Id.,  in  note,  764  ;  also  Langer  v.  Tate,  24  Ch.  D.  322 ; 
Lawson  v.  Vacuum  Brake  Co.,  27  Ch.  D.  137. 

[There  are  statutes  in  the  several  States  of  this  country,  providing 
for  the  issuing  of  commissions  by  a  court  or  judge,  by  which  commis- 
sioners are  appointed  to  take  the  depositions  of  witnesses  in  other 
States  or  countries,  for  use  in  the  particular  State  issuing  the  commis- 
sion. The  courts  of  the  foreign  jurisdiction  will  usually  aid  such  com- 
missioners in  obtaining  the  desired  testimony,  by  compelling  witnesses 
to  come  before  them,  etc.,  either  upon  principles  of  comity,  or  in  ac- 
cordance with  their  own  local  statutes  making  this  their  duty.  An- 
other mode  of  obtaining  such  evidence  is  by  the  issuing  of  "  letters 
rogatory,"  which  are  in  the  form  of  a  letter  missive  from  a  domestic 
to  a  foreign  court,  requesting  it  to  procure  and  return  the  desired  tes- 
timony, under  promise  of  a  like  favor  when  required  (Gr.  Ev.  i.  §  320). 
Sometimes  foreign  courts  will  comply  with  such  a  request,  but  will  not 
aid  commissioners,  and  then  the  use  of  letters  rogatory  is  necessary  ; 
but  the  usual  practice  is  to  issue  a  commission.  See  U.  S.  Rev.  St. 
ss.  863-876:  N.  Y.  Code  Civ.  Pro.  §§887-920;  Mass.  Pub.  St.  c.  169, 
ss.  23-64  ;  2  How.  St.  (Mich.)  ss.  7433-7447  ;  Anonymous,  59  N.  Y.  313  ; 
Stein  v.  Bowman,  13  Pet.  209;  Cortes  Co.  v.  Tannhauser,  18  F.  R. 
667.] 


310  A  DIGEST  OF  [Part  III. 

(c)  '  before  any  officer  of  the  court  or  any  other  person 

or  persons,   appointed    for   that   purpose   by   the 

court  or  a  judge  [under  due  legal  authority,  or 

designated  by  statute,  or  selected  by  agreement 

of  the  parties.] 2 

Oral   evidence   taken   in   open   court  must   be    taken 

according  to  the  rules  contained  in  this  chapter  relating 

to  the  examination  of  witnesses. 

Oral  evidence  taken  under  a  commission  must  be 
taken  in  the  manner  prescribed  by  the  terms  of  the  com- 
mission.3 

Oral  evidence  taken  under  a  commission  must  be  taken 
in  the  same  manner  as  if  it  were  taken  in  open  court  ;  4 
but  the  examiner  has  no  right  to  decide  on  the  validity 
of   objections  taken   to   particular   questions,   but   must 


1  [This  paragraph  is  somewhat  changed  from  the  original,  and  the 
next  one  in  the  original  is  wholly  omitted  here,  since  they  relate  to 
the  special  provisions  of  English  statutes.  The  original  paragraphs 
will  be  found  in  the  Appendix,  Note  LIII.] 

2  [Commonly  in  this  country,  by  the  provisions  of  statutes  or  of  rules 
of  court,  persons  called  variously  referees,  auditors,  commissioners, 
examiners,  etc.,  may  be  appointed  by  a  judge  or  court  to  take  testi- 
mony and  report  it  for  the  information  of  the  court ;  or  such  persons 
may  be  appointed  by  the  court  or  selected  by  the  parties  to  act  as 
judges  in  hearing  and  deciding  causes  (see  N.  Y.  Code  Civ.  Pro. 
§§827,1011-1026;  Mass.  Pub.  St.  c.  159,  s.  51 ;  Holmes  v.  Turner  s  Falls 
Co.,  150  Mass.  535  ;  Howe  Machine  Co.  v.  Edwards,  15  Blatch.  402); 
masters  in  chancery  perform  similar  duties.  So  statutes  providing 
for  the  taking  of  testimony  in  special  cases  may  designate  by  official 
name  the  persons  before  whom  it  may  be  taken.  N.  Y.  Code  Civ.  Pro. 
§  899 ;  U.  S.  Rev.  St.  s.  863  ;  Laws  of  N.  J.  1893,  c.  100.] 

3  T.  E.  s.  491 .  [The  mode  of  taking  depositions  is  often  prescribed  by 
statute  or  by  rules  of  court ;  it  is  sometimes  provided  that  such  regu- 
lations shall  be  annexed  to  the  depositions  (see  U.  S.  Rev.  St.  ss.  863- 
868  ;  Rules  of  the  Federal  Courts  ;  N.  Y.  Code  Civ.  Pro.  §§  900-909). 
It  is  a  general  rule  that  such  regulations  must  be  carefully  and  pre- 
cisely followed.] 

4  T.  E.  s.  1283.  [See  last  note.] 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  311 

record  the  questions,  the  fact  that  they  were  objected  to, 
and  the  answers  given.' 

If  secondary  evidence  of  the  contents  of  any  document 
is  not  objected  to  on  the  taking  of  a  commission,  it  can- 
not be  objected  to  afterwards.2 

Oral  evidence  given  on  affidavit  must  be  confined  to 
such  facts  as  the  witness  is  able  of  his  own  knowledge  to 
prove,3  except  on  interlocutory  motions,  on  which  state- 
ments as  to  his  belief  and  the  grounds  thereof  may  be 
admitted.4  The  costs  of  every  affidavit  unnecessarily 
setting  forth  matters  of  hearsay  or  argumentative  mat- 


1  [So  it  is  held  in  New  York  that  a  referee  appointed  to  take  evi- 
dence should  take  all  that  is  offered,  and  has  no  power  to  pass  upon 
objections,  such  power  belonging  to  the  court  {Scott  v  .Williams,  14 
Abb.  Pr.  70  ;  Fox  v.  Moyer,  54  N.  Y.  125).  A  similar  rule  is  adopted 
in  the  equity  practice  of  the  Federal  courts  as  to  the  taking  of  testi- 
mony by  examiners  (Rule  67  of  the  Equity  Rules,  U.  S.  Courts,  144 
U.  S.  689).  And  other  States  have  similar  practice  (Brotherton  v. 
Brotherton,  14  Neb.  186;  Estate  of  Howell,  14  Phila.  329;  Elyton  Co. 
v.  Denny,  108  Ala.  553  ;  cf.  Jones  v.  Keen,  1 1 5  Mass.  170).  But  referees, 
etc.,  who  have  power  to  hear  and  determine  issues,  may  decide  upon 
objections  to  testimony.  Cincinnati  v.  Cameron,  33  O.  St.  336  ;  Lath- 
rop  v.  Bra?nhall,  64  N.  Y.  365  ;  N.  Y.  Code  Civ.  Pro.  §  1018.] 

2  Hawksley  v.  Bradshaw,  5  Q.  B.  D.  22.     [See  p.  312,  note  2,  post.] 

3  Judicature  Act,  1875,  Order  xxxvii.  4. 

4  [So  in  New  York  and  some  other  States,  affidavits  upon  inter- 
locutory motions  may  contain  statements  upon  information  and  belief, 
but  the  sources  of  such  information  and  the  grounds  of  such  belief 
should  also  be  stated,  and  the  reasons  why  the  affidavit  of  a  person 
having  knowledge  of  the  matter  cannot  be  procured  should  usually  ap- 
pear {Howe  Co.  v.  Pettibone,  74  N.  Y.  68  ;  Buell  v.  Van  Camp,  1 19  N.  Y. 
160 ;  Bennett  v.  Edwards,  27  Hun,  352  ;  Clement  v.  Bullens,  159  Mass. 
1 93  ;  Peebles  v.  Foote,  83  N.  C.  102  ;  Mitchell  v.  Pitts,  61  Ala.  219).  But 
affidavits  merely  stating  belief,  or  information  and  belief,  have,  in 
many  cases,  been  held  insufficient  (Hadley  v.  Watson,  143  Mass. 
27;  Taylor  v.  Wright,  121  111.  455;  Inglis  v.  Schreiner,  58  N.  J.  L. 
120;  Hackett  v.  Judge,  etc.,  36  Mich.  334;  Murphy  v.  Purdy,  13 
Minn.  422;  Garner  v.  White,  23  O.  St.  192;  Thompson  v.  Higgin- 
botham,  18  Kan.  42). 

Ex  parte  affidavits  are  evidence  on'y  when  made  so  by  some  statute 


312  A  DIGEST  OF  [Part  III. 

ter,  or  copies  of  or  extracts  from   documents,   must  be 
paid  by  the  party  filing-  them.1 

a  When  a  deposition,  or  the  return  to  a  commission,  or 
an  affidavit,  or  evidence  taken  before  an  examiner,  is 
used  in  any  court  as  evidence  of  the  matter  stated  therein, 
the  party  against  whom  it  is  read  may  object  to  the 
reading  of  anything  therein  contained  on  any  ground  on 
which  he  might  have  objected  to  its  being  stated  by  a 


{People  v.  Walsh,  87  N.  Y.  481  ;  Bookman  v.  Stegman,  105  N.  Y.  621). 
As  to  the  difference  between  an  affidavit  and  a  deposition,  see  Stimp- 
son  v.  Brooks,  3  Blatch.  456.] 

1  [An  attorney  who  draws  an  affidavit  is  liable  for  costs  if  it  contains 
irrelevant  and  scandalous  matter,  which  is  stricken  out  on  motion. 
McVey  v.  Cantrell,  8  Hun,  522  ;  cf.  Pitcher  v.  Clark,  2  Wend.  631.] 

2  T.  E.  s.  491.  Hutchinson  v.  Bernard,  2  Mo.  &  Ro.  1.  [It  is  a  general 
rule  in  this  country  that,  if  opportunity  exists  for  so  doing,  objections 
to  a  deposition  in  respect  to  matters  of  form,  or  on  the  ground  that  it 
was  irregularly  or  improperly  taken,  or  that  fraud  was  practised,  etc., 
should  be  raised  when  the  interrogatories  are  framed,  or  upon  the 
examination  of  the  witness  under  the  commission,  or  upon  a  motion 
to  suppress  the  deposition  ;  but  objections  to  the  competency  of  the 
witness,  or  to  the  relevancy  or  competency  of  any  question  or  answer, 
may  be  made  when  the  deposition  is  read  in  evidence  ( York  Co.  v. 
Central R.  Co.,  3  Wall.  107;  Howard  \ .  Stillwell,  etc.  Co.,  139  U.  S. 
199 ;  N.  Y.  Code  Civ.  Pro.  §§  910,  91 1  ;  Newton  v.  Porter,  69  N.  Y.  133  ; 
Atlantic  Ins.  Co.  v.  Fitzpatrick,  2  Gray,  279;  Leavitt  v.  Baker,  82 
Me.  26;  Pence  v.  Waugh,  135  Ind.  143;  Stowell  v.  Moore,  89  111. 
563;  Horseman  v.  Todhunter,  12  la.  230;  Barnum  v.  Bar/nun,  42 
Md.  251).  Objections  to  questions  as  leading  relate  to  form,  and 
should  be  taken  before  the  trial  (Akers  v.  Demond,  103  Mass.  318; 
Hazlewood  v.  Haninway,  3  T.  &  C.  787  ;  Crowell  v.  Western  Re- 
serve Bk.,  3  O.  St.  406;  Hill  v.  Canfield,  63  Pa.  y,\  Chambers  v. 
Hunt,  22  N.  J.  L.  552). 

Answers  in  the  deposition  whicn  are  not  responsive  may  be  objected 
to  on  the  trial  by  either  party  (Lansing  v.  Coley,  13  Abb.  Pr.  272  ; 
Greenman  v.  O'Connor,  25  Mich.  30;  Kingsbury  v.  Moses,  45  N.  H. 
222).  And  where  a  party  uses  a  deposition  taken  by  his  opponent, 
he  makes  it  his  own,  and  such  opponent  has  the  same  right  of  ob- 
jection to  the  questions  and  answers  as  if  the  deposition  had  been 
taken  by  the  party  offering  it  (Hatch  v.  Brown,  63  Me.  410;    hi  re 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  313 

witness  examined  in  open  court,  provided  that  no  one  is 
entitled  to  object  to  the  reading  of  any  answer  to  any 
question  asked  by  his  own  representative  on  the  execu- 
tion of  a  commission  to  take  evidence. 

Article  126.* 

examination  in  chief,  cross-examination,  and 
re-examination. 

Witnesses  examined  in  open  court  must  be  first  exam- 
ined in  chief,  then  cross-examined,  and  then  re-examined.1 


*  See  Note  XLV.  [Appendix]. 
Smith,  34  Minn.  436 ;   see  Rucker  v.  Reid,  36  Kan.  468  ;   Little  v. 
Edwards,  69  Md.  499);  so  he  may  contradict  the  witness  as  if  the  lat- 
ter were  the  witness  of  the  party  reading  the  deposition  {Bloomington 
v.  Osterle,  139  111.  120). 

Though  a  witness's  deposition  has  been  taken,  yet  if  at  the  time  of 
the  trial  he  is  present  and  is  ready  and  able  to  testify,  his  personal 
testimony  is,  by  the  law  of  many  States,  deemed  preferable,  and  the 
deposition  is  inadmissible  {Neilson  v.  Hartford  St.  R.  Co.,  67  Ct.  466 ; 
Whitfordv.  Clark  Co.,  119  U.  S.  522  ;  Haywardv.  Barron,  38  N.  H. 
366;  contra,  Hedges  v.  Williams,  33  Hun,  546;  Scott  v.  Indianapolis 
Wagon  Works,  48  Ind.  75.] 

1  [The  court  may,  in  its  discretion,  order  witnesses  to  withdraw  from 
the  court-room,  so  that  they  may  not  hear  each  other's  testimony 
{Comm.  v.  Follansbee,  155  Mass.  274  ;  People  v.  Burns,  67  Mich.  537  ; 
Slate  v.  Morgan,  35  W.  Va.  260).  If  any  witness  disobeys  the  order, 
this  may  be  observed  upon  to  the  jury  to  affect  his  credibility,  and  he 
is  punishable  for  contempt ;  but  the  court  cannot  refuse  to  allow  him 
to  be  examined,  unless  his  disobedience  was  by  the  procurement,  con- 
nivance, or  other  fault  of  the  party  calling  him,  in  which  case  it  may 
refuse  or  permit  examination  ;  a  party  cannot,  without  fault  on  his 
own  part,  be  deprived  of  the  testimony  of  the  witness  (Gr.  Ev.  i.  §  432  ; 
Holder  v.  U.  S.,  150  U.  S.  91;  Parker  v.  State,  67  Md.  329;  State  v. 
Thomas,  in  Ind.  515  ;  State  v.  Gesell,  124  Mo.  531;  State  v.  Falk,  46 
Kan.  498 ;  Dickson  v.  State,  39  O.  St.  73  ;  Hubbard  v.  Hubbard,  7  Or. 
42  ;  People  v.  Boscovitch,  20  Cal.  436  ;  Comm.  v.  Brown,  90  Va.  671; 
Rooks  v.  State,  65  Ga.  330 ;  cf.  Pergason  v.  Etcherson,  91  Ga.  785).  In 
like  manner,  expert  witnesses  may  be  required  to  withdraw,  though 
this  is  rarely  done  ( Vance  v.  State,  56  Ark.  402 ;  Leache  v.  State,  22 


3U  A  DIGEST  OF  [Part  III. 

Whenever  any  witness  has  been  examined  in  ehief,  or 
has  been  intentionally  sworn,1  or  has  made  a  promise 
and  declaration  as  hereinbefore  mentioned  for  the  pur- 
pose of  giving  evidence,2  the  opposite  party  has  a  right 


Tex.  App.  279).  But  parties  to  actions,  either  civil  or  criminal,  cannot 
be  excluded,  even  though  they  are  to  testify  as  witnesses  {Mcintosh 
v.  Mcintosh,  79  Mich.  198;  Schneider  v.  Haas,  14  Or.  174;  Bemheim 
v.Dibrell,  66  Miss.  199;  Garman  v.  State,  id.  196;  Richards  v.  State, 
91  Tenn.  723  ;  cf.  French  v.  Sale,  63  Miss.  386);  nor  can  the  guardian 
of  an  infant  party  (Cottrell  v.  Cottrell,  81  Ind.  87);  nor  one  having  a 
pecuniary  interest  in  the  suit  (Simon  Gregory  Co.  v.  McMahan,  61 
Mo.  App.  499).  Another  method  of  excluding  witnesses  is  to  place 
them  under  the  charge  of  an  officer  of  the  court,  to  be  kept  by  him  out 
of  the  court-room  (JLey's  Case,  32  Gratt.  946). 

A  party's  failure  to  call  a  witness  whom  he  might  call  does  not  gen- 
erally raise  a  presumption  that  his  testimony  would  be  unfavorable  to 
such  party,  especially  if  such  witness  is  equally  accessible  to  both  par- 
ties, or  his  testimony  would  be  simply  cumulative  (Scovillv.  Baldwin, 
27  Ct.  316;  Bleecker  v.  Johnston,  69  N.  Y.  309  ;  State  v.  Fitzgerald, 
68  Vt.  125  ;  Coleman  v.  State,  hi  Ind.  563  ;  Cross  v.  Lake  Shore,  etc. 
R.  Co.,  69  Mich.  363  ;  Kerstner  v.  Vorweg,  130  Mo.  196  ;  Bates  v.  Mor- 
ris, 101  Ala.  282).  But  where  the  witness's  testimony  would  be  of  vital 
importance  in  the  case  (as  e.  g.,  if  he  were  the  only  eye-witness  of  the 
facts),  and,  under  the  special  circumstances  of  the  case,  the  adverse 
party  has  no  legal  right  to  call  him,  an  unfavorable  inference  by  the 
jury  is  warranted  (People  v.  Hovey,  92  N.  Y.  554  ;  Comm.  v.  Weber, 
167  Pa.  153  ;  State  v.  Rod/nan,  62  la.  456 ;  The  Fred.  M.  Laurence,  15 
F.  R.  635);  and  the  same  is  true  if  a  party  fails  to  call  a  material  wit- 
ness who  is  within  his  control  and  whom  he  would  naturally  be  ex- 
pected to  call  to  testify  in  his  behalf  (Kirby  v.  Tallmadge,  160  U.  S. 
379;  Comm.  v.  McCabe,  163  Mass.  98;  State  v.  Hogan,  67  Ct.  581; 
Kenyon  v.  Kenyon,  88  Hun,  211;  Rice  v.  Comm.,  102  Pa.  408  ;  People 
v.  Germaine,  101  Mich.  485  ;  cf.  Graves  v.  U.  S.,  150  U.  S.  118  ;  People 
v.  Sharp,  107  N.  Y.  427, 465);  so  if  a  party  fails  to  testify  himself  as  to 
vital  facts  peculiarly  within  his  own  knowledge.  Cole  v.  Lake  Shore, 
etc.  R.  Co.,  Si  Mich.  156.] 

1  See  cases  in  T.  E.  s.  1238. 

2  [See  Art.  123.  As  forms  of  affirmation  different  from  the  English 
are  allowed  in  this  country,  this  clause  will  need  variation  to  adapt  it 
to  the  local  State  law  J 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  315 

to  cross-examine  him;1  but  the  opposite  party  is  not  enti- 
tled to  cross-examine  merely  because  a  witness  has  been 
called  to  produce  a  document  on  a  subpcena  duces  tecum, 
or  in  order  to  be  identified.2  After  the  cross-examination 
is- concluded,  the  party  who  called  the  witness  has  a  right 
to  re-examine  him. 

The  court  may  in  all  cases  permit  a  witness  to  be 
recalled  either  for  further  examination  in  chief  or  for 
further  cross-examination,  and  if  it  does  so,  the  parties 
have  the  right  of  further  cross-examination  and  further 
re-examination  respectively.3 

If  a  witness  dies,  or  becomes  incapable  of  being  further 


1  [In  a  few  States  of  this  country,  a  similar  rule  prevails,  and  a  wit- 
ness called  to  testify  merely  as  to  the  formal  execution  of  a  written 
instrument,  or  as  to  other  preliminary  matter,  etc.,  may  be 'cross- 
examined  as  to  all  matters  material  to  the  issue  {Blackington  v.  John- 
son, 126  Mass.  21;  Beat  v.  Nichols,  2  Gray,  262  ;  Diel  v.  Stegner,  56 
Mo.  App.  535  (in  civil  cases);  Hemmingerv.  Western  Assurance  Co.,q$ 
Mich.  355  ;  Huntsville,  etc.  R.  Co.  v.  Corp-ening,  97  Ala.  681;  Perry  v. 
Mulligan,  58  Ga.  479,  482  ;  King  v.  Atkins,  33  La.  Ann.  1057  (in  civil 
cases);  Kiblerv.  Mclhvain,  16  S.  Car.  550).  But  in  most  States  the 
rule  is  adopted  that  the  cross-examination  must  be  limited  to  mat- 
ters stated  upon  the  direct  examination.  See  next  Article  and  note  1 
on  p.  317;  Gr.  Ev.  i.§§  445-447;  Wh.  Ev.  i.  §  529.] 

2  [See  note  to  15  F.  R.  726;  Ailcinv.  Martin,  11  Pai.  499.  The 
simple  verification  of  a  signature  by  a  witness  does  not  entitle  the 
adverse  party  to  see  the  document  or  to  cross-examine  the  witness 
upon  it,  until  it  is  offered  in  evidence.  Stiles  v.  Allen,  5  Allen,  320; 
Calderon  v.  O 'Donahue,  47  F.  R.  39  ;  Arnold  v.  Chesebrough,  30  F. 

R.  145] 

3[Shepard  v.  Potter,  4  Hill,  202;  Williams  v.  Sargeant,  46  N.  Y. 
481 ;  Continental  Ins.  Co.  v.  Delpeuch,  82  Pa.  225  ;  Comm.  v.  McGorty, 
114  Mass.  299 ;  Faust  v.  U.  S.,  163  U.  S.  452  ;  Brown  v.  State,  72  Md. 
468  ;  Osborne  v.  O' Reilly,  34  N.  J.  Eq.  60;  State  v.  Johnson,  89  la.  t  ; 
Re  a  v.  Wood,  105  CaL.314  ;  Cummings  v.  Taylor,  24  Minn.  429.  It  is 
a  general  rule  that  the  order  of  proof  is  in  the  discretion  of  the  trial 
court.  Plainer  v.  Plainer,  78  N.  Y.  90  ;  Hess  v.  Wilcox,  58  la.  380  ; 
Thiede  v.  Utah,  159  U.  S.  510;  State  v.  Murphy,  118  Mo.  I.] 


316  A  DIGEST  OF  [Part  III 

examined  at  any  stage  of  his  examination,  the  evidence 
given  before  he  became  incapable  is  good.1 

If  in  the  course  of  a  trial  a  witness  who  was  supposed 
to  be  competent  appears  to  be  incompetent,  his  evidence 
may  be  withdrawn  from  .the  jury,  and  the  case  may  be 
left  to  their  decision  independently  of  it.2 


1  R.  v.  Doolin,  i  Jebb,  C.  C.  123.  The  judges  compared  the  case  to 
that  of  a  dying  declaration,  which  is  admitted  though  there  can  be  no 
cross-examination.  [By  the  weight  of  authority  in  this  country,  if  the 
ieath  of  a  witness  in  a  common-law  action  precludes  his  cross- 
examination,  his  testimony  given  on  the  direct  examination  is  not  ad- 
mitted {People  v.  Cole,  43  N.  Y.  508  ;  S.  C.  2  Lans.  370  ;  Pr ingle  v. 
Pringle,  59  Pa.  281  ;  Sperry  v.  Moore's  Estate,  42  Mich.  353 ;  see 
Curtice  v.  West,  50  Hun,  47;  cf.  People  v.  Severance,  67  Hun,  182; 
Lewis  v.  Eagle  Ins.  Co.,  10  Gray,  508),  unless  the  party  having  the  right 
to  cross-examine  him  had  the  opportunity  of  doing  so  before  death 
occurred  and  did  not  choose  to  exercise  it  {Bradley  v.  Minck,  91 
N.  Y.  293;  Celluloid  Mfg.  Co.  v.  Arlington  Mfg.  Co.,  47  F.  R.  4). 
Where,  however,  the  witness's  testimony  is  substantially  complete, 
though  the  examination  was  not  wholly  finished,  it  will  be  received 
{Fuller  v.  Rice,  4  Gray,  343).  Where  the  opportunity  to  cross-examine 
is  lost  by  the  misconduct  of  the  witness,  or  through  the  fault  of  the 
party  introducing  him,  or  other  like  cause,  his  evidence  in  chief  is 
rejected  {Hewlett  v.  Wood,  67  N.  Y.  394 ;  Matthews  v.  Matthews,  53 
Hun,  244  ;    The  facob  Brandow,  33  F.  R.  160). 

The  English  rule,  as  stated  by  Mr.  Stephen,  has  been  said  by  some 
American  decisions  to  be  applicable  in  equity  cases  (Gr.  Ev.  i.  §  554  ; 
Gass  v.  Stinson,  3  Sumn.  98  ;  Scott  v.  McCann,  76  Md.  47);  and  there 
is  some  judicial  expression  in  favor  of  applying  it  also  to  common-law 
actions  {Forrest  v.  Kissam,']  Hill,  463  ;  see  Sturm  v.  Atlantic  Ins.  Co., 
63  X.  Y.  jj,  87 ;  the  N.  Y.  cases  contain  contradictory  expressions). 

As  to  the  effect  of  cross-examination  being  lost  by  the  death  of  a 
party,  see  Hay's  Appeal,  91  Pa.  265  ;  Comins  v.  Hetfeld,  12  Hun,  375, 
80  N.  Y.  261.] 

2  R.  v.  Whitehead,  L.  R.  1  C.  C.  R.  33.  [Wh.  Ev.  i.  §  393  \  Gr.  Ev.  i. 
§§  421,  422  ;  Lester  v.  McDowell,  18  Pa.  91  ;  Stale  v.  Damery,  48  Me. 
327;  Shurtleffv.Willard,  19  Pick.  202;  Seeley  v.  Engcll,  13  N.  Y. 
542  ;  Loveridge  v.  Hill,  96  N.  Y.  222.  But  if  the  incompetency  of  the 
witness  is  known  when  he  is  called  and  sworn,  objection  should  be 
made  then,  or  it  will  ordinarily  be  deemed  to  be  waived  {Hen son  v. 
U.  S.,  1  \6  I ".  S.  325  ;    Monfort  v.  Rowland,  38  X.  J.  Eq.  181  ;    Quin  v. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  317 


.Article  127. 

to  what  matters  cross-examination  and  re-examination 
must  be  directed. 

The  examination  and  cross-examination  must  relate 
to  facts  in  issue  or  relevant  or  deemed  to  be  relevant 
thereto,  but  the  cross-examination  need  not  be  confined 
to  the  facts  to  which  the  witness  testified  on  his  exami- 
nation in  chief.1 


Lloyd,  41  N.  Y.  349;  Donelson  v.  Taylor,  8  Pick.  390;  Watson  v. 
Riskamire,  45  la.  231;  Atchison,  etc.  R.  Co.  v.  Stanford,  12  Kan.  354 ; 
Hickman  v.  Green,  123  Mo.  165;  Dickinson  v.  Buskie,  59  Wis.  136; 
Smith  v.  Profitt,  82  Va.  832). 

So  incompetent  or  improper  evidence  may  be  stricken  out  or  with- 
drawn from  the  jury  after  it  has  been  admitted.  Stokes  v \  Johnson,  57 
N.  Y.  673  ;  Wilson  v.  Kings  Co.,  1 14  N.  Y.  487  ;  Beandette  v.  Gagne, 
87  Me.  534;  Spec/it  v.  Howard,  16  Wall.  564;  Selkirk  v.  Cobb,  13 
Gray,  313.] 

1  [See  p.  315,  note  1,  ante.  But  it  is  the  rule  in  most  of  the  States  of 
this  country  that  the  cross-examination  must  be  limited  to  the  matters 
stated  in  the  examination  in  chief  ;  if  the  party  cross-examining  in- 
quires as  to  new  matter,  he  makes  the  witness  so  far  his  own 
{Houghton  x.  Jones,  1  Wall.  702  ;  People  v.  Oyer  &*  Term.  Court,  83 
N.  Y.  436;  Carey  v.  Hart,  63  Vt.  424;  State  v.  Smith,  49  Ct.  376; 
Donnelly  v.  State,  26  N.  J.  L.  463  &  601  ;  Sullivan  v.  Railroad  Co., 
175  Pa.  361  ;  Hunsinger  v.  Hofer,  110  Ind.  390  ;  Rigdou  v.  Conlcy,  141 
111.  565  ;  Martin  v.  Capital  Ins.  Co.,  85  la.  643  ;  Richards  v.  State,  82 
Wis.  172;  Hurlbut  v.  Hull,  39  Neb.  892;  People  v.  Van  Eiuan,  ill 
Cal.  144  ;  Miller  x.  Miller  s  Admr.,  92  Va.  510;  Williams  v.  State,  32 
Fla.  315  ;  Austin  v.  State,  14  Ark.  555  ;  State  v.  Wright,  40  La.  Ann. 
589  (in  criminal  cases) ;  as  to  the  range  of  inquiry  which  this  rule 
permits,  see  Rohan  v.Avoca  Borough,  154  Pa.  404;  Boyle  v.  State, 
105  Ind.  469;  Erie,  etc.  Dispatch  v.  Stanley,  123  111.  158;  Glenn  v. 
Gleason,  61  la.  28  ;  Birdseye  v.  Butterfield,  34  Wis.  52).  The  same 
rule  applies  to  parties  to  actions,  when  they  become  witnesses  {Boyd 
v.  Conshohocken  Mills,  149  Pa.  363;  Hansen  v.  Miller,  145  111.  538; 
but  see  Scliultz  v.  Chicago,  etc.  R.  Co.,  67  Wis.  616).  Some  States 
have  special  statutes  applying  the  rule  to  defendants  as  witnesses  in 
criminal  cases  {State  v.  Avery,  1  1 3  Mo.  475 ;  People  v.  Wong  Ah  Leong, 
99  Cal.  440;  cf.  Slate  v.  Saunders,  14  Or.  300;  see  p.  298,  note,  ante).     It 


318  A  DIGEST  OF  [Part  III. 

The  re-cxamination  must  be  directed  to  the  explanation 
of  matters  referred  to  in  cross-examination;  and  if  new 
matter  is,  by  permission  of  the  court,  introduced  in 
re-examination,  the  adverse  party  may  further  cross- 
examine  upon  that  matter.1 


the  bounds  authorized  by  law  for  cross-examination  are  not  exceeded, 
the  witness  is  deemed  to  be  continually  that  of  the  party  introducing 
him,  and  the  testimony  which  he  gives,  both  upon  the  direct  and  the 
cross-examination,  is  treated  as  evidence  given  in  behalf  of  such  party 
{Turnbull  v.  Richardson,  69  Mich.  400  ;  Davis  v.  California  Powder 
Works,  84  Cal.  617 ;  and  see  cases  supra). 

This  rule  does  not  limit  cross-examination  of  the  kind  described  in 
Art.  129.  The  rule  there  stated  is  commonly  accepted  doctrine.  See 
Rangley  v.  Wadsworth,  99  N.  Y.  61.] 

1  [Gr.  Ev.  i.  §  467  ;  Gilbert  v.  Sage,  5  Lans.  287,  57  N.  Y.  639 ;  U.  S. 
v.  18  Barrels,  etc.,  8  Blatch.  475  ;  Somerville,  etc.  R.  Co.  v.  Doughty, 
22  N.  J.  L.  495  ;  Farrellv.  Boston,  161  Mass.  106  ;  McElheny  v.  Pitts- 
burgh, etc.  R.  Co.,  147  Pa.  1  ;  Slonerv.  Devilbiss,  70  Md.  144  ;  Nor- 
wegian Plow  Co.  v.  Hanthom,  71  Wis.  529.  The  general  rule  that 
the  re-examination  must  relate  to  matters  developed  on  the  cross- 
examination  is  usually  adhered  to  in  practice,  but  still  it  is  generally 
held  that  the  trial  court  may,  in  its  discretion,  allow  the  re-examina- 
tion to  extend  to  other  matters  {Kendall  v.  Weaver,  1  Allen,  277 ; 
Clark  v.  Vorce,  15  Wend.  193;  Springfield  v.  Dalby,  139  111.  34; 
Blake  v.  Stump,  73  Md.  160  ;  Schaser  v.  State,  36  Wis.  429  ;  see  People 
v.  Buchana/i,  145  N.  Y.  1;  Hemmcns  v.  Bentley,  32  Mich.  89).  If  part 
of  a  conversation  or  transaction  be  developed  on  the  direct  or  cross- 
examination,  the  other  party  may,  on  the  cross  or  re-direct,  bring  out 
such  other  parts  of  the  same  conversation  or  transaction  as  explain  or 
qualify  the  portion  already  testified  to,  but  he  may  not  give  evidence 
of  distinct  and  independent  statements  or  matters  {People  v.  Beach, 
87  N.  Y.  508 ;  Nay  v.  Curley,  113  N.  Y.  575  ;  Ballew  v.  U.  S.,  160  U.  S. 
187,  193  ;  Dole  v.  Wooldredge,  142  Mass.  161  ;  Scott  v.  People,  141  111. 
195  ;  Walsh  v.  Porterfield,  87  Pa.  376 ;  Oakland  Ice  Co.  v.  Maxcy,  74 
Me.  294). 

In  some  States  it  is  held  that  if  one  party,  without  objection,  in- 
troduces irrelevant  evidence  which  is  prejudicial  to  the  other  party, 
the  latter  may  give  evidence  (even  if  this  be  also  irrelevant)  which 
goes  directly  to  contradict  it  (State  v.  Withom,  72  Me.  531  ;  Mowry  v. 
Smith,  9  Allen,  67  ;  Furbush  v.  Goodwin,  25  N.  H.  425  ;  Perry  v. 
Moore,  66  Vt.  519  ;  Budd  v.  Meriden  A'lec.  R.  Co.,  69  Ct.  272  ;  Mobile, 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  319 


Article  128. 
leading  questions. 

Questions  suggesting-  the  answer  which  the  person 
putting  the  question  wishes  or  expects  to  receive,  or 
suggesting  disputed  facts  as  to  which  the  witness  is  to 
testify,  must  not,  if  objected  to  by  the  adverse  party, 
be  asked  in  examination  in  chief,  or  in  re-examination, 
except  with  the  permission  of  the  court,  but  such  ques- 
tions may  be  asked  in  cross-examination.1 


etc.  R.  Co.  v.  Ladd,  92  Ala.  287  ;  cf.  Perkins  v.Hayward,  124  Ind.  449 ; 
Milbank  v.  Jones,  141  N.  Y.  340 ;  Gorsuch  v.  Rutledge,  70  Md.  272). 

The  party  who  opens  a  case  must,  in  general,  introduce  all  the  evi- 
dence to  prove  his  side  of  the  case  before  he  closes  ;  then  after  his 
adversary's  evidence  is  given,  he  may  give  proof  in  reply  or  rebuttal. 
But  it  is  in  the  discretion  of  the  court  to  permit  evidence  to  be  given 
in  reply  which  should  properly  have  been  given  in  chief.  Marshall 
v.  Davies,  78  N.  Y.  414  ;  Young  v.  Edwards,  72  Pa.  257  ;  Watkins  v. 
Rist,  68  Vt.  486;  McGowan  v.  Chicago,  etc.  R.  Co.,  91  Wis.  147; 
Huntsman  v.  Nichols,  116  Mass.  521;  Belden  v.  Allen,  61  Ct.  173; 
Goldsby  v.  U.  S.,  160  U.  S.  70 ;  City  of  Sandwich  v.  Dolan,  141  111.  430 ; 
People  v.  Cox,  70  Mich.  247  ;  Lurssen  v.  Lloyd,  76  Md.  360;  Tierney 
v.  Spiva,  76  Mo.  279 ;  Graham  v.  Davis,  4  O.  St.  362.] 

1  [Gr.  Ev.  i.  §§  434,  435,  445  ;  Wh.  Ev.  i.  §§  499-504.  But  such  ques- 
tions may  be  allowed  to  be  put  on  the  direct  examination  when  the 
witness  appears  hostile  to  the  party  introducing  him  {McBride  v. 
Wallace,  62  Mich.  451;  Bradshaw  v.  Combs,  102  111.  428;  Whitman 
v.Morey,63  N.  H.  448;  State  v.  Benner,  64  Me.  267;  St.  Clair  v.  U.  S., 
154  U.  S.  150);  or  when  the  examination  relates  to  items,  dates,  or 
numerous  details,  where  -the  memory  ordinarily  needs  suggestion 
{Hucki7is  v.  People's  Ins.  Co.,  31  N.  H.  238;  Graves  v.  Merchants'  Ins. 
Co.,  82  la.  637) ;  or  when  it  is  necessary  to  direct  the  witness's  atten- 
tion plainly  to  the  .subject-matter  of  his  testimony,  etc.  {People  v. 
Mather,  4  Wend.  229 ;  Union  Pac.  R.  Co.  v.  O'Brien,  49  F.  R.  538 ; 
Farmers'  Ins.  Co.  v.  Bair,  87  Pa.  124).  It  is  discretionary  with  the 
trial  court  whether  such  questions  shall  be  permitted  and  judgment 
will  not  be  reversed  for  permitting  them,  unless  there  be  a  plain  abuse 
of  discretion  (  Vrooman  v.  Griffiths,  1  Keyes,  53  ;  Northern  Pac.  R.  Co. 
v.  Urlin,  158  U.  S.  271;  Sadder  v.  Keefer,  91  Mich.  611;  Goudy  v 


32o  A  DIGEST  OF  [Part  111. 

Article  129.* 
questions  lawful  in  cross-examination. 

When  a  witness  is  cross-examined,  he  may,  in  addition 
to  the  questions  hereinbefore  referred  to,  be  asked  any 
questions  which  tend — 

(1)  To  test  his  accuracy,  veracity,  or  credibility  ;'.  or 

(2)  To  shake  his  credit,  by  injuring  his  character. 

Witnesses  have  been  compelled  to  answer  such  ques- 
tions, though  the  matter  suggested  was  irrelevant  to  the 
matter  in  issue,  and  though  the  answer  was  disgraceful 
to  the  witness;  but  it  is  submitted  that  the  court  has  the 
right  to  exercise  a  discretion  in  such  cases,  and  to  refuse 
to  compel  such  questions  to  be  answered  when  the  truth 
of  the  matter  suggested  would  not  in  the  opinion  of  the 
court  affect  the  credibility  of  the  witness  as  to  the  matter 
to  which  he  is  required  to  testify.2 


*  See  Note  XL VI.  [Appendix]. 
Werbe,  117  Ind.  154  ;  Crean  v.  Hourigan,  158  111.  301 ;  York  v.  Pease, 
2  Gray,  282).  Leading  questions  are  legitimate  on  cross-examination 
{U.  S.v.  Dickinson,  2  McL.  325  ;  Helfrich  v.  Stein,  17  Pa.  143).  A 
leading  question  is  one  which  suggests  to  the  witness,  and  leads  him 
to  make,  the  answer  desired  {People  v.  Mather,  supra;  Coogler  v. 
Rhodes,  38  Fla.  240 ;  Harvey  v.  Osborn,  55  Ind.  535  ;  People  v.  Parish, 
4  Den.  153). 

In  those  States  where  a  party  by  cross-examining  a  witness  as  to 
new  matter  makes  the  witness  so  far  his  own  (see  p.  317,  note  1,  ante), 
he  has  no  legal  right  to  ask  leading  questions  as  to  such  new  matter. 
People  v.  Oyer  &*  Term.  Court,  83  N.  Y.  436  ;  Harrison  v.  Rowan,  3 
Wash.  C.  C.  580.] 

1  [State  v.  Duffy,  57  Ct.  525  ;  Tudor  Iron  Works  v.  Weber,  129  111. 
535;  Wallace  x.  Wallace,  62  la.  651;  McFadden  v.  Santa  Anna,  etc. 
R.  Co.,  87  Cal.  464  ;   Unlade  v.  Chicago,  etc.  R.  Co.,  67  Wis.  108.] 

"{Mailer  v.  St.  Louis  Hospital  Ass'n,  5  Mo.  App.  390,  73  Mo.  242  ; 
Carroll  v.  Stale,  32  Tex.  App.  431.  It  is  a  well-settled  doctrine  in  this 
country  that  a  witness  may  be  cross-examined  as  to  specific  facts  tend- 
ing to  disgrace  or  degrade  him,  for  the  purpose  of  impairing  his  credi- 
bility, though  these  facts  are  purely  irrelevant  and  collateral  to  the 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  321 

In  the  case  provided  for  in  Article  120,  a  witness  cannot 
be  compelled  to  answer  such  a  question. 

Illustrations. 

(a)  The  question  was,  whether  A  committed  perjury  in  swearing  that 

he  was  R.  T.   B  deposed  that  he  made  tattoo-marks  on  the  arm  of  R.  T., 

which  at  the  time  of  the  trial  were  not  and  never  had  been  on  the 

arm  of  A.     B  was  asked  and  was  compelled  to  answer  the  question 


main  issue ;  also  that  the  extent  to  which  such  questions  may  be 
allowed  is  to  be  determined  by  the  discretion  of  the  trial  court,  which 
commits  no  error  unless  it  abuses  its  discretion  ;  that  the  witness  may 
claim  the  privilege  of  declining  to  answer,  when  the  court  allows  such 
questions,  but  that  when  answers  are  called  for  which  are  material  to 
the  issue,  there  is  no  privilege  (Great  Western  Turnpike  Co.  v.  Loomis, 
32  N.  Y.  127  ;  People  v.  Oyer  &*  Terminer  Ct.,  83  N.  Y.  436  ;  Huoncker 
v.  Merkey,  102  Pa.  462;  Gutterson  v.  Morse,  58  N.  H.  165  ;  Storm  v. 
U.  S.,  94  U.  S.  76  ;  Smith  v.  State,  64  Md.  25  ;  State  v.  Hack,  118  Mo. 

92  ;  Helwig  v.  Lascowski,  82  Mich.  619  ;  Fries  v.  Brugler,  12  N.J.  L. 
79 ;  Shelby  v.  Clagett,  46  O.  St.  549 ;  State  v.  Pfefferle,  36  Kan.  90 ; 
State  v.  Row,  81  la.  138  ;  South  Bendy.  Hardy,  98  Ind.  577,  fully  dis- 
cussing the  subject ;  but  in  California  and  Massachusetts  irrelevant 
questions  to  affect  credibility  are  not  permitted,  Barkley  v.  Copeland, 
86  Cal.  483  ;  Comm.  v.  Schaffner,  146  Mass.  512).  The  exercise  of  dis- 
cretion is  also  limited  by  the  rule  that  the  examination  as  to  collateral 
facts  should  be  such  in  its  nature  as  to  affect  the  witness's  credibil- 
ity (Id.;  Langley  v.  Wadsworth,  99  N.  Y.  61;  People  v.  Williams,  93 
Mich.  625  ;  Hayward  v.  People,  96  111.  492  ;  State  v.  Gleim,  17  Mont. 
17).  In  New  York  it  is  held  that  questions  as  to  his  having  been  ac- 
cused, indicted,  arrested,  etc.,  for  wrongful  acts  are,  when  properly 
excepted  to,  improper,  since  these  facts  are  consistent  with  innocence, 
and,  therefore,  do  not  in  reality  affect  credibility  (People  v.  Crapo,  76 
N.  Y.  288;  Van  Bokkelen  v.  Berdelle,  130  N.  Y.  141;  so  in  Arkansas, 
Bates  v.  State,  60  Ark.  450  ;  cf.  Kitteringham  v.  Dance,  58  la.  566).  In 
a  number  of  the  States,  however,  such  questions  are  held  permissible, 
subject  to  the  discretion  of  the  court  (see  Illustration  (d)\  People  v. 
Foote,  93  Mich.  38  ;  State  v.  Taylor,  1 18  Mo.  153  ;   Burdette  v.  Comm., 

93  Ky.  76;  Hillv.  State,  91  Tenn.  521;  State  v.  Murphy,  45  La.  Ann. 
958 ;  cf.  State  v.  Bacon,  13  Or.  143  ;  Hill  v.  State,  \2  Neb.  503  ;  Sexton 
v.  State,  33  Tex.  App.  416).  These  general  rules  apply  also  to  parties 
to  actions  (including  defendants  in  criminal  cases),  when  they  become 
witnesses  (Sullivan  v.  O'Leary,  146  Mass.  322  ;  People  v.  Webster,  139 


322  A  DIGEST  OF  [Part  III. 

whether,  many  years  after  the  alleged  tattooing,  and  many  years  be- 
fore the  occasion  on  which  he  was  examined,  he  committed  adultery 
with  the  wife  of  one  of  his  friends.' 

(/')  [On  the  trial  of  A  for  stealing  a  horse,  a  witness  B  was  asked  on 
cross-examination  whether  he  did  not  live  with  a  woman  who  kept 
a  house  of  ill-fame.  The  court  against  objection  admitted  the 
question,  but  informed  the  witness  that  he  could  answer  or  not  as 
he  chose.] 2 

(c)  [Upon  the  trial  of  A  for  an  assault,  he  became  himself  a  witness 
and  was  asked  on  cross-examination  whether  he  had  not  committed 
an  assault  upon  another  person  at  another  time.  This  was  objected 
to,  but  was  held  on  appeal,  to  have  been  properly  allowed  by  the  trial 
court  within  its  discretion.] 8 

(d)  [Upon  the  trial  of  A  for  murder,  he  became  himself  a  witness 
and  was  asked  on  cross-examination  whether  he  had  not  once  been 
arrested  for  an  assault  with  intent  to  kill.  The  court  against  objection 
admitted  the  question,  and  the  witness  then  answered  without  claim- 
ing his  privilege.  This  was  held  a  proper  exercise  of  the  court's  dis- 
cretion.] 4 

(<?)  [A  witness  was  asked  on  cross-examination, "  Have  you  ever  been 


N.  Y.  73  ;  People  v.  Noelke,  94  N.  Y.  137  ;  Leland  v.  K7iauth,  47  Mich. 
508  ;  State  v.  Wells,  54  Kan.  161 ;  see  cases  supra  and  the  Illustrations  ; 
also  p.  298,  note,  ante). 

So  a  witness  may  be  cross-examined  as  to  facts  showing  his  favor 
towards  the  party  calling  him,  his  own  interest  in  the  case,  or  his  bias, 
malice,  ill-will,  prejudice,  etc.,  against  the  opposite  party  ;  here,  also, 
the  judge's  discretion  governs  the  range  of  examination  (Illustra- 
tions (g),  (In,  (/);  Wallace  v.  Taunton  St.  Ry.,  119  Mass.  91  ;  Garn- 
sey  v.  Rhodes,  138  N.  Y.  461  ;  Fitzpatrick  v.  Riley,  163  Pa.  65  ;  County 
Commrs.w.  Minderlein,  67  Md.  567  ;  Hinchcliffc  x .  Koontz,  121  Ind. 
422  ;  Electric  Light  Co.  v.  Grant,  90  Mich.  469;  People  v.  Tho?nsoti, 
92  Cal.  506;  see  Article  130).  So  when  a.  party  to  an  action  testifies, 
he  may  be  cross-examined  in  like  manner.  Lamb  v.  Lamb,  146  N.  Y. 
317;  Mears  v.  Cornwall,  73  Mich.  78.] 

1  A',  v.  Or/on.     See  summing-up  of  Cockburn,  C.  J.,  vol.  ii.  p.  719,  etc. 

■[State  x.  Ward,  49  Ct.  429.  The  witness,  when  he  avails  himself 
of  his  privilege  not  to  answer,  is  not  obliged  to  explain  why  he  declines 
to  answer.     Mcrluzzi  v.  Gleeson,  59  Md.  214.] 

^[People  v.  Irving,  95  N.  Y.  541;  see  People  v.  McCormick,  135 
N.  V.663.] 

4  [Hanojpv.  State,  37  O.  St.  178  ;  see  p.  321,  note,  supra.} 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  323 

in  jail,  and,  if  so,  what  were  you  sent  there  for  ? "  Counsel  objected  to 
the  question,  but  the  trial  court  allowed  it;  and  this  ruling  was  held,  on 
appeal,  to  have  been  proper.] ' 

(_/")  [A  witness  was  asked  on  cross-examination  in  a  civil  action  as 
to  his  belief  in  spiritualism.  It  was  a  proper  exercise  of  discretion 
not  to  allow  the  question.]  - 

(g)  [Upon  a  proceeding  to  admit  a  will  to  probate,  a  subscribing 
witness  may  be  asked  on  cross-examination,  in  order  to  show  his  bias 
or  interest,  whether  a  reward  has  not  been  promised  to  him  for  his 
testimony  by  one  of  the  beneficiaries  under  the  will.] 3 

(h)  [On  a  trial  for  murder,  it  was  held  proper  for  the  prosecution  to 
cross-examine  one  of  the  principal  witnesses  for  the  defendant  in  such 
a  way  as  to  show  that  such  witness  was  devotedly  attached  to  the  de- 
fendant and  was,  at  the  time  of  the  homicide,  practically  one  of  his 
household,  and  that  their  relations  were  intimate  and  confidential.] 4 

(/)  [A  brought  action  against  a  horse-car  company  to  recover  dam- 
ages for  an  alleged  injury  caused  by  being  wrongfully  thrown  off  a  car 
platform  by  the  conductor.  B,  a  former  car-driver  of  the  company,  who 
had  been  discharged,  testified  in  A's  favor  that  A  was  thrown  off  the 
car  by  the  conductor.  It  was  held  that  the  defendant  might  so  cross- 
examine  B  as  to  show  his  hostility  to  the  defendant  by  bringing  out  the 
fact  that  he  had  tried  to  get  other  employees  of  the  company  to  make 
false  statements  in  order  to  fasten  liability  upon  the  company.]5 


^ 


Article  129  a. 
judge's  discretion  as  to  cross-examination  to  credit. 

The  judge  may  in  all  cases  disallow  any  questions  put 
in  cross-examination  of  any  party  or  other  witness  which 


1  [McLaughlin  v.  Mencke,  80  Md.  83 ;  see,  to  the  same  effect,  State 
v.  Pratt,  121  Mo.  566;  State  v.  Alexis,  45  La.  Ann.  973;  Real  v. 
People,  42  N.  Y.  270.  In  these  cases  it  is  held  not  necessary  to  prove 
his  conviction  for  the  offence  for  which  he  was  confined,  by  the  record 
of  conviction.  Id.;  State  v.  Martin,  124  Mo.  514;  contra,  Comm.  v. 
Sullivan,  161  Mass.  59;  see  page  325,  note  i,post.] 

2  [Free  v.  Buckingham,  59  N.  H.  219.] 

z  [Matter  of  Will  of  Snelling,  136  N.  Y.  515.] 

4  [People  v.  Webster,  139  N.  Y.  73.] 

5  [Schultz  v.  Third  Ave.  R.  Co.,  89  N.  Y.  242.] 


334  A  DIGEST  OF  [Part  III. 

may  appear  to  him  (/.  e.,  the  judge)  to  be  vexatious  and 
not  relevant  to  any  m'attcr  proper  to  be  inquired  into  in 
the  eause  or  matter.1 


Article  130. 

exclusion  of  evidence  to  contradict  answers  to 
questions  testing  veracity. 

When  a  witness  under  cross-examination  has  been 
asked  and  has  answered  any  question  which  is  relevant 
to  the  inquiry  only  in  so  far  as  it  tends  to  shake  his  credit 
by  injuring  his  character,  no  evidence  can  be  given  to 
contradict  him,2  except  in  the  following  cases:— 

(1 )  If  a  witness  is  asked  whether  he  has  been  previously 
convicted  of  any  felony  or  misdemeanor,  and  denies  or 


1  Rules  of  Supreme  Court,  Order  xxxvi.,  Rule  38.  I  leave  Article  129  as 
it  originally  stood,  because  this  Order  is,  after  all,  only  an  exception  to 
the  rule.  "  Him  "  must  refer  to  the  judge,  as  it  would  otherwise  refer  to 
the  "  party  or  other  witness,"  which  would  be  absurd  [See  p.  320,  note  2, 
ante  ;  La  Bean  v.  People,  34  N.  Y.  223;  Langley  v.  Wadsworth,  99  N.  Y. 
61  ;  Goins  v.  Moberfy,  127  .Mo.  1 16.  Even  if  a  wide  latitude  be  allow- 
able in  cross-examination,  still  the  witness  is  entitled  to  be  protected 
by  the  court  from  unnecessary  insult  and  abuse  by  counsel.  Toledo, 
etc.  R.  Co  v.  Williams,  -jj  111.  354  ;  People  v.  Ihtrrant,  1 16  Cal.  179.] 

v  A.  G.  v.  Hitchcock,  1  Ex.  91,  99-105.  See,  too,  Palmer  v.  Trower, 
8  Ex.  247.  [Gr.  Ev.  i.  §  449  ;  People  v.  Ware,  29  Hun,  473,  92  N.  Y.653  ; 
People  v.  Knapp,  42  Mich.  267;  Elliott  v.  Boyles,  31  Pa.  65.  It  is 
a  general  rule  as  to  all  collateral  and  irrelevant  inquiries,  whether 
relating  to  character  or  not,  that  the  answers  given  cannot  be  contra- 
dicted ;  the  cross-examining  counsel  is  bound  by  the  answers  given  ; 
the  reason  of  the  rule  is  that  time  may  not  be  taken  up  with  imma- 
terial issues.  People  v.  Murphy,  135  N.  Y.  450  ;  Pullen  v.  Pullen,  43 
X.  J.  Eq.  136;  Robbins  v.  Spencer,  121  Ind.  594  >  Alexander  v.  Kaiser, 
149  Mass.  321 ;  People  v.  Hillhouse,  80  Mich.  580  ;  Swanson  v.  French, 
92  la.  195  ;  Buckley  v.  Silverberg,  113  Cal.  673  ;  Hester  v.  Conim.,  85 
Pa.  139;  Sloan  v.  Edwards,  61  Aid.  89;  Moore  v.  People,  108  111.  484; 
State  v.  Benner,  64  Me.  267  ;  see  Illustrations  (a)  and  (b).] 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  325 

does  not  admit  it,  or  refuses  to  answer,  evidence  may  be 
given  of  his  previous  conviction  thereof.1 

(2)  If  a  witness  is  asked  any  question  tending  to  show 
that  he  is  not  impartial,  and  answers  it  by  denying  the 
facts  suggested,  he  may  be  contradicted.2 


1  28  &  29  Vict.  c.  18,  s.  6.  [At  common  law,  conviction  for  crime 
must  be  proved  by  the  record  thereof,  or  by  a  duly  authenticated  copy, 
(these  being  the  best  evidence),  and  not  by  cross-examination  (Gr.  Ev. 
i.  §§  375,  457  ;  Newcomb  v.  Griswold,  24  N.  Y.  298).  And  now  that,  as 
has  been  seen  (see  p.  273,  note,  ante),  it  is  the  rule  in  this  country 
in  most  States  that  conviction  for  crime  no  longer  disqualifies  a  wit- 
ness but  may  be  proved  to  affect  his  credibility,  proof  of  conviction 
must  still,  in  some  of  these  States,  be  made  by  the  record  or  a  copy 
thereof  (Mass.  Pub.  St.  c.  169,  s.  19;  Comm.  v.  Gorham,  99  Mass.  420; 
Pub.  St.  N.  H.  c.  224,  s.  26  (ed.  1891);  Simons  v.  People,  150  111.  66 
(criminal  cases);  State  v.  Brent,  100  Mo.  531 ;  Boyd  v.  State,  94  Tenn. 
505  ;  Murphy  v.  State,  108  Ala.  10  ;  cf.  People  v.  Schenick,  65  Cal.  625); 
in  most  of  these  States,  however,  either  the  record  (or  a  copy)  may  be 
used,  or  the  witness  may  be  cross-examined  as  to  his  conviction  (111. 
Rev.  St.  c.  51,  s.  1  (civil  cases);  Neb.  Code  Civ.  Pro.  §  338  ;  State  v. 
Elwood,  17  R.  I.  763  ;  Spiegel  v.  Hays,  1 18  N.  Y.  660  ;  Stale  v.  O'Brien, 
81  la.  93  ;  State  v.  Saner,  42  Minn.  258  ;  State  v/Probasco,  46  Kan.  310  ; 
State  v.  Bacon,  13  Or.  143  ;  People  v.  Crowley,  100  Cal.  478  ;  Burdette  v. 
Cowm.,g5  Ky.  76;  Driscoll  \.  People,  47  Mich.  413);  and  in  some  of 
these  latter  States,  if  he  denies  that  he  was  convicted,  his  answer  may 
be  contradicted  (N.  Y.  Code  Civ.Pr.  §  832  ;  N.  J.  Rev.  p.  378,  §  1,  p.  379 
§  9;  Wis.  Rev.  St.  s.  4073  ;  St.  of  Minn.  s.  6841  (ed.  1894) ;  Helwig  v. 
Lascowski,  82  Mich.  619).  These  general  rules  apply  to  parties  to 
actions  (including  defendants  in  criminal  cases),  when  they  become 
witnesses.  People  v.  Noelke,  94  N.  Y.  137  ;  Bartholomew  v.  People,  104 
111.  601;  State  v.  Pfefferle,  36  Kan.  90;  State  v.  Minor,  117  Mo.  302  ; 
State  v.  McGuire,  15  R.  I.  23.;  and  cases  supra.} 

2  A.  G.  v.  Hitchcock,  1  Ex.  91,  pp.  100,  105.  [It  is  a  well-settled  rule 
that  if  a  witness  be  cross-examined  for  the  purpose  of  showing  his 
interest  in  the  case,  or  his  bias,  favor,  hostility,  prejudice,  etc.,  towards 
either  party  (see  p.  322,  note,  ante),  and  answers  by  a  denial,  he  may 
be  contradicted  (Illustration  (c);  Gr.  Ev.  i.  §450;  Davis  v.  Roby,6\  Me. 
427  ;  Folsom  v.  Brawn,  25  N.  H.  1 14  ;  McGuire  v.  McDonald,  99  Mass. 
49  ;  Schultz  v.  Third  A  v.  R.  Co.,  89  N.  Y.  242  ;  Kent  v.  State,  42  O.  St. 
426;  Staser  v.  Hogan,  120  Ind.  207;  Phcnix  v.  Castncr,  108  111.  207; 
Tolbert  v.  Burke,  89  Mich.  132  ;  Schuster  v.  State,  80  Wis.  107  ;  People 


326  A  DIGEST  OF  [Part  III. 

Illustrations. 

(a)  [On  the  trial  of  A  for  murder,  a  female  witness  B  is  asked  on 
cross-examination  whether  she  did  not  take  things  not  belonging  to 
her  when  she  left  a  place  where  she  had  been  at  service.  She  answers 
by  a  denial.  This  being  a  collateral  inquiry,  it  cannot  be  shown  by 
another  witness  that  her  answer  is  untrue.] ' 

(/;)  [The  question  is,  whether  two  persons  were  jointly  interested  in 
buying  and  selling  cattle.  One  of  them  becomes  a  witness,  and  is 
questioned,  on  cross-examination,  as  to  their  being  jointly  interested 
in  a  particular  purchase  and  sale  of  horses,  which  is  a  matter  irrelevant 
to  the  issue  on  trial.  He  answers  that  they  were.  This  answer  can- 
not be  contradicted.]'2 

(c)  [A  witness  called  by  A,  in  a  suit  between  A  and  B,  testifies,  on 
cross-examination,  that  he  has  never  threatened  revenge  against  B. 
This  being  an  inquiry  as  to  bias  or  hostility  of  feeling,  he  may  be 
contradicted  on  this  point  by  other  testimony] a 

Article  131.* 

STATEMENTS   INCONSISTENT   WITH    PRESENT  TESTIMONY    MAY 
BE    PROVED. 

Every  witness  under  cross-examination  in  any  pro- 
ceeding, civil  or  criminal,  may  be  asked  whether  he  has 
made  any  former  statement  relative  to  the  subject- 
matter  of  the  proceeding  and  inconsistent  with  his 
present  testimony,  the  circumstances  of  the  supposed 
statement  being  referred  to  sufficiently  to  designate  the 


*  See  Note  XLVII.  [Appendix], 
v.  Murray,  85  Cal.  350).  In  some  States  such  a  state  of  feeling  on  the 
part  of  the  witness  may  be  proved  without  previously  cross-examining 
him  in  respect  thereto  {New  Portland  \ :  Kingfield,  55  Me.  172;  Day 
v.  Stickney,  14  Allen,  255  ;  People  v.  Brooks,  131  X.  V.  321 );  but  in  other 
States  the  rule  is  otherwise.  Aneals  v.  People,  134  111.  401,  414  ;  Mar- 
tineau  v.  May,  18  Wis.  54  ;  Langhorne  v.  Cotnm.,  76  Ya.  1012  ;  State  v. 
Dickerson,  08  X.  C.  708.] 

1  [Stokes  v.  People,  53  X.  Y.  164 ;  see  People  v.  Greenzaall,  108  N.  Y. 
296.] 

i[Farnum  v.  Farnum,  13  Gray,  508.] 

"[Collins  v.  Stephenson,  8  Gray,  438.] 


Chap.  XVI.]          THE  LAW  OF  EVIDENCE.  327 

particular  occasion,  and  if  he  does  not  distinctly  admit 

that  he  has  made  such  a  statement,  proof  may  be  given 
that  he  did  in  fact  m'ake  it.1 


1  [A  similar  rule  is  in  force  here  in  most  States.  It  only  applies  when 
the  testimony  of  the  adversary's  witness,  which  is  to  be  contradicted, 
is  relevant  to  the  issue  (Gr.  Ev.  i.  §  462  ;  Ayers  v.  Watson,  132  U.  S. 
394;  Ankersmitv.  Tuck,  114  N.  Y.  51;  Lawlerv.  AfcPheeters,72  Ind. 
577  ;  Atchison,  etc.  R.  Co.  v.  Feehan,  149  111.  202  ;  State  v.  McLaugh- 
lin, 44  la.  82  ;  Rice  v.  Rice,  104  Mich.  371 ;  Welch  v.  Abbot,  72  Wis.  512 ; 
Granning  v.  Swenson,  49  Minn.  381;  State  v.  Bartley,  48  Kan.  421; 
Thompson  v.  Wertz,  41  Neb.  31 ;  State  v.  Hunsaker,  16  Or.  497  ;  Birch 
v.  Hall,  99  Cal.  299 ;  Browti  v.  State,  72  Md.  468  ;  N.  Y.  etc.  R.  Co.  v. 
Kellam,  83  Va.  851 ;  State  v.  Goodwin,  32  W.  Va.  177  ;  Allison  v.  Coal 
Co.,  87  Tenn.  60  ;  Spohn  v.  Mo.  Pac.  R.  Co.,  122  Mo.  1 ;  Haley  v.  State, 
63  Ala.  83  ;  State  v.  Jones,  44  La.  Ann.  960).  It  is  a  general  rule  that 
the  time  and  place  of  the  supposed  statement  and  the  persons  to  whom 
or  in  whose  presence  it  was  made  should  be  definitely  presented  to 
the  witness's  attention  by  the  question  put  to  him  in  cross-examination 
(see  the  cases  supra);  it  is  sufficient,  however,  if  the  particular  occa- 
sion is  designated  with  reasonable  certainty,  so  that  the  witness  can 
be  under  no  mistake  concerning  it  (Mayer  v.  Appel,  13  111.  App.  87; 
Pendleton  v.  Empire,  etc.  Co.,  19  N.  Y.  13 ;  Evansville,  etc.  R.  Co.  v. 
Montgomery,  85  Ind.  494  ;  see  Illustrations  a  and  b).  This  is  commonly 
called  "laying  the  foundation"  for  the  introduction  of  the  impeaching 
evidence ;  the  object  is  to  give  the  witness  an  opportunity  either  to 
deny  having  made  the  alleged  statement,  or,  if  he  admits  that  he  made 
it,  to  explain  the  alleged  inconsistency.  If  such  opportunity  be  not 
given,  the  evidence  offered  to  show  the  contradiction  is  not  admissible 
(McCulloch  v.  Dobson,  133  N.  Y.  1 14  ;  Richardson  v.  Kelly,  85  111.  491 ; 
Stone  v.  Northwestern  Sleigh  Co.,  70  Wis.  585  ;  State  v.  Cleary,  40 
Kan.  287  ;  Paterson  v.  State.S^  Md.  194;  see  cases  supra).  Still  if  the 
opportunity  be  not  afforded  before  the  impeaching  evidence  is  given, 
but  the  witness  is  recalled  afterwards  and  a  chance  to  explain  is  then 
properly  given  to  him,  this,  though  irregular  practice,  obviates  the 
ground  of  objection  (People  v.  Weldon,  in  N.  Y.  569;  Esterly  v.  Ep- 
pclsheimer,  73  la.  260 ;  Rounsavcll  v.  Pease,  45  Wis.  506 ;  State  v. 
Goodbier,  48  La.  Ann.  770).  If,  however,  the  witness's  absence  or 
death  prevents  his  receiving  any  opportunity  to  explain,  the  impeach- 
ing evidence  must  be  rejected  (Illustrations  (c)  and  (d)\  Mattoxv. 
U.  S.,  156  U.  S.  237  ;  Hubbard  v.  Briggs,  31  N.  Y.  518,  536  ;  Runyan  v. 
Price,  15  O.  St.  1;  Eppert  v.  Hall,  133  Ind.  417). 

When  the  witness,  the  proper  foundation  being  laid,  denies  having 


328  A  DIGEST  OF  [Part  III. 

The  same  course  may  be  taken  with  a  witness  upon 
his  examination  in  chief,  if  the  judge  is  of  opinion  that 


made  the  statement,  the  fact  that  he  did  make  it  may  be  afterwards 
proved  by  the  persons  who  heard  it ;  and  the  same  is  true  if  his  answer 
is  that  he  does  not  recollect  making  it  {Martin  v.  Towle,  59  N.  H.  31 ; 
Kelly  v.  Co/ioes  Co.,  8  App.  Div.  (N.  Y.)  156  ;  Ind.  Rev.  St.  §  508  ;  Con- 
sol.  Ice  Mac/iine  Co.  v.  Keifer,  134  111.  481 ;  Jensen  v.  Railroad  Co.,  102 
Mich.  176  ;  Payne  v.  State,  60  Ala.  80).  But  if  he  admits  having  made 
the  statement,  such  evidence  is  not  necessary  and  is  excluded  {Atchi- 
son, etc.  R.  Co.  v.  Feehan,  149  111.  202- ;  State  v.  Goodbier,  48  La.  Ann. 
770).  Stenographic  minutes  of  a  witness's  alleged  contradictory  evi- 
dence on  a  former  trial  will  not  be  admissible  to  impeach  him,  but  the 
stenographer  may  be  called  as  impeaching  witness  and  use  the  min- 
utes to  refresh  his  memory  {Stayner  v.  Joyce,  120  Ind.  99;  Toohey  v. 
Plummer,  69  Mich.  345  ;  State  v.  Adams,  78  la.  292  ;  cf.  Campbell  v. 
Campbell,  138  111.  612).  If  a  witness's  present  testimony  is  as  to  mat- 
ter of  opinion,  and  such  opinion  evidence  is  competent  in  the  case,  the 
fact  that  he  has  previously  expressed  or  testified  to  contrary  opinions 
may  be  shown  to  impeach  him  {Sanderson  v.  Nashua,  44  N.  H.  492  ; 
Waterman  v.  Chicago,  etc.  R.  Co.,  82  Wis.  613).  But  testimony  as  to 
matters  of  fact  cannot  be  impeached  by  proving  the  expression  of 
opinions  inconsistent  therewith  (Gr.  Ev.  i.  §449  ;  Holmes  v.  Anderson, 
18  Barb.  420;  Sloan  v.  Edwards,  61  Md.  89;  Central  R.  Co.  v.  All- 
mon,  147  111.  471;  McFadin  v.  Catron,  120  Mo.  252).  The  question 
put  to  the  impeaching  witness  should,  in  general,  be  in  the  same 
language,  substantially,  as  was  used  in  calling  the  attention  of  the  im- 
peached witness  to  his  former  statements  {Sloan  v.  N.  Y.  C.  R.  Co.,  45 
N.  Y.  125;  Farmers'  Ins.  Co.  v.  Bair,  87  Pa.  124;  Pence  v.  Waugh, 
135  Ind.  143 ;  Rice  v.  Rice,  104  Mich.  371;  People  v.  Monella,  99  Cal. 
333  ;  but  see  Rucker  v.  State,  71  Miss.  680).  The  contradictory  state- 
ments proved  for  impeachment  are  legitimate  for  this  purpose  only; 
they  are  not  evidence  of  the  facts  asserted  therein  {Plyerv.  German 
Amer.  Ins.  Co.,  121  N.'Y.  689;  Lundberg  v.  Northwestern  Elev.  Co., 
42  Minn.  37;  Charlton  v.  Unis,  4  Gratt.  58).  After  they  have  been 
proved,  the  witness  may  be  allowed  to  testify  in  rebuttal,  by  way  of 
explanation  (McMitrrin  v.  Rigby,  87  la.  18;  Waterman  v.  Chicago, 
etc.  R.  Co.,  82  Wis.  613 ;  cf.  Bressler  v.  People,  117  111.  422);  or  other 
witnesses  may  be  called  to  support  his  denial  of  having  made  the  con- 
tradictory statements  {Bronson  v.  Leach,  74  Mich.  713). 

In  some  of  the  New  England  States,  a  witness's  contradictory  state- 
ments can  be  proved  without  first  calling  his  attention  to  them  on 
cross-examination   {Will-ins  v.  Babbershall,  32   Me.    184;    Cook  v. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  329 

he  is  "adverse"  (/.  c,  hostile)  to  the  party  by  whom  he 
was  called,  and  permits  the  question.1 


Brown,  34  N.  H.  460 ;  Day  v.  Stickney,  14  Allen,  255,  260 ;  Tomlinson 
v.  Derby,  43  Ct.  562) ;  but  he  may  be  recalled  to  explain  the  alleged 
inconsistency  [State  v.  Reed,  62  Me.  129  ;  Gould  v.  Norfolk  Lead  Co., 
9  Cush.  338  ;  Hedge  v.  Clapp,  22  Ct.  262  ;  see  Harrison's  Appeal,  48 
Ct.  202).  In  Pennsylvania  and  Vermont  it  rests  in  the  discretion  of 
the  trial  court  which  order  of  examination  shall  be  pursued  (Rothrock 
v.  Gallaher,  91  Pa.  108;  State  v.  Glynn,  51  Vt.  577). 

The  general  rules,  stated  in  this  note,  apply  to  the  impeachment  of 
a. party  to  an  action,  when  he  becomes  a  witness  ( Winchellv.Winchell, 
100  N.  Y.  159;  Comm.  v.  Tolliver,  119  Mass.  312;  Browning  v. 
Gosnell,  91  la.  448 ;  Dunbar  v.  McGill,  69  Mich.  297 ;  Kelsey  v. 
Laytie,  28  Kan.  218);  but  if  his  prior  inconsistent  statements  constitute 
admissions,  relevant  to  the  issue,  they  may  be  proved  without  first 
calling  his  attention  to  them.  Brown  v.  Calumet  Riv.  R.  Co.,  125  111. 
600 ;  Hunter  v.  Gibbs,  79  Wis.  70 ;  Leroy,  etc.  R.  Co.  v.  Butts,  40  Kan. 
159 ;   White  v.  White,  82  Cal.  427.] 

1  [This  is  by  an  English  statute  (see  Note  XLVII.,  Appendix).  But 
it  is  a  general  rule  of  the  common  law  that  a  party  cannot  impeach  his 
own  witness,  by  proving  either  his  general  bad  character  or  his  former 
statements  inconsistent  with  his  testimony  (Gr.  Ev.  i.  §  442 ;  Cox  v. 
Eayres,  55  Vt.  24  ;  Adams  v.  Wheeler,  97  Mass.  67  ;  Becker  v.  Koch, 
104  N.  Y.  395),  and  this  is  still  true  in  most  States  (Id.;  Hildreth  v. 
Aldrich,  15  R.  I.  163;  Wheeler  v.  Thomas,  67  Ct.  577;  Pollock  v. 
Pollock,  71  N.  Y.  137;  Brewer  \.  Porch,  17  N.  J.  L.  377;  Steams  v. 
Merchants  Bk.,  53  Pa.  490  ;  Hall  v.  Chicago,  etc.  R.  Co.,  84  la.  311  ; 
Stale  v.  Burks,  132  Mo.  363;  State  v.  Keefe,  54  Kan.  197;  Dixon  v. 
State,  86  Ga.  754  ;  Dunlap  v.  Richardson,  63  Miss.  447).  But  he  may 
prove  the  true  facts  of  the  case  by  other  witnesses,  though  this  may 
incidentally  discredit  the  witness;  for  such  facts  are  competent  evi- 
dence in  the  cause  and  are  not  proved  for  the  direct  and  special  pur- 
pose of  impeachment  {Coulter  v.  Atner.  Exp.  Co.,  56  N.  Y.  585; 
First  Nat.  Bk.  v.  Post,  66  Vt.  237  ;  Pennsylvania  R.  Co.  v.  Fortney,  90 
Pa.  323;  East  St.  Louis  R.  Co.  v.  O'Hara,  150  111.  580;  Smith  v. 
Utesch,  85  la.  381  ;  Smith  v.Ehanert,  43  Wis.  181;  Wallach  v.  Wylie, 
28  Kan.  138;  Sewellv.  Gardner,  48  Md.  178;  Meyer  Drug  Co.  v.Mc- 
Mahan,  50  Mo.  App.  18  ;  Hollingsworth  v.  State,  79  Ga.  605).  The. 
rule  prohibiting  impeachment  applies  also  to  the  case  where  a  party 
makes  a  witness  his  own  by  cross-examining  him  as  to  new  matter 
(Fairchild  v.  Bascomb,  35  Vt.  398  ;  Deere  v.  Bagley,  80  la.  197 ; 
Richarch  v.  State,  82  Wis.  172  ;    cf.  Arts  v.  Railroad  Co.,  44  la.  284  ; 


330  A  DIGEST  OF  [Part  III. 

It  seems  that  the  discretion  of  the  judge  cannot  be 
reviewed  afterwards.' 


1  Rice  v.  Howard,  16  Q.  B.  D.  681. 


see  p.  317,  note  1,  ante).  So  where  a  party  calls  the  opposing  party 
as  a  witness,  he  cannot  impeach  him,  though  he  may  prove  the  true 
facts  by  other  witnesses  (Tarsneyv.  Turner,  48  F.  R.  818;  Good  v. 
Knox,  64  Yt.  97  ;  Rindskopfv.  Kuder,  145  111.  607  ;  Gardner  v.  Con- 
nelly, 75  la.  205  ;  Schmidt  v.  Dumam,  50  Minn.  96 ;  Claflin  v.  Dodson, 
in  Mo.  195  ;  Chester  v.  Wilhelm,  1 11  N.  C.  314  ;  but  see  Brubaker's 
Ad/nr.  v.  Taylor,  76  Pa.  83);  even  in  the  absence  of  such  counter 
evidence,  however,  he  is  not  bound  by  whatever  testimony  such  other 
party  (who  is  naturally  an  adverse  witness)  may  give,  but  the 
credibility  of  this  testimony  in  all  its  parts  is  for  the  jury  (Becker  v. 
Koch,  104  N.  Y.  395;  Cross  v.  Cross,  108  N.  Y.  628;  Mitchell  v. 
Sawyer,  115  111.  650).  Where  a  witness  is  one  whom  the  law  obliges 
the  party  to  call,  as  the  subscribing  witness  to  a  deed  or  will,  he  may 
impeach  him  by  showing  his  contradictory  statements  ( Thornton's 
Excrs.  v.  Thornton's  Heirs,  39  Yt.  122  ;  Shorey  v.  Hussey,  32  Me.  579  ; 
IVhilmanv.  Morey,6^  N.H.448;  ci.Peoplev.  Case.io*,  Mich. 92;  State 
v.  Slack,  69  Yt.  486  ;  but  see  Whitaker  v.  Salisbury,  15  Pick.  534). 

If  a  party  is  surprised  by  unexpectedly  adverse  testimony  given  by 
his  own  witness,  in  conflict  with  prior  statements  which  the  witness 
has  made,  he  may  be  permitted  to  examine  the  witness  himself  as  to 
his  having  made  such  statements,  calling  his  attention  definitely  to 
the  time,  place,  and  occasion  of  making  them,  and  thus  make  it  ap- 
parent to  the  court  that  the  witness  disappoints  him,  and  give  the 
latter  a  chance  to  explain,  if  possible,  the  apparent  inconsistency  ;  in 
this  way  the  party,  if  the  witness  gives  no  satisfactory  explanation, 
may  at  least  succeed  in  neutralizing  the  effect  of  his  testimony  (Put- 
nam v.  U.  S.,  162  U.  S.  697-707;  Hickory  v.  U.  S.,  151  U.  S.  303; 
Rullard  v.  Pearsall,  53  N.  Y.  230  ;  McNerney  v.  Reading,  150  Pa.  61 1  ; 
Humble  v.  Shoemaker,  70  la.  223  ;  Johnson  v.  Leggett,  28  Kan.  590  ; 
White  v.  State,  87  Ala.  24;  State  v.  Vickers,  47  La.  Ann.  1574;  cf. 
Fisher  v.  Hart,  149  Pa.  232).  If,  however,  the  witness  denies  having 
made  such  statements,  the  party  cannot  impeach  him  by  evidence  of 
his  general  bad  character,  nor  by  evidence  that  he  did  in  fact  make 
the  statements  (Hurley  v.  State,  46  0.  St.  320;  Hildreth  v.  Aldrich, 
15  R.  I.  163  ;  Bullard \.  Pearsall,  supra  ;  Stearns  v.  Merchants'  Bk., 
53  Pa.  490);  in  some  States,  however,  the  contradictory  statements 
may  be  proved  (Hurlburt  v.  Bellows,  50  N.  H.  105;  Selover  v. 
Bryant,  54  Minn.  434;    State  v.  Sorter,  52  Kan.  531;   see  Smith  v. 


Chap.  XV I.J  THE  LAW  OF  EVIDENCE.  331 

Illustrations.  . 

(a)  [Upon  a  trial  for  murder  the  defendant's  wife  was  called  as  a 
witness  in  his  behalf  and  testified  that  on  the  night  before  the  com- 
mission of  the  crime  he  came  home  at  nine  o'clock,  sick  at  his  stom- 
ach, and  with  a  severe  headache,  that  he  undressed  and  went  to  bed 
and  lay  there  for  hours.  On  cross-examination  her  attention  was  called 
to  a  certain  occasion  on  the  day  after  the  crime  was  committed,  when 
she  met  the  district-attorney  with  Mr.  A  and  Mr.  B,  and  she  was  asked, 
"Did  you  say  then  to  the  district-attorney,  in  the  presence  of  A  &  B, 
that  you  had  never  seen  anything  strange  or  unusual  in  your  husband's 
conduct,  and  that  he  came  home  the  night  before  and  went  to  bed  and 
slept  as  visual  ? "  She  denied  having  said  so.  Mr.  A  was  afterwards 
called  as  a  witness,  and  his  attention  being  called  to  the  above  inter- 
view, he  was  asked  if  she  did  then  make  the  above  statement.  He 
answered  that  she  did,  and  his  testimony  was  held  to  be  competent.]  ' 

(b)  [In  an  action  to  recover  damages  for  an  injury  to  plaintiff  by 
being  run  over  by  a  horse-car,  the  question  was  controverted  whether 
the  driver  was  intoxicated  at  the  time.  He  was  called  as  a  witness 
and  testified  that  he  was  not  intoxicated.  On  cross-examination  he 
was  asked,  "  Did  you  not,  after  the  first  trial  of  this  case,  at  the  back 
door  of  A's  place,  at  8th  and  Jefferson  Streets,  tell  B  &  C,  in  a  con- 
versation there  about  this  accident,  that  you  did  not  deny  being  intoxi- 
cated at  the  time  of  the  accident?"  He  answered,  "No."  Then  B 
was  called  as  a  witness  and  asked,  "  Did  the  driver,  shortly  before  the 
first  trial  of  this  case,  at  the  back  door  of  A's  business  place,  at  8th  and 
Jefferson  Streets  in  a  conversation  about  the  injury  to  the  plaintiff,  say 


Briscoe,  65  Md.  561  ;  Chism  v.  State,  70  Miss.  742  ;  Nat.  Syrup  Co.  v. 
Carlson,  42  111.  App.  178).  The  party  may  also,  of  course,  prove  the 
true  facts  of  the  case  by  other  witnesses  (Id.;  Hickory  v.  U.  S.,  151 
U.  S.  303  ;  State  v.  Knight,  43  Me.  1 1,  134). 

There  are  statutes  in  some  States,  as  in  England,  permitting  a  party 
to  impeach  his  own  witness  (Ind.  Rev.  St.  s.  515  (ed.  1894);  Mass. 
Pub.  St.  c.  169,  s.  22  ;  St.  of  Vt.  s.  1247  (ed.  of  1894);  Cal.  Code  Civ.  Pro. 
§  2049  I  Rev.  St.  Fla.  s.  1 101  ;  Code  of  Ga.  §  3869  (ed.  of  1882);  Mont. 
Code  Civ.  Pro.  §  3377  ;  see  Brooks  v.  Weeks,  121  Mass.  433  ;  B lough 
v.  Parry,  144  Ind.  463;  State  v.  Sleeves,  29  Or.  85  ;  Adams  v.  State, 
34  Fla.  185).  So,  in  some  States,  a  party  who  calls  the  opposing  party 
as  a  witness,  may  impeach  him.  Pub.  St.  N.  H.  c.  224,  s.  15  (ed.  1891); 
Crocker  v.  Agenbroad,  122  Ind.  585.] 

1  {People  v.  Schuyler,  106  N.  Y.  298.] 


332  A  DIGEST  OF  [Part  III. 

to  you,  in  the  presence  of  C,  that  he  did  not  deny  being  intoxicated  at 
the  time  of  the  accident  ? "  B  answered,  "  Yes."  On  appeal,  the  rul- 
ing of  the  trial  court  admitting  B's  testimony  was  held  to  be  erroneous, 
since  the  driver  had  not  been  questioned  about  a  conversation  before 
the  first  trial,  and  therefore  the  proper  foundation  had  not  been  laid.] ' 

(c)  [In  a  civil  action  a  deposition  of  A,  who  was  absent  at  sea,  was 
read  in  evidence  by  the  plaintiff.  The  defendant  then  offered  to  prove 
by  a  witness  B,  that  the  latter  had  had  a  number  of  conversations  with 
A  several  months  after  the  deposition  was  taken,  in  which  A  made 
statements  inconsistent  with  his  testimony  and  said  that  what  he  had 
sworn  to  was  false.  The  court  would  not  receive  B's  testimony,  be- 
cause A  had  had  no  opportunity  afforded  to  him  to  explain  the  alleged 
contradictions.]2 

(d)  [Upon  a  trial  for  murder  A  testified  against  the  defendant.  The 
defendant  was  convicted,  but  his  conviction  was  reversed  and  a  new 
trial  was  had.  Meanwhile  A  had  died,  and  the  testimony  which  he 
gave  on  the  former  trial  was  read  to  the  jury.  The  defendant's  coun- 
sel then  offered  testimony  to  the  effect  that  A,  subsequently  to  the  first 
trial,  had  stated  that  the  evidence  given  by  him  on  the  first  trial  was 
false.    This  testimony  was  rejected.]  3 

Article  132. 
cross-examination  as  to  previous  statements  in  writing. 

A  witness  tinder  cross-examination,  (or  a  witness  whom 
the  judge  under  the  provisions  of  Article  131  has  per- 
mitted to  be  examined  by  the  party  who  called  him  as  to 
previous  statements  inconsistent  with  his  present  tes- 
timony), may  be  questioned  as  to  previous  statements 
made  by  him  in  writing,  or  reduced  into  writing,  relative 
to  the  subject-matter  of  the  cause,  without  such  writing 
being  shown  to  him  (or  being  proved  in  the  first  instance); 
but  if  it  is  intended  to  contradict  him  by  the  writing,  his 
attention  must,  before  such  contradictory  proof  can  be 


1  [Qiuncy  Horse  R.  Co.  v.  Gnuse,  137  111.  264.] 

2  [Stacy  v.  Graham,  14  N.  Y.  492.] 

3  {Craft  v.  Ccfaim.,  81  Ky.  250  ;  Ayers  v.  Watson,  132  U.  S.  394.] 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  333 

given,  be  called  to  those  parts  of  the  writing  which  are 
to  be  used  for  the  purpose  of  contradicting  him.  The 
judge  may,  at  any  time  during  the  trial,  require  the 
document  to  be  produced  for  his  inspection,  and  may 
thereupon  make  such  use  of  it  for  the  purposes  of  the  trial 
as  he  thinks  fit.1 


1  17  &  18  Vict.  c.  125,  s.  24  ;  and  28  Vict.  c.  18,  s.  5.  I  think  the  words 
in  parenthesis  represent  the  meaning  of  the  sections,  but  in  terms  they 
apply  only  to  witnesses  under  cross-examination — "  Witnesses  may  be 
cross-examined,"  etc.  [The  statutory  rule  of  this  Article  is  not  fol- 
lowed in  this  country,  but  the  former  English  rule,  laid  down  in  the 
Queen  s  Case,  2  B.  &  B.  286.  When  it  is  sought  on  cross-examination 
to  impeach  an  adversary's  witness  by  inconsistent  statements  pre- 
viously made  by  such  witness  in  writing,  as  in  a  letter,  affidavit,  or 
other  written  instrument,  the  witness  should  not  be  asked  whether  in 
such  letter  (or  other  writing)  he  made  certain  statements,  which  coun- 
sel suggests,  but  the  proper  practice  is  to  first  exhibit  the  writing  to 
him  and  ask  him  if  he  wrote  it  or  signed  it.  If  he  assents,  the  writing 
should  itself  be  read  in  evidence  as  the  best  evidence  of  its  contents 
and  before  examining  the  witness  in  reference  to  its  statements.  The 
court  may  in  its  discretion  permit  it  to  be  put  in  evidence  when  the 
witness  admits  it  to  be  his  writing,  if  cross-examining  counsel  wishes 
then  to  question  in  regard  to  its  contents;  but  the  regular  time  for  intro- 
ducing it  is  when  said  counsel  develops  his  own  side  of  the  case.  After 
the  paper  has  been  given  in  evidence,  due  opportunity  is  afforded  to 
the  witness  to  explain  the  alleged  inconsistency  (Gr.  Ev.  i.  §§463-465  ; 
Romertze  v.  East  River  Bk.,  49  N.  Y.  577  ;  Gaffney  v.  People,  50  N.  Y. 
416;  Hosmer  v.  Groat,  143  Mass.  16;  Morford  v.  Peck,  46  Ct.  380; 
Chicago  R.  Co.  v.  McLaughlin,  146  111.  353  ;  Chicago,  etc.  R.  Co.  v. 
Hastings,  136  111.  251;  Lightfoot  v.  People,  16  Mich.  507;  Glenn  v. 
Gleason,  61  la.  28  ;  O 'Riley  v.  Clampt,  53  Minn.  539  ;  State  v.  Stein,  79 
Mo.  330;  So.  Kan.  R.  Co.  v.  Painter,  53  Kan.  414  ;  Floyd  v.  State,  82 
Ala.  16;  State  v.  Callegari,  41  La.  Ann.  578).  The  whole  instrument 
should  be  read,  or  at  least  all  of  it  which  has  any  bearing  upon  the 
matters  concerning  which  the  witness  is  examined  (  Whitman  v.  Morey, 
63  N.  H.  448 ;  Hamilton  v.  People,  29  Mich.  195  ;  Wilkerson  v.  Liters, 
114  Mo.  245).  Sometimes,  however,  this  regular  order  of  examination 
is  not  pursued,  but  the  witness  is  cross-examined  about  the  contents 
of  the  writing  though  it  has  not  been  read  in  evidence  ;  this  may  hap- 
pen when  counsel  entitled  to  object  to  this  irregular  practice  does  not 
do  so  in  due  time  and  on  proper  grounds,  or  when  it  appears  that  no 


334  A  DIGEST  OF  [Part  III. 

Illustration. 
[In  an  action  brought  by  A,  who  had  been  bookkeeper  and  cashier 
for  B,  against  the  latter  to  recover  damages  for  a  wrongful  dis- 
charge, B  pleaded  that  A  had  been  rightfully  discharged  for  mis- 
conduct, and  called  C,  his  chief  clerk,  as  a  witness  to  prove  such 
misconduct.  C  testified  that  A  had  been  absent  at  various  times  dur- 
ing business  hours,  sometimes  being  away  nearly  half  a  day  at  a  time, 
that  he  was  frequently  late  in  the  morning,  and  that,  when  his  pres- 
ence in  the  office  was  very  much  needed,  he  was  frequently  away  on 
his  own  business  and  could  not  be  found.  On  the  cross-examination 
of  C,  a  letter  was  produced  and  shown  to  him,  and  he  admitted  that  he 
wrote  it.  At  the  close  of  the  defendant's  evidence  this  letter  was 
read  in  evidence  by  plaintiff's  counsel.  It  was  as  follows  :  "  To  whom 
it  may  concern :  A  was  in  the  employ  of  B,  and  I  can  bear  testimony 
to  his  promptness  and  efficiency  in  his  duties  as  bookkeeper  and 
cashier.  C."  It  was  held  on  appeal  that  the  letter  was  properly  ad- 
mitted to  impeach  C's  testimony.]  ' 

Article  133. 
impeaching  credit  of  witness. 

The  credit  of  any  witness  may  be  impeached  by  the 
adverse  party,  by  the  evidence  of  persons  who  swear 
that  they,  from  their  knowledge  of  the  witness,  believe 
him  to  be  unworthy  of  credit  upon  his  oath.3     Such  per- 


prejudice  can  be  occasioned  thereby.  Chicago,  etc.  R.  Co.  v.  Artery, 
137  U.  S.  507  ;  The  Charles  Morgan,  1 15  U.  S.  69 ;  Dtmdarv.  McGill, 
69  Mich.  297;  State  v.  Mathews,  88  Mo.  121  ;   State  v.  West,  95  Mo. 

1 39-] 

1  [Western  Af/rs.'  Ins.  Co.  v.  Boughton,  136  111.  317.] 

2  [It  is  a  well-settled  rule  in  this  country  that  a  witness  of  the  adverse 
party  may  be  impeached  by  evidence  from  other  persons  of  his  bad 
general  reputatio7i  in  his  own  community.  The  impeaching  witnesses 
must  come  from  this  community,  and  in  examining  any  one  of  them 
the  form  of  inquiry  usually  is  to  ask  (1)  whether  he  knows  the  general 
reputation  in  that  community  of  the  witness  in  question ;  then,  if  he 
assents,  (2)  what  that  reputation  is,  and,  if  he  says  it  is  not  good,  (3) 
whether  from  such  knowledge  he  would  believe  such  witness  on  his 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  335 

sons  may  not  upon  their  examination  in  chief  give  reasons 
for  their  belief,  but  they  may  be  asked  their  reasons  in 


oath  (Gr.  Ev.  i.  §  461;  Brown  v.  U.  S.,  164  U.  S.  221;  Carlson  v.  Win- 
terson,  147  N.  Y.  652  ;  Bogle's  Excrs.  v.  Kreitzer,  46  Pa.  465  ;  Gifford 
v.  People,  148  111.  173;  Spies  v.  People,  122  111.  9,  208;  Sloan  v.  Ed- 
wards, 61  Md.  89,  103  ;  in  Massachusetts  it  is  discretionary  with  the 
trial  court  whether  the  first  question  shall  be  asked,  Wethe?-bee  v. 
iVorris,  103  Mass.  565).  The  inquiry  must  only  be  as  to  general  repu- 
tation, not  as  to  specific  wrongful  acts  {Comm.  v.  O'Brien,  119  Mass. 
342;  People  v.  Creenwall,  108  N.  Y.  296;  Drew  v.  State,  124  Ind.  9, 
17  ;  State  v.  Rogers,  108  Mo.  202).  The  reputation  asked  about  must 
be  in  most  States  for  truth  and  veracity  {Sargent  v.  Wilson,  59  N.  H. 
396 ;  Shaw  v.  Emery,  42  Me.  59  ;  State  v.  Eoumier,6&  Vt.  262  ;  Quin- 
siganiond  Bk.  v.  Hobbs,  1 1  Gray,  250 ;  State  v.  Randolph,  24  Ct.  363  ; 
Atwoodw.Impson,  20  N.J.  Eq.  150;  Warner  v.  Lockerby,  31  Minn. 
421;  Hillis  v.  Wylie,  26  O.  St.  574  ;  U.  S.  v.  Van  Sickle,  2  McL.  219; 
Laclede  Bk.  v.  Keeler,  109  111.  385  ;  Bogle's  Excrs.  v.  Kreitzer,  supra ; 
People  v.Abbott,  97  Mich.  484  ;  Wallis  v.  White,  58  Wis.  26  ;  State  v. 
Johnson,  40  Kan.  266 ;  Winter  v.  Smith,  22  Or.  469  ;  see  Teese  v.  Hunt- 
inglon,23  How.  (U.  S.)  2);  but  in  some  States  the  inquiry  may  be  as  to 
general  moral  character  {Watkins  v.  State,  82  Ga.  231;  Merriman  v. 
State,  3  Lea,  393),  or  it  is  optional  to  inquire  either  as  to  general  moral 
character,  or  as  to  truth  and  veracity,  or  as  to  both  {Dollner  v.  Lintz, 
84  N.  Y.  669  ;  Wright  v.  Paige,  3  Keyes,  581 ;  Robbins  v.  Spencer,  121 
Ind.  594  ;  Griffith  v.  State,  140  Ind.  163  ;  State  v.  Larson,  85  Ind.  659  ; 
State  v.  Potts,  78  la.  656;  State  v.  Gesell,  124  Mo.  531;  Lockard  v. 
Comm. ,87  Ky.  201 ;  McCutchen  v.  Loggins,  109  Ala.  457  ;  State  v.  Spur- 
ling,  1 18  N.  C.  1250;  Hollingsworth  v.  State,  53  Ark.  387);  in  California 
the  question  is  as  to  truth,  honesty,  and  integrity  {People  v.  Ryan,  108 
Cal.  581).  In  most  States  also  the  third  question  (as  to  belief  on  oath) 
is  asked  ( U,  S.  v.  Van  Sickle,  2  McL.  219  ;  Lyman  v.  Philadelphia,  56 
Pa.  488  ;  Hamiltoti  v.  People,  29  Mich.  173,  185  ;  Titus  v.  Ash,  24  N.  H. 
319 ;  Knight  v.  House,  29  Md.  194  ;  Wilson  v.  State,  3  Wis.  798  ;  Hillis 
v.  Wylie,  26  O.  St.  574  ;  State  v.  Johnson,  40  Kan.  266  ;  A'ti'  v.  State, 
86  Tenn.  259  ;  Cole  v.  State,  59  Ark.  50  ;  State  v.  Christian,  44  La.  Ann. 
950 ;  Ga.  Code,  §  3873) ;  in  New  York  and  Illinois  it  is  permissible,  but 
not  necessary  {People  v.  Mather,  4  Wend.  229 ;  Wright  v.  Paige,  3 
Keyes,  581 ;  Laclede  Bk.  v.  Keeler,  109  111.  385  ;  and  see  People  v.  Ty- 
ler, 35  Cal.  553);  but  in  a  few  States  it  is  not  allowable  {Willard  v. 
Goodenough,  30  Vt.  393  ;  Walton  v.  State,  88  Ind.  9 ;  State  v.  Rush, 
77  Mo.  519 ;  cf.  King  v.  Ruckman,  20  N.  J.  Eq.  316). 
When  a  party  to  an  action  (including  a  defendant  in  a  criminal 


336  A  DIGEST  OF  [Part  III. 

cross-examination,    and   their  answers   cannot   be    con- 
tradicted." 

No  such  evidence  may  be  given  by  the  party  by 
whom  any  witness  is  called,2  but  when  such  evidence  is 
given  by  the  adverse  party,  the  party  who  called  the 
witness  may  give  evidence  in  reply  to  show  that  the 
witness  is  worthy  of  credit.3 


case)  is  a  witness,  he  may  be  impeached  like  other  witnesses  by  proof 
of  his  bad  general  reputation  {Foster  v.  Newbrongh,  58  N.  Y.  481; 
Keyes  v.  State,  122  Ind.  527  ;  State  v.  Kirkpatrick,  63  la.  554  ;  State  v. 
Day,  100  Mo.  242 ;  Lockard  v.  Comm.,  87  Ky.  201  ;  Peck  v.  State,  86 
Tenn.  259 ;  People  v.  Hickman,  1 13  Cal.  80). 

The  inquiry  is  generally  as  to  the  impeached  witness's  reputation  at 
the  time  of  the  trial,  but  since  reputation  once  established  is  presumed 
to  continue  (see  Art.  ioi,note3,  ante), it  may  relate  to  his  reputation  be- 
fore or  after  the  trial,  if  the  period  is  not  too  remote  (Dollnerv.Lintz, 
84  N.  Y.  669;  Graha?n  v.  Chrystal,  2  Abb.  Dec.  263 ;  Amidon  v.  Hos- 
ley>  54  Vt.  25).  An  interval  of  weeks,  or  months,  or  even  of  several 
years  has  been  held  not  too  remote  (Id.;  Sleeper  v.  Van  Middlesworth, 
4  Den.  431 ;  Papev.  Wright,  116  Ind.  502;  Davis  v.  Comtn.,q^  Ky.  19); 
but  upon  the  question  of  years  the  authorities  are  not  in  accord  (Fran- 
cis v.  Franklin  Fp,  179  Pa.  203 ;  Slate  v.  Potts,  78  la.  656;  Fuse  v. 
Page,  32  Minn.  1 1 1 ;  Wood  v.  Matthews,  73  Mo.  477  ;  State  v.  Parker, 
96  Mo.  382  ;  Yarbrough  v.  State,  105  Ala.  43 ;  Watkins  v.  State,  82  Ga. 
231;  Cline  v.  State,  51  Ark.  140).  Reputation  at  a  former  place  of 
residence  may  also  be  inquired  into,  if  the  time  is  not  too  remote. 
Norwood  x.  Andrews,  71  Miss.  641 ;  Coates  v.  Sulan,  46  Kan.  341.] 

1  2  Ph.  Ev.  503-4;  T.  E.  ss.  1324-5;  see  R.  v.  Brown,  L.  R.  1  C.  C.  R. 
70.  [An  impeaching  witness  may  be  cross-examined  as  to  his  means  of 
knowledge,  the  grounds  of  his  unfavorable  opinion,  his  bias  against  the 
impeached  witness,  etc.  {People  v.  Mather,  4  Wend.  229,  258;  Gulerette 
v.  McK~inley,27  Hun,  320;  Fates  v.  Farber,  4  Cush.  107;  Hepworth 
v.  Henshall,  153  Pa.  592  ;  Bobbins  v.  Spencer,  121  Ind.  594  ;  cf.  J  lolly- 
wood  v.  Feed,  57  Mich.  234);  or  his  own  general  reputation  maybe 
attacked  {Phillips  v.  Thorn,  84  Ind.  84  ;  Starks  v.  People,  5  Den.  106), 
or  his  contradictory  statements  proved  (State  v.  Lawlor,  28  Minn.  216). 
So  a  sustaining  witness  may  be  cross-examined.  Stape  v.  People,  85 
N.  Y.  390.] 

2 17  &  18  Vict.  c.  125,  s.  2;  and  28  Vict.  c.  18,  s.  3.  [See  p.  329, 
note  1,  ante.] 

»  2  Ph.  Ev.  504  ;  T.  E.  ss.  1324-5.    See  R.  v.  Brown,  L.  R.  1  C.  C.  R. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  337 

Article   134. 
offences  against  women. 

When  a  man  is  prosecuted  for  rape  or  an  attempt  to 
ravish,  it  may  be  shown  that  the  woman  against  whom 
the  offence  was  committed  was  of  a  generally  immoral 


70.  [There  are  several  modes  of  sustaining  the  credit  of  an  im- 
peached witness:  (1)  If  his  general  reputation  is  impeached,  other 
witnesses  who  know  his  reputation  may  be  called  to  show  that  such 
reputation  is  good,  and  (in  most  States)  that  they  would  believe  him 
on  oath.  They  are  examined  in  much  the  same  way  as  impeach- 
ing witnesses  (Hamilton  v.  People,  29  Mich.  173,  184;  Sloan  v.  Ed- 
wards, 61  Md.  89  ;  State  v.  Nelson,  58  la.  208  ;  Couun.  v.  Ingraham, 
7  Gray,  46;  Morss  v.  Palmer,  15  Pa.  51;  Magee  v.  People,  139  111. 
138;  First  Nat.  Bk.  v.Wolff,  79  Cal.  69;  Stape  v.  People,  85  N.  Y. 
390;  see  Adams  v.  Greenwich  Ins.  Co.,  70  N.  Y.  166).  The  court 
may,  in  its  discretion,  limit  the  number  of  impeaching  and  of  sus- 
taining witnesses  (Bunnell  v.  Butler,  23  Ct.  65  ;  Bissell  v.  Cornell,  24 
Wend.  354  ;  Hollywood  v.  Reed,  57  Mich.  234). 

(2)  If  the  witness  is  impeached  by  evidence  of  his  prior  inconsistent 
statements  (see  Art.  131),  he  msy  in  some  States  be  sustained  by  evi- 
dence of  his  good  general  reputation  for  truth  (Sweet  v.  Sherman,  21 
Vt.  23  ;  Bd. ofCommrs.  v.  O'Connor,  137  Ind.  622  ;  Walker  v.  Phcenix 
Ins.  Co.,  62  Mo.  App.  209 ;  Isler  v.  Dewey,  71  N.  C.  14  ;  Hodgkins  v. 
State,  89  Ga.  761,  765  ;  Holley  v.  State,  105  Ala.  100  ;  Crook  v.  State, 
27  Tex.  App.  198);  but  in  other  States  this  is  not  permitted  (Brown  v. 
Mooers,  6  Gray,  451  ;  Webb  v.  State,  29  O.  St.  351 ;  Wertz  v.  May,  21 
Pa.  274  ;  Frost  \.  McCargar,  29  Barb.  617;  People  v.  Olmstead,  30 
Mich.  431  ;  State  v.  Archer,  73  la.  320;  Slieppardv.  Yocum,  10  Or. 
402,  citing  other  cases).  Such  evidence  of  good  reputation  has  also 
been  received  in  some  States  to  sustain  the  credit  of  a  witness  who 
has  been  impeached  by  proof  of  his  conviction  for  crime  (Gertz  v. 
Fitchburg  R.  Co.,  137  Mass.  77  ;  Webb  v.  State,  29  O.  St.  351  ;  People 
v.  Amanacus,  50  Cal.  233),  or  by  proof  that  he  has  suborned  or  has 
attempted  to  suborn  witnesses  or  to  suppress  testimony  (People  v. 
Ah  Fat,  48  Cal.  61  ;  Lewis  v.  State,  35  Ala.  380;  see  Stevenson  v. 
Gunning,  64  Vt.  601,  609).  It  has  also  been  held  in  a  few  cases  that 
when,  on  the  cross-examination  of  a  witness,  facts  are  brought  out 
which  discredit  him,  he  may  be  sustained  by  proof  of  his  good  repu- 
tation ( Central  R.  Co.  v.  Dodd,  83  Ga.  507 ;  Texas,  etc.  R.  Co.  v. 
Raney,  86  Tex.  363 ;  cf .  State  v.  Cherry,  63  N.  C.  493 ;  Paine  v.  Tilden,  20 


338  A  DIGEST  OF  [Part  III. 

character,  although  she  is  not  cross-examined  on  the 
subject.1  The  woman  may  in  such  a  case  be  asked 
whether  she  has  had  connection  with  other  men,  but  her 
answer  cannot  be  contradicted.8     She  may  also  be  asked 


Vt.  554;  Coombes  v.  State,  17  Tex.  App.  258;  Walker  v. Phoenix  Ins.  Co., 
62  Mo.  App.  209  ;  but  see  Harrington  v.  Lincoln,  4  Gray,  563  ;  People 
v.  Gay,  7  N.  Y.  378).  It  is  well  settled,  however,  that  such  evidence 
of  good  reputation  is  not  received  to  sustain  a  witness,  simply  because 
the  testimony  of  other  witnesses  has  been  in  conflict  with  his  own 
{Stevenson  v.  Gunning,  64  Yt.  601  ;  Atwood  v.  Dearborn,  1  Allen, 
483;  .State  \.\Vard,  49  Ct.  429;  Starks  v.  People,  5  Den.  106  ;  Fits- 
gerald  v.  Goff,  99  Ind.  28  ;  Tedens  v.  Schumers,  112  111.  266;  Miller 
v.  Western,  etc.  R.  Co.,  93  Ga.  480 ;  Mobile,  etc.  R.  Co.  v.  Williams, 
54  Ala.  168  ;  Texas,  etc.  R.  Co.  v.  Raney,  86  Tex.  363  ;  but  see  Davis 
v.  State,  38  Md.  15  ;  State  v.  Desforges,  48  La.  Ann.  73);  but  in  Vir- 
ginia it  is  received,  in  whatever  way  a  witness  may  be  discredited 
{George  v.  Pile  her,  28  Gratt.  299;  cf.  Coltraine  v.  Brown,  71  N.  C.  19). 

(3)  It  is  _iot  in  general  permissible  to  support  a  witness  by  evidence 
that  he  has  made  former  statements  similar  to  his  testimony  (Gr.  Ev. 
i.  §  469  ;  Robb  v.  Hackley,  23  Wend.  50  ;  Conrad  v.  Griffey,  1 1  How. 
(U.  S.)  480 ;  State  v.  Flint,  60  Vt.  304  ;  Reed  v.  Spaulding,  42  N.  H. 
114;  Crooks  v.  Bitnn,  136  Pa.  368  ;  State  v.  Porter,  74  la.  623  ;  Hodges 
v.  Bates,  102  Ind.  494;  Mason  v.  Vestal,  88  Cal.  396;  Jones  v.  State, 
107  Ala.  93  ;  and  cases  infra).  But  when  his  testimony  is  charged  to 
have  been  given  under  the  influence  of  some  improper  or  interested 
motive,  or  to  be  a  recent  fabrication,  and  in  other  like  cases,  it  may  be 
shown  that  he  made  similar  statements  before  the  motive  existed,  or 
before  there  could  have  been  any  inducement  to  fabricate  (Hewitt  v. 
Corey,  150  Mass.  445  ;  In  re  Hesdra,  H9,N.  Y.  615  ;  Clever  v.  Hil- 
berry,  116  Pa.  431  ;  Stolp  v.  Blair,  68  111.  541  ;  State  v.  Hendricks,  32 
Kan.  559;  Barkly  v.  Copcland,  74  Cal.  1  ;  City  Pass.  R.  Co.  v.  Knee, 
83  Md.  y-j  ;  Howard  x.  Comm.,  81  Va.  488;  Yarbrough  v.  State,  105 
Ala.  43  ;  State  v.  Cady,  46  La.  Ann.  1346).  In  some  States,  however, 
such  evidence  is  received  to  sustain  the  credibility  of  a  witness,  when- 
ever he  has  been  impeached  by  proof  of  his  prior  inconsistent  state- 
ments (Hobbs  v.  Stale,  133  Ind.  404;  State  v.  Whelehon,  102  Mo.  17; 
Graham  v.  Mc Reynolds,  90  Tenn.  673  ;  State  v.  Fontenot,  48  La.  Ann. 
283;  Goode  v.  State,  32  Tex.  App.  505);  so  in  North  Carolina,  if  he 
has  been  discredited  in  any  way.     State  v.  Whitfield,  92  N.  C.  831.] 

1  R.  v.  Clarke,  2  Stark.  241. 

8  R.  v.  Holmes,  L.  R.  1  C.  C.  R.  334. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  339 

whether  she  has  had  connection  on  other  occasions  with 
the  prisoner,  and  if  she  denies  it  she  may  be  contra- 
dicted.1 2 


1  R.  v.  Martin,  6  C.  &  P.  562,  and  remarks  in  R.  v.  Holmes,  p.  337, 
per  Kelly,  C.  B.  See  also  R.  v.  Cockcroft,  11  Cox,  410,  and  R.  v. 
Riley,  18  Q.  B.  D.  481. 

2  [The  cases  in  this  country  are  agreed  that  in  a  criminal  prose- 
cution for  rape  or  an  attempt  to  ravish,  the  woman's  bad  general 
character  for  chastity  may  be  proved  by  witnesses,  and  also  that  she 
may  be  examined  as  to  her  previous  connection  with  the  prisoner 
(Gr.  Ev.  iii.  §  214  ;  Conkey  v.  People,  1  Abb.  Dec.  418  ;  Woods  v.  People, 
55  N.  Y.  515  ;  State  v.  Forshner,  43  N.  H.  89;  O'Blenis  v.  State,  47 
N.  J.  L.  279;  Bedgoodv.  State,  115  Ind.  275  ;  and  cases  infra).  But 
they  disagree  as  to  whether  particular  acts  of  connection  with  other 
men  can  be  proved.  In  many  States  the  right  to  prove  such  acts, 
either  by  her  own  examination  or  by  the  evidence  of  witnesses,  is 
denied  {State  v.  Knapp,  45  N.  H.  148;  Comm.  v.  Hart-is,  131  Mass. 
336  ;  State  v.  Fitzsimon,  18  R.  I.  236  ;  McCombs  v.  State,  8  O.  St.  643  ; 
Richie  v.  State,  58  Ind.  355  ;  People  v.  McLean,  71  Mich.  309  ;  State  v. 
White,  35  Mo.  500 ;  State  v.  Brown,  55  Kan.  766  ;  State  v.  Turner,  1 
Houst.  76 ;  Shartzer  v.  State,  63  Md.  149 ;  Rice  v.  State,  35  Fla.  236 ; 
Pefferling  v.  State,  40  Tex.  486;  State  v.  Campbell,  20  Nev.  122); 
but  in  a  few  States  such  proof  is  competent  {State  v.  Hollenbeck,  67 
Vt.  34,  permitting  it  by  cross-examination  ;  Benstine  v.  State,  2  Lea, 
16a,  holding  both  modes  of  proof  allowable,  and  so  People  v.  Benson, 
6  Cal.  221  ;  cf.  Shirwin  v.  People,  69  111.  55);  in  New  York  the  de- 
cisions upon  this  point  are  conflicting  (  Woods  v.  People,  55  N.  Y.  515  ; 
cf.  Brown  v.  State,  72  Miss.  997).  In  trials  for  rape  upon  a  woman 
under  the  age  of  legal  consent,  evidence  of  her  bad  repute  for  chastity, 
or  of  intercourse  with  other  men,  is,  in  general,  not  competent 
{People  v.  Glover,  71  Mich.  303  ;  People  v.  Abbott,  97  id.  484  ;  State  v. 
Duffey,  128  Mo.  549;  People  v.  Johnson,  106  Cal.  289 ;  but  see  People 
v.  Flaherty,  79  Hun,  48). 

In  actions  for  indecent  assault,  evidence  of  the  woman's  bad  general 
repute  for  chastity  is  competent ;  so,  in  some  States,  of  particular  acts 
of  unchastity  with  other  men  {Mitchell  v.  Work,  13  R.  I.  645  ;  Watty 
v.  Berber,  18  Wis.  525  ;  Gulerette  v.  McKinley,  27  Hun,  320  ;  cf.  I  roung 
v.  Johnson,  123  N.  Y.  226),  but  not  in  other  States  {Gore  v.  Curtis,  81 
Me.  403  ;  cf.  Miller  v.  Curtis,  158  Mass.  127). 

In  actions  for  seduction,  the  woman's  bad  general  character  for 
chastity  may  be  shown  (see  p.  161,  note,  ante) ;  but  she  cannot,  in  some 
States,  be  cross-examined  as  to  prior  acts  of  intercourse  with  other 


340  A  DIGEST  OF  [Part  III. 


Article  135. 

what  matters  may  be  proved  in  reference  to  declara- 
tions relevant  under  articles  25-32. 

Whenever  any  declaration  or  statement  made  by  a 
deceased  person,  relevant  or  deemed  to  be  relevant  under 
Articles  25-32,  both  inclusive,  or  any  deposition  is  proved, 
all  matters  may  be  proved  in  order  to  contradict  it,  or  in 
order  to  impeach  or  confirm  the  credit  of  the  person  by 
whom  it  was  made,  which  might  have  been  proved  if  that 
person  had  been  called  as  a  witness,  and  had  denied 
upon  cross-examination  the  truth  of  the  matter  sug- 
gested.1 

men  than  the  seducer  {Hoffman  v.  Kemerer,  44  Pa.  453  ;  Doyle  v.  Jes- 
sup,  29  111.  460;  Smith  v.  Yaryan,  69  Ind.  445  ;  cf.  Clifton  v.  Granger, 
86  la.  573),  unless  a  child  is  born  and  its  paternity  is  in  question  (see 
Smith  v.  Yaryan).  But  some  cases  hold  that  such  acts  may  be  proved 
by  the  testimony  of  the  men  themselves  (Gr.  Ev.  ii.  §  577  ;  White  v. 
Murtland,  71  111.  250;  cf.  Ford  v.  Jones,  62  Barb.  484),  or  by  cross- 
examination  of  the  woman  as  well  as  by  the  evidence  of  witnesses 
{Love  v.  Masoner,  6  Baxt.  24;.  IVandell  v.  Edwards,  25  Hun,  498; 
cf.  West  v.  Druff,  55  la.  335  ;  Stewart  v.  Smith,  92  Wis.  76;  Ayerv. 
Colgrove,  81  Hun,  322). 

Upon  an  indictment  for  adultery,  the  woman's  bad  character  for 
chastity  may  be  proved  {Cotnm.  v.  Gray,  129  Mass.  474). 

In  bastardy  proceedings,  as  the  fact  of  paternity  is  in  question,  it 
may  be  shown  that  the  woman  had  intercourse  with  other  men  during 
the  time  when  the  child  could  have  been  begotten,  but  not  at  other 
times  {Knight  v.  Morse,  54  Vt.  432  ;  Ronan  v.  Dugan,  126  Mass.  176  ; 
lloi ham  v.  State,  91  Ind.  82  ;  People  v.  Kaminsky,  73  Mich.  637  ;  State 
v.  Lavin,  80  la.  555  ;  Holeotub  v.  People,  79  111.  409;  Swisher  v.  Ma- 
lone,  31  W.  Ya.  442  ;  cf.  People  v.  Sckildwachter,  5  App.  Div.  (N.  Y.) 
288) ;  her  general  character  for  chastity,  however,  is  not  in  issue. 
Bookhout  v.  State,  66  Wis.  415  ;  Parker  v.  Dudley,  1 18  Mass.  602.] 

1  R.  v.  Drummond,  1  Leach,  338  ;  R.  v.  Pike,  3  C.  &  P.  598.  In  these 
cases  dying  declarations  were  excluded,  because  the  persons  by  whom 
they  were  made  would  have  been  incompetent  as  witnesses,  but  the 
principle  would  obviously  apply  to  all  the  cases  in  question.     [Thus 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  341 


Article  136. 
refreshing  memory. 

A  witness  may,  while  under  examination,  refresh  his 
memory  by  referring  to  any  writing-  made  by  himself  at 
the  time  of  the  transaction  concerning  which  he  is  ques- 
tioned, or  so  soon  afterwards  that  the  judge  considers  it 
likely  that  the  transaction  was  at  that  time  fresh  in  his 
memory. 

The  witness  may  also  refer  to  any  such  writing  made 
by  any  other  person,  and  read  by  the  witness  within  the 
time  aforesaid,  if  when  he  read  it  he  knew  it  to  be  correct.1 


when  dying  declarations  are  offered  in  evidence,  it  may  be  shown  that 
the  deceased  declarant  was  an  atheist,  to  affect  his  competency  or 
credibility  {State  v.  Elliott,  45  la.  486;  Goodall  v.  State,  1  Or.  333  ; 
People  v.  Chin  Mook  Sow,  51  Cal.  597  ;  see  p.  272,  n.  3,  ante),  or  that 
his  general  reputation  was  bad  {Lesterv.  State,  37  Fla.  382;  Redd  v.  State, 
99  Ga.  210) ;  or  his  contradictory  statements  may  be  proved  {People  v. 
Lawrence,  2 1  Cal.  368  ;  Carver  v.  State,  164  U.  S.  697  ;  State  v.  Shaffer, 
23  Or.  555;  Battle  v.  State,  74  Ga.  101;  Shell  v.  State,  88  Ala.  14; 
Morelock  v.  State,  90  Tenn.  528  ;  State  v.  Lodge,  9  Houst.  542  ;  Felder 
v.  State,  23  Tex.  App.  477  ;  cf.  Richards  v.  State,  82  Wis.  172  ;  Comm. 
v.  Cooper,  5  Allen,  495  ;  contra,  Wroe  v.  State,  20  O.  St.  460). 

As  to  depositions,  see  Art.  131,  ante,  Illustration  {c)\  Keran  v.  Trice's 
Excrs.,  75  Va.  690 ;  Dabney  v.  Mitchell,  66  Ala.  495  ;  Wallach  v.  Wylie, 
28  Kan.  138  ;  Webster  v.  Mann,  56  Tex.  119.] 

1  2  Ph.  Ev.  480,  etc.;  T.  E.  ss.  1264-70;  R.  N.  P.  194-5.  [There  are 
three  cases  of  refreshing  memory :  { \ )  Where  the  witness,  by  referring 
to  the  writing,  is  enabled  to  actually  recollect  the  facts  and  can  testify- 
in  reality  from  memory.  The  writing  may  be  the  original  one  made 
by  himself,  while  the  facts  were  fresh  in  mind  {Chamberlin  v.  Ossipee, 
60  N.  H.  212  ;  Morrison  v.  Chapin,  97  Mass.  72  ;  Nat.  Bk.  of  Dubois 
v.  Nat.  Bk.  of  Williamsport,  1 14  Pa.  1 ;  Card  v.  Foot,  56  Ct.  369  ;  Wel- 
come v.  Batchelder,  23  Me.  85  ;  Russell  v.  Hudson  River  R.  Co.,  17 
N.  Y.  134;  Mason  v.  Phelps,  48  Mich.  126;  People  v.  Cotta,  49  Cal. 
166),  or  a  copy  thereof  {Hudnutt  v.  Comstock,  50  Mich.  596  ;  Bonnet  v. 
(jla/lfeldt,  120  111.  166 ;  Lawson  v.  Glass,  6  Col.  134  ;  so  as  to  copy  of 


342  A  DIGEST  OF  [Part  III. 

An   expert   may  refresh  his  memory  by  reference   to 
professional  treatises.1 


copy,  Folsom  v.  Apple  River  Co.,  41  Wis.  602  ;  or  a  copy  in  a  news- 
paper, Comm.  v.  Ford,  130  Mass.  64;  Clifford v.  Drake,  110  111.  135), 
or  it  may  be  a  writing  made  by  another  person  {State  v.  Miller,  53  la. 
209;  Hill  v.  Stale,  17  Wis.  675  ;  Robinson  v.  Mulder,  81  Mich.  75  ; 
Culver  v.  6V<?//  Lumber  Co.,  53  Minn.  360;  Huffy.  Bennett,  6  N.  Y. 
337 ;  Paige  v.  Carter,  64  Cal.  489).  ■  It  is  not  the  writing,  but  the 
recollection  of  the  witness,  that  is  the  evidence  in  the  case  {Comm. 
v.  Jeffs,  132  Mass.  5  ;  Bigelow  v.  Hall,  91  N.  Y.  145  ;  Calloway  v. 
Varner,  yj  Ala.  541  ;  and  cases  supra). 

(2)  Where  the  witness,  after  referring  to  the  writing,  does  not  recol- 
lect the  facts,  and  yet  remembers  that  he  made  or  saw  the  writing 
when  the  facts  were  fresh  in  his  mind,  and  that  it  then  stated  the 
facts  correctly.  The  writing  may  have  been  made  by  himself  {Dugan 
v.  Mahoney,  11  Allen,  572;  Howard  x.  Mc Donough,  ,J  N.  Y.  592; 
Adae  v.  Zangs,  41  la.  536  ;  Downer  v.  Rowell,  24  Vt.  343  ;  Kelsea  v. 
Fletcher,  48  N.  H.  282  ;  see  Costello  v.  C rowell,  133  Mass.  352),  or  by 
another  person  {Davis  v.  Field,  56  Vt.  426;  Chamberlain  v.  Sands, 
27  Me.  458;  Billingslea  v.  Smith,  jj  Md.  504  ;  Coffin  v.  Vincent,  12 
Cush.  98).  In  some  States  the  writing  is  itself  evidence  in  special 
cases,  but  not  in  other  States  (see  Art.  137,  note  i,  post). 

An  analogous  case  is  where  the  facts  are  such  as  naturally  escape 
the  memory,  as  items,  dates,  names,  numerous  details,  etc.,  and  a 
witness  is  allowed  to  use  a  memorandum  thereof  as  an  aid  in  testify- 
ing, which  he  knows  and  testifies  to  have  been  correctly  made 
{Fletcher  v.  Powers,  131  Mass.  333  ;  Brown  v.  Galesburg  Brick  Co., 
132  111.  648  ;  Wise  v.  Phojnix  Ins.  Co.,  101  N.  Y.  637  ;  King  v.  Faber, 
51  Pa.  387  ;  Pinney  v.  Andrus,  41  Vt.  631). 

(3)  Where  the  witness,  after  referring  to  the  writing,  neither  recol- 
lects the  facts,  nor  remembers  having  'seen  it  before,  and  yet  from 
seeing  his  handwriting  therein  (as  in  signature,  contents,  or  both),  is 
enabled  to  testify  to  its  genuineness  and  correctness  (Gr.  Ev.  i.  §  437  ; 
Martin  v.  Good,  14  Md.  398;  Mathias  v.  0'Neil,Q$  Mo.  520;  Alvord 
v.  Collin,  20  Pick.  418  ;  Crittenden  x.  Rogers,  8  Gray,  452  ;  Moots  v. 
State,  21.O.  St.  653  ;  cf.  Parsons  v.  Mfrs.  Ins.  Co.,  16  Gray,  463  ;  Cole 
x.Jcssup,  10  N.  Y.  96).  As  to  the  writing  being  evidence,  see  next 
Article,  note.] 

1  Sussex  Peerage  Case,  II  C.  &  F.  1 14-17.  [People  v.  Wheeler,  60 
Cal.  581,  585  ;  Healy  v.  Visalia  R.  Co.,  101  Cal.  585  ;  State  v.  Baldwin, 
36  Kan.  1,  17.] 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  343 


Article  137. 
right  of  adverse  party  as  to  writing  used  to  refresh 

MEMORY. 

Any  writing  referred  to  tinder  Article  136  must  be  pro- 
duced and  shown  to  the  adverse  party  if  he  requires  it; 
and  such  party  may,  if  he  pleases,  cross-examine  the 
witness  thereupon.1 


1  See  Cases  in  R.  N.  P.  195.  [Gr.  Ev.  i.  §  437  ;  Peck  v.  Valentine,  94 
N.  Y.  571.  This  is  the  general  rule  both  as  to  Case  (1),  stated  in  the 
preceding  note  (see  p.  341,  note  1,  ante  ;  Comm.  v.  Jeffs,  132  Mass.  5  ; 
Peck  v.  Lake,  3  Lans.  136;  Chute  v.  State,  19  Minn.  271  ;  Duncan  v. 
Seeley,  34  Mich.  369  ;  Stanwood  v.  McLellan,  48  Me.  275  ;  McKivitt 
v.  Cone,  30  la.  455),  and  also  as  to  Case  (2)  {Dugan  v.  Mahoney,  11 
Allen,  573  ;  Costello  v.  Crowell,  133  Mass.  352  ;  Adae  v.  Zangs,  41  la. 
536 ;  see  Davis  v.  Field,  56  Vt.  426).  The  writing  is  not  itself  ad- 
mitted in  evidence  (see  cases  cited  ;  Taylor  v.  Chicago,  etc.  R.  Co.,  80 
la.  431).  The  object  of  cross-examination  is  to  ascertain  when  and 
by  whom  the  writing  was  made,  whether  it  is  such  a  writing  as  may 
properly  be  used  for  the  purpose,  whether  the  witness's  memory  is 
refreshed  by  every  part  of  it,  etc.  {Chute  v.  State,  19  Minn.  271; 
Comm.  v.  Burke,  114  Mass.  261).  It  is  in  the  discretion  of  the  trial 
court  at  what  stage  of  the  trial  this  examination  shall  be  made  (see 
last  case).  So  when  the  witness,  under  Case  (i)^refers  to  the  writing 
out  of  court,  it  has  been  held  matter  of  judicial  discretion  whether  he 
shall  produce  it  in  court  {Comm.  v.  Lan?ian,  13  Allen,  563  ;  see  Peck 
v.  Lake,  3  Lans.  136  ;  Trustees  v.  Bledsoe,  5  Ind.  133). 

A  different  rule  is  applied  in  some  States  in  the  special  case  where 
the  witness  himself  made  the  writing  when  the  facts  were  fresh  in  his 
mind,  and  remembers  that  it  was  then  correct,  but  cannot,  upon  now 
referring  to  it,  testify  to  the  facts  from  actual  recollection  ;  the  original 
writing  (but  not  a  copy)  is  itself  received  in  evidence,  upon  his 
authenticating  its  genuineness  and  correctness  {McCormick  v.  Pa. 
Cent.  R.  Co.,  49  N.  Y.  303,  315  ;  Kelsea  v.  Fletcher,  48  N.  H.  282  ;  Kent 
v.  Mason,  1  111.  App.  466  ;  Curtis  v.  Bradley,  65  Ct.  99  ;  Battles  v. 
Tallman,  96  Ala.  403  ;  cf.  Bates  v.  Preble,  151  U.  S.  149 ;  Vicksburgh, 
etc.  R.  Co.  v.  O'Brien,  119  U.  S.  99;  cf.  Imhoffx.  Richards,  48  Neb. 
590).  But  the  writing  is  not  evidence,  if  the  witness  has  present  recol- 
lection (Id.;   People  v.  McLaughlin,   150  N.  Y.  365,  392 ;   Pinkham  v. 


344  A  DIGEST  OF  [Part  III. 


Article   138. 

giving,  as  evidence,   document  called  for  and  produced 

on  notice. 

When  a  party  calls  for  a  document  which  he  has  given 
the  other  party  notice  to  produce,  and  such  document  is 
produced  to,  and  inspected  by,  the  party  calling  for  its 
production,  he  is  bound  to  give  it  as  evidence  if  the 
party  producing  it  requires  him  to  do  so,  and  if  it  is  or  is 
deemed  to  be  relevant. ' 


Be7iton,  62  N.  H.  687  ;  contra,  Owens  v.  State,  67  Md.  307  ;  cf.  Lapham 
v.  Kelly,  35  Vt.  195). 

In  Case  (3)  the  writing  should  be  produced  in  court  to  examine  the 
witness  upon  (Gr.  Ev.  i.  §  437  ;  Hall  v.  Ray,  18  N.  H.  126  ;  Martin  v. 
Good,  14  Md.  398),  but  is  often  put  in  evidence  itself,  under  other  rules 
of  the  law  of  evidence  {Moots  v.  State,  21  O.  St.  653;  Crittenden  v. 
Rogers,  8  Gray,  452). 

A  writing  made  so  long  after  the  transaction  to  which  it  relates  that 
the  facts  cannot  be  deemed  to  have  then  been  fresh  in  the  witness's  mind 
cannot  be  used  to  refresh  his  recollection  (Gr.  Ev.  i.  §  438  ;  Howellw. 
Carden,  99  Ala.  100 ;  Joties  v.  State,  54  O.  St.  1  ;  Morris  v.  Lachman, 
68  Cal.  109;  Schuyler  Nat.  Bk.  v.  Bullong,  24  Neb.  825);  so  if  its 
accuracy  is  justly  open  to  suspicion  (Lovell  v.  Wentworth,  39  O.  St. 
614).  Thus  a  writing  made  five  months  after  the  transaction  and  by 
request  of  a  party  was  not  allowed  to  be  used  {Spring  Garde?i  Ins.  Co. 
v.  Evans,  15  Md.  54  ;  cf.  Sivartz  v.  Chiekering,  58  Md.  290);  so  of  one 
made  twenty  months  afterwards  (Maxwell  v.  Wilkinson,  113  U.  S. 
656) ;  so  a  witness  was  not  allowed  to  be  referred  to  his  own  prior 
testimony  of  the  same  facts  which  had  been  given  four  months  after 
the  event.  Putnam  v.  U.  S.,  162  U.  S.  687 ;  cf.  People  v.  Palmer,  105 
Mich.  568.] 

1  Wharam  v.  Routledge,  1  Esp.  235  ;  Calvert  v.  Flower,  7  C.  &  P. 
386.  [In  some  American  States  this  rule  is  followed  (Gr.  Ev.  i.  §  563  ; 
Ellison  v.  Cruser,  40  N.  J.  L.  444  ;  Merrill  v.  Merrill,  67  Me.  70  ;  Long 
v.  Drew,  114  Mass.  77  ;  Cuslunan  v.  Coleman,  92  Ga.  772  ;  IVallar  v. 
Stewart,  4  Cr.  C.  C.  532  ;  Edison  Light  Co.  v.  U.  S.  Lighting  Co.,  45 
F.  R.  55;  cf.  Western  Union  Tel.  Co.  v.  Nines,  96  Ga.  688;  Stitt  v. 
Huidekopers,  17  Wall.  385);  but  in  others  it  is  rejected.  Austin  v. 
Thompson,  45  X.  H.  113;  Smith  v. Rents,  131  X.  Y.  169;  cf.  Summers 
v.  JLA'im,  12  S.  &  R.  405  ;  Rumsey  v.  Lovell,  Anth.  N.  P.  26.] 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  345 


Article  139. 

using,  as   evidence,  a  document,  production  of  which  was. 
refused  on  notice. 

When  a  party  refuses  to  produce  a  document  which  he 
has  had  notice  to  produce,  he  may  not  afterwards  use  the 
document  as  evidence  without  the  consent  of  the  other 
party.1 

1  Doe  v.  Hodgson,  12  A.  &  E.  135  ;  but  see  remarks  in  2  Ph.  Ev.  270. 
[Gage  v.  Campbell,  131  Mass.  566;  Kingman  v.  Tirrell,  11  Allen,  97; 
Mather  v.  Eureka  Co.,  118  N.  Y.  629;  McGuiness  v.  School  District, 
39  Minn.  499 ;  Powell  v.  Peatistine,  43  S.  Car.  403.] 


346  A  DIGEST  OF  IPart  III. 


CHAPTER  XVII. 
OF    DEPOSITIONS. 

Article  140. 
depositions  before  magistrates. 

A  deposition  taken  tinder  11  &  12  Vict.  c.  42,  s.  17,  may- 
be produced  and  given  in  evidence  at  the  trial  of  the 
person  against  whom  it  was  taken, 

if  it  is  proved  (to  the  satisfaction  of  the  judge)  that  the 
witness  is  dead,  or  so  ill  as  not  to  be  able  to  travel 
(although  there  may  be  a  prospect  of  his  recovery) ; ' 

(or,  if  he  is  kept  out  of  the  way  by  the  person  accused,) 2 

or,  (probably,  if  he  is  too  mad  to  testify,) 3  and 

if  the  deposition  purports  to  be  signed  by  the  justice 
by  or  before  whom  it  purports  to  have  been  taken  ;  and 

if  it  is  proved  by  the  person  who  offers  it  as  evidence 
that  it  was  taken  in  the  presence  of  the  person  accused, 
and  that  he,  his  counsel,  or  attorney,  had  a  full  opportu- 
nity of  cross-examining  the  witness  ; 

Unless  it  is  proved  that  the  deposition  was  not  in  fact 
signed  by  the  justice  by  whom  it  purports  to  be  signed, 

(or,  that  the  statement  was  not  taken  upon  oath  ; 

or  (perhaps)  that  it  was  not  read  over  to  or  signed  by 
the  witness).4 

1  R.  v.  Stephenson,  L.  &  C.  165. 

2  R.v.Scaife,  17  Q.  B.  773. 

3  Analogy  of  R.  v.  Scaife. 

4 1  believe  the  above  to  be  the  effect  of  11  &  12  Vict.  c.  42,  s.  17,  as 
interpreted  by  the  cases  referred  to,  the  effect  of  which  is  given  by  the 
words  in  parenthesis,  also  by  common  practice.  Nothing  can  be  more 
rambling  or  ill-arranged  than  the  language  of  the  section  itself.     See 


Chap.  XVII.]         THE  LAW  OF  EVIDENCE.  347 

If  there  is  a  prospect  of  the  recovery  of  a  witness 
proved  to  be  too  ill  to  travel,  the  judge  is  not  obliged  to 
receive  the  deposition,  but  may  postpone  the  trial.1 

Article  141. 
depositions  under  30  &  31  vict.  c.  35,  s.  6. 

A  deposition  taken  for  the  perpetuation  of  testimony 
in  criminal  cases,2  under  30  &  31  Vict.  c.  35,  s.  6,  may  be 
produced  and  read  as  evidence,  either  for  or  against  the 
accused,  upon  the  trial  of  any  offender  or  offence3  to 
which  it  relates — 

if  the  deponent  is  proved  to  be  dead,  or 

if  it  is  proved  that  there  is  no  reasonable  probability 
that  the  deponent  will  ever  be  able  to  travel  or  to  give 
evidence,  and 

if  the  deposition  purports  to  be  signed  by  the  justice 
by  or  before  whom  it  purports  to  be  taken,  and 

if  it  is  proved  to  the  satisfaction  of  the  court  that  reason- 
able notice  in  writing 4  of  the  intention  to  take  such  depo- 
sition was  served  upon  the  person  (whether  prosecutor  or 
accused)  against  whom  it  was  proposed  to  be  read,  and 


1  Ph.  Ev.  87-100 ;  T.  E.  s.  448,  etc.  [The  depositions  to  which  this 
Article  relates  are  those  taken  upon  a  preliminary  examination  of  a 
charge  of  crime  before  a  committing  magistrate.  Similar  rules  are 
established  in  many  States  of  this  country.  N.  Y.  Code  Cr.  Pro.,  §  8  ; 
People  v.  Fish,  125  N.  Y.  136  ;  State  v.  George,  60  Minn.  503  ;  State  v. 
Elliott,  90  Mo.  350;  People  v.  Ward,  105  Cal.  652;  People  v.  Dow- 
digan,  67  Mich.  95  ;  Brown  v.  Conun.,  73  Pa.  321  ;  Lucas  v.  State,  96 
Ala.  51  ;  Pittman  v.  State,  92  Ga.  480 ;  State  v.  Fitzgerald,  63  la.  268  ; 
Bishop's  New  Cr.  Pro.  i.  §  1197  ;  see  p.  109,  note,  ante.] 

1  R.  v.  Tail,  2  F.  &  F.  553. 

8  [Similar  statutes  providing  for  the  taking  of  depositions  in  crimi- 
nal cases  are  found  in  some  States.  See  N.  Y.  Code  Cr.  Pro.  §§8, 620- 
657;  Mass.  Pub.  St.  c.  212,  ss.  40,  41 ;  Ohio  R.  S.  ss.  7293,  7294  (7th  ed.); 
Bishop's  New  Cr.  Pro.  i.  §§  1 194-1206.] 

3  Sic.  -  4  R.  v.  Shimner,  17  Q.  B.  D.  323. 


348  A  DIGEST  OF  [Part  III. 


that  such  person  or  his  counsel  or  attorney  had  or 
might  have  had,  if  he  had  chosen  to  be  present,  full 
opportunity  of  cross-examining  the  deponent.1 


Article  142. 
depositions  under  merchant  shipping  act,  1854. 

2  Whenever,  in  the  course  of  any  legal  proceedings 
instituted  in  any  part  of  her  Majesty's  dominions  before 
any  judge  or  magistrate  or  before  any  person  authorized 
by  law  or  by  consent  of  parties  to  receive  evidence,  the 
testimony  of  any  witness  is  required  in  relation  to  the 
subject-matter  of  such  proceeding,  any  deposition  that 
such  witness  may  have  previously  made  on  oath  in 
relation  to  the  same  subject-matter  before  any  justice  or 
magistrate  in  her  Majesty's  dominions,  or  any  British 
consular  officer  elsewhere,  is  admissible  in  evidence,  sub- 
ject to  the  following  restrictions  : — 

1.  If  such  proceeding  is  instituted  in  the  United 
Kingdom  or  British  possessions,  due  proof  must  be  given 
that  such  witness  cannot  be  found  in  that  kingdom  or 
possession  respectively. 


1  30  &  31  Vict.  c.  35,  s.  6.  The  section  is  very  long,  and  as  the  first 
part  of  it  belongs  rather  to  the  subject  of  criminal  procedure  than  to 
the  subject  of  evidence,  I  have  omitted  it.  The  language  is  slightly 
altered.  I  have  not  referred  to  depositions  taken  before  a  coroner 
(see  7  Geo.  IV.  c.  64,  s.  4),  because  the  section  says  nothing  about  the 
conditions  on  which  they  may  be  given  in  evidence.  Their  relevancy, 
therefore,  depends  on  the  common  law  principles  expressed  in  Article 
32.  They  must  be  signed  by  the  coroner;  but  these  are  matters  not 
of  evidence,  but  of  criminal  procedure.  [See  McLain  v.  Comm.,  99 
Pa.  86.] 

4  17  &  18  Vict.  c.  104,  s.  270.  There  are  some  other  cases  in  which 
depositions  are  admissible  by  statute,  but  they  hardly  belong  to  the 
Law  of  Evidence. 


Chap.  XVII.]         THE  LAW  OF  EVIDENCE.  349 

2.  If  such  deposition  was  made  in  the  United  King- 
dom, it  is  not  admissible  in  any  proceeding  instituted  in 
the  United  Kingdom.  r 

3.  If  the  deposition  was  made  in  any  British  posses- 
sion, it  is  not  admissible  in  any  proceeding  instituted  in 
the  same  British  possession. 

4.  If  the  proceeding  is  criminal,  the  deposition  is  not 
admissible  unless  it  was  made  in  the  presence  of  the 
person  accused. 

Every  such  deposition  must  be  authenticated  by  the 
signature  of  the  judge,  magistrate,  or  consular  officer 
before  whom  it  was  made.  Such  judge,  magistrate,  or 
consular  officer  must,  when  the  deposition  is  taken  in  a 
criminal  matter,  certify  (if  the  fact  is  so)  that  the  accused 
was  present  at  the  taking  thereof ;  but  it  is  not  necessary 
in  any  case  to  prove  the  signature  or  the  official  character 
of  the  person  appearing  to  have  signed  any  such 
deposition. 

In  any  criminal  proceeding  the  certificate  aforesaid  is 
(unless  the  contrary  is  proved)  sufficient  evidence  of  the 
accused  having  been  present  in  manner  thereby  certified. 

Nothing  in  this  Article  contained  affects  any  provision 
by  Parliament  or  by  any  local  legislature  as  to  the  admis- 
sibility of  depositions  or  the  practice  of  any  court  accord- 
ing to  which  depositions  not  so  authenticated  are  admis- 
sible as  evidence. 


35o  A  DIGEST  OF  [Part  III. 


CHAPTER  XVIII. 

OF  IMPROPER  ADMISSION  AND  REJECTION  OF 
EVIDENCE. 

Article  143. 

A  new  trial  will  not  be  granted  in  any  civil  action  on  the 
ground  of  the  improper  admission  or  rejection  of  evidence, 
unless,  in  the  opinion  of  the  court  to  which  the  applica- 
tion is  made,  some  substantial  wrong  or  miscarriage  has 
been  thereby  occasioned  in  the  trial  of  the  action.1 

If  in  a  criminal  case  evidence  is  improperly  rejected 
or  admitted,  there  is  no  remedy,  unless  the  prisoner  is 
convicted,  and  unless  the  judge,  in  his  discretion,  states  a 
case  for  the  Court  for  Crown  Cases  Reserved  ;  but  if  that 
court  is  of  opinion  that  any  evidence  was  improperly 
admitted  or  rejected,  it  must  set  aside  the  conviction.2 


1  Rules  of  Supreme  Court,  Order  xxxix.  6.  [If  error  has  been  com- 
mitted in  admitting  or  rejecting  evidence  but  can  have  wrought  no 
prejudice,  it  is  no  ground  for  granting  a  new  trial  in  a  civil  action. 
McGean  v.  Manhattan  R.  Co.,  117  N.  Y.  219  ;  Hornbuckle  v.  Stafford, 
in  U.S.  389 ;  Gilbert  v.  Moline  Co.,  1 19  U.  S.  491  ;  Bulkley  v.  Devine, 
127  111.  406;  Wingv.  Chesterfield,  116  Mass.  353;  Girard  Ins.  Co.  v. 
Marr,  46  Pa.  504  ;  Ha»i  v.  Wisconsin,  etc.  R.  Co.,  61  la.  716.] 

■[R.  v.  Gibson,  18  Q.  B.  D.  537.  In  this  country,  it  is  a  general 
rule  in  criminal  cases  that  a  new  trial  will  not  be  granted  for  the 
erroneous  admission  or  rejection  of  evidence,  where  it  clearly 
appears  that  the  defendant  could  not  have  been  prejudiced  thereby. 
People  v.  Strait,  154  N.  Y.  165  ;  Genz  v.  State,  59  N.  J.  L.  488  ;  Ryan 
v.  State,  83  Atl.  R.  (N.  J.)  672  ;  Wallace  v.  People,  159  111.  446;  State 
v.  McCaffrey,  63  la.  479;  People  v.  Marshall,  112  Cal.  422;  Bishop's 
New  Cr.  Pro.  i.  S  1276.] 


Notes.]  THE  LAW  OF  EVIDENCE.  351 


APPENDIX  OF  NOTES. 


NOTE  I. 
(to  Article  i.) 


The  definitions  are  simply  explanations  of  the  senses  in  which  the 
words  defined  are  used  in  this  work.  They  will  be  found,  however,  if 
read  in  connection  with  my  '  Introduction  to  the  Indian  Evidence  Act,' 
to  explain  the  manner  in  which  it  is  arranged. 

I  use  the  word  "presumption"  in  the  sense  of  a  presumption  of 
law  capable  of  being  rebutted.  A  presumption  of  fact  is  simply  an 
argument.  A  conclusive  presumption  I  describe  as  conclusive  proof. 
Hence  the  few  presumptions  of  law  which  I  have  thought  it  necessary 
to  notice  are  the  only  ones  I  have  to  deal  with. 

In  earlier  editions  of  this  work  I  gave  the  following  definition  of 
relevancy: 

"Facts,  whether  in  issue  or  not,  are  relevant  to  each  other  when 
one  is,  or  probably  may  be,  or  probably  may  have  been — 

the  cause  of  the  other; 

the  effect  of  the  other; 

an  effect  of  the  same  cause; 

a  cause  of  the  same  effect: 
or  when  the  one  shows  that  the  other  must  or  cannot  have  occurred, 
or  probably  does  or  did  exist,  or  not; 

or  that  any  fact  does  or  did  exist,  or  not,  which  in  the  common 
course  of  events  would  either  have  caused  or  have  been  caused  by  the 
other; 

provided  that  such  facts  do  not  fall  within  the  exclusive  rules  con- 


352  A  DIGEST  OF  [Notes. 

tained  in  chapters  iii.,  iv.,  v.,  vi.;  or  that  they  do  fall  within  the  ex- 
ceptions to  those  rules  contained  in  those  chapters."  ' 

This  was  taken  (with  some  verbal  alterations)  from  a  pamphlet 
called  'The  Theory  of  Relevancy  for  the  purpose  of  Judicial  Evi- 
dence, by  George  Clifford  Whitworth,  Bombay  Civil  Service.  Bom- 
bay, 1875.' 

The  7th  section  of  the  Indian  Evidence  Act  is  as  follows:  "Facts 
which  are  the  occasion,  cause  or  effect,  immediate  or  otherwise,  of 
relevant  facts  or  facts  in  issue,  or  which  constitute  the  state  of  things 
under  which  they  happened,  or  which  afforded  an  opportunity  for 
their  occurrence  or  transaction,  are  relevant." 

The  nth  section  is  as  follows  : — 

"  Facts  not  otherwise  relevant  are  relevant ; 

"  ( 1 )  If  they  are  inconsistent  with  any  fact  in  issue  or  relevant  fact ; 

"(2)  If  by  themselves,  or  in  connection  with  other  facts,  they  make 


1  [In  the  earlier  editions  Mr.  Stephen  also  gave  the  following  excel- 
lent illustrations  of  relevancy  as  thus  defined: 

"(a)  A's  death  is  caused  by  his  taking  poison.  The  administration 
of  the  poison  is  relevant  to  A's  death  as  its  cause.  A's  death  is 
relevant  to  the  poisoning  as  its  effect. 

"(b)  A  and  B  each  eat  from  the  same  dish  and  each  exhibit 
symptoms  of  the  same  poison.  A's  symptoms  and  B's  symptoms  are 
relevant  to  each  other  as  effects  of  the  same  cause. 

"(c)  The  question  is,  whether  A  died  of  the  effects  of  a  railway 
accident. 

"Facts  tending  to  show  that  his  death  was  caused  by  inflammation 
of  the  membranes  of  the  brain,  which  probably  might  be  caused  by 
the  accident;  and  facts  tending  to  show  that  his  death  was  caused 
by  typhoid  fever,  which  would  have  nothing  to  do  with  the  accident, 
are  relevant  to  each  other  as  possible  causes  of  the  same  effect, — 
A's  death."  [See  Pitts  v.  State,  43  Miss.  472;  Comm.  v.  Ryan,  134 
Mass.  223;  Knox  v.  Wheelock,  54  Vt.  150;   State  v.  Lentz,  45  Minn. 

1 77-] 

"(d)  A  is  charged  with  committing  a  crime  in  London  on  a  given 
day.  The  fact  that  on  that  day  he  was  at  Calcutta  is  relevant,  as 
proving  that  he  could  not  have  committed  the  crime. 

"(e)  The  question  is,  whether  A  committed  a  crime. 

"  The  circumstances  are  such  that  it  must  have  been  committed 


Notes.]  THE  LAW  OF  EVIDENCE. 

the  existence  or  non-existence  of  any  fact  in  issue,  or  relevant  fact, 
highly  probable  or  improbable." 

In  my  'Introduction  to  the  Indian  Evidence  Act,'  I  examined  at 
length  the  theory  of  judicial  evidence,  and  tried  to  show  that  the  the- 
ory of  relevancy  is  only  a  particular  case  of  the  process  of  induction, 
and  that  it  depends  on  the  connection  of  events  as  cause  and  effect. 
This  theory  does  not  greatly  differ  from  Bentham's,  though  he  does 
not  seem  to  me  to  have  grasped  it  as  distinctly  as  if  he  had  lived  to 
study  Mill's  Inductive  Logic. 

My  theory  was  expressed  too  widely  in  certain  parts,  and  not  widely 
enough  in  others ;  and  Mr.  Whitworth's  pamphlet  appeared  to  me  to 
have  corrected  and  completed  it  in  a  judicious  manner.  I  accordingly 
embodied  his  definition  of  relevancy,  with  some  variations  and  addi- 
tions, in  the  text  of  the  first  edition.  The  necessity  of  limiting  in  some 
such  way  the  terms  of  the  nth  section  of  the  Indian  Evidence  Act 
may  be  inferred  from  a  judgment  by  Mr.  Justice  West  (of  the  High 
Court  of  Bombay),  in  the  case  of  R.  v.  Parbhudas  and  others,  printed 
in  the 'Law  Journal,'  May  27,  1876.  I  have  substituted  the  present 
definition  for  it,  not  because  I  think  it  wrong,  but  because  I  think  it 


either  by  A,  B,  or  C.  Every  fact  which  shows  this,  and  every  fact 
which  shows  that  neither  B  nor  C  committed  it,  or  that  either  of  them 
did  or  might  have  committed  it,  is  relevant. 

"(f)  B,  a  person  in  possession  of  a  large  sum  of  money,  is  mur- 
dered and  robbed.  The  question  is,  whether  A  murdered  him.  The 
fact  that  after  the  murder  A  was  or  was  not  possessed  of  a  sum 
of  money  unaccounted  for  is  relevant,  as  showing  the  existence 
or  the  absence  of  a  fact  which,  in  the  common  course  of  events, 
would  be  caused  by  A's  committing  the  murder.  A's  knowledge 
that  B  was  in  possession  of  the  money  would  be  relevant  as  a 
fact,  which,  in  the  ordinary  course  of  events,  might  cause  or  be 
one  of  the  causes  of  the  murder."  [See  Comm.  v.  Sturtivant,  117 
Mass.  122;  Williams  v.  Comm.,  29  Pa.  102;  Kennedy  v.  People,  39 
N.  Y.  245.] 

"(g)  A  is  murdered  in  his  own  house  at  night.  The  absence  of 
marks  of  violence  to  the  house  is  relevant  to  the  question,  whether  the 
murder  was  committed  by  a  servant,  because  it  shows  the  absence  of 
an  effect  which  would  have  been  caused  by  its  being  committed  by  a 
stranger."] 


354  *  A  DIGEST  OF  [Notes. 

gives  rather  the  principle  on  which  the  rule  depends  than  a  convenient 
practical  rule. 

As  to  the  coincidence  of  this  theory  with  English  law,  I  can  only  say 
that  it  will  be  found  to  supply  a  key  which  wiJl  explain  all  that  is  said 
on  the  subject  of  circumstantial  evidence  by  the  writers  who  have  treat- 
ed of  that  subject.  Mr.  Whitworth  goes  through  the  evidence  given 
against  the  German,  Muller,  executed  for  murdering  Mr.  Briggs  on  the 
North  London  Railway,  and  shows  how  each  item  of  it  can  be  referred 
to  one  or  the  other  of  the  heads  of  relevancy  which  he  discusses. 

The  theory  of  relevancy  thus  expressed  would,  I  believe,  suffice  to 
solve  every  question  which  can  arise  upon  the  subject ;  but  the  legal 
rules  based  upon  an  unconscious  apprehension  of  the  theory  exceed 
it  at  some  points  and  fall  short  of  it  at  others. 

NOTE  II. 
(to  Article  2.) 

See  1  Ph.  Ev.  493,  &c;  Best,  ss.  in  and  251;  T.  E.  chap.  ii.  pt.  ii. 

For  instances  of  relevant  evidence  held  to  be  insufficient  for  the 
purpose  for  which  it  was  tendered,  on  the  ground  of  remoteness,  see 
R.  v. ,  2  C.  &  P.  459 ;  and  Mann  v.  Langton,  3  A.  &  E.  699. 

Mr.  Taylor  (s.  867)  adopts  from  Professor  Greenleaf  the  statement 
that  "the  law  excludes  on  public  grounds  .  .  .  evidence  which  is 
indecent  or  offensive  to  public  morals,  or  injurious  to  the  feelings  of 
third  persons."  The  authorities  given  for  this  are  actions  on  wagers 
which  the  court  refused  to  try,  or  in  which  they  arrested  judgment, 
because  the  wagers  were  in  themselves  impertinent  and  offensive,  as, 
for  instance,  a  wager  as  to  the  sex  of  the  Chevalier  D'Eon  {Da  Costa 
v.Jones,  Cowp.  729).  No  action  now  lies  upon  a  wager,  and  I  can  find 
no  authority  for  the  proposition  advanced  by  Professor  Greenleaf.  I 
know  of  no  case  in  which  a  fact  in  issue,  or  relevant  to  an  issue,  which 
the  court  is  bound  to  try  can  be  excluded  merely  because  it  would 
pain  some  one  who  is  a  stranger  to  the  action.  Indeed,  in  Da  Costa 
v.  Jones,  Lord  Mansfield  said  expressly, "  Indecency  of  evidence  is  no 
objection  to  its  being  received  where  it  is  necessary  to  the  decision  of 


Notes.]  THE  LAW  OF  EVIDENCE.  355 

a  civil  or  criminal  right"  (p.  734).    (See  Article  129,  and  Note  XLVI.) 
[See  Melvin  v.  Melvin,  58  N.  H.  569;  Cothran  v.  Ellis,  125  111.  496.] 

NOTE  III. 
(to  Article  4.) 

On  this  subject  see  also  1  Ph.  Ev.  157-164;  T.  E.  ss.  527-532;  Best, 
s.  508  ;  3  Russ.  on  Crimes,  by  Greaves,  161-7.  (See,  too,  The  Queen's 
Case,  2  B.  &  B.  309-10.) 

The  principle  is  substantially  the  same  as  that  of  principal  and  ac- 
cessory, or  principal  and  agent.  When  various  persons  conspire  to 
commit  an  offence,  each  makes  the  rest  his  agents  to  carry  the  plan 
into  execution.    (See,  too,  Article  17,  Note  XI.) 

NOTE  IV. 
(to  Article  5.) 

The  principle  is  fully  explained  and  illustrated  in  Malcohnson  v. 
O'Dea,  10  H.  L.  C.  593.  See  particularly  the  reply  to  the  questions 
put  by  the  House  of  Lords  to  the  Judges,  delivered  by  Willes,  J.,611- 
622.     [See  Boston  v.  Richardson,  105  Mass.  351,  371.] 

See  also  1  Ph.  Ev.  234-9;  T.  E.  ss.  593-601;  Best,  s.  499. 

Mr.  Phillips  and  Mr.  Taylor  treat  this  principle  as  an  exception  to 
the  rule  excluding  hearsay.  They  regard  the  statements  contained  in 
the  title-deeds  as  written  statements  made  by  persons  not  called  as 
witnesses.  I  think  the  deeds  must  be  regarded  as  constituting  the 
transactions  which  they  effect;  and  in  the  case  supposed  in  the  text, 
those  transactions  are  actually  in  issue.  When  it  is  asserted  that  land 
belongs  to  A,  what  is  meant  is,  that  A  is  entitled  to  it  by  a  series  of 
transactions  of  which  his  title-deeds  are  by  law  the  exclusive  evidence 
(see  Article  40).  The  existence  of  the  deeds  is  thus  the  very  fact 
which  is  to  be  proved. 

Mr.  Best  treats  the  case  as  one  of  "derivative  evidence," an  expres- 
sion which  does  not  appear  to  me  felicitous. 


356  A  DIGEST  OF  [Notes. 


NOTE  V. 
(to  Article  8.) 

The  items  of  evidence  included  in  this  Article  are  often  referred  to 
by  the  phrase  "res  gestae,"  which  seems  to  have  come  into  use  on  ac- 
count of  its  convenient  obscurity.  The  doctrine  of  "  res  gestae  "  was 
much  discussed  in  the  case  of  Doe  v.  Tatham  (p.  79,  &c).  In  the 
course  of  the  argument,  Bosanquet,  J.,  observed,  "  How  do  you  trans- 
late res  gestae?  gestae,  by  whom?"  Parke,  B.,  afterward  observed, 
"The  acts  by  whomsoever  done  are  res  gestae,  if  relevant  to  the  mat- 
ter in  issue.  But  the  question  is,  what  are  relevant?"  (7  A.  &  E. 
353.)  In  delivering  his  opinion  to  the  House  of  Lords,  the  same  Judge 
laid  down  the  rule  thus  :  "Where  any  facts  are  proper  evidence  upon 
an  issue  "  (i.  e.,  when  they  are  in  issue,  or  relevant  to  the  issue)  "  all  oral 
or  written  declarations  which  can  explain  such  facts  may  be  received 
in  evidence."  (Same  Case,  4  Bing.  N.  C.  548.)  The  question  asked 
by  Baron  Parke  goes  to  the  root  of  the  whole  subject,  and  I  have  tried 
to  answer  it  at  length  in  the  text,  and  to  give  it  the  prominence  in  the 
statement  of  the  law  which  its  importance  deserves. 

Besides  the  cases  cited  in  the  Illustrations,  see  cases  as  to  statements 
accompanying  acts  collected  in  1  Ph.  Ev.  152-7,  and  T.  E.  ss.  521,  528. 
I  have  stated,  in  accordance  with  R.  v.  IValker,  2  M.  &  R.  212,  that  the 
particulars  of  a  complaint  are  not  admissible  ;  but  I  have  heard  Willes, 
}.,  rule  that  they  were  on  several  occasions,  vouching  Parke,  B.,  as  his 
authority.  R.  v.  Walker  was  decided  by  Parke,  B.,  in  1839.  Though 
he  excluded  the  statement,  he  said,  "The  sense  of  the  thing  certainly 
is,  that  the  jury  should  in  the  first  instance  know  the  nature  of  the 
complaint  made  by  the  prosecutrix,  and  all  that  she  then  said.  But 
for  reasons  which  I  never  could  understand,  the  usage  has  obtained 
that  the  prosecutrix's  counsel  should  only  inquire  generally  whether  a 
complaint  was  made  by  the  prosecutrix  of  the  prisoner's  conduct  to- 
wards her,  leaving  the  prisoner's  counsel  to  bring  before  the  jury  the 
particulars  of  that  complaint  by  cress-examination." 


Notes.]  THE  LAW  OF  EVIDENCE.  357 

Lord  Bramwell  was  in  the  habit,  during  the  latter  part  of  his  judi- 
cial career,  of  admitting  the  complaint  itself,  and  other  judges  have 
sometimes  done  the  same.  The  practice  is  certainly  in  accordance 
with  common  sense. 

NOTE  VI. 

(to  Articles  10,  n,  12.) 

Article  10  is  equivalent  to  the  maxim,  "Res  inter  alios  acta  alteri 
nocere  non  debet,"  which  is  explained  and  commented  on  in  Best,  ss. 
506-510  (though  I  should  scarcely  adopt  his  explanation  of  it),  and  by 
Broom  ('Maxims,'  954-968).  The  application  of  the  maxim  to  the 
Law  of  Evidence  is  obscure,  because  it  does  not  show  how  uncon- 
nected transactions  should  be  supposed  to  be  relevant  to  each  other. 
The  meaning  of  the  rule  must  be  inferred  from  the  exceptions  to  it 
stated  in  Articles  11  and  12,  which  show  that  it  means,  You  are  not  to 
draw  inferences  from  one  transaction  to  another  which  is  not  specifi- 
cally connected  with  it  merely  because  the  two  resemble  each  other. 
They  must  be  linked  together  by  the  chain  of  cause  and  effect  in 
some  assignable  way  before  you  can  draw  your  inference. 

In  its  literal  sense  the  maxim  also  fails,  because  it  is  not  true  that  a 
man  cannot  be  affected  by  transactions  to  which  he  is  not  a  party.  Il- 
lustrations to  the  contrary  are  obvious  and  innumerable  ;  bankruptcy, 
marriage,  indeed  every  transaction  of  life,  would  supply  them. 

The  exceptions  to  the  rule  given  in  Articles  1 1  and  12  are  general- 
ized from  the  cases  referred  to  in  the  Illustrations.  It  is  important  to 
observe  that  though  the  rule  is  expressed  shortly,  and  is  sparingly 
illustrated,  it  is  of  very  much  greater  importance  and  more  frequent 
application  than  the  exceptions.  It  is  indeed  one  of  the  most  char- 
acteristic and  distinctive  parts  of  the  English  Law  of  Evidence,  for 
this  is  the  rule  which  prevents  a  man  charged  with  a  particular  of- 
fence from  having  either  to  submit  to  imputations  which  in  many 
cases  would  be  fatal  to  him,  or  else  to  defend  every  action  of  his 
whole  life  in  order  to  explain  his  conduct  on  the  particular  occasion. 
A  statement  of  the  Law  of  Evidence  which  did  not  give  due  promi- 


358  A  DIGEST  OF  [Notes. 

nence  to  the  four  great  exclusive  rules  of  evidence  of  which  this  is 
one  would  neither  represent  the  existing  law  fairly  nor  in  my  judg- 
ment improve  it. 

The  exceptions  to  the  rule  apply  more  frequently  to  criminal  than 
to  civil  proceedings,  and  in  criminal  cases  the  courts  are  always 
disinclined  to  run  the  risk  of  prejudicing  the  prisoner  by  permitting 
matters  to  be  proved  which  tend  to  show  in  general  that  he  is  a 
bad  man,  and  so  likely  to  commit  a  crime.  In  each  of  the  cases  by 
which  Article  12  is  illustrated,  the  evidence  admitted  went  to  prove 
the  true  character  of  facts  which,  standing  alone,  might  naturally 
have  been  accounted  for  on  the  supposition  of  accident, — a  suppo- 
sition which  was  rebutted  by  the  repetition  of  similar  occurrences. 
In  the  case  of  R.  v.  Gray  (Illustration  (a)),  there  were  many  other 
circumstances  which  would  have  been  sufficient  to  prove  the 
prisoner's  guilt,  apart  from  the  previous  fires.  That  part  of  the 
evidence,  indeed,  seemed  to  have  little  influence  on  the  jury.  Gar- 
ner's Case  (Illustration  (c),  note)  was  an  extraordinary  one,  and  its 
result  was  in  every  way  unsatisfactory.  Some  account  of  this  case 
will  be  found  in  the  evidence  given  by  me  before  the  Commission 
on  Capital  Punishments  which  sat  in  1866. 

NOTE  VII. 
(to  Article  13.) 

As  to  presumptions  arising  from  the^course  of  office  or  business,  see 
Best,  s.  403;  1  Ph.  Ev.  480-4;  T.  E.  s.  147.  The  presumption, 
"  Omnia  esse  rite  acta,"  also  applies.  See  Broom's  '  Maxims,'  942  ; 
Best,  ss.  353-365  ;  T.  E.  s.  124,  &c. ;  1  Ph.  Ev.  480;  and  Stark.  757, 
763- 

NOTE  VIII. 
(to  Article  14.) 

The  unsatisfactory  character  of  the  definitions  usually  given  of 
hearsay  is  well  known.    See  Best,  s.  495;   T.  E.  ss.  507-510.    The 


Notes.]  THE  LAW  OF  EVIDENCE.  359 

definition  given  by  Mr.  Phillips  sufficiently  exemplifies  it :  "  When  a 
witness,  in  the  course  of  stating  what  has  come  under  the  cognizance 
of  his  own  senses  concerning  a  matter  in  dispute,  states  the  language 
of  others  which  he  has  heard,  or  produces  papers  which  he  identifies 
as  being  written  by  particular  individuals,  he  offers  what  is  called 
hearsay  evidence.  This  matter  may  sometimes  be  the  very  matter 
in  dispute,"  etc.  (1  Ph.  Ev.  143).  If  this  definition  is  correct,  the 
maxim,  "  Hearsay  is  no  evidence,"  can  only  be  saved  from  the 
charge  of  falsehood  by  exceptions  which  make  nonsense  of  it.  By 
attaching  to  it  the  meaning  given  in  the  text,  it  becomes  both  in- 
telligible and  true.  There  is  no  real  difference  between  the  fact  that 
a  man  was  heard  to  say  this  or  that,  and  any  other  fact.  Words 
spoken  may  convey  a  threat,  supply  the  motive  for  a  crime,  con- 
stitute a  contract,  amount  to  slander,  etc.,  etc. ;  and  if  relevant  or  in 
issue,  on  these  or  other  grounds,  they  must  be  proved,  like  other 
facts,  by  the  oath  of  some  one  who  heard  them.  The  important 
point  to  remember  about  them  is  that  bare  assertion  must  not, 
generally  speaking,  be  regarded  as  relevant  to  the  truth  of  the 
matter  asserted. 

The  doctrine  of  hearsay  evidence  was  fully  discussed  by  many  of 
the  judges  in  the  case  of  Doe  d.  Wright  v. Tatham  on  the  different 
occasions  when  that  case  came  before  the  court  (see  7  A.  &  E.  313- 
408 ;  4  Bing.  N.  C.  489-573).  The  question  was  whether  letters  ad- 
dressed to  a  deceased  testator,  implying  that  the  writers  thought  him 
sane,  but  not  acted  upon  by  him,  could  be  regarded  as  relevant  to 
his  sanity,  which  was  the  point  in  issue.  The  case  sets  the  strin- 
gency of  the  rule  against  hearsay  in  a  light  which  is  forcibly  illus- 
trated by  a  passage  in  the  judgment  of  Baron  Parke  (7  A.  &  E. 
385-8),  to  the  following  effect : — He  treats  the  letters  as  "  statements 
of  the  writers,  not  on  oath,  of  the  truth  of  the  matter  in  question, 
with  this  in  addition,  that  they  have  acted  upon  the  statements  on 
the  faith  of  their  being  true  by  their  sending  the  letters  to  the 
testator."  He  then  goes  through  a  variety  of  illustrations  which 
had  been  suggested  in  argument,  and  shows  that  in  no  case  ought 


360  A  DIGEST  OF  [Notes. 

such  statements  to  be  regarded  as  relevant  to  the  truth  of  the  matter 
stated,  even  when  the  circumstances  were  such  as  to  give  the 
strongest  possible  guarantee  that  such  statements  expressed  the 
honest  opinions  of  the  persons  who  made  them.  Amongst  others  he 
mentions  the  following: — "The  conduct  of  the  family  or  relations 
of  a  testator  taking  the  same  precautions  in  his  absence  as  if  he 
were  a  lunatic  ;  his  election  in  his  absence  to  some  high  and  re- 
sponsible office ;  the  conduct  of  a  physician  who  permitted  a  will  to 
be  executed  by  a  sick  testator ;  the  conduct  of  a  deceased  captain  on 
a  question  of  seaworthiness,  who,  after  examining  every  part  of  a 
vessel,  embarked  in  it  with  his  family;  all  these,  when  deliberate- 
ly considered,  are,  with  reference  to  the  matter  in  issue  in  each 
case,  mere  instances  of  hearsay  evidence, — mere  statements,  not 
on  oath,  but  implied  in  or  vouched  by  the  actual  conduct  of  persons 
by  whose  acts  the  litigant  parties  are  not  to  be  bound."  All  these 
matters  are  therefore  to  be  treated  as  irrelevant  to  the  questions 
at  issue. 

These  observations  make  the  rule  quite  distinct,  but  the  reason 
suggested  for  it  in  the  concluding  words  of  the  passage  extracted 
appears  to  be  weak.  That  passage  implies  that  hearsay  is  ex- 
cluded because  no  one  "ought  to  be  bound  by  the  act  of  a 
stranger."  That  no  one  shall  have  power  to  make  a  contract 
for  another,  or  commit  a  crime  for  which  that  other  is  to  be  re- 
sponsible, without  his  authority,  is  obviously  reasonable,  but  it  is 
not  so  plain  why  A's  conduct  should  not  furnish  good  grounds  for 
inference  as  to  B's  conduct,  though  it  was  not  authorized  by  B. 
The  importance  of  shortening  proceedings,  the  importance  of  com- 
pelling people  to  procure  the  best  evidence  they  can,  and  the 
importance  of  excluding  opportunities  of  fraud,  are  considerations 
which  probably  justify  the  rule  excluding  hearsay ;  but  Baron 
Parke's  illustrations  of  its  operation  clearly  prove  that  in  some 
cases  it  excludes  the  proof  of  matter  which,  but  for  it,  would  be 
regarded  not  only  as  relevant  to  particular  facts,  but  as  good  grounds 
for  believing  in  their  existence. 


Notes.]  THE   LAW  OF  EVIDENCE.  361 

NOTE  IX. 

(to  Article  15.) 

This  definition  is  intended  to  exclude  admissions  by  pleading,  ad- 
missions which,  if  so  pleaded,  amount  to  estoppels,  and  admissions 
made  for  the  purposes  of  a  cause  by  the  parties  or  their  solicitors. 
These  subjects  are  usually  treated  of  by  writers  on  evidence ;  but 
they  appear  to  me  to  belong  to  other  departments  of  the  law.  The 
subject,  including  the  matter  which  I  omit,  is  treated  at  length  in 
1  Ph.  Ev.  308-401,  and  T.  E.  ss.  653-788.  A  vast  variety  of  cases 
upon  admissions  of  every  sort  may  be  found  by  referring  to  Roscoe, 
N.  P.  (Index,  under  the  word  Admissions.)  It  may  perhaps  be  well 
to  observe  that  when  an  admission  is  contained  in  a  document,  or 
series  of  documents,  or  when  it  forms  part  of  a  discourse  or  conver- 
sation, so  much  and  no  more  of  the  document,  series  of  documents, 
discourse  or  conversation,  must  be  proved  as  is  necessary  for  the  full 
understanding  of  the  admission,  but  the  judge  or  jury  may  of  course 
attach  degrees  of  credit  to  different  parts  of  the  matter  proved. 
This  rule  is  elaborately  discussed  and  illustrated  by  Mr.  Taylor, 
ss.  655-665.  It  has  lost  much  of  the  importance  which  attached  to  it 
when  parties  to  actions  could  not  be  witnesses,  but  could  be  com- 
pelled to  make  admissions  by  bills  of  discovery.  The  ingenuity  of 
equity  draughtsmen  was  under  that  system  greatly  exercised  in 
drawing  answers  in  such  a  form  that  it  was  impossible  to  read  part 
of  them  without  reading  the  whole,  and  the  ingenuity  of  the  court 
was  at  least  as  much  exercised  in  countermining  their  ingenious 
devices.  The  power  of  administering  interrogatories,  and  of  ex- 
amining the  parties  directly,  has  made  great  changes  in  these  matters. 

NOTE  X. 

(to  Article  16.) 

As  to  admissions  by  parties,  see  Moriarty  v.  L.  C.  &*>  D.  Railway, 
L.  R.  5  Q.  B.  320,  per  Blackburn,  J. ;  Alner  v.  George,  1  Camp.  392; 
Bauerman  v.  Radenius,  7  T.  R.  663. 


362  A  DIGEST  OF  [Notes. 

As  to  admissions  by  parties  interested,  see  Spargo  v.  Brown,  9  B. 
&  C.  938. 

See  also  on  the  subject  of  this  Article  1  Ph.  Ev.  362-3,  369,  398  ; 
and  T.  E.  ss.  669-671,  685,  687,  719;  Roscoe,  N.  P.  71. 

As  to  admissions  by  privies,  see  1  Ph.  Ev.  394-7,  and  T.  E.  (from 
Greenleaf),  s.  712. 

NOTE  XI. 
(to  Article  17.) 

The  subject  of  the  relevancy  of  admissions  by  agents  is  rendered 
difficult  by  the  vast  variety  of  forms  which  agency  assumes,  and  by 
the  distinction  between  an  agent  for  the  purpose  of  making  a  state- 
ment and  an  agent  for  the  purpose  of  transacting  business.  If  A 
sends  a  message  by  B,  B's  words  in  delivering  it  are  in  effect  A's; 
but  B's  statements  in  relation  to  the  subject-matter  of  the  message 
have,  as  such,  no  special  value.  A's  own  statements  are  valuable  if 
they  suggest  an  inference  which  he  afterwards  contests  because  they 
are  against  his  interest ;  but  when  the  agent's  duty  is  done,  he  has  no 
special  interest  in  the  matter. 

The  principle  as  to  admissions  by  agents  is  stated  and  explained  by 
Sir  W.  Grant  in  Fairlie  v.  Hastings,  10  Ves.  126-7. 

NOTE  XII. 

(to  Article  18.) 

See  for  a  third  exception  (which  could  hardly  occur  now),  Clay  v. 
Langsloiv,  M.  &  M.  45. 

NOTE  XIII. 

(to  Article  19.) 

This  comes  very  near  to  the  case  of  arbitration.  See,  as  to  irregu- 
lar arbitrations  of  this  kind,  1  Ph.  Ev.  383  ;  T.  E.  ss.  689-90. 


Notes.]  THE  LAW  OF  EVIDENCE.  363 


NOTE  XIV. 

(to  Article  20.) 

See  more  on  this  subject  in  1  Ph.  Ev.  326-8 ;  T.  E.  ss.  702,  720-3 ; 
R.  N.  P.  66. 

NOTE  XV. 
(to  Article  22.) 

On  the  law  as  to  confessions,  see  1  Ph.  Ev.  401-423  ;  T.  E.  ss.  796- 
807,  and  s.  824;  Best,  ss.  551-574;  Roscoe,  Cr.  Ev.  38-56;  3  Russ. 
on  Crimes,  by  Greaves,  365-436.  Joy  on  Confessions  reduces  the 
law  on  the  subject  to  the  shape  of  13  propositions,  the  effect  of  all  of 
which  is  given  in  the  text  in  a  different  form. 

Many  cases  have  been  decided  as  to  the  language  which  amounts 
to  an  inducement  to  confess  (see  Roscoe,  Cr.  Ev.  40-43,  where  most 
of  them  are  collected).  They  are,  however,  for  practical  purposes, 
summed  up  in  J?,  v.  Baldry,  2  Den.  C.  C.  430,  which  is  the  authority 
for  the  last  lines  of  the  first  paragraph  of  this  Article. 

NOTE  XVI. 
(to  Article  23.) 

Cases  are  sometimes  cited  to  show  that  if  a  person  is  examined  as 
a  witness  on  oath,  his  deposition  cannot  be  used  in  evidence  against 
him  afterwards  (see  T.  E.  ss.  809  and  818,  n.  6  ;  also  3  Russ.  on  Crimes, 
by  Greaves,  407,  etc.).  All  these  cases,  however,  relate  to  the  exami- 
nations before  magistrates  of  persons  accused  of  crimes,  under  the 
statutes  which  were  in  force  before  11  &  12  Vict.  c.  42. 

These  statutes  authorized  the  examination  of  prisoners,  but  not 
their  examination  upon  oath.  The  11  &  12  Vict.  c.  42,  prescribes  the 
form  of  the  only  question  which  the  magistrate  can  put  to  a 
prisoner ;  and  since  that  enactment  it  is  scarcely  possible  to  suppose 
that  any  magistrate  would  put  a  prisoner  upon  his  oath.  The  cases 
may  therefore  be  regarded  as  obsolete. 


364  A  DIGEST  OF  [Notes. 


NOTE  XVII. 

(to  Article  26.) 

As  to  dying  declarations,  see  1  Ph.  Ev.  239-252  ;  T.  E.  ss.  644-652  ; 
Best,  s.  505  ;  Starkie,  32  &  38 ;  3  Russ.  Cri.  250-272  (perhaps  the 
fullest  collection  of  the  cases  on  the  subject) ;  Roscoe,  Cri.  Ev.  31,  32. 
R.  v.  Baker,  2  Mo.  &  Ro.  53,  is  a  curious  case  on  this  subject.  A 
and  B  were  both  poisoned  by  eating  the  same  cake.  C  was  tried 
for  poisoning  A.  B's  dying  declaration  that  she  made  the  cake 
in  C's  presence,  and  put  nothing  bad  in  it,  was  admitted  as  against 
C,  on  the  ground  that  the  whole  formed  one  transaction.  [See 
Brown  v.  Comm.,  73  Pa.  321  ;  State  v.  West/alt,  49  la.  328  ;  State  v. 
Bohan,  15  Kan.  407.] 

NOTE  XVIII. 
(to  Article  27.) 

1  Ph.  Ev.  280-300;  T.  E.  ss.  630-643;  Best,  501;  R.  N.  P.  63; 
and  see  note  to  Price  v.  Lord  Torrington,  2  S.  L.  C.  328.  The  last 
case  on  the  subject  is  Massey  v.  Allen,  13  Ch.  D.  558. 

NOTE  XIX. 
(to  Article  28.) 

The  best  statement  of  the  law  upon  this  subject  will  be  found  in 
Higham  v.  Ridgway,  and  the  note  thereto,  2  S.  L.  C.  318.  See  also 
1  Ph.  Ev.  252-280 ;  T.  E.  ss.  602-629 ;  Best,  s.  500 ;  R.  N.  P.  584. 

A  class  of  cases  exists  which  I  have  not  put  into  the  form  of  an 
Article,  partly  because  their  occurrence  since  the  commutation  of 
tithes  must  be  very  rare,  and  partly  because  I  find  a  great  difficulty 
in  understanding  the  place  which  the  rule  established  by  them 
ought  to  occupy  in  a  systematic  statement  of  the  law.  They  are 
cases  which  lay  down  the  rule  that  statements  as   to  the  receipts 


Notes.]  THE  LAW  OF  EVIDENCE.  365 

of  tithes  and  moduses  made  by  deceased  rectors  and  other  ecclesi- 
astical corporations  sole  are  admissible  in  favor  of  their  successors. 
There  is  no  doubt  as  to  the  rule  (see,  in  particular,  Short  v.  Lee,  2 
Jac.  &  Wal.  464;  and  Young  v.  Clare  Hall,  17  Q.  B.  537).  The 
difficulty  is  to  see  why  it  was  ever  regarded  as  an  exception.  It 
.falls  directly  within  the  principle  stated  in  the  text,  and  would 
appear  to  be  an  obvious  illustration  of  it ;  but  in  many  cases  it  has 
been  declared  to  be  anomalous,  inasmuch  as  it  enables  a  predecessor 
in  title  to  make  evidence  in  favor  of  his  successor.  This  suggests 
that  Article  28  ought  to  be  limited  by  a  proviso  that  a  declaration 
against  interest  is  not  relevant  if  it  was  made  by  a  predecessor  in 
title  of  the  person  who  seeks  to  prove  it,  unless  it  is  a  declaration 
by  an  ecclesiastical  corporation  sole,  or  a  member  of  an  ecclesiastical 
corporation  aggregate  (see  Short  v.  Lee),  as  to  the  receipt  of  a 
tithe  or  modus. 

Some  countenance  for  such  a  proviso  may  be  found  in  the  terms 
in  which  Bayley,  J.,  states  the  rule  in  Gleadow  v.  Atkin,  and  in  the 
circumstance  that  when  it  first  obtained  currency  the  parties  to  an 
action  were  not  competent  witnesses.  But  the  rule  as  to  the  in- 
dorsement of  notes,  bonds,  etc.,  is  distinctly  opposed  to  such  a  view. 

NOTE  XX. 
(to  Article  30.) 

Upon  this  subject,  besides  the  authorities  in  the  text,  see  1  Ph.  Ev. 
169-197;  T.  E.  ss.  543-569;  Best,  s.  497;  R.  N.  P.  50-54  (the  latest 
collection  of  cases). 

A  great  number  of  cases  have  been  decided  as  to  the  particular 
documents,  etc.,  which  fall  within  the  rule  given  in  the  text.  They 
are  collected  in  the  works  referred  to  above,  but  they  appear  to  me 
merely  to  illustrate  one  or  other  of  the  branches  of  the  rule,  and  not 
to  extend  or  vary  it.  An  award,  e.  g.,  is  not  within  the  last  branch  of 
Illustration  {b),  because  it  ''is  but  the  opinion  of  the  arbitrator,  not 
upon  his  own  knowledge"  {Evans  v.  Rees,  10  A.  &  E.  155) ;  but  the 


366  A  DIGEST  OF  [Notes. 

detailed  application  of  such  a  rule  as  this  is  better  learned  by  experi- 
ence, applied  to  a  firm  grasp  of  principle,  than  by  an  attempt  to 
recollect  innumerable  cases. 

The  case  of  Weeks  v.  Sparke  is  remarkable  for  the  light  it  throws 
on  the  history  of  the  Law  of  Evidence.  It  was  decided  in  1813,  and 
contains  inter  alia  the  following  curious  remarks  by  Lord  Ellen- 
borough.  "It  is  stated  to  be  the  habit  and  practice  of  different  cir- 
cuits to  admit  this  species  of  evidence  upon  such  a  question  as  the 
present.  That  certainly  cannot  make  the  law,  but  it  shows  at  least, 
from  the  established  practice  of  a  large  branch  of  the  profession,  and 
of  the  judges  who  have  presided  at  various  times  on  those  circuits, 
what  has  been  the  prevailing  opinion  upon  this  subject  amongst  so 
large  a  class  of  persons  interested  in  the  due  administration  of  the 
law.  It  is  stated  to  have  been  the  practice  both  of  the  Northern  and 
Western  Circuits.  My  learned  predecessor,  Lord  Kenyon,  certainly 
held  a  different  opinion,  the  practice  of  the  Oxford  Circuit,  of  which 
he  was  a  member,  being  different."  So  in  the  Berkeley  Peerage  Case, 
Lord  Eldon  said,  "when  it  was  proposed  to  read  this  deposition  as  a 
declaration,  the  Attorney-General  (Sir  Vicary  Gibbs)  flatly  objected  to 
it.  He  spoke  quite  right  as  a  Western  Circuiteer,  of  what  he  had 
often  heard  laid  down  in  the  West,  and  never  heard  doubted"  (4 
Camp.  419,  A.  D.  181 1).  This  shows  how  very  modern  much  of  the 
Law  of  Evidence  is.  Le  Blanc,  J.,  in  Weeks  v.  Sparke,  says,  that  a 
foundation  must  be  laid  for  evidence  of  this  sort  "  by  acts  of  enjoy  - 
nent  within  living  memory."  This  seems  superfluous,  as  no  jury 
would  ever  find  that  a  public  right  of  way  existed,  which  had  not 
been  used  in  living  memory,  on  the  strength  of  a  report  that  some 
deceased  person  had  said  that  there  once  was  such  a  right. 

NOTE  XXI. 
(to  Article  31.) 

See  1  Ph.  Ev.  197-233  ;  T.  E.  ss.  571-592  ;  Best,  633  ;  R.  N.  P.  49-50. 
The  Berkeley  Peerage  Case  (Answers  of  the  Judges  to  the  House  of 


Notes.]  THE  LAW  OF  EVIDENCE.  367 

Lords),  4  Camp.  401,  which  established  the  third  condition  given  in 
the  text ;  and  Davies  v.  Lowndes,  6  M.  &  G.  471  (see  more  particu- 
larly pp.  525-9,  in  which  the  question  of  family  pedigrees  is  fully  dis- 
cussed) are  specially  important  on  this  subject. 

As  to  declarations  as  to  the  place  of  births,  etc.,  see  Shields  v 
Boucher,  1  De  G.  &  S.  49-58. 

NOTE  XXII. 
(to  Article  32.) 

See  also  1  Ph.  Ev.  306-8 ;  T.  E.  ss.  434-447 ;  Buller,  N.  P.  238,  and 
following. 

In  reference  to  this  subject  it  has  been  asked  whether  this  principle 
applies  indiscriminately  to  all  kinds  of  evidence  in  all  cases.  Suppose 
a  man  were  to  be  tried  twice  upon  the  same  facts — e.g.,  for  robbery 
after  an  acquittal  for  murder,  and  suppose  that  in  the  interval  be- 
tween the  two  trials  an  important  witness  who  had  not  been  called 
before  the  magistrates  were  to  die,  might  his  evidence  be  read  on  the 
second  trial  from  a  reporter's  short-hand  notes  ?  This  case  might 
easily  have  occurred  if  Orton  had  been  put  on  his  trial  for  forgery  as 
well  as  for  perjury.  I  should  be  disposed  to  think  on  principle  that 
such  evidence  would  be  admissible,  though  I  cannot  cite  any  author- 
ity on  the  subject.  The  common-law  principle  on  which  depositions 
taken  before  magistrates  and  in  Chancery  proceedings  were  admitted 
seems  to  cover  the  case. 

NOTE  XXIII. 

(to  Articles  39-47.) 

The  law  relating  to  the  relevancy  of  judgments  of  Courts  of  Justice 
to  the  existence  of  the  matters  which  they  assert  is  made  to  appear 
extremely  complicated  by  the  manner  in  which  it  is  usually  dealt 
with.  The  method  commonly  employed  is  to  mix  up  the  question 
of  the  effect  of  judgments  of  various  kinds  with  that  of  their  admis- 


368  A  DIGEST  OF  [Notes. 

sibility,  subjects  which  appear  to  belong  to  different  branches  of  the 
law. 

Thus  the  subject,  as  commonly  treated,  introduces  into  the  Law  of 
Evidence  an  attempt  to  distinguish  between  judgments  in  rem,  and 
judgments  in  personam  or  inter  partes,  (terms  adapted  from,  but  not 
belonging  to,  Roman  law,  and  never  clearly  defined  in  reference  to 
our  own  or  any  other  system);  also  the  question  of  the  effect  of  the 
pleas  of  autrefois  acquit,  and  aictrefois  convict,  which  clearly  belong 
not  to  evidence,  but  to  criminal  procedure  ;  the  question  of  estoppels, 
which  belongs  rather  to  the  law  of  pleading  than  to  that  of  evidence; 
and  the  question  of  the  effect  given  to  the  judgments  of  foreign 
Courts  of  Justice,  which  would  seem  more  properly  to  belong  to  pri- 
vate international  law.  These  and  other  matters  are  treated  of  at  great 
length  in  2  Ph.  Ev.  1-78,  and  T.  E.  ss.  1480-1534,  and  in  the  note  to 
the  Duchess  of  Kingston's  Case  in  2  S.  L.  C.  777-880.  Best  (ss.  588- 
595)  treats  the  matter  more  concisely. 

The  text  is  confined  to  as  complete  a  statement  as  I  could  make  of 
the  principles  which  regulate  the  relevancy  of  judgments  considered 
as  declarations  proving  the  facts  which  they  assert,  whatever  may  be 
the  effect  or  the  use  to  be  made  of  those  facts  when  proved.  Thus  the 
leading  principle  stated  in  Article  40  is  equally  true  of  all  judgments 
alike.  Every  judgment,  whether  it  be  in  rem  or  inter  partes,  must  and 
does  prove  what  it  actually  effects,  though  the  effects  of  different  sorts 
of  judgments  differ  as  widely  as  the  effects  of  different  sorts  of  deeds. 

There  has  been  much  controversy  as  to  the  extent  to  which  effect 
ought  to  be  given  to  the  judgments  of  foreign  courts  in  this  country, 
and  as  to  the  cases  in  which  the  courts  will  refuse  to  act  upon  them ; 
but  as  a  mere  question  of  evidence,  they  do  not  differ  from  English 
judgments.  The  cases  on  foreign  judgments  are  collected  in  the  note 
to  the  Duchess  of  Kingston  s  Case,  2  S.  L.  C.  813-845.  There  is  a  con- 
venient list  of  the  cases  in  R.  N.  P.  201-3.  The  cases  of  Godardv. 
Gray,  L.  R.  6  Q.  B.  139,  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App.  414, 
[and  Abouloffv.  Oppenheimer,  10  Q.  B.  D.  295],  are  the  latest  leading 
cases  on  the  subject. 


Notes.]  THE  LAW  OF  EVIDENCE.  369 


NOTE  XXIV. 

(to  Chapter  V.) 

On  evidence  of  opinions,  see  1  Ph.  Ev.  520-8;  T.  E.  ss.  1273-81; 
Best,  ss.  511-17;  R.  N.  P.  193-4.  The  leading  case  on  the  subject  is 
Doe  v.  Tatham,  7  A.  &  E.  313;  and  4  Bing.  N.  C.  489,  referred  to 
above  in  Note  VIII.  Baron  Parke,  in  the  extracts  there  given,  treats 
an  expression  of  opinion  as  hearsay,  that  is,  as  a  statement  affirming 
the  truth  of  the  subject-matter  of  the  opinion. 

NOTE  XXV. 

(to  Chapter  VI.) 

See  1  Ph.  Ev.  502-8 ;  T.  E.  ss.  325-336 ;  Best,  ss.  257-263 ;  3  Russ. 
Cri,  299-304.  The  subject  is  considered  at  length  in  R.  v.  Row  ton,  1 
L.  &  C.  520.  One  consequence  of  the  view  of  the  subject  taken  in 
that  case  is  that  a  witness  may  with  perfect  truth  swear  that  a  man, 
who  to  his  knowledge  has  been  a  receiver  of  stolen  goods  for  years, 
has  an  excellent  character  for  honesty,  if  he  has  had  the  good  luck  to 
conceal  his  crimes  from  his  neighbors.  It  is  the  essence  of  successful 
hypocrisy  to  combine  a  good  reputation  with  a  bad  disposition,  and 
according  to  R.  v.  Rowton,  the  reputation  is  the  important  matter. 
The  case  is  seldom  if  ever  acted  on  in  practice.  The  question  always 
put  to  a  witness  to  character  is,  What  is  the  prisoner's  character  for 
honesty,  morality,  or  humanity  ?  as  the  case  may  be ;  nor  is  the  wit- 
ness ever  warned  that  he  is  to  confine  his  evidence  to  the  prisoner's 
reputation.  It  would  be  no  easy  matter  to  make  the  common  run  of 
witnesses  understand  the  distinction. 

NOTE  XXVI. 

(to  Article  58.) 

The  list  of  matters  judicially  noticed  in  this  Article  is  not  intended 
to  be  quite  complete.     It  is  compiled  from  1  Ph.  Ev.  458-67,  and 


370  A  DIGEST  OF  [Notes. 

T.  E.  ss.  4-20,  where  the  subject  is  gone  into  more  minutely.  A  con- 
venient list  is  also  given  in  R.  N.  P.  ss.  88-92,  which  is  much  to  the 
same  effect.  It  may  be  doubted  whether  an  absolutely  complete  list 
could  be  formed,  as  it  is  practically  impossible  to  enumerate  every- 
thing which  is  so  notorious  in  itself,  or  so  distinctly  recorded  by  pub- 
lic authority,  that  it  would  be  superfluous  to  prove  it.  Paragraph  (1) 
is  drawn  with  reference  to  the  fusion  of  Law,  Equity,  Admiralty,  and 
Testamentary  Jurisdiction  effected  by  the  Judicature  Act. 

NOTE  XXVII. 

(to  Article  62.) 

Owing  to  the  ambiguity  of  the  word  "evidence,"  which  is  some- 
times used  to  signify  the  effect  of  a  fact  when  proved,  and  sometimes 
to  signify  the  testimony  by  which  a  fact  is  proved,  the  expression 
"hearsay  is  no  evidence"  has  many  meanings.  Its  common  and  most 
important  meaning  is  the  one  given  in  Article  14,  which  might  be 
otherwise  expressed  by  saying  that  the  connection  between  events, 
and  reports  that  they  have  happened,  is  generally  so  remote  that  it  is 
expedient  to  regard  the  existence  of  the  reports  as  irrelevant  to  the 
occurrence  of  the  events,  except  in  excepted  cases.  Article  62  ex- 
presses the  same  thing  from  a  different  point  of  view,  and  is  subject 
to  no  exceptions  whatever.  It  asserts  that  whatever  may  be  the  rela- 
tion of  a  fact  to  be  proved  to  the  fact  in  issue,  it  must,  if  proved  by 
oral  evidence,  be  proved  by  direct  evidence.  For  instance,  if  it  were 
to  be  proved  under  Article  31  that  A,  who  died  fifty  years  ago,  said 
that  he  had  heard  from  his  father  B,  who  died  100  years  ago,  that  A's 
grandfather  C  had  told  B  that  D,  C's  elder  brother,  died  without  issue, 
A's  statement  must  be  proved  by  some  one  who,  with  his  own  ears, 
heard  him  make  it.  If  (as  in  the  case  of  verbal  slander)  the  speaking 
of  the  words  was  the  very  point  in  issue,  they  must  be  proved  in  pre- 
cisely the  same  way.  Cases  in  which  evidence  is  given  of  character 
and  general  opinion  may  perhaps  seem  to  be  exceptions  to  this  rule, 
but  they  are  not  so. .  When  a  man  swears  that  another  has  a  good 


Notes.]  THE  LAW  OF  EVIDENCE.  371 

character,  he  means  that  he  has  heard  many  people,  though  he  does 
not  particularly  recollect  what  people,  speak  well  of  him,  though  he 
does  not  recollect  all  that  they  said. 

NOTE  XXVIII. 
(to  Articles  66  &  67.) 

This  is  probably  the  most  ancient,  and  is,  as  far  as  it  extends,  the 
most  inflexible  of  all  the  rules  of  evidence.  The  following  character- 
istic observations  by  Lord  Ellenborough  occur  in  i?.  v \  Harringworth, 
4  M.  &  S.  353  : 

"The  rule,  therefore,  is  universal  that  you  must  first  call  the  sub- 
scribing witness ;  and  it  is  not  to  be  varied  in  each  particular  case 
by  trying  whether,  in  its  application,  it  may  not  be  productive  of 
some  inconvenience,  for  then  there  would  be  no  such  thing  as  a  gen- 
eral rule.  A  lawyer  who  is  well  stored  with  these  rules  would  be  no 
better  than  any  otJier  man  that  is  without  them,  if  by  mere  force  of 
speculative  reasoning  it  might  be  shown  that  the  application  of  such 
and  such  a  rule  would  be  productive  of  such  and  such  an  incon- 
venience, and  therefore  ought  not  to  prevail ;  but  if  any  general  rule 
ought  to  prevail,  this  is  certainly  one  that  is  as  fixed,  formal,  and 
universal  as  any  that  can  be  stated  in  a  Court  of  Justice." 

In  IVhyman  v.  Garth,  8  Ex.  807,  Pollock,  C.  B.,  said,  "The  par- 
ties are  supposed  to  have  agreed  inter  se  that  the  deed  shall  not  be 
given  in  evidence  without  his"  (the  attesting  witness)  "being  called 
to  depose  to  the  circumstances  attending  its  execution." 

In  very  ancient  times,  when  the  jury  were  witnesses  as  to  matter  of 
tact,  the  attesting  witnesses  to  deeds  (if  a  deed  came  in  question^ 
would  seem  to  have  been  summoned  with,  and  to  have  acted  as  a 
sort  of  assessors  to,  the  jury.  See  as  to  this,  Bracton,  fo.  38  a  ;  For- 
tescue  de  Laudibus,  ch.  xxxii.  with  Selden's  note  ;  and  cases  collected 
from  the  Year-books  in  Brooke's  Abridgement,  tit.  Testmoignes. 

For  the  present  rule,  and  the  exceptions  to  it,  see  1  Ph.  Ev.  242- 
261 ;  T.  E.  ss.  1637-42  ;  R.  N.  P.  147-50  ;  Best,  ss.  220,  etc. 

The  old  rule  which  applied  to  all  attested  documents  was  restricted 


372  A  DIGEST  OF  [Notes. 

to  those  required  to  be  attested  by  law,  by  17  &  18  Vict.  c.  125,  s.  26, 
and  28  &  29  Vict.  c.  18,  ss.  1  &  7. 

NOTE  XXIX. 
(to  Article  72.) 

For  these  rules  in  greater  detail,  see  1  Ph.  Ev.  452-3,  and  2  Ph.  Ev, 
272-289 ;  T.  E.  ss.  419-426 ;  R.  N.  P.  8  &  9. 

The  principle  of  all  the  rules  is  fully  explained  in  the  cases  cited  in 
the  footnotes,  more  particularly  in  Divyer  v.  Collins,  7  Ex.  639.  In 
that  case  it  is  held  that  the  object  of  notice  to  produce  is  "to  enable 
the  party  to  have  the  document  in  court,  and  if  he  does  not,  to  enable 
his  opponent  to  give  parol  evidence  ...  to  exclude  the  argument 
that  the  opponent  has  not  taken  all  reasonable  means  to  procure  the 
original,  which  he  must  do  before  he  can  be  permitted  to  make  use  of 
secondary  evidence"  (p.  647-8). 

NOTE  XXX. 
(to  Article  75.) 

Mr.  Phillips  (ii.  196)  says,  that  upon  a  plea  of  mil  tiel  record,  the 
original  record  must  be  produced  if  it  is  in  the  same  court. 

Mr.  Taylor  (s.  1379)  says,  that  upon  prosecutions  for  perjury  as- 
signed upon  any  judicial  document  the  original  must  be  produced. 
The  authorities  given  seem  to  me  hardly  to  bear  out  either  of  these 
statements.  They  show  that  the  production  of  the  original  in  such 
cases  is  the  usual  course,  but  not,  I  think,  that  it  is  necessary.  The 
case  of  Lady  Dartmouth  v.  Roberts,  16  Ea.  334,  is  too  wide  for  the 
proposition  for  which  it  is  cited.  The  matter,  however,  is  of  little 
practical  importance. 

NOTE  XXXI. 

(to  Articles  77  &  78.) 

The  learning  as  to  exemplifications  and  office-copies  will  be  found 
in  the  following  authorities  :  Gilbert's  Law  of  Evidence,  1 1-20 ;  Buller, 


Notes.]  THE  LAW  OF  EVIDENCE.  373 

Nisi  Prius,  228,  and  following ;  Starkie,  256-66  (fully  and  very  con- 
veniently);  2  Ph.  Ev.  196-200;  T.  E.  ss.  1380-4;  R.  N.  P.  1 12-15. 
The  second  paragraph  of  Article  77  is  founded  on  Appletoti  v.  Bray- 
brook,  6  M.  &  S.  39. 

As  to  exemplifications  not  under  the  Great  Seal,  it  is  remarkable 
that  the  Judicature  Acts  give  no  Seal  to  the  Supreme  Court,  or  the 
High  Court,  or  any  of  its  divisions. 

NOTE  XXXII. 

(to  Article  90.) 

The  distinction  between  this  and  the  following  Article  is,  that  Arti- 
cle 90  defines  the  cases  in  which  documents  are  exclusive  evidence 
of  the  transactions  which  they  embody,  while  Article  91  deals  with  the 
interpretation  of  documents  by  oral  evidence.  The  two  subjects  are 
so  closely  connected  together,  that  they  are  not  usually  treated  as 
distinct ;  but  they  are  so  in  fact.  A  and  B  make  a  contract  of  marine 
insurance  on  goods,  and  reduce  it  to  writing.  They  verbally  agree 
that  the  goods  are  not  to  be  shipped  in  a  particular  ship,  though  the 
contract  makes  no  such  reservation.  They  leave  unnoticed  a  con- 
dition usually  understood  in  the  business  of  insurance,  and  they  make 
use  of  a  technical  expression,  the  meaning  of  which  is  not  commonly 
known.  The  law  does  not  permit  oral  evidence  to  be  given  of  the 
exception  as  to  the  particular  ship.  It  does  permit  oral  evidence  to 
be  given  to  annex  the  condition  ;  and  thus  far  it  decides  that  for  one 
purpose  the  document  shall,  and  that  for  another  it  shall  not,  be  re- 
garded as  exclusive  evidence  of  the  terms  of  the  actual  agreement 
between  the  parties.  It  also  allows  the  technical  term  to  be  ex- 
plained, and  in  doing  so  it  interprets  the  meaning  of  the  document 
itself.  The  two  operations  are  obviously  different,  and  their  proper 
performance  depends  upon  different  principles.  The  first  depends 
upon  the  principle  that  the  object  of  reducing  transactions  to  a  writ- 
ten form  is  to  take  security  against  bad  faith  or  bad  memory,  for 
which  reason  a  writing  is  presumed  as  a  general  rule  to  embody  the 


374  A  DIGEST  OF  [Notes. 

final  and  considered  determination  of  the  parties  to  it.  The  second 
depends  on  a  consideration  of  the  imperfections  of  language,  and  of 
the  inadequate  manner  in  which  people  adjust  their  words  to  the 
facts  to  which  they  apply. 

The  rules  themselves  are  not,  I  think,  difficult  either  to  state,  to  un- 
derstand, or  to  remember ;  but  they  are  by  no  means  easy  to  apply, 
inasmuch  as  from  the  nature  of  the  case  an  enormous  number  of  trans- 
actions fall  close  on  one  side  or  the  other  of  most  of  them.  Hence 
the  exposition  of  these  rules,  and  the  abridgment  of  all  the  illus- 
trations of  them  which  have  occurred  in  practice,  occupy  a  very 
large  space  in  the  different  text  writers.  They  will  be  found  in  2 
Ph.  Ev.  332-424;  T.  E.  ss.  1031-1110;  Stark.  648-731;  Best  (very 
shortly  and  imperfectly),  ss.  226-229;  R.  N.  P.  (an  immense  list  of 
cases),  17-35. 

As  to  paragraph  (4),  which  is  founded  on  the  case  of  Goss  v.  Lord 
Nugent,  it  is  to  be  observed  that  the  paragraph  is  purposely  so  drawn 
as  not  to  touch  the  question  of  the  effect  of  the  Statute  of  Frauds.  It 
was  held  in  effect  in  Goss  v.  Lord  Nugent  that  if  by  reason  of  the 
Statute  of  Frauds  the  substituted  contract  could  not  be  enforced,  it 
would  not  have  the  effect  of  waiving  part  of  the  original  contract; 
but  it  seems  the  better  opinion  that  a  verbal  rescission  of  a  contract 
good  under  the  Statute  of  Frauds  would  be  good.  See  Noble  v.  Ward, 
L.  R.  2  Ex.  135,  and  Pollock  on  Contracts,  411,  note  (6).  A  contract 
by  deed  can  be  released  only  by  deed,  and  this  case  also  would  fall 
within  the  proviso  to  paragraph  (4). 

The  cases  given  in  the  Illustrations  will  be  found  to  mark  sufficiently 
the  various  rules  stated.  As  to  paragraph  (5)  a  very  large  collection 
of  cases  will  be  found  in  the  notes  to  Wigglesworth  v.  Dallison,  1  S. 
L.  C.  598-628,  but  the  consideration  of  them  appears  to  belong  rather 
to  mercantile  law  than  to  the  Law  of  Evidence.  For  instance,  the 
question  what  stipulations  are  consistent  with,  and  what  are  contra- 
dictory to,  the  contract  formed  by  subscribing  a  bill  of  exchange,  or 
the  contract  between  an  insurer  and  an  underwriter,  are  not  questions 
of  the  Law  of  Evidence. 


Notes.]  THE  LAW  OF  EVIDENCE.  375 


NOTE  XXXIII. 
(to  Article  91.) 

Perhaps  the  subject-matter  of  this  Article  does  not  fall  strictly 
within  the  Law  of  Evidence,  but  it  is  generally  considered  to  do  so  ; 
and  as  it  has  always  been  treated  as  a  branch  of  the  subject,  I  have 
thought  it  best  to  deal  with  it. 

The  general  authorities  for  the  propositions  in  the  text  are  the  same 
as  those  specified  in  the  last  note  ;  but  the  great  authority  on  the  sub- 
ject is  the  work  of  Vice-Chancellor  Wigram  on  Extrinsic  Evidence. 
Article  91,  indeed,  will  be  found,  on  examination,  to  differ  from  the 
six  propositions  of  Vice-Chancellor  Wigram  only  in  its  arrangement 
and  form  of  expression,  and  in  the  fact  that  it  is  not  restricted  to  wills. 
It  will,  I  think,  be  found,  on  examination,  that  every  case  cited  by  the 
Vice-Chancellor  might  be  used  as  an  illustration  of  one  or  the  other  of 
the  propositions  contained  in  it. 

It  is  difficult  to  justify  the  line  drawn  between  the  rule  as  to  cases  in 
which  evidence  of  expressions  of  intention  is  admitted  and  cases  in 
which  it  is  rejected  (paragraph  7,  Illustrations  (k),  (/),  and  paragraph  8, 
Illustration  («)).  When  placed  side  by  side,  such  cases  as  Doe  v.His- 
cocks  (Illustration  (/£))  and  Doe  v.  Needs  (Illustration  («))  produce  a 
singular  effect.  The  vagueness  of  the  distinction  between  them  is 
indicated  by  the  case  of  Charter  v.  Charter,  L.  R.  2  P.  &  D.  315.-  In 
this  case  the  testator  Forster  Charter  appointed  "my  son  Forster 
Charter"  his  executor.  He  had  two  sons,  William  Forster  Charter 
and  Charles  Charter,  and  many  circumstances  pointed  to  the  conclu- 
sion that  the  person  whom  the  testator  wished  to  be  his  executor  was 
Charles  Charter.  Lord  Penzance  not  only  admitted  evidence  of  all  the 
circumstances  of  the  case,  but  expressed  an  opinion  (p.  319)  that,  if  it 
were  necessary,  evidence  of  declarations  of  intention  might  be  admitted 
under  the  rule  laid  down  by  Lord  Abinger  in  Hiscocks  v.  Hiscocks,  be- 
cause part  of  the  language  employed  ("  my  son Charter  ")  applied 

correctly  to  each  son,  and  the  remainder,  "  Forster,"  to  neither.  This 
mode  of  construing  the  rule  would  admit  evidence  of  declarations  of 


376  A  DIGEST  OF  [Notes. 

intention  both  in  cases  falling  under  paragraph  8,  and  in  cases  falling 
under  paragraph  7,  which  is  inconsistent  not  only  with  the  reasoning 
in  the  judgment,  but  with  the  actual  decision  in  Doe  v.  Hiscocks.  It  is 
also  inconsistent  with  the  principles  of  the  judgment  in  the  later  case 
of  Allgoodv.  Blake,  L.  R.  8  Ex.  160,  where  the  rule  is  stated  by  Black- 
burn, J.,  as  follows: — "In  construing  a  will,  the  court  is  entitled  to 
put  itself  in  the  position  of  the  testator,  and  to  consider  all  material 
facts  and  circumstances  known  to  the  testator  with  reference  to  which 
he  is  to  be  taken  to  have  used  the  words  in  the  will,  and  then  to  de- 
clare what  is  the  intention  evidenced  by  the  words  used  with  reference 
to  those  facts  and  circumstances  which  were  (or  ought  to  have  been)  in 
the  mind  of  the  testator  when  he  used  those  words."  After  quoting 
Wigram  on  Extrinsic  Evidence,  and  Doe  v.  Hiscocks,  he  adds :  "  No 
doubt,  in  many  cases  the  testator  has,  for  the  moment,  forgotten  or 
overlooked  the  material  facts  and  circumstances  which  he  well  knew. 
And  the  consequence  sometimes  is  that  he  uses  words  which  express 
an  intention  which  he  would  not  have  wished  to  express,  and  would 
have  altered  if  he  had  been  reminded  of  the  facts  and  circumstances. 
But  the  court  is  to  construe  the  will  as  made  by  the  testator,  not  to 
make  a  will  for  him ;  and  therefore  it  is  bound  to  execute  his  ex- 
pressed intention,  even  if  there  is  great  reason  to  believe  that  he  has 
by  blunder  expressed  what  he  did  not  mean."  The  part  of  Lord 
Penzance's  judgment  above  referred  to  was  unanimously  overruled  in 
the  House  of  Lords  ;  though  the  court,  being  equally  divided  as  to 
the  construction  of  the  will,  refused  to  reverse  the  judgment,  upon 
the  principle  " pro?snmitur pro  negante." 

Conclusive  as  the  authorities  upon  the  subject  are,  it  may  not,  per- 
haps, be  presumptuous  to  express  a  doubt  whether  the  conflict  be- 
tween a  natural  wish  to  fulfill  the  intention  which  the  testator  would 
have  formed  if  he  had  recollected  all  the  circumstances  of  the  case; 
the  wish  to  avoid  the  evil  of  permitting  written  instruments  to  be 
varied  by  oral  evidence  ;  and  the  wish  to  give  effect  to  wills,  has  not 
produced  in  practice  an  illogical  compromise.  The  strictly  logical 
course,  I  think,  would  be  either  to  admit  declarations  of  intention 


Notes.]  THE  LAW  OF  EVIDENCE.  377 

both  in  cases  falling  under  paragraph  7,  and  in  cases  falling  under 
paragraph  8,  or  to  exclude  such  evidence  in  both  classes  of  cases,  and 
to  hold  void  for  uncertainty  every  bequest  or  devise  which  was  shown 
to  be  uncertain  in  its  application  to  facts.  Such  a  decision  as  that  in 
Stringer  v.  Gardiner,  the  result  of  which  was  to  give  a  legacy  to  a 
person  whom  the  testator  had  no  wish  to  benefit,  and  who  was  not 
either  named  or  described  in  his  will,  appears  to  me  to  be  a  practical 
refutation  of  the  principle  or  rule  on  which  it  is  based. 

Of  course  every  document,  whatever,  must  to  some  extent  be  inter- 
preted by  circumstances.  However  accurate  and  detailed  a  descrip- 
tion of  things  and  persons  may  be,  oral  evidence  is  always  wanted  to 
show  that  persons  and  things  answering  the  description  exist ;  and 
therefore  in  every  case  whatever,  every  fact  must  be  allowed  to  be 
proved  to  which  the  document  does,  or  probably  may,  refer;  but  if 
more  evidence  than  this  is  admitted,  if  the  court  may  look  at  circum- 
stances which  affect  the  probability  that  the  testator  would  form  this 
intention  or  that,  why  should  declarations  of  intention  be  excluded  ? 
If  the  question  is,  "  What  did  the  testator  say  ? "  why  should  the  court 
look  at  the  circumstances  that  he  lived  with  Charles,  and  was  on  bad 
terms  with  William  ?  How  can  any  amount  of  evidence  to  show  that 
the  testator  intended  to  write  "  Charles  "  show  that  what  he  did  write 
means  "Charles"?  To  say  that  "  Forster  "  means  "Charles"  is  like 
saying  that  "  two  "  means  "  three."  If  the  question  is,  "  What  did  the 
testator  wish  ?  "  why  should  the  court  refuse  to  look  at  his  declarations 
of  intention  ?  And  what  third  question  can  be  asked  ?  The  only  one 
which  can  be  suggested  is,  "  What  would  the  testator  have  meant  if 
he  had  deliberately  used  unmeaning  words?"  The  only  answer  to 
this  would  be,  he  would  have  had  no  meaning,  and  would  have  said 
nothing,  and  his  bequest  should  be  pro  tanto  void. 

NOTE  XXXIV. 

(to  Article  92.) 

See  2  Ph.  Ev.  364;  Stark.  726;  T.  E.  (from  Greenleaf),  s.  1051. 
Various  cases  are  quoted  by  these  writers  in  support  of  the  first  par* 


378  A  DIGEST  OF  [Notes. 

of  the  proposition  in  the  Article ;  but  7?.  v.  Cheadle  is  the  only  one 
which  appears  to  me  to  come  quite  up  to  it.  They  are  all  settlement 
cases. 

NOTE  XXXV. 
(to  Chapter  XTII.) 

In  this  and  the  following  Chapter  many  matters  usually  introduced 
into  treatises  on  evidence  are  omitted,  because  they  appear  to  belong 
either  to  the  subject  of  pleading,  or  to  different  branches  of  Substan- 
tive Law.  For  instance,  the  rules  as  to  the  burden  of  proof  of  nega- 
tive averments  in  criminal  cases  (i  Ph.  Ev.  555,  etc.;  3  Russ.  Cri. 
276-9)  belong  rather  to  criminal  procedure  than  to  evidence.  Again, 
in  every  branch  of  Substantive  Law  there  are  presumptions,  more  or 
less  numerous  and  important,  which  can  be  understood  only  in  con- 
nection with  those  branches  of  the  law.  Such  are  the  presumptions 
as  to  the  ownership  of  property,  as  to  consideration  for  a  bill  of  ex- 
change, as  to  many  of  the  incidents  of  the  contract  of  insurance. 
Passing  over  all  these,  I  have  embodied  in  Chapter  XIV.  those  pre- 
sumptions only  which  bear  upon  the  proof  of  facts  likely  to  be  proved 
on  a  great  variety  of  different  occasions,  and  those  estoppels  only 
which  arise  out  of  matters  of  fact,  as  distinguished  from  those  which 
arise  upon  deeds  or  judgments. 

NOTE  XXXVI. 
(to  Article  94.) 

The  presumption  of  innocence  belongs  principally  to  the  Criminal 
Law,  though  it  has,  as  the  Illustrations  show,  a  bearing  on  the  proof 
of  ordinary  facts.  The  question,  "What  doubts  are  reasonable  in 
criminal  cases  ?  "  belongs  to  the  Criminal  Law. 

NOTE  XXXVII. 

(to  Article  ioi.) 

The  first  part  of  this  Article  is  meant  to  give  the  effect  of  the  pre- 
sumption, omnia  esse  rite  acta,  1  Ph.  Ev.  480,  etc.;  T.  E.  ss.  124,  etc.; 


Notes.]  THE  LAW  OF  EVIDENCE.  379 

Best,  s.  353,  etc.  This,  like  all  presumptions,  is  a  very  vague  and  fluid 
rule  at  best,  and  is  applied  to  a  great  variety  of  different  subject- 
matters. 

NOTE  XXXVIII. 
(to  Articles  102-105.) 

These  Articles  embody  the  principal  cases  of  estoppels  in  pais,  as 
distinguished  from  estoppels  by  deed  and  by  record.  As  they  may  be 
applied  in  a  great  variety  of  ways  and  to  infinitely  various  circum- 
stances, the  application  of  these  rules  has  involved  a  good  deal  of  de- 
tail. The  rules  themselves  appear  clearly  enough  on  a  careful  exam- 
ination of  the  cases.  The  latest  and  most  extensive  collection  of  cases 
is  to  be  seen  in  2  S.  L.  C.  851-880,  where  the  cases  referred  to  in  the 
text  and  many  others  are  abstracted.  See,  too,  1  Ph.  Ev.  350-3  ;  T.  E. 
ss.  88-90,  776,  778  ;  Best,  s.  543. 

Article  102  contains  the  rule  in  Bickard  v.  Sears,  6  A.  &  E.  474, 
as  interpreted  and  limited  by  Parke,  B.,  in  Freeman  v.  Cooke,  6 
Bing.  174,  179.  The  second  paragraph  of  the  Article  is  founded 
on  the  application  of  this  rule  to  the  case  of  a  negligent  act  caus- 
ing fraud.  The  rule,  as  expressed,  is  collected  from  a  comparison 
of  the  following  cases :  Bank  of  Ireland  v.  Evans,  5  H.  L.  C.  389 ; 
Swan  v.  British  a7id  Australasian  Company,  which  was  before 
three  courts,  see  7  C.  B.  (N.  S.)  448;  7  H.  &  N.  603;  2  H.  &  C. 
175,  where  the  judgment  of  the  majority  of  the  Court  of  Exchequer 
was  reversed ;  and  Halifax  Guardians  v.  Wheelwright,  L.  R.  10 
Ex.  183,  in  which  all  the  cases  are  referred  to.  All  of  these  refer 
to  Young  v.  Grote  (4  Bing.  253),  and  its  authority  has  always  been 
upheld,  though  not  always  on  the  same  ground.  The  rules  on  this 
subject  are  stated  in  general  terms  in  Carr  v.  L.  &>  N.  IV.  Railway, 
L.  R.  10  C.  P.  316-17. 

It  would  be  difficult  to  find  a  better  illustration  of  the  gradual  way 
in  which  the  judges  construct  rules  of  evidence,  as  circumstances 
require  it,  than  is  afforded  by  a  study  of  these  cases. 


380  A  DIGEST  OF  [Notes. 


NOTE   XXXIX. 

(to  Chapter  XV.) 

The  law  as  to  the  competency  of  witnesses  was  formerly  the  most, 
or  nearly  the  most,  important  and  extensive  branch  of  the  Law  of  Evi- 
dence. Indeed,  rules  as  to  the  incompetency  of  witnesses,  as  to  the 
proof  of  documents,  and  as  to  the  proof  of  some  particular  issues,  are 
nearly  the  only  rules  of  evidence  treated  of  in  the  older  authorities. 
Great  part  of  Bentham's  '  Rationale  of  Judicial  Evidence  '  is  directed 
to  an  exposure  of  the  fundamentally  erroneous  nature  of  the  theory 
upon  which  these  rules  were  founded  ;  and  his  attack  upon  them  has 
met  with  a  success  so  nearly  complete  that  it  has  itself  become  obso- 
lete. The  history  of  the  subject  is  to  be  found  in  Mr.  Best's  work, 
book  i.  part  i.  ch.  ii.  ss.  132-188.  See,  too,  T.  E.  ss.  1210-57,  and  R.  N. 
P.  177-81.    As  to  the  old  law,  see  1  Ph.  Ev.  1,  104. 

NOTE  XL. 
(to  Article  107.) 

The  authorities  for  the  first  paragraph  are  given  at  great  length  in 
Best,  ss.  146-165.  See,  too,  T.  E.  s.  1240.  As  to  paragraph  2,  see 
Best,  s.  148;  1  Ph.  Ev.  7  ;  2  Ph.  Ev.  457;  T.  E.  s.  1241.  The  con- 
cluding words  of  the  last  paragraph  are  framed  with  reference  to  the 
alteration  in  the  law  as  to  the  competency  of  witnesses  made  by  32  & 
33  Vict.  c.  68,  s.  4.1  The  practice  of  insisting  on  a  child's  belief  in 
punishment  in  a  future  state  for  lying,  as  a  condition  of  the  admissi- 
bility of  its  evidence,  leads  to  anecdotes  and  to  scenes  little  calculated 
to  increase  respect  either  for  religion  or  for  the  administration  of  jus- 
tice. The  statute  referred  to  would  seem  to  render  this  unnecessary. 
If  a  person  who  deliberately  and  advisedly  rejects  all  belief  in  God 
and  a  future  state  is  a  competent  witness,  a  fortiori,  a  child  who  has 
received  no  instructions  on  the  subject  must  be  competent  also. 


1  Now  (1893)  repealed  by  the  Oaths  Act,  ii 


Notes.]  THE  LAW  OF  EVIDENCE.  381 


NOTE  XLI. 
(to  Article  108.) 

At  Common  Law  the  parties  and  their  husbands  and  wives  were  in- 
competent in  all  cases.  This  incompetency  was  removed  as  to  the 
parties  in  civil,  but  not  in  criminal  cases,  by  14  &  15  Vict.  c.  99,  s.  2  ; 
and  as  to  their  husbands  and  wives,  by  16  &  17  Vict.  c.  83,  ss.  1,  2. 
But  sec.  2  expressly  reserved  the  Common  Law  as  to  criminal  cases 
and  proceedings  instituted  in  consequence  of  adultery. 

The  words  relating  to  adultery  were  repealed  by  32  &  33  Vict,  c.68, 
s.  3,  which  is  the  authority  for  Article  109. 

Persons  interested  and  persons  who  had  been  convicted  of  certain 
crimes  were  also' incompetent  witnesses,  but  their  incompetency  was 
removed  by  6  &  7  Vict.  c.  85. 

The  text  thus  represents  the  effect  of  the  Common  Law  as  varied 
by  four  distinct  statutory  enactments. 

NOTE  XLIL 
(to  Article  hi.) 

The  cases  on  which  these  Articles  are  founded  are  only  Nisi  Prius 
decisions;  but  as  they  are  quoted  by  \vr  ers  of  eminence  (1  Ph.  Ev. 
139;  T.  E.  s.  859),  I  have  referred  to  them. 

In  the  trial  of  Lord  Thanet,  for  an  attempt  to  rescue  Arthur  O'Con- 
nor, Sergeant  Shepherd,  one  of  the  special  commissioners,  before 
whom  the  riot  took  place  in  court  at  Maidstone,  gave  evidence,  R.  v. 
Lord  Thanet,  27  S.  T.  836. 

I  have  myself  been  called  as  a  witness  on  a  trial  for  perjury  to 
prove  what  was  said  before  me  when  sitting  as  an  arbitrator.  The 
trial  took  place  before  Mr.  Justice  Hayes  at  York,  in  1869. 

As  to  the  case  of  an  advocate  giving  evidence  in  the  course  of  a 
trial  in  which  he  is  professionally  engaged,  see  several  cases  cited 
and  discussed  in  Best,  ss.  184-6. 

In  addition  to  those  cases,  reference  may  be  made  to  the  trial  of 


382  A  DIGEST  OF  TNotes. 

Home  Tooke  for  a  libel  in  1777,  when  he  proposed  to  call  the  Attor- 
ney-General (Lord  Thurlow),  20  S.  T.  740.  These  cases  do  not 
appear  to  show  more  than  that,  as  a  rule,  it  is  for  obvious  reasons 
improper  that  those  who  conduct  a  case  as  advocates  should  "be 
called  as  witnesses  in  it.  Cases,  however,  might  occur  in  which  it 
might  be  absolutely  necessary  to  do  so.  For  instance,  a  solicitor 
engaged  as  an  advocate  might,  not  at  all  improperly,  be  the  attesting 
witness  to  a  deed  or  will. 

NOTE  XLIII. 

(to  Article  115.) 

This  Article  sums  up  the  rule  as  to  professional  communications, 
every  part  of  which  is  explained  at  great  length,  and  to  much  the  same 
effect,  in  1  Ph.  Ev.  105-122;  T.  E.  ss.  832-9;  Best,  s.  581.  It  is  so 
well  established  and  so  plain  in  itself  that  it  requires  only  negative 
illustrations.  It  is  stated  at  length  by  Lord  Brougham  in  Greenough 
v.  Gaskell,  1  M.  &  K.  98.  The  last  leading  case  on  the  subject  is  R. 
v.  Cox  &*  Railton,  14  Q.  B.  D.  153.  Leges  Henrici  Primi,  v.  17: 
"Caveat  sacerdos  ne  de  hiis  qui  ei  confitentur  peccata  alicui  recitet 
quod  ei  confessus  est,  non  propinquis,  non  extraneis.  Quod  si  fecerit 
deponetur  et  omnibus  diebus  vitas  suae  ignominiosus  peregrinando 
pceniteat."     1  M.  508. 

NOTE  XLIV. 

(to  Article  117.) 

The  question  whether  clergymen,  and  particularly  whether  Roman 
Catholic  priests,  can  be  compelled  to  disclose  confessions  made  to 
them  professionally,  has  never  been  solemnly  decided  in  England, 
though  it  is  stated  by  the  text. writers  that  they  can.  See  1  Ph.  Ev. 
109;  T.  E.  ss.  837-8;  R.  N.  P.  190;  Starkie,  40.  The  question  is  dis- 
cussed at  some  length  in  Best,  ss.  583-4  ;  and  a  pamphlet  was  written 
to  maintain  the  existence  of  the  privilege  by  Mr.  Baddeley  in  1865. 
Mr,  Best  shows  clearly  that  none  of  the  decided  cases  are  directly  in 


Notes.]  THE  LAW  OF  EVIDENCE.  383 

point,  except  Butler  v.  Moore  (MacNally,  253-4),  and  possibly  R.  v. 
Sparkcs,  which  was  cited  by  Garrow  in  arguing  Du  Barre  v.  Livctte 
before  Lord  Kenyon  (1  Pea.  108).  The  report  of  his  argument  is  in 
these  words :  "The  prisoner,  being  a  Papist,  had  made  a  confession 
before  a  Protestant  clergyman  of  the  crime  for  which  he  was  indicted  ; 
and  that  confession  was  permitted  to  be  given  in  evidence  on  the 
trial"  (before  Buller,  J.),  "and  he  was  convicted  and  executed."  The 
report  is  of  no  value,  resting  as  it  does  on  Peake's  note  of  Garrow's 
statement  of  a  case  in  which  he  was  probably  not  personally  con- 
cerned ;  and  it  does  not  appear  how  the  objection  was  taken,  or 
whether  the  matter  was  ever  argued.  Lord  Kenyon,  however,  is  said 
to  have  observed  :  "  I  should  have  paused  before  I  admitted  the  evi- 
dence there  admitted." 

Mr.  Baddeley's  argument  is  in  a  few  words,  that  the  privilege  must 
have  been  recognized  when  the  Roman  Catholic  religion  was  estab- 
lished by  law,  and  that  it  has  never  been  taken  away. 

I  think  that  the  modern  Law  of  Evidence  is  not  so  old  as  the  Ref- 
ormation, but  has  grown  up  by  the  practice  of  the  courts,  and  by  de- 
cisions in  the  course  of  the  last  two  centuries.  It  came  into  existence 
at  a  time  when  exceptions  in  favor  of  auricular  confessions  to  Roman 
Catholic  priests  were  not  likely  to  be  made.  The  general  rule  is  that 
every  person  must  testify  to  what  he  knows.  An  exception  to  the 
general  rule  has  been  established  in  regard  to  legal  advisers,  but 
there  is  nothing  to  show  that  it  extends  to  clergymen,  and  it  is  usually 
so  stated  as  not  to  include  them.  This  is  the  ground  on  which  the 
Irish  Master  of  the  Rolls  (Sir  Michael  Smith)  decided  the  case  of 
Butler  v.  Moore,  in  1802  (MacNally,  Ev.  253-4).  It  was  a  demurrer 
to  a  rule  to  administer  interrogatories  to  a  Roman  Catholic  priest  as 
to  matter  which  he  said  he  knew,  if  at  all,  professionally  only.  The 
Judge  said,  "It  was  the  undoubted  legal  constitutional  right  of  every 
subject  of  the  realm  who  has  a  cause  depending,  to  call  upon  a  fellow- 
subject  to  testify  what  he  may  know  of  the  matters  in  issue  ;  and  every 
man  is  bound  to  make  the  discovery,  unless  specially  exempted  and 
protected  by  law,    It  was  candidly  admitted,  that  no  special  exemp- 


384  A  DIGEST  OF  [Notes. 

tion  could  be  shown  in  the  present  instance,  and  analogous  cases  and 
principles  alone  were  relied  upon."  The  analogy,  however,  was  not 
considered  sufficiently  strong. 

Several  judges  have,  for  obvious  reasons,  expressed  the  strongest 
disinclination  to  compel  such  a  disclosure.  Thus  Best,  C  J.,  said,  "I, 
for  one,  will  never  compel  a  clergyman  to  disclose  communications 
made  to  him  by  a  prisoner ;  but  if  he  chooses  to  disclose  them  I  shall 
receive  them  in  evidence"  {obiter,  in  Broad  v.  Pitt,  3  C.  &  P.  518). 
Alderson,  B.,  thought  (rather  it  would  seem  as  a  matter  of  good  feel- 
ing than  as  a  matter  of  positive  law)  that  such  evidence  should  not  be 
given.    R.  v.  Griffin,  6  Cox,  219. 

NOTE  XLV. 

(to  Articles  126,  127,  128.) 

These  Articles  relate  to  matters  almost  too  familiar  to  require 
authority,  as  no  one  can  watch  the  proceedings  of  any  court  of  justice 
without  seeing  the  rules  laid  down  in  them  continually  enforced. 
The  subject  is  discussed  at  length  in  2  Ph.  Ev.  pt.  2,  chap.  x.  p.  456, 
etc.;  T.  E.  s.  1258,  etc.;  see,  too,  Best,  s.  631,  etc.  In  respect  to  lead- 
ing questions  it  is  said,  "It  is  entirely  a  question  for  the  presiding 
judge  whether  or  not  the  examination  is  being  conducted  fairly."  R. 
N.  P.  182. 

NOTE  XLVI. 

(to  Article  129.) 

This  Article  states  a  practice  which  is  now  common,  and  which 
never  was  more  strikingly  illustrated  than  in  the  case  referred  to  in 
the  Illustration.  But  the  practice  which  it  represents  is  modern  ; 
and  I  submit  that  it  requires  the  qualification  suggested  in  the  text. 
I  shall  not  believe,  unless  and  until  it  is  so  decided  upon  solemn 
argument,  that  by  the  law  of  England  a  person  who  is  .called  to 
prove  a  minor  fact,  not  really  disputed,  in  a  case  nf  little  imDortance. 


Notes.]         .         THE  LAW  OF  EVIDENCE.  385 

thereby  exposes  himself  to  having  every  transaction  of  his  past  life, 
however  private,  inquired  into  by  persons  who  may  wish  to  serve  the 
basest  purposes  of  fraud  or  revenge  by  doing  so.  Suppose,  for  in- 
stance, a  medical  man  were  called  to  prove  the  fact  that  a  slight 
wound  had  been  inflicted,  and  been  attended  to  by  him,  would  it  be 
lawful,  under  pretence  of  testing  his  credit,  to  compel  him  to  answer 
upon  oath  a  series  of  questions  as  to  his  private  affairs,  extending 
over  many  years,  and  tending  to  expose  transactions  of  the  most 
delicate  and  secret  kind,  in  which  the  fortune  and  character  of  other 
persons  might  be  involved  ?  If  this  is  the  law,  it  should  be  altered. 
The  following  section  of  the  Indian  Evidence  Act  (1  of  1872)  may 
perhaps  be  deserving  of  consideration.  After  authorizing,  in  sec.  147, 
questions  as  to  the  credit  of  the  witness,  the  Act  proceeds  as  follows 
in  sec.  148  : — 

"  If  any  such  question  relates  to  a  matter  not  relevant  to  the  suit  or 
proceeding,  except  so  far  as  it  affects  the  credit  of  the  witness  by 
injuring  his  character,  the  court  shall  decide  whether  or  not  the  wit- 
ness shall  be  compelled  to  answer  it,  and  may,  if  it  thinks  fit,  warn 
the  witness  that  he  is  not  obliged  to  answer  it.  In  exercising  this  dis- 
cretion, the  court  shall  have  regard  to  the  following  considerations: — 

"(1)  Such  questions  are  proper  if  they  are  of  such  a  nature  that  the 
truth  of  the  imputation  conveyed  by  them  would  seriously  affect  the 
opinion  of  the  court  as  to  the  credibility  of  the  witness  on  the  matter 
to  which  he  testifies. 

"(2)  Such  questions  are  improper  if  the  imputation  which  they  con- 
vey relates  to  matters  so  remote  in  time  or  of  such  a  character  that 
the  truth  of  the  imputation  would  not  affect,  or  would  affect  in  a  slight 
degree,  the  opinion  of  the  court  as  to  the  credibility  of  the  witness 
on  the  matter  to  which  he  testifies. 

"(3)  Such  questions  are  improper  if  there  is  a  great  disproportion 
between  the  importance  of  the  imputation  made  against  the  witness's 
character  and  the  importance  of  his  evidence." 

Order  xxxvi.,  Rule  38,  expressly  gives  the  judge  a  discretion  which 
was  much  wanted,  and  which  I  believe  he  always  possessed- 


386  A  DIGEST  OF  [Notes. 

NOTE  XLVII. 

(to  Article  131.) 

The  words  of  the  two  sections  of  17  &  18  Vict.  c.  125,  meant  to  be 
represented  by  this  Article,  are  as  follows  : — 

22.  A  party  producing  a  witness  shall  not  be  allowed  to  impeach 
his  credit  by  general  evidence  of  bad  character;  but  he  may,  in  case 
the  witness  shall,  in  the  opinion  of  the  judge,  prove  adverse,  contra- 
dict him  by  other  evidence,  or,  by  leave  of  the  judge,  prove  that  he 
has  made  at  other  times  a  statement  inconsistent  with  his  present 
testimony ;  but  before  such  last-mentioned  proof  can  be  given,  the 
circumstances  of  the  supposed  statement,  sufficient  to  designate  the 
particular  occasion,  must  be  mentioned  to  the  witness,  and  he  must 
be  asked  whether  or  not  he  has  made  such  statement. 

23.  If  a  witness,  upon  cross-examination  as  to  a  former  statement 
made  by  him  relative  to  the  subject-matter  of  the  cause,  and  incon- 
sistent with  his  present  testimony,  does  not  distinctly  admit  that  he 
made  such  statement,  proof  may  be  given  that  he  did  in  fact  make 
it ;  but  before  such  proof  can  be  given,  the  circumstances  of  the  sup- 
posed statement,  sufficient  to  designate  the  particular  occasion,  must 
be  mentioned  to  the  witness,  and  he  must  be  asked  whether  or  not  he 
has  made  such  statement. 

The  sections  are  obviously  ill-arranged  ;  but  apart  from  this,  s.  22  is 
so  worded  as  to  suggest  a  doubt  whether  a  party  to  an  action  has  a 
right  to  contradict  a  witness  called  by  himself  whose  testimony  is  ad- 
verse to  his  interests.  The  words  "he  may,  in  case  the  witness  shall, 
in  the  opinion  of  the  judge,  prove  adverse,  contradict  him  by  other 
evidence,"  suggest  that  he  cannot  do  so  unless  the  judge  is_of  that 
opinion.  This  is  not,  and  never  was,  the  law.  In  Greenough  v.  Ec- 
cles,  5  C.  B.  ( N.  S.)  p.  802,  Williams,  J.,  says  :  "  The  law  was  clear  that 
you  might  not  discredit  your  own  witness  by  general  evidence  of  bad 
character;  but  you  might,  nevertheless,  contradict  him  by  other  evi- 
dence relevant  to  the  issue  ; "  and  he  adds  (p.  803):  "  It  is  impossible 
to  suppose  that  the  Legislature  could  have  really  intended  to  impose 


Notes.]  THE  LAW  OF  EVIDENCE.  387 

any  fetter  whatever  on  the  right  of  a  party  to  contradict  his  own  wit- 
ness by  other  evidence  relevant  to  the  issue, — a  right  not  only  estab- 
lished by  authority,  but  founded  on  the  plainest  good  sense." 

Lord  Chief  Justice  Cockburn  said  of  the  22nd  section  :  "There  has 
been  a  great  blunder  in  the  drawing  of  it,  and  on  the  part  of  those  who 
adopted  it."  ..."  Perhaps  the  better  course  is  to  consider  the 
second  branch  of  the  section  as  altogether  superfluous  and  useless  (p. 
806)."     On  this  authority  I  have  omitted  it. 

For  many  years  before  the  Common  Law  Procedure  Act  of  1854 
it  was  held,  in  accordance  with  Queen  Caroline's  Case  (2  B.  &  B. 
286-291),  that  a  witness  could  not  be  cross-examined  as  to  statements 
made  in  writing,  unless  the  writing  had  been  first  proved.  The  effect 
of  this  rule  in  criminal  cases  was  that  a  witness  could  not  be  cross- 
examined  as  to  what  he  had  said  before  the  magistrates  without  put- 
ting in  his  deposition,  and  this  gave  the  prosecuting  counsel  the  reply. 
Upon  this  subject  rules  of  practice  were  issued  by  the  judges  in  1837, 
when  the  Prisoner's  Counsel  Act  came  into  operation.  The  rules  are 
published  in  7  C.  &  P.  676.  They  would  appear  to  have  been  super- 
seded by  the  28  Vict.  c.  18. 

NOTE  XLVIII. 

The  Statute  Law  relating  to  the  subject  of  evidence  may  be  re- 
garded either  as  voluminous  or  not,  according  to  the  view  taken  of 
the  extent  of  the  subject. 

The  number  of  statutes  classified  under  the  head  "Evidence"  in 
Chitty's  Statutes  is  35.  The  number  referred  to  under  that  head  in 
the  Index  to  the  Revised  Statutes  is  39.  Many  of  these,  however,  re- 
late only  to  the  proof  of  particular  documents,  or  matters  of  fact 
which  may  become  material  under  special  circumstances. 

Of  these  I  have  noticed  a  few,  which,  for  various  reasons,  appear 
important.  Such  are:  34  &  35  Vict.  c.  112,  s.  19  (see  Article  11);  9 
Geo.  IV.  c.  14,  s.  1,  amended  by  19  &  20  Vict.  c.  97,  s.  13  (see  Article 
17) ;  9  Geo.  IV.  c.  14,  s.  3  ;  3  &  4  Will.  IV.  c.  42  (see  Article  28) ;  11 
&  13  Vict.  c.  42,  s,  17  (Article  33) ;  30  &  31  Vict.  c.  35,  s.  6  (Article 


388  A  DIGEST  OF  [Notes. 

34) ;  7  James  I.  c.  12  (Article  38) ;  7  &  8  Geo.  IV.  c.  28,  s.  1 1,  amended 
by  6  &  7  Will.  IV.  cm;  24  &  25  Vict.  c.  96,  s.  116;  24  &  25  Vict. 
c.  99,  s.  37  (see  Article  56) ;  8  &  9  Vict.  c.  io,  s.  6 ;  35  &  36  Vict.  c.  6, 
s.  4  (Article  121);  7  &  8  Will.  III.  c.  3,  ss.  2-4;  39"  &  40  Geo.  III. 
c.  93  (Article  122). 

Many,  again,  refer  to  pleading  and  practice  rather  than  evidence, 
in  the  sense  in  which  I  employ  the  word.  Such  are  the  Acts  which 
enable  evidence  to  be  taken  on  commission  if  a  witness  is  abroad,  or 
relate  to  the  administration  of  interrogatories. 

Those  which  relate  directly  to  the  subject  of  evidence  as  defined  in 
the  Introduction,  are  the  ten  following  Acts : — 


46  Geo.  III.  r.  37  (1  section  ;  see  Article  120).  This  Act  qualifies 
the  rule  that  a  witness  is  not  bound  to  answer  questions  which  crimi- 
nate himself,  by  declaring  that  he  is  not  excused  from  answering 
questions  which  fix  him  with  a  civil  liability. 


6  &  7  Vict.  c.  85.     This  Act  abolishes  incompetency  from  interest 
or  crime  (4  sections  ;  see  Article  106). 


8  &  9  Vict.  c.  113:  "An  Act  to  facilitate  the  admission  in  evi- 
dence of  certain  official  and  other  documents"  (8  August,  1845;  7 
sections). 

S.  1,  after  preamble  reciting  that  many  documents  are,  by  various 
Acts,  rendered  admissible  in  proof  of  certain  particulars  if  authenti- 
cated in  a  certain  way,  enacts  inter  alia  that  proof  that  they  were  so 
authenticated  shall  not  be  required  if  they  purport  to  be  so  authenti- 
cated.    (Article  79.) 

S.  2.  Judicial  notice  to  be  taken  of  signatures  of  certain  judges. 
(Article  58,  latter  part  of  clause  8.) 


Notes.]  THE  LAW  OF  EVIDENCE.  389 

S.  3.  Certain  Acts  of  Parliament,  proclamations,  etc.,  may  be  proved 
by  copies  purporting  to  be  Queen's  printer's  copies.     (Article  81.) 

S.  4.  Penalty  for  forgery,  etc.  This  is  omitted  as  belonging  to  the 
Criminal  Law.  * 

Ss.  5,  6,  7.  Local  extent  and  commencement  of  J^ct. 

4- 

14  &  15  Vict.  c.  99:  "An  Act  to  amend  the  Law  of  Evidence,"  7th 
August,  1851  (20  sections) : — 

S.  1  repeals  part  of  6  &  7  Vict.  c.  85,  which  restricted  the  opera- 
tion of  the  Act. 

S.  2  makes  parties  admissible  witnesses,  except  in  certain  cases. 
(Effect  given  in  Articles  106  &  108.) 

S.  3.  Persons  accused  of  crime,  and  their  husbands  and  wives,  not 
to  be  competent.    (Article  108.) 

S.  4.  The  first  three  sections  not  to  apply  to  proceedings  instituted  in 
consequence  of  adultery.  Repealed  by  32  &  33  Vict.  c.  68.  (Effect 
of  repeal,  and  of  s.  3  of  the  last-named  Act  given  in  Article  109.) 

S.  5.  None  of  the  sections  above  mentioned  to  affect  the  Wills  Act  of 
1838,  7  Will.  IV.  &  1  Vict.  c.  26.    (Omitted  as  part  of  the  Law  of  Wills.) 

S.  6.  The  Common  Law  Courts  authorized'  to  grant  inspection  of 
documents.     (Omitted  as  part  of  the  Law  of  Civil  Procedure.) 

S.  7.  Mode  of  proving  proclamations,  treaties,  etc.     (Article  84.) 

S.  8.  Proof  of  qualification  of  apothecaries.  (Omitted  as  part  of 
the  law  relating  to  medical  men.) 

Ss.  9,  10,  11.  Documents  admissible  either  in  England  or  in  Ireland, 
or  in  the  colonies,  without  proof  of  seal,  etc.,  admissible  in  all.  (Ar- 
ticle 80.) 

S.  12.  Proof  of  registers  of  British  ships.  (Omitted  as  part  of  the 
law  relating  to  shipping.) 

S.  13.  Proof  of  previous  convictions.  (Omitted  as  belonging  to 
Criminal  Procedure.) 

S.  14.  Certain  documents  provable  by  examined  copies  or  copies 
purporting  to  be  duly  certifier!.     ^Article  70,  last  paragraph.) 


39Q  A  DIGEST  OF  [Notes. 

S.  15.  Certifying  false  documents  a  misdemeanor.  (Omitted  as  be- 
longing to  Criminal  Law.) 

S.  16.  Who  may  administer  oaths.    (Article  125.) 

S.  17.  Penalties  for  forging  certain  documents.  (Omitted  as  be- 
longing to  the  Criminal  Law.) 

S.  18.  Act  not  to  extend  to  Scotland.     (Omitted.) 

S.  19.  Meaning  of  the  word  "  Colony."    (Article  80,  note  1.) 

S.  20.  Commencement  of  Act. 

5- 

17  &  18  Vict.  c.  125.  The  Common  Law  Procedure  Act  of  1854 
contained  several  sections  which  altered  the  Law  of  Evidence. 

S.  22.  How  far  a  party  may  discredit  his  own  witness.  (Articles 
131,  133;  and  see  Note  XLVII.) 

S.  23.  Proof  of  contradictory  statements  by  a  witness  under  cross- 
examination.     (Article  131.) 

S.  24.  Cross-examination  as  to  previous  statements  in  writing.  (Ar- 
ticle 132.) 

S.  25.  Proof  of  previous  conviction  of  a  witness  may  be  given. 
(Article  130  (1).) 

S.  26.  Attesting  witnesses  need  not  be  called  unless  writing  re- 
quires attestation  by  law.     (Article  72.) 

S.  27.  Comparison  of  disputed  handwritings.      (Articles  49  and  52.) 

After  several  Acts,  giving  relief  to  Quakers,  Moravians,  and 
Separatists,  who  objected  to  take  an  oath,  a  general  measure  was 
passed  for  the  same  purpose  in  1861. 


24  &  25  Vict.  c.  66  (1st  August,  1861,  3  sections).  (Repealed  by  the 
Oaths  Act,  1888):— 

S.  1.  Persons  refusing  to  be  sworn  from  conscientious  motives  may 
make  a  declaration  in  a  given  form.    (Article  123.) 


XOTES.1 


THE  LAW  OF  EVIDENCE. 


39i 


S.  2.  Falsehood  upon  such  a  declaration  punishable  as  perjury. 
(Do.) 
S.  3.  Commencement  of  Act. 

7- 
28  Vict.  c.  18  (9th  May,  1865,  10  sections): — 

S.  1.  Sections  3 — 8  to  apply  to  all  courts  and  causes,  criminal  as 
well  as  civil. 
S.  3.  Re-enacts  17  &  18  Vict.  c.  125,  s.  22. 


S.4 
S.5 
S.6 

S.7 

S.  8 


s.  23. 
s.  24. 
s.  25. 
s.  26. 
s.  27. 


The  effect  of  these  sections  is  given  in  the  Articles  above  referred 
to  by  not  confining  them  to  proceedings  under  the  Common  Law  Pro- 
cedure Act,  1854. 

The  rest  of  the  Act  refers  to  other  subjects. 


31  &  32  Vict.  c.  27  (25th  June,  1868,  6  sections): — 
S.  1.  Short  title. 

S.  2.  Certain  documents  may  be  proved  in  particular  ways.  (Art. 
83,  and  for  schedule  referred  to,  see  note  to  the  Article.) 

S.  3.  The  Act  to  be  in  force  in  the  colonies.     (Article  83.) 

S.  4.  Punishment  of  forgery.  (Omitted  as  forming  part  of  the 
Criminal  Law.) 

S.  5.  Interpretation  clauses  embodied  (where  necessary)  in  Article 

S3- 
S.6.  Act  to  be  cumulative  on  Common  Law.    (Implied  in  Article 

73-) 

9- 

32  &  33  Vict.  c.  68  (9th  August,  1869;  6  sections)  :— 

S.  1.  Repeals  part  of  14  &  15  Vict.  c.  99,  s.  4,  and  part  of  16  &  17 


3Q2  A  DIGEST  OF  '  [Notes. 

Vict.  c.  83,  s.  2.  (The  effect  of  this  repeal  is  given  in  Article  109; 
and  see  Note  XLI.) 

S.  2.  Parties  competent  in  actions  for  breach  of  promise  of  mar- 
riage, but  must  be  corroborated.     (See  Articles  106  and  121.) 

S.  3.  Husbands  and  wives  competent  in  proceedings  in  consequence 
of  adultery,  but  not  to  be  compelled  to  answer  certain  questions. 
(Article  109.) 

S.  4.  Atheists  rendered  competent  witnesses.  (Repealed  by  Oaths 
Act,  1888.) 

S.  5.  Short  title. 

S.  6.  Act  does  not  extend  to  Scotland. 

10. 

51  &  52  Vict.  c.  46  (24th  Dec,  1888;  7  sections)  provides  that 
every  person  objecting  to  being  sworn  and  stating  the  ground  of 
his  objection  to  be  his  religious  belief,  or  the  want  of  any  religious 
belief,  may  make  an  affirmation  in  the  manner  provided.  (See 
Article  123.) 

These  are  the  only  Acts  which  deal  with  the  Law  of  Evidence  as  I 
have  defined  it.  It  will  be  observed  that  they  relate  to  three  subjects 
only, — the  competency  of  witnesses,  the  proof  of  certain  classes  of 
documents,  and  certain  details  in  the  practice  of  examining  witnesses. 
These  details  are  provided  for  twice  over,  namely,  once  in  17  &  18 
Vict.  c.  125,  ss.  22-27,  botn  inclusive,  which  concern  civil  proceedings 
only;  and  again  in  28  Vict.  c.  18,  ss.  3-8,  which  re-enacts  these  pro- 
visions in  relation  to  proceedings  of  every  kind. 

Thus,  when  the  Statute  Law  upon  the  subject  of  Evidence  is  sifted 
and  put  in  its  proper  place  as  part  of  the  general  system,  it  appears 
to  occupy  a  very  subordinate  position  in  it.  The  ten  statutes  above 
mentioned  are  the  only  ones  which  really  form  part  of  the  Law  of 
Evidence,  and  their  effect  is  fully  given  in  twenty1  Articles  of  the 
Digest,  some  of  which  contain  other  matter  besides. 

1  1,  49,  52,  58,  72,  79,  80,  81,  83,  84,  106,  108,  109,  120, 121,  123.  125,  131, 
132,  133- 


Notes.]  THE  LAW  OF  EVIDENCE.  393 

[NOTE  XLIX.] 

[The  following  are  the  original  Articles  36,  37,  and  38  of  Mr. 
Stephen,  transferred  from  the  body  of  the  work  :] 

Article  36.    entries  in  bankers'  books. 

A  copy  of  any  entry  in  a  banker's  book  must  in  all  legal  proceed- 
ings be  received  as  prima  facie  evidence  of  such  entry,  and  of  the 
matters,  transactions,  and  accounts  therein  recorded  (even  in  favor 
of  a  party  to  a  cause  producing  a  copy  of  an  entry  in  the  book  of  his 
own  bank.) x 

Such  copies  may  be  given  in  evidence  only  on  the  condition  stated 
in  Article  71  (/). 

The  expression  'Bankers'  books'  includes  ledgers,  day  books,  cash 
books,  account  books,  and  all  other  books  used  in  the  ordinary  busi- 
ness of  the  bank. 

The  word  "Bank"  is  restricted  to  banks  which  have  duly  made  a 
return  to  the  Commissioners  of  Inland  Revenue, 

Savings  banks  certified  under  the  Act  relating  to  savings  banks, 
and 

Post-office  savings  banks. 

The  fact  that  any  bank  has  duly  made  a  return  to  the  Commission- 
ers of  Inland  Revenue  may  be  proved  in  any  legal  proceeding  by  the 
production  of  a  copy  of  its  return  verified  by  the  affidavit  of  a  partner 
or  officer  of  the  bank,  or  by  the  production  of  a  copy  of  a  newspaper 
purporting  to  contain  a  copy  of  such  return  published  by  the  Com- 
missioners of  Inland  Revenue. 

The  fact  that  any  such  savings  bank  is  certified  under  the  Act  re- 
lating to  savings  banks  may  be  proved  by  an  office  or  examined  copy 
of  its  certificate.  The  fact  that  any  such  bank  is  a  post-office  savings 
bank  may  be  proved  by  a  certificate  purporting  to  be  under  the  hand 
of  Her  Majesty's  Postmaster-General  or  one  of  the  secretaries  of  the 
Post-Office.2  

1  Harding  v.  Williams,  14  Ch.  D.  197 

2  42  &  43  Vict.  c.  2. 


394  A  DIGEST  OF  [Notes. 

Article  37.  bankers  not  compellable  to  produce  their 

books. 

A  bank  or  officer  of  a  bank  is  not,  in  any  legal  proceeding  to  which 
the  bank  is  not  a  party,  compellable  to  produce  any  banker's  book, 
or  to  appear  as  a  witness  to  prove  the  matters,  transactions,  and  ac- 
counts therein  recorded,  unless  by  order  of  a  judge  of  the  High  Court 
made  for  special  cause  (or  by  a  County  Court  Judge  in  respect  of  ac- 
tions in  his  own  court.)1 

Article  38.    judge's  powers  as  to  bankers'  books. 

On  the  application  of  any  party  to  a  legal  proceeding,  a  court  or 
judge  may  order  that  such  party  be  at  liberty  to  inspect  and  take 
copies  of  any  entries  in  a  banker's  book  for  any  of  the  purposes  of 
such  proceedings.  Such  order  may  be  made  either  with  or  without 
summoning  the  bank,  or  any  other  party,  and  must  be  served  on  the 
bank  three  clear  days  (exclusive  of  Sundays  and  Bank  holidays)  be- 
fore it  is  to  be  obeyed,  unless  the  court  otherwise  directs.2 

[Upon  this  subject  of  bankers'  books,  Mr.  Stephen  says  in  Art.  71 
(/),  that  secondary  evidence  is  admissible,  "when  the  document  is  an 
entry  in  a  banker's  book,  proof  of  which  is  admissible  under  Article 
36."  He  also  adds :  "  In  case  (/)  the  copies  cannot  be  received  as 
evidence  unless  it  be  first  proved  that  the  book  in  which  the  entries 
copied  were  made  was  at  the  time  of  making  one  of  the  ordinary 
books  of  the  bank,  and  that  the  entry  was  made  in  the  usual  and 
ordinary  course  of  business,  and  that  the  book  is  in  the  custody  and 
control  of  the  bank,  which  proof  may  be  given  orally  or  by  affidavit 
by  a  partner  or  officer  of  the  bank,  and  that  the  copy  has  been  exam- 
ined with  the  original  entry  and  is  correct,  which  proof  must  be  given 
by  some  person  who  has  examined  the  copy  with  the  original  entry, 
and  may  be  given  orally  or  by  affidavit.      42  &  43  Vict.  c.  11,  ss.  3,  5."] 


'42  &  43  Vict.  c.  11. 

242  &  43  Vict.  c.  ii,  s.  7.  See  Davies  v.  White,  53  L.  J.,  Q.  B.  D. 
275;  In  re  Marshfield,  Marshfieldx.  Ihitchings,  32  Ch.  D.  499;  Amott 
v.  Hayes,  36  Ch.  D.  731. 


Notes.]  THE  LAW  OF  EVIDENCE.  395 


[NOTE  L.] 
[The  following  are  the  portions  of  Articles  56  and  57,  transferred 
from  the  body  of  the  work  :1 ' 


Article  56  [in  part]. 

When  any  person  gives  evidence  of  his  good  character  who — 

Being  on  his  trial  for  any  felony  not  punishable  with  death,  has 
been  previously  convicted  of  felony  ;2 

Or  who,  being  upon  his  trial  for  any  offence  punishable  under  the 
Larceny  Act,  1861,  has  been  previously  convicted  of  any  felony,  mis- 
demeanor, or  offence  punishable  upon  summary  conviction  ;3 

Or  who,  being  upon  his  trial  for  any  offence  against  the  Coinage 
Offences  Act,  1861,  or  any  former  Act  relating  to  the  coin,  has  been 
previously  convicted  of  any  offence  against  any  such  Act  ;4 

The  prosecutor  may,  in  answer  to  such  evidence  of  good  character, 
give  evidence  of  any  such  previous  conviction,  before  the  jury  return 
their  verdict  for  the  offence  for  which  the  offender  is  being  tried.5 

Article  57  [in  part]. 
In  actions  for  libel  and  slander  in  which  the  defendant  does  not 
by  his  defence  assert  the  truth  of  the  statement  complained  of,  the 
defendant  is  not  entitled  on  the  trial  to  give  evidence  in  chief  with  a 
view  to  mitigation  of  damages,  as  to  the  circumstances  under  which 
the  libel  or  slander  was  published,  or  as  to  the  character  of  the  plain- 
tiff, without  the  leave  of  the  judge,  unless  seven  days  at  least  before 
the  trial  he  furnishes  particulars  to  the  plaintiff  of  the  matters  as  to 
which  he  intends  to  give  evidence.6 


1  [See  p.  159,  notes  2  and  4,  ante.'] 

'2  6  and  7  Will.  IV.  c.  1 1 1,  referring  to  7  &  8  Geo.  IV.  c.  28,  s.  11.  If 
"not  punishable  with  death  "  means  not  so  punishable  at  the  time  when 
7  &  8  Geo.  IV.  c.  28  was  passed  (21  June,  1827),  this  narrows  the  effect 
of  the  Article  considerably. 

3  24  &  25  Vict.  c.  96,  s.  116. 

4  24  &  25  Vict.  c.  99,  s.  37. 

5  See  each  of  the  Acts  above  referred  to. 

6  Supreme  Court  Rules,  Order  xxxvi.,  Rule  37. 


396  A  DIGEST  OF  [Notes. 

[NOTE  LI.] 
[The  following  are  the  original  Articles  76,  80-84  of  Mr.  Stephen, 
transferred  from  the  body  of  the  work  :] 

Article  76.  general  records  of  the  realm. 
Any  record,  under  the  charge  and  superintendence  of  the  Master  of 
the  Rolls  for  the  time  being,  may  be  proved  by  a  copy  certified  as  a 
true  and  authentic  copy  by  the  deputy  keeper  of  the  records  or  one  of 
the  assistant  record  keepers,  and  purporting  to  be  sealed  or  stamped 
with  the  seal  of  the  Record  Office.     (1  &  2  Vict.  c.  94,  ss.  1,  12,  13.) 

Article  80.    documents  admissible  throughout  the  queen's 

dominions. 

If  by  any  law  in  force  for  the  time  being  any  document  is  admis- 
sible in  evidence  of  any  particular,  either  in  courts  of  justice  in  Eng- 
land and  Wales,  or  in  courts  of  justice  in  Ireland,  without  proof  of  the 
seal,  or  stamp,  or  signature  authenticating  the  same,  or  of  the  judicial 
or  official  character  of  the  person  appearing  to  have  signed  the  same, 
that  document  is  also  admissible  in  evidence  to  the  same  extent  and 
for  the  same  purpose,  without  such  proof  as  aforesaid,  in  any  court 
or  before  any  judge  in  any  part  of  the  Queen's  dominions  except 
Scotland.1 

Article  81.    queen's  printers'  copies. 

The  contents  of  Acts  of  Parliament,  not  being  public  Acts,  may  be 
proved  by  copies  thereof  purporting  to  be  printed  by  the  Queen's 
printers; 

The  journals  of  either  House  of  Parliament ;  and 


1  Consolidates  14  &  15  Vict.  c.  99,  ss.  9,  10,  11,  19.  Sec.  9  provides 
that  documents  admissible  in  England  shall  be  admissible  in  Ireland  ; 
sec.  10  is  the  converse  of  9;  sec.  11  enacts  that  documents  admissible 
in  either  shall  be  admissible  in  the  "  British  Colonies  ; "  and  sec.  19  de- 
fines the  British  Colonies  as  including  India,  the  Channel  Islands, 
the  Isle  of  Man,  and  "all  other  possessions"  of  the  British  Crown, 
wheresoever  and  whatsoever.  This  cannot  mean  to  include  Scotland, 
though  the  literal  sense  of  the  words  would  perhaps  extend  to  't. 


Notes. 


THE  LAW  OF  EVIDENCE. 


397 


Royal  proclamations, 
may  be  proved  by  copies  thereof  purporting  to  be  printed  by  the  print- 
ers to  the  Crown  or  by  the  printers  to  either  House  of  Parliament.1 

Article  82.  proof  of  irish  statutes. 
The  copy  of  the  statutes  of  the  kingdom  of  Ireland  enacted  by  the 
Parliament  of  the  same  prior  to  the  union  of  the  kingdoms  of  Great 
Britain  and  Ireland,  and  printed  and  published  by  the  printer  duly  au- 
thorized by  King  George  III.  or  any  of  his  predecessors,  is  conclusive 
evidence  of  the  contents  of  such  statutes.2 

Article  83.  proclamations,  orders  in  council,  etc. 
The  contents  of  any  proclamation,  order,  or  regulation  issued  at  any 
time  by  Her  Majesty  or  by  the  Privy  Council,  and  of  any  proclama- 
tion, order,  or  regulation  issued  at  any  time  by  or  under  the  authority 
of  any  such  department  of  the  Government  or  officer  as  is  mentioned 
in  the  first  column  of  the  note 3  hereto,  may  be  proved  in  all  or  any  of 
the  modes  hereinafter  mentioned  ;  that  is  to  say — 

(1)  By  the  production  of  a  copy  of  the  Gazette  purporting  to  con- 
tain such  proclamation,  order,  or  regulation  : 

(2)  By  the  production  of  a  copy  of  such  proclamation,  order,  or 


1  8  &  9  Vict.  c.  1 13,  s.  3.     Is  there  any  difference  between  the  Queen's 
printers  and  the  printers  to  the  Crown  ? 

2  41  Geo.  III.  c.  90,  s.  9. 

3  Column  i.  Column  2. 


Name  of  Department  or  Officer. 


The  Commissioners  of  the  Treas- 
ury. 

The  Commissioners  for  executing 
the  Office  of  Lord  High  Ad- 
miral. 

Secretaries  of  State. 


Names  of  Certifying  Officers. 


Any  Commissioner,  Secretary,  or 
Assistant  Secretary  of  the  Treas- 
ury. 

Any  of  the  Commissioners  for  ex- 
ecuting the  Office  of  Lord  High 
Admiral  or  either  of  the  Secre- 
taries to  the  said  Commissioners. 

Any  Secretary  or  Under-Secretary 
of  State. 


398 


A  DIGEST  OF 


[Notes. 


regulation  purporting  to  be  printed  by  the  Government  printer,  or, 
where  the  question  arises  in  a  court  in  any  British  colony  or  posses- 
sion, of  a  copy  purporting  to  be  printed  under  the  authority  of  the 
legislature  of  such  British  colony  or  possession  : 

(3)  By  the  production,  in  the  case  of  any  proclamation,  order,  or 
regulation  issued  by  Her  Majesty  or  by  the  Privy  Council,  of  a  copy 
or  extract  purporting  to  be  certified  to  be  true  by  the  Clerk  of  the 
Privy  Council  or  by  any  one  of  the  Lords  or  others  of  the  Privy 
Council,  and,  in  the  case  of  any  proclamation,  order,  or  regulation 
issued  by  or  under  the  authority  of  any  of  the  said  departments  or 
officers,  by  the  production  of  a  copy  or  extract  purporting  to  be 
certified  to  be  true  by  the  person  or  persons  specified  in  the  second 
column  of  the  said  note  in  connection  with  such  department  or 
officer. 

Any  copy  or  extract  made  under  th^is  provision  may  be  in  print  or  in 
writing,  or  partly  in  print  and  partly  in  writing. 

No  proof  is  required  of  the  handwriting  or  official  position  of  any 
person  certifying,  in  pursuance  of  this  provision,  to  the  truth  of  any 
copy  of  or  extract  from  any  proclamation,  order,  or  regulation.1 

Subject  to  any  law  that  may  be  from  time  to  time  made  by  the 
legislature  of  any  British  colony  or  possession,  this  provision  is  in 
force  in  every  such  colony  and  possession.2 

Where  any  enactment,  whether  passed  before  or  after  June,  1882, 


Committee  of  Privy  Council  for 
Trade. 


The  Poor  Law  Board. 


The  Postmaster-General. 


(Schedule  to  31  &  32  Vict.  c.  37. 
'31  &  32  Vict.  c.  37,  s.  2. 


Any  Member  of  the  Committee  of 
Privy  Council  for  Trade  or  any 
Secretary  or  Assistant  Secretary 
of  the  said  Committee. 

Any  Commissioners  of  the  Poor 
Law  Board  or  any  Secretary  or 
Assistant  Secretary  of  the  said 
Board. 

Any  Secretary  or  Assistant  Secre- 
tary of  the  Post-Office  (33  &  34 
Vict.  c.  79,  s.  21). 

See  also  34  &  35  Vict.  c.  70,  s.  5.) 
2  Ibid.  s.  3. 


Notes.]  THE  LAW  OF  EVIDENCE.  399 

provides  that  a  copy  of  any  Act  of  Parliament,  proclamation,  order, 
regulation,  rule,  warrant,  circular,  list,  gazette,  or  document,  shall  be 
conclusive  evidence,  or  be  evidence,  or  have  any  other  effect  when 
purporting  to  be  printed  by  the  government  printer,  or  the  Queen's 
printer,  or  a  printer  authorized  by  her  Majesty,  or  otherwise  under 
her  Majesty's  authority,  whatever  may  be  the  precise  expression 
used,  such  copy  shall  also  be  conclusive  evidence,  or  evidence,  or 
have  the  said  effect,  as  the  case  may  be,  if  it  purports  to  be  printed 
under  the  superintendence  or  authority  of  her  Majesty's  Stationery 
Office.1 

Article  84. 
foreign  and  colonial  acts  of  state,  judgments,  etc. 

All  proclamations,  treaties,  and  other  acts  of  state  of  any  foreign 
state,  or  of  any  British  colony,  and  all  judgments,  decrees,  orders,  and 
other  judicial  proceedings  of  any  court  of  justice  in  any  foreign  state 
or  in  any  British  colony,  and  all  affidavits,  pleadings,  and  other  legal 
documents  filed  or  deposited  in  any  such  court,  may  be  proved  either 
by  examined  copies  or  by  copies  authenticated  as  hereinafter  men- 
tioned ;  that  is  to  say — ■ 

If  the  document  sought  to  be  proved  be  a  proclamation,  treaty,  or 
other  act  of  state,  the  authenticated  copy  to  be  admissible  in  evidence 
must  purport  to  be  sealed  with  the  seal  of  the  foreign  state  or  British 
possession  to  which  the  original  document  belongs  ; 

And  if  the  document  sought  to  be  proved  be  a  judgment,  decree, 
order,  or  other  judicial  proceeding  of  any  foreign  court,  in  any  British 
possession,  or  an  affidavit,  pleading,  or  other  legal  document  filed  or 
deposited  in  any  such  court,  the  authenticated  copy  to  be  admissible 
in  evidence  must  purport  either  to  be  sealed  with  the  seal  of  the 
foreign  or  other  court  to  which  the  original  document  belongs,  or,  in 
the  event  of  such  court  having  no  seal,  to  be  signed  by  the  judge,  or, 
if  there  be  more  than  one  judge,  by  any  one  of  the  judges  of  the 


1  45  Vict.  c.  9,  s.  2.     Documentary  Evidence  Act,  1882.     Sect.  4  ex- 
tends the  Act  of  1868  to  Ireland. 


400  A  DIGEST  OF  [Notes. 

said  court,  and  such  judge  must  attach  to  his  signature  a  statement 
in  writing  on  the  said  copy  that  the  court  whereof  he  is  a  judge  has 
no  seal ; 

If  any  of  the  aforesaid  authenticated  copies  purports  to  be  sealed  or 
signed  as  hereinbefore  mentioned,  it  is  admissible  in  evidence  in 
every  case  in  which  the  original  document  could  have  been  received 
in  evidence,  without  any  proof  of  the  seal  where  a  seal  is  necessary, 
or  of  the  signature,  or  of  the  truth  of  the  statement  attached  thereto, 
where  such  signature  and  statement  are  necessary,  or  of  the  judicial 
character  of  the  person  appearing  to  have  made  such  signature  and 
statement.1 

Colonial  laws  assented  to  by  the  governors  of  colonies,  and  bills  re- 
served by  the  governors  of  such  colonies  for  the  signification  of  her 
Majesty's  pleasure,  and  the  fact  (as  the  case  may  be)  that  such  law 
has  been  duly  and  properly  passed  and  assented  to,  or  that  such  bill 
has  been  duly  and  properly  passed  and  presented  to  the  governor, 
may  be  proved  (prwia  facie)  by  a  copy  certified  by  the  clerk  or 
other  proper  officer  of  the  legislative  body  of  the  colony  to  be  a  true 
copy  of  any  such  law  or  bill.  Any  proclamation  purporting  to  be 
published  by  authority  of  the  governor  in  any  newspaper  in  the 
colony  to  which  such  law  or  bill  relates,  and  signifying  her  Majesty's 
disallowance  of  any  such  colonial  law,  or  her  Majesty's  assent  to  any 
such  reserved  bill,  is  prima  facie  proof  of  such  disallowance  or 
assent." 

[NOTE  LIL] 

[The  following  are  portions  of  Article  108  and  of  Article  113,  and 
also  (in  full)  Articles  108  A  and  108  B,  transferred  from  the  body  of  the 
work  :]s 

1  14  &  15  Vict.  c.  09,  s.  7. 

2  28  &  29  Vict.  c.  63,  s.  6.  "Colony"  in  this  paragraph  means  "all 
her  Majesty's  possessions  abroad"  having  a  legislature,  "except  the 
Channel  Islands,  the  Isle  of  Man,  and  India."  "Colony"  in  the  rest 
of  the  Article  includes  those  places. 

3  [See  p.  277,  note  2,  and  p.  283,  note  2,  ante.] 


Notes.]  THE  LAW  OF  EVIDENCE.  401 


Article  108  [in  part]. 

In  any  such  criminal  proceeding  against  a  husband  or  a  wife,  as  is 
authorized  by  the  Married  Women's  Property  Act,  1882  (45  &  46  Vict. 
c.  75,  ss.  12  and  16),  the  husband  and  wife  respectively  are  competent 
and  admissible  witnesses,  and  except  when  defendant  compellable 
to  give  evidence.1 

The  following  proceedings  at  law  are  not  criminal  within  the 
meaning  of  this  Article  : — 

Trials  of  indictments  for  the  non-repair  of  public  highways  or 
bridges,  or  for  nuisances  to  any  public  highway,  river,  or  bridge  ;2 

Proceedings  instituted  for  the  purpose  of  trying  civil  rights  only  ;2 

Proceedings  on  the  Revenue  side  of  the  Exchequer  Division  of  the 
High  Court  of  Justice.3 

Article  108  a. 

statutory  exceptions  to  article  108. 

By  the  statutes  referred  to  in  the  first  column  of  the  schedule 
hereto,  the  persons  and  the  wives  and  husbands  of  the  persons  ac- 
cused of  the  offences  specified  in  the  second  column  are  made  com- 
petent witnesses  upon  their  trials  for  such  offences. 


1  47  Vict.  c.  14  ;  and  see  the  case  of  7?.  v.  Brittleton,  12  Q.  B.  D.  266, 
which  turns  on  the  wording  of  the  Act  of  1882,  and  occasioned  this 
enactment.  The  following  doubt  arises  on  the  effect  of  this  enact- 
ment. Does  it  mean  (a)  only  that  the  wife  is  competent  as  against 
the  husband,  and  the  husband  as  against  the  wife,  notwithstanding 
their  marriage,  or  (b)  that  in  such  cases  not  only  the  prosecutor, 
though  married  to  the  prisoner,  but  the  prisoner,  though  prisoner  and 
though  married,  is  to  be  competent,  though  the  prisoner  is  not  to  be 
compellable?  It  is  observable  that  the  first  "husband  and  wife" 
does  not  become  "  wife  or  husband  "  before  the  word  "  respectively," 
as  would  have  been  natural.  It  is  also  remarkable  that  in  the  Act  of 
1882  a  criminal  proceeding  is  described  as  "  a  remedy," — a  very 
peculiar  phrase. 

2  40  &  41  Vict.  c.  14.  3  28  &  29  Vict.  c.  104,  s.  34. 


402 


A  DIGEST  OF 


[Notes. 


The  Schedule. 


Indictable  Offences. 


38  &  39  Vict.  c.  86,  s.  11.  Con- 
spiracy and  Protection  of  Prop- 
erty Act,  1875. 


39  &  40  Vict.  c.  80,  ss.  3  &  4. 
Merchant  Shipping  Act,  1876. 


40  &  41  Vict.  c.  14.     Amending 
Law  of  Evidence. 


46  Vict.  c.  83.     The   Explosive 
Substances  Act,  1883. 


46  &  47  Vict.  C.  51,  s.  53.  Cor- 
rupt and  Illegal  Practices  Pre- 
vention Act,  1883. 


Sect.  4.  Wilful  and  malicious 
breach  of  contract  relating  to 
gas  or  water. 

Sect.  5.  Wilful  and  malicious 
breach  of  contract,  involving 
injury  to  person  or  property. 

Sect.  6.  Master  neglecting  to 
provide  servant  or  apprentice 
with  food,  &c. 


Sect.  4.  Sending  an  unseaworthy 
ship  to  sea.  Master  of  a  British 
ship  knowingly  taking  an  un- 
seaworthy ship  to  sea. 


Sect.  1.  Non-repair  of  any  public 
highway  or  bridge,  nuisances 
to  public  highways,  rivers  or 
bridges,  and  defendants  to  any 
indictment  instituted  for  the 
purpose  of  trying  a  civil  right 
only. 


Sect.  3.  Possession  of  explosive 
substances  under  suspicious  cir- 
cumstances. (The  prisoner  is 
not  a 'competent  witness  in  a 
charge  under  s.  2  or's.  3  ) 


Any  prosecution  for  any  offence 
under  this  Act.  (These  offences 
may  be  summary.) 


Notes.] 


THE  LAW  OF  EVIDENCE. 


403 


48  &  49  Vict.  c.  69,  s.  20.    Crim- 
inal Law  Amendment  Act,  1885. 


50  &  51  Vict.  c.  28,  s.  10.     Mer- 
chandise Marks  Act,  1887. 


50  &  51  Vict.  c.  58,  s.  62,  sub-s. 
(ii.).  Coal  Mines  Regulation 
Act,  1887. 


52  &  53  Vict.  C.  44,  s.  7.  Preven- 
tion of  Cruelty  to  and  Protec- 
tion of  Children  Act,  1889. 


55  Vict.  c.  4,  s.  6.    Betting  and 
Loans  (Infants)  Act,  1892. 


Makes  parties  and  their  wives 
competent  witnesses  in  any  of 
the  following  cases : 

1.  Offences  under  the  Act  it- 

self :  abusing  girls  under 
16  or  children  :  keeping 
brothels:  indecent  behav- 
ior in  certain  cases,  &c. 

2.  24  &  25  Vict.  c.  100,  s.  48, 

rape ;  s.  52,  indecent  as- 
sault ;  s.  53,  abduction  of 
heiress  ;  s.  54,  forcible  ab- 
duction ;  s.  55,  abduction 
of  girl  under  16. 
N.  B. — An  assault  with  intent  to 
ravish  is  not  within  the  Act. 

Any  offence  against  this  Act. 
(These  offences  may  be  sum- 
mary.) 

Any  person  charged  with  an 
offence  under  this  Act  may  be 
sworn  and  examined  as  an  ordi- 
nary witness  in  the  case.  (The 
Act  does  not  mention  the  wives 
or  husbands  of  persons  charged. 
Offences  under  the  Act  may  be 
summary.) 

In  any  proceeding  under  this  Act 
the  person  charged  and  the  wife 
and  husband  are  competent  but 
not  compellable  witnesses,  but 
the  wife  or  husband  "may  be 
required  to  attend  to  give  evi- 
dence." (These  offences  may 
be  summary.) 

Any  offence  under  this  Act. 
(These  offences  may  be  sum- 
mary.) 


404  A  DIGEST  OF  [Notes. 


Summary  Offences. 


35  <S^36  Vict,  c  77,  s.  34  (4) 

35  6-36  Vict.  c.  94,  s.  51  (4) 
38  &*  39  Vict.  c.  63,  s.  21  .    . 

38  &*>  39  Vict.  c.  17,  s.  87  .    . 


Metalliferous  Mines  Regulation 

Act. 
Licensing  Act,  1872. 
Sale  of   Food    and    Drugs    Act, 

1875. 
Explosives    Act,    1875.      (These 

offences  may  be  indictable.) 


Article  108  b. 
effect  of  evidence  by  accused  person. 

When  a  prisoner  is  indicted  for  more  misdemeanors  than  one,  and 
is  a  competent  witness  upon  one  count  and  not  upon  another,  and 
gives  evidence,  he  may  be  convicted  upon  a  count  upon  which  he  is 
not  a  competent  witness.1 

Article  113  [in  part]. 

A  criminal  prosecution  by  the  Director  of  Public  Prosecutions  is  a 
public  prosecution,  and  the  Director  of  Public  Prosecutions  cannot 
be  required  to  say  from  whom  he  acquired  information  or  what  it  was.'2 

[NOTE  LIIL] 

[The  following  are  portions  of  Article  121  and  of  Article  125,  and 
also  (in  full)  Article  123  A,  transferred  from  the  body  of  the  work  :]3 

Article  121  [in  part]. 

No  person  can  be  convicted  of  an  offence  against  Section  4  of  the 
Criminal  Law  Amendment  Act,  1885,  upon  the  unsworn  evidence  of  a 


1  R.  v.  Owen,  20  Q.  B.  D.  829.  The  ground  of  this  decision  appears 
to  have  been  that  the  prisoner's  evidence,  though  inadmissible  as  evi- 
dence upon  the  count  upon  which  he  was  convicted,  might  be  regarded 
as  a  voluntary  admission  by  him  in  the  presence  of  the  jury.  See  R. 
v.  Paul,  25  Q.  B.  D.  202,  in  which  R.  v.  Owen  is  considered  and  ex- 
plained. 

•  Marks  v.  Bey/us,  25  Q  B.  D.  494. 

3  [See  p.  300,  note  2,  p.  306,  note  1,  and  p.  310,  note  1,  ante.] 


Notes.]  THE  LAW  OF  EVIDENCE.  405 

child  of  tender  years,  unless  such  unsworn  evidence  is  corroborated 
by  material  evidence  implicating  the  accused.1 

Article  123A. 

UNSWORN   EVIDENCE   OF    YOUNG   CHILD. 

Where,  upon  the  hearing  of  a  charge  under  Section  4  of  the 
Criminal  Law  Amendment  Act,  1885,  a  child  of  tender  years  who  is 
tendered  as  a  witness  does  not,  in  the  opinion  of  the  court,  under- 
stand the  nature  of  an  oath,  the  evidence  of  such  child  may  be  re- 
ceived, though  not  given  upon  oath,  if,  in  the  opinion  of  the  court, 
such  child  is  possessed  of  sufficient  intelligence  to  justify  the  reception 
of  the  evidence,  and  understands  the  duty  of  speaking  the  truth  ;2    ■ 

Provided,  that  no  person  can  be  convicted  in  such  a  case  unless 
such  unsworn  evidence  is  corroborated  by  other  material  evidence 
implicating  the  accused.2 

Any  witness  whose  evidence,  not  under  oath,  has  been  admitted  as 
mentioned  in  this  Article  is  liable  to  indictment  and  punishment  for 
perjury  in  all  respects  as  if  he  or  she  had  been  sworn.8 

If  evidence  not  under  oath  is  given  under  the  provisions  stated  in 
this  Article,  and  the  charge  is  one  of  felony,  the  prisoner  may  be 
convicted  under  section  9  of  the  Criminal  Law  Amendment  Act,  1885, 
of  an  offence3  in  respect  of  which  such  unsworn  evidence  might  not 
have  been  given.4  If  the  charge  is  one  of  misdemeanor,  the  prisoner 
cannot  be  convicted  of  another  misdemeanor,  in  respect  of  which 
such  unsworn  evidence  might  not  have  been  given,  if  such  other  mis- 
demeanor was  charged  in  another  count  of  the  indictment.5 


1  48  &  49  Vict.  c.  69,  s.  4.    See  Art.  123  A. 

2  48  &  49  Vict.  c.  69,  s.  4.  The  offences  under  this  section  are, 
unlawfully  and  carnally  knowing,  and  attempting  unlawfully  and 
carnally  to  know,  any  girl  under  thirteen. 

3  These  offences  are,  any  offence  under  ss.  3,  4,  5  of  the  Criminal 
Law  Amendment  Act,  1885,  and  indecent  assault. 

4  R.  v.  Wealand,  20  Q.  B.  D.  827. 

6  R.v.Paul,  25  Q.  B.  D.  202.  It  has  not  been  expressly  decided 
whether,  upon  an  indictment  in  one  count  under  s.  4  for  attempting 


4o6  THE  LAW  OF  EVIDENCE.  [Notes. 


Article  125  [in  part]. 

[The  paragraphs  omitted  from  the  original  Article  (see  p.  310,  ante) 
are  as  follows :] 

{c)  Before  any  officer  of  the  court  or  any  other  person  or  persons 
appointed  for  that  purpose  by  the  court  or  a  judge  under  the  Judica- 
ture Act,  1875,  Order  xxxvii.  5. 

Oral  evidence  taken  upon  a  preliminary  hearing  may,  in  the  cases 
specified  in  11  &  12  Vict.  c.  42,  s.  17,  30  &  31  Vict.  c.  35,  s.  6,  and 
17  &  18  Vict.  c.  104,  s.  270,  be  recorded  in  the  form  of  a  deposition, 
which  deposition  may  be  used  as  documentary  evidence  of  the  matter 
stated  therein  in  the  cases  and  on  the  conditions  specified  in  Chap- 
ter XVII.  

to  have  carnal  knowledge  of  a  girl  under  thirteen,  where  evidence 
has  been  given  not  upon  oath,  the  prisoner  may  be  convicted  of  in- 
decent assault,  but  it  seems  to  be  the  logical  result  of  R.  v.  Wealand 
and  R.  v.  Paul  that  he  might. 


INDEX. 


(The  numbers  refer  to  pages.) 

Abatement,  judgment  of,  not  a  bar,  122. 
Abduction,  corroboration  required  in  prosecutions  for,  301. 
Abortion,  dying  declarations  in  trials  for,  (50. 
Abbreviations,  when  judicially  noticed,  171. 

explainable  by  parol  evidence,  228. 
Acceptor  of  bill  of  exchange,  estoppel  of,  267. 
Accession  of  President,  or  other  executive,  judicially  noticed,  16?. 
Accessory,  how  affected  by  judgment  against  principal  felon,  134. 
Accident,  provable  by  oral  evidence  to  affect  writing,  220. 
Accidental  or  intentional  acts,  distinguished  by  evidence  of  system, 

49-53- 
Accomplice,  testimony  of,  when  requiring  corroboration,  301,  302. 

nature  of  corroboration  needed,  302. 

apparent  accomplices  need  no  corroboration,  302. 

turning  State's  evidence,  confessions  of,  when  provable,  78. 
must  disclose  confessions  made  to  his  attorney,  291,  292. 
Account  rendered,  correctness  admitted  by  not  objecting,  58. 
Acknowledged  deed,  proof  of  execution,  182,  185. 

weight  of  evidence  required  to  impeach  certificate  of  acknowledg- 
ment, 240. 

officer  who  took  acknowledgment  cannot  impeach  his  certificate, 
282. 
Acquiescence,  effect  of  as  admission,  25,  26,  58,  72. 

effect  of  as  confession  of  crime,  15,  25,  27,  75. 
^cts  of  Congress.    (See  Statute.) 
Acts  of  Parliament,  recitals  in  as  evidence,  112.     (See  Statute.) 

when  public,  judicially  noticed,  164. 

not  public,  how  proved,  396. 
Acts  of  state,  proved  by  recitals  in  statutes,  etc.,  112. 

proof  of,  206. 

proof  of  foreign,  146,  207,  399. 
Administrator,  bound  by  admissions  of  intestate,  60. 

admissions  of,  62,  69. 


4o8  INDEX. 

(The  numbers  refer  to  pages.) 

Administrator  {continued). 

effect  of  judgment  appointing,  1 19,  123. 
effect  of  appointing  upon  estate  of  living  person,  119. 
judgment  against  one,  not  binding  on  another,  130. 
effect  of  judgment  against,  as  to  sureties  on  his  bond,  132. 
party  cannot  testify  against,  as  to  transactions  with  decedent,  270. 
Admiralty  Courts  and  their  seals,  judicially  noticed,  168,  169. 

effect  of  judgments  in,  condemning  ships  as  prize,  118,  127,  128. 
Admissions  defined,  57,  361. 

statement  raising  a  suspicion  or  conjecture  is  not  an  admission,  61. 

how  proved,  57. 

no  evidence  required  of  facts  admitted,  174. 

aliter,  in  trials  for  felony,  174. 
finding  or  judgment  contrary  to  admissions  in  pleading,  is  error, 

174. 
whole  of  admission  to  be  brought  out,  57,  64,  361. 
who  may  make,  and  when,  59-73. 
implied  from  acts  and  conduct,  57,  58. 

as  from  silent  acquiescence,  25,  26,  58,  72. 

from  not  objecting  to  account  rendered,  58. 

from  tender  of  payment,  58. 

from  act  of  landlord  in  making  repairs,  58. 

entries  in  partnership  books  evidence  against  partner,  58. 

no  admission  implied  from  failure  to  answer  a  letter,  58. 
made  incidentally,  58. 
made  in  pleadings  or  affidavits,  or  in  giving  former  evidence,  58, 

59.74,  174. 
judgment  as  an  admission,  131,  134. 
oral  admission  not  generally  conclusive  and  to  be  received  with 

caution,  58. 
when  conclusive,  58. 

may  be  explained  or  shown  to  have  been  made  by  mistake,  58. 
of  a  nominal  party,  59. 

of  assignor  after  assignment,  against  assignee,  59. 
of  assignee  after  assignment,  60. 
of  a  person  interested  in  the  event,  60. 

of  deputy-sheriff  as  against  sheriff,  60. 
of  privies  in  blood,  in  law,  or  in  estate,  60. 

of  intestate  competent  against  administrator,  60. 

of  testator  competent  against  executor,  6o,  63. 

of  husband  competent  against  widow  claiming  dower,  60. 

of  ancestor  competent  against  heir,  60. 

of  grantor  competent  against  grantee,  60,  63. 


INDEX.  409 

(The  numbers  refer  to  pages.) 

Admissions  (continued). 

of  landlord  competent  against  tenant,  60. 
but  not  of  tenant  against  landlord,  60. 
of  devisor  competent  against  devisee,  60. 
of  assignor  of  chattels,  made  before  assignment,  competent 
against  assignee,  63. 
aliter,  in  New  York  as  to  assignments  for  value,  63. 
declarations  of  owner  of  land  or  chattels  showing  the  char- 
acter of  his  possession,  competent,  61,  62. 
not  admissible  in  place  of  record  evidence  or  to  destroy  a 
record  title,  61. 
of  party  to  a  proceeding,  61. 

party's  statements  contradicting  his  testimony  as  a  witness, 
relevant  as  admissions,  329. 
of  person  suing,  or  being  sued,  in  a  representative  character,  61, 62. 
of  executor  or  administrator,  62,  69. 
of  guardian,  62. 
of  agents  and  persons  jointly  interested  with  parties,  65, 66,  70, 362. 
of  partners  or  joint  debtors  or  contractors,  66,  67,  69,  71. 

effect  of  admissions  after  dissolution  of  partnership,  66,  67. 
effect  as  to  the  Statute  of  Limitations,  66,  67,  69. 
of  husband  and  wife,  65,  70. 
of  member  or  officer  of  corporation,  65. 
of  inhabitant  or  officer  of  municipal  corporation,  65. 
of  attorneys  and  counsellors,  67,  68,  71. 
of  persons  having  a  common  interest,  69,  71. 

of  executor  or  administrator,  as  against  co-executor  or  co- 
administrator, heirs,  etc.,  69. 
of  one  tenant  in  common  as  against  another,  69. 
of  one  devisee  or  legatee  as  against  another,  69. 
of  co-defendants  in  tort  cases,  69. 
of  principal  do  not  bind  surety,  70,  71. 
of  strangers,  72. 

of  judgment  debtor  as  against  sheriff,  72. 
of  bankrupt  for  or  against  assignee,  72. 
of  person  expressly  referred  to  by  party,  72,  73. 
by  interpreter,  73. 

of  person  interested  or  privy  must  be  made  while  interest  con- 
tinues, 62,  64. 
of  grantor  before  acquiring  or  after  parting  with  possession, 
not  competent  against  grantee,  62. 
so  of  assignor  of  chattels  or  choses  in  action,  62. 
but  sometimes  competent  to  show  fraud  as  to  creditors, 
62,  63. 


Iio  "  INDEX. 

(The  numbers  refer  to  pages.) 

Admissions  {continued). 

of  assignor  of  personal  property,  made  while  his  interest  continues, 
not  admissible  against  assignee  in  some  States,  63. 

effect  of  when  made  "without  prejudice"  or  in  offers  of  com- 
promise, or  under  duress,  73,  74. 

by  pleading  a  demurrer,  effect  of,  174. 

of  contents  of  document,  effect  of,  178. 

of  execution  of  document,  effect  of,  183. 

of  loss  of  document,  188. 

of  existence  of  marriage,  156. 

in  writing,  may  be  varied  by  oral  evidence,  222. 

burden  of  proof  to  show  admission,  251. 
Adultery,  in  trials  for,  woman's  bad  character  for  chastity  provable, 
340. 

letters  between  husband  and  wife,  admissible  to  show  state  of 
feeling,  46,  47,  210. 

evidence  of  similar  acts  competent  to  show  disposition,  45. 

provable,  in  action  for  divorce,  by  preponderance  of  evidence,  239. 

marriage  not  provable  by  cohabitation  and  repute,  156. 

competency  of  husband  and  wife  as  witnesses  in  proceedings  for, 
278. 
Advancement,  deed  shown  to  be  by  oral  evidence,  221. 
Affairs  of  State,  privilege  of  witness  concerning,  282. 
Affidavits,  when  admissible  as  evidence,  309,  311,  312. 

admissions  contained  in,  58. 

confessions  contained  in,  83. 

statements  on  information  and  belief,  when  permissible  in,  311. 

containing  improper  matter,  by  whom  costs  payable,  311,  312. 

objections  to,  when  to  be  made,  312. 
Affirmation,  when  made  by  witness  instead  of  taking  an  oath,  306,  307. 
Age,  when  a  matter  of  pedigree,  104. 

personal  appearance  as  evidence  of,  104,  177. 

evidence  of  opinion  concerning,  142. 

no  presumption  as  to  age  at  which  a  person  died,  258. 
Agency,  Agent.    (See  Principal  and  Agent.) 
Aldermen,  judicially  noticed,  168. 
Alibi,  defence  of,  7,  248. 

what  proof  required  of,  248. 

burden  of  proof,  on  whom,  248,  251. 
Alien,  effect  of  judgment,  naturalizing,  120. 
Almanac,  as  evidence,  117,  173. 
Alteration  of  documents,  presumptions  as  to,  214-218. 

when  relevant  to  show  fraud,  22. 


INDEX.  411 

(The  numbers  refer  to  pages.) 

Alteration  {continued). 

material  alteration  by  party  after  execution  avoids  instrument, 

214. 
if  alteration  innocent,   recovery   may  be  had  on   original   con- 
sideration, 214. 
aliter,  if  alteration  be  fraudulent,  214. 
by  mutual  consent,  does  not  avoid,  214. 
by  a  stranger,  effect  of,  215,  218. 

called  a  "  spoliation,"  215. 
of  negotiable  instrument  avoids  it  in  hands  of  innocent  holder,  214. 
of  ancient  documents,  213. 

of  deed,  may  avoid  covenants,  but  does  not  divest  title,  214. 
of  deeds  and  other  documents,  when  presumed  to  be  made,  215-218. 
burden  of  proof  to  explain,  215-217. 
question  as  to  time  of  making  and  by  whom,  etc.,  generally  for 

jury,  215,  216. 
of  will,  when  presumed  to  be  made,  216,  217. 
what  are  material  alterations,  and  what  immaterial,  217,  218. 
materiality  a  question  for  the  court,  218. 
immaterial  alterations  do  not  avoid,  218. 

aliter,  in  some  States,  if  made  by  party,  218. 
filling  blanks  in  documents,  effect  of,  218,  265,  266. 
Ambassadors,  judicially  noticed,  167. 
not  bound  to  obey  subpcena,  283. 
Ambiguity  in  documents,  parol  evidence  to  explain,  228,  229,  231, 
235.    (See  Oral  Evidence.) 
patent  ambiguity,  228,  229. 
latent  ambiguity,  231,  235,  375-377. 
Ancestor,  admissions  of  bind  heir,  60. 
Ancient  deeds  and  wills,  competency  of  as  evidence,  102. 
presumption  as  to,  212-214. 
alteration  of,  213. 
maps  as  evidence,  103,  115. 
Ancient  lights,  doctrine  of,  rejected  in  this  country,  260. 
Animals,  evidence  of  similar  injuries  to  show  scienter,  44. 

habit  of,  shown  by  similar  acts,  50. 
Annuity  tables,  as  evidence,  117. 
Ante  litem  motam,  meaning  of,  106. 

Appearance,  by  attorney,  unauthorized,  effect  of  judgment  on,  138. 
of  a  person,  as  evidence  of  his  age,  104,  177. 
evidence  of  opinion  as  to  person's  appearance,  142. 
Arbitrators,  competency  of  as  witnesses,  281. 

former  testimony  before  them  may  be  proved,  116. 


412  INDEX. 

(The  numbers  refer  to  pages.) 

Arson,  evidence  of  threats  in  trials  for,  20. 

whether  provable  by  evidence  of  repeated  acts,  50,  51. 
proof  of  required  as  a  defence  in  insurance  cases,  51,  239,  241. 
presumption  of  guilt  from  recent  possession  of  stolen  goods,  245 
Art,  matters  of,  provable  by  opinion  evidence,  144. 
Assault  and  battery,  evidence  of  character  irrelevant  in  actions  for,  1G0. 
evidence  of  threats  in  trials  for,  20. 
indecent,  woman's  bad  character  for  chastity  relevant,  161,  339. 

evidence  of  her  connection  with  other  men,  339. 
husband  or  wife  may  testify  as  to  battery  by  the  other,  276. 
Assignor  and  assignee  of  personal  property  or  choses  in  action,  ad- 
missions of.    (See  Admissions.) 
Atheists,  competency  of  as  witnesses,  272,  273. 

may  affirm,  instead  of  taking  an  oath,  306,  307. 
dying  declarations  of,  88,  341. 
Attachment  suits,  effect  of  judgments  in,  127,  140. 
Attempt  to  escape  or  avoid  arrest,  when  provable,  23. 
to  commit  rape,  evidence  of  woman's  complaints,  24. 
to  commit  former  crimes,  when  relevant,  35. 
Attested  documents,  proof  of  execution  of,  180-185,  213.    (See  Docu- 
ment ;  Subscribing  witness.) 
Attesting  witness.     (See  Subscribing  witness.) 
Attorney,  admissions  by,  67,  68,  71. 

stipulations  of,  binding  on  client,  68. 

authority  to  compromise  suit,  68. 

book  entries  of  deceased  attorney,  when  admissible,  91. 

may  testify  to  former  testimony  of  deceased  witness,  no. 

unauthorized  appearance  of,  judgment  on,  138. 

liable  for  costs  if  affidavit  drawn  by  him  contains  scandalous 

matter,  312. 
status  and  signature  of,  judicially  noticed,  167. 
not  producing  client's  document  on  notice,  secondary  evidence 
admissible,  187,  296. 
notice  to  produce  maybe  given  to,  192,  296. 
must  prove  good  faith  as  to  dealings  with  client,  248,  254. 
competency  of  as  witness  in  suit  in  which  he  is  attorney,  282. 
privileged   from    testifying  as  to   professional   communications 
from  client,  286-291. 
clerks  and  interpreters  also  privileged,  289,  290. 
but  not  a  law  student,  not  being  clerk,  289,  290. 
nor  a  lawyer  acting  merely  as  conveyancer,  290. 
nor  a  solicitor  of  patents,  290. 
nor  a  person  who  is  not  an  attorney,  290. 


INDEX.  413 

(The  numbers  refer  to  pages.) 

Attorney  {continued). 

nor  officers  of  a  corporation,  289,  290. 
client  may  waive  the  privilege,  287. 
what  constitutes  a  waiver,  287. 
privilege  does  not  cover  communications  to  effect  a  crime  or 
fraud,  288,  291. 
nor  knowledge  which  attorney  acquires  by  his  own  ob- 
servation, 289,  290. 
nor  facts  which  he  learns  otherwise  than  as  legal  adviser, 

288. 
nor  communications  not  of  a  private  nature,  289. 
nor  facts  of  a  collateral  nature,  289,  296. 
communications  made  while  all  parties  are  present,  not  privi- 
leged in  suits  between  themselves,  289. 
attorney  may,  in  support  of  will,  testify  to  directions  given 

by  testator,  289. 
client  privileged  from  testifying  as  to  communications  to  at- 
torney, 291,  292. 
but  may  waive  the  privilege,  291. 
an  accomplice  who  turns  State's  evidence  must  disclose  com- 
munications to  his  attorney,  291,  292. 
attorney  only  compellable  to  produce  documents  which  client 

could  be  compelled  to  produce,  296. 
documents  amounting  to  professional  communications,  privi- 
leged, 287,  296. 
so  of  documents  which  would  tend  to  criminate  client,  296, 
297. 
Auditors,  competency  of,  as  witnesses,  281. 
power  of,  to  take  testimony,  310. 

Bad  faith,  provable  by  similar  acts  or  declarations,  42. 
Bailee,  estopped  to  deny  bailor's  title,  267,  268. 

but  may  show  delivery  of  goods  by  him  to  real  owner,  268. 

burden  of  proof  in  action  by  bailor  against  bailee  for  the  value  of 
goods  entrusted  to  bailee,  245,  246. 
Bankers'  books,  competency  of  entries  in,  117,  393. 

what  are  such  books,  393. 

bankers  not  compellable  to  produce,  295,  394. 

judge's  powers  as  to,  394. 

entries  in,  how  proved,  394. 
Bankrupt,  admissions  of,  72. 

confessions  of,  83. 
Banks,  customs  of  judicially  noticed,  165. 


414  INDEX. 

(The  numbers  refer  to  pages.) 

Baptism,  register  of,  admissibility  of  entries  in,  94. 
Barrister,  admissions  by,  67,  68,  71. 

competency  of  as  witness,  281,  282. 

privilege  as  to  professional  communications,  286-291.    (See  At- 
torney.) 
Bastardy,  effect  of  judgment  as  to,  127. 

provable  by  preponderance  of  evidence,  240. 

proceedings,  marriage  provable  by  cohabitation  and  repute,  156. 
statements  made  by  mother,  when  provable,  24,  256,  257. 
corroboration  of  mother's  evidence,  when  required,  300,  301.  . 
paternity,  when  provable  by  woman's  evidence,  256,  340. 
when  mother's  connection  with  other  men  may  be  shown,  340. 
Belief,  when  witness  may  testify  to  his,  176. 

Bentham,  influence  of,  in  reforming  law  of  evidence,  xv.,  xvii.,  xxv. 
Bias,  witness  may  be  cross-examined  as  to  facts  showing,  322,  323. 

may  be  contradicted  if  he  denies  such  facts,  325,  326. 
Bible,  as  evidence  of  pedigree,  107. 

Bigamy,  in  trials  for,  marriage  not  provable  by  cohabitation  and  re- 
pute, 156. 

the  presumption  of  innocence  as  affected  by  the  presumption  of 
the  continuance  of  life,  241,  249. 
Bill  of  exceptions,  to  prove  testimony  in  former  proceeding,  1 10. 
Bill  of  exchange,  admissions  of  holder  of,  64. 

indorsement  of  payment  on,  effect  of  as  evidence,  96,  97. 

effect  of  judgment  against  indorser,  132. 

alteration  of.    (See  Alteration.) 

filling  blanks  in,  218,  265,  266. 

presumption  that  indorsee  acquired  it  bona  fide  for  value,  244. 

burden  of  proof  in  action  by  indorsee  against  maker,  244. 

when  in  hands  of  acceptor,  presumed  to  have  been  paid,  262. 

estoppel  of  acceptor,  267. 

whether  party  competent  to  testify  that  it  was  invalid  in  its  incep- 
tion, 271. 
Bill  of  lading,  receipt  in,  open  to  explanation,  222. 

shipmaster  signing,  when  estopped  to  deny  shipment,  268,  269. 

shipowner,  whether  bound  by  master's  act,  269. 
Bill  of  sale,  shown  by  oral  evidence  to  be  a  mortgage,  221. 
Birth,  as  matter  of  pedigree,  104. 
Blanks  in  documents,  effect  of  filling,  218,  265,  266. 
Bodily  feelings,  provable  by  similar  acts  or  declarations,  42. 

expressions  of,  provable,  47,  48. 
Bond,  indorsement  of  payment  on,  effect  of  as  evidence,  96,  97. 

presumed  paid  after  20  years,  263. 


INDEX.  415 

(The  numbers  refer  to  pages.) 

Bond  {continued). 

official  sureties  on,  when  bound  by  judgment  against  principal,  132. 
Book  entries,  in  partnership  books  evidence  against  partner,  58. 
made  in  course  of  business,  admissibility  of,  91-95. 

entries  by  deceased  notaries,  clerks,  bank  tellers,  attorneys, 

physicians,  etc.,  91. 
handwriting  of  deceased  person  to  be  proved,  91. 
entries  of  insane  or  absent  witness,  91,  93. 
books  of  original  entry  only  admissible,  93. 
effect  of  transcribing  charges,  93. 
made  upon  information  given  by  others,  94. 
made  by  party  himself,  competency  of,  92. 

how  authenticated,  91. 
in  public  books  and  records,  relevancy  of,  94,  1 12,  113. 
in  corporation  books,  113,  114. 
in  bank-books,  117,  393. 
Books,  historical,  medical,  scientific,  etc.,  as  evidence,  114-116. 

price  current  lists,  annuity  tables,  almanac,  gazetteer,  etc.,  116, 

117. 
reading  law  books  and  other  books  to  jury,  1 16. 
Boundaries,  public  and  private,  declarations  concerning,  61, 101,  102. 
of  public  highways,  etc.,  102,  103. 
provable  by  ancient  maps,  115. 
of  State  or  county,  etc.,  judicially  noticed,  170,  171. 
Breach  of  promise  of  marriage,  woman's  bad  character  for  chastity 
provable,  161. 
corroboration  of  plaintiff's  evidence,  when  required,  300,  301. 
Bribing  of  witness  to  go  away,  when  provable,  22. 

of  juror,  when  provable,  23. 
Burden  of  proof: 

rests  on  person  asserting  or  denying  a  state  of  facts,  237,  250. 
general  burden  on  party  against  whom,  in  the  absence  of  evi- 
dence, judgment  would  be  given,  242. 
or  upon  party  against  whom  pleadings  raise  a  presumption, 

242,  248,  249. 
is  on  plaintiff  when  his  cause  of  action  is  denied,  in  whole  or 
in  part,  242. 
even  though  his  cause  of  action  involves  negative  ave~ 
ments,  240,  241,  242. 
as  in  an  action  for  malicious  prosecution,  252. 
in  proving  a  negative,  plenary  proof  not  required,  25*. 
is  on  defendant  when  he  admits  cause  of  action  and  sets  up 
affirmative  defence,  242. 


416  INDEX. 

(The  numbers  refer  to  pages.) 

Burden  of  proof  {continued). 

aliter,  if  action  is  for  unliquidated  damages,  242. 
party  having  burden  has  right  to  open  and  close  the  case, 

242,  243. 
burden  remains  on  him  throughout  the  trial,  243. 

in  criminal  cases  rests  on  the  government,  243. 
meaning  of  "shifting  of  the  burden,"  243,  245,  246. 
party  having  burden  must  prove  all  material  allegations,  244. 
may  sometimes  make  out  prima  facie  case  by  showing 
mere  occurrence  of  injury  (res  ipsa  loquitur),  243, 
249,  250. 
in  action  by  indorsee  of  negotiable  instrument  against  maker,  244. 
in  action  by  bailor  against  bailee  for  the  value  of  the  goods  bailed, 

245.  246. 
as  to  validity  of  will  and  testator's  insanity  in  proceedings  for  pro- 
bate, 246. 
as  to  undue  influence,  affecting  a  will,  247. 
in  criminal  case,  when  defence  of  insanity  is  made,  247. 
how  affected  by  presumption  from  the  recent  possession  of  stolen 
goods,  245. 
by  the  fact  that  parties  stand  in  a  fiduciary  relation,  248,  253, 

254.  304- 
by  presumption  of  innocence  as  conflicting  with  the  presump- 
tion of  continuance  of  life,  241. 
in  trials  for  crime,  proof  of  guilt  required  beyond  reasonable 
doubt,  237. 
so  in  proving  statute  to  be  unconstitutional,  240. 
meaning  of  reasonable  doubt,  237,  238. 
in  civil  actions,  only  preponderance  of  evidence  required,  238,  239. 
charge  of  crime  in  civil  cases  provable  by  a  preponderance 
of  evidence,  239. 
as  in  justifying  a  charge  of  crime  in  libel  and  slander 
cases,  239. 
aliter,  in  some  States,  239. 
and  in  insurance  cases  involving  charge  of  arson,  239. 

aliter,  in  England  and  some  States,  239,  241. 
and  in  actions  for  selling  liquor,  stealing,  fraud,  commit- 
ting adultery,  bastardy,  etc.,  239,  240. 
in  some  civil  actions,  evidence  must  be  "clear,  unequivocal,  and 
convincing,"  240. 
as  to  show  deed  to  be  a  mortgage,  240. 
to  reform  deed,  240. 
to  establish  resulting  trust,  240. 


ihdea.  4I7 

(The  numbers  refer  to  pages.) 

Burden  of  proof  {continued). 

to  set  aside  instrument  for  fraud  or  mistake,  240. 
to  sustain  defence  of  usury,  240. 
to  establish  gift  causa  mortis,  240. 
to  impeach  acknowledgment  of  deed,  240. 
as  to  particular  fact,  250. 

defendant  must  prove  his  affirmative  defences,  250. 
as  payment,  usury,  fraud,  illegality,  etc.,  250. 
and  the  defences  of  insanity,  or  alibi,  or  self-defence,  in 
criminal  cases,  247,  248,  251. 
extent  of  proof  required,  247,  248. 
in  negligence  suits,  plaintiff  proves  defendant's  negligence, 
and  defendant  that  of  plaintiff,  251. 
but  in  some  States  plaintiff  must  prove  his  own  freedom 
from  negligence,  252. 
one  party  must  prove  the  other's  admissions,  251. 
burden  on  person  having  special  opportunities  of  knowledge, 
251. 
person  charged  with  acting  without  legal  license  must 
prove  that  he  has  one,  251. 
as  to  alteration  of  document,  215-217. 
burden  on  party  introducing  evidence  to  prove  preliminary 

facts  on  which  its  admission  depends,  253. 
burden  as  to  confession,  as  being  voluntary  or  involuntary,  jj. 
burden  of  proving  time  of  person's  death  who  has  been  absent 
seven  years  unheard  from,  257. 
Burglary,   presumption  of    guilt  from   recent   possession  of    stolen 

goods,  245. 
Business,  course  of.     (See  Course  of  Business.) 
usages  of.    (See  Custom.) 

Cabinet  officers,  status  of,  judicially  noticed,  167. 

not  compellable  to  disclose  state  secrets,  283. 
Calendar,  judicially  noticed,  171. 

Carefulness,  habit  of,  not  provable  in  trial  for  negligence,  51.     (See 
Negligence.) 

whether  system  or  course  of  business  may  be  shown  to  prove 
carefulness,  49,  50. 
Case,  to  prove  testimony  in  former  proceeding,  no. 
Cause  and  effect,  relevancy  of  facts  to  show,  5,  34,  352. 
Cause  of  action,  not  to  be  spilt,  120,  124,  125. 

burden  of  proof  to  establish.     (See  Burden  of  Proof.) 
Census,  judicially  noticed,  170. 


418  INDEX. 

(The  numbers  refer  to  pages.) 

Certainty,  moral,  237. 

Certificates,  as  evidence,  199,  200.     (See  Acknowledged  Deed.) 

Certified  copy  of  document,  as  evidence,  186,  198',  199,  200. 

Chancery,  discovery  in.     (See  Discovery.) 

judgments  impeachable  in  courts  of,  for  lack  of  jurisdiction  or 

fraud,  137,  139. 
corroborative  evidence  in  chancery  suits,  305.     (See  Witness.) 
examiners  in  U.  S.  courts  cannot  pass  on  objections  to  testimony, 

310.  3"- 
Character,  evidence  of,  generally  irrelevant,  xix.,  158. 

good  or  bad,  in  criminal  cases,  when  relevant,  7,  158,  159,  395. 
presumed  to  continue,  261. 

in  trials  for  rape,  adultery,  indecent  assault,  etc.,  woman's 
bad  character  for  chastity  provable,  337-339. 
aliler,  if  woman  be  under  the  age  of  legal  consent,  339. 
character  for  quarrelsomeness,  when  provable,  20. 
means  reputation  as  distinguished  from  disposition,  159,  161,  369. 
in  civil  cases,  generally  irrelevant,  159,  160. 
as  in  actions  for  assault  and  battery,  160. 
or  upon  a  promissory  note,  160. 
or  for  negligence,  160. 
or  where  fraud  is  charged,  160. 
or  to  rebut  charge  of  crime,  160. 
in  some  civil  actions,  relevant,  160,  161. 
as  in  actions  for  libel  or  slander,  161. 
or  for  malicious  prosecution,  161. 
or  for  criminal    conversation,    seduction,    indecent 

assault,  etc.,  161,  339,  340. 
or  to  show  master's  knowledge  of  servant's  incom- 
petency, 46,  160. 
of  house,  how  provable,  50. 

of  witness,  when  and  how  provable.     (See  Witness.) 
Charter  of  corporation,  when  judicially  noticed,  163. 
Charts,  statements  in,  when  relevant,  114,  115. 
Chastity,  character  for.     (See  Character.) 
Chattel,  value  of,  how  provable,  36,  143. 

Chattel  mortgage,  bill  of  sale  shown  to  be  by  parol  evidence,  221. 
Check,  liability  of  banker  when  sum  payable  is  increased  by  forgery, 

265,  266. 
Children,  dying  declarations  of,  88.     (See  Parent  and  Child.) 
domicil  of,  how  provable,  30. 

jury  may  judge  of  age  by  his  appearance,  104,  177. 
rape  upon,  evidence  of  child's  complaints,  24,  25. 


INDEX.  419 

(The  numbers  refer  to  pages.) 

Children  {continued). 

legitimacy  of,  presumed,  255. 

competency  of  as  witnesses,  271-274,  380,  405. 
Circumstantial  evidence,  defined,  4. 

illustrations  of,  29-32,  352,  353. 

proof  of  conspiracy  by,  16. 
Cities,  judicially  noticed,  169. 

Civil  actions,  burden  of  proof  in.     (See  Burden  of  Proof.) 
Civil  divisions  of  State,  judicially  noticed,  169. 

also  their  relative  positions,  170. 
Clergymen,  privilege  of  as  to  confidential  communications,  292, 293, 382. 

person  confessing  may  waive  the  privilege,  292,  293. 

must  prove  good  faith  as  to  dealings  with  person  confessing  to 
them,  254. 
Clerks,  of  court,  judicially  noticed,  167. 

of  merchants,  notaries,  etc.,  book  entries  of,  91. 

of  lawyers,  privileged  from  disclosing  professional  communica- 
tions, 289,  290. 
Cohabitation  and  repute,  as  evidence  of  marriage,  155,  156. 
Collateral  facts,  not  relevant,  6. 

about  documents,  shown  by  oral  evidence,  191,  224. 
Collateral  documents,  proof  of  contents  of,  190. 
Collateral  impeachment  of  judgments,  136-140. 
Colonial  acts  of  state,  proof  of  in  English  courts,  399. 
Commissioners,  power  of  to  take  testimony,  310. 
Commissions  to  take  depositions.     (See  Deposition.) 
Common  law,  of  forum  judicially  noticed,  163. 

of  other  States  and  countries,  how  provable,  145. 
Communications,  privileged.    (See  Privileged  Communications.) 
Comparison  of  handwritings.    (See  Opinion,  Evidence  of.) 
Competency  of  evidence,  4. 

determined  by  judge,  4. 

of  witnesses.     (See  Witness.) 
Complaints  in  cases  of  rape,  evidence  of.     (See  Rape.) 
Compromise,  effects  of  offers  of,  as  admissions,  73,  74. 

authority  of  attorney  to  compromise,  68. 
Concealment,  of  documents.     (See  Document.) 

of  person  to  avoid  arrest,  22. 
Conclusions  of  law,  witness  cannot  testify  to,  176. 
Conclusive  proof,  definition  of,  4,  351. 

Conditions  in  documents,  when  provable  by  parol  evidence,  222,  226. 
Conduct  after  an  act,  effect  of  as  evidence,  23. 

statements  affecting  conduct  provable.  25. 


420  INDEX. 

(The  numbers  refer  to  pages.) 

Confession,  judgment  on  is  a  bar,  122. 
Confessions,  denned,  75. 

how  different  from  admissions,  75. 

by  silent  acquiescence    15,  25,  27,  75. 

caused  by  inducement,  threat,  or  promise,  effect  of,  76-82. 

extrajudicial  must  be  corroborated  by  proof  of  corpus  delicti, 

75.  79- 
alitcr,  as  to  judicial  confession,  76. 
effect  of  plea  of  guilty,  76. 
whole  confession  to  be  brought  out,  75. 
of  co-conspirators,  15. 

of  one  of  several  defendants,  effect  of,  15,  76. 
admissibility  of  determined  by  judge,  77. 
when  voluntary  and  when  involuntary,  77-85. 
burden  of  proof  as  to  confession  being  voluntary  or  involuntary,  77. 
grand  jurors  may  testify  as  to  confessions  given  before  them,  286. 
effect  of  when  made  to  person  in  authority,  77-82. 
to  person  not  in  authority,  79,  82. 
who  is  person  in  authority,  80. 
by  prisoner  in  custody,  78. 
by  accomplice  who  turns  State's  evidence,  78. 
effect  of  when  made  after  impression  of  hope  or  fear  is  removed, 

80,  82. 
facts  discovered  by  means  of  involuntary  confessions,  when  prov- 
able, 80,  82. 
effect  of  when  made  under  oath,  82-84,  298,  363. 

upon  preliminary  examination  before  committing  magistrate, 

83,  85. 
at  coroner's  inquest,  84. 
before  grand  jury,  84. 
effect  of  when  made  under  promise  of  secrecy,  84. 
or  when  obtained  by  deception,  84. 

or  by  religious  exhortations,  79,  81. 
or  by  collateral  inducements,  79,  82. 
or  by  violence  of  mob,  79. 
when  made  by  drunken  person,  85. 
by  person  asleep,  85. 
by  person  in  prayer,  85. 
or  when  made  in  answer  to  questions,  85. 
or  when  made  without  warning  being  given  of  the  conse- 
quences, 85. 
Congress,  acts  of  judicially  noticed  in  State  courts,  164. 
laws  nf,  how  proved,  20J. 


INDEX.  421 

(The  numbers  refer  to  pages.) 

Consideration  of  document,  provable  by  parol,  221. 

want  of,  also  so  provable,  220,  221. 
Conspirators,  acts  and  declarations  of,  when  relevant,  14-16,  63,  355. 

confessions  of,  15,  76. 

proof  of  conspiracy,  15,  16. 
Constitution,  does  not  exclude  evidence  of  dying  declarations,  86,  87. 

nor  evidence  given  in  former  proceeding,  109. 

prohibits  seizure  of  private  papers  to  criminate,  294. 

requires  credit  to  be  given  to  records  of  other  States,  139,  201. 
Construction  of  documents.     (See  Interpretation  and  Construction  of 
Documents ;  Oral  Evidence.) 

of  foreign  statute,  shown  by  experts,l46.  (See  Opinion,  Evidence  of.) 
Consul,  not  bound  to  obey  subpoena,  283. 
Contempt,  of  witness  in  disobeying  subpoena,  193. 

Contract,  written,  how  far  modifiable  by  parol  evidence.     (See  Oral 
Evidence.) 

made  by  telegrams,  evidence  of,  179. 

alteration  of.     (See  Alteration.) 

effect  of  judgment  against  co-contractor,  131. 
Contradiction  of  witness,  when  allowed.     (See  Witness.) 
Conveyancers,  privilege  of  as  to  professional  communications,  290. 
Conviction  for  crime,  as  affecting  competency  of  witness.     (See  Infa- 
mous Persons ;   Witness.) 
Copy  of  document,  as  evidence  of  its  contents;  different  kinds  of  copies. 
(See  Document.) 

admissibility  of  copies  to  show  handwriting,  153,  154. 
Coroner's  inquest,  confessions  made  at,  84. 

former  testimony  at,  not  admissible,  ill. 
Corporation,  admissions  of  member  or  officer,  when  competent,  65 

books  of  as  evidence,  113,  114. 

may  be  served  with  subpoena  duces  tecum,  193,  296. 

presumed  to  act  within  its  lawful  powers,  261. 

officer  of,  has  not  the  privilege  of  a  lawyer  as  to  professional  coin- 
munications,  289,  290. 

agent  of,  whether  compellable  to  produce  corporate  books  in  evi- 
dence, 193,  296. 

charter  of,  when  judicially  noticed,  163. 
Corpus  delicti,  when  confessions  must  be  corroborated  by  proof  of, 

75-  79- 
Corroboration,  of  confessions  by  proof  of  corpus  delicti,  75,  79. 

of  ancient  documents,  213. 

of  witnesses,  when  required.     (See  Witness  ;  Accomplice.) 
Corroborative  evidence,  4. 


422  INDEX. 

(The  numbers  refer  to  pages.) 

Costs  of  affidavit  containing  improper  matter,  by  whom  payable.  311, 

312. 
Counsellor.     (See  Attorney  ;   Barrister.) 

Counterfeit  money,  uttering  of,  similar  acts  to  show  knowledge,  43. 
Counterparts  as  evidence,  primary  or  secondary,  179,  186,  191. 
County,  officers  of,  judicially  noticed,  170. 

so  of  population  and  boundaries  of  county,  168. 
Course  of  business,  provable  to  show  particular  act  within  it,  53,  54. 
presumed  to  be  followed,  262. 
when  provable,  to  show  care  or  negligence  in  doing  particular 

act,  49,  50. 
declarations  made  in,  90-95.     (See  Book  Entries.) 
Courts,  jurisdiction  of,  how  determined,  135. 

jurisdiction  of  superior  courts,  presumed,  136. 

aliter,  of  inferior  courts,  137. 
effect  of  record  as' estoppel.     (See  Judgment.) 
rules,  officers,  and  terms  of,  judicially  noticed,  166,  167. 
seals  of,  when  judicially  noticed,  168,  169. 
existence  of,  when  noticed  by  other  courts,  166. 
of  admiralty  jurisdiction,  judicially  noticed,  168,  169. 
of  States,  notice  acts  of  Congress,  164. 
of  U.  S.,  notice  State  laws,  164. 
records  of,  how  proved,  201,  202. 
Credit,  to  whom  given  on  a  sale  of  goods,  31. 
of  witness,  impeaching.     (See  Witness.) 
Crime,  burden  of  proof  in  trials  for.     (See  Burden  of  Proof.) 

one  crime  not  provable  by  evidence  that  accused  committed  an- 
other, 35. 
aliter,  when  one  forms  the  motive  or  preparation  for  the  other, 
or  they  are  parts  of  a  general  scheme,  etc.,  35. 
intent  or  knowledge  provable  by  similar  crimes,  43,  44. 
provable  by  evidence  of  system,  50-52. 

proof  of  by  defendant's  silence  when  accused,  15,  25,  27,  75. 
must  be  proved  beyond  reasonable  doubt,  237. 
evidence  of  character  in  trials  for,  when  relevant.   (See  Character. ) 
conviction  for  crime,  disqualifies  witness,  when.     (See  Infamous 

Persons  ;  Witness.) 
competency  of  defendant  as  witness,  275-277. 
of  husband  or  wife  of  defendant,  275-277. 
witness  privileged  from  disclosing  information  as  to  commission 

of  crimes,  283. 
attorney  privileged  as  to  disclosing  communications  relating  to 
crime,  288,  291. 


INDEX.  423 

(The  numbers  refer  to  pages.) 

Crime  {continued). 

preliminary  examination  of  prisoner  before  committing  magistrate, 
83,  85,  308,  346.     (See  Examination.) 
deposition  taken  on  examination,  admissibility  of,   109,  346, 
347.     (See  Confession  ;  Dying  Declarations,  etc.) 
Crimen  falsi,  denned,  273. 

Criminal  conversation,  in  actions  for,  woman's  unchaste   reputation 
provable,  161. 
marriage  not  provable  by  cohabitation  and  repute,  155,  156. 
expressions  and  letters  showing  state  of  feeling,  competent,  46, 

47,  2I°. 
Criminating  documents  or  evidence,  witness  not  compellable  to  pro- 
duce or  give,  187,  294,  296-300.     (See  Witness;  Subpoena  duces 
tecum.) 
Cross-examination,  of  witness.     (See  Witness.) 
Cumulative  evidence,  4. 
Custom,  evidence  of  facts  showing,  18. 

provable  by  oral  evidence  to  affect  writing,  223,  224,  227,  232.  m 

provable  by  one  witness,  19,  305. 

public  or  general,  declarations  concerning,  100-103. 

of  business  and  those  recognized  in  courts,  judicially  noticed,  165, 

166. 
of  others  in  same  business  or  employment,  when  relevant,  50. 
Cyclopaedia,  as  evidence,  117.. 

Damages,  evidence  of  opinion  concerning,  relevancy  of,  143. 
opinion  as  to  value  of  property,  services,  etc.,  143,  144. 

as  to  cases  of  taking  property  by  eminent  domain,  144. 
in  actions  for  unliquidated  damages,  where  defendant  pleads 
affirmative  defence,  burden  of  proof  on  plaintiff,  242. 
Date  of  document,  presumption  as  to,  209,  210. 
true  date  may  be  proved  by  parol,  220. 
day  of  week  on  which  date  falls,  judicially  noticed,  171. 
day  of  mailing  letter  not  presumed  from  date  of  post-mark,  54. 
Deaf  and  dumb  persons,  competency  of  as  witnesses,  272. 
Death,  as  matter  of  pedigree,  104,  107. 

as  ground  to  receive  evidence  given  in  former  proceeding,  108, 109. 
presumption  of  from  seven  years'  absence,  257. 
sometimes  inferred  from  shorter  absence,  258. 
presumption  as  to  time  of  absent  person's  death,  257,  258. 
order  of  death  when  several  persons  perish  in  same  calamity,  how 

established,  258. 
of  witness  before  his  examination  is  concluded,  effect  of,  315,  316. 


424  INDEX. 

(The  numbers  refer  to  pages.) 

Deceased  persons,  relevancy  of  their  declarations,  86-1 1 1.    (See  Dec- 
larations.) 
Declarations,  provable  when  part  of  the  res  gestce.     (See  Res  Gestce.) 
of  conspirators,  when  provable.     (See  Conspirators.) 
in  presence  of  a  person,  when  provable,  15,  25,  26,  27,  58,  72,  75. 
concerning  domicil,  26,  30. 

as  to  bodily  and  mental  feelings,  provable,  46-48,  210. 
of  deceased  attesting  witness,  irrelevant,  55. 

constituting  hearsay  evidence,  not  admissible,  55.    (See  Hearsay.) 
amounting  to  admissions.     (See  Admissions.) 
of  owner  of  land  or  chattels  characterizing  his  possession,  61,  62. 
amounting  to  confessions.     (See  Confessions.) 
by  persons  since  deceased,  86-1 1 1. 

dying  declarations,  86-90.     (See  Dying  Declarations.) 
made  in  course  of  business  or  professional  duty,  90-95.     (See 

Course  of  Business  ;  Book  Entries.) 
declarations  against  interest,  95-99. 

nature  of  the  interest  required,  95,  97,  99. 

whole  of  declaration  relevant,  though  it  contains  matter 

of  charge  and  discharge,  95. 
effect  of  declarant's  having  a  limited  interest  in  property, 

96,  99. 
effect  of  indorsement  of  payment  on  bond,  bill,  note,  etc., 
96,  97- 
by  testators  as  to  intention  and  as  to  contents  of  will,  99,  100. 
as  to  public  and  general  rights,  100-103. 
must  be  made  ante  lite»i  motam,  106. 
provable  by  ancient  maps,  115. 
relevancy  of  judgment  relating  to,  131,  134. 
as  to  public  and  private  boundaries,  101,  102,  115. 
as  to  pedigree,  103-107.    (See  Pedigree.) 
of  deceased  persons,  how  impeachable,  340,  341. 
Decree  of  court,  as  evidence  of  public  and  general  rights,  103. 
of  executive,  when  judicially  noticed,  169. 
proof  of  foreign,  205. 
Deed,  as  evidence  of  public  and  general  rights,  103. 
as  evidence  of  pedigree,  107. 

presumptions  as  to  sealing  and  delivery  of,  209,  211,  212.     (See 
Seal.) 
as  to  date  of  execution  and  delivery,  209. 
proof  of  execution  of,  181,  182,  185,  213.     (See  Document.) 
ancient,  presumption  as  to,  212-214. 
competency  of  as  rvidence,  102. 


INDEX.  ,      425 

(The  numbers  refer  to  pages.) 

Deed  {continued). 

effect  of  alteration  of,  214-217.     (See  Alteration.) 

filling  blanks  in,  218. 
modification  by  oral  evidence.     (See  Oral  Evidence.) 

consideration  or  lack  of  it  shown  by  oral  evidence,  221.    (See 

Acknowledged  Deed.) 
shown  by  oral  evidence  to  be  an  advancement,  or  a  mortgage, 
221. 
weight  of  evidence  required,  240. 
cannot  be  delivered  to  grantee  in  escrow,  222. 
weight  of  evidence  required  to  impeach  certificate  of  acknowledg- 
ment, 240. 
production  of  by  witness,  whether  compellable,  293,  294,  296. 
Default,  judgment  on  is  a  bar,  122,  125. 
Definitions,  general,  3. 

Delivery  of  deed.     (See  Deed  ;  Presumption.) 
Demand,  provable  orally,  though  made  in  writing,  191. 
Demonstrative  evidence,  3. 
Demurrer,  when  judgment  on  is  a  bar,  122. 

effect  of  as  an  admission,  174. 
Depositions,  admissions  contained  in,  58. 

whether  necessary  in  order  to  prove  contents  of  absent  docu- 
ment, 189. 
may  be  taken  under  a  commission,  309. 

methods  prescribed  by  commission  must  be  followed,  310. 
commissioners,  how  enabled  to  obtain  evidence,  309. 
when  taken  under  letters  rogatory,  309. 
objections  to,  what  may  be  made  and  when,  312,  340,  341. 
motion  to  suppress,  312. 
though  deposition  taken,  yet  personal  testimony  of  witness  prefer- 
able, 313. 
on  preliminary  examination  before  magistrate,  when  admissible, 

109,  347- 

before  committing  magistrates  in  criminal  cases,  83, 85, 308, 346, 347. 

under  30  &  31  Vict.  c.  35,  s.  6,  347. 

under  Merchant  Shipping  Act,  1854  (England),  348,  349. 
Deputy-sheriff,  admissions  of,  when  competent  against  sheriff,  41. 

signature  of,  not  judicially  noticed,  168. 
Destruction  of  documents.     (See  Document ;  Presumption.) 
Detectives,  testimony  of  does  not  require  corroboration,  302. 

are  not  persons  in  authority,  as  respects  confessions,  80. 
Devisee,  admissions  of  do  not  bind  another  devisee,  69. 

not  bound  by  admissions  of  executor,  69. 


426  INDEX. 

(The  numbers  refer  to  pages.) 

Devisor,  admissions  of  bind  devisee,  60. 
Direct  evidence,  xix.,4,  175,  370. 
Discontinuance,  judgment  of  not  a  bar,  121,  122. 

Discovery,  of  title-deeds  and  other  papers  by  party,  when  required, 
293,  294,  296. 
and  inspection  of  documents  before  trial,  192. 
Dismissal  of  complaint,  judgment  of  not  a  bar,  121. 

aliter,  if  on  the  merits,  171. 
Disputable  presumption,  5,  351. 

Districts,  judicial  and  internal  revenue,  judicially  noticed,  171. 
Divorce,  effect  of  judgment  granting,  119,  127. 

presumed,  to  sustain  the  validity  of  a  second  marriage,  241. 
marriage  provable  by  cohabitation  and  repute,  156. 
adultery  provable  by  preponderance  of  evidence,  239. 
corroboration  of  complainant's  evidence,  when  required,  301. 
power  of  court  to  order  physical  examination  in  suits  for,  177. 
Document,  definition  of,  3. 

evidence  to  show  genuineness  of,  relevant,  20. 

evidence  to  show  destruction  or  concealment  of,  when  relevant,  22. 

documentary  evidence  defined,  xix.,  3. 

proof  of  contents  of,  178-207. 

must  generally  be  proved  by  primary  evidence,  180,  219,  373. 
what  constitutes  primary  evidence,  xix.,  178. 
in  case  of  duplicates,  179,  191. 
in  case  of  counterparts,  179,  191. 
in  case  of  lithographed  or  photographed  documents, 

179. 
in  case  of  telegrams,  179,  180. 
contents  provable  by  admissions,  178. 
provable  by  secondary  evidence  in  many  cases,  186-191. 
what  constitutes  secondary  evidence,  xix.,  186. 

exemplifications,  examined  copies,  office  copies,  certi- 
fied copies,  186,  198-200. 
other  copies,  as  letter -press   copies,   photographic 

copies,  etc.,  180,  186. 
counterparts  in  some  cases,  186. 
oral  testimony  of  contents,  186. 
admissibility  of  determined  by  judge,  191. 
when  secondary  evidence  may  be  given,  186-191. 

when  opponent  does  not  produce  document  on  notice, 

187. 
when  stranger,  having  privilege,  does  not  produce  on 
subpoena,  187,  296. 


INDEX.  427 

(The  numbers  refer  to  pages.) 

Document  (continued). 

when  document  is  destroyed  or  lost,  136. 
but  not,  if  intentionally  destroyed,  188. 
presumption  against  one  who  destroys,  263. 
how  loss  provable,  188,  196. 
when  original  is  not  easily  movable,  or  is  out  of  juris' 

diction,  188,  189. 
when  original  is  public  document,  189. 
when  party  has  been  deprived  of  original  by  fraud, 

189. 
when  mode  of  proof  is  authorized  by  statute,  189. 
when  originals  are  numerous  documents,  not  con- 
veniently examinable  in  court,  189, 190,  191. 
in  case  of  collateral  writings,  190. 
(For  other  cases,  see  Notice  to  Produce  Documents ; 
Public  Documents.) 
rule  as  to  there  being  degrees  of  secondary  evidence,  191. 
attested,  proof  of  execution  of,  180-185,  213% 
attesting  witness  to  be  called,  180,  181. 

who  is  attesting  witness,  180. 
proof  by  handwriting  when  witness  is  unprocurable,  181,  182. 
when  instrument  is  destroyed,  or  the  party  will  testify  to  exe- 
cution, 182,  183. 
in  case  of  wills,  182. 

when  party  has  admitted  execution,  183. 
cases  in  which  attesting  witness  need  not  be  called,  183-185. 
when  document  is  not  produced  on  notice  given,  184. 
when  opponent  produces  it  and  claims  interest  under  it, 

184. 
when  opponent  is  public  officer,  bound  to  procure  the 

execution,  184.  % 

when  document  comes  collaterally  in  question,  185. 
when  document  is  acknowledged  or  recorded  deed,  182, 

185. 
when  document  is  ancient,  213. 
proof  when  attesting  witness  denies  the  execution,  185. 
unattested,  proof  of  execution  of,  185. 
presumptions  as  to,  209-218.     (See  Presumptions.) 
alteration  of.     (See  Alteration.) 

modification  of  by  oral  evidence,  219-227.     (See  Oral  Evidence.) 
interpretation  of,  227-236.    (See  Interpretation  and  Construction.) 
production  of  by  witness,  when  compellable.    (See  Subp&na  duces 
tecum;   Notice  to  produce  ;  Witness;  Attorney.) 


\2%  INDEX. 

(The  numbers  refer  to  pages.) 

Document  {continued  I. 

criminating,  witness  and  his  attorney  not  compellable  to  produce, 

187,  294,  296. 
seizure  or  compulsory  production  of  private  papers  prohibited  by 
constitution,  294. 
aliter,  as  to  physicians'  prescriptions,  295. 
cross-examination  of  witness  as  to  prior  inconsistent  statements  in 

document,  332,  333. 
admissible  throughout  the  Queen's  dominions,  how  proved,  396. 
Dogs,  injuries  by,  evidence  to  show  scienter,  44. 
Domicil,  evidence  of  declarations  concerning,  26. 

of  infant,  how  provable,  30. 
Drawings,  as  evidence,  177. 
Drunkenness,  habitual,  shown  by  repeated  acts,  50. 

on  one  occasion,  not  provable  by  showing  habit,  51. 
evidence  of  opinion  concerning,  142. 
effect  of  upon  the  competency  of  a  witness,  272. 
upon  the  admissibility  of  confessions,  85. 
Duplicate  documents,* each  is  primary  evidence,  179,  191. 

one  admissible  in  evidence  without  notice  to  produce  the  other,  194. 
Duress,  effect  of  admissions  under,  74. 
effect  of  confessions  under,  76,  78,  79. 
may  be  shown  by  parol  to  avoid  written  instrument,  220. 
Dying  declarations,  86-90,  364. 

only  competent  in  trials  for  homicide,  87. 

not  in  civil  actions,  87. 
whether  competent  in  cases  of  abortion,  90. 
must  relate  to  cause  of  death,  etc.,  86. 

not  competent  evidence  of  prior  or  subsequent  occurrences,  86. 
must  state  facts,  not  opinions,  86. 
admissible  for  or  against  defendant,  86. 
competent,-  though   obtained  by  leading   questions,  solicitation, 

etc.,  86. 
may  be  expressed  by  signs,  86. 
not  excluded  by  constitutional  provision,  86,  87. 
not  as  weighty  as  testimony  by  witness,  88. 
declarant  must  be  under  sense  of  impending  death,  87,  89. 
how  this  may  be  shown,  87. 
effect  of  hope  existing,  87,  89. 

sense  of  impending  death  equivalent  to  an  oath,  88. 
declarant  must  be  competent  to  take  an  oath,  88. 
declarations  of  atheists,  very  young  children,  etc.,  not  com- 
petent, 88. 


INDEX.  429 

(The  numbers  refer  to  pages.) 

Dying  declarations  (continued). 

declarant  need  not  die  immediately,  88. 

effect  of  making  the  declaration  in  writing,  as  a  deposition,  etc., 

88,  89,  90. 
how  oral  declarations  may  be  proved,  89. 
burden  of  proof  to  render  declarations  admissible,  253. 
declarations  impeachable,  as  if  declarant  were  a  living  witness, 
340. 
as  by  proving  him  to  be  an  atheist,  341. 
or  that  his  general  reputation  is  bad,  341. 
or  by  showing  his  contradictory  statements,  341. 

Edict,  proof  of,  205. 

Ejectment,  when  judgment  in  is  a  bar,  122,  123. 

Election,  days  of,  judicially  noticed,  169. 

Eminent  domain,  opinion-evidence  competent  as  to  value  of  land, 

144. 
Encyclopaedia  as  evidence,  117. 

Entries  in  books.    (See  Book  Entries  ;  Books  ;  Bankers'  Books.) 
Equity.     (See  Chancery.) 
Equivocation,  parol  evidence  to  explain,  231,  235,  375-377.    (See  Oral 

Evidence.) 
Escape,  of  person  charged  with  crime,  provable,  23. 
Escrow,  deed  cannot  be  delivered  to  grantee  in,  232. 
Estoppel,  by  judgment.     (See  Judgment.) 

admissions  amounting  to,  59. 

by  conduct,  262-266. 

elements  of  estoppel  in  pais,  262-264,  379. 

of  tenant  to  deny  landlord's  title,  266. 

of  licensee  to  deny  licensor's  title,  267,  268. 

of  acceptor  of  bill  of  exchange,  267. 

of  bailee  to  deny  bailor's  title,  267,  268. 

of  agent  to  deny  principal's  title,  267,  268. 

of  shipmaster  signing  bill  of  lading  to  deny  the  shipment,  268, 269. 
shipowner,  whether  bound  by  master's  act,  269. 
Evidence,  definition  of,  xvi.,  3,  4. 

distinguished  from  proof,  3. 

oral,  4,  175.     (See  Oral  Evidence. 

documentary,  xix.,  3,  178-207.     (See  Document.) 

demonstrative,  3. 

moral,  4. 

competent,  4. 

satisfactory,  or  sufficient,  4. 


43Q  INDEX. 

(The  numbers  refer  to  pages.) 

Evidence  {continued). 
cumulative,  4. 
corroborative,  4. 
direct,  xix.,  4,  175,  370. 

circumstantial,  4.     (See  Circumstantial  Evidence.) 
presumptive,  5,  351.     (See  Presumption.) 
of  facts  in  issue  and  relevant  facts,  xviii.,  6,  351-353. 
relevancy  of,  and  the  different  kinds  of  relevant  evidence.    (See 
Relevancy  ;  Res  gestce  ;  Conspirators;  Title  ;  Custom;  Mo- 
tive; Preparation;  Threats;  Flight;  Character;  Opinion; 
Hearsay  ;  Admissions  ;  Confessions  ;  Declarations  ;  Docu- 
ment ;  Judgment,  etc.) 
rules  of  may  be  changed  by  the  Legislature,  4. 
relevant  evidence  admissible,  though  improperly  obtained,  6. 
improper  admission  of,  not  a  ground  for  a  new  trial,  unless  party 

be  prejudiced  thereby,  350. 
offensive  to  public  morals,  received  when  relevant,  354. 
in  former  proceeding,  when  relevant,  107-m. 

grounds  of  its  admission  in  civil  cases,  108,  11 1. 

grounds  of  its  admission  in  criminal  cases,  108, 109,  H  1,346,347. 

how  such  evidence  may  be  proved,  109,  no. 

who  may  testify  thereto,  no. 

such  evidence  not  excluded  by  constitution,  109. 

both  proceedings  to  be  between  same  parties  or  their  privies, 

in. 
evidence  given  by  party,  when  relevant,  1 10. 
former  testimony  before  arbitrators,  provable,  no. 
before  coroners,  not  provable,  m. 
Examination,  of  witnesses.     (See  Witness.) 

of  prisoner  before  committing  magistrate  in  criminal  cases,  83,  85, 
308,  346. 
depositions  admissible  on  trial,  if  witness  dead,  insane,  etc., 
109,  346,  347. 
of  parties  before  trial  in  civil  cases,  308,  309. 

not  allowed  in  actions  at  law  in  U.  S.  courts,  309. 
of  person  by  physicians,  power  of  court  to  order,  177. 
Examined  copy,  defined,  197. 

is  secondary  evidence,  186. 
Examiners,  power  of,  to  take  evidence,  310. 

when  without  power  to  pass  on  objections  to  evidence,  310,  311. 
Exceptions,  bill  of,  to  prove  testimony  in  former  proceeding,  1 10. 
Execution  of  documents,  proof  of.    (See  Document ;  Subscribing  Wit- 
ness.) 


INDEX.  431 

(The  numbers  refer  to  pages.) 

Executive,  accession  of,  judicially  noticed,  167. 

decrees  and  messages  judicially  noticed,  169. 
proof  of  foreign,  205. 
Executor,  bound  by  admissions  of  testator,  60,  63. 

admissions  of,  62,  69. 

effect  of  judgment  appointing,  1 19. 

party  to  suit  cannot  testify  against,  as  to  transactions  with  dc 
cedent,  270. 
Exemplification,  defined,  198. 

is  secondary  evidence,  186. 
Experiments,  evidence  of,  when  relevant,  156,  157. 
Experts  and  non-experts,  testimony  of.    (See  Opinion,  Evidence  of.) 
Explanatory  facts,  relevancy  of,  28-33. 

Expressions  of  bodily  and  mental  feeling,  provable,  42,  47,  48,  210. 
Extrajudicial  confessions.     (See  Confessions.) 

Fabrication  of  evidence,  presumption  from,  263. 
Fact,  definition  of,  3. 

collateral,  defined,  6. 
Facts  in  issue,  definition  of,  xviii.,  5. 

admissible  in  evidence,  6. 
Facts  relevant  to  the  issue,  definition  of,  xviii.,  5,  351-353. 

admissible  in  evidence,  6.     (See  Relevancy.) 
Facts  necessary  to  explain  or  introduce  relevant  facts,  admissible, 

28-33- 
Falsa  demons tratio,  parol  evidence  to  explain,  230,  231,  234,  375-377. 
False  imprisonment,  information  s>n  which  defendant  acted,  prov- 
able, 27. 
whether  evidence  of  character  admissible,  161. 
False  pretences,  obtaining  goods  by,  evidence  of>  similar  acts  to  show 

knowledge,  44. 
Falsits  in  uno,falsus  in  omnibus,  effect  of  maxim,  303. 
Federal  courts,  take  judicial  notice  of  State  laws,  164. 
and  of  rules  of  the  departments,  162. 
production  of  documents  in,  192. 
Feelings,  bodily  and  mental,  declarations  concerning,  competent,  42, 

47,  48,  210. 
Fire  caused  by  locomotive ;  evidence  of  fires  caused  by  other  loco- 
motives admissible,  40. 
incendiary,  evidence  relevant  to  prove,  41. 
Flight,  of  an  accused  person,  when  provable,  22,  23. 
Foreign  acts  of  state,  proof  of,  146,  207,  399. 

courts,  seals  of,  when  judicially  noticed,  168,  169. 


432  INDEX. 

(The  numbers  refer  to  pages.) 

Foreign  judgments,  effect  of  as  res  adjudicata,  138-140. 
Foreign  law,  provable  by  expert  testimony,  145-147,207.   (See  Opinion, 
Evidence  of.) 

by  printed  volumes  or  authenticated  copies,  146. 

effect  of  not  proving,  146,  147. 

provable  in  trial  court,  not  in  appellate  court,  146,  147. 

when  judicially  noticed,  164. 
Foreign  ministers,  judicially  noticed,  167. 
Foreign  records,  how  proved,  146,  207,  399. 
Forfeiture,  evidence  exposing  to,  privilege  of  witness,  294,  298. 

judgment  of,  as  an  estoppel,  127. 
Forgery,  other  forgeries  or  utterings  relevant  to  show  intent,  43. 
Former  proceeding,  evidence  in,  when  relevant,  107-m.     (See  Evi- 
dence.) 
Fraud,  intent  provable  by  similar  acts,  44. 

confession  obtained  by,  85. 

when  judgment  is  impeachable  for,  137,  140. 

in  written  instrument,  provable  by  parol,  220,  221. 

in  trials  for,  defendant's  good  character  irrelevant,  160. 

primary    evidence    obtained    by    fraud,   secondary    admissible, 
189. 

fraudulent  alteration  of  document,  effect  of,  214,  218. 

weight  of  evidence  required  to  set  instrument  aside  for  fraud, 
240. 

attorney  may  testify  to  client's  communications,  made  to  effect  a 
fraud,  288. 

Gazetteer,  as  evidence,  117. 
General  rights,  defined,  102. 

declarations  concerning,  100-103. 

provable  by  ancient  maps^  115. 

judgments  relating  to,  131. 
Geographical  features  of  State,  judicially  noticed,  170. 
Gift  causa  //lords,  weight  of  evidence  required  to  establish,  240. 
Good  faith,  provable  by  similar  acts  or  declarations,  42. 
Governor  of  State,  accession  of,  judicially  noticed,  167. 

not  compellable  to  disclose  State  secrets,  282,  283. 
Grand  jurors,  competency  of  as  witnesses,  285,  286. 
Grantor  of  land,  admissions  of  bind  grantee,  60. 

but  only  if  made  while  he  was  owner  or  in  possession  of  the  land, 
62,  63. 
Guardian,  effect  of  judgment  appointing,  119. 

admissions  of,  62. 


INDEX.  433 

(The  numbers  refer  to  pages.) 

Guardian  {continued). 

must  prove  good  faith  as  to  dealings  with  ward,  254. 

cannot  be  excluded  from  court-room  during  trial,  314. 
Guilty,  plea  of,  conviction  upon,  76. 

Habeas  Corpus,  decision  upon  as  a  bar  to  another  writ,  123. 
Habit,  whether  provable  by  evidence  of  repeated  acts,  50. 

whether  provable  to  show  commission  of  a  particular  act,  51. 
Handwriting,  evidence  of,  151-153.     (See  Opinion,  Evidence  of.) 
comparison  of  handwritings,  153,  154. 

in  proving  execution  of  attested  documents,  181,  182.     (See  Doc- 
ument.) 
in  ancient  documents,  genuineness  of  presumed,  212,  213. 
Health,  expressions  as  to,  provable,  46,  48. 
Hearsay  evidence,  not  relevant,  xviii.,  7,  55,  176,  358-360. 
defined,  55,  358-360. 
illustrations  of,  55,  56. 
exceptions  to  the  rule  that  hearsay  is  irrelevant  are 

statements  forming  part  of  res  gestce.    (See  Res  Gestae.) 

admissions,  57-74.     (See  Admissions.) 

confessions,  75-85.     (See  Confessions.) 

dying  declarations,  86-90.     (See  Dying  Declarations.) 

declarations  made  in  course  of  business,  90-95.    (See  Course 

of  Business  ;  Book  Entries.) 
declarations  against  interest,  95-99-     (See  Declarations.) 
declarations  by  testator  as  to  contents  of  will,  99,  100. 
declarations  as  to  public  and  general  rights,  100-103. 
declarations  as  to  pedigree,  103-107.     (See  Pedigree.) 
evidence  given  in  former  proceeding,  107-1 1 1 .  (See  Evidence.) 
Heir,  bound  by  admissions  of  ancestor,  60. 

but  not  by  those  of  executor  or  administrator,  69. 
Highway,  defect  therein,  and  notice  thereof,  how  provable,  38,  39. 

boundaries  of.     (See  Boundaries.) 
Historical  works,  statements  in  as  evidence,  114. 

matters  of  public  history  judicially  noticed,  170-172. 
but  not  of  private  history,  172. 
Homicide,  insanity  as  a  defence  in  trials  for,  7,  247. 
alibi  as  a  defence,  7,  248. 

good  character  of  the  defendant,  when  provable,  7,  158,  159. 
evidence  of  threats  in  trials  for,  20,  21. 
circumstantial  evidence  of,  29-31,  52,  352,  353. 
dying  declarations  in  trials  for,  86-90.     (See  Dying  Declarations.) 
malice  presumed  from  deliberate  use  of  deadly  weapon,  263. 


434  INDEX. 

(The  numbers  refer  to  pages.) 

Hostile  witness,  impeachment  of,  330,  334-336,  386.    (See  Witness.) 
Husband  and  wife.     (See  Marriage ;  Divorce.) 
what  are  necessaries  for  wife,  how  shown,  30. 
admissions  of  either  as  agent  bind  the  other,  65,  70. 
admissions  of  husband  hind  widow  claiming  dower,  60. 
declarations  of  as  showing  pedigree,  105. 
letters  and  conversations,  competent  to  show  state  of  feeling,  47, 

210. 
wife  committing  crime  in  husband's  presence  presumed  to  act 

under  his  coercion,  263. 
neither  can  testify  as  to  marital  intercourse,  256. 

nor  are  their  declarations  competent,  unless  forming  part  of 
res  geslce,  256. 
in  bastardy  cases,  right  of  wife  to  testify  as  to  paternity  of  child, 

2-56. 
competency  of  as  witnesses  in  criminal  cases,  275-277,  401-403. 
competency  of  as  witnesses  in  civil  cases,  277-279. 
cannot  disclose  confidential  communications,  277,  279,  280. 
cannot,  in  general,  give  evidence  criminating  each  other,  297,  298, 

278. 

Identity,  evidence  of,  28,  35. 

of  name,  to  show  identity  of  person,  30,  263. 

party  or  witness  may  be  required  to  stand  up,  etc.,  to  be  iden- 
tified, 177,  298. 
evidence  of  opinion  concerning  identity,  142. 
Illegality,  provable  by  parol  to  avoid  written  instrument,  220,  221. 

burden  of  proof,  as  to  defence  of,  250. 
Impeachment  of  judgments,  136-140.     (See  Judgment.) 

of  witness.     (See  Witness.) 
Impotence,  examination  of  person  to  ascertain,  177. 
Impression,  when  witness  may  testify  to  his,  176. 
Incest,  in  trials  for,  marriage  not  provable  by  cohabitation  and  repute, 

156. 
Indecent  assault.     (See  Assault  and  Battery.) 
Indecent  evidence,  when  admissible,  354. 
Indemnitors,  how  affected  by  judgment  against  principal,  132.     (See 

Principal  and  Surety.) 
Indorsement   on   negotiable   instrument.      (See    Bill   of    Exchange ; 
Promissory  Note.)     . 
capacity  to  indorse,  when  party  estopped  to  deny,  267. 
of  payment  on  bond,  bill,  note,  etc.,  effect  of  as  evidence,  96, 
97. 


INDEX.  435 

(The  numbers  refer  to  pages.) 

Infamous  persons,  competency  of  as  witnesses,  273. 
what  makes  a  person  infamous,  273. 
crimen  falsi  defined,  273. 

disability  how  removed,  273.  * 

infamy  must  generally  be  proved  by  the  record,  325. 
but  in  some  States  proof  by  cross-examination  permitted,  and  wit- 
ness's answer  may  be  contradicted,  325. 
Infant.     (See  Children  ;  Parent  and  Child.) 

Information  as  to  commission  of  offences,  witness  privileged  from  dis- 
closing, 284. 
Innocence,  presumption  of,  237,  238,  249. 
In  rem,  judgments  as  estoppels,  127.     (See  Judgment.) 
Insanity,  of  blood  relations  relevant  to  prove  insanity,  33. 
book  entries  by  insane  person,  91,  93. 

of  witness,  as  ground  to  receive  his  former  testimony,  108,  109. 
as  a  defence  in  criminal  cases,  7,  247. 

burden  of  proof,  and  amount  of  evidence  required,  247. 
of  testator  provable  by  subscribing  witnesses,  141,  142. 

burden  of  proof  as  to  testator's  insanity,  in  probate  proceed- 
ings, 246. 
of  other  persons,  how  provable,  141,  149. 
presumed  to  continue  when  it  has  existed,  261. 
competency  of  insane  persons  as  witnesses,  271,  274,  275. 
Insolvency,  as  evidence  that  one  has  not  paid  a  particular  debt,  32. 
Insurance,  expert  testimony  as  to  materiality  of  circumstances  affect- 
ing risk,  149,  150. 
how  defence  of  arson  proved,  51,  239,  241. 
expressions  of  assured  showing  state  of  health,  relevant,  48. 
Intent,  provable  by  similar  acts  or  declarations,  42. 
expressions  of,  provable,  47. 

intentional  and  accidental  acts,  distinguished  by  evidence  of  sys- 
tem, 49-53- 
when  witness  may  testify  to  his,  176. 

oral  statements  of,  when  provable  to  aid  in  the  construction  of 
documents,  229,  231,  235,  375-377. 
Interest,  declarations  against,  95-99.     (See  Declarations.) 
as  affecting  competency  or  credibility  of  witnesses,  270. 
whether  judgment  for  interest,  after  principal  due,  bars  action  for 
principal,  125. 
Interpretation  and  construction  of  documents,  227-236. 
construction  defined,  227. 
construction  usually  for  court  and  not  for  jury,  227. 

jury  may  determine  facts  affecting  construction,  227. 


436  INDEX. 

(The  numbers  refer  to  pages.) 

Interpretation  and  construction  (contained). 

if  printed  and  written  parts  of  document  conflict,  latter  prevail, 
•     227,  228. 

how  far  oral  evidence  is  admissible  to  affect  construction,  227-236. 
(See  Oral  Evidence.) 

proper  legal  meaning  preferred  to  one  that  is  less  proper,  229. 
Interpreter,  admissions  of,  73. 

privileged  from  disclosing  communications  to  lawyer,  289,  290. 
Intestate,  admissions  of,  competent  against  administrator,  60. 
Involuntary  confessions.    (See  Confessions.) 
Irish  statutes,  proof  of,  397. 
Issue,  definition  of,  5. 

evidence  must  be  relevant  to,  6.     (See  Relevancy.) 

Joint  contractors,  admissions  of,  66,  67,  69,  71. 

effect  of  admissions,  as  to  the  Statute  of  Limitations,  67,  69. 
effect  of  judgment  against  one,  131. 
Joint  debtors,  admissions  of.     (See  Joint  Contractors.) 
Journals  of  legislature,  not  judicially  noticed,  165. 
proof  of,  206,  207,  296. 
recitals  in  as  evidence,  112. 
Judge,  definition  of,  3. 

judicially  recognized,  166. 

decides  on  admissibility  of  evidence,  4,  77,  191. 
minutes  of,  to  prove  evidence  in*former  proceeding,  no. 
when  judgment  is  conclusive  in  favor  of,  135,  136. 
competency  of  as  witness,  280-282,  381. 
Judgment,  defined,  117. 

how  proved.     (See  Public  Documents.) 

not  judicially  noticed,  166. 

relevancy  of,  1 17-140. 

conclusive  proof  of  its  legal  effect,  117-119. 

effect  of  judgment,  condemning  ship  as  prize,  118. 
of  judgment  forming  muniment  of  title,  118. 
of  judgment,  appointing  executor,  guardian,  receiver,  etc.,  1 1<; 
of  judgment  appointing  administrator  for  living  person,  1 19. 
of  judgment  of  divorce,  119,  127. 
of  judgment  naturalizing  an  alien,  120. 
how  far  conclusive  of  facts  forming  ground  of  judgment,  120-126. 
conclusive  as  to  facts  actually  decided,  120. 

whether  appearing  on  the  record  or  not,  120. 
parol  evidence  admitted  to  show  what  was  decided,  1 20, 134. 
must  not  contradict  the  record,  1 20. 


INDEX.  437 

(The  numbers  refer  to  pages.) 

Judgment  {continued). 

conclusive  as  to  matters  which  were  and  those  which  might 
have  been  litigated,  120,  121. 
single  cause  of  action  not  to  be  split,  120,  124,  125. 
defences  not  set  up  in  one  action  cannot  be  afterwards 
sued  on,  121,  125. 
aliter,  as  to  set  off  and  recoupment,  121, 
not  conclusive  as   to   matters  which   might  have  been  liti- 
gated, when  second  suit  is  on  different  course  of  action, 
121. 
not  conclusive  unless  rendered  on  the  merits,  121. 
•  judgment  of  nonsuit  not  conclusive,  121. 
so  of  dismissal,  unless  on  the  merits,  121. 
of  discontinuance,  not  conclusive,  121,  122. 
so  of  judgment  of  abatement,  122. 
verdict,  without  judgment,  not  a  bar,  122. 
judgment  on  demurrer,  when  conclusive,  122. 
judgment  by  confession,  or  default,  or  by  retraxit,  conclusive, 

122,  125. 
judgment  on  offer  made  and  accepted,  conclusive,  122. 
interlocutory  order  not  generally  conclusive,  122. 

aliter,  as  to  final  orders  on  merits  in  special  proceedings, 
122. 
judgment  bars  suit  in  court  of  concurrent  jurisdiction,  122. 
effect  of  judgment  as  a  bar  in  actions  of  ejectment,  trespass, 

or  for  nuisance,  122,  123. 
effect  of  decision  upon  writ  of  habeas  corpus,  123. 
whether  judgment  for  interest,  after  principal  due,  bars  ac- 
tion for  principal,  125. 
judgment  for  physician's  services  bars  action  against  him  for 
malpractice,  125. 
statements  in,  irrelevant  as  between  strangers,  except  in  admiralty 

,     cases,  126-128. 
judgments  in  rem  and'their  effect,  127. 
of  prize  and  forfeiture,  127,  128. 
as  to  personal  status,  marriage,  divorce,  etc.,  127. 
in  attachment  suits,  127,  140. 
effect  of  not  pleading  judgment  as  estoppel,  128,  129. 

may  be  conclusive  though  given  in  evidence  without  plead- 
ing, 129. 
irrelevant  as  between  strangers,  130-134. 

and  between  parties  and  privies  when  the  issue  is  different, 
13°.  J33- 


43**  INDEX. 

(The  numbers  refer  to  pages.) 

Judgment  {continued). 

not  binding  on  parties  as  to  matters  not  passed  upon,  130. 

nor  as  to  immaterial  matters,  130. 

nor  as  to  matters  incidentally  cognizable,  130. 
judgment  against  person  in  one  capacity,  not  binding  on  him  in 

another,  130. 
judgment  against  one  administrator  not  binding  on  another,  130. 
effect  of  judgment  against  one  tort-feasor,  upon  the  others,  131. 

of  judgment  against  one  co-contractor,  131. 

of  judgment  against  indorsee  of  bill  or  note,  132. 

of  judgment  against  principal,  upon  surety  or  indemnitor,  132. 

of  judgment  against  principal  felon  as  respects  accessory,  134. 
effect  of  judgment  as  admission,  131,  134. 

effect  of,  to  prove  matters  of  public  and  general  right,  103,  131. 
conclusive  in  favor  of  judge,  134,  135. 

so  as  to  jurisdictional  facts  which  court  has  power  to  decide, 

135. 

impeachable  for  lack  of  jurisdiction,  135-138. 

judgment  of  superior  domestic  court  not  impeachable  col- 
laterally, except  when  record  shows  lack  of  jurisdic- 
tion, 136. 
in  some  cases,  lack  of  jurisdiction  available  as  equitable  de- 
fence, 137. 
judgment  upon  unauthorized  appearance  of  attorney,  effect 

of,  138. 
judgments  of  inferior  courts,  etc.,  impeachable,  136. 
impeachable  by  showing  its  reversal,  137. 

effect  of  pending  appeal  from  judgment,  137. 
impeachable  by  stranger  for  fraud,  137. 

by  party  for  fraud,  in  equity,  137. 
not  impeachable  for  error  or  irregularity,  137. 
foreign  judgments  and  those  of  sister  States,  effect  of,  138-140. 
impeachable  for  lack  of  jurisdiction,  fraud,  etc.,  139,  140. 
proof  of,  146,  207,  399. 
Judicial  confession.     (See  Confessions.) 
Judicial  notice,  of  what  facts  taken,  163-173. 

taken  of  common  and  statute  law,  corporate  charters,  etc.,  163, 164. 
of  the  laws  of  antecedent  government,  163. 
Federal  courts  notice  laws  of  States,  164. 
State  courts  notice  Acts  of  Congress,  164. 
of  the  legislature,  its  sessions,  etc.,  164,  165. 
of  customs  of  business,  and  customs  enforced  by  courts,  165, 
166. 


INDEX.  430 

(The  numbers  refer  to  pages.) 

Judicial  notice  {continued). 

of  domestic  courts,  their  judges,  records,  rules,  orders,  terms, 

etc.,  166,  167. 
of  the  status  and  signatures  of  court  officers,  167. 
of  the  constitution  of  the  government,  the  accession  of  the 

executive  and  his  signature,  167. 
status  of  public  officers,  of  sheriffs,  marshals,  etc.,  167,  168. 
of  foreign  states,  their  seals,  and  the  law  of  nations,  168,  171. 
of  foreign  admiralty  courts  and  their  seals,  168,  169. 
of  seals  of  State,  of  domestic  courts,  of  notaries  public,  169. 
of  proclamations,  treaties,  executive  decrees,  etc.,  169,  206. 
of  days  of  election,  169. 
of  the  extent  of  the  country,  its  civil  divisions,  geographical 

features,  etc.,  169,  170. 
of  location  of  towns,  population,  boundaries,  navigable  rivers, 

etc.,  170. 
of  public  matters  concerning  the  government,  170,  171. 
of  matters  happening  in  the  course  of  nature,  171. 
of  the  divisions  of  time,  the  meaning  of  words  and  abbrevia- 
tions, 171, 172. 
of  matters  of  public  history,  172. 

of  matters  of  general  knowledge  and  experience,  172,  173. 
Federal  courts  notice  tidal  ports  and  boundaries  of  States  and 
districts,  171. 
notice  not  taken  of  private  statutes,  nor  city  ordinances,  163. 
nor  of  transactions  in  legislative  journals,  165. 
nor  of  rules  of  practice  in  inferior  courts,  167. 
nor  of  former  judgment,  166. 
nor  of  pendency  of  another  action,  166. 
nor  of  status  of  sheriff's  deputy,  168. 
nor  of  seals  of  foreign  municipal  courts  or  of  foreign  officers, 

169. 
nor  of  orders  of  military  commander,  nor  private  executive 

acts,  169. 
nor  of  matters  of  private  history,  172. 
no  evidence  need  be  given  of  facts  judicially  noticed,  173. 

nor  of  facts  admitted,  174. 
judge  may  refer  to  books,  etc.,  to  ascertain  matters  requiring  no- 
tice, 173. 
Judicial  records.     (See  Public  Documents  ;  Public  Records.) 
Jurisdiction,  of  court,  when  judgment  impeachable  for  lack  of,  135-140. 
of  surrogate  to  appoint  administrator  upon  estate  of  living  person, 
119. 


440  INDEX. 

(The  numbers  refer  to  pages.) 

Jurisdiction  {continued). 

power  of  court  to  determine  its  own,  135. 

of  superior  courts  presumed,  136. 
aliter,  of  inferior  courts,  137. 

of  domestic  courts  judicially  noticed,  166. 
furors,  may  testify  as  to  evidence  in  former  proceeding,  no. 

bribing  of,  when  provable,  23. 

decide  as  to  sufficiency  of  evidence,  4. 

grand  and  petit,  competency  of  as  witnesses,  284-286. 

Knowledge,  provable  by  similar  acts  or  declarations,  42,  48. 

Land,  application  of  presumption  to  question  of  ownership  of,  io,  14. 
title  to,  how  provable,  17. 
value  of,  how  provable,  36,  37,  143. 
admissions  concerning.     (See  Admissions.) 
Landlord  and  tenant : 

landlord's  admissions  bind  tenant,  60. 
tenant's  admissions  do  not  bind  landlord,  60. 
landlord,  by  making  repairs,  admits  it  to  be  his  duty,  58. 
tenant  estopped  to  deny  landlord's  title,  266. 
admissions  of  tenant  in  common  do  not  bind  co-tenant,  69. 
Larceny,  presumption  of  guilt  from  possession  of  stolen  goods,  245. 
Lascivious  cohabitation,  in  trials  for,  marriage  not  provable  by  co- 
habitation and  repute,  156. 
Latent  ambiguity,  parol  evidence  to  explain.     (See  Ambiguity.) 
Law,  common  and  statute,  of  forum,  judicially  noticed,  163,  164. 
of  nations,  judicially  noticed,  168. 
foreign,  how  proved,  145-147,  201-207. 
Law  books,  reading  of  to  jury,  1 16. 
Law  reports  as  evidence,  117. 
Lawyers.     (See  Attorney  ;  Barrister.) 
Leading  questions,  nature  of,  319,  320. 

not  permitted  on  the  examination  in  chief  or  on  re-examination,  319. 
except  when  witness  is  hostile,  319. 
or  the  examination  relates  to  items,  details,  etc.,  319. 
or  when  necessary  to  direct  witness's  attention  to  subject- 
matter,  319. 
or  when  court  allows  them,  319. 
permitted  on  cross-examination,  319,  320. 

but  not  in  some  States,  when  counsel  inquires  as  to  new  mat- 
ter, 320. 
objections  to  leading  questions  in  taking  depositions  should  be 
taken  before  the  trial,  312. 


INDEX.  441 

(The  numbers  refer  to  pages.) 

Lease,  as  evidence  of  public  and  general  rights,  103. 
Legatee,  admissions  of  do  not  bind  co-legatee,  69. 
Legislative  journals.     (See  Journals  of  Legislature.) 
Legislature,  Acts  of.     (See  Statute.) 

may  change  rules  of  evidence,  4. 

judicial  notice  taken  of  legislature  and  its  sessions,  164,  165. 
Legitimacy  of  children,  presumed,  255. 

of  relatives,  declarations  concerning,  105. 
Letter-press  copies  of  writings  are  secondary  evidence,  180. 

relevancy  of,  to  show  handwriting,  155. 
Letters,  mailing  of,  raises  presumption  of  delivery,  53,  54,  262. 

day  of  mailing  not  presumed  from  date  of  postmark,  54. 

failure  to  answer,  no  admission  of  their  contents,  58. 

letters,  as  bearing  upon  addressee's  sanity,  27. 
Letters  rogatory,  when  issued  for  the  taking  of  depositions,  309. 
Libel,  evidence  of  similar  statements  to  show  malice,  45. 

evidence  of  plaintiff's  bad  character,  when  relevant,  161,  395. 

aliter,   as   to    reports    and    particular    acts    of    misconduct, 
161. 

amount  of  proof  required  in  justifying  charge  of  crime,  239. 
License,  burden  of  proof  to  show  possession  of,  251. 

in  writing,  may  be  varied  by  oral  evidence,  222. 

licensee    of    property    estopped    to    deny    licensor's   title,    267, 
268. 
Lien  on  document,  as  excusing  witness  from  producing,  295. 
Life  and  annuity  tables,  as  evidence,  117. 
Life,  continuance  of,  presumed,  262.     (See  Presumption.) 

when  presumption  of  death  arises,  257. 
Light  and  air,  prescriptive  right  to,  260. 
Limitations.    (See  Statute  of  Limitations.) 
Liquors,  intoxicating  quality  of,  when  judicially  noticed,  172. 

sale  of,  provable  by  preponderance  of  evidence,  239. 

burden  of  proof  as  to  license,  251. 
Lithographed  documents  as  evidence  primary  or  secondary,  179. 
Lost  grant,  presumption  of,  259. 
Lunatic.     (See  Insanity.) 

Magistrate,  confessions  to  by  prisoner,  80,  83,  85. 

examination  of  prisoner  before.     (See  Examination.) 
Malice,  provable  by  similar  acts  or  declarations,  42. 

in  cases  of  libel  and  slander,  45. 

presumed,  in  cases  of  homicide  from  deliberate  use  of  deadly 
weapon,  263. 


442  INDEX. 

(The  numbers  refer  to  pages.) 

Malicious  prosecution,  in  trials  for,  plaintiff's  bad  character  relevant, 
161. 

plaintiff  must  prove  malice  and  want  of  probable  cause,  252. 

information  on  which  defendant  acted  provable,  27. 

judgment  of  acquittal  competent,  118. 

grand  jurors  may  testify  to  evidence  given  before  them,  286. 
Malpractice  of  physician,  what  evidence  irrelevant,  31. 

action  for,  barred  by  judgment  for  physician  for  his  services,  125. 
Manslaughter.     (See  Homicide.) 
Maps,  competency  of  as  evidence,  114,  115. 

to  prove  public  and  general  rights,  103,  115. 
Maritime  courts,  judicially  noticed,  168,  169. 
Market-reports,  as  evidence,  117. 
Marriage,  as  matter  of  pedigree,  104,  105.     (See  Husband  and  Wife.) 

effect  of  judgment  as  to,  127. 

provable  by  cohabitation  and  repute,  155,  156. 

opinions  as  to  existence  of,  when  relevant,  155. 

provable  by  admissions,  156. 

register  of,  admissibility  of  entries  in,  94. 

communications  during,  privileged,  277-280. 

in  trials  for  breach  of  promise,  woman's  bad  character  relevant, 
161. 
corroboration  of  plaintiff's  evidence,  when  required,  300,  301. 
Marshal,  status  and  signature  of,  judicially  noticed,  168. 

aliter,  as  to  his  deputy,  168. 
Master  and  servant :  m 

negligence  of  servant  not  provable  by  prior  negligent  acts,  37. 

of  master  in  retaining  servant,  how  provable,  37,  46,  160. 

confession  of  servant  to  master,  80,  82. 
Masters  in  chancery,  duties  of,  310. 

minutes  of,  to  prove  testimony  in  former  proceeding,  1 10. 
Material  alterations.     (See  Alteration.) 
Measures,  weights  and,  judicially  noticed,  171. 
Medical  men.     (See  Physician.) 
Medical  treatises,  as  evidence,  115,  116. 
Memorandum,  does  not  exclude  oral  evidence  of  transaction,  190, 224, 

227.  • 

Memory,  refreshing.     (See  Refreshing  Memory.) 
Mental  feelings,  provable  by  similar  acts  or  declarations,  42. 

expressions  of,  provable,  47-49,  210. 
Messages  of  executive,  judicially  noticed,  169. 
Minutes  of  judges,  stenographers,  etc.,  to  prove  former  testimony, 

no. 


INDEX.  443 

(The  numbers  refer  to  pages.) 

Misprision  of  treason,  two  witnesses  needed  in  trials  for,  303. 
Mistake,  provable  by  parol  to  avoid  written  instrument,  220. 

weight  of  evidence  required  to  set  aside  instrument  for  mistake, 
240. 
Moneys,  judicially  noticed,  171. 
Moral  certainty,  237. 
Moral  evidence,  4. 
Mortality  tables,  as  evidence,  117. 

Mortgage,  oral  evidence  received  to  show  deed  or  bill  of  sale  to  be  a 
mortgage,  162. 

admissions  by  mortgagor,  62. 

mortgagee's  privilege  as  to  producing  mortgagor's  papers  as  evi- 
dence, 295. 
Motions,  affidavits  used  in  making  and  their  contents,  309,  311,  312. 
Motive,  evidence  of,  when  admissible,  19,  21,  35. 

witness  may  testify  to  his,  176. 
Murder.    (See  Homicide.) 

Name,  identity  of,  to  show  identity  of  person,  30,  263. 
Naturalization,  effect  of  judgment  of,  120. 
Necessaries  for  wife,  evidence  relevant  to  show  what  are,  30. 
Negligence,  not  provable  by  showing  prior  acts  of  negligence,  37. 
aliter,  in  some  States,  37,  50. 

not  provable  by  evidence  of  repairs  after  injury,  31. 
whether    provable    by    similar    injuries    or   similar   defects,    34, 

38-41. 
whether  system  or  course  of  business  may  be  shown  to  prove  neg- 
ligence, 49,  50. 
in  trial  for,  habit  of  carefulness  irrelevant,  51. 

so  as  to  reputation  for  carefulness,  160. 
burden  of  proof  to  show  negligence  and  contributory  negligence, 
251. 
Negotiable  instruments.     (See  Bill  of  Exchange  ;  Promissory  Note.) 
New  trial,  not  granted  for  improper  admission  or  rejection  of  evidence 
unless  party  be  prejudiced  thereby,  350. 
on  motion  for,  jurors  not  allowed  to  impeach  their  verdict,  284. 
Nicknames,  in  document,  explainable  by  parol  evidence,  229,  230, 

233- 
Nol.  pros.,  qualifies  co-defendant  in  criminal  cases  to  testify,  275 

276. 
Non-experts,  evidence  of  opinion  by.     (See  Opinion,  Evidence  of.) 
Nonsuit,  judgment  of,  not  a  bar,  121. 
Non  volo  contendere,  plea  of,  conviction  upon,  76. 


444  INDEX. 

(The  numbers  refer  to  pages.) 

Northampton  tables,  as  evidence,  117. 
Notary,  judicially  noticed,  168. 
seal  of,  judicially  noticed,  169. 
book  entries  of,  as  evidence,  91. 
Notice  of  defect  in  highway,  how  provable,  38,  39. 
Notice  to  produce  documents,  object  of,  372. 

upon  failure  to  produce,  secondary  evidence  admissible,  187,  206. 
but  not  unless  due  notice  be  given,  192. 
attesting  witness  need  not  be  called,  184. 
notice  may  be  given  to  party  or  his  attorney,  192,  296. 
must  be  given  a  sufficient  time  beforehand,  192. 
and  must  describe  document,  192. 
secondary  evidence  admissible  without  notice  : 
when  the  document  is  itself  a  notice,  193. 
when  the  action  seeks  it  in  the  opponent's  possession,  194. 
when  the  opponent  has  obtained  it  from  person  subpoenaed, 

194. 
when  the  opponent  has  the  document  in  court,  194. 

verbal  notice  in  court  then  sufficient,  194. 
when  there  are  duplicate  originals,  194. 
when  the  document  is  only  collaterally  in  question,  195. 
notice  to  be  given  though  party  notified  is  absent  from  State,  194, 

195. 
party  calling  for  and  inspecting  document,  bound  to  give  it  in 
evidence,  if  required  by  other  party,  344. 
aliter,  in  some  States,  344. 
party  refusing  to  produce  when  duly  notified,  cannot  use  docu- 
ment as  evidence  without  consent,  345. 
Notices,  provable  orally,  though  given  in  writing,  190,  191. 
Nuisance,  effect  of  judgment  in  action  for,  123. 
Number  of  witnesses,  303-305.     (See  Witness.) 

Oath,  confessions  made  under,  effect  of,  82-84,  298,  363. 

witness  to  be  under,  306. 
or  may  affirm,  306,  307. 

mode  of  administering,  307,  308. 

wilful  false  oath  constitutes  perjury,  306,  307. 
Objects,  shown  to  jury  as  evidence,  176,  177. 
Offer,  judgment  on  is  a  bar,  122. 

Office,  right  to,  shown  by  person's  acting  as  officer,  53,  225. 
Office-copy  of  document,  defined,  198,  199. 

when  admissible  in  evidence,  198,  199. 

is  secondary  evidence,  186. 


INDEX.  445 

(The  numbers  refer  to  pages.) 

Officers,  of  court,  judicially  noticed,  167. 
public,  judicially  noticed,  167,  168. 

presumed  to  perform  .their  official  duties,  261. 
of  corporation.     (See  Corporation.) 
Official  communications,  privileged  from  disclosure,  282. 
Official  documents  or  records.   (See  Public  Document;  Public  Record; 

Bond.) 
Omnia  prasumuntur  contra  spoliatorem,  263. 
Omnia  prasumuntur  rite  esse  acta,  261,  378. 
Open  and  close,  who  has  right  to,  242,  243. 
Opinion,  evidence  of,  generally  irrelevant,  xix.,  141. 

of  subscribing  witnesses  as  to  testator's  sanity,  relevant,  141. 
of  non-experts  as  to  sanity  or  insanity,  when  relevant,  141,  142. 
of  non-experts  as  to  matters  within  common  comprehension,  as 

identity,  age,  sickness,  etc.,  142. 
of  experts  as  to  insanity,  148. 
evidence  of,  as  to  damages,  143. 

as  to  value  of  property,  services,  etc.,  143,  144. 
of  experts  on  points  of  science  or  art,  relevant,  144-150. 
"science  or  art"  defined,  144. 

as  to  foreign  law,  or  the  law  of  sister  States,  145-147,  207. 
other  modes  of  proving  such  laws,  145,  146,  205-207. 
effect  of  not  proving  such  laws,  146,  147. 
expert  usually  a  lawyer,  146. 
as  to  matters  within  common  knowledge,  irrelevant,  145,  150. 
competency  of  expert,  determinable  by  judge,  146,  147. 
opinion  of  expert  as  to  existence  of  facts,  irrelevant,  147,  148. 

but  may  state  facts  from  scientific  knowledge,  145. 
knowledge  of  expert  tested  by  standard  treatises,  116. 
when  questions  to  expert  must  be  in  hypothetical  form,  147, 148. 

mode  of  framing  such  question,  147,  148. 
opinion  of  expert  as  to  effect  of  evidence,  irrelevant,  148. 
so  as  to  matter  of  legal  or  moral  obligation,  148. 
so  as  to  point  in  issue  in  the  case,  145,  150. 
opinion  of  expert  as  to  materiality  of  circumstances  affecting 

insurance  risk,  149,  150. 
relevancy  of  facts  bearing  upon  opinions  of  experts,  151. 
as  to  handwriting,  when  relevant,  151-153,  155. 

what  qualifies  a  person  to  testify  as  to  handwriting,  152,  153. 
comparison  of  writings,  when  permitted,  153,  154. 

collateral  writings,  when  admissible  as  standards,  154. 
letter-press  copies  and  photographic  copies,when  used, 155. 
signature  made  in  court,  when  used  as  a  standard,  154, 155. 


446  INDEX. 

(The  numbers  refer  to  pages.) 

Opinion  {continued). 

as  to  existence  of  marriage,  when  relevant,  155,  156. 
grounds  of  opinion,  relevancy  of,  156. 

evidence  of  experiments,  when  received,  156,  157. 
opinion-evidence  to  be  given  by  person  having  the  opinion,  176. 
witness  may  testify  to  his  impression,  belief,  etc.,  176. 
Oral  evidence,  defined,  4. 
proof  by,  175. 
must  be  direct,  xix.,  175. 
witness  may  testify  to  his  impression,  belief,  intent,  or  motive,  176. 

but  not  to  conclusion  of  law,  176. 
relevant  to  show  grounds  of  judgment,  120. 

not  relevant  to  add  to,  vary,  or  contradict  a  writing,  xix.,  219,  225, 
232,  273. 
but  relevant  to  show  fraud,  mistake,  illegality,  want  of  con- 
sideration, want  of  capacity,  the  true  date,  etc.,  220,  221. 
and  that  deed  or  bill  of  sale  is  a  mortgage,  221. 
and  to  establish  a  trust,  221. 
and  to  prove  an  advancement,  221. 

and  that  signer  of  instrument  is  agent,  not  principal,  221. 
and  to  show  true  relations  of  parties  to  an  instrument,  221. 
and  to  vary  receipts,  licenses,  or  admissions,  222. 
and  to  show  the  existence  of  a  distinct  oral  agreement,  221, 

225. 
or  an  oral  agreement  forming  a  condition  precedent,  222,  226. 
aliter,  as  to  delivery  of  instrument  under  seal  to  grantee, 

222. 
and  as  to  other  kinds  of  conditions,  223. 
or  a  subsequent  oral  agreement  to  rescind  or  modify,  223, 226. 
and  to  show  usage  or  custom,  223,  224,  227,  232. 
oral  evidence  of  transaction  receivable,  though  memorandum 

made,  190,  224,  227. 
legal  relation  created  by  writing,  provable  by  parol,  190,  224, 

227. 
that  person  is  public  officer,  provable  by  parol,  53,  225. 
contract  may  be  reformed  in  equity  by  parol,  225. 

weight  of  evidence  required,  240. 
a  will  may  not  be  reformed,  225. 

oral  evidence  competent  to  explain  foreign,  obsolete,  technical, 
etc.,  expressions,  228. 
to  explain  abbreviations,  illegible  characters,  words  used 

in  special  sense,  etc.,  228,  232. 
to  supplement  incomplete  terms  of  document,  228. 


INDEX.  447 

(The  numbers  refer  to  pages.) 

Oral  evidence  {continued). 

to  identify  persons  and  things  referred  to  in  document, 

229,  232. 
to  show  "surrounding  circumstances,"  229,  230,  231,  233, 

234- 
but  not  to  change  meaning  of  document  whose  meaning  is 
plain,  230,  233. 
nor  to  show  the  meaning  of  common  words,  228,  232. 
nor  to  show  the  intent  of  an  unintelligible  document,  228, 

232. 
nor  to  resolve  a  "parent  ambiguity"  or  "uncertainty," 
228,  229. 
oral  statements  of  intention  not  provable  in  cases  of  falsa 
demonstratio,  230,  231,  234,  375-377. 
but  provable  in  cases  of  "equivocation,"  or  "latent  am- 
biguity," 231,  235,  375-377. 
and  to  rebut  an  equity,  231,  235. 
rule  excluding  oral  evidence  only  applies  when  civil  right  or 
liability  is  in  question,  235,  236. 
rule  may  be  waived  by  party,  236. 
stranger  to  document  may  vary  it  by  oral  evidence,  235,  236. 
mode  of  taking  oral  evidence,  306-345.     (See  Witness.) 

may  be  taken  in  open  court  on  preliminary  or  final  hearing, 
308. 
preliminary  examination  of  prisoner  in  criminal  cases,  83, 

85,308,346. 
examination  of  parties  and  witnesses  before  trial  in  civil 

cases,  308,  309. 
parties  not  examined  before  trial  in  suits  at  law  in  U.  S. 
courts,  309. 
may  be  taken  out  of  court  on  affidavit,  309,  311.     (See  Affi- 
davit.) 
or  in  taking  depositions  under  a  commission,  309-313. 

(See  Depositions.) 
or  before  officers  of  the  court  or  other  persons  duly  ap- 
pointed or  selected,  310. 
as  referees,  auditors,  examiners,  etc.,  310. 
Order  of  court,  as  evidence  of  public  and  general  rights,  103. 

effect  of  as  res  adjndicata,  122. 
Orders  in  council,  proof  of,  397. 
Ordinances,  municipal,  not  judicially  noticed,  163. 
of  state,  judicially  noticed,  169. 
proof  of  foreign,  205. 


448  INDEX. 

(The  numbers  refer  to  pages.) 

Papers.    (See  Document.) 
Parent  and  child.     (See  Children.) 

parent  must  prove  good  faith  as  to  dealings  with  child,  254. 
resemblance  of  parent  to  child,  evidence  of,  32. 
Parol  evidence  to  vary  a  writing.     (See  Oral  Evidence.) 
Partners,  admissions  of  one  bind  the  others,  66,  71. 
effect  of  admissions  after  dissolution,  66,  67. 

of  part  payment  by  one  after  dissolution,  67. 
one  partner  cannot  confess  judgment  against  another,  66. 
must  show  good  faith  in  dealings  with  co-partner,  254. 
person  who  has  held  himself  out  as  partner  estopped  to  deny  it, 265. 
retiring  partner  giving  no  notice,  estopped  to  deny  that  he  is 

partner,  264. 
entries  in  partnership  books  evidence  against  partner,  58. 
Part-owners  of  ship,  admissions  of,  71. 
Party  to  action,  admissions  of.     (See  Admissions.) 
book  entries  made  by,  relevancy  of,  92. 
relations  of  parties,  provable,  28. 
may  be  required  to  stand  up  to  be  identified,  177. 
competency  of,  as  witness.     (See  Witness.) 

may  be  subpoenaed,  193, 296.   (See  Witness;  Subpoena  duces  tecum.) 
may  not  be  excluded  from  the  court-room  during  trial,  314. 
voluntarily  becoming  witness  in  criminal  case  maybe  fully  cross- 
examined,  209. 
in  some  States  may  only  be  cross-examined  as  to  matters 
stated  on  the  direct  examination,  298,  317. 
as  witness  in  other  cases  may  be  cross-examined  like  other  wit- 
nesses, 317,  321. 
impeachment  of,  as  witness,  159,  329,  336. 
examination  of,  before  trial  in  civil  suits,  308,  309. 

not  allowed  in  U.  S.  courts,  in  actions  at  law,  309. 
former  testimony  of  deceased  party,  when  provable,  1 10. 
latent  ambiguity.     (See  Ambiguity.) 
Payment,  what  evidence  irrelevant  to  show,  32. 
effect  of  not  pleading,  125. 
burden  of  proof  on  defendant,  250. 
provable  without  producing  receipt,  190,  191. 
indorsement  of  on  bond,  bill,  note,  etc.,  effect  of.as  evidence, 96, 97. 
Pedigree,  declarations  concerning,  103-107. 
what  constitutes  pedigree,  103,  104. 

includes  birth,  marriage,  death,  and  the  time  and  place  thereof, 
104,  107. 
aliter,  in  this  country,  as  to  place,  104. 


INDEX.  449 

(The  numbers  refer  to  pages.) 

Pedigree  {continued). 

who  may  be  a  declarant,  105. 

declarations  only  competent  when  pedigree  is  in  issue,  105. 

a  person's  age  may  be  matter  of  pedigree,  104. 

declarations  as  to  legitimacy  of  relatives,  105. 

how  declarations  may  be  made,  104,  105. 

must  be  made  ante  litem  motam,  106. 

declarations  of  neighbors,  friends,  etc.,  incompetent,  106. 
Penalty,  evidence  exposing  to,  privilege  of  witness  concerning,  294, 

298. 
Perjury,  in  trials  for,  evidence  required  to  corroborate  witness,  304, 

305. 
wilful  false  testimony,  violating  witness's  oath  or  affirmation,  con- 
stitutes, 306-308. 
grand  jury  may  testify  to  evidence  given  before  them,  to  disclose 

perjury,  286. 
conviction  for,  renders  witness  incompetent  in  some  States,  274. 
Petty  jurors,  competency  of  as  witnesses,  284-286. 
Photographs,  as  evidence,  32,  177. 

photographic  copies,  when  primary  and  when  secondary  evidence, 

179,  180. 
photographic  copies,  when  used  to  show  handwriting,  155. 
Physical  examination  of  a  party,  power  of  court  to  order,  177. 
Physician,  malpractice  of,  what  evidence  irrelevant,  31. 

book  entries  of  deceased  physician,  when  admissible,  91. 
statements  of  bodily  feeling  made  to,  when  relevant,  47,  48. 
judgment  for  bars  action  against  for  malpractice,  125. 
must  prove  good  faith  as  to  dealings  with  patient,  254. 
prescriptions  not  privileged  from  compulsory  production  in  evi- 
dence, 295. 
privilege  of  as  witness  as  to  professional  communications,  292, 

293- 
patient  may  waive  privilege,  292,  293. 
examination  of  party  by,  power  of  court  to  order,  177. 
Pictures  as  evidence,  32,  107,  177. 
Plans  of  land,  as  evidence,  115. 
Pleading,  admissions  made  in,  58,  59,  174. 

of  judgment,  whether  necessary  or  not,  128,  129. 
Population  of  State,  county,  etc.,  judicially  noticed,  170. 
Portraits,  inscriptions  on  as  evidence  of  pedigree,  107. 
Possession  of  property  raises  presumption  of  ownership,  262. 
of  property  after  crime  committed,  provable,  23,  353. 
raises  presumption  of  guilt,  245. 


450  INDEX. 

(The  numbers  refer  to  pages.) 

Preparation,  evidence  of,  relevant,  19,  22,  35. 

Preponderance  of  evidence,  required  in  civil  cases,  238,  239.     (See 
Burden  of  Proof.) 
to  prove  insanity  and  alibi  in  criminal  cases,  247,  248. 
Prescriptive  rig!  t  to  light  and  air,  260. 
President,  accession  of,  judicially  noticed,  167. 

not  compel1  ible  to  disclose  State  secrets,  282. 
Presumption,  definition  of,  5. 

what  presumptions  belong  to  the  law  of  evidence,  xxiii. 

presumptions  of  law,  conclusive  and  disputable,  5,  351. 

presumption  of  fact,  351. 

as  affecting  burden  of  proof,  242,  248,  249. 

burden  of  proof  in  case  of  conflicting  presumptions,  244,  249. 

as  to  neighboring  pieces  of  land,  when  relevant,  10,  14. 

as  to  da* ;  of  mailing  letters,  54. 

of  the  delivery  of  letters  from  mailing  them,  53,  54,  262. 

that  official  publication  of  statutes  contains  existing  law,  205. 

of  innr  cence  when  crime  is  charged,  237,  238,  249. 

when  preferred  to  that  of  continuance  of  life,  241. 
of  g''dt  from  recent  possession  of  stolen  goods,  245. 
that  indorsee  of  negotiable  instrument  acquired  it  bona  fide  for 

value,  244. 
that  person  receiving  rent  of  land,  is  owner,  249. 
of  damages  against  wrongdoer,  249. 
of  legitimacy  of  children  from  birth  in  wedlock,  259. 
of  death  from  ^even  years'  absence,  257.     (See  Death.) 

sometimes  inferred  from  shorter  absence,  258. 
of  the  order  of  death,  when  persons  perish  in  the  same  calamity, 

258. 
of  lost  grant,  259. 

of  ?.  right  bj  prescription  to  light  and  air,  260. 
of  a  right  to  percolating  waters,  260. 
of  regularity  in  the  performance  of  official  acts,  261. 
of  deeds  to  complete  title,  261. 

of  the  del'very  of  a  deed,  found  in  the  grantee's  hands,  209,  212. 
->>  the  continuance  of  a  state  of  things  once  existing,  261. 

as  a  personal  relation,  261. 

a  law,  261. 

continuance  of  life,  249,  262. 

character,  habits  and  appearance,  261. 

residence,  261. 

insanity,  261. 

status,  262. 


INDEX.  451 

(The  numbers  refer  to  pages.) 

Presumption  {continued). 

of  the  observance  of  the  regular  course  of  business,  262,  358. 
that  letters  duly  mailed  reach  their  destination,  53,  54,  263. 
that  bill  or  note  in  hands  of  acceptor  or  maker  has  been  paid, 

262. 
that  person  in  possession  of  property  is  the  owner,  262. 
that  a  man  intends  the  natural   consequences  of   his  acts,  262, 

263. 
that  a  wife  committing  crimes  in  her  husband's  presence,  acts 

under  his  coercion,  263. 
of  malice  from  deliberate  use  of  deadly  weapon,  263. 
from  the  destruction,  fabrication  or  suppression  of  evidence,  263. 
of  identity  of  person,  from  identity  of  name,  30,  263. 
of  payment  of  specialty  after  lapse  of  20  years,  263. 
from  failure  to  call  a  witness,  314. 
as  to  documents,  209-218. 
as  to  date,  210,  220. 

of  order  of  execution  of  instruments  having  same  date,  209. 
that  instruments  of  same  date  are  parts  of  same  transaction, 

209. 
as  to  stamp,  210. 

as  to  sealing  and  delivery  of  deeds,  209,  21 1,  212.     (See  Seal.) 
as  to  ancient  documents,  212-214. 

what  corroboration  required,  213. 
as  to  alterations.     (See  Alteration.) 

equitable  presumption  as  to  document  may  be  rebutted  by 
parol  evidence,  231,  235. 
burden  of  proof  is  on  party  against  whom  presumption  exists,  242, 
248,249. 
Previous  conviction,  relevancy  of,  in  prosecutions  for  receiving  stolen 

goods,  42. 
Price  current  list,  as  evidence,  116. 
Primary  evidence.     (See  Document.) 
Principal  and  agent : 

admissions  of  agent  bind  principal,  65,  66,  70,  362. 

parol   evidence  competent   to   show  that   signer  of   instrument 

signed  as  agent,  not  as  principal,  221. 
agent  must  show  good  faith  as  to  dealings  with  principal,  254. 
agent  estopped  to  deny  principal's  title,  267,  268. 
agency  shown  by  person's  acting  as  agent  on  other  .occasions,  53. 

aliter,  as  to  agency  to  commit  crimes,  53. 
agent  of  lawyer,  privileged  from  disclosing  client's  communica- 
tions, 2QO, 


452  INDEX. 

(The  numbers  refer  to  pages.) 

Principal  and  surety : 

principal's  admissions  do  not  bind  surety,  70,  71. 

effect  of  judgment  against  principal,  132. 

parol  evidence  competent  to  show  parties  to  instrument  to  be  co- 
sureties, 221. 

principal  must  show  good  faith  as  to  dealings  with  surety,  254. 

alteration  of  document  by  principal's  consent  may  avoid  it  as  to 
surety,  215. 
Principal  felon,  judgment  against  as  affecting  accessory,  134. 
Printed  documents  as  evidence,  primary  or  secondary,  179. 
Private  boundaries,  declarations  concerning,  101,  102. 

when  provable  by  ancient  maps,  1 15. 
Private  papers.     (See  Document ;  Subpoena  duces  tecum  ;  Witness.) 
Private  rights,  declarations  concerning,  102. 
Privies,  admissions  by.     (See  Admissions.) 

when  bound  by  judgment  against  party,  120,  126,  128,  130. 

in  subsequent  suit  between  same  parties  or  privies,  former  testi- 
mony of  deceased  witness  admissible,  in. 
Privilege  of  witnesses.     (See  Witness.) 
Privileged  communications  between  husband  and  wife,  277,  279,  280. 

between  attorney  and  client,  286-292.    (See  Attorney.) 

between  clergyman  and  person  confessing,  292,  293. 

between  physician  and  patient,  292,  293,  382. 
Prize,  effect  of  judgment  of,  118,  127,  128. 
Probate  of  will,  evidence  to  procure,  100,  182. 

effect  of  judgment  granting,  1 19. 

burden  of  proof  as  to  testator's  sanity  and  as  to  undue  influence, 
246,  247. 
Probate  courts,  grade  of,  136. 

effect  of  judgments  of,  136. 
Proclamations,  recitals  in  as  evidence,  112. 

judicially  noticed,  169,  206. 

proof  of,  205,  206,  397. 
Professional  communications.     (See  Privileged  Communications.) 
Promissory  note,  admissions  of  holder  of,  63,  64. 

indorsement  of  payment  on,  effect  of  as  evidence,  96,  97. 

effect  of  judgment  against  indorser,  132. 

character  of  party,  not  relevant,  160. 

alteration  of.     (See  Alteration.) 
filling  blanks  in,  218. 

presumption  that  indorsee  acquired  it  bona  fide  for  value  before 
maturity,  244. 

when  in  hands  of  maker,  presumed  to  have  been  paid,  262. 


INDEX.  453 

(The  numbers  refer  to  pages.) 

Promissory  note  {continued). 

whether  party  competent  to  testify  that  it  was  invalid  in  its  in- 
ception, 271. 
whether  judgment  for  interest,  after  principal  due,  bars  action  for 
principal,  125. 
Proof,  defined.    (See  Evidence.) 
conclusive,  definition  of,  4,  351. 
order  of  discretionary  with  court,  315. 
burden  of.     (See  Burden  of  Proof.) 
Property,  value  of,  how  provable,  36,  37,  143,  144. 

possession  of  raises  presumption  of  ownership,  262. 

after  larceny  of  raises  presumption  of  guilt,  23,  245. 
facts  showing  rights  of,  or  exercise  of  rights,  17. 
Public  acts  and  records  of  other  States,  to  receive  full  credit,  139,  201. 
Public  affairs,  privilege  of  witness  as  to  disclosing,  282. 
Public  books  and  records,  admissibility  of  entries  in,  94. 
Public  documents,  proof  of,  196-207. 
by  producing  document  itself,  196. 
by  testimony  of  witness,  146,  196. 
by  copies,  186,  187,  189. 

by  examined  or  sworn  copy,  186,  197,  205,  207. 
by  exemplification,  186,  198,  199,  205,  207. 
by  office  copy,  186,  198,  199. 
by  certified  copy,  186,  198,  199. 
by  officially  printed  copy,  204,  205,  206. 
of  Revised  Statutes  of  U.  S.,  204,  205. 
of  State  statutes,  146,  205. 
of  proclamation,  edict,  decree,  etc.,  205,  206. 
of  foreign  law,  146,  207. 
official   publication   presumed  to   contain   existing  law, 

unless  contrary  shown,  205. 
if  printed  statute  differs  from  enrolled,  latter  prevails, 
205,  206. 
proof  of  general  records  of  the  nation  or  State,  197,  396. 
of  records  of  the  several  American  States,  201,  202,  203. 
of  statutes  of  any  State  or  Territory,  146,  205,  206. 
of  proclamations,  acts  of  state,  legislative  journals,  etc.,  205, 

206. 
of  foreign  written  laws,  acts  of  state,  records,  etc.,  146,  207, 399. 
English  and  Irish  public  documents,  proof  of,  396-400. 
Public  facts,  recitals  of  as  evidence,  112. 
Public  history,  matters  of,  judicially  noticed,  172. 
Public  laws,  when  judicially  noticed,  163,  164, 


454  INDEX. 

(The  numbers  refer  to  pages.) 

Public  officers.     (See  Officers.) 

Public  records,  entries   in   as   evidence,  94,    112,   113.     (See   Public 
Documents.) 

of  the  weather,  1 13,  1 17. 

how  contents  proved  in  case  of  loss,  196. 
Public  rights,  defined,  102. 

declarations  concerning,  101-103. 

provable  by  ancient  maps,  115. 

judgments  relating  to,  131,  134. 
Publication  of  will,  100. 

Quarrelsome  character  of  person,  when  provable,  20. 

Queen's  printers'  copies  of  Acts  of  Parliament,  as  evidence,  396. 

Rape,  evidence  of  woman's  complaint  in  trials  for,  24,  25,  27. 

particulars  of  complaint  not  generally  provable,  24,  25,  27,  356. 

corroboration  of  the  woman's  evidence  required  in  some  States,  301. 

evidence  of  her  bad  reputation  for  chastity,  competent,  337-339. 

evidence  of  her  previous  connection  with  the  prisoner  or  other 
persons,  competency  of,  338,  339. 
Reading  law  books  and  other  books  to  jury,  whether  permissible,  116. 
Reasonable  doubt,  defined,  237. 
Rebuttal,  evidence  in,  when  given,  319. 

of  an  equity,  by  oral  evidence,  231,  235. 
Receipt,  not  necessary  as  evidence  to  prove  payment,  100,  191. 

may  be  varied  by  oral  evidence,  222. 
Receiver,  effect  of  judgment  appointing,  1 19. 

Receiving  stolen  goods,  similar  acts  relevant  to  show  knowledge,  43. 
Recitals  of  public  facts,  in  statutes,  proclamations,  etc.,  when  relevant, 

112. 
Record,  imports  absolute  verity,  136. 

Records,  public.    (See  Public  Documents;  Public  Records.) 
Record  books  of  courts,  judicially  noticed,  166. 

Recorded  deeds,  proof  of  execution  of,  185.     (See  Deed;   Acknowl- 
edged Deed.) 

presumption  as  to  delivery  of,  212. 
Recoupment,  matter  of  may  be  set  up  in  defence,  or  sued  on  inde- 
pendently, 121. 
Re-examination  of  witness.     (See  Witness.) 
Referee,  competency  of  as  witness,  287. 

power  of  to  take  testimony,  decide  causes,  etc.,  310. 

appointed  to  take  evidence,  cannot  pass  upon  objections,  311. 
alitcr,  when  he  acts  as  judge  to  decide  causes,  311. 


INDEX.  4$5 

(The  numbers  refer  to  pages.) 

Reformation  of  document  in  equity.     (See  Oral  Evidence.) 
Refreshing  memory  of  witness  : 

witness  may  use  writing  made  at  or  near  time  of  transaction,  341, 

343- 

three  cases  of  refreshing  memory,  341,  342. 

writing  not  itself  competent  evidence,  generally,  342,  343. 

aliter,  in  some  States  as  to  writing  made  by  witness,  when  he 
has  no  present  recollection  of  the  facts,  343. 

opposite  party  allowed  to  inspect  writing,  and  may  cross-examine 
thereon, 343. 
object  of  cross-examination,  343. 

writing  made  too  long  after  transaction,  not  allowed  to  be  used,  344. 

dying  declarations  made  in  writing,  used  to  refresh  recollection,  88. 
Registers,  public,  entries  in  as  evidence,  94,  112,  113. 

as  evidence  of  pedigree,  107. 
Relationship  of  parties,  evidence  of,  28.    (See  Pedigree.) 

insanity  shown  by  insanity  of  blood  relations,  33. 
Relevancy,  definition  of,  xviii.,  5,  351-354.     (See  Evidence.) 

relevant  facts  admissible  in  evidence,  6. 
except  when  too  remote,  6,  19,  40. 

relevant  evidence  admissible,  though  improperly  obtained,  6. 

of  facts  forming  part  of  the  res gestce.    (See  Res  Gesta.) 

of  facts  and  declarations  of  conspirators.     (See  Conspirators.) 

of  facts  showing  title,  17,  355. 

of  facts  showing  custom,  18.    - 

of  facts  showing  motive,  preparation,  subsequent  conduct,  explana- 
tory statements,  19-23,  35. 

of  complaints,  statements  in  person's  presence,  etc.,  23-27. 

of  facts  necessary  to  explain  or  introduce  relevant  facts,  28-33. 

of  identity,  genuineness  of  documents,  relations  of  parties,  oppor- 
tunity for  act,  etc.,  218. 

of  similar  but  unconnected  facts,  34-41,  357. 

of  evidence  to  show  value  of  property,  36,  37. 

of  acts  showing  intention,  good  faith,  etc.,  42-49,  357. 

of  facts  showing  system,  49-53,  357. 

of  facts  showing  course  of  business,  49,  50,  53,  54. 

of  hearsay  evidence,  55.    (See  Hearsay.) 

of  admissions,  57-74.     (See  Admissions.) 

of  confessions,  75-85.     (See  Confessions.) 

of  statements  of  deceased  persons,  86-1 1 1.     (See  Declarations.) 

of  statements  in  public  documents  and  records,  112. 

of  statements  in  historical  and  scientific  works,  maps,  etc.,  1 13-1 16. 

of  statements  in  judgments,  1 17-140.     (See  Judgment.) 


456  INDEX. 

(The  numbers  refer  to  pages.) 

Relevancy  {continued). 

of  evidence  of  opinion.     (See  Opinion,  Evidence  of.) 

of  evidence  of  character.    (See  Character,  Evidence  of.) 
Remoteness  of  evidence,  excludes  it,  6,  19,  40. 
Kent  of  land,  person  receiving  presumed  to  be  owner,  249. 
Reports,  law,  as  evidence,  112,  196. 

to  prove  foreign  law,  146. 
Reputation.     (See  Character,  Evidence  of.) 

as  evidence  of  pedigree,  107. 
Res  adjudicata.  (See  Judgment.) 
Res gestce,  doctrine  of,  8-14,  23,  57,  356. 

when  acts  or  declarations  will  form  a  part  of,  9,  10. 

admissible  though  in  declarant's  own  favor,  57,  61. 

illustrations  of  doctrine,  11-14,  26,  29,  47. 

declarations  of  conspirators,  14-16,  63,  355. 

declarations  of  woman  in  cases  of  rape,  24,  25. 

expressions  of  bodily  and  mental  feeling,  47-49,  210. 

declarations  of  owner  of  land  or  chattels,  characterizing  his  pos- 
session, 61,  62. 

declarations  as  to  boundaries  of  private  estates,  101. 

declarations  of  agents  in  course  of  agency,  65,  66,  70,  362. 

declarations  of  principal  as  affecting  surety,  70,  71. 

declarations  made  in  course  of  business,  etc.,  90-95. 

letters  of  parent  as  to  legitimacy  of  child,  256,  257. 
Res  inter  alios  acta,  xviii.,  357. 
Res  ipsa  loquitur,  243,  249,  250. 
Resemblance  of  child  to  parent,  evidence  of,  32. 
Retraxit,  judgment  on  is  a  bar,  122. 
Rights,  public  and  general,  declarations  concerning,  100-103. 

private,  declarations  concerning,  102. 
Roman  law,  compared  with  common  law,  xxv. 
Rules  of  court,  judicially  noticed,  166. 

but  not  those  of  inferior  courts,  167. 

Sanity,  of  testator,  provable  by  subscribing  witnesses,  141.     (See  In- 
sanity.) 
of  other  persons,  whether  provable  by  evidence  of  opinion,  141. 
provable  by  letters  sent  to  person,  with  evidence  of  his  acting 
thereon,  27. 
Satisfactory  evidence,  4. 

Science,  matters  of,  provable  by  opinion-evidence,  144. 
Scienter,  provable  by  similar  cases  of  injury  by  animals,  44. 
Scientific  treatises,  competency  of  as  evidence,  115,  116. 


INDEX.  457 

(The  numbers  refer  to  pages.) 

Seal,  of  States,  of  admiralty  courts,  of  notaries,  etc.,  judicially  noticed, 
168,  169. 
but  not  those  of  foreign  municipal  courts,  or  of  foreign  officers,  169. 
English  seals  recognized  in  English  courts,  168-170. 
to  be  used  on  copies  of  public  documents,  197,  198. 
of  a  deed,  what  is  sufficient  as,  211. 
instrument  without  seal  not  a  deed,  though  it  allege  a  sealing, 

211. 
if  deed  be  recorded  without  a  seal,  sealing  may  be  presumed,  21 1. 
if  seal  omitted  by  mistake,  equity  will  supply  it,  211. 
seal  of  deed  presumed  to  be  that  of  signer,  211,  212. 
deed  sealed  and  signed,  presumed  to  have  been  regularly  de- 
livered, 212. 
contract  under  seal,  how  far  modifiable  by  oral  evidence,  223. 
when  condition  affecting  sealed  instrument  may  be  shown  by 
parol,  222. 
Secondary  evidence.     (See  Document.) 

Seduction,  plaintiff's  bad  character  irrelevant  in  actions  for,  160. 
aliter,  as  to  woman's  bad  character,  161,  339. 
under  promise  of  marriage,  is  a  crime,  301. 

corroboration  of  woman's  evidence  in  trials  for,  when   re- 
quired, 301. 
woman   cannot  generally  be   cross-examined   as  to  connection 
with  other  men,  340. 
Self-defence,  burden  of  proof  as  to,  and  amount  of  evidence  required, 

248. 
Senator,  status  of,  judicially  noticed,  167. 
Servant.     (See  Master  and  Servant.) 

Set-off,  may  be  set  up  in  defence  or  sued  on  independently,  121. 
Sheriff,  when  bound  by  admissions  of  deputy,  60. 
status  and  signature  of,  judicially  noticed,  168. 

aliter,  as  to  his  deputy,  168. 
effect  of  judgment  against,  as  to  sureties  on  his  bond,  132. 
admissions  of  judgment  debtor,  when  competent  against  sheriff,  72. 
Shifting  of  burden  of  proof.    (See  Burden  of  Proof.) 
Shipmaster,  when  estopped  to  deny  bill  of  lading  signed  by  him,  268, 
269. 
shipowner,  whether  bound  by  master's  act,  269. 
Sickness  of  witness,  as  ground  to  receive  his  former  testimony,  108. 

evidence  of  opinion  as  to  person's  illness,  142. 
Signatures,  of  judges  and  public  officers,  judicially  noticed,  167,  168. 
proof  of,  to  show  execution  of  document,  181,  182. 
made  in  court,  when  used  as  standards  of  comparison,  154,  155. 


458  INDEX. 

(The  numbers  refer  to  pages.) 

Silence,  admissions  and  confessions  by,  15,  25,  26,  58,  72,  75. 

Similar   facts   to  those  in   issue,  generally   irrelevant,  xviii.,   34-41, 

357- 
illustrations  of  rule,  35-41. 
but  relevant  when  they  are  the  effects  of  the  same  cause,  acting 

under  like  conditions,  34,  38-41. 
relevant  to  show  the  quality  of  an  act,  34,  37-39. 
relevant  to  show  intention,  knowledge,  good  or  bad  faith,  malice, 

etc.,  42-49,  357. 
relevant  to  show  system,  49-53,  357. 
Slander,  evidence  of  similar  statements   to  show  malice,   relevant, 

45- 
evidence  of  plaintiff's  bad  character  relevant,  161,  395. 

aliter,  as  to  reports  and  particular  acts  of  misconduct,  161. 
amount  of  proof  required  in  justifying  charge  of  crime,  239. 
Solicitor.     (See  Attorney.) 

of  patents,  has  not  a   lawyer's  privilege  as  to  professional  com- 
munications, 290. 
Special  proceeding,  effect  of  order  in,  122. 
Specialty.     (See  Bond  ;    Deed  ;    Document ;    Oral  Evidence  ;    Seal ; 

Presumption.) 
Splitting  cause  of  action,  not  permissible,  120,  124,  125. 
Spoliation,  distinguished  from  alteration,  215. 
Spoliator,  presumptions  against,  263. 
Stamp  in  documents,  presumption  as  to,  210. 
State  of  mind  or  body,  provable  by  similar  acts  or  declarations,  42. 

expressions  of  provable,  47-49. 
State  affairs,  privilege  of  witness  as  to  disclosing,  282. 
State  papers.     (See  Public  Documents.) 

Statements.    (See  Declarations  ;  Document ;  Judgment ;  Witness.) 
Statute,  recitals  in  as  evidence,  1 12. 

of  forum,  judicially  noticed,  163,  164. 
aliter,  as  to  private  statutes,  163. 
of  other  States  or  countries,  how   provable,  145-147,  205,  206, 

207. 
of  the  United  States,  how  proved,  204. 

if  printed  statute  differs  from  enrolled,  latter  prevails,  205,  206. 
official  publication  presumed  to  contain  existing  law,  unless  con- 
trary shown,  205. 
weight  of  evidence  required  to  show  statute  to  be  unconstitutional, 
240. 
Statute  of  Frauds,  contract  within,  how  far  modifiable  by  parol  evi- 
dence, 222,  223. 


INDEX.  4S9 

(The  numbers  refer  to  pages.) 

Statute  of  Limitations,  effect  of  admissions  by  one  partner  or  joint 
contractor  in  removing  the  bar  of,  66,  67,  69. 
effect  of  indorsement  of  payment  on  bond,  bill,  note,  etc.,  in  re- 
moving bar  of  the  statute,  96*  97. 
effect  of  prosecution  being  barred,  upon  the  privilege  of  witness 
as  to  criminating  evidence,  297. 
Stenographer's  minutes  or  testimony,  to  prove  testimony  of  deceased 

witness,  1 10. 
Stipulations  of  attorney,  binding  on  client,  68. 
Stolen  goods,  receiving,  facts  relevant  to  show  knowledge,  43. 
Strangers  to  suit,  admissions  by,  72. 

effect  of  judgment  upon,  126-128,  130-134.    (See  Judgment.) 
subpcena  served  upon,  193. 

to  document,  may  vary  it  by  oral  evidence,  235,  236. 
Suborning  of  witnesses,  effect  of  as  evidence,  22,  23. 
Subpcena,  ambassadors  and  foreign  consuls  not  required  to  obey,  283. 
Subpoena  duces  tecum,  is  a  compulsory  writ,  193. 
penalties  for  disobeying,  193. 
on  whom  served,  193. 

may  now  be  served  on  party  to  action  or  on  corporation,  193,  296. 
should  describe  document  definitely,  193., 

not  used  to  compel  the  production  of  iron  plates  and  the  like,  193. 
witness  compellable  to  produce  his  private  papers,  294. 
but  court  may  relieve  him  of  this  duty,  294. 
not  privileged  from  producing  papers  on  which  he  has  a  lien 

or  which  would  expose  him  to  civil  liability,  294,  295. 
attorney  or  agent  compellable  to  produce  papers  which  client 
could  be  required  to  produce,  296. 
but    professional   communications    protected  from  dis- 
closure, 296. 
solicitor,  trustee,  or  mortgagee  not  compelled  to  produce 
papers  entrusted  to  him,  295. 
witness  not  compellable  to  produce  papers  that  would  criminate 
him,  187,  294,  296-300. 
or  would  expose  him  to  a  penalty  or  forfeiture,  294,  298. 
private  papers  protected  from  seizure,  294. 
when  privileged  witness  withholds  document,  secondary  evidence 
admissible,  187,  296. 
aliter,  when  witness  not  privileged  withholds  it,  193. 
agents  of  telegraph  company  compellable  to  produce  messages, 

193.  297. 
witness  not  cross-examinable,  when  merely  called  to  produce 
paper  on  subpcena,  315. 


46o  INDEX. 

(The  numbers  refer  to  pages.) 

Subscribing  witness,  who  is,  180. 

proof  of  execution  of  document  attested  by,  180-185,  371.    (See- 
Document.) 
deceased,  declarations  of  irrelevant,  55. 
to  will,  may  testify  as  to  his  opinion  of  testator's  sanity,  141. 
proof  of  will  by,  182. 

in  ancient  documents,  need  not  be  examined,  213. 
if  attorney  be  subscribing  witness  to  will,  he  may  testify  to  its 

execution,  287. 
may  be  impeached  by  party  calling  him  by  proof  of  his  contra- 
dictory statements,  330. 
Sufficiency  of  evidence,  4. 
determined  by  jury,  4. 
Supreme  Court  of  Justice  (England),  rules  of  practice  in  judicially 
noticed,  166,  167. 
does  not  notice  rules  of  inferior  courts,  167. 
signatures  of  its  judges  judicially  noticed,  168. 
Surety.    (See  Principal  and  Surety.) 

Surrogate,  power  of  to  appoint  administrator  on  estate  of  living  per- 
son, 119. 
Surveys  of  land,  as  evidence,  115. 

Surveyors,  declarations  of  deceased  to  prove  boundaries,  101. 
Survivorship,  presumption  as  to,  when  persons  perish  in  the  same 

calamity,  258. 
Sustaining  of  impeached  witness.    (See  Witness.) 
Sworn  copy,  of  a  document,  197. 
System,  provable  by  evidence  of  similar  acts,  40-53,  357. 

Tables,  life  and  annuity,  as  evidence,  117,  179,  180. 

Technical  words,  explained  by  parol  evidence,  228. 

Telegrams,  as  evidence,  whether  primary  or  secondary,  179,  180. 

presumption  of  delivery  from  sending,  54. 

agent  of  telegraph  company  required  to  produce  on  subpcena 
duces  tecum,  193,  297. 
Telephone,  witness  may  testify  as  to  message,  175. 
Tenant.     (See  Landlord  and  Tenant.) 
Tender  of  payment,  admits  debt,  58. 
Terms  of  court,  judicially  noticed,  166. 
Testator,  admissions  of,  60,  63. 

statements  of,  as  bearing  upon  undue  influence,  48,  49. 

declarations  of  as  to  intention  and  contents  of  will,  and  as  to  un- 
due influence,  99,  100. 

sanity  or  insanity  provable  by  subscribing  witness,  141,  142. 


INDEX.  461 

(The  numbers  refer  to  pages.) 

Testator  {continued). 

burden  of  proof  as  to  testator's  mental  condition  in  probate  pro- 
ceedings, 246,  247. 
intention  of,  when  shown  by  parol  evidence,  231,  234,  235,  375— 

377- 
Testimony,  defined,  4. 
Threats,  evidence  of,  when  relevant,  20,  21. 

confessions  made  under,  77-82. 

dying  declarations  not  evidence  of,  86. 
Time,  divisions  of,  judicially  noticed,  171,  172. 
Title,  evidence  of  facts  showing,  17,  355. 
Title-deeds.    (See  Deed.) 
Tort,  admissions  of  defendant  in  actions  for,  effect  of,  69. 

effect  of  judgment  against  one  tort-feasor,  131. 
Towns  and  their  location,  judicially  noticed,  170. 
Trade,  usages  of.     (See  Custom.) 
Trade  secrets,  privileged  from  disclosure,  294. 
Transaction,  defined,  8. 

Treason,  two  witnesses  needed  in  trials  for,  303,  304. 
Treaties,  when  judicially  noticed,  169. 

proof  of,  399. 
Treatises,  medical,  scientific,  etc.,  as  evidence,  115,  116. 
Trespass,  effect  of  judgment  in  action  for,  123. 
Trust,  established  by  oral  evidence,  221. 

weight  of  evidence  required  to  establish  resulting  trust,  240. 
Trustee,  privilege  as  to  producing  documents  in  evidence,  295. 

effect  of  judgment  appointing,  119. 

must  prove  good  faith  as  to  dealings  with  cestui  que  trust,  254. 

presumed  to  have  executed  deeds  to  complete  title,  when  his  duty 
so  requires,  261. 

of  bankrupt,  debtor's  admissions  competent  against,  72. 

Uncertainty,  parol  evidence  to  explain,  228,  229. 
Understanding,  when  witness  may  testify  to  his,  176. 
Undue  influence  in  making  will,  evidence  of,  29,  30. 

when  charged,  testamentary  intention  may  be  shown  by  prior 
statements,  48. 

burden  of  proof  to  establish,  247. 

between  parties  in  fiduciary  relations,  248,  253,  254,  304. 
United  States,  public  documents  of,  how  provable,  197. 

seal  of,  judicially  noticed,  169. 

Revised   Statutes  of,  provable  by   officially   printed  copy,  204, 
205. 


462  INDEX. 

(The  numbers  refer  to  pages.) 

Jnited  States  (continued). 

no  examination  of  party  before  trial  in  U.  S.  courts  in  suits  at  law, 

309- 
examiners  in  equity  in  U.  S.  courts  cannot  pass  on  objections  to 
testimony,  310,  311. 
Usage.    (See  Custom.) 

Usury,  provable  by  oral  evidence  to  avoid  writing,  221. 
weight  of  evidence  required  to  establish,  240. 
burden  of  proof  on  defendant,  250. 
Uttering   counterfeit  money  or  forged  instruments,  similar  acts  to 
show  knowledge,  43. 

Value  of  property,  services,  etc.,  how  provable,  36,  37. 

provable  by  opinion-evidence,  143,  144. 

by  price  current  lists,  market  reports,  etc.,  116,  117. 
Verdict,  as  evidence  of  public  and  general  rights,  103. 

without  judgment  thereon,  not  a  bar,  122. 

evidence  of  jurors  not  received  to  impeach  their  own  verdict,  284. 

chance  or  quotient  verdict,  invalid,  286. 
View,  of  locus  in  quo  by  jury,  177. 
Voluntary  confessions.     (See  Confessions.) 

Wagers,  evidence  in  actions  upon,  354. 
Waiver,  223. 

by  client  of  privilege  as  to  his  attorney's  testifying,  287. 

by  patient  or  person  confessing  as  to  privilege  of  physician  or 
clergyman,  292,  293. 

of  rule  excluding  oral  evidence  to  vary  a  writing,  236. 
War,  existence  of  judicially  noticed,  170,  171,  172. 
Water,  percolating,  no  legal  right  acquired  to  by  lapse  of  time,  260. 
Weather,  record  of,  admissible,  113,  117. 
Weights  and  measures,  judicially  noticed,  171. 
Wife.    (See  Husband  and  Wife.) 
Will,  proof  of  undue  influence  in  making  of,  29,  30,  48. 

declarations  accompanying  destruction  of,  provable  to  show  in- 
tent, 26. 

burden  of  proof  as  to  validity  of  will  and  testator's  insanity,  in 
probate  proceedings,  246, 
as  to  undue  influence,  247. 

proof  of  intent  and  contents  by  testator's  declarations,  99,  100. 

publication  of,  100. 

subscribing  witness  to.    (See  Subscribing  Witness.) 

proof  of  lost  or  destroyed  will,  09,  100. 


INDEX.  463 

(The  numbers  refer  to  pages.) 

Will  {continued). 

testator's  attorney  may  testify  to  his  directions,  to  support  the 

will,  289. 
revoking  of  by  cancellation  or  obliteration,  217. 
as  evidence  of  pedigree,  107. 
ancient,  presumption  as  to,  212-214. 
alterations  in,  when  presumed  to  be  made,  216,  217. 
parol  evidence  not  admissible  to  vary,  220,  223. 

but  testator's  intention  may  be  shown  by  parol  in  cases  of 
"equivocation,"  or  to  rebut  an  equity,  231, 235,  375-377. 
Witness.     (See  Oral  Evidence.) 

bribing  to  go  away,  when  provable,  22. 

death,   insanity,  absence,   etc.,  as  ground   for  receiving  former 

testimony,  108. 
may  be  required  to  stand  up,  etc.,  to  be  identified,  177,  298. 
suborning,  effect  of  as  evidence,  22,  23. 

may  testify  to  his  impression,  intent,  or  belief,  but  not  to  a  con- 
clusion of  law,  176. 
when  to  be  served  with  subpcena  duces  tecum.    (See  Subpoena  duces 
tecum.) 
effect  of  his  withholding  document,  when  so  served,  187,  193, 
296. 
subscribing  witness.     (See  Subscribing  Witness.) 
competency  of  witnesses,  270-273. 

of  parties  and  persons  interested,  270,  271.     (See  Subpcena 

duces  tecum.) 
of  party  to  negotiable  instrument  to  prove  it  invalid,  271. 
of  children,  271-274,  380,  405. 
of  persons  of  unsound  mind,  271,  274,  275. 
of  intoxicated  persons,  272. 
of  deaf  and  dumb  persons,  272. 
of  atheists,  272,  273. 
of  infamous  persons,  273. 
infamy  how  proved,  325. 
disability  how  removed,  273. 
of  defendant  or  co-defendant  in  criminal  cases,  275,  276,  401- 
404. 
defendant  may  now  be  a  witness  but  his  failure  to  testify 
shall  not  create  any  presumption  against  him,  276. 
of  husband  and  wife  in  criminal  cases,  275-277,  401-403. 
in  civil  cases,  277-279. 
as  to  marital  intercourse,  256. 
of  wife  in  bastardy  cases  as  to  paternity  of  child,  256. 


464  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

cannot  disclose  confidential  communications,  277,279,280. 
cannot  in  general  give  evidence  criminating  each  other, 
297,  298. 
aliter,\xi  collateral  proceedings  where  evidence  would 
only  indirectly  tend  to  criminate,  278,  298. 
of  judges,  referees,  auditors,  arbitrators,  280-282,  381. 
of  merchant  appraiser,  or  officer  taking  acknowledgment  of 

deed,  282. 
of  attorney  or  counsel  in  same  case,  282. 
of  grand  and  petty  jurors,  284-286. 
of  lawyers,  their  agents  and  interpreters,  as  to  professional 

communications,  286-291.     (See  Attorney.) 
of  clergymen  and  physicians,  292,  293,  382. 
privilege  of  witnesses : 

as  to  public  affairs  or  communications  between  public  officers, 

282. 
as  to  information  concerning  the  commission  of  offences,  283. 
as  to  confidential  communications  between  husband  and  wife, 

277,  279,  280. 
as  to  professional   communications   between   attorney  and 
client,  286-292.    (See  Attorney.) 
between  clergymen  and  person  confessing,  292,  293. 
between  physician  and  patient,  292,  293. 
as  to  producing  documents  or  giving  oral  evidence,  tending 
to  criminate  or  to  expose  to  a  penalty  or  forfeiture,  187, 
294,  296-300. 
defendant  in  criminal  case,  voluntarily  becoming  witness, 
waives  privilege  as  to  criminating  himself,  298. 
as  to  trade  secrets,  294. 

as  to  producing  documents  on  which  witness  has  a  lien,  295. 
as  to  producing  title-deeds  and  private  papers  in  evidence, 

293,  294,  295.     (See  Subpoena  duces  tecum.) 
no  privilege  as  to  documents  or  testimony  exposing  witness 
to  civil  liability,  295,  299. 
corroboration  0/ witnesses,  when  required : 

in  actions  for  breach  of  promise  of  marriage,  300,  301. 
in  bastardy  proceedings,  300,  301. 
in  cases  of  seduction  under  promise  of  marriage,  301. 
in  cases  of  abduction,  rape,  etc.,  301. 
in  suits  for  divorce,  301. 

to  support  the  evidence  of  an  accomplice,  301, 302.    (See  Ac- 
complice.) 


INDEX.  46s 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

to  support  claim  on  estate  of  deceased  person,  302. 
to  support  the  evidence  of  a  witness  falsus  in  uno,  303. 
in  trials  for  perjury,  304,  305. 
in  chancery  cases,  to  support  the  bill,  305. 
number  of  witnesses  required  : 

in  cases  of  treason,  two  or  more  required,  303,  304. 

in  cases  of  perjury,  more  than  the  evidence  of  one  needed, 

3°4,  305- 
custom  may  be  proved  by  one,  19,  305. 
examination  of  witnesses : 

witness  to  be  under  oath,  306. 

mode  of  administering  oath,  307,  308. 

allowed  to  affirm,  when,  306,  307. 

wilful  false  testimony,  violating  oath  or  affirmation,  perjury, 

306,  307,  308. 
witness  may  give  evidence  in  court  or  out  of  court,  308-313. 

(See  Oral  Evidence  ;  Affidavit ;  Depositions.) 
examination  in  court,  order  of,  313-315. 
witnesses,  when  ordered  to  withdraw  from  the  court,  313. 
effect  of  their  refusal,  313. 
expert  witness  may  be  required  to  withdraw,  313. 

but  not  a   party,  nor  a  person   interested,  nor  the 
guardian  of  an  infant  party,  314. 
presumption  from  party's  failure  to  call  a  particular  witness, 

314. 
order  of  proof  discretionary  with  trial  court,  315. 
witness's  death  or  incapacity  before  examination  is  concluded, 
generally  excludes  evidence  taken,  315,  316. 
aliter,  in  England  and  in  some  cases  in  this  country,  315, 
316. 
effect  of  death  of  a  party  before  examination  is  concluded, 

316. 
evidence  of  witness,  who  is  found  to  be  incompetent  during 
examination,  may  be  withdrawn  from  jury,  316. 
so   incompetent  testimony,    though  admitted,    may    be 
stricken  out,  317. 
in  some  States,  irrelevant  evidence  may  be  contradicted  by 

party  prejudiced,  318. 
exa?nination  in  chief,  313. 

must  relate  to  facts  in  issue  or  relevant  facts,  317. 
leading   questions    not   generally  permitted,  319.      (See 
Leading  Questions.) 


466  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

party  opening  case  must  develop  his  whole  case  in  chief, 

319- 
but  court  may  permit  evidence  in  rebuttal  which  should 
have  been  given  in  chief,  319. 
cross-examination,  313-315. 

to  be  confined  to  matter  testified  to  in  chief,  298,  315,  317 
aliter,  in  England  and  some  American  States,  314, 

3I5.3I7- 
mere  production  of  document,  or  verification  of  signa- 
ture, does  not  authorize  cross-examination,  315. 
witness  deemed  to  be  that  of  the  party  who  introduced 

him,  318. 
leading  questions  permitted  on,  319,  320. 

aliter,  in  some  States  when  the  cross-examination  re- 
lates to  new  matter,  320. 
questions   permitted  which   test  accuracy,  veracity,  or 

credibility,  320. 
irrelevant  inquiries  permitted  as  to  specific  facts,  tending 
to  disgrace,  320-323,  384,  3§5- 
extent  of  such  examination  discretionary  with  court, 

320,  321,  323,  324. 
witness  entitled  to  protection  from  abuse  and  insult, 

324- 
witness  may  claim  privilege  of  not  answering,  320. 
but  material  questions  as  to  disgracing  facts  must  be 

answered,  320. 
questions  must  be  such  as  to*affect  credibility,  321. 
in  N.  Y.  questions  as  to  witness's  being  accused,  in- 
dicted, arrested,  etc.,  not  allowable,  321. 
permissible  in  some  States,  321,  322. 
these  rules  apply  to  parties  as  witnesses,  321. 
witness  may  be  cross-examined  as  to  facts  showing  his 
favor,  interest,  malice,  bias,  prejudice,  etc.,  322,  323. 
answers  to  irrelevant  or  collateral  inquiries  cannot  be 
contradicted,  324,  326. 
except  when  the  answers  deny  favor,  interest,  malice, 

bias,  prejudice,  etc.,  325,  326. 
or  in  England  and  some  States,  when  the  answers 

deny  conviction  for  crime,  325. 
but  conviction  usually  provable  only  by  record,  and 
not  by  cross-examination,  325.     (See  Infamous 
Persons.) 


INDEX.  467- 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

answers  to  inquiries  relevant  to  the  issue  may  be  contra- 
dicted, 326,  327,  331. 
but  witness  must  on  cross-examination  be  given  a 
chance  to  explain  the  alleged   contradictory 
statement,  327,  331. 
in  some  States,  this  is  not  necessary,  328. 
if  his  absence  or  death  prevents  his  having  a 
chance  to  explain,  evidence  of  the  contra- 
diction is  not  received,  327,  331,  332. 
the  contradictory  statements  are  not  evidence  of 

the  facts  asserted  therein,  328. 
party  to  action,  becoming  a  witness,  may  be  im- 
peached in  this  way,  329. 
but  if  his  statements  constitute  admissions,  they 
are  admissible  without  giving  him  a  chance 
to  explain,  329. 
cross-examination  as  to  previous  statements  in  writing, 
how  made,  332-334,  387. 
in  this  country,  writing    exhibited   to    witness    for 
authentication,  and   then   itself   read  in   evi- 
dence, 333. 
extent  of  cross-examination  of  women  in  trials  for  rape 
and  seduction,  337-340. 
re-examination,  313,  315. 

is  for  explanation  of  matters  referred  to  in  cross-examina- 
tion, 318. 
court  may  allow  it  to  extend  to  other  matters,  318. 
whole  conversation  may  be  brought  out,  318. 
leading  questions  not  permitted  on,  319. 
witness  allowed  to  be  recalled  for  further  examination,  315. 
impeachment  of  witnesses  : 

party  cannot  impeach  his  own  witness,  320-331. 

nor  opposing  witness  whom  he  makes  his  own  by  cross- 
examining  as  to  new  matter,  329. 
nor  opposing  party,  if  he  calls  him  as  a  witness,  330. 
but  may  prove  facts  ot  case  by  other  witnesses,  329, 330, 33 1 . 
and  may  impeach  witness  whom  law  obliges  him  to  call, 

330. 
party  surprised  by  his  witness  may  examine  him  as  to 

his  contradictory  statements,  330,  331. 
in  England  and  some  States,  party  may  impeach  his 
witness,  331,  386. 


468  INDEX. 

(The  numbers  refer  to  pages.) 

Witness  {continued). 

party  may  impeach  adversary's  witness,  334-336,  386. 

by  showing  by  other  witnesses  his  bad  general  reputation, 

334- 
number  of  impeaching  witnesses  may  be  limited  by 

court,  337. 
mode  of  examining  such  witnesses,  334,  335. 
general  reputation  incmired  into,  not  specific  wrong 

acts,  337. 
in  most  States  only  reputation  for  truth  and  veracity 

provable,  335. 
in  others,  it  may  relate  to  general  moral  character, 

335- 
reputation,  before,  at,  or  after  the  trial  may  be  proved, 

if  the  time  is  not  too  remote,  336. 
whether  impeaching  witness  would  believe  impeached 

witness  on  oath,  inquired  into  in  many  States, 

335- 
by  showing  his  former  statements  contradicting  his  tes- 
timony relevant  to  the  issue,  326,  327,  331.    (See 
Cross-examination,  supra.) 
party  to  action    impeached    like   other  witnesses,    159, 

336. 
impeaching  witness  may  himself  be  cross-examined  or 

impeached,  336. 
impeached  witness  may  be  sustained  by  party  calling 
him,  336-338. 
by  showing  by  ether  witnesses  his  good  general  repu- 
tation, 337. 
to  rebut  evidence  of  his  bad  reputation,  337. 
or  to  rebut  evidence  of  his  conviction  for  crime, 

337- 
or  to  rebut  evidence  that  he  has  suborned  wit- 
nesses or  attempted  to  suppress  testimony, 

337- 
or,  in  a  few  States,  to  rebut  discrediting  facts 
brought  out  by  his  own  cross-examination, 

337- 
but  he  cannot  be  so  sustained  because  the  testimony 
of  other  witnesses  is  in  conflict  with  his,  338. 
or  when  he  is  impeached  by  proof  of  his  incon- 
sistent statements,  337. 
aliter,  in  some  States,  337. 


INDEX.  469 

(The  numbers  refer  to  pages.) 

Witness  (continued). 

witness  cannot  be  supported  by  proving  that  he  made 

former  statements  similar  to  his  testimony,  338. 

unless  fabrication  is  charged  against  him,  and 

he  made  them  before  the  motive  existed, 

338. 
but  in  some  States  such  evidence  is  received  to 
rebut  evidence  of  his  having  made  incon- 
sistent statements,  338. 
refreshing  memory  of  witnesses.     (See  Refreshing  Memory.) 
Women,  offences  against,  evidence  competent  on  trials  for,  337-340. 

(See  Rape;  Seduction;  Adultery;  Bastardy.) 
Words,  defective  or  ambiguous  in  documents,  evidence  to  explain, 
228-230,  232.    (See  Oral  Evidence.) 
meaning  of,  judicially  noticed,  171,  172. 


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