1 ^mmW Ham ^rl^ool Htbrarg Cornell University Library KF 8934.T37 Select cases on evidence a» tfj^ comjno" ' 3 1924 020 200 733 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020200733 SELECT CASES ON EVIDENCE AT THE COMMON LAW. WITH NOTES. BY JAMES BRADLEY TjIAYER, LL.D. proCbssok of law at habvabd usiversity. CAMBRIDGE: CHARLES W. SEVER. 1892. Copyright, 189S, By James Bradley Thayeb. Univebsiiy Press : JOHN Wilson and Son, Cambkidoe. PREFACE. I HAVE been driven to the preparation of this book by the necessities of my own classes at the Harvard Law School. With the growth of the school, it is no longer possible to rely merely upon our library. The book is designed, primarily, for the use of these classes ; but in preparing it I have kept in mind the fact that it might be used elsewhere. It furnishes a text-book for that careful preliminary study which should prepare all who are to take part in the regular conferences between an instructor and his pupils. My experience confirms that of others who have found, in dealing with our system of law, that the best preparation for these exercises is got from the study of well-selected cases. As for methods of teaching, — that is another matter. These must, indeed, have relation to any particular methods of study that are prescribed or recommended, but they are not necessarily determined by them. In law, as in other things, every teacher has his own methods, determined by bis personal gifts or lack of gifts, — methods as incommunicable as his temperament, his looks, or his manners. The wide reach of the subject of evidence, as it lies at present in our books, has made the present compilation and the keeping of it within any possible limit of a single volume, peculiarly diffi- cult. But it has seemed wise to adhere resolutely to this limit, even if the result should be a volume more ponderous than one would wish. It would have been much easier to accomplish the task if the matters generally grouped under the head of evidence had been heretofore more exactly analyzed and distributed. As it is, one who would understand our law of evidence must give considerable time to subjects, such as most of those included in chapter one and chapter four, which, in strictness, belong elsewhere. As regards topics of the sort just referred to, the main endeavor has been to bring about a just discrimination and estimate of the nature of the questions involved. I have not undertaken so full a handling of them as seemed necessary in dealing with what makes up the true subject-matter of the law of evidence. The theory which underlies the division and classification of the general subject, as here attempted, will sufiiciently appear from the notes. The book deals with evidence at the common law, that peculiar system which was developed in England, out of trial by jury. So far as practicable the cases have been arranged in chrono- logical order. But, for reasons already intimated, connected with the scope of the general undertaking and the incidental nature of some of the topics, this order has often been impossible. A care- ful use of the book will disclose, I hope, the reason for the arrange- ment adopted under different heads. Sometimes there was little to choose between different plans ; I have adopted such as ap- peared to me likely to be most instructive in unfolding the par- ticular subject. In omitting headnotep and other helps customai-y in books for ordinary professional use, I have had in mind the special use for which this book is intended, and have followed approved examples. In respect to the shorter form of heading given to certain cases in the text, the principal reason for it has been that of econo- mizing space. Where the case is short, or has been unusually abridged, or where a whole topic, like the Examination of Wit- nesses, is summarily treated, this form has been resorted to. It does not always indicate that a case is less important than others. In the other cases which constitute the text, — the main part of the book, — all omissions are duly indicated, except as regards the arguments of counsel. In order to save space these have been generally omitted ; and the fact is here mentioned, once for all. James Bradley Thayer. Ca:»bbidge, Angast 10, 1893. TABLE OF SUBJECTS. CHAPTEE I. PRELIMINARY TOPICS. Pages Note on the General Character op oub Law op Evidence 1-4 Section I. The Jury 5-19 Section II. Judicial Notice 19-44 Section III. Burden op Proop 44-78 Section IV. Presumptions 79-124 Section V. Admissions 124-143 Section VI. Law and Fact. Court and Jury .... 143-238 Demurrers upon Evidence 21U-23S CHAPTER II. LEADING PRINCIPLES AND RULES OF EXCLUSION. Section I. Matters Likely to Mislead a Jury, or to- Complicate the Case Unnecessarily; or of Slight, Remote, or merely Conjectural SiGNipicANCE 239-276 Section II. Character op the Parties to the Litigation 277-292 Section III. Confessions 292-306 Section IV. Hearsay 306-666 QUALIFICATIONS AND EXCEPTIONS TO THE EULE AGAINST HEARSAY. Note 812-314 (A.) Reported Testimony and Certain Declara- tions under Oath 315-348 (B.) Dying Declarations 348-370 (C.) Declarations in Questions of Pedigref, . 370-408 (Z).) Declarations as to Matters op Public or Gen- eral Interest 409-428 (E.) Public Documents 429-441 (F.) Ancient Documents, Ancient Possession, and Other Ancient Matters 441-470 VI TABLK OF SUBJECTS. Pages (G.) Eegular Entries (1) Made in the Account- Book OP A Party to the Litigation ; (2) Made Elsewhere, in the Usual Course or Duty or Business 470-554 (H.) Entries and Declarations against Inter- est 554-588 (/.) Declarations Bearing upon the Physical or Mental Condition or the Declarant or upon HIS Intention 589-629 (■/.) Declarations which are a Part op some Fact OR Transaction (res gesta) that is itselp Ad- missible 629-666 Section V. Opinion 666-712 CHAPTER III. REAL EVIDENCE. THINGS PRESENTED TO THE SENSES OF THE JUDGE OR JURY . 713-725 CHAPTER IV. WRITINGS. Section I. Proof of the Contents 726-771 Section II. Proop of Authorship 771-816 Section III. Alleged Alterations 816-840 Section IV. The So-called "Parol Evidence " Rule . .841-1069 (A.) Various Rules op Substantive Law, Com- monly Expressed in Terms op Evidence 841-925 (B.) Principles and Rules op Construction 926-1014 (C.) A Rule of Evidence 1014-1069 CHAPTER V. WITNESSES. Section I. Competency 1070-1108 (A.) The Rule in the Federal Courts . . 1072-1077 (B.) The Rule at Common Law 1078-1108 Section II. Privilege 1108-1169 Section III. Refreshing and Supplementing Recollec- tion ... 1170-1175 Section IV. The- Examination " . . . . 1176-1229 (Ai) Discretion op the Court 1176-1177 (S.) Examination in Chief 1177-1183 (C.) Cross-examination 1183-1196 (D.) Re-examination. The Defence and the Re- buttal 1197-1229 TABLE OF CASES. In this Table each case which has the names of two parties is entered twice, that is to say, under both names, — except where these are identical. Ejectment cases are entered a third time, under the name of the fictitious party. In entering cases from the notes, mere citations are generally omitted. The words Bex, Regina, The King, The Queen, when naming a plaintiff, are all indicated by the letter £. Page Abbot V. Massie , 1042 " North Bank v. 531 n. " V. Plumbe 776 Abbott, Baxter v. 48 n Abington, Ryerson v. 1207 Abrath v. North Eastern Ry. Co. 60 Adam v Kerr 780 Adams «. Canon 307 JEtna Life Ins. Co., Westover v. 1145 • Agassiz V. London Tramway Co. 648 Aldous V. CornweH 818 Alein de Wartone 'v. Simon 83 Allen V. Allen ■ 693, 1056 " Davis V. ' 1175 " Doe d. Allen v. 593, 1056 " Mattice v.' 1192 " V Pink • 862 " Rogers v. 442 Allgood V. Blake 982 n Alsop V. Bowtrell 666 Alston, Davis v. 795 n. Altham's Case- 1023 Altham v. Anglesea 730 Ambrose v ClemJon 635 Am. Merch. Exp. Co., Coulter v. 1203 " Tract Society, -Bodman v. 1065 " Tract Society w.' De Witt 1065 Amoskeag M'n'facturing Co. i/. Head 248 Anchor Milling Co. v. Walsh 627 n. Anderson v. May 740 Andrew, Fulton v. 861 n. Andrews v. Frye" 1126 n. Angell V. Duke ' 900 Anglesea, Altham v. 730 " Earl of, Graig d. Amesley v. 408 n. Annesley v. Earl ot Anglesea 408 n. Anonymous ' 306, 307, 314, 729 Ansell, Meres v. 843 Anthes, Commonwealth v. 196 Armes, District of Colurribia v. 256 Armsby, Wilde v. 831 Asliton, Williams v. ' 827 Page Atkin, Gleadow v. 566, 588 u. Atty. Gen., Baylis v. 1027 " " V. Bowman 277 " " V Bradlaugh 1087 n. " V. Hitchcock 1217 " Monktonw. 384 Augusta V. Windsor 636 Aveson v. Kinnaird 591 n., 645 n., 646 n. B. Bacon v. Towne 310 Baeder v. Jenniilgs 458 Bailey, Batemaniw. 635 Baird, Clarke v. 1 698 n. Baker's Case 211 Baker, R. v. 364 "■ Whitelock^B. 372, 374 n. Baldry, R. v. 295 Ball, Keeling v. 777 Bait. Tpk. V. State 690 n. Bank of England,Glynn v. 475, 555 " Monroe v. Culver 531 n. Barber v. Merriam " 689 Barclay, Taylor v'. 28 Barker, Frye v. ' 620 n. " Omichund v. 731, 1081 " V Ray ■ 588 n. Barnard, Framingham Manuf. Co v 578 Barnes, Hills v. 830 " V. Trompdwsky 778 Barnet v. State 634 Barr, Strother v.' 743 n. Barrett, Welsh v: 481, 631 n. Barrington, Lord, Searle v. 554 Barry v. Butlin 61 Bartlett v. Smith 155 " State V. ' 1116 Bateman v. Bailey 635 Batte, Reid v. ' 744 Baxter v. Abbott 48 n. Baylis v. Atty. Gen. 1027 Beach, Hurst v.- 922, 1029 n. Till TABLE OF CASES. Page Beach v. United States 1162 Beard v. Boylan 918 Beaumont v. Fell lt)34 Beckwitli v. Sydebotham 670 Bedfordshire, E. v. 416 Bedingfield, R. t>; 650 Bellsnap, Curtis v. 801 Bell V. Kinner 1212 Belt V. Lawes 177 n. Bennett, Kilburn v. 591 Benson v. Olive 442 n., 775 Beresford, Du Bost v. 592 Berkeley Peerage Case 4, 376 Bernasconi, Chambers v. 490, 495 Bernays, Stephens v. 1089, 1097 n. Beyuon, Doe d. Thomas v. 957 Biddle, Powell v. 963 Bingham, Shillaber v. 506 Birmingham, R. v. 568 Blackburn v. Crawfords 386 n. " Guardhouse v. 856 Blackelor v. Crotts 472 n Blake, Allgood v. 982 n Blakey Smith y. 505 n., 570 Blanchard v. Child 311 Blandy's Case- 1170 Bliss, McKinnon v. 726 " R. V. 665 n. Blurton v. Toon 775 Bockett, Cooper v. 820 Bodman v. Am. Tract Society 1065 Boehm, Carter v. 669 Boerem, Wilsoni;. 357 Bootli, Dexter v- 620 n. Boston, Paine v: 244 " V Hicliardson 457 Boston & Lowell R. R. Co., Cass c . 258 Boucher, Shields v. 397 Bourn V. Debest ' 472 n. Bowman, Atty. G6n. o. 277 Bowtrell, Alsop v. , 666 Bowyer, Challoner'r. 1019 Box V. Welch ■ 508 n. Boylan, Beard v. 918 Braddon, R. v. 308v Bradlaugh, Atty, Gen. v. 1087 n. Bradley, Goodyear v 514 Braham, Goodtitle d. Rerett v. 669 Brain v. Preece 500 Brasier, R. v.- 1078 Brett V. Rigdbn 842 Brick V. Brick 876 Bridges v. North London Ey. Co. 168 Bridgewater, Papendick v. 570 n. Briggs V. Partridge 878 Brigham v- Palmer' 796 Bristow V. Cormican 456 n. Brock, Harpur v 556 Brookman, Readw. 729 Brooks, People vi 1225 n. Brown v. Browrt 770 " V. Byrne 890 •' V Foster 2n , 717 n. " Harriman v. 428 n. •• V. Piper 23 « R.y. 1210 Page Brown v. Selwin 1026 n. " Sills V. 680 n. Brune v. Rawlings 588 n. Bryant v. Foot . 85 Buck, Maynard v. 259 Buckley, R. v. 503 Bulkeley v. Butler 226 Bull V. Loveland 1108 BuUard v. Pearsa'U 1178 Bullen V. Michel . 443 Bumstead, Shailer v. 606 n. Burdick, Sewell v> 226 n. Burpee, Vandine v. 695 Burr, United States v. 1158, 1160 n. Burrough v. Martin 1170 Bushell, R. V. 6 Butler, Bulkeley v. 226 Butlin, Barry ». 61 Byrne, Brown «.- 890 Cadge, Ann, Goods of 829 Cagwin, Paige «< 131 Caldwel, Prior of, Tikeford, Prior of, w 210 Cameron v. Peck i 763 Campau v. Dewey 1196 n. Campbell v. Chacg 1100 n. Gage V. " Pym V ■ Canning, E. v. ^ Canon, Adams v.^ Careless, Rachfleld v. Carters Boehm Cass V. Boston & Lowell E. E. " State V. Castle, Trowel v. Catomore, Doe d. Tatum v. Cliace, Campbell v. Chadd, Folkes w. Chaffee v United States Challoner v. Bowyer Chambers v. Bernasconi 308J/Chapin v. Dobson " V. Marlborough Charmer, Kell v. Charter v. Charter Chase v. Lowell Chenie v Watson Chesapeake Club v State Cheyney's Case Chichester v Pliilips ChiI(J, Blanchard v. ' Clapp, Hedge v. Clark V. Baird Clarkson v. Woodhouse Cleary, E v. Cleave's Case , Clements, Knighf v. Clendon, Ambrose v. Clennell v. Lewthwhite Gierke, Lynch v, Cleveland R. R. ,Co. v. Perkins Clinton v. Howard Clum, Eisenlorc^v. y Co. 765 867 309 307 1024 669 268 885 816 826 1100 n. 666 533 n. 1019 490, 495 902 689 952 982 692 717, 732 1127 843, 1019 211 311 1227 n. 698 n. 441 366 n. 506 820 n. 635 1029 n. 430, 733 749 685 405 TABLE OF CASES. Page Clymer i>. Littler 350 Cobham, Lord, Woodnoth v. 474 Cobleigh, Diirkin w. 906 Cocks, Vacher v. 643 n. Cocksedge v. Fanshaw 212 CoflBin V. CroBB 506 Cole, People v. 1183 " V. Rawlinson 1027 n. " Vincent v. 743 Colegrove v. N. Y. K. R. Co. 231 Coleman v. Commonwealth 1079 Collins, Dwyer v. 754 CoUnett, Marsh v. 733 Cotton, Long «. 423 n. Columbia R. R. Co. v. Hawthorne 238 n., 289 Commonwealth ?>. Anthes 196 " Coleman v. 1079 " V. Culver 159 n., 304 " V. Emery 734 " V. Emmons 723 V. Felch 618 " V. Griffin 1100 n. " V. Haney v 368 " V Hardy ^ 278 V. Harlow 1120 " Haynes v, 633 " V. Jenkins 1199 " W.Kimball 1169 n. V Knapp 298 " V Morrell 719, 1185 " V Nichols 1125 " V Porter 201 " V Robinson 157, 274 " V. Sturtivant 691 " V. Webster 1170 n. Corastock V. Smith 837 Conn. Life Ins. Co. v. Lathrop 700 " " " "w.Un. Trust Co. 1075 n. Conn. Mut. Life Ins. Co. v. Schwenk 396 n. Connell, Thomas v. 642 Converse, Delaware E. R. Co. t>. 184 Cooke V. TanswfiU 784 Coolidge, U. S. V. 1087 n Coonrod » Madden 747 Cooper V. Bockett 820 " Davidson v. 817 ," V Marsden 479 Cormioan, Bristow v. ■ 456 n. Cornett v. Williams 761 n. Oornwell, Aldous v. 818 Costello u. Crowell 1174 n. Coulter V. Am. Mereh. Exp. Co. 1203 Counselman v. Hitchcock 1130 Court, People «. 1195 Craddock, Erving v. 209 n. Craig d. Annesley u. Earl of An- glesea 408 n. Crawford, Curren v. 522 Crawfords, Blackburn v. 386 n. Crawly, Phillips v. 773 Crisp, Laybourn v. 422 n. Crispin v. Doglioni 386 Crofts, Blackelor v. 472 n. Croke, Tomlinson v. ' 313 Cross, Coffin v. -» 506 Grossman v. Crossman 839 Crouch V. Drury 472 n. Crowell, Costello v. 1174 n. Crowninshield v. Crowninshield 73 ' " Sturges V. 929 Culpepper, R. v. 775 Culver, Bank of Monroe v. 531 n. " Commonwealth v. 159 n., 304 Curell, Pim «. 422 n. Curran, Hildeburn w. 1223 n. Curren v. Crawford 52^ Currier v. Gale 580 n. Curtis V. Belknap 801 D. Dalrymple, Van Syckel v. Darling «. Westmoreland David, Thomas v. Davidson ». Cooper Davies v. Humphreys " V. Lowndes " V. Moseley Davis V. Allen " V. Alston " V Jenney " People V. " V. Sigourney Davison, R. v. Day V. Stickney Dean, Poole v. Debest, Bourn v. 870 262 1215 817 667 380 n., 409 n. 420 n. 1175 795 n. 720, 8.32 n. 367 768 282 n. 1223 682 n. 472 n. Delaware R. R. Co. v. Converse 184 Demonbreun v. Walker 802 Dennin, liennihan v. 1148 n. Derby, Town of, Tomlinson v. 1182 Devonshire, Duke of, Neill v. 423 n. Dewey, Campau v. 1196 n.' De Willott, Sp'enceley v. 1186 De Witt, Am. Tract Society v. 1065 Dexter v. Booth 520 n. Dicas, Poole v. 498 Dickenson v. Dockwray v. 314 Dickinson v Dickinson 1165 Dillaway, Windsor v. 510 n. District of Columbia v. Armes 256 Dobson, Chapin v. 902 Dockwray v. Dickensou 314 Dodge V. Morse 51 9 n. Dodwell, Lawrence v. 1023 Doe V Harvey 745 " d. Allen v. Allen 593, 1056 " " George v Jesson 105 " " Gilbert v. Ross 758 " " Gord ;;, Needs 1045 " " Hiscocks V. Hiscocks 982 n., 1051 " " Knight, Nepean v. 109 " " Morgan v. Morgan 1044 " " Patteshall v. Turford 492 " " Reece i: Robson 588 n. " '■ Shallcross v. Palmer 594, 829 n. " " Tatham, Wright v. 309, 319, 665 n., 666 n., 672 " " Tatum V. Catomore 826 " " Thomas v. Beynon 957 " " Westlake v. Westlake 1042 TABLE OF CASES. Page Page Boglioni, Crispin ». 386 Fermor's Case 842 r)ohertyu..HiU 928 n. Ferrers, Earl, R. v. 680 n. Donoghue, Hanley v. 32 Ferry Frystone, R. v. 335 n. Dormer i>. Parkliurst 11 Fessenden, Elmer b. 621 n. Dow V. Tuttle 883 Finch, Nourse ». 1028 Downs, People v. 67 Fitchburg R. R. Co., Tully v. 724 Doyle, Kennedy v. 437, 532 Flanders, State v. 1180 Drake v. Drake 1059 Folger, Morton v. 424 Drayton v. Wells 337 Folkes V. Chadd 666 Droitwich, Steyner v. 421 n. Foot, Bryant v. 85 Drummond, E. v. 353 Ford V. Hopkins 473, 554, 730 Drury, Crouch u. 472 n. Forrester, Paddock v. 1163 Dry Dock R. U. Co., O'Neil v. 690 n. Foster, Brown v. 2n., 717n. Dryden, Stobart v. 361 " V. Hall 1138 ,DubIin Ry. Co. v. Slattery 177 n. " Kansas City R. R. Co. V. 236 Dubost V. Beresford 592 " V. People 1112 Duke, Angell v. 900 " -R.V. 645 Duncan v. Duncan 775 •' V. Sinkler 510 " Stebbins v. 761 n., 797 Fox V. Reil 792 Dunraven, Earl of, u. Llewellyn 413 n.. Framingham Manuf. Co. v. Barnard 578 421 n. Francis, R. v. 272, 720 Durkin v. Cobleigh 906 Frankland v. Savill 315 Dwyer v. Collins 754 Freccia, Sturla v. Frye, Andrews w. 3 n., 430 1126 n. F. " V Barker Fudge V. Payne 520 n. 871 Earle v. Earle 651 Fulcher v. State 656 n. E. I. Co., Williams v. 732 Fulkerson v. Holmes 402 East Teunesse R. R. Co., Jones v. 177 Fuller, Mason v. 409 n. Eastman v. Moulton 516 " Ward u. 816 n. Edge, R. V. 740 n. Fulton V. Andrew 861 n. Eighmie v. Taylor 906 n. Eisenlord v. Clum 405 G. Elliott V. Peirsol's Lessee 844 Ellis V. Park 23 n. Gaffney v. People 1227 " V. Smith 794 Gage V. Campbell 765 Elmer v. Fessenden 621 n. Gaines ». Relf 1198 El well V Mersick 737 n. ■Gale, Currier v. 580 n. Ely V. Ely 835 Garbet, R. v. 1129 n. Emerson v. Lowell Gas Light Co. 242 Gardiner, Stringer v. 967 Emery, Commonwealth v. 7.34 Gardner v. Grannis 806 n-. Emmons, \ " " 723 Garth, Whynian v. 786 Empire Lumber Co., Hoxsie v. 312 Gaskell, Greenough v. 1143 n. Eriswell, R. «. 325, 408 n. Gaunt V. State 714 Erith, R. v. 376 Gaze, Love v. 1029 n. Erving v. Craddock 209 n. Gelott V. Goodspeed 808 Evans v. Lake 474 George v. Jesson 105 Evanston v. Gunn 439 " V Pilclier 1200 Germ. Valley R. R. Co., Thompsons. 1156 F. Gibson v. Hunter " V. Minet 218 926 n. Fairclough, Pritt v. 480 Gilbert v. McGinnis 896 Fairlie v. Hastings 630 " V. Ross 758 Falkland, Lady v. Strode 1030 Giles, Temperance Hall Ass. v 249 Fanshaw, Cocksedge v. 212 Gilmanton v. Ham 717 n. Fargo, Stafford v. 1192 n. Gleadow v. Atkin 555, 588 n. Farmer's Bank v. Whitehill 552 n. Glynn v. Bank of England 475, 555 Farr, R. v. 739 Golden v. Knowles 232 n Farrington, United States v. 1108 Up 4jOode V. Riley 874 Farthing, Vieary v. 727 n. Gooding, United States V. 125, 631 Fasset, State v. 1105 ■Goodinge v. Goodinge 1037 Faxon v. HoUis 507 Goodrich v. Weston 762 Felch, Commonwealth v. 618 Goodright d. Stevens v Moss 370 Fell, Beaumont u. 1034 Goodspeed, Gelott v. 808 Feltz V. Walker 889 Goodtitle d. Radford y Southern 955 Ferguson, Patten v. 666 n. Goodtitle d, Revett v. Brahani 669 TABLE OF OASES. XI Goodyear o. Bradley Gord'w. Needs Gordon, R. v. Gorton v, Hadsell Goss V. Lord Nugent Gould, Grant v. Gbulstone, Woodward v. Gragg V. Learned 614 1045 820 n. 166 n. 863 732 614 815 Grand Trunk R. K. Co. v. Richardson 265 Grannis, Gardner v. 806 n. Grant v. Gould 732 " V. Grant 971 Gray v. Pentland 1167 Great Western Ry. Co., Rouch v. 644 Greenough v Gaskell 1143 n. Greenvill, Earl of Suffolk v. 728 Greenville, Warren d. Webb v, 555 Gregory, Sutton v. 480 ' Gresliam Hotel Co. v. Manning 646 Griffin, Commonwealth t>. 1100 n. Griffith, Morgan v. 898 Guardhouse v. Blackburn 856 Gunn, Evaneton «. 439 Guthrie, Haines v. 387 Guttridge, R. v. 632 Guy V. Mead 537 Gyde, Ridley v. 641 n. H. Hadsell, Gordon v. Haigh, Rawson v. Haines v. Guthrie Hale, Northrop v. Hall, Foster v. - — " — »rMa.yo " V. Phelps Hallett, Patrick v. Ham, Gilmanton v. Hamilton v. People .Hampshire v. Peirce Haney, Commonwealth v. Hanley v. Donoghue Hardy, Commonwealth v. " R. V. Hargrave, Head v. Harlan v. Howard Harlow, Commonwealth v. Harpur v. Brock Harriman v. Brown Harringworth, R. v. Harris v. Bishop of Lincoln " V. Tippett Hartranft, Governor, Appeal Harvey, Doe v. Hastings, Fairlie v. Hawthorne, Col. R. R. Co. v. Haynes v. Commonwealth Head, Amoskeag Sfanuf. Co. " V. Hargrave Hedgtf u Clapp Hennessey, Sheehan v. Henry, Mitchell b. " V. Oves Herrick, Lake Shore Ry. Co. Herster v. Herster 156 n. 637 387 398 1138 421 791 228 717 n. 1210 1038 368 32 278 85n., 282n. 677 n. 804 1120 656 428 n. 782 1032 1216 1163 745 630 238 n., 239 633 248 677 n. 1227 n. 519 944 552 619 607 n of Hewson, Holcombe v. Hibner, Kurtz v. Higham v. Ridgway Hildeburn v. Curran Hill, Doherty v. Hillmon, Mut. Life Ins. Co. v. Hills i>. Barnes Hingeston v. Kelly Hiscocks, Doe d. Hiscocks v. 982 n., 1051 " V. Hiscocks Hissrick v. McPherson Hitchcock, Atty. Gen. v. " Counselman v. Holcombe v. Hewson Hollis, Faxon v. Holmes, Fulkerson.i;. Holy Trinity, R. v. Honner, Younge v. Hooper, Pearce v. Hopkins, Ford v. Hort, Hunt v. Howard, Clinton ». " Harlan v. " Watts V. Howell V. Huyck Hoxsie V. Empire Lumber Co. Hoyt, State v. Hubbard, Wilbur v. Hubert's Case Hudson River R. R. Co., Sheldon v. 262 Hull, Owings V. 30 Humphreys, Davies v. 567 Hunnicutt v. Peyton 423 n. Hunt V. Hort 1027 n. " V. Lowell Gas Light Co. 243, 681 n. " R. V. 718 Hunter, Gibson v. 218 Hurst V. Beach 922, 1029 n. Hutchinson, R. o. 360 n. Huyck, Howell v. 756 Ihinger ». State 722 Illinois, Ogden v. 671 Ingalls, County of Mahaska v. 680 Ins. Co. w Mosley 663-- " " Reed v. 9-34 Ivy, Lady, Mossam d. Neale v. 421 n. 241 999 557 1223 n. 928 n. 622 8.30 71 527 n. 1217 1130 241 507 402 742 1185 780 473, 554, 730 1027 n. 685 804 580 n. 756 312 1100 n. 672 n. 847 J. Jack, Shober v. 136 Jackson, Met. Ry. Co. o. 177 n. " V. Thomason 1207 n. Jacob V. Lindsay 750 Jaspers v. Lano 1198 JefEryes, Smith v. 1058 Jenkins, Commonwealth v. 1199 " Thomas v. 413 Jenney, Davis v. 720, 832 n. Jennings, Baeder v. 458 Jesson, Doe d. George v. 106 John, R. V. 357 n. Johnson v. Lawson 381, 409 n. " 0. Duke of Marlborough 819 XII TABLE OF CASES. Page Page Johnson v. Mason 777 Little V Wyatt 520 n " Mississippi v. 1160 n. Littler, Wright d. Clymer v. 350 " R. V. 736 Llewellyn, Earl of Dunraven v. 413 n.. Joliffe, Lowe v. 776 n. 421 n. " R. «. 319 Lloyd, Wentworth v. 1163 n. Jones V. East Tennessee R. R. Co 177 Logan V, United States 1072 " V. Newman 1038 London Tramway Co., Agassiz v. 648 " Peck ». 517 n. " Ry. Co., Moriarty v. 1208 " R. V. '282 n. Long V. Colton 423 n. Joyner, Medlicot v. 728 Lord, Steele v. 766 Loring, Paige v. 749 K. Love V. Gaze 1029 n. / Loveland, Bull v. 1108 Kansas City Co., Weber v. 237 Low V. Mitchell 1111 Kansas City R. R. Co. v. Foster 236 Lowe V. JollifEe 776 n. Kearney v. King 48 Lowell, Chase v. 592 Keeling v. Ball ^ Kell V. ChawHw''^ 777 " Gaslight Co., Emerson v. 242 952 " Huntu. 243, 681 n. Kellogg V. Tompson 862 Lowndes, Davies v. 380 n .,409n. Kelly, Hingeston v. 71 Lund V. Tyngsborough 64811. Kemp, Robson v. 636 Luster, Newsom v. 810 Kennedy v. Doyle 137, 532 Lutterell v. Reynell 313, 315 n. " Lyellv. 504 n. Lyell V. Kennedy 504 n. Kerr, Adam v. 780 Lynch v. Gierke 430, 7.33 Kilburn v. Bennett 591 Lyon V. Prouty 1100 n. Kimball, Commonwealth v. 1169 n. " Lawrence v. 579 n. M. King, Kearney w. 43 Kingdom Co., NichoFs v. 750 n. McBaniels, Wabash Ry. Co. v. 261 Kinglake, R. v. ■ 1168 McElvaine, People v. 677 Kinnaird, Aveson v. 591 n., 645 n ., 646n. McGinnis, Gilbert v. 896 Kinney, State v. 632 McGlue, United States v. 676 Knapp, Commonwealth v. 298 McKinnon v. Bliss 726 " Union Bank v. 531 n. Maekworth, Lewellin v. 731 Knight V. Clements 820 n. McLean, Trotter ». 502 n. " Nepean v. 109 M'Naghtcn's Case 681 n. Knowles, Golden v. 232 n. Macomb, United States v. 339 " V. People 1161 McPherson, Hissrick v. 527 n. Kurtz V. Hibner 999 Madden, Coonrod v. 747 Maddox, Pitman v. 472 L. Mahaska, County of, v. Ingalls 580 Lake, Evans v. 474 Mainor, State v. 141 Lake Shore Ry. Co. n. Herrick 619 Malcomson v O'Dea 450 Lane, Smith v. 547 Mallabar v. Mallabar 1025 Lano, Jaspers v. 1198 Manning, Gresham Hotel Co. v. 646 Lathrop, Conn. Life Ins. Co. v. 700 " V. Lechmere 814 Lawes, Belt v. 177 n. R. V. 138 Lawrence v Dodwell 1023 Maijoribanks, O'Connor v. 1097 ■ " V. Kimball 579 n. Marlborough, Chapin v. 589 Lawson, Johnson v. 38' , 409 n. " Duke of, Johnson v 819 Laybourn v. Crisp 422 n. Marsden, Cooper v. 479 Learned, Gragg w. 815 Marsh v. CoUnett 738 Leavenworth v. Phelps 516 n. Marshall, Sikes «. 480 n. Leavitt, Woodward v. 1100 Martin, Burrough v. 1170 Lechmere, Manning v. 314 " Lees V. 643 n. Lees V. Martin 643 n. Mason v. Fuller 409 n. Lefebure v. Worden 477 , 532 n. " Johnson v. 777 Lester, Texas Ry. Co. v. 631 Massie, Abbot v. ^ 1042 Lewellin v. Maekworth 731 Masters v. Masters 1032 Lewthwhite, Clennell v. 1029 n. Mathes v. Robinson 519n. Leyfield's Case 713, 727 | Mattice v. Allen 1192 Lincoln, Bishop of, Harris v. 1032 May, Anderson w. 740 " V. Saratoga R. R. Co. 681 Maynard v. Buck 259 Lindsay, Jacob v. 750 Mayo, Hall v. 421 Lister v. P'erryman 162 n. Mayor of N. Y. v. Second Avenue R. Litchfield, Ulrich i>. 1035 R. Co. 643 TABLE OF CASES. XIU Mead, Guy v. " B. I'. ; Medlicot v. Joyner Melhuish, Saltern v. Melton, Middleton v. Meres v. Ansell ^ Merriam, Barber v. Mersick, Elwell ». Met. Ry. Co. v. Jackson Michel, Bullen v. Middlesex, Swan v. Middleton v. Melton Millfer V. Smith . " V. Tntrew-* Minet, Gibson v. Mississippi v. Johnson Mitchell V. Henry " Lovr V. Molineux v. Molineux Monkton v. Atty. Gen. Moody V. Rowell Moore v. United States Morewood v. Wood " Outram v. Morgan, Doe d. Morgan v. " V. Griffith " V. Morgan " V NichoU ^ " R. V. Moriarty v. London By. Co. Morley, Lord, R. v. Morrell, Commonwealth v. Morse, Podge v. ■>Morton v. Folger Moseley v. Davies Mosley, Ins. Co. v. Moss, Goodright d. Stevens v. Mossam d. Neale to. Lady Ivy Moulton, Eastman v. Mullen, Starratt o. Munshower v. State Mut. Life Ins. Co. v. Hillmon Myers, Biggs v. " V Sart, ). N. Naumberg v. Young Neale v. Lady Ivy Needs, Doe d. Gord v. Neill V. Duke of Devonshire Nepean v. Doe d. Knight Newburgh v. Newburgh Newell V. Nichols Newman, Jones 6. Newport v. Williams Newsom v. Luster N. Y. F. I. Co., Schmidt v. " " R. E. Co., Colegrove v. '• " " •' " Roberts u. ". " " " " Eodrian v. " " " " •• Stackusw. N. Y. R. R., Waldele v. NichoU, Morgan v. Nicholls V. Webb Nichols, Commonwealth v. Page Page 537 Nichols V. Kingdom Co. 750 n. 360 " Newell V. 120 728 Noble V. Ward 865 728 n. North Bank v. Abbot 531 n. 562 " Eastern Ry. Co., Abrath v. 50 843 " London Ry. Co., Bridges v. 168 589 Northrop v. Hale 398 737 n. Nourse v. Finch 1028 177 n. Nugenf, Lord, Goss v. 863 443 697 n. 562 0. 697 n. Gates, R. v. 317 849 Ober, State v. 1121 926 n. O'Brien, Vicksburg R. B. v. 663 1160 n. O'Connor v. Marjoribanks 1097 944 Oddy, R. V. 267 1111 O'Dea, Malcomson v. 450 1022 Ogden V. Illinois 671 384 Olive, Benson v. 442 n., 775 704, 1190 Oraichund v. Barker 731, 1081 711 O'Neil V. Dry Dock B. B. Co. 690 n. 408 n. Ormerod, Paton v. 1062 556 Osborn, Lady, w. Villiers 1026 n. 1044 Outram v. Morewood 556 898 Oves, Henry v. 552 1044 wings V. Hull 30 335 365 P. 1208 84, 315 Paddock v. Forrester 1163 719, 1185 Paige V. Cagwin 131' 519 n. " 0. Loring 749 424 Paine v. Boston 244 420 n. Palmer, Brigham v. 795 653 " Doe d. Sliallcross v. 594, 829 n. 370 " Smith V. 127 421 n. Panton v. Williams 159 516 Papendick v. Bridgewater 670 n. 45 Park, Ellis u. 23 n. 27 Parker, R. v. 313 622 Parkhurst, Smith d. Dormer v 11 997 Parsons v. Parsons 1041 938 Partridge, Briggs v. 878 Patch V. White 1003 Paton V. Ormerod 1062 Patrick v. Hallett 228 908 Patten v. Ferguson 666 n. 421 n. Patteshall v. Turford 492 1045 Pawashick, The 37 423 n. Payne, Fudge v. 871 109 Pearce v. Hooper 780 847, 931 Pearsall, BuUard v. 1178 120 Pease, York v. 1198 1038 Peck, Cameron v. 763 29, 472 n. " V. Jones 517 n. 810 " V. Valentine 540 18 " Vinton w. 708 231 Peirce, Hampshire v. 1038 691 n. Peirsol's Lessee, Elliott v. 844 191 n. Peltier, R. ,;. 21 n. 189 Pentland, Gray v. 1157 657 People V. Brooks 1225 n. 835 " V. Cole 1183 485 V. Court 1195 1125 " V. Davis 367 XIV TABLE OF CASES. ^" ^ tj)-c,, Page Page People V. Downs 67 R. V. Braddon ' 808 " Foster v. 1112 " V. Brasier 1078 " Gaffney u. 1:227 " V. Brown 1210 " Hamilton u. 1210 " V. Buckley 503 " Knowles v. 1161 " V. Bushell 6 " V. McElvaine 677 " V. Canning 309 " Real V. 1188 " I). Cleary 366 n. " Stokes V. 1217 " V. Culpepper 775 Perkins, Cleveland K. E. Co. v. 749 " u, Davison 282 n. Ferryman, Lister v. 162 n. " V. Drummond 353 Peyton, Hunnicutt v. 423 n. " w. Edge 740 n. Phelan v. Slattery 1045 n. " V. Eriswell 325, 408 n. Phelps, Hall v. 791 " V. Erith 375 " Leavenworth v. 516 n. " u. Farr 739 Phene"s Trusts, In re 114 " V. Earl Ferrers 680 n. Phil. R. R. Co. V. Stimpson 1176 1192 n. " V. Ferry Frystone 335 n. Philips, Chichester v. 211 " v. Foster^. 645 Phillips V. Crawly 773 " V. Francis 272, 720 Pickup V. Thames Ins. Co. 101 " V. Garbet 1129 n. Pilcher, George v. 1200 " V- Gordon 820 n. Pirn V. Curell 422 n. " V. Guttridge 632 Pink, Allen v. 862 " u. Hardy 85n,, 282n. Piper, Brown v. 23 " V. Harringworth 782 " Valentine v. 807 " V. Holy Trinity 742 Pitman v. Maddox 472 " V. Hunt 718 Pitton V. Walter 430 " V. Hutchinson 360 n. Plumbe, Abbott v. 776 " V. John 357 n. Plym, State v. 117 " V. Johnson 736 Pomero v Pomero 138 n. " «. Joliffe 319 Poole V. Dean 682 n. " V. Jones 282 n. " !;. Dicas 496 " V. Kinglake 1168 Pooley, Slatterie v. 752 " 0. Manning 138 Porter, Commonwealth v. 201 " V. Mead 360 Poultney v. Ross 620 " V. Morgan 365 Powell V. Riddle 953 " V. Lord Morley 84, 315 Powers 11. Russell 59 " V. Gates 317 Pratt V. White 508 ", V. Oddy 267 Preeoe, Brain v. 500 ""i'. Parker 313 Price V. Torrington 473 " ...Peltier 21 n. Pritt V. Fairclough 480 " V. Raleigh 312 Prouty, Lyon v. 1100 n. " u. Reason & Tranter - 348 Pym V. Campbell 867 " V- Rowton 279 " u. St. Giles 788 Q- " V. St. Martins 1174 Queen's Case 737 " V. Tooke, John Home 86 Quick V. Quick 597 " V. Udall 307 " V. Vaughan 713 R. " u. Warickshall 293 " V. Watson 741, 1188 n. Rachfield v. Careless 1024 " V. Woodcock 354 Radford v. Southern 955 " u. Worth 499 n. Raffles V. Wichelhaus 921 " V. Wright 680 n. Raleigh, R. o. 312 Read v. Brookman 729 Randolph v. Woodstock 1228 Reason, 11. v. 346 Rastall, Wilson v. 1136 Real V. People 1188 Rawlings, Roe d. Brune c. 588 n. Reece v. Robson.. , 588 n. Rawlinson, Cole v. 1027 n. Reedw.-*M-JOo.\ 934 Rawls, State v. 1171 Reid V. Batte 744 Rawson v. Haigh 637 Bell, Fox V. 792 Ray, Barker v. 588 n. Relf, Gaines v. 1198 R. K. Baker 364 Rennihan v. Dennia 1148 n. " V. Baldry 296 Rentz, Smith v. 526 " V. Bedfordshire 415 Revett V. Braham 669 I-" V. Bedingfleld 650 Reynell, Lutterell v. 313, 316 n. " V. Birmingham 568 Richardson, Boston v. 457 " i;. Bliss 666 n. Grand Trunk R. E. Co. I.. 265 TABLE OF CASES. XV Eidgway, HighAm v. Ridley v. Gyde, Eigdon, Brett :«. Kiggs V. Myers Eiley, Gtoode/w. liineliart, State v. Binner, Bell v. Page 557 841 n. 842 997 874 142 1212 Robbius, Southern Kansas R. R. Co. «■ 290 Roberts v. W. Y. R. B. Co. 691 n. Robertson,, Wilcher ». 847 n. Robinson, Commonwealth v. 167, 274 " idlathes 1). 619 «• •' '». Robinson 137 Robson, Poe d. Reeee v. 588 n. " 1). Kemp 636 Rodrian u. N. Y. R. R. Co. 191 n. Roe d. Brune v. Ravflings — • 588 n. Rogers v. Allen 442 Ross, Doe d. Gilbert v. 758 " Poultney v. '520 " Sutherland v. 1091, 1097 n. Rouch .». Great Western Ey. Co. 644 Rowe, Woolway v, 129 Rowell, Moody u. ) 704, 1190 Rowton, R. V. 279 Eoy. Exch. Ass. Co., Thornton v. 670 Rudall, Simmons v. ■ 825 Russell, Powers v. 59 " Lady, Strode v. 1030 Ryder i: Wombwell 162 Ryerson v. Abington 1207 S. Sadler, Sutton v. 48, 97 St. Giles, R. V. 788 St. Leonards, Lord, Sugden v. 607; 770 n.< St. Martins, R. ». 1174 Saltern v. Melhuieh 728 n. Sampson, Scott v. 286 Sandvell v. Sandvrell 1170 Saratoga R. R. Co., Lincoln v. 681 Sari, Myers ». 938 Savill, Frankland v. 315 Schmid', v. N. Y. F. I. Co. 18 Sdiwenic, Conn. JIut. L. Ins. Co. v. 396 n. Scott V. Sampson 286 Scribnei, Worthington v. 1148 Seaman'i Aid Society,. Tucker v. 959 Searle v. Lord Harrington 554 Second Arenue Ey. Co., Mayor of N. Y. V. 543 Selwin, Bnwn v. 1026 n. Sewell V. Eurd^ck 226 n. Shailer v. Bumetead 606 n. Shallcrossii. Palmei- 594, 829 n. Sheehan t Hennessy 519 SMldon V Hudson River E. E. Co. 262 Sfiieldsw. Boucher 397 ^hillabeiv. Bingham 506 ShoberiJack A 136 Shore o.W««>w^ 929 Shove J.Wiley 528, 532 n. Shreyf shiry Peerage Case 409 n. Shutte V Thompson 420 n. Sigoum.y, fflavis v. 768 Page Sikes V. Marshall 480 n. Sills V. Brown 680 n. Simmons v. Rudall 825 Simon, Alein de Wartone v, 83 Sinkler, Foster b. 510 Slatford, Thruston v. 212 Slatterie v. Pooley 752 Slattery, Dublin Ry. Co v. 177 n. " Phelan v. 1045 n. Smart v. Williams 472 n., 773 Smartle d. Newport v. Williams 429, 472 n. Smith, Bartlett v. 155 " w. Blakey 502 n., 570 " Comstock V. 837 " Ellis !). 794 " V. Jeffryes 1058 " V. Lane 547 " Miller v. 697 n. •' V. Palmer 127 " V. Rentz 526 " V. State 733 n. " d. Dormer v. Farkhurst 11 Sonneborn, Stewart v. 162 n. Southern, Goodtitle d. Radford v. 955 Southern Kansas R. R. Co. v. Robbins 290 Southwick; v. Southwick 1100 n. Sparhawk v. Sparhawk _ - 109C Sparks, Weeks w." 409 Spenceley v. De Willott 1186 Spragins v. White 192 Stackus V. N. Y. R. E. Co. 189 Stafford v. Fargo 1192 n. Starratt v. Mullen 45 State, Bait. Tpk. o. 690 n. " Barnett v. 634 " V. Bartlett 1116 * " V. Cass • 885 " Chesapeake Club ». 1127 " V. Fasset 1105 ■' V. Flanders 1180 " Fulcher v. 656 n. " Gaunt w. 714 " V. Hoyt 1100 n. '■ Ihingeru. 722 " V. Kinney 632 " V. Mainor 141 " Munshower v, 27 " V. Obbr 1121 " V. Plym 117 " V. Rawls 1171 " V. Rinehart 142 " Smith w. 733 n. " Stephenson v. 20 n. ■• V. White 1143 Stebbins v. Duncan 761 n., 797 Steele v. Lord 766 Stephens V. Bernays 1089, 1097 n. Stephenson v. State 20 n. Stevens v. Moss 370 Stewart v. Sonneborn 162 n. Steyner v. Droitwich 421 n. Stickney, Day v. 1223 Stimpson, Phil. R. R. Co. v. 1176, 1192 n. Stobart v. Dryden 361* Stokes B. People 1217 Stringer v. Gardiner 967 XVI TABLE OF CASES. Page Strode ». Lady Falkland 1030 " V. Lady Russell 1030 Strother v. Barr 743 n. Sturges V. Crowninshield 929 Sturla V. Freccia 3 n., 430 Sturtivant, Commonwealth v. 691 Suffolk, Earl of v. Greenvill 728 Sugden v. Lord St. Leonards 607, 770 n. Sussex Peerage Case 504 n. Sutherland v. Ross 1091, 1097 n. Sutton II. Gregory 480 " V. Sadler 48, 97 Svfan V. Middlesex 697 n. Sydebotham, Beckwith v. 670 T. TansweU, Cooke v. 784 Tatham, Wright v. 276 n., 309, 319, 665 n., 666 n., 672 Tatum V. Catomore 826 Taylor v. Barclay 28 " Eighmie v 906 n. " V. Witham 575, 588 n. Temperance Hall Ass. v. Giles 249 Terre Haute R. R. Co. v. Voelker 18( Texas Ry. Co. v. Lester Thacher, Whitney v. 697 Thames Ins. Co., Pickup v, 101 Thayer, Vosburgh v. 623 Thomas's Case 312 Thomas v. Beynon 957 V. Connell 642 " V. David 1215 Ji.>. V. Jenkins 413 " Turley v. 22 n. " Williams I). 1164 n. Thomason, Ja,ckson v. 1207 n. Thompson, Pet'r 245 V. Germ. Valley R. R. Co. 1156 " Shutteu. 420 n. " V. Trevanion 645 Thornton v. Roy. Exch. Ass. Co. 670 Thruston v. Slatford 212 Thurston v. Whitney 1087 Tikeford, Prior of, v. Prior of Caldwel 210 Tippett, Harris v. 1216 Tomline v. Tyler 1166 Tomlinson v. Croke 313 " II. Town of Derby 1182 Tompson, Kellogg v. 862 Tooke, John Home, R. v. 85 Toon, Blurton v. 775 Torrington, Earl of, Price v, 473 Towne, Bacon v. 310 ' Travers, Miller v. 849 Trevanion, Thompson v. 645 Trompowsky, Barnes v. 778 Trotter v. McLean 502 n. Trout V. Virginia R. R. Co. 232 Trowel v. Castle 816 Tucker v. Seaman's Aid Society 959 «i. Welsh 1225 Tully V. Fitchburg R. R. Co. 724 Turford, Doe d. Patteshall v. 492 Turley v. Thomas 22 n. Tuttle, Dow V. Tyler, Tomline v. Tyngsborough, Lund v. u. Page 883 1166 648 n. Udall, R. V. 307 Ulrioh V. Litchfield 1035 Un. Bank v. Knapp \ 531 n. Un. Trust Co,, Conn. Life Ins.C©. v. 1075 n. United States, Beach v. j 1162 " II. Burr / im 1160n. " Chaffee/ 533 n. " " V. Coolidge 1087 n. " " D. Farrington 1108 n. " II. Gooding 125,631^ " Logan tiy 1072 " w. McGlne 676 " " V. Macomb 339 " Moore «. 711 V. Vacher v. Cocks Valentine, Peck li. - " II. Piper 106 .Vandine v. Burpee 63n~Van Syckel v. Dalrymple Vaughan, R. v. Vicary «. Farthing Vicksburg R. R. i>. O'Brien Villiers, Lady Osborn ii. " V. Villiers Vincent v. Cole Vinton v. Peck Virginia R. R. Co., Trout v. Voelker, Terre Haute K. R. Co. Vosburgh v. Thayer Vowles V. Young w. 643 n. 640 807 695 870 713 727 n. 663- 1026 n. 731 743 708 232 . 180 623 373 Wabash Ry. Co. v. McDaniels 261 Wagar, Wilson v. ■ 1195 Waldele ii. N. Y.R. R. 657- Walker, Demonbreun v. 802 Feltz V. 889 William's v. 1205 V Wingfield 408 n. Walsh, Anchor Milling Co. v. 527 n. Walter, Pitton y. 430 Ward y. Fuller 816 n. " Noble V. 865 Warickshall, R. i>.' 293 Warren d. Webb v. Greenville 655 Waterman v. Whitney 698 Watson, Chenie o. 717, 732 R. V. 74, 1188 n. Watts V. Howard 580 n. Webb V. Greenville 555 " NichoUs V. 485 Weber v. Kansas' City Co. 237 Webster, Com. v. 1170 n. Weeks v. Sparke 409 Welch, Box V. 508 n. Wells, Drayton v. 337 Welsh V. Barrett 48., 581 n. TABLE OF OASES. XVU Page Welsh, Tucker v. 12:i6 Wentworth v. Lloyd 1163 n. Westlake, Doe d. Westlake v. 1042 " V. Westlake 1042 Westmoreland, Darling v. 252 Weston, Goodrich «. 762 Westover v. JEtna, Life Ins. Co. 1145 Wharram v. Wharram 597 n. Wliite, Patch v. 1003 " Pratt V. 508 " Spragins v. 192 " State V. 1143 '• U.Wood 810 n. Whitehill, Farmer's Bank v. 552 n. Whitelocke «. Baker 372 n., 874 n. Wliitney v. Tliaclier 697 " Thurston v. 1087 " Waterman v. 598 Whyman v. Garth- 786 Wiehelhaus, RaflHes v. 921 Wilbur V. Hubbard 672 n. Wilcher v. Robertson 847 n. Wilde V. Armsby 831 Wiley, Shove u. 528, 532 n. Williams v. Ashton 827 " Cornett v. 761 n. " V. E. I. Co. 732 " Panton v. 159 Smart v. 472 n., 773 " Smartle d. Newport v. 429, ' 472 n. " u. Thomas 1164 n. V. Walker 1205 Wilson V. Boerem 357 Page 1136 Wilson V. Rastall , Shore v. 929 " V. Wagar 1195 Windsor, Augusta u. 536 " V. Uillaway 510 n. Wingfield, Walker v. 408 n. Witham, Taylor v. 575, 588 n. Wolverton Mortgaged Estates, In re 969 Wombwell, Ryder v. 162 Wood, More wood v. 408 n. " Whiten. ' 810 n. Woodcock, R. V. 354 Woodhouse, Clarkson v. 441 Woodnoth, Lord Cobham ». 474 Woodstock, Randolph v. 1228 Woodward v. Goulstone 614 V. Leavitt 1100 Woolway v. Rowe 129 ' Worden, Lefebure v. 477, 532 n. Worth, R. V. 499 n. Worthington v. Scribner 1148 Wright V. Doe d. Tatham 276 n., 309, 319, 665 n., 666 n , 672 " R. V. 680 n. " d. Clymer v. Littler 350 Wyatt, Little w. 520 n. U York V. Pease 1198 Young, Naumberg b. 908 " Vowles V. • 873 Younge v, Honner 1186 SELECT CASES ON THE COMMON LAW EULES OF EVIDENCE. CHAPTER I. PRELIMINARY TOPICS. Note on the General Charactee of our Law of Evidence. Reasoning, the rational method of settling disputed questions, is the modem sub- stitute for certain formal and mechanical tests which flourished among our ancestors for centuries, and in the midst of which the trial by jury emerged. When two men to-day settle which is the "best man" by a prize-fight, we get an accurate notion of the old Germanic trial. Who is it that "tries " the question ? The men themselves. There are referees and rules of the game, but no cietennination of the dispute on grounds of reason, — by the rational method. So it was with "trial by battle " in our old law ; the issue of right, in a writ of right, including all elements of law and fact, was "tried" by this physical struggle, and the judges of the Common Pleas sat, like- the referee at a prize-fight, simply to administer the procedure, the rules of the game. So of the King's Bench in criminal appeals ; and so sat Richard II. at the trial of the appeal of treason between Bolingbroke and Norfolk, as Shakespeare represents it in the play. So of the various ordeals ; the accused party "tried" his own case by undergoing the given requirement as to hot iron, or water, or the crumb. So of the oath; the question, both law and fact, was "tried" merely by the oath, with or without fellow-swearers. The old "trial by witnesses" was a testing of the question in like manner by their mere oath. So a record was said to "try" itself. And so when out of the midst of these methods first came the trial by jury, it 'was the jury's oath, or rather their verdict, that "tried " the case. How this mode of trial came to swallow up the others, and then to lose its chief features, and become shaped into an instrument of our modern purely rational procedure, is a long story, and is not for this place. But as we use the phrase "trial" and ".trial by jury" now, we mean a rational ascertainment of facts, and' a rational ascertainment and application of rules. What was formerly tried by the method of force or the mechanical following of form,, is now tried by the method of reason. Law and Fact in Jury Trials. 4 Harv. Law Rev. 156, 157) What is our law of evidence ? It is a set of rules which has to do with judicial . investigations into questions of fact. . . . These rules relate to the mode of ascertain- ing an unknown, and generally a disputed, matter of fact, in courts of justice. But they do not regulate the process of reasoning and argument. This may go on after all 1 2 PRELIMINAEY TOPICS. [CHAP. I. the " evidence " is in, or when all the facts are admitted except such as are deducible by reasoning from these admitted facts. This process is in its nature the same which goes forward on questions of law upon a demurrer, — mere reasoning. But when one offers " evidence," in the sense of the word which is now under consideration, he offers to prove, otherwise than by mere reasoning fi'om what is already known, a matter of fact to be used as a basis of inference to another matter of fact ; as when I offer the testimony of A. to prove the fact in issue, — for even direct testimony, to be believed or disbelieved, according as we trust the witness, is but a basis of inference, — or to prove an evidential fact from which, by a process of reasoning, the fact in issue may be made out ; and as when I present to the senses of the tribunal a visible object which may furnish a ground of inference. In giving evidence we are furnishing to a tribunal a new basis for reasoning. This is not saying that we do not have to reason in order to ascertain this basis ; it is merely saying that reasoning alone will not, or at least does not, supply it. The new element which is added is what we call the evidence.^ Evidence, then, is any matter of fact which is furnished to a legal tribunal, — otherwise than by reasoning or a reference to what is noticed without proof, — as the basis of inference in ascertaining some other matter of fact. And the law of evidence is the law which has to do with the furnishing of this matter of fact. But how "has to do " ? (1) It prescribes the manner of presenting evidence ; as by requiring that it shall be given in open court by one who personally knows the thing to he true, ap- pearing in person, subject to cross-examination ; or by allowing it' to be given by deposition, taken in such and such a way ; and the like ; (2) it iixes the qualifications and the privilege of witnesses, and the mode of examining them ; (3) and chiefly, it determines, as among probative ' matters, — things which are logically and in their nature evidential, — what classes of things shall not be received. This excluding function is the characteristic one in our law of evidence. Observe at this point one or two fundamental conceptions. There is one precept to be mentioned, which is not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence as contrasted with the old formal and mechanical systems ; viz. , that nothing which is not supposed to be relevant, i. e. logically probative, shall be received. How are we to know what these things are ? Not by any rule of the law. The law furnishes no test of relevancy. For this, it tacitly refers to logic, assuming that the principles of reasoning are known to its judges and ministers ; just as a vast multitude of other things are assumed as already suffi- ciently known. And there is another precept which it is convenient to lay down as a preliminary one in stating the law of evidence ; viz., that, unless excluded by some rule or prin- ciple of law, all that is logically probative is admissible. This general adnussibility of what is logically probative is not, like the former precept, a necessary presupposition in a rational system of evidence ; and, accordingly, there are very many exceptions to it. But yet, in order to a clear conception of the law, it is important to notice this also as being a fundamental proposition. In a historical sense it has not been the fundamental rule to which 'the different exclusions were exceptions. What has, as matter of actual 1 Stephen's limitation of the term "evidence" to (1) the statements of witnesses and (2) documents, seems too narrow. When in a controversy between a tailor and his customer, involving the fit of a coat, the customer puts on the coat and wears it during the trial ; as in Brown v. Foster, 113 Mass., at p. 137, a basis of inference is sup])lied otherwise than by reasoning or by statements, whether oral or written ; and it seems impossible to deny to this the name of " evidence." It is what Bentham called "real evidence," — a valuable disnriminatiou when it is limited to that which is presented directly to the senses of the tribunal. But it appears to have little legal importance, when divided further into "reported real evidence," etc. Best, in his treatise, has confused the topic by following Bentham into this sort of refinement, overlooking, probably, for the moment, the fact that Bentham, unlike himself, was engaged in a general philosophical discussion, and was not writing a law book. CHAP. I.] PKELIMINAEY TOPICS. 3 fact, taken place is the exoluBion by the judges of one and another thing from time to time ; and so, gradually, the recognition of this exclusion under a rule. The.se rules of exclusion have had their exceptions ; and so the law has come into the shape of a set of primary rules of excjlusion ; and then a set of exceptions to these rules. As, e. g. in the case of hearsay, our courts treat as the affirmative rule the one which ex- cludes hearsay ; ' and in a new ease, unless it can be brought within an admitted excep- tion, this rule is applied. And yet, while this is historically true, the main propositions which I have stated should, in the order of thought, be first laid down and always kept in mind. If the doing of this shall require a restatement of some material parts of the law of evidence, that, perhaps, will only turn out as it should. In stating thus our two fundamental conceptions, we must not fall into the en-or of supposing that relevancy, logical connection, real or supposed, is the only test of ad- missibility ; for so we should drop out of sight the chief part of the law of evidence. ■When we have said (1) that, without any exception, nothing which is not supposed to be logically relevant is admissible ; and (2) that, subject to many exceptions and quali- fications, whatever is logically relevant is admissible, it is obvious that, in reality, there are tests of admissibility other than logical relevancy. Some things are rejected as being of too sliglit a significance, or as having too conjectural and remote a connec- tion ; others, as being dangerous, and likely to be misused or overestimated by a jury ; others, as being impolitic, e. g. unsafe for the State ; others, on the bare ground of precedent. It is this sort of thing, as I said before, — the rejection of what is really probative, on one or another practical ground, — which is the characteristic thing in the law of evidence, marking, as it does, the influence of the jury system which gave rise. to it.^ The law of evidence is the creature of experience rather than logic, and we cannot escape the necessity of tracing that experience. Founded, as being a rational system, upon the laws that govern human thought, and so presupposing and conforming to these, it yet recognizes another influence that must, at every moment, be taken into account ; for it is this which has brought it into being, as it is the absence of this which alone accounts for the non-existence of these rules in all other countries, ancient or modern. For, as I have already indicated, the main errand of the law of evidence is to determine not so much what is admissible in proof, as what is inadmissible. As- suming, as it does, that, in general, what is evidential is receivable, it is occupied in pointing out what part of this mass of matter is excluded. It denies to this excluded part, not the name of evidence, but the name of admissible evidence. Admissibility is determined, first, by relevancy, — an affair of logic and not of law ; second, but only indirectly, by the law of evidence which, in strictness, only declares whether matter which is logically probative is excluded. Is it then really so, that this great multitude of decisions that emerge day by day, holding that such and such evidence is or is not admissible, have so little to do with the law of evidence ? Yes. The greater part of them are ultimately reducible to mere ^ And so Lord Blackburn, at the end of his opinion in the important case of Sturla V. Freccia, 5 App. Cases, 623 : "I base my judgment on this, that no case has gone so far as to say that such a document could be received ; and clearly, unless it is to be brought within some one of the exceptions, it would fall within the general rule that hearsay evidence is not admissible." The point that is made in the text would lead rather to giving scope to what we call the exceptions to hearsay and restricting the rule of exclusion. ^ It is here that Mr. Justice Stephen's treatment of the law of evidence is perplex- ing ; indeed, it comes to have the aspect of a tour de force. Helpful as his writings on this subject have been, they are injured by the small consideration that he shows for the historical aspect of the matter, and by the undertaking to put the rules of evidence merely in terms of relevancy. It is to be observed that by relevancy he always means logical relevancy ; the common but uninstructive distinction between legal and logical relevancy is not made by him. 4 PEELIMINAKY TOPICS. [CHAP. L decisions of a question of logic as applied to a point of substantive law or pleading. When a man mistakes his proposition of substantive law and offers evidence to sustain his eiToneous view, he is daily told that his evidence' is not admissible, when the thing that is meant is, you are wrong in a point of the law of damages ; l or you are proceed- ing upon a wrong conception of the standard of diligence that is applicable here ; ^ or you have a wrong notion of the meaning and contents of the general issue in plead- ing J * or of what is put in controversy by a plea of payment. In such cases a deter- mination that what is offered in evidence is or is not receivable, means, (1) you are wrong in your proposition of substantive law ; (2) having regard to the true proposi- tion, your "evidence" (i. e. what you offer as evidence) is logically irrelevant. All such determinations as these, of which there is a vast forest in our books, while they certainly relate to evidence and involve questions of law, involve no point at all in the law of evidence.* Pkesumptions and The Law of Evidence. 3 Hm-v. Law Bev. 142-7. The theory of judicial evidence is constantly misstated or misconceived even in this country, and the English law on the subject is too often described as being that which it is its chief distinction not to be — that is, as an Organon, as a sort of contrivance for the discovery of truth which English lawyers have patented. . . . There is much jnobability that our English law of evidence would never have come into existence if we had not continued much longer than other Western societies the separation of the province of the judge from the province of the jury ; and, in fact, the English rules of evidence are never very scrupulously attended to by tribunals which, like the Court of Chancery, adjudicate both on law and on fact, through the same organs and the same procedure.* Maine's Village Communities (Zd ed.), 302. If material witnesses happen to die before the trial, the person whose case they would have established may fail in the suit. But although all the Bishops on the bench should be ready to swear to what they beard these witnesses declare, and add their own implicit belief of the truth of the declarations, the evidence could not be received. Upon this subject, the laws of other countries are quite different ; they admit evi- dence of hearsay without scruple. There is not an appeal from the neighboring kinc- dom of Scotland in which you will not find a great deal of hearsay evidence upon every fact brought into dispute. This has struck many persons as a great absurdity and defect in the law of that country. But the different rules which prevail there and with us seem to me to have a reasonable foundation in the different manner in which justice is administered in the two countries. In Scotland, and most of the Con- tinental States, the judges determine upon the facts in dispute as well as upon the law ; and they think there is no danger in their listening to evidence of hearsay, be- cause when they come to consider of their judgment on the merits of the case, they can trust themselves entirely to disregard the hearsay evidence, or to give it any little weight which it may seem to deserve. But in England, where the jury are the sole judges of the fact, hearsay evidence is properly excluded, because no man can tell what effect it might have upon their minds. Mansfield, C. J., in Berk. Peer. Case, i Camp. 414-415. 1 Hart V. Pa. E. R. Co., 112 U. S. 343. 2 Grand Trunk Ey. Co. v. Richardson, 91 U. S. 469. 5 Marine Ins. Co. v. Hodgson, 6 Cranch, 219 ; Young v. Black, 7 ib. 567. * See Mr. Justice Holmes's excellent observations in his Common Law, 120-129. 5 "Mr. Maine said that the English law of evidence would probably never have come into existence but for one peculiarity of the English judicial administration, the separation of the judge of law from the judge of fact, of the judge from the jury. — Proceedings of the Legislative Council of 12Gourt for Frederick County. The case is stated in the opinion of the Court. The cause was argued before Bartol, C. J., Miiaee, Alvet, Robin- son, and Irving, JJ. James Mb Sherry for the appellant. Charles J. M. Gwinn, Attorney- General, for the appellee. Miller, J., delivered the opinion of the Court. The appellant was indicted and tried for the murder of James L. Wetsell, and the jury, by their verdict, found him guilty of murder in the first degree. At the trial, his counsel took three exceptions to the rulings of the court upon questions of evidence, which this appeal brings up for review, and we shall dispose of them in their order. . . . Second Mcception. — It was conceded that it became material and competent for the State to prove at what hour the moon rose on the night of Saturday, the 9th of August, 1879, and for the purpose of proving this tlie State offered in evidence GrubeT's Almanac for the year 1879. The prisoner objected to its admissibility, but the court overruled the objection and allowed the almanac to be offered for the purpose stated. To this ruling the prisoner excepted. . This is all the exception states in regard to the almanac oflfered, and we must assume that it contained tables giving the. periods of the rising and setting of the sun and moon on each day of the 3"ear, such as are usually found in such works. The prisoner did not propose to offer proof assailing or impeaching the accuracy of the astronomical, calcu- lations upon which the tables in the particular almanac in question were made, but his counsel contend that the almanac was not the best evidence, nor indeed any evidence as to when the moon rose on that night. The argument is, that it was a mere calculation made by some one long anterior to the happening of the event, that the event would occur at a certain hour and minute fit was not evidence that the moon had risen at a certain hour, but the statement of a conjecture that it would do so. On the 2d of January, 1880, when this case was on trial, there were certainly better and surer means of proving when the moon^did actually rise on the 9th of August, 1879, than by relying on the compfllStion of «» almanac maker that itJmwld or ought torise at a given* tigie that ni^t : how is the fact that it did rise at a particular hour proved fi|' ten(Mii<5*j*s evide«va> the. lOfeKijpj^re or calculation o£ some one that it would do so? If Gruber's Almanac is evidence for this purpose. So then are all the other various ones published ; because there is nothing in this one to make it more authentic than the others, 28 TAYLOR V. BARCLAY. [OHAP. I. and thus a fact susceptible of exact proof, like any other event that has happened, may be established by the unsworn conjecture of almanac compilers. We do not propose to elaborate the question, nor to rely upon the fact that the Statute of 24 Geo. 2, c. 23, is in force in this State. As has been well argued by the Attorney-General in his brief, the precise periods at which the sun and moon will rise or set at any , particular period of twenty-four hours in the future is as Absolutely certain, and just as capable of exact mathematical ascertainment,'as the occurrence of the day in which such setting or rising will take place. Courts have received as evidence weather reports, reports of the state ■ of the markets, price currents, and insurance tables tending to show the probable duration of human life, though these are records which are not capable of mathematical demonstration, which cannot be tested by any certain law, and which may or may not omit the record of changes which have actually taken place. But an almanac forecasts with exact certainty planetary movements. We govern our daily life bj' reference to the coitiputations wKch they contain. No oral evi- dence or proof which we could gather as to the hours of the rising or setting of the sun or moon could be as certain or accurate as that which we may obtain from such a source. Why then should not these computations, which are, after all, but parts of the ordinary compiita-, tions of the calendar, be admitted as evidence ? As was said by Judge Cooley in consideriifg an analogous question, Sisson v. JRailroad Co., 14 Mich. 497, " Courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less cer- tain and satisfactory character." There is clearly no error in the ruling in this exception. ... Sulings affirmed. TAYLOK V. BARCLAY. Chancery. 1828. [Reported 2 Sim. 213.] The bill in this case prayed a discovery only. It alleged that, in August, 1825, Barclay & Co., representing themselves to be the agents of the Government of the Federal Eepublic of Central America, which was a Sovereign and Independent State, recognized and treated as such hy His Majesty the king of these realms, and in a state of amity with this countrj', publicly announced their intention of rais- ing a loan, for the said republic, by open competition, to be paid by instalments : that Barclay & Co. proposed to raise such loan upon the security of bonds or special obligations of the said government ; and represented that the bonds, or special obligations were not to be deliv- ered, in the first instance, to the subscribers to the loan ; but that cer- SECT. II.] TAYLOE V. BARCLAY. 29 tificates of obligations, purporting to be issued by the said government, should be given to them on paj'ment of the first instalment, and that, on payment of the last instalment, and on 'production of the certificates to the then contractor for or buyer of the loan, special obligations of tlie government would be delivered to the holders of the certificates : . . . and that such conduct was a frauB upon the plaintiff and the other persons who had purchased the certificates in ignorance thereof: that the plaintiff was about to commence an action against the defend- ants, to recover the amount of the instalments which he had paid. The bill prayed a discover}' in aid of that action. The defendants put in general demurrers. Mr. Sugden, Mr. Pepys, Mr. Simpkinson, Mr. Purvis, and Mr. Jacob, in support of the demurrers. Mr. Bickersteth, Mr. Pemberion, and Mr. Sill, in support of the bill. The 'Vice- Chancellor. In consequence of the arguments in this case, I have had communication with the Foreign Office, and I am authorized to state that the Federal Republic of Central America has not been recognized, as an independent government, by the government of this country. It appears to me that, when it is stated, in the bill, that this republic was, and still is, a sovereign and independent State, recognized and treated as such bj' His Majesty the king of these realms, it must have been meant that it has been recognized by the government of this country, as an independent State altogether ; and, inasmuch as I conceive it is the duty of the judge in every court to take notice of public matters which affect the government of the country, I conceive that, notwithstanding there is this averment in the bill, I am bound to take the fact as it reallj- exists, and not as it is averred to be : and then it does not seem to me that there is any substantial distinction between the present case, and the case in which I formerlj- gave judgment, that is, the case of Thompson v. Powles. . . . Now, in this case, I am asked to compel the defendant to make a discovery, to the plaintiff, of certain proceedings, all of which are bot- tomed on the original representation that certain persons were the agents of the government of the Federal Republic of Central America, which then was and is an independent State, the fact being that it was not then, has not been, nor is now, an independent State acknowledged by the government of this country. It appears to me that, without saying how far the plaintiff might have had the discovery which he asks, provided he had represented his case otherwise, yet, if he makes this fact the foundation of his case, that this is an independent govern- ment, recognized by the government of this country, when it is not so, I must judicially take notice of what is the truth of the fact, notwith- standing the averment on the record, because nothing is taken to be \ true except that which is properly pleaded : and I am of opinion that, when you plead that which is historically false, and which the judges are bound to take notice of as being false, it cannot be said you liave 30 0WIKG3 ET AL. V. HULL. [CHAP. I. properly pleaded, merely because it is averred, in plain terms ; and that I must take it just as if there was no such averment on the record. My opinion is, without making any new law, which I entirely disclaim, but merely meaning to follow the precedents which Lord Eldon laid down as bottomed on sound policy, that I must allow the demurrer. OWINGS et al. v. HULL. Supreme Codrt of the United States. 1835. [Reported 9 Pet. 607.] Error to the Circuit Court of the United States for the district of Maryland. The case is stated in the opinion of the Court. Johnson, for the plaintiffs. Williams, contra. Story, J., delivered the opinion of the Court. " The original suit is an action of assumpsit brought by the defendant in error against the plaintiffs in error (the original defendants) ; the declaration containing the monej' counts, an insim,ul com-putassent and a special count, as for a deceit in the title upon a sale of certain slaves." . . . The plaintiff, to support the issue on his part, offered in evidence the record of the proceedings in the parish court of the citj' of New Orleans, in the case in which the children and heirs of Mrs. Van Pradelles were petitioners, against James F. Hull, for the recovery of the slaves sold to him b}- John K. West, which proceedings were certified according to the provisions of the act of Congress. This record contained a duly certified notarial copy of the act of sale of the slaves, dated 27th of August, 1817, by John K. West, attorney in fact of the executrixes of Mts. Van Pradelles, to James F. Hull. The original, of which this was a copy, was the notarial register of the sale recorded by the notarj'', and in his possession according to the laws of Louisiana. . . . The defendants, by their counsel, objected to the admissibility in evidence of the record from the parish court, in and for the parish and citj'of New Orleans, in the State of Louisiana, annexed to the commis- sion, for any purpose, on the ground of its not being authenticated according to law ; but the court overruled this objection. The defend- ants' counsel excepted. . . . The defendants prosecuted this writ of error. The original suit was brought to recover back the purchase-money paid by the defendant in error for the slaves, and other compensation for the defect of title [as mentioned in the previous statement of the facts of the case]. The jury found a verdict for the original plaintiff, for $2,636.96, upon which judgment was rendered accordingly; and the present writ of error is brought to revise that judgment upon cer- SECT. II.] OWINGS ET AL. V. HULL. 31 tain bills of exceptions taken at the trial, on behalf of the plaintiffs in error. The objections taken to the adrnissibilitj' of the evidence were, in tlie first place, that the record in the case of the Heirs of the Testatrix v. Mull, in Louisiana, was not evidence against the defendants in the present suit, except as to the judgment of the court in Louisiana. By the judgment, we are to understand, not tliat part of the record, which in a suit at the common law- technically follows the ideo consideratum est, &c., for that would be wholly unintelligible, without reference to the preceding pleadings and proceedings ; but that which, in common, as well as legal language, is deemed the exemplification of a judgment ; that is to say, all the pleadings and proceedings on which the judgment is founded, and to which, as matter of record, it necessarily refers. We are of opinion, that this objection was well taken. The suit was res inter alios acta, and the proceedings and judgment therein were no further evidence than to show a recover}' against Hull, by a paramount title. There was error, therefore, in the circuit court, in refusing to sustain this objection. The next objection was, that the copy of the original bill of sale of the slaves to Hull, on record in the notary's office, was not evidence, unless the plaintiff accounts for the non-production of the original. The val- iditj^ of this objection depends upon this consideration, whether the non- production of the original was sufficiently accounted for. It was not accounted for by any proofs offered on behalf of the plaintiff; and unless the circuit court could judiciallj' take notice of the laws of Louisiana, there was nothing before the court to enable it to say that the non-pro- duction of the original was accounted for. We are of opinion, that the circuit court was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by Congress, not for the purpose of administering the local law of a single State alone, but to administer the laws of all the States in the Union, in cases to which they respectively apply. The judicial power conferred on the general government, by the Constitution, ex- tends to many cases arising under the laws of the different States. And this court is called upon, in the exercise of its appellate jurisdic- tion, constantly to take notice of and administer the jurisprudence of all the States. That jurisprudence is then, in no just sense, a foreign jur- isprudence, to be proved, in the courts of the United States, by the ordinary modes of proof by which the laws of a foreign country are to be established ; but it is to be judicially taken notice of in the same manner, as the laws of the United States are taken notice of by these courts. Under these circumstances, we are at liberty to examine the objection above stated, with reference to the known laws of Louisiana. Now in Louisiana, as indeed in &,11 countries using the civil law, notaries are officers of high importance and confidence ; and the contracts and other acts of parties executed before them and recorded by them, are of high 32 HANLEY V. DONOGHUE. [CHAP. I. credit and authenticity. Some contract's and conve3'ances are not valid, except they are executed in a prescribed manner, before a notary ; others again, if executed bj' the parties elsewhere, may be recorded by a notary ; and a copy of such record is in manj- cases evidence. Where a contract or other act is executed in a particular manner, before a notary, the protocol or original remains in his possession apud acta ; and the act is deemed, what is technically called an " authentic act ; " and a copy of such act, certified as a true copy by the notar3', who is the depositary of the original, or his successor, is deemed proof of what is contained in the original, for the plain reason that the ori- ginal is properlj- in the custody of a public officer, and not deliverable to the parties. This will abundantly appear, bj' a reference to the Civil Code of Louisiana, from articles 2231 to article 2250. Now, the bill of sale in the present case is precise^ in that predicament. It was executed before a notary in the manner prescribed bj^ the laws of Louisi- ana ; the original is in his possession, and is an authentic act, apud acta, and therefore the party is not entitled to the possession of it, but only to a copy of it. So that the absence of the original is sufficiently ac- counted for, and the copy being duly proved, was properly admissible in evidence. There was no error, therefore, in the circuit court, in admitting this evidence. . . . For these reasons, we are of opinion that the judgment of the circuit court ought to be reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. HANLEY V. DONOGHUE. Supreme Court of the United States. 1885. [Beported 116 U. S. 1.] This was an action brought by Michael Hanley and William F. Welch against Charles Donoghue in the Circuit Court for Baltimore County, in the State of Maryland, upon a judgment for $2,000, recov- ered by the plaintiffs on June 4, 1877, in an action of covenant against the defendant, Charles Donoghue, together with one John Donoghue, in the Court of Common Pleas of Washington County in the State of Pennsylvania, and there recorded. The declaration contained three counts. The first count set forth the recovei;y and record of the judgment as aforesaid in said Court of Com- mon Pleas, and alleged that it was still in force and unreversed. The second count contained similar allegations, and also alleged that in the former action Charles Donoghue was summoned, and property of John Donoghue was attached by process of foreign \ittachment, but he was never summoned and never appeared, and that the proceedings in that action were duly recorded in that court. The third count repeated the SECT. II.] HANLEY V. DONOGHUE. 33 allegations of the second count, and further alleged that " by the law and practice of Penns^'lvania the judgment so rendered against the two defendants aforesaid is in that State valid and enforceable against Charles Donoghue, and void as against John Donoghue," and that '' b}' the law of Pennsylvania any appeal from the judgment so rendered to the Supreme Court of Pennsylvania (which is the only court having jurisdiction of appeals from the said Court of Common Pleas) is re- quired to be made within two j'ears of the rendition of the judgment, nevertheless no appeal has ever been taken from the judgment so ren- dered against the said defendants, or either of them." The defendant filed a general demurrer to each and all of the counts, which was sustained, and a general judgment rendered for him. Upon appeal bj' the plaintiffs to the Court of Appeals of the State of Mary- land, the judgment was affirmed. 69 Maryland, 239. The plaintiffs thereupon sued out this writ of error, on the ground that the decision was against a right and privilege set up and claimed by them under the Constitution and laws of the United States. Mr. Frederick J. Brown., for plaintiff in error. Mr. Edward C. Eichelberger, for defendant in error. Mr. Justice Gray delivered the opinion of the court. After stating the facts in the language reported above, he continued : — The question presented bj' this writ of error is whether the judgment of the Court of Appeals of the State of Maryland has denied to the plain- tiffs a right and privilege to which they are entitled under the first sec- tion of the fourth article of the Constitution of the United States, which declares that ' ' full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; and the Congress maj' bj' general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof ; " and under § 905 of the Revised Statutes, which re-enacts the act of May 26, 1790, ch. 11, 1 Stat. 122, and prescribes the manner in which the records and judicial proceedings of the courts of an3- State shall be authenticated and proved, and enacts that "the said records and judi- cial proceedings, so authenticated, 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." By the settled construction of these provisions of the Constitution and statutes of the United States, a judgment of a State court, in a cause within its jurisdiction, and against a defendant lawfully sum- moned, or against lawfuUj* attached property of an absent defendant, is entitled to as much force and effect against the person summoned or the property attached, when the question is presented for decision in a court of another State, as it has in the State in which it was rendered. Maxwell v. Stewart, 22 Wall. 77 ; Insurance Co. v. Harris, 97 U. S. 331 ; Green v. Van Bushirk, 7 Wall. 139 ; Cooper v. Reynolds, 10 Wall. 308. And it Is within the power of the legislature of a State to enact that judgments which shall be rendered in its courts in actions 34 HANLEY «. JDONOGHUB. [CHAP. I. against joint defendants, one of whom has not been duly served with process,*- shall be valid as to those who have been so served, or who have appeared in the action. Mason v. Eldred, 6 "Wall. 231 ; Eldred V. Bank, 17 Wall. 545 ; Hall v. Lanning, 91 U. S. 160, 168 ; Sawin v. Kenney, 93 U. S. 289. Much of the argument at the bar was devoted to the discussion of questions which the view that we take of this case renders it unnecessary to consider ; such as the proper manner of impeaching or avoiding judg- ments in the State in which they are rendered, for want of due service of process upon one or all of the defendants ; or the effect which a judg- ment rendered in one State against two joint defendants, one of whom has been duly summoned and the other has not, should be allowed against the former in the courts of another State, without allegation or proof of the effect which such a judgment has against him by the law of the first State. No court is to be charged with the knowledge of foreign laws ; but they are well understood to be facts, which must, like other facts, be proved before thej' can be received in a court of justice. Talbot v. Seeman, 1 Cranch, 1, 38 ; Church v. Huhhart, 2 Cranch, 187, 236 ; Strother v. Lucas, 6 Pet. 763, 768; Dainese v. ITale, 91 U. S. 13,20. It is equallj' well settled that the several States of the Union are to be considered as in this respect foreign to each other, and that the courts of one State are not presumed to know, and therefore not bound to take judicial notice of, the laws of another State. In -Bicckner v. Finley, 2 Pet. 586, in which it was held that bills of exchange drawn in one of the States on persons living in another were foreign bills, it was said by Mr. Justice "Washington, delivering the unanimous opinion of this court: " For all national purposes embraced by the Federal Constitu- tion, the States and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other re- spects, the States are necessarily foreign to and independent of each other. Their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions." 2 Pet. 590. - Judgments recovered in one State of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered hy a cGurt hav- ing jurisdiction of the cause and of the parties. JBuckner \. Finley, 2 Pet. 592 ; M'Mmoyle v. Cohen, 13 Pet. 312, 324 ; D'Arcy v. Ketchum, 11 How. 165, 176 ; Christmas v. Russell, 5 "Wall. 290, 305 ; Thomp. son V. Whitman, 18 "Wall. 457. Congress, in the execution of the power conferred upon it by the Constitution, having prescribed the mode of attestation of records of the courts of one State to entitle them to be proved in the courts of an- other State, and having enacted that records so authenticated shall have such faith and credit in every court within the United States as they SECT. II.] HANIiEY V. DONOGHUE. 35 have by law or usage in the State from which they are taken, a record of a judgment so authenticated doubtless proves itself without further evi- dence ; and if it appears upon its face to be a record of a court of gene- ral jurisdiction, the jurisdiction of the court over the cause and the parties • is to be presumed unless disproved bj* extrinsic evidence or by the record itself Snowies v. Gaslight & Coke Co., 19 Wall. 58 ; Settlemier v. Sullivan, 97 U. S. 444. But Congress has not undertaken to prescribe in what manner the eflTect that such judgments have in the courts of the State in which they are rendered sha,ll be ascertained, and has left that to be regulated by the general rules of pleading and e^'idence applicable to the subject. Upon principle, therefore, and according to the great preponder- ance of authority (as is shown by the cases collected in the margin),^ whenever it becomes necessary for a court of one State, in order to give full faith and credit to a judgment rendered in another State, to ascer- tain the effect which it has in that State, the law of that State must be proved, like any other matter of fact. The opposing decisions in Ohio V. Hinchman, 27 Penn. St. 479, and Paine\. Schenectady Ins. Co., 11 E. I. 411, are based upon the misapprehension that this court, on a writ of error to review a decision of the highest court of one State upon the faith and credit to be allowed to a judgment rendered in another State, always takes notice of the laws of the latter State ; and upon the con- sequent misapplication of the postulate that one rule must prevail in the court of original jurisdiction and in the court of last resort. When exercising an original jurisdiction under the Constitution and laws of the United States, this court, as well as every other court of* the National Government, doubtless takes notice, without proof, of the laws of each of the United States. But in this court, exercising an appellate jurisdiction, whatever was matter of law in the court appealed from is matter of law here, and ^ whatever was matter of fact in the court appealed from is matter of fact here. In the exercise of its general appellate jurisdiction from a lower court of the United States, this court takes judicial notice of the laws of every v State of the Union, because those laws are known to the court below as laws alone, needing no averment or proof. Course v. Stead, 4 Dall. 22, 27, note ; Jlinde v. Vattier, 5 Pet. 398 ; Owings v. Hull, 9 Pet. 607, 625; United States \. Turner, 11 How. 663, 668; Pennington V. Gibson, 16 How. 65 ; Covington Drawbridge Co. v. Shepherd, 20 I Scott V. Coleman, 5 Littell, 349 ; Thomas v. RoUnson, 3 Wend. 267; Sheldeny. Sopkins, 7 Wend. 435 ; Van BuskirJc v. Mulock, 3 Harrison (N. J. ) , 184 ; Elliott v. Ray, 2 Blackford, 31 ; Coiie v. Ootton, 2 Blackford, 82 ; Snyder v. Snyder, 25 Indiana, 399 ; Pelton v. Plainer, 13 Ohio, 209 ; Horton v. Gritehfidd, 18 Illinois, 1S3 ; Rape v. Beaton, 9 Wisconsin, 328 ; Crafts v. Clark, 31 Iowa, 77 ; Taylor v. Barron, 10 Foster, 78, and 35 TS. H. 484 ; Knapp v. Abell, 10 Allen, 485 ; Mowry v. Chase, 100 Mass. 79; Wright v. 'Andrews, 130 Mass. 149 ; Bank of United States v. Merchants' Bank, 7 Gill, 415, 431 ; Coates v. Mackey, 56 Maryland, 416, 419. 36 HANLEY V. DONOGHUE. [CHAP. I. How. 227, 230 ; Cheever v. Wilson, 9 Wall. 108 ; Junction Bailroad Co. V. Bank of Ashland, 12 Wall. 226, 230; Lamar v. Micou, 114 U. S. 218. ' But on a writ of error to the highest court of a State, in which the revisory power of this court is limited to determining whether a ques- tion of law depending upon the Constitution, laws or treaties of the United States has been erroneously decided by the State courts upon the facts before it, — while the law of that State, being known to its courts as law, is of course within the judicial notice of this court at the hearing on error, — yet, as in the State court the laws of another State are but facts, requiring to be proved in order to be considered, this court does not take judicial notice of them, unless made part of the record sent up, as in Green v. Van Buskirk, 7 Wall. 139. The case comes, in principle, within the rule laid down long ago by Chief-Justice Marshall : " That the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statement made in the court below, cannot be questioned." Talbot v. Seeman, 1 Cranch, 1, 38. Where by the local law of a State (as in Tennessee, Hohbs v. Memphis These learned judges were of opinion that SECT. III.] ABRATS V. THE NORTH EASTERN RAILWAY CO. 53 ill an action for malicious pi-osecution where the defendant undertakes to bring forward facts for the purpose of satisfying not the jury but the judge that there was reasonable and probable cause for prosecuting, ' the onus of proving those facts is upon the person who brings them forward ; that the defendants only could know whether they had taken reasonable and proper care to inform themselves of the true state of the case, and whether they honestly believed the case which they laid before the magistrates ; that the general rule should be followed, which was that the onus rested on the person affirming ; and that there had been a misdirection by Cave, J., in telling the jury that the onus lay upon the plaintiff to prove that the defendants had not taken reason- able care to inform themselves of the true state of the case, and had not honestly believed the case which they laid before the magistrates. The defendants appealed. During the argument in the Court of Appeal it was agreed by the par- ties and ordered by the judges that the plaintiff should be at liberty to appeal from the judgment of Cave, J., and to raise the questions whether there was reasonable and probable cause for instituting the prosecution and whether the judgment had been rightly entered bj' Cave, J., on the findings of the jurj-. Sir F. Herschell, S. G-., and Dighy Seymour, Q. C. ( Gainsford Bruce and J. L. Walton with them), for the defendants. Sir H. Giffard, Q. G., and McGlymont, for the plaintiff. Brett, M.E. ... In the present case, evidence was given of cir- cumstances upon which the learned judge had to determine, whether they amounted to reasonable and probable cause for instituting the prosecution. These facts or circumstances being in evidence, another question of fact arose which it was necessary to determine in order to enable the judge to give his opinion upon all the existing circumstances and facts. That additional question of fact was, whether the defend- ants had taken, reasonable care to inform themselves of the true state of the case. Strong evidence had been given that certain testimony or statements had been laid before those who instituted the prosecu- tion for which the action was brought. If the point whether reason- able care had been taken, had not been raised, the judge would not have assumed a want of reasonable care in that respect ; it would' have been assumed on all sides that reasonable care had been taken. But it signifies not what statements were laid before those who instituted the prosecution, if they received them carelessly, or if they did not take reasonable care to inform themselves of other facts with which they might have made themselves acquainted. It has been decided that the question whether reasonable care has been taken by those who institut- ed the proceedings, to inform themselves of the true state of the case, must be determined one way or the other, in order to enable the judge to give his opinion. Therefore, it becomes a necessarj' part of the question whether there was an absence of reasonable cause, to deter- mine whether reasonable care was taken by the defendants to inform 54 ABRATH V. THE NOETH EASTERN RAILWAY CO. [CHAP. I. themselves of the true state of the facts. The question, whether rea- sonable cave has or has not been taken by a prosecutor to inform him- self of the real state of the case, is not mereh' a piece of evidence to prove some fact, but it is a question which is itself to De decided bj- evi- dence, and upon which evidence to prove and disprove it maj- be given. It is a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want of reasonable and probable cause. It is one of those facts for which I have tried to fliid a proper designation, but I have not succeeded in finding one satisfactory to mj- mind ; it may be described as a " fundamental " fact, in order to tr}' to distinguish it from a fact which is merely evidence of something else. It is a fact which it would be necessary to allege and prove, and it is not merely' a fact which is evidence of something which is to be alleged and proved. Therefore, it is to my mind a fact of which the burden of proof lies upon the person who alleges it, and it falls within the rule which I have stated. The burden of proof of satisfjing a jury that there was a want of reasonable care lies upon the plaintiff, because the proof of that want of reasonable care is a necessary part of the larger question, of which the burden of proof lies upon him, namelj', that there was a want of reasonable and probable cause to institute the prosecution. It follows, therefore, to my mind, that if the direction of Cave, J., to the jury was simply that it was a necessary part of the question whether there was a want of reasonable and probable cause for instituting the prosecution against the plaintiff, that it should be decided whether reasonable care had been taken bs' the defendants to inform themselves of the true state of the case, and that the burden of proving that minor proposition, as well as the whole proposition, laj- upon the plaintiff, it is a direction which cannot be impeached. This was in substance the direction of Cave, J., and I feel certain that his meaning was understood by the jury. . . . But then it is contended (I think fallaciously), that if the plaintiff has gi\en prima facie evidence, which, unless it be answered, will en- title him to have the question decided in his favor, the burden of proof is shifted on to the defendant as to the decision of the question itself. This contention seems to be the real ground of the decision in the Queen's Bench Division. I cannot assent to it. It seems to me that the propositions ought to be stated thus : the plaintiff maj' give prima facie evidence which, unless it be answered eitlier by contradictor}- evi- dence or by the evidence of additional facts, ought to lead the jury to find the question in his favor : the defendant may give evidence either by contradicting the plaintiffs evidence or by proving other facts : the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favor of the plaintiff with respect to the question which he calls upon them to answer ; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff, SECT. III.] ABKATH V. THE NORTH EASTERN RAILWAY CO. 55 they must find. for the defendant. Then comes this difflcultj- — suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff; in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him. Cave, J., told the jury that the burden of proof lay upon the plaintiff, and I think that the effect of his summing up as to this point may be stated as follows : "Take the evidence before }'ou ; if 3'our minds are made , up one way or the other, there will be no difficulty ; but if after con- 1 sideration you remain in doubt how the questions which I put to you il ought to be answered, I tell you that the burden of proof lies upon the/ plaintiff, and if either the plaintiffs evidence or the defendants' evi-/ dence added to the plaintiff's has really left you in doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him." It is said that the expression "burden of proof" is capable of improve- ment : I do not doubt that it may be improved, but whoever attempts to improve it before fi jury, will be ti-ying a dangerous experiment. It is a form of expression which lias been used over and over again, it is a form of expression which is known to the class of persons from whom jurors are drawn, and which, explained as Cave, J., did explain it, is well understood bj' them ; and although a more accurate expres- sion might be found, there would be bj- extreme accuracy danger of puzzling inaccurate minds. In ray opinion it is better to continue to use this expression. It is no mis-direction not to tell the jury every- thing which might have been told them : there is no mis-direction, un- less the judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not mis-direction, and those who allege mis- direction must show that something wrong was seM, or that something was said which would make wrong that which was left to be under- stood. In the present case I can see nothing but what was accurate and proper to give as a direction to the jury. . . . For these reasons I differ from the decision of the Queen's Bench Division upon the question whether a new trial should be granted, and I think that the appeal from the order for a new trial must be allowed. I think that the appeal by the plaintiff from the judgment of Cave, J., must be dismissed. BowEN, L.J, I should be better pleased to leave the judgment of the Master of the Rolls without any addition of my own, and if I were to consult my own convenience I should do so, especially for this reason, that although it is not diflfieult to come to a true view of the law, this is a case in which the expression of the law becomes peculiarly diflScult ; but the case is important to the parties, and the judgment of the Queen's Bench Division was contrary to ours, and the case has been well argued, and I think that it would not be right to shrink from the 56 ABRATH V. THE NORTH EASTERN RAILWAY CO. [CHAP. I. burden of stating my own view of the case and of pointing out tlie weak places in the argument addressed to us. This action is for malicious prosecution, and in an action for mali- cious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made ; secondly, that there was a want of reason- able and pi'obable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the e3'es of the judge inconsistent with the existence of reasonable and probable cause ; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and im- proper motive, and not in furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessarj- to make out anj' one of those three propositions, the burden of making good that step rests upon the plaintiff. I think that the whole of the fallacy of the argument addressed to us, lies in a misconception of what the learned judge really did say at the trial, and in a misconception of the sense in which the term "burden of proof" was used b}' him. Whenever litigation exists, somebody must go on with it ; the plaintiff is the first to begin ; if he does nothing, he fails ; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this : to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the con- troversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evi- dence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is eyidenee which once more turns the scale. That being so, the question of onus of proof is only a rule for 'deciding on whom the obligation of going further, if he wishes to win, rests. It is not a rule to enable the jury to decide on the value of conflicting evidence. So soon as a conflict of evidence arises, it ceases to be a question of onus of proof There is another point which must be cleared in order to make plain what I am about to sa}-. As causes are tried, the term " onus of proof" may be used in more ways than one. Sometimes when a cause is tried the jury is left to find generally for either the plaintiff or the defendant, and it is in such a case essen- tial that the judge should tell the jury on whom the burden of making out the case rests, and when and at what period it shifts. Issues again may be left to the jury upon which they are to find generally for the plaintiff or the defendant, and they ought to be told on whom the bur- SECT. III.] ABRATH V. THE NORTH EASTERN RAILWAY 00. 57 den of proof rests ; and indeed it is to be observed that very often the burden of proof will be shifted within the scope of a particular issue b}' presumptions^of law which have to be explained to the jury. But there is another way of conducting a trial at Nisi Prius, which is by asking certain definite questions of the jury. If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to explain to the jhry about onus of proof, unless there are presumptions of law, such as, for in- stance, the presumption of consideration for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is Yes or No, or else they cannot tell what to say. If the jurj' cannot make up their minds upon a question of that kind, it is for the judge to say which partj^ is entitled to the verdict. I do not forget that there are canons which are useful to a judge in com- menting upon evidence and rules for determining the weight of con- flicting evidence ; but they are not the same as onus of proof. Now in an action for malicious prosecution the plaintiff has tlie burden through- out of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. The terms " negative" and " affirmative" are after all relative and not absolute. In dealing with a question of negli- gence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the dutj' which is neglected. Wherever a person asserts aflSrmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a^)articular purpose, that is an averment which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowl- edge of the opposite party. The counsel for the plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposi- tion of that -kind cannot be maintained, and that the exceptions sup- posed to be found amongst cases relating to the game laws may be explained on special grounds. To come back to the question of the present trial, it is possible that the language of Cave, J., has been misunderstood ; and we must look and see, out of the ways in which the question might possibly be tried, which way he has selected, because as soon as it is seen which mode of trial he has selected a great advance is made towards seeing that the 58 ABEATH V. THE NORTH EASTERN RAILWAY CO. [CHAP. I. criticisms which have been made on his direction are unsound. A judge may leave the jury to find a general verdict, explaining to the jurj' what the disputed facts are, telling them that if they find the dis- puted facts in favor of one side or the other, his opinion as to reason- able and probable cause will diflfer accordingly, telling them what, in each alternative, his view will be, and enabling them to apply that statement with reference to the issue as to malice ; that is a way which ^n a very simple kind of case may be adopted. But I think it necessary only to state as much as I have stated about it, to see that a very clear head and a very clear tongue will be required to conduct a complicated case to a general verdict in that way. Aeeordinglj-, judges have been in the habit of adopting a different course whenever there are circum- stances of complication. A judge maj* accordingly do this ; he may tell the jury what the issues or questions are, and at the same time in- form them what will be the effect upon the verdict, which they will ultimately be asked to find, of the answers they give to the specific questions, leaving the jury both to answer the questions and then to find a verdict, after he has explained to them what result the answers to the questions will involve. That is the waj' in which Cave, J., really did try this case. There is a third way in which a judge ma}- conduct the trial, by asking the jury specific questions, and not leaving it to them to find the verdict, but entering the judgment upon their findings himself. That is a third waj', 'and that was not adopted in form by the learned judge, although it will be observed it differs only slightlj' in form from the second mode of procedure, which he, in fact, did adopt. Now, if the judge adopts the second method of procedure, it is obvious that he is putting specific questions to the jury with the intention, as soon as they have answered the specific questions, to request them to go still further, and to find a general verdict one way or the other on such answers. It is obvious that it is not required in such a case to explain to them the meaning of onus of proof exactlj' in the same way as if he left them generallj- to find a verdict. In answering the specific questions, where there is confiict of evidence they do not require to be told where the onus of proof lies, provided the alternative is always left to them to say, " we do not think the materials enable us to answer this or that question." But still a judge trying the case would prob- ably let the jury know, as intelligent persons, the result of what they were doing, and might easily explain to them so much of the ijiw about onus of proof, as gave them an intelligent interest in their functions. I really do not think that Cave, J., did more than that. . . . The ground of our decision comes back to what was suggested. Who had to make good their point as to the proposition whether the defendants had taken reasonable and proper care to inform themselves of the true state of the case ? The defendants were not bound to make good anything. It was the plaintiffs duty to show the absence of reasonable care ; and it is, I think, because the Court below has been drawn, if I may use the expression, into thinking that what Cave, J., SECT. III.] POM'EES V. EUSSELL. 59 ■was really leaving to the jurj' was an issue upon a subordinate fact, that I respectful!}' differ from their view. Fky, L. J., concurred. Appeal from the judgment of the Queen's Bench Division allowed, and appeal from the judgment of Cave, J., dismissed.^ POWERS V. EUSSELL^ Supreme Judicial Court of Massachusetts, 1832. lEeporled, 13 Pick. 69.] Bill in equity to redeem. The bill alleges that Nathan Powers, on September 3, 1822, was seised of certain land situate partly in Green- wich, in the county of Hampshire, and partly in Hardwicke, in the county of Worcester, and that on that day he conveyed the same in mortgage to the defendant ; that afterwards, on the same day, the mortgagor made a second mortgage of the same land to the plaintiff, upon condition that the mortgagor should pay a note given pn the same da}- for 1600 dollars, payable on April 1, 1823, with interest; by force of all which the plaintiff became seised of the right ^ equity to redeem ; and that the note for 1600 dollars remains unpaid!) The defendant, in his answer, denies that Nathan Powers made a second mortgage to the plaintiff, as set out in the bill, or ever trans- ferred his right in equity of redeeming the mortgaged premises, either mediately or directly, to the plaintiff; and he states, that he has been informed and believes, that if any deed like that pretended to have been made to the plaintiff was ever written, the same was never dulj- executed and delivered by Nathan to the plaintiff, or if executed and delivered, that the same was done by conspiracy between Nathan and ■the plaintiff to hinder, defeat, and delay the creditors of Nathan, and therefore was fraudulent and void. The plaintiff filed a general replication. An auditor appointed by the Court of Common Pleas to audit the claims of the parties and to state the facts, reported, [&c.]. ... It was agreed by the parties, that the testimony reported by the auditor should have the same effect as if it had been given upon a com- mission to take the depositions of the witnesses. The cause was argued in writing. Bates and Dewep, for the plaintiff. -£. Strong and Forbes, contra. Sha^w, C. J., delivered the opinion of the Court. The questions pre- sented in this case arise upon a bill in equity, brought to redeem cer- 1 For the English usage, see Steph. Dig. Ev. arts. 93, 95, 96 ; Best, Ev. ss. 267, 319. -^Ed. 60 POWERS V. EDSSELL. [CHAP. 1. tain parcels of real estate, lying partly in the county of Hampshire and partly in the county of Worcester. It is conceded that in 1822, Nathan Powers, the brother of the plain- tiff, having received a conveyance of the same estate from Peter Rus- sell the defendant, who was then his wife's father, on the same day duly executed and delivered to the defendant a mortgage deed, condi- tioned to perform a bond then entered into, to support and maintain the defendant in the manner therein more particularly specified, during his Ufe. The claim of the plaintiff is, that the same Nathan Powers, who has since deceased, immediately after making the deed above mentioned, executed another mortgage deed to the plaintiff, in virtue of which he claims a right to redeem. The execution and delivery of this last mortgage are denied'bj- the defendant, and the points raised and considered have turned wholly upon this question. It is very clear, that to enable the plaintiff to maintain his bill to redeem, he must prove affirmatively, that he stands in the character of a grantee of the premises from the original mortga- gor, and that in regard to this point the burdeu of proof is upon the plaintiff. The mode in which the questions of fact are brought before the Court, is peculiar, but we can perceive no objection to it. The case has been by consent referred to an auditor, who has reported the facts and the evidence, and it is agreed by the parties, that such is the evi- dence, and all the evidence, applicable to the cause, and that it is sub- mitted to the Court, subject to any exception in regard to its competency, in the same manner as if it had been regularlj' taken in the cause. The case, therefore, stands upon the same footing as if tried upon conces- sions or an agreed statement of facts ; and derives its character, not from the fact of its having been reported by an auditor, but from the consent and admissions of the parties. . . . It may be useful to say a word upon the subject of the burden of proof. It was stated here, that the plaintiff had made out & prima facie case, and, therefore, the burden of proof was shifted and placed upon the defendant. In a certain sense this is true.^ "Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore the other party, if he would avoid the effect of snoii prima facie case, must pro- duce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the aflBrmative or negative of one and the same issue, or proposition of fact ; and the party whose case requires the proof of that fact, has all along the bur- den of proof. It does not shift, though the weight in either scale may at times preponderate. ' But where the party having the burden of proof gives competent and prima facie evidence of a fact, and the adverse partj-, instead of pro- ducing proof which would go to negative the same proposition of fact, SECT. III.] BARKY V. BUTLIN. 61 proposes to show another and a distinct proposition which avoids the effect of it, there the burden of proof shifts, and rests upon the party j proposing to show the latter fact. To ilhistrate this ; — prima facie evidence is given of the execution and delivery of a deed ; contrary evidence is given on the other side, tending to negative such fact of delivery ; this latter is met by other evidence, and so on through a long inquir3'. The burden of proof has not shifted, though the weight of evidence may have shifted frequently ; but it rests on the party who originally took it. But if the adverse party offers proof, not directly to negative the fact of delivery, but to show that the deed was delivered as an escrow, this admits the truth of the former proposition, and proposes to obviate the effect of it, bj' showing another fact, namely, that it was delivered as an escrow. Here the burden of proof is on the latter. Applying these rules to the present case, it is manifest that the bur- den of proof was upon the plaintiff through the whole inquiry. The question was, whether the instrument was ever delivered by Nathan Powers to Chester Powers as his deed. . . . On the whole proof, the Court are of opinion, that there is no suffi- cient evidence of the delivery of the deed by Nathan Powers to Chester Powers. . . .^ Bill dismissed. BARRY V. BUTLIN. Privt Council. 1838. [Reported 2 Moore, P. C. 480.] Pendock Barry, of ToUerton Hall, in the County of Nottingham, the testator, respecting the validity of whose will the present appeal arose, died on the 13th of March, 1833, at the age of seventy-six years, a widower, leaving behind him the appellant, his son and heir, and only next of kirty On the 24th of September, 1827, the deceased executed his will in duplicate, at the house of Percy, his attorney, in the presence of two witnesses, whereby he appointed the respondent, James Butlin, sole executor and residuary legatee, and amongst other legacies bequeathed to Percy £3,000, to Butlin £2,000, and to Whitehead, his butler, £3,000. The validity of this will was disputed by the appellant, on the ground that the execution was procured by the fraud and conspiracj' of Percy, Butlin, and Whitehead, at a time when the deceased was of unsound mind, and wholly incapable of making or executing a will, or of doing any act requiring thought, judgment, and reflection. The respondent propounded the above will for probate in the Pre- rogative Court of Canterbury. 1 For comments on the Massachusetts usage, see 4 HaiT. Law Eev. 67-69. — Ed. 62 BARRY V. BUTLIN. [CHAP. I. A caveat having been entered by the appellant, allegations and exhibits were brought in by both parties, and witnesses examined in support thereof. I'he facts and circumstances pleaded, and material to the issue, are stated very fully in the judgment. After various interlocutorj- proceedings, the judge of the Prerogative Court, Sir Herbert Jenner, on the 6th of September, 1837 (reported 1 Curteis, Ecc. Eep. 614), pronounced for the force and validitj' of the will. The appellant appealed from this sentence to the Queen in Council. Mr. Cresswell, Q. C, and Dr. Addams, for the appellant. The Queen's Advocate (Sir John Dodson) and Mr. Thesiger, Q. C, for the respondent. Mr. Baron Parke. The rules of law according to which cases of this nature are to be decided, do not admit of an3- dispute, so far as they are necessary to the determination of the present appeal : and they have been acquiesced in on both sides. These rules are two ; the first, that the onus probandi lies in every case upon the party- propounding a will ; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a partj- writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. These principles, to the extent that I have stated, are well estab- lished. The former is undisputed. The latter is laid down bj- Sir John Nicholl, in substance, in Paske v. Ollatt, 2 Phill. 323 ; Ingram V. Wyatt, 1 Hagg. JEcc. Rep. 388 ; and Billinghurst v. Vickers, 1 Phill. 187 ; and is stated by that very learned and experienced judge to have been handed down to him by his predecessors, and this tribunal have sanctioned and acted upon it in a recent case ; that of Jiaker v. Batt, 2 Moore, P. C. 317. Their Lordships are fully sensible of the wisdom of this rule, and the importance of its practical application on all occasions. At the same time, their Lordships think it fit to observe, especially as there has been some discussion upon these points, towards the close of this inquiry, that some of the expressions reported to have been used bj- Sir John Nicholl in laying down this doctrine, appear to them to be somewhat equivocal, and capable of leading into error in the investi- gation and decision of questions of this nature. It is said that where the party benefited prepares the will, "the presumption and onus pro- bandi is against the instrument, and the proof must go not merelj' to the act of signing, but to the knowledge of the contents of the paper ; " SECT. III.] BAEllY V. BUTLIN. 63 and that, " where the capacity is doubtful, there must be proof of in- structions or redding oner." If, by these expressions, tlie learned judge meant merely to say, that there are cases of wills prepared by a legatee, so pregnant with suspicion, that the3' ought to be pronounced against in the absence of evidence in support of them, and that extend- ing to clear proof of the actual knowledge of the contents, by the supposed testator, and that instructions proceeding from him, or the reading over the instrument bj' or to him, are the most satisfactory evidence of such knowledge; we fully concur in the proposition, so understood ; in all probability the learned judge intended no more than this. But if the words used are to be construed strictly ; if it is in- tended to be stated as a rule of law, that in every case in which the partj' preparing a will derives a benefit under it, the onus probandi is shifted, and that not onlj' a certain measure but a particular species of proof is thereupon required from the party propounding the will, — we feel bound to say that we assume the doctrine to be incorrect. The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against hira.^ In all cases the onus is imposed on the party propounding a will ; it is in general discharged by proof of capacity and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the partj' who prepared the will being himself a legatee, is in every case, and under all circumstances, to create a con- trary presumption, and to call upon the court to pronounce against the will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. A single instance, of not unfrequent occurrence, will test the truth of this proposition. A man of acknowl- edged competence and habits of business, worth £100,000, leaves the bulk of his property to his family, and a legacy of £50 to his confi- dential attornej-, who prepared the will : would this fact throw the burden of proof of actual cognizance by the testator, of the contents of the will, on the party propounding- it, so that if such proof were not supplied, the will would be pronounced against? The answer is obvious, it would not. All that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacj' to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case ; in some of no weight at all, as in the case suggested, varying according to circumstances ; for instance, the quantum of the legacj-, and the proportion it bears to the property disposed of, and numerous other contingencies : but in no case amount- ing to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court in investigating the case, and call- ing upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. Nor can it be necessary, that in all such cases, even if the testator's capacity is doubtful, tlie precise species of evidence of tihe deceased's . 1 For comments on this statement, see i Haw. Law Rev. 53-54. — Ed. . 64 BAERY V. BUTLIN. [CHAP. I. knowledge of the will is to be in the shape of instructions for, or reading over, the instrument. Thej' form, no doubt, the most satis- factory, but they are not the only satisfactorj' description of proof, by which the cognizance of the contents of the will may be brought home to the deceased. The court would naturally look for such evi- dence ; in some cases it might be impossible to establish a will without it, but it has no right in ever3- case to require it. I have said this much upon the rules of law applicable to this case, with the concurrence of all their Lordships who heard the argument, not particularly with a view to the decision of this case, but in order to pre- vent any misconception upon a subject of so great practical importance ; at the same time their Lordships wish it to be distinctlj' understood, that entirely acquiescing in the propriety of the rule, so qualified and explained, they should be extremelj- sorrj' if anything which has fallen from them should have the effect of impeding its full operation. . . . From these sources, it may be collected that he was a person of slender capacity, of a retired disposition, indolent habits, and addicted to drinking, somewhat singular in his appearance, frivolous, and even childish in his amusements and occupations. On the other hand, it is clear that he was not insane, and although the evidence embraces a period of more than flft3' years, and an account of most of the trans- actions of his life, there is no satisfactory evidence of a single act, denoting that he was laboring under delusions, or Indicating such a degree of folly as to show that he was unfit to be trusted with the man- agement of his own concerns. Though certainly not a man of business, he was capable of transacting the ordinary aflFairs of life, and the letters produced under his hand, and the parol evidence of the annual settle- ment of his accounts, and attendance at the bankers, distinctly show that he paid considerable attention to his pecuniary concerns, and was competent to the conduct of his own affairs. It is not indeed disputed on one side but that he was of testable capacitj-, nor on the other that he was a person of weak mind : as to the extent of that weakness, there is a difference, but admitting its existence, even to the degree represented on the part of the appellant, the only consequence will be, that it adds to the suspicion which -unquestionably belongs to the cir- cumstance of the attorney who prepared the will taking no less than a fourth of the estate, and the legatees taking the whole to the exclusion of his own familj-, and calls upon us to watch the proof of the will itself with increased jealousy and suspicion. The question is, whether these grounds of suspicion have been satis- factorily removed, and the instrument proved to be the real will of the testator himself. That he should pass over his own relations is ren- dered highly probable under the unhappy circumstances of this case. If, all the other facts of the case being as they were, he had lived on terms of affectionate intercourse with his son ; had received him occasionally as an inmate of the house, or had habitually corresponded with him, and had always expressed for him parental regard, the case would have been one of much greater suspicion, and more difficult to SECT. III.] BAERY V. BUTLIN. 65 decide than it is ; but, unhappily, there is proof of estrangement from his only son, so clear and distinct as to admit of no doubt, and upon grounds which, whetlier the charges against the son were true or false, cannot assuredly be deemed irrational. Though Mr. Barry Barry had been guilty of violent conduct which is deposed to by some of the witnesses, and that operating on the timidity of his father, might have sometimes excited his fears ; it is clear from the correspondence that his father was on a friendly footing with him, and professed much regard for him, even after that gentleman had absconded to avoid being taken on a bench warrant, founded upon the charge against him ; but after the time that he declined to take his trial at the assizes, in March, 1814, and thereby afforded a strong ground for believing that the charge was true ; all intercourse ceased, the deceased never wrote to, or saw his son afterwards — he held no communication whatever with him, and in December, 1819, when in the absence of Whitehead and Butlin, under whose control the deceased is supposed to have been, Mr. Barry Barry went to his father's house, his father of his own accord excluded him from his presence, and it appears to be clear that from the month of March, 1814, he ceased to speak of him except as an unfortunate and unhappj' man. In this state of complete aliena- tion from his son, it is by no means unnatural to suppose that he would not make him the object of his bountj', but that he would seek else- where for those on whom he would bestow it. After his daughter's death in 1821, he had no relations except the Neales : from them also it is equally clear that his regards, if he ever entertained any, were estranged. With Pendock, who died in Septem- ber, 1816, he had unfortunately quarrelled, and he kept up no intercourse with the other members of that family : under these circumstances it is highly probable that he would make a will in order to prevent his son enjoying his property, and that as none of his relations were on terms of friendship with him, he would bestow his bountj- on those persons who were ; and none seem to have been in habits of intercourse with him more than Mr. Percy and Mr. Butlin, and it is by no means improb- able that he would give a part to an old servant in whom he had reposed great confidence and trust. It is true that this confidence was in some respect misplaced, and Whitehead seems to have taken liberties in his master's house which he could hardly have sanctioned ; but still it does not appear that his master knew it, and he was intrusted to the last with the management of his domestic affairs. With these probabilities then in favor of the will propounded, let us look at the evidence of the factum, which, though not so strong as direct proof of written instructions, to the full extent of the will, or direct proof that it was read over, is still of a very satisfactory nature, and, with the other circumstances to which I have adverted, leaves the mind permanently satisfied that the instrument expresses his real wishes. In the first place, it is a fact beyond dispute that Mr. Percj', who prepared the will, at all events meant that it should be fairly and 5 66 BARRY V. BUTLIN. [CHAP. I. openly executed in the presence of respectable witnesses. Mr. Smith was certainly applied to by him for that purpose, and could not attend. Dr. Davidson and Mr. Chapman, all answering that description, did attend. This circumstance is strong to prove the absence of clan- destinity and fraud. There were instructions for the burial and funeral, in the handwriting of the testator. These prove no more than that his mind was directed on the subject of arrangement after his death ; but they do not carry the case further, they do not lead necessarily to the inference that he had a will in view ; but Exhibit C. is proved by a witness named Gough (and there is no fair ground to disbelieve his evidence) to have been transmitted to the deceased. It incorporated the Memorandum J)., and was a draft of the will, and that draft, in a page of it which con- tains the legacies to Whitehead and his wife, is twice altered in the handwriting of the testator ; which distinctly proves that his mind was employed on the subject, and affords reasonable evidence that he was cognizable of its contents. In addition to this, Gough proves that it was Mr. Barry who sent him to desire Mr. Chapman " to come and see him execute his will." He also sent him with the same message to Dr. Marsden, but that gentleman was not at home ; Dr. Davidson, who did attest it, expressly swears that Mr. Barry declared it to be his last will and testament, and requested him and Mr. Chapman to witness it ; and he adds his belief that Mr. Barrj' was of perfectly sound mind, memory, and understanding, and capable of doing any act which required thought, judgment, and reflection. It is suggested that there was some secrecy in the preparation of the will in Mr. Percy's office, for Nightingale, who was an old clerk, did not know it ; but we think that this does not raise any inference of this kind, as it may naturally be accounted for by the practice of intrusting different matters of business to different clerks, and if a fraud had been intended and concocted between three legatees it is rather more likely that Nightingale, who was an associate of Whitehead, should be employed, than Gough, who was not. We think, therefore, on the whole, that the evidence of the factum, coupled with the strong probabilities of the case, is sufficient to remove the suspicions which naturally belong to the case of all wills prepared by persons in their own favor, especially when made by those of weak capacity. The undue influence, and the importunity which, if they are to defeat a will, must be of the nature of fraud or duress, exercised on a mind in a state of debility, are insinuated but not proved. Whitehead's authority and power over his master is, no doubt, suf- ficiently established ; but that such authority and power were in any way exercised to procure this will to be made is only conjecture ; and there is nothing like proof of authority or control of any kind on the part of Butlin or Percy. . . . Tfie appeal must be consequently dismissed, and we think with costs.^ 1 See Burling v. Loveland, 2 Curt. 225 (1839). [See the remarks of Ruffin, C. J., in Downey v. Murphy, 1 Dev. & B. 82, 87-89 ; s. c. 4 Gray's Cas. Prop. 156, 167- 168 — Ed.] SECT. III.] PEOPLE V. DOWNS. 67 PEOPLE V. DOWNS. Court op Appeals of the State op New York, 1890. [Eeported 123 N. V. 558.] Appeal from judgmeat of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 26, 1889, which reversed a judgment convicting defendant of the crime of manslaughter in the first degree, entered upon a verdict of the Oyer and Terminer, and granted a new trial. The defendant was indicted for the crime of murder in the first degree. The facts, so far as material, are stated in the opinion. Jy. JEJ. Griffiths for appellant. Orin Gambell for respondent. Finch, J. The defendant was convicted of manslaughter in the first degree, but the General Term has reversed that conviction for alleged error in the charge to the jurj' ; and from that reversal the people have appealed to this court, insisting that the charge, fairlj' construed, was correct and violated no established legal rule. The prosecution proved the corpus delicti, the death of Logan and the violence which caused it, by direct evidence which was in no re- spect disputed. His dead body was found upon the premises of the prisoner shot through the heart. The bullet had penetrated his clothing and entered his breast in a manner indicating that he was facing his antagonist when the shot was fired. The absence from the clothing of the deceased of anything like scorch or stain of powder was claimed to indicate that the weapon when fired was not in contact with his person, but at some distance from him, greater or less. The bullet was taken from the body. A pistol was found in the prisoner's room under his bureau, having ten chambers, the central one carrying a bullet of thirty- two caliber, and the nine surrounding it of twenty-two. A discharged shell was found in the central chamber which the bullet taken from the body of the deceased fitted, while the nine smaller cartridges remained undischarged. On the day of the homicide, at about midnight, the prisoner aroused a neighbor named Morey and Dr. Harvie, saying to each that he had shot his best friend, or was afraid he had shot his best friend, but giving no explanation of the circumstances ; and they, going with him to the house, found Logan lying dead near the entrance to the summer kitchen. The prisoner. was pale and nervous, and on finding Logan dead was taken with a fit of vomiting, but made no effort to escape, and quietly surrendered himself to the oflBcers who were summoned and took him into custody. He was entirely sober, and there was no evidence of intoxication. His previous relations with Logan, who was a married man, were those of intimate friendship with- 68 PEOPLE V. DOWNS [CHAP. I. out anj'thing to mar or disturb it. That was the case made by the prosecution, and it presented to the jurj^ a problem with verj' slight material for its solution. That Logan met his death from a pistol dis- charged in the hands of Downs was sufficiently proved ; but whether the shot was fired intentionally or accidentall3', and if intentionallj', for what reason, did not appear. The evidence disclosed no possible mo- tive for an intentional homicide, and left the character and grade of the crime, if one had been committed, an unexplained mj'sterj'. One cir- cumstance, however, would be sure to attract the attention of an intel- ligent jury. They would ask how Logan came to be at the rear of the house, near the entrance to its living rooms, at midnight, and what he was doing there when he should ha^'e been at home with his family. The saloon was in the front part of the house opening on to the street. It was closed for the night ; and there had been no brawl or quarrel or disturbance there during the evening. The presence of Logan in the rear of the house, at or near midnight, and the absence of any previous quarrel or difficulty, would make it reasonably certain that something due to his presence, and sufficiently grave and serious to account for an intentional or accidental homicide, had actuallj' occurred. What that was we have no means of knowing except through the explanation given by Downs and his wife. He testifies, in brief, that he was aroused bj' the noise of a scufHe in the back kitchen ; that he seized the pistol which laj* upon a stand near his bed and rushed out ; that he found Logan and Mrs. Downs on the floor in the act of adultery or rape, according as the woman was consenting or resisting ; that he seized Logan, who at once attacked him, and in the struggle the pistol went off ; and that this was after the woman had left the room, and, as she says, while she was at the front door going out for help or escape. She testifies that Logan seized her and threw her down, but does not say whether with her consent or why she made no outcry. Of course, this explanation was open to the criticism of the prosecu- tion and the consideration of the jurj'. The principal fact sworn to has a strong probabilitj- in its favor. It accounts for the presence of Logan, at midnight, on the premises where he had no right to be, and furnishes the needed motive and explanation of the homicide which occurred. Without it we cannot understand the event ; with it we can easily see how it did occur or how it might have happened. It sup- plies both motive and occasion. But granting so much, the rest does not necessarily follow, and it was still for the jury to saj' whether the shooting was accidental or intentional, whether justifiable or excusable, whether with deliberate purpose or in the heat of passion and without intent to kill. It is obvious that in their consideration of these questions very much would depend ou the charge of the court as to the burden of proof, and the operation and extent of the rule relating to a reasonable doubt. That such doubts might easily arise in many and diflferent direc- SECT. III.] PEOPLE V. DOWNS. 69 tions, is quite apparent from the facts to which we have adverted. Take, for example, the prisoner's statement that the pistol exploded in a fight between him and Logan and without his conscious act. If that be true, while there was a homicide, there was no crime, for the killing would become merel}' an accident or misadventure. If now the burden is upon the prisoner to satisfy the jury of that fact, and unless they are so satisfied, they must deem the homicide intentional, a verdict of guiltj' might easily result. But if that burden is not upon the prisoner, if the jury are told that it remains with the prosecution, that if the evi- dence leaves in their minds a reasonable doubt whether the killing may not have been an accident or misadventure, the prisoner must have the benefit of the doubt, because .it goes directly to the vital elements of the People's case, and leaves it uncertain whether a crime has been com- mitted at all, the verdict of the jury might be entirely different. A similar result might attend a defence of justifiable homicide, and so the question of the burden of proof and the scope and effect of a reasonable doubt became in the case at bar of very great importance. We have decided so recently as to make further citation needless / that the rule that in criminal cases the defendant is entitled to thel benefit of a reasonable doubt applies not only to the case as made by the prosecution, but to any defence interposed. People v. Riordan^ 117 N. Y. 71. And we had earlier held under the statute defining the different classes of homicide that whether it was murder or man- slaughter in one of the degrees, or justifiable or excusable, and so no crime at all, depended upon the intention and circumstances of its per- petration, and, therefore, mere proof of the killing raised no legal im- plication of the crime of murder. Stokes v. People, 53 N. Y. 177. I think the charge in this case ran counter to these rules and was calculated to impress upon the jury a conviction that proof Of the homi- cide carried with it a legal implication of crime which shifted the burden of proof upon the prisoner, and required him to satisfy the jury that the killing was either justifiable or excusable at the peril of a conviction if he should fail in his attempt. The learned trial judge began his charge with the definitions of the statute, and very fairly and correctly explained its classification of the different forms of homicide. Having done so, he approached the rules which should govern the jury in deciding between them, and in so doing used expressions to which exceptions were taken. He said : " Now it is for you to say to which one of these classes of crime this evidence points. Here has been a homicide ; here has been a human life taken. It becomes a serious question as to whether or not a man shall execute the law or execute vengeance upon his fellow. If he does, he must do it at the peril of either being punished for it, or being able to excuse himself when called upon to answer to the wrong within one of the excuses that is fixed and given in the law. If he is not, he must be found guilty of one or the other of the crimes which are imputed to him by reason of the homicide." A jury could hardly fail to understand 70 PEOPLE V. DOWNS. [CHAP. L from this language that a homicide, the fact of a human life taken, involved a legal implication of murder, which must compel a verdict of guilty, unless the prisoner is able to excuse himself within the statutory definitions. If there was room to doubt about the meaning, it became plainer from what followed. The learned judge added : "If you ^-eacA the conclusion that he was justified in taking the life of this man within the definitions given in the books — not within anj' notions of your own, but within the definitions given in the law — if you reach the con- clusion that he was justified, then your verdict will be one of acquittal." Here the same idea is conveyed in another form. To acquit, the jury must " reach the conclusion " that a justification has b^en established. It is evident that the prisoner's counsel so understood the charge, and after excepting to it, made a series of requests with a view of more clearlj' ascertaining the meaning of the charge or procuring a modifica- tion of its terms. He asked" the court to charge "that no state of proof ever changes the burden of proof ; the burden remains through- out the trial upon the people." To which the learned judge replied: " I decline to charge it in those words ; I qualify it by saying, that if the people establish the homicide by the use of a deadl}' weapon com- mitted by the defendant intentionally and with deliberation, that then any excuse for the commission of that crime or the commission of that act must come from the defendant.'*^ The understanding of the jury of the position of the court was quite likely to be that the burden did not always rest on the prosecution, but when & prima facie case of murder had been made, the burden shifted to the defendant who sought to ex- cuse or justify.. And this is in precise accord with the previous charge that where a homicide was shown to have been committed by the pris- oner, he must be convicted unless he is "able" to justify or excuse the act, and unless the jury " reach the conclusion" that there is legal excuse or justification. And then, to further test the attitude of the court, the defendant's counsel asked for a charge "that there is no legal implication from the fact of the shooting that the defendant in- tended to take the life of Logan." That was declined and an exception taken. ^ Now, construing together what the court said and what it refused to say, I think it is obvious that the jury were likely to act under the impression that a homicide proved implied crime on the part of the slayer ; that a conviction must follow unless the prisoner justified or excused the act ; that the burden of that defence was upon him, and that, to secure acquittal, he must be able to show a legal justification or excuse, and the jury must reach that conclusion if it would acquit. '^ The learned district attorney, however, insists that the court did charge that the guilt of the prisoner must be established beyond a reasonable doubt, and refers to several passages in which that was said. A reference to them indicates that none of them related to the defence of justification or excuse, nor did they indicate that a reasonable doubt would operate in the prisoner's favor beyond the case made by the SECT. III.] , HINGESTON V. KELLY, 71 prosecution. Thus, in describing the character of the proof requisite to establish the corpus delicti, as distinguished from tiie guilt of the prisoner, the court said the former must be proved by direct evidence, and the latter beyond a reasonable doubt. In describing the killing of Logan, the court said: "I do not know that it is controverted on either side that he came to his death by a bullet, a pistol shot as almost conceded, but you are to find that fact. If there is any doubt about it, of course the defendant has the benefit of the doubt." Upon request of the prisoner's counsel, the court also charged " that it is incumbent upon the people to prove aflSrmatively, beyond a reasonable doubt, what grade of crime, if any, was committed ; " and also, upon the like request, "that if, upon the whole evidence of the people and the de- fendant taken together, there is a reasonable doubt in the minds of the jury as to whether or not the defendant discharged the pistol at Logan with intent to kill him, they must acquit the defendant of the crime of murder in both degrees." 1 am unable to see that these expressions at all modify or control what was said and refused to be charged as to the burden of proof and the manner in which justification or excuse should be proved. They fall verj^ far short of a cure for the error which was committed. Taking the charge together and construing it as a whole, I am unable to resist the conviction that, in the minds of the jury, it shifted the burden of proving his defence upon the prisoner, and de- prived him, as to that defence, of the benefit of a reasonable doubt. While there is no legal implication of the crime of murder from -the bare fact of a homicide, the jur}' may infer it as a fact, and may do so even though no motive is assigned for the act, and the case is bare of circumstances of explanation. People v. Convoy, 97 N. Y. 77. But the inference is one of fact which the jury must draw, if such seems to them to be their duty, and not one of law which the court may im- pose upon their deliberation, and then upon that assumption shift the burden upon the prisoner and require him to prove that no crime has in fact been committed. We think, therefore, that the order of the General Term reversing the judgment of conviction was right and should be afllrmed. All concur, except Eugek, C. J., not voting. Judgment affirmed. HINGESTON v. KELLY. EXOHEQUEK. 1849. IR^-porUd 18 L. J. {Exch.) 360.] This was an action for work and labor. The plea denied the defend- ant's liability. At the trial, before Lord Denman, C. J., at Dorchester, at the Spring Assizes for 1849, it appeared that the plaintiff was an attornej', and with 72 HINGESTON V. KELLY. [CHAP. I. the assent of the defendant acted for the defendant as an election agent in a contest for the borough of Lj-me Regis, which the defendant was a candidate to represent in parliament. It also appeared from the evidence of the plaintiff's witnesses, that the plaintiff had voted for the defendant at the election, although a paid agent is not permitted by law to vote. The defendant produced evidence to show that it was agreed that the plaintiff's services were to be given gratuitous] 3'. His Lordship in summing up told the jury, that the plaintiff, having proved the services rendered, wa,s prima facie entitled to be paid, and that they should find for the plaintiff, unless the defendant had distinctly proved to their satisfaction that the contract was that the services were to be gratuitous, in which case they ought to find for the defendant. The jury found for the plaintiff. In the following term — Crowder obtained a rule for a new trial, on the ground of mis- direction. Stock now showed cause. — Prima facie the plaintiff was entitled to be paid for his services. [Paeke, B. — Is not the prima facie case of the plaintiff's right to payment affected by the fact of his voting, which would not be law- ful if he were a paid agent? Does it not amount to a declaration or an admission that he was not to be paid ?] The defendant's saj'ing that he would not have a paid agent at one particular time proves nothing. It may have been merely a blind. It does not disprove the right to remuneration. The 7 & 8 Geo. 4, c. 37, s. 1, which forbids a paid agent voting, renders the voting unlawful, but does not deprive the plaintiff of his right to payment. [EoLFB, B. — I do not think much depends on the voting. Though wrong, it is often agreed that the paid agents dn both sides vaa,y vote.] [Alderson, B. — I do not think we could disturb the verdict on the ground of the plaintiff having voted. But has the case been put to the jury in a right manner? The question is, whether the defence of the services being gratuitous has not been put to the jury as a plea to be proved hy the defendant. Suppose the jurj' were to have said, " It is not clear to us whether the plaintiff was or was not to be paid," which way should the verdict have been ?] All his Lordship said was, that finding services rendered prima facie imported paj'ment. If a defendant sets up that the services are not to be paid for, he ought to prove it clearly. [Parke, B. — No. If the defendant makes it doubtful only whether the services were to be gratuitous, it is sufficient. Has not the onus probandi been shifted on to the wrong shoulders?] The error, if any, is merely a verbal misdirection. [Alderson, B. — I think it carried the verdict.] Crowder and Barstow, contra, were not called on. Parke, B. — The great difficulty in my mind is whether, looking to Lord Denman's summing up, the jury understood that the burthen of SECT. III.] CEOWNINSHIELD V. CEOWNINSHIELD. 73 proof still lay on the plaintiff. Tlie burthen of proof was never altered. The plaintiff being a professional man, and performing pro- fessional services, was prima facie entitled to remuneration. His voting, indeed, was "an act which amounted to a statement by himself that he was not to be paid. Still, if the case had rested there, the jur^-, notwithstanding the voting, might have believed that the contract was that the plaintiff was to be paid. Then came the evidence for the de- fendant to show that the agreement was tliat the plaintiff should not be paid. After tliis was given, the question for the jury still remained, whether on the whole evidence the plaintiff had made out his title to remuneration. I think, if I had been a juryman, that on the facts of this case I should have found my verdict against the part}', whether the plaintiff or the defendant, on whom I was told by the judge that the burthen of proof lay. Alderson, B. — If the case was left in doubt, the plaintiff ought not to succeed. EoLFE, B. — I think if Lord Denman had kid it down as he doubtless intended, it would have been correct. But he appears to have said, that the plaintiff has proved something which entitles him to a verdict, unless the defendant proves a discharge. I think the jurj- must have under- stood from this that it lay on the defendant to make out his cas e. There must be a new trial. (p>,7^ nhcfniiitA CEOWNINSHIELD v. CEOWNINSHIELD. Supreme Judicial Court of Massachusetts. 1854. [Reported 2 Gray, 524.] Appeal by the heirs at law of Edward Crowninshield, deceased, from a decree of the judge of probate, allowing the probate of his will. Trial before Bigelow, J., by whose direction the following issue to a jury was framed : The appellee, who was ' the executor named in said will, pleaded " that the said Edward Crowninshield, at the time of exe- cuting the said paper writing, was a person of sound and disposing mind ; and this he is ready to verify." The appellants replied " that they deny that, at the time of executing the aforesaid paper writing, the said Edward Crowninshield was a person of sound and disposing mind, in manner and form as by the said appellee is above alleged ; and of this they put themselves on the countrj'." And the appellee joined the issue. "The appellants proved that, at the time of making and executing said instrument, the said Edward Crowninshield was under guardian- ship by a decree of the judge of probate, as an insane person, being a person non compos mentis. The court instructed the jury that the burden of proof, in a case of this kind, when the supposed testator was 74 CEOWNINSHIELD V. CEOWNINSHIELD. [OHAP. t under guardianship as an insane person at ttie time of mailing and exe- cuting the alleged will, was upon the party propounding the will, to show that the supposed testator was at that time of sufficient mental capacity to make and execute said will. The verdict of the jur}' was that, at the time of making the instrument propounded for probate, the said Edward Crowninshield was not of sound and disposing mind and memory. If this instruction on the burden of proof was erroneous, the verdict is to be set aside ; otherwise, a decree is to be entered, disal- lowing the instrument propounded for probate as the last will of said Edward Crowninshield." 0. P. Lord and S. G. Bancroft, for the appellee. S. JS. Phillips, for the appellants. Thomas, J. This case is before us on the report of the presiding judge. At the time of the execution of the instrument offered for pro- bate, the, testator was under guardianship, as- an insane person. The presiding judge ruled that, under this state of facts, the burden of proof was upon the party seeking probate of the will, to show that, at the time of its execution, the testator was of sound mind. The verdict was that the testator was of unsound mind. If the ruling of the pre- siding judge was erroneous, the verdict is to be set aside; if right, judgment is to be entered on the verdict. When one dies owning real or personal estate, the law fixes its de- scent and distribution. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to lake effect after his death. This is done bj' a last will and testament. To make such will, certain capacities are requisite in the maker, and cer- tain formalities for its due execution. The capacities of the maker are prescribed by the Eev. Sts. c. 62, §§ 1, 5. " Every person of full age and of sound mind, being seized in his own right of any lands, etc., may devise and dispose of the same by his last will and testament in writing." " Every person of full age and of sound mind may, by his last will and testament in writing, be- queath and dispose of all his personal estate, remaining at his decease, and all his right thereto and interest therein." The formalities are prescribed by the sixth section of the same chapter. " No will, excepting nuncupative wills, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and bj' his express direction, and attested and subscribed, in the presence of the testator, by three or more competent witnesses." When, therefore, a will is offered for probate, to establish it, to enti- tle it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will, to wit, that he was of full age and of sound mind, and that in the making of it the requisite formalities have been observed. The heirs at law rest securely upon the statutes of descents and distribution, until some legal act has been SECT. III.] CKOWNINSHIELD V. CEOWNIKSHIELD. 75 done by which their rights under the statutes have been lost or impaired. Upon whom, then, is the afHrmative? The party offering the will for probate says, in effect, This instrument was executed with the requisite formalities by one of full age and of sound mind ; and he must prove it ; and this is to be done, not by showing merely that the instrument was in writing, that it bears the signature of the deceased, and that it was attested in his presence by three witnesses ; but also that it was signed by one capable of being a testator, one to whom the law had given the power of making disposition of his property by will. This is the doctrine of the earliest case upon the subject in our re- ports. Phelps v. Ilartwell, 1 Mass. 71. It was there argued by the appellees that the burden of proof was with the appellants, opposing the will ; and that it was incumbent on them to show that the testator was not'of sound mind at the time of the making of the will. " But the whole court held that the rule was the same in this case as in all others. The burden of proof is always with those who take the affirma- tive in pleading. Here the appellees have the affirmative, and must therefore produce reasonable and satisfactorj' evidence to the jury that the testator was sane at the time of 'making the will." In Blaney v. Sargeant, in the same volume, it was held that the party wishing to establish the will, having the affirmative, was entitled to the opening and close. 1 Mass. 335. And such has been the uniform practice of this court. These cases but recognize and confirm a familiar and well-settled rule of pleading, as of logic, that he who affirms the existence of a given state of facts must prove it. There may be different modes and instru- mentalities of proof; but the burden is on him who affirms, and not on him who denies. The doctrine of the case of Brooks v. Barrett, 7 Pick. 94, is doubt- less, to some extent,- in conflict with that of the earlier cases ; and so it is, also, with that of the later ; and as much of the confusion existing upon this subject may have arisen from that case, it may be well to ex- amine it with some care. In that case, as in Phelps v. JSartweU and Blaney v. Sargeant, it was held that the opening and close were with the executor, as the affirmative was with him. It was also said that "by our statute of wills, all such instruments must be offered for proof in the probate office, and the subscribing witnesses are to be there produced ; and these witnesses are to testify, not onlj' as to the execution of the will, but as to the state of mind of the testator at the time. Without such proof, no will can be set up. And this agrees with the English law on the same subject." Thus far the case is in harmony with the earlier ones. The affirmative is upon the executor, and he is to produce the statute evidence to show not only the execution of the instrument, but " the state of the mind of the testator at the time," that is, of course, that it was in a sound state, capable of making a will ; and, without 76 CEOWNINSHIELD V. CEOWNINSHIELD. [CHAP. I. such proof, no will can be set up. " Upon an appeal from the decree of the judge of probate, allowing or rejecting the will, it is to be proved in the appellate court, in the same manner as if first offered there for probate." The issue of sanity, however, in this court, is to the jury, and not to the presiding judge. Eev. Sts. c. 62,. § 16. The party, then, offering the will in this court for probate, is to produce the attest- ing witnesses to show the soundness of the testator's mind at the time of the execution of the will. Thus far all is plain. But the court proceeded to say ; " Being proved, however, by the subscribing witnesses, both as to its execution and the sanity of the testator, the will is to be set up and allowed, unless the party objecting disproves the facts thus established. So that the burden .of proof shifts from the executor to the heir or other person opposing the allow- ance of the will ; but in this, as in all cases where there is an affirma- tive point to be made out by one party, he is to open and close to the jury. If his own evidence, that of the subscribing witnesses, is defi- cient, he is to make out the affirmative from the whole case. If he makes out his case by the statute evidence, he has only to defend against the proof of insanity produced by the other party. And having produced the statute evidence, if the case is made doubtful by the evi- dence from the other side, the presumption of law in favor of sanity must have its effect in the final decision." And the court added : " The will having been sufficiently proved by the statute evidence, it was also rightly decided that the burden of proof in regard to insanity was upon the other party." We can perceive here no shifting of the burden of proof ; the issue throughout is but one : Was the testator of sound mind ? And the affirmative of this was upon the part^- offering the will for probate. Again ; that issue is an issue of fact, and is to the jurj'. And how is the .court to determine when the will is "proved" or "sufficiently proved" by the subscribing witnesses, i'so that the burden of proof shifts from the executor to the heir?" It is a question of the effect of evidence, and could only be solved by probing the mind of each juror. Suppose the attesting witnesses are divided in opinion ; one for the sanity of the testator, one against, the other doubtful ; or that two testify against the sanity of the testator, and the third that he was of sound mind, and the jury place greater confidence in the means of ob- servation, intelligence, judgment, and integi'itj' of the one than of the other two; or that all three testify (a case not without precedent), so far as it is matter of opinion, in favor of the sanit}' of the testator, yet, in view of all the facts and the circumstances detailed by the same witnesses, the jury reach a very different conclusion. If there could be a shifting of the burden upon a single issue, it would be impossible to tell when the burden is to be transferred from the one party to the other. It is quite difficult to understand what was meant by the court when they said, that "if he [the executor] makes out his case by,the statute SECT. III.] CEOWNINSHIELD V. CEOWNINSHIELD. 77 evidence, lie has onlj- to defend against the proof of insanity produced by the other party." The law has made no further distinction between the attesting and other witnesses, than that the opinions of the former may be given in evidence ; and even this distinction does not extend to professional witnesses. If the three attesting witnesses, being com- parative strangers to the testator, and called in for the mere purpose of witnessing the will, testify that, so far as they saw, the testator was of sound mind ; and the attending physicians, familiar with the facts and with the history of the party, testifj' that he was insane ; the law at- taches no peculiar weight to the testimony of the former as against the latter. Still less does it give it any such preponderance as to shift the burden of proof. The issue, after the evidence is all in, is precisely the same that it'was at the beginning — Was the testator of sound mind ? — an issue in its very nature incapable of division. If the court were to instruct the jury in the first place to examine and weigh by itself the testimony of the subscribing witnesses, and that, if they should find it sufficient, the burden of proof would shift upon those opposing the will, but, if deficient, it would remain with the executor, it would be compelling them to try the case twice ; first, to learn where the burden of proof was, and then where the truth was ; and they might be wholly unable to agree as to the weight to be given to the testimony of the subscribing witnesses, though they concurred in the result of the testimony as a whole. It not unfrequently occurs, in contested ques- tions of sanity, that, when the evidence is all in, very little importance attaches to the testimony of the subscribing witnesses ; because, from want of intelligence or opportunities of observation, they know very little of the matters in issue. Nor, though the concurring testimony of the subscribing witnesses may make a, prima facie case, is there any shifting of the burden of proof. The burden of proof does not shift when & prima facie case is made out. The remarks of Mr. Chief Justice Parker on this point, in the case we are considering, have not the usual discrimination of that most able and excellent judge. " The shifting of the onus probandi," he says, "is quite familiar in the course of trials. In a suit upon a promissory note or other written contract, the plaintiff produces his note, proves the signature of the defendant, and stops ; the defendant alleges payment, want of consideration, or other matter in defence ; the burden of proof is upon him, and yet the plaintiff opens and closes the argument." Things quite distinct are here confounded; want of consideration and payment. "Without a consideration there is no contract. The question, therefore, whether there was a consideration, is but a form of the question whether a contract was ever made. The burden does not shift. The production of the note, with the signature of the defendant, makes 2^. prima facie case against him ; and when no evidence is offered to the contrary, the plaintiff will of course prevail. But when evidence is offered by the defendant, and, it may be, in reply bj' the plaintiff, it 78 CEOWNINSHIELD V. CEOWNIKSHIELD. [CHAP. I. all applies to one and the same issue — Was there a consideration? if not, there was no contract. And the burden remains throughout upon him who affirms that a contract was made. This is now well settled. Tourtellot v. Bosebroole, 11 Met. 460 ; Delano v. Bartlett, 6 Cush. 364. But the plea of payment raises a new and distinct issue. It con- fesses the original contract, and seeks to avoid it. It aflflrms a subse- quent independent fact, the fact of paj'ment, and he who affirms it must prove it. It is a new issue made by the defendant. The burden is on him. And if he fails to prove his averment, and the plaintiff has proved his, the result is that the contract is proved, but its performance or discharge is not proved, and the plaintiff recovers. And see Powers V. BusseU, 13 Pick. 69. The ground taken by the counsel of the appellees is, that every man is presumed to be sane till the contrary is shown, and that the burden is cast upon those who impeach the sanit3-. If such presumption exists at all in respect to wills, it does not apply to the case of one under guardianship, as an insane person. Such guardianship is prima facie evidence of insanitj'. Stone v. Damon, 12 Mass. 488 ; Breed m. Pratt, 18 Pick. 115. Nor does the existence of a general presumption that men are sane change the burden of proof. It may stand in the stead of proof ; it may make a. prima facie case ; where the question of sanity is made, it may render necessary greater weight of evidence in him who seeks to impeach it ; but it does not change the burden of proof. But when the evidence is in, on the one side and the other, the issue still continues as before ; and he, to whose case the proof of such sanity is necessary', has the burden. To use the language of the court in Powers v. Bus- sell: " Where the proof on both sides applies to one and the same proposition of fact, the party, whose case requires the proof of that fact, has all along the burden of proof; though the weight in either scale may at times preponderate." 13 Pick. 76. . . . On the whole matter, we are of opinion, that where a will is offered for probate, the burden of proof, in this commonwealth, is on the exec- utor or other person seeking such probate, to show that the testator was, at the time of its execution, of sound mind; that if the general presumption of sanity, applicable to other contracts, is to be applied to wills, ^ it does not change the burden of proof; that the burden of proof does not shift in the progress of the trial, the issue throughout being one and the same ; and that if, upon the whole evidence, it is left un- certain whether the testator was of sound mind or not, then it is left uncertain whether there was under the statute a person capable of mak- ing the will, and the will cannot be proved. Judgment on the verdict.^ 1 In Baxter v. Abbott, 7 Gray, 71, it was held that the usual presumption of sanity applies in the case of wills. — Ed. 2 As to the ambiguity of the phrase "burden of proof," see 4 Harv. Law Kev. 49-55, 65-69. — Ed. SECT. IV.] , PRELIMINARY TOPICS. 79 SECTION IV. presumptions. Note. Much of the substantive law is expressed presumptively, in the form of prima facie, rules. This evidential form of statement leads often to the opinion that the substance of the proposition also is evidential, and then to the further notion, that inasmuch as it is evidential it belongs to the law of evidence. That is an error. In a reasoned body of law like ours, much of it comes about by "intendments." In ap- plying statutory law also, this takes place, but far less conspicuously than in the com- mon law. If we suppose any fundamental proposition of the substantive law, e. g. that when , in negotiating for a sale of specific personal property, the event X happens, with the intention of both parties to sell the property, the sale actually takes place, we ob- serve that this comes to be attended by a crop of subsidiary rules, such as that when Y happens, this necessary intention of the parties presumably exists.! The question of intention is not closed to evidence by this rule, — the matter lies wholly open ; but, in applying the law, a certain prima facie effect is given to particular facts, and it is not merely given to them once, by one judge on a single occasion, but it is imputed to them habitually, and by a rule which is followed by all judges, and recommended to juries, and even laid down to juries as the binding rule of law. Accordingly the sub- stantive law gets into this shape, that when, in a negotiation for a sale of specific personal property, X happens, with the intention on both sides to sell the property, the sale takes place then ; and when Y happens, this intention presumably exists. Or, to put it shorter, "when X and Y happen in a negotiation for a sale of specific personal property, presumably the sale takes place." Blackburn, in stating these rules, calls them rules of " construction ; " that is to say, rules of the substantive law de- signed to aid in interpreting the words and conduct of men.^ In such cases, that which is evidential merely, — that is to say, the foundation of a logical inference as to the existence of one of those ultimate facts to which alone, in the first instance, the substantive law annexes its consequences, — has itself become the subject of a rule of substantive law, and comes to have certain consequences di- rectly annexed to it. They are annexed to it originally, because it is in some degree evidential of the ultimate fact ; while the having of a rule about it at all is rested on grounds of policy. The courts have, perhaps, seemed to themselves to abstain from legislation, and to be keeping within the region of mere administration of the existing law, by the expedient of making the rule a prima facie one. And yet it is clear that this is true legislation. One may occasionally trace it until it ripens into open and confessed legislation, as in Dalton, v. Angus.^ To say, as is sometimes said, that in such cases there is "a rule of law that courts and judges shall draw a particular infer- ence," * is, perhaps, intended as a mere mode of expression ; but it is misleading, as ! Blackburn, in his admirable book on Sale, 1st ed., pp. 151-154, gives two such rules, "of which there is no trace in the reports before the time of Lord EUenborough " (A. D. 1802-1818). ^ " A rule of construction may always be reduced to the following form : certain words and expressions which may mean either X or Y shall prima fade be taken to mean X. A rule of construction always contains the saving clause : ' unless a contrary intention appear,' . . . though some rules are much stronger than others and require a greater force of intention in the context to control them." Hawkins, Wills, preface. ' 6 App. Cas. 740 ; 2 Greenl. Ev., s. 539. ♦ Stephen, Dig. £7., art 1, defining "Presumption." 80 PEELIMINAEY TOPICS. [CHAP. I. involving the misconception that the law of evidence has any rules at all for conduct- ing the logical process. It would be accurate to say that the rule of law requires a judge to stop short in the process of drawing inferences, or not to cuter upon it at all ; to assume for the time that one fact is, in legal effect, the same as a certain other. The rule fixes the legal effect of a fact, its legal equivalence with another. And it makes no diiference in the essential nature of the rule whether this effect is fixed absolutely OT prima facie : it gives a legal definition. Such is the nature of all rules to determine the legal effect of facts as contrasted with their logical effect. To prescribe a certain legal equivalence of facts, is a very different thing from merely allowing that meaning to be given to them. A rule of presumption does not merely say snch and such a thing is a permissible and usual inference from other facts, but it goes on to say that this significance shall always, in the absence of other circumstances, be imputed to them, — sometimes passing first through the stage of saying that it ought to be imputed. I have already said that the nature of these rules is brought out when they ripen from being a mere jorima /acie doctrine into an absolute and incontrovertible one. The familiar doctrine about prescription used to be put as an ordinary rule of presumption ; in twenty years there arose a, prima facie case of a lost grant or of some other legal origin. The judges at first laid down that, if unanswered, twenty years of adverse possession justified the inference ; then that it " required the inference," i. e. it was the jury's duty to do what they themselves would do in settling the same question, namely, to find the fact of the lost grant ; and at last this conclusion was laid down as a rule of the law of property to be applied absolutely.^ It is evident, upon reflection, that the rule was always a rule of property, after it ceased to be a mere statement of a permissible inference ; of a mere logical fact, viz., that this was generally a right and wise conclusion. When the judges advised the jury, and afterwards directed them as a matter of legal duty, to find a lost grant under the circumstances indicated in the rule, they were indeed dealing with evidential, secondary facts, and they adopted the phraseology of reasoning and drawing inferences. But in reality they were laying down a rule of policy" which they themselves had determined to apply, and which they advised and directed their associates in administration, the jury, — their co- ordinate, and, in a degree, their subordinate associates, — also to apply ; a rule which made the twenty years' open and uncontradicted adverse possession a bar. Such ad- vice and such direction are natural and desirable when a presiding learned tribunal is instructing an unlearned one, whose action it has the right to revise ; for the adminis- tration of the law should be kept consistent In such cases the judges accomplish, through the phraseology and under the garb of " evidence," the same results that they have long reached, and are now constantly reaching, by the directer means of estoppel. The modern extensions of this doctrine broaden the law by a direct application of maxims of justice,' — a simple method, and worthy of any judicial tribunal which rises to the level of its great oflSce ; and yet one not quite in harmony with the general attitude of our common-law courts and their humble phraseology in professing to abdicate the oflice of legislation. But inasmuch as every body of men that undertakes 1 Dalton V. Angus, 6 App. Cas. 740 ; Wallace v. Fletcher, 30 N. H. 434 ; 3 Gray's Cases on Property, 127 et seq. 2 See Lord Blackburn in Dalton v. Angus, 6 App. Cas. 808 et seq. 3 It is such things to which Mr. Justice Erie refers in a fine passage* where he speaks of Lord Mansfield as "tracing the law upon the question [of copyright in Millar v. Taylor] to its source in the just and useful. And Lord Mansfield's authority in this matter outweighs that of Lords Kenyon and EUenborough, not only . . . , but also because these successors of Lord Mansfield appear to me to have turned away from that source of the law to which he habitually resorted with endless benefit to his country." Jefferys v. Boosey, 4 H. L. C. 876. See also Mr. James C. Carter's pow- erful address on "The Provinces of the Written and the Unwritten Law." New York : Banks & Brothers, 1889. SECT. IV.] PRELIMINARY TOPICS. 81 to administer the law must, in fitting it to the ever-changing combinations of fact that come before them, constantly legislate, Incidentally and in a subsidiary way, it is best that this should be openly done ; as it really is in the cautious extensions of the prin- ciple of estoppel. The same thing has taken place by presumptions, only it was more disguised. By merely handling "evidence," and fixing upon it a given quality, the judges' denial of any right to make the law has seemed to moult nofeather. . . . The characteristic of all these instances is the same. Matter, logically evidential, has become the subject of a legal rule annexing consequences directly to it ; and this rule takes its place in the substantive law as a subsidiary proposition, alongside of the main and fundamental one, as an aid in the application of it. The law, as I have said, is always growing in this way, through judicial determinations ; for the applica- tion of the ultimate rule of the substantive law has to be made by reasoning ; and this process is forever discovering the identity, for legal and practical purposes, of one state of things with some other. Many facts and groups of fiicts often recur, and when a body of men with a continuous tradition has carried on for some length of time this process of reasoning upon facts that often repeat themselves, they cut short the pro- cess and lay down a rule. To such facts they affix, by a general declaration, the char- acter and operation which common experience has assigned to them. Relating, as these declarations do, to specified facts, and groups of facts, and certain aspects and consequences of them, they belong to that part of the substantive law which deals with these particular things ; and as Stephen truly remarks,! they can be understood only in connection with these branches of the law. Tl^ey do not belong to the law of evidence. When it is said that if persons contract for the sale of a specific chattel, it is presumed that the title passes ; and that when a man voluntarily kills another, ' without any more known or stated, it is presumed to be murder ; and that when a written communication to another is put in the mail, — properly addressed and postage prepaid, — it is presumed that the other receives it ; and that when one has been absent seven years and no knowledge of him had by those who would naturally know, death is presumed ; in these cases, rightly considered, we have particular pre- cepts in the substantive law of so many different subjects, — of property, of homicide, of notice, and of persons. . . . I have been speaking of rules relating to specific facts or groups of facts. But sometimes the facts or the situation dealt with are not referable to any one branch of the law, but spread through several or through all of them. Then you have a general principle of legal reasoning. There are many such maxims, which pass current under the name of presumptions, — maxims, ground rules, which must be remembered and applied in all legal discussion, such as those familiar precepts that omnia praemmuntur rite esse acta, probatis extremis praesumjmtur media, and the like. And again, in all legal discussion, the existence of the usual qualities of human beings, such as sanity, is assumed, and their regular and proper conduct, and so honesty and conformity to duty.^ Many of these maxims and ground principles get perversely and inaccurately expressed in this form of a presumption, as when the rule that ignorance of the law excuses no one, is put in the form that every one is presumed to know the law ; ' and when the doctrine that every one is chargeable with the natural consequences of his conduct, is expressed in the form that every one is presumed to intend these conse- quences ; and when the rule that he who holds the affirmative must make out his case, is put in the form of praesumitur pro negante. As to such statements, in what- ever form they are made or ought to be made, their character is the same, that of general maxims in legal reasoning having no peculiar relation to the law of evidence. ' } ! Dig. Ev., note xxxv. ^ De qudlibet homine praesumitur quod sit bonus homo, donee probetur in contra- rium. Bracton, fol. 193. ' "There is no presumption in this country that every person knows the law ; it would be contrary to common sense and reason if it were so." Maule, J., in Martin- dale V. Falkner, 2 C. B. 719. 6 82 PRELIMINAEY TOPICS. [CHAP. I. If, now, it be asked. What particular effect have rules of presumption in applying the law of evidence ? the answer seems to be that they have the same effect (and no other) which they have in all the other regions of legal reasoning. Their effect results necessarily from their characteristic quality. This quality imputes to certain facts or groups of fact a certain prima facie significance or operation. In the conduct, then, of an argument, or of evidence, they throw upon him against whom they operate the duty of meeting this imputation. Should nothing further be adduced, they settle the question involved in them in a certain way ; he, therefore, who would not have it settled so, must show cause. This appears to be the whole effect of a presumption, and so of a rule of presumption. There are various rules 6f presumption which appear to do more than this, — to fix the amount of proof to be adduced, as well as the duty of adducing something. But the presumption, merely as such, goes no further than to call for proof of that which it negatives, i. e. for something which renders it probable. It does not specify how much ; whether proof beyond a reasonable doubt or by a pre- ponderance of all the evidence, or by any other measure of proof. From the nature of the case, in negativing a given supposition and calling for argument or evidence in support of it, there is meant such an amount of evidence or reason as may render the view contended for rationally probable. But beyond that a presumption seems to say nothing. When, therefore, it is said that the contrary of any particular presumption must be proved beyond a reasonable doubt, as is sometimes said, e. g. of the "pre- sumption of innocence " ^ and the presumption of legitimacy, it is to be recognized that we have something superadded tp the rule of presumption, namely, another rule as to the amount of evidence which is needed to overcome the presumjition ; or, in other words, to start the case of the party who is silenced by it. And so, wherever any specific result is attributed to a presumption other than tljat of fixing the duty of going forward with proof. This last, and this alone, appears to be the effect of the presumption. It is the substantive criminal law and the substantive law as to persons that fix respectively the rule about the strength of conviction that must be produced in the mind of the tribunal in order to hold one guilty of crime, or to find a child born in wedlock to be illegitimate. ... It may, perhaps, be gathered from what has been said that there seems to be nothing peculiar about conflicting presumptions. Rules of law often conflict ; and so do logical inferences. As regards rules of presumption, — all of them are rules of law, and it seems to make no difference, as regards the subject of evidence or legal reasoniug generally, whether they he called by one name or another, law or fact ; the effect is the same, — that which has been pointed out. In dealing with tlie s\ibject of evidence it is expedient to avoid the use of these terms, presumption of law and jiresumption of fact, for they do not help the discussion, and they are worse than useless, from their ambiguity.^ The mere judicial recognition of a probability or a logical inference is often called a presumption ; but in such cases there is no assertion of any rule. Presumptions and the Jukw of Evidence. 3 Earv. Law Itev. 148-151, 156-157, 164-166. In the mere process of guiding and supervising the jury, the judges have not only modified the manner of the jury's action in dealing with questions of fact, but have removed many such questions from their control. This has been done very extensively by laying down rules of presumption. These are sometimes not so much rules, as mere formula, indicating what judges recognize as permissible or desirable in the jury ; but often they are strictly rules for the decision of questions of fact. If it be said that when such a rule exists the question of fact merely ceases, wholly or in part, and turns 1 Steph. Dig. Ev., art. 94. " Presumption of innocence. If the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be prove- pened in years 1814, 1822, 1823, 1827, 1829, 1833, 1843, 1844, 184G, 1849, and 1850 respectively) the fees paid were 13s. (that is to say, 10s. for the rector and 3s. for the clerk), and that in nineteen of tiie twenty- one cases 3s. had been paid for the banns ; that in six of the thirty cases (which had happened in the years 1808, 1827, 1828, 1833, 1887, and 1848 respectively-) the fees paid were 13s. 6c?. ; and that in three of the six cases 2s. dd. had been paid for the banns ; and that in two of the thirty cases (one of which happened in the year 1828, and the other in the year 1840), the fees paid were 13s. 6c?., and 3s. for the banns ; and that in one of the thirty cases (which happened in the year 1828) the fees paid were 12s. Qd., and 3s. 6c?. for banns. And the plaintiff proved the following cases, viz. one ease in 1815, in which the fees paid were 10s. 6c?., and 3s. for the banns ; one in 1830, in which the evidence left it doubt- ful whether the fees paid were 13s., and 3s. for the banns, or 18s. 6c?., and 2s. 6c?. for the banns ; one in 1834, in which the fees paid were 16s. 6c?., and 3s. for the banns; one in 1847, in which the fees paid were 17s. 6c?., and 3s. for the banns ; one in 1853, in which the fees paid were 17s., and 3s. for the banns. In five of the thirty cases proved by the defendant there was not any evidence as to what sums had been paid for the banns, nor did it appear whether, or in what proportions, the money had been divided between the rector and the clerk, in any case in which the fee paid on a marriage in the church had been more or less than 13s. There was not any evidence as to wliat fees had been paid on mar- riages in the church prior to the year 1808. In the year 1849, the Eev. William Brown, who was then, and had been for many j-ears, rector of the parish, caused to be hung up in the vestry of the parish church of the parish, a table of fees with this head- ing: "Table of fees to be paid in the parish of Horton, count}- of Bucks ; " and in that table there are (inter alia) the following entries : For a marriage by banns, with certificate of marriage 10s. Oc?. For the publication of banns of marriage .... 3s. Oc?. For a certificate of marriage, baptism, or burial . . 2s. 6oe v. Nepean. The doctrine there laid down is, that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven j-ears ; that if it be im-y portant to any one to establish the precise time of such person's death/ he must do so by evidence of some sort, to be laid before the jurj- fc* that purpose, beyond the mere lapse of seven years since such perscpi was last heard of. j After fully considering the argument at the bar, we are all of opinion that the doctrine so laid down is correct. It is conformable to the pi^o- visions of the statute of James I. relating to bigamy, mpre particularly to the statute 19 Car. 2, c. 6, relating to this very matter, the words of which distinctly point at the presumption of the fact of death, but not at the time : it is conformable also to decisions on questions of bigamy and on policies of insurance, and it is supported and confirmed by the case of Rex v. Inhabitants of Harborne. It is true, the law presumes that a person shown to be alive at a given time remains alive until the contrary be shown, for which reason the onus of showing the death of Matthew Knight laj' in this case on the lessor of the plaintiflf. He has shown the death, by proving the absence of Matthew Knight, and his not having been heard of for seven years, whence arises, at the end of those seven years, another presumption of law, namely, that he is not then alive ; but the onus is also cast on the lessor of the plaintiflf of showing that he has commenced his action within twenty years after his SKCT. IV.] • NEPEAN V. DOE d. KNIGHT. 113 right of eatiy accrued, that is, after the actual death of Matthew Knight. Now, when nothing is heard of a person for seven j-ears, it is obviously a matter of complete uncertainty at what point of time in those seven j'ears he died ; of all the points of time, the last day is tlie most improbable, and most inconsistent with the ground of presuming the fact of death. That presumption arises from the great lapse of time since tlie part}' has been heard of ; because it is considered extra- ordinary, if he was alive, that he should not be heard of. In other words, it is presumed that his not being lieard of has been occasioned by his death, which presumption arises from the considerable time that has elapsed. If you assume that he was alive on the last da\' but one of the seven years, then there is nothing extraordinary in his not hav- ing been heard of on the last daj- ; and the previous extraordinary lapse of time, during which he was not heard of, has become immaterial by reason of the assumption that he was living so latelj'. The pre- sumption of the fact of death seems, therefore, to lead to the conclu- sion that the death took place some considerable time before the expiration of the seven j'ears. It is true, the doctrine will often practically limit the time for bring- ing the action of ejectment in such cases ; and circumstances may be supposed, as of a lease for seven j-ears commencing on the death of A., or of a promissory note payable two months after A.'s death, and many other cases which might be put, in which it would be difficult to carry into eifect certain contracts, or to have remedies for the breach of them, if the parties interested, instead of making inquirj- respecting the person on whose life so much depended, chose to wait for the legal presumption. Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule that the partj- shall be presumed to have died on the last day of the seven years, which would manifestlj' be contrary to the fact in alhiost all instances. No such rule is enacted by the statute, nor is any one authority adduced in which anj- such rule has been laid down. It is not necessary to make anj' election between the beginning of seven years and the end of them, and [as] the period to which the death should be referred, as seems at one time to have been assumed. We adopt the doctrine of the Court of King's Bench, that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subject of distinct proof. For these reasons, we are of oi)inion that the learned Judge's direc- tion to the jury, in respect of which the lessor of the plaintiff tendered a bill of exceptions, was correct, and that the verdict ought to have been found for the defendant ; but as we cannot order it to be so en- tered, the result is that the verdict found for the lessor of the plaintiff must be set aside, and a venire de novo awarded. Venire de novo awarded. 114 IN RE PHENlS'S TRUSTS. ' [CHAP. I. In re PHENE'S TRUSTS. Chancery. 1869. [Eeported L. R. 5 6%. 139.] i This was an appeal petition from an order of Vice-Chancellor James, •who, in deference to decisions of Vice-Cliancellor Kinderslej- and Vice- Chancellor Malins, from which he expressed his dissent, had decided that Nicholas Phene Mill, who had not been heard of since June, 1860, was to be presumed to have survived the testator, Francis Piieue, and so to have become entitled to a share in the testator's estate. The testator died on the 5th of Januarj-, 1861, having by his will bequeathed the residue of his estate to his nephews and nieces in equal shares. Nicholas Phen^ Mill was one of his nephews. The share to which Nicholas Phene Mill would, if living at the testator's death, have been entitled, had been paid into Court under the Trustee Relief Act on account of it being uncertain whether he had survived the testator. On the 24th of April, 1869, letters of administration to the estate of Nicholas Phene Mill, were granted to his brother, James Alexander Mill, who then presented a petition for paj'ment of the fund to him. It was shown that Nicholas Phen6 Mill was born at Ostend in 1829 ; that he left his parents' home on the 19th of August, 1853, and went to America ; that he frequently wrote thence to his famil}- ; that he wrote to his mother a letter dated the 15th of August, 1858, addressed to her from on board the United States frigate " Roanoke," at Boston navj'-j-ard, stating that he expected to be long absent on a voj'age, but would write on his return. He never wrote again, nor did anj' of his family afterwards hear anjthing of him beyond the communications from the American officials which are next referred to. The above points were treated by both sides as established. In 1867, after various inquiries for N. P. Mill had been made ^in vain, applications for information were made to the government offices in America, the last of which was by letter, stating the substance of his last letter. Replies were received, which were to the effect that " Nicholas Mill" was a sergeant in the marine corps, had deserted on the 16th of June, 1860, while on leave from New York to join the Philadelphia station, and had not since been heard of. In August, 1868, and subsequently, advertisements inquiring for N. P. Mill were inserted by his relatives in various English and American papers, but without any result. The evidence being as above, Vice-Chancellor James ordered paj'- ment of the fund to the petitioner, but suspended payment out of the fund till the 14th of November, that the respondents might have an 1 A part of the case is omitted. SECT. IV.] IN RE PHEN^'S TRUSTS. 115 opportunity of appealing. The nepliews and nieces \vho had survived the testator presented their appeal petition, asking that tlie order might be discharged, and the fund ordered to be paid to them. Mr. Bristowe, Q. C, and Mr. Everitt, for the appellants. Mr. Amphlett, Q. C, and Mr. Bagshawe., in support of the order. Sir Gr. M. Gippaed, L. J. ... It is a general, well-founded rule that a person seeking to recover property must establish his title bj- affirmative proof. This was one of the grounds of decision in Doe v. Nepean, and to assert, as an exception to the rule, that the onus of proving death at any particular period, either within the seven years or otherwise, sliould be with the partj- alleging death at such particular period, and not with the person to whose title that fact is essential, is not consistent with the judgment of the present Lord Chancellor, when Vice- Chancellor, in In re Green's Settlement^ Law Eep. 1 Eq. 288 ; or with the dictum of Lord Chief Justice Rolt when he said, in In re Benham's Trusts, that the question was one, not of presump- tion, but of proof; or with the real substance of the actual decisions, or the sound parts of the reasoning, in Doe v. Nepean, 5 B. & Ad- 86 ; 2 M. & W". 894 ; "or with the judgments in Bex v. Inhabitants of Ilarborne, 2 A. & E. 540 ; and Beg. v. Lumley, Law Eep. 1 C. C. 196 ; or with the principles to be deduced from the judgment in Under- wood V. Wing, 4 D. M. & G. 633 ; 8 H. L. C. 183. The true prop- osition is, that those who found a right upon a person having survived a particular period must establish that fact affirmatively by evidence ; the evidence will necessarily differ in different cases ; but sufficient evidence there must be, or the person asserting title will fail. This case happens to be one of an alleged member of a class of legatees. Survivorship of a testator is requisite to clothe a person with the character of a member of that class. ,.^his fs a tacit condi- tion annexed by law to the gift, and it follows that the representatives of a person alleged to be a member of the class must prove as against the other members of the class who prove their survivorship, that he survived the testator, otherwise he was not a legatee at all. For these reasons, and upon a review of the authorities, and the judgments on which they rest, I am of opinion that there is no presumption of law as to the particular period at which Nicholas Phene Mill died ; that it is a matter of fact to be proved by evidence ; and that the onus of proof rests on his representative. This brings me to an examination of the evidence. At the hearing a further inquiry as to the facts was offered, and declined by each of the parties ; it was not admitted by the appellants that Nicholas Phene Mill was the Nicholas Mill rcferre'd Jo in the communications from the American officials, but these congftti^idations were not objected to, and were read and commented on bjjfMtfh sides, ^t&ee are three affidavits. The earliest in point of date is t-Mt of jNichblas Phen^ Mill's mother. She states that she is the widow of ^lliam Mill the elder ; that she left England many j-ears ago to resiSe abroad ; that Nicholas Phene 116 IN EE PHEN^'S TEUSTS. " [CHAP. L Mill was born at Ostend in the j-ear 1829 ; tliat on the 19th of August, 1853, he left home and went to reside in America ; that he wrote let- ters to her and her family from America ; that she received from him a letter addressed from on board the United States frigate " Roanoke," dated the 15th of August, 1858 ; that neither she, nor, as she believes, any member of the family, has heard from him since, and that she believes bim to be dead. She speaks of inquiries that have been made for him. The next affidavit is that of the petitioner in the court below. He is a brother of Nicholas Phene Mill. He speaks of his brothers and sisters, and says that the last that has or can be ascertained or heard about Nicholas Phene Mill is, that being a sergeant of marines in the United States naval service, and unmarried, he deserted from the " Roanoke," United States frigate, on the 16th of June, 1860. He further says that he was himself in America from August, 1853, till April, 1862 ; speaks of many fruitless inquiries and advertisements ; and adds that his information as to Nicholas Phene Mill's desertion was derived from an official letter written in answer to one from his solicitors to the government authorities in America. The last affidavit is that of the clerk to the petitioner's solicitors. He speaks of letters of administration being granted to the petitioner, and proves the correspondence with the government officials in Amer- ica. There were two letters from the petitioner's solicitors : each was answered. The answer to the second was the most explicit, and the onl}- one necessarj- to refer to ; it is indorsed on the letter to which it is an answer, and is in these terms : — "Navt Depaktment, Bn. Equipment and RECEtriTiNG, Washington, December 11, 1867. ' ' Nicholas Mill was a sergeant in the Marine Corps, and deserted June 16th, 1860, while on leave from New York to join the Philadel- phia station. He has not been heard of since that date. "M. Smith, Chief of Bureaur This was an answer to a letter which stated that Nicholas Phene Mill wrote to his mother on the 15th of August, 1858, from on board the United States frigate "Roanoke," Boston Navy Yard, Massachu- setts, stating he expected to be long absent, but would write on his return from his voyage. If this correspondence is excluded, there is no other evidence than that Nicholas Phene Mill was last heard of in 1858 ; there would, therefore, be no sufficient evidence of his having survived the testator ; nor does the admission of the correspondence supply the necessary proof; for though I assume that the Nicholas Mill was the Nicholas Phene Mill who wrote from the "Roanoke," I cannot infer from the statement of his desertion on the 16th of June, 1860, that he was alive when the testator died in January, 1861. I should not do so if it was a simple statement of desertion, and no more ; but the state- SECT. IV.] STATE V. PLYM. 117 ment is not simply that he deserted, but that he deserted while on leave from New York to join the Philadelphia station, June 16th, 1860, and has not been heard of since that date ; the reasonable conclusion from which is, that he never reappeared after he went on leave ; that his leave was up on or before the 16th of June, 1860, and that so his name was on the books as a deserter. If I am to draw a conclusion at all, I should infer that a person in the position of a sergeant having nothing against his character would not desert, and that he died while on leave, and so was not heard of hy the authorities. It is enough, however, for me to state that in mj' opinion the burden of proof is on the representative of Nicholas Phene Mill, and that Nicholas Phene Mill's representative has not proved affirmatively that Nicholas Phene Mill survived the testator — a proof which I consider essential to his title. The order must be discharged, and an order made as prayed by the petition of appeal ; but the costs below and here must come out of the share.^ STATE V. PLYM. Supreme Court of Minnesota, 1890. [Reported 43 Minn. 385.] Appeal by defendant from an order of the district court for Ramsey county. Brill, J., presiding, refusing a new trial. Williams and Schoonmaker, for appellant. Moses M. Olapp, Attorney-General, and James J. Mgan, for the State. Mitchell, J. The defendant was indicted, tried, and convicted of the crime of bigam}'. The case comes here on a bill of exceptions which does not purport to contain all the evidence. The rulings of court in admitting certain evidence, and in certain parts of its charge to the jury, are here assigned as error. The state introduced evidence sufficient to prove the defendant's first marriage, in Sweden, in July, 1876, and his second marriage, in St. Paul, on the 10th of January, 1889. The uncontroverted evidence was that the defendant left Sweden and came to the United States in April, 1884, leaving his first wife, then living, and her children, in Sweden ; also, that when a sister of defendant left Sweden on the 29th of August, 1887, to come to St. Paul, where her brother lived, the first wife was still living in Sweden, and sent by her a letter and message to her husband, to the effect that she wanted to come over to him, and that when this message was commu- nicated to him, he said that " he would take her over after a while." The evidence the reception of which is assigned as error was the testi- 1 And so Daeie, v. Briggs, 97 U. S. 628 (1878). — Ed. 118 STATE V. PLYM. [CHAP. I. monj' of bis brother and sister, to the effect that immediately before and after his second marriage they expostulated with him in regard to it, saying that it was not right to get married when he had a wife and children in Sweden, etc., and that he did not make any answer, except to saj' that it was his own business, and was nothing to them, and that they need not bother themselves about it. This evidence was compe- tent. His silence, in the face of a charge that his wife was still living, was in the nature of an admission of the fact, — certainlj' of the fact that he supposed she was living. The charge of the court assigned as error was as follows : " There is a presumption that a person living at a certain time continues to live, until the contrary appears ; that is, when the life is once shown, it is presumed to continue until it is shown to have ended. That presumption may be stronger or weaker according to the circumstances of anj- par- ticular case. It is not a conclusive presumption ; but it is a presump- tion which the jury is warranted in drawing from the fact of life being shown that life continues until it otherwise appears." The court, how- ever, explicitl}' charged, the jurj' that the defendant was presumed to be innocent until his guilt was established bej'ond reasonable doubt, and that his guilt, and all the facts necessarj- to convict him of the crime, must be established bej'ond a reasonable doubt ; and that among the facts of which the jur^- must be convinced bej'ond reasonable doubt, in order to convict, was the fact that his first wife was living at the time of his second marriage. The jury were also instructed that thej' were to take all the circumstances into consideration in determining the case, and that they were the judges of the facts. Taken as a whole, we find no error in this statement of the law. There is some confusion, if not conflict, of views in the decisions in cases of conflicting presumptions of the continuance of life and of innocence, as to which shall prevail. Some hold that what is called the presumption of the continuance of life must j'ield to the stronger presumption of innocence ; and there- fore, in prosecutions for bigamy-, the fact that the former husband or wife was living at some particular date before the second marriage will not warrant a conviction ; that there must be some direct evidence that he or she was still living at the date of the second marriage. Reduced to its logical result, the effect of this would be that, if it was proved by the most indisputable evidence that the former husband or wife was alive and in good health a few hours before tlie second marriage, the jury could not presume that death had not intervened, without some direct evi- dence to the contrary. The unreasonableness of this as a practical rule of evidence would seem almost self-evident. Other cases, appar- ently upon the idea that the presumption of the continuance of life is one of law, seem to imply, if not hold, that if the life is proved still to exist at any time within the statutor}- period of seven j-ears, it must, as a matter of law, be presumed still to continue until there is some direct evidence tending to prove that it has terminated. It seems to us that neither of these views is correct. The statutory SECT. IV.] STATE V. PLYM. 119 presumption, in certain cases, of death after seven years affords no ground for the converse proposition that, if the person has been heard from within seven j-ears, there is a presumption of law that he is still living. Neither is it true that there is any presumption of law one way or the other as to the continuance of life. It is a mere presumption of fact, which is subject to be controlled by facts and circumstances, and consequently bj' no means of equal strength at all times, and under all circumstances; or, perhaps, more correctly speaking, there is no rigid presumption one way or the other. The evidence that a person was living at a particular time is but one of the facts to be considered in determining the question whether he was living at any future given time, and which is to be considered with reference to accompanying circum- stances, such as the length of time intervening, the age and health of the person, and the like. Its weight as evidence will be affected hy an}' circumstances affecting the probability of the continuance of the life, or rendering it probable that death had occurred. If the lapse of time was comparatively short, it would, in ordinary cases, in the ab- sence of any evidence to the contrarj', be usually deemed satisfactory. But the question whether a person was alive at a certain time, whether a da}-, a month, a year, or an}' other period less than seven years after direct evidence of his being alive, is a question of fact for the jury, to be determined bj' the general presumption — or probability, if the latter term is preferred — of the continuance of human life in view of all the circumstances of the particular case. It is usual to say, as did the trial judge in this case, that if a person is proved to have been alive at a given time, less than seven years before, there is a presumption, more or less strong according to circum- stances, that he is still living, unless the contrary appears. This is but another way of saying, what would perhaps be a more precise state- ment of the proposition, that it is a fact from which the existence of the other fact may be inferred or deemSd proved. This is, we think, in effect what the court's charge, when considered as a whole, amounted to. As the record does not purport to contain all the evidence, we do not know what, if any, facts or circumstances were shown bearing upon the probability of the continuance of the life of the former wife, or in- deed whether or not there was any direct evidence that she was living at the date of the second marriage. It follows from what has been said that defendant's third request to charge was properly refused, and that it does not appear that there was any error in refusing the second. The first was fully covered by the general charge. Order affirmed} 1 Compare R. v. Twyning, 2 B. & Aid. 386. — Ed. 120 NEWELL ET AL. V. NICHOLS ET AL. [CHAP. I. NEWELL, Executor et al, Ttespondents, v. NICHOLS et al, Appellants. Court or Appeals. New York. 1878. [Beported 75 IV. Y. 78.] ^ Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment entered upon a deci- sion of the court on trial at Special Term. (Reported below, 12 Hun, 604.) This action was brought to obtain a judicial construction of the will of Elizabeth M. Walter. The testatrix had given real and personal propert}- to trustees to hold as separate funds for the benefit, respectively, of her daughter Mary R. Walter, her son Joseph R. Walter, and her husband Charles W. Wal- tej', during their lives. The principal of the first two funds was to go, upon the death of the beneficiary, to the heirs of his or her body, or, failing such heirs, to any testamentary appointee of the beneficiary, and, in default of such appointment, to the children or heirs of four specified relatives of the testatrix. The principal of the third fund, upon the husband's death, was to go to the heirs of the bodj' of the testatrix then living ; and, failing such heirs, to the children or heirs of the same four specified persons as in the case of the other funds. A legacy was given to fi friend, payable out of such part of the estate if any as might thus, in certain contingencies, come to the children or heirs of the four specified persons. The testatrix died on October 7, 1870. She left her surviving her husband and the two children, Mai-y R. and Joseph R. Walter named in the will, both infants. Mary Ridgwaj^, the mother of the testatrix, also survived her. The mother, husband, and two children were pas- sengers on the steamship " Schiller," which sailed from the city of New York, on a voyage to Europe, on or about the 27th day of April, 1875. The ship sunk and was lost on or about the 7th day of Maj', 1875, near the Scilly Islands, England, and all the persons above named were lost in the catastrophe. The mother was about sixtj-nine years of age ; the husband forty-five. The daughter, Mary R., was about ten years, and the son, Joseph R., about seven years of age. There was no evidence that there was any survivorship among the four persons named. The estate of the testatrix at the time of her death consisted of per- sonal estate, and an interest in real and personal estate under the will of her father, which had not then been convej-ed or set apart to her. Subsequently there was conveyed to the trustees nanjed in her will the title to certain real estate, and also certain personal property. The said trustees, pursuant to the terms of the trust, sold a small portion of the * A part of the case is omitted, and the statement of facts is condensed. SECT. IV.] NEWELL ET AL. V. NICHOLS ET AL. 121 real estate, the greater portion thereof, however, remained unsold. The estate was not fully adequate to create the trust fund of $60,000 con- templated by the will. George C. Genet, for appellants. William FuUerton, for respondents, Samuel Newell, executor, etc., and others. Henry Arden, for children of Moses Eidgway and others, respondents. B. Roelker, for heirs of John Gunn and Henry Gunn, respondents. George G. Blanke, for guardian ad litem of infant children of Frederick A. Ridgway, respondents. Church, Ch. J. The able and elaborate opinion delivered by Judge Van Vorst,^ who tried the case at Special Term, renders it unnecessary to elaborate the questions involved. 1 have examined with care all the points presented, and I concur fully with the opinion upon all of them, and with the views expressed therein. . . . I should be content to adopt the opinion without further remark, but for considerations which have suggested themselves to some of my brethren in respect to the question of survivorship, as applicable to the position of the appellants, which will be briefly noticed. The sugges- tion, as I understand it, is, that conceding the burden of proving sur- vivorship to be upon the appellants, and that in this case there is no .presumption that either particular child survived, yet as the law will not presume that they died at the same time, a presumption may be indulged that there was a survivor, and that it makes no difference which child survived as he would inherit the share of the other, and create a new line of descent for that share which would embrace the appellants. This of course would affect but one of the children's shares, or one-quarter of the estate. The suggestion, although apparently plausible in statement, cannot be sustained. In the first place, assuming such a presumption, it may be observed that the appellants are required to prove their right or title. Can a party successfully claim that as he is entitled to one thing or another, and as they are alike he will take either ? It is an accidental circum- stance that the shares of these children were alike in amount or kind. Suppose thej' had been unequal in amount, or that one had been in land, and the other in money, could the appellants have claimed either? Clearly not. As to the daughter's share there was a failure to prove a title because it does not appear that the son survived the daughter, and the same is true of the share of the son. The appellants hold the af- firmative, and must establish their title to some specific share or interest, which they fail to do by an alternative claim. As they cannot claim either, have they not failed as to both? A somewhat similar point, though upon a different ground, was presented in Wing v. Angrave, 8 H. L. 183. The estate was limited to one "Wing upon certain condi- tions in the respective wills of husband and wife, who were lost at sea^ The husband gave everything to the wife, and adds: "And in case 1 For this valuable opinion, see 12 Hun, p. 610. — Ed. 122 NEWELL ET AL. V. NICHOLS ET AL. [CHAP. L mj- wife shall die in mj' lifetime . . . then I give all my estate to William "Wing." And the wife gave everything to the husband, and stated, " and in case my husband should die in mj- lifetime, then I devise, bequeath, and appoint the said property to the use of William Wing." Wing claimed under both wills, but the court denied his claim under either, because he could not prove that either husband or wife survived. It is true in that case that the wills created a condition precedent, but as the condition was the same in each will the ultimate legatee claimed under both on the ground that it was immaterial which survived. Lord Chelms- ford, in answering this point, said : " If different persons had been en- titled under the two wills, each must have established his claim solely by the will in his favor, independently of the other, and no difference can be made in the rules of evidence, because the appellant accidentally happened to be the ultimate legatee in each will." The claim was not predicated upon the presumption of a survivor as here, but upon a unity of rights and interests, as legatee under both wills. I do not think an alternative claim can be sustained, conceding the jM'esumption of survivorship. However this may be, a decisive answer to the suggestion is, that there is no legal presumption which courts are authorized to act upon that there was a survivor, anj- more than that there was a particular survivor. It is not claimed that there is any legal presumption that the children died at the same time. Indeed it- may be conceded that it is unlikely that they ceased to breathe at pre- cisely the same instant, and as a phj'sical fact it may perhaps be inferred that they did not. But this does not come up to the standard of proof. The rule is that the law will indulge in no presumption on the subject. It will not raise a presumption by balancing probabilities, either that there was a survivor, or who it was. In this respect the common law differs from the civil law. Under the latter, certain rules prevail in re- spect to age, sex, and physical condition, by which survivorship may be determined, but nothing can be more uncertain, or unsatisfactory than this conjectural mode of arriving at a fact, which from its nature must remain uncertain, and often upon the existence of which the title to large amounts of property depend. In the language of the Lord Chan- cellor, in Wing v. Underwood, 4 DeGex, M. & G. 633, " We may guess, or imagine, or fancy, but the law of England requires evidence." There are cases where a strong probability in theory at least would arise, that one person survived another, and perhaps as strong as that that there was a survivor, and yet the common law wisely refrains from acting upon it in either case. It is regarded as a question of fact to be proved, and evidence merely that two persons perished by such a disaster, is not deemed suflflcient. If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question, but if onlj- the fact of death by a common disaster appears they will not undertake to solve it, on account of the nature of the question, and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when SECT. IV.] NEWELL ET AL. V. NICHOLS ET AL. 123 exposed to the same peril under like circumstances, it is not as a ques- tion of probability very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tri- bunals to speculate or ^uess whether during the momentarj' life struggle one or the other maj' not have ceased to gasp first, especially when tlie transmission of title to property depends upon it, and hence in the ab-l aence of other evidence the fact is assumed to be unascertainable, and) property' rights are disposed of as if death occurred at the same time. I This is done not because the fact is proved, or that there is any pre- sumption to that effect, but because there is no evidence, and no pre- sumption to the contrary. The authorities are uniform upon this docrine, but the expressions of some of the judges in announcing it are liable to be misunderstood as indicating a presumption of simultaneous death, which is not the rule. For instance, Sir William Wynne said : "I always thought it the most natural presumption that all died to- gether, and that none could transmit rights of property to another." Rex \. Heass, 2 Salk. 593; 2 Phill., 296, note c. ; 6 B. & Ad. 91, 92. Sir John Nicoll said : " I assume that both perished in the same moment." Taylor y. Diplock, 2 7)^11. 261. In the matter of Selwyn, 3 Hagg. Ec. R. 748> the court said : " But in the absence of clear evi- dence, it has generally' been taken that both died in the same moment." Sir Herbert Jenner said : " The parties must be presumed to have died at the same time." 1 Curteis, 705. These expressions onlj' mean that as the fact is incapable of proof, the one upon whom the onus lies fails, and persons thus perishing must be deemed to have died at the same time, for the purpose of disposing of their propertJ^ The Lord Chancellor in Wing v. Underwood {supra) recognized the distinction, and explained the meaning of the rule. In commenting upon a similar expression of the Master of the EoUs to the effect that he must assume that Mr. and Mrs. Underwood both died together, the chancellor said: " From personal communica- tion with his honor, I know that he is not aware that he ever used such an expression, and all he ever meant to say was that the property must be distributed just as it would have been if they had both died at the same moment." And Mr. Best, in his work on Presumptions, after la)'- ing down the general rule, states, that it is not correct to infer from this that the law presumes both to have perished at the same moment, and adds : " The practical consequence is however nearly the same, be- cause if it cannot be shown which died first, the fact will be treated by ; the . tribunal as a thing unascertainable, so that for all that ap- pears to the contrary, both individuals may have died at the same moment." All the common-law authorities are substantially the same way, and the rule, which I think is wise and safe, should be regarded as settled. Its. propriety is not weakened b}' the circumstance that its first applica- 124 PRELIMINARY TOPICS. [OHAP. I. tion in this court prevents this estate from being turned into channels never contemplated or intended by the testatrix. The judgment must be affirmed. All concur, except Miller and Earl, JJ., absent at argument. Rapallo, J., concurs in all except as to survivorship between the two children, and as to that does not vote. Judgment affirmed. SECTION vTA ADMISSIONatf" .y; Note Under the head of exceptions to the rale rejecting hearsay evidence, it has heen jusual to treat of admissions and confessions by the party, consideriug them as declar- ations against his interest, and therefore probably true. But in regard to many ad- missions, and especially those implied from conduct and assumed character, it cannot be supposed that the party, at the time of the principal declaration or act done, be- lieved himself to be speaking or acting against his own interest ; but often the con- trary. Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof, either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions, or on grounds of public policy and convenience, as in the case of those implied from assumed character, acquiescence, or conduct. It is in this light that confessions and admissions are regarded by the Roman Law, as is stated by Mascardus. Illixd igitur in primis, ut hinc potissimum exoi'diar, non est ignorandum, quod etsi confessioni inter probationum species locum in prcesentia tribiierimus ; cuncti tmnenfere Dd. vnanimes sunt arbitrati, ipsam potius esse ab onere probandi reZevationem, quam proprie probationem. ... In ftur law, the term admission is usually applied to civil transactions, and to those matters of fact, in criminal cases, which do not involve criminal intent ; the term confession being generally restricted to acknowledgments of guilt. We shaU therefore treat them sepa- rately, beginning with admissions. . . . [Wg shall first consider the person whosa\ admissions may be received. And here the general doctrine is, that the declarations of 1 a party to the record or of one identified in interest with him, are, as against such 1 party, admissible in evidence. If they proceed from a stranger, and cannot be brought ) home to the party, they are inadmissible, unless upon some of the other groundsj already considered. 1 Greenl. Ev. ss. 169-171 incliisive. In addition to estoppels by deed, there are two classes of admissions which fall under this head of conclusive presumptions of law ; namely, solemn admissions, or admissions in judicio, which have been solemnly made in the course of judicial proceed- ings, either expressly, and as a substitute for proof of the fact, or tacitly, by pleading ; and unsolemn admissions, extra judicium, which have been acted upon, or have been made to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied, without a breach of good faith. Of the former class are all agreements of counsel, dispensing with legal proof of facts. So if a mate- rial averment, well pleaded, is passed over by the adverse party, without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby' conclusively admitted. So also the payment of money into Court, under a rule for that purpose, in satisfaction of so much of the claim as the party admits to be due. SECT, v.] UNITED STATES V. GOODING. 125 is a conclusive admission of the character in which the plaintiff sues, and of his claim to the amount paid. The latter class comprehends, not only all those declarations, hut also that line of conduct by which the party has induced others to act, or has acquired any advantage to himself. . . . Ibid. a. 27. ^^ UNITED STATES v. GOODING. Supreme Court of the United States. 1827. [Reported 12 Wheaton, 460.] The Attorney- General and Goxe, for the United States. Taney and Mitchell, for the defendant. Story, J., delivered the opinion of the court.* This is the case of an indictment against Gooding for being engaged in the slave-trade, contrary to the prohibitions of the act of Congress of the 20th of April, 1818. It comes before us upon a certificate of division of opinions in the circuit court of the district of Maryland, upon certain points raised at the trial. . . . The first question that arises is upon the division of opinions whether under the circumstances of the case, the testimony of Captain Coit, to the facts stated in the record, was admissible. That testimony was to the following effect : That he, Captain Coit, was at St. Thomas while the General Winder was at that island, in September, 1824, and was fre- quently on board the vessel at that time ; that Captain Hill, the master of the vessel, then and there proposed to the witness to engage on board the General Winder as mate for the V03-age then in progress, and described the same to be a voyage to the coast of Africa for slaves, and thence back to Trinidad de Cuba ; that he offered to the witness seventy dollars per month, and five dollars per head for every prime slave which should be brought to Cuba ; that, on the witness inquiring who would see the crew paid in the event of a disaster attending the - voyage. Captain Hill replied, " Uncle John," meaning (as the witness understood), John Gooding, the defendant. It is to be observed that, as preliminary to the admission of this tes- timony, evidence had been offered to prove that Gooding was owner of the vessel ; that he lived at Baltimore, where she was fitted out ; and that he appointed Hill master, and gave him authority to make the fit- ments for the voyage, and paid the bills therefor ; that certain equip- ments were put on board peculiarly adapted for- the slave-trade; and that Gooding had made declarations that the vessel had been engaged in the slave-trade, and had made him a good voyage. The foundation of the authority of the master, the nature of the fitments, and the ob- ject and accomplishment of the voyage, being thus laid, the testimony of Captain Coit was offered as confirmatory of the proof, and properly admissible against the defendant. It was objected to, and now stands ' The statement of facta and a part of the opinion are omitted. 126 UNITED STATES V. GOODING. [CHAP. I. upon the objection before us. The argument is, that the testimonj' is y not admissible, because, in criminal cases, the declarations of the mas- ter of the vessel are not evidence to charge the owner with an offence ; and that the doctrine of the binding effect of such declarations by Icnown agents is, and ought to be, confined to civil cases. We cannot j-ieid to the force of the argument. In general, the rules of evidence in crimi- nal and civil cases are the same. Whatever the agent does, within the \ scope of his authoritj-, binds his principal, and is deemed his act. It must, indeed, be shown that the agent has the aulhoritj-, and that the act is within its scope ; but these being conceded or proved, either by the course of business or by express authorization, the same conclusion arises, in point of law, in both cases. Nor is there any authoritj' for confining the rule to civil cases. On the contrary, it is the known and familiar principle of criminal jurisprudence, that he who commands or procures a crime to be done, if it is done, is guilty of the crime, and the I act is his act. This is so true, that even the agent may be innocent, when the procurer or principal maj' be convicted of guilt, as in the case of infants or idiots emploj'ed to administer poison. The proof of the command or procurement may be direct or indirect, positive or circum- stantial ; but this is matter for the consideration of the jury, and not of legal competencj'. So, in cases of conspiracj' and riot^ when once the conspiracy or combination is established, the act of' one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to consent to or command what is done by an}- other in furtherance of the common object. Upon the facts of the present case, the master was just as much a guilty principal as the owner, and just as much within the purview of the act bj- the illegal fitment. The evidence here offered was not the mere declarations of the mas- ter upon other occasions totally disconnected with the objects of the voyage. These declarations were connected with acts in furtherance of the objects of the voyage, and within the general scope of his authoritj* as conductor of the enterprise. He had an implied authorit}- to hire a crew, and do other acts necessary for the V03'age. The testimony went to establish that he endeavored to engage Captain Coit to go as mate for the voyage then in progress, and his declarations were all made with reference to that object, and as persuasives to the undertaking. They were, therefore, in the strictest sense, a part of the res gestae, the neces- sary' explanations attending the attempt to hire. If he had hired a mate, the terms of the hiring, though verbal, would have been part of the act, and the nature of the voj-age, as explained at the time, a neces- sary ingredient. The act would have been so combined with the declar- ations as to be inseparable without injustice. The same authority from the owner which allows the master to hire the crew, justifies him in making such declarations and explanations as are proper to attain the object. Those declarations and explanations are as much within the scope of the authority as the act of hiring itself. Our opinion of the admissibility of this evidence proceeds upon the ground that these SKCT. V.J SMITH V. PALMER. 127 were not the naked declarations of the master, unaccompanied with his acts in that capacity, but declarations coupled with proceedings for the objects of the voyage, and while it was in progress. "We give no opin- ion upon the point whether mere declarations, under other circumstances, would have been admissible. The principle which we maintain is stated with great clearness hy Mr. Starkie, in his Treatise on Evidence, 2 Stark. Evid. pt. 4, p. 60. " Where," says he, " the fact of agency has been proved, either expresslj' or presumptively, the act of the agent, co-extensive with the authority, is the act of the principal, whose mere , instrument he is ; and then, whatever the agent says within the scope \. of his authority, the principal says, and evidence may be given of such r acts and declarations as if they had been actually done and made by the principal himself." ' SMITH V. PALMER. Supreme Judicial Couet op Massachusetts, 1850. [Reported Q Ciish. 513.] i J^. W. Sawyer and 0. E. Allen, for the defendant. N. Richardson, for the plaintiff. Fletcher, J. In this case, the plaintiff alleged, that a suit was pending in a court in the state of Maine, in favor of the firm of Free- man, Trott, and company, of which firm the defendantnifras a partner, as plaintiffs, against the plaintiff as defendant. During the pendencj- of that suit, an arrangement was made and entered into between the present plaintiff, Smith, and Palmer, the present defendant, b}- which, for a consideration paid by Smith, Palmer undertook and promised him to cause tlie action to be discontinued on the docket of the court in Maine, and that the same should not be further prosecuted against Smith, but should be discharged. It was further alleged, by the plaintiff, that Palmer wholly failed to fulfil his engagement by having the action discontinued ; but on the contrary, prosecuted the same, and obtained judgment and execution therein, and that Smith had been compelled to pay the amount thereof. This suit was instituted b^- the plaintiff, to obtain redress for the in- jury he has sustained, by the failure of Palmer to perform the contract above mentioned. i The original action was in assumpsit, containing the common counts, and an account annexed for an order, matches, and money furnished to the defendant, which articles formed the consideration of the contract made by Palmer. . . . Besides the exception in regard to the amendment, the case presents two other exceptions to the ruling of the judge. The new count set out a contract of the defendant, to discontinue the suit in Maine, and alleged as a breach, that the defendant did not discontinue, but prose- cuted the suit to judgment and execution, and that the plaintiff had 1 A part of tl)6 case is omitted. 128 SMITH V. PALMER. [CHAP. I. been compelled to pay the amount recovered. Upon the trial, the plaintiff was permitted to give in evidence, in support of the allegations in the writ of the pendency of the suit in Maine, of the failure of the defendant to discontinue it, and of the prosecution of the suit to judg- ment and execution, the oral declarations, confessions, and admis sions of the d efendant, connected wi th a certain paper w riting, purporting to be anexecution issued in said action, and an assignment thereon executed by the defendant. The defendant then requested the judge to rule, that the plaintiff could not maintain his case on the special count, without producing a certified copj' of the judgment, or account-, jng for its non-production, so as to let in secondarj- evidence. But the court refused so to rule, and instructed the jury, that the foregoing evidence, though not the most satisfactory', was j'et important evidence for their consideration, on the question submitted to them under the special count in the declaration. To this ruling and instruction the defendant excepted. The doctrine maintained hy the defendant's counsel and the author- ities cited, are no doubt correct, but do not apph' to the ease. The case of Sheldon v. Frinh, 12 Pick. 569, was an attempt to prove a record by parol, by a witness on the stand. But this evidence was most properlj- rejected. A record cannot be proved bj' parol, bj' ai witness on the stand ; nor can the contents of any paper be proved, ' without the production of the paper, if the paper can be produced. But this doctrine does not apply to the present case. This is a case of the admission of a partj-, and the admission of a party stands on distinct grounds. |The admissions of a party are not open to the same objection which belongs to parol evidence from other sources. A party's own statements and admissions are, in all cases, admissible in evidence against him, though such statements and admissions may in- volve what must necessarily be contained in some writing, deed, or record. Thus, the statements of a party, that certain land had been conveyed, might be admitted, though the conveyance must be by deed recorded. | The general principle, as to the production of written evidence as the best evidence, does not applj' to the admissions of parties ; as what] a party admits against himself may reasonably be taken to be true. • The weight and value of the statements and admissions will vary ac- cording to the circumstances and must be determined by the jury. The ruling of the judge in the court below on this point is well supported by the authorities. See the case of Slatterie v. Pooley, 6 M. & W. 664, whei'e the distinction between the admissions of parties and parol state- ments from other sources, as to written instruments, is fullj' explained and supported. The general doctrine is also found in 1 Greenl. Ev. §§ ^Q, 97, and cases there cited. In the present case, the principal fact was, that the defendant had not performed his contract, in regard to which there could be no doubt that his admission would be impor- tant evidence, and the execution reciting the judgment assigned by the defendant himself was produced, in connection with the admissions and statements of the defendant. . . . Exceptions overruled. SECT. T,] WOOLWAY V. EOWE. 129 WOOLWAY V. EOWE. King's Bench. 1834. [Reported \ A. & E. 114.] Trespass for breaking and entering tlie plaintiffs close called Scor- ' hill, and spoiling the herbage, etc. Plea, the general issue. At the trial before Bosanquet, J., at the last Spring assizes for Devonshire, it appeared that the plaintiff claimed the close in question as part of his estate ; but the defendant alleged that it was part of the waste of a manor, and that the plaintiff had no interest in it but a right of turn- ing on cattl^ In support of his case the defendant called the son of a person wno had formerly been proprietor of the estate now held by the plaintiff, to prove that his father, while possessed of the property, had a right of common on Scorhill down, the close in question, but never claimed any interest in it beyond that right, which was equally enjoyed by his fellow-parishioners ; and that the witness had heard him say that he had no right to inclose the dow^ '^'The father was alive (and in court) ; and it was objected that, as he himself might have been called, evidence of his declarations was inadmissible The learned Judge received the eviden^ The defendant also called the lord of the manor, who stated thatfl,bout sixteen years back, shortly after he became lord, he made a perambulation of the manor, and included in it the close in question. Upon this occasion he caused notice to be given, by a paper fixed on the church door of the adjoining parish, that he intended, on a certain day, to perambulate Gidleigh parish and common, Gidleigh common being the waste of which the close in question was alleged to be part. Some neighboring farmers and others, to the number of twenty or thirty-, were present at the perambulation, and a discussion took place, in one part- of it, with the parishioners of the adjoining parish ; but it did not appear that the perambulation was attended b^' the owner of the estate now held by the plaintiff, or any person on his behalf. A similar pi-oceeding took place about four years back. It was objected that the lord's per- ambulations of his own manor, under such circumstances as these, could not be" received as evidence against the plaintiff. The learned Judge held the evidence admissible, though of little weight. The defendant had a verdict. Follett, on a former day of this term, moved for a new trial, on the ground that, in each of the above instances, the evidence was improp- erly received. As to the first, declarations of a former owner of the same propertj', made against his interest at the time, are admissible in evidence if he be dead ; but there Is no authority for their being held so while he is living. Again, declarations of a person identified in 9 130 WOOLWAY V. EOWE. [CHAP. I. interest -with a particular part3' are admissible as evidence against such party, though the person making them be alive, if he be still so iden- tified in interest at the time when the evidence is offered ; but not otherwise. In Barough v. White, 4 B. & C. 325, which was an action by the indorsee of a promissorj- note against the maker, the defendant offered evidence of declarations made by the payee while he was holder, he being alive and present at the trial ; but the evidence was Jwjected at Nisi Prius, and this Court approved of the ruling. [Pakkb, J. There the interest of the plaintiff was not the same as that of the payee had been. Declarations of a person who held a negotiable security under the same circumstances with a pavtj* to the action, have been considered admissible against such partj' ; but the right of a person holding b}' a good title is not to be cut down by the acknowledgment of a former holder that he had no title. In the ease cited, the then holder had a better title than the party whose dec- larations were referred to. In the present case I shoulU have had no doubt about receiving the evidence. It does not follow that it was inadmissible because the party himself might have been called.] The testimony of the person himself would have been the best evi- dence. In Spargo v. Brown, 9 B. & C, 938, Baylej', J., says, "The general rule is, th^t every material fact must be proved bj- testimony on oath. There is an exception to that rule,'viz., that the declarations of a party to the record, or of one identified in interest with him, are, as against such partj-, admissible in evidence. But, generally speak- ing, mere declarations not upon oath are not evidence." And Little- dale, J., expresses himself in the same manner. Where the party is identified in interest at the time, the declarations are those of a person for whose benefit the action is brought or defended. The declarations of a privy in estate are onlj' receivable when he is dead. [Patteson, J. Have you looked into the cases on this subject, and found that the statement of a person identified in interest with a partj"^ to the cause has never been held admissible but where the person making such statement was dead ? I have never heard the point so presented before. I always thought the party's interest at the time of the dec- laration was the ground on which the evidence was admitted. In one instance, I remember an attempt on the circuit to introduce the dec- laration of a very old person, still living, which was rejected ; but that ■was offered as evidence of reputation. Paeke, J. The point taken here is quite new to me.] As to the second objection; a perambula- tion by the lord of what he considered to be his manor is no evidence unless some person had been present on behalf of the partj- whose interest was to be affected by it. This is not the perambulation of a parish, but of a private estate. [Parke, J. Treading down the grass under a claim of right would be an act done of which evidence might be given. Patteson, J. If he had gone upon the land and dug a hole, it would have been admissible evidence, though it would in reality have proved nothing.] Here the act was not upon the land. And SECT, v.] PAIGE V. CAGWIN. 131 although it proved nothing, the formality with which it was done might have an undue effect upon the jur^-. Cur. ado. vult. Lord Denman, C. J., now delivered the judgment of the Court. fJ^TIie first question raised in this case was, whether the declarations of a person formerly interested in the estate now tlie plaintiffs were admis- sible in evidence, when the party himself might have been calledj We think they were receivable, on the ground of identity of interest The fact of his being alive at the time of the trial, when perhaps his memory of facts was impaired, and when his interest was not the same, does not, in oiir opinion, affect the admissibility of those dec- larations which he formerly made on the subject of his own rights. The second point was, whetl^er evidence ought to have been received of perambulations made by the lord, when no person on behalf of the plaintiff was present. We think the evidence was receivable, though of slight importance. The land now in question was included in the perambulation, and the lord thereby claimed it and dealt with it as his own. The evidence showed an act of ownership ; and though slight in its effect, it might properly go to the jury. There will therefore be no rule. Mule refused. &7- PAIGE V. CAGWIN. Court for the Correction of Errors. New York. 1843. \Reported1 Hill, 361.] i On error from the supreme court. Cagwin brought an action of assumpsit against Paige in the court below, claiming to recover the amount of a promissory note made by Noble, Smith, and Paige, bear- ing date the 8tb of January, 1838, whereby they jointly and severall}- promised to pay Freeman Van Dyke, or bearer, four hundred dollars, with interest, thirty days after date. The cause was tried at the Oneida circuit in April, 1840, before Gridley, C, Judge; and the principal question which arose was, whether certain declarations or admissions '7 alleged to have been made by Van Dyke, while he was owner and pos- ' sessor of the note, were admissible against the plaintiff below. C. Tracy, for the plaintiff in error. S. Stevens, for the defendant in error. LoTT, Senator. The confessions of Van Dyke were at the time of the trial claimed to be admissible on the ground that he was still the owner of the note in question ; but the circuit judge refused to admit them, holding that, as the evidence then stood, Cagwin was the partj' beneficially as well as legally interested. I think his decision was cor- ^ A part of the case is omitted. 132 PAIGE V. CAGWIN. [CHAP. I. rect. The only testhirony on the point was that of Peckham, which showed the transfer to Paige to have been absolute, and for a full and bona fide consideration. At all events, the judge would not have been justified, I think, in permitting the introduction of these confessions as evideiice at that time. It is contended, however, that inasmuch as it appeared that the transfer of the note had been made after it fell due, the declarations of Van Dj-ke were admissible as against Paige, the liplder. . . . f I do not deem it necessarj' to refer particularly' to the other cases cited bj- tlie plaintiff in error. It will be found, on an examination of most of them, that thej' do not sustain the doctrine that the deelara- , tions of a prior holder of a note, or vendor of a chattel, are admissible Sj'ln evidence as against a subsequent owner, who acquired title for a val- uable consideration. It may I think be laid down as a gen&al propo- sition, that the cases in which such evidence has been held admissible are those only where the declarations were made by a partj' reall3- in interest, or by one through whom the plaintiff claimed as a privj' by representation, as in cases of bankruptcy, death, and others of a similar character. Where the rule is applicable, there must, it is conceded, be " an identity of interest " between the assignor and assignee. That relation appears to me to be based on the fact that the rights of the assignor continue and are represented by the assignee. Where a per- son becomes a purchaser of a chose in action or a chattel, for a valu- able consideration, his rights are independent of the assignor, and be- j'ond his control. Although it maj' be necessary to found his title on a transfer, yet the mere proof of such transfer is evidence of his right. Personal property is frequently acquired bj' deliverj- merely. Posses- sion alone is Vtien prima facie evidence of title, and the rights of the possessor do not necessarily depend on the title of the person bj' whom the delivery was made, or from whom such possession was obtained. It was well said by Williams, J., in Fitch v. Chapman, 10 Conn. Kep. 8, that " the identity' of interest spoken of in the books referred rather to those cases where the nominal party was suing in fact for the benefit of a third person, and this identified their interest." It is insisted, however, that the indorsee of a note over due takes it 1 subject to all the equities existing between the original parties at the I time of the indorsement ; and that if the admissions made bj- a prior holder are excluded, then the other party is prejudiced. It is true that the note in such case is subject to the same defence in the hands of the / indorsee as when it was in the hands of the indorser ; but it hy no It means follows that the mere declarations of such indorser can affect Hhe riglits of the indorsee. The means of proving a defence maj- be affected, but the right to make it is not impaired. The defence still exists ; but it must be established by testimony, and not bj' mere declarations. The rule laid down by the supreme court of this State is in my judgment not only consistent with the general principles of evi- dence, but necessary for the protection of private rights. SECT, v.] PAIGE V. CAGWIN. 133 It was said, I am aware, by Mr. Justice Bronson, in Beach v. Wise, 1 Hill, 612, a case like the one under consideration, that if it were an original question, he should be unable to see anj' solid distinction between cases relating to real property-, where the declarations of the former owner are constantly admitted, and those relating to choses in action, and other personal property ; and he put his judgment on the sole ground that the point had been adjudged against the defendant in that case by those who had gone before him in the court. I admit that there is no solid distinction in principle between the cases referred to by the learned judge ; but I by no means admit that the rule as ap- plicable to personal estate should be altered. On the coiltrary, it appears to be an anomaly in our law, if, by the rules of evidence, titles to real estate can be made to depend on the mere declaration of a prior owner, when every contract for the sale of land is required to be in writing, and title can onlj- be conveyed by deed. There would in my judgment be much more propriety in excluding such declarations as affecting real estate, than in admitting them as to personal propertj'. But I do not concede that such declarations are now admissible to affect the title to lands, although they may be admitted to explain the character of a possession. The supreme court, in Jackson ex dem. Burr \. Shearman, 6 Johns. Rep. 19, say: "The acknowledgments of a party are generally a dangerous species of evidence, and although good to support a tenancy, or to satisfy doubts in case of possession, they ought not to be received as evidence of title." Instead of extending this species of evidence, I think it safer and more conducive to the ad- vancement of justice that it should, be confined to such cases only where, by the settled rules of law,; it is declared to be admissible. The remailcs of Mr. Greenleaf as to this species of evidence are deserving of great consideration. He says : " With respect to all verbal admis- sions, it ma,y be observed, that they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It fre- quently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party did actually say.'' 1 Green. Ev. 23$. See also the observations of the chancellor on this subject in Law v. Merrill, 6 Wend. 277. It is no answer to the views above presented that the rule will per- mit a transfer to mere nominal parties, to avoid the effect of admis- sions made prevloQslj\ When such is the fact there is no change of ownership. The party by whom the transfer is made is still the party in Interest, and bis declarations are clearlj' admissible. If, however, on the other hand, the declarations of a prior holder of personal prop- erty are to affect the rights of a vendee or purchaser for a valuable consideration, the tenure of it will be very precarious and uncertain. I 134 PAIGE V. CAGWIN. ' fCHAP. I prefer rather to abide by the old landmarks of the law, as fixed and established by our supreme court. Their removal would greatlj- inter- fere with the enjoyment of property, and open the door to fraud and litigation. The rule is salutary in its tendencj', and the application of the doctrine of stare decisis in such a case as the present, is imperi- ously demanded. In view of the whole subject, whether considered in reference to authority or principle, I am of opinion that the judgment of the supreme court should be affirmed. Senators Weight and Potnam also delivered opinions in favor of affirming" the judgment of the supreme court, concurring in the general doctrine advanced by Senator Lott. Hopkins, Senator. The plaintiff below purchased the note, if he purchased at all, after it was due, and of course took it subject to all equities between the former parties. He took no better title than the vendor had, which, before the sale, was certainly subject to be de- feated by proof of his own declarations. Does the transfer of the note then, after it was dishonored, do away the effect of admissions of the prior holder, made while the note was in his hands, going to discharge the party from liability on it? Does it not still remain subject to be defeated by proof of those admissions, or must the defendant make stronger proof than he had to make before ? The declarations offered to be proved were made at a time when it was certainly against the in- terest of the holder to make them, and the reasonable presumption would be that they are true. Can it be doubted that a written receipt or release, dul}' proved to have been made before the note was transferred, would put an end to it as a thing of any value, or at least that it would be prima facie evi- dence of payment or discharge? And yet a written receipt or admis- sion of payment would have no more effect than a verbal acknowledg- ment to discharge the note. It is supposed that if evidence of such admissions or declarations is allowed, it maj- lead to collusion between the original parties. This might as well be done by a written discharge, as by an oral one. But I cannot see that there would be anj- inducement to it, or that the vendor could derive any benefit from it. The sale would be in bad faith, and the same proof of his admissions which would defeat a re- cover}' against the maker by the purchaser, would enable him to recover against the vendor. Such an attempt would be as improbable as an attempt to sell a note after actual pa3'ment No advantage could be derived from it. But on the other hand, if proof of such declarations is not to be allowed, the prior holder may, as is alleged in this case, transfer the note to another by collusion, and in that manner compel the defendant to resort to the uncertain testimonj- of the prior holder himself, who had conspired with the nominal plaintiff to defraud him. As between the original parties, the discharge or release could not be proved in an}- SECT, v.] PAIGE V. CAGWIN. 135 other way than bj' such declaratioDS. At all events, the defendant had a right to prove it in that way, and that right ought not to be abridged by a transfer after due, to one who takes subject to prior equities. It is unreasonable to take from him this right, and compel him to call, as his own witness, one who has undertaken to defraud him, and who would have strong inducements to commit perjury to sustain the fraud. If the defendant is bound to call him as a witness, he cannot impeach him, or question his credibility. The feelings of the witness, if not his interests, would be with the plaintiff to whom he had transferred the note as something of value, and if his testimony is necessary in any case to elicit the truth, it would be a safer rule to let the defendant in the first instance prove the declarations, and then let the plaintiff who has taken a dishonored note, if he sees fit, call the prior holder to explain, when the defendant would have the right to cross-examine him. To such a rule the plaintiff should have no objection, as he took the paper over due, upon the credit of the prior holder; thereby declaring his confidence in him, and conced- ing that he is a person whom he may safelj' call as a witness in his behalf. The case of Coster y. Symons, 11 Eng. Com. Law Rep. 349, is not onl}' a case in point, but the result of the cross-examination of the witness, whose attempted explanations there were found upon such examination to be unsatisfactory, is a strong instance of the propriety of the rule suggested as the true one. I do not think that the application of the rule, in suits on paper over due, is necessarily to be extended to all cases of title to personal prop- erty ; though I am inclined to concur with the learned authors of the Notes to Phillips on that subject, at least where the purchaser takes with notice of equities between the prior owner and others. Cowen & Hill's Notes to Phill. Ev. 646. This is rather a question of discharge or release of a party from liability, than a question of title to personal property. If the debt or note has been paid or discharged, it is no longer property. The question then is, what is good evidence of pay- ment of a note, or release of a party ? The case is like that of Walthol V. Johnson, 2 Call, 275, where the declarations of the vendor, made before the sale of personal property, the title to which he derived through a mortgage, were allowed as evidence that before the sale the mortgage was paid. . . . On the question being put, " Shall this judgment be reversed?" the members of the court voted as follows •, For reversal: Senators Hard, Hopkins, Lawrence, Mitchell, Porter, Varnet, and Works — 7. For affirmance: Senators Bockee, Chamberlain, Corning, Deyo, LoTT, Plait, Putnam, Rhoades, Root, Scott, Scovil, Strong, and Wright — 13. Judgment affirmed, '' Note. — And so Dodge v. Freedman's Oo., 93 U. S. 379. — Ed. 136 SHOBER V. JACK. [CHAP. L l/ """■• SHOBER V. JACK. Supreme Court of the Territory of Montana. 1879. [Reported 3 Mont. 351.] i Appeal from Third District, Lewis and Clarke County. This cause was tried in the court below by Wade, C. J. Shober and Lowry, for appellant. Uhumasero and OhadwicJc, for respondents. Knowles, J. This is an action on a promissorj' note. The defend- ant pleads payment. The plaintiff is the indorsee of the note after maturity. S. M. Hall was the payee of the same. In support of his plea of payment, defendant introduced in evidence the declarations of said Hall at the time he was the owner and holder of said note, to the effect that the said note had been paid, and that the deceased Kratzer owed him nothing thereon. The statement in the case specifies that this evidence was duly ob- jected to as incompetent. The plaintiff in rebuttal offered in evidence the said Hall. The de- fendant objected to his testifying in the case for the reason that the said Kratzer, the maker and paj'er of said note, was dead, and the case was being defended by his administrator. The court sustained the objection, and plaintiff excepted to the ruling. The points presented in the case are as follows : 1. Did the court err in admitting the declarations of Hall? 2. Did the plaintiff pi-operly except to the ruling, admitting such declarations ? 3. Did the court err in sustaining the objection to Hall's testifying in the case? The first point is decided in the case of Dodge v. Freedrnan's Sav- ings and Trust Co., 3 Otto's U. S. Supr. Ct. R. 379. In this case it is held that the declarations or admissions of the indorser or assignor of a note, although indorsed or assigned after due, as to the payment thereof, cannot be introduced in evidence against a subsequent owner and holder thereof in an action thereon. That most learned court seemed to consider this a well-established doctrine, when there cannot be much doubt but that the current of decisions, both in England and the United States, is adverse to this view, and two such leading writers upon evidence as Greenleaf and Wharton favor a different rule. This court, however, is bound by the above decision, and although with gi-eat reluctance must follow it. We must hold then that the court committed an error in admitting these declarations. Judgment reversed. ^ 1 A part of the case is omitted. 2 The question whether in any given case there is such an identity of interest hetween one person , and another as to make one responsible, in any degree, for the other's acts or words, and so to affect him with them, as being his own admissions, — is not a question in the law of evidence. — Ed. SECT. Y.] . ROBINSON V. ROBINSON ET AL. 137 ROBINSON V. ROBINSON et al. CouET FOE Divorce and Matrimonial Causes. 1858. [Reported 1 Sw. & Tr. 362.] ^ This was a suit for dissolution of marriage brought by the husband against the wife, by reason of her adultery with Dr. Lane, the co- respondent. . . . Mr. Montagu Chambers, Q. C, Dr. Addams, Q. C, and Mr. Kars- lake, appeared for the petitioner. Dr. PhiUimore, Q. C, for the respondents. Mr. Forsyth, Q. C, and Mr. Coleridge, for the co-respondent. . . . Diaries written by Mrs. Robinson were put in evidence ; witnesses were also examined in support of the charge of adnltery ; but only one of them, namelj', Levi Warren, who was subsequently shown to be unworthy of credit, gave evidence of improper familiarities between thera. . . . CooKBURN, C. J., delivei-ed judgment : This was a suit for a divorce a vinculo, on the ground of adultery. The case was' peculiar and re- markable in its character and circumstances. The only evidence to support the case of the husband, the petitioner, consisted of certain alleged admissions of the wife, the respondent, without any corrobor- ative evidence, direct or indirect, to support them. Not but that, in- deed, some evidence by waj' of corroboration was offered ; but it was not only inconclusive, but so untrustworthy in its character, that the court was under the necessity of discarding it as altogether undeserv- ing of consideration. This being so, as the admission of the wife could not be used to establish the criminality of the co-respondent Dr. Lane, the Court felt itself called upon, before the close of the case (an Act of "Parliament having been passed which removed all doubt as to its au- thority to do so), to dismiss the suit against him, and to confine the question for its decision to whether, by the admissions of the principal . respondent, the wife, a case of adultery was made out which entitled the petitioner to the redress which he seeks. But on the dismissal of the suit as against Dr. Lane, a question presented itself, whether, on tbe acquittal of the co-respondent, the alleged adulterer, the suit against the wife must not of necessity fail. The case of an indictment against two persons for conspiracy suggested an apparent analogy ; and as, in such a case, a plea of guilty by the one, if followed by the acquittal of the other, would not have supported a judgment of guilty against the delinquent confessing and pleading guilty, so it might be said that here, as the offence of adultery neces- sarily implied the joint delinquencj' of two, if one of the parties was acquitted, the other could not properly be condemned. We were, how- 1 A part of the case is omitted. 138 THE QUEEN V. MANNING ET AL. [CHAP. I. ever of opinion that a principle of so purely technical a nature should be confined to the cases in the criminal law in which it had hitherto been applied, and that it ought not to be extended to a proceeding in which the addition of the co-delinquent to the suit had been made com- pulsory by the legislature with a view to his own protection, and in which, but for this special provision of the Act of Parliament, the suit would have been against the wife alone. .This diflflcult}- in the waj- of the consideration of the case against the wife alone being removed, we proceed to consider the evidence as it affects her. . . . In the view we take there remains no course open to us but to dis- miss this petition.* . . . THE QUEEN v. MANNING et al. Queen's Bench Division. 1883. [Beported 12 Q. B. D. 2il.] This was a rule obtained on behalf of the defendant Manning, calling on the prosecutor to show cause why the verdict for the Crown should not be set aside and a new trial had. An indictment was preferred against the defendants Manning and Hannam for conspiring together to cheat and defraud the prosecutor. The case was removed by certiorari, and tried on the civil side at the last summer assizes at Winchester, before Lord Coleridge, C. J., and a special jury. The jury were directed that on this indictment thej- might find one prisoner guilty and acquit the other. They returned a verdict of guilty against Manning, but were unable to agree as to Hannam, and were discharged from giving a verdict. Manning was put under recognizance to surrender to receive judgment in the Queen's Bench Division, and the trial of Hannam was postponed. This rule was ob- tained on the ground of misdirection. C. W. Mathews and -B. Coleridge, showed cause. . . . A. Charles, Q. C, and Warry, in support of the rule. . . . 1 In Pomero v. Pomero et al., as reported in the London Times of Deo. 20, 1884, Mr. Justice Butt, in charging the jury in a proceeding for divorce, said (what is not pre- served elsewhere), that " there was a curious feature in this case to which he desired to direct their attention. As the respondent had filed no answer to the petition! it was for the court and not for the jury to decide whether she had committed adultery with the co-respondent, and his decision was that she had. But as the co-respondent had filed an answer denying the adultery with the respondent, it was for the jury to find whether he had committed it or not. Now it was open to the jury to find that the co-respondent had not committed adultery with the respondent, while the court found that the respondent had committed adultery with the co-respondent. Two such findings would appear to be in complete contradiction ; but the contradiction would be more apparent than real. . . . Courts and juries must base their findings on evidence, and what might be in law conclusive evidence against one of the parties charged, might be none whatever against the other." — Ed. SECT, v.] THE QUEEN V. MANNING ET AL. 139 Mathew, J. Ill this case I have come, after considerable doubt, and I confess with great reluctance, to the conclusion that there must be a new trial. The man who was convicted had a perfectly fair trial, and a summing-up distinctly in his favor ; and every precaution was taken which could be taken to prevent any evidence being acted on by the jury which could not be legitimate evidence against him. Never- theless I am satisfied by the argument of Mr. Charles that there is an imperative rule of law which should have prevented my Lord from in- forming the jury, as he did, that it was possible in such a case to con- vict one of the men and to acquit the other. The rule appears to be this : In a charge for conspiracj' in a case like this where there are two defendants, the issue raised is whether or not both the men are guilty, and if the jury are not satisfied as to the guilt of either, then both must be acquitted. In Hex v. Gooke, 5 B. & C. 538, the Court could not have pronounced the judgment they did unless they had assumed the existence of the rule. So in Meg. v. Thompson^ 16 Q. B. 832, it ap- pears that the Court were of opinion that this rule existed. The au- thoritj' does not vest there. There is, in addition, a passage in the judgment in Robinson v. Robinson & Lane, 1 Sw. & Tr. 362, in which the rule of law is treated as perfectly clear (1 Sw. & Tr. at p. 392). Lastly, there is the judgment of the House of Lords in 0' Connell v. The Queen, 11 CI. & F. 155, which seems to me to be, another clear illustration of the rule. It appears to me therefore that the direction given here was one which should not have been given to the jury, and that there must be a new trial. Stephen, J. I have arrived at the same conclusion with great re- luctance, and entirely upon the authority of the passage in 0' Connell V. The Queen 11 CI. & F. 155, pp. 236-237. The decision is of the highest authority, and clearlj' shows that it is a legal impossibility that when several persons are indicted for a conspiracy any verdict should be found which implies that some were guilty of one conspiracy and some of another. With regard to the other two cases which bear upon the matter, namely. Rex v. Cooke, 5 B. & C. 538, and Reg. v. Thompson, 16 Q. B. 832, I should have had no diflBculty in saying that I thought they left open the matter which & Connell v. The Queen, 11 CI. & F. 155, pp. 236-237, appears to have decided. In Robinson v. Rob- inson and Lane, 1 Sw. & Tr. 362, I think the part of the judgment relating to the criminal law is a mere dictum. The rule applicable to divorce cases is, as it appears to me, founded on common sense, and general principles would be in favor of the contention which is raised on the present occasion hy the prosecution. I cannot, however, see any distinction between the rule that should apply to the present case and that cited from 0' Connell v. The Queen, 11 CI. & F. 155, pp. 236- 237, and that being so I think the direction cannot be supported. Lord Coleridge, C. J. I have some time ago come to the conclusion that I misdirected the jury. At the trial I had not the cases of Rex v. Cooke, 5 B. & C. 538, or Reg. v. Thompson, 16 Q. B. 832, before me, which I confess seem to me much in point. But what influenced me at 140 THE QUEEN V. MA.NNING ET AL. [CHAP. L the time was that it seemed diflScult to distinguish in principle between the rules that should govern such a case as the present and the practice which had obtained in the Divorce Court in Robinson v. Robmson and Lane, 1 Sw. & Tr. 362, and Stone v. Stone and Appleton, 3 Sw. & Tr. 608, and other cases of that description, and which is based on the fact that that which is evidence against one person is by no means necessarily' by our law evidence against another. It follows that wbere there is a joint offence which has to be proved against each person separatelj', the evidence which is sufficient to convict one person of the offence may not b}' anj' means be sufficient to convict the other. Tiie principles of the practice of the Divorce Court in this matter seem to me to be sound, and the}' ought to be applied to analogous cases. I am bj' no means prepared to say that if the matter were res integra, and even in this case, if there could have been an appeal from this de- cision ta-.^me other tribunal, I might not have adhered to m}' view, and left the point to be settled by higher authority. But I feel bound by what I now understand to be the established rule of practice. The earlier cases, it is true, are stated shortly' and without much particu- larity of detail. It may be, if we had all the facts of those cases, they might turn out to be less in point than thej' appear to be at present, but still from the time of the 14 Hen. 4,^ it has been taken for granted bj' the judges of these courts, that in cases of an indictment for con- spiracy, when two people are indicted and are tried together (because different considerations arise where people are not tried together), either both must be convicted or both must be acquitted. That seems to me to have been determined, or, if not determined, taken for granted from very early times. Coming down to later times, the same thing must have been in the minds of the judges who decided the cases of Rex v. Cooke, 5 B. & G. 538, and Reg. v. Thompson, ] 6 Q. B. 832. There are distinctions, I quite agree, which prevent either of those cases being directlj" in point ; but in 1826 the Court of King's Bench, though it did not decide, certainly seems to^ have assumed, as the principle underlying this whole matter, the rule which has been contended for on behalf of the defend- ant. In Reg. v.' Thompson, although Erie, J., differed on a particular point from three other members of the Court, he differed on a pure point of pleading, and not from the principle which the other three judges assumed or laid down. Erie, J., does not s&y a word to the contrary of that principle ; in fact, he rather assumed it, because he tried to support the conviction upon a ground on which, technically as a matter of pleading, I should think he was wrong, namely, that " persons un- known " could be construed to mean the two persons who, in the par- ticular circumstances of that case, the jury were unable to agree about. Then there is the case of O'Gonnell v. The Queen, 11 CI. & F. 155, which assumes this point as the rule of practice, and upon that, although I Thody's Case, 14 Hen. 6, 25 h., and in note to Sex v. Cooke, 5 B. & C. 541. [As regards thfe authority of cases in the Year Books, it should be remembered that juries IB those days went principally upon- their own knowledge. — Ed.] SECT, v.] THE STATE V. MAINOR ET AL. 141 there was a difference of opinion upon other points, the judges agreed. The principle which underlies that decision is that where there are one or more persons charged with conspiracy, the count is a single and complete count, and cannot be separated into parts. The principle is the same here. I certainly directed the jury contrary to that principle : therefore I misdirected the jury, and the rule must be absolute for a new trial. I think it right to mention that I have not forgotten in sit- ting in this court the rule as to hearing applications for a new trial (Ord. XXXIX. r. 2) ; but in those rules there is an exception of crim- inar proceedings ; and as this is a criminal proceeding, I have thought it right to take pai-t in this judgment. Rule absolute for a new trial. )J^^ THE STATE v. MAINOR et al. Supreme Court of North Carolina. 1846. [Reported 6 Ired. 340.] Appeal from the Superior Court of Law of Robeson County, at the Spring Term, 1846, his Honor Judge Dick, presiding. The two defendants, a man and woman, were indicted for commit- ting the crime of fornication, bj' bedding and cohabiting together, without being married. They pleaded not guiltj', and were put on their trial together, and the jury found Mainor guilty and Wilkes not guilty. Upon the motion of the defendant, Mainor, the judgment was arrested ; and the solicitor appealed. Attorney- General, for the State. No counsel in this Court for the defendants. RuPFiN, C. J. The Court holds, that after the acquittal of one of the defendants, there could be no judgment against the other. The crime charged on those persons could not be committed, but by both of them ; and upon a verdict, that one of them was not guilty, it appears conclusively that the other could not be. • It is exactly like the cases of riots, conspiracies, and principal and accessary, which we find in the books. Bex v. Sudburg and Heafs, Ld. Ray!^ 484, Salk. 493 ; State V. Tom, 2 Dev. 569. The farthest the courts have gone is to allow one of the parties to be tried by himself and convicted,' and then judgment is given against that party, because, as to him, the guilt of the other party is found as well as his own. But when the one has been previously tried or acquitted, or when both are tried together and the verdict is for one, the other cannot be found guilty — for he cannot be guilty, since a joint act is indispensable to the crime in either, and the record aflarms that there was no such joint act. Let it be certified to the Superior Court, that there was no error in arresting the judgment. Per Curiam. Ordered to be certified accordingly. J.42 THE STATE V. EINEHAET ET AL. [CHAP. I. THE STATE v. EINEHART et al. SuPREMK Court op North Carolina. 1890. {Reported 106 N. 0. 787.] i Indictment for fornication and adultery, tried before Gilmer, J., at Spring Term, 1889, of the Superior Court of Madison County. . . . His Honor was asked to instruct the jury that there was no evidence against the female defendant, and, as to her, thej' must return a verdict of not guilty ; and that as there was no evidence as to her, they should return a verdict of not guiltj' as to both defendants. This was refused. There was no exception to the charge as given. There was a verdict of guilty ; judgment and appeal. The Attorney- General and H. A. Grudger, for the State. No counsel contra. Davis, J. After stating the facts : When two persons are tried jointlj- for the commission of an offence that requires the joint act of the two to commit, and one of them is acquitted, there cannot be a verdict of guilty as to the other. The defendants are charged with fornication and adultery, and as the offence charged is a joint one, if one of the parties in the joint trial be acquitted, or if one of them has been previously acquitted on a separate trial, it operates as an acquittal of the other, and there can be no judg- ment as to either. State v. Mainor, 6 Ired. 340 ; State v. JParham, 5 Jones, 416. This has been the ruling in North Carolina, though the doctrine held by us has been fully reviewed in Texas where it is repudiated, and it is held that the acquittal of one does not per se operate as an acquittal of the other. Alonzo v. State, 15 Tex. App. 378. The same has been held by the Supreme Court of Tennessee. State v. Caldwell, 8 Bax- ter, 576. It maj- well be doubted whether, when one of the parties has con- fessed and admitted guilt, or there is competent evidence to convict as to one and not the other, it would not be more in accord with reason to permit the jury to render a verdict of guilty as to the one admitted or proved to be guilty and return a verdict of not guilty, because not proved as to the other, than to require them to say not guilty as to both, contrary to the admitted or clearly proven facts. Under such a rule no innocent person would ever be punished, and no injustice could be done, unless it be an injustice to convict and punish the guilty. While it is well settled that the admissions, or confessions, of one defendant are competent as evidence against the party making the admissions, or confessions, it is equally well settled, both by judicial ^ A part of the case is omitted. SECT, VI.] PRELIMINARY TOPICS. 143 decision and by statute (The Code, § 1041), that such admissions, or confessions " shall not be received in evidence against the other." If, therefore, in the case before us, the declarations of the male de- fendant, which are competent only against him, and which his Honor properly instructed the jury not to consider as any evidence whatever against Mary Lindsay, have such weight as to facts and circumstances, which by themselves would not amount to evidence reasonably suf- ficient to go to the jury, it would have been the duty of the Court to direct a verdict of not guilty as to Mary Lindsay, and there could have been no judgment against either. But we think there was evidence against Mary Lindsay, other than the declarations of the defendant Rinehart, suflScient to go to the jury as to her. ..." If it be said that the declarations of Rinehart, notwithstanding the charge of his Honor, would, of necessity, operate upon the minds of the jury to the prejudice of his co-defendant, the answer is two-fold: first, it is to be presumed that the jury will follow the instructions of the Court, and not consider the declarations as anj- evidence whatever as against her ; and second, if it be impossible for the jury to look at com- petent evidence as against Rinehart, without also seeing evidence of her guilt, it is due to the unfortunate situation in which she has placed herself, for which she is responsible, and no injustice is done of whicli she can complain. If it appear that her co-defendant was in any way antagonistic to her, or that he was base enough to make false declara- tions to her prejudice, or for any reasonable cause, the court, in its sound discretion, might have allowed a severance in the trial, but this was not asked for, and they entered upon the trial in the same boat, and, so far from its being lightened by her virtues, she seems to have furnished her full share of weight in sinking it. Affirmed. SECTION VI. law and fact. couet and jury. Note. The discrimination of law and fact, in its relation to jury trials, is often identified with the question of what matter is for the court and what for the jury. This contains an important intimation, namely, that the notion of "law and fact," when thus spoken of, is limited to the issue ; for juries have nothing to do with anything but the issue ; of this more will he said later on. But we do not escape the necessity of trying to determine what is matter of fact .ind what matter of law. In endeavoring to help answer that question let us ask what it is that juries, in- quests, assises, were created for. . . ■ They were wanted, in a pending legal contro- versy, where the parties were at issue on some question of fact, to say what the fact 144 PEELIMINARY TOPICS. [CHAP. I. was, and the name for this thing was "rei Veritas.'' The truth of the thing ahont what ? About all sorts of questions. Was a party in possession of something ? Did he disseise somebody ? Had he put his seal to a paper ? Did he enfeofl' another of laud ? and what land ? What is the amsiietudo, the custom, of such a place ? Is a person legitimate, or a noMvus, or an idiot, or insane ? This is the same sort of ques- tion that juries pass on to-day, — having the same elements of opinion and law, com- pounded with the simpler features which catch' the eye and ear ; questions of fact, as we say. Now, although juries had only to do with an issue, yet questions of fact were by no means limited to the issue. The courts settled a great many questions of fact for themselves ; "they could not take a step without passing upon such questions. Was the deed that was put forward in pleading " rased " or not ? If a party claimed the right to defend himself as a maimed person, was it really mayhem ? Was a person presenting himself and claiming to be a minor, really under age ? A stream of ques- tions as to the reality, the rei Veritas, the fact, of what was alleged before them, was constantly pouring in. . . . This, again, is just as it is to-day. Courts pass upon a vast number of questions of fact that do not get into the pleadings. Courts existed before juries ; juries came in to perform only their own one special office, and the courts have continued to retain a multitude of functions which they exercised before, in ascertaining whether disputed things be true. In other words, there is not and never was any such thing as an allotting of all questions of fact to the jury. The jury simply decide some questions of fact. The maxim ad quoestimem juris respondent Judices, ad qucestionem faxli respondent juratores, was never true, if taken absolutely. ... It is limited to questions with which the jury has to do ; it relates to issues of fact, and not to the incidental questions that spring up before the parties are at issue, and before the trial ; and so of many of those which present themselves during the trial. Apart from "evidence," to which the maxim has no reference, the jury has to do with only a limited class of questions of fact, namely, questions of ultimate fact ; it is only to these that the maxim applies.^ . . . Let us now try to find some definition of " fact," and a just discrimination be- tween fact and law. To define fact is, indeed, a "peryloiis chose," as they say in the Year Books ; and some persons think it unnecessary.^ It is certainly true that the term is widely used in the courts, much as it is used in popular speech ; that is to say, in a tentative, literary, inexact way ; and there are those who would let all such words alone and not bother about precision. But as our law develops it becomes more and more important to give definiteness to its phraseology ; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation and research that clearness of thought will not help us powerfully in grasping it. If terms in common legal use are used exactly, it is well to know it ; if they are used in- exactly, it is well to know just how they are used. 1. "Fact" and its other forms, factum, fait, stand in onr law books for various things, e.g. (a) {oianact; just as the word "fact" does in our older general literature. 1 Bartlett v. Smith, 11 M. & W. 483 ; Bennison v. Jewison, 12 Jurist, 485 ; s. c. 1 Ames, Bills and Notes, 512. 2 For instance, a very able writer in the Solicitors' Journal (vol. 20, 869). "A definition," he remarks, " is the most difficult of all things. There is far gi-eater prob- ability of a correct use of terms than of a correct definition of them. The best defini- tion, therefore, is that by use. A correct use renders definition unnecessary, because the law will speak plainly without it. And where it is unnecessary to define it is also dangerous,. because an incorrect definition will confound the correct use," etc. That is a true utterance of the inherited instinct of English-speaking lawyers and judges. But it is quite certain that as our law gi'ows it must be subjected more and more to the scrutiny of the legal scholar, and that it will profit by any serious and competent effort to clarify and restate it. SECT. VI.] PRELIMINARY TOPICS. 145 "Surely," says Sir Thomas Browne, * " that religion which excuseth the fact of Noah, in the aged surprisal of six hunjired years," etc. ; and so Bracton ;" "Since he is not the agent of the one who made him essoiner, it is not for him to prove another's status or another's act" (factum), (i) For that completed and operative transaction which IS brought about by sealing and executing a certain sort of writing ; and so for the in- strument itself, the deed {factum), (c) As designating wliat exists, in contrast with what should rightfully exist, —de facto as contrasted with dejure. (d) And so, gen- erally, as indicating things, events, actions, conditions, as happening, existing, really taking place. This last is the notion that concerns us now. It is what Locke ex- presses' when he speaks of "some particular existence, or, as it is usually termed, matter of fact." The fundamental conception is that of a thing as existing, or being true. It is not limited to what is tangible, or visible, or in any way the object of sense ; things invisible, mere thoughts, intentions, fancies of the mind, propositions, when conceived of as existing or being true, are conceived of as facts. The qliestion of whether a thing be a fact or not, is the question of whether it is, whether it exists, whether it be true. All inquiries into the trnth, the reality, the actuality of things are inquiries into the fact about them. Nothing is a question of fact which is not a question of the existence, reality, truth of something, of the rei Veritas. But this, it may be said, is a portentous sort of definition ; it is turning every question into a question of fact. That is true, so far as any question asks about the existence, the reality, the truth of something. But of course in actual use the term has other limita- tions. In the sense now under discussion; as we have noticed, " fact" is confined to that sort of fact, ultimate fact, which is the subject of the issue. Moreover, that kind of fact which we call "law " is discriminated, and set apart under its own name. 2. What, then, do we mean by " law " ? We mean, at all events, a rule or stand- ard which it is the duty of a judicial tribunal to apply and enforce. It is not my pres- ent purpose to say anything as to the exact nature or origin of law.* How the rule or standard comes into existence, where it is fonnd, just what the nature of it is, how far it is the command of a supreme political power, and how far the silently-followed habit of 4he community, and other like questions, — there is no occasion to consider now. It is enough to mark one characteristic of it, atad to say, that in the sense now under consideration, nothing is law that is not a rule or standard which it is the duty of judicial tribunals to apply and enforce . I do not even care to say that all general standards that courts apply are to be called law ; that matter I pass by.' But this is true, and it is enough for our present purpose, that, unless there be a question as to a rule or standard which it is the duty of a judicial tribunal to apply, there is no ques- tion of law. The inquiry whether there be any such rule or standard, the determina- tion of the exact meaning and scope of it, the definition of its terms, and the settle- ment of incidental questions, such as the conformity of it, in the mode of its enactment, 1 Psaudodoxia Epidemica, Book v. ch. xxiii. sect. 16 ; on the Vulgar Error that "it is good to be drunk once a month." 2 Fol. 337. ' Human Understanding, Bk. iv. chap. 16, sect. 5. * See Mr. James C. Carter's recent address before the American Bar Association, entitled "The Ideal and the Actual in Law ;" and compare Holmes, Common Law, 35-38, 150-151 ; Markby, Elements of Law, ch. 1, sects. 1-31. Holland, Elements of Jurisprudence, c. ii. and c. iii. "A law," says Holland (3d ed., p. 36), "in the proper sense of the term, is therefore a general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and', among human authorities, is that which is paramount in a political society." Compare, also, Maine's Ancient Law, cc. 1 and 2 ; Lord Esher, M. R., in Cochrane v. Moore, 25 Q. B. D. 67. See "Judicial Legislation," 5 Harv. Law Kev. 172-179. * Markby, ubi supra ; infra, p. 167. If a jury cannot, in point of reason, find a verdict, they cannot as a matter of law ; and such questions go up on exceptions, Dermyv. Williams, 5 Allen, 1. 10 146 PRELIMINARY TOPICS. [CHAP. I, with the requirements of a written constitution, are all naturally and justly to be classed together ; and these are questions of law. But we must discriminate further. Besides questions of fact and law, there are questions of method, of procedure. " It is the office of jurors to adjudge upon their evidence," so the court is reported to have said in Littleton's Case.^ That remark brings out a fundameutal point ; viz. , that it is no test of a question of fact that it should be ascertainable without reasoning and the use of the "adjudging" faculty; much must be conceived of as fact which is invisible to the senses, and ascertainable only this way. Of course this function of reasoning was constantly exercised by the judges ; the remark just quoted makes it apparent that it must also be exercised by juries. This sort of "evidence of things unseen" is common to both. "We are not, then, to suppose that a jury hasfouud all the facts merely because they have found all that is needed as a basis for the operation of the reasoning faculty ; for as regards ]'easoning the judges have no exclusive office ; the jury also must reason at every step. There comes up for consideration, then, this matter of reasoning ; a thing which in- tervenes, in questions of negligence and the like, between the primary facts, or what may be called the raw material of the case, and the secondary or ultimate faets.^ Just as both court and jury must take notice, without proof, of much that is assumed as known to all concerned in judicial inquiries, so each must conduct processes of reason- ing in accomplishing the ends of its own department. It is ti'ue that the jury was not brought into existence because the court needed help in this business, but simply to report upon the rei Veritas ; reasoning, however, was unavoidable. Coiirts might always have done that for themselves if they could have been furnished with a full supply of fact ; but that was impracticable, and at no period of their history could juries discharge their own special function of ascertaining and reporting facts, without going through a process of reasoning. " While the juror's oath," says Bracton,* "has in it three cornmdes {comiles), truth, justice, and judgment ; truth is to be found in the juror, justitia et judicium in the judge ; but sometimes it seems that judgment be- longs to jurors, since they are to say on their oath, yet according to their belief, whether so and so disseised so and so 6r not." And again,* "If the jurors state the fact as it is {factum narraverint sicut Veritas se hahuerit), and afterwards judge the fact accbrding to their statement of it and err, they make a mistaken judgment rather than a false one, since they believe that such a judgment follows such a fact." Bracton uses the expression " they judge the fact." We can observe the real nature of this operation by looking at the ca-se of expert witnesses to fact. What is their function ? It is just this, of judging facts. They are called in because they are men of skill and can interpret phenomena which other men cannot, or cannot safely interpret. They jndge the phenomena, the appearances, or facts which are presented to them, and tes- tify to that which in truth these signify or really are ; or they estimate qualities and values. We say that they testify to opinion. In truth, they are judging something, and testifying to their judgment of fact. It is perfectly well settled in our law that such opinions or judgments are merely those of a witness, they are to aid the jury or the jndge of fact, and not to bind them ; the final judgment is for the jury,^ and, 1 10 Co., p. 56 b. 2 It would be straining our word "procedure" beyond dne limits to say that reasonihg is part of the procedure, for reasoning is essential everywhere in the law ; yet one may get a useful hint by regarding it, for a moment, in that aspect. As the procedure and method of trial are to be discriminated fi'om both law and fact, the subject-matter that is to be dealt with in these ways and methods, — so we may sepa- rate from law and fact the process by -which conclusions are reached ; viz., the process of reasoning. - 8 Fol. 186, J. < Fol. 290, 6. 5 Head v. Margrave, 105 U. S. 45 f 3 Hjirv. Law Eev. 301-302 ; and so in modem times in France ; Bonnier, Preuves, 4th ed. sect. 119. SECT, yi.] PEELIMINAEY TOPICS. 147 unquestionably, the judgment is one of fact. This is clearly expressed in Germany, where the expert appears to have the iinal authority which we allow only to the jury : "Experts, judge only as to the relation of phenomena perceived by the senses to gen- eral rules of their art or science, but not at all as to the i-elation of a fact to legal truths (Kechtswahrheiten) ; that is merelj' the judgels afiair. ... In contrast with his judg- ■ment, what the expert decides is simply a fact, no more nor less than a mere witness's declaration, and this fact, like every other, the judge has to refer to the appropriate rule of law. For this reason experts are called judicesfacti, — judices as opposed to ^ordinary witnesses, judices facti, because thej' do not judge as to the law, but their judgment or opinion only gives as its result a fact." i The nature of the operation and the true character of the result are evidently just the same, whether it be the judgment of the witness or of the jury that is tinal. It is iu either case a judgment of fact. We have thus noticed a Icttium quid, the process of reasoning, which we have set aside as relating to method. A further thing was brought to notice in the passage from Littleton's Case,^ viz., " matter of evidence." The jury, it was there said, " are not [by a special verdict] to leave matter of evidence to the £ourt to adjudge ; " they are themselves "to adjudge upon that evidence concerning matter of fact." Now, " matter of evidence " is here discriminated from " matter of fact.'' It is not, of course, to be classed with "matter of law," and itis not tmatter of fact in the sense which we now fix upon that phrase. What then is it ? It is something incidental, subsidiary, belonging where the matter of reasoning belongs, being, indeed, only so much material offered as the basis for inference to " matter of fact." When it is said that fact is for the jury, the fact intended, as we have seen, is that which is iu issue, the ultimate fact, that to which the law annexes consequences, that thing which, in a special verdict, the jury must plainly find, and not leave to the court to find. Issues are not taken upon evidential matter. Of evidence, the same thing is to be said which we have already said of the reasoning that is founded upon it ; namely, that it is for both court and jury, according as either has occasion to resort to it. . . . Turning back, now, from these old conceptions to our own, we are to observe again that while, of course, there are rules and laws of procedure, and while, of course, these are to be ascertained by the judges, they are mot what is meant (still less is meant a mode of trial), when we contrast the law and fact that are blended in the issue. There the conception is purely that of the substantive law which is applicable to the "facts," viz., the ultimate facts that are in question. And we are to remark again that, equally the, topics of evidence and of reasoning, which deal with the methods of our modern " trials," do not belong to our subject. We have made our definitions and principal discriminations.' But, as I said at the outset, the allotment of fact to the jury, even in the strict sense of fact, is not exact. The judges have always answered a multitude of questions of ultimate fact involved in the issue. It is true that this has often been disguised by calling them questions of law. In the elaborate and carefully prepared codification of the criminal law, which has been pending for the last eleven years in the British Parliament, we are told, of " attempts to commit offences," that "the question whether an act done or omitted with intent to commit an offence is or is not only preparation . . . and too remote to constitute an attempt, ... is a question of, law."* In a valuable letter of Chief- Justice Cockbum, addressed to the Attorney-General, and commenting on the Draft Code (dated June 12, 1879, and printed by order of the House of Commons), he very justly remarks upon this passage : " To this I must strenuously object. The question is essentially one of fact, and ought not, because it may be one which it may be better ^ Dr. W. H. Puchta in Zeitschi-ift fiir Civilrecht und Prozess, iii. 57. Compare Das Archiv. fiir die Civilistische Praxis, xxvi. 255-256. For these references I am indebted to my friend, Mr. Fletcher Ladd. See also Bonnier, Preuves, uhi supra. 2 Ante, 146. * As regards what are called mixed questions of law and fact, see infra, p. 152. * Report of Criminal Code Bill Commission, Draft Code, sect, 74. 148 PEELIMINARY TOPICS. [CHAP. I. to leave to the judge to decide than to submit it to a jury, to bfc, by a fiction, converted into a question of law. . . . The right mode of dealing with a question of fact which it is thovfght desirable to withdraw from the jury is to say that it shall, though a ques- tion of fact, be determined by the judge." The same sort of thing which is thus objected to is very common in judicial language here. Among these questions of fact decided by judges, the construction of writings is a conspicuous illustration. The reasons for leaving questions as to the meaning and construction of writings to the judges appear to be historical and administrative ; they do not rest on the ground that these are questions of law, for, mainly, they are not.i They are not, as a class, decided by the application of legal rules, but by a criti- cal reading of the document in the light of the circumstances attending the making of it. Some legal rules there are, for the interpretation of writings, but in a great degree this is a question of the intention of the writer, and so a question of fact.2 . . . This has always been so ; perhaps a reason for it may be that as writings came into general use and so got into our courts, mainly through the Roman ecclesiastics,^ so the Roman methods of dealing with them were naturally adopted ; and, once adopted, were not changed when new modes of trial, such as the trial by jury, came in. And, to be sure, the jury could not read. It may be added that an established judicial usage like this has always been powerfully supported by considerations of good sense and expediency. Of a great part of the writings brought under judicial consideration, it is true that they were made, as Bracton says, to eke out the shortness of human life, ad perpetuam me- moriain, propter brevem hominum vitam. Such things, so important, so long enduring, should have a fixed meaning ; should not be subject to varying interpretations ; should be interpreted by whatever tribunal is most permanent, best instructed, most likely to adhere to precedents. It is on this ground of policy, or on like legislative considerations, and above all, for fear the jury should decide some question of law that was complicated with the fact, — that many other questions of fact have at one time or another been studiously retained by the judges. Whether there is malice in cases of murder, what is sufBcient " cooling- time," in case of provocation,* and, in actions for malicious prosecution, whether the cause for instituting the prosecution were " reasonable and probable," are well-known illustrations of this. It was from like motives that courts refused to allow juries to find a general verdict in cases of criminal libel.^ How is it that the judges, sometimes with and sometimes without the co-operation of the parties, have worked all this out? In various ways : 1. Through their power of fixing the definition of legal terms. Such phrases as " malice," " false pretences," "fraud," "insanity," "reasonable notice," and the like, have required definition. The judges alone could give it ; and they have sometimes given it as in the case of in- sanity, in a manner to close questions of fact which might well have been left open.' Of these judicial definitions our books are full. Sometimes they begin by fixing an outside limit of what is rationally permissible, as in many of the cases about reasonable time and the like ; and then grow more precise. In this way what is reasonable notice of the dishonor of a bill grew to be fixed. Juries were resisted by the court when they sought to require notice within an hour, and on the other hand, to support it if given within fourteen days, or within three days, when "all the parties were within twenty 1 But we all know the usual form of speech about it : "A pure question of law,'' says the court in Hamilton v. Lio. Co., 136 U. S. 255. ^ See Professor Markby's interesting article on "Law and Fact," Law Mag. and Rev. (4th Series) ii. 313 ; Edes v. Boardman, 58 N. H. 592. ' Anglo-Saxon Law, 230. * R. V. Oiuby, 2 Lord Raymond, 1494. 5 Com.. V. Anfhes, 5 Gray, 212-219. ' See the acute observations of Mr. Justice Doe in dissenting opinions in State v. Pike, 49 N. H. 436-442, and Boardman v. Woodman, 47 N. H. 146-150 ; and the opinion of the court (Ladd, J.) in State v. Jones, 60 N. H. 369. SECT. VI.] PKELIMINAEY TOPICS.. 149 minutes' walk of each other ; " i and so the modern rule became established that ordi- narily notice is sufficient if given on the following day. In the case of uncertain lines in copyholds, the courts had previously gone through a like process of regulating ex- cess, until at la^t, not without the aid of courts of eq^uity, they had fixed a specific out- side limit.^ 2. Very soon, as it seems, after the general practice began of allowing witnesses to testify to the jury, an interesting contrivance for eliminating the jury c^me into exist- ence, the demurrer upon evidence. Such demurrers, like others, were demurrers in law ; but they had the effect to withdraw from the jury all eonsiderjition of the facts, and, in their pure form, to submit to the court two questions, of which only the second was, in strictness, a question of law; (1) Whether a verdict for the party who gave the evidence could be given, as a matter of legitimate inference and interpretation from the evidence ; (2) As a matter of law. Of this expedient, I do not observe any men- tion earlier than the year 1456, aud it is interesting to notice that we do not trace the full use of witnesses to the jury much earlier than this. Near the end of the last cen- tury demurrers upon evidence were rendered useless in England, by the decision in the case of Gfibson v. Hunter (carrying down with it another gieat case, that of Lickharrow v. Mason, which, like the former, had come up to the Lords upon this sort of demur- rer),' that the party demurring must specify upon the record the facts which he admits.* Tliat the rule was a new one is feirly plain from the case of Oockeedge v. Fanshawe,^ ten years earlier. It was not always followed in this country, but the fact that it was really a novelty was sometimes not understood.' In handling this keen-edged instrument, the demurrer upon evidence. It is more than likely that the just line between the duties of court and jury was often overstepped by assuming that what the court though the right inference was the only one allowable to the jury. Nothing is more common, even to-day, than the assumption that nothing but ^ question of law remains, when, in reality, the most important inferences of fact are still to be drawn. In this way much which belongs to the jury passes over, un- noticed, into the hands of the judges. 3. A powerful resource of the judges lay in their right to shape and to change the forms of pleading. A party was permitted and encouraged to spread his ca«e upon the record with a view to avoid the jury. This gave all into the hands of the judges upon a demurrer, and even without a demurrer enabled them, for various purposes, to as- sume all the facts to be known. The way in which libel cases were thus influenced is clearly pointed out by Chief-Justice Shaw :' "The theory of those judges who held that the jury were only to find the fact of publication and the truth of the averments, coUoquia, and innuendoes, was this : that when the words of the alleged libel are ex- actly copied, and all the circumstances and incidents which can affect their meaning are stated on the record, inasmuch as the construction and interpretation of language, when thus explained, is for the court, the question of the legal character of such libel would be placed on the record, aud therefore, as a question of law, would be open after verdict on a motion in arrest of judgment." The fierce struggle that went on over this question, ending in the statute that recognized the jury's right to give a general verdict, in eases of criminal libel, as in others,' is a standing testimony to the practical I Tiiidal V. Brown, 1 T. E. 168-169. " Per Lord Loughborough, Doug. 724, note. ' Gibson v. Hunter, 2 H. Bl. 187 ; Lickbwrrow v. Mason, ib. 211. ' ThLs is the rule laid down by Eyre, C. B., in his advisory opinion to the Lords, aud it is taken to have been the ground of the judgment. 6 1 Doug. 119 (1779-83). * Patridc v. Hallett, 1 Johns. 241 (1806) ; IVhUtington v. Christian, 2 Randolph, 357-358 (1824) ; Trout v. R. R. Co., 23 Gratt. 619-620, 635-640 (1873). De- muiTers to evidence are mainly obsolete in this country. What is called by this name now is often a very different thing. '''Com. v. Anthes, 5 Gray, 214. ' St. 32 Geo. III. c. 60. Cap.