dlnmrll Ham i>ri|Ofll ICibrary Cornell University Library KFN6030.S82 1902 A digesV.,ot,.the„,\aw,,°t,,|f|i;f|Sm 3 1924 022 817 344 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022817344 A DIGEST LAW OF EVIDENCE BY THE LATE SIR JAMES FITZJAMES{ST EPHEN, B art., K.C.S.I., D.C.L. ONE OF THE JUDGES OF THE HIGH COURT OF JUSTICE From the Fifth Edition (iSgg) of Sir Herbert Stephen, Bart., of the Inner Tem-. PLE, Barrister-at-Law, Clerk of Assize for the Northern Circuit, and Harry Lushington Stephen, of the Inner Temple, Esquire, Barrister-at-Law. WITH BOTH GENERAL AMERICAN NOTES AND NOTES ESPECIALLY ADAPTED TO THE STATE OF NEW YORK. BY GEORGE E. BEERS OF THE new haven BAR; OF THE FACULTY OF THE YALE LAW SCHOOL; AUTHOR OF THE revision OF Baldwin's Connecticut digest, and the new ENGLAND EDITION OF STEPHEN'S DIGEST. ASSISTED BY FRANCIS J. KEARFUL, M.L.. OF NEW YORK CITY. HARTFORD, CONN. DISSELL PUBLISHING COMPANY IQ02 Entered, acoording to Act of Congress, In the yesir 1902, By GEORGE E. BEEBS, In the Office of the Librarian ot Congress, at Washington. AMERICAN PREFACE The fact that the profession seems to have found the editor's ~Sew England edition of Stephen's Digest useful has suggested the idea of preparing the present work. The Digest has for a generation had a distinctive posi- tion in England as the authoritative text on the subject of evidence. From time to time American editions have ap- peared hut they are all, v^^ith the exception of the New England edition, above referred to, based on the earlier English editions now superseded by that published three years ago. The effort is here made to present to the pro^ fession in this country the latest work of the English authors, thoroughly annotated with American cases. In the American note are collected authorities from all of the States, together with references to standard text-books. In recognition of the facts that the New York cases are very numerous and that the State of New York occupies a commanding position in jurisprudence, the authorities from that State have been placed by themselves and the cita,tion of authorities from New York made as full as the limits of the book would allow. The work is intended not as a rival of the three-volimie books on Evidence, but as a handbook for the court and office. The intention has been so to arrange and collate the AMERICAN PREFACE. matter that the practitioner might find at a moment's notice the article of Stephen bearing upon the point under discussion and a full citation of authorities. The articles, together with all the English notes, have been printed verbatim for the reason that even if an American editor could accomplish the apparently impos- sible task of writing as good a text as Stephen, he could not prepare one which would, in the eyes of the courts, have anything like the authority of the original work. It is believed, therefore, that the best service of an American editor is rendered by way of annotation. The editor has sought, by the assistance of Mr. Francis J. Kearful, of the office of Messrs. Guthrie, Cravath & Henderson, of New York city, to keep in view the special features of the New York law and practice with a clear- ness which could not otherwise be expected in the work of a practitioner of another State. G. E. B, 42 Church street, New Haven, Conn. April 22, 1902. PREFACE TO THE FIFTH EDITION In preparing the present edition of this work we have attempted to follow as closely as possible the principles on which it was originally written twenty-five years ago. We have had to deal with the two new Acts of importance — the Prevention of Cruelty to Children Act, 1894, and the Criminal Evidence Act, 1898. It is not possible to incorporate the provisions of the former Act, relating to the evidence of children too young to be sworn, with the corresponding parts of the Criminal LaAv Amendment Act, 1885 ; and the result is that Article 123a has to take the form of a confused exception to the general rule, which, in fact, correctly represents the present state of the law with which it deals. The Criminal Evidence Act, 1898, is, from a draftsman's point of view, a more satis- factory measure, but for practical purposes it is necessary to treat that also as an exception to a rule which has been abolished. We have incorporated in this edition a few new cases, of which the most important is R. v. Lillyman, [1896], 2 Q. B. 167. Our view of the effect of this case has neces- sitated a long note (Note V., and cf. pp. 11, 12), which we hope may meet with the assent of the profession generally. All writers of law books depend largely upon one another, and as this Digest was designed to consist of the PREFACE TO FIFTH EDITION. most succinct statement of principles possible, we are per- haps more than usually indebted to other authors and edi- tors. We have spared no pains in taking the fullest advantage of the labours of Mr. Pitt-Lewis, in his last edi- tion of ' Taylor on Evidence,' and of those of Mr. Phipson in the second edition of his most useful work. We are also under a special obligation to Mr. William Wills. He has most generously allowed us to appropriate bodily the Table published by him at the end of his ' Lectures on the Law of Evidence,' and we have accordingly reprinted it with a few slight alterations. [As it refers exclusively to English statutory law it is not reprinted in this edition.] Only those who have themselves tried to prepare such a table can realize how great is the labour involved in its construction; and, after having begun this task, and dis- covered that we could not improve upon Mr. Wills's work, we are only too glad to take advantage of his kindness and republish his Table, instead of constructing a new one of which his must necessarily have been the foundation. The total bulk of this work has been increased from 228 to 271 pages since the last edition. As this is a consider- able growth in so small a book, it may be well to state that the increase in the text is five pages, in the notes five pages, and in the index nine pages. Mr. Wills's Table takes up twenty-four pages. H. S. H. L. S. June 25, 1809. 4, Papeb Buildings, Temple. CONTENTS Introduction - - - xiii-xxxi List of English Abbbeviations ... xxxiii-xxxv PART I. EELEVANCY. Chapter I. — Peeominary. Aet. 1. Definition of Terms - Pages 3-10 Chapter II.— Of Facts in issue and relevant to the issue. Art. 2. Facts in issue and facts relevant to the issue may be proved — 3. Relevancy of facts forming part of the same trans- action as the facts in issue — 4. Acts of conspirators — 5. Title — 6. Customs — 7. ilotive, preparation, subsequent conduct, explan- atory statements — 8. Statements accompanying acts, complaints, statements in presence of a, person — 9. Facts necessary to ex- plain or introduce relevant facts 11-49 Chaptee III. — Occurrences similar to but unconnected with THE Facts in issue, irrelevant except in certain cases. Aet. 10. Similar but unconnected facts — 11. Acts shovping inten- tion, good faith, etc. — 12. Facts showing system — 13. Existence of course of business when deemed to be relevant 50-77 Chapter IV. — Hearsay irrelevant except in certain cases. Art. 14. Hearsay and the contents of documents irrelevant 78-87 Section 1. — Hearsay when relevant. Art. 15. Admission defined — 10. Who may make admissions on behalf of others, and when — 1 7. Admissions by agents and per- sons jointly interested with parties — 18. Admission by stran- gers — 19. Admission by person referred to by party — 20. Admia- CONTEl^TS. • sions made without prejudice — 21. Confessions defined — 22. Con- fession caused by inducement, threat, or promise, wlien irrelevant in Criminal Proceeding — 23. Confessions made upon oath, etc. — 24. Confession made upon a promise of secrecy — 2.5. State- ments by deceased persons -n-hcn deemed to be rele\-ant — 26. Dy- ing declaration as to cause of death — 27. Declarations made in the course of business or professional duly — :^S, Declaration.! against interest — 29. Declarations by testators as to contents of will — 30. Declarations as to public and general rights — 31. Dec- larations as to pedigree — 32. Evidence given in former proceed- ings when relevant 88-167 Section ii. — Sintemcnts in Books, Documents, ami Records, when relevant. Art. 33. Recitals of public facts in statutes and proclamations — 34. Relevancy of entry in public record made in performance of duty — 35. Relevancy of statements in works of history, maps, charts, and plans — 30. Entries in bankers' books — 37. Bankers not compellable to produce their books — 38. Judge's powers as to bankers' books — 39. "Judgment" — 40. ^^11 judgments con- clusive proof of their legal effect — 41. Judgments conclusive as between parties and privies of facts forming ground of judg- ment — 42. Statements in judgments irrelevant as between stran- gers, except in Admiralty Cases — 43. Effect of judgment not pleaded as an estoppel — 44. Judgments generally deemed to be ir- relevant as between strangers — 45. Judgments conclusive in favour of Judge — 40. Fraud, collusion, or want of jurisdiction may be proved — 47. Foreign judgments 108-204 CHAPTEK V.*— OpI.\IOXS, WHEX KELEV-^kXT AXD WHEN NOT. Art. 48. Opinion generally irrelevant — 49. Opinions of experts on points of science or art — 50. Facts bearing upon opinions of experts — 51. Opinion as to handwriting, when deemed to be rele- vant — 52. Comparison of handwritings — 53. Opinion as to exist- ence of marriage, when relevant — 54. Grounds of opinion, when deemed to be lelevant 20.1-230 Chapter VI. — Ci-iabacter. when deemed to be relev.vnt AND WHEN not. Art. 55. Character generally irrelevant — ."lO. Evidence of character in criminal cases — 57. Character as alfecting damases 237-245 CONTENTS. PART II. OX PROOF. Chapter VII. — Facts proved otherwise than by Evidence — Judicial Notice. Art. .58. Of what faot= (lie Court takes judicial notice — •")!). As to proof of such fact'. — (10. Evidence need not be given of facts ad- mitted 246-261 Chapter VIII. — Of Oral Evidence. Art. 61. Proof of facts by oral evidence — fi'2. Oral evidence must be direct 202-265 Chapter IX. — Op Documentary Evidence — Primary and Secondary, and Attested Documents. Art. 63. Proof of contents of documents — 64. Primary evidence — 65. Proof of documents by primary evidence — 66. Proof of exe- cution of document required by law to be attested — 67. Cases in which attesting witness need not be called — 68. Proof when attesting witness denies the execution — 69. Proof of document not required by law to be attested — 70. Secondary evidence — 71. Cases in which secondary evidence relating to documents may be given — 72. Rules as to notice to produce 266-294 Chapter X. — Proof of Public Documents. Art. 73. Proof of public documents — 74. Production of document itself — 7.5. Examined copies — 76. General records of the realm — 77. Exemplifications — 78. Copies equivalent to exemplifications — 79. Certified copies — SO. Documents admissible throughout the Queen's dominions — 81. Queen's printers' copies — 82. Proof of Irish statutes — 83. Proclamations. Orders in Council, etc. — 84. Foreign and colonial acts of state, judgments, etc. — 84a. Answers of Secretary of State as to foreign jurisdiction 295-310 CONTENTS. Chaptek XI. — Pbesumptions as to Documents. Abt. 85. Presumption as to date of a document — 8G. Presumption as to stamp of a document — 87. Presumption as to sealing and delivery of deeds — 88. Presumption as to documents thirty years old — -89. Presumption as to alterations - 311-322 Chapter XII. — Of the Exclusion of Okal by Documentary Evi- dence, AND OP THE Modification and Interpee^atiox or Docu- mentary BY Oral Evidence. Art. 90. Evidence of terms of contracts, grants, and other disposi- tions of property reduced to a documentary form — 91. What evi- dence may be given for the interpretation of documents — 92. Cases to which articles 90 and 91 do not apply 323-357 coyTE^'TS. PART III. PRODUCTION AND EFFECT OF EVIDENCE. ChAPTEK XIII. — BUKDEN OF PkOOF. Aet. 93. He who affirms must prove- — 94. Presumption of innocence — 95. On whom the general burden of proof lies — 96. Burden of proof as to particular fact — 97. Burden of proving fact to be proved to make evidence admissible — 97a. Burden of proof when parties stand in a fiduciary relation - 358-374 Chapter XIV. — On Presumptions and Estoppels. -Art. 98. Presumption of legitimacy — 99. Presumption of death from seven years' absence — 100. Presumption of lost grant — 101. Presumption of regularity and of deeds to complete title — 102. Es- toppel by conduct — 103. Estoppel of tenant and licensee — 104. Estoppel of acceptor of bill of exchange — 105. Estoppel of bailee, agent, and licensee 375-391 Chapter XV. — Of the Competency of Witnesses. Art. 106. Who may testify — 107. What witnesses are incompetent — 108. Competency in Criminal Cases — 109. Competency in pro- ceedings relating to adultery — 110. Communications during mar- riage — 111. Judges and advocates privileged as to certain ques- tions — 112. Evidence as to affairs of state — 113. Information as to commission of offences — 114. Competency of jurors — 113. Pro- fessional communications — 1 10. Confidential communications with legal advisers — 117. Clergymen and medical men — 118. Produc- tion of title-deeds of witness not a party 119. Production of documents which another person, having possession, could refuse to produce — 120. Witness not to be compelled to criminate him- self — 121. Corroboration, when required — 121a. Claim on estate of deceased person — 122. Xuniber of witnesses 392-425 CONTENTS. Chapter XVI. — Of Takikg Okal Evidence, and of the Exami- XATION OF Witnesses. Art. 123. Evidence to be upon oath, except in certain cases — 123a. Unsworn evidence of young child — 123b. Unsworn evidence of a barrister — 12.4. Forni of oaths; by whom they may be ad- ministered — 125. How. oral evidence may be taken — 126. Exam- ination in chief, cross-examination, and re-examination — 127. To what matters cross-examination and re-examination must be di- rected — 128. Leading questions — 129. Questions lawful in cross- examination — 129a. Judge's discretion as to cross-examination to credit — 130. Exclusion of evidence to contradict answers to questions testing veracity — 131. Statements inconsistent with present testimony may be proved — 132. Cross-examination as to previous statements in writing — 133. Impeaching credit of wit- ness — 134. Offences against women — 135. What matters may be proved in reference to declarations relevant under Articles 25-32 — 136. Refreshing memory — 137. Right of adverse party as to writing used to refresh memory — 138. Giving, as evidence, docu- ment called for and produced on notice — 139. Using, as evidence, a document production of which was refused on notice 426-465 Chapter XVII. — Of Depositions. Art. 140. Depositions before magistrates — 141. Depositions under 30 & 31 Viet. c. 35, s. 6 — 141a. Depositions under the Foreign Jurisdiction Act, 1890 — 141b. Depositions of children — 142. De- positions under Merchant Shipping Act, 1894 466-473 Chapter XVIII. — Of Improper Admission and Rejection of Evidence. Art. 143 - 474, 475 Appendix op Notes 477-538 Index 539- INTRODUCTION In the years 1870-71 I drew what afterwards became the Indian Evidence Act (Aet 1 of 1872). This act began by repealing (with a few exceptions) the whole of the Law of Evidence then in force in India, and proceeded to re-enact it in the form of a code of 167 sections, which has been in operation in India since Sept. 1872. I am informed that it is generally understood, and has required little judicial commentary or exposition. In the autumn of 1872 Lord Coleridge (then Attorney- General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made vari- ous attempts to bring it forwaid, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parlia- ment was prorogued. The Bill was thus never made pub- lic, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act, and contained a complete system of law upon the subject of evidence. The present work is founded upon this Bill, though it differs from it in various respects. Lord Coleridge's Bill proposed a variety of amendments of the existing law. INTRODUCTION. These are omitted in the present work, which is intended to represent the existing law exactly as it stands. The Bill, of course, was in the ordinary fonn of an Act of Parliament. In the book I have allowed myself more freedom of expression, though I have spared no pains to make my statements precise and complete. In December, 1875, at the request of the Council of Legal Education, I undertook the duties of Professor of Common Law, at the Inns of Court, and I chose the Law of Evidence for the subject of my first course of lectures. It appeared to me that the draft Bill which I had prepared for Lord Coleridge supplied the materials for such a state- ment of the law as would enable students to obtain a pre- cise and systematic acquaintance with it in a moderate space of time, and without a degree of labour dispropor- tionate to its importance in relation to other branches of the law. Wo such work, so far as I know, exists; for all the existing books on the Law of Evidence are written on the usual model of English law-books, which, as a general rule, aim at being collections more or less complete of all the authorities iipon a given subject to which a judge would listen in an argument in court. Such works often become, under the hands of successive editors, the reposi- tories of an extraordinary amount of research, but they seem to me to have the effect of making the attainment by direct study of a real knowledge of the law, or of any branch of it as a whole, almost impossible. The enormous mass of detail and ilhistration which they contain, and the habit into which their writers naturally fall, of introduc- ing into them everything which has any sort of connec- INTRODUCTION. xy tion, however remote, with the main subject, make these books useless for purposes of study, though they may increase their utility as works of reference. The enormous size and length of the standard works of reference is a proof of this. They consist of thousands of pages and refer to many thousand cases. When we remember that the Law of Evidence forms only one branch of the Law of Procedure, and that the Substantive Law which regulates rights and duties ought to be treated independently of it, it becomes obvious that if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books. No doubt such knowledge is to be gained. Experience gives by degrees, in favourable cases, a comprehensive acquaintance with the principles of the law with which a practitioner is conversant. He gets to see that it is shorter and simpler than it looks, and to understand that the innimierable cases which at first sight appear to constitute the law, are really no more than illustrations of a compara- tively small number of principles; but those who ha^^e gained knowledge of this kind have usually no opportunity to impart it to others. Moreover, they acquire it very slowly, and with needless labour themselves, and though knowledge so acquired is often specially vivid and well remembered, it is often fragmentary, and the possession of it not unfrequently renders those who have it sceptical as to the possibility, and even as to the expediency, of pro- ducing anything more' systematic and complete. The circumstances already mentioned led me to put into a systematic form such knowledge of the subject as INTRODUCTION. I had acquired. This work is the result. The labour bestowed upon it has, I may say, been in an inverse ratio to its size. My object in it has been to separate the subject of evidence from other branches of the law with which it has commonly been mixed up; to reduce it into a compact systematic form, distributed according to the natural divi- sion of the subject-matter; and to compress into precise definite rules, illustrated by examples, such cases and statutes as properly relate to the subject-matter so limited and arranged. I have attempted, in short, to make a digest of the law, which, if it were thought desirable, might be used in the preparation of a code, and which will, I hope, be useful, not only to professional students, but to every one who takes an intelligent interest in a part of the law of his country bearing directly on every kind of investi- gation into question of .fact, as well as on very branch of litigation. The Law of Evidence is composed of two elements, namely, first, an enormous number of cases, almost all of which have been decided in the course of the last 100 or 150 years, and which have already been collected and classified in various waj-s by a succession of text writers, from Gilbert and Peake to Taylor and Roscoe ; secondly, a comparatively small number of Acts of Parliament which have been passed in the course of the last thirty or forty years, and have effected a highly beneficial revolution in the law as it was when it attracted the denunciations of Bentham. Writers on the Law of Evidence usually refer to statutes by the hundred, but the Acts of Parliament INTRODUCTION. which really relate to the siibject are but few. A detailed aeeoTxnt 'of this matter will he found at the end of the volume, in Note XLVIII. The arrangement of this book is the same as that of the Indian Evidence Act, and is based upon the distinction between relevancy and proof, that is, between the question What facts may be proved? and the question How must a fact be proved assuming that proof of it may be given? The neglect of this distinction, which is concealed by the ambiguity of the Avord evidence (a word which sometimes means testimony and at other times relevancy), has thrown the whole subject into confusion, and has made what is really plain enough appear almost incomprehensible. In my 'Introduction to the Indian Evidence Act' pub- lished in 1872, and in speeches made in the Indian Legis- lative Coimcil, I enter fully upon this matter. It will be sufficient here to notice shortly the principle on which the arrangement of the subject is based, and the manner in which the book has been arranged in consequence. The great bulk of the Law of Evidence consists of nega- tive rules declaring what, as the expression runs, is not evidence. The doctrine that all the facts in issue and relevant to the issue, and no others, may be proved, is the im expressed principle which forms the centre of and gives unity to all these express negative rules. To me these rules always ap- peared to form a hopeless mass of confusion, which might be remembered by a great cfFort, but could not be under- stood as a whole, or reduced to a system, until it occiirred to me to ask the question, What is this evidence which you IISITRODVCTIO'S. tell me hearsay is not? The expression "hearsay is not evidence" seemed to assume that I knew by the light of nature what evidence was, but I perceived at last that that was just what I did not know. I found that I was in the position of a person who, having never seen a cat, is instructed about them in this fashion: "Lions are not cats, nor are tigers nor leopards, though you might be inclined to think they were." Show me a cat to begin with, and I at once understand both what is meant by saying that a lion is not a cat, and why it is jDossible to call him one. Tell me what evidence is, and I shall be able to understand why you say that this and that class of facts are not evidence. The question, "What is evidence ?" gradually disclosed the ambiguity of the word. To describe a matter of fact as "evidence" in the sense of testimony is obviously nonsense. No one wants to be told that hearsay, whatever else it is, is not testimony. What then does the phrase mean ? The only possible answer is: It means that the one fact either is or else is not considered by the person using the expres- sion to furnish a premiss or part of a premiss from which the existence of the other is a necessary or probable infer- ence — in other words, that the one fact is or is not relevant to the other. When the inquiry is pushed further, and the nature of relevancy has to be considered in itself, and apart from legal rules about it, we are led to inductive logic, which shows that the judicial evidence is only one case of the general problem of science — namely, inferring the un- known from the known. As far as the logical theory of the matter is concerned, this is an ultimate answer. The logical theory was cleared up by Mr. Mill. Bentham and INTRODUCTION. some other ^ writers had more or less discussed the con- nection of logic with the rules of evidence. But I am not aware that it occurred to any one before I published my ' Introduction to the Indian Evidence Act ' to point out in •detail the very close resemblance which exists between Mr. Mill's theory and the existing state of the law. The law has been worked out by degrees by many generations of judges who perceived more or less distinctly the principle on which it ought to be founded. The rules established by them no doubt treat as relevant some facts which cannot perhaps be said to be so. More frequently they treat as irrelevant facts which are really relevant, but exceptions excepted, all their rules are reducible to the principle that facts in issue or relevant to the issue, and no others, may be proved. The following outline of the contents of this work will show how in arranging it I have applied this principle. All law may be divided into Substantive Law, by which rights, duties, and liabilities are defined, and the Law of Procedure, by which the Substantive Law is applied to particular cases. The Law of Evidence is that part of the Law of Proce- dure which, with a view to ascertain individual rights and liabilities in particular cases, decides: I. What facts may, and what may not be proven in such cases: 1 See, e. g. that able and interesting book 'An Essay on Circum- stantial Evidence,' by the late Mr. Wills, father of Mr. Justice Wills, Chief Baron Gilbert's work on the Law of Evidence is founded on Locke's ' Essay,' much as my work is founded on Mill's 'Logic' IXTRODUCTIOy. II. What sort of evidence must be given of a fact which may be proved; III. By whom and in what manner the evidence must be produced by which any fact is to be proved. I. The facts which may be proved are facts in issue, or facts relevant to the issue. Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be dravrn. A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable, or improbable, according to the conunon course of events. * Four classes of facts, which in common life would usually be regarded as falling within this definition of relevancy, are excluded from it by the Law of Evidence except in certain cases: 1. Facts similar to, but not specially connected with each other. (Ees inter alios actce.) 2. The fact that a person not called as a witness has asserted the existence of any fact. (Hearsay.) 3. The fact that any person is of opinion that a fact exists. ( Opinion. ) * See Note I. INTRODUCTIOy. 4. The fact that a person's character is such as to render conduct imputed to him probable or improbable. (Char- acter.) To each of those four exclusive rules there are, however, important exceptions, which are d'efiiled by the Law of Evidence. II. As to the manner in which a fact in issue or relevant fact mizst be proved. Some facts need not be proved at all, because the Court will take judicial notice of them, if they are relevant to the issue. Every fact which requires proof must be proved either by oral or by documentary evidence. Every fact, except (speaking generally) the contents of a document, must be proved by oral evidence. Oral evi- dence must in every case be direct, that is to say, it must consist of an assertion by the person who gives it that he directly perceived the fact to the existence of which he testifies. Documentary evidence is either primary or secondary. Primary evidence is the document itself produced in court for inspection. Secondary evidence varies according to the nature of the document. In the case of private documents a copy of the document, or an oral account of its contents, is secondary evidence. In the case of some public documents, examined or certified copies, or exemplifications, must or may be produced in the absence of the documents themselves. Whenever any public or private transaction has been reduced to a documentary form, the document in which it xjcii IXTRODUCTIOy. is. recorded becomes exclusive evidence. of that transaction, and, its contents canjiot, excejjt in certain cases expressly deiined, be varied by oral evidence, though secondary evidence may be given of the contents of the document. III. As to the person by whom, and the manner in which the proof of a particular fact must be made. When a fact is to be proved, evidence must be given of it by the person upon whom the burden of jDroving it is. imposed, either by the nature of the issue or by any legal presumption, unless the fact is one which the party is estopped from proving by his own representations, or by his conduct, or by his relation to the opposite party. The witnesses by whom a fact is to be proved must be competent. With very few exceptions, every one is now a competent witness in all cases. Competent witnesses, however, are not in all cases compelled or even permitted to testify. The evidence must be given upon oath, or in certain excepted cases Avithout oath. The witnesses must be first examined in chief, then cross-examined, and then re-exam- ined. Their credit may be tested in certain ways, and the answers which they give to questions affecting their credit may be contradicted in certain cases and not in others. This brief statement will show what I regard as consti- tuting the Law of Evidence properly so called. My view of it excludes many things which are often regarded as form- ing part of it. The principal subjects thus omitted are as follows : — I regard the question, What may be proved under par- ticular issues? (which many writers treat as part of the Law INTRODUCTION. of Evidence) as belonging ijartly to the subject of pleading and partly to each of the different branches into which the Substantive Law may be divided. A is indicted for murder, and pleads Not Guilty. This plea puts in issue, amongst other things, the presence of any state of mind describable as malice aforethought, and all matters of justification or extenuation. Starkie and Roscoe treat these subjects at full length, as suppljdng answers to the question, What can be proved under an issue of Xot Guilty on an indictment for murder? Mr. Taylor does not go so far as this; but a great part of his book is based upon a similar principle of classification. Thus chapters i. and ii. of Part II. are rather a treatise on pleading than a treatise on evidence. Again, I have dealt very shortly with the whole subject of presumptions. My reason is that they also appear to me to belong to different branches of the Substantive Law, and to be imintelligible, except in connection with them. Take for instance the presumption that every one knows the law. The real meaning of this is that, speaking gen- erally, ignorance of the law is not taken as an excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part of the Law of Evidence. It belongs to the Criminal Law. In the same way numerous presump- tions as to rights of property (in particular easements and incorporeal hereditaments) belong not to the Law of Evi- dence but to the Law of Keal Property. The only pre- sumptions which, in my opinion, ought to find a place in the Law of Evidence, are those which relate to facts merely as facts, and apart from the particular rights which they IXTRODVCriOJf. constitute. Thus the rule, that a man not heard of for seven years is presumed to he dead, might be equally appli- cable to a dispute as to the validity of the marriage, an action of ejectment by a reversioner against a tenant pur autre vie, the admissibility of a declaration against inter- est, and many other subjects. After careful considera- tion, I have put a few presumptions of this kind into a chapter on the subject, and have passed over the rest as belonging to different branches of the Substantive Law. Practice, again, appears to me to differ in kind from the Law of Evidence. The rules which point out the manner in which the attendance of witnesses is to be procured, evidence is to be taken on commission, depositions are to be authenticated and forwarded to the proper officers, interrogatories are to be administered, &c., have little to do with the general principles which regulate the relevancy and proof of matters of fact. Their proper place would be found in codes of civil and criminal procedure. I have, however, noticed a few of the most important of these matters. A similar remark applies to a great mass of provisions as to the proof of certain particulars. LTnder the head of "Public Documents," Mr. Taylor gives amongst other things a list of all, or most, of the statutory provisions which render certificates or certified copies admissible in particular cases. To take an illustration at random, section 1458 (6th ed., 1872), begins thus : " The registration of medical practitioners imder the Medical Act of 1858, may be proved by a copy of the ' Medical Register,' for the time INTRODUCTION. being, purporting," &c. I do not wish for a moment to undervalue the practical utility of such information, or the industry displayed in collecting it ; but such provision as this appears to me to belong not to the Law of Evidence, but to the law relating to medical men. It is a matter rather for an index or schedule than for a legal treatise,, intended to be studied, understood, and borne in mind in practice. On several other points the distinction between the Law of Evidence and other branches of the law is more diiScult to trace. For instance, the law of estoppel, and the law relating to the interpretation of written instruments, both run into the Law of Evidence. I have tried to draw thq line in the case of estoppels by dealing with estoppels in pais only, to the exclusion of estoppels by deed and by matter of record, which must be pleaded as such ; and in regard to the law of written instruments by stating those rules only which seemed to me to bear directly on the question whether a document can be supplemented or explained by oral evidence. The result is no doubt to make the statement of the law much shorter than is usual. I hope, however, that com- petent judges will find that, as far as it goes, the statement is both full and correct. As to brevity, I may say, in the words of Lord Mansfield : — "The law does not consist of particular cases, but of general principles which are illustrated and explained in those cases." ^ Every one will express somewhat differently the princi- ples which he draws from a number of illustrations, and IR. V. Bembridge, 1783, 3 Doug. 332. INTRODUCTION. this is one source of that quality of our law which those who dislike it describe as vagueness and uncertainty, and those who like it as elasticity. I dislike the quality in question, and I used to think that it would be an improve- ment if the law were once for all enacted in a distinct form by the Legislature, and were definitely altered from time to time as occasion required. For many years I did my utmost to get others to take the same view of the subject, but I am now convinced by experience that the unwilling- ness of the Legislature to undertake such an operation proceeds from a want of confidence in its power to deal with such subjects, which is neither unnatural nor im- founded. It would be as impossible to get in Parliament a really satisfactory discussion of a Bill codifying the Law of Evidence as to get a committee of the whole House to paint a picture. It would, I am equally well satisfied, be quite as difficult at present to get Parliament to delegate its powers to persons capable of exercising them properly. In the meanwhile the Courts can decide only upon cases as they actually occur, and generations may pass before a doubt is set at rest by a judicial decision expressly in point. Hence, if anything considerable is to be done towards the reduction of the law to a system, it must, at present at least, be done by private writers. Legislation proper is under favourable conditions the best way of making the law ; but if that is not to be had, indirect legislation, the influence on the law of judges and legal writers, who deduce, from a mas-^ of precedents, such principles and rules to appear to them to be suggested by the great bulk of the authorities, and to l^e in themselves rational and convenient, is very much better than none at IXTRODUCTIOK. all. It has, indeed, special advantages, which this is not the place to insist npon. I do not think the law can be in a less creditable condition than that of an enormous mass of isolated decisions, and statutes assuming unstated prin- ciples; cases and statutes alike being accessible only by elaborate indexes. I insist upon this because I am well aware of the prejudice which exists against all attempts to state the law simply, and of the rooted belief which exists in the minds of many lawyers that all general propo- sitions of law must be misleading and delusive, and that law books are i^seless except as indexes. An ancient maxim says, " Omnis definitio in jure periculosa." Lord Coke wrote, "It is ever good to rely upon the books at large ; for many times compendia sunt dispendia, and Melius est petere f antes quam scdari rivulos." Mr. Smith chose this expression as the motto of his ' Leading Cases,' and the sentiment which it embodies has exercised immense influ- ence over our law. It has not perhaps been sufficiently ob- served that when Coke wrote, the " books at large,"' namely the ' Year Books ' and a very few more modern reports, con- tained probably about as much matter as two, or at most three, years of the reports published by the Council of Law Eeporting; and that the compendia (such books, say, as Fitzherbert's 'Abridgment') were merely abridg- ments of the cases in the ' Year Books ' classified in the roughest possible manner, and much inferior both in extent and arrangement to such a book as Fisher's ' Digest.'^ In our own days it appears to me that the true fontes 1 The ' Year Books ' from 1307-153.5, 228 years, would fill not more than twenty-five volumes of the ' Law Reports.' INTRODDCTION. are not to be found in reported cases, but in the rules and princii^les which such cases imply, and that the cases them- selves are the rivuli^the following of which is a dispendiuni. My attempt in this work has been emphatically petere fontes, to reduce an important branch of the law to the form of a connected system of intelligible rules and principles. Should the imdertaking be favourably received by the profession and the public, I hope to apply the same process to some other branches of the law; for the more I study and practise it, the more firmly am I convinced of the ex- cellence of its substance and the defects of its form. Our earlier writers, from Coke to Blackstone, fell into the error of asserting the excellence of its substance in an ex- aggerated strain, whilst they showed much insensibility to defects, both of substance and form, which in their time were grievous and glaring. Bentham seems to me in many points to have fallen into the converse error. He was too keen and bitter a critic to recognise the substantial merits of the system which he attacked; and it is obvious to me that he had not that mastery of the law itself which is unattainable by mere theoretical study, even if the stu- dent is, as Bentham certainly was, a man of talent, ap- proaching closely to genius. During the last generation or more Bentham's influence has to some extent declined, partly because some of his books are like exploded shells, buried under the ruins which they have made, and partly because, under the influ- ence of some of the most distinguished of living authors, great attention has been directed to legal history, and in particular to the study of Roman Law. It would be diffi- INTRODUCTION. cult to exaggerate the value of these studies, but their nature and use are liable to be misunderstood. This history of the Roman Law no doubt throws great light on the history of our own; and the comparison of the two great bodies of law, under one or the other of which the laws of the civilised world may be classified, cannot fail to be instructive; but the history of bygone institutions is valuable mainly because it enables us to understand, and so to improve, existing institutions. It would be a com- plete mistake to suppose either that the Eoman Law is in substance wiser than our own, or that in point of arrange-- ment and method the Institutes and the Digest are any- thing but warnings. The pseudo-philosophy of the Insti- tutes, and the confusion of the Digest, are, to my mind, iniinitely more objectionable than the absence of arrange- ment and of all general theories, good or bad, which dis- tinguish the Law of England. However this may be, I trust the present work will show that the Law of England on the subject to which it refers is full of sagacity and practical experience, and is capable of being thrown into a form at once plain, short, and systematic. I wish, in conclusion, to direct attention to the manner in which I have dealt with such parts of the Statute Law as are embodied in this work. I have given, not the very words of the enactments referred to, but what I understand to be their effect, though in doing so I have deviated as little as possible from the actual words employed. I have done this in order to make it easier to study the subject as a whole. Every Act of Parliament which relates to the Law of Evidence assumes the existence of the unwritten INTRODUCTION. law. It cannot, therefore, be fully understood, nor can its relation to other parts of the law be appreciated, till the unwritten law has been written down so that the provisions of particular statutes may take their places as parts of it. When this is done, the Statute Law itself admits of, and even requires, very great abridgment. In many cases the result of a number of separate enactments may be stated in a line or two. For instance, the old Common Law as to the incompetency of certain classes of witnesses was removed by parts of six different Acts of Parliament — the net result of which is given in four short articles (106-109). So, too, the doctrine of incompetency for peculiar or defective religious belief has been removed by many different enactments, the effect of which is shown in one article (123). The various enactments relating to documentary evi- dence (see chap, x.) appear to me to become easy to follow and to appreciate when they are put in their proper places in a general scheme of the law, and arranged according to their subject-matter. By rejecting every part of an Act of Parliament except the actual operative words which constitute its addition to the law, and by setting it (so to speak) in a definite statement of the unwritten law of which it assumes the existence, it is possible to combine brevity with substantial accuracy and fulness of state- ment to an extent which would surprise those who are acquainted with Acts of Parliament only as they stand in the Statute Book.-' At the same time I should warn anv 1 For a reference to statutes dealing strictly with evidence, see ISfote XLVIIL, post. IXTRODUCTIOX. one who may itse this book for the purposes of actual prac- tice in or out of court, that he would do well to refer to the very words of the statutes embodied in it. It is very possible that, in stating their effect instead of their actual words, I may have given in some particulars a mistaken view of their meaning. Such are the means by which I have endeavoured to make a statement of the Law of Evidence which will en- able not only students of law, but I hope any intelligent person who cares enough about the subject to study at- tentively what I have written, to obtain from it a knowl- edge of that subject at once comprehensive and exact — a knowledge which would enable him to follow in an intelli- gent manner the proceedings of Courts of Justice, and which would enable him to study cases and use text-books of the common kind Avith readiness and ease. I do not say more than this. I have not attempted to follow the matter out into its minute ramifications, and I have avoided refer- ence to what after all are little more than matters of curi- osity. I think, however, that any one who makes himself thoroughly acquainted with the contents of this book, will know fully and accurately all the leading principles and rules of evidence which occur in actual practice. If I am entitled to generalise at all from my ov/n a:;- perience, I think that even those who are already well acquainted with the subject will find that they understand the relations of its different parts, and therefore the parts themselves more completely than they otherwise would, by being enabled to take them in at one view, and to consider them in their relation to each other. LIST OF ENGLISH ABBREVIATIONS A. S E Atk. - B. & A. - - - B. & Ad. - - B. & B. B. & C. B. & P. - - B. & S. - - B. N. P. - Beav. - - - Bell, C. C. Beat - - - Bing. - - - Bing. N. C. - - Bligh Br. P. C. - - Buller, N. P. - - C. & F. - - C. & J. - C. & Marsh. C. & P. - C. B. - - €. B. (N. S.) - - C. M. & R. - - Camp. Car. & Kir. - Coke Cowp. ... Cox - - - Cox, C. C. - - D. (or Dears.) & B. Dears., or - - Dearsley & P. - De G. & J. - - Adolphiia & Ellis's Reports. Atkyns's Reports. Barnewall &, Alderson's Reports. Barnewall & Adolphus's Reports. Brodevip & Bingham's Reports. Barnewall & Cresswell's Reports. Bosanquet & Puller's Reports. Best & Smith's Reports. Buller's Nisi Prius. Beavan's Reports. Bell's Crown Cases. Best on Evidence, 6th ed. Bingham's Reports. Bingham's New Cases. Bligh's Reports, House of Lords. Brown's Parliamentary Cases. Buller's Nisi Prius. Clark & Finnelly's Reports. Crompton & Jervis's Reports. Carrington & ilarshman's Reports. Carrington «fe Payne's Reports. Common Bench Reports. Common Bench Reports. New Series. Crompton, Meeson, & Roscoe's Reports. Campbell's Reports. Carrington & Kirwan's Reports. Coke's Reports. Cowper's Reports. Cox's Reports, Chancery. Cox's Criminal Cases. :l Dearsley & Bell's Crown Cases. Dearsley's Crown Cases. De Gex & Jones's Reports, xxxiji LIST OP ABBREVIATION} 8. De G. M. & G. De Gex, Macnaghten, & Gi ruptcy Cases. De G. & S. De Gex & Smale's Reports. Den. C. C. - Denison's Crown Cases. Doug. - - Douglas's Reports. Dru. & War. Drury & Warren's Reports. E. & B. - - ■ - Ellis & Blackburn's Reports. Ea. . . . East's Reports. East, P. C. - ■ East's Pleas of the Crown. Esp. - - - - Espinasse's Reports. Ex. - - - ■ Exchequer Reports. Gordon's Bank- E. & F. Foster & Finlason's Reports. Gen. View Crim. Law Stephen's General View of the Criminal Law. Godbolt GodboH's Reports, K. B. H. & C. - H. & N. - H. L. C. - Hale, P. C. Hare - - H. Bl. Ir. Cir. Rep. Ir. Eq. Rep. Jac. & Wal. Jebb, C. C. K. & J. - Keen L. & C. - Leach M. & G. - M. & K. il. & M. M. & R. - M. & S. M. & W. Madd. Man. & Ry. Hurlstone & Coltman's Reports. Hurlstone & Norman's Reports. House of Lords Cases. Hale's Pleas of the Crown. Hare's Reports. H. Blaekstone's Reports. Irish Circuit Reports. Irish Equity Reports. Jacob & Walker's Reports. Jebb's Crown Cases (Ireland). Kay & Johnson's Reports. Keen's Reports, Chancery. Leigh & Cave's Crown Cases. Leach's Crown Cases. Manning & Granger's Reports. IMj'Ine & Keen's Reports. Moody & JIalkin's Reports. Jloody & Rj'an's Reports. Maule & Selwyn's Reports. Meeson & Welsby's Reports. Haddock's Reports. Planning & Eyland's Reports. LISr OF ABBREVIATIONS. MoNally Ev. _ MeNally's Rules of Evidence. Moo. C. C. Moody's Crown Cases. Moo. P. C. - -- Moore's Privy Council Reports. Mo. & Ro. - - Moody & Robinson's Reports. N. C. - - - Bingham's New Cases. Pea. R. - . - Peake's Reports. Phill. - - Phillip's Reports. Ph. Ev. - Phillips on Evidence, 10th ed. Price - - Price's Reports. Q. B. - - - Queen's Bench Reports. R. & R. - . - Russell & Ryan's Crown Cases. Rep. - Coke's Reports. R. N. P., or - i Roscoe's Nisi Prius, 16th ed. Roscoe, N. P. - Russ. Cri. - Russell on Crimes, 6th ed. Russ. & Myl. - Russell & Mylne's Reports, Chancery. Selw. N. P. . Selwyn's Nisi Prius. Simon - - Simons' Reports. Sim. (N. S.) - - Simons' Reports. New Series. Sim. & Stu. - - Simon & Stuart's Reports. S. L. C, or ■ I Smith's Leading Cases, 10th ed. Smith, L. C. - Star. Starkie's Reports. Starkie, or ■ Starkie on Evidence, 4th ed. Star. Ev. - S. T., or St. ' Tri. - State Trials. Swab. Ad. Swabey's Admiralty Reports. Sw. & Tr., or - ) Swabey & Tristram's Reports, Probate am Swa. & Tri., or ■ f Divorce. S. & T. - . J T. R. . - Term Reports. T. E. - - Taylor on Evidence, 9th ed. T?,u. - - - Taunton's Reports. Ve. . Vesey's Reports. Vin. Abr. - Viner's Abridgment. Wigram Wigram on Extrinsic Evidence. Wills' Circ. Ev. - - Wills on Circumstantial Evidence. Wils., or - - ■ ~ Wilson's Reports. Wilson - - - A DIGEST OF THE LAW OF EVIDENCE. A DIGEST OF THE LAW OF EVIDENCE. PART I. RELEVANCY. CHAPTEE I. PRELIMINABT. Aeticle 1.* DEFIlSriTIOISr OF TEEMS. In this book the following words and expressions are used in the following senses, unless a different intention appears from the context. " Judge " includes all persons authorised to take evi- dence, either by law or by the consent of the parties. " Fact " includes the fact that any mental condition of which any person is conscious exists. " Document " means any substance having any matter expressed or described upon it by marks capable of being read. * See Note I. A DIGEST OF [Pabt I. " Evidence " means — (1) Statements made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry ; such statements are called oral evidence : (2) Documents produced for the inspection of the Court or judge ; such documents are called documentary evidence : " Conclusive Proof " means evidence upon the produc- tion of which, or a fact upon the proof of which, the judge is bound by law to regard some fact as proved, and to ex- clude evidence intended to disprove it. " A presumption " means a rule of law that Courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved. The expression " facts in issue " means — (1) All facts which, by the form of the pleadings in any action, are affirmed on one side and denied on the other : (2) In actions in which there are no pleadings, or in which the form of the pleadings is such that distinct issues are not joined between the parties, all facts from the estab- lishment of which the existence, non-existence, nature, or extent of any right, liability, or disability asserted or denied in any such case would by law follow. The word " relevant " means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other. Chap. I.] THE LAW OF EVIDENCE. AMERICAN NOTE. General. Authotities. — 1 Greenleaf on Evidence (15th ed.), sees. 1, 14, 15, 33, 44, 49, 50; 1 Taylor ou Evidence ( Chamberlayne's 9th ed.), sees. 1, 70, 71, 109, 110, p. 2183. ' " Evidence " defined. — Mr. Thayer defines the term evidence as " any matter of fact which is furnished to a legal tribunal," regarding the definition of the text as too narrow in that it excludes matters of fact demonstrated to the senses of the judge, as where a coat is. put on in court to show its fit. Cases on Evidence, p. 2. Evidence presented to senses of judge. — An instance of evidence not included in the definition of the text, but embraced by Mr. Thayer's definition quoted in the note to this article, occurs in Broion v. Foster ^ 113 Mass. 137, where, in a controversy over the fit of a coat, the coat is put on. Mental condition. — Mental condition is to be established as a fact. Wheelden v. Wilson, 44 Me. 1 ; State v. Lee, 69 Conn. 197 ; Chandler V. Barrett, 21 La. Ann. 58, 99 Am. Dee. 701 ; Titconib v. Vantyle, 84 111. 371; Armstrong v. State, 30 Fla. 170, 17 L. R. A. 484. An alleged mental condition can be established by a mere predon- deranee of proof. Greene v. Phwnix Mut. Life Ins. Co., 134 111. 310, 10 L. E. A. 576. Where mental condition is in issue, evidence of condition before and after the time in question, if not too remote, is relevant. White V. Graves, 107 Mass. 325. " Presumption " defined. — " The term ' presumption ' is used to signify that which may be assumed without proof, or taken for granted." Ward v. Metropolitan Life Ins. Co., 66 Conn. 238. The conclusion or probable inference drawn in favor of the exist- ence of one fact from others in proof is a legal presumption. Tan- ner V. Hughes, 53 Pa. St. (3 P. F. Smith) 289; U. S. v. Searcey (D. C.) 26 Fed. R. 435. " A presumption, or a probability — for in this connection these words mean the same thing — is an inference as to the existence or non-existence of one fact from the existence or non-existence of some other fact, founded on a previous experience of that connection." Fay V. Reynolds, 60 Conn. 220. It is to be noted that the author uses the word " presumption " as referring to disputable presumptions of law only and treats " con- A DIGEST OF [Pakt I. elusive presumptions " under " conclusive proof." Presumptions of fact form no part of the law of evidence. They have " simply the force of an argument." Ward v. Metropolitan Life Ins. Co., 66 Conn. 239 (citing Stephen's Digest). ■ Test of relevancy. — " The lav? furnishes no test of relevancy. For this it tacitly refers to logic and general experience, — 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 sufficiently -known to them." Thayer's Preliminary Treatise on Evidence, p. 265. !• " Relevant " defined. — The definition of " relevant " of the text is adopted substantially in Plumb v. Curtis, 66 Conn. 166 • State v. Blake, 69 Conn. 76, both of which cite Stephen's Digest. Illustrations of relevant facts. — Upon the question as to whether a sale was in fraud of creditors, the declaration of the purchaser that he was not in condition to pay anything for the goods, is relevant. Dale V. Oower, 24 Me. (11 Shep.) 533. See also Trull v. True, 33 Me. 367. Testimony as to the management and speed of an engine at a cross- ing is relevant upon the question of the management and speed, about a minute later, at a crossing three-quarters of a mile distant. Lyman V. Boston & Maine R. R. Co., 66 N. H. 200; 11 L. R. A. 367. In an action against a railroad company, for closing a street on which the plaintiff owned a lot, evidence of the amount of travel pass- ing over the street is relevant. Johnston v. Old Colony R. R. Co._. 18 R. I. 642 ; 29 Atl. 594. Testimony that a wife attended to all her husband's business is rele- vant on the question of her agency in a particular transaction. San- lorn V. Cole, 63 Vt. 590; 14 L. R. A. 210. Evidence of extravagance is relevant in connection with other evidence in an embezzlement case. Hackett v. King, 8 Allen (Mass.), 144. That an employer paid for the board of some of his employees at various places, and that such was his general custom, is relevant upon the issue of whether he is liable for the board of a particular employee at a particular place. Dunght v. Brown, 9 Conn. 89. New York. " Evidence " defined. — Evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Greenleaf on Evidence (15th ed.), sec. 1, adopted in Dibble v. Dimmick, 143 Chap. I.] THE LAW OF EVIDENCE. N. Y. 554. It is " the medium of proof." People v. Beckwith, 108 N. Y. 73. The rules of evidence in civil and criminal cases are the same except where otherwise provided. Code Cr. Pro., sec. 392. Testimony. — The term testimony refers to evidence given by wit- nesses and excludes documentary evidence. DibUe v. Dimmick, 143 N. Y. 549, 554. Evidence presented to the senses of the triers. — A physical object, e. g., a piece of iron, may, under proper circumstances, be exhibited to the jury. King v. New York Central Railroad Co., 72 N. Y. 607. Moral evidence. — Moral evidence is evidence sufficient to induce a belief upon which men would act in their own affairs. Balcoch V. Fitchburg R. B. Co., 140 N. Y. 308, 311. Cumulative evidence. — Cumulative evidence is evidence of the same kind to the same point. People v. Superior Court, 10 Wend. 285, 294. The fact that evidence is cumulative does not in many instances lessen its importance. Abenheim v. Samuels, 22 N. Y. St. R. 636, 5 N. Y. Supp. 117, 16 N. Y. St. R. 907. Circumstantial evidence. — Circumstantial evidence is evidence of facts from which the existence of other facts may be inferred. Peo- ple V. Harris, 136 N. Y. 423. It is admissible both in civil and in criminal cases, and sometimes is the most convincing that can be had. People v. Videto, 1 Park. 603; People v. Davis, 46 N. Y. St. R. 213; 9 N. Y. Grim. 334; affirmed, on opinion below, in 135 N. Y. 646. It is not error to refuse to charge that direct evidence is always the most satisfactory. People v. Johnson, 140 N. Y. 350, 55 N. Y. St. R. 783. In order to convict on circumstantial evidence, the facts must be such as to exclude every reasonable hypothesis except that of guilt; the jury must have no reasonable doubt of the essential facts. Lowenstein's Trial, p. 330 ; Stephens v. People, 4 Park. 396 ; affirmed by 19 N. Y. 549; Plunket's Case, 3 City Hall Records, 137; Atwood's Case, 4 City Hall Records, 91; Jefferds v. People, 5 Park. 522; Peo- ple V. Cunningham, 6 Park. 398; People v. Harris, 136 N. Y. 423, 49 N. Y. St. R.' 751; People v. Kelly, 11 App. Div. 495; appeal dismissed in 153 N. Y. 651; People v. Fitzgerald, 156 N. Y. 253 (reversing 20 App. Div. 139), 46 N. Y. Supp. 1020. Where the court has charged to this effect it is not error to refuse to charge, that mere probability of guilt is not sutHcient to warrant 'A DIGEST OF [Paet I. conviction. People v. Wright, 136 N. Y. 625, 49 N. Y. St. E. 70. The facts themselves must be proven, not inferred. People v. Ken- nedy, 32 N. Y. 141; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90, reversing 89 Hun, 604. A nonsuit cannot be ordered on the ground that all the evidence is circumstantial. Ross v. 'New York, 4 Rob. 49. See also People V. Cassin, 42 N. Y. St. R. 133; affirmed, on opinion below, in 136 N. Y. 633; People v. Hamilton, 137 N. Y. 531, 50 N. Y. St. R. 22. The rules as to circumstantial evidence are obligatory on juries. Canton's Case, 2 City Hall Records, 149. Rules prescribed by Congress. — Rules of evidence prescribed by Congress are not binding on the State courts. Caldwell v. 'New Jer- sey Steamboat Co., 56 Barb. 425, 47 N. Y. 282 (on appeal) ; People V. Gates, 43 N. Y. 40. Changing rules of evidence. — Rules of evidence may be changed by statute. Howard v. Moot, 64 N. Y. 262; People v. Cannon, 139 N. Y. 32; Beglin v. Metropolitan Life Ins. Co., 66 N. Y. Supp. 206, 32 Misc. Rep. 254. " Presumption " defined. — " A presumption is an inference of fact not Itnovvn, arising from its necessary or usual connection with others which are known. Hilton v. Bender, 69 N. Y. 82. As to presumptions, See Vlrieh v. Ulrich, 136 N. Y. 120. Presumption created by statute. — A disputable presumption may be lawfully created by statute. Howard v. Moot, 64 N. Y. 268. " Relevant " defined. — " The meaning of the word ' relevant,' as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the' truth of it. It comes from the French word reliever, which means to assist." Platner v. Platner, 78 N. Y. 95. Any fact is relevant, which tends to make the proposition at issue, either more or less improbable. Ostrander v. Snyder, 75 Hun, 378; affirmed, on opinion below, in 148 N. Y. 757. As to relevancy, see also Cowley v. People, 83 N. Y. 464. Illustration of relevant facts. — Evidence which assists the trier in knowing which of two parties is speaking the truth as to the issues is relevant. Platner v. Platner, 78 N. Y. 90. The fact that one is an infidel or atheist does not tend to show that his death was through suicide. Gibson v. Am. Mut. Life Ins. Co., 37 N. Y. 580, 584. Chap. I.] THE LAW OF EVIDENCE. Where a physician is charged for malpractice, it cannot be shown that he never demanded his compensation. Baird v. Oillett, 47 N. Y. 186. On a claim of usury, in a particular transaction, it cannot be shown thr.t the lender customarily made usurious bargains. Jack- son V. Smith, 7 Cow. 717, 719. On a claim that a fire set by a locomotive spread through the neg- ligence of the railroad company, the fact that more men were em- ployed than before to watch for sparks after the fire is relevant, it being conceded that some men were necessary. Westfall v. Erie R. R. Co., 5 Hun, 75. Where it is alleged that a scow was negligently sunk and the owner has testified that she was seaworthy, he may be asked on cross-examination with reference to previous sinkings claimed to be accidental. Baird v. Daly (Ct. of App. N. Y.), 3 L. & Eq. Rep. 573. See also Tracy r. McManus, 58 N. Y. 257. On the question whether credit was given to the defendant or his son, evidence of the pecuniary inability of the son and of the fact that the defendant had paid debts due other persons from him is too remote. Oreen v. Disbrow, 56 N. Y. 334. In a suit on a written contract, proof that a portion of it was the usual agreement between parties so situated is inadmissible. Bean V. Carleton, 51 Hun, 318, 21 N. Y. St. R. 220, 4 N. Y. Supp. 61, 6 N. Y. St. R. 641. See also 36 N. Y. St. R. 123, 124. In a prosecution for murder, evidence is admissible of the presence of blood at the place of the alleged killing. People v. Minesci, 12 N. Y. St. R. 719. Cost of property is admissible on the question of value. Earlam V. Green, 62 N. Y. Supp. 1029, affirmed, 64 N. Y. Siipp. 79, 31 Misc. Rep. 261. Other illustrations of relevancy. — Bronner v. Frauenthal, 37 N. Y. 166, 9 Bos. 350; Schmidt v. Schanzlin, 21 J. & S. 498; Keuka College v. Ray, 60 N. E. 325, 167 N. Y. 96, affirming 58 N. Y. Supp. 745; Millspaugh v. Potter, 71 N. Y. Supp. 134; Richard- son V. Emmett, 70 N. Y. Supp. 546, 61 App. Div. 205; Bernstein V. Holtz, 69 N. Y. Supp. 892; O'Horo v. Kelsey, 70 N. Y. Supp. 14; Squire v. Press Pub. Co., 68 N. Y. Supp. 1028, 58 App. Div. 362; Wilder v. Moffat, 67 N. Y. Supp. 1001, 33 Misc. Rep. 777; Maimone V. Dry-Dock, E. B. & B. R. Co., 68 N. Y. Supp. 1073, 58 App. Div. 383; Aikin v. Westcott, 123 N. Y. 363, reversing 12 N. Y. St. R. 600; Gorham v. Price, 25 Hun, 11; Brennan v. Gale, 67 N. Y. Supp. 10 A DIGEST OF [Pakt I. 382, 56 App. Div. 4; Webster v. Fredericks, 17 Wkly. Dig. 324; Peck V. Fredericks, 17 Wkly. Dig. 324; Jones v. Eaton, 27 Wkly. Dig. 56; Bean v. Carleton, 51 Hun, 318, 21 N. Y. St. R. 220, 4 N. Y. Supp. 61, 6 N. Y. St. R. 641. See same case, 36 N. Y. St. R. 123, 124; Cornish v. Graff, 36 Hun, 160, affirming 7 Civ. Pro. 204; Knallakan V. Becfc, 47 Hun, 117; Goldenson v. Lawrence, 16 Mise. Rep. 570, 38 N. Y. Supp. 991, affirming 15 Misc. Rep. 489; Phillips v. Arguynhau, 37 N. Y. St. R. 890; Z)oct« v. Marvine, 54 N. E. 704, 160 N. Y. 269, reversing 42 N. Y. Supp. 322, 11 App. Div. 440; Mayer v. Dean, 115 N. Y. 556, reversing 22 J. & S. 315; Wilcox v. Poi/Jie, 28 N. Y. St. R. 712, 8 N. Y. Supp. 407, affirming 4 N.' Y. Supp. 358, 19 N. Y. St. R. 893; Morris v. Wells, 26 N. Y. St. R. 9, 7 N. Y. Supp. 61; Turver v. Field, 13 N. Y. St. R. 12. Chap. II.] THE LAW OF EVIDENCE. 11 CHAPTEK II. of facts in issue and relevant to the issue. Article 2.* facts in issue and facts relevant to the issue may be proved. Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue unless it ia hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue, whether it is or is not relevant thereto. Provided that the judge may exclude evidence of facta which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case. Illustration. (o) A is indicted for the murder of B, and pleads not guilty. The following facts may be in issue: — The fact that A killed B; the fact that at the time when A killed B he was prevented by dis- ease from knowing right from wrong; the fact that A had received from B such provocation as would reduce A's offence to manslaughter. The fact that A was at a distant place at the time of the murder would be relevant to the issue; the fact that A had a good character would be deemed to be relevant; the fact that C on his deathbed de- clared that C and not A murdered B would be deemed not to be relevant. * See Note II. 12 A DIGEST OF [Part I. AMERICAN NOTE. General. Authorities.— 1 Greenleaf on Evidence (15th ed.), sees. 49-55; McKelvey on Evidence, p. 126 et seq.; Thayer's Preliminary Treatise on Evidence, pp. 265, 266 ; Trull v. True, 33 Me. 367. " Unless excluded by some rule or principle of law, all that is logi- cally probative is admissible." Thayer's Preliminary Treatise on Evidence, p. 265. " No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teach- ings of reason and judicial experience. Thayer's Cases on Evidence, pp. 2, 3. If the evidence conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. Ins. Co. v. Weide, il Wall. 438, 440." Plumb V. Curtiss, 66 Conn. 166; Ward v. Young, 42 Ark. 542. All relevant facts are admissible unless it is affirmatively shown that they are excluded by some rule of law. " Evidence is admitted not because it is shown to be competent, but because it is not shown to be" incompetent." Plumi v. Curtis, 66 Conn. 166. Testimony which tends to support only a portion of the plaintiflf's case is not thereby made irrelevant or incompetent. Gardner v. Cren- shaw, 122 Mo. 79, 27 S. W. 612; Bartlett v. Evarts, 8 Conn. 527. The admissibility of relevant evidence is not affected by the /act that it was obtained illegally or improperly. Trash v. People, 151 111. 523. As by a decoy letter. Andrews v. V. 8., 162 U. S. 420. Facts interwoven with relevant facts are admissible. St. Clair V. U. S., 154 V. S. 134, 149. Remote evidence. — If evidence is of facts too remote to be ma- terial, the judge may exclude it. White v. Graves, 107 !Uass. 325. Collateral facts. — Irrelevant facts are sometimes called " collateral facts." 1 Greenleaf on Evidence (15th ed.), sec. 52, adopted in Eaton V. Telegraph Co., 68 Me. 67; Moore v. Richmond, 85 Va. 538. New York. Must be relevant or deemed to be relevant. — Johnson v. Carley, 53 How. Pr. 326; Whintringham v. Dibble, 66 N. Y. 634; Van Buren v. Wells, 19 Wend. 203: Fuller ^•. Clark. 3 E. D. Smith, 302; Aber- hall V. Roach, 3 E. D. Smith, 345, 11 How. Pr. £5. Chap. II.] THE LAW OF EVIDENCE. 13 Evidence is relevant, which tends to establish the issue. It is ad- missible if not excluded by some rule of evidence. Plainer v. Plai- ner, 78 N. Y. 90. It is error to rule out evidence directly tending to support the issues. Scholey v. Mumford, 64 N. Y. 521 ; Rumsey v. Cook, 9 Hun, 129; Hayes v. Ball, 72 N. Y. 418. Such as evidence which tends to negative the defence. Banks v. Carter, 7 Daly, 417. Or to explain and thus defeat a prima facie case. Richard v. Wellingion, 66 N. Y. 308; Wallis v. Randall, 16 Hun, 33, 81 N. Y. 164. Evidence cannot be excluded on account of any defect in the plead- ings, which can be cured by amendment. Lathrop v. Godfrey, 3 Hun, 739, 6 S. C. 96. Evidence is not to be rejected because not covered by the case stated in the opening address of counsel. Wearing v. Bell, 5 Hill, 291. The court may refuse to admit evidence on an immaterial issue. Corning v. Corning, 6 N. Y. 97. But compare Welch v. Lynch, 1 Barb. 380. Incompetent evidence once admitted is in the case and it cannot be objected, on appeal, that a fact was not proved, because of this incompetency. Flora v. Bariean, 38 N. Y. 111. Where evidence is competent for one purpose only, its operation must be restricted to that purpose. Raynor v. Timerson, 46 Barb. 518. Evidence may be admissible even though it relates only to a ques- tion of costs. Kelley v. McMahon, 37 Hun, 212. Where a wife has taken title merely as a cover for her husband, admissible evidence against him is admissible against her. Balloe V. Ballou, 110 N. Y. 394, 18 N. Y. St. R. 620. The relevancy of evidence depends in part on the state of the pleadings. Hill v. Stocking, 6 Hill, 277. The amendment of an answer already admitted does not destroy its effect as evidence. Hersfeld v. Reinach, 60 N. Y. Supp. 658, 44 App. Div. 326. The competency of testimony depends on its bearing upon the issue at the time of the oiler, not on the conclusions reached after- wards. Winchell v. Winchell, 100 N. Y. 158, 165, reversing 17 Wkly. Dig. 104. If part of document is competent, it is not rendered incompetent by the fact that it contains inadmissible statements. Dutchess Co. V. Harding, 49 N. Y. 321. 14 A DIGEST OF [Part I. Evidence arising after the action was commenced may be admitted to explain facts occurring before. McLeod v. Johnson, Antli. N. P. 25. Tlie plaintiff may elect to which count he will apply his evidence. BurdicJc v. Green, 18 Johns. 14. Must not be too remote. — Elliott v. Giblons, 31 N. Y. 67, 30 Barb. 498; Kettletas v. Mayhee, 2 Edm. S. C. 362; Nicholson v. Wafol, 70 N. y. 604; Ryan v. People, 79 N. Y. 593; McLoghlin v. National Mohawk Valley Bank, 139 N. Y. 514. Collateral facts. — Irrelevant facts are called also collateral facts. McLoghlin v. Mohaick, etc., Bk., 139 N. Y. 514, 523. Collateral facts inadmissible. — Townsend Manufacturing Co. v. Foster, 51 Barb. 346; affirmed by the Court of Appeals. See 41 N. Y. 620. Sherman v. Kortwright, 52 Barb. 267. Immaterial evidence cannot be introduced on the question of costs. Tucker v. Stephens, 4 S. C. 593. Evidence need not be conclusive. — One may testify as to spots of blood on the clothes of a prisoner accused of murder, without call- ing for a chemical analysis. People v. Fernandez, 35 N. Y. 49. Testimony is not to be ruled out as irrelevant, because it does not at once establish the whole issue. If not followed up by con- necting proof, the adverse party may request the court to direct the jury to disregard it. Murphy v. Boker, 3 Rob. 1, 28 How. Pr. 251; Polhamus v. Moser, 7 Rob. 489. Replying to irrelevant evidence. — The court may refuse to admit testimony given in reply to irrelevant evidence admitted without objection. Farmers & Manufacturers' Bank v. Whinfield, 24 Wend. 419. Relevancj' generally. — See article 1. Motions to strike out, and matters of practice, generally. — See article 126. Article 3. eelevancy of facts forming part of the same transaction as the facts in issue. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a Chap. II.] TEE LAW OF EVIDENCE. 15 contract, a wrong or any other subject of inquiry wliicl] may be in issue. Every fact which is part of the same transaction as the facts in issue is deemed to be relevant to the facts in issue, although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay. Whether any particular fact is or is not part of the same transaction as the facts in issue is a question of law upon which no principle has been stated by authority and on which single judges have given different decisions. When a question as to the ownership of land depends on the application to it of a particular presumption capable of being rebutted, the fact that it does not apply to other neighbouring pieces of land similarly situated is deemed to be relevant. Illustrations. (a) The question was, whether A murdered B by shooting him. The fact that a witness in the room with B when he was shot, saw a man with a gun in his hand pass a window opening into the room in which B was shot, and thereupon exclaimed, " There's butcher ! " (a name by which A was known), was allowed to be proved by Lord Campbell, L. C. J.l 1 B. V. Fowkes, Leicester Spring Assizes, 1856. Ex relatione O'Brien, Serjt. In the report of this case in the Times for March 8, 1856, the evidence of the witnesses on this point is thus given: — " William Fowkes : My father got up [ ? went to] the window, and opened it and shoved the shutter back. He waited there about three minutes. It was moonlight, the moon about the full. He closed the window but not the shutter. My father was returning to the sofa when I heard a crash at the window. I turned to look and hooted, ' There's butcher.' I saw his face at the window, but did not see him 16 A DIGEST OF [Pabt I. ( h ) The question was, whether A cut B's throat, or whether B cut it herself. A statement made by B when running out of the room in which her throat was cut immediately after it had been cut was not allowed to be proved by Cockburn, L. C. J.2 (c) The question was, whether A was guilty of the manslaughter of B by carelessly driving over him. A statement made by B as to the cause of his accident as soon as he was picked up was allowed to be proved by Park, J., Gurney, B., and Patteson, J., though it was not a dying declaration within article 26.3 (d) The question is, whether A the owner of one side of a river owns the entire bed of it or only ha,lf the bed at a particular spot. plain. He was standing still outside. I aren't able to tell who it was, not certainly. I could not tell his size. While I was hooting the gun went off. I hooted very loud. He was close to the shutter or thereabouts. It was only open about eight inches. Lord, Camp- tell: Did you see the face of the man? Witness: Yes, it was moon- light at the time. I have a belief that it was the butcher. I believe it was. I now believe it from what I then saw. I heard the gun go off when he went away. We heard him run by the window through the garden towards the park.'' Upon cross-examination the witness said that he saw the face when he hooted and heard the report at the same moment. The report adds, " The statement of this witness was confirmed by Cooper, the policeman (who was in the room at the time) except that Cooper saw nothing when William Fowkes hooted, ' There's butcher at the window ! ' " He stated he had not time to look before the gun went off. In this case the evidence as to W. Fowkes's statement could not be admissible on the ground that what he said was in the prisoner's presence, as the window was shut when he spoke. It is also obvious that the fact that he said at the time " There's butcher " was far more likely to impress the jury than the fact that he was at the trial uncertain whether the person he saw was the butcher, though he was disposed to think so. 2 R. v. Bedingfield, Suffolk Assizes, 1879, 14 Cox C. C. 341. The propriety of this decision was the subject of two pamphlets, one by W. Pitt Taylor, who denied, the other by the Lord Chi3f Justice, who maintained it. 3 R. V Foster, 1834, 6 C. & P. 325. Chap. II.] THE LAW OF EVIDENCE. 17 The fact that he owns the entire bed a little lower down than the spot in question is deemed to be relevant.* (e) The question is, whether a piece of land by the roadside be- longs to the lord of the manor or to the owner of the adjacent land. The fact that the lord of the manor owned other parts of the slip of land by the side of the same road is deemed to be relevant.^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 108; Mc- Kelvey on Evidence, p. 277 et seq.; Com. v. Backett, 2 Allen (Mass.), 136; Haynes v. Rutter, 24 Pick. (Mass.) 242; Com. v. MoPihe, 3 Cush. (Mass.) 181. The rule of the text is included under the rule that res gestce are admissible, that term being defined as " the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character." Stirling v. Buckingham, 46 Conn. 464, adopted in Pinney v. Jones, 64 Conn. 55, and Norwalk v. Ireland, 68 Conn. 14. A transaction is not ended so long as the parties to it remain to- gether, and anything, according to the usual course of proceeding, re- mains to be done. Fifield v. Richardson, 34 Vt. 410. Declarations or acts antecedent to the transaction, and conse- quently forming no part thereof, are inadmissible. Louisville & N. R. Go. v. Stewart, 56 Fed. R. 808, 6 C. C. A. 147, 9 U. S. App. 564; Young v. Keller, 16 Mo. App. 550. The whole of a transaction is admissible. Ins. Co. v. Moseley, 8 Wall. (U. S.) 379, 405; Vickshurg & Meridean R. R. Co. v. O'Brien, 119 U. S. 99, 105; Peabody v. Dewey, 153 111. 657; Ward v. White, 86 Va. 212, 19 Am. St. Kep. 883; People v. Yernon, 35 Cal. 49, 95 Am. Dec. 1 ; Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Hep. 838. In determining the meaning of a deed, another deed, executed at the same time, between the same parties and relating to the same subject- matter, is admissible on the theory that the two form parts of one agreement. Simonds v. Shields, 72 Conn. 146. In an action against a steamboat company, for personal injuries, * Jones V. Williams, 1837, 2 M. & W. 326. B Doe V. Kemp, 1831, 7 Bing. 332 ; 2 Bing. N. C. 102. 2 18 A DIGEST OF [Part I. the plaintiff may show that after he was taken from the water the captain treated him in an inhuman manner. " It was competent for the plaintiff to prove the whole transaction." Ball v. Conn. River Steamhoat Co., 13 Conn. 325. See also Thomas v. Beck, 39 Conn. 241. In a suit against a municipal corporation to recover damages for the obstruction of a way by digging, it may be proved as part of the res gestw, for whom those doing the work claimed to be working. Wiley V. Portsmouth, 64 N. H. 214, 9 Atl. 220. Narration of past events. — A mere narration of past events, even though made soon after the transaction, is not admissible. Knox v. Wheelock, 54 Vt. 150; Talor v. Hardin, 9 Ky. Law Rep. 491; Travel- er's Ins. Co. V. Sheppard, 85 Ga. 751, 12 S. E. 18; Hooper v. Carey, 86 la. 494, 53 N. W. 415; Rowland v. Phila., W. & B. R. R. Co., 63 Conn. 419; Haynes v. Rutter, 24 Pick. (Mass.) 242; Lane v. Bryant, 9 Gray (Mass.), 245; Eastman v. B. & M. R. R. Co., 165 Mass. 342. New York. Authorities for first proposition of text. — Waldele v. N. Y. C. R. R. Co., 95 N. Y. 274; People v. Davis, 56 N. Y. 95; Eighmy v. People, 79 N. Y. 546 ; Finkelstein v. Barnett, 17 Misc. 564, 40 K. Y. Supp. 694, affirming 16 Misc. Rep. 488; Boardman >. Lake Shore <£ Michigan Southern Railroad Co., 84 N. Y. 157 ; People v. Zounek, 49 N. Y. St. R. 642, 10 N. Y. Crim. 251; Cassidy v. Uhlmann, 66 N. Y; Supp. 670, 54 App. Div. 205. The declarations to be admissible as part of the res gestw must accompany the act and so harmonize with it as to be obviously part of the same transaction. Moore v. Meacham, 10 N. Y. 207, 210; Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; Hallahan v. 'New York, Lake Erie Railroad Co., 102 N. Y. 194. In an action of deceit, for a misrepresentation as to the quantity of land sold, a statement of the defendant, after the delivery of the deed, but before the parties had separated, is evidence. Thomas v. Beehe, 25 N. Y. 244. As to when facts form one transaction, see Butler v. Manhattan Ry. Co., 143 N. Y. 417, 42 Am. St. Rep. 738. Letters relating to a contract and the question whether it has been performed are admissible in a suit for breach of contract where they were sent in the usual course of business and are connected with conversations between the parties with reference to the matter. White v. McNulty, 58 N. E. 1094, affirming 49 N". Y. Supp. 00.3, 26 App. Div. 173. Chap. II.] THE LAW OF EVIDENCE. 19 On the question of the identity of certain goods shipped to New York from London, the custom-house entry and invoice are part of the res gestce. Brooks v. Conner, 10 Daly, 183. Narrative of past events. — A narrative of past events is not ad- missible. Olp V. Gardner, 48 Hun, 169; Liiby v. Hudson River B. R. Co., 17 N. Y. 131; Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274, 278; Martin v. 2f. Y., etc., R. R. Co., 103 N. Y. 626; People v. Davis, 56 N. Y. 95; Maine v. People, 9 Hun, 113; People v. Mur-pky„ 101 N. Y. 126. Article 4.* acts of cokspieatoes. When two or more persons conspire together to commit any offence or actionable wrong, everything said, done, or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done, or written by every one, and is deemed to be a relevant fact as against each of them ; but statements made by individ- ual conspirators as to measures taken in the execution or furtherance of any such common purpose are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made. Evidence of acts or statements deemed to be rele- vant under this article may not be given until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy to which they relate. Illustrations. (a) The question is, whether A and B conspired together to cause certain imported goods to be passed through the custom-house on payment of too small an amount of duty. The fact that A made in a book a false entry, necessary to be made * See Note III. 20 A DIGEST OF [Pakt I. in that book in order to carry out the fraud, is deemed to be a rele- vant fact as against B. The fact that A made an entry on the counterfoil of his cheque- book showing that he had shared the proceeds of the fraud with B, is deemed not to be a relevant fact as against B.6 ^6) The question is, whether A committed high treason by imagin- ing the king's death; the overt act charged is that he presided over an organised political agitation calculated to produce a rebellion, and directed by a central committee through local committees. The facts that meetings were held, speeches delivered, and papers circulated in different parts of the country, in a manner likely to produce rebellion by and by the direction of persons shown to have acted in concert with A, are deemed to be relevant facts as against A, though he was not present at those transactions, and took no part in them personally. An account given by one of the conspirators in a letter to a friend, of his own proceedings in the matter, not intended to further the common object, and not brought to A's notice, is deemed not to be relevant as against A.T AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence {15th ed.), sec. Ill; Mc- Kelvey on Evidence, p. 108 ; Logan v. U. 8., 144 U. S. 263 ; Brown V. U. S., 150 U. S. 93 ; Walls v. State, 125 Ind. 400 ; Com. v. Tivnon, 8 Gray (Mass.), 375, 69 Am. Dec. 248; Com. v. Scott, 123 Mass. 235, 25 Am. Eep. 81; Com. v. Smith, 151 Mass. 491; Com. v. Grownin- shield, 10 Pick. (Mass.) 497; Com. v. Brown, 14 Gray (Mass.), 419; Com. V. Waterman, 122 Mass. 43. Authorities on the first paragraph of the text. — State v. Soper, 16 Me. 293, 33 Am. Dec. 665; Aldrich v. Warren, 16 5Ie. 465; Lee v. Lamprey, 43 N. H. 13; Jacobs v. Shorey, 48 N. H. 100; 97 Am. Dec. 586; Jeune v. Joslyn, 41 Vt. 478; Cowles v. Coe, 21 Conn. 235; State V. Glidden, 55 Conn. 78, 79; Knower v. Cadden Clothing Co., 57 Conn. 222; State v. Thompson, 69 Conn. 720; State v. Shields, 45 Conn. 263. The evidence described in this article comes in as part of the res gestw. State v. Soper, 16 Me. 293, 33 Am. Dec. 665. f>B. V. Blake, 1844, 6 Q. B. 126. 1 R. V. Hardy, 1794, 24 S. T. passim, but see particularly 451-3. Chap. II.] THE LAW OF EVIDENCE. 21 Subsequent statements as to measures. — The rule of the text aa to statements made subsequently by individual conspirators, as to measures taken, is supported by State v. Larkin, 49 N. H. 39; Com. V. Ingraham, 7 Gray (Mass.), 46; Moore v. Shields, 121 Ind. 267; Samples v. State, 121 111. 547. Acts done after the purpose of the conspiracy has been accom- plished may be admissible. Com. v. Scott, 123 Mass. 235, 25 Am. Rep. 81. Civil and criminal cases. — The rule of this article applies to both civil and criminal cases. Knower v. Cadden Clothing Co., 57 Conn. 222; Lowe v. Dalrymple, 117 Pa. St. 564; Beeler v. Webi, 113 111. 436; People v. Parker, 67 Mich. 222; Goins v. State, 46 Ohio St. 457. Common purpose. — The things must have been said, done or written in the execution or furtherance of the common purpose. Knower v. Cadden Clothing Jo., 57 Conn. 222; State v. McGee, 81 la. 17. The time when any one became a conspirator is immaterial: he is thereafter deemed a party-conspirator to all acts done by any con- spirator in furtherance of the common purpose. V. S. v. Johnson, 26 Fed. Rep. 682; Bonner v. State, 107 Ala. 97. Conversations between A and B, during the pendency of the crim- inal enterprise, although after the doing of the act which the parties conspired to commit, is admissible against C, the other conspirator, in a trial for conspiracy. Com. v. Smith, 151 Mass. 491. See also Com. V. Crowinshield, 10 Pick. (Mass.) 497; Com. v. Brovm, 14 Gray (Mass.), 419; Com. v. Waterman, 122 Mass. 43. Preliminary proof. — The rule of the text as to preliminary proof of the conspiracy is supported by Knower v. Cadden Clothing Co., 57 Conn. 222. As to last statement of text, see Sudd v. Barrows, 91 U. S. 426; Spies V. People, 122 111. 1, 3 Am. St. Rep. 320; Logan v. U. 8., 144 U. S. 263, 309; Am. Fur Co. v. U. S., 2 Pet. 358, 365; Lincoln v. Claflin, 7 Wall. 132, 139; Lent v. Shear, 55 N. E. 2, 160 N. Y. 462, reversing 46 N. Y. Supp. 1095; Ormsiy v. People, 53 N. Y. 472. The existence of the common purpose is primarily to be passed upon by the court, for the purpose of deciding on the admissibility of the evidence, but is ultimately for the jury. Com. v. Brown, 14 Gray (Mass.), 419; State v. Thompson, 69 Conn. 729. The court must be satisfied that there is sufficient evidence to war- rant the jury in finding a combination. Cowles v. Coe, 21 Conn. 234; 22 A DIGEST OF [Part I. Knower v. Cadden Clothing Co., 57 Conn. 223 ; State v. Thompson, 69 Conn. 720. i New York. Authorities on first paragraph of text. — People v. Kerr, 6 N. Y. Cr. Rep. 406; Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110; People v. Gorham, 16 Hun, 93; Miller v. Barber, 66 N. Y. 558; Apthorp V. Comstock, 2 Paige, 482. Reason of the rule. — The evidence comes in as part of the res gestw. Dewey v. Moyer, 72 N. Y. 70; Garnsey v. Rhodes, 138 N. Y. 461. Statements by conspirators. — People v. McKane, 143 N. Y. 455. Instances. — Where the master of a ship and others have con- spired to defraud the insurers, declarations made in carrying out the conspiracy are admissible. Voisin v. Commercial Mut. Ins. Co., 70 N. Y. Supp. 147. In an action based on false representations in a sale of stock, misstatement of a third person with whom the defendant had entered into a conspiracy to sell the stock, not known to the plaintiff, are not part of the res gestw, and are inadmissible. Darling v. Klock, 59 N. E. 1121. Judgment (1898), 53 N. Y. Supp. 593, 33 App. Div. 270, affirmed. Common purpose. — The statements must be in the execution of the common purpose. Garnsey v. Rhodes, 138 N. Y. 461. In order to show a common interest and purpose, evidence is ad- missible of participation of the defendant at other times with the same persons in the same business. People v. Bassford, 3 N. Y. Cr. 219. Civil and criminal cases. — The rule of the text applies alike to civil and criminal cases. People v. Davis, 56 N. Y. 95; Cuyler v. McCartney, 40 N. Y. 321. If offered in a criminal case, the conspiracy need not be charged in the indictment. People v. McKane, 143 N. Y. 470, 38 N. E. 950. Statements as to past acts. — Statements by a co-conspirator de- tailing past acts are inadmissible. People v. McQuade, 110 N. Y. 284; Guaranty Co. v. Gleason, 78 N. Y. 503. There must be evidence of a combination " sufficient for the jury." People V. McKane, 143 N. Y. 470, 38 N. E. 950. The order of proof is within the discretion of the court, and he may adinit the declaration on the promise of counsel to introduce evidence of conspiracy later. Place v. Minster, 65 N. Y. 89. Chap. II.] THE LAW OF EVIDENCE. 23 The existence of the conspiracy may be shown by circumstantial evidence as by showing acts and declarations of such a notice as to lead to an inference of common design. People v. Peckens, 153 N. Y. 576. Article 5.* TITLE. When the existence of any right of property, or of any right over property is in question, every fact which consti- tutes the title of the person claiming the right, or which shows that he, or any person through whom he claims, was in possession of the property, and every fact which consti- tutes an exercise of the right, or which shows that its exer- cise was disputed, or which is inconsistent with its existence or renders its existence improbable, is deemed to be rele- vant. Illustrations. {a) The question is, whether A has a right of fishery in a river. An ancient inquisitio post mortem finding the existence of a right of fishery in A's ancestors, licenses to fish granted by his ancestors, and the fact that the licensees fished under them, are deemed to be relevant.8 ( b ) The question is, whether A owns land. The fact that A's ancestors granted leases of it is deemed to be relevant.9 (c) the question is, whether there is a public right of way over A's land. The facts that persons were in the habit of using the way, that they were turned back, that the road was stopped up, that the road was repaired at the public expense, and A's title-deeds showing that * See Note IV. ; see aJso Article 88 as to the proof of ancient deeds. 8 Rogers v. Allen, 1808, 1 Camp. 309. 9Z)op V. Pulman, 1842, 3 Q. B. 022, 623, 626 (citing Duke of Bed- ford v. Lopes). The document produced to show the lease was a counterpart signed by the lessee. See jiost, art. 64. 24 A DIGEST OF [Paet I. for a length of time, reaching beyond the time when the road was Bald to have been used, no one had power to dedicate it to the public, are all deemed to be relevant.io (d) The question is, whether A has a several fishery in a river. The proceedings in a possessory suit in the Irish Court of Chancery by the plaintiff's predecessor in title, and a decree in that suit quiet- ing the plaintiff's predecessor in his title, is relevant, as showing pos- session and enjoyment of the fishery at the time of the suit.n AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 34, 53a; 1 Taylor on Evidence ( Chamberlayne's 9th ed.), sec. 123; Abbott's Trial Evidence (2d ed.), p. 873. Boston V. Richardson, 105 Mass. 351 ; Gloucester v. Gaffney, 8 Allen (Mass.), 11; Berry v. Raddin, 11 Allen (Mass.), 577; Osgood V. Coates, 1 Allen (Mass.), 77; Brown v. Cantrell, 62 Ga. 257; Eayne v. Hermann, 97 Cal. 259, 32 Pae. 171. Evidence of the character indicated in the text is admissible as a part of the res gestos. Harriman v. Hill, 14 Me. 127; McDonald v. McDonald, 136 Ind. 603, 36 N. E. 286. On questions of title, declarations explanatory of acts of possession, and in disparagement of title, are admissible. Parker v. Marston, 34 Me. 386; Bennett v. Camp, 54 Vt. 36; Ho65s v. Cram, 22 N. H. 130; Blount V. Homey, 43 Mo. App. 644. Mere declarations in favor of title, not explanatory of any act by one in possession, are not admissible. Smith v. Martin, 17 Conn. 401; Morrill v. Titcomb, 8 Allen (Mass.), 100; Osgood v. Coates, 1 Allen (Mass.), 77. The fact of executing a chattel mortgage may thus be shown. Chil- lingworth v. Eastern Tinware Co., 66 Conn. 313. Statements, by one in possession of property, to the effect that it was his, and the fact that he offered to sell it, and repaired it at his 10 Common practice. As to the title-deeds, Brough v. Lord Scars- dale, Derby Summer Assizes, 1865. In this case it was shown by a series of family settlements that for more than a century no one had had a legal right to dedicate a certain footpath to the public. 11 tieill V. Duke of Devonshire, 1882, L. R. 8 App. p. 135, and see especially p. 147. Chap. II.] TEE LAW OF EVIDENCE. 25 own expense, are admissible on the question of title, being acts " while he was in the possession of it, which naturally and usually flow from and accompany the ownership of personal property." Avery v. dem- ons, 18 Conn. 309. New York. Authorities. — Eosford v. Ballard, 39 N. Y. 147; Miller v. L. I. R. R. Co., 71 N. Y. 380; Cagger v. Lansing, 64 N. Y. 417; Bogardus v. Trinity Church, 4 Sandf. Ch. 675, 633 ; Waring v. War- ren, 1 Johns. 340. Disputed boundaries. — As to what evidence is admissible to estab- lish boundary through wild lands, see Eunt v. Jackson, 19 N. Y. 279. As to what evidence is admissible, to establish acquiescence in a practical location, see Ratoliffe v. Gray, 3 Keyes, 510, c. 4 Abb. Dec. 4. Article 6. CUSTOMS. Wten the existence of any custom is in question, every fact is deemed to be relevant which shows how, in particular instances, the custom was understood and acted upon by the parties then interested. Illustrations. (o) The question is, whether, by the custom of borough-English as prevailing in the manor of C, A is heir to B. The fact that other persons, being tenants of the manor, inherited, from ancestors standing in the same or similar relations to them as that in which A stood to B, is deemed to be relevant.12 iz Muggleton v. Barnett, 1856, 1 H. & N. 282; and see Johnstone V. Lord Spencer, 1885, 30 Ch. Div. 581. It was held in this ease that a custom might be shown by uniform practice which was not men- tioned in any custumal Court roll or other record. For cases of evi- dence of a custom of trade, see Ex parte Powell, in re Mathews, 1875, 1 Ch. D. 501 ; and Ex parte Turquand, in re Parker, 1885, 14 Q. B. D. 636. See too the Notes on Wigglesworth and Dallison, in 1 Smith's Leading Cases. 26 A DIGEST OF [Part I. (6) The question was, whether by the custom of the country a tenant-farmer not prohibited by his lease from doing so might pick and sell surface flints, minerals being reserved by his lease. The fact that under similar provisions in leases of neighbouring farms flints were taken and sold is deemed to be relevant.13 AMERICAN NOTE. General. Authorities. — 2 Greenleaf on Evidence (15th ed.), see. 252; Knowles v. Dow, 22 N. H. 387, 403, 55 Am. Dec. 163; First Nat. Bank v. Goodscll, 107 Mass. 149; Morse v. Woodworth, 155 Mass. 233, 29 N. E. 525; Chateaugay Ore & Iron Co. v. Blahe, 144 U. S. 476; Governor v. ^¥ithess, 5 Gratt. (Va. ) 24, 50 Am. Dec. 95; Adams v. Pittsburg Iron Co., 95 Pa. St. 348, 40 Am. Eep. 662. But see 27 Am. & Eng. Encyclopaedia of Law ( 1st ed. ) , p. 738. To prove that a note executed by C, as treasurer of a town, was the note of the town, — Held, that evidence was admissible of votes passed by the town, from time to time, during a long period of years, au- thorizing its treasurers to borrow money, for the use of the town, and that the treasurers, under such votes, had generally given notes for the money borrowed, similar in form to that in question, which had always been paid by the town, by which also the treasurers' reports, mentioning these bonds, had always been accepted. Bank of Neio Mil- ford V. New Milford, 36 Conn. 100. The purchaser of a cemetery lot from the person who laid out the cemetery received a deed, from the language of which it was uncertain whether a title to the adjoining alleys passed or not. Held, that evi- dence was admissible in favor of the grantor that it was the custom in other cemeteries, both in the same town and elsewhere, for the orig- inal proprietors to have and retain the right of control, etc., over the alleys. Seymour v. Page, 33 Conn. 66. Trade Customs. — As to proving customs of trade or business, see Mathias v. O'Neill, 94 Mo. 520, 6 S. W. 253; Adams v. Piltshurgh Ins. Co., 95 Pa. St. 348, 40 Am. Eep. 662; Chateaugay Iron Co. v. Blake, 144 U. S. 476. One witness enough. — A usage may be established by one witness. Robinson v. U. 8., 13 Wall. 363; Sawtelle v. Drew, 122 Mass. 228. 13 Tucker v. Linger, 1882, L. E. 21 Ch. Div. 18 ; and see p. 37. Chap. II.] THE LAW OP EVrDENCE. 27 New York. Authorities. — Dickinson v. Poughkeepsie, 75 N. Y. 65; Mills v. Hallock, 2 Edw. Ch. 652; Smith v. Floyd, 18 Barb. 522. One witness enough. — Bissell v. Campiell, 54 N. Y. 353. Article 7. motive^ peepaeation^ subsequent conduct^ explana- tory statements. When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say — any fact which supplies a motive for such an act, or which constitutes preparation for it ;^* any subsequent conduct of such person apparently in- fluenced by the doing of the act, and any act done in conse- quence of it by or by the authority of that person.-'^ Illustrations. ( a ) The question is, whether A murdered B. The facts that, at the instigation of A, B murdered C twenty-five years before B's murder, and that A at or before that time used ex- pressions showing malice against C, are deemed to be relevant aa showing a motive on A's part to murder B.i6 ( 6 ) The question is, whether A committed a crime. The fact that A procured the instruments with which the crime was committed is deemed to be relevant.17 (c) A is accused of a crime. 14 Illustrations (a) and (6). 15 Illustrations (c) {d) and (e). 16 i?. V. Clewes, 1830, 4 C. & P. 221. 17 R. V. Palmer, 1856, printed report from Notes of Angelo Taylor and Gen. View, 230-272, passim. 28 A DIGEST OF [Pakt T. The facts that, either before or at the time of, or after the alleged crime, A caused eircumstanoea to exist tending to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed things or papers, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned per- sons to give false evidence, are deemed to be relevant.18 (d) The question is, whether A committed a crime. The facts that, after the commission of the alleged crime, he ab- sconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, and the manner in which he conducted himself when statements on the subject were made in his presence and hearing, are deemed to be relevant.19 (e) The question is, whether A suffered damage in a railway acci- dent. The fact that A conspired with B, C, and D to suborn false wit- nesses in support of his case is deemed to be relevant,20 as conduct subsequent to a fact in issue tending to show that it had not happened. AMERICAN NOTE. - General. Authorities. — Underbill on Evidence, sec. 9; McKelvey on Evi- dence, p. 146; 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 503 et seq. Motive. — Facts supplying a motive may be shown in connection with other evidence. State v. Palmer, 65 N. H. 216; Dodge v. Car- roll, 59 N. H. 237; State v. Watkins, 9 Conn. 52, 54; Com. v. Mc- Carthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42; Com. v. Abiott, 130 Mass. 472; Com: v. Choate, 105 Mass. 451; Com. v. Hudson, 97 Mass. 565; Com. v. Vaughan, 9 Cush. (Mass.) 594; Scott V. People, 141 111. 195; Benson v. State, 119 Ind. 488; Tucker V. Tucker, 74 Miss. 93, 32 L. R. A. 623 ; State v. Glahn, 97 Mo. 679 ; Moore v. V. 8., 150 U. S. 57; Alexander v. O. S., 138 U. S. 353. 18 ie. v. Patch, 1805, Wills Circ. Ev. (4th ed.) 239; R. v. Palmer, ub. sup. (passim). 19 Common practice. 20 Moriarty v. London, Chatham and Dover Ry. Co., 1870, L. R. 5 Q. B. 314; compare Grey v. Redman, 1875, 1 Q. B. D. 161. Chap. II.] THE LAW OF EVIDENCE. 29 That the victim had been pressing the accused for payment of a debt is relevant, as showing motive, in a trial for murder. Com. v. Webster, 5 Gush. (Mass.) 295. The fact of excessive insurance may be shown in the trial of the owner of a house, who is charged with unlawfully burning it, as it tends to supply a motive. Com. v. McCarthy, 119 Mass. 354; State V. Cohn, 9 Nev. 179. Evidence of motive must not be too remote. Com. v. Abbott, 130 Mass. 472. Threats. — Threats to do the act may be proved. Caverno v. Jones, 61 N. H. 623; State v. Day, 79 Me. 120; State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Mead v. Busted, 49 Conn. 337; State v. Hoyt, 46 Conn. 330; State v. Haivley, 63 Conn. 49; State v. Eallaher, 70 Conn. 398; State v. Fry, 67 la. 475; People v. Eaton, 59 Mich. 559; Com. v. Holmes, 157 Mass. 233; Com. v. Croioe, 165 Mass. 140. Remote and obscure allusions, by the accused, to the act in contem- plation are admissible on a criminal prosecution, a.a tending to show an existing disposition or design. State v. Hoyt, 47 Conn. 538, 539. The threats of third persons are not admissible. State v. Beaudeaut, 53 Conn. 536. Preparation. — Acts of preparation may be proved. Com. v. Choate, 105 Mass. 451; Com. v. Blair, 126 Mass. 40; Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; People v. Hope, 62 Cal. 291; Spies v. People, 122 111. 1; McManus v. Com., 91 Pa. 57. As tending to show whether a horse was sold with or without a warranty, the advertisement of the sale is admissible. McGaughey v. Richardson, 148 Mass. 608. That the accused obtained the instruments with which the crime was committed may be proved. Com. v. Roach, 108 Mass. 289 ; Com. v. Blair, 126 Mass. 40. Malice. — Declarations showing malice towards the victim are ad- missible. Mead v. Husted, 49 Conn. 337; State v. Hoyt, 46 Conn. 330; Com. v. Ooodwin, 14 Gray (Mass.), 55; Com. v. Holmes, 157 Mass. 233. Statement of intention. — And so is a declaration of intention to do the act. Mills v. Sword Lumber Co., 63 Conn. 108. But a declaration that one will not do a certain act is not admis- sible to show that he did not do it. Fowler v. Madison, 55 N. H. 171. Sustaining text. — Elwell v. Russell, 71 Conn. 462. Subsequent conduct. — The making of false statements after the al- leged act, which would tend to give a wrong impression concerning the 30 A DIGEST OF [Pakt I. connection of the one sought to be held accountable with the act, may be shown. State v. Reed, 62 Me. 129; State v. Benner, 64 Me. 267; Com. V. Webster, 5 Cush. (Mass.) 316, 52 Am. Dec. 711; Com. v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; State v. Reed, 62 Me. 129. And so may the fabrication of evidence. State v. Williams, 27 Vt. 226; Lyons v. Lawrence, 12 111. App. 53; Eeslop v. Heslop, 82 Pa. 537. And efforts to secure the absence of witnesses. State v. Barron, 37 Vt. 57; State v. Nocton, 121 Mo. 537; and attempts to bribe a juror. Hastings v. Stetson, 130 Mass. 76; Taylor v. Oilman, 60 N. H. 506; or to escape justice. State v. Frederic, 69 Me. 400; State V. Palmer, 60 N. H. 216, 20 Atl. 6; Hickory v. U. S., 160 U. S. 408. The subsequent conduct of the alleged victim may also be shown, e. g., in assault with intent to procure an abortion. State v. Lee, 69 Conn. 186. Willingness or unwillingness to be searched may be shown. Riley V. Gourley, 9 Conn. 161. The accused, in order to meet evidence that he gave a false account of himself, cannot show that on other occasions he gave a true account. Com. V. Goodwin, 14 Gray (Mass.), 55. Hiding or flight after the act, to avoid arrest, may be proved. Com. V. Annis, 15 Gray (Mass.), 197; Com. v. Tolliver, 119 Mass. 312; Com. v. Brigham, 147 Mass. 414. Authorities on the last proposition of the text. — Elwell v. Russell, 71 Conn. 462; Jewell v. Jewell, 1 How. (U. S.) 219, 232; Morris v. French, 106 Mass. 326; Banfield v. Whipple, 10 Allen (Mass.), 27; Mitchum v. State, 11 Ga. 615, 621; Taylor v. Gilman, 60 N. H. 506; Lovell V. Briggs, 2 N. H. 218. In a civil case the conduct of any one naturally influenced by the al- leged act may be shown. Thus the question being whether a gift was made, the conduct of the alleged donee may be shown. Brown v. Butler, 71 Conn. 582. Evidence of repairs after an accident has been held irrelevant on the issue of negligence. A. T. <£• S. F. R. R. Co. v. Parker, 53 Fed. Rep. 595, and cases cited. New York. Authorities.— PeopJe v. Jones, 99 N. Y. 667; Jewett v. Banning, 21 N. Y. 27. Chap. II.] THE LAW OF EVWEl^CE. 3) Preparation. — Acts of preparation may be shown. McKee v. State, 36 N. Y. 113; Walsh v. People, 88 N. Y. 458. Motive. — Motive may be shown. McKee v. People, 36 N. Y. 113 Reinhart v. People, 82 N. Y. 607; Murphy v. People, 63 N. Y. 590 Pontius V. People, 82 N. Y. 339; Wright v. Nostrand, 94 N. Y. 31 Pierson v. People, 79 N. Y. 424; People v. Johnson, 139 N. Y. 358 WaisA V. People, 88 N. Y. 458; People v. /Sfcoit, 153 N. Y. 40. Statement of intention. — In a suit to recover money alleged to be due on a policy of accident insurance, declarations by the de- ceased, when he was last seen alive, that he was going on business to a certain place near where his body was found are competent evidence. Landon v. Preferred Ace. Ins. Co., 60 N. E. 1114, affirm- ing 60 N. Y. Supp. 188, 43 App. Div. 487. A map delivered with a deed is admissible to show what land is conveyed, as it tends to show the intention. O'Donohue v. Cronin, 70 N. Y. Supp. 737. Declarations of one that he intends to buy land with pension moneys, or that he has so bought them, cannot be shown, unless they were a part of the res gestce in an action between his widow and a municipality upon the issue of whether such property is ex- empt from taxation, as having been purchased with pension moneys. Toal v. City of 'Sew York, 69 N. Y. Supp. 454, 34 Misc. Eep. 18. Threats. — Threats are admissible in a homicide trial where it is material to show which side began the encounter, and this is so even though they are unknown to the other. Stokes v. People, 53 N. Y. 174. Subsequent conduct. — If incompetent evidence as to subsequent conduct is admitted the error is cured by the action of the court in striking it out, and directing the jury to disregard it. People v. Schooley, 149 N. Y. 99, affirming 89 Hun, 391. Evading arrest. — It is competent to show that the accused at- tempted to evade the officers. People v. Taylor, 3 N. Y. Cr. 297. Fabricating evidence. — That one has attempted to fabricate evi- dence for the purposes of defense may be shown. People v. Bass- ford, 3 N. Y. Cr. 219. Bribing witnesses. — It is competent to show that an agent of a party employed to collect testimony and interview witnesses has resorted to bribery even though he was not expressly authorized to employ such means. Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433, 60 N. E. 32, reversing 66 N. Y. Supp. 533. Evidence of bribery while admissible is not conclusive. It is 32 A DIGEST OF [Pakt I. proper to warn the jury not to give undue importance to such testi- mony. Nowack V. Metropolitan St. By. Co., 166 N. Y. 433, 60 N. E. 32, reversing 66 N. Y. Supp. 533. False or evasive testimony. — Falsehood and evasion by the ac- cused are proper evidence upon the question of his guilt or inno- cence. People V. Conroy, 97 N. Y. 62, 80, 2 N. Y. Cr. 565, 33 Hun, 119. Failure to testify. — The failure of a party to appear and testify may be considered and such failure may be explained on his part by showing circumstances which prevented him from giving his evi- dence. Brown v. Barse, 10 App. Div. 444, 42 N. Y. Supp. 306. The non-attendance of the plaintifl who has personal knowl- edge of the transaction, to appear and testify on the trial is a cir- cumstance to be considered by the jury. Brooks v. Steen, 6 Hun, 516. Failure to call witnesses. — The failure of the accused to produce witnesses accessible to him may be considered as tending to strengthen the evidence given against him. People v. Grimshaw, 33 Hun, 505, 510, 2 N. Y. Cr. 390. Evidence to account for the absence of a witness may be intro- duced, as for instance that he is under arrest. Pease v. Smith, 5 Lans. 519, 61 N. Y. 477. For limitations of the rule, see Ward v. St. Vincent's Hospital, 72 N. Y. Supp. 587. Where a party takes every step to compel the attendance of the witness, his failure to appear is not to be considered as affecting his case. Judgment (1895), 35 N. Y. Supp. 325, 89 Hun, 449, afSrmed. Manhattan Life Ins. Go. v. Alexander, 53 N. E. 1127, 158 N. Y. 732. In order to justify a charge that the jury should consider the failure of a party to call witnesses as to the terms of a contract alleged to have been made orally, it must appear that there is a claim that such person had some knowledge of the facts. Mow- tray v. Gould, 71 N. Y. Supp. 365, 63 App. Div. 158. Authorities on the last statement of the text. — Ryan v. People, 79 N. Y. 593; People v. Ogle, 104 N. Y. 511; Adams v. People, 9 Hun, 89; Donahue v. People, 56 >>^. Y. 208; People v. Rath- lun, 21 Wend. 509; Storer v. People, 56 N. Y. 315; Lindsay v. People, 63 N. Y. 143; Foster v. People, 63 N. Y. 619; People v. Conroy, 97 N. Y. 62, 80 ; Greenfield v. People, 85 N. Y. 75 ; Ruloff's Case, 11 Abb. Pr. (N. S.) 245, 269: Giilrrette v. McEinley, 27 Hun, 320; Gardiner v. People, 6 Park. Cr. 155, 158. Chap. II.] THE LA^V OF EVIDENCE. 33 Aeticle 8.* statements accompalirying acts, complaints, state- ments in presence oe a person. Whenever any act may be proved, statements accompany- ing and explaining that act made by or to the person doing it may be proved if they are necessary to understand it.^' In criminal cases the conduct of the person against whom the offence is said to have been committed, and in particular the fact that soon after the offence he made a complaint to persons to whom he would naturally complain, are deemed to be relevant. The terms of the complaint are irrelevant ; except that in a case of rape or other sexual offence where the consent of the person against whom the offence was com- mitted to the act charged as an offence is in issue, the terms of the complaint are relevant as showing that the conduct of such person was consistent with the denial of consent. ^^ When a person's conduct is in issue or is deemed to be relevant to the issue, statements made in his presence and hearing by which his conduct is likely to have been affected, are deemed to be relevant.^ ♦ See Note V. 21 Illustrations ( a ) and ( 5 ) . Other statements made by sueli per- sons are relevant or not aeeording to the rules as to statements here- inafter contained. See eh. iv. post. 22jB. v. Lillyman, [1896], 2 Q. B. 167; see Illustration (c) and the note thereto. 23 ij. V. Edmunds, 1833, 6 C. & P. 164; Neil v. Jakle, 1849, 2 C. & K. 709. 3 34 A DIGEST OF [Paet I. Illustrations. (a) The question is, whether A committed an act of bankruptcy, by departing the realm with intent to defraud his creditors. Letters written during his absence from the realm, indicating such an intention, are deemed to be relevant faets.24 ( & ) The question is, whether A was sane. The fact that he acted upon a letter received by him is part of the facts in issue. The contents of the letter so acted upon are deemed to be relevant, as statements accompanying and explaining such con- duct.25 (c) The question is whether A was ravished. The fact that shortly after the alleged rape, she made a complaint relating to the crime, and the terms of the complaint, and the cir- cumstances under which it was made, are relevant.26 The fact that, without making a complaint, she said that she had been ravished, is not deemed to be relevant as conduct under this article, though it might be deemed to be relevant (e. g.) as a dying declaration under article 26. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 108; 2 Tay- lor on Evidence ( Chamberlayne's 9th ed.), p. 39146, sec. 581; Under- bill on Evidence, sec. 52. Statements accompanying act. — Authorities on the first paragraph of the text. Hall v. Young, 37 N. H. 134; Carter v. Beals, 44 X. H. 408 ; Whittemore v. Wentworth, 76 Me. 20 ; Lund v. Tynsborough, 9 Gush. (Mass.) 36, 41; Kingsford v. Hood, 105 Mass. 495; Place V. Gould, 123 Mass. 347; Milford v. Bellingham., 16 Mass. 108; Deveney v. Baxter, 157 Mass. 9; Bank v. Kennedy, 17 Wall. 19, 24; ^ Rawson v. Haigh, 1824, 2 Bing. 99; Bateman v. Bailey, 1794, 5 T. R. 512. 25 Wright v. Doc d. Tatham, 1837, 7 A. & E. 324-5 {per Denman, C. J.). 26 U. V. Lillyman, [1896], 2 Q. B. 167. The above illustration and that portion of the text which is founded on it, are intended to ex- press the decision in this case; but see Note V. as to the diflSculties to which it has given rise. Chap. II.] THE LAW OF EVIOBXCE. 35 .« _ McDowell V. Goldsmith, 6 Md. 319, 338, 61 Am. Dec. 305; Eamilton V. State, 36 Ind. 280, 10 Am. Rep. 22, «.; Bagly v. Massie, 38 Ala. 89, 79 Am. Dec. 82. In order that evidence be admissible as part of the res gestce the act which it characterizes, and of which it forms a part, must be ad- missible. Pinney v. Jones, 64 Conn. 550, 42 Am. St. Hep. 209. Declarations made by one as he is leaving town, that he is going to a particular place for a particular purpose, are admissible in favor of his representatives, as a part of the res gestce. Douglas v. Chapin, 26 Conn. 92. Where the residence of one is in issue, a statement while travelling towards the place claimed on the trial as his residence, that he " was going home " to B, is admissible, ^^ew Milford v. Sherman, 21 Conn. 112. In questions of domieil and the like, statements accompanying an act of removal are admissible. Fulham v. Howe, 62 Vt. 386; Deer Isle V. Winterport, 87 Me. 37; Rudd v. Rounds, 64 Vt. 432; Viles V. Waltham, 157 Mass. 542; Johnson v. Sherwin, 3 Gray (Mass.), 374. Declarations of one paying money are admissible on an issue in- volving the application to be made of the payment. Woodstooh ,v. Clark, 25 Vt. 308. Where sanity is in question statements accompanying conduct are relevant. Foster's Exrs. v. Dickerson, 64 Vt. 233; Barber's Appeal, 03 Conn. 393. The question being where the commanding officers of a company of soldiers on a steamboat were, and what they were doing to keep order at the time of a disturbance on board, evidence was offered of a conversation between a sergeant and commissioned officer in the saloon, referring to the disturbance as then going on upon deck, and the action to be taken to quiet it. Held, to be admissible on the ques- tion at issue, and as part of the res gestce. Flint v. Norwich & 'New York Transp. Co., 7 Blatchf. 543-547 (U. S. Circuit Court) ; affirmed in 13 Wall. 3. Narrative of past events. — A narrative of past events is inadmis- sible. Cottison V. Cottison, 22 Pa. 375; Rohinson v. State, 57 Md. 14. Compare Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Chicago, etc., R. Co. v. Chancellor, 165 111. 438; Baxter v. Camp, 71 Conn. 246. In an action for injuries caused by the bite of a dog, evidence of the declaration of the plaintiff that she had been bitten by the dog. 3G A DIGEST OF [Part I. made to her mother within five minutes of the injury, is but a nar- rative of a past event, and inadmissible as part of the res gestcB. M'Carrick v. Kealy, 70 Conn. 642. Complaints. — The American authorities generally state the rule that the fact of complaint is relevant as applying only to prosecu- tions for rape and other offenses against women. American Law Review, vol. xiv, pp. 829-838; Eaynes v. Com., 28 Gratt. (Va.) 942, and the authorities at the head of this note. In rape cases the fact of complaint may be shown. State v. Car- roll, 67 Vt. 477 ; Com. v. Phillips, 162 Mass. 504 ; Stevens v. People, 158 111. Ill; People v. Stewart, 97 Cal. 238; Cross v. State, 132 Ind. 65; Parker v. State, 67 Md. 329; Lee v. State, 74 Wis. 45; Johnson v. State, 17 Ohio, 593; Oleson v. State, II Neb. 276, 38 Am. Rep. 366. A delay of weeks or months, if explained, does not render the fact of complaint inadmissible. State v. Wilkins, 66 Vt. I. Nor does that of more than a year. It simply afifects the weight of the evidence. State v. Byrne, 47 Conn. 465, 466, 467. The conduct of a woman subsequent to the commission of an al- leged abortion may be shown in a prosecution against one for per- forming the abortion. State v. Lee, 69 Conn. 196. ♦Evidence of constancy in accusation is admissible. State v. De Wolf, 8 Conn. 99. Terms of complaint irrelevant. — The terms of the complaint are irrelevant. State v. Knapp, 45 N. H. 148, 155. In some States the converse of the rule of the text as to com- plaints in prosecutions for offenses against women has been held and the terms of the complaint are considered relevant. State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436; Burt v. State. 23 0. St. 394; Bill v. State, 5 Lea (Tenn.), 725. See, also, Benton v. Starr, 58 Conn. 285. So where the complainant is a girl of tender years. Harmon v. State, 70 Wis. 448. Statements of others. — Authorities on the rule of the text that statements made in the presence of one are admissible. Johnson v. Day, 78 Me. 224, 3 Atl. 647; Morrill v. Richcy. 18 N. H. 295; Ettin- ger v. Com., 98 Pa. 338 ; Watt v. People, 126 111. 9 ; Commy v. State, 118 Ind. 482; B. d W. R. R. Co. v. Dana, 1 Gray (Mass.), 83; Com. V. Call, 21 Pick. (Mass.) 515; Waldridge v. Arnold, 21 Conn. 424; People V. Shea, 8 Cal. 538; Knou-lton v. Clark, 25 Ind. 391; Friend V. Hamill, 34 Md. 298, 308. But see Mattocks v. Lyman, 16 Vt. 113. The admissibility of statements made in the presence of a person Chap. II.] THE LA^Y OF EVIDENCE. 37 under the last paragraph of the text, rests upon the theory that tacit acquiescence constitutes an admission. Johnson v. Day, 78 Me. 224. Proctor V. Old Colony R. R. Co., 154 Mass. 251. The rule applies when the statements charge the commission of a crime. State v. Reed, 62 Me. 129; Com. v. Galavan, 9 Allen (Mass.), 271; Com. v. BaHey, 134 Mass. 527. The rule does not apply where the circumstances are such that the person cannot speak, as where the statements are made in court. State V. Boyle, 1.3 E,. I. 537; Martin v. Capital Ins. Co., 85 la. 643. But see Brainard v. Buck, 25 Vt. 573, 60 Am. Dec. 291. But if the person were subsequently called as a witness, and had an opportunity to reply, the rule of the text is applicable. Blanchard V. BodgUns, 62 Me. 119. It has no application where a reply is not naturally called for. Oale V. Lincoln, 11 Vt. 152; Hersoy v. Barton, 23 Vt. 685; Pierce's Admr. v. Pierce, 66 Vt. 369, 29 Atl. 364; Drury v. Hervey, 126 Mass. 519. If a reply is made it is admissible. Com. v. Trefethen, 157 Mass. 180. It does not apply where the person cannot hear or comprehend the statements. Tufts v. Gharlestoum, 4 Gray (Mass.), 537. Such evi- dence may go to the jury with the evidence showing that the state- ment was not heard. M alien v. Boynton, 132 Mass. 443; Com. v. Sliney, 126 Mass. 49. It does not apply where the person has no knowledge of the inter- est affected by the claim of admission or of the facts. Ware v. Ware, 8 Me. 42; BoUnson v. Blen, 20 Me. 109. New York. First paragraph of text. — People v. O'Sullivan, 104 N. Y. 481, 58 Am. Hep. 530; Bacio v. People, 41 N. Y. 265 ; Russeau v. Bleau, 60 Hun, 259, 38 N. Y. St. E. 221, 14 N". Y. Supp. 712; reversed on another point in 42 N. Y. St. K. 871; Tibbits v. PUpps, 51 N. Y. Supp. 954, 30 App. Div. 274, 57 N. E. 1126, 163 N. Y. 580; Clark v. National Shoe & Leather Bank, 58 N. E. 659, 52 N. Y. Supp. 1064, 164 N. Y. 498; McDuffle V. Clark, 39 Hun, 166, 17 N. Y. St. R. 358; Whitehead v. N. Y. Life Ins. Co., 102 N. Y. 143, 154, reversing 33 Hun, 425, 63 How. Pr. 394; Glenn v. Burrows, 37 Hun, 602, 119 N. Y. 660; Sims V. Bodge, 50 Hun, 410, 21 N. Y. St. R. 955, 3 N. Y. Supp. 228, 121 N. Y. 671 ; Van Cort v. Van Cort, 4 Edw. Ch. 621 ; Nelson v. Hyde, 66 Barb. 59; Crook v. Harper. 8 Daly, 53; Bigelow v. Hall, 91 N. Y. 145; Eager v. Crawford, 70 N. Y. 97; Potts v. Hart, 99 N. Y. 168; 38 A DIGEST OF [Paet I. Corning v. Walker, 100 N. Y. 547, affirming 28 Hun, 435; Wright V. Dugan, 15 Abb. N. C. 107; Baker v. Baker, 16 Abb. N. C. 293; McCall V. Moschcowitz, 10 Civ. Pro. 107, 126. But see Algie v. Wood, 11 J. & S. 46; OiUs v. Huyler, 9 J. & S. 190; McGrau v. Tat- ham, 84 N. Y. 677 ; White v. McNulty, 58 N. E. 1094, 164 N. Y. 582, affirming 49 N". Y. Supp. 903, 26 App. Div. 173; Holcomb v. Camp- bell, 42 Hun, 398, 118 N. Y. 46; Martin v. N. Y., W. H. & H. B. Co., 103 N. Y. 636. To show whether a deputy sheriff sold property under an execu- tion or by virtue of a pledge, the instructions to the deputy sheriff, since deceased, may be shown. Sickles v. Richardson, 23 Hun, 559. Declarations made on the delivery of certain coupons that they had not been paid are admissible on the issue of whether they had been paid or not. K&lly v. Forty-second St. M. & St. Ry. Co., 62 N. Y. Supp. 650, 48 App. Div. 627. In a suit by a negro for having been ejected from a place of amuse- ment because of his color, he may show, as part of the res gestce, that he was insulted by patrons of the entertainment, before he was ejected by the defendant's servant. Cremore v. Huber, 18 App. Div. 231, 45 N. Y. Supp. 947. Evidence of statements coming in as part of the res gestw is not necessarily binding on the parties. Slevin v. Wallace, 64 Hun, 288; affirmed, on opinion below, in 144 N. Y. 635. In order to show that one acted wisely in selling a wagon for a nominal sum, he may show that a wheelwright told him that it could not be repaired. Haan v. Metropolitan St. Ry. Co., 69 N. Y. Supp. 888, 34 Misc. Hep. 523. In order that a remark of a third person be admissible as part of the res gestw, it must be a part of the principal facts, and so part of the act itself. It must naturally accompany the act or be calcu- lated to explain its character. That one made an insulting remark in reply to an exclamation of pain on the part of one injured is in- admissible. Butler V. Manhattan Ry. Co., 143 N. Y. 417, 62 N. Y. St. R. 432, reversing 4 Misc. Rep. 401. Evidence as to what an officer said in making a levy is admissible upon the issue of whether the lew was wrongful. Ebcnreiter v. Dahlman, 19 Misc. Rep. 9, 42 N. Y. Supp. 867, affirming 18 Misc. Rep. 351. In order to show that two causes of action stated in a complaint, one for goods sold conditionally, the other for goods sold uncondi- tionally, are in fact one, it is competent to introduce in evidence Chap. II.] THE LAW OF EVIDENCE. 39 an unsigned instrument furnished by the plaintiff, and purporting to be a copy of the bill of sale. Wolfe v. Di Lorenzo, 22 Misc. Rep. 323, aiHrming 21 Misc. Eep. 521. Complaints and exclamations of pain. — Complaints of pain and distress, at the time of an alleged injury, are competent. Caldwell V. ilurphy, 11 N. Y. 416, 1 Duer, 233; Werety v. Persons, 28 N. Y. 344; Matteson v. New York Central Railroad Co., 35 N. Y. 487, 62 Barb. 364; Creed v. Hartman, 8 Bos. 123; Baher v. Griffin, 10 Bos. 140; Lewke v. Dry-Dock, East Broadway R. R. Co., 46 Hun, 283; Powers V. West Troy, 25 Hun, 561. And so are statements to an attending physician. Cleveland v. New Jersey Steamboat Co., 5 Hun, 523; Murphy v. New York Central Railroad Co., 66 Barb. 125. This has not been changed by the statute permitting the parties to be witnesses in their own behalf. Hagenlocher v. Coney Island R. R. Co., 99 F. Y. 136. Exclamations, "Take these splinters out of my leg! take these splinters out! " uttered immediately after the accident, are admis- sible, there being no splinters. West v. Manhattan Ry. Co., 16 N. Y. St. R. 886, 121 N. Y. 654. Complaints made when the injured person was first taken home, and for more than ten days after that, were rejected in Ryan v. Por- ter Manufacturing Co., 57 Hun, 253, 32 N. Y. St. R. 621, 10 N. Y. Supp. 774. Complaints to one not a physician, uttered after the injury and under such circumstances that they might have been the result of design, are inadmissible. Kennedy v. Rochester City & Brighton R. R. Co., 41 N. Y. St. R. 329, reversing 26 N. Y. St. R. 871, 54 Hun, 183, 7 N". Y. Supp. 221. Upon questions involving injuries, exclamations of pain, after the accident, when turned over or touched, are admissible as part of the res gestw. Wood v. Totm of Gilboa, 57 N. Y. St. R. 300, 869; af- firmed in 146 N. Y. 383. (No opinion.) Such exclamations have been admitted when made some weeks after the accident. Kane v. Troy, 16 N. Y. St. R. 341, 119 N. Y. 640. Acts and declarations after the injury are admissible. The de- fense may show that no complaint was made and in rebuttal of such evidence the plaintiff may prove the fact of complaint. Fuller V. Jamestown Street Ry. Co., 75 Hun, 273; affirmed in 148 N. Y. 741. (No opinion.) Where evidence is given to impeach the testimony of the injured person, the witness may show, in answer that he gave the same ac- 40 A DIGEST OF [Paet I. count at the accident. Baber v. Broadway & Seventh Ave. R. R. Co., 9 Misc. Rep. 20; aflBrmed in 149 N. Y. 584. (No opinion.) But where there was no evidence of injury apparent to the phy- sician it was held that exclamations of pain eight months after the accident were inadmissible. Mosher v. Russell, 44 Hun, 12. See Olp V. Gardner, 48 Hun, 169; Schoonmaker v. Niver, 21 N. Y. St. R. 633, 4 N. Y. Supp. 254. Declarations. — Where acts are admissible, declarations made at the same time, are also admissible, as part of the res gestce. Wilcox V. Green, 23 Barb. 639, 643«.; RoUson v. Lyle, 10 Barb. 512; Eowe V. Brundage, 1 S. C. 429. They must accompany the act, and so harmonize with it, as to be obviously a part of the same transaction. Moore v. Meacham, 10 N. Y. 207. The act characterized must be pertinent to the issue. People v. Williams, 3 Park. 84, 3 Abb. Dec. 596. A wife's declarations may be evidence to show whether or not she acted under constraint. Bennett v. Smith, 21 Barb. 439. The declarations of one while paying money are admissible to show purpose. Godfrey v. Warner, Lalor, 32; s. p. Higby v. Sem York & Earlem Railroad Co., 3 Bos. 497, 7 Abb. Fr. 259. The reasons given on refusing a demand may be admissible. Ben- nett V. Burch, 1 Den. 141; Walrod v. Ball, 9 Barb. 271. To show the terms of a partnership and that it was bona fide, in- structions given to the one drawing the articles may be shown. Valton V. National Loan-Fund Life Assurance So., 17 Abb. Pr. 268. Conversations, etc. — Evidence of a conversation over a telephone may be competent. Lippit v. St. Louis Dressed Beef £ Provision Co., 57 N. Y. Supp. 747, 27 Misc. Rep. 222. Conversations are admissible in order to show whether or net a transfer of property was by way of gift. Kelly v. Campbell, 1 Keyes, 29, 2 Abb. Dec. 492. Conversations between the assignor and the assignee of a bond may be admitted to show the purpose of the assignment. Brcniian V. Hall, 131 N". Y. 160, 42 N. Y. St. R. 748, affirming 39 N. Y. St. R. 130, 42 N. Y. St. R. 919. A memorandum of the terms of a letting, made at the time by the lessee's agent, is admissible. La::arus v. Ludiiig, 18 Misc. Rep. 481, 41 N. Y. Supp. 997; S. C, 18 Misc. Rep. 474, 41 N. Y. Supp. 999. Chap. II.] THE LAW OF EVIDENCE. 41 A letter explaining a compromise may be admissible to show its scope and to determine what claims are covered. Conde v. Hall, 92 Hun, 335, 72 N. Y. St. R. 708. In suit for injury through the act of one of the defendant's em- ployes taking off the cap of a sewer pipe, the statements of the ser- vants just before, at the time of, and subsequent to the removal of the cap, showing their purpose, were held admissible. P. Cox Shoe Mfg. Co. V. GorsUne, 7 N. Y. Supp. 619, 63 App. Div. 517. In a suit to reform a policy of insurance, conversations with the agent before making the contract and at the time of the delivery of the policy, are competent evidence. Steinbaoh v. Prudential Ins. Co., 70 N. Y. Supp. 809, 62 App. Div. 133. Admissible to show fraud. — First Nat. Bank of Bath v. Warner, 55 Hun, 120; S. C, 28 N. Y. St. R. 450, 8 N. Y. Supp. 765. In criminal cases. — Acts and declarations of the accused about the time of the commission of the crime are admissible. People v. BosiDorth, 64 Hun, 72, 45 N. Y. St. R. 512; Schnicker v. People, 88 N. Y. 192. Even though in favor of the accused. Robetaille's Case, 5 City Hall Rec. 171. Evidence is admissible that after the killing of the deceased, the accused in the same affray stabbed another. People v. Pallister, 138 N. Y. 601, 51 N. Y. St. R. 723. In a prosecution for forging a will, evidence that the testator, on burning a paper, stated that it was his will, is competent. Eighmy \. People, 79 N. Y. 546. But the declarations of the decedent, after the alleged destruction of the will, are not admissible. Eighmy v. People, 79 N. Y. 546. Must characterize the act. — In a hearing on an injunction against an elevated railroad, it is not competent to show that persons apply- ing to rent apartments along the line had stated that they would not live there with the road running as it did. llurtha v. Metro- politan Elevated R. R. Co., 14 Misc. Rep. 284, 35 N. Y. Supp. 708. In a suit for injury through the sudden starting of a train, evi- dence of an altercation between the conductor and a companion of the person injured having been given, evidence that the conductor said to a third person before the train stopped, " You want to be ready to get off. I will get even with those fellows,'' is not admissi- ble as part of the res gestae. Taylor v. New York Cent, d H. R. R. R. Co., 71 N. Y. Supp. 884, 63 App. Div. 586. An entry on the books of a corporation-plaintiff, explaining a con- tract, made on information furnished by the defendants, and shown 42 A DIGEST OF [P-^^si I- to them, may be introduced in evidence. Rochester Folding Box Co. V. Brown, 66 N. Y. Supp. 867, 55 App. Div. 444, 448. Expressions of opinion. — Expressions of opinion by tliird persona at tlie time of tlie act are not admissible as part of the res gestce. Kirkpatrick v. Briggs, 78 Hun, 518, 61 N. Y. St. R. 209. Nature of the act must be in issue. — If the only question is as to whether the statute of limitations has run, there being no issue in- volving the nature of the transfer of a note, what was said at the time is not admissible. Howard v. Upton, 9 Hun, 434. Acts and declarations of agent. — The acts and declarations of an agent, in order to bind the master must be while engaged in his master's business. Barry v. Second Avenue R. R. Co., 41 K. Y. St. R. 342, 346; affirmed in 136 N. Y. 669. (Xo opinion.) If so en- gaged they are competent as part of the res gestw. Courtney v. Baker, 2 J. & S. 529. But see Moore v. Birdsall, 22 Wkly. Dig. 528. In an action for negligence, the statement of the employee who caused the accident, at the time, to plaintiff, " that he was very sorry that he had done it," is not admissible. Koetter v. Manhattan Elevated Ry. Co., 36 N. Y. St. R. 611. A mere statement of an opin- ion under like circumstances is inadmissible. De Soucey v. Manhat- tan Ry. Co., 39 N. Y. St. R. 79. Characterizing possession. — In questions of adverse possession acts and declarations of persons in possession, showing their relation to the land, are admissible even though they are not parties in the suit. Moore v. Hamilton, 44 N. Y. 666, 48 Barb. 120. Payment of quit-rents reserved is evidence of possession of a water lot held under a city. Arden v. Kermit, Anth. N. P. 112. The assessment of land as of a certain person is evidence of a claim of ownership. Eager v. Hager, 38 Barb. 92. What an owner said to a surveyor employed by him concerning the boundaries of his land, and previous to any controversy concern- ing them, is admissible after his death. Partridge v. Russell, 18 N. Y. St. R. 685, 2 N. Y. Supp. 529. Characterizing transfer. — Evidence of what was said by an owner on parting with property and transferring to another is admissible as part of the res gestw. Matter of Bahcock, 12 N. Y. St. E. 841. Such evidence is admissible to show whether an instrument is a chattel mortgage or a bill of sale. Woodworth v. Hodgson, 35 N. Y. St. R. 964. See same case, 56 Hun, 236, 31 N. Y. St. R. 66, 9 N. Y. Supp. 750. Chap. II.] THE LAW OF EVIDENCE. 43 Or to qualify the title of the holder of a note. Benjamin v. Rogers, 126 N. Y. 60, 36 N. Y. St. R. 393, reversing 32 N. Y. St. R. 626, JO N. Y. Supp. 777. \Yhere a person deposits money in a savings bank in his own name, but in trust for others, who are ignorant of the transaction, the depositor retaining the book, contemporaneous facts are admissible as part of the res gestce to show the depositor's purpose. Macy v. Williams, 83 Hun, 243; affirmed in 144 N. Y. 701. (No opinion.) Must be contemporaneous. — Conversations to be admissible need not always occur on the same day. Halsey v. Jarvis, 7 Bos. 461. Where it is sought to avoid an agreement as being a wagering con- tract, a party may show what was said at the time of negotiating the contract. Cassard v. Hunman, 6 Bos. 8. Declarations made immediately after a contract, not in the pres- ence of the other contracting party, are not admissible. Smith v. Webb, 1 Barb. 230. Narrative of past events. — A mere narrative of past events is inadmissible. Wishelman v. Western Union Tel. Co., 62 N. Y. Supp. 491. 30 Misc. Rep. 450; Tinker v. N. Y., 0. d W. Ry. Co., 92 Hun, 269, 71 N. Y. St. R. 840; affirmed in 157 N". Y. 312; Waldele v. .V. y. Central R. R. Co., 95 N. Y. 274, reversing 29 Hun, 35, which reversed 61 How. Pr. 350; Kellum v. Clerk, 97 N. Y. 390; Roche v. Brooklyn City R. R. Co., 105 N. Y. 294; Truesdell v. Chumar, 75 Hun, 416, 58 N. Y. St. R. 613; Lahey v. Ottman, 73 Hun, 61, 56 N. Y. St. R. 109. Where one is sued for the negligent act of his servant in setting fire to a barn the declarations of the servant, after the fire, stating that certain directions were given to him by his employer, are in- competent. Hermann v. Sarles, 58 N. Y. Supp. 1017, 42 App. Div. 268. In a suit for negligence in driving a street car, the declaration of the conductor that the driver was at fault is not part of the res gestce and is inadmissible. Seipp v. Dry-Dock, E. B. & B. R. Co., 61 X. Y. Supp. 409, 45 App. Div. 489. Statements from a ledger headed " Consignment ac," and rendered as for goods sold are not admissible to show whether the transac- tion was a sale or consignment. Spellman v. Muehlfeld, 62 N. Y. Supp. 749, 48 App. Div. 262. Citing Bank v. Madden, 114 N. Y. 280, 21 N. E. 408; Griesheimcr v. Tanenbaum, 124 N. Y. 650, 26 N. E. 957; Hicks v. Assurance Co., 13 App. Div. 448, 43 N. Y. Supp. 623. 44 A DIGEST OP [Pakt I. Conversations after the delivery of goods under an alleged guar- anty are not admissible as part of the res gestce. Niles Tool Works Co. V. Reynolds, 4 App. Div. 24, 38 N. Y. Supp. 1028. Declarations made after an act of a servant has been fully com- pleted, are not part of the res gestce. Yassar v. Knickerbocker Ice Co., 42 N. Y. St. R. 224; affirmed in 144 N. Y. 629. (No opinion.) Criminal cases. — The rule with reference to narratives of a past transaction applies also to criminal cases. People v. Murphy, 101 N. Y. 126, 3 How. Pr. (N. S.) 469, 4 N. Y. Cr. 95, reversing 3 X. Y. Cr. 338. Form of question. — In order to show facts admissible as part of the res gestce in an action for injuries from the breaking of a guy rope, the following question is proper : " What was done with this line after it parted?" Nugent v. Breuchard, 91 Hun, 12, 71 X. Y. St. E. 389; affirmed in 157 N. Y. 687. (No opinion.) Complaints. — Sustaining second paragraph of the text as applied to rape cases. People v. 0' Sullivan, 104 N. Y. 481, 58 Am. Rep. 530; Bacio v. People, 41 N. Y. (2 Hand) 265. Statements in presence of person. — Sustaining last paragraph of text. Kelly v. People, 55 N. Y. 565, 14 Am. Rep. 342. The rule applies to criminal prosecutions as well as civil suits. Ostrander v. People, 28 Hun, 38. Acquiescence will not be presumed from silence, when it appeared that the person took no part in the conversation, and was then suf- fering from the injuries in question. Tinker v. New York, Ontario & Western Ry. Co., 92 Hun, 269, 71 N. Y. St. R. 840; affirmed in 157 N. Y. 312. Or that he could not understand the language. People V. Izzo, 39 N. Y. St. R. 166, 14 N. Y. Supp. 906. See, however, People V. DrisooU, 107 N. Y. 414, affirming 5 N. Y. Cr. 551, 9 N. Y. St. R. 820. Aeticle 9. tacts necessary to ezplaiit oe inteoduce relevant PACTS. Facts necessary to be known to explain or introduce a fact in issue or relevant or deemed to be relevant to the issue, or which support or rebut an inference suggested \>j Chap. II.] THE LAW OF EVIDENCE. 45 any such fact, or which establish the identity of any thing or person whose identity is in issue or is or is deemed to be relevant to the issue, or which fix the time or place at which any such fact happened, or which show that any document produced is genuine or otherwise, or which show the rela- tion of the parties by whom any such fact was transacted, or which afforded an opportunity for its occurrence or transaction, or which are necessary to be known in order to show the relevancy of other facts, are deemed to be rele- vant in so far as they are necessary for those purposes re- spectively. Illustrations. {a) The question is, whether a writing published by A of B is libellous or not. The position and relations of the parties at the time when the libel was published may be deemed to be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter un- connected with the alleged libel are not deemed to be relevant under this article, though the fact that there was a dispute may be deemed to be relevant if it affected the relations between A and B.27 ( 6 ) The question is, whether A wrote an anonymous letter, threat- ening B, and requiring B to meet the writer at a certain time and place to satisfy his demands. The fact that A met B at that time and place is deemed to be rele- vant, as conduct subsequent to and affected by a fact in issue. The fact that A had a reason, unconnected with the letter, for being at that time at that place, is deemed to be relevant, as rebutting the inference suggested bj' his presence.28 (c) A is tried for a riot, and is proved to have marched at the head of a mob. The cries of the mob are deemed to be relevant, as ex- planatory of the nature of the transaction.29 27 Common practice. 28 R. V. Barnard, 1758, 19 St. Tri. 815, &c. 29 iJ. V. Lord George Gordon, 1781, 21 St. Tri. 514, 515, 520, 529, 532, &c. A DIGEST OF [Past I. id) The question is, whether a deed was forged. It purports to be made in the reign of Philip and Mary, and enumerates King Philip's titles. The fact that at the alleged date of the deed. Acts of State and other records were drawn with a different set of titles, is deemed to be relevant.30 (e) The question is, whether A poisoned B. Habits of B known to A, which would afford A an opportunity to administer the poison, are deemed to be relevant faets.31 if) The question is, whether A made a will under undue influence. His way of life, and relations with the persons said to have influenced him unduly, are deemed to be relevant facts.32 AMERICAN NOTE. General. Authorities. — Underbill on Evidence, sees. 186, 215, 375; Abbott's Trial Evidence (2d ed.), p. 129; State v. Witham, 72 Me. 531 (Iden- tity) ; Dietsch v. Wiggins, 15 Wall. (U. S.) 540, 546; Bank v. Ken- nedy, 17 Wall. (U. S.) 19, 24; People v. Vernon, 35 Cal. 49, 95 Am. Dec. I. Where two persons bear the same name, facts are admissible which tend to make it probable that one of them and not the other entered into, the contract upon which the suit is brought. Jones v. Parker, 20 N. H. 31. Evidence of the extravagance of the accused is relevant in con- nection with other evidence upon the question of whether or not he was guilty of embezzlement. BacTcett v. King, 8 Allen (Mass.), 144. Evidence of the expenditures of a, husband is relevant upon the question of whether certain articles are necessaries for his wife. Raynes v. Bennett, 114 Mass. 424. Relation of the parties. — Roach v. CaldVeck, 64 Vt. 593; Craig's Appeal, 77 Pa. 448; Siherry v. State, 133 Ind. 677. In connection with other evidence. — Evidence, in itself inadmissi- ble, may be rendered admissible by being offered in connection with other evidence which is admissible. Gage v. Smith, 27 Conn. 75; so Lady Ivy's Case, 1684, 10 St. Tri. 617, 618. 31 B. V. Donellan, 1781, Wills Circ. Ey. 241 ; and see my ' History of the Criminal Law,' iii. 371. S2Boyse v. Rosslorough, 1857, 6 H. L. C. 42-58. Chap. II.] THE LA^Y OF EVIDENCE. 47 State V. Stevens, 65 Conn. 93; Plumb v. Curtis, 66 Conn. 154; Can- ton V. Burlington, 58 Conn. 283. Rebutting evidence. — Where it is alleged that one has committed a trespass, and evidence is introduced that he was at the place, he may show in rebuttal that he was there for another purpose. Prin- die V. Glover, 4 Conn. 266. Evidence received on rebuttal, if not objected to, is before the court for any legitimate purpose. Ailing v. Forbes, 68 Conn. 575. As supporting the rule of the text as to rebutting evidence, see Morris v. Spofford, 127 Mass. 85. On the question of whether a burner was lighted, evidence that on certain other occasions it was not lighted, is admissible to rebut tes- timony that there was a custom to keep it lighted. Wentworth v. Eastern B. B. Co., 143 Mass. 248. Explanatory facts. — Authority on the first point in the text. Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031. 32 L. E. A. 620. Mar- tin v. State, 104 Ala. 71. Identity. — Com. v. Whitman, 121 Mass. 361 ; Com. v. Irwin, 107 Mass. 401; McDonald v. Savoy, 110 Mass. 49; Bohinson v. Litchfield, 112 Mass. 28; Com. v. Bush, 112 Mass. 280; Com. v. Snow, 116 Mass. 47; Com. V. Dorsey, 103 Mass. 412; Com. v. Campbell, 155 Mass. 537. The jury may find that " Asahel Moss, 2d," on the tax-books, is meant for Asahel Morse. Litchfield v. Farmington, 7 Conn. 100. Where a bottle of beer is sent, labelled and sealed, by express, to an assayer, and the assayer testifies as to a bottle so labelled, there is no ground of exception so far as the point as to identity of the beer is concerned. Com. v. Bentley, 97 Mass. 551. Testimony of the witness that he " thought " the person accused was the offender may be sufficient identification. Com. v. Munsey, 112 Mass. 287. Testimony that the offender " looked pretty near like " the ac- cused, is not sufficient identification. Com. v. Snow, 14 Gray (Mass.), 385. Where there is testimony as to identification by voice, the accused, not being a witness, may not repeat something to the jury in rebuttal. Com. V. Scott, 123 Mass. 222. See also Johnson v. Gomm., 115 Pa. 369. A witness who has heard the defendant talk but once, may testify as to identification by the voice, but the jury may be instructed not to convict upon that evidence alone. Com, V. Williams, 105 Mass. 62; Com. V. Hayes, 138 Mass. 185. 48 A DIGEST OF [Paet I. Positive direct evidence of the identity of the accused is not neces- sary if the jury are satisfied of the fact. Com. v. Cunningham, 104 Mass. 545. Where one is asked who did a certain thing, an answer " that man" (pointing to the defendant) is proper. Com. v. Whitman, 121 Mass. 361. Any person is a competent witness to testify as to the identity of persons, things or handwriting. Com. v. Sturtivant, 117 Mass. 122. Upon the issue of identity the appearance of a, person two years before and after the date in question is competent. Com. v. Camp- bell, 155 Mass. 537. Fixing time. — It is admissible to prove the time when a, certain occurrence, foreign to the case, took place, for the purpose of fixing by it the time when a, certain act, within the case, was done. Quin- tard V. Corcoran, 50 Conn. 38. A letter cannot be introduced to establish the time of its receipt. Com. v. Burns, 7 Allen (Mass.), 540. Conversations, in order to be admissible to fix a date, must have reference to something which tends to establish it. Fisk v. Cole, 152 Mass. 335. Illustration (g).— See Mut. Life Ins. Co. v. milman, 145 U. S. 285. New York. Authorities. — Pontius v. People, 82 N. Y. 339, 350; Bronner v. Frauenthal, 37 N. Y. 166 ; Quincey v. White, 63 N. Y. 370, 380. But see Barnes v. Keene, 132 N. Y. 13. Where the defendant in an accident case introduces evidence that the strength of a bridge is the same before as after the accident the plaintiff may show that additional stringers were put in after the accident. Bush v. Delaware, L. & W. B. Co., 59 N. E. 838, 166 N. Y. 210, 66 N. Y. Supp. 1128. The court, not the jury, passes on evidence admitted solely on the ground that it is preliminary to other evidence. Harris v. Wilson, 7 Wend. 57. On the issue of the truth of the statements of the application for a, policy of life insurance statements of the applicant made to other persons about the same time, inconsistent with those of his applica- tion are admissible. Sivift v. Massachusetts Mutual Life Insurance Co., 63 N. Y. 186, reversing 3 Hun, 551. Chap. II.] TEE LAW OF EVWEyVE. 49 Where defendant testified in substance that plaintiff had made a certain statement, a, direct question may be put to plaintiff, in order to negative such testimony. Robinson v. Smith, 25 N. Y. St. R. 647, 7 N. Y. Supp. 38. Facts in rebuttal. — Sustaining text. Judd v. Buskin, 19 Wkly. Dig. 123; Beakes v. Da Cunha, 126 N. Y. 293, 37 N. Y. St. R. 14, affirming 35 N. Y. St. R. 568; Klein v. Turkel, 58 N. Y. Supp. 1119, 28 Misc. Rep. 190; Farrell v. Metropolitan St. By. Co., 64 N. Y. Supp. 709, 51 App. Div. 456; Wilson v. /. B. Flickinger Co., 66 N. Y. Supp. 541, 32 Misc. Rep. 309; Meislahn v. Irving Nat. Bank, 70 N. Y. Supp. 988, 62 App. Div. 231. Evidence offered in rebuttal must, in order to be admissible, tend to rebut the testimony in chief. Noonan v. StraRam,, 22 J. & S. 551, 8 N. Y. St. R. 122, 120 N. Y. 621. Relation of parties. — Sustaining text. Jones v. Jones, 120 N. Y. 589; Ueltsger v. Doll, 91 N. Y. 365. Explanatory facts.— Miner v. Baron, 131 N. Y. 677, 43 N. Y. St. R. 930, affirming 39 N. Y. St. R. 893. Where part of a correspondence is offered, other portions, referred to in the part introduced or explanatory of it, are admissible. Dar- ling V. Klock, 53 N. Y. Supp. 593, 33 App. Div. 270, 59 N. E. 1121. Statements of account may be admitted vi^here they explain dec- larations of the parties. Davis Provision Co. v. Fowler Bros., 47 N. Y. Supp. 205, 20 App. Div. 626, 57 N. E. 1108, 163 N. Y. 580. But explanatory facts must shed light upon same matter in issue. Roucher v. Seott, 33 Hun, 223, 98 N. Y. 422. Illustration (e). — See People v. Buchanan, 145 N. Y. 1. Illustration (f). — See Coit v. Patchen, 77 N. Y. 533; Horn v. Pullman, 72 N. Y. 269. 50 A DIGEST OF [Pabt I. CHAPTEE III. OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FACTS IN ISSUE, IRRELEVANT EXCEPT IN CERTAIN CASES. ARTICLE 10.* SIMILAE BUT UH"CONNECTED FACTS. A PACT which renders the existence or non-existence of any fact in issue probable by reason of its general resemblance thereto and not by reason of its being connected therewith in any of the ways specified in articles 3-9 both ineliisive, is deemed not to be relevant to such fact except in the cases specially excepted in this chapter. Illustrations. (a) The question is, whether A eommitted a crime. The fact that he formerly committed another crime of the same sort, and had a tendency to commit such crimes, is deemed to be irrelevant.! (6) The question is, whether A, a brewer, sold good beer to B, a publican. The fact that A sold good beer to C, D, and E, other pub- licans, is deemed to be irrelevant2 (unless it is shown that the beer sold to all is of the same brewing). 3 * See Note VI. 1 R. V. Cole. 1 Phi. Ev. 508 (said to have been decided by all the Judges in Mich. Term, ISIO) . 2Boloomhe v. I/nrson. ISIO, 2 Camp. 391. 3 See Illustrations to Article 3. Chap. III.] TEE LA^Y OF EVIDENCE. 51 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 52 and 53; Underhill on Evidence, sec. 8; Taylor on Evidence ( Chamberlayne's 9th ed.), p. 2571; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; Flagg v. WilUngton, 6 Me. {6 Greenl.) 386; Parker v. Poland Pub. Co., 69 Me. 173, 31 Am. Eep. 262; Dodge v. Haskell, 69 Me. 429; Handley v. Call, 27 Me. (14 Shep.) 35; Staples v. Smith, 48 Me. 470; Ball V. Trilou, 42 Me. 192; McLoon v. Spaulding, 62 Me. 315; Tower V. Rutland, 56 Vt. 28 ; Keith v. Taylor, 3 Vt. 153 ; Nones v. Northouse, 46 Vt. 587; Whitney v. First Nat. Bank, 55 Vt. 154, 45 Am. Dec. 598; Harris v. Howard, 56 Vt. 695; Phelps v. Cojiant, 30 Vt. 277; Jones v. ff. T., N. H. & H. R. R. Co., 20 E. I. 210, 37 Atl. 1033, 11 Am. & Eng. R. Cas. (:N'. S.) 414, 3 Am. Xeg. Rep. 496; Hopkins v. Howard, 20 R. I. 394, 39 Atl. 519; Agulino v. N. Y., N. H. & H. R. R. Co., 21 R. I. 263, 43 Atl. 63, 6 Am. Neg. Rep. 199, 14 Am. & Eng. R. Cas. (N. S.) 314; Stone v. Pendleton, 21 R. I. 332, 43 Atl. 643; Leighton V. Sargent, 31 X. H. (11 Fost.) 119, 64 Am. Deo. 323; True v. San- horn, 27 N. H. (7 Fost. ) 383 ; Filer v. Peebles, 8 N. H. 226 ; Mead V. Merrill, 33 N. H. 437; Foye v. Leighton, 22 N. H. (2 Fost.) 71, 53 Am. Dec. 231; Swampscott Machine Co. v. Walker, 22 N. H. (2 Fost.) 457, 55 Am. Dee. 172; Durkee v. India Mut. Ins. Co., 159 Mass. 514, 34 N. E. 1133; Smith v. N. Y. & N. E. R. R. Co., 163 Mass. 569, 41 N. E. 110; Elliott v. Ly^nan, 3 Allen (Mass.), 110; Kelliher v. Miller, 97 Mass. 71; Howe v. Weymouth, 155 Mass. 439, 29 N. E. 646; Hone v. Whitehead, 130 Mass. 268; Oahagan v. Boston, etc., R. R. Co., 1 Allen (Mass.), 187, 79 Am. Dec. 724; Dana v. Nat. Bank of Republic, 132 Mass. 156; Morris v. East Haven, 41 Conn. 252; Chapman v. Champion, 2 Day (Conn.), 101; Hoxie v. Home Ins. Co., 32 Conn. 21; Gorham v. Gorham, 41 Conn. 242; Edicards v. iramer, 35 Conn. 517; Beach v. Catlin, 4 Day (Conn.), 284; iJofe- bins V. Harvey, 5 Conn. 335; Hoadley v. If. SewarU d Son Co., 71 Conn. 640, 42 Atl. 997; /ri;injr v. Shethar, 71 Conn. 434, 42 Atl. 25; Cunningham v. Fair Haven d Westville R. Co., 72 Conn. 244, 43 Atl. 1047, 6 Am. Neg. Rep. 427; Anderson v. Cowles, 72 Conn. 335; State Bank v. Waterhouse, 70 Conn. 76; Boyd v. U. S., 142 U. S. 450; Cole v. Com., 5 Grat. (Va.) 606; McKay v. Russell, 3 Wash. 378, 28 Pac. 908; Barney v. Rickard, 157 U. S. 352; IT'i'se v. AcA,er- 62 A DIGEST OF [Pabt I. man, 76 Md. 375 ; Bockford Gas-Light Co. v. Ernst, 68 111. App. 300 ; Lomhar v. E. Tawas, 86 Mich. 14; Birminyton R. Co. v. Alexander, 93 Ala. 133; District of Col. v. Armes, 107 U. S. 519. Instances. — Similar, but unconnected accidents, cannot be proved. Hubbard y. B. R. Co., 39 Me. 506. The question is, whether A sold meat improperly slaughtered and unwholesome. The fact that A, several years previous to the sale complained of, had sold similar meat is irrelevant. True v. Sanborn, 27 N. H. (7 Fost.) 383. The question is, whether there was sewer gas in a given Tiouse, connected with a public sewer, from which the inmates suffered. The facts that the inmates of two other houses, situated on the same street and connected with the same public sewer, did not per- ceive the presence of sewer gas therein, and were not injuriously affected by it, are deemed irrelevant. Bateman v. Butland, 70 Vt. 500, 41 Atl. 500. The fact that a person sold proper goods to A does not, in itself, tend to prove that he sold proper goods to B, and is inadmissible. Lake v. Clark, 97 Mass. 346. It is admissible in connection with the fact that the two sets of goods were alike. Pike v. Fay, 101 Mass. 134. The question is whether A, a landlord, was liable in damages to B, his tenant, for personal injuries sustained by reason of a defect in a set of wooden steps belonging to the tenement. The fact that C had fallen on the same steps in the same manner, before the accident to B, is irrelevant. Dean v. Murphy, 169 Mass. 413, 48 N. E. 283. The question is, whether A and B are jointly interested in trading in cattle. The fact that A and B were jointly interested in trading in horses is irrelevant. Farnum v. Farnum, 13 Gray (Mass.), 508. In an action involving the question whether a certain loom attach- ment worked successfully, it is competent to show that it worked properly on another loom, evidence having previously been introduced that the two looms were alike. The similarity of the looms presented a question to be passed upon ultimately by the jury. Brierly v. Mills, 128 Mass. 291. In an action for assault, similar assaults cannot be proved. Mathews v. Terry, 10 Conn. 459. An information for adultery charged a single act of adultery in a single count. Held, that, having given evidence of one such act, the State could not proceed to show other instances of the same crima Chap. III.] THE LAW OF EVIDENCE. 53 committed with the same person at other times and places. State v. Bates, 10 Conn. 373. A judgment in a civil action is not evidence, conclusive or other- wise, of the fact thereby established, in a subsequent criminal prosecu- tion against one of the parties, in which the same question is again involved. State v. Bradnack, 69 Conn. 212. On the trial of an action on the warranty of a horse, the plaintiff, who testified in his own behalf, was asked, on cross-examination, how many other purchases of horses he had made in the last twenty years, and tried to set aside on the ground that he had discovered defects in them. Held, to be inadmissible, as raising an outside and irrelevant issue. Russell v. Gruttenden, 53 Conn. 564. The question is whether A was in such condition as to require the appointment of a guardian to manage her estate. The fact that A had been very imprudent ten years or more before the filing of the petition by the overseer of the poor is irrelevant. Hopkins V. Howard, 20 R. I. 394, 39 Atl. 519. The question is, whether A, a testator, was insane. Letters of B, who was proved to be insane, offered for the purpose of showing that insane persons might rationally write and converse, are irrelevant on the question of A's sanity. Ware v. Ware, 8 Me. (8 Greenl.) 42. The question is, what wages A, a carpenter, was to receive per day. Evidence of what wages other carpenters received in other towns in another State, is irrelevant. Noyes v. Fitzgerald, 55 Vt. 49. Similar crimes. — Under Illustration (a) see Dodge v. Haskell, 69 Me. 429; State v. Renton, 15 N. H. 169, 174; State v. Wentworth, 37 N. H. 197, 209; Reed v. Spaulding, 42 N. H. 114-124; State v. La- page, 57 N. H. 245; State v. Hopkins, 50 Vt. 316; State v. Kelley, 65 Vt. 531, 27 Atl. 203, 36 Am. Rep. 884. The fact that the accused has committed similar frauds or crimes is incompetent. Jordan v. Osgood, 109 Mass. 457; Costelo v. Crowell, 139 Mass. 588; Com. v. Call, 21 Pick. (Mass.) 522; Com. v. Wilson, 2 Cush. (Mass.) 590; Com. V. Campbell, 7 Allen (Mass.), 541, 83 Am. Dec. 705; Jordan V. Osgood, 109 Mass. 457; Com. v. Jackson, 132 Mass. 16, 19, 44 Am. Rep. 299, note; Miller v. Curtis, 158 Mass. 129 ; Janzen v. People, 159 111. 440; Boyd v. U. S., 142 U. S. 450; Shaffner v. Com., 72 Pa. 60. Limitations of the rule. — In Best's Principles of Evidence ( Cham- berlayne's 5th ed. ), p. 488m, it is said: " The grounds of the rule are, therefore, entirely practical ; viz. : 54 A DIGEST OF [Past I. (1) to prevent multiplicity of collateral issues, confusing the jury and acting as a surprise upon the parties ; ( 2 ) to provide that a man shall not be convicted of one crime by evidence that he has committed another. Hubbard v. B. B. Co., 39 Me. 506. This being the case, there may be said to exist in the United States, a strong tendency to limit the rule in civil causes. This relaxation appears most com- monly in the numerous cases where the necessary proof of liability consists :n strengthening a possible into a probable cause by elimi- nation of all complicating circumstances; in other words, by estab- lishing the desired relation of cause and effect through the inductive process of tracing the same effect through a variety of instances where the cause for which legal liability is claimed is the only con- stant force.'' Where the question is as to whether certain facts were the result of alleged causes, other effects of the causes may be shown. The following cases illustrate the limitations of the rule of the text: Value. — On questions of value, evidence as to similar property is relevant. Norton v. Willis, 73 Me. 580; Warren v. Wheeler, 21 Me. 484; Fogg v. Hill, 21 Me. 529; Snow v. B. & il. B. B. Co., 65 Me. 230; Thornton v. Campion, 18 N. H. 20; March v. B. B. Co., 19 N. H. 376; Concord R. B. Go. v. Greely, 23 N. H. 242 ; Hoit v. Russell, 56 N. H. 559; White v. B. B. Co., 30 N. H. 188; Hildreth v. Fitts, 53 Vt. 684; demons v. demons, 68 Vt. 77 ; Cross v. Wilkins, 43 N. H. 332 ; ilel- vin V. Bullard, 35 Vt. 268 ; Haven v. County Comrs., 155 Mass. 467 ; Pierce v. Boston, 164 Mass. 92; Lyman v. Boston, 164 Mass. 99; Bow- ditch V. Boston, 164 Mass. 107; Newsome v. Davis, 133 Mass. 343; Elmore v. Johnson, 143 111. 573; Mayor of Baltimore v. Smith Co., 80 Md. 458; St. Louis, etc., R. Co. v. Clark, 121 Mo. 169. But the valuation of the tax assessors is irrelevant. Concord Land rf Water- Power Co. v. Clough, 69 N. H. 609, 45 Atl. 565. Evidence is admissible touching the value of the same property at other times, and that of similar property. Beach v. dark, 51 Conn. 200; Freeman's Appeal, 71 Conn. 708; Abbott v. Wyse, 15 Conn. 260. And evidence of its selling price is admissible. Sanford V. Peck, 63 Conn. 494. But a tax assessment is inadmissible. Martin v. 2V. T. & N. E. B. B. Co., 62 Conn. 331, 343, 25 Atl. 239. Evidence of the value of real estate at a certain date is relevant upon the question of its value about a year later. Freeman's Appeal, 71 Conn. 708. Chap. III.] TEE LAW OF EMDENCE. 55 One sent by the plaintiff, a physician, as a substitute to attend the defendant, testified on his direct examination as to the reasonable- ness of the plaintiff's charges. Held, that upon his cross-examination he might be asked whether his own charges for the same services were reasonable, and how much they were. Sayles v. Fitzgerald, 72 Conn. 392. In a suit by an attorney for fees for advice and trial in the Superior Court, having testified that his charges were reasonable, he was asked, on cross-examination, what his customary charges per day were for trying cases before a justice of the peace. Held, no error to admit the question, but that it tended to furnish a legitimate standard of comparison. Phelps v. Hunt, 43 Conn. 198. See also Robbins v. Harveif, 5 Conn. 341. The opinion of an expert as to the value of other land in the vicinity is irrelevant. Beale v. Boston, 166 Mass. 53. In order to render the selling price of goods admissible, to prove the value of others, the similarity of the two lots must be established. Haven v. County Comrs., 155 Mass. 467; Berney v. Dinsmore, 141 Mass. 42. But an unaccepted offer to purchase or sell is irrelevant. Winni- simmet Co. v. Orueby, 111 Mass. 543; Wood v. Ins. Co., 126 Mass. 316; Davis V. Charles River Branch R. R. Co., 11 Cush. (Mass.) 506. And the valuation of an assessor is irrelevant. Thompson v. Bos- ton, 148 Mass. 387; Anthony v. R. R. Co., 162 Mass. 60, 37 N. E. 780. A witness as to the value of land, before expressing an opinion as to its value, should show that he is familiar with sales of similar prop- erty and the prices paid therefor. Cochrane v. Commonwealth, 175 Mass. 299, 56 N. E. 610; Phillips v. Marblehead, 148 Mass. 326, 19 N. E. 547. Highway injuries. — In suits for injuries on the highway, evidence as to the condition of the road about the same time, a short distance from the exact spot, is admissible. Kent v. Lincoln, 32 Vt. 591. Evidence that other horses had been frightened at the same obstacle is admissible. Darling v. Westmoreland, 52 N. H. 401; Crocker v. McGregor, 76 Me. 282 ; Gordon v. Boston, etc., R. R. Co., 58 N. H. 396. In suits for injuries on the highway, evidence as to the condition of the road about the same time, a short distance from the exact spot, is admissible. Bailey v. Trumbull, 31 Conn. 581. The question is, whether a particular place in the roadbed of a street-railway company was defective and in need of repairs. The fact that other places in the roadbed were in want of repairs is deemed 66 A DIGEST OF [Pakt I. irrelevant. Cunningham v. Fair Haven <& Westville R. R. Co., IZ Conn. 244, 6 Am. Neg. Rep. 427, 43 Atl. 1047. Where the use of a road made by the plaintiff's intestate was other- wise than passing along it in the usual way, it was held, that the court properly charged the jury that the fact tliat other persons had passed and repassed for several years over the highway at the place in ques- tion without accident, was not evidence that the town had performed its duty in making the highway reasonably safe. Lutton v. Vernon, 62 Conn. 8. In suits for injuries on the highway, evidence as to the condition of the road about the same time, a short distance from the exact spot, is admissible. Collins v. Dorchester, 6 Gush. (Mass.) 396. Negligence. — Evidence of negligence on previous occasions is not admissible in suits for negligence. Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Eep. 262. See, also, Bremner v. Newcastle, 83 ile. 415. A party cannot show that he was not negligent upon one occasion, by proving that he was careful on other occasions. Laufer v. Bridge- port Traction Co., 68 Conn. 475. It is a general rule that a party charged with negligent conduct will not be allowed to show that such conduct was common or cus- tomary among those engaged in an occupation similar to his own, or among those placed in like circumstances and owing the same duties. Bassett v. Shares, 63 Conn. 43. Evidence of negligence on previous occasions is not admissible in suits for negligence. Robinson v. Fitchburg d W. R. R. Co., 7 Gray (Mass.), 92; Maguire v. Middlesex R. R. Co., 115 Mass. 239; Whit- ney V. Crross, 140 Mass. 232; Lane v. Boston & Albany R. R. Co., 112 Mass. 455. New York. Authorities. — Mailler v. Propeller Co., 61 N. Y. 312; In re Thomp- son, 127 N. Y. 463; Rau v. Westchester Fire Ins. Co., 64 N. Y. Supp. 290, 50 App. Div. 428 ; Totarella v. Neic York d- Q. C. Ry. Co., 65 N. Y. Supp. 1044, 53 App. Div. 413; Townsend v. Merchants' Ins. Co., 36 N. Y. Super Ct. (4 Jones & S.) 172. 45 How. Prac. 501. Judgment affirmed in 56 N. Y. 655; Freulsmann v. Schneider (City Ct. N. Y.), 17 Misc. Rep. 299, 40 N. Y. Supp. 375; Green v. Disbrow. 56 N. Y. 334; Noyes v. Wilson, 7 N. Y. St. R. 439; Birdseyc v. Flint. 3 Barb. 500; Ross v. Ackerman, 46 N. Y. 210; Totmscnd v. Graves, 3 Paige. 453; Murray v. Smith. 8 N. Y. Super. Ct. (1 Duer) 412: McCombie v. Spader, 3 Thomp. & C. 690, 1 Hun. 193; Hill v. Chap. III.] THE LAW OF EVIDENCE. 57 Syracuse, B. & N. Y. R. R. Co., 63 N. Y. 101; Whintringham v. DiUle, 66 N. Y. 634; Tallman v. Kimball, 74 Hun, 279, 26 N. Y. Supp. 811; Wood V. Poughkeepsie Alut Ins. Co., 32 N. Y. 619; Lichtenhein v. Fisher, 6 App. Div. 385, 39 N. Y. Supp. 553; Lord V. Lord, 58 Hun, 601, 11 N. Y. Supp. 389; Rehberg v. City of N. Y., 99 N. Y. 652, 2 N. E. 11; Murphy v. McWllliam (Com. PL), 15 Misc. Rep. 122, 36 N. Y. Supp. 492; Durbrow v. McDonald, 18 N. Y. Super. Ct. (5 Bosw.), 130; Murphy v. Brace, 23 Barb. 561; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550, affirming 31 Hun, 107 ; Sherman v. Kortright, 52 Barb. 267 ; Murphy v. Brooklyn City Ry. Co., 6 N. Y. St. E. 47; Carlson v. Oceanic Steam Nav. Co., 109 N. Y. 359, 16 N. E. 546; Sixth Ave. R. Co. v. Metropolitan El. Ry. Co., 56 Hun, 182, 9 N. Y. Supp. 207; Leinkauf v. Lombard Ayres £ Co. (Sup.), 42 N. Y. Supp. 391, 12 App. Div. 302; Schneider V. Hill (Sup.), 42 N. Y". Supp. 879, 19 Misc. Rep. 56; Schmidt v. Coney Island & B. R. Co., 26 App. Div. 391, 49 N. Y. Supp. 777; Lichtenstein v. Jarvis, 31 App. Div. 33, 52 N. Y. Supp. 605; Throck- morton V. Evening Post Pub. Co., 35 App. Div. 396, 54 N. Y. Supp. 887; Oillespie v. Lidgerioood Mfg. Co. (App. Div.) 41 App. Div. 630, 58 N. Y. Supp. 546, 61 N. Y. Supp. 1137; Fullo v. Jones, 4 Keyes, 328; Yates v. People, 32 N. Y. 509; Newhall v. Appleton, 102 N. Y. 133; Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 356, 360; Bonynge v. Field, 81 N. Y. 159. Illustration of Rule of Text. — The question is, wliether A, an agent for an insurance company, waived on a particular occasion, the condition of prepayment of an insurance policy. The fa,ct that A had frequently waived the condition of prepayment of other poli- cies is irrelevant. Wood v. Poughkeepsie Mut. Ins. Co., 32 N. Y. 619. Similar crimes irrelevant. — People v. Kennedy, 51 N. Y. St. R. 811, 10 N. Y. Cr. 394. Similar contracts inadmissible to show the making of a like con- tract. — Lowenstein v. Lombard, Ayres & Co. (Sup. 1897), 45 N. Y. Supp. 286, 58 N. E. 44, 164 N. Y. 324, 333. Previous negligence inadmissible. — Mailler v. Express Propeller Line, 61 N. Y. 312; Baulec v. N. Y. & E. R. R. Co., 59 N. Y. 356, 360; Wittaker v. Del. £ Hud. Canal Co., 126 N. Y. 544 (holding that such evidence is relevant on a charge of negligently continuing an incompetent servant in one's employ as showing master^s knowl- edge thereof). But where a highway, etc., is alleged to have been defective and dangerous, evidence that travelers, other than the plaintiff, had suffered therefrom when in a like condition is admis- sible. Quinlan v. Vtica, 11 Hun, 217, 74 N". Y. 603; Wooley v. G. S. 68 A DIGEST OF [Pakt I. d N. R. R. Co., 83 N. Y. 121; Pomfrey v. Tillage of Saratoga Springs, 104 N. Y. 460; ifagee v. Troy, 48 Hun, 383, 119 N. Y. 640. But such evidence must not be too remote. Gilhrie v. Lockport, 122 N. Y. 403 ; Sherman v. Kortright, 52 Barb. 267. Illustration (a). — See People v. Flanigan, 42 App. Div. 318, 39 N. Y. Supp. 101; People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846, reviewing 20 App. Div. 139; People v. Freeman, 25 App. Div. 583, 50 N. Y. Supp. 984; People v. McLoughlin, 150 N. Y. 365, 386, 44 N. E. 1017; People v. Drake, 10 N. Y. Cr. 31; Coleman v. People, 55 N. Y. 81; People v. Corbin, 56 N. Y. 363; People v. Oibbs, 93 N. Y. 471; People v. Sharp, 107 N. Y. 427, 14 lv\ E. 319, 1 Am. St. Eep. 851; People v. Dowling, 84 N. Y. 486; People v. Greenwall, 108 N. Y. 301; Phillips v. People, 57 Barb. 354; Peojiie v. White, 14 Wend. Ill; Peop?e v. iTeepers (Sup.), 8 N. y. Cr. 146, 14 N. Y. Supp. 66; People v. Justices of Court of Spec. Sessions, 10 Hun, 158; Boland v. People, 19 Hun, 80; Peojile v. Drake, 65 Hun, 331, 20 N. Y. Supp. 228 ; People v. Hurlburt, 92 Hun, 46, 36 N. Y. Supp. 867; People v. Dibble, 3 Abb. Dec. 518, 5 Park. Cr. 28; Sail v. People, 6 Paris:. Cr. 671. Value of similar property not relevant. — People ex rel. v. Mc- Carthy, 102 N. Y. 630, 638; Huntington v. A'ttrill, 118 N. Y. 365; In re Thompson, 127 N. Y. 463; Blanchard v. y. /. Steamboat Co., 59 N. Y. 292; Gouge v. Roberts, 53 N. Y. 619; Bradshaw v. Rome, W. & 0. R. R. Co., 49 Hun, 605; Wells v. Kelsey, 15 Abb. Pr. 53: Leale v. Metropolitan El. Ry. Co., 61 Hun, 613, 16 N. Y. Supp. 419; Mains v. Haight, 14 Barb. 76; De Groot v. Fulton Fire Ins. Co., 27 N. Y. Super. Ct. (4 Rob.) 504; Dean v. Van Nostrand, 101 X. Y. 621, 4 N. E. 134; Sloan v. Baird, 12 App. Div. 481, 42 N. Y. Supp. 38; Charman v. Hibbler, 43 App. Div. 449, 60 N. Y. Supp. 186. See, however, Cerebas v. Klein, 61 N. Y. Supp. 923. In an action by A, an emigrant, against a steamship company for lost baggage, the question is, what was the value of the lost baggage. The testimony of B, a custom-house inspector, as to the value of the baggage, which emigrants of the same class and nationality as A generally carried, is- irrelevant. Carlson v. Oceanic Steam Nav. Co., 109 N. Y. 359, 16 N. E. 546. Evidence of rents. — Evidence of rents of other similar property is irrelevant on the question of the rental value of real estate. Jamieson v. Kings Co. El. R. R. Co., 147 N. Y. 322, 41 N. E. 693; Stmjvesani v. N. Y. El. R. R. Co., 4 App. Div. 159, 38 X. Y. Supp. 595; Winters v. Manhattan Ry. Co., 15 Misc. Eep. 8, 36 N. Y. Supp. Chap. III.] THE LAW OF EYWEKCE. 59 772; Brush v. Manhattan Ry. Co. (Com. PL), 17 N. Y. Supp. 540; Thompson v. Manhattan By. Co., 16 Daly, 64, 8 N. Y. Supp. 641, Gahcay v. Metropolitan El. Ry. Co., 58 Hun, 610, 13 N. Y. Supp. 47; Bischoff v. New York El. Ry. Co., 61 N. Y. Super. Ct. (29 Jones & S.) 211, 18 N. Y. Supp. 865; Golden v. Metropolitan El. Ry. Co. (Com. PI.), 1 Mise. Eep. 142, 20 N. Y. Supp. 630; Sixth Ave. R. R. Go. v. Metropolitan El. Ry. Co., 56 Hun, 182, 9 N. Y. Supp. 207; Dotfle v. Manhattan El. Ry. Co., 128 N. Y. 488, 28 N. E. 495; Eadden v. Metropolitan El. Ry. Co., 75 Hun, 63, 26 N. Y. Supp. 995. The rental value of property, other than the plaintiff's, before and after the building of an elevated road, is not relevant to prove damages to rental value. Jamieson v. Kings Co. El. Ry. Co., 147 N. Y. 322, 41 N. E. 693; Clinical Instruction Co. v. New York El. R. R. Co., 2 App. Div. 619, 38 N. Y. Supp. 21; Hart v. Brooklyn El. R. R. Co., 89 Hun, 82, 35 N. Y. Supp. 41 ; Whitmark v. N. 7. El. R. R. Co., 149 N. Y. 393. But see Hitchings v. Brooklyn El. Ry. Co., 6 Misc. Eep. 430, 27 N. Y. Supp. 132; Lander v. N. Y. & H. R. Co., 42 App. Dlv. 618, 59 N. Y. Supp. 127. Amount of rents from the property in issue admissible. — Gal- lagher v. Kingston Water Co., 49 N. Y. Supp. 250, 25 App. Div. 82, 58 N. E. 1087, 164 N. Y. 602. Evidence of purchase price. — But evidence of the purchase price of property is as to the value of the interest therein sold some evidence of its value. In re Johnson, 144 N. Y. 563, affirming Campbell v. Woodworth, 20 N. Y. 499; Gile v. McNamee, 42 N. Y. 44, 46; Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y. 137, 144; Langdon v. New York City, 133 N. Y. 628; Carroll v. New York City, 133 N. Y. 628; Rorke v. Kings Co. El. Ry. Co., 22 App. Div. 511, 48 N. Y. Supp. 42, 44; Montignani v. E. Y. Crandall Co., 34 App. Div. 228, 54 N. Y. Supp. 517. See also Gleason v. Morrison, 45 N. Y. Supp. 684, 20 Misc. Eep. 320 ; Hoffman v. Hand ( Sup. Ct. App. Term), 26 Misc. Eep. 370, 55 N. Y. Supp. 955; Davies v. Clark, 54 N. E. 70, 159 N. Y. 392, reviewing 10 App. Div. 68, 41 N. Y. Supp. 825; Prior v. Morton Boarding Stables (App. Div.), 59 N. Y. Supp. 287, 43 App. Div. 140. Compare Whelan v. Lynde, 60 N. Y. 469; Gregory v. McDowell, 8 Wend. 435; Lehring v. Wellington, 71 N. i". Supp. 788, 63 App. Div. 498. Proving value. — The proper mode of proving value is by the testi- mony of witnesses based on their knowledge of the subject. Clark v. Baird, 9 N. Y. 183; De Witt v. Barly, 17 N. Y. 340; People v. 60 A DIGEST OF [Pakt I. McCarthy, 102 N. Y. 630; Kingsland v. New York City, 60 Hun, 489, 492; Rondout & 0. R. Co. v. Deyo, 5 Lans. 298; Hunter v. Manhattan Ry. Co., 141 N. Y. 281 (evidence of an expert in realty values) ; Shepard v. Metropolitan El. Ry. Co., 48 App. Div. 452, 62 N. Y. Supp. 977; Jamieson v. N. Y. & R. B. Ry. Co., 11 App. Div. 50, 42 N. Y. Supp. 915; Blake v. Griswold, 103 N. Y. 429, 9 N. E. 434; In re Pearl St., 19 Wend. 651; Cortland, etc.. Stove Co. v. Howe, 92 Hun, 113, 36 N. Y. Supp. 701; Rademacher v. Greenwich Ins. Co., 75 Hun, 83, 27 N. Y. Supp. 155; Hewlett v. Saratoga Carls- lad Spring Co., 84 Hun, 248, 32 N. Y. Supp. 697 ; Woodruff v. Im- perial Fire Ins. Co., 83 N. Y. 133. But see Cerebas .. Klein, 61 N. Y. Supp. 923; Gruel v. Yetter, 26 Misc. Rep. 851, 55 K. Y. Supp. 444; aiTn-med in 27 Misc. Rep. 494, 58 N. Y. Supp. 373; Chanler v. N. Y. El. Ry. Co., 34 App. Div. 305, 54 N. Y. Supp. 341 ; Gorden v. Kings Co. El. R. R. Co., 23 App. Div. 51, 48 X. Y. Supp. 382: Woodworth v. Brooklyn El. Ry. Co., 22 App. Div. 501, 48 N. Y. Supp. 80; Carter v. N. Y. El. R. Co., 57 N. Y. Super. CI. {25 Jones & S.), 279, 7 N. Y. Supp. 678. The opinion of experts as to the value of land nearly a mile distant, is inadmissible. Charman v. Hibbler, 60 X. Y. Supp. 186, 43 App. Div. 449. But such testimony as to the depreciation in value from a certain cause of property near that in issue, is admis- sible to show depreciation from the same cause. Shepard v. Metro- politan El. Ry. Co., 62 N. Y. Supp. 977, 48 App. Div. 452. Similar accidents. — That others suffered similar accidents from a condition of things claimed to be improper may be shown. Rogers V. Trustees of New York cC- Brooklyn Bridge, 42 N. Y. Supp. 1046, 11 App. Div. 141, 54 N. E. 1094, 159 N. Y. 556 ; Wilder v. Metropoli- tan St. Ry. Co., 41 N. Y. Supp. 931, 40 App. Div. 364. 57 N". E. 1128; Sheldon v. Hudson River Railroad Co., 14 N. Y. 218, 29 Barb. 226 ; Field V. New York Central Railroad, 32 N. Y. 339; Aiild v. Manhat- tan Life Ins. Co., 54 N. Y. Supp. 222, 34 App. Div. 491, 58 N. E. 1085, 165 N. Y. 610. But see Ward v. City of Troy, 66 N. Y. Supp. 925, 55 App. Div. 192. Article 11.* When there is a question whether a person said or did something, the fact that he said or did something of the * See Note VI. Chap. III.] THE LAW OF EVrDBXCE. 61 same sort on a different occasion may be proved if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind or of any state of body or bodily feeling, the existence of which is in issue or is or is deemed to be relevant to the issue ; but such acts or words may not be proved merely in order to show that the person so acting or speaking was likely on the occasion in question to act in a similar manner. * Where proceedings are taken against any person for having received goods, knowing them to be stolen, or for having in his possession stolen property, the fact that there was found in the possession of su'ch person other property stolen within the preceding period of twelve months, is deemed to be relevant to the question whether he knew the property to be stolen which forms the subject of the pro- ceedings taken against him. If, in the case of such proceedings as aforesaid, evidence has been given that the stolen property has been found in the possession of the person proceeded against, the fact that such person has within five years immediately preceding been convicted of any oif ence involving fraud or dishonesty, is deemed to be relevant for the purpose of proving that the person accused knew the property which was proved to be in his possession to have been stolen, and may be proved at any stage of the proceedings : provided that not less than seven days' notice in writing has been given to the person 434 & 35 Vict. c. 112, s. 19 (language slightly modified). This enactment overrules to a strictly limited extent R. v. Oddy, 1851, 2 Den. C. C. 264, and practically supersedes B. v. Dunn, 1826, 1 Moo. C. C. at p. 150, and B. v. Davis, 1833, 6 C. & P. 177. See Illustrations. 62 A DIGEST OF [Paet I. accused that proof is intended to be given of such previous conviction. The fact that the prisoner was within twelve months in possession of other stolen property than that to which the charge applies, is not deemed to be relevant, unless such property was found in his possession at or soon after the time when the proceedings against him were taken.® Illustrations. (a) A is charged with receiving two pieces of silk from B, knowing them to have been stolen by him from C. The facts that A received from B many other articles stolen by him from C in the course of several months, and that A pledged all of them, are deemed to be relevant to the fact that A knew that the two pieces of silk were stolen by B from C.6 (6) A is charged with uttering, on the 12th December, 1854, a counterfeit crown piece, knowing it to be counterfeit. The facts that A uttered another counterfeit crown piece on the 11th December, 1854, and a counterfeit shilling on the 4th January, 1855, are deemed to be relevant to show A's knowledge that the crown piece uttered on the 12th was eounterfeit.T (c) A is charged with attempting to obtain money by false pre- tences, by trying to pledge to B a worthless ring as a diamond ring. The facts that two days before, A tried, on two separate occasions, to obtain money from C and D respectively, by a similar assertion as to the same or a similar ring, and that on another occasion on the same day he obtained a sum of money from E by pledging as a gold chain a chain which was only gilt, are deemed to be relevant, as show- ing his knowledge of the quality of the ring.8 5iJ. V. Carter, 1884, 12 Q,. B. D. 522; and see R. v. Drage, 1878, 14 Cox, C. C. 85. « R. V. Dunn, 1826, 1 Moo. C. C. 146. "! R. V. Forster, 1855, Dear. 456; and see R. v. Weeks, 1861, L. & C. 18. SR. V. Francis, 1874, L. R. 2 C. C. R. 128. The case of R. v. Cooper, 1875, 1 Q. B. ±). (C. C. R.) 19, is similar to R. v. Francis, and perhaps stronger. CnAP. III.] THE LAW OF EVIDENCE. 63 ( d ) A is charged with obtaining eggs from B by falsely pretending that he was carrying on a real business as a farmer or dairyman. The fact that on subsequent occasions he had obtained eggs from C and D by means of the same pretence is deemed to be relevant, as showing that he was not carrying on a real business.9 (e) A is charged with obtaining money from B by falsely pretend- ing that Z had authorised him to do so. The fact that on a different occasion A obtained money from C by a similar false pretence is deemed to be irrelevant,lo as A's knowl- edge that he had no authority from Z on the second occasion had no connection with his knowledge that he had no authority from Z on the first occasion. (f) A sues B for damage done by a dog of B's which B knew to be ferocious. The facts that the dog had previously bitten X, Y, and Z, and that they had made complaints to B, are deemed to be relevant.il ig) The question is, whether A, the acceptor of a bill of exchange, knew tliat the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is deemed to be relevant, as showing that A knew that the payee was a fictitious person.l2 (h) A sues B for a malicious libel. Defamatory statements made by B regarding A for ten years before those in respect of which the action is brought are deemed to be relevant to show malice.i3 (t) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C, was to A's knowledge supposed to be solvent by his neighbours and by persons dealing with him, is deemed to be relevant, as showing that A made the representation in good faith.l* 9R. V. Rhodes, [1899], 1 Q. B. 77. See, too, R. v. Weill, post, p. 70, note 23. 10 R. V. Holt, 1860, Bell, C. C. 280 ; and see R. v. Francis, uh. sup. p. 130. 11 See cases collected in Eoscoe's Nisi Prius, 748. 12 Gilson V. Hunter, 1794, 2 H. Bl. 288. 13 Barrett v. Long, 1851, 3 H. L. C. 395, at p. 414. a Sheen v. Bumpstead, 1863, 2 H. & C. 193. 64 A DIGEST OF [Paet I. {)) A is sued by B for the price of work done by B, by the order of C, a contractor, upon a house, of which A is owner. A's defence is that B's contract was with C. The fact that A paid C for the work in question is deemed to be relevant, as proving that A did, in good faith, make over to C the management of the work iu question, so that C was in a position to contract with B on C's own account, and not as agent for A.i5 (fc) A is accused of stealing property which he had found, and the question is, whether he meant to steal it when he took possession of it. The fact that public notice of the loss of the property had been given in the place where A was, and in such a manner that A knew or probably might have known of it, is deemed to be relevant, as showing that A did not, when he took possession of it, in good faith believe that the real owner of the property could not be found.16 {I) The question is, whether A is entitled to damages from B, the seducer of A's wife. The fact that A's wife wrote affectionate letters to A before the adultery was committed, is deemed to be relevant, as showing the terms on which they lived and the damage which A sustained.ii^ (m) The question is, whether A's death was caused by poison. Statements made by A before his illness as to his state of health, and during his illness as to his symptoms, are deemed to be relevant faets.18 («) The question is, what was the state of A's health at the time when an insurance on her life was effected by B. Statements made by A as to the state of her health at or near the time in question are deemed to be relevant facts.19 (o) The question is, whether A, the captain of a ship, knew that a port was blockaded. ' The fact that the blockade was notified in the Gazette is deemed to be relevant.20 18 Gerish v. Charlier, 1845, 1 C. B. 13. 16 This illustration is adapted from Preston's Case, 1851, 2 Den. C. C. 35.3 : but the misdirection given in that case is set right. As to the relevancy of the fact, see in particular Lord Campbell's remark on p. 359. 17 Trelawny v. Coleman, 1817, 1 B. & Aid. 90. 18 iJ. V. Palmer, 1856. See my 'Gen. View of Grim. Law,' pp. 238, 256 (evidence of Dr. Savage and Mr. Stephens). 19 AtiesoTO V. Lord Kinnaird, 1805, 6 Ea. 188. 20 Harrat v. Wise, 1829, 9 B. & C. 712. Chap. III.] TBE LAW OF EVIDENCE. 65 AMERICAN NOTE. General. (See also note to Article 12.) Authorities.— Taylor on Evidence ( Chamberlayne's 9th ei.) , p. 2576; Greenleaf on Evidence (15th ed. ), sec. 53, note; Abbott's Trial Evidence, p. 342; Nichols v. Baker, 75 Me. 334; Conant v. Leslie, 85 Me. 257 ; Hovey v. Grant, 52 N. H. 569 ; Adams v. Kenney, 59 N. H. 133; State v. Palmer, 65 N. H. 216, 20 Atl. 6; State v. McDonald, 14 R. I. 270; State v. Fitzsimon, 18 E. I. 236, 27 Atl. 446; State v. EaUb, 18 R. I. 558, 30 Atl. 462; State v. Kelley, 65 Vt. 531; Fratini V. Caslini, 66 Vt. 273; Limerick Nat. Bank v. Adams, 70 Vt. 133, 40 Atl. 166; State v. Hallock, 70 Vt. 159, 40 Atl. 51; Bottomly v. V. 8., 1 Stoi-y (U. S.), 135, 143; Eennan v. Gilmer, 131 U. S. 22, 25; Lincoln v. Claflin, 7 Wall. (U. S.) 132, 138; Butler v. Watkins, 13 Wall. (U. S.) 457, 464; Castle v. Bullard, 23 How. Pr. 172, 186. The second, third, and fourth paragraphs of the text, as appears from the notes, are statutory and have no application to this country. Intent. — Com. v. Stoehr, 109 Mass. 365 ; Com. v. Dearhorn, 109 Mass. 368; Com. v. Kelley, 116 Mass. 341. A is charged with illegally keeping liquors for sale. The fact that nearly three months prior to the complaint and seizure in question A had been convicted, on a, plea of nolo contendere, of illegally keeping liquors, is relevant to show intent. State v. Plunkett, 64 Me. 534. Upon an issue of whether A, by the use of fraudulent representa- tions, purchased property from B, the ffict that about the same time of the transaction in question A had fraudulently dealt with B, is rele- vant. Pierce v. Hoffman, 24 Vt. 525. Upon the question of whether A, a depositor and client of a bank, had been misused or wronged by B, its cashier, the fact that other depositors had been misused or wronged by B is irrelevant. Whit- ney V. First Nat. Bank, 55 Vt. 154, 45 Am. Dec. 598. Where fraud is imputed, a considerable latitude must be allowed in the admission of evidence. Hoxie v. Home Ins. Co., 32 Conn. 37. See Goodioin v. U. S. Annuity Co., 24 Conn. 602. If an insolvent debtor simultaneously conveys all his estate by sev- eral deeds to different relatives, all the deeds are admissible to raise a presumption of fraud, in an action to set aside any one of them. Thomas v. Beck, 39 Conn. 243. 6 66 A DIGEST OF [Pakt I. In an action of trover the plaintiff claimed that the defendant had conspired with other persons to obtain the goods in question from him by fraudulent representations. Held, that evidence of similar fraudulent representations by the same parties to a stranger, made in order to procure goods from him, was admissible to show the character of the representations made to the plaintiff. Luckey v. Rolerts, 25 Conn. 492. In a, prosecution for keeping liquors with intent to sell the same, the State offered evidence of sales made by the defendant, before the date of the alleged offense. Held, that it was admissible on the ques- tion of intent, although other prosecutions for such sales were pending against him. State v. Raymond, 24 Conn. 206. In an action against A, B, and C, for a conspiracy to defraud such merchants as they could, by representing A, who was a bankrupt, to be a man of large property and safely to be trusted, evidence is ad- missible that the defendants made such representations to certain third parties, in consequence of which the latter, without the request of the defendants, recommended A to the plaintiff, whereby he was induced to give him credit. Gardner v. Preston, 2 Day (Conn.). 210. So evidence of other recent forgeries or utterings by the defend- ant can be introduced to show guilty knowledge, or intent on a trial for forgery, or uttering forged instruments. People v. Baird, 10.5 Cal. 126; People v. Kemp, 76 Mich. 410; Anson v. People, 148 III. 494. In civil actions guilty knowledge, or fraudulent purpose can be similarly proved. Lockwood v. Doane, 107 111. 235; Lincoln v. Claflin, 7 Wall. 132. To prove guilty knowledge on the part of receiver of stolen goods, it may be proved that he had before received stolen goods from the same person. State v. Ward, 49 Conn. 440; Com. v. Johnson, 133 Pa. 293; Shriedley v. State, 23 0. St. 130. It is not necessary that the goods before received should have been stolen from the same person, nor be of the same character. State v. Ward, 49 Conn. 441, 442. Proof of a combination or conspiracy for a criminal purpose is not often made by direct, open and positive evidence, but more generally and more naturally by proving a repetition of acts of a character con- ducing to show a mutual purpose. In such cases it is seldom true that any one act, taken by itself, can be detected as tending to prove a combination, but when it is seen in connection with other acts, its Chap. III.] TSE LAW OF EVIDENCE. 67 true nature may be discovered. State v. Spalding, 19 Conn. 237. See also Stalker v. State, & Conn. 341. Inadmissible to show was likely to so act. — As authorities for this proposition of the text see State v. Bates, 10 Conn. 373; Ed- wards V. Warner, 35 Conn. 517; Shaser v. State, 36 Misc. Eep. 429. A is charged with larceny. The fact that A had told an officer of the law, in the course of conversations, much concerning other crimes committed by him is irrelevant to show that A, by reason of being a notorious thief, was lilcely to steal on the occasion in ques- tion. Com. V. Campbell, 155 Mass. 537. New York. Authorities for the first statement of text. — Bruen v. Bruen, 4 Edw. Ch. 640; People v. Hopson, 1 Denio, 574; Allison v. Uatthieu, 3 Johnson, 235; Carj/ v. Hotailing, 1 Hill, 311, 37 Am. Dec. 323; Olmsted v. Hotailing, 1 Hill, 317; Welsh v. Carter, 1 Wend. 185, 19 Am. Dec. 473; Benham v. Cary, 11 Wend. 83; Jackson v. Tim- merman, 12 Wend. 299; Howard v. Sexton, 4 N. Y. 157; Water- man V. Whitney, 11 N. Y. 157; Zdbriskie v. Smith, 13 N. Y. (3 Kern.) 322, 64 Am. Dec. 551; Hall v. Naylor, 18 N. Y. 588, 75 Am. Dec. 269; Hennequin v. Naylor, 24 N. Y. 139; Hathorne v. Hodges, 28 N. Y. 486; Copperman v. People, 56 N. Y. 591; People v. Weed, 56 N. Y. 628; Coleman v. People, 58 N. Y. 555; Sivift v. Life Ins. Co., 63 N. Y. 186; Miller v. Barber, 66 N. Y. 558; Edington v. Life Ins. Co., 67 N. Y. 185; Dilleber v. Life Ins. Co., 69 N. Y. 256; Muller V. McKesson, 73 N. Y. 195; Daly v. Byrne, 77 N. Y. 182; Pierson v. Atlantic Nat. Bank, 77 N. Y. 304; Pierson x. People, 79 N. Y. 424; Mayer v. People, 80 N. Y. 364, 375; People v. Shulman, 80 N. Y. 373, 376; Pontius v. People, 82 N. Y. 340, 346; Shipply V. People, 86 N. Y. 375, 40 Am. Rep. 551; Marx v. McGlynn. 88 N. Y. 357; People v. Jones, 99 N. Y. 667; People v. O'Sullivan, 104 N. Y. 484; People v. Everhardt, 104 N. Y. 591, 11 X. E. 62; People V. Dimick, 107 N. Y. 13, 14 K E. 178; Cruikshank v. Gordon, 118 N. Y. 178; Smith v. Nat. Benefit Soc., 123 N. Y. 85; People v. Murphy, 135 N. Y. 451, 32 N". E. 138; Enos v. Enos, 135 N. Y. 609; People v. Harris, 136 N. Y. 423, 33 N. E. 65; Turton v. N. Y. Re- corder Co., 144 N. Y. 144, 150; People v. Shea, 147 N. Y. 79. 99; People V. McClure, 148 N. Y. 95, 42 N. E. 523 ; Buerlin v. O'Leary, 149 N. Y. 33; People v. Schooley, 149 N. Y. 99, 43 N. E. 536; People V. McLoughlin, 150 N. Y. 386; Van Ingen v. Mail & Express Pub. Co., 156 N. Y. 376, 50 N. E. 979 (affirming 14 Misc. Rep. 326) ; C8 A DIGEST OF [Part I. People V. Tan Tassel, 156 N. Y. 561, 51 N. E. 274, affirming 20 App. Div. 445, 50 N. Y. Supp. 53; People v. Place, 157 N. Y. 584, 52 N. E. 570; People v. Wicks (Sup.) 11 App. Div. 539, 42 X. Y. Supp. 630; Converse v. Sickles, 16 App. Div. 49, 44 N. Y. Supp. 1080 (judgment 40 N. Y. Supp. 971, modified) ; Plate v. Kline (Sup.), 18 App. Div. 240, 45 N. Y. Supp. 951; People v. Garrahan, 19 App. Div. 347, 46 N. Y. Supp. 497; Lawson v. Eggleston, 28 App. Div. 52, 52 N". Y. Supp. 181; People v. Gaynor, 33 App. Div. 98, 53 N. I''. Supp. 86; Bietschofshy v. People, 3 Hun, 40, 5 Thomp. & C. 277; Weyman v. People, 4 Hun, 511; Hersey v. Benedict, 15 Hun, 282; Pierson v. People, 18 Hun, 239; Pontius v. People, 21 Hun, 328; Nangatuck Cutlery Go. v. Babcoclc, 22 Hun, 481; Davenport Glucose Mfg. Co. V. Toussing, 31 Hun, 566; Richardson v. Van Voorhis, 51 Hun, 636, 3 N. Y. Supp. 599; People v. Williams, 58 Hun, 278, 12 N. Y. Supp. 249 ; People v. Evans, 69 Hun, 222, 228, 23 N. Y. Supp. 717; People v. Hughes, 91 Hun, 354, 36 N. Y. Supp. 493; Van Kirk v. Wilds, 11 Barb. 520; Ballard v. Fuller, 32 Barb. 71; Van Kleek V. Le Roy, 37 Barb. 544, 547, 4 Abb. Dee. 479; Angrave v. Stone, io Barb. 35; Brett v. Ca. Foot You, 24 Ore. 61; Jones v. State, 71 Ind. 66. A dying declaration may be admitted, even though written and sworn to. Com. v. Haney, 127 Mass. 455. An intended deposition may be used as a memorandum to refresh the recollection of the witness. Com. v. Haney, 127 Mass. 455. In contemplation of death. — The declaration must be made in contemplation of death. Com. v. Densmore, 12 Allen (Mass.), 535; State V. Baldwin, 79 la. 714; Westhrook v. People, 126 111. 81; State v. Nelson, 101 Mo. 464; Kehoe v. Com., 85 Pa. St. 127; People v> Simpson, 48 Mich. 474; Carver v. U. S., 164 U. S. 694. (Receipt of extreme unction admissible evidence. ) See also as similar to the last preceding case. State v. Swift, 57 Conn. 505, 506. All hope of recovery must have been abandoned. Com. v. Roberts, 108 Mass. 296 ; Com. v. Brexoer, 164 Mass. 577 ; Allison v. Com., 99 Pa. 17; State v. Johnson, 118 Mo. 491 ; Simons v. People, 150 111. 66; Hake v. Com., 89 Va. 171; People v. Cray, 61 Cal. 164. All the attendant circumstances are admissible to show the actual danger of death and that hope has been abandoned. State V. Swift, 57 Conn. 496. Such dieclarations may tend to show that the deceased was in actual danger of death, and had given up all hope; and if so, are admissible to lay a foundation for the admission of other declarations which do identify the prisoner as the assailant. State v. Cronin, 64 Conn. 304. In criminal prosecutions only. — Dying declarations are not ad- missible in civil suits. Thayer v. Lombard, 165 Mass. 174, 42 N. E. 563; Daily v. N. Y., etc., R. R. Co., 32 Conn. 356, 87 Am. Dec. 176; Hood v. Pioneer Co., 95 A]a. 461 ; Marshall v. Chicago, etc., R. Co., 48 111. 475. Nearness of death. — It is not necessary that the declarant die at once. They were admitted, although he lived seventeen days after making them. Com. v. Cooper, 5 Allen (Mass.), 495; Jones v. State, 71 Ind. 66 (14 days); Lowry v. State, 12 Lea (Tenn.), 142 (17 days) ; State v. Craine, 120 N. C. 601 (4 months). 134 A DIOEar OF [Part I. Constitutionality of rule. — The constitutional provision that one accused has a right to be confronted with his witnesses does not ex- clude evidence of this nature. Com. v. Casey, 12 Gush. (Mass.) 246; People V. Glen, 10 Cal. 32; Broum v. Com., 73 Pa. St. 321; State v. Nash, 7 la. 347; Walston v. Com., 16 B. Mon. (Ky.) 15; Burrill v. State, 18 Tex. 713; State v. Dickinson, 41 Wis. 299; Rabbins v. State, 8 0. St. 131. New York. Authorities for the rule. — Backett v. People, 54 Barb. 370 ; Peo- ple V. Orunzig, 1 Park. Cr. 299 ; Brotherton v. People, 75 N. Y. 159 ; People V. Green, 1 Park. Cr. 11; People v. Anderson, 2 Wheeler Cr. Cas. 390; Wilson v. Boerem, 15 Johns. 286. The rule is based on public policy. People v. Wood, 2 Edw. Sel. Cas. 74 ; Backett v. People, 54 Barb. 372. The solemnity of the occasion takes the place of the oath. People V. Wood, 2 Edw. Sel. Cas. 74. Declarations not admissible as dying declarations may, under proper circumstances, be admitted as declarations made in the pres- ence of the accused. People v. Wood, 2 Edw. Sel. Cas. 73. On the trial of a husband for the murder of his wife, the declara- tions of the deceased as to the cause of her death, made in extremis, are evidence against the prisoner. People v. Green, 1 Den. 14, 1 Park. Cr. 11. How made. — An irregular deposition may be admitted as a dying declaration. People v. Knapp, 1 Edw. Sel. Cas. 177. Scope. — The fact of the killing and the circumstances may be shown by dying declarations. People v. Sweeney, 41 Hun, 332 ; People V. Davis, 56 N. Y. 103 ; Backett v. People, 54 Barb. 370. Only such matters may be shown as would have been admissible had the declarant lived and testified. People v. Shaw, 63 N. Y. 36. The testimony must be confined to facts. The mere opinions of the declarant cannot be shown. Brotherton v. People, 75 N. Y. 159; People V. Shaw, 63 N. Y. 36. But a statement that the declarant knew the person assaulting him was the accused is one of fact. Brotherton v. People, 75 N. Y. 159. Facts occurring before the killing cannot be established by dying declarations. Hackett v. People, 54 Barb. 372. That unfriendly relations existed cannot be shown by dying declara- tions. Backett v. People, 54 Barb. 370. Chap. IV.] THE LAW OF EVIDENCE. 135 Nearness of death.— The declarant must be in extremis. Gray v. Goodrich, 7 Johns. 95; People v. Wood, 2 Edm. Sel. Cas. 74. It is immaterial that death did not occur immediately. People V. Wood, 2 Edw. Sel. Cas. 71. In contemplation of death.— The declarant must have made the declaration after hope of recovery had been abandoned. People v. Andersen, 2 Wheeler Cr. Cas. 399; People v. Green, 1 Park. Cr. 11; People v. Knickerbocker, 1 Park. Cr. 302 ; People v. Chase, 143 N. Y. 669, affirming 79 Hun, 296; People v. Evans, 40 Hun, 492; People v. Wood, 2 Edm. Sel. Cas. 74; People v. Grunzig, 1 Park. Cr. 299. If slight hope remains the declaration is inadmissible. People v. Evans, 40 Hun, 492, where the evidence was ruled out, the declar- ant having answered, on being asked if he had " any hope of recov- ery," " It is hard for me to say." The declarant's state of mind may be established by the declara- tion itself. People v. Wood, 2 Edm. Sel. Cas. 75; People v. Knicker- bocker, 1 Park. Cr. 302. Or by other evidence, or inferred from the circumstances. People v. Chase, 79 Hun, 296. Or inferred from the conduct of the declarant. People v. Knickerbocker, 1 Park. Cr. 302 ; People v. Wood, 2 Edm. Sel. Cas. 75. It may be shown that the attendants told him that there was no hope of recovery. People v. Wood, 2 ISdm. Sel. Cas. 75; People v. Green, 1 Park. Cr. 11. Only in criminal prosecutions. — People v. Davis, 56 N. Y. 103 ; People V. Wood, 2 Edm. Sel. Cas. 74; Wilson v. Boerem, 15 Johns. 286; Hackett v. People, 54 Barb. 372; Waldele v. N. Y. C, etc., B. R. Co., 19 Hun, 69. Contra, Jackson v. Vredenburgh, I Johns. 159 (ejectment) . Only in homicide cases. — They are not admissible in prosecutions for abortion where death is not a necessary element of the crime. People v. Davis, 56 N. T. 95. They are confined to cases involving the death of the declarant. People V. Davis, 56 N. Y. 103; Hackett v. People, 54 Barb. 372; People V. Wood, 2 Edm. Sel. Cas. 74. Husband and wife. — The declaration of husband or wife is ad- missible on the trial of the other. People v. Green, 1 Den. 614. Impeachment. — The bad character of the declarant may be shown. People V. Knapp, 1 Edm. Sel. Cas. 178. Weight of the evidence. — A charge that such a declaration " is given all the sanction of evidence which the law can give to evi- dence " is erroneous. People v. Kraft, 148 N. Y. 631. 136 A DIGEST OP [Paet I. There are no peculiar principles determining the weight to be given to dying declarations. People v. Wood, 2 Edm. Sel. Cas. 74. While the court passes upon the admissibility of the declaration, the jury may consider the question of whether the declarant made the declaration in extremis. People v. Wood, 2 Edm. Sel. Cas. 75. Article 27.* declarations made in the course of business oe professional duty. A declaration is deemed to be relevant when it was made by the declarant in the ordinary course of business, and in the discharge of professional duty, at or near the time when the matter stated occurred,*^ and of his own knowledge. Such declarations are deemed to be irrelevant except so far as they relate to the matter which the declarant stated in the ordinary course of his business or duty, or if they da not appear to be made by a person duly authorised to make them. Illustrations. (o) The question is, whether A delivered certain beer to B. The fact that a deceased drayman of A's on the evening of the de- livery, made an entry to that effect in a book kept for the purpose, in the ordinary course of business, is deemed to be relevant.** ( 6 ) The question is, what were the contents of a letter not produced after notice. A copy entered immediately after the letter was written, in a book kept for that purpose, by a deceased clerk, is deemed to be relevant.*B (c) The question is, whether A was arrested at Paddington, or in South Molton Street. * See Note XVIII. 4iDoe V. Turford, 1832, 3 B. & Ad. 890. *i Price v. Torrington, 1703, 2 Smith's L. C. 311. t^Pritt V. Fairclough, 1812, 3 Camp. 305. Chap. IV.] THE LAW OF EVIDENCE. 137 A certificate annexed to the writ by a deceased sheriflf's officer, and returned by him to the sheriff, is deemed to be relevant so far as it relates to the fact of the arrest; but irrelevant so far as it relates to the place where the arrest took place.*6 (d) The course of business was for A, a, workman in a coal-pit, to tell B, the foreman, what coals were sold, and for B (who could not write ) to get C to make entries in a book accordingly. The entries (A and B being dead) are deemed to be irrelevant, be- cause B, for whom they were made, did not know them to be true.47 (e) The question is, what is A's age. A statement by the incum- bent in a register of baptisms that he was baptised on a given day is deemed to be relevant. A statement in the same register that he was born on a given day is deemed to be irrelevant, because it was not the incumbent's duty to make it.'^s if) The question is, whether A was married. Proceedings in a college book, which ought to have been but was not signed by the reg- istrar of the college, were held to be irrelevant.** AMERICAN NOTE. General. Authorities. — 2 Taylor on Evidence ( Chamberlayne's 9th ed.), sec. 697 et seq.; McKelvey on Evidence, p. 239 et seq.; Wheeler v. Walker, 45 N. H. 355; Lassone v. Boston, etc., R. B. Co., 66 N. H. 345; Barber v. Bennett, 58 Vt. 476, 56 Am. Rep. 565; Welsh v. Bar- rett, 15 Mass. 380, 383; Riley v. Boehm, 167 Mass. 183; Jones v. How- ard, 3 Allen (Mass.), 223. When relevant. — First, paragraph of the text. Abel v. Fitch, 20 Conn. 96. Instances. — Memoranda of a surveyor are admissible under this article. Walker v. Curtis, 116 Mass. 98. And those of a parish priest likewise. Kennedy v. Doyle, 10 Allen (Mass.), 161; Whitcher v. McLaughlin, 115 Mass. 167. So those of a, hospital physician. Townsend v. Pepperell, 99 Mass. 40. 46 Chambers v. Bernasconi, 1834, 1 C. M. & R. 347; see, too. Smith ,. Blakey, 1867, L. R. 2 Q. B. 326. *T Brain v. Preece, 1843, 11 M. & W. 773. 48 R. v. Clapham, 1829, 4 C. & P. 29. 49 Fox V. BearUock, 1881, 17 Ch. Div. 429. 138 A DIGEST OF [Pabt I. The register of a notary is admissible to prove official acts with reference to dishonored paper. Porter v. Judson, 1 Gray (Mass.), 175; Nicholls v. Webb, 8 Wheat. (U. S.) 326. Time when made. — Matthews v. Westboro, 134 Mass. 562. The fact that the entries are made two or three days after the occurrences, does not, of itself, render them inadmissible. Barker v. Haskell, 9 Cush. (Mass.) 218. Under certain circumstances, entries made from two to four weeks after the occurrences are admissible. Hall v. GUdden, 39 Me. 445; Chaffee v. V. 8., 18 Wall. 516; Reynolds v. Sumner, 126 111. 58; Cul- ver V. Harks, 122 Ind. 554; Sands v. Hammell, 108 Ala. 624; Laird V. Campbell, 100 Pa. 159. Absent party. — In some States such declarations are admissible when the declarant has gone to parts unknown. New Ewoen, etc., Co. V. Good'Lbin, 42 Conn. 230. Or is out of the State. Beiskell v. Rollins, 82 Md. 14; McDonald v. Games, 90 Ala. 147; Rigby v. Logan, 45 S. C. 651. Insane party. — Lr insane. Bridgewater v. Roxbury, 54 Conn. 213; Jjnion Bank v. Knapp, 3 Pick. (Mass.) 96. But not if he is competent and within the State. Bartholomew v. Farwell, 41 Conn. 107; House v. Bleak, 141 111. 290. Books of account. — By the early common law, books of account, as such, were inadmissible. In this country they are admissible, both against and in favor of the person keeping them, when properly authenticated. 9 Am. & Eng. Encylopsedia of Law (2d ed.), p. 903; 2 Taylor on Evidence (American edition of 1897), p. 4631 et seq.; Augusta v. Windsor, 19 Me. 317; Lassone v. B., etc., R. R. Co., 66 N. H. 345; Bridgewater v. Roxbury, 54 Conn. 216; Terrill v. Beecher, 9 Conn. 344 ; House v. Bleak, 141 111. 290 ; Donovan v. B., etc., R. R. Co., 158 Mass. 450; Pratt v. White, 132 Mass. 477; Miller v. Shay, 145 Mass. 162. But see Kaiser v. Alexander, 144 Mass. 71. A shop-book, to be admissible, must have been kept in the regular course of business, under such circumstances as to import trust- worthiness. Its character in this regard is to be passed upon by the judge. Riley v. Boehm, 167 Mass. 183. A shop-book, kept by one who cannot write, consisting of mere marks, is admissible. Miller v. Shay, 145 Mass. 162. Entries duly authenticated are admissible even though they record facts communicated by others. Smith v. Law, 4'/ Conn. 431; Bar- wood V. Mulry, 8 Gray (Mass.), 250. Chap. IV.] THE LAW OF EVIDENCE. 139 When entries are customarily made on information received from others, if these are authenticated as correct by the informants, such entries are admissible. Chisholm v. Beaman Co., 160 111. 101; Chatcaugay Iron Co. v. Blake, 144 U. S. 476. Time when made. — The entries must have been practically con- temporaneous. Davis V. Sanford, 9 Allen (Mass.), 216; Bentley v. Ward, 116 Mass. 333; Morris v. Briggs, 3 Gush. (Mass.) 342; Barker v. Haskell, 9 Gush. (Mass.) 218; Chisholm v. Beaman Co., 160 111. 101; Hoover v. Gehr, 62 Pa. St. 136. Or must be connected with contemporaneous entries by the testi- mony of the one who transferred them. Kent v. Garvin, 1 Gray (Mass.), 148; Whitney v. Sawyer, 11 Gray (Mass.), 242. Books of original entry. — The book of original entries should be produced. Stetson v. Wolcott, 15 Gray (Mass.), 545; Woolsey v. Bohn, 41 Minn. 235; Bonnell v. Matoha, 37 N. J. L. 198 (day-book and ledger) . If the ledger is the book of original entry, it is admissible as such. Sioain v. Cheney. 41 N. H. 232; Hoover v. Qehr, 62 Pa. St. 136; Foxon V. Hollis, 13 Mass. 427; Bonnell v. Matoha, 37 N. J. L. 198. Authentication of book entries. — As to the authentication of en- tries in books, see Anderson v. Edicards, 123 Mass. 273 ; Pratt v. White, 132 Mass. 477; Holbrook v. Gay, 6 Gush. (Mass.) 215; Moots V. State, 21 0. St. 653. Where the person who made entries which are admissible in evi- dence is beyond the reach of process or is incompetent to testify, it is the same as if he were dead, and his handwriting may be proved. Bridgewater v. RoxMiry, 54 Conn. 216. Books of account must be proved by the one making the entries, or if he is dead, by his personal representative. Pratt v. White, 132 Mass. 477; Coggswell v. Dolliver, 2 Mass. 217; Prince v. Smith, 4 Mass. 455; Frye v. Barker, 2 Pick. (Mass.) 65; Mathes v. Robinson, 8 Mete. (Mass.) 269; Ball v. Gates, 12 Mete. (Mass.) 491; Gibson v. Bailey, 13 Mete. (Mass.) 537; Arnold v. Sabin, 1 Gush. (Mass.) 531. If the party is insane his guardian may prove them. Holbrook v. Gay, 6 Gush. (Mass.). 215. Illustration (d). — Kent v. Garvin, 1 Gray (Mass.), 148; Hwr- wood V. Mulry, 8 Gray (Mass.), 250; Chaffee v. U. S., 18 Wall. 516, 543; Thomas v. Price, 30 Md. 483. Illustration (e). — Whitcher \. McLaughlin, 115 Mass. 167; Town- send V. Pepperell, 99 Mass. 40; Kennedy v. Doyle, 10 Allen (Mass.), 161; Durfee v. Abbott, 61 Mich. 471; Blackburn v. Crawfords, 3 140 A DIGEST OF [Part I. Wall. 175; Weaver v. Lei/man, 52 Md. 708; Litter v. Gehr, 105 Pa. St. 577. New York. Authoiities. — First proposition of text. Leland v. Cameron, 31 N. Y. 121; Fisher v. ». Y., 67 N. Y. 73; Bentley v. Falker, 24 App. Div. 560; Tribune Assn. v. FoUwell, 107 Fed. Eep. 646; Sherlock v. Germaw-AmeHcan Insurance Go., 21 App. Div. 18, 47 N. Y. Supp. 315; Rogers v. Trustees of tfee ]VeM) Yorfe & Brooklyn Bridge, 54 N. E. 1094, 159 N. Y. 556, affirming 42 N. Y. St. E. 1046; 11 App. Div. 141. The statutes permitting an interested party to testify have not affected the rule of the text. Tomlinson v. Borst, 30 Barb. 42; Stroud V. Tilton, 4 Abb. App. Dec. 324; Burke v. Wolfe, 38 N. Y. Super. Ct. 263. Compare Gonklin v. Stawler, 2 Hilt. 422; Smith V. Bentz, i31 N. Y. 169. Instances. — Field notes of a surveyor are admissible. People v. Holmes, 60 N. E. 249, 166 N. Y. 540, affirming 65 N. Y. Supp. 1142. Entries in books kept by a witness may be read in connection with his testimony. Bloomington Min. Co. v. Brooklyn Hygienic Ice Co., 68 N. Y. St. R. 699, 58 App. Div. 66. Citing Mayor, etc., v. Second Ave. R. Co., 102 N. Y. 579, 7 N. E. 905; Cobb v. Wells, 124 N. Y. 77, 26 N. E. 284; West v. Van Tuyl, 119 N. Y. 620, 23 N. E. 450; McGoldrick v. Trapagen, 88 N. Y. 334; Clark v. Bank, 32 App. Div. 316, 52 N. Y. St. R. 1064. The declarations of a deceased physician are admissible when made in the ordinary discharge of his professional duties. McSair V. National Life Insurance Co., 13 Hun, 144. Bank-books, if contemporaneous with the deposit. Jermain v. Denniston, 6 N. Y. 276; Manhattan Co. v. Lydig, 6 Johns. 377, 4 Am. Dee. 289. Such entries are not conclusive. Wersser v. Deni- son, 10 N. Y. 68, 61 Am. Dec. 731; Mechanics', etc.. Bank v. Smitli. 19 Johns. 115. The rule of the text applies to entries made in a party's favor by liis clerk. Burke v. Wolfe, 38 N. Y. Super. Ct. 263; Dakln v. Walton, 85 Hun, 561 ; Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85 ; Grover v. Morris, 73 N. Y. 473. The books of a physician are admissible. Larue v. Rowland, 7 Barb. 108; Foster v. Coleman, 1 E. D. Smith, 85; Wet more v. Peck, 19 Alb. L. J. 400. Books of account admissible. — The books of account of a person who keeps no clerk are admissible upon proof that some of the goods Chap. IV.] THE LA^Y OF EVIDENCE. 141 were delivered or some of the work done and that the person in question kept correct books. Atwood v. Barney, 80 Hun, 1; Smith, V. Rents, 131 N. Y. 169; Hodnett v. Gault, 71 N. Y. Supp. 831; iShipinan v. Glynn, 31 App. Div. 425; The Sylvan Stream, 35 Fed. Rep. 314; Tomlinson v. Borst, 30 Barb. 42; Knight v. Cunnington, 6 Hun, 100; Ives v. M'aters, 30 Hun, 297; Beatty v. Clark, 44 Hun, 126; Dooley v. Moan, 57 Hun, 535; /»sfe v. Horn, 84 Hun, 121; Foster v. Coleman, 1 E. D. Smith, 85; Morrill v. Whitehead, 4 E. D. Smith, 239; Corning v. Ashby, 4 Den. 354; Conhlin v. Staivter, 2 Hilt. 422; BttWce v. ll'oife, 38 N. Y. Super. Ct. 263; LmneU v. ««*/i- erland, 11 Wend. 568; Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 521; Rexford v. Comstock, 3 N. Y. Supp. 876; Young v. L«ce, 21 N. Y. Supp. 225; Vosburgh v. Thayer, 12 Johns. 461; Larue v. Row- land, 7 Barb. 107; McAllister v. /eeaft, 4 Wend. 483; Merrill v. Ithaca, etc., R. R. Co., 16 Wend. 587, 30 Am. Dec. 130; Reddington X. Oilman, 1 Bosw. 235; Whitman v. Horton, 46 N. Y. Super. Ct. 531; Skipworth v. Dryell, 83 Hun, 307; Nelson v. Y. Y., 5 N. Y. Supp. 688; Sroif/i v. Smith, 57 N. E. 300, 163 N. Y. 168, 7 N. Y. Ann. Cas. 470, affirming 43 N. Y. Supp. 257, 13 App. Div. 207; MuckU V. Rennic, 16 N. Y. Supp. 208 ; Cobb v. Wells, 124 N. Y. 77 ; Nelson V. N. Y., 131 N. Y'. 4; Lucas v. Thompson, 75 Hun, 584; West V. Tan. r«2/«, 119 N. Y. 620; Root v. Great Western R. R. Co., 55 N. Y. 636; State Bank v. Brown, 165 N. Y. 216, 53 L. K. A. 513. Compare Mason v. Wedderspoon, 43 Hun, 20; Vaughn v. Strang, 4 X. Y. Supp. 686. The account with a ward kept by a guardian does not come within the rule allowing the admission of Dooks oi account. Fowler v. Beb- bard, 57 N. Y. Supp. 531, 40 App. Div. 108. The accounts are admissible without the oath of the party. Sickles V. Mather, 20 Wend. 72, 32 Am. Dee. 521; Tomlinson v. Borst, 30 Barb. 42; Larue v. Rowland, 7 Barb. 107. But the party may swear to the correctness of the books where he had no clerk or the clerk is dead. Burke v. Wolfe, 38 N. Y. Super. Ct. 263; Stroud v. Tilton, 3 Keyes, 139. Witnesses should be produced who have had dealings with the party and settled according to his books and can testify to their correctness. Beatty v. Clark, 44 Hun, 126; Hauptman v. Gatlin, 1 E. D. Smith, 729; Textile Pub. Co. v. Smith, 64 X. Y. St. R. 123, 31 Misc. Rep. 271. That they settled their accounts with the plaintiff according to bills presented was not sufficient to show that the account-book was 142 A DIGEST OF [Paet I. fair and honest. Wright v. Hicks, 70 N. Y. St. R. 675, 61 App. Div. 489. One witness to these points is sufficient unless the evidence is con- tradicted. Merrill v. Whitehead, 4 E. D. Smith, 239. It is not necessary that the settlement have been by the book of original entry. Stroud v. Tilton, 3 Kcyes, 139. An employee who did not make certain entries in its books, nor see them made, and who has no personal knowledge of their accu- racy, cannot testify to such entries. Horowitz v. Jacobs, 69 N. Y. Supp. V46, 34 Misc. Rep. 402. Books of account are not admissible to show to whom credit was given. Textile Pub. Co. v. Smith, 64 N. Y. Supp. 123, 31 Jlisc. Eep. 271. That items are charged to one person and not another is not con- clusive, but the facts may be shown. Poster v. Persch, 68 N. Y. 400 ; Fiske V. Allen, 40 N. Y. Super. Ct. 76; Meeker v. Claghorn, 44 X. Y. 349; Tan Fleet v. Ketcham, 42 Hun, 656, 6 N. Y. St. R. 72. Books of account are not competent to prove money expended or loaned. Case v. Potter, 8 Johns. 211; Dusenbury v. Hoadley, 20 N. Y. Supp. 911; Low V. Payne, 4 N. Y. 247. Compare Smith v. Rents, 131 N. Y. 69, reversing 60 Hun, 85. By offering a part of a book, the whole book, so far as it relates to the controversy, is in evidence. Low v. Payne, 4 N. Y. 247 : M'!- nants v. Sherman, 3 Hill, 74; Dewey v. Hotchkiss, 30 K. Y. 497; Read v. Smith, 1 Hun, 263, 3 Thomp. & C. 760; Harnickell v. Broicn, 45 N. Y. Super. Ct. 350. A copy from the book of account is inadmissible. Skipicorth v. Deyell, 83 Hun, 307 ; Clark v. Bullock, 2 N. Y. Supp. 408. The rule admitting a party's book is based upon necessity. Conk- lin V. Stawter, 2 Hilt. 422; Smith v. Lentz, 131 X. Y. 169; Larue v. Rowland, 7 Barb. 107; Vosburgh v. Thayer, 12 Johns. 461. It is construed strictly. Larue v. Rowland, 7 Barb. 110; Foster v. Coleman, ^ E. D. Smith, 85. The New York courts have deduced the rule admitting books of account from the Dutch law. Smith v. Rents, 131 N. Y. 175. Section 829 of the Code of Civil Procedure does not aflfect the ad- missibility of account-books when offered against the estate of a deceased person. Young v. Luce, 21 N. Y''. Supp. 225. As to the admissibility of books of account or issues between other parties, see note to State Bank v. Brown (165 N. Y. 216), 53 L. R. A. 513. Chap. IV.] THE LAW OF EVIDENCE. 143 The entry must be made from personal knowledge. Dykman v. yorthbridge, 80 Hun, 258 ; Whitman v. Horton, 46 N. Y. Super. Ct. 531; Goodwin v. O'Brien, 6 N. Y. Supp. 239. Or upon information reported by an employee. N. Y. v. Second Ave. B. R. Co., 102 N. Y. 572. Books of original entry. — A ledger may be a book of original en- try and admissible as such. Mctroldrick v. Traphagen, 88 N. Y. 334; Farley v. Gibbs, 4 N. Y. Supp. 353. A book may be one of original entry, even though the first entry was on a, memorandum made for temporary use. McGoldrick v. Traphagen, 88 N. Y. 334; Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 521; Stroud v. Tilton, 3 Keyes, 139; McGoldrick v. Wilson, 18 Hun, 443; Davison v. Powell, lo How. Pr. 467; West v. Van Tuyl, 1 N. Y. Supp. 718. Even though the memorandum was made by another. Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 321. Authentication. — If the entries be made by a clerk he is the proper party to testify. Burke v. Wolfe, 38 N. Y. Super. Ct. 263; Ocean Nat. Bank v. Carll, 55 N. Y. 440, 9 Hun, 239; Brewster v. Sloane, 2 Hill, 537 ; Merrill v. Ithaca, etc., B. R. Co., 16 Wend. 586, 30 Am. Dec. 130; Monroe Bank v. Culver 2 Hill, 531. Books of account ( e. g. of a physician ) , to be admissible, must be properly authenticated. Knight v. Cunr^ington, 6 Hun, 100, dis- approving Clarke v. Smith, 46 Barb. 30. Who is a clerk. — A mere bookkeeper is not a clerk within the meaning of the rule. McGoldrick v. Traphagen, 88 N. Y. 338. Nor is a shipping clerk. Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 321; Rexford v. Comstock, 3 N. Y. Supp. 876; Atwood v. Barney, 80 Hun, 1; Cobb v. Wells, 124 N. Y. 77. Nor is the wife of a party who copies items from slips into a book under his instructions. Smith V. Smith, 13 App. Div. 207. Time when made. — The entry must have been made substantially at the time of the transaction recorded. Skipworth v. Deyell, 83 Hun, 307; Eealey v. Bauer, 19 N. Y. Supp. 989. Partnership books. — Partnership books are admissible in the same way as those of an individual. Adams v. Bowerman, 109 N. Y. 23; Buffalo, etc.. Bank v. Guenther, 1 N. Y. Supp. 753. They are competent in a suit between partners. Fairchild v. Fair- child, 64 N. Y. 471, affirming 5 Hun, 407; Caldwell v. Leiber. 7 Paige, 483 ; Van Bokkeleim v. Berdell, 3 N. Y. Supp. 333 ; Cheever v. Lamar, 19 Hun, 130. 144 A DIGEST OF [Paet I. In such a suit there is a prima facie presumption that they are correct. Heartt v. Corning, 3 Paige, 566; Cheever v. Lamar, 19 Hun, 130. But the partner against whom they are offered must have had access to them. Taylor v. Herring, 10 Bosw. (N. Y.) 447. Aeticle 28.* declaeations against inteeest. A declaration is deemed to be relevant if the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or proprietary interest.^" The whole of any such declaration, and of any other statement referred to in it is deemed to be relevant, although matters may be stated which were not against the pecuniary or proprietary inter- est of the declarant ; but statements, not referred to in, or necessary to explain such declarations, are not deemed to be relevant merely because they were made at the same time or recorded in the same place.^' A declaration may be against the pecuniary interest of the person who makes it, if part of it charges him with a liability, though other parts of the book or document in which it occurs may discharge him from such liability in whole or in part, and [it seems] though there may be no proof other than the statement itself either of such liability or of its discharge in whole or part.'^^ * See Note XIX. BO These are almost the exact words of Bayley, J., in Gleadow v. Atkin, 1833, 1 Cromp. & M. at p. 423. The interest must not be too remote: Smith v. Blakey, 1867, L. R. 2 Q. B. 326. 51 Illustrations [a] (6) and (c). 52 Illustrations (d) and (e). Chap. IV.] THE LAW OF EVIDE'SCE. 145 A statement made by a declarant holding a limited interest in any property and opposed to such interest is deemed to be relevant only as against those who claim under him, and not as against the reversioner.^^ An endorsement or memorandum of a payment made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such pay- ment was made, is not sufBeieut proof of such payment to take the case out of the operation of the Statutes of Limitation f* but any such declaration made in any other form by or by the direction of the person to whom the payment was made is, when such person is dead, sufficient proof for the purpose aforesaid.^^ Any indorsement or memorandum to the effect above mentioned made upon any bond or other specialty by a deceased person, is regarded as a declaration against the proprietary interest of the declarant for the purpose above mentioned, if it is shown to have been made at the time when it purports to have been made ;^^ but it is uncertain 53 Illustration [g) ; see Lord Campbell's judgment in case there quoted, at p. 177. 54 9 Geo. IV. c. 14, ». 3. B5 Bradley v. James, 1853, 13 C. B. 822. Newiould v. Smith, 1885, 29 Ch. Div. 882, seems scarcely consistent with this. It was a de- cision of North, J. On appeal, 1886, 33 Ch. Div. 127, the Court ex- pressed no opinion on the admissibility of the entry rejected by North, J.; and see, too, the appeal to the House of Lords, 1889, 14 App. Ca. 423, where the same was the case. 56 3 & 4 Will. IV. c. 42, which is the Statute of Limitations relat- ing to Specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3. Hence, in this case the ordinary rule is unaltered. 10 146 A DIGEST OF [Pakt I. whether the date of such indorsement or memorandum may be presumed to be correct without independent evidence.^'^ Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are not deemed to be relevant as such.^* Illustrations, (a) The question is, whether a, person was born on a particular day. An entry in the book of a deceased man-midwife in these words is deemed to be relevant :B9 " W. Fowden, Junr.'s wife, Pilius circa hor. 3 post merid. natus H. W. Fowden, Junr., App. 22,-filius natus, Wife, £1 6s. Id., Pd. 25 Oct., 1768." (6) The question is, whether a certain custom exists in a part of a parish. The following entries in the parish books, signed by deceased church-wardens, are deemed to be relevant — " It is our ancient custom thus to proportion chureh-Iay. The chapelry of Haworth pay one-fifth, &c." Followed by — " Received of Haworth, who this year disputed this our ancient custom, but after we had sued him, paid it accordingly — £8, and £1 for costs."60 (c) The question is, whether a gate on certain land, the property of which is in dispute, was repaired by A. An account by a deceased steward, in which he charges A with the expense of repairing the gate is deemed to be irrelevant, though it 57 See the question discussed in 2 Ph. Ev. 302-305, and Taylor, ss. 692-696; and see Article 85. 68 Illustration {h). 89 Higham v. Ridgway, 2 Smith's L. C. 318. eo Stead v. Beaton, 1792, 4 T. R. 669. Chap. IV.] THE LAW OF EVIDENCE. ]47 would have been deemed to be relevant if it had appeared that A admitted the charge.ei (d) The question is, whether A received rent for certain land. A deceased steward's account, charging himself with the receipt of such rent for A, is deemed to be relevant, although the balance of the whole account is in favour of the steward.62 (e) The question is, whether certain repairs were done at A's ex- pense. A bill for doing them, receipted by a deceased carpenter, is deemed to be .} . , ,„, (. there being no other evidence either that the re- j irrelevante* j pairs were done or that the money was paid. if) The question is, whether A (deceased) gained a settlement in the parish of B by renting a tenement. A statement made by A, whilst in possession of a house, that he had paid rent for it, is deemed to be relevant, because it reduces the interest which would otherwise be inferred from the fact of A's pos- session.65 ig) The question is, whether th^re is a right of common over a certain field. A statement by A, a deceased tenant for a term of the land in question, that he had no such right, is deemed to be relevant as against his successors in the term, but not as against the owner of the field.e6 ( h ) The question is, whether A was lawfully married to B. A statement by a deceased clergyman that he performed the mar- riage under circumstances which would have rendered him liable to a criminal prosecution, is not deemed to be relevant as a statement against interest.ST 61 Doe V. Beviss, 1849, 7 C. B. 456. 62 Williams v. Graves, 1838, 8 C. & P. 592. 63 R. V. Lower Hey ford, 1840, note to Higham v. Ridgway, 1808, 2 Smith's L. C. 329. 6iDoe V. Vowles, 1833, 1 Mo. & Eo. 261. In Taylor v. Witham, 1876, 3 Ch. Div. 605, Jessel, M.R., followed R. v. Lower Eeyford, and dissented from Doe v. Towles. fCE. 173 The certificate of a clerk of court is not evidence of what a witness testified to. People v. Harris, 21 How. Pr. 83. Municipal tecoids. — Power v. Village of Athens, 99 N. Y. 592, affirming 26 Hun, 282; Brown v. Rice, 21 Wkly. Dig. 479; Reed v. Schmit, 39 Hun, 223; Polley v. Buffalo, 20 Wkly. Dig. 163. The original minutes of a city corporation are admissible. Den- ning V. Roome, 6 Wend. 651. The ordinances of a municipal corporation are competent evidence. Rochester v. ilontgomery, 72 N. Y. 65. And see Briggs v. 'New York Central Railroad Co., 72 N. Y. 26. But under the statute only on the trial; not on appeal. Porter V. Waring, 69 N. Y. 250. A certified copy of an ordinance is competent evidence. . People v. Rochester, 45 Hun, 102. Preliminary proofs. — A book purporting to contain the proceed- ings of the commissioners of forfeitures, but not proved to have been in their possession, is not competent evidence. Williams v. Miller, 6 Cow. 731, 6 Wend. 228. As to what is sufficient evidence of the genuineness of a discharge from the military service, see Thompson v. Fargo, 4 S. C. 665, 48 How. Pr. 93, 63 N. Y. 479. Collateral impeachment. — A sheriff's return to a replevin that he had delivered the property to the plaintiff, cannot be impeached, collaterally. Russell v. Gray, 11 Barb. 541. Nor can a constable's return to an attachment. Case v. Redfield, 7 Wend. 398. Nor can a town clerk's minutes of the proceedings of a town meeting. People V. Zeyst, 23 N. Y. 140. Notarial registers and certificates. — Halliday v. Martinet, 20 Johns. 168; Cummings v. Fisher, Anth. N. P. 1; Willur v. Selden, 6 Cow. 162 ; Butler v. Wright, 2 Wend. 369 ; Hart v. Wilson, 2 Wend. 513; Halliday v. McDougall, 20 Wend. 81, 22 Wend. 264; Gawtry v. Doane, 51 N. Y. 84, 48 Barb. 148, overruling Otsego Bank v. Warren, 18 Barb. 290; Genet v. Lawyer, 61 Barb. 211; Fassin v. Hubhard, 61 Barb. 548, 55 N. Y. 465; Butchers' and Drovers' Bank v. De Groot, 11 J. & S. 341; Bank of Metropolis v. Jacobs, 2 City Ct. 1; Bank of Rochester v. Gray, 2 Hill, 227 ; Halliday v. Martinet, 20 Johns. 168; McKnight v. IjCivis, 5 Barb. 681; Herkimer County Bank v. Cox, 21 Wend. 119: BcU v. Lent, 24 Wend. 230; Bank of the United States \'. Davis, 2 Hill, 451; Cayuga County Bank v. Hunt, 2 Hill, 635; Ketschtim v. Barber, 4 Hill, 224, 7 Hill, 444; War- nich V. Crane, 4 Den. 460; Hunt v. Maybec, 7 N. Y. 266; Fur- 174 A DIGEST OF [Pabt I. niss V. Holland, Edm. S. C. 470; Dutchess County Bank v. 76- botson, 5 Den. 110; McAndrew v. Radway, 34 N. Y. 511; Gawtry V. Doane, 51 N. Y. 84, 48 Barb. 148; Arnold v. Bock River Val- ley Union Railroad Co., 5 Duer, 207; Young v. Catlett, 6 Barb. 437; Lansing v. Goley, 13 Abb. Pr. 272; Union Bank v. Gregory, 46 Barb. 98; Rose v. Bedell, 5 Duer, 462; Barafc of Yergennes v. Cameron, 7 Barb. 143; Banfc of Rochester v. Gray, 2 Hill, 227; Kirtland v. Wanzer, 2 Duer, 278; Lawson v. Pinckney, 8 J. & S. 187; Sereeca County Bank v. ffeoss, 5 Den. 329, 3 N. Y. 442; Young V. Catlett, 6 Duer, 437; iSoss v. Bedell, 5 Duer, 462; Onondaga County Bank v. Bates, 3 Hill, 53; Gawtry v. Doane, 51 N. Y. 84, 48 Barb. 148; MarsA. v. Palmo, 1 Code R. 13; Pierson v. Bo^/d, 2 Duer, 33; Burrall v. De ffroot, 5 Duer, 379; Dunn v. Devlin, 2 Daly, 122; Treadwell v. Hoffman, 5 Daly, 207; Toi/ior v. Stringer, 1 Hilt. 377; Gessner v. SmitA, 18 St. Eep. 1013, 2 N. Y. Supp. 655; Dutchess County Bank v. Z66otsom, 5 Den. 110; Eellam v. IfciCoow, 31 Hun, 519. Article 35. eelevanct of statements in works of history, maps, charts, and plans. Statements as to matters of general public history made in accredited historical books are deemed to be relevant when the occurrence of any such matter is in issue or is or is deemed to be relevant to the issue ; but statements in such works as to private rights or customs are deemed to be irrelevant.'*^ [Submitted] Statements of facts in issue or relevant or deemed to be relevant to the issue made in published maps or charts generally offered for public sale as to matters of public notoriety, such as the relative position of towns and countries, and such as are usually represented or stated in 9^ See cases in 2 Ph. Ev. 155-6, and Read v. Bishop of Lincoln, [1892], A. C. 644, at pp. 652-654. Chap. IV.] THE LAW OF EVIDENCE. 175 such maps or charts, are themselves deemed to be relevant facts f^ but such statements are irrelevant if they relate to matters of private concern, or matters not likely to be accurately stated in such documents.^^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 139 and 497; 9 Am. & Eng. Encyclopsedia of Law (2d ed.), p. 885 et seq.; Abbott's Trial Evidence (2d ed.), p. 883. As to first paragraph of text, see Woods v. Banks, 14 N. H. 101. Sustaining text so far as works by authors, long deceased, are concerned; State v. Wagner, 6 Me. 178; Morris v. Harmer, 7 Pet. 554; Spalding v. Hedges, 2 Pa. St. 240, 243; Charlotte v. Chouteau, 30 Mo. 194. An almanac is admissible. State v. Morris, 47 Conn. 179; Mun- shower v. State, 55 Md. 11. An encyclopsedia is not admissible to prove recent occurrences. Whiton V. Albany, etc., Ins. Co., 109 Mass. 24. A list of prices current may be admitted if proved to be reliable. Whitney v. Thacher, 117 Mass. 523; Cliquot's Champagne, 3 Wall. 114; Seligman v. .Rogers, 113 Mo. 642. Maps, plans, photographs, etc. — Com. v. King, 150 Mass. 221. Ancient maps, shown to be genuine, are competent evidence to prove matters relating to general or public rights. Laiorence v. Tennant, 64 N. H. 532; Caiisland v. Fleming, 63 Pa. 36. Of private boundary. Gibson v. Poor, 21 N. H. 440. 98 In R. V. Orton, maps of Australia were given in evidence to show the situation of various places at which the defendant said he had lived. In R. v. Jameson, Trial at Bar, 21 July, 1896, standard maps of South Africa were admitted to show the general positions of the places referred to: Phipson, p. 354. 99 E. g. a line in a tithe commutation map purporting to denote the boundaries of A's property is irrelevant in a question between A and B as to the position of the boundaries: Wilberforce v. Hearfield, 1877, 6 Ch. Div. 709, and see Hammond v. Bradstreet. 1S54, 10 Ex. 390; and R. V. Bergcr, [1894], 1 Q. B. 823. See, too, Phipson, pp. 333, 334. 176 A DIGEST OF [Pabt I. Private surveys are not admissible without proof of their correct- ness. Whitehouse v. Beckford, 29 N. H. 471; Com. v. SwiUer, 134 Pa. 383; Wilkinson v. State, 106 Ala. 23; Rowland v. McC'own, 20 Ore. 538; Burwell v. Sneed, 104 N. C. 118. An ancient layout of a highway by a proprietors' committee, with c ridence that it was recorded in the proprietors' book, and that the land thus laid out has ever since been used as a highway, is ad- missible to prove the existence, by dedication, of the highway, and its width. State v. Merrit, 35 Conn. 315. A survey found among the papers of a, deceased surveyor, but where there was no evidence that it was made from actual survey, or at whose procurement, was neld n"t admissible in evidence. Free V. James, 27 Conn. 79. Ancient maps, shown to be genuine, are competent evidence to establish private boundary. Whitman v. Shaw, 166 Mass. 451. A plan or picture is admissible if verified by proof. Blair v. Pelham, 118 Mass. 420; Marcy v. Barnes, 16 Gray (Mass.), 161; Bollenieck v. Rowley, 8 Allen (Mass.), 473. Contra, Bearce v. Jackson, 4 Mass. 408. A map published by authority of the Legislature is admissible to prove town boundaries. Com. v. King, 150 Mass. 221. The judge is to pass upon the sufficiency of the verification. Blair \: Pelham, 118 Mass. 420; Walker v. Curtis, 116 Mass. 98. See also Com. V. Goe, 115 Mass. 481. The admissibility of a photograph does not depend upon its verification by the photographer, provided it is shown to be accu- rate by any one competent to speak from personal observation. The sufficiency of the verification is a preliminary question of fact for the judge. McGar v. Borough of Bristol, 71 Conn. 652. It is error to admit a, photograph without verification. Gunning- ham V. F. H. & W. R. B. Co., 72 Conn. 244. Photographic views of the scene of an accident are admissible as a representation of the place. Any difference that arises from the Views being taken at a diflferent season of the year can be explained. Dyson v. V. Y. & N. E. R. R. Co., 57 Conn. 24. Scientific books. — Scientific books are not admissible, nor may they be read in argument. Com. v. Wilson, 1 Gray (Mass.), 337; Washiurn v. Guddihy, 8 Gray (Mass.), 430; Ashworth v. Kittridge, 12 Cush. (Mass.) 193, 59 Am. Deo. 178; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Com. v. Brown, 121 Mass. 69. Chap. IV.] THE LAW OF EVIDENCE. 177 The reading to the court or jury of books recognized by experts as authority, may be allowed or refused in the exercise of judicial discretion. Richmond's Appeal, 59 Conn. 244. Medical books. — Medical books are not competent evidence. Ash- tcorth V. Kittridfie. 12 Cush. (Mass.) 103, 59 Am. Dec. 178; Com r. Sturtivant, 117 Mass. 122; Com. v. Wilson, 1 Gray (Mass.), 337; Fox y. Peninsular, eto^, Works, 84 Mich. 676; Epps v. State, 102 Ind. 539; Gallagher v. Market St. R. Co., 67 Cal. 13; Boyle v. State, 57 Wis. 472, 46 Am. Rep. 41 ; Bales V. Stale, 63 Ala. 30 ; Burg v. Chi- cago, etc., R. Co., 90 la. 106. In some States standard medical works on insanity may be read to the jury by the counsel for the accused, upon the question of his in- sanity. State V. Hoyt, 46 Conn. 337. This rule must be regarded as confined exclusively to cases where the plea of insanity is interposed. Richmond's Appeal, 59 Conn. 244. In examining a medical expert, counsel may read questions from a medical boolv for the purpose of making himself understood. Tompkins v. West, 56 Conn. 485. Nor may they be read to the jury. M'ashhurn v. Cuddihy, 8 Gray (Mass.), 430; Boyle v. State, 57 Wis. 472, 46 Am. Rep. il;People v. Wheeler, 60 Cal. 581, 44 Am. Rep. 70. An illustration in a medical book is not admissible. Ordway v. Haynes, 50 N. H. 159. Law books. — The court, in its discretion, may allow books of statutes to be read to the jury. Com. v. Hill, 145 Mass. 305. See also Com. v. Porter, 10 Mete. (Mass.) 263; State v. Fitzgerald, 130 Mo. 407; People v. Anderson, 44 Cal. 65; Curtis v. State, le Ark. 284; Gregory v. Ohio River R. Co., 37 W. Va. 606; Blum T. Jones, 86 Tex. 492; Norfolk d Western R. Co. v. Barman's Admr., 83 Va. 553 (matter of right). But the reading of law books is prohibited in some States. Lendlury v. Iron Mining Co., 75 Mich. 84; Steff en- son V. Chicago, etc., R. Co., 48 Minn. 285 ; Yarhorough v. State, 105 Ala. 45. It has been held that a reported case may be read to the jury in a criminal case. State v. Hoyt, 40 Conn. 330; Wohlford v. People, 148 111. 296; Johnson v. Culver, 116 Ind. 278; Hudson v. Hudson, 90 Ga. 582 ; State v. Whitmore, 53 Kan. 343. An unofficial compilation of the laws of another State is not gen- erally admissible. Bride v. Clark, 161 Mass. 130. 12 178 A DIOEBT OF [Pabt I. A printed book, purporting to be a copy of the statutes of an- other State, is not evidence of such statutes. Bostwick v. Bogardus, 2 Root (Conn.), 250. New York. Authority. — Bogardus v. Trinity Church, 4 Sandf. Ch. 633. Counsel liave no right to read boolcs or newspapers to the jury^ Williams v. Brooklyn Elev. R. It. Co., 126 N. Y. 96. Histoiies. — Onondaga Nation v. Thatcher, 61 N. Y. Supp. 1027,^ 29 Misc. Eep. 428 ; judgment affirmed in Onondaga Nation v. Thatcher, (Sup. 1900), 65 N. Y. Supp. 1014 (concerning Indian relics) ; Bo- gardus V. Trinity Church, 4 Sandf. Ch. 633 ; McEinnon, v. Bliss, 21 N. Y. 206, 216; Crill \. Rome, 47 How. Pr. 400. A local history is not admissible. McKinnon v. Bliss, 21 X. Y. 206, 31 Barb. 180; Roe v. Strang, 107 N. Y. 350. Tide tables. — Tide tables, calculated by scientific authors, ar* competent evidence. Green v. Gornvxll, 1 C. H. Ree. 11. Life tables. — The Northampton tables are competent evidence, upon the question as to the probable duration of a, life. Hchell v. Plumh, 55 N. Y. 592, 46 How. Pr. 11; Sauter v. New York Central Railroaa Co., 6 Hun, 446, 66 N. Y. 50. Medical books. — A medical book is not admissible. Harris v. Pan- ama R. R. Co., 3 Bosw. 7. A book on the diseases of horses is not admissible to prove that a certain horse had a certain disease. Harris v. Panama R. R. Co., 3 Bosw. 7. Prices-currfent. — Prices-current, published for public cii-culation, in a newspaper, are admissible. Terry v. McNeil, 58 Barb. 241. Com- pare Whelan v. Lynch, 60 N. Y. 469, affirming 65 Barb. 326. Architect's schedule of charges. — The schedule of charges of the American Institute of Architects is admissible to show the cvistomary and proper compensation. Gilman v. Stevens, 54 How. Pr. 197. Photograph. — Identification of a photograph by any one familiar with the subject is sufficient to establish a foundation for its admis- sion. Stiasny v. iletropoUtan St. Ry. Co., 68 N. Y. Supp. 694, 58 App. Div. 172. Maps, etc. — Maps, surveys, plans and the like are not admissible unless their accuracy is proved aliunde. Donohiic v. ^Vhiflley, 133 N. Y. 178. They may be proved by the one who made them. Curiiss v. Ay- rault, 3 Hun, 487. Public maps, made in accordance with statute, are admitted with- Chap. IV.] tBE LAW OF EVIDENCE. 179 OTit proof. People v. Denison, 17 Wend. 312; Carpenter v. Cohoes, 81 N. Y. 21. An ancient map showing the partition of land between private owners is inadmissible. Jackson v. Witter, 2 Johns. 180. A map referred to in a deed is admissible. Kingsland v. Chitten- den, 6 Lans. 15 ; Clark v. N. Y. Life Ins. Co., 64 N. Y. 33 ; Crawford V. Loper, 25 Barb. 449. In an action for injuries, a diagram of the place where the acci- dent occurred is admissible in connection with testimony where it correctly indicates the facts. Clegg v. Metropolitan St. Ry. Co., 54 N. E. 1089, 159 N. Y. 550, affirming 37 N. Y. Supp. 130, 1 App. Div. 207. A map showing the location of a building is admissible upon the issue of whether it is built too near the street. Bodine v. Andrews, 62 N. Y. Supp. 385, 47 App. Div. 495. Article 36. enteies in bankebs' books. A copy of any entry in a banker's book must in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded [even in favour of a party to a cause producing a copy of an entry in the book of his own bank] .^ Such copies may be given in evidence only on the con- dition stated in Article 71 (/). The expression " Bankers' books " includes ledgers, day- books, cash-books, account-books, and all other books used in the ordinary business of the bank.'' The word " Bank " is restricted to banks which have duly made a return to the Commissioners of Inland Revenue, iBarding v. Williams, 1880, 14 Ch. Div. 197. 2 And applies apparently to the books of bankers in all parts of the United Kingdom: Kissdin v. Link, post. 180 A DIGEST OF [Pabt I. Savings banks certified under the Act relating to savings tanks, Post-office savings banks, and any company carrying on the business of bankers to which the Companies Acts, 1862 to 1880, are applicable, which has furnished to the registrar of joint-stock com- panies a list and summary, as required by the second part of the Companies Act, 1862, with the addition of a state- ment of the names of the several places where it carries on business.^ The fact that any bank has duly made a return to the Commissioners of Inland Revenue may be proved in any legal proceeding by the production of a copy of its return verified by the affidavit of a partner or ofiicer of the bank, or by the production of a copy of a newspaper purporting to contain a copy of such return published by the Commission- ers of Inland Revenue. The fact that a company carrying on the business of bankers has duly furnished a list and summary [se»?i&?ewith the addition specified] may be proved by the certificate of the registrar or any assistant registrar. "* The fact that any such savings bank is certified under the Act relating to savings banks may be proved by an office or examined copy of its certificate. The fact that any such bank is a post-office savings bank may be proved by a certificate purporting to be imder the hand of Her Majesty's Postmaster-General or one of the secretaries of the Post Office.^ 8 45 & 46 Vict. e. 72, a. 11. * 4.i & 46 Vict. e. 72, s. 11. 5 42 & 43 Viet. e. 11. Chap. IV.] THE LAW OF EVIDENCE. 181 Aeticle 37. bankers not compellable to peoduce theie books. A bank or officer of a bank is not in any legal proceeding to which the bank is not a party compellable to produce any banker's book, or to appear as a witness to prove the matters, transactions, and accounts therein recorded unless by order of a Judge of the High Court made for special cause [or by a County Court Judge in respect of actions in his own court].® Aeticle 38. judge's powees as to banker's books. On the application of any party to a legal proceeding a Court or Judge [including a County Court Judge acting in respect to an action in his own court] may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such pro- ceedings. Siich order may be made either with or without summoning the bank, or any other party, and must be served on the bank three clear days [exclusive of Sundays and Bank holidays] before it is to be obeyed, unless the Court otherwise directs.^ 6 42 & 43 Vict. c. 11, ss. 7, 10. 7 42 & 43 Vict. c. 11, s. 7. See Davies v. White, 1884, 53 L. J., Q. B. 275; In re Marshfield, Marshfield v. Hutchings, 1886, 32 Ch. D. 499 j Arnott V. Hayes, 1887, 36 Ch. D. 731. The order may be made in re- spect of books in any part of the United Kingdom; Kissam v. Link, [1896], 1 Q. B. 574. See post, Article 71 (6). 182 A DIGEST OF [Pabt I. AKTICiE 39.* " Judgment." The word " judgment " in Articles 40-47 means any- final judgment, order or decree of any Court. The provisions of Articles 40-45 inclusive, are all subject to the provisions of Article 46. Aeticle 40. ALL judgments CONCLUSIVE PEOOF OF THEIE LEGAL EFFECT. All judgments whatever are conclusive proof as against all persons of the existence of that state of things which they actually effect when the existence of the state of things so effected is a fact in issue or is or is deemed to be relevant to the issue. The existence of the judgment effecting it may be proved in the manner prescribed in Part II. Illustrations. { a ) The question is, whether A has been damaged by the negligence of his servant B in injuring C's horse. A judgment in an action, in which C recovered damages against A, is conclusive proof as against B, that C did recover damages against A in that aetion.8 (ft) The question is, whether A, a shipowner, is entitled to recover as for a loss by capture against B, an underwriter. * See Note XXIII. 8 (h-een v. Ifetp River Company, 1792, 4 T. R. 589. (See Article 44, Illustration (a).) Chap. IV.] THE LAW OF EVIDENCE. 183 A judgment of a competent French prize court condemning the ship and cargo as prize, is conclusive proof that the ship and cargo were lost to A by capture.9 (c) The question is, whether A can recover damages from B for a malicious prosecution. The judgment of a Court by which A was acquitted is conclusive proof that A was acquitted by that Court.io {d) A, as executor to B, sues C for a debt due from C to B. The grant of probate to A is conclusive proof as against C, that A is B's executor.ll (e) A is deprived of his living by the sentence of an ecclesiastical court. The sentence is conclusive proof of the act of deprivation in all Mass. 330; White v. Weatherbee, 126 Mass. 450; Bliss v. N. Y. Cent. R. B. Co., 160 Mass. 447, 455; Fuller v. Sliattuck, 13 Gray (Mass.), 70; Miller v. Miller, 150 Mass. Ill; Bradley v. Brigham, 149 Mass. 141; Bigelow v. Winsor, 1 Gray (Mass.), 299. A judgment is conclusive as to facts within the issues and actually litigated. Parol evidence is admissible to prove what was litigated. Embden v. Lisherness, 89 Me. 578 ; Campbell v. Ranking, 99 U. S. 261; Title Co. v. Shallcross, 147 Pa. St. 385; Palmer v. Sanger, 143 111. 34 ; Harding v. Bader, 75 Mich. 323 ; Stone v. St. Louis Stamping Co., 155 Mass. 267. IT Bank of Hindustan, cCc, Alison's Case, 1873, L. R. 9 Ch. App. 24. IS Stoate V. Stoate, 1861, 2 Swa. & Tri. 223. Both would now be competent witnesses in each suit. Chap. IV.] TEE LAW OF EVIDENCE. 187 In a subaeqiient suit on the same cause of action, a judgment is conclusive as to all matters within the issvies, which might have been litigated, whether they actually were or not. Bassett v. Conn. Riv. R. R. Co., 150 Mass. 179; Foije v. Patch, 132 Mass. 110; Ben- nett V. Hood, 1 Allen (Mass.), 47; Horner v. Fish, 1 Pick. (Mass.) 435; Wright v. Anderson, 117 Ind. 315; Diamond (State Iron Co. v. Barig, 93 Va. 595; Petersinev. Thomas, 28 0. St. 596; Funk y. Funk, 35 Mo. App. 246. If the second suit is upon a different cause of action, the judgment is conclusive only as to matters actually litigated, not as to those Which might have been litigated. Foije v. Patch, 132 Mass. 106; Gilbert v. Thompson, 9 Cush. (Mass.) 348; Morse v. Elms, 131 Mass. 151; Evans v. Clapp, 12:! ilass. 165; Keicell v. Carpenter, 118 Masi. 411; Sibley v. Bulbert, 15 Gray (Mass.), 509; Norton v. Huxley, 13 Gray (Mass.), 285; Gage v. Holmes, 12 Gray (Mass.), 428; Burnett V. Smith, 4 Gray (Mass.), 50; Norton v. Doherty, 3 Gray (Mass.), 372; Metcalf v. Gilmore. 63 X. H. 174, 181: Nesbitt v. Riverside Dist., 144 U. S. 610; Hixson v. Ogg, 53 O. St. 361 ; Wright v. Griffey, 147 111. 496; Bond v. Markstrum., 102 Mich. 11. A judgment at law or decree in equity of a court having juris- diction is conclusive between the parties to it and their privies, upon every material fact in issue, and cannot be collaterally impeached. Peck V. Woodbridge, 3 Day ( Conn. ) , 36 ; Canaan v. Greenwoods Turnpike Co., 1 Conn. 6; Willey v. Paulk, 6 Conn. 75; Griswold v. Bigelou; 6 Conn. 264; Sears v. Terry, 26 Conn. 280, 282; McLoud V. Selby, 10 Conn. 396; Holcomb v. Phelps, 16 Conn. 131; Ormsbee v. Davis, 16 Conn. 570. But where jurisdiction can be obtained only through the actual existence of some fact, a decree by a court which decides that such fact exists can be attacked collaterally and shown to be invalid. Scott v. McNeal, 154 U. S. 34. See People's Sav. B'k V. Wilcox, 15 R. I. 258; Noble v. Union River Co., 147 U. S. 165, 173. New York. Authorities. — Case v. lleeve, 14 Johns, 81; Embury v. Connor, 3 N. Y. 511, 53 Am. Eep. 523; Doty v. Broini, 4 X. Y. 71 ; Campbell v. Hall, 16 N. Y. 575; Lvska v. O'Brien, 68 N. Y. 446; Blair v. Bartlett, N. Y. 511, 53 Am. Rep. 523; Doty v. Brown, 4 X. Y. 71; Campbell v. Bower, 77 X^. Y. 76; Bell v. Mcrri field, 109 X. Y. 202; ShaiD v. Broad- bent, 129 X. Y. 114; Reformed Dutch Church v. Brown, 54 Barb. 191. 188 A DIGEST OF [Paet I. A judgment is conclusive as to facts within the issues and actually litigated. Parol evidence is admissible to prove what was litigateij. Bowe v. WilUns, 105 N. Y. 322. See Leiois v. Ocean Xav. Co., 125 N. Y. 341. In a subsequent suit on the same cause of action a judgment is conclusive as to all matters within the issues, which might have been litigated, whether they actually were or not. Hccor v. Hturgis, 16 N. Y. 548; Pray v. Hegeman, 98 N. Y. 351; Farrington v. Payne, 15 Johns. 432; Stevens v. Lockioood, 13 Wend. 644; Schopen v. Bald- win, 83 Hun, 234; Binck v. V/ood, 43 Barb. 315. This includes grounds of recovery or defense, permissible under the issues, but not presented by a defendant in the former suit. White v. Merritt, 7 N. Y. 352; Malloney v. Horan, 49 N. Y. Ill; Reich v. Cochran, 151 N. Y. 122. But set-off and recoupment, not previously pleaded, may be the subject of an independent suit, if their recovery is not inconsistent with the findings of the former judgment. Brown v. Gallaudet, 80 N. Y. 413; Malloney v. Horan, 49 N. Y. Ill; Yates v. Fassett, 5 Den. 21, 29, 30. If pleaded and determined, a subsequent action cannot be had thereon. Patrick v. Shaffer, 94 N. Y. 423. If the second suit is upon a different cause of action, the judgment is conclusive only as to matters actually litigated, not as to those which might have been litigated. See cases above. Conclusive judgment. — But a conclusive judgment, barring another action, must be a final decision en the merits. Wehb v. Buckelew, 82 N. Y. 555. A nonsuit is not such a decree. Wheeler v. Ruckeman, 51 N. Y. 391. Nor a discontinuance. Loeb v. Willis, 100 X. Y. 231. Nor the sustaining of a plea in abatement. Springer v. Bicv, 128 N. Y. 99. Xor a decree where an action was prematurely brought. Rose v. Hawley, 141 N. Y. 366. Nor where there is a verdict, but no judgment entered. Springer v. Bien, 128 N. Y. 99. A judgment on demurrer cannot bar a fresh complaint which, though based on the same transaction, presents nCAV or changed alle- gations so as to furnish a good cause of action. Sloir a judgment in personam, and can only avail to reach the property attacked. Fitzsimons v. Marks, 66 Barb. 333; Ward v. Boyce, 152 N. Y. 191. See Durant v. Abendroth, 97 X. Y. 132. Foreign judgments. — A foreign judgment, although regarded as conclusive upon the merits, may be attacked collaterally for want of jurisdiction. Shepard v. Wright, 113 N. Y. 582; hunston v. Biggins, 138 N. Y. 70. Chap. V.] THE LAW OF EVIDENCE. 205 CHAPTEE v.* opinions, when relevant and when not. Aeticle 48. opiniosr geneeallt leeelevant. The fact that any person is of opinion that a fact in issue, or relevant or deemed to be relevant to the issue, does or does not exist is deemed to be irrelevant to the existence of such fact, except in the cases specified in this chapter. Illustration. The question is, whether A, a deceased testator, was sane or not when he made his will. His friends' opinions as to his sanity, as ex- pressed by the letters which they addressed to him in his lifetime, are deemed to be irrelevant.! AMERICAN NOTES. General. Anthorities. — 1 Wharton on Evidence, sec. 509 et seq.; 1 Green- leaf on Evidence (15th ed.l, sec. 440, and notes, and vol. 2, sec. 371; 12 Am. & Eng. Eneyclopiedia of Law (2d ed.), sec. 488 et seq.; Lawson on Expert and Opinion Evidence, chaps. 1-7 ; Conn. Ins. Co. V. Lathrop, 111 U. S. 612, 618; Graham v. Pa. Co.. 139 Pa. 149; Coates V. Burlington, etc., R. Co., 62 la. 486. See Cannon v. People, 141 111. 270. Witnesses may give their opinions in connection with facts when the matter cannot otherwise be reproduced or made palpable. Fayette v. Chesterville, 77 Me. 28, 52 Am. Rep. 741 ; Lester v. Pittsford, 7 Vt. 158 ; Morse v. Crawford, 17 Vt. 499 ; Cram v. Cram, * See Note XXIV. 1 Wright v. Doe d. Tatham, 1837, 7 A. & E. 313. 206 A DIGEST OF [Part I. 33 Vt. 15; Bates v. Sharon, 45 Vt. 474; Gliiford v. Richardson, 18 Vt. 620; Cavendish v. Troy, 41 Vt. 99; Shelby v. Clagett, 46 O. St. 549; ySiate v. Rainsberger, 71 la. 746; People v. Rolfe, 61 Cal. 540; Chicago R. Co. v. Van Vleck, 143 111. 480; Cook v. 7«s. Co., 84 Mich. 12. Where the circumstances are such that opinion evidence is the best that can be had, eye-witnesses may state their opinions. Hardy V. Merrill, 56 N. H. 227, 241, 22 Am. Rep. 441. See also dissent- ing opinion of Doe, J., in State v. Pike, 49 N. H. 408; Yanderpool V. Richardson, 52 Mich. 336; State v. Stackhouse, 24 Kan. 445; Com. V. Sturtivant, 117 Mass. 122, 123, 19 Am. Rep. 401. A non-expert may state his opinion as to the following matters: Identity of persons, things or handwriting; size, color or weight; time or distance; character of sounds and whence they proceed. Com. V. Sturtivant, 117 Mass. 122, 123, 19 Am. Rep. 401. Kindly treatment. Baldwin v. Parker, 99 Mass. 79. Character of a, foundation. Bardwell v. Conway Ins. Co., 122 Mass. 90. Rate of expenditure of a person. Griffin v. Brown, 2 Pick. (Mass.) 304. That one seemed sad. Culver v. Dwight, 6 Gray { Mass. ) , 444. Or took no interest in what was going on. Com. v. Piper, 120 Mass. 185. Whether a road is dangerous. Lund v. Tyngsborough, 9 Cush. (Mass.) 36; Eelleher v. Keokuk, 60 la. 473. Whether " horn chains " are fragile. Sweet v. Shumway, 102 Mass. 365. As to a person's age. Com. v. O'Brien, 134 Mass. 198; Eisner v. Supreme Lodge, 98 Mo. 640. Whether hairs are those of a human being. Com. %. Dorsey, 103 Mass. 412; Com. v. Sturtivant, 117 Mass. 122. Whether a foot and footprints correspond. Com. v. Pope, 103 Mass. 440. As to whether one was careful and temperate. Gahagan v. B. d L. R. R. Co., 1 Allen (Mass.), 187; Cook v. Ins. Co., 84 Mich. 12. Where the opinion of one is a relevant fact he may state that opinion. Allen v. Hartford Life Ins. Co., 72 Conn. 697. A witness cannot be asked whether a previous witness, who has testified to certain things, " had any ground " for so testifying. Lovell v. Hammond Co., 66 Conn. 501. Chap. V.] THE LAW OF EVIDENCE. 20V Opinions of persons not experts may be admitted when they are those of practical and observing men, of the result of their own observations and knowledge, upon a question the particular ele- ments of which are so numerous and the character of which is such that it is impracticable for them to state the facts fully. Barher v. Manchester, 72 Conn. 684. Sanity. — A non-expert witness, having stated the extent of his per- sonal acquaintance, may give an opinion as to sanity. State v. Cross, 72 Conn. 722. The mere opinion of a non-expert witness concerning the mental condition of a testator is never admissible. It is admissible only in connection with the particular facts on which it is based or after the witness has been shown to have sufficient means and opportunities of personal observation to enable him to form a, reasonably correct conclusion. They are received rather as state- ments of impressions or conclusions in the nature of facts of which the witness has knowledge than as opinions. Turner's Appeal, 72 Conn. 315. A non-expert who has had sufficient opportunity of observation may be asked, " Was the testator, in your opinion, a person of sound mind " or whether he possessed sufficient understanding to be able to transact the ordinary 'business matters incident to the management of his household affairs and property, or to compare his mental power with that of an average child of seven or eight years. Turner's Appeal, 72 Conn. 316. Upon the issue of sanity, witnesses to particular facts may give their opinion in connection with such facts. Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441: Ct. Ins. Co. v. Lathrop, 111 U. S. 612; Foster's Ex. v. Dickerson, 64 Vt. 233 ; Elcessor v. Elcessor, 146 Pa. St. 359; N. Y., etc., R. Co. v. Luebech, 157 111. 595; 'Newcomh v. JVeiu- eomh, 96 Ky. 120; Holland v. Zollner, 102 Cal. 633; Fishburne v. Ferguson, 84 Va. 87. New Yoek. Sanity. — The mere opinion of a. non-expert witness concerning the mental condition of a testator is never admissible. But he may state acts and conversations of such testator falling within his per- sonal knowledge, and then, upon these as a basis, state his opinion as to their rationality or irrationality, or whether or not these were the acts and conversations of a rational person. Judgment and order 208 A DIGEST OF [Part I. (1895), 36 N. Y. Supp. 283, 91 Hun, 165, affirmed; Johnson v. Coch- rane, 54 N. E. 1092, 159 N. Y. 555. Value — Damages. — Upon the question of the depreciation in value resulting from the erection of telegraph poles in front of plaintiflf's property, opinion evidence is irrelevant. Comesky v. Postal Tele- graph Cable Co., 58 N. Y. Supp. 467, 41 App. Div. 245. A witness cannot testify as to the value of chattels, in the absence of evidence of the chattels themselves or their quality and quantity, even if the witness has personal acquaintance with such facts. Judg- ment ( City Ct. N. Y., 1899 ) , 60 N. Y. Supp. 1000, reversed ; Smith v. Smith, 65 N. Y. Supp. 497, 32 Misc. Rep. 702. Testimony of a. non-expert witness that " I could not tell you ex- actly; I think it was worth about $275" is not competent on the value of goods. Judgment (City Ct. N. Y. 1899), 61 N. Y. Supp. 1104, 30 Misc. Rep. 193, reversed; Ravin v. Subin, 64 N. Y. Supp. 138, 31 Misc. Rep. 742. It is error to refuse to strike out the answer of a witness to this question : " What would you say to be the value of that coach at the time you saw it there that day, and after it left your shop — after it had been repaired ? " where on cross-examination he stated that he could not remember the condition of the coach before the accident. Eureka Stable Co. v. Metropolitan St. Ry. Co., 65 N. Y. Supp. 509, 32 Misc. Rep. 700. The opinion of a restaurant keeper, although a non-expert, can be given relative to the value of articles commonly used in his res- taurant, in an action for their conversion. Gorman v. Park & Til- ford, 100 Fed. Rep. 553, 40 C. C. A. 537. Where a, question asked of a witness as to the rental value of the residence of the plaintiff had no piles of sand been there and blowing as described in an action for nuisance, was objected to because the witness was left to consider the effect of the evidence from several other witnesses, held, that such an objection would not be considered upon appeal. Dunsbach v. Eollister, 49 Hun, 352, 17 N. Y. St. R. 461, 2 K Y. Supp. 94. A statement by the plaintiff of the amount of damages resulting from the loss of his building, even if not contradicted, is not binding on the jury. Judgment (Sup. 1897), 48 N. Y. Supp. 106, 22 App. Div. 573, affirmed; Hamilton v. Owego Waterworks, 57 N. E. 1111, 163 N. Y. 562. Mere opinion. — Conclusions of a witness draT\'n from the facts of his testimony are inadmissible. Gardner v. Friederich, 57 N. E. Chap. V.] THE LAW OF EVIDEKCE. 209 1110, 1G3 N. Y. 568, affirming 49 N. Y. 8iipp. 1077, 25 App. Div. 521. Positive testimony cannot be counterbalanced by the mere impres- sion of a witness, unconnected with facts. Dresser v. Van Pelt, 1 Hilt. 316. Testimony of the plaintiff that his living expenses could be con- servatively estimated as $2 a day is inadmissible since it gave no facts and figures whereby the jury might form an estimation, in an action for breach of contract of the employment of a travelint; salesman, providing for an allowance for expenses. Doion v. Krall, 65 N. Y. Supp. 797, 32 Misc. Eep. 252. The opinion of a physician relative to her marriage is inad- missible for lack of a sufficient foundation, where he testifies that he had known the insured, a middle-aged woman, for three or four years, and had frequently professionally called on the family but not on her ; that she had black hair, and was a strong, active, woman. Hartshorn v. Metropolitan Life Ins. Co., 67 N. Y. Supp. 13, 55 App. Div. 471. Testimony of a physician, in an action for injuries, that the plain- tiff was first examined by him three years after the accident, and that her condition was attributable to it, and that pains suffered by a, person nearlv three years after a blow on the head are to be at- tributed to the injury, and would be of a permanent nature, indicat- ing a certain ailment, is competent, as being opinion evidence, since lie gave no facts whereby the jury could determine its weight, inas- much as he did not state the results of the examination. Sullivan v. Metropolitan St. Rij. Co.. 71 N. Y. Supp. 280. In an action on an order alleged to have been accepted by the de- fendant, his testimony that he was not then indebted to the drawers is not admissible, when the defendant is shown not to accurately know the state of the accounts between him and the drawer, although the defendant tries to show that the drawers owed him before the time of the alleged acceptance. Campbell v. Caycy, 69 K. Y. Supp. 859. Where the question was, whether the damage could have been caused by the defendant's alleged negligent use of a flagstone walk, or by some defect in its construction, or the material used, testimony of non-expert witnesses giving their opinions thereon is inadmissible, being mere opinion, and not involving any question of science or skill. Judgment (Sup. 1897), 4.5 X. Y. Supp. 1145, affirmed; Pa/rish V. Baird, 54 X. E. 724, 160 X. Y. 302. 14 210 A DIGEST OF [Paet I. Upon the question whether goods covered by a marine policy had been loaded on a vessel which was subsequently scuttled in further- ance of a conspiracy to defraud the insurers, the testimony of the consignor, who did not personally know that the goods were shipped, that his firm had bought the goods mentioned in the bills of lading is inadmissible. Voisin v. Commercial Mut. Ins. Co., 70 N. Y. Supp. 147. The negligence of the defendant in not bringing the ear to a stop before it reached the plaintiff, who was seen when about twenty-five feet in front of the car, is not sufficiently established by testimony of a witness, never having served as a gripman on such car, that it can be stopped within fifteen or twenty feet. Mulligan v. Third Ave. R. Co., 70 N. Y. Supp. 530, 61 App. Div. 214. In an action for libel due to the publication of a picture alleged to be the plaintiff's as C's wife, evidence of the recognition by people of plaintiff's resemblance to the published picture is inadmissible, as expressing an opinion on the question which was for the jury. Squire v. Press Pub. Co., 68 X. Y. Supp. 1028, 58 App. Div. 362. In an action for the foreclosure of a mortgage, where the defendant claimed that there had been overpayments, a question to the defend- ant when he first ascertained that he had made overpayments was rightfully excluded, as being a conclusion on an important issue. Ron-ley v. Parsons, 61 N. Y. Supp. 392, 45 App. Div. 174. Opinion connected with facts. — -In an action for injuries due to the plaintiff receiving an electric shock, upon the question whether her present condition would become permanent, a witness, having first related in detail all the condiuions he found pi-esent, stated his opinion, without giving a history of the ease. Judgment (1898), 54 N. Y. Supp. 96, 34 Ap]i. Div. 74, affirmed; O'Flayerty v. Xassau Electric li. Co., 59 N. E. 1128. The testimony of a witness engaged in constructing bridges of like material, grown in the same locality, as to the like of such timber, is not opinion evidence, but is admissible as proving a fact known by the witness, where u, railroad company is sued for the collapse of a bridge caused by the defective condition of the timber used therein. Judgment and order (Sup. 1900), 66 N. Y. Supp. 1128. affirmed; Bush V. Drlnimrr, L. R. V. Dove, 1856 (passim). 'History Crim. Law,' iii. 426. 8 28 Vict. c. 18, s. 8. Chap. V.] THE LAW OF EVIDENCE. 213 Within the meaning of the rule, every business or employment which has a particular class devoted to its pursuit, is a science or art. Lawson on Expert and Opinion Evidence (2d ed. ), p. 3. Among the persons whose testimony may be admitted as that of experts are the following: Assayers. State v. Knight, 43 Me. 19. Photographers. Marston v. Dingley, 88 Me. 546. Surveyors. Bar- ron V. Cobleigh, 11 N. H. 557, 35 Am. Dec. 505; Wallace v. Goodale, 18 N. H. 439. The following are proper subjects of expert evidence: How much sand is used with a cask of lime. Miller v. Shay, 142 Mass. 598. Whether the end of a drain in a cellar should be open. Stead v. Worcester, 150 Mass. 241. As to the normal condition of the private parts of a girl. Com. V. Lynes, 142 Mass. 577. But not whether a certain piece of land is large enough for a house -and stable. Pierce v. Boston, 164 Mass. 92. He may testify as to the cause of death. Com. v. Thompson, 159 Mass. 56. The law of the forum cannot be proved bj' the testimony of lawyers. Gaylor's Appeal, 43 Conn. 82. Foreign law.* — Barrows v. Doicns, 9 R. I. 447, 11 Am. Hep. 283; Charlotte v. Chouteau, 33 Mo. 194, 200. The common law of another State may be proven by expert evi- dence. Jenne v. Harrisville, 63 N. H. 405; Ennis v. Smith, 14 How. (U. S.) 400; Howry v. Chase, 100 Mass. 79; In re Roberts' Will, 8 Paine (U. S.), 446. Practicing lawyers of another State may testify as to the law of that State. Dyer v. Smith, 12 Conn. 386. But in some States one need not be a practitioner. Seckinger v. Mfg. Co., 129 Mo. 590; Mowry v. Chase, 100 Mass. 79. A magistrate, who is not a lawyer, may be » competent witness as to the law of his jurisdiction. Rickard v. Bailey, 26 N. H. 169. To the same effect is Hall v. Costello, 48 N. H. 179. In the absence of proof of a foreign laW, the common law of the forum is. applied. Carpenter v. Grand Trunk R. R. Co., 72 Me. 388; O'Reilly v. N. Y., etc., R. R. Co., 16 E. I. 389; Musser v. Stauffer, 178 Pa. St. 99; Slaughter v. Bernards, 88 Wis. HI. In the absence of proof, the foreign law is presumed to be the same as that of the forum. Kelley v. Kelley, 161 Mass. Ill; Dickson v. United States, 125 Mass. 311; Mclntyre v. B. & M. R. R. Co., 163 Mass. 189. 216 A DIGEST OF [Part I. A printed book, purporting to be a copy of the statutes of another State, is not evidence of such statiites. Bostwick v. Bogardus, 2 Root (Conn.), 250. To prove a foreign written law, expert evidence is admissible either with or without a copy of such law. Barrous v. Doicns, 9 R. I. 446. As to proving laws and treaties of the United States, pee U. S. Rev. Stat., sec. 908. As to authentication of the laws of other States and territories of the United States and countries subject to its jurisdiction, see U. S. Rev. Stat., sec. 905. In some States, by statute, the law reports of another State may be read in evidence. Maine Rev. Stat., chap. 82, sees. 108, 109, 2 How.. St. (Mich.) 7508, 7509. Examination of handwriting. — Withee v. Rowe, 45 Me. 571, 589; Moody V. Rowell, 17 Pick. (Mass.) 490, 28 Am. Dee. 317. Question of qualification for the judge. — Sustaining text. Perkins V. Stickney, 132 Mass. 217; Ilaicks v. Charlemont, 110 Mass. 110; Com. V. Williams, 105 Mass. 68; Struthcrs v. Phila., etc., R. Co., 174 Pa. St. 291 ; Stilhoell, etc., Co. v. Phelps, 130 U. S. 520. See Ste- vens V. M inneapolis, 42 ilinn. 136; St^te v. Main, 69 Conn. 141. Testimony as to facts. — Spear v. Richardson, 37 N. H. 23, 34; Dexter v. Hall, 15 Wall. 9, 26; Qainn v. Higgins, 63 Wis. 664, 53 Am. Rep. 305 and note ; Walker v. Rogers Exr., 24 Md. 232, 242. Form of question. — Jewett v. Brooks, 134 Mass. 505; Meeker v. Meeker, 74 la. 3.52; Hicks v. Citi::cns' R. Co., 124 Mo. 115. It is the proper way, in examining an expert, to state all the particulars upon which his opinion is sought. But the direction of the matter lies within the discretion of the presiding judge. Rora- hack v. Pennsylvania Co., 58 Conn. 294. Where an expert i? asked his .opinion upon certain facts proved, the weight of authority is that the facts should be stated in the question. Barber's Appeal, 63 Conn. 408. Qualification. — The acceptance of a. public office and the perform- ance of it.^ duties are circumstances which a court may consider in determining whether to permit the incumbent to testify as an ex- pert in matters relating to his duty, even if he should not be re- garded as presumably qualified by virtue of his office. State v. Main, 09 Conn. 124. Chap, v.] THE LAW OF EVIDENCE. 217 New York. The ground for objections to the reception of expert testimony must be specifically and precisely stated; to object because the questions were immaterial and incompetent is insufficient. Wallace v. Vacuum Oil Co., 35 N. Y. St. R. 097; affirmed in 38 N. Y. St. R. 441, 128 N. Y. 579. If it is desired to take an objection to the testimony being adduced by an expert, presumed to be competent, as not confined within the limits fixed by judicial decisions, such objection should call the at- tention of the court sharply to this fact. Currier v. Henderson, 85 Hun, 300, 66 N. Y. St. R. 383. In an action to recover for services rendered in the alteration of a coat, an expert can testify as to " what wf)uld be the proper way to alter the coat, assuming that it was old and decayed in certain parts." iloschowitz v. Flint, 67 N. Y. Supp. 852, 33 Misc. Rep. 480. A produce dealer engaged in the apple business for ten or fifteen years, and having worked in cold-storage warehouse for three seasons where he learned the temperature required to properly preserve ap- ples, can testify as an expert as to what is the temperature required, and how apples alleged to have been damaged in cold storage became injured. Wilson v. F. C. Linde Co., 62 N. Y. Supp. 69, 47 App. Div. 327. Where the question was what temperature was required to preserve apples in cold storage, an expert can answer to a question " if he knew, up in the country, what temperature apples required," that the proper temperature to keep apples in cold storage was thirty degrees to thirty-two degrees, since in different places there was no variation of such temperature. Wilson v. F. C. Linde Co., 62 N. Y. Supp. 69, 47 App. Div. 327. A person who has been a driver of wagons for twenty years, and who testifies that he has familiarized himself with the speed of wagons, can testify as to the rate of speed of a, car running at a certain time, and which he had a chance to notice. Garduhn v. Union Ry. Co. of New York City, 64 N. Y. Supp. 210, 50 App. Div. 602. It is error to admit the testimony of a witness to the effect that he had heard the evidence of the plaintiff as to how a certain corner post had been set; and that, if this post was so set, the work was properly done. Judgment and order (Sup. 1898), 51 N. Y. Supp. 954, 30 App. Div. 274, affirmed; Tibbitts v. Phipps, 57 N. E. 1126, 218 A DIGEiJT OF [Paet I. 163 N. Y. 580. See also Finn v. Cassidy, 165 N. Y. 584, 53 L. R. A. 877; Littlcjohn v. iihaw, 53 N. E. 810, 159 N. Y. 188, affirming 39 N. Y. Supp. 595, 6 App. Div. 492. Question of qualification. — The covirt in determining the compe- tency of an expert need not confine itself to his statements, but may consider the evidence of other witnesses in regard to such competency. Wright v. Schnaier, 70 N. Y. Supp. 128. A person in reality a medical expert can give his opinion, although he has no license to practice; however, the court will receive his tes- timony only when made satisfied of his competency as an expert. People V. Rice, 54 N. E. 48, 159 N. Y. 400. Where tlie question was as to the nature of the models used for garments, a furrier called as an expert witness can be cross-examined as to models of other furriers, when the court states that such tes- timony is for the sole purpose of testing his competency as an expert. Jaeckel v. David, 69 N. Y. Supp. 998. To raise an objection to the witness's qualifications as an expert, and to a question asl Div. 192. Value. — Where an expert answers in the affirmative a question as to whether he can give the value of a certain article, an objection to this question will not raise an objection to his incompetency to reply to a subsequent question calling for such valuation. Slocum V. Orient Mutual Ins. Co., 108 N. Y. 56, affirming 13 Daly, 264. The opinion of experts is competent to prove the present or past value of the premises injured, both with a diversion of the water and without such diversion, in an action for diverting waters of a stream. Judgment (1898), 49 N. Y. Supp. 250, 25 App. Div. 82, affirmed. Gallagher v. Kingston Water Co., 58 N. E. 1087, 164 N. Y. 602. To show why property has depreciated generally in fee value in the same part of the city as that in question during some years past, where an elevated railroad company is sought to be enjoined for relief. Judgment, Gordon v. Kings County El. Ry. Co., 48 N. Y- Supp. 382, 23 App. Div. 51, affirmed; Gordon v. Kings County El. Ry. Co., 58 N. E. 1087, 164 N. Y. 563. To testify whether the erection and operation of an elevated road- had any effect on the value of property on the street wherein it was built. Steigerwald v. Manhattan Ry. Co., 64 N. Y. Supp. 125, 50 App. Div. 487. An expert called to give the value of premises damaged by an ele- vated road may be obliged to explain, when cross-examined, seeming contradictions in his testimony concerning the values of two similarly situated properties and which he has termed as " sister values." Levin v. New York El. R. Co., 59 N. E. 261, 165 N. Y. 572. The testimony of a person qualified as a wagon expert is competent to prove the value of a wagon. Haan v. Metropolitan St. Ry. Co., 69 N. Y. Supp. 888, 34 Misc. Rep. 523. An ice manufacturer may be called as an expert to testify as to the value of an ice machine which has a market value. Judgment Chap. V.] THE LAW OF EVIDENCE. 221 (Sup. 1896), 4-2 X. Y. Supp. Bio, 11 App. Div. 50, affirmed. Jamison V. Aeo) York U 7.'. B. Co., 57 N. E. 1113, 1(12 N. Y. 630. Tile value ui a lost watch may be shown by the testimony of an expert who determines it from the value of a case of similar design. Cuebas v. Klein, 01 N. Y". Supp. 923. To lay a foundation for expert testimony as to the value of dia- monds alleged to have been stolen in a hotel, attention may be prop- erly called to a ring worn by the guest at the trial for the purpose of comparison witli some of the lost jewelry. Friedman v. Breslin, 65 N. \'. Supp. 5, 51 App. Div. 208. The testimony of lawyers as to the value of legal services is com- petent in an action brought by a layman to recover for services simi- lar to those performed by attorneys. ilcClellan, v. Duucoinbe, 05 N. Y. Supp. 19. Relative to the value of household services and attendance on a sick person as one of the incidents thereto, a trained nurse is not a competent expert. M'cidman v. Thompson, 05 N. Y. Supp. 481, 53 App. JJiv. 22. Foreign laws. — In the absence of proof that under the laws of a foreign State a special partner maj- have a right of action against his copartner for independent loans, it is presumed that the common law prevails, viz., that after he ha> had an accounting with his' or copartner he can bring assumpsit. Judgment (1808), Casola v. Kugelman, 54 X. \. Supp. 89, 33 App. Div. 42S, affirmed; Casola v. Tasque-, 58 X. E. 1085. Where it is not shown to the contrary, the presumption is that the requisites of a valid marriage are the same in England as in ISTew York. Toicnscnd v. Van Buslcirk, 68 N. Y. Supp. 512, 33 Misc. Hep. 287. Printed copies of the laws of other States are admissible. Code Civ. Pro., sec. 942. Handwriting. — The opinion of an expert, that the signatures of certain notes are forgeries, is sufficient to support a iinding to this effect of the referee, where such opinion was based on a test wherein after these signatures were placed one over the other and held to the light, they were seen to be exactly the same in size, shape and position on the paper, and the lines coincided exactly. In re Koch, 68 N. Y. Supp. 375, 33 ilisc. Rep. 153. Where an expert was comparing alleged forged notes, so as to form an opinion that the signatures thereto were forgeries, he can Tise as proper standards of comparison the signatures on the probated 222 A DIOEUT OF [Pabt I. will, on a previous will of the deceased, and on five checks purported to be drawn by a bank ijatronized by him, and charged to the testator's account. In re Koch, 68 S. Y. Supp. 375, 33 Misc. Rep. 153. Testimony of a plaintiflf, that the entries in a memorandum book used to refresh his memory were made from time to time as they appeared was not established as worthy of belief and ground for reversal of a judgment, where a handwriting expert testified that the whole book was written at three sittings, although this was contradicted by plaintiff's expert. ilcClellaii v. Duncombe, 65 X. Y. Supp. 19. Medical experts. — A doctor may, as an expert, give his opinion as to whether or not the condition of a person should be attributed to a, fall received. Tracey v. Metropolitan St. Ry. Co., 63 N. Y'. Supp. 242, 49 App. Div. 197. The symptoms that would be apparent and would usually accom- pany an injury may be described by a medical expert, either physician or surgeon. Judgment and order (1895), 34 X. Y. Supp. 572, 87 Hun, 584, affirmed; Cole v. Fall Brook Coal Co., 53 X. E. 670, 159 N. Y. 59. The opinion of a physician as to what results certain conditions which he has ascertained will produce on the plaintiff's system, what causes would be likely to bring on such conditions and their probable duration, is competent testimony in an action for personal injuries. Judgment and order (Sup. 1897), 46 N. Y. Supp. 847, 20 App. Div. 161, affirmed; llahnr v. Xdn York Cent. & Hudson R. R. Co., 57 N. E. 1116, 162 X. Y. 633. Where medical experts testified relative to the result of their physical examination of the plaintiff, it was competent to introduce evidence as to what occurred during this examination iniluding the natural expressions of pain or weakness, even if it might be in reality unsworn statements of the plaintiflf, and expressions of feigned injuries; for the jury will determine the weight of such testimony. Jones v. Niagara Junction Ry. Co., 71 X. Y'. Supp. 647, 63 App. Div. 607. The opinion of physicians examined as experts that plaintiflf's injury was very serious is erroneously admitted where tlicy had already testified that he was suffering from a sprain or wrench of the back, fitoothoff v. Brookhin Heights R. Co., 64 X. Y. Supp. 243. 50 App. Div. 585. Where the testimony of experts was that Iclator mu-) liave been of unsound mind at the date of the will, but they had never seen the Chap, v.] THE LAW OF EVIDENCE. 223 testator while alive and had not taken part in the autopsy on his remains, such opinion is overcome by witnesses testifying from actual observation to the fact of his mental soundness. In re Phillips' Will, C9 N. Y. Supp. 1011, 34 Misc. Eep. 442. Proof of the permanency of injuries cannot be established by the testimony of experts that such injuries sustained would be liable to produce a permanent loss of strengtli of the affected parts, and that danger existed in complications likely to ensue, which might arise from chronic pleurisy; for such testimony is wholly conjectural. Bellemare v. Third Ave. R. Co., 61 N. Y. Supp. 981, 46 App. Div. 557. Pursuit for an indefinite time of the study of medicine and inei- dentally of nervous diseases, and the fact that he is a manufacturer of medicines as well as the publisher of books on medicine, also that he is the author of one, without giving its subject, however, do not qualify a witness to testify as an expert on insanity. People v. Rice, 54 N. E. 48, 159 N. Y. 400. Building experts, civil engineers. — A verdict for damages to leased premises because of a lessee's failure to restore them to their original condition will be sustained upon the evidence of an expert builder, although no examination of the premises had been made by the expert prior to the alterations made by the lessee. Lazarus v. Ludioig, 61 N. Y. Supp. 365, 45 App. Div. 486. The term " ornamental plastering ' in a building contract can be explained as to its force and understanding by expert evidence. Woodruff v. A7.ee, 62 N. Y. Supp. 350, 47 App. Div. 638. Where the question was as to the strength of a building, the walla of which collapsed in course of construction, the opinion of a city building inspector, who was an expert and had seen the walls, is admissible. Cochran v. Sess, 62 N. Y. Supp. 1088, 41) App. Div. 223, Testimony by an expert is proper to the effect that piles driven down nine or ten inches at the final blows, the hammer falling only ten feet, would show that the piles were too short and not safe to build upon, and that a scaffolding without longitudinal X-braces and without cleats to the uprights was not reasonably safe to sup- port the weight and strain to which it was subjected — a thirty-ton crane. Purpscy v. Edr/emoor Bridge Works, 67 N. Y. Supp. 719, 56 App. Div. 71. The question of whether or not a structure has been built strong enough to endure the strain put upon it in using it for the purpose for which it was designed, is a subject for expert testimony by those persons qualified by their special study of the strength of materials 224 A DIGEST OF [Paet I. and the proper way of constructing such structures. Judgment and order (Sup. 1897), 47 N. Y. Supp. 788, 21 App. Div. 321, affirmed; Foic V. Buffalo Park, 57 N. E. 1109, 163 N. V. r,r,>j. A civil engineer with seven years' experience based on a regular course of study, who during the progress of the work observed how a scaffold was built, is qualified to state an opinion as to the absence therefrom of certain kinds of braces, notwithstanding he had never built that particular kind of false work. Pursley v. Edgemore Bridge Works, 67 N. Y. Supp. 719, 56 App. Div. 71, affirmed, 60 N. E. 1119. A civil engineer may give his opinion in answer to a hypothetical question founded on the evidence as to the mode of performing certain work, that the method used was an improper one, where an employee brought suit to recover for injuries due to a fall of earth while excavating for the foundation of a building near a high chimney, for which incisions were made under the chimney. Judg- ment (Sup. 1899), 57 N. Y. Supp. 1138, affirmed: Finn v. Cassidy, 59 N. E. 311, 165 N. Y^ 584. Railway experts — Engineers. — The opinion of a locomotive en- gineer is admissible in reference to the possibility of the door in the spark-arrester becoming open after it had been properly shut. Judg- ment (Sup. 1896), 42 N. Y. Supp. 915, 11 App. Div. 50, affirmed; Jamison v. Neiv York d R. B. Ry. Co., 57 X. E. 1113, 162 X. 1". 630. The distance sparks would be carried from a locomotive claimed to have occasioned a fire, if such engine had a properly constructed spark-arrester in good order, is a subject for expert testin?ony. Judg- ment (Sup. 1896), 42 N. Y. Supp. 915, 11 App. Div. 50, affirmed; Jamison v. Neiv York & R. B. Ry. Co.. 57 X. E. 1113, 162 X. Y. 630. On the question of whether or not sparks from a locomotive which set fire to the warehouse of the defendant would have been carried thus far had the locomotive been in good order, it is competent to introduce the testimony oi locomotive engineers in reference to the distance live sparlcs would have been carried if the engine was in good order. Judgment (Sup. 1899), 55 X. Y. Supp. 1121. reversed. Peck V. TSieio York Cent. cG H. R. R. Co., 59 X. E. 200, 165 N. Y". 347. A locomotive engineer can testify as to whether a spark the size of those shown to have been thrown from the locomotive could have been thrown through the netting of a spark arrester in good condition. Judgment (Sup. 1899), 55 N. Y. Supp. 1121, reversed. Peck v. "New York Cent. & H. R. R. Co., 59 N. E. 200, 165 N. Y. 347. Chap. V.] THE LAW OF EVIDENCE. 225 To ask a locomotive engineer if a spark thrown through a spark arrester in good order could possibly set fire at a distance of fifty to seventy-five feet from the railway track is objectionable, because the liability to set fires is dependent on the substance along the road upon which the sparks might fall, and was an improper matter for expert evidence. Judgment (Sup. 1890), 55 N. Y. Supp. 1121, re- versed. Peck V. New YorJc Cent, d H. B. B. Co., 59 N. E. 206, 165 N. Y. 347. It is not objectionable for an engineer to answer a question as to the distance within which a train could be stopped, when the proper foundation had been laid in evidence already given as to the grade, make-up of the train, that the steam had been shut oflf, the speed, and the air-brake equipment. Judgmenc (1900), 66 N. Y. Supp. 436, 54 App. Div. 623, affirmed. Stewart v. Long Island B. Co., 59 N. E. 1130. Mechanical experts. — Testimony of a witness familiar with the building of derricks and their operation is competent on the question as to the appliances on a derrick which collapsed and injured the plaintiff, although he never had owned a derrick precisely like it. Scandell v. Columbia Const. Co., 64 N". Y. Supp. 232, 50 App. Div. 512. The question being as to the liability of flywheels attached to en- gines employed to generate electricity to burst, a general manager of an electric railway who had devoted much attention to the operation of such railways is an incompetent expert witness thereon. Judg- ment (Sup. 1898), 51 N. Y. Supp. 755, 30 App. Div. 166, affirmed. Piehl V. Albany By., 57 N. E. 1122, 162 N. Y. 617. Where the question was as to the ordinary life of wooden stringers of a bridge, failure to replace which in season would tend to show the neglect of the company, in an action to recover for injuries due to defective stringers of a bridge, which caused its collapse, main- tained and not renewed for nine years, a witness employed in the construction and repairing of such bridges may testify that the ordinary life of the stringers is from five to six years. Judgment and order (1900), 55 N. Y. Supp. 1128, affirmed. Bush v. Delaware, L. & W. B. Co., 59 N. E. 838, 166 N. Y. 210. The question being whether a tool constructed by a master for the use of his servants had in it defective material, the mechanics who make such tools are competent witnesses concerning the fitness of the material used. Order (Sup. 1900), 57 N. Y. Supp. 293, 39 App. Div. 188, affirmed. Daly v. Lee, 60 N. E. 1109. 15 226 A DIGEST OP [Part I. A stationary engineer, familiar with the machinery which was the means of causing injury to the plaintiff, owing to his clothing being caught therein, and having reached the plaintiff immediately after the accident, can testify as to the probable manner in which the accident happened. Neidlinger v. Yoost, 99 Fed. Rep. 240, 39 C. C. A. 494. If the direct examination of an expert witness in a suit for in- fringement, in making his prima facie proofs, is restricted to its proper limits, embracing merely a description of the patent, explain- ing the obscurities it may present to a mind not skilled in the art, and defining its technical terms, followed by a presentation of the infringing device, together with an explanation of whatever features of it are covered by the claims, the state of the art relied upon in defense cannot, in cross-examination, be opened up by the defendant, but when the witness, in his direct testimony, has referred to the state of the art, it is the defendant's right to cross-examine upon the whole subject. Thomson-Houston Electric Co. v. H. W. Johns Mfg. Co., 105 Fed. Rep. 249. A written order for mechanical work clearly disclosing on its face what it is intended to include, the opinion of a mechanical expert as to whether certain work was thereby intended is inadmissible. R. M. Gilmour Mfg. Co. v. Cornell, 57 N. Y. Supp. 81, 26 Misc. Rep. 752. Where a contract was in writing, the defendant's engineer was held not competent to testify as to whether it included certain work. Avery v. Starbuck, 38 N. Y. St. R. 900, affirming 25 N. Y. St. R. 354, 5 N. Y. Supp. 779. (C. of App.) Motion to strike out. — A motion to strike out the answer of an expert witness on the ground that he failed to maintain his position on cross-examination should not be granted, but .the question should be left to the determination of the jury in weighing his testimony. Taft V. Brooklyn Heights R. R. Co., 14 Misc. Rep. 390, 35 N. Y. Supp. 1042. It is proper to deny a motion to strike out the entire testimony of a witness on the ground of not being an expert, where a part of his testimony was such as could have been given by a nonexpert. Stock v. Le Boutillier, 19 Misc. Rep. 112, 43 N. Y. Supp. 248, affirm- ing 18 Misc. Rep. 349. Testimony of a medical expert, going into a general discussion of the disease caused by the injuries of the plaintiff, and stating its various causes and some of its possible results, not alluding to the Chap. V.] TEE LAW OF EVIDENCE. 227 probable effect of tlie disease on the plaintiff, such evidence should have been stricken out. Swenson v. Brooklyn Heights R. R. Co., 15 Misc. Rep. 69, 36 N. Y. Supp. 445'. Where the evidence in a case supported a hypothetical question propounded to a, medical expert, but subsequent evidence failed to sustain such question, if the defendant desired to have the element last testified to removed from the consideration of the jury, held that he must call the court's attention to it either by motion to strike out or by request that the jury be ordered to disregard it. McDonald v. Islew York, Chicago & St. Louis R. R. Co., 13 Misc. Rep. 651; affirmed in 154 N. Y. 755. (No opinion.) Testimony of plaintiff's medical expert that there might be future pains, which he then modified on cross-examination, cannot be stricken out; the utmost that the defendant was entitled to was that the jury be directed to disregard the direct testimony. Nien- dorff V. Manhattan Ry. Co., 4 App. Div. 46; appeal dismissed in 150 N. Y. 276; leave to appeal denied in 151 N. Y. 50. Article 50.* pacts beaeing upon opinions of experts. Facts, not otherwise relevant, have in some cases been permitted to be proved, as supporting or being inconsistent with the opinions of experts. Illustrations. (a) The question was, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms alleged to be the symptoms of that poison, were deemed to be relevant.9 * I have altered the wording of this article, so as to make it less absolute than it was in earlier editions. The admission of such evi- dence is rare and exceptional, and must obviously be kept within nar- row limits. At the time of Palmer's trial only two or three cases of poisoning by strychnine had occurred. 9R. V. Palmer, 1856, printed trial, p. 124, &c., 'Hist. Grim. Law,' iii. 389. In this ease evidence was given of the symptoms attending 228 A DIGEST OF [Paet I. (6) The question is, whether an obstruction to a harbour is caused by a certain bank. An expert gives his opinion that it is not. The fact that other harbours similarly situated in other respects, but where there were no such banks,lo began to be obstructed at about the same time, is deemed to be relevant. AMERICAN NOTE. Authorities. — See Com. v. Leach, 156 Mass. 99 ; Lincoln v. TcMn- ton Mfg. Co., 9 Allen (Mass.), 181; Tilton v. Miller, 66 Pa. 388; City of Ripon v. Bittel, 30 Wis. 614, 619; City of Bloomington v. Shrock, 110 111. 219, 51 Am. Rep. 678. New York. In an action for injuries against a street railroad company, it is error to admit the testimony of the physician, who examined the passenger a few days before the trial, which takes place about five years after the alleged injury, that his condition as then ascertained might have been either a constitutional ailment or caused by some external force. Maimone v. Dry-Dock, E. B. & B. R. Co., 68 N. Y. Supp. 1073. See also Doyle v. N. Y. Infirmary, 80 N. Y. 631. Aeticle 51. opinion as to handwriting, when deemed to be eelevant. When there is a question as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the supposed writer that it was or was not written or signed by him, is deemed to be a relevant fact. the deaths of Agnes Senet, poisoned by strychnine in 1845, Mrs. Serjeantson Smith, similarly poisoned in 1848, and Mrs. Dove, mur- dered by the same poison subsequently to the death of Cook, for whose murder Palmer was tried. 10 Foulkes V. Chadd, 1782, 3 Doug. 157. Chap. V.] TEE LAW OF EVIDENCE. 229 A person is deemed to be acquainted with the hand- writing of another person when he has at any time seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, docu- ments purporting to be written by that person have been habitually submitted to him.-'' Illustration. The question is, whether a given letter is in the handwriting of A, a merchant in Calcutta. B is a merchant in London, who has ivritten letters addressed to A, and received in answer letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. The opinions of B, C, and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C, nor D ever saw A write.l2 The opinion of E, who saw A write once twenty years ago, is also relevant.13 AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 577; Law- son on Expert and Opinion Evidence (2d ed. ), tit. 2, chap. 2; Ham- mond's Case, 2 Greenl. (Me.) 33, 11 Am. Dec. 38; Keith v. Lathrop, 10 Gush. (Mass.) 453. In case of handwriting the witness states the result of his ob- servation or judgment as a fact rather than an opinion. Chamber- lain V. Piatt, 68 Conn. 130. 11 See Illustration. 12 Doe V. Sackermore, 1836, 5 A. & E. 705 (Coleridge, J.); 730 (Patteson, J.) ; 739-740 (Denman, C. J.). 13 R. V. Some Tooke, 1794, 25 S. T. 71-72. 230 -i DIGEST OF [Paet I. One who has become familiar with another's handwriting in the course of his business (e. g., as clerk of a court), may testify, al- though he has never seen him write. Com. v. Carey, 2 Pick. (Mass.) 47; Amherst Bank v. Root, 2 Mete. (Mass.) 522; Berg V. Peterson, 49 Minn. 420; Rogers v. Ritter, 12 Wall. (U. S.) 317; Burden v. Taylor, 89 Cal. 613. But a teller of a bank does not come within this rule, where he seeks to testify whether some of the checks which went through his hands in the usual way were forged or not. Brigham v. Peters, 1 Gray (Mass.), 139. One may be a competent witness to handwriting who cannot read or write. Foye v. Patch, 132 Mass. 105. One who has seen him write. — Diggin's Estate, 68 Vt. 198 ; Com. V. Hall, 164 Mass. 152; State v. Harvey, 131 Mo. 339; Karr v. State, 106 Ala. 1; State^ v. Farrington, 90 la. 673. It is enough that he has seen him write once to render the testi- mony competent. Com. v. Nefus, 135 Mass. 533 ; Keith v. Lathrop, 10 Gush. (Mass.) 453; Brigham v. Peters, 1 Gray (Mass.), 139; McNair v. Com., 26 Fa. St. 388 ; State v. Stair, 87 Mo. 268. To prove handwriting of a party, evidence is admissible from one who has seen him write, that he believes the writing in question to be his, but cannot determine it to be his, except by comparing it with other writings proved to be genuine. Lyon v. Lyman, 9 Conn. 59. One who has received letters. — Chaffee v. Taylor, 3 Allen (Mass.), 598; Clark v. Freeman, 25 Pa. 133; Thomas v. State, 103 Ind. 419; Riggs v. Powell, 142 111. 453; Empire Mfg. Co. v. Stuart, 46 Mich. 482. Compare White v. Tolliver, 110 Ala. 300. It is not enough that he has seen letters addressed to others. Neines v. Perry, 113 Mass. 274; Phila., etc., R. Co. v. Hickman, 28 Pa. 318; Gibson v. Trowbridge Co., 96 Ala. 357. New York. On the question of whether or not the signature to a bill of sale is in the handwriting of a certain party, a witness, after testifying that he is familiar with this party's handwriting by virtue of having received numerous letters] from him, may be asked whether or not this signature is that of such party. Gross v. Sormani, 64 N. Y. Supp. 300, 50 App. Div. 531. Where the question was as to the genuineness of a signature and witnesses familiar with her handwriting and signature testified that Chap. V.] THE LAW. OF EVIDENCE. 231 it was genuine, which testimony was also strengthened by com- parisons made by other witnesses with genuine signatures in evi- dence; but its genuineness was denied by an expert whose testimony was confessedly weakened by facts shown on his cross-examination, and also denied by witnesses who had never seen the signer write and were unfamiliar with her signature; it was held that the evi- dence showed the signature to be genuine. Green v. Crane, 68 N. Y. Supp. 248, 57 App. Div. 9. A person is deemed to be acquainted with the handwriting of another so as to be able to give his opinion thereon when he has received letters, subsequently acknowledged by word or acts, to be genuine by the person whose handwriting is questioned. Johnson v. Daverne, 19 Johns. 134. Having seen a person write but once does not render a witness's testimony in any respect incompetent; the weight thereof is only affected. Hammond v. Varian, 54 N. Y. 398. However, a person who sees another write, or who familiarizes himself with his handwriting, expressly so as to be in a position to testify, is an incompetent witness, and his opinion is inadmissible. Hynes v. McDermott, 82 N. Y. 41, 53. The mark of a person bearing some readily distinguishable peculiarity may be proved by the opinion of any one acquainted with it. Jackson v. Tan Dusen, 5 Johns. 144. Signatures in ancient writings may be shown to be authentic by the testimony of any person who has obtained his knowledge by examining other ancient documents containing the same signatures. Jackson v. Brooks, 8 Wend. 426, 11 Wend. 111. See also Horsford V. Ballard, 39 N. Y. 147; Cagger v. Lansing, 64 N. Y. 417; Miller V. L. I. R. R. Co., 71 N. Y. 380; Litford v. Ktiott, 2 Johns. Cas. 211. Aeticle 52. comparison of handwritings. Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to be genuine is per- mitted to be made by witnesses, and such writings, and the evidence of witnesses respecting the same, may be submit- 232 A DIGEST OF [Paet I. ted to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute. This paragraph applies to all courts of judicature, criminal or civil, and to all persons having by law, or by consent of parties, author- ity to hear, receive, and examine evidence.''* AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 579 et seq.; 15 Am. & Eng. Eneyclopffidia of Law (2d ed.), p. 272; State v. Thompson, 80 Me. 194; State v. Hastings, 53 N. H. 452; Rowell v. Fuller, 59 Vt. 688; Gen. Stats, of Rhode Island, chap. 246, see. 44. Substantially the English doctrine is held in Hauriot v. Sherwood, 82 Va. 1 ; Andrews v. Eayden's Admr., 88 Ky. 455 ; Powers v. McKenzie, 90 Tenn. 167; Wilson v. Beauchamp, 50 Miss. 24; Koons V. State, 36 0. St. 195; Saukey v. Cook, 82 la. 125; State v. Zim- merman, 47 Kan. 242; Marshall v. Hancock, 80 Cal. 82; Holmes V. Goldsmith, 147 U. S. 150; Costello v. Crowell, 139 Mass. 588; Gostello V. Crowell, 133 Mass. 352; Com. v. Andrews, 143 Mass. 23. Papers may be admitted in some States for the sole purpose of comparison. State v. Thompson, 80 Me. 194, 6 Am. St. Rep. 172, 13 Atl. 892; Com. v. Allen, 128 Mass. 46. Contra, Snider v. Burks, 84 Ala. 53; People v. Parker, 67 Mich. 222; State v. Thompson, 132 Mo. 301; Himrod v. Oilman, 147 111. 293; Hazleton v. Union Bank, 32 Wis. 34; Stokes v. V. S., 157 U. S. 187. On cross-examination a person's signature, written in court, may sometimes to be used. Chandler v. Le Barron, 45 Me. 534. But only in cross-examination. Com. v. Allen, 128 Mass. 46; King v. 1* 28 Viet. u. 18, a. 8, re-enacting 17 & 18 Viet. c. 125, s. 25, now re- pealed. See R. y. SilvMoek, [1894], 2 Q. B. 766, where it was held that the solicitor for the prosecution was a proper witness to compare handwriting proved to be that of the prisoner with that in which documents produced by the prosecution were written. It seems to be the ease that such a witness must be " skilled " or, as Lord Russell said, " peritus;" but he need not " have become peritus in the way of his business or in any definite way;" vulgo, he need not be a profes- sional expert. CiiAP. v.] THE LAW OF EVIDENCE. 233 Donahue, 110 Mass. 155; U. 8. v. Mullaney, 32 Fed. Rep. 370; Brad- ford V. People, 22 Col. 157. Whether the court has authority to require a party to write his name in court, in order that the jury may compare writings, quaere. It probably has such power. But where the disputed writing had so faded out that it could not be traced, so that it could not be seen by the jury, but only described to them, it was held, that it was not a case for such an order. Smith v. King, 62 Conn. 521, 522. In a. libel suit, to prove the libel to be in the defendant's hand- writing, experts, as cashiers of banks, may be admitted to testify that they have compared the paper with other writings proved to be his, and that, in their opinion, the paper was written by him, in a disguised hand. Lyon v. Lyman, 9 Conn. 59. Letter-press copies cannot be used in comparison. Com. v. East- man, 1 Gush. (Mass.) 189; Cohen v. Teller, 93 Pa. St. 123. But photographic copies may when the originals are in court. Marcy v. Barnes, 169 Mass. 161. Compare Lowe v. Parkersiurgh, etc., R. Co., 39 Md. 36. New York. Comparison of a disputed signature may be made with writings admittedly genuine and introduced without objection as evidence bearing on the issues of the case. Judgment (1895), 35 N. Y. Supp. 909, 90 Hun, 374, aflBrmed. Shaw v. Bryant, 53 N. E. 1132, 157 N. Y. 715. So with exhibits introduced by the defendant " to show signa- tures only " when he testifies on the cross-examination that these are genuine. Judgment (1895), 35 N. Y. Supp. 909, 90 Hun, 374, affirmed. Shaw v. Bryant, 53 N. E. 1132, 157 N. Y. 715. Where the execution of a power of attomey is denied, the testi- mony of a person who claimed to have once seen the defendant write with a gloved hand, the defendant aenying she signed it with her hand gloved, is insufficient to establish the signature in the absence of any special knowledge relative to matters of handwrit- ing on the part of the witness. McConnell v. Playa De Oro Min. Co., 59 N. Y. Supp. 368. A person's signature made in court at the time of the trial may be used for comparison upon cross-examination of the person whose signature is questioned. People v. De Kroyft, 49 Hun, 71. Photographic copies of originals may be used for comparison when these originals are also in court. Hynes v. McDermott, 82 N. Y. 41. 234 A DIGEST OF [Paet I. The probable date of an instrument may be testified to by experts in handwriting. Dresler v. Hard, 127 N. Y. 235. The text is also sustained in People v. Corey, 148 N. Y. 476. Aeticle 53. opinion as to existence of maeeiage, when eelevant. When there is a question whether two persons are or are not married, the facts that they cohabited and were treated by others as man and wife are deemed to be relevant facts, and to raise a presumption that they were lawfully married, and that any act necessary to the validity" of any form of marriage which may have passed between them was done ; but such facts are not sufficient to prove a marriage in a prosecution for bigamy or in proceedings for a divorce, or in a petition for damages against an adulterer.-'® AMERICAN NOTE. General. Authorities. — Greenleaf on Evidence (15th ed.), vol. 1, sec. 107; vol. 2, sec. 462 et seq.; Abbott's Trial Evidence (2d ed.), p. 104. First paragraph of the text. Young v. Foster, 14 N. H. 114, 118; State v. Sherwood, 68 Vt. 419 (citing this article); Green- wait V. McEnelley, 85 Pa. St. 352; Maryland v. Baldwin, 112 U. S. 490; ^Yallace's Case, 49 N. J. Eq. 530; Peet v. Peet, 52 Mich. 464; White v. White, 82 Cal. 427; Blackburn v. Crawford, 3 Wall. (U. S.) 175, 191; Budington v. Uunson, 33 Conn. 487; Erwin\. English, 61 Conn. 509; State v. Schweitzer, 57 Conn. 537, 538; Hammick y. Branson, 5 Day (Conn.) 293; Means v. Welles, 12 Mete. (Mass.) 356; 15 Morris v. Miller, 1767, 4 Burr. 2057; Birt v. Barlow, 1779, 1 Doug. 170; and see Catherwood v. Caslon, 1844, 13 M. & W. 261. Compare R. v. Mainioaring, 1856, Dear. & B. 132. See, too, De Thoren v. A. G., 1876, 1 App. Cas. 686; Piers v. Piers, 1849, 2 H. L. Ca. 331. Some of the references in the report of De Thoren v. A. G. axe incorrect. Chap. V.] THE LAW OF EVIDENCE. 235 Newburyport v. Boothhay, 9 Mass. 414; Com. v. Eolt, 121 Mass. CI; Com. V. Harley, 14 Gray (Mass.), 411. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation or criminal con- versation. State V. Hodgskins, 19 Me. 155; Oreen v. State, 21 Fla. 403; Butctiins v. Eimmell, 31 Mich. 126; Hiler v. People, 156 111. 577; Com. v. Littlejohn, 15 Mass. 163; Com. v. Norcross, 9 Mass. 492; State v. Roswell, 6 Conn. 446; Bammiok v. Bronaon, 5 Day (Conn.), 293. But aliter in prosecution for nonsupport. State v. Schweitzer, 57 Conn. 537, 538. Evidence that the relation between a man and a woman is re- puted to be adulterous, is not admissible against proof of a, formal marriage. Northrop v. Knowles, 52 Conn. 523. Any one ( not simply a member of the family ) , ia a competent witness to prove repute. Knoiver v. Wesson, 13 Mete. (Mass.) 143. When marriage is in issue on a writ of right, it may be shown by cohabitation and repute. Hears v. Welles, 12 Mete. (Mass.) 356. The repute may be in another country. Com. v. Johnson, 10 Allen (Mass.), 196. New York. Authorities. — Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263 ; Call V. Gall. 114 N. Y. 109. The presumption of marriage from evidence of cohabitation and repute is rebuttable. Clayton v. Wardell, 4 N. Y. 230. Marriage cannot be proven by reputation in criminal prosecutions for bigamy, incest, adultery, unlawful cohabitation, or criminal con- versation. Hayes v. People, 25 N. Y. 390. But as to evidence of reputation in divorce suits, see Collins v. Collins, 80 N. Y. 10. As to proof of marriage by admissions in both civil and criminal cases, see Eisenlord v. Clum, 126 N. Y. 552, 562. Article 54. ghounds of opiitioii, when deemed to be relevant. Whenever the opinion of any living person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant. 236 A DIGEST OF [Pabt I. Illustration. An expert may give an account of experiments performed by him for the purpose of forming his opinion. AMERICAN NOTE. General. Authorities. — Lawson on Expert and Opinion Evidence (2d ed.), p. 209 et seq.; 12 Am. & Eng. Encyelopsedia of Law (2d ed.), p. 489; Woodman v. Dana, 52 Me. 9 ; Steam Mill Co. v. Water Power Co., 78 Me. 274; Sexton v. 'North Bridgewater, 116 Mass. 200; Leslie v. Gran- ite R. R. Co., 172 Mass. 468, 52 N. E. 542; Hawkins v. Fall River, 119 Mass. 94; Dickerson v. Fitchburg, 13 Gray (Mass.), 555; Keith v. Lathrop, 10 Cush. (Mass.) 457; Demerritt v. Randall, 116 Mass. 331; Emerson v. Lowell Gas Co., 6 Allen (Mass.), 146. This is true in case of experts. Hawkins v. Fall River, 119 Mass. 94; Eidt v. Cutler, 127 Mass. 522. An expert may give an account of experiments performed by him for the purpose of forming his opinion. Eidt v. Cutler, 127 Mass. 522 ; Sullivan v. Com., 3 Pa. St. 284 ; Moore v. State, 96 Tenn. 209 ; Lindsay v. People, 63 N. Y. 143, 156 ; People v. Morrigan, 29 Mich. 5. And these experiments may be performed before the jury. Leonard V. So. Pac. Co., 21 Ore. 555; McKay v. Lasher, 121 N. Y. 477; Penn. Coal Co. V. Kelly, 156 111. 9. But such evidence is inadmissible, if the experiments do not take place under conditions similar to those in the case before the court. Com. V. Piper, 120 Mass. 105; People v. Slack, 90 Mich. 448; State v. Fletcher, 24 Ore. 295. Compare People v. Conkling, 111 Cal. 616. New York. Authorities.— Lindsay v. People, 63 N. Y. 143, 156. An expert may perform experiments before the jury in explana- tion of his testimony. McKay v. Lasher, 121 N. Y. 477. Chap. VI.] THE LAW OF EVIDENCE. 237 CHAPTEE VI.* CEARA.CTER, WBEN DEEMED TO BE RELEVANT AND WHEN NOT. Aeticle 55. chaeactee geneeally leeelevant. The fact that a person is of a particular character ia deemed to be irrelevant to any inquiry respecting his conduct, except in the cases mentioned in this chapter. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence ( 15th. ed. ) , seca. 54, 55 ; 5 Am. & Eng. Enoyclopsedia of Law {2d ed. ), p. 850. Dunham v. Rackliffe, 71 Me. 345; Thayer v. Boyle, 30 Me. 475; Dame v. Kenney, 25 N. H. 318; Boardman v. Woodman, 47 N. H. 120; Lander v. Beaver, 32 Vt. 114, 124, 76 Am. Dee. 156; Hampson v. Taylor, 15 R. I. 83, 8 Atl. 331; Wright v. McKee, 37 Vt. 161; Chase v. Maine Central R. R. Co., 77 Me. 62 ; Porter v. Seiler, 23 Pa. St. 424, 430, 62 Am. Dec. 341 ; Simpson v. Westernberger, 28 Kan. 756, 42 Am. Rep. 195, n.; Fahey v. Crotty, 63 Mich. 383, 6 Am. St. Rep. 305; O'Bryan v. O'Bryan, 13 Mo. 16, 53 Am. Dee. 128 ; Lamagdelaine v. Trombly, 162 Mass. 339, 39 N. E. 38; Boynton v. Kellogg, 3 Mass. 189; Atwood V. Dearborn, 1 Allen (Mass.), 483, 79 Am. Dee. 755; Day v. Rose, 154 Mass. 13; Heyxcood v. Reed, 4 Gray (Mass.), 574; McDonald v. Savoy, 110 Mass. 49; Com. v. Worcester, 3 Pick. (Mass.) 462; McCarty v. Leary, 118 Mass. 509; Clement v. Kimball, 98 Mass. 535; Leonard V. Allen, 11 Gush. (Mass.) 241; Tenney v. Tuttle, 1 Allen (Mass.), 185. * See note XXV. 238 A DIGEST OF [Paet I. In civil proceedings, unless the character of the party be directly put in issue by the proceeding itself, evidence of his general char- acter is not admissible. Humphrey v. Humphrey, 7 Conn. 118; Bennett v. Hyde, 6 Conn. 26; Yawter v. Hultz, 112 Mo. 633; Am. Ins. Co. V. Haxen, 110 Pa. St. 530; Elliott v. Russell, 92 Ind. 526; Hollz- mcmy. Hoy, 118 111. 534; Leinkauf v. Brinker, 62 Miss. 255; Williams V. Edmunds, 75 Mich. 92; Hall v. Rankin, 87 la. 261. In actions for seduction and the like the woman's bad character as to chastity may be shown. Sanborn v. Neilson, 4 N. H. 501; Mitchell v. Work, 13 R. I. 645; Van Storch v. Oriffln, 71 Pa. St. 240; White V. Murtl- land, 5 Barb. 449; Teall v. Van Wyck, 10 Barb. 376; Lansing v. Chamherlain, 8 Wend. 620; Fox v. Reil, 3 Johns. 477. Where the subscribing witness himself gave information of his being a resident of another State, such evidence lays a sufiicient foundation for proof of his handwriting. People v. Rowland, 5 Barb. 449. Witness not found. — If no competent attesting witness can be found signatures may be proved. Pelletrau v. Jackson, 11 Wend. 110. Proof of handwriting. — No evidence of handwriting can be intro- duced until the absence of all the witnesses be accounted for. Edson V. Gager, 5 Cow. 383 ; Woodruff v. Cody. 9 Cow. 140. It is enough to prove the handwriting of a witness alone, or of party. Borst v. Empire, 5 N. Y. 33. Where the witnesses to a deed reside without the State, the grantor's handwriting may be proved. Cook v. Husted. 12 Johns. 188. A party's handwriting may be proved where that of an absent ' subscribing witness cannot be proved. McPherson v. Rathbone, 11 Wend. 96; Tucker v. Griffin, 9 Alb. Law J. 69; Van Dyne v. Thayre, 79 Wend. 162. If it is possible, evidence to prove the signature of a witness should be given before proving that of a party; if impossible, the party's signature should be proved. Willson v. Betts, 4 Den. 201; Jackson V. Waldron, 13 Wend. 178. Chap. IX.] TEE LAW OF EVIDENCE. 275 After it is shown that a witness cannot be found, and after a iona fide attempt to prove his handwriting was made, evidence of the handwriting of a party is admissible. Pelletreau v. VaricTc, 11 Wend. 110, 13 Wend. 178. Execution is sufficiently proved by proving the signature of one witness. Van Rensselaer v. Jones, 2 Barb. 643. But proof of the signatures of other witnesses or of the party can be offered in addition. Jackson v. Cliamherlain, 8 Wend. 269. Proof of the signature is sufficient even though the body of the document is in another's handwriting. Small v. Sloan, 1 Bos. 352. Where doubt exists or fraud is alleged, the party's identity must be shown. Brown v. Kimball, 25 Wend. 259, reversing 19 Wend. 437. And see People v. McHenry, 19 Wend. 482. This decision, it is said, does not settle the law, bej'ond the facts of the particular case. 'Nor- throp V. Wright, 7 Hill, 476. Proof of a v.'ill. — Certain documents must, by statute, be proved by more than one witness ; a will must be proved by both or all the subscribing witnesses before its admission to probate. N. Y. Code Civ. Pro., sec. 2618. But, exclusive of the probate proceedings, the testimony of one witness is enough. Upton v. Bernstein, 76 Hun, 516. Where one or all the witnesses are not alive, or to be found, insane, etc., by statute, the testator's signature, in addition to that of such witness or witnesses, should be proved. N. Y. Code Civ. Pro., sec. 2620. See Collyer v. Collyer, 4 Dem. 53. Burnt document. — Where a document was burned, of which an acknowledgment had been duly made, the subscribing witness need not be called to establish its execution. Simmons v. Ho-ven, 101 N. Y. 427. Lost document. — If a document is lost, the rule is the same as that stated in the text with reference to burnt documents. See Jack- son V. Frier, 16 Johns. 193 ; Aloore v. Livingston, 28 Barb. 543. Where the loss renders it impossible to know who were the sub- scribing witnesses, other evidence can be introduced to establish this fact. Jackson v. Vail, 7 Wend. 125. Witness is blind. — Cheeney v. Arnold, 18 Barb. 434. Party prepared to testify to execution. — Sustaining text. Story V. Lovett, 1 B. D. Smith, 153. Where two attorneys executed a deed, either of them may prove its execution by himself, but not by his fellow-attorney if there is a subscribing witness. Ellice v. Britton, 4 Wend. 507. 276 A DIGEST OF [Pabt II. An obligor cannot offer evidence in proof of his own handwriting until he shows that proof of the handwriting of the subscribing wit- nesses cannot be given, even through the exercise of due diligence or his part to obtain it. Tucker v. Griffin, 9 Alb. L. J. 69 ; Van Dyne v. Thayre, 19 Wend. 162; McPherson v. Rathbone, 11 Wend. 96. Admissions. — Sustaining last paragraph of the text. Fox v. Riel, 3 Johns. 477; Henry v. Bishop, 2 Wend. 575, 576. But as to negotiable paper the contrary is the rule in this State. Hall v. Phelps, 2 Johns. 451 ; Jones v. Underwood, 23 Barb. 483. But see Shaver v. Ehle, 16 Johns. 201. Where the witnesses are dead and the document cannot be pro- duced, thus excluding proof of handwriting, evidence of admissions can be given. Jackson v. Tail, 7 Wend. 125. Admissions made in the pleadings for the purpose of, or in ref- erence to, the cause are not receivable. Robert v. Good, 36 X. Y. 408 ; Thorpe v. Keokuk Coal Co., 48 N. Y. 253. Practice. — The question of the due execution of a document is not raised by an objection thereto as incompetent, irrelevant and imma- terial. MacKinstry v. Smith, 16 Misc. Eep. 351, 38 X. Y. Supp. 93, affirming 15 Misc. Rep. 697. Nor does such an objection raise the question of the signature of the defendant's name by a third person without authority. Porter v. Valentine, 18 Misc. Eep. 213, 41 X. Y. Supp. 507. Where documents were admitted without proof that these were issued or authorized by the defendant, this error is cured by subse- quent uncontradicted evidence that certain of these documents were in his handwriting, and the others his authorized agent issued. Ro- nano v. Irsch, 7 Misc. Rep. 147, 57 N. Y'. St. R. 493, affirming 4 Misc. Rep. 621. Proof of the due execution of- a document having been given by a subscribing witness thereto, the burden rests on the party seeking to impeach its due execution, to show that it was not actually signed or delivered by the party whose name is subscribed thereto ; the sub- scribing witnesses may state that in their opinion the alleged signa- ture to it was genuine, although the^' are charged with conspiracy to sustain a, forged instrument. Boyd v. Boyd, 21 App. Div. 361, 47 N. Y. Supp. 522. Upon the introduction in evidence by the plaintiff of a quitclaim deed, it is proper to a.^ik a witness if he was the person who executed this deed. H. cC- H. Reiners v. Kicderstcin, 67 X. Y''. Supp. 41, 55 App. Div. 80. Chap. IX.] TEE LAW OF EVIDENCE. 277 Article 67.* cases in which attesting witness need not be called. In the following cases, and in the case mentioned in Article 88, but in no others, a person seeking to prove the execution of a document required by law to be attested is not bound to call for that pu.rpose either the party who executed the deed or any attesting witness, or to prove the handwriting of any such party or attesting witness — (1) When he is entitled to give secondary evidence of the contents of the document under Article 71 (a) ;■"* (2) When his opponent produces it when called upon and claims an interest under it in reference to the subject-matter of the suit;^^ (3) When the person against whom the document is sought to be proved is a public officer bound by law to pro- cure its due execution, who has dealt with it as a document duly executed.-'^ * See Note XXVIII. 10 Cooke V. Tamswell, 1818, 8 Tau. 450; Poole v. Warren, 1838, 8 A. & E. 582. liPearce v. Hooper, 1810, 3 Tau. 60; Rearden v. Minter, 1843, 5 M. & G. 204. As to the sort of interest necessary to bring a case within this exception, see Collins v. Bayntun, 1841, 1 Q. B. 118. lapiumer v. Briscoe, 1847, 11 Q. B. 46. Baileij v. Bidwell, 1844, 13 M. & W. 73, would perhaps justify a slight enlargement of the ex- ception, but the circumstances of the ease were very peculiar. Mr. Taylor (ss. 1852-3) considers it doubtful whether the rule extends to instruments executed by corporations, or to deeds enrolled under the provisions of any Act of Parliament, but his authorities hardly seem to support his view ; at all events, as to deeds by corporations. 278 A DIGEST OF [Pabt II, AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 570-575; 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 586 et seq. The testimony of attesting witnesses is, probably, not necessary where the document is offered collaterally in a proceeding affecting only strangers to it. Com. v. Castles, 9 Gray (Mass.), 121 ; Skinner v. Brigham, 126 Mass. 132. Where a document comes in incidentally in a suit between strangers, the attesting witnesses need not be called. Ayers v. Hewitt, 19 Me. 281, 285; Curtis v. Belknap, 21 Vt. 433; Kitchen v. Smith, 101 Pa. St. 452; Steiner Bros. v. Tranum, 98 Ala. 35; Rand V. Dodge, 17 N. H. 343, 357. Recorded instruments. — In some States recorded instruments may he proved without calling the subscribing witnesses. Knox v. Sillo- way, 1 Fairf. (Me.) 201; Kelsey v. Hannier, 18 Conn. 311, 318; Gragg V. Learned, 109 Mass. 167; Burghart v. Turner, 12 Pick. (Mass.) 534, 538; Scanlon v. Wright, 13 Pick. (Mass.) 523, 527, 25 Am. Dec. 344. See Brown v. Oldham, 123 Mo. 621. Interest claimed by opponent. — Sustaining text . McGregor v. Wait, 10 Gray (Mass.), 72, 69 Am. Dec. 305; Adams v. O'Connor, 100 Mass. 515; Woodstock Iron Co. v. Reed, 84 Ala. 493; BalUett v. Fink, 28 Pa, St. 266. New York. Documents may be proved under the New York Code of Civil Pro- cedure as at common law. Sec. 962. Where a document comes in incidentally in a suit between stran- gers, the attesting witnesses need not be called. Smith v. X. T. C. R. Co., 4 Abb. Dec. 262. Secondary evidence of contents. — Jackson v. Woolsey, 11 Johns. 446. Interest claimed by opponent. — Sustaining text. Jackson v. Kingsley, 17 Johns. 158. Recorded instruments. — In this State recorded instruments may he proved without calling the subscribing witnesses. Ludlow v. TTar- shing, 108 N. Y. 520 ; N. Y. Code Civ. Pro., sees. 935-937. A duly acknowledged document is admissible in evidence, even though the acknowledgment were after suit brought. Sheldon v, Stryker, 42 Barb. 284, 27 How. Pr. 387. Chap. IX.] THE LAW OF EVIDENCE. 279 Aeticle 68. PEOOF WHEN ATTESTING "WITNESS DENIES THE EXECUTION. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.''^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 572; 11 Am. & Eng. Encyclopaedia of Law (2d ed.), p. 598; Frost v. Deer- ing, 21 Me. 156; Whitaker v. Salisbury, 15 Pick. (Mass.) 534, 544; Thomas v. Le Baron, 8 Mete. (Mass.) 355; Tompson v. Fisher, 123 Mass. 559 ; Patterson v. Tucker, 9 N. J. L. 322 ; Hamsher v. Kline, 57 Pa. St. 397 ; Barnewall v. Murrell, 108 Ala. 366 ; Webb v. Dye, 18 W. Va. 376. Compare Frost v, Deering, 21 Me. 156. New York. Authorities. — Matter of Cottrell, 95 N. Y. 329; Hall v. Phelps, 2 Johns. 451; Code Civ. Pro., sec. 2620. Aeticle 69. peoof of document not eequieed by law to be attested. An attested document not required by law to be attested may in all cases whatever, civil or criminal, be proved as if it was unattested.^* 13 " Where an attesting vritness has denied all knowledge of the matter, the case stands as if there were no attesting witness : " Tal- bot V. Hodson, 1816, 7 Tau. 251, 254. 14 28 & 29 Vict. u. IS, ss. 1, 7; re-enacting 17 & 18 Vict. c. 125, s. 26, now repealed. 280 A DIGEST OP [Part II. AMERICAN NOTE. General. Authorities. — 3 Taylor on Evidence ( Chamberlayne's 9th ed. ) , p. 12296 et seq.; 11 Am. & Eng. Eneyclopffidia of Law (2d ed.), p. 593 (stating that the common-law rule is otherwise). Sustaining the text. Houghton v. Jones, 1 Wall. 702, 706; iledary V. Cathers, 161 Pa. St. 87. Contra to text. Tompson v. Fisher, 123 Mass. 559; Homer v. Wal- lis, 11 Mass. 309; Giannone v. Fleetxcood, 93 Ga. 491. Relative to proving unattested documents, see Seibold v. Rogers, 110 Ala. 438; Nichols v. Allen, 112 Mass. 23; Pullen r. Hutchinson, 25 Me. 249. The common law is contrary to the text. If a note be attested by witnesses, the genuineness of the signature cannot be proved by a com- parison of hands, without calling them. Law v. Atwater, 2 Root (Conn.), 72; Knap v. Sacket, 1 Root (Conn.), 502. New York. By statute, this is the law in this State. Laws of 1883, chap. 195. The common-law rule is otherwise. See Sackett v. Sackett, 7 Wend. 94. With reference to proving documents unattested, see St. John v. Amer. Ins. Co., 2 Duer, 419. As to the effect thereof where the circumstances of the case were peculiar, see Sanger v. Merritt, 131 X. Y. 614, 43 N. Y. St. R. 99, affirming 39 N. Y. St. R. 894. See 120 N. Y. 129. Article 70. secoxdaey evidence. Secondary evidence means — (1) Examined copies, exemplifications, office copies, and certified copies :^^ (2) Other copies made from the original and proved to be correct : 10 See Chapter X. Chap. IX.] TEE LAW OF EriDENGE. 281 (3) Counterparts of documents as against the parties ■who did not execute them ■}'^ (4) Oral accounts of the contents of a document given by some person who has himself seen it. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (ISth ed.), sec. 84 et seq.; 11 Am. & Eng. Encyclopsedia of Law (2d ed.), pp. 535, 583 et seq. In giving testimony, a witness must recollect the substance of the document. Camden v. Belgrade, 78 ile. 204; Richard's Appeal, 122 Pa. St. 547; Mayor of Baltimore v. War, 77 Md. 593. The correctness of a copy may be proved by the testimony of one who compared it with a paper read as the original by another. Lynde v. Judd, 3 Day (Conn.), 500. A copy of a copy may be competent evidence. It is not, however, if the original is in existence. Cameron v. Peck, 37 Conn. 555, 558; Winn V. Patterson, 9 Pet. (U. S.) 663. New York. Due diligence to procure the attendance of the subscribing wit- nesses must be proved before secondary evidence of the execution of a written contract can be admitted. Mills v. Twist, 8 Johns. 121 ; Willoughhy v. Carleton, 9 Johns. 136. See People v. Rowland, 5 Barb. 449. Proof of the genuineness of an instrument is always necessary, even if secondary evidence of its contents is admitted. Nichols v. Kingdom Iron Ore Co., 56 N. Y. 618. If a corporation has omitted to make a record of its actions, sec- ondary evidence may be introduced. St. Mary's Church v. Cagger, 6 Barb. 576; Smith v. Helmer, 7 Barb. 416. Where the defendant gave a copy to the plaintiff to guide him in performing his contract, this is evidence without accounting for the original. Moore v. Belloni, 10 J. & S. 184. But the draft of an un- executed contract containing the supposed agreement of the parties is not evidence. Flood v. Mitclirll, 4 Hun, 813, 68 N. Y. 507. Examinea, exemplified, office, and certified copies. — See articles 75-79, inclusive. 16 Munn V. Godbold, 1825, 3 Bing. 292. 282 A DIGEST OF [Part il. Other copies from the original. — De Oroot v. Fulton Fire Insurance Co., 4 E,ob. 504; Gamplell v. Wright, 8 N. Y. St. R. 471, 118 N. Y. 594. A copy containing the entire account, which thereby duplicated items contained in the original, was not, by reason thereof, to be rejected, for the fact that the items were duplicated became apparent on inspection. Hodnett v. Oault, 71 N. Y'. Supp. 831. Letter-press copies of documents come under the head of secondary evidence. Foot v. Bently, 44 N. Y. 166, 4 Am. Rep. 652. See also Eaas V. Stonier, 21 Misc. Rep. 661; Boyer v. Rhinehart, 44 X. Y. St. R. 370, 17 N. Y. Supp. 346; affirmed, 137 N. Y. 564. Counterparts. — Counterparts of documents are secondary evidence. Nicoll V. Burke, 8 Abb. N. C. 213. See Roland v. Pinckney, 8 Misc. Rep. 458. Oral accounts of contents of a document. — Artcher v. McDuffie, 5 Barb. 147; Scott v. Betts, Lalor, 363; Chrysler v. Griswold, 43 ^^. Y'. 209. In giving testimony, a witness must recollect the substance of the document. Edtoards v. Noyes, 65 N. Y. 125. Oral evidence as to a contract made by parol may be corroborated by a written memorandum of its terms made at the same time. La- throp V. Bramhall, 64 N. Y. 365; Thomas v. Nelson, 69 N. Y. 118; Smith V. New York Central Railroad Co., 4 Keyes, 180, 4 Abb. Dec. 262; Oouverneur v. Elliott, 2 Hall, 211. But see Comer v. Nelson, 59 N. Y''. Supp. 184. Evidence of a witness who had the document before him and made a memorandum thereof at the time, is sufficient proof of its existence, although the witness has no further recollection of it. Van Dyne v. Thayre, 19 Wend. 162. A witness having read the whole document, from which he has taken extracts, and being able to give a general account of its con- tents, may testify concerning his extracts, as secondary evidence. Si:ser v. Burt, 4 Den. 426. Article 71. cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the contents of a document in the following cases — Chap. IX.] THE LAW OF EVIDENCE. 283 (a) When the original is shown or appears to be in the possession or power of the adverse party, and when, after the notice mentioned in Article Y2, he does not produce it ;^' (&) When the original is shown or appears to be in the possession or power of a stranger not legally bound to pro- duce it, and who refuses to produce it after being served with a subpoena duces tecum, or after having been sworn as a witness and asked for the document and having admitted that it is in court ;^^ (c) When the original has been destroyed or lost, and proper search has been made for it ;^^ {d) When the original is of such a nature as not to be easily movable,^" or is in a country from which it is not per- mitted to be removed f^ (e) When the original is a public document ;^^ (/) When the document is an entry in a banker's book, proof of Avhich is admissible imder Article 36. 17 je. V. Watson, 1788, 2 T. R. at p. 201. Entick v. Garrington, 1765, 19 S. T. at p. 1073, is cited by Mr. Fliillips as an authority for this proposition. I do not think it supports it, but it shows the necessity for the rule, as at common law no power existed to compel the production of documents. iS Miles V. Oddy, 1834, 6 C. & P. at p. 732; Marston v. Dowries, 1834, 1 A. & E. 31. 19 1 Ph. Ev. s. 452; 2 Ph. Ev. 281; Taylor (from Greenleaf), s. 429. The loss may be proved by an admission of the party or his attorney; B. V. Eaicorih, 1830, 4 C. & P. 254. ^Mortimer v. McCallan, 1840, 6 M. & W. at pp. 67, 68 (referring to the case of a libel written on a wall) ; Bruce v. Nicolopulo, 1855, 11 Ex. 133 (the case of a placard posted on a wall). 21 Alivon V. Furnival, 1834, 1 C. M. & K. 277, 291-2. 22 See Chapter X. 284 A DIGEST OF [Paet TI. {g) When the original is a document for the proof of ■which special provision is made by any Act of Parliament, or any law in force for the time being ;^^ or (Ji) When the originals consist of numerous documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collec- tion: provided that that result is capable of being ascer- tained by calculation.^^ Subject to the provisions hereinafter contained any sec- ondary evidence of a document is admissible.^ In case (/) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordi- nary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit. ^° In case (K) evidence may be given as to the general re- sult of the documents by any person who has examined 22 See Chapter X. 23 Roberts v. Doxen, 1791, 1 Peake, 116; Meyer v. Scfton. 1817, 2 Star, at p. 276. The books, &e., should in such a case be ready to be produced if required. Johnson v. Kershaw, 1847, 1 De G. & S. at p. 264. 24 If a counterpart is known to exist, it is the safest course to pro- duce or account for it: Munn v. Godiold, 1825, 3 Bing. 297; B. V. Castleton, 1795, 6 T. R. 236. 25 42 & 43 Vict. c. 11, ss. 3, 5. Chap. IX.] THE LAW OF EVIDESGE. 285 them, and who is skilled in the examination of such docu- ments. Questions as to tlie existence of facts rendering secondary evidence of the contents of documents admissible are to be decided by the judge, unless in deciding such a question the judge would in effect decide the matter in issue. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sec. 558 et seq.; 1 Wharton on Evidence, sec. 150 et seq. If there are several originals, all must be accounted for in order to let in secondary evidence. Dyer v. Fredericks, 63 Me. 173, 592. Some authorities hold that, if a document comes in collaterally, secondary evidence may, in all cases, be introduced. Phinney v. Uolt, 50 Me. 270. In some States, as in England, there are no degrees in secondary evidence. Com. v. Smith, 151 jNIass. 491. In possession of adverse party. — Thayer v. Middlesex Mut. Ins. Co., 10 Pick. (Mass.) 326; Dana v. Kcmble. 19 Pick. (Mass.) 112; Narragansett Bank v. Atlantic ^ilk Co., 3 Mete. (Mass.) 282; Cool- idge v. Brigham, 5 Mete. (Mass.) 68; Loring v. Whittcmore, 13 Gray (Mass.), 228; Doolcy v. Cheshire Glass Co., 15 Gray (Mass.), 494; Day V. Floyd, 130 Mass. 488; Morse v. Woodivorth. 155 Mass. 233, 29 N. E. 525; Com. \. Bhurn, 145 Mass. 150; Dunbar v. V. 8., 156 U. S. 185; Bishop v. Amer. Preserver's Co., 157 111. 284; Carland v. Cun- ningham, 37 Pa. St. 228; Keagle v. Pessell. 91 ]\Iich. 618; Golden v. Conner, 89 Ala. 598; Overlook v. Ball, 81 Me. 348; Weston v. Eight, 18 Me. 281 ; Lowell v. Flint, 20 Me., pt. 2, 401 ; Orr v. Clark. 62 Vt. 136, 19 Atl. 929; Sedgwick v. Waterman, 2 Root (Conn.), 434; Mor- gan V. Minor, 2 Root (Conn.), 220; Ross v. Bruce, 1 Day (Conn.), 100. Document lost or destroyed. — Tolin v. Shaw, 45 Me. 331, 71 Am. Dec. 547; Gates v. Boicker, 18 Vt. 23; Spear v. Tilson, 24 Vt. 420; Stebhins v. Duncan, 108 V. S. 32; Gorgas v. Hertz, 150 Pa. 538; MoConnell v, Wildes, 153 Mass. 487; Hatch v. Carpenter, 9 Gray (Mass.) , 271 ; Oriental Bank v. Haskins, 3 Mete. (Mass. ) 332, 37 Am. Dec. 140. 286 A DIGEST OP [Part II. But one who has intentionally destroyed an instrument cannot give evidence as to its contents, without first giving evidence to rebut the suspicion of fraud, arising from the act. Joannes v. Ben- nett, 5 Allen (Mass.), 169; Kelly v. Riggs, 2 Root (Conn.), 128; Kelsey v. Eanmer, 18 Conn. 317; Elwell v. Mersick, 50 Conn. 274; Bank of United States v. Sill, 5 Conn. 106, 13 Am. Dec. 44. Diligent search must be made. McCollister v. Yard, 90 la. 621 ; Mullauphy Bk. v. Schott, 135 111. 655; Darrow v. Pierce, 91 Mich. 63. See Ounther v. Bennett, 72 Md. 384. The amount of evidence required to prove the loss of a written instrument, for the purpose of admitting secondary evidence of its contents, depends much upon the nature of the instrument, the reasons for its preservation, and the circumstances of the case. Waller v. Eleventh School District, 22 Conn. 333. The question whether the loss of a document has been satis- factorily proved, so that secondary evidence of its contents can be admitted, is wholly one of discretion with the judge trying the case, and cannot be reviewed on error. Elwell v. Mersick, 50 Conn. 274 ; Witter V. Latham, 12 Conn. 399, 400. Where the plaintiff declares upon a writing, and alleges that it is lost or destroyed, the loss or destruction is a preliminary question for the court, not a, material and traversable fact to be determined by the jury. Witter v. Latham, 12 Conn. 400; Fitch v. Bogue, 19 Conn. 289, overruling Coleman v. Wolcott, 4 Day (Conn.), 394, and Paddock v. Biggins, 2 Root (Conn.), 483. Out of jurisdiction. — Where a document is out of the jurisdic- tion in the hands of a third party, secondary evidence is admissible. Elioell V. Mersick, 50 Conn. 274; Shepard v. Giddings, 22 Conn. 283; Stevens v. Miles, 142 Mass. 571 ; L'Herbette v. Pittsfield Xat. Bank, 162 Mass. 137; Eaton v. Campbell, 7 Pick. (Mass.) 10; Knicker- bocker V. Wilcox, 83 Mich. 200; Fosdick v. Tan Born, 40 0. St. 459: Burton v. Driggs, 20 Wall. (U. S.) 125, 134; Memphis, etc., S. Co. V. Eem.bree, 84 Ala. 182; Otto v. Trump, 115 Pa. St. 425, 430: Zaller- bach V. Allenberg, 99 Cal. 57; Bomman v. Sanborn, 5 Fost. (N. H.) 87, 112; Beattie v. Billiard, 55 N. H. 428; Knoiclton v. Knowlton, 84 Me. 283, 24 Atl. 847; Burnham v. Wood, 8 N. H. 334; Little v. Paddleford, 13 N. H. 167; Lord v. Staples, 23 N. H. 448. In possession of third person. — Sherwood v. Hubbel, 1 Root (Conn.), 498; Halsey v. Fanning, 2 Root (Conn.), 101: Lt/nde v. Judd, 3 Day (Conn.), 499; Stokoc v. St. Paul. etc.. R. Co., 40 Minn. 545; State v. Ournee, 14 Kan. Ill; Corbett v. Oibson, 16 Blatchf. 334. Chap. IX.] TEE LAW OF EVIDENCE, 287 Not easily movable. — North Brookfield v. Warren, 16 Gray (Mass.), 171, 174; Stearns v. Doe, 12 Gray (Mass.), 482. Numerous documents. — Sustaining text . Boston & W. R. R. Co. V. Dana, 1 Gray (Mass.), 83; Burton v. Driggs, 20 Wall. 125; Chicago, etc., B. Co. V. Wolcott, 141 Ind. 267; Wolford v. Farnham, 47 Minn. 95; State v. Findley, 101 Mo. 217. New York. The English rule, that there are no degrees of secondary evidence, does not prevail in this State. A party must produce the best form of secondary evidence obtainable. Reddington v. Oilman, 1 Bosw. 235; Lazzaro v. Waugham, 10 Misc. Rep. 230; Mandeville v. Rey- nolds, 68 N. Y. 528, 533. If the nature of the case does not make apparent the existence of such better evidence, the objector must establish its existence, and that the other party knew of it, in time to produce it on the trial. Reddington v. Oilman, 1 Bos. 235. In possession of adverse party. — All conclusions from the second- ary evidence, where such evidence is of a vague or imperfect character, are to be taken most strongly against the party refusing to produce on notice. Cahen v. Continental Ins. Co., 69 N. Y. 300. Where a paper is in the possession of the attorney for the adverse party, secondary evidence of its contents is admissible. Bubbell v. Oil Co., 19 Alb. L. J. 97. And see Saugatuck Cutlery Co. v. Babcock, 22 Hun, 481. In possession of third person. — For instance, where there is a re- fusal by an attorney to produce a document belonging to his client. Brandt v. Klein, 17 Johns. 335. Unlawful refusal of stranger to produce. — Lane v. Cole, 12 Barb. 680 ; Brandt v. Klein, 17 Johns. 335. Document lost or destroyed. — Mandeville v. Reynolds, 68 N. Y. 528. The search must be shown to have been diligent, and to have ex- hausted all reasonable means of finding the document. Kearney v. Mayor of N. Y., 92 N. Y. 617; People v. Lord, 67 Barb. 109. The court must determine the sufficiency of the proof of a lost in- strument. Graham v. Chrystal, 2 Keyes, 21, 2 Abb. Dee. 263, 32 How. Pr. 287, 1 Abb. Pr. (N. S.) 121; Mason v. Libbey, 90 N. Y. 683, 64 How. Pr. 259; Livingston v. Frier, 16 Johns. 193. See also Berg v, Carroll, 40 N. Y. St. R. 811. 288 A DIGEST OP [Pakt II. What constitutes a sufficient search? Meakim v. Anderson, 11 Barb. 215; Kice v. Davis, 7 Lans. 393; Teall v. Van Wyck, 10 Barb. 376. Leas diligence is required where the paper is of little value; the slightest proof of loss may be sufficient to let in secondary evidence of its contents. Baker v. Squier, 1 Hun, 448, 3 S. C. 465; Bond v. Root, 18 Johns. 60. The opposite party has the right to cross-examine the witness with reference to the sufficiency of the search, before the introduction of secondary evidence. Loomis v. Moicry, 4 Hun, 271. Before the introduction of the secondary evidence it should be proved that the lost document actually existed and was genuine. Nichols V. Kingdom Iron Co., 56 N. Y. 618. If a party has voluntarily destroyed a document, before he can give secondary evidence of its contents, he should show that his act was innocently done. Steele v. Lord, 70 N". Y. 280. If the lost instrument was attested by a subscribing witness who is within the State, in order to give it in evidence such witness must be called. Hewitt v. Morris, 5 J. & S. 18. Wills. — Knapp v. Knapp, 10 X. Y. 276. And see McBurney v. Cutler, 18 Barb. 203; Supervisors of Livingston \. White, 30 Barb. 72 : Enders v. Sternberg, 1 Keyes, 264, 2 Abb. Dec. 31 ; Donaldson v. Lucett, 2 Cai. 363; Schuyler v. Russell, 4 Wend. 543, 22 Wend. 277: Bush v. Hasirouck, 12 Johns. 192 : Livingston v. Frier, 16 Johns. 193; Brown v. Betts, 6 Cow. 377; Harris v. Harris. 26 X. Y. 433, re- versing 36 Barb. 88, 574; Fetherly >. Waggoner. 11 Wend. 599; Dan V. Broun. 4 Cow. 483: Fetes v. Yolmer, 58 Hun, 1, 33 X. Y. St. R. 566, 11 X. Y. Supp. 552. See 28 X. Y. St. R. 317, 8 X". Y. Supp. 294; Matter of Smith, 39 N. Y. St. E. 698. Deeds, leases, etc. — Moore v. Livingston, 28 Barb. 543, reversing 14 How. Pr. 1; Dunhar v. Todd, 3 Johns. 300; Hoagland v. Tail. 7 Wend. 12.5; Metcalf v. Tan Bcnthuysen. 3 X. Y. 424: Kent v. Har- court, 33 Barb. 491 ; Edwards v. Aoyes, 65 X. Y. 125; Shufclt v. Wat- rous, 16 Wkly. Dig. 198; Bingham v. Hyland, 6 X. Y. Supp. 7.i. 1 Sil. S. C. 551; Kane v. Xcw York El. Ry. Co., 6 X. Y. Supp. 526. l.i Daly, 295. 125 X. Y. 164; Greer v. Giccr, 58 Hun. 251, 34 X". Y. St. Rep. 448, 20 Code Civ. Pro. 71. Bills and notes. — Cary v. Camphell, 10 Johns. 363; Smith v. Young, 2 Barb. 545; Blade v. Noland, 12 Wend. 173; Cary v. Camphell. 10 Johns. 363; Daniels v. Smith, 28 N. Y. St. R. 351. 8 X. Y. Supp. 128. Public records, court records. — Xiskayuna v. Albany, 2 Cow. 537; Chamberlain v. Taylor, 30 Hun, 24, 33, 105 X. Y. 185; Joslyn v. Pul- Chap. IX.] THE LAW OF EVIDENCE. 289 ver, 59 Hun, 129; Sub nom. Joslyn v. Rockwell, 35 N. Y. St. R. 888 affirmed in Joalyn v. Rockwell, 40 N. Y. St. E. 274, 128 N. Y. 334 Foster v. TrMJi, 12 Johns. 456; Mandeville v. Reynolds, 68 N. Y. 528 Josuez V. Conner, 7 Daly, 448. Boofcs of account, vouchers, minutes. — Rouss v. McDowell, 88 Hun, 532, 68 N. Y. St. R. 710; Stanfield v. Knickerbocker Trust Co., 1 App. Div. 592, 73 N. Y. St. R. 297; Partridge v. Bod^er, 25 Barb. 146; Steele v. Lord, 70 N. Y. 280; Beekman v. Beekman, Anth. N. P. 169; Hildebrant v. Crawford, 6 Lans. 502; affirmed in 65 N. Y. 107; Hodnett v. Gawii, 71 N. Y. Supp. 831; Moffat v. Moffat, 10 Bos. 468. Letters. — Coofce v. McAleena, 18 Misc. Rep. 219, 41 N. Y. Supp. 479; Isaac v. Cohn, 10 App. Div. 216, 41 N. Y. Supp. 779; Dishaw v. Wadleigh, 15 App. Div. 205, 44 N. Y. Supp. 207 ; Walbridge v. Eil- patrick, 9 Hun, 135; Voorhees v. Dorr, 51 Barb. 580. Power of attorney, papers, memoranda. — People ex rel. Noel v. Smith, 10 Misc. Rep. 100, 63 N. Y. St. R. 600; Francis v. Occam In- surance Co., 6 Cow. 404, 2 Wend. 64; Livingston v. Neely, 10 Johns. 374; Grover v. Morris, 73 N. Y. 473; Peck v. Valentine, 29 Hun, 668; Livingston v. Rogers, 1 Cai. Cas. xxvii, 2 Johns. Cas. 488; Garnsey V. Livingston, 7 Wend. 136; Gorbin v. Garnsey, 14 Wend. 619; Kear- ney V. New York, 92 N. Y. 617; Rolker v. Grea* TFesiern Insurance Co., 2 Sw. 275. Miscellaneous. — E ay good v. Townsend, 4 App. Div. 246, 73 N. Y. St. R. 608 ; McDonald v. Winter, 17 Wldy. Dig. 378 ; Smith v. Bins- more, 9 Daly, 188 ;\Detomaier v. Prudential Insurance Co., 1 Sil. S. C. 538, 5 N. Y. Supp. 86 ; Forrest v. Forrest, 6 Duer, 102 ; Reimer v. Mul- ler, 15 J. & S. 226 ; Reed v. U. S. Express Co., 48 N. Y. 462. Not easily movable. — Gozgens v. Higgins, 1 Abb. Dec. 451. Out of jurisdiction. — If the document is in the hands of a third person, out of the jurisdiction, beyond the control of the party, sec- ondary evidence is admissible. Tucker v. Woolsey, 6 Lans. 482. A written contract in the hands of a party in a foreign State may be proved on commission, and its production in court is unnecessary. Bailey v. Johnson, 9 Cow. 115. Where books, the contents of which do not form the cause of action, are out of the jurisdiction, a party may give secondary evidence of their contents by a person able to testify as to the correctness and nature of such entries ; although such witness has to refer to a dupli- cate set of books in order to be able to testify. Maxwell v. Hofheimer, 81 Hun, 551, 63 N. Y. St. R. 278. 19 290 A DIGEST OF [Paet II. Public documents. — W. Y. 0. & H. R. R. Go. v. Broclcway Brick Co., 10 App. Div. 387, 41 N. Y. Supp. 762 ; Board of Health v. Gop- cutt, 140 N. Y. 12, 55 N. Y. St. R. 422, affirming 54 N. Y. St. K. 311. A statute (2 Rev. St. [8th ed.] p. 1105, sec. 36) providing that county supervisors shall deliver the corrected assessment-roll, or a copy thereof, to the oollector does not make such copy admissible as evidence. Oswego Gounty Sav. Bank v. Town of Genoa, 59 N. Y. Supp. 829, 28 Misc. Rep. 71. Documents, for the proof of which the law provides. — Delden v. Del. & Hud. R. Co., 29 N. Y. 634, 24 Barb. 362; Troy & Rutland R. Go V. Kerr, 17 Barb. 581; Mackinnon v. Barnes, 66 Barb. 51; Mauri V. Heffernan, 13 Johns. 58; Jenkins v. Robinson, 4 Wend. 436; West- cott V. Cody, 5 Johns. Ch. 334; N. T. Gar Oil Go. v. Richmond, 6 Bosw. 213, 19 How. Pr. 505. See articles 75-79, inclusive. Entries in the books of banks. — Clark v. Dearborn, 6 Duer, 309 ; State Bank v. Brown, 59 N. E. 1, 165 N. Y. 216, 52 N. Y. Supp. 1150, reversed; Hayden v. Williams, 96 Fed. Rep. 279, 37 C. C. A. 479. 'Numerous documents. — T'on Sachs v. Kretz, 72 N. Y. 548 ; Stone V. Mansfield, 58 N. Y. Supp. 339, 27 Misc. Rep. 560. Document which is collateral. — If a document comes in collat- erally, secondary evidence may, in all eases, be introduced. MeFad- den V. Kingsbury, 11 Wend. 667; Chrysler v. Renois, 43 N. Y. 209; People V. Jones, 106 N. Y. 523, 526; Grover v. Morris, 73 N. Y. 473; Roosevelt v. Eckard, 17 Abb. N. C. 58 ; Soniers v. Oppenheim, 19 Misc. Rep. 605, affirming 18 Misc. Rep. 736; Maxwell v. Hofheimer, 81 Hun, 551; Mumford v. Bowne, Anth. N. P. 56; Steinbach v. Columbian Insurance Co., 2 Cai. 129. See Daniels v. Smith, 130 N. Y. 696; Jones v. Underwood, 28 Barb. 483. Sustaining the last paragraph of text. — Mason v. Libbey, 90 N. Y. 683; Kearney v. Mayor of N. Y., 92 N. Y. 617. Practice. — Thompson v. Hewitt, 6 Hill, 254 ; Ward v. Whitney, 8 N. Y. 442; Boynton v. Boynton, 25 How. Pr. 490, 16 Abb. P*r. 87; affirmed by the Court of Appeals. See 41 N. Y. 619. Lazzaro V. Maugham, 10 Misc. Rep. 230, 63 N. Y. St. R. 306 ; Michelis v. Wil- shusen, 19 Misc. Rep. 153, 43 N. Y. Supp. 273; Blair v. Flack, 141 N. Y. 53, 56 N. Y. St. R. 571, affirming 50 N. Y. St. R. 479; Burling V. Ughts, 64 N. Y. Supp. 264, 51 App. Div. 603. If an objection to copies of letters that they were not the best evi- dence was not taken during the trial, such objection cannot be raised on appeal. Ackley v. Welch, 85 Hun, 178, 65 N. Y. St. R. 721. Chap. IX.] TEE LAW OF EVIDENCE. 291 If it is desired to object to evidence because it is secondary, an ob- jection on the ground that it is " incompetent " is faulty and of no effect. Tranhla v. McLean, 18 Misc. Eep. 221, 41 N. Y. Supp. 385. Article 72.* rules as to notice to peodttce. Secondary evidence of the contents of the documents referred to in Article 71 (a) may not be given unless the party proposing to give such secondary evidence has, if the original is in the possession or under the control of the adverse party, given him such notice to produce it^as the Court regards as reasonably sufficient to enable it to be procured f^ or has, if the original is in the possession of a stranger to the action, served him with a subpoena duces tecum requiring its production;*'' if a stranger so served does not produce the document, and has no lawful justification for refusing or omitting to do so, his omission does not entitle the party who served him with the subpoena to give secondary evidence of the con- tents of the document.^ Such notice is not required in order to render secondary e^adence admissible in any of the following cases — (1 ) When the document to be proved is itself a notice ; * See Note XXIX. ieDioyer v. Collins, 1852, 7 Ex. at p. 648. 27 Netoton v. Chaplin, 1850, 10 C. B. 356. 28 B. V. LlanfaetUy, 1853, 2 E. & B. 940. 292 A DIGEST OF [Paet II. (2) When the action is founded upon the assumption that the document is in the possession or power of the ad- verse party and requires its production f^ (3) When it appears or is proved that the adverse party has obtained possession of the original from a person sub- poenaed to produce it f^ (4) When the adverse party or his agent has the original in court.^^ AMERICAN NOTE. General. Authoritiea.— 1 Taylor on Evidence ( Chamberlayne's 9th ed. ) , sec. 440 et seq.; 1 Greenleaf on Evidence {15tli ed.), sec. 561. notice to produce. — Abbott v. Wood, 22 Me. 541; Inhabitants of Belfast V. Inhabitants of Washington, 46 Me. 460 ; Webster v. Clark, 30 N. H. 245 ; Curtis v. Ingham, 2 Vt. 287 ; Murray v. Mattison, 67 Vt. 553, 32 Atl. 479; Baker v. Pike, 33 Me. 213; People v. Walker, 38 Mich. 159; Dunbar v. V. 8., 156 U. S. 185; Mayor of Baltimore v. War, 77 Md. 593, 603 ; Eilbert v. Finkbeiner, 68 Pa. St. 243 ; Trelever V. No. Pac. B. Co., 89 Wis. 598 ; Shepard v. Giddings, 22 Conn. 282 ; Draper v. Hatfield, 124 Mass. 53 ; Roberts v. Spencer, 123 Mass. 397 ; Bourne v. Buffington, 125 Mass. 481 ; Com. v. Sullivan, 156 Mass. 229; Com. v. Emery, 2 Gray (Mass.), 80; Bourne v. Boston, 2 Gray (Mass.), 494; Brackett v. Evans, 1 Cush. (Mass.) 79; Harris v. Whitcomb, 4 Gray (Mass.), 433. If the paper is in court, a verbal notice to produce is sufficient. Overlook v. Hall, 81 Me. 348. Suit on assumption that adverse party has document. — Dana v. Oonant, 30 Vt. 246, 257 ; Morrill v. B. d M. R. R. Co., 58 N. H. 68 ; State V. Mayberry, 48 Me. 218 ; Railway Co. v. Cronin, 38 0. St. 122. Compare People v. Swetland, 77 Mich. 53. ^How V. Hall, 1811, 14 Ea. 274. In an action on a bond, no no- tice to produce the bond is required. See other illustrations in 2 Ph. Ev. 273; Taylor, s. 452. 30 Leeds v. Cook, 1803, 4 Esp. 256. 31 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v. Collins, 1852, 7 Ex. 639. Chap. IX.] THE LAW OF JSVIDENGE. 293 Unlawful refusal of stranger to produce. — Bull v. Lovelcmd, 10 Pick. (Mass.) 14. Document itself a notice. — Eagle Bank v. Ghapin, 3 Pick. (Mass.) 180; Quinley v. Atkins, 9 Gray (Mass.), 370; Michigan, etc., Land Co. V. Republic Toumship, 65 Mich. 628 ; Pensaoola B. Co. v. Brayton, 34 Fla. 471; Oetkin v. Walker, 59 Cal. 502; Uorrow v. Com., 48 Pa. St. 305; Central Bk. v. Allen, 16 Me. 41. New York. Notice to produce. — Foster v. Newhrough, 50 N. Y. 481, reversing 8 Alb. L. J. 300; ieeiJiz/ v. Lee, 41 N. Y. St. R. 559, 61 Hun, 627. See Beilly v. Lee, 85 Hun, 315; affirmed in 155 N. Y. 691; Sessions v. Palmeter, 75 Hun, 268, 58 N. Y. St. R. 289 ; Momeyer v. 2f ew Jersey Sheep & Wool Co., 49 N. Y. St. R. 414, 66 Hun, 626; Neukirch v. Eeppler, 67 N. 1''. Supp. 710, 56 App. Div. 225; Forrest v. Forrest, 6 Duer, 102. Notice to a party's attorney is sufficient. Brown v. Littlefield, 7 Wend. 454. See Sessions v. Palmeter, 75 Hun, 268, 58 N. Y. St. R. 289. The notice must allow a sufficient time. McPherson v. Rathbone, 7 Wend. 216; Utica Ins. Co. v. Caldwell, 3 Wend. 296. The document desired ought to be specified in the notice. Walden V. Davison, 11 Wend. 65. Production upon notice to produce does not ipso facto put the docu- ment in evidence. Smith v. Bentz, 131 N. Y. 169, 30 N. E. 54. In possession of third person. — Brandt v. Klein, 17 Johns. 335; Lane v. Cole, 12 Barb. 680. A subpoena duces tecum may be served on a party. Shelp v. Morri- son, 13 Hun, 110. If a corporation, by serving the proper officer. N". Y. Code Civ. Pro., sec. 868. Unlawful refusal of stranger to produce.^ — He may be sued for damages, or punished for contempt of court, or subjected to a statu- tory punishment. Lane v. Cole, 12 Barb. 680; Holly M'f'g Co. v. Venner, 74 Hun, 458, 143 N. Y. 639. See Shelp v. Morrison, 13 Hun, 110. Document itself a notice. — Edtoards v. Bonneau, 1 Sand. 610. Suit on assumption that adverse party has document. — Lawson V. Bachman, 81 N. Y. 616. 294 A DIGEST OF [Pabt II. Or in trover for the document itself. Hotohkiss v. Mosher, 48 N. Y. 478. Adverse party has obtained document from person subpoenaed. — Boneateel v. Lynde, 8 How. Pr. 226, 352. Where the document was taken with intent to destroy, no notice need be given such party to produce the portion taken. Scott v. Rentz, 5 Sand. 572. Adverse party has the original in court. — MoPherson v. Bath- bone, 7 Wend. 216, 219; Bramdt v. Klein, 17 Johns. 335. Secondary evidence can be introduced, after a verbal notice is given. Kerr v. McQuire, 28 N. Y. 619 ; Dole v. Belden, 1 N. Y. Supp. 667. The court can require the production by a witness of a document he has in court. Boynton v. Boynton, 25 How. Pr. 490, 41 N. Y. 619; V. Morrison, 13 Hun, 110, 113. Chap. X.] THE LAW OF EVIDENCE. 295 CHAPTEE X. proof of public documents. Aeticle 73. proof of public documents. When a statement made in any public document, register, or record, judicial or otherwise, or in any pleading or depo- sition kept therewith is in issue, or is relevant to the issue in any proceeding, the fact that that statement is contained in that document, may be proved in any of the ways men- tioned in this chapter.* New York. A paper which is identified by a stipulation does not thus become evidence. Hankinson v. Oiles, 29 How. Pr. 478, 17 Abb. Pr. 251. Until a document is read or its reading be waived, it does not be- come evidence, even though proved. Clapp v. Wilson, 5 Den. 285. Article 74. peoduction of document itself. The contents of any public document whatever may be proved by producing the document itself for inspection from proper custody, and identifying it as being what it professes to be. 1 See articles 36 & 90. 296 A DIGEST OF [Pabt II. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 479-484, 501; 1 Wharton on Evidence, sec. 635; State v. Lynde, 77 Me. 56; Evanston v. Gunn, 99 U. S. 660; Taylor v. Adams, 115 111. 570; Phelps V. Hunt, 43 Conn. 194. But see Donnellan v. Hardy, 57 Ind. 393; Frost v. Frost, 21 S. C. 501; Richards' Appeal, 122 Pa. St. 547. As to proving records of other States, see U. S. Rev. Stats., sees. 905, 906. As to proving foreign records, see Watson v. Walker, 23 N. H. 471, 496; Spalding v. Vincent, 24 Vt. 501, 504. A record may be proved by its mere production, if such be had, as vrell as by a copy. Gray v. Davis, 27 Conn. 453. Upon a writ of error from the judgment of a justice of the peace, each party produced a certified copy of the record below; but the copies did not agree. Held, that the court might send for the original record. AUin v. Hiscock, 1 Root (Conn.), 88. New York. Authorities. — Coolidge v. New York Firemen Insurance Co., 14 Johns. 308; Hamerschlag v. Duryea, 68 N. Y. Supp. 1061, 58 App. Div. 288, 66 N. Y. Supp. 87, affirmed; Millar v. Doll, 66 N. Y. Supp. 650, 54 App. Div. 197. Aeticle 75.* examined copies. The contents of any public document whatever may in all cases be proved by an examined copy. An examined copy is a copy proved by oral evidence to have been examined vi^ith the original and to correspond therewith. The examination may be made either by one person reading both the original and the copy, or by two • See Note XXX., also Doe v. Ross, 1840, 7 M. & W. at p. 106. Chap. X.] TEE LAW OF EVIDENCE. 297 persons, one reading the original and the other the copy, and it is not necessary (except in peerage cases^) that each should alternately read both.^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed. ), sees. 91, 485, 501, 508 ; 1 Wharton on Evidence, see. 94 ; Amer. Life Ins. Co. v. Rosenagle, 77 Pa. St. 507; Moore v. Gaus Mfg. Co., 113 Mo. 98 (called a " sv/orn " copy) ; State v. Clothier, 30 N. J. L. 351 (called a " sworn " copy) ; Lasater v. Van Hook, 77 Texas, 650; Whitehouse V. Beokford, 9 Eost. (N. H.) 471, 480; State v. Loughlin, 66 N. H. 266 ; State v. Lynde, 77 Me. 561 ; State v. Spaulding, 60 Vt. 228. Method of comparison. — Lynde v. Judd, 3 Day (Conn.), 500. New York. Authorities. — Hill v. Packard, 5 Wend. 376, 387 ; Kellogg v. Kel- logg, 6 Barb. 116; Bogert v. King, 5 Cow. 237. See N. Y. Code Civ. Pro., sec. 962. Examined copies are often called " sworn copies." Huhhell v. Meigs, 50 N. Y. 480, 492. A sworn copy of a lost instrument is of as high an order of proof as the instrument itself, and cannot be varied by parol evidence. Reed v. United States Express Co., 48 N. Y. 462. As to copies of records of United States courts, see Code Civ. Pro., sec. 943. Copies of Federal records. Code Civ. Pro., see. 944. Certified copies of land records. Code Civ. Pro., sees. 935, 936. Copies of land records of other States. Code Civ. Pro., sees. 946, 947. Copies of court records of other States. Code Civ. Pro., sees. 948- 954. Copies of maps, etc. Code Civ. Pro., sec. 955. Copies of municipal records. Code Civ. Pro., sec. 941. Ordinances. Session Laws, 1901, p. 642. Copies of records. Code "Civ. Pro., sees. 933, 934. 2 Slane Peerage Case, 1835, 5 C. & F. at p. 42. S2 Ph. Ev. 200, 231; Taylor, s. 1545; E. TST. P. 98. 298 A DIGEST OF [Part II. Justice records. Code Civ. Pro., sees. 938, 939, 940. Corporation books, and copies of such boolts. Code Civ. Fro., sees. 930, 931. Marriage certificates. Code Civ. Pro., sec. 928. As to notarial certificates, see Code Civ. Pro., see. 923 et seq. As to admissibility of official certificate made in the course of offi- cial duty, see Code Civ. Pro., sec. 922. As to the admissibility of official certificates on file, see Code Civ. Pro., sec. 922. As to admissibility of an official certificate to the eflfect that a paper has not been found in the office, see Code Civ. Pro., sec. 921. Article 76. general records of the realm. Any record under the charge and superintendence of the Master of the Rolls for the time being, may be proved by a copy certified as a true and authentic copy by the deputy keeper of the records or one of the assistant record keepers, and purporting to be sealed or stamped with the seal of the Record Office.* AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), see. 499 et seg. As to authentication of icopies of the public records of the Federal government, see U. S. Rev. Stat., sees. 882-898 ; Ballew v. U. 8., 160 U. S. 191. New York. As to authentication of copies of public- documents, see N. Y. Code Civ. Pro., sees. 933, 957, 958, 943, 944. 4 1 (& 2 Vict. c. 94, ss. 1, 12, 13. Chap. X.] THE LAW OF EVIDENCE. 299 Abticlb 77.* exemplifications. An exemplification is a copy of a record set out either under the Great Seal or under the Seal of a Court. A copy made by an officer of the Court, bound by law to make it, is equivalent to an exemplification, though it is sometimes called an office copy. An exemplification is equivalent to the original document exemplified. AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sees. 95, 105, i07 ; 1 Green- leaf on Evidence (15th ed.), sees. 488, 501; Taylor on Evidence ( Chamberlayne's 9th ed.), p. 1179 et seq.; Traction Co. v. Board of Works, 57 N. J. L. 316. Copies of any records made by a public officer are sometimes called " office copies." Elwell v. Cunningham, 74 Me. 127. Or " cer- tified copies." Gragg v. Learned, 109 Mass. 167; Samuels v. Bar- rowscale, 104 Mass. 207. The term " exemplification " is also applied to foreign records. Watson V. Walker, 23 N. H. 471; gpaulding v. Vincent, 24 Vt. 501. As to exemplification under act of Congress, see U. S. Rev. Stats., sees. 905, 906. New York. Authorities. — Peck v. Warrington, 9 Wend. 44; Eerendeen v. De Witt, 49 Hun, 53, 17 N. Y. St. R. 298, 15 Civ. Pro. Rep. 114; 8wart- wout V. Cole, 4 Cow. 587; Wood v. Harrow, 11 Johns. 434. The term "exemplification" is also applied to foreign records as well as domestic, and these records may be judicial or non-judicial in character. Lincoln v. Battelle, 6 Wend. 475 ; Lazier v. Westcott, 26 N. Y. 146; Miller v. Livingston, 1 Cai. 349; Quay v. Eagle Fire Insurance Co., Anth. N. P. 237. •See Note XXXI. 300 A DIGEST OF [Part II. A record of a court certified by the clerk of court, the county clerk, and the presiding judge is sufficient, in the absence of specific defects pleaded, under the act of Congress (1 Stat. 122), which provides that the record of foreign courts shall be certified by the judge, chief jus- tice or presiding magistrate, although not attested by the secretary of state under the great seal, as Code, sec. 952 requires. Talamo v. Ermano, 62 N. Y. Supp. 246. Letters of administration. — Jenkins v. Robinson, 4 Wend. 436; Westcott V. Gady, 5 Johns. Ch. 334. Article 78.* copies equivalent to exemplifications. A copy made by an officer of the Court, who is authorised to make it by a rule of Court, but not required by law to make it, is regarded as equivalent to an exemplification in the same Cause and Court, but in other Causes or Courts it is not admissible unless it can be proved as an examined copy. AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sees. 104, 105 ; 1 Greenleaf on Evidence (15th ed.), sec. 507; Traction Co. v. Board of Works, 57 N. J. L. 316. New York. Authority.-— Kellogg v. Kellogg, 6 Barb. 116, 130. Aeticle 79. ceetified copies. It is provided by many statutes that various certificates, official and public documents, documents and proceedings * See Note XXXI. Chap. X.] THE LAW OF EVIDENCE. 301 of corporations, and of joint stock and other companies, and certified copies of documents, bye-laws, entries in registers and other books, shall be receivable in evidence of certain particulars in Courts of Justice, provided they are respec- tively authenticated in the manner prescribed hf such stat- utes.^ Whenever, by virtue of any such provision, any such certificate or certified copy as aforesaid is receivable in proof of any particular in any Court of Justice, it is admis- sible as evidence if it purports to be authenticated in the manner prescribed by law without proof of any stamp, seal, or signature required for its authentication or of the official character of the person who appears to have signed it.« Whenever any book or other document is of such a pub- lic nature as to be admissible in evidence on its mere pro- duction from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom is admissible in 5 8 & 9 Vict. c. 113, preamble. Many such statutes are specified in Taylor, ss.l601 n.; 1611 n. See, too, R. N. P. 98, 99, and the Appen- dix to this work. e/6id. s. 1. I believe the above to be the effect of the provision, but the language is greatly condensed. Some words at the end of the section are regarded as unmeaning by several text writers. See e. g., Roscoe's N. P., p. 100; 2 Ph. Ev. 241; Taylor, 7th ed. s. 7, note 1. Mr. Taylor says that the concluding words of the section were intro- duced into the Act while passing through the House of Commons. He adds, they appear to have been copied from 1 & 2 Vict. c. 94, s. 13 (see art. 76), "by some honourable member who did not know dis- tinctly what he was about." They certainly add nothing to the sense. 302 A DIGEST OF [Part II. proof of its contents/ provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted. Every such officer must furnish such certified copy or extract to any person apply- ing at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding f ourpence for every folio of ninety words.® AMERICAN NOTE. General. Authorities. — 2 Wharton on Evidence, sees. 1313, 1314; Enfield v. Ellington, 67 Conn. 459. Certified copies, to be admissible, must be authorized by law. Jay V. East Livermore, 56 Me. 107 ; Wayland v. Ware, 109 Mass. 248 ; People V. Lee, 112 111. 113; Frances v. Newark, 58 N. J. L. 522. And also be properly authenticated. Keichline v. Keichline, 54 la. 75; Galvin v. Palmer, 113 Cal. 46; Bixby v. Garskadden, 55 la. 533; Kingman v. Coioles, 103 Mass. 283. In some States such copies may be used, the custom from time immemorial justifying their admission. Ghamberlain v. Ball, 15 Gray (Mass.), 352. As to proof of foreign records, see Butrick v. Allen, 8 Mass. 273, 5 Am. Dec. 105. Federal statutes.— U. S. Rev. Stat., sees. 882-900, 905, 906, 908. As to their construction, see 1 Greenleaf on Evidence (15th ed. ), sees. 504-506. A copy of the record of an examination in bankruptcy proceedings lacking the certificate of the judge required by United States Ee- vised Statutes, section 905, is inadmissible in evidence. Smith v. Brockett, 69 Conn. 500. New York. Statutes.— 'N. Y. Code Civ. Pro., sees. 921-924, 928-941, 943-947. 957-962; People v. D'Argencour, 95 N. Y. 624, 2 N. Y. Cr. 267, af- 7 The words " provided it be proved to be an examined copy or extract or," occur in the Act, but are here omitted because their effect is given in Article 75. 8 14 & 15 Vict. c. 99, s. 14. Chap. X.] TEE LAW OF EVIDENCE. 303 firming 32 Hun, 178. But the special methods of proof provided by statute do not exclude the common-law methods. Code Civ. Pro., sec. 962; Ifew York Car Oil Co. v. Richmond, 6 Bosw. 213, 19 How. Pr. 505. And see Bissell v. Pea/rce, 28 N. Y. 252. Certified copies, to be admissible, must be authorized by law. Water Gommrs. v. Lansing, 45 N. Y. 19; Parr v. G-reenbush, 72 N. Y. 463 ; DeUen v. Delaioare & Hudson Canal Co., 29 N. Y. 634, 24 Barb. 362; Troy & Rutland Railroad Go. v. Kerr, 17 Barb. 581. First paragraph of text. — St. John v. Croel, 5 Hill, 573 ; Baddock V. Kelsey, 3 Barb. 100 ; Devoy v. Ifew York, 35 Barb. 264, 22 How. Pr. 226; Clute v. Ennerich, 21 Hun, 122; Redfort v. Snow, 46 Hun, 370. Certificates of secretary of State — Comptroller. — A certified copy of a grant by letters-patent is admissible in evidence where the orig- inal patent is lost; for siich a grant, being an act of the governor, should, in the absence of legislative action, be enrolled in the office of the secretary of state, and such a copy is a transcript from a rec- ord kept pursuant to law, within the meaning of sec. 933 of the Code of Civil Procedure. New York Central & Hudson River R. R. Go. v. Broclcway Brick Co., 10 App. Div. 387, 41 N. Y. Supp. 762; Silver Creek v. Buffalo, N. Y. d Philadelphia R. R. Co., 22 Wkly. Dig. 410; People V. Turner, 49 Hun, 466, 2 N. Y. Supp. 253, 117 N. Y. 227. Gertifieates of records of courts. — Mackinnon v. Barnes, 66 Barb. 91; Maynard v. Thompson, 8 Wend. 393; Wilkinson v. Vorce, 41 Barb. 370; Davey v. Lohrmann, 39 N. Y. St. P. 207, 14 N. Y. Supp. 922. Certificates of commissioners — Boards. — Mackinnon v. Barnes, 76 Barb. 91 ; Alsheimer v. Boon, 65 N. Y. Supp. 475, 31 Misc. Rep. 333; Buffalo L. T. & S. D. Go. v. Knights Templar td M. M. A. Assn., 126 N. Y. 450, affirming 56 Hun, 303, 30 N. Y. St. R. 464, 9 N. Y. Supp. 346; People v. De Graff, 6 N. Y. St. R. 412, 5 N". Y. Cr. 561. Certificates of deeds, mortgages, cic. — Clark v. Clark, 47 N. Y. 664; Van Cortlandt v. Tozer, 17 Wend. 338, 20 Wend. 423; Montresor V. Rice, 3 Wend. 180; Doe v. Roe, v Johns. Cas. 402; Thurman v. Cameron, 24 Wend. 87; Sunderlin v. Wynian, 10 Hun, 493. See Max- loell V. Inman, 42 Hun, 265 ; George v. Toll, 39 How. Pr. 497 ; Bissell v. Pea7-ce, 28 N. Y. 252. Sustaining second paragraph of text. — Thurman v. Cameron, 24 Wend. 87 ; Trustees of Canandarqua Academy v. McKechnie, 19 Hun, 62, 90 N. 1. 618. But the effect of such copies or certificates is not regarded as conclusive, and they may be rebutted. Trustees of Ganan- 304 A DIGEST OF [Part II. darqua Academy v. McKechnie, 19 Hun, 02, 90 N. Y. 618 ; N. Y. Code Civ. Pro., sees. 921-924, 928, 936. See also New York cases under article 77. Aeticlb 80. DOCTJMEITTS ADMISSIBLE THEOUGHOUT THE QUEEN's DOMINIONS. If by any law in force for the time being any document is admissible in evidence of any particular either in Courts of Justice in England and Wales, or in Courts of Justice in Ireland, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official char- acter of the person appearing to have signed the same, that document is also admissible in evidence to the same extent and for the same purpose, without such proof as aforesaid, in any Court or before any judge in any part of the Queen's dominions except Scotland.® Aeticle 81. queen's peintees' copies. The contents of Acts of Parliament, not being public Acts, may be proved by copies thereof purporting to be printed by the Queen's printers ; 9 Consolidates 14 & 15 Viet. c. 99, ss. 9, 10, 11, 19. Sect. 9 provides that documents admissible in England shall be admissible in Ireland; sect. 10 is the converse of 9; sect. 11 enacts that documents admissible in either shall be admissible in the "British Colonies;" and sect. 19 defines the British Colonies as including India, the Channel Islands, the Isle of Man, and " all other possessions " of the British Crown, wheresoever and whatsoever. This cannot mean to include Scotland, though the literal sense of the words would perhaps extend to it. Chap. X.] THE LAW OF EVIDENCE. 305 The journals of either House of Parliament ; and Koyal proclamations, may be proved by copies thereof purporting to be printed by the printers to the Crown or by the printers to either House of Parliament.^" Aeticle 82. peoof of leisit statutes. The copy of the statutes of the kingdom of Ireland en- acted by the Parliament of the same prior to the union of the kingdoms of Great Britain and Ireland, and printed and published by the printer duly authorised by King George III. or any of his predecessors, is conclusive evi- dence of the contents of such statutes.^-' Aeticle 83. peoclamations, oedees in cotjisrcil, etc. The contents of any proclamation, order, or regulation issued at any time by Her Majesty or by the Privy Council, and of any proclamation, order, or regulation issued at any time by or under the aiithority of any such department of the Government or officer as is mentioned in the first 10 8 & 9 Viet. I.-. 113, a. 3. Is there any difference between the Queen's printers and the printers to the Crown? 11 41 Geo. III. c. 90, s. 9. 30 306 A DIGEST OP [Part II. column of the note^^ hereto, may be proved in all or any of the modes hereinafter mentioned; that is to say — (1) By the production of a copy of the Gazette purport- ing to contain such proclamation, order, or regulation : 12 Column 1. Name of Department or Officer. The Commissioners of the Treas- ury. The Commissioners for executing the OlEee of Lord High Ad- miral. Secretaries of State. Committee of Privy Council for Trade. The Local Government Board (which takes the place of the Poor Law Board, inter alios ) . [Schedule to 31 The Postmaster General. The Board of Agriculture. Column 2. Names of Certifying Officers. Any Commissioner, Secretary, or Assistant Secretary of the Treasury. Any of the Commissioners for executing the Office of Lord High Admiral or either of the Secretaries to the said Com- missioners. Any Secretary or under-Secre- tary of State. Any Member of the Committee of Privy Council for trade or any Secretary or Assistant Secre- tary of the said Committee. The President or an ex-officio member of the Board; or any Secretary or Assistant Secre- tary of the Board (34 & 35 Vict. c. 70, s. 5). 32 Viet. c. 37.] Any Secretary or Assistant Sec- retary of the Post Office (33 & 34 Viet. c. 79, s. 21 ) . The President or any member of the Board, or the Secretary of the Board, or any person au- thorised by the President to act on his behalf (58 Vict. e. 9, >. 1). Chap: X.] THE LAW OF EVIDENOM. 307 (2) By the production of a copy of such proclamation, order, or regulation purporting to be printed by the Govern- ment printer, or, where the question arises in a Court in anj British colony or possession, of a copy purporting to be printed under the authority of the legislature of such Brit- ish colony or possession : (3) By the prodtiction, in the case of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any of the said departments or officers, by the production of a copy or extract purporting to be cer- tified to be true by the person or persons specified in the second column of the said note in connection v?ith such de- partment or officer. Any copy or extract made under this provision may be in print or in writing, or partly in print and partly in writing. ISTo proof is required of the handvwiting or official posi- tion of any person certifying, in pursuance of this pro- vision, to the truth of any copy of or extract from any proc- lamation, order or regulation.-'^ Subject to any law that may be from time to time made by the legislature of any British Colony or possession, this provision is in force in every such colony and possession.-'* Where any enactment, whether passed before or after June, 1882, provides that a copy of any Act of Parliament, 13 31 & 32 Viet. e. 37, s. 2. " 31 & 32 Viet. c. 37, s. 3. 308 A DIGEST OF [Part II. proclamation, order, regulation, rule, warrant, circular, list, gazette, or document shall be conclusive evidence, or be evidence, or have any other effect when purporting to be printed by the Government printer, or the Queen's printer, or a printer authorised by Her Majesty, or otherwise under Her Majesty's authority, whatever may be the precise ex- pression, used, such copy shall also be conclusive evidence, or evidence, or have the said effect, as the case may be, if it purports to be printed under the superintendence or au- thority of Her Majesty's Stationery Office. ■'^ Aeticlb 84. foeeign and colonial acts of state, judgiients, etc. All proclamations, treaties, and other acts of state of any foreign state, or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any Court of Justice in any foreign state or in any British col- ony, and all affidavits, pleadings, and other legal docu- ments filed or deposited in any such Court, may be proved either by examined copies or by copies authenticated as hereinafter mentioned; that is to say — If the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or British possession to which the original document belongs ; IB 45 Viet. u. 9, s. 2, Documentary Evidence Act, 1882. Sect. 4 ex- tends the Act of 1868 to Ireland. Chap. X.] TEE LAW OF EVIDENCE.. 309 And if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign Court, in any British possession, or an affidavit, pleading, or other legal document filed or deposited in any such Court, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or other Court to vphich the original, document belongs, or, in the event of such Court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the said Court, and such judge must attach to his signature a statement in writing on the said copy that the court whereof he is judge has no seal ; If any of the aforesaid authenticated copies purports to be sealed or signed as hereinbefore mentioned, it is admis- sible in evidence in every case in which the original docu- ment could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signa- ture, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement.-'' Colonial laws assented to by the governors of colonies, and bills reserved by the governors of such colonies for the signification of Her Majesty's pleasure, and the fact (as the case may be) that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the governor, may be proved {-prim facie) by a copy certified by the clerk or )fi 14 & 15 Vict. e. !)0, s. 7. 310 A DIGEST OF [Paet II. other proper officer of the legislative body of the colony to be a true copy of any such law or bill. Any proclamation purporting to be published by authority of the governor in any newspaper in the colony to which such law or bill re- lates, and signifying Her Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such re- served bill, is prima facie proof of such disallowance or assent.-''' Article 84a. answers of secretary of state as to foeeign jurisdiction. The answers of a Secretary of State to questions in a document under the seal of a Court in Her Majesty's do- minions or held under the authority of Her Majesty, framed so as to raise any question which has arisen in any proceedings, civil or criminal, in such Court, as to the ex- istence, or extent, of any jurisdiction of Her Majesty in a foreign country, are conclusive evidence of the matters therein contained; and the decision of the Secretary of State, are for the purpose of the proceedings, final. ^* IT 28 & 29 Vict. i;. 63, s. 6. " Colony " in this paragraph means " all Her Majesty's possessions abroad " having a legislature, " ex- cept the Channel Islands, the Isle of Man, and India." " Colony " in the rest of the. article includes those places. 18 53 & 54 Vict. c. 37, s. 4. Chap. XI.] TEE LA^Y OF EVIDENCE. 311 CHAPTEE XI. PRESUMPTIONS AS TO DOCUMENTS. Article 85. peestlmption as to date of a document. When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practised, and would, if practised, in- jure any person, or defeat the objects of any law.^ Illustrations. (a) An instrument admitting a debt, and dated before the act of bankruptcy, is produced by a bankrupt's assignees, to prove the peti- tioning creditor's debt. Further evidence of the date of the transac- tion is required in order to guard against collusion between the as- signees and the bankrupt, to the prejudice of creditors whose claims date from the interval between the act of bankruptcy and the adjudi- cation.2 ( 6 ) In a petition for damages on the ground of adultery letters are produced between the husband and wife, dated before the alleged 1 1 Ph. Ev. 482-3 ; Taylor, s. 169 ; Best, s. 402. 2 Anderson v. Weston, 1840, 6 Bing. N. C. at p. 301; Sinclair v. Baggallay, 1838, 4 M. & W. 312. 312 A DIGEST OF [Part II. adultery, and showing that they were then on aflfectionate terms. Further evidence of the date is required to prevent collusion, to the prejudice of the person petitioned against.3 AMERICAN NOTE. General. Authorities. — 2 Wharton on Evidence, sees. 077, 988, 1312; 8 Am. & Eng. Encyclopedia of Law (2d ed.), p. 729. First clause of text. Pullen v. Hutchinson, 25 Me. 249; Cutis V. York Mfg. Co., 18 Me. 190; Sweetser v. Lowell, 33 Me. 446; Hill V. McNichol, 80 Me. 209; Brooks v. Chaplin, 3 Vt. 282, 23 Am. Dec. 209; Smith v. Porter, 10 Gray (Mass.), 66, 68; Cranson v. Goss, 107 Mass. 439 ; Pringle v. Prinyle, ,59 Pa. 281. See Scohey v. Walker, 114 Ind. 254. Such presumption is rebuttable. Parke v. Neely, 90 Pa. 52; Knisely v. Sampson, 100 111. 373; Dudley v. Cadwell, 19 Conn. 218; New Haven County Bank v. Mitchell, 15 Conn. 206. Order of execution. — Loomis v. Pingree, 43 Me. 299. Compare Hagerty v. White, 69 Wis. 317. It presents a question for the jury. Gilman v. Moody, 43 N. H. 239. If an attachment of lands and a deed of the same by the debtor are made on the same day, and the attachment appears on the town records to have been made six hours before the deed was lodged for record, it will be presumed, in the absence of all evi- dence to the contrary, that the deed was delivered after the attach- ment. Bissell V. Nooney, 33 Conn. 417. In ejectment against a mortgagor, by one claiming under a deed with full covenants of title from the holder of a second mortgage, the plaintiff introduced, in proof of his grantor's title, a quitclaim deed to him from the holder of the first mortgage, executed on the same day with the deed to himself, and to which his own signature was affixed as one of the witnesses. Both deeds were also acknowl- edged before and witnessed by the same magistrate. Held, that it was unnecessary to introduce extraneous evidence to show that the quitclaim deed was executed and delivered before the other, as it was reasonable to suppose that such was the fact, and the trans- action ought to be so construed as to eari'y out the obvious intent of the parties. Dudley v. Cadwell, 19 Conn. 225. 3 Houlston V. Smith, 1825, 2 C. & P. at p. 24. Chap. XI.] TTIE LAW OF EVIDENCE. 313 New York. Authorities. — C'o$tir/an v. Gould, 5 Den. 290, 293. Date presumed correct. — ■ Beck v. Cole, 4 Sand. 79 ; Livingston v. ArnouoB, 56 N. Y. 507, 519; RoUnson v. Wheeler. 25 N. Y. 252; Gos- tigan v. Gould, 5 Den. 290; Harris v. Norton, 16 Barb. 264. Compare Remington Co. v. 0' Dougherty, 81 N. Y. 474. NV^here a deed is proved to be antedated, the burden of proving the time of its execution is upon the party offering it. Costigan v. Gould, 5 Den. 290. The presumption is, ,prirna facie only. Germania Bank v. Distler, 67 Barb. 333, 64 N. Y. 642, aflirming 4 Hun, 633; Jackson v. Schoon- maker, 2 Johns. 230; Jackson v. Barft, 4 Johns. 230, 4 Am. Dec. 267. In New York now the presumption that a deed was delivered on the day of its date does not prevail with respect to deed not acknowl- edged and having no subscribing witnesses. Elsey v. Metcalf, 1 Den. 323; Harris v. Norton, 16 Barb. 264; Center v. Morrison, 31 Barb. 155. But the presumption still prevails if the deed has been acknowl- edged or proved. Robinson v. Wheeler, 25 N. Y. 252. Order of execution. — Jones v. Phelps, 2 Barb. Ch. 440. See Mott V. Eiehtmyer, 57 N. Y. 49, 65. Article 86. peesumption as to stamp of a document. When any document is not produced after due notice to produce, and after being called for, it is presumed to have been duly stamped,* unless it be shown to have remained unstamped for some time after its execution.^ i Closmadeuc v. Carrel, 1856, 18 C. B. 36. In this case the growth of the rule is traced, and other cases are referred to, in the judgment of Cresswell, J. 5 Marine Investment Coinpany v. Harisidc, 1872, L. R. 5 H. L. 624. 314 A DIGEST OF [Paet II. Aeticle 87. peesttmptiob' as to sealing and deliveey of deeds. When any document purporting to be and stamped as a deed, appears or is proved to be or to have been signed and duly attested, it is presumed to have been sealed and de- livered, although no impression of a seal appears thereon.® AMERICAN NOTE. General. Authorities. — -2 Wharton on Evidence, sec. 1314; Ward v. Lewis, 4 Pick. (Mass.) 518, 520; Mill Dam Foundry v. Hovey, 21 Pick. (Mass.) 417, 428; Bradford v. Randall, 5 Pick. (Mass.) 496; Brolley V. Lapham, 13 Gray (Mass.), 294; Chilton v. People, 66 111. 501; State V. Eumierd, 54 Md. 327; State v. Thompson, 49 Mo. 188; Cadell V. Allen, 99 N. C. 542. Modifying rule of text. Boothhay v. Giles, 68 Me. 160. Any irregularity in this regard may be corrected in an equitable proceeding. Harding v. Jewell, 73 Me. 426. See also State v. Peck, 53 Me. 284, 286; Barnett v. Anott, 53 Vt. 120; Probate Ct. v. May, 52 Vt. 182; Eankleman v. Peterson, 154 111. 419. A deed, regular upon its face, and found in the hands of the grantee, is presumed to have been delivered. Butrick v. Tilton, 141 Mass. 93; Harshburger v. Carroll, 163 111. 636. Compare Johnson v. Seidel, 150 Pa. 397; Stevens v. Castel, 63 ilich. 111. New York. Authorities. — See Todd \'. Union Dime Inst., 118 N. Y. 337; Mer- ritt V. Cornell, 1 E. D. Smith. 335. As to the rule in equity, see Barnard V. Gantz, 140 N. Y. 249. A seal upon an executory instrument is only presumptive ervidenoe of consideration, which may be rebutted. Code Civ. Pro., sec. 840. eUall V. Bainbridge, 1848, 12 Q. B. 699, at p. 710. ffr SandilanJ.'i. 1871, L. R. 6 C. P. 411. Chap. XI.] THE LAW OF EVIDENCE. 315 Aeticle 88. peesumptioit as to documbnts thiety yeaes old. Where any document purporting or proved to be thirty years old is produced from any custody which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document vs^hich purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a docu- ment executed or attested, that it was duly executed and attested, by the persons by whom it purports to be executed and attested ; and the attestation or execution need not be proved, even if the attesting witness is alive and in court. Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be ; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.^ AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sees. 194-199, 703, 732; 1 Greenleaf on Evidence (loth ed.), sees. 21, 142, 143, 144, 570; 2 Am. & Eng. Encyclopaedia of Lav? (2d ed.), p. 324 et seq.; Crane v. Marshall, 16 Me. 27, 33 Am. Dec. 631; Goodwin v. Jack, 62 Me. 414; Clark v. Wood, 34 N. H. 447; Lawrence v. Tennant, 64 N. H. 532, 15 Atl. 543; Applegate v. Lexington, etc., Mining Co., 117 U. S. 255 ; Bell v. Brewster, 44 0. St. 690 ; Fowler v. Scott, 64 Wis. 509 ; Geer v. Lumher Co., 134 Mo. 85; Scharf v. Keener, 64 Pa. 376; Stoclcbridge v. West Stockbridge, 14 Mass. 257 ; Floyd v. Tewkshury, 7 2 Ph. Ev. 245-8 ; Starkie, 521-6 ; Taylor, s. 87 and ss. 658-667 ; Best, s. 220. 316 A DIGEST OF [Part II. 12P Mass. 362; Rust v. Boston Mill, 6 Pick. (Mass.) 1.58; Monumoi Great Beach v. Rogers, 1 Mass. 159; Pitt v. Temple, 2 Mass. 538; Kiny v. Little, 1 Cush. (Mass.) 436; Boston v. Weymouth, 4 Cush. (Mass.) 538; Chenery v. Waltham, 8 Oush. (Mass.) 327; Boston v. Richardson, 13 Allen (Mass.), 146; Palmer v. Stevens, 11 Cush. (Mass.) 147; Tolm,cm v. Emerson, 4 Pick. (Mass.) 160; Boston v. Richardson, 105 Mass. 351; Whitman v. Shaw, 166 Mass. 451, 460; Pettengill v. Boynton, 139 Mass. 244, 29 N. E. 655; (?reem v. /»fea6- iio»*s of Chelsea, 24 Pick. (Mass.) 71; Whitman v. Heneherry, 73 111. 109. A document (e. g., "land plans" of a railroad) produced from its proper custody where it lias been kept more than thirty years is admitted without other proof of its authenticity, i. e., that it was what it purported to be. New Haven v. N. Y., N. 3. & H. R. R. Co., 72 Conn, 232. Deeds. — • Deeds come within the rule. Thruston v. Masterson, 9 Dana (Ky.), 228; Cook v. Totton, 6 Dana (Ky.), 108; Henthorn v. Doe, 1 Blaekf. (Ind.) 157; Morris v. Gallanan, 105 Mass. 129. Powers of attorney. — And powers of attorney. Winn v. Patter- son, 9 Pet. (U. S.) 663. Bonds. — -And bonds. Walton v. Coulson, 1 McLean (U. S.), 120; Goulson V. Walton, 9 Pet. (U. S.) 62; Boddy v. Barryman, 3 Har. & M. (Md.) 581; Bennett v. Runyon, 4 Dana (Ky.), 422. Records. — And records. JAttle v. Downing, 37 N. H. 355 ; Goodwin V. Jaclc; 62 Me. 414. Licenses. — And licenses. Boston v. Richardson, 105 !Mass. 351. Military pay-rolls. — And pay-rolls. Bell v. Brewster, 44 0. St. 690. Surveys, field-books, and maps. — And surveys, field-books, and maps. Aldrich v. Griffith, 66 Vt. 390; Bart v. Gage, 6 Vt. 170; Bos- ton Water Power Co. v. Hanlan, 132 Mass. 483; Holt v. Maverick, 5 Tex. Civ. App. 650. Receipts and letters. — And letters and receipts. McReynolds v. Langenberger, 57 Pa. St. 13. Computation of age. — The time is computed to the day when the instrument is admitted in evidence, not to that when the suit is in- stituted. .Johnson v. Shaif, 41 Tex. 428; -Johnson v. Timmons, 50 Tex. 521; Bass v. Sevier, 58 Tex. 567; Gardner v. Granniss, 57 Ga. 555. In some States the age of -i will is reckoned from the death of the testator. Shaller v. Brand, 6 Binn. (Pa.) 439, 6 Am. Dec. 482. Chap. XI.] THE LAW OF EVIDENCE. 317 Possession under deed. — In ease of deeds of land in order that the presumption arise as stated in the text, some courts hold that the grantee's possession of the land must be shown. Waldron v. Tuttle, 4 N. H. 371; Bank of Middlelmry v. Jfutland, 33 Vt. 414; Borner V. alley, 14 N. H. 85; Clark v. Wood, 34 N. H. 447; Crane v. Mar- shall, 16 Me. 29, 33 Am. Dee. 631. The prevailing will is, however, to the eontrary. 2 Am. & Eng. Eneyelopsedia of Law (2d ed. ), p. 329, and eases eited.. And it is generally held that the instrument may be shown to be genuine by other corroborative evidence. Long v. McDow, 87 Mo. 197 ; Whit- man V. Eeneberry, 73 111. 109; Nowlin v. Burwell, 75 Va. 551 ; Walker V. Walker, 67 Pa. 185; Boston v. Richardson, 105 Mass. 351. Custody. — Whitman v. Shaw, 166 Mass. 460 (quoting this article ) . Secondary evidence. — The contents of a lost ancient evidence may be proved by a copy. Winn v. Patterson, 9 Pet. (U. S.) 667. Or oral evidence. McReynolds v. Langenierger, 57 Pa. St. 33. The execution of the original must, however, be proved by circum- stances, such as possession or marks of age on the paper. Schunior V. Russell, 83 Tex. 95. New York. Authorities. — Doe v. Campbell, 10 Johns. 475; Jackson v. Laroway, 3 Johns. Cas. 286; Fetherly v. Waggoner, 11 Wend. 602; Jackson v. Laquere, 5 Cow. 226; Doe v. Phelps, 9 Johns. 169. An ancient deed (e. g., forty- four years old), is admissible, the handwriting of one of the subscribing witnesses, who is dead, being proved, and it is not necessary to account for the other witness. Livingston V. Burton, 11 Johns. 64. An original assignment of a right to receive royalties over thirty year old proves itself as an ancient deed. Wolcott v. Merchant's Gargling Oil Co., 60 N. Y. Supp. 862, 45 App. Div. 379. The seal of an ancient deed, purporting to be the deed of a corpora- tion no longer existing, need not be proved. Eoopes v. Auburn Water- Works Co., 37 Hun, 568. Where an ancient deed is not signed by one of three executors, but is signed by the others, it will be presumed that the third refused to join or was unable to do so. Fleming v. Burnham, 36 Hun, 456. Wills. — Wills come within the rule. Jackson v. Luquere, 5 Cow. 221; Fetherly v. Waggoner, 11 Wend. 599; Staring v. Boiven, 6 Barb. 109. Leases. — And so do leases. Hewlett v. Cock, 7 Wend. 371. 318 A DIGEST OF [Part II. Alterations. — ■ The one claiming under the ancient instrument should explain material alterations. Berrick v. Malin, 22 Wend. 388. The presumption of genuineness arising from the age of a. docu- ment is rebutted by proof of alterations in it. Ridgely v. Johnson, 11 Barb. 540. Computation of age. — The age of a will is reckoned from the death of the testator. Staring v. Bowen, 6 Barb. 109. See also Jackson V. Laquere, 5 Cow. 221; Jackson v. Laroway, 3 Johns. Cas. 283; Jackson v. Blanshaw, 3 Johns. 292, 3 Am. Dec. 485 ; Bewlett v. Goek, 7 Wend. 371. Possession under deed. — Age alone does not authenticate the in- strument. There must be either proof of execution or corroborative evidence. Martin v. Rector, 24 Hun, 27 ; Jackson v. Luquere, 5 Cow. 221.. Evidence of possession should be produced, if possible, as being the best corroborative evidence. Willson v. Betts, 4 Den. 201. In the case of a conveyance of land, the possession of the land un- der the conveyance may be sufficient proof of its genuineness. Doe V. Campbell, 10 Johns. 475; Doe v. Phelps, 9 Johns. 169; Eoopes v. Auiurn Water-Works Co., 37 Hun, 571. Possession of part of the land is enough. Jackson v. Davis, 5 Cow. 123, 15 Am. Dec. 451 ; Jackson v. Luquere, 5 Cow. 221. In the case of wild lands, no possession need be shown. Jackson V. Laroway, 3 Johns. Cas. 283. The rule is stated in Jackson v. Laroway, 3 Johns. Cas. 286, by Eadcliff, J., as follows : " The general rule on this subject I take to be that a deed appearing to be of the age of thirty years may be given in evidence without proof of its execution, if the possession be shown to have accompanied it, or where no possession has accom- panied it, if such account be given of the deed as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine." Possession. — If the instrument be a conveyance of land, possession has been held not to be absolutely necessary. Willson v. Betts, 4 Den. 201; Clark v. Otoens, 18 N. Y. 434; Enders v. Sternbergh, 2 Abb. Dec. 31; Jackson v. Laroipay, 3 Johns. Cas. 283; Eeiclett v. Cock, 7 Wend. 371; Jackson v. Lamb, 7 Cow. 431; Jackson v. Lu- quere, 5 Cow. 221; Ensign v. McKinney, 30 Hun, 254. And the con- trary has likewise been held. Ridgely v. Johnson, 11 Barb. 527; Troup V. Eiirlbut, 10 Barb. 354; Northrop v. Wright, 7 Hill, 476; Chap. XI.] THE LAW OF EVIDENCE. 319 Jaclcson v. Christmas, 4 Wend. 277 ; Jackson v. Blenshaw, 3 Johns. 299, 3 Am. Deo. 485; Crotoder v. Hopkins, 10 Paige, 183; Jackson v. Davis, 5 Cow. 123, 15 Am. Dee. 451. Aeticle 89. presumption as to alteration's. No person producing any document which upon its face appears to have been altered in a material part can claim under it the enforcement of any right created by it, unless the alteration was made before the completion of the docu- ment or with the consent of the party to be charged under it or his representative in interest. This rule extends to cases in which the alteration was made by a stranger, whilst the document was in the custody of the person producing it, but without his knowledge or leave.* Alterations and interlineations appearing on the face of a deed are, in the absence of all evidence relating to them, presumed to have been made before the deed was com- pleted.® Alterations and interlineations appearing on the face of a will are, in the absence of all evidence relating to them, presumed to have been made after the execution of the will." spigot's Case, 1604, 11 Coke's Rep. 47; Davidson v. Cooper, 1843, 11 M. & W. 778; 1844, 13 M. & W. 343: Aldotis v.' Cornwell, 1868, L. R. 3 Q. B. 573. This qualifies one of the resolutions in Pigot's Case. The jud.gment reviews a great number of authorities on the subject. 9 Doe V. Catomore, 1851, 16 Q. B. 745. 10 Simmons v. Rudall, 1880, 1 Sim. (N. S.) 136. 320 A DIOEST OF [Paet II. There is no presumption as to the time when alterations and interlineations, appearing on the face of writings not under seal, were made^^ except that it is presumed that they were so made that the making would not constitute an offence.''^ An alteration is said to be material when, if it had been made with the consent of the party charged, it would have affected his interest or varied his obligations in any way whatever. An alteration which in no way affects the rights of the parties or the legal effect of the instrument, is immaterial.-'^ AMERICAN NOTE. General. Authorities. — 2 Am. & Eng. Encyclopsedia of Law (2d ed.), p. 181 ei seq.; 1 Greenleaf on Evidence (15tli ed. ), sec. 564 et seq. First paragraph, of text. Angle v. Life Ins. Co., 92 U. S. 330; Russell V. Russell, 36 Minn. 376; Hunt v. Gray, 35 N. J. L. 227: Craighead v. McLoney, 99 Pa. 211; Charlton v. Rccd, 61 la. 166: Starr v. Lyon, 5 Conn. 540: Coit v. Starkweather, 8 Conn. 293; Osgood V. Stevenson, 143 Mass. 399; Warring v. Williams, 8 Pick. (Mass.) 322; Wheelock v. Freeman, 13 Pick. (Mass.) 165; Davis v. Jenney, 1 Mete. (Mass.) 221; Boston v. Benson. 12 Cush. (ilass.) 61; Agawam Bank v. Sears, 4 Gray (Mass.), 95; Doane v. Eldridge. 16 Gray (Mass.), 255; Fay v. Smith, 1 Allen (Mass.), 477; Stoddard V. Penniman, 108 Mass. 366; Draper v. Wood, 112 Mass. 315; Stod- dard V. Penniman, 113 Mass. 386; Cape Ann Nat. Bank r. Burns, 129 Mass. 596. Some authorities hold that all alterations are presumed to have been made after execution. Burnham v. Ayer, 35 N. H. 3,t1. 11 Knight v. Clements, 1838, 8 A. & E. 215. 12 R. V. Gordon, 1855, Dearsley & P. 592. 13 This appears to be the result of many cases referred to in Tay- lor, ss. 1822, 1823; see also the judgments in Davidson v. Cooper and Aldous V. Cornwell, referred to above. Chap. XI.] THE LAW OF EVIDENCE.. 321 Others, that there is no presumption aa to when alterations are made, but that the whole question is for the jury. Boothby v. Stanley, 34 Me. 515, 516; Smith v. U. S., 2 Wall. 219, 232; Citizens' Nat. Bk. V. Williams, 174 Pa. 66; Wilson v. Hotchhiss' Estate, 81 Mich. 172; Eodnett v. Pace, 84 Va. 873; Sisson v. Pearson, 44 111. App. 81; Wilde v. Armsby, 6 Cush. (Mass.) 314, 318; Simpson v. Davis, 119 Mass. 269, 270, 20 Am. Rep. 324. In this country the rule does not extend to alterations made by a, stranger without the consent of the person having custody. Nichols V. Johnson, 10 Conn. 192, 196; Hayden v. Goodnow, 39 Conn. 164; Bailey v. Taylor, 11 Conn. 541 ; Mix v. Royal Ins. Co., 169 Pa. 639; Sewing Machine Co. v. Dakin, 86 Mich. 581; Orlando v. Gooding, 34 Fla. 244; Drmn v. Drum, 133 Mass. 566; State v. Mc- Gonigle, 101 Mo. 353. Immaterial alterations. — Burnham v. Ayer, 35 N. H. 351 ; Robert- son V. Hay, 91 Pa. 242; Pruden v. Nester, 103 Mich. 540; Ryan v. First Nat'l Bk., 148 111. 349; ilersman v. Werges, 112 U. S. 139; Ful- ler V. Green, 64 Wis. 159; Kingston Bank v. Bosserman, 52 Mo. App. 269 (contra); Church v. Fowle, 142 Mass. 12; Brown v. Pinkham, 18 Pick. (Mass.) 172; Fose v. Z>oi;an, 108 Mass. 155, .11 Am. Rep. 333; i7aic?i v. Hatch, 9 Mass. 307; Smith v. Orooker, 5 Mass. 538; Com. V. Emigrant Sav. Bank, 98 Mass. 12; TlMTCi v. Adams, 6 Mass. 519; Ames V. Colhurn, 11 Gray (Mass.), 390. Any alteration in a deed, to render it void, must be a material one; that is, one which causes the deed to speak a language differ- ent in legal effect from that which it spoke originally. Murray v. Klinzing, 64 Conn. 85. New York. A material alteration, made by the party to the instrument, vi- tiates it. Tillon V. Clinton, etc., Mut. Ins. Co., 7 Barb. 564 ; Kennedy v. Crandell, 3 Lans. 1. And this is so even if the alteration does not preju- dice the other party. Woodworth v. Bank of America, 19 Johns. 391, 10 Am. Dec. 239; McVean v. Scott, 46 Barb. 379; Mount Morris Bank v. Lawson, 10 Misc. Rep. 359. And even though there be no actual fraud. Booth v. Powers, 56 N. Y. 22. The rule applies particularly to bills and notes. Bruce v. West- cott, 3 Barb. 374; Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382; Clute v. Small, 17 Wend. 238; Woodworth v. Bank of North America, 19 Johns. 391, 10 Am. Dec. 239; Nazro v. Fuller, 24 Wend. 374. 31 322 A DIGEST OF [Paet II. Alteration before delivery. — An alteration to vitiate must be made after execution and delivery. Banning v. Vrooman, 12 N. Y. St. R. 393. Alteration by stranger. — Disapproving rule of the text. Van Brunt V. Eoff, 35 Barb. 501 ; Diiismore v. Duncan, 57 N. Y. 573, 15 Am. Rep. 534; Rees v. Overbaugh, 6 Cow. 746; Solon v. WilUaitis- burgh Sav. Bank, 114 N. Y. 122. An agent acting without authority is a stranger. Rees v. Over- laugU, 6 Cow. 746. Immaterial alterations. — Immaterial alterations do not vitiate. Flint V. Craig, 59 Barb. 319; Knap-p v. Maltly, 13 Wend. 587. As to the definition of immaterial alterations, see Reeves v. Pier- son, 23 Hun, 185 ; Booth v. Powers, 56 N. Y. 22. To be material, the alteration must change the legal effect of the instrument. Martin v. Tradesmen's Ins. Co., 101 N. Y. 498. The materiality of an alteration is for the court. Tillon v. Clin- ton, etc., Mut. Ins. Co., 7 Barb. 564 ; Woodworth v. Bank of America, 19 Johns. 396, 10 Am. Dec. 239. Non-apparent alterations. — If no alteration appears on the face, the burden of showing it is upon the one claiming it. Farmers' L. £ T. Co. V. Siefhe, 144 N. Y. 354. Question for the jury. — The jury determines whether an alteration was made before or after execution. Tuthill v. Uussey, 27 N". Y. St. R. 362, 7 N. Y. Supp. 547; Van Buren v. Goclcburn, 14 Barb. 118; Union Go. Bank v. Madden, 114 N. Y. 280 (cheek) : Hmitli v. Mc- Gowan, 3 Barb. 404 (deed of land). Presumptions. — It has been held that there is a, presumption that an apparent alteration of a written instrument was made after exe- cution. Devoy v. jY. Y., 35 Barb. 264, 22 How. Pr. 226. Contra, Abbott's Trial Evidence (2d ed.), p. 171. Presumption in case of wills. — Sustaining text. Abbott's Trial Evidence (2d ed.), p. 171: Matter of Carver's Estate, 3 Misc. Rep. 567; Wetmore v. Carryl, 5 Redf. 544; Dyer v. Erving, 2 Dem. 160: Matter of Lang's Will, 9 Misc. Rep. 521. Wills are not revoked by alteration. Dyer v. Erving, 2 Dem. 160 ; Matter of Prescott, 4 Redf. 178 ; O'Donohue v. O'Connor, N. Y. Daily Reg. , March 10, 1886; Clark v. Smith, 34 Barb. 14; Matter of Ticom- Wy, 4 Month. L. Bull. 24. Chap. XII.] TBE LAW OF EVIDENCE. 323 CHAPTEE XII. OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE, AND OF THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY BY ORAL EVIDENCE. Aeticlb 90.* evidence of tebms of oonteacts, geaitts, and othbb dispositions of property eedttced to a document- ART FORM. When any judginent of any Court or any other judicial or official proceeding, or any contract or grant, or any other disposition of property, has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.-' ISTor may the contents of any such document be contradicted, altered, added to, or varied by oral evidence. Provided that any of the following matters may be proved — (1) Fraud, intimidation, illegality, want of due execu- tion, want of capacity in any contracting party, the fact * See Note XXXII. l Illustrations (a) and (6). 324 A DIGEST OF [Paet II. that it is wrongly dated/ want or failure of consideration, or mistake in fact or law, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto.^ (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and finail statement of the whole of the transaction between them.* (3) The existence of any separate oral agreement, con- stituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.^ (4) The existence of any distinct subsequent oral agree- ment to rescind or modify any such contract, grant, or dis- position of property, provided that such agreement is not invalid under the Statute of Frauds, or otherwise.® (5) Any usage or custom by which incidents not ex- pressly mentioned in any contract are annexed to contracts of that description; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.^ iBeffell V. Reffell, 1866, L. R. 1 P. & D. 139. Mr. Starkie extends this to mistakes in some other formal particulars. 3 Star. Ev. 787-8. 3 Illustration (c). 4 Illustrations { d ) and {e). 5 Illustrations {f) and {g). e Illustration (h) . 1 Wigglesworth v. DalUson, 1779, and note thereto, S. L. C. 528- Chap. XII.] THE LAW OF iJVIDENOM. 325 Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, or other disposition of property.® Oral evidence of the existence of a legal relation is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relation- ship itself, and not the terms on which it was established or is carried on.* The fact that a person holds a public office need not be proved by the production of his written or sealed appoint- ment thereto, if he is shown to have acted on it.'^'' Illustrations. " (a) A policy of insurance is effected on goods "in ships from Surinam to London.'' The goods are shipped in a particular ship, which is lost. The fact that that particular ship was orally excepted from the policy cannot be proved.n (6) An estate called Gotten Farm is conveyed by a deed which de- scribes it as consisting of the particulars described in the first di- vision of a schedule and delineated in a plan on the margin of the schedule. Evidence cannot be given to show that a close not mentioned in the schedule or delineated in the plan was always treated as part of Got- ten Farm, and was intended to be conveyed by the deed.l2 (o) A institutes a suit against B for the specific performance of a 560. A late case is Johnson v. Raylton, 1881, 7 Q. B. D. 438, in which it was held that evidence was admissible of a custom that in a contract with a manufacturer for iron plates he warranted them to be of his own make. s Illustration (t). 9 Illustration (j). 10 See authorities collected in 1 Ph. Ev. 449-50 ; Taylor, s. 171. 11 Weston V. Ernes, 1808, 1 Tau. 115. 12 Barton v. Daires, 1850, 10 C. B. 261-265. 326 A DIGEST OF [Part II. contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would entitle Mm to have the contract reformed.13 (d) A lets land to B, and they agree that a lease shall be given by A to B. Before the lease is given, B tells A that he will not sign it unless A promises to destroy the rabbits. A does promise. The lease is afterwards granted, and reserves sporting rights to A, but does not mention the destruction of the rabbits. B may prove A's oral agree- ment as to the rabbits.l* (e) A and B agree orally that B shall take up an acceptance of A's, and that thereupon A and B shall make a written agreement for the sale of certain furniture by A to B. B does not take up the ac- ceptance. A may prove the oral agreement that he should do so.is (f) A and B enter into a written agreement for the sale of an in- terest in a patent, and at the same time agree orally that the agree- ment shall not come into force unless C approves of it. C does not approve. The party interested may show this.16 {g) A, a farmer, agrees in writing to transfer to B, another farmer, a farm which A holds of C. It is orally agreed that the agreement is to be conditional on C's consent. B sues A for not transferring the farm. A may prove the condition as to Cs consent and the fact that he does not eonsent.17 {h) A agrees in writing to sell B 14 lots of freehold land and make a good title to each of them. Afterwards B consents to take one lot though the title is bad. Apart from the Statute of Frauds this agree- ment might be proved.18 (i) A sells B a horse, and orally warrants him quiet in harness. A also gives B a paper in these words : " Bought of A a horse for ni. 2s. M." B may prove the oral warranty .19 13 Story's ' Equity Jurisprudence,' chap. v. ss. 153-162. a Morgan v. Griffiths, 1871, L. R. 6 Ex. 70; and see Angell v. Duke, L. R. 1875, 10 Q. B. 174. iSLindley v. Lacey, 1864, 17 C. B. (N. S.) 578. 16 Pym v. Campbell, 1856, 6 E. & B. 370. iTWallis V. Littell, 1861, 11 C. B. (N. S.) 369. 18 Goss V. Lord Nugent, 1833, 5 B. & Ad. 58, 65. 19 Ailen v. Prink, 1838, 4 M. & W. 140. Chap. XII.] THE LAW OF EVIDENCE. 327 (i) The question is, whetlier A gained a settlement by occupying and paying rent for a tenement. The facts of occupation and pay- ment of rent may be proved by oral evidence, although the contract ia in writing.ao AMERICAN NOTE. Qenerai. Authorities. — 1 Greeuleaf on Evidence (15th ed.), sec. 85 et seq., 275 et seq.; McKelvey on Evidence, pp. 366-373. The main rule. — Seits v. Brewers' Co., 141 U. S. 510; Wodock v. Rohinson, 148 Pa. 503; Johnson v. Clover, 121 111. 283; Boyd v. Paul, 125 Mo. 9; Tuttle v. Burgett, 53 0. St. 498; White Sewing Machine Co. V. Feeley, 72 Conn. 184; Hildreth v. Hartford, etc., Tramioay Co., 73 Conn. 631; Perrij v. Bigelow, 128 Mass. 129: Bergin v. Wil- liams, 138 Mass. 544; Colt v. Cone, 107 Mass. 285: Munde v. Lambie, 122 Mass. 336; Tower v. Richardson. 6 Allen (Mai?s.), 351; Doyle V. Dixon, 12 Allen (Mass.), 576. Fraud, mistake, etc. — Fire Assn v. Wickham, 141 U. S. 564: Koch V. Both, 150 111. 212; Paul v. Rider, 58 N. H. 119; Farwell v. Ensign, 66 Mich. 600 ; Kiel v. Choate, 92 Wis. 517 ; Booth v. Rohinson, 55 Md. 419. Sustaining text. Brainerd v. Brainerd, 15 Conn. 586; Park Bros, d Co. V. Blodgett & Clapp Co., 64 Conn. 38 ; Fox v. Talel, 66 Conn. 397; Todd v. Munson, 53 Conn. 589; Felts: v. Walker, 49 Conn. 98; Martin v. Clark, 8 E. 1. 389, 5 Am. Rep. 586 ; Fletcher v. Willa/rd, 14 Pick. (Mass.) 464; Ca.^e v. Gerrish, 15 Pick. (Mass.) 49. The writing not a complete statement. — Stivers v. Stivers, 97 Gal. 518; Stahlin v. Lowe, 87 Mich. 124; Hand v. Ryan Co.. 63 Minn. 539; Piatt v. ^tna Ins. Co., 153 111. 113, 121: Greening v. Steele. 122 Mo. 287; Caulfield v. Hermann. 64 Conn. 327: Averill v. Saicyci , 62 Conn. 568; Pacific Iron Works v. yewhall, 34 Conn. 76: Durkin V. Cohleigh, 156 Mass. 108, 32 Am. St. Rep. 436; A'ea? v. Flint, 88 Me. 73. Condition precedent. — Burke v. Delaney, 153 U. S. 228; fifmitft v. Mussetter, 58 Minn. 159; Wendlinger v. Smith, 75 Va. 309; Staie v. TTaHis, 57 Ark. 73; Keener v. Crago, 81 Pa. 166; Harrison v. Morton, 83 Md. 456; Faunce v. State Ins. Co., 101 Mass. 279; wasora v. Pow- ers, 131 Mass. 539; Whitaker v. Salisbury, 15 Pick. (Mass.) 534. 20 ff. V. ffM/Z, 1827, 7 B. & C. 611. 328 A DIGEST OF [Paet II. Sustaining text. White Seioing Machine Co. v. Feeley, 72 Conn. 184; Atwater v. Eewitt, 72 Conn. 238; McFarlamd v. Sikes, 54 Conn.' 250; Trumhull v. O'Hara, 71 Conn. 172; Burns & Smith LumberOo. V. Doyle, 71 Conn. 742; Carter v. Bellamy, Kirby (Conn.), 291; Herd V. Bissei, 1 Koot (Conn.), 260; Bull v. ToJcot, 2 Root (Conn.), 120; Converse v. Aloulton, 2 Root (Conn.), 195; Atiery v. Chappel, 6 Conn. 275; Crocker v. Higgins, 7 Conn. 349; ffoH v. Rand, 8 Conn. 573; Reading v. Weston, 8 Conn. 121; Jones v. Warraer, 11 Conn. 49; Baldwin v. Carter, 17 Conn. 205; Beckley v. Munson, 22 Conn. 312; Clarke v. Tappin, 32 Conn. 67; Meod v. Strouse, 41 Conn. 567; Pierpont v. Longden, 46 Conn. 499, 500; Hotchkiss v. Eiggins, 52 Conn. 213; Winchell v. Coney, 54 Conn. 33; Wesi Haven Water Co. V. Redfield, 58 Conn. 40; Xim^ v. Killbride, 58 Conn. 117; Osborne v. Taylor, 58 Conn. 441 ; Beard v. Boylan, 59 Conn. 187 ; Stanton v. 2V. T. <6 JV. £. ie. ij. Oo., 59 Conn. 288 ; Butier v. Barnes, 60 Conn. 186. Subsequent agreement. — TeaZ v. BtHj/, 123 TJ. S. 578; Holloway v. ii'riofc, 149 Fa. 178; Pratt's Admr. v. P. S., 22 Wall. 496, 507; C/wtrcfc V. Florence Iron Works, 45 N. J. L. 129 ; ll'est Haven Water Co. v. Redfield, 58 Conn. 40; Stearns v. ZfoH, 9 Cuah. (Mass.) 31; Munroe V. Perkins, 9 Pick. (Mass.) 298; Shaffer v. Saioyer, 123 Mass. 294. Custom. — Pajre v. GoZe, 120 Mass. 37 ; Robinson v. i7. S., 13 Wall. 363; Pennell v. Trans. Co., 94 Mich. 247; Patterson v. Crowther, 70 Md. 124; Leavitt v. Kennicott, 157 111. 235; Eilgore v. Bulkeley, 14 Conn. 392; Banfc of JTetp Milford v. Xeiv Milford, 36 Conn. 100. Date. — Pigott v. O'Ealloran, 37 Minn. 415 ; Bayley v. Taber, 5 Mass. 286; Orcutt v. Moore, 134 Mass. 48; Douis S. if. Co. v. Stone, 131 Mass. 384. Consideration. — Sustaining text. Clapp v. Terrell, 20 Pick. (Mass.) 247; Tioomey v. Croioley, 137 Mass. 184; O'Connell v. Kelly, 114 Mass. 97. New York. The main rule. — Austin v. Sawyer, 9 Cow. 39; Stevens v. Cooper, 1 Johns. Ch. 425; Kellogg v. Richards, 14 Wend. 116; Durgin v. Zre- Jomd, 14 N. Y. 322 ; Ealliday v. //art, 30 N. Y. 474 ; PoZJera v. Le Boy, 30 N. Y. 549, 10 Bosw. 38; Colwell v. Lawrence, 38 N. Y. 71; Porter V. Spence, 38 N. Y. 119; Curtiss v. Howell, 39 N. Y. 211; Thomas v. ffMmt, 3 Keyes, 590, 4 Abb. Dec. 416, «,.; Sat/re v. Pect, 1 Barb. 464; Johnson v. Mcintosh, 31 Barb. 267 ; Skillen v. Richmond, 48 Barb. 428; Feeder v. Cooley, 2 Hun, 74, 4 S. C. 24; .Itjcood v. DaZey, 5 Wend. 526; Jennings v. Chenango County Mutual Insurance Co., 2 Chap. XII.l THE LAW OF EVIDENCE. 329 Den. 75; Allen v. Coit, 6 Hill, 318; Mumford v. McPherson, 1 Johns. 414; Van Hagen v. Van Rensselaer, 18 Johns. 420; Armstrong v. Munday, 5 Den. 166; Parker v. Syracuse, 31 N. Y. 376; 2Vew Yorfc Insurance Go. v. Thomas, 3 Johns. Cas. 1 ; Lamatt v. Hudson River Fire Insurance Co., 17 N. Y. 199, w.y Riplay v. jEtna Insurance Co., 30 N. Y. 136; J/ercoiitiZe Mutual Insurance Co. v. Staie Insur- ance Co., 25 Barb. 319; Mott v. Richmyer, 57 N. Y. 49; S/iato v. Re- public Life Ins. Co., 69 N. Y. 286; Eighmie v. Taylor, 98 N. Y. 288; Sprout v. Netvman, 6 N. Y. St. R. 719; Holcomh v. Munson, 4 N. Y. St. E. 250, 103 N. Y. 682, affirming 21 Wkly. Dig. 48; Walton V. Agricultural Insurance Co., 116 N. Y. 317, reversing 24 Wkly. Dig. 214; Gordon v. 'Niemann, 118 N. Y. 152, revers- ing 4 N. Y. St. E. 844; Thomas v. Scuit, 127 N. Y. 133, 38 N. Y. St. R. 692, affirming 52 Hun, 343; 23 N. Y. St. E. 432, 5 N. Y. Snpp. 365 ; Souse v. Walch, 144 N. Y. 418, 63 N. Y. St. E. 654, re- versing 52 N. y. St. R. 935; Haddock v. Root, 72 Hun, 98, affirmed in 150 N. Y. 567; Harkinson v. Vantine, 152 N. Y. 20, reversing 10 Misc. Eep. 185. See same case, 153 N. Y. 647. Judgment (Sup. 1898), 54 N. Y. Supp. 807, affirmed. United Press v. Neiv York Press Co., 58 N. E. 527, 164 N. Y. 406; Paige v. New York, 33 N. Y. St. E. 844, 11 N. Y. Supp. 496; Aultman v. Hacker, 38 N. 1^ St. R. 724, 14 N. Y. Supp. 744; Wells v. Wells, 8 App. Div. 422, 40 N. Y. Supp. 836; Wemple v. Eauenstein, 19 App. Div. 552, 46 N. Y. Supp. 288 ; O'Connor v. Green, 60 N. Y. Supp. 109 ; LeiUe v. Light, 62 N. Y. Supp. 535, 30 Misc. Eep. 434 ; Tripp v. Smith, 64 N. Y. Supp. 94, 50 App. Div. 499; Toimsley v. Bankers' Life Ins. Co. of City of New York, 67 N. Y. Supp. 664, .=56 App. Div. 232; Hand v. Miller, 68 N. Y. Supp. 531, 58 App. Div. 126 ; Doolittle v. Fitchett, 71 N. Y. Supp. 1124, 35 Misc. Eep. 529; Berrian v. Sanford, 1 Hun, 624, 4 S. C. 655; Flood V. Mitchell, 4 Hun, 813; Strong v. Waters, 80 Hun, 73, 61 N. Y. St. R. 807; Hurst v. Cresson & Clearfield Goal Co., 86 Hun, 189, 67 N. Y. St. E. 55;Interstate Steamboat Co. v. First National Bank, 87 Hun, 93, 67 N. Y. St. E. 673; Pirsson v. Arkenburg, 26 N. Y. St. E. 82; Moores v. Glover, 37 N. Y. St. E. 396; Simis v. Neio York, Lake Erie cG Western Ry. Co., 1 Misc. Eep. 179, 48 N. Y. St. E. 687 ; American Surety Company v. McDermott, 9 Misc. Eep. 132, 59 N. Y. St. E. 725; Freedman v. Loomis, 12 Misc. Rep. 156, 66 N. Y. St. E. 131 ; Maher v. Garry, 3 App. Div. 80, 74 N. Y. St. R. 58, affirming 15 Misc. Eep. 359; Sanford v. Sanford, 5 Lans. 486, 61 Barb. 293; Bush V. Tilley, 49 Barb. 599; Peet v. Cowenhoven, 14 Abb. Pr. 56; Smith V. Smith, 4 N. Y. Leg. Obs. 106 ; Munsell v. Flood, 13 J. & S. 460. 330 A DIGEHT OF [Part II. The legal effect of transactions cannot be varied by parol evidence. Pattison V. Hull, 9 Cow. 747 ; Baltes v. Hipp, 3 Keyes, 210, 1 Abb. Dec. 78; Graves v. Porter, 11 Barb. 592; St. Nicholas Insurance Co. V. Mercantile Mutual Insurance Co., 5 Bosw. 238 ; Jarvis v. Palmer, 11 Paige, 650 (e. g., bonds). Wells v. Baldwin, 18 Johns. 45; Ericin V. Saunders, 1 Cow. 249; Dow v. Jackson, 5 Cow. 173; Meads v. Lan^ singh, Hopk. Oh. 124 ; Patchin v. Pierce, 12 Wend. 61 ; Delamater v. Bush, 45 How. Pr. 382 ; Bathhun v. Rathbun, 6 Barb. 98 ; Movan v. Hays, 1 Johns. Ch. 339 ; Sinclair v. Field, 8 Cow. 453 ; Fuller v. Acker, 1 Hill, 473; Russell v. Kinney, 1 Sand. Ch. 34. And see Tyler v. Taylor, 8 Barb. 585; BaZ! v. Slaften, 26 Hun. 353, affirmed in 98 X. Y. 622; Wray v. Fedderke, 11 J. & S. 335; Muller v. ffaZi, 49 How. Pr. 374; Farley v. Parrell, 51 How. Pr. 497; Knight v. TFarrew, 31 N. Y. St. R. 23, 9 N. Y. Supp. 380 ; Van Brunt v. Van Brunt, 3 Edw. Ch. 14. But see Kirchner v. New Home Sewing Machine Co., 135 N. Y. 182, 48 N. Y. St. R. 242, reversing 42 N. Y. St. R. 907; Bank of Albion v. Smith, 27 Barb. 489. But see Hubbard v. Matthews, 54 N. Y. 43; Phelps v. Borland, 30 Hun, 362, affirmed in 103 X. Y. 406; Sheldon v. Heaton, 88 Hun, 535, 68 N. Y. St. R. 825; Babbett V. Young, 51 N. Y. 238, 51 Barb. 466; Auburn City Bank v. Leonard, 40 Barb. 119; Boe^tm v. Lies, 28 J. & S. 436, 46 N. Y. St. R. 26. af- firmed in 138 N. Y. 609. (No opinion.) Records, proceedings, arbitration. — De Long v. Stanton, 9 Johns. 38; Efner v. Shaw, 2 Wend. 567; Meeker v. Yan Rensselaer, 15 Wend. 397 ; Do/ce v. James, 4 N. Y, 568 ; Cobb v. Dolphin Manuf. Co., 108 N. Y. 463; Maddock v. Root, 72 Hun, 98, affirmed in 150 X. Y. 561. (No opinion.) Hecht v. Mothner, 4 Misc. Rep. 536. 54 X. Y. St. R. 121 ; Pooley v. Buffalo, 15 Misc. Rep. 240, 36 N. Y. Supp. 796 : Pohalski v. Ertheiler, 18 Mise. Rep. 33, 41 N. Y. Supp. 10. reversing 15 Misc. Rep. 695. Bonds, certificates of deposit. — Bates v. Bank of Brockport. 23 Hun, 420, 89 N. Y. 286; Read v. Bank of Attica, 124 N. Y. 671, 36 N. Y. St. R. 894, reversing 55 Hun, 154, 28 N. Y. St. R. 651, 8 X. Y. Supp. 364 ; Gerard v. Cowperthwaite, 50 N. Y. St. R. 592. affirmed in 143 N. Y. 637 (no opinion) ; White Sewing Machine Co. v. Fargo, 3 N. Y. Supp. 494, 20 N. Y. St. R. 416; Grant v. Tefft, 26 N. Y. St. R. 102, 7 N. Y. Supp. 129, affirmed in 16 Daly, 49, 8 N. Y. Supp. 465, 29 N. Y. St. R. 496; Mutual Life Ins. Co. of New York v. Aldrich, 60 N. Y. Supp. 195, 44 App. Div. 620; (City Ct. N. Y.) Eberle v. Bryant, 63 N. Y. Supp. 963, judgment affirmed, Ehcrlc v. Schilling, 65 X. Y. .«!upp. 728 : Bernard-Beere v. Mayer, 66 X. Y. Supp. 495. 32 Chap. XII.] THE LAW OF EVIDENCE. 331 Misc. Rep. 765 ; American Surety Co. v. McDermott, 9 Misc. Rep. 132, 59 N. Y. St. R. 725; Parsons v. Rehy, 14 Wkly. Dig. 500. Deeds, mortgages, deeds of trust, liens, contracts under seal. — Acker v. Phoenix, 4 Paige, 305 ; Stvick v. Sears, 1 Hill, 17 ; Russell V. Croy, 12 Johns. 427; Champion v. White, 5 Cow. 409; De Witt V. Tan Schoyk, 35 Hun, 103, affirmed in 110 N. Y. 7; Akherg v. Kress Breioing Co., 65 Hun, 182, affirmed in 138 N. Y. 648. (No opinion.) Judgment (Sup. 1899), 61 N. Y. Supp. 614, 46 App. Div. Ill, af- firmed. Dishrow v. Dishrow, 60 N. E. 1110 iMorowsky v. Rohrig, 4 Misc. Rep. 167, 53 N. Y. St. R. 220, reversing 2 Misc. Rep. 590; Stern V. Eesdorfer, 9 Misc. Rep. 134, 59 N. 1^ St. R. 713; Bleioitt v. Boorum, 39 N". Y. St. R. 244, 14 N. Y. Supp. 298 ; Hawver v. Wright, 21 Misc. Rep. 211, 45 N. Y. Supp. 659; Dislrow v. Dishrow, 61 N. Y. Supp. 614, 46 App. Div. Ill; Smith v. Eillam, 16 N. Y. St. R. 568; Voege v. Ronalds, 83 Hun, 114, 63 N. Y. St. R. 837; Lynch v. Mc- Beth, 7 How. Fr. 113; Kuhn v. Stevens, 7 Rob. 544, 36 How. Pr. 275. But it may be shown by parol that a deed in possession of the grantee never was actually delivered. Roberts v. Weii, 1 Wend. 478. Leases, releases. — Kirchner v. New Home Seimng Machine Co., 135 N. Y. 182, 48 N. Y. St. R. 242, reversing 42 N. Y. St. R. 907; Cleves V. Willoughbj, 7 Hill, 83; Moore v. Winans, 57 N. E. 1118, 160 N. Y. 703, affirming 48 N. Y. Supp. 287, 23 App. Div. 308. Judg- ment (1897), 43 N. Y. Supp. 762, 14 App. Div. 202, reversed. Stephens v. Ely, 56 N. E. 499, 162 N. Y. 79. Judgment (1898), 49 N. Y. Supp. 811, 26 App. Div. 105, affirmed; Hall v. Beston, 59 N. E. 1123; Van Bokkelen v. Taylor, 62 N. Y. 105, reversing 2 Hun, 138, 4 S. C. 422; Meyer v. Lathrop, 73 N. Y. 315; Wilson v. Deen, 74 N. Y. 531; Lewis v. Seahury, 74 N. Y. 409; Eenney v. Aitkin, 9 Daly, 500; Brady v. Read, 94 N. Y. 631; Mallory v. Tioga Railroad Co., 3 Keyes, 354, 3 Abb. Dee. 139; Brady v. Peiper, 1 Hilt. 61. Judg- ment (City Ct. X. Y. 1900), 62 N. Y. Supp. 1138, reversed. Ham- ilton V. Emerson, 64 N. Y. Supp. 48, 31 Misc. Rep. 257 ; Van Derhoef V. Uartman, 71 N. Y. Supp. 552, 63 App. Div. 419; H-. Stroud, 56 Mo. App. 183; The Idaho, 93 U. S. 575; King v. Richards, 6 Whart. 418; ^^ Dixon V. Hammond, 1819, 2 B. & A. 310; Crossley v. Dixon, 1863, 10 H. L. C. 293; Gosling v. Birnie, 1831, 7 Bing. 339; Eardman v. Wilcock, 1832 (?), 9 Bing. 382 (n.) ; Biddle v. Bond, 1865, 34 L. J. Q. B. 137; Wilson ^. Anderton, 1830, 1 B. & Ad. 450. Aa to carriers, see Sheridan v. Aeto Quay, 1858, 4 C. B. (X. S.) 618. 26 18 & 19 Vict. c. Ill, ». 3. Chap. XIV.] TEE LA^Y OF EVIDEyCE. 391 PulUam V. Burlingame, 81 Mo. Ill, 51 Am. Rep. 229; Roberts f. Noyes, 76 Me. 590; Singer Mfg. Co. v. King, 14 R. I. 511; Bwrton X. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145; Staples v. Fillmore, 43 Conn. 510; Osgood v. Nichols, 5 Gray (Mass.), 420; Bursley v. Ham- ilton, 15 Pick. (Mass.) 40, 25 Am. Dec. 423. Bill of lading. — Last paragi'aph of text. Relyea v. New Haven Boiling Mill Co., 75 Fed. Rep. 420; Brooke v. X. Y., etc., R. Co., 108 Pa. 529; Sioux City, etc., R. Co. v. First Nitfl Bk., 10 Neb. 556; Sears v. Wingate, 3 Allen (Mass.), 103. But see Pollard v. Vinton, 105 U. S. 7; Bait. & 0. R. Co. v. Wilkens, 44 Md. 11; Dean v. King, 22 0. St. 118; Nat'l Bk. of Commerce v. Chicago, etc., R. Co., 44 Minn. 224. New York. Bailee, etc. — First paragraph of text. Dczcll v. Odell, 3 Hill, 215; Western Trans. Co. v. Barber, 56 N. Y. 544; (Jcrber v. Monrie, 56 Barb. 652; Marvin v. Ellwood, 11 Paige, 365; Vosbargh v. Hunting- ton, 15 Abb. Pr. 254 ; Aubery v. Fiske, 36 N. Y. 47 ; Bates v. Stanton, 1 Duer, 79. Bill of lading. — Last paragraph of text. Bk. of Batavia v. N. Y., etc., R. Co., 106 N. Y. 195. See Price v. Powell, 3 N. Y. 322; Ellis V. Willnrd, fl N. Y. 529. 392 A DIGEST OF [Paet III. CHAPTER XV. of the (jompete'scr of witnesses* Abticle 106. who mat testify. All persons are competent to testify in all cases except as hereinafter excepted. Akticle 107. t WHAT WITNESSES AEE INCOMPETENT. A witness is incompetent if in the opinion of the jndge he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollect- ing the matter on which he is to testify, from understand- ing the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible ; but such writing must be written and such signs made in open Court. Evidence so given is deemed to be oral evidence. * See Note XXXIX. t See Note XL. ^^ Avitness under sentence of death was said to be incompetent in R. v. Webb, 18(i7, 11 Cox, 133, scd quwre. Chap. XV.] THE LAW OF EVIDENCE. 393 AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sees. 398-403, 406, 407 ; 1 Greenleaf on Evidence ( 15th ed. ) , sees. 365-370. Youth, etc. — First paragraph of text. State v. Wliittier, 21 Me. 341, 347, 38 Am. Dee. 272; Day v. Day, 56 N. H. 316; Com. v. Hutchinson, 10 Mass. 225; Com. v. Robinson, 165 Mass. 426; State V. Levy, 23 Minn. 104; State v. Doyle, 107 Mo. 36; State v. Douglas, 53 Kan. 669; MoGuff v. State, 88 Ala. 147. A child of five may be allowed to testify. Com. v. Robinson, 165 Mass. 426. See also Wheeler v. U. S., 159 U. S. 523; State v. Juneau, 88 Wis. 180; McOuire v. People, 44 Mich. 286 (child of six). Unsound mind. — Kendall v. May, 10 Allen (Mass.), 59; Com. r. Lynes, 142 Mass. 577; Lewis v. Eagle Ins. Co., 10 Gray (Mass.), 508. The question whether a person offered as a witness is insane goes to his competency, and is a preliminary question to be decided by the court. Holcomb v. Holcomb, 28 Conn. 179. Persons of unsound mind may testify if, in fact, their under- standing is sufficient to enable them to understand the oath and the questions. Pease v. Burroives, 86 Me. 153, 176; Dist. of Columbia V. Amies, 107 U. S. 519; Tucker v. Shaw, 158 111. 326; Boiodle v. Railway Co., 103 Mich. 272; Cannaday v. Lynch, 27 Minn. 435; Worthington v. Mencer, 96 Ala. 310. Interest. — The common-law disqualification because of interest is now removed, so far as the United States courts are concerned. U. S. Stat, at Large, vol. 20, p. 30 ; U. S. Rev. Stats., sec. 858. In the various States, the common-law disqualification because of interest is generally removed by statute, but the fact of interest may be shown I r. g.. Conn. Gen. Stats., see. 1098). Atheist. — At common law. one who does not believe in God is an incompetent witness. Free v. Biicl;inglHim, 59 N. H. 219; Arnd v. Amling, 53 Md. 192; Clinton v. State, 33 0. St. 27 ; Uunscom v. Huns- com, 15 Mass. 184. The opinions of one offered as a witness, as to the existence of a God and future accountability. y\m66 v. East, 1880, 5 Ex. D. 23 & 108. Chap. XV.] THE LAW OF EVIDENCE. 419 A person charged with an offence and being a witness in pursuance of the Criminal Evidence Act, 1898, may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged. *° AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed. ), sees. 451-453; Wharton on Evidence, sees. 533-541. Exemption. — First paragraph of text. Eckstein's Petition, 148 Pa. St. 509; Temple v. Com., 75 Va. 892; State v. Simmons Co., 109 Mo. 118; Stevens v. State, 50 Kan. 712; Winters v. People, 139 111. 363; State \'. Eaden, 43 Minn. 253; Ex parte Boscoioitz, 84 Ala. 463; Colurn v. Odell, 30 N. H. 540; Janvrin v. Scamaron, 29 N. H. 280; Chamberlain v. Wilson, 12 Vt. 491; Emery's Case, 107 Mass. 172; Com. v. Trider, 143 Mass. 180. A witness cannot be compelled to disclose facts which would subject him to a criminal prosecution. Grannis v. Branden, 5 Day (Conn.), 272; Barnes v. State, 19 Conn. 404. On a prosecution for selling liquor to a common drunkard, the person claimed to be such was a witness for the State to prove the sale, and was asked, upon cross-examination, if he was a common drunkard. Held, that he was not bound to answer, as an answer might criminate him. Barnes v. Slate, 19 Conn. 404. The rule does not apply if the criminal prosecution is barred by lapse of time. Lamson v. Boyden, 160 111. 613; Maliunke v. Cleland, 76 la. 401 ; Ghilds v. Merrill, 66 Vt. 302. Or statute granting an ex- emption to such witness. Brown v. Walker, 161 U. S. 591; Ex parte Cohen, 104 Cal. 524; State v. Xowell, 58 N. H. 314. The court may, but need not, advise the witness of his right to refuse to answer. Com. v. Bowe, 13 Gray (Mass.), 26; Com. v. Shaw, 4 Cush. (Mass.) 594; Mayo v. Mayo, 119 Mass. 292. Penalty. — A witness cannot be compelled to give testimony which may expose him to a penalty. Nor, it seems, to give testimony which may subject him to a debt, although called as a witness in a suit be- tween third parties. Benjamin v. Hathaway, 3 Conn. 532. 40 61 & 62 Vict. c. 36, s. 1 (e). 420 A DIGEST OF [Pabt III. Husband or wife. — Gornelius v. Eanibay, 150 Pa. St. 359 ; Kee-p v. Griggs, 12 111. App. 511; People v. Langtree, 64 C'al. 256; Woods v. State, 76 Ala. 35; Gom. v. Sparks, 7 Allen (Mass.), 534; State v. Bridgman, 49 Vt. 202; State v. Briggs, 9 R. I. 361. Waiver. — The privilege may be waived. — State v. Wentworth, 65 Me. 234; Samuel v. People, 164 111. 379; State v. ya» Winkle, 80 la. 15; Stoie v. Foster, 23 N. H. 348; Foster v. Pierce, 11 Cush. (Mass.) 437, 59 Am. Dee. 152; Gom. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Com. v. Morgan, 107 Mass. 199. By testifying as to part, the witness waives his protection and can be compelled to testify as to the whole. People v. Freshour, 55 Cal. 375; State v. Fay, 43 la. 561; State v. Xichols, 29 Minn. 357; Coburn v. Odell, 30 N. H. 540; State v. Witham, 72 Me. 531; Com. v. Pratt, 126 Mass. 462; Com. v. Nichols, 114 Mass. 285; Gom. v. Smith, 163 Mass. 431. See Samuel v. Peo;jZe, 164 111. 379. The witness, by taking .the stand, waives his protection. Disque V. State, 49 N. J. L. 249; Thomas v. S*afe, 103 Ind. 419; Thomas v. S*a*e, 100 Ala. 53 ; State v. Thomas, 98 N. C. 599 ; People v. Wong Ah Leorg, 99 Cal. 440; State v. Witham, 72 Me. 531; State v. (?i-is- M)oW, 67 Conn. 307. Where a witness voluntarily testifies in chief on a, particular subject, he may be cross-examined on the same subject, although his answers may criminate or disgrace him. Norfolk y. Gaylord, 28 Conn. 312. Civil liability. — Sustaining text. Bull v. Loveland, 10 Pick. (Mass.) 9, 12; Lees v. U. S., 150 U. S. 476; Gadsden v. Woodward, 103 N. Y. 242; Lowney v. Perham, 20 Me. 235. New York. Authorities. — People v. Forbes, 143 N. Y. 219; Southard v. Rex- ford, 6 Cow. 254; Salina Bank v. Henry, 2 Den. 155. As to the rules of this article see Code Civ. Fro., sec. 837. In bribery cases a. witness may be compelled to answer, but his tes- timony is inadmissible in another action. Penal Code, sec. 79. Exposure to penalty. — Sustaining text. Livingston v. Tompkins, 4 Johns. Ch. 432: Liringston v. Harris, 3 Paige, 533, 11 Wend. 329; Matter of Kip, 1 Paige, 601; People v. Rector, 19 Wend. 569; Mat- ter of Dickinson, 58 How. Pr. 260. Civil liability. — Sustaining text. Stewart v. Turner. 3 Edw. Ch. 458. Chap. XV.] THE LAW OF EVIDEtiCE. 421 Article 121. coeroboeation when eequired. * No plaintiff in any action for breach of promise of marriage can recover a verdict, unless his or her testimony is corroborated by some other material evidence in support of such promise.*^ The fact that the defendant did not answer letters affirming that he had promised to marry the plaintiff is not such corroboration.^^ jSTo order against any person alleged to be the father of a bastard child can be made by any justices, or confirmed on appeal by any Court of Quarter Session, unless the evi- dence of the mother of the said bastard child is corrobo- rated in some material particular to the satisfaction of the said justices or Court respectively.*^ ISTo person can be convicted of an offence against sect. 4 of the Criminal Law Amendment Act, 1885, or an offence against the Prevention of Cruelty to Children Act, 1894, or an offence mentioned in the Schedule to that Act (as to which see p. 347, note 11, upon the unsworn evidence of a child of tender years, unless such unsworn evidence is corroborated by material evidence implicating the ac- cused.** When the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncor- * See Article 122. « 32 & 33 Vict. c. ()8, s. 2. 42 ^yiedemann v. ^Yal■pole, [1891], 2 Q. B. 534. 43 8 & 9 Vict. e. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4. 44 48 & 49 Vict. c. 69, s. 4; 57 & 58 Vict. e. 41, s. 15. See Article 123a. 422 A DIGEST OF [Pakt III. roborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so.*^ AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sec. 414; 1 Greenleaf on Evidence (15th ed.), sees. 379-382; 1 Am. & Eng. Encyelopajdia of Law (2d ed.), p. 399. The jury may convict on uncorroborated testimony. Cox v. Com., 125 Pa. St. 24 ; Hoyi v. People, 140 111. 588 ; Ayers v. State, 88 Ind. 275; Peo-ple v. Gallagher, 75 Mich. 512; Camplell v. People, 159 111. 9; Lamb v. State, 40 Neb. 312; State v. Maney, 54 Conn. 178; State V. Wolcott, 21 Conn. 272; State v. StelUns, 29 Conn. 463, 79 Am. Dee. 223 ; State v. Williamson, 42 Conn. 261 ; State v. Potter, 42 Vt. 495 ; State V. Dana, 59 Vt. 614; State v. Litchfield, 58 Me. 270; State v. Cunningham, 31 Me. 355; State v. Kihling, 63 Vt. 636; Com. v. Bos- worth, 22 Pick. (Mass.) 397; Com. v. Larrahee, 99 Mass. 413; Com. V. Scott, 123 Mass. 237, 25 Am. Eep. 81 ; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391. In some States it is the practice to warn the jury. Collins v. State, 98 111. 584; Cheathem v. State, 67 Miss. 335; State v. Barler, 113 N. C. 711; Ingalls v. State, 48 Wis. 647; Com. v. Price, 10 Gray (Mass.), 472, 71 Am. Dee. 668; Com. v. Brooks, 9 Gray (Mass.), 299; Com. v. Larrahee, 99 Mass. 413; State v. KiUing, 63 Vt. 636. It is held in some States that it is not error to omit the caution. State V. Potter, 42 Vt. 495; State v. KiUing, 63 Vt. 636; Com. v. Holmes, 127 Mass. 424, 34 Am. Eep. 391 ; Com. v. Scott, 123 Mass. 237, 25 Am. Eep. 81; Com. v. Wilson, 152 Mass. 12; Com. v. Bishop, 165 Mass. 148. But see State v. Williamson, 42 Conn. 261; State v. Maney, 54 Conn. 178. Detectives and others who act with the criminals, in order to bring them to justice, are not accomplices. State v. McKean, 36 la. 343; People v. Bolanger, 71 Cal. 17; Com. v. HoUister, 157 Pa. St. 13; State v. Hoxsie, 15 R. I. 1. Any evidence is corroborative which tends to connect the defend- 45 1 Ph. Ev. 93-101; Taylor, ss. 967-971; 3 Russ. Cri. 642-653. See Tn re Meunier, [1894], 2 Q. B. 415. Chap. XV.] THE LAW OF EVIDENCE. 423 ant with the crime. State v. Donnelly, 130 Mo. 642; Hester v. Com., 85 Pa. St. 139; State v. Maney, 54 Conn. 178. See U. S. v. Howell, 56 Fed. Rep. 20 ; Com. v. Holmes, 127 Mass. 424. One accomplice cannot corroborate another, unless, perhaps, they have had no opportunity to be together before the trial. State v. Williamson, 42 Conn. 265, 266. Generally divorces will not be granted upon the testimony of parties alone. Roibins v. Robbins, 100 Mass. 150; Cooper v. Cooper, 88 Cal. 45 ; Lewis v. Leiois, 75 Pa. 200 ; Rie v. Rie, 34 Arl^. 37. Con- tra, Flattery v. Flattery, 88 Pa. St. 27; Sylvis v. Sylvis, 11 Col. 319. New York. Authorities. — • " A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such evidence as tends to connect the defendant with the commission of the crime." Code Cr. Pro., see. 399. " This introduces a new rule." Note to above section in Cook's Annotated Criminal and Penal Codes. Breach of promise. — ■ Modifying rule of text. Hainan v. Earle, 53 N. Y. 267. Seduction. — Corroboration is required in a prosecution for seduc- tion. People V. Kearney, 110 N. Y. 188. Abortion, rape, etc. — And so in abortion and rape. Penal Code, sec. 283. People v. Platte, 100 N. Y. 590. Divorce. — ■ In divorce proceedings the evidence of prostitutes and detectives must be corroborated. Moller v. Holler, 115 N, Y. 466. See Code Civ. Pro., sec. 1753. Article 121a. claim on" estate of deceased person. Claims upon the estates of deceased persons, whether founded upon an allegation of debt or of gift, ought not to be maintained upon the uncorroborated testimony of the claimant, unless circumstances appear or are proved which make the claim antecedently probable, or throw the burden of disproving it on the representatives of the deceased. 424 A DIGEST OF [Part III. Illustrations. (o) A, a widow, swore that her deceased husband gave her plate, &e., in his house, but no circumstances corroborated her allegation. Her claim was rejected.**' ( 6 ) A, a widow, claimed the rectification of a settlement drawn by her husband the night before their marriage, and giving him advan- tages which, as she swore, she did not mean to give him, and were not explained to her by him. The settlement was not one which, in the absence of agreement between the parties, would have been sanctioned by the Court. Her claim was admitted though uncorroborated.47 AMERICAN NOTE. General. See Hatch v. Atkinson, 56 Me. 324; Dilts v. Stevenson, 17 N. J. Eq. 407; Farmer's Ev'cr v. Farmer, 39 N. J. Eq. 211. New York. Devlin v. Greenwich Sav. BJc., 125 N. Y. 756. Article 122. nitmbee of witnesses. In trials for high treason, or misprision of treason, no one can be indicted, tried, or attainted (unless he pleads gnilty) except upon the oath of two lawful witnesses, either both of them to the same overt act, or one of them to one and another of them to another overt act of the same treason. If two or more distinct treasons of divers heads or kinds are alleged in one indictment, one witness 46 Finch V. Finch, 1883, 23 Ch. Div. 267. 47 hivesey v. Smith, 1880, 15 Ch. Div. 655. In re Garnett, Gandy V. Macaulay, 1885, 31 Ch. Div. 1, is a. similar case. In In re Hodg- son, Beckett V. Ramsdale, 1885, 31 Ch. Div. p. 183, the language of Hannen, J., in words somewhat relaxes the rule, but not, I think, in substance. Chap. XV.] THE LAW OF EVIDENCE. 425 produced to prove one of the said treasons and another witness produced to prove another of the said treasons are not to be deemed to be two witnesses to the same treason within the meaning of this article.*^ This provision does not apply to cases of high treason in compassing or imagining the Queen's death, in which the overt act or overt acts of sucli treason alleged in the indict- ment are assassination or killing of the Queen, or any di- rect attempt against her life, or any direct attempt against her person, whereby her life may be endangered or her per- son suffer bodily harm,*® or to misprision of such treason. If upon a trial for perjury the only evidence against the defendant is the oath of one witness contradicting the oath on which perjury is assigned, and if no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted. ^'^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (loth ed. ), sees. 2.55-2.39; 1 Whai'ton on Evidence, sec. 414. Treason against the United States. Art. 3, sec. 3, of the U. S. Constitution. Perjury.— Com. i-. Parker, 2 Cush. (Jlass.) 212. In perjury, one witness, with corroborating circumstances, is suffi- cient. Com. V. Parker, 2 Gush. (Mass.) 212; Com. v. Butland, 119 Mass. 317, 324; Com. v. Pollard, 12 Mete. (Mass.) 225; Williams v. Com., 91 Pa. St. 493; People v. Wells, 103 Cal. 831; Ktate v. Hawk- ins, 115 X. C. 712; U. .V. V. Hall, 44 Fed. Rep. 864; State v. Jean, 42 La. Ann. 946; 8taie \. Head, 57 Mo. 252. New York. Treason. — Code Cr. Pro., sec. 396. 48 7 & 8 Will. III. c. 3, ss. 2, 4. 49 39 & 40 Geo. III. u. 93. i50 1 Russ. on Crimes, 368. 420 A DIGEST OF [Part III. CHAPTER XYI. OF TAKING ORAL EVIDENCE, AND OF THE EXAMINATION OF WITNESSES. Aeticlb 123. All oral evidence given in any proceeding must be given upon oath, except as is stated in this and the following article. Every person objecting to being sworn, and stating, as the ground of such objection, either that he has no relig- ious belief, or that the taking of an oath is contrary to his religious belief, may make his solemn affirmation, which is of the same force and effect as if he had taken the oath, and if, having made such affirmation, he wilfully and cor- ruptly gives false evidence, he is liable to be punished as for perjury. Such affirmation must be as follows: — " I, A. B., do solemnly, sincerely, and truly declare and affirm," and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to wit- 1 51 & 52 Vict. c. 46, the Oaths Act, 1888, which repeals the pre- vious enactments on the subject. Chap. XVI.] THE LAW OF EVIDENCE. 427 Where an oath has been duly administered and taken, the fact that the person to whom the same was adminis- tered had, at the time of talking such oath, no religious belief, does not for any purpose affect the validity of such oath.2 AMERICAN NOTE. General. Authority. — 1 Greenleaf on Evidence (15th ed. ), see. 371. Atheists. — See article 107 of this book. New York. Affirmation is allowed instead of the usual oath. Code Civ. Pro., see. 847. Article 123a. u^fswoei^ evideisrce of young child. Where upon the hearing of a charge under sect. 4 of the Criminal Law Amendment Act, 1885, a child of tender years who is tendered as a witness does not, in the opinion of the Court, understand the nature of an oath, the evi- dence of such child may be received, though not given upon oath, if, in the opinion of the Court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth f Provided that no person can be convicted in such a case unless such unsworn evidence is corroborated by other ma- terial evidence implicating the accused.^ 2 51 & 52 Vict. u. 46, a. 3. 3 48 & 49 Vict. c. 69, s. 4. The offences under this section are, un- lawfully and carnally knowing, and attempting unlawfully and car- nally to know any girl under thirteen. 428 A DIGEST OF [Part III. Any witness whose evidence, not upon oath, has been admitted as mentioned in this article is liable to indict- ment and punishment for perjury in all respects as if he or she had been sworn.* If evidence not upon oath is given under the provisions stated in this article, and the charge is one of felony, the prisoner may be convicted under sect. 9 of the Criminal Law Amendment Act, 1885, of an offence ^ in respect of which such unsworn evidence might not have been given." If the charge is one of misdemeanour, the prisoner cannot be convicted of another misdemeanour, in respect of which such unsworn evidence might not have been given, if such other misdemeanour was charged in another count of the indictment.^ Where, in any proceeding against any person for an offence under the Prevention of Cruelty to Children Act, 1894, or for any of the offences mentioned in the Schedule to that Act,'^ the child in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not, in the opinion of the Court, understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the Court, such child 3 48 & 49 Vict. c. 69, s. 4. The offences under this section are. un- lawfully and carnally knowing, and attempting unlawfully and car- nally to know any girl under thirteen. i These offences are, any offence under ss. 3, 4, 5 of the Criminal Law Amendment Act, 1885, and indecent assault. B R. Wealand, 1888, 20 Q. B. D. 827. See Note XLIVa. 9R. V. Paul, [1890], 25 Q. B. D. 202. See note XLIVa. 7 See p. 347, note 11. Chap. XVI.] THE LAW OF EVIDENCE. 429 is possessed of sufficient intelligence to justify the recep- tion of the evidence, and understands the duty of speaking the truth. And the evidence of such child, though not given on oath, but otherwise taken and reduced into writing, in accordance with the provisions of sect. 17 of the Indict- able Offences Act, 1848,^ or sect. 13 of the Prevention of Cruelty to Children Act, 1894,® shall be deemed to be a deposition vsathin the meaning of those sections respec- tively. Provided that — (a) a person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is cor- roborated by some other material evidence in support thereof implicating the accused ; and (h) any child whose evidence is received as aforesaid and who shall wilfully give false evidence shall be liable to be indicted and tried for such offence, and on convic- tion thereof may be adjudged such punishment as is pro- vided for by section 11 of the Summary Jurisdiction Act, i879, in the case of juvenile offenders.^** Article 123b. unsworn evidence of a barrister. A barrister giving evidence in Court, in proceedings where evidence is usually given by affidavit, as to his action 8 See Article 140. » See Article 141b. 10 57 & 58 Vict. c. 41, s. 15. 430 A DIGEST OF [Paet III. in his professional capacity in previous proceedings makes a statement from his seat in Court without an oath having been administered to him/* Article 124. foem of oaths ; by vfhom they may be admixisteeed. Oaths are binding vyhich are administered in such form and Vfith such ceremonies as the person sworn declares to be binding.*^ Any person to whom an oath is administered, who so desires, may be sworn with uplifted hand in the form and manner usual in Scotland.-*^^ Every person now or hereafter having power by law or by consent of parties to hear, receive, and examine evi- dence, is empowered to administer an oath to all such witnesses as are lawfully called before him." AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (lotli ed.), see. 371; 1 Wharton on Evidence, sec. 387. i-'^ Hickman v. Berens, [18951, 2 Ch. p. 638, following the previous unreported case of Kempshall v. Holland (but see 98 L. T. p. 489, Leading Article), decided in the Court of Appeal. In the former case the original proceedings took place before an official referee; in both the barrister's statement was in substitution for an affidavit. See Article 111, and Note XLII. 12 1 & 2 'Vict. c. 105. For the old law, see Omichund v. Barber, 1745, 1 S. L. C, 7th Ed., 445. 13 51 & 52 Vict. c. 46, s. 5. 14 14 & 15 Vict. c. 99, a. 16. Chap. XVI.] THE LA^y OF EVIDENCE. 431 On the swearing of Mohammedans, Brahmins, Chinese, etc. — State V. CUagk, 92 Mo. 395; Bow v. People, 160 111. 438; Newman v. New- man, 7 N. J. Eq. 26; Com. v. Jarloe, 89 Ky. 143. New York. As to who may administer oaths and their forms, see Code Civ. Pro., sees. 842, 843, 845, 846, 848, 849, 850. Irregularity in administering the oath does not affect proceedings in perjury. Penal Code, sec. 97. Article 125. how oeal evidence mat be takeit. Oral evidence may be taken''^ (according to the law re- lating to civil and criminal procedure) — In open court upon a final or preliminary hearing; Or out of court for future use in court — {a) upon affidavit, (&) under a commission/® (c) before any officer of the Court or any other person or persons appointed for that purpose by the Court or a judge under the Judicature Act, 1875, Order XXXVII., Eule 5. IB As to civil procedure, see Order XXXVII. to Judicature Act of 1875. As to criminal procedure, see 11 & 12 Vic-t. e. 42, for prelim- inary procedure, and the rest of this chapter for final hearings. 16 The law as to commissions to take evidence is as follows: The root of it is 13 Geo. III. c. 53. Sect. 40 of this Act provides for the issue of a commission to the Supreme Court of Calcutta (which was first established by that Act) and the corresponding authorities at Madras and Bombay to take evidence in cases of charges of misde- meanour brought against Governors, &C'., in India in the Court of 432 A DIGEST OP [Part III. Oral evidence taken wpon a preliminary hearing may, in. the cases specified in Articles 140-142, be recorded in the form of a deposition, which deposition may be used as a documentary evidence of the matter stated therein in the eases and on the conditions specified in Chapter XVII. Oral evidence taken in open court must be taken accord- ing to the rules contained in this chapter relating to the examination of witnesses. "Oral evidence taken under a commission must be taken in the manner prescribed by the terms of the commission. ^® Oral evidence taken under a commission must be taken in the same manner as if it were taken in open court; but the examiner has no right to decide on the va- lidity of objections taken to particular questions, but must record the questions, the fact that they were objected to, and the answers given. '* If secondary evidence of the contents of any docu- ment is not objected to on the taking of a commission it cannot be objected to afterwards. Queen's Bench. Sect. 42 applies to parliamentary proceedings, and s. 44 to civil cases in India. These provisions have been extended to all the colonies by 1 Will. IV. e. 22, and so far they relate to civil proceedings to the world at large. 3 & 4 Vict. c. 105, gives a similar power to the Courts at Dublin, See as to cases in which commissions will not be granted, In re Boyce, Crufton v. Grofton, 1882, 20 Ch. Div. 760: and Berdan v. Greenwood, 18S0, ibid., in note, 7li4; also Langen V. Tate, 18S3, 24 Ch. Div. 322; Laioson v. Vnoinun Brake Co.. 1884; 27 Ch. Div. 137. IT Taylor, s. 513. 18 Id. s. 512. l^liobinson v. Ddrici. 1870, 5 Q. B. D. 26. Chap. XVI. 1 TUB LA^Y OF EVWEXCE. 433 ^" Oral evidence given on affidavit must be confined to such facts as the v^itness is able of his own knowledge to prove, except on interlocutory motions, on which state- ments as to his belief and the grounds thereof may be ad- mitted. The costs of every affidavit unnecessarily setting forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing them. ^^ When a deposition, or the return to a commission, or an affidavit, or evidence taken before an examiner, is used in any court as evidence of the matter stated therein, the party against whom it is read may object to the reading of anything therein contained on any ground on which he might have objected to its being stated by a witness examined in open court, provided that no one is entitled to object to the reading of any answer to any question asked by his own representative on the execution of a commission to take evidence. Aeticle 126.* EE-BXAMIITATION". Witnesses examined in open court must be first exam- ined in chief, then cross-examined, and then re-examined. Whenever any witness has been examined in chief, or has been ^^ intentionally sworn, or has made a promise and * See Note XLV. 20 fi. S. C, Order XXXVIII., 3. 21 Taylor, s. 548. Hutchinson v. Bernard, 1836, 2 Moo. & Rob. 1. 28 434 A DIGEST OF [Pakt III. declaration as hereinbefore mentioned for the purpose of giving evidence, the opposite party has a right to cross- examine him; but the opposite party is not entitled to cross-examine merely becaiise a witness has been called to produce a document on a suhpcena duces tecum, or in order to be identified. After the cross-examination is concluded, the party who called the witness has a right to re-examine him. The Court may in all cases permit a witness to be re- called either for further examination in chief or for fur- ther cross-examination, and if it does so, the parties have the right of further cross-examination and further i-e- examination respectively. If a witness dies, or becomes incapable of being further examined at any stage of his examination, the evidence given before he became incapable is good.^^ If in the course of a trial a witness who was supposed to be competent appears to be incompetent, his evidence may be withdrawn from the jury, and the case may be left to their decision independently of it.^^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence {15th ed. ), see. 431 et scq.: 8 Encyclopeedia of Pleading and Practice, p. 70 et seq. Witness to produce document. — Aiken v. llartin. 11 Pai. 499; Galderon v. O'Donahue, 47 Fed. Rep. 39; Stiles r. Allen, 5 Allen (Mass.), 320. 22 See Cases in Taylor, s. 1429. 23 R. V. DooUn, 1832, 1 Jebb, C. C. 123. The judges compared the case to that of a dying declaration, which is admitted though there can be no cross-examination. 24 R. V. Whitehead, 1866, 1 C. C. R. 33. Chap. XVI.] TEE LAW OF EVIDENCE. 435 New York. Order of proof discretionary. — The order of testimony is discre- tionary with the judge. Bruce v. Kelly, 7 J. & S. 27. See Foster v. Neivbrough, 58 N. Y. 481, reversing 66 Barb. 645 ; Levy v. People, 80 N. Y. 327 ; Neil v. Thome, 88 N. Y. 270 ; Smith v. UcGowan, 3 Barb. 404; Staring v. Bowen, 6 Barb. 109; BedeH v. Powell, 13 Barb. 183; PeopJe V. iJuioff, 11 Abb. Pr. (N. S.) 245; Stoch v. ie Boutiller, 19 Misc. Rep. 112; 43 N. Y. Supp. 248, affirming 18 Misc. Rep. 349; Matter of Beck, 6 App. Div. 211; affirmed, on opinion below, in 154 N. Y. 750; Decker v. Gaylord, 35 Hun, 584. The court may permit the p;rosecution to give evidence properly in chief, after the defense has rested. People v. Eoerner, 154 N. Y. 355. Evidence offered in rebuttal may be received in the discretion of the judge, even though its proper place was at an earlier stage of the trial. People v. Taylor, 3 N. Y. Cr. 297. It is not error to allow a party to introduce in rebuttal evidence which should have been offered in chief. Gibson v. Johnson, 21 Misc. Rep. 59, 46 N. Y. Supp. 870; Fox v. Mattheissen, 84 Hun, 396, 65 N. Y. St. R. 554; affirmed in 156 N. Y. 691. See same case, 155 N. Y. 177. Nor is it to exclude evidence for which no foundation has been laid. Merchant v. Jordan, 3 N". Y. Supp. 468, 125 N. Y. 682. But this is discretionary with the judge. Garradine v. Hotchkiss, 120 N. Y. 608, affirming 23 J. & S. 190. If objection is not made the point will be considered as waived. Eublard v. Russell, 24 Barb. 404. It is not error to allow a witness to rebut a defense which the ad- verse party has stated he intends to claim and prove. Dunn v. Peo- ple, 29 N. Y. 523; Gardiner v. People, 6 Park. Cr. 155; Hadcock v. O'Rourke, 6 N. Y. Supp. 549. The court may, in its discretion, allow the defendant to prove his case on the cross-examination of the plaintiff's witnesses. American Encaustic Tiling Co. v. Reich, 35 N. Y. St. R. 579, affirming 34 N. Y. St. R. 64. But it is not error to refuse to permit it. Lange v. Man- hattan Ry. Co., 46 N. Y. St. R. 868 ; PoUatschek v. Goodioin, 17 Misc. Rep. 587, 40 N. Y. Supp. 682, affirming 10 Misc. Rep. 686. Facts brought out on cross-examination may supplement those brought out on the direct, in order to make out the examiner's case. Eawxhurst v. Eennion, 30 N. Y. St. R. 917, 9 N. Y. Supp. 542. 436 A DWEHT OF [Part III. Evidence out of order; motion to strike out. — Evidence may be received out of order on the promise of counsel to introduce connect- ing evidence. If such evidence is not forthcoming, the adverse party may move to strike out the evidence thus received out of order. Bay- liss V. Cockroft, 81 N. Y. 363; Cruse v. Findlay, 16 Misc. Rep. 576. 38 N. Y. Supp. 741. The judge may, in his discretion, admit evidence not apparent!}' relevant. If, in view of later evidence, it is not relevant, it will be stricken out on motion. Merchants' Exchange 'National Bank v. Wallaeh, 20 Misc. Rep. 312, 45 N. Y. Supp. 885, affirming 19 Miso. Rep. 711; Lanahan v. Zeltner Brewing Co., 20 Misc. Rep. 551, 46 X. Y. Supp. 431, affirming 20 Misc. Rep. 712; Tuomey v. O'Reilly, 52 X, Y. St. R. 119, affirmed in 142 N. Y. 678 ; Vnited States Vinegar Co. v. Schlegel, 143 N. Y. 537, 62 N. Y. St. R. 826, affirming 67 Hun, 356. See Oregon Steamship Co. v. Otis, 27 Hun, 452, 14 Abb. X. C. 388, 100 N. Y. 446. If the objection is not thus renewed, the point is waived, ilitchell v. Roulstone, 2 Hall, 351. The remedy for the admission of illegal testimony is to move to strike it out, and that the jury be instructed to disregard it. Alex- ander V. Osborne, 21 Wkly. Dig. 298. An objection to its reception and an exception are not proper. Parsons v. W. Y. Central Rwil- road Co., 113 N. Y. 355, 22 N. Y. St. R. 697. The court is not bound to strike it out. The party should, on re- fusal, ask the court to direct the jury to disregard it. Schulle v. Cunningham, 13 N. Y. St. R. 81; Mann v. Barrows, 14 N. Y. St. E. 10; Simpson v. Manhattan Ry. Co., 17 N. Y. St. R. 68, 1 N. Y. Supp. 673. See Gall v. Gall, 114 N. Y. 121 : Cohn v. Eusson, 6 X. Y. St. R. 292, 113 N. Y. 662, 2 Sill. 249, 23 N. Y. St. R. 505; Plainer v. Plai- ner, 78 N. Y. 90 ; Oawtry v. Doane, 51 N. Y. 84. The court may strike out the evidence of its own motion. Gall v. Gall, 114 N. Y. 109, 22 N. Y. St. R. 746, affirming 12 X. Y. St. R. 604. Such a motion does not lie where the evidence has any proper bearing on the issues as the matter stands. Fredenburgh v. Biddle- com. 85 N. Y. 196; Lindsey v. People, 5 Hun, 104, 67 Barb. 548, 63 X. Y. 143; Spaulding v. Eallenbeck, 35 X. Y. 204; McCabe v. Bray- ton, 38 X. Y. 196 ; Schell v. Cockroft, 19 Wkly. Dig. 277. It should contain a specification of such portions of the evidence as are objected to. Johnson v. Carley, 53 How. Pr. 326; Levin v. Russell, 42 X. Y. 251. Chap. XVT.] TEE L.-Ur OF EVIDENCE. 437 It does not lie on the ground that the adverse party has died dur- ing the trial. Comins v. Hct field. 12 Hun, 375, 80 N. Y. 261. The refusal to strike out is error only in case proper objection was made to its admission. Martin v. Coleman, 14 Misc. Rep. 505, 35 N. Y. Supp. 1069, afBrniing 13 Misc. Rep. 779; Eopetsky v. Metro- politan Elevated R. R. Co., 14 Misc. Rep. 311, 35 N. Y. Supp. 766; Hall V. Earnest, 36 Barb. 585; Quin v. Lloyd. 41 N. Y. 349, reversing 1 Sw. 253. A motion to strike out must be made seasonably. Wynn v. Central Park, North and East Rirer Railroad Co., 38 N. Y. St. E. 181, 14 N. Y. Supp. 172. Evidence must be stricken out, if at all, before the case has been submitted for decision unless power to strike out has been reserved. This rule prevails also in trials before referees. Bloss v. Morrison, 47 Hun, 218. ^Vhere a party has evidence stricken out, he loses the benefit of his previous exceptions to its admission. People v. Wenttvorth, 4 N. Y. Cr. 207. Where inadmissible evidence comes in without objection, the court may strike it out on motion. Pontius >'. People, 82 N. Y. 339; Peo- ple v. McMahon, 2 Park. Cr. 663, 15 N. Y. 384. Opening case for more evidence. — The court may allow a case to be opened and new evidence introduced. Lester v. Croirley, 15 \Tkly. Dig. 265; Van Diisen v. Lake Shore, etc., Ry. Co., 12 N. Y. St. R. 351, 122 X. Y. 666; Fell v. Locomotive Works. 20 N. Y. St. R. 577 ; Carradine v. Hotchkiss, 120 N. Y. 608, affirming 23 J. & S. 190. But this is discretionary with the court. Lindheim v. Buys, 11 Misc. Rep. 16, 63 N. Y. St. R. 453. Irresponsive answers. — An irresponsive answer may be stricken out. Harnicklc v. Parrott Silver Co., 23 N. Y. St. R. 425, 5 N. Y. Supp. 112, 1 Sil. S. C. 75; Platner v. Plainer, 78 N. Y. 90; Boos v. Boos, 16 Wkly. Dig. 217; Warren Chemical Mfg. Co. v. Holhrook, 118 N. Y. 586, affirming 9 X. Y. St. R. 293; Doyle v, Manhattan Ry. Co.. 37 X. Y. St. R. 604; Roberts v. .Johnson, 5 J. & S. 157. 58 N. Y. 613; Lindsey v. People, 63 N. Y. 143, 67 Barb. 548. Or a request may be made for instructions to the jury that they disregard it. Turner v. Newhurgh, 109 N. Y. 301; Holmes v. Moffat, 120 N. Y. 159. Irresponsive answers on cross-examination may be stricken out on motion. People v. Oettinger, 61 N. Y, St. R. 547. 79 Hun, 609; Rock V. White. 86 Hun, 501, 67 N. Y. St. R. 515; Poiclcr v. Hoire Machine Co.. 20 Wkly. Dig. 521. 438 A DIGEST OF [Part III. The adverse party waives no right to object to an answer by fail- ing to object to the question if the answer given was such as not reasonably to be expected. Patterson Oas Governor Co. v. Gletiby, 4 Misc. Eep. 532, 54 N. Y. St. R. 119. See Patterson Gas Governor Co. V. Lichtenstein, 9 Misc. Rep. 126, 59 N. Y. St. R. 700; Patterson Gas Governor Co. v. Bayne, 16 Misc. Rep. 69. It is discretionary to strike out an irresponsive answer where such answer is pertinent in itself. Hare v. Mahoney, 37 N. Y. St. R. 653. If the substance of a witness's answer is itself competent, and might be drawn out by another question, the court may let the an- swer stand, even is not responsive. Xies v. Broadhead, 73 Hun, 255, 58 X. Y. St. R. 677 ; Patterson Gas Governor Co. v. Lichtenstein, 9 Misc. Eep. 126, 59 N. Y. St. R. 700. The answer must either stand or be stricken out as a whole. Spit- zer V. Nassau 'N eioapaper Delivery Co., 20 Misc. Eep. 327, 45 X. Y. Supp. 682. Unless the responsive matter can be clearly separated from that not responsive. Gundlin v. Uaniburg-Anieriean Packet Co., 8 Misc. Rep. 291, 59 N. Y. St. R. 208, affirming 6 Misc. Eep. 620. If to the answer to a question there is added improperly an expres- sion of opinion, such expression may b« stricken out. Ryan v. Peo- ple, 79 N. Y. 593, 19 Hun, 188. If part of an answer is not stricken out it stands unaffected by the motion. People v. Wilkinson, 38 N. Y. St. R. 994. In order to have any remedy on appeal on the ground that an an- swer was not responsive, a motion to strike out must be made. Cou-an V. Third Ave. Railroad Co., 31 N. Y. St. R. 145, 9 N. Y. Supp. 610. Offering testimony. — Unless the relevancy of testimony is clear, counsel must state the object for which it is offered. Ackersloot v. Second Ave. Railroad Co., 39 N. Y. St. R. 146, 8 N. Y. Supp. 926; People V. Wentuorth, 4 X. Y. Cr. 207. An offer of documents in evidence must be absolute, even though for a restricted purpose. Met:: v. Luckmeyer, 36 N. Y. St. R. 85, 128 N. Y. 682. The purpose for which testimony is offered must be stated specifi- cally. Hellriegel v. Manning, 97 N. Y. 56. If evidence be in mitigation of damages counsel must so state if he wish to avail himself of it for that purpose if it has previously been ruled out when offered for another purpose. Travis v. Barger, 24 Barb. 614. Chap. XVI.] TRE LAW OF EVIDENCE. 439 In passing on a ruling the offer will not be extended so as to in- clude matters not in issue. Caulson v. Whitting, 14 Abb. N. C. 60, 12 Daly, 408. The court need rule only when specific questions are asked. It is not error to refuse to rule upon a general offer of testimony. Le- high Stove & Mfg. Co. v. Coliy, 120 N. Y. 640, 2 Stil. 583, 30 N. Y. St. E. 896. In offering testimony counsel must state any facts necessary to show its relevancy. Risley v. Garll, 14 Wkly. Dig. 180; Roy v. Tar- gee, 7 Wend. 359; People v. White, 14 Wend. 111. \A"here testimony is clearly admissible no reason for offering it need be stated. Jones \. Jones, 41 Hun, 163. If two pieces of testimony be offered together, it is not error to exclude them if one be inadmissible by virtue of m. statute, e. g., sec. 829, Code Civ. Pro., with reference to communications with persons since deceased. Riley v. y. T.. Lake Erie & W. R. R. Co., 34 Hun, 97. Evidence offered out of order need not be received. Slocovieh v. Oriental Mut. Ins. Co., 13 Daly, 264, 108 N. Y. 56. In the absence of something on the record to show the contrary, evidence in the case is presumed to be in for all purposes. Shaw v. Bryant, 90 Hun, 374, 70 N. Y. St. E. 612. Evidence competent against one of several defendants only should be offered against him alone. Beste v. Burger, 2 Sil. 91, 110 N. Y. 644, 17 jST. Y. St. E. 170, affirming 17 Abb. N. C. 162, 13 Daly, 317. General objections to testimony. — Objections to evidence not es- sentially incompetent must be specific. Emery v. Baltz, 94 N. Y. 415; Cross v. Smity, 85 Hun, 49, 66 N. Y. St. E. 55; McArdle v. Smith, 1 Misc. Eep. 3, 48 N. Y. St. E. 507 ; Kitohell v. Beck, 2 City Ct. 211, Daily Eeg., 20 March, 1886; People v. Murphy, 135 N. Y. 450, 48 N. Y. St. E. 426, affirming 44 N. Y. St. E. 7; Bur- born V. McDonough, 14 Misc. Eep. 4, 35 N. Y. Supp. 132; Weber V. Germania Fire Insurance Co.. 16 App. Div. 596, 44 ?f. Y. Supp. 976; Snyder v. Lindsey, 92 Hun, 432, 72 N. Y. St. E. 439; Mc- Ardle v. Smith, 1 Misc. Eep. 3, 48 N. Y. St. R. 507; Boyce v. Man- hattan Ry. Co., 22 J. & S..286, 290, 118 N. Y. 314: Bullock v. Opp- man, 15 N. Y. St. E. 990; Oilhert v. Third Ave. R. R. Co., 22 J. & S. 270, 8 N. Y. St. R. 152 ; Bergmann v. Jones, 94 N. Y. 51 ; Sherman V. Beader, 23 Wkly. Dig. 374 ; Turner v. Newburgh, 109 N. Y. 301 ; Crawford v. Metropolitan Elevated Ry. Co., 2 Sil. 565, 30 N. Y. St. E. 866, 120 N. Y. 624. 440 A DIOEHT OF [Pakt III. Unless the other party neglects to ask for such specific objection and the evidence is inadmissible on any ground. Wilson v. Steers, 18 Misc. Rep. 363, 41 N. Y. Supp. 550. If a question is wholly inadmissible, irrespective of any objection, a general objection is suificient. Einniun v. Hare, Daily Reg., 19 May, 1884, reversed on other grounds in 1 Sil. 241, 5 N. Y. St. R. 504, 104 N. Y. 641; Tozer v. N. Y. Central, etc., R. R. Co., 105 X. Y. 659, 1 Sil. 371, 450, 105 N. Y. 617, reversing 38 Hun, 100; Siller- stein v. Houston, W. S. & P. F. R. R. Co., 117 N. Y. 293, reversing 4 N. Y. Supp. 843, 22 N. Y. St. R. 452. Unless the adverse party asks the court to direct the objector to specify the grounds. Wilson v. Steers, 18 Misc. Rep. 364, 41 N. Y. Supp. 550. In a libel suit, an objection that a publication offered in evidence was subsequent to the commencement of the suit, must be so stated. Rosenicald v. Hammerstein, 12 Daly, 377. A general objection to an account will not raise the question as to the competency of particular items, entered in a different manner. N. Y. V. Second Ave. R. R. Co., 102 N. Y.- 572, affirming 31 Hun, 241. A general objection does not present the question of the manner of proof. Tiemeyer v. Turnquist, 85 N. Y. 516; Matter of Saddle- mire, 22 Wkly. Dig. 411. Nor does an objection on the ground of immateriality raise the point that the question is in improper form. Wilder v. Preferred Mutual Accident Assoc., 14 N. Y. St. R. 365. A general objection is insufficient if part of the question is proper. Simson v. Chadimch, 20 Wkly. Dig. 35. Specific objections. — An objection to the materiality of the e\i- dence admits its competency. James v. Ford, 16 Daly, 126, 30 N. Y. St. R. 667, 9 N. Y. Supp. 504. If evidence is competent as against one party, an exception by all is unavailing. Varnum v. Hart, 6 N. Y. Supp. 346, 119 X. Y. 101; Black V. Foster, 28 Barb. 387, 7 Abb. Fr. 406. If part of an agreement is competent, a general objection is un- availing. Malcolm v. Metropolitan Elevated Ry. Co., 36 X. Y. St. R. 741. That a question is " incompetent, immaterial and irrelevant " is too general, unless the question is inadmissible for any purpose. Brown v. Third Avenue R. R. Co., 19 Misc. Rep. 504, 43 N. Y. Supp. 1094, affirming 18 Misc. Rep. 584. Ckap. XVI.] THE LAW OF EMDKNCi:. 441 An objection to " any conversation in respect to professional opin- ion," is not one on the ground that the commvinications are privi- leged. Mahoney v. Slahoney, 14 Misc. Rep. 576, 36 N. Y. Supp. 1091. In a suit for services, a general objection does not raise the point that time and place of payment should be specified. Collins v. Jones, 21 Wkly. Dig. 562. A general objection to a referee's deed does not present the ques- tion that the sale was made by the wrong official. Eoopes v. Auburn Water Works Co., 37 Hun, 568. An objection to testimony as " immaterial and improper, and as it calls for the conclusion of the witness," raises the point that it was an effort to qualify a writing by parol evidence. Holcoinbe v. ilun- aon, 1 Sil. 228, 4 N. Y. St. R. 250, affirming 21 Wkly. Dig. 48. An objection to reading a letter on the ground that it is not in evidence does not raise the question of its admissibility, ilao- Kinstry v. Smith, 16 Misc. Rep. 351, 38 N. Y, Supp. 93, affirming 15 Misc. Rep. 697. An objection to a paper as incompetent, irrelevant and imma- terial, is not an objection that it is not duly executed. MacKinstry v. Smith, 16 Misc. Rep. 351, 38 N. Y. Supp. 93, affirming 15 Misc. Rep. 697; McLachlin v. Brett, 105 N. Y. 391, affirming 34 Hun, 478. Nor that it is not admissible under the pleadings. Vcrtz v. Singer Mfg. Co., 35 Hun, 116; Cranford v. BrooMyn, 13 App. Div. 151, 43 N. Y. Supp. 346. Where a specific objection is made, the admission cannot be sus- tained upon another ground. Sisert v. Brandt. 10 Misc. Rep. 343, 63 N. Y. St. R. 405, reversing 9 Misc. Rep. 713; Dunn v. Parsons, 50 N. Y. St. R. 94, 66 Hun, 635. If no grounds are stated and none called for by the adverse party and the evidence is excluded, it will be presumed that the objec- tion was upon the pi-oper ground. Miner v. Stolts, 11 Misc. 338, 65 N. Y. St. R. 125, affirming 10 Misc. Rep. 778; but see Seligman v. Hahn, 7 Misc. Rep. 65, 57 N. Y. St. R. 527, affirming 4 Misc. Rep. 625. An objection must be taken seasonably. If the evidence is in al- ready, a motion to strike out should be made. Wilson v. Boasierg, 1 Misc. Rep. 436, 51 N. Y. St. R. 53: Link v. Sheldon, 136 N. Y. 1, 48 y. Y. St. R. 820, affirming 45 N. Y. St. R. 165 ; Brand v. 'h^ewton. 82 Huh. 550, 64 N. Y. St. R. 380; Perkins v. Brainard Quarry Co., 11 Misc. Rep. 328, 65 N. y. St. R. 410: Seligman v. Hahn. 7 Misc. Rep. 65, .57 X. Y. St. R. 527, affirming 4 :\Iisc Rep. 625; 442 A DIOEHT OF [Paet III. Holmes V. Roper, 141 N. Y. 64, 56 N. Y. St. R. 596, affirming 51 X. Y. St. R. 940. An objection before a question is asked and before there has been an offer of evidence is unavailing. Matter of Morgan, 104 N. Y. 74; Tochman v. Brown, 1 J. & S. 409. Counsel must follow up objections and see that proper exceptions are taken. Brand v. Neivton, 82 Hun, 550, 64 N. Y. St. R. 386. Where a general question comes in without objection, the right to object to questions explanatory of the answer is waived. Prost v. De Lury, 22 J. & S. 113. The exclusion of a question on the objection that the subject has been exhausted is a matter of discretion. Sanders v. Euling, 8 Civ. Pro. 166, 13 Daly, 238. The court may exclude a question already answered. Moyer v. tHew York Central R. R. Co., 98 N. Y. 645. Or may strike out a question and answer, or call vipon counsel to repeat a question where the adverse party has not had opportunity to object. Foster v. Tanenbaum, 2 App. Div. 168, 73 N. Y. St. R. 454. The jury should consider all evidence received, even though it might liave been excluded on objection. Brake v. Kimball. 5 Stand. 237. See McEenry v. Guy, 65 N. Y. Supp. 867, 53 App. Div. 350. If evidence not embraced in the issues is offered counsel should not rely upon an exception, but should ask for relief upon the ground of surprise. Timoney v. Hoppock, 13 Civ. Pro. 361, 13 iST. Y. St. R. 568. As to the form of objection to evidence, see 29 Abb. X. C. 439, n. As to objections on the ground of incompetency of witnesses, see Article 107. Effect of failure to object. — Objection must be made at the trial in order to entitle the losing party to the benefit of the point on ap- peal. Schoener v. Lissauer, 36 Hun, 100, reversed on other grounds in 107 N. Y. Ill; Phillips v. Covell, 79 Hun, 210, 61 N. Y. St. R. 156; Burborn v. McDonough, 14 Misc. Rep. 4, 35 X. Y. Supp. 132; Scott V. Metropolitan Elevated R. R. Co., 50 N. Y. St. R. 214, af- firmed in 140 N. Y. 623; Case v. Case, 49 Hun, S3. 17 X. Y. St. R. 313; Fowler v. Bowery Savings Bank, 23 Abb. X. C. 133, 2 Sil. 280, 113 N. Y. 450, 23 N. Y. St. E. 130, reversing 47 Hun, 399. All objections not stated are waived. Walsh v. Brown. 2 Sil. S. C. 564. See 22 N. Y. St. R. 844, 4 N. Y. Supp. 79; Eastwood v. Retsof Mining Co., 86 Hun, 91, affirmed in 152 X. Y. 651. CiiAp. XVI.] THE LAW OF EVIDENCE. 443 The right to object may be waived. Austin v. Southworth, 13 Misc. Rep. 45, 68 N. Y. St. R. 91 ; Morley v. Castor, 71 N. Y. Supp. 363, 63 App. Div. *38 ; Supervisors of Tompkins v. Bristol, 99 N. Y. 316. Failure to object to evidence offered on one defense does not con- stitute a waiver of its admissibility on other defenses. Lyung- strandh v. HaaJcer Co., 16 Misc. Rep. 387, 38 N. Y. Supp. 129. Whore evidence has come in without objection, it cannot bo claimed that it was not within the pleadings. Raymond v. Baker, 66 Barb. 605. The objection must be renewed each time the question is asked. Schalk V. Norris, 7 Misc. Rep. 20, 57 N. Y. St. R. 505. But see Goe- let V. Laivlor, 16 Misc. Rep. 59, 37 N. Y. Supp. 691. The grounds of objection need not be restated when the circum- stances are such that it must have been understood they were the same. KoeUer v. Scheider, 16 Daly, 235, 31 N". Y. St. R. 549, 10 X. Y. Supp. 101; Carlson v. Winterson, 147 N. Y. 652, affirming 10 Misc. Rep. .388, remittitur amended in 147 N. Y. 723, reargument denied in 148 N. Y. 754. See 146 N". Y. 345; Englert v. Kruse, 8 N. Y. St. R. 375. An omission to object does not prevent a party from asking in- structions that it is not to be considered by the jury. Hamilton v. X. Y. Central R. R. Co., 51 N. Y. 100. Article 127. to what matters cross-examination and ee-examina- tion must be directed. The examination and cross-examination must relate to facts in issue or relevant or deemed to be relevant thereto, but the cross-examination need not be confined to the facts to which the witness testified on his examination in chief. The re-examination must be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re- 444 A DIGEST OP [Pakt III. examination, the adverse party may further cross-examine upon that matter. AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sec. 529; 1 Greenleaf on Evidence (15th ed.), sees. 445-447, 467. Cross-examination. — The cross-examination in some States must be limited to the matters covered by the direct examination. Hough- ton V. Jones, 1 Wall. 702; Carey v. Hart, 63 Vt. 424; Sullivan v. Railroad Co., 175 Fa. 361; Rigdon -s. Conley, 141 111. 565; Richards V. State, 82 Wis. 172; Donnelly v. State, 26 N". J. L. 463, 601 ; People V. Van Ewan, 111 Cal. 144; State v. Wright, 40 La. Ann. 589; Wil- liams V. State, 32 Fla. 315; Martin v. Exp. Ins. Co., 85 la. 643; State V. Smith, 49 Conn. 376; Chapman v. Loomis, 36 Conn. 460; Burns v. Fredericks, 37 Conn. 91; Ashborn v. Waterbury, 69 Conn. 217 ; State v. Green, 35 Conn. 208. Contra, Blaclington v. Johnson, 126 Mass. 21; Seal v. Nichols, 2 Gray (Mass.), 262; Moody v. Row- ell, 17 Pick. (Mass.) 490, 498; Merrill v. Berkshire, 11 Pick. (Mass.) 269; Webster v. Lee, 5 Mass. 334; Gerrish v. Cummings, 4 Oush. (Mass.) 391; S^i'Zes v. Allen, 5 Allen (Mass.), 320. Where it is so limited the court has a discretionary power as to how far to permit cross-examination to extend to matters not strictly germane to the direct examination, and no error can be predicated upon the exercise of such discretion. Steene v. Aylesworth, 18 Conn. 254; Chapman v. Loomis, 36 Conn. 466; State v. Bradley, 48 Conn. 535; Tompkins v. West, 56 Conn. 484; Dale's Appeal, 5" Conn. 142; State V. Duffy, 57 Conn. 528, 529; Tyler v. Waddingha^n, 58 Conn. 396, 397; Osborne v. Troup, 60 Conn. 498; State v. McGoivan, 66 Conn. 392 ; Spiro v. Within, 72 Conn. 202. Re-examination. — Oakland Ice Co. v. Marcy. 74 Me. 294. 301; I'. S. V. 18 Barrels, etc., 8 Blatchf. 475; McElhcny r. Pittsburgh, etc., R. Co., 147 Pa. 1; Stoner v. Devilbiss, 70 Md. 144; Somerville. etc., R. Co. V. Dougherty, 22 N. -J. L. 495; Plow Co. v. Hawthorn, 71 Wis. 529; Farrell v. Boston, 161 Mass. 106; OoZe v. Wooldredge, 142 Mass. 161. New York. Scope of cross-examination. — The scope of the cross-examination is largely in the discretion of the court. It is generally limited to matters covered bv the direct. Neil v. Thorn, 88 N. Y. 270; Chap. XVI.] THE LAW OF EVIDENCE. 445 Hartness v. Boyd, 5 Wend. 563; Kerker v. Barter, 1 Hill, 101; Be- dell V. Powell, 13 Barb. 183; Allen v. Hodi}ie, 6 Barb. 383; Fry v. Bennett, 3 Bosw. 200; J/o^er v. People. 80 N. Y. 364; People v. Oi/er ared Terminer Ct., 83 N. Y. 436; Knight v. Cunningion, 6 Hun, 100; Hardy v. Xorton, 66 Barb. 527. See Langlcy v. Wadsirorth, 99 N. Y. 61 ; Hare v. ilnhoney, 36 N. Y. St. R. 658. Re-examination. — Richardson v. lFi7Ains, 19 Barb. 510; Foster v. Tanenhaum, 2 App. Div. 168; C^ar/v r. Torre, 15 Wend. 193; People V. Buchanan, 145 N. Y^. 1 ; King v. Second Ave. R. Co., 75 Hun, 17. Article 12S. LEADING QUESTIONS. Questions suggesting tlie answer ^vllich the person put- ting the question wishes or expects to receive, or suggesting disputed facts as to which the witness is to testify, must not, if objected to by the adverse party, be asked in examination in chief, or in re-examination, except with the permission of the Court, but such questions may be asked in cross-examination. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 434, 435, 445; 1 Wharton on Evidence, sees. 499-504. Leading questions. — lloody v. Rotoell, 17 Pick. (Mass.) 498, 28 Am. Dec. 317; Coogler v. Rhodes, 38 Fla. 240; Harrey v. Osborn, 55 Ind. 535; Peojjle v. Mather, 4 Wend. 229. It is discretionary with the court in both civil and criminal cases to allow leading questions on the direct examination. Xorther'n Pac. R. Go. v. Vrlin, 158 U. S. 271 ; Badder v. Kcefer, 91 Mich. 611; Ooudy v. Werbe, 117 Ind. 154; Crean v. Houngan, 158 111. 301; Qreen v. Oould, 3 Allen (Mass.), 465; Com. v. Thrasher, 11 Gray (Mass.), 57; Moody v. Rovell, 17 Pick. (Mass.) 490, 498. The judge may himself ask leading questions of a witness. Com. V. Qalavan, 9 Allen (Mass.), 271. See Brubaker \. Taylor, 76 Pa. 446 A DIGEST OF [Part III. St. 83; Chandler v. Fleeman, 50 Mo. 239; Oabbett v. Sparks, 60 Ga. 582. Cross-examination.— /S'*raifo?-d v. Sanford, 9 Conn. 284; Eelfrich V. Stein, 17 Pa. 143; V. 8. v. Dickinson, 2 McL. 325. Numerous items. — Where the examination relates to items too numerous to be thought of by the witness, leading questions may- be employed. Huckins v. People's Ins. Co., 31 N. H. 238; Orates v. Merchants' Ins. Co., 82 la. 637. Hostile witness. — In case of a hostile witness, the court may allow leading questions on the direct examination. State v. Benner, 64 Me. 267; Whitman v. Morey, 63 N. H. 448; McBride v. Wallace, 62 Mich. 451; Bradshaw v. Comis, 102 111. 428; St. Glair v. U. 8., 154 U. S. 150; Stratford v. Sanford, 9 Conn. 284; State v. Stevens, 65 Conn. 93. A leading question, when improper, may be replaced by a proper question. Allen v. Eartford Life Ins. Co., 72 Conn. 697. New York. Leading questions. — People v. Mather, 4 Wend. 229; Eublyell v. Bowe, 49 Super. Ct. 131 ; Weher v. Kingsland, 8 Bosw. 438. See People V. Oyer and Terminer Court, 83 N. Y. 436. O'Eagan v. Dillon, 76 N. Y. 170. The discretion of the court in permitting leading questions to be asked otherwise than on the cross-examination is not reviewable on appeal. Vrooma,n v. Griffiths, 1 Keyes, 53; Cope v. Siiley, 12 Barb. 521 ; King v. Second Ave. R. Co., 75 Hun, 17 ; Woodin v. People, 1 Park. Cr. 465; Duryea v. Voshurgh, 1 N. Y. Supp. 833; Budlong v. Van Nostrand, 24 Barb. 25; O'Neill v. Eowe, 16 Daly, 181; Oheeney V. Arnold, 78 Barb. 434; Walker v. Dunspaugh, 20 N. Y. 170; Booker T. Pilkins, 9 Misc. Rep. 146. The making of a general objection will not raise the question whether a question put was leading or not. Car?- v. Ilch, 12 N. Y. St. R. 569. Numerous items. — Where the examination relates to items too numerous to be thought of by the witness, leading questions may be employed. Stuart v. Binsse, 10 Bosw. 436. Hostile witness. — The court may allow leading questions on the direct, if its witness is hostile. People v. Mather, i Wend. 229. See Bullard v. Pearsall, 53 N. Y. 258. Chap. XVI.] THE L.V,Y OF EVIDENCE. 447 Article 129.* questions lawful in cross-examination. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any ques- tions which tend — (1) To test his accuracy, veracity, or credibility; or (2) To shake his credit, by injuring his character. Provided that a person charged with a criminal offence and being a witness under the Criminal Evidence Act, 1898, may be cross-examined to the effect, and under the circumstances, described in Article 56. Witnesses have been compelled to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness ; but it is submitted that the Court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not in the opinion of the Court affect the credibility of the witness as to the matter to which he is required to testify. In the case provided for in Article 120, a witness cannot be compelled to answer such a question. Illustration. (a) The question was whether A committed perjury in swearing that lie was R. T. B deposed that he made tattoo marks on the arm of R. T., which at the time of the trial were not and never had been on the arm of A. B was asked and was compelled to answer the question whether, many years after the alleged tattooing, and many * See Note XLVI. 448 A Dli}EfiT OF [Paet III. years before the occasion on which he was examined, he committed adultery with the wife of one of his friends.ss AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed. ), sees. 44.5, 446, 451-460; 1 Wharton on Evidence, sees. 527-548. A witness may be compelled to answer questions tending to dis- grace him. The extent to which they may be asked is discretionary with the court. Beivncker v. Merkey, 102 Pa. 462 ; Storm v. U. S., 94 U. S. 76; Smith v. State, 64 Md. 25; State v. Hack, 118 Mo. 92; Helwig v. hascowski, 82 Mich. 619; Shelby v. Clagett, 46 O. St. 549; South Bend v. Hardy, 98 Ind. 577; Gutterson v. Morse, 58 N. H. 165. To test accuracy, etc. — Tudor Iron Works v. Weber, 129 111. 535 ; Wallace v. Wallace, 62 la. 651; McFadden v. Santa Amm, ate, B. Co., 87 Cal. 464; Vniacke v. Chicago, etc., R. Co., 67 Wis. 108; State V. Duffy, 57 Conn. 525. Bias, etc. — Questions to show bias, etc., are allowed. Fitzpatrick V. Riley, 163 Pa. 65; County Comes, v. :\[inderlein, 67 Md. 567; HinchcHffe v. Koontz, 121 Ind. 422; People v. Thomson, 92 Cal. 506; Wallace v. Taunton St. R. R. Co., 119 Mass. 91. Collateral matters to affect credibility are not admissible. This is largely a question of discretion. Com. v. Schaffner, 146 Mass. 512; Sullivan v. O'Leary, 146 Mass. 322; Barhley v. Copeland, 86 Cal. 483. The witness may be asked if he has had a lawsuit with one of the parties. Spiro v. Xitkin, 72 Conn. 205. Questions may be asked on cross-examination to show the interest of the witness in the result of the suit. Dore v. Babcock, 72 Conn. 409. Questions to test the moral sense of the witness are not allow- able. Com. V. Shaw, 4 Cush. (Mass.) 593. A witness may be asked if he has been in prison. Com. v. Bon- ner, 97 Mass. 587. In a suit by a physician to recover for services rendered by a substitute, the substitute having testified that the charges are reasonable, may be asked on cross-examination what his own fees would have been. Sayles \. Pitz Gerald, 72 Conn. 395. 25 if, v. Orton, 1874. See summing-up of Cockburn, C.J., vol. ii. p. 719, &c. Chap. XVI.] TEE LAW OF EVIDENCE. 449 A question intimating that another witness has testified diflfer- ently from the one under examination is not proper on cross-ex- amination. Turner's Appeal, 72 Conn. 314. New York. To test accuracy, etc. — People v. Fleming, 14 N. Y. Supp. 200; Richards v. Derrick, 2 N. Y. Supp. 31 ; Miles v. Sachett, 30 Hun, 68 ; Knight v. Forward, 63 Barb. 311 ; Woodrick v. Woodrick, 141 N. Y. 457. See Eare v. Mahoney, 14 N. Y. Supp. 81. Shaking the credit of witness, etc. — Bernstein v. Singer, 1 App. Div. 63; People v. Jeffrey, 82 Hun, 409; Matter of Gross, 85 Hun, 343; Stokes v. People, 53 N. Y. 164; Eoward v. City F. Ins. Co., 4 Den. 502; Russell v. St. Nicholas F. Ins. Co., 51 N. Y. 643; Vaughn V. Westover, 2 Hun, 43; Maine v. People, 9 Hun, 113; Ryan v. Peo- ple, 19 Hun, 190; Allen v. Bodine, 6 Barb. 383. See Green v. Metro- politan St. Ry. Co., 70 N. Y. Supp. 123. A witness may be compelled to answer questions, even as to col- lateral matters tending to disgrace him. The extent to which they may be asked is discretionary with the trial court. Great West Turn- pike Co. V. Loomis, 32 N. Y. 127; People v. Oyer and Terminer Ct., 83 N. Y. 436; People v. Irving, 95 N. Y. 541; Southworth v. Ben- nett, 58 N. Y. 659; Ryan v. People, 79 N. Y. 593, affirming 19 Hun, 190; Brandon v. People, 42 N. Y. 265; People v. Qay, 7 N. Y. 378; Lipe V. Eisenlerd, 32 N. Y. 229 ; Jackson v. Eumphrey, 1 Johns. 498 ; People V. Rexford, 6 Cow. 254; People v. Bodine, 1 Den. 281. See Langley v. Wadsworth, 99 N. Y. 61 ; Le Beau v. People, 34 N. Y. 223, 230 ; Roos v. Decker, 68 N. Y. Supp. 790. A witness may be asked if and how long he has been in prison. Real V. People, 42 N. Y. 270. See People v. McGormiek, 135 N. Y. 663. But in criminal cases questions tending to prejudice the mind of the jury against the witness, who is the accused, are improper, and the discretion of the trial court iu allowing them in spite of objections is reviewable on appeal. People v. Crapo, 76 N. Y. 288, 32 Am. Kep. 302; People v. Webster, 139 N. Y. 73; People v. Noelke, 94 N. Y. 137. See Van Bokkelen v. Berdelle. 130 N. Y. 141. Bias, etc. — Questions to show bias, etc., are allowed. Matter of Will of Snelling, 136 N. Y. 515; People v. Webster, 139 N. Y. 73; Schultze V. Third Ave. R. Co., 89 N. Y. 242; Garnsey v. Rhodes, 138 N. Y. 461, 53 N. Y". St. R. 6, affirming 45 N. Y. St. R. 145; Newton 29 450 A DIQEHT OF [Pabt III. V. Harris, 6 N. Y. 345; Miles v. Sackett, 30 Hun, 68; Gambeis v. Third Ave. B. Co., 1 Misc. Rep. 158; Vaughn v. Westover, 4 Thomp. & C. 316. So, when a party becomes a witness and testifies. Lamb v. Lamb, 146 N. Y. 317. Aeticle 129a. judge's disceetion as to cross-examination to credit. The judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him [i.e. the judge] to be vexatious and not rele- vant to any matter proper to be inquired into in the cause or matter.^^ AMERICAN NOTE. See note under Article 129. Article 130. exclusion of evidence to contradict answers to questions testing veracity. When a witness under cross-examination has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence can be given to con- tradict him except in the following cases: — '' 20 R. S. C, Order XXXVI., rule 38. I leave Article 129 as it orig- inally stood; because this Order ia after all only an exception to the rule. " Him " must refer to the judge, as it would otherwise refer to the " party or other witness,'' which would be absurd. 27 A. G. V. Hitchcock, 1847, 1 Ex. 91, 99-105. See, too. Palmer v, Trower, 1852, 8 Ex. 247. Chap. XVI.] THE LAW OF EVIDENCE. 451 (1) If a witness is asked whether he has been previ- ously convicted of any felony or misdemeanour, and denies or does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof .^^ (2) If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted.^^ AMERICAN NOTE. General. Authorities. — 1 Wharton on Evidence, sec. 559 ; 1 Greenleaf on Evidence (15th ed.), sec. 449. First paragraph of text. Coombs v. Winchester, 39 N. H. 13, 75 Am. Dec. 203 ; Davis v. Roliy, 64 Me. 427 ; Pullen v. Pullen, 43 N. J. Eq. 136; Bobbins v. Spencer, 121 Ind. 594; Buckley v. Silverberg, 113 Cal. 673; Eester v. Com., 85 Pa. 139; Moore v. People, 108 111. 484; Sloan v. Edwards, 61 Md. 89. The witness cannot be contradicted as to collateral matters. State v. Benner, 64 Me. 267; Alexander v. Kaiser, 149 Mass. 321; McGuire V. McDonald, 99 Mass. 49; Com. v. hyden, 113 Mass. 452. A witness cannot be cross-examined as to irrelevant matters for the mere purpose of contradicting him. Tyler v. Todd, 36 Conn. 224. A party who puts an irrelevant question, on cross-examination, cannot afterwards offer evidence to contradict the answer given. Winton v. Meeker, 25 Conn. 464. Conviction. — Com. v. Bonner, 97 Mass. 587 ; Com. v. Gorham, 99 Mass. 420. The conviction may be proved by the record or by the answers of the witness on cross-examination. State v. Elwood, 17 R. I. 763; State V. McOuire, 15 R. I. 23: State v. O'Brien, 81 la. 93; State v. Sauer, 42 Minn. 258; People v. Crowley, 100 Cal. 478; Burdett v. Com., 93 Ky. 76; Simons v. People, 150 111. 66 (record, criminal cases) . 28 28 & 29 Vict. c. 18, ». 6; re-enacting 17 & 18 Viet. c. 125, s. 25, now repealed. 29 A. Q. V. Eitchcock, 1847, 1 Ex. 91, pp. 100, 105. 452 A DIGEST OF ■ [Part III. Bias. — In a qui tarn action for taking usury, the party who had paid it, having testified to that effect, was asked on cross-examina- tion, whether he had not had a controversy with the defendant, and threatened to be revenj^ed on hira for collecting the note alleged to be usurious. Held, that the questions were admissible, and that his answers in the negative might be contradicted by other testimony. Atwood V. Welton, 7 Conn. 70. Interest. — Folsom v. Brown, 25 N. H. 114; Davis v. Roby, 64 Me. 427 ; Kent v. State, 42 0. St. 426 ; Staser v. Hogan, 120 Ind. 207 ; Phenix v. Castner, 108 111. 207; Beardsley v. Wildman, 41 Conn. 515; Tolbert v. Burke, 89 Mich. 132; People v. Murray, 85 Cal. 350. New York. Authorities.— Peopie v. Ware, 29 Hun, 473, 92 N. Y. 653; People V. Murphy, 135 N. Y. 450; Morris v. Atlantic Ave. B. R. Co., 116 N. Y. 552. A party may contradict particular statements contained in deposi- tions which he himself has introduced in evidence. Baker v. Mc- Loughlin, 19 Wkly. Dig. 444. A witness is not discredited, as of course by the fact that he has contradicted himself on a point immaterial to the issue. Judgment (Com. PI. 1895), 35 N. Y. Supp. 766, 14 Misc. Pep. 311, affirmed. Kopetsky v. Metropolitan El. By. Co., 53 N. E. 1127, 159 N. Y. 539. Conviction. — Conviction must be proved by the record, and it is improper to seek to bring it out on cross-examination. Neweomb v. Qriswold, 24 N. Y. 298. One may be asked if he has been in State's prison. Real v. People, 42 K Y. 270. Interest. — Sustaining last paragraph of text. Neicton v. Har- ris, 6 N. Y. 345. Article 131.* statements inconsisteitt with pbesejstt testimony mat be proved. Every witness under cross-examination in anv proceed- ing, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the * See Note XLVII. Chap. XVI.] TEE LA^y OF EVIDENCE. 453 proceeding and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he has made such a state- ment, proof may be given that he did in fact make it. The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that he is " adverse " [i.e. hostile] to the party by whom he was called and permits the question. It seems that the discretion of the judge cannot be reviewed afterwards.^" AMERICAN NOTE. General. Authorities. — ■ 10 Encyclopaedia of Pleading and Practice, p. 279 et seq.; 1 Greenleaf on Evidence (15th ed.), sec. 462; Sanderson v. Nashua, 44 N. H. 492; Martin v. Towle, 59 N. H. 31. First paragraph of text. Ayers v. Watson, 132 U. S. 394; Atchi- son, etc., E. Co. V. Feehan, 149 111. 202; Bice v. Bice, 104 Mich. 371; Welch V. Ahbott, 72 Wis. 512; Birch v. Hall, 99 Cal. 299; Brown v. State, 72 Md. 468 ; State v. Jones, 44 La. Ann. 960 ; Spohn v. Mo. Pac. B. Co., 122 Mo. 1 ; Ealey v. State, 63 Ala. 83 ; Stratford v. Fairfield, 3 Conn. 591; Burns v. Fredericks, 37 Conn. 92; Beardsley v. Wild- man, 41 Conn. 516; Harrison's Appeal, 48 Conn. 206. If the statement is of some irrelevant matter, the answer of the witness is binding. Com. v. Mooney, 110 Mass. 99, 101. Where a party has oflfered an account-book in evidence, evidence that upon the trial of another case he had testified that he had no such book, is admissible. Sayles v. Fitz Gerald, 72 Conn. 391. The contradictory statements may be proved independently, with- out first asking the witness if he made them. Ware v. Ware, 8 Greenl. (Me.) 42, 53; Wilkins v. Bohhershall, 32 Me. 184; Gooh v. Brown, 34 N. H. 460; BoUnson v. Hutchinson, 31 Vt. 443, 449; Holbrook v. Holbrook, 30 Vt. 433; Tucker v. Welsh, 17 Mass. 160, 30 Bice V. Howard, 1886, 16 Q. B. D. 681. 484 A DIGEST OF [Part III. 166, 9 Am. Dec. 137; Day v. Stickney, 14 Allen (Mass.), 255, 260; Gould V. Norfolk Lead Co., 9 Gush. (Mass.), 338. Compare Cogswell V. Newburyport Sav. Inst., 165 Mass. 524; Com. v. Smith, 163 Mass. 411; Hedge v. Clapp, 22 Conn. 262, 265, 9 Am. Dec. 137; Tomlinson V. Derhy, 43 Conn. 562; ButUr v. Cornwall Iron Co., 22 Conn. 357. But see Rothrock v. Qallaher, 91 Pa. 108. Some courts hold that a party cannot impeach his own witness, by proving inconsistent statements. Cox v. Eayres, 55 Vt. 24. But see Stats, of Vermont, sec. 1247; Bildreth v. Aldrich, 15 E,. I. 163; Brewer v. Porch, 17 N. J. L. 377; State v. Burks, 132 Mo. 363; Wheeler V. Thomas, 67 Conn. 577; Dixon v. State, 86 Ga. 754; Adams V. Wheeler, 97 Mass. 67 ; Stearns v. Merchants' Bank, 53 Pa. St. 490 ; Sail V. Chicago, etc., R. Co., 84 la. 311 ; Tarsney v. Turney, 48 Fed. Kep. 818; Rindskopf v. ffuder, 145 111. 607; Chester v. Wilhelm, 111 N. C. 314. But see Brulaker v. Taylor, 76 Pa. St. 83; Coa; v. Eayres, 55 Vt. 24, 45 Am. Eep. 583. This does not apply to a witness whom one is obliged to call (e. g., attesting witnesses). Thornton v. Thornton, 39 Vt. 122; Shorey v. Eussey, 32 Me. 579; Whitman v. Morey, 63 N. H. 448; State v. iSfJacfc, 69 Vt. 486; Hildreth v. Aldrich, 15 R. I. 163. See People v. Case, 105 Mich. 92. Nor to an adverse witness. Eurlburt v. Bellows, 50 N. H. 102; Putnam v. ?7. S., 162 U. S. 697-707 ; McNerney v. Read- ing, 150 Pa. St. 611; White v. State, 87 Ala. 24; Selover v. Bryant, 54 Minn. 434 ; Smith v. Briscoe, 65 Md. 561 ; S^ot. Syrup Co. v. Carlson, 42 111. App. 178. New York. Authorities. — Andersmit v. Tuch, 114 N. Y. 51; Pendleton v. Em- pire, etc., Co., 19 N. Y. 13; MeCulloch v. DoSson, 133 N. Y. 114; People V. Weldon, 111,N. Y. 569. Evidence of statements contradictory to those made on the stand may be introduced. Ward v. Sire, 65 N. Y. Supp. 101, 52 App. Div. 443; Crossman v. Lurmam, 68 N. Y. Supp. 311, 57 App. Div. 393. The evidence of the plaintiff may be impeached by her cross-exam- ination upon a former trial, which is evidence for that purpose, al- though her attention was not called to it. Fisher v. Monroe, 51 N. Y. St. E. 585, reversing 1 Misc. Eep. 14, reargument denied in 3 Misc. Eep. 633. See 16 Daly, 461. The evidence stated in a case made on a former trial, is not ad- missible, to impeach the testimony of a witness. Neilson v. Colum- hian Insurance Co., 1 Johns. 301. Chap. XVI.] THE LAW OF EVIDENCE. 455 Corroborating a witness. — A witness cannot be permitted to cor- roborate the testimony of another witness, by stating that she heard the latter say, in a prior conversation, what he had testified to at the trial. Eggleston v. Columbia Turnpike Road, 82 N. Y. 278, re- versing 18 Hun, 146, on a point not considered below. And see Peo- ple V. Cox, 21 Hun, 47, 83 N. Y. 610. Article 132. ceoss-bxamination as to peevious statements in WEITING. A witness under cross-examination [or a witness whom the judge under the provisions of Article 131 has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony j may be questioned as to previous statements made by him in writing, or reduced into writing, relative to the subjects matter of the indictment or proceeding, without such writ- ing being shown to him [or being proved in the first in- stance] ; but if it is intended to contradict him by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of contradicting him. The judge may, at any time during the trial, require the docu- ment to be produced for his inspection, and may thereupon make such use of it for the purposes of the trial as he thinks fit." 31 28 Vict. c. 18, s. 5, re-enacting 17 & 18 Vict. c. 125, s. 24, now repealed. I think the words between brackets represent the meaning of the sections, but in terms they apply only to witnesses under cross-examination — " Witness may be cross-examined," &c. 456 A DIGEST OF [Pabt III. AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence (15th ed.), sees. 463-465; 1 Wharton on Evidence, sec. 68 ; 10 Eneyelopasdia of Pleading and Practice, p. 291, et seq. See Whitman v. Morey, 63 N. H. 448. Modifying rule of text. Hosmer v. Groat, 143 Mass. 16; Chicago R. Go. V. McLoughlin, 146 111. 353; Lightfoot v. People, 16 Mich. 507; State V. Stein, 79 Mo. 330; Glenn v. Gleason, 61 la. 28; Floyd v. State, 82 Ala. 16; State v. Cellegari, 41 La. Ann. 578; Chicago, etc., R. Co. V. Artery, 137 U. S. 507 ; Morford v. PecTc, 46 Conn. 380. New York. See Gafney v. People, 50 N. Y. 416, 423; Newcoinh v. Griswold, 24 N. Y. 298, 301 ; Bemertze v. Basf iJwer Sarafc, 49 N. Y. 577. In an action for wrongful discharge from employment, where the defendant testified to the terms of the contract it was proper, on cross-examination, to call his attention to allegations in his verified answer in conflict therewith ; and this though the answer was verified by advice of counsel. Hare v. Mahony, 36 N. Y. St. R. 653. Article 133. impeaching credit of witjfess. The credit of any witness may be impeached by the adverse party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath. Such persons may not upon their examination in chief, give reasons for their be- lief, but they may be asked their reasons in cross-examina- tion, and their answers cannot be contradicted.^^ No such evidence may be given by the party by whom any witness is called,^^ but, when such evidence is given by 32 2 Ph. Ev. 503-4 ; Taylor, 1470, 1470a. See K. v. Brown, 1867, 1 C. C. R. 70. 33 28 Viet. c. 18, s. 3. Chap. XVI.] THE LAW OF EVIDENCE. 457 the adverse party, the party who called the witness may give evidence in reply to show that the witness is worthy of credit.^* AMERICAN NOTE. General. Authorities. — 10 Encyclopaedia of Pleading and Practice, p. 299 et seq.; 1 Wharton on Evidence, sees. 397, 567, 568; 1 Greenleaf on Evidence (15th ed.), sec. 461. One who knows nothing of the character of a witness, except what he heard on two occasions, cannot testify as an impeaching witness. Com. V. Rogers, 136 Mass. 158. As to qualification, generally, see Bates v. Barber, 4 Cush. (Mass.) 107; Wetherlee v. Norris, 103 Mass. 565; Rundell v. La Fleur, 6 Allen (Mass.), 480. An impeaching witness may be cross-examined as to the source of his information. State v. Howard, 9 N. H. 485 ; Hepworth v. Hen- shall, 153 Pa. St. 592; BolUns v. Spencer, 121 Ind. 594. See Holly- ivood V. Reed, 57 Mich. 234; Bates v. Barher, 4 Cush. (Mass.) 107. An impeaching witness may not be asked reasons on the direct, but may on the cross-examination. Weeks v. Hull, 19 Conn. 376, 379, 50 Am. Dec. 249. An impeaching witness may be asked on cross-examination how he has received his information as to the general character of the wit- ness impeached, and what persons he has heard speak against it. Weeks v. Hull, 19 Conn. 379. It is well settled that a new trial should not be granted for newly- discovered evidence that would impeach the general reputation of a witness for truth and veracity. Evidence that a witness since the trial had told a different story from that which was told in court, is essentially of an impeaching character. Husted v. Mead, 58 Conn. 61, 62. The character of a witness for truth is the only thing that can be attacked, in an attempt to impeach him. State v. Randolph, 24 Conn. 366. The court may limit, at its discretion, the number of impeaching witnesses; though, should the limit be fixed manifestly too low, it might be ground for a new trial. Six on a side will ordinarily be sufficient. Bunnell v. Butler, 23 Conn. 69; Hollywood v. Reed, 57 Mich. 234. 34 2 Ph. Ev. 504. 458 A DIGEST OF [Part III. Impeaching and contradicting party's own witness. — One may con- tradict his own witness. Seavy v. Dearborn, 19 N. H. 351; fiwamscot Mach. Co. V. Walker, 22 N. H. 457; Wheeler v. Thomas, 67 Conn. 577 ; Olmstead v. Winsted Bank, 32 Conn. 278, 85 Am. Dee. 260. While a party may disprove a fact testified to by his witness, he cannot impeach him under the rule of this article. Hill v. West End St. R. R. Co., 158 Mass. 458; Brolley v. Lapham, 13 Gray (Mass.), 294; Com. v. Welsh, 4 Gray (Mass.), 535; Com. v. Starkweather, 10 Gush. (Mass.) 59; Whitaker v. Salisbury, 15 Pick. (Mass.) 534; Whitney v. Eastern B. R. Co., 9 Allen (Mass.), 364; Brown v. Bel- lows, 4 Pick. (Mass.) 179; Wheeler v. Thomas, 67 Conn. 577. This rule applies also to a witness which he is obliged to call, as an attesting witness. Broion v. Bellows, 4 Pick. (Mass.) 179, 194; Whitaker v. Salisbury, 15 Pick. (Mass.) 534. Supporting witness. — The party whose witness is attacked may give evidence in support of his reputation. Com. v. Ingraham, 7 Gray (Mass.), 46, 48; First Nat'l Bk. v. Wolft, 79 Cal. 69; Magee v. People, 139 111. 138; Sloan v. Edwards, 61 Md. 89. As a general rule, a witness cannot be supported by evidence of his general character for truth, excepting after a general impeach- ment of it. Merriam v. H. & N. E. R. R. Co., 20 Conn. 364 ; Rogers V. Moore, 10 Conn. 16, 17. Reputation only provable. — General reputation as to truthfulness may be shown. State v. Howard, 9 N. H. 485; Titus v. ±sli, 24 X. H. 319; Bd. of Commerce v. O'Connor, 137 Ind. 622; Isler v. Dewey. 71 N. C. 14 ; Walker v. Phenix Ins. Co., 62 Mo. App. 209 ; Hodgkins v. State, 89 Ga. 761, 765. Contra, Webb v. State, 29 0. St. 351 : Wertz V. May, 21 Pa. St. 274; State v. Archer, 73 la. 320; People r. Olm- stead, 30 Mich. 431. Reputation eighteen months before may be sho%vn. Com. v. Bil- lings, 97 Mass. 405. Particular falsehoods. — Particular instances of falsehood cannot be shown. Com. v. Rogers, 136 Mass. 158, 159; Quinsigamond Bank V. Hobbs, 11 Gray (Mass.), 250; Com. v. Lawler, 12 Allen (Mass.), 585; Com. v. Kennon, 130 Mass. 39; Drew v. State, 124 Ind. 9; State v. Rogers, 108 Mo. 202; People v. Ryan, 108 Cal. 581; Robbins v. Spencer, 121 Ind. 594; Laclede Bk. v. Keeler, 109 111. 385; State v. Spurling, 118 N. C. 1250. Sustaining witnesses. — See 10 Encyelopsedia of Pleading and Practice, 324 et seq., where there is a full citation of authorities. Chap. XVI.] THE LAW OF EVIDENCE. 459 New York. The general reputation as to truthfulness may be shown. Oilbert V. Shelden, 13 Barb. 623; Bakeman v. Kose, 14 Wend. 110; Jackson v. Lewis, 13 Johns. 504. The jury is at liberty to disbelieve the evidence of a party defend- ant or of his managing agent, although uncontradicted and although the witness is not impeached. Brumfield v. HilJ, 28 N. Y. St. E. 362, 8 N. Y. Supp. 143. The impeaching witness should first be inquired of as to his knowl- edge. Carlson v. Wintersen, 147 N. Y. 652. Having testified that the witness is of bad reputation as to truth- fulness, the impeaching witness may be asked if he would believe him under oath. People v. Mather, 4 Wend. 229; People v. Reotor, 19 Wend. 569; People v. Davis, 21 Wend. 309; Adams v. GreenAvich Ins. Co., 70 N". Y. 166. The impeaching witness may be cross-examined as to the sources of his information. Fulton Bank v. Benedict, 1 Hall, 480 ; People v. Mather, 4 Wend. 232; Tower v. Winters, 7 Cow. 263. Sustaining witness. — One cannot sustain the character of a wit- ness who does not require corroboration until it is attacked. Peo- ple V. Rector, 19 Wend. 579 ; Jackson v. Etn, 5 Cow. 314 ; People v. Vane, 12 Wend. 78; Adams v. Greenwich Ins. Co., 70 N. Y. 170. Aetigle 134. OFFENCES AGAINST WOMEN. When a man is prosecuted for rape or an attempt to ravish, it may be shown that the woman against whom the offence was committed was of a generally immoral charac- ter, although she is not cross-examined on the subject.^'* The woman may in such a case be asked whether she has had connection with other men, but her answer cannot be 35 R. V. Clarke, 1817, 2 Star. 241. 460 A DIGEST OF [Faet III. contradicted.^'' She may also he asked whether she has had connection on other occasions with the prisoner, and if she denies it she may be contradicted.^^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on evidence (loth ed.), see. 458, n.; vol. 3, sec. 214. The bad character of woman for chastity may be shown. Com, V. McDonald, 110 Mass. 405; O'Blenis v. State, 47 N. J. L. 279; Bed- good V. State, 115 Ind. 275. Particular acts of unchastity with others cannot be proved. Oore V. Curtes, 81 Me. 403; Com. v. Harris, 131 Mass. 336; Com. v. Regan, 105 Mass. 593; People v. McLean, 71 Mich. 307; Shartzer v. State, 63 Md. 149 ; Rice v. State, 35 Fla. 236 ; Richie v. State, 58 Ind. 355. Contra, State v. Hollenleclc, 67 Vt. 34; Eoffmwn v. Kemerer, 44 Pa. St. 453; Doyle v. Jessup, 29 111. 460; Smith v. Yaryan, 69 Ind. 445; People V. Benson, 6 Cal. 221 ; State v. Forstner, 43 N. H. 89 ; State v. Knapp, 45 N. H. 148. When woman is under age of legal consent, such evidence in rape cases has been held incompetent. People v. Johnson, 106 Cal. 289; People V. Aliott, 97 Mich. 484; State v. Duffey, 128 Mo. 549. As to indecent assault, see Mitchell v. Work, 13 E. I. 645; Watrey V. Ferler, 18 Wis. 525. New York. Authorities. — Sustaining text. People v. Jackson, 3 Park. Or. 391. In rape eases the woman's bad character for chastity may be shown. Woods V. People, 55 N. Y. 515; Conkey v. People, 1 Abb. Dec. 418. And so in actions for indecent assault. Gulerette v. McKinley, 27 Hun, 320. Compare Young v. Johnson, 123 N. Y. 226. Particular acts. — As to whether particular acts may be shown, see Woods V. People, 55 N. Y. 515; Ford v. Jones, 62 Barb. 484. 36 iS. V. Holmes, 1871, 1 C. C. R. 334. 37 R. V. Martin, 1 834, 6 C. & P. 562, and remarks in R. v. Holmes, p. 337, per Kelly, C.B. See also R. v. Cockroft, 1870. 11 Cox 410; 41 L. J., M. C, 12, and R. v. Riley, 1887, 18 Q. B. D. 481. Chap. XVI.] TEE LAW OF EVIDENCE. 461 Article 135. what mattees may be peoved in eefeeence to declaeations eelevant ukdee articles 25-32. Whenever any declaration or statement made by a deceased person relevant or deemed to be relevant Tonder Articles 25-32, both inclusive, or any deposition is proved, all matters may be proved in order to contradict it, or in order to impeach or confirm the credit Sussex Peerage Case, 1S44. 11 C. & F. 114-117. Chap. XVI.] THE LAW OF EVIDENCE. 463 Cush. (Mass.) 98; Morrison v. Chapin, 97 Mass. 72; Com. v. Jeffs, 132 Mass. 5; Costello v. Crowell, 133 Mass. 352. The paper need not have been written by the witness. Com. v. Ford, 130 Mass. 64; Chapin v. Lapham, 20 Pick. (Mass.) 467; C'of- /ira V. Ftwceni, 12 Cush. (Mass.) 98; Adae v. Zangs, 41 la. 536; BilJingsIea v. Smith, 77 N. Y. 504; Brown v. Galesburg Brick Co., 132 111. 640; King v. Fa6er, 51 Pa. St. 387. Compare Moots v. State, 21 0. St. 653. A plaintiff had testified that she had earned the money invested in certain bonds in large part in her business as a milliner and that she had a high class of customers. She was asked the names of her customers, and in answering was allowed to refresh her recollection by referring to a list of them made by her son upon her dictation. Held, to be no error. Card v. Foot, 56 Conn. 374. A witness may refer to memoranda made by himself or others for the purpose of refreshing his recollection, and it is of no conse- quence whether the memoranda thus referred to are originals or copies; they are solely for the use of the witness and are not evi- dence to go to the jury. Erie Preserving Co. v. Miller, 52 Conn. 446. New York. Authorities. — ■ Halsey v. Linsburgh, 15 N. Y. 485; Markley v. Shiilts, 29 N. Y. 346, 351; Bigeloii: v. Hall, 91 N. Y. 145; Howard v. McDonough, 77 N. y. 592; Wise v. Phoenix Ins. Co., 101 N. y. 637; Billingslea v. Smith, 77 N. Y. 504; Abbott's Trial Brief (2d ed.), p. 344. The writing must have been made, if by the witness at the time the transaction was fresh in mind. Russell v. Hudson Biver B. B. Co., 17 N. Y. 134. A motion to strike out the testimony of a witness, because he tes- tified from a copy of a memorandum, must be made as soon as the fact is discovered. Pitney v. Glens Falls Ins. Co., 61 Barb. 335, 65 X. Y. 6. Article 137. eight of adverse party as to writing used to refresh MEMORY. AiiY writing referred to under Article 136 must be pro- duced and shown to the adverse party if he requires it; 464 A DIGEST OF [Pabt III. and such party may, if lie pleases, cross-examine the wit^ ness thereupon.*^ AMERICAN NOTE. General. Authorities.— 1 Greenleaf on Evidence (ISth ed.), sec. 437 et seq.; 8 Encyclopsedia of Pleading and Practice, p. 142; State v. Bacon, 41 Vt. 526 98 Am. Dee. 616; Com. v. Haley, 13 Allen (Mass.), 587; Com. V. Burke, 114 Mass. 261; Dugan v. Mahoney, 11 Allen (Mass.), 573; Chute V. State, 19 Minn. 271; Duncan v. Seeley, 34 Mich. 369; Adoe V. Zangs, 41 la. 536; Jones v. State, 54 0. St. 1. New York. See Peck v. Lake, 3 Lans. 136; People v. McLaughlin, 150 N". Y. 365, 392. Aeticle 138. giving, as evidekce, docujie]srt called eoe az^td peoduced on notice. When a party calls for a document which he has given the other party notice to produce, and such document is produced to and inspected by, the party calling for its pro- duction, he is bound to give it as evidence if the party producing it requires him to do so, and if it is or is deemed to be relevant.*^ AMERICAN NOTE. General. Authorities. — 1 Greenleaf on Evidence ( 15th ed. ) , sec. 563 ; Mer- rill V. Merrill, 67 Me. 70; Austin v. Thompson, 45 N. H. 113, 116; Penobscot Boom Corp. v. Lawson, 16 Me. 224; Blake v. Buss, 33 Me. 360; Ellison v. Cruser, 40 N. J. L. 444; Cushman v. Coleman, 92 G-a. 41 See Cases in R. N. P. 176. i^Wharam v. Routledge, 1805, 5 Esp. 235; Calvert v. Flotcer, 1836, 7 C. & P. 386. Chap. XVI.] THE LAW OF BVIDEXCi). 465 772 ; Edison Light Co. v. V. S. Lighting Co., 45 Fed. Rep. 55 ; Clarl: V. Fletcher, 1 Allen (Mass.), 53, 57; Long v. Drew, 114 Mass. 77. Contra to text. Laufer v. Bridgeport Traction Co., 68 Conn. 485; Austin V. Thompson, 45 K. H. 113; Smith v. Retits, 131 N. Y. 169. The mere production does not make the documents evidence. Mer- rill V. Merrill, 67 Me. 70. New York. Authorities. — See Smith v. Rentsi, 131 N". Y. 169 ; Bumsey v. Lowell, Anth. N. P. 26. Though a document be expressly put in evidence for a particular purpose, the opposite party may use it for any purpose pertinent to his case. Kelly v. Dutch Church, 2 Hill, 105; Winants v. Sherman, 3 Hill, 74. A party having given evidence to the jury, is not at libei'ty to with- draw it; it becomes the common property of both parties. Decker v. Bryant, 7 Barb. 182. Article 139. using, as evidence, a document production of which was refused on notice. When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party. *^ AMERICAN NOTE. General. Authorities. — Bogart v. Brown, 5 Pick, (ilass. ) 18; Doon v. Dona- her, 113 Mass. 151. See also McGvinness v. School District, 39 Minn. 499 ; Powell v. Pearlstine, 43 S. C. 403. New York. Authority. — Mather v. Eureka Co., 118 K. Y. 629. iiDoe V. Hodgson, 1840, 12 A. & E. 135; but see remarks in 2 Ph. Ev. 270. 30 466 A DIGEST OF [Faet III. CHAPTER XVII. OF DEPOHITIO'NS. Aeticle 140. depositioh"s befoee magisteates. A DEPosiTioisr taken under 11 & 12 Vict. c. 42, s. 17, may be produced and given in evidence at the trial of the person against whom it was taken, if it is proved [to the satisfaction of the judge] that the witness is dead, or so ill as not to be able to travel [although there may be a prospect of his recovery] ;■"■ [or, if he is kept out of the way by the person accused]^ or, [probably if he is too mad to testify,] '"' and if the deposition pm-ports to be signed by the justice by or before whom it purports to have been taken ; and if it is proved by the person who offers it as evidence that it was taken in the presence of the person accused, and that he, his counsel, or attorney, had a full opportunity of cross-examining the witness ; Unless it is proved that the deposition was not in fact signed by the justice by whom it purports to be signed [or, that the statement was not taken upon oath ; 1 B. V. Stephenson, 1862, L. & C. 165. 2i?. V. Scaife, 1851, 17 Q. B. 238. 8 Analogy of R. v. Scaife. Chap. XVIT.] THE LAW OF EVIDENCE. 467 or [perhaps] that it was not read over to or signed by the witness].* If there is a prospect of the recovery of a witness proved to be too ill to travel, the judge is not obliged to receive the deposition, but may postpone the trial." AMERICAN NOTE. General. Depositions. — 6 EncyelopEedia of Pleading and Practice, p. 471; State V. George, 60 Minn. 503; State v. Elliott, 90 Mo. 350; People V. Wa/rd, 105 Cal. 652; Brown v. Com., 73 Pa. St. 321; Pittman v. State, 92 Ga. 480; People v. Dowdigan, 67 Mich. 95; State v. Fitz- gerald, 63 la. 268 ; Lucas v. State, 96 Ala. 51 ; Boon v. Donaher, 113 Mass. 151; Bogart v. Broimi, 5 Pick. (Mass.) 18; Oage v. Campbell, 131 Mass. 566; Kingman v. Tirrell, 11 Allen (Mass.), 97. New York. As to depositions, see Code Civ. Pro., tit. Ill, arts. 1, 2, sees. 870 et seq.; Code Cr. Pro., see. 631. Aetiole 141. DEPOSITIOJSrS tTNDEE 30 & 31 VICT. c. 35, s. 6. A deposition taken for the perpetuation of testimony in criminal cases, under 30 & 31 Vict. c. 35, s. 6, may be produced and read as evidence, either for or against the 4 X believe the above to be the effect of 11 & 12 "Vict. c. 42, s. 17, as interpreted by the cases referred to, the effect of which is given by the words in brackets, also by common practice. Nothing can be more rambling or ill-arranged than the language of the section itself. See 2 Ph. Ev. 87-100; Taylor, 7th Ed., s. 480. Bif. y. Tait, 1861, 2 F. & F. 553. 468 A DIGEST OF [Pabt III. accused, upon the trial of any offender or offence^ to which, it relates — if the deponent is proved to be dead, or if it is proved that there is no reasonable probability that the deponent will ever be able to travel or to give evidence, and if the deposition purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the Court that rea- sonable notice in writing'^ of the intention to take such deposition was served upon the person (whether prosecutor or accused) against whom, it was proposed to be read, and that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of cross-examining the deponent.* Aeticle 141a. depositions under the foeeign jueisdiction act, 1890. Where a person is charged with an offence cognizable by a British Court in a foreign country and is liable to be sent for trial to any British possession, he may, before being so 6 Sic. T R. V. Shurmer, 1886, 17 Q. B. D. 323. 8 30 & 31 Vict. c. 35, s. 36. The section is very long, and as the first part of it belongs rather to the subject of criminal procedure than to the subject of evidence, I have omitted it. The language is slightly altered. I have not referred to depositions taken before a coroner (see 50 & 51 Vict. c. 71, s. 4), because the section says noth- ing about the conditions on which they may be given in evidence. Their relevancy, therefore, depends on the common law principles ex- pressed in Article 32. They must be signed by the coroner ; but these are matters not of evidence, but of criminal procedure. CiiAp. XVII.] THE LAW OF EVIDENCE . 469, sent for trial, tender for examination to the Court in the foreign country any competent witness whose evidence he deems material for his defence, and whom he alleges himself unable to produce at the trial in the British possession ; and the Court in the foreign country shall proceed in the examination and cross-examination of the witness as though he had been tendered at a trial before that Court, and shall cause the evidence so taken to be reduced into writing, and shall transmit to the Criminal Court of the British possession a copy thereof certified as correct under the seal of the Court before which it was taken, or the signature of the judge of that Court; and thereupon the Court of the British possession before which the trial takes place shall allow so much of the evi- dence so taken as would have Been admissible according to the law and practice of that Court, had the witness been produced and examined at the trial, to be read and received as legal evidence at the trial.* Akticle 141b. depositions of childeen. Where on the trial of any person on indictment for any offence of cruelty within the meaning of the Prevention, of Cruelty to Children Act, 1894,^° or of any of the 9 53 & 54 Vict. c. 37, s. 6. 10 The definition of " cruelty " is contained in sect. 1 of the Act, which is as fo]low.s : — " If any person over the age of sixteen years who has the custody, charge, or care of any child under the age of sixteen years, wilfully assaults, ill-treats, neglects, abandons, or ex- 470 A DIGEST OF [Paet III. offences mentioned in the Schedule to the Act/''' the Court is satisfied by the evidence of a registered medical practitioner that the attendance before the Court of any child in respect of whom the offence is alleged to have been committed would involve serious danger to its life or health, any deposition of the child taken under the Indictable Offences Act, 1848, and mentioned in Article 140, or under this Act, as hereinafter mentioned, is admis- sible in evidence either for or against the accused person, "without further proof thereof — (a) if it purports to be signed by the justice by or before whom it purports to be talcen ; and (b) if it is proved that reasonable notice of the intention to take the deposition has been served upon the person against whom it is proposed to use the same as evidence, and that that person or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of cross-examining the child making the deposition. ^^ poses such child, or causes or procures such child to be assaulted, ill- treated, neglected, abandoned, or exposed in a, manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)," &c., &c. 11 i.e. offences mentioned in the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), sect. 27 (exposing a child) ; sect. 55 (abducting a girl under sixteen) ; sect. 56 (stealing a child) ; sect. 43 (aggravated assault, if the child is under sixteen) ; sect. 52 (in- decent assault on a female, if she is under sixteen) ; and any offence under tlie Children's Dangerous Performances Act, 1879 (42 & 43 Vict. u. 34) ; and any other offence involving bodily injury to a child under the age of sixteen years. 12 57 & 58 Vict. c. 41, s. 14. Chap. XVII.] THE LAW OF EVIDENCE. 471 Wliere a justice is satisfied by the evidence of a registered medical practitioner that the attendance before a Court of any child in respect of whom an offence of cruelty/^ or any of the offences mentioned in the Schedule to the Act/* is alleged to have been committed, would involve serious dan- ger to its life or health, the justice may take in writing the deposition of such child on oath, and shall thereupon sub- scribe the same, and add thereto a statement of his reason for taking the same, and of the day when and place where the same was taken, and of the names of the persons (if any) present at the taking thereof. The justice taking any such deposition shall transmit the same with his statement — {a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper officers of the Court, for trial at which the accused person has been committed; and (h) in any other case to the clerk of the peace of the county or borough in which the dejDOsi- tion has been taken. ^'^ The deposition of the child referred to in this article need not be taken on oath in the case mentioned in Article 123a. Aeticle 142. deposition's ttndee merchant shipping- act, 1894. ^^ Whenever, in the course of any legal proceedings in- stituted in any part of Her Majesty's dominions before any 13 See Note 11, p. 470. 14 See Note 10, p. 469. 15 57 & 58 Vict. u. 41, s. 13. 16 7(J. c. 60, s. 691. There are some other cases in which deposi- tions are admissible by statute, but they hardly belong to the Law of Evidence. 472 A DIGEST OF [Part III. judge or magistrate or before any person authorised by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject- matter of that proceeding, any deposition that such witness may have previously made on oath in relation to the same subject-matter before any justice or magistrate in Her Majesty's dominions or any British consular officer elsewhere is admissible in evidence, subject to the following restrictions: — 1. If such proceeding is instituted in the United King- dom or British possessions, due proof must be given that such witness cannot be found in that kingdom or possession respectively. 2. If such deposition was made in the United Kingdom, it is not admissible in any proceeding instituted in the United Kingdom. 3. If the deposition was made in any British possession, it is not admissible in any proceeding instituted in that British possession. 4. If the proceeding is criminal the deposition is not admissible unless it was made in the presence of the person accused. A deposition so made must be authenticated by the sig- nature of the judge, magistrate, or consular officer before whom it was made, and he must certify (if the fact is so) that the accused was present at the taking thereof. It is not necessary in any case to prove the signature or the official character of the person appearing to have sigTied Chap. XVII.] TEE LAW Of EVIDENCE. 473 any such deposition; and in any criminal proceeding the certificate aforesaid is (unless the contrary is proved) sufficient 'evidence of the accused having been present in manner thereby certified. Nothing in this article contained affects any provision by Parliament or by any local legislature as to the admis^ sibility of depositions or the practice of any court according to which depositions not so authenticated are admissible as evidence. 474 A DIGEST OF [Paet III. CHAPTER XVIII. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Article 143. A NEW trial will not be granted in any civil action on the groimd of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial of the action. -"^ If in a criminal case evidence is improperly rejected or admitted, there is no remedy unless the prisoner is con- victed, and unless the judge, in his discretion, states a case for the Court for Crown Cases Eeserved ; but if that Court is of opinion that any evidence was improperly admitted or rejected, it must set aside the conviction. AMERICAN NOTE. General. Authority. — 2 Eneyclopsedia of Pleading and Practice, p. 1. First paragraph of text. Hornbachle v. Stafford, 111 U. S. 389; Oillert V. Moline Co., 119 U. S. 491; Bulkley v. Devine, 127 111. 406; Girard Ins. Co. v. Warr, 46 Pa. St. 504; Bam v. Wis., etc., R. Co., 61 la. 716; Thorndike v. Boston, 1 Mete. (Mass.) 242; Richardson V. Warren, 6 Allen (Mass.), 552; Flood v. Clemence, 106 Mass. 299; Barry v. Bennett, 7 Mete. (Mass.) 354; Holbrook v. Jackson, 7 Cush. (Mass.) 136; Toapley v. Forbes, 2 Allen (Mass.), 20; McAroy v. 1 S. C. R., Order XXXIX., 6. Chap. XVIII.] THE LAW OF EVIDENCE. 475 Wright, 137 Mass. 207; State v. Alford, 31 Conn. 40; Morehouse v. Remson, 59 Conn. 401; State v. Kinkead, 57 Conn. 157; People's Sa/v. Bank v. Norivalk, 56 Conn. 558; Bradley v. Bailey, 56 Conn. 379; Main's Appeal, 73 Conn. 638, 48 Atl. 966. The fact that evidence was erroneously admitted or rejected will not ensure the granting of a new trial in a criminal case where the defendant manifestly could not have been injured thereby. Ryan v. State, 83 Atl. R. (N. J.) 672; Wallace v. People, 159 111. 446; Peo- ple V. Marshall, 112 Cal. 442. New York. Authorities. — • — First paragraph of text. Neil v. Thorn, 8 N. Y. 270 ; People v. Koerner, 154 N". Y. 355. An error in the admission of incompetent evidence, in a court of record, is cured by a subsequent direction to the jury to disregard it. People V. Parish, 4 Den. 153. Striking out of competent evidence is no ground for reversing a judgment, where testimony to the same general affect is subsequently admitted. Miller v. Fort Lee Park & Steamboat Co., 73 Hun, 150, affirmed in 149 N. Y. 598. (No opinion.) When improper evidence has been erroneously received, a direc- tion to disregard it is equivalent to striking it out. Mattes v. Frankel, 65 Hun, 203, 47 N. Y. St. R. 507. APPENDIX OF NOTES NOTE I. (To Ajrticle I. — Definition of Teems.) The definitions are simply explanations of the senses in wMch the words defined are used in this work. They will be found, however, if read in connection with my ' Intro- duction to the Indian Evidence Act,' to explain the manner in which it is arranged. I use the word " presumption " in the sense of a pre- sumption of law capable of being rebutted. A presumption of fact is simply an argument. A conclusive presumption I describe as conclusive proof. Hence the few presump- tions of law which I have thought it necessary to notice are the only ones I have to deal with. In earlier editions of this work I gave the following definition of relevancy. " Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably may have been — the cause of the other ; the effect of the other ; an effect of the same cause ; a cause of the same effect ; 477 478 A DIGEST OF or when the one shows that the other must or cannot have occurred, or probably does or did exist, or not; or that any fact does or did exist, or not, which in the common course of events would either have caused or have been caused by the other ; provided that such facts do not fall within the exclusive rules contained in Chapters III., IV., V., VI. ; or that they do fall within, the exceptions to those rules contained in. those chapters." This was taken (with some verbal alterations) from a pamphlet called ' The Theory of Relevancy for the purpose of Judicial Evidence, by George Clifford Whitworth, Bom- bay Civil Service. Bombay, 1875.' The 7th section of the Indian Evidence Act is as follows : " Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which ihey happened, or which afforded an opportunity for their occurrence or transaction, are relevant." The 11th section is as follows : — " Eacts not otherwise relevant are relevant ; " (1) If they are inconsistent with any fact in isisue or relevant fact ; " (2) If by themselves, or in connection with other facts, they make the existence or non-existence of any fact in issue, or relevant fact, highly probable or improbable." In my ' Introduction to the Indian Evidence Act,' I examined at length the theory of judicial evidence, and tried to show that the theory of relevancy is only a particu- lar case of the process of induction, and that it depends on THE LAW OF EVIDENCE. 479 the connection of events as cause and effect. This theory does not greatly differ from Bentham's, though he does not seem to me to have grasped it as distinctly as if he had lived to study Mill's Inductive Logic. My theory vi^as expressed too widely in certain parts, and not widely enough in others; and Mr. Whitworth's pam- phlet appeared to me to have corrected and completed it in a judicious manner. I accordingly embodied his definition of relevancy, with some variations and additions, in the text of the first edition. The necessity of limiting in some such way the terms of the 11th section of the Indian Evidence Act may be inferred from a judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parh- hudas and others^ printed in the ' Law Journal,' May 27, 1876. I have substituted the present definition for it, not because I think it wrong, but because I think it gives rather the principle on which the rule depends than a convenient practical rule. As to the coincidence of this theory with English law, I can only say that it will be foimd to supply a key which will explain all that is said on the subject of circumstantial evidence by the writers who have treated of that subject. Mr. Whitworth goes through the evidence given against the Geriuan, Miiller, executed for murdering Mr. Briggs on the l^orth London Railway, and shows how each item of it can be referred to one or the other of the heads of relevancy which he discusses. The theory of relevancy thus expressed would, I believe, suffice to solve every question which can arise upon the subject; but the legal rules based tipon an unconscious 480 A DIGEST OF apprehension of the theory exceed it at some points and fall short of it at others. NOTE II. (To Article 2. — Eelbvance. ) See 1 Ph. Ev. 493, &c. ; Best, ss. Ill and 251 ; Taylor, Pt. II. Ch. II. ; Phipson, 49-52. For instances of relevant evidence held to be insufficient for the purpose for which it was tendered on the ground of remoteness, see B. v. , 1826, 2 C. & P. 459 ; and Mann v. Lang, 1835, 3 A. & E. 699. Mr. Taylor (s. 949) adopts from Professor Greenleaf the statement that there is " evidence which the law excludes on public grounds, namely, that which involves the unneces- sary disclosure of matter that is indecent or offensive to public morals, or injurious to the feelings of third persons." The authorities given for this are actions on wagers which the Court refused to try, or in which they arrested judg- ment, because the wagers were in themselves impertinent and offensive, as, for instance, a wager as to the sex of the Chevalier D'Eon (Da Costa v. Jones, 1778; Cowp. 729). IN'o action now lies upon a wager, and I can find no author- ity for the proposition advanced by Professor Greenleaf. I know of no case in which a fact in issvie or relevant to an issue which the Court is bound to try can be excluded merely because it would pain some one who is a stranger to the action. Indeed, in Da Costa v. Jones, Lord Mansfield said expressly: " Indecency of evidence is no objection to its being received where it is necessary to the decision of a THE LAW OF EVrOENCE. 481 civil or criminal right " (p. 734). (See Article 129, and NoteXLVI.) NOTE III. (To Aeticle 4. — Acts of Conspieatoes.) On this subject, see also 1 Ph. Ev. 157-164; Taylor, ss. 591-595; Best, s. 508; 1 Euss. on Crimes, 528-532. (See, too. The Queen's Case, 1820, 2 Br. & Bing. 309- 10.) Phipson, 84-5, 90-1. The principle is substantially the same as that of prin- cipal and accessory, or principal and agent. When vari- ous persons conspire to commit an offence each makes the rest his agents to carry the plan into execution. (See, too. Article 17, Note XL) NOTE IV. (To Aeticle 5. — Relevancy of Facts co]^stitutin"g Title.) The principle is fully explained and illustrated in Mai- colmson v. O'Dea, 1862, 10 H. L. C. 593. See particu- larly the reply to the questions put by the House of Lords to the Judges, delivered by Willes, J., 611-622. See also 1 Ph. Ev. 234-239; Taylor, ss. 658-667; Best, s. 499. Mr. Philips and Mr. Taylor treat this principle as an exception to the rule excluding hearsay. They regard the statements contained in the title-deeds as written state- ments made by persons not called as witnesses. I think the deeds must be regarded as constituting the transactions 31 482 .1 DIGEUT OF which they effect ; and in the case supposed in the text, those transactions are actually in issue. When it is as- serted that land belongs to A, what is meant is, that A is entitled to it by a series of transactions of which his title-deeds are by law the exclusive evidence (see Article 90). The existence of the deeds is thus the very fact which is to be proved. Mr. Best treats the case as one of " derivative evidence," an expression which does not appear to me felicitous. IsrOTE V. (To Aeticle 8. — Statements accompanting Acts, Complaints, &c.) The items of evidence included in this article are often referred to by the phrase " res gestae," which seems to have come into use on account of its convenient obscurity. The doctrine of " res gestse " was much discussed in the case of Doe v. Tatham, 1837. In the course of the arg-u- ment, Bosanquet, J., observed, " How do you translate res gestae? gestse, by whom? " Parke, B., afterwards observed, " The acts by whomsoever done are res gestae, if relevant to the matter in issue. But the qiiestion is, what are rele- vant ? " (7 A. & E. 355.) In delivering his opinion to the House of Lords, the same Judge laid do^^^l the rule thus : " Where any facts are proper evidence uf)on an issue [i.e. when they are in issue, or relevant to the issue] all oral or written declarations which can explain such facts may be received in evidence." (Same Case, 4 Bing. X. C. 548.) The question asked by Baron Parke goes to the root THE LAW OF EVIDENCE. 483 of the whole subject, and I have tried to answer it at length in the text, and to give it the prominence in the statement of the law which its importance deserves. Besides the cases cited in the illustrations, see cases as to statements accompanying acts collected in 1 Ph. Ev. 152-57; Taylor, ss. 583-91; and Phipson, 236-43. I have stated, in accordance with R. v. Walker, 1839, 2 M. & R. 212, that the particulars of a complaint are not admis- sible; but I have heard Willes, J., rule that they were on several occasions, vouching Parke, B., as his authority. R. V. Walker was decided by Parke, B., in 1839. Though he excluded the statement, he said, " The sense of the thing certainly is, that the jury should in the first instance know the nature of the complaint made by the prosecutrix, and all that she then said. But for reasons which I never could understand, the usage has obtained that the prosecutrix's counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner's conduct towards her, leaving the prisoner's counsel to bring before the jury the particulars of that complaint by cross- examination." Lord Bramwell was in the habit, during the latter part of his judicial career, of admitting the complaint itself, and other judges have sometimes done the same. The practice is certainly in accordance with common sense. The author's note is here left as he wrote it. His own practice on the Bench was the same as that which he ascribes to Willes, J., Parke, B., and Lord Bramwell, and the same course, of admitting the terms of the complaint as part of the evidence for the prosecution, was habitually 484 A DIGEST OF followed by Mr. (now Lord) Justice Smith, and the late Mr. Justice Cave, as long as they were Judges of the Queen's Bench Division. Since the last edition of this work was published, the law on the subject has been enlarged, if not elucidated, by the decision of R. v. Lillyman, [1896], 2 Q. B. 167. The count upon which Lillyman was substantially tried, and upon which alone (ib. at p. lYO) he was convicted, charged that he unlawfully attempted to have carnal know- ledge of a girl under sixteen and over thirteen. The question of her consent was therefore immaterial ( Criminal Law Amendment Act, 1885, s. 5, by which the offence was created). In giving her evidence, however, the girl as- serted that she did not consent to the attempt. Sir Henry Hawkins admitted evidence of the terms of a complaint made by the girl to her mistress, in the absence of the pris- oner, very shortly after the commission of the acts charged. The prisoner was convicted, and the case was reserved on the question whether this evidence was admissible. The Court (Lord Eussell, C.J., Pollock, B., Hawkins, Cave, and Wills, JJ.) affirmed the conviction. The ground of the decision is clearly stated in two passages of the judgment of the Court, delivered by Sir Henry Hawkins. " It [the complaint] is clearly not admissible as evidence of the facts complained of. . . . The complaint can only be used as evidence of the consistency of the conduct of the prosecu- trix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains " (ib. at p. 170). " The evidence is admissible only upon the ground that it was a complaint of that which TEE LAW OF EVIDENCE. 485 is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consist- ent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts com- plained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her" (ib. at p. 177). In other words, the judgment decides that where a woman has made a statement as to her own consent, which in the case before the Court happened to be perfectly irrelevant, the details of her complaint may be admitted only because they may serve as a test of the credibility which ought to attach to the relevant parts of her testimony. This view was reiterated by Sir Henry Hawkins in the case of B. v. Rowland tried at the Chelmsford Summer Assizes, 1898 (Times, July 6, 1898), when he refused to admit evidence of the terms of a complaint, though the charge was one of rape; but, it must be inferred, the woman's consent was practically not in issue. The judge said, '•■ All that R. v. Lillyman decided was that the terms of a complaint were only admissible as evidence of a want of consent by the prosecutrix, and not as evidence of the truth of the charge against the person named in the com- plaint." As to this decision it must be remarked that even if the woman's consent was not in issue, and if nothing but the prisoner's identity was disputed, the woman's want of consent must have formed part of the story deposed to by her, and the distinction between this case, where consent was certainly a relevant matter, and Lillyman's case, where 486 A DIGEST OF it certainly was not, is not apparent. The same judge, in Beatty v. Cullingworth, 1896, 60 J. P. 740, a civil suit for an assault, held that the principle of R. v. Lillyman ap- plied only to prosecutions for rape and similar offences, and rejected evidence either of a complaint having been made, or of the terms of the complaint, it is not clear Mrhieh, but probably the latter. His decision was ap- proved of in the Court of Appeals, Times, January 14, 1897. It is not easy to see why evidence of the terms of a complaint should be admissible in order to test credibility on one point only; and the Recorder of London seems to hold there is no such restriction. In R. v. Folleyj [1896], 60 J. P. 569, the prisoner and his wife were together in a room, cries were heard, and the wife came out suffering from a wound. At the trial the wife deposed that she had herself inflicted the wound. The Recorder, after referring to R. V. Lillyman^ said, " that he should hold that the prin- ciple of that case applied to all cases," and allowed a con- stable to be recalled, who deposed that the wife in giving him an account of what happened, said, " Mr. Policy done it." Here there was no question of consent. The total result is that the law is not easy to state with confidence, and in practice the administration of it is be- lieved not to be uniform.. On the Xorthern Circuit the details of complaints have, since Lillyman's case, been ad- milted in all cases of sexual offences against women and girls, whether or not the question of consent was, in fact or legally, at issue ; and a similar practice seems to obtain more or less uniformly on other circuits and at the Old Bailey. THE LAW OF EVWEXCE. 487 NOTE VI. (To Aeticles 10, 11, 12. — Eelevance of Similae Facts, SyStem, &o.) Article 10 is equivalent to the maxim, " Ees inter alios acta alteri nocere non debet," whicli is explained and com- mented on in Best, ss. 506-510 (though I should scarcely adopt his explanation of it), and by Broom ('Maxims,' 908-922). The application of the maxim to the Law of Evidence is obscure, because it does not show how uncon- nected transactions should be supposed to be relevant to each other. The meaning of the rule must be inferred from the exceptions to it stated in Articles 11 and 12, which show that it means, You are not to draw inferences from one transaction to another which is not specifically con- nected with it merely because the two resemble each other. They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference. In its literal sense the maxim also fails, because it is not true that a man cannot be affected by transactions to which he is not a party. Illustrations to the contrary are obvious and innumerable ; bankruptcy, marriage, indeed every transaction of life, would supply them. The exceptions to the rule given in Articles 11 and 12 are generalised from the cases referred to in the Illustra- tions. It is important to observe that though the rule is expressed shortly, and is sparingly illustrated, it is of very much greater importance and more frequent application than the exceptions. It is indeed one of the most charac- 488 A DWEHT OF teristic and distinctive parts of the English Law of Evi- dence, for this is the rule which prevents a man charged with a particular oifence from having either to submit to imputations which in many cases would be fatal to him, or else to defend every action of his whole life in order to explain his conduct on the particular occasion. A state- ment of the Law of Evidence which did not give due promi- nence to the four great exclusive rules of evidence of which this is one would neither represent the existing law fairly nor in my judgment improve it. The exceptions to the rule apply more frequently to criminal than to civil proceedings, and in criminal cases the Courts are always disinclined to run the risk of preju- dicing the prisoner by permitting matters to be proved which tend to show in general that he is a bad man, and so likely to commit a crime. In each of the cases by which Article 12 is illustrated, the evidence admitted went to prove the true character of facts which, standing alone, might naturally have been accounted for on the supposition of accident — a supposition which was rebutted by the repe- tition of similar occurrences. In the case of R. v. Gray (Illustration (a)), there were many other circumstances which would have been sufficient to prove the prisoner's guilt, apart from the previous fires. That part of the evi- dence, indeed, seemed to have little infiuence on the jury. Gamer's Case (Illustration (c), note) was an extraordi- nary one, and its result was in every way unsatisfactory. Some account of this case will be found in the evidence given by me before the Commission on Capital Punish- ments which sat in 186G. THE LAW OF EVIDENCE. 489 NOTE VII. (To Aeticle 13. — CouESE OF Business.) As to presumptions arising from the course of office or business, see Best, s. 403 ; 1 Ph. Ev. 480-4 ; Taylor, ss. 176-82. The presumption, " Omnia esse rite acta," also applies. See Broom's 'Maxims,' 942; Best, ss. 353-65; Taylor, s. 143, &c. ; 1 Ph. Ev. 480 ; and Star. 757, 763. ISTOTE VIII. (To Article 14. — Hearsay.) The unsatisfactory character of the definitions usually given as hearsay is well-known. See Best, s. 495 ; Taylor, ss. 567-70.^ The definition given by Mr. Philips suffi- ciently exemplifies it : " When a witness, in the course of 1 See, too, Phipson, pp. 200-204; particularly at p. 202, where Sir James Stephen's account of the objection to hearsaj^ as evidence is criticised on the ground that it ignores the possibility of the rele- vancy of the fact which hearsay alleges to have been stated, and that the objection to its being stated by a non- witness ought to be consid- ered under the head of proof in answer to the question how relevant facts may be proved. The answer is that the leading feature of hear- say is that it proves a statement by a, non-witness, which, taken alone, does not come within the definition of " relevant," and that it is therefore better treated of when considering the question, What may be proved? than in dealing with the subsequent question, How may a relevant fact be proved? The practical advantage of the au- thor's method of treatment is that he separates admissions and con- fessions which owe their force to the circumstances under which they are made, from public and other formal documents which for pur- poses of convenience are made evidence by the operation of the law. 490 A DIGEST OF stating what has come under the cognizance of his own senses concerning a matter in dispute, states the language of others which he has heard, or produces papers which he identifies as being written by particular individuals, he offers what is called hearsay evidence. This evidence may sometimes be the very matter in dispute," &c. (1 Ph. Ev. 143). If this definition is correct, the maxim," Hear-say is no evidence," can only be saved from the charge of false- hood by exceptions which make nonsense of it. By attach- ing to it the meaning given in the text it becomes both intelligible and true. There is no real difference between the fact that a man was heard to say this or that, and any other fact. Words spoken may convey a threat, supply the motive for a crime, constitute a contract, amount to slander, &c., &c. ; and if relevant or in issue, on these or other grounds, they must be proved, like other facts, by the oath of some one who heard them. The important point to re- member about them is that bare assertion must not, gener- ally speaking, be regarded as relevant to the truth of the matter asserted. The doctrine of hearsay evidence was fully discussed by many of the judges in the case of Doe d. Wright v. Tatham, 1837, on the different occasions when that case came be- fore the Court (see 7 A. & E. 313-408 ; 4 Bing. X. C. 489-573). The question was whether letters addressed to a deceased testator, implying that the writers thought him sane, but not acted upon by him, could be regarded as relevant to his sanity, which was the point in issue. The case sets the stringency of the rule against hearsay in a light which is forcibly illustrated by a passage in the judgment THE LAW OF EVIDENCE. 491 of Baron Parke (7 A. & E. 385-8), to the following effect: — He treats the letters as " statements of the writers, not on oath, of the truth of the matter in question, with this in addition, that they had acted upon the statements on the faith of their being true by their sending the letters to the testator." He then goes through a variety of illustrations which had been suggested in argument, and shows that in no case ought such statements to be regarded as relevant to the truth of the matter stated, even when the circumstances were such as to give the strongest possible guarantee that such statements expressed the honest opinions of the persons who made them. Amongst others he mentions the f oUomng : — " The conduct of the family or relations of a testator taking the same precautions in his absence as if he were a lunatic — his election in his absence to some high and responsible office; the condvict of a physician who permitted a will to be executed by a sick testator; the conduct of a deceased captain on a question of seaworthiness, who, after examining every part of a vessel, embarked in it with his family; all these, when deliberately considered, are, with reference to the matter in issue in each case, mere instances of hearsay evidence — ■ mere statements, not on oath, but applied in or vouched by the actual conduct of persons by whose acts the litigant parties are not to be bound." All these matters are therefore to be treated as irrelevant to the questions at issue. These observations make the rule quite distinct, but the reason suggested for it in the concluding words of the passage extracted appears to be weak. That passage im- 492 A DIGEST OF plies that hearsay is excluded because no one " ought to be bound by the act of a stranger." That no one shall have power to make a contract for another or commit a crime for which that other is to be responsible without his au- thority is obviously reasonable, but it is not so plain why A's conduct should not furnish good grounds for inference as to B's conduct, though it was not authorised by B. The importance of shortening proceedings-, the importance of compelling people to procure the best evidence they can, and the importance of excluding opportunities of fraud, are considerations which probably justify the rule excluding hearsay; but Baron Parke's illustrations of its operation clearly prove that in some cases it excludes the proof of matter which, but for it, would be regarded not only as relevant to particular facts, but as good grounds for be- lieving in their existence. NOTE IX. (To Article 15. — Admission's defixed. ) This definition is intended to exclude admissions by pleading, admissions which, if so pleaded, amount to es- toppels, and admissions made for the purposes of a cause by the parties or their solicitors. These subjects are usu- ally treated of by writers on evidence ; but they appear to me to belong to other departments of the law. The subject, including the matter which I omit, is treated at length in 1 Ph. Ev. 308-401; Taylor, ss. 723-861; and Phipson, 205-235. A vast variety of cases upon admissions of every sort may be found by referring to Roscoe, ]Sr. P. (In- THE LAW OF EVIDENCE. 493 dex, under the word Admissions.) It may perhaps be well to observe that when an admission is contained in a document, or series of documents, or when it forms part of a discourse or conversation, so much and no more of the document, series of documents, discourse or conversation, must be proved as is necessary for the full understanding of the admission, but the judge or jury may of course attach degrees of credit to different parts of the matter proved. This rule is elaborately discussed and illustrated by Mr. Taylor, ss. 725-38. It has lost much of the importance which attached to it when parties to actions could not be witnesses, but could be compelled to make admissions by bills of discovery. The ingenuity of equity draughtsmen was under that system greatly exercised in drawing an- swers in such a form that it was impossible to read part of them without reading the whole, and the ingenuity of the Court was at least as much exercised in countermining their ingenious devices. The power of administering interroga- tories, and of examining the parties directly, has made great changes in these matters. NOTE X. (To Aeticle 16. — Admissioists, by whom made.; As to admissions by parties, see Moriarty v. L. C. & D. Raihvay, 18Y0, L. E. 5 Q. B. 320, per Blackburn, J.; Alner v. Oeorge, 1808, 1 Camp. 392; Banerman v. Rade- nius, 1798, 7 T. K. 663. As to admissions by parties interested, see Spargo v. Brown, 1829, 9 B. & C. 935. 494 A DIGEST OF See also on the subject of this article, 1 Ph. Ev. 362-3, 369, 398; Taylor, ss. 740-3, 755-7, 794; Eoscoe, K P. 67; and Phipson, 215-35. As to admissions by privies, see 1 Ph. Ev. 394-7, and Taylor (from Greenleaf), s. 787. NOTE XL (To Article 17. — Admissiojsts by Agents.) The subject of the relevancy of admissions by agents is rendered difficult by the vast variety of forms which agency assumes, and by the distinction between an agent for the purpose of making a statement and an agent for the purpose of transacting business. If A sends a message by B, B's words in delivering it are in effect A's; but B's statements in relation to the subject-matter of the message have, as such, no special value. A's own statements are valuable if they suggest an inference which he afterwards contests because they are against his interest ; but when the agent's duty is done, he has no special interest in the matter. The principle as to admissions by agents is stated and explained by Sir W. Grant in Fairlie v. Hastings, 1804, 10 Ve. 126-7. NOTE XII. (To Aetiole 18. — Admissions by Steangees.) See, for a third exception (which could hardly occur now), Olay v. Langsloiu, 1827, M. & M. 45. THE LAW OF IJVIDENCB. 495 NOTE XIII. (To Article 19. — Admissions by Party referred to.) This comes very near to the case of arbitration. See, as to irregular arbitrations of this kind, 1 Pli. Ev. 383 ; Taylor, ss. Y60-3 ; Phipson, 233-4. NOTE XIV. (To Article 20. — Admissions without Prejudice.) See more on this subject in 1 Ph. Ev. 326-8 ; Taylor, ss. 774, 795 ; E. N. P. 62-3 ; Phipson, 207-8. NOTE XV. (To Article 22. — Confessions under Threat.) On the law as to Confessions, see 1 Ph. Ev. 401-423 ; Taylor, ss. 872-84, and s. 902; Best, ss. 551-74; Eoscoe, Cr. Ev. 34-49 ; 3 Euss. on Crimes, by Greaves, 477-537 ; Phipson, 244-55. Joy on Confessions reduces the law on the subject to the shape of 13 propositions, the effect of all of which is given in the text in a different form. Many cases have been decided as to the language which amounts to an inducement to confess (see Eoscoe, Or. Ev. 35-38; and Phipson, 250-3, where most of them are collected). They are, however, for practical purposes, summed tip in B. v. Baldry, 1852, 2 Den. 430, which is the authority for the last lines of the first paragraph of this article. 4!)U A DWBHT OF NOTE XVI. (To Article 23. — Confessions on Oath.) Cases are sometimes cited to show tliat if a person is examined as a witness on oath, his deposition cannot be used in evidence against him afterwards (see Taylor, ss. 886 and 895, n. 5; also 3 Enss. on Cri. 511, &c.j. All these cases, however, relate to the examinations before magistrates of persons accused of crimes, under the statutes which were in force before 11 & 12 Vict. c. 42, and which, like that statute, authorised statements by prisoners, but not their examination on oath. Since the decisions in B. v. Scott, 1856, 1 D. & B. 17 ; 25 L. J., M. C. 128, and B. v. Erdheim [1896], 2 Q. B. 260, decided on the Bankruptcy Acts of 1849 and 1883, it seems that these cases must be considered obsolete ; see par- ticularly the judgment of Bussell, L.C. J., in the latter case, at pp. 267-8. The point is of considerable importance since the passing of the Criminal Evidence Act, 1S9S. NOTE XVII. (To Aeticle 26. — Dying Deci.aeations.1 As to dj'ing declarations, see 1 Ph. Ev. 239-52 ; Taylor, ss. 714-22 ; Best, s. 505 ; Starkie, 32 & 38 ; 3 Russ. Cri. 3S8-97; Eoscpe, Crim. Ev. 27-33; Phipson, 29S-303: B. V. Bnl-er, 2 Mo. & Ho., 1837, 53, is a curious case on this subject. A and B were both poisoned by eating the same cake. ( ' was tried for poisoning A. B's dying de- THE LA W OF EVIDENCE. 497 claration that she made the cake in C's presence, and put nothing bad in it, was admitted as against C, on the ground that the whole formed one transaction. Iv^OTE XVIII. (To Article 27. — Declarations in Course of Business.) 1 Ph. Ev. 280-300 ; Taylor, ss. 714-22 ; Best, 501 ; E. ]Sr. P. 60-2; Phipson, 268-75; and see note to Price v. Lord Torrington, 1704, 2 S. L. C. 310. The last case on the subject is Massey v. Allen, 1879, 13 Ch. Div. 558. NOTE XIX. (To Article 28. — Declarations against Interest.) The best statement of the law upon this subject will be found in Higham v. Ridgway, and the note thereto, 2 S. L. C. 817-8. See also 1 Ph. Ev. 253-80 ; Taylor, ss. 668- 96a; Best, s. 500; K. IST. P. 55-59; Phipson, 258-67. A class of cases exists which I have not put into the form of an article, partly because their occurrence since the commutation of tithes must be very rare, and partly because I find a great difficulty in understanding the place which the rule established by them ought to occupy in a systematic statement of the law. They are cases which lay down the rule that statements as to the receipts of tithes and moduses made by deceased rectors and other ecclesiastical corpora- tions sole are admissible in favour of their successors. 32 498 A DIGEST OF There is no doubt as to the rule (see, in particular, Short V. Lee, 1821, 2 Jac. & Wal. 464 ; and Young v. Clare Hall, 1851, lY Q. B. 529). The difficulty is to see why it was ever regarded as an exception. It falls directly within the principle stated in the text, and would appear to be an obvi- ous illustration of it ; but in many cases it has been declared to be anomalous, inasmuch as it enables a predecessor in title to make evidence in favour of his successor. This sug- gests that Article 28 ought to be limited by a proviso that a declaration against interest is not relevant if it was made by a predecessor in title of the person who seeks to prove it, unless it is a declaration by an ecclesiastical corporation sole, or a member of an ecclesiastical corporation aggregate (see Short v. Lee), as to the receipt of a tithe or modus. Some countenance for such a proviso may be found in the terms in which Bayley, J., states the rule in Gleadow v. Athin {ante, p. 107), and in the circumstance that when it first obtained currency the parties to an action were not competent vsdtnesses. But the rule as to the indoreement of notes, bonds, &c., is distinctly opposed to such a view. NOTE XX. (To Aeticle 30. — Declarations as to Public and Geneeal Rights.) Upon this subject, besides the authorities in the text, see 1 Ph. Ev. 169-97; Taylor, ss. 607-34-; Best, s. 497; P. X. P. 48-51 ; Phipson, 276-87. A great number of cases have been decided as to the par- ticular documents, «tc., which fall within the rule given in THE LAW OF EYWE'SGE. 499 the text. They are collected in the works referred to above, but they appear to me merely to illustrate one or other of the branches of the rule, and not to extend or vary it. An award, e.g., is not within the last branch of illustration (&), because it " is but the opinion of the arbitrator, not upon his o^vn knowledge " {Evans v. Bees, 1839, 10 A. & E. 155) ; but the detailed application of such a rule as this is better learnt by experience, applied to a firm grasp of prin- ciple, than by an attempt to recollect innumerable cases. The case of Weehs v. Sparke (ante, p. 113) is remarkable for the light it throws on the history of the Law of Evidence. It was decided in 1813, and contains inter alia the follow- ing curious remarks by Lord EUenborough : " It is stated to be the habit and practice of different circuits to admit this species of evidence upon such a question as the present. That certainly cannot make the law, but it shows at least, from the established practice of a large branch of the pro- fession, and of the judges who have presided at various times on those circuits, what has been the prevailing opin- ion upon this subject amongst so large a class of persons interested in the due administration of the law. It is stated to have been the practice both of the ISTorthern and Western Circuits. My learned predecessor. Lord Kenyon, certainly held a different opinion, the practice of the Ox- ford Circuit, of which he was a member, being different." So in the Berkeley Peerage Case, 1811, Lord Eldon said, " When it was proposed to read this deposition as a declara- tion, the Attorney-General (Sir Vicary Gibbs) flatly ob- jected to it. He spoke quite right as a Western Circuiteer, 500 A DIGEST OF of what he had often heard laid down in the West, and never heard doubted " (4 Cam. 20). This shows how very modern much of the Law of Evidence is. Le Blanc, J., in Weeks v. Sparke, says, that a foundation must be laid for evidence of this sort " by acts of enjoyment -within living memory." This seems superfluous, as no jury would ever find that a public right of way existed, which had not been used in living memory, on the strength of a report that some deceased person had said that there once was such a right. NOTE XXI. (To Aeticle 31. — Declaeatio:nt^s as to Pedigeee.) See 1 Ph. Ev. 197-233; Taylor, ss. 635-57; E. X. P. 46-48 ; Phipson, 288-297. The Berkeley Peerage Case, 1811 (Answers of the Judges to the House of Lords), 4 Cam. 401, which estab- lished the third condition given in the text ; and Davies v. Lowndes, 1843, 6 M. & G. 471 (see more particularly pp. 525-9, in which the question of family pedigrees is fully discussed) are specially important on this subject. As to declarations as to the place of birth, &c., see Shields V. Boucher, 1847, 1 De G. & S. 49-58. NOTE XXII. (To Aeticle 32. — Evidence in Eoemee Peocbedings.) See also 1 Ph. Ev. 306-8; Taylor, ss. 464-79a; Puller, N. P. 238, and following; Phipson, 419-25. TEE LAW OF EVIDENCE. 501 In reference to this subject it has been asked whether this principle applies indiscriminately to all kinds of evi- dence in all cases. Suppose a man were to be tried twice upon the same facts — e. g. for robbery after an acquittal for murder, and suppose that in the interval between the two trials an important witness who had not been called before the magistrates were to die, might his evidence be read on the second trial from a reporter's short-hand notes ? This case might easily have occurred if Orton had been put on his trial for forgery as well as for perjury. I should be disposed to think on principle that such evi- dence would be admissible, though I cannot cite any authority on the subject. The common law principle on which depositions taken before magistrates and in Chan- cery proceedings were admitted seems to cover the case. NOTE XXIII. (To Articles 39-47. — Judgments as Evidence. ) The law relating to the relevancy of judgments of Courts of Justice to the existence of the matters which they assert is made to appear extremely complicated by the manner in which it is usually dealt with. The method commonly employed is to mix up the question of the effect of judg- ments of various kinds with that of their admissibility, subjects which appear to belong to different branches of the law. Thus the subject, as commonly treated, introduces into the Law of Evidence an attempt to distinguish between judgments in rem, and judgments in personam, or inter 502 A DIGEST OF partes (terms adapted from, but not belonging to, Roman Law, and never clearly defined in reference to our own or any other system) ; also the question of the effect of the pleas of autrefois acquit, and autrefois convict, which clearly belong not to evidence, but to criminal procedure ; the question of estoppels, which belongs rather to the law of pleading than to that of evidence; and the question of the effect given to the judgments of foreign Courts of Jus- tice, which would seem more properly to belong to private international law. These and other matters are treated of at great length in 2 Ph. Ev. 1-78, and Taylor, ss. 1667- 1723 ; in the note to the Duchess of Kingston's Case, 1776, 2 S. L. C. 726-840 ; and Phipson, 379-412. Best (ss. 588- 595) treats the matter more concisely. The text is confined to as complete a statement as 1 could make of the principles which regulate the relevancy of judgments considered as declarations proving the facts which they assert, whatever may be the effect or the use to Jdc made of those facts when proved. Thus the leading principle stated in Article 40 is equally true of all judg- ments alike. Every judgment, whether it be in rem or inter partes, must and does prove what it actually effects, though the effects of different sorts of judgments differ as widely as the effects of different sorts of deeds. There has been much controversy as to the extent to which effect ought to be given to the judgments of foreign Courts in this country, and as to the cases in which the Courts will refuse to act upon them ; but as a mere question of evidence, they do not differ from English judgments. TEE LAW OF EVIDENCE. 503 The cases on foreign judgments are collected in the note to the Duchess of Kingston's Case, 2 S. L. C. 765-801. There is a convenient list of the cases in E. JST. P. 205-6. The cases of Godard v. Gray, 1870, L. E. 6 Q. B. 139 ; Cas- trique v. Imrie, 1870, L. E. 4 E. & I. A. 414; and Noewion V. Freeman, [1889], 15 A. C. 1, are the latest leading cases on the subject. 1«J"0TE XXIV. (To Chaptek V. — Opinions^ when Eelevant.) On evidence of opinions, see 1 Ph. Ev. 520-8 ; Taylor, ss. 1416-1425 ; Best, ss. 511-17 ; E. JST. P. 174-5 ; Phipson, 356-78. The leading case on the subject is Doe v. Tatham, 1837, 7 A. & E. 313 ; and 4 Bing. K C. 489, referred to above in Note VIII. Baron Parke, in the extracts there given, treats an expression of opinion as hearsay, that is, as a statement affirming the truth of the subject-matter of the opinion. JS^OTE XXV. (To Chapter VI. — Chaeactee^ when" Eelevant.) See 1 Ph. Ev. 502-8; Taylor, ss. 349-63; Best, ss. 257- 63; 3 Euss. Cr. 424-8; Phipson, 154-8. The subject is considered at length in B. v. Bowton, 1865, 1 L. & C. 520. One consequence of the view of the subject taken in that case is that a witness may with perfect truth swear that a man, who to his knowledge has been a receiver of stolen goods for years, has an excellent character for honesty, if he has had the good luck to conceal his crimes from his 504 .1 DIGEST OF neighbours. It is the essence of s-QCcesaful hypocrisy to combine a good reputation with a bad disposition, and ac- cording to R. V. Rou'toii, the reputation is the important matter. The case is seldom if ever acted on in practice. The question always put to a witness to character is, What is the prisoner's character for honesty, morality, or human- ity ? as the case may be ; nor is the witness ever warned that he is to confine his evidence to the prisoner's reputa- tion. It would be no easy matter to make the common run of witnesses understand the distinction. JTOTE XXVI. (To Aetigle 58. — Judicial I^otice.) The list of matters judicially noticed in this article is not intended to be quite complete. It is compiled from 1 Ph. Ev. 458-67, and Taylor, ss. 4-21, where the subject is gone into more minutely. A convenient list is also given in R. IT. P. 80-84, which is much to the same effect; see, too, Phipson, 16-24. It may be doubted whether an absolutely complete list could be formed, as it is prac- tically impossible to enumerate everything which is so notorious in itself, or so distinctly recorded by public au- thority, that it would be superfluous to prove it. Para- graph (1) is dravsTi with reference to the fusion of Law, Equity, Admiralty, and Testamentary Jurisdiction ef- fected by the Judicature Act. TBE LAW OF EVIDENCE. 505 IvTOTE XXVII. (To Aeticle 62. — Oeal Evidence must be Dibect.) Owing to the ambiguity of the word " evidence," which is sometimes used to signify the effect of a fact when proved, and sometimes to signify the testimony by which a fact is proved, the expression " hearsay is no evidence " has many meanings. Its common and most important meaning is the one given in Article 14, whicli might be otherwise expressed by saying that the connection between events, and reports that they have happened, is generally so remote that it is expedient to regard the existence of the reports as irrelevant to the occurrence of the events, except in excepted cases. Article 62 expresses the same thing from a different point of view, and is subject to no excep- tions whatever. It asserts that whatever may be the rela- tion of a fact to be proved to the fact in issue, it must, if proved by oral evidence, be proved by direct evidence. For instance, if it were to be proved under Article 31 that A, who died fifty years ago, said that he had heard from his father B, who died 100 years ago, that A's grandfather C had told B that D, C's elder brother, died without issue, A's statement must be proved by some one who, with his own ears, heard him make it. If (as in the case of verbal slander) the speaking of the words was the very point in issue, they must be proved in precisely the same way. Cases in which evidence is given of character and general opinion may perhaps seem to be exceptions to this rule, 506 A DIGEST OF but they are not so. When a man swears that another has a good character, he means that he has heard many people, though he does not particularly recollect what people, speak well of him, though he does not recollect all that they said. WOTE XXVIII. (To Aeticles 66 & 67. — Peoof of Exegutiok- of Docu- ment MUST BE ATTESTED.) This is probably the most ancient, and is, as far as it extends, the most inflexible of all the rules of evidence. The following characteristic observations by Lord Ellen- borough occur in R. v. Har ring worth, 1815, 4 M. & S. at p. 353:— " The rule, therefore, is universal that you must first call the subscribing witness ; and it is not to be varied in each particular case by trying whether, in its application, it may not be productive of some inconvenience, for then there would be no such thing as a general rule. A laiuyer who is ivell stored with these rules would he no better than any other man that is without them, if by mere force of speculative reasoning it might be shown that the applica- tion of such and such a rule would be productive of such and such an inconvenience, and therefore ought not to prevail; but if any general rule ought to prevail, this is certainly one that is as fixed, formal, and universal as any that can be stated in a Court of Justice." In Whyman v. Garth, 1853, 8 Ex. at p. 807, Pollock, C.B., said, " The parties are supposed to have agreed inter THE LAW OF EVIDENCE. 507 se that the deed shall not be given in evidence without his [the attesting witness] being called to depose to the circum- stances attending its execution." In very ancient times, when the jury were witnesses as to matter of fact, the attesting witnesses to deed (if a deed came in question) would seem to have been summoned with, and to have acted as a sort of assessors to, the jury. See as to this, Br acton, fo. 38a-; Fortescue, De Laudihus, ch. xxxii. with Selden's note ; and cases collected from the Year-books in Brooke's Abridgement, tit. Testmoignes. For the present rvile, and the exceptions to it, see 2 Ph. Ev. 242-61; Taylor, ss. 1839-1844: ; E. K P. 131-34; Best, ss. 220, &c. ; Phipson, 490-95. The old rule which applied to all attested documents was restricted to those required to be attested by law, by 17 & 18 Vict. c. 125, s. 26, replaced by 28 & 29 Vict. c. 18, ss. 1 & 7, and now repealed by S. L. E. Act, 1892. NOTE XXIX. (To Aeticle 72. — ISTotice to produce. ) For these rules in greater detail, see 1 Ph. Ev. 452-3, and 2 Ph. Ev. 272-89; Taylor, ss. 449-56; E. N. P. 7-14; Phipson, 507-8. • The principle of all the rules is fully explained in the cases cited in the foot-notes, more particularly in Dwyer V. Collins, 1852, 7 Ex. 639. In that case it is held that the object of notice to produce is " to enable the party to have the document in Court, and if he does not, to enable 508 A DIGEST OF his oppojient to give parol evidence ... to exclude the argu- ment that the opponent has not taken all reasonable means to procure the original, which he must do before he can be permitted to make use of secondary evidence " (pp. 647-8). NOTE XXX. (To Article 75. — Public Documents; Examined Copies.) Mr. Philips (2, 196) says, that upon a, plea of nul tiel record, the original record must be produced if it is in the same Court. Mr. Taylor (s. 1535) says, that upon prosecutions for perjury assigned upon any judicial dociunent the original must be produced. The authorities given seem to me hardly to bear out either of these statements. They show that the production of the original in such cases is the usual course, but not, I think, that it is necessary. The case of Lady Dartmouth v. Roberts, 1812, 16 Ea. 33-1, is too wide ioT the proposition for which it is cited. The matter, how- ever, is of little practical importance. ISrOTE XXXI. (To Articles 77 & 78. — Public Documents; Exem- plifications.) The learning as to exemplifications and office-copies will be found in the follovsang authorities : Gilbert's ' Law of Evidence,' 11-20; Puller, ' N'isi Prius,' 228, and follow-' ing; Starkie, 256-66 (fully and very conveniently) ; 2 Ph. THE LAW OF EVIDENCE. 509 Ev. 196-200; Taylor, ss. 1536-1542; R K P. 96-102. The second paragraph of Article 7Y is founded on Appleton V. Brayhrooh, 181Y, 6 M. & S. at p. 39. As to exemplifications not under the Great Seal, it is remarkable that the Judicature Acts give no seal to the Supreme Court, or the High Court, or any of its div'sions. NOTE XXXII. (To Aeticle 90. — Documents Exclusive Evidence.) The distinction between this and the following article is, that Article 90 defines the cases in which documents are exclusive evidence of the transactions which they embody, while Article 91 deals with the interpretation of documents by oral evidence. The two subjects are so closely con- nected together, that they are not usually treated as dis- tinct ; but they are so in fact. A and B make a contract of marine insurance on goods, and reduce it to writing. They verbally agree that the goods are not to be shipped in a particular ship, though the contract makes no such reser- vation. They leave unnoticed a condition usually under- stood in the business of insurance, and they make use of a technical expression, the meaning of which is not com- monly known. The law does not permit oral evidence to be given of the exception as to the particular ship. It does permit oral evidence to be given to annex the condition; and thus far it decides that for one purpose the document shall, and that for another it shall not, be regarded as exclusive evidence of the terms of the actual agreement 510 A DIGEST OF between the parties. It also allows the technical term to be explained, and in doing so it interprets the meaning of the document itself. The two operations are obviously- different, and their proper performance depends upon dif- ferent principles. The first depends upon the principle that the object of reducing transactions to a written form is to take security against bad faith or bad memory, for which reason a writing is presumed as a general rule to embody the final and considered determination of the par- ties to it. The second depends on a consideration of the imperfections of language, and of the inadequate manner in which people adjust their words to the facts to which they apply. The rules themselves are not, I think, difficult either to state, to understand, or to remember ; but they are by no means easy to apply, inasmuch as from the natiire of the case an enormous number of transactions fall close on one side or the other of most of them. Hence the exposition of these rules, and the abridgment of all the illustrations of them which have occurred in practice, occupy a very large space in the different text writers. They will be found in 2 Ph. Ev. 332-424; Taylor, ss. 1128-1228; Star. 648-731; Best (very shortly and imperfectly), ss. 226-9; E. IST. P. (an immense list of cases), 16-33; Phipson, 528-75. As to paragraph (4), which is founded on the case of Goss V. Lord Nugent^ it is to be observed that the para- graph is purposely so drawn as not to touch the question of the effect of the Statute of Frauds. It Avas held in effect in Ooss V. Lord Nugent that if by reason of the Statute of THE LAW OF EVIDENCE. 511 Frauds the substituted contract could not be enforced, it would not have the effect of waiving part of the original contract ; but it seems the better opinion that a verbal res- cission of a contract good under the Statute of Frauds would be good. See Nolle v. ^Ward, 1867, L. E. 2 Ex. 135, and Pollock on ' Contracts' (6th ed.), 235, note (i). A contract by deed can be released only by deed, and this case also would fall within the proviso to paragraph (4). The cases given in the illustrations will be found to mark stifSciently the various rules stated. As to paragraph (5), a very large collection of cases will be found in the notes to Wigglesworth v. Dallison, 1779, 1 S. L. C, 535- 60, but the consideration of them appears to belong rather to mercantile law than to the Law of Evidence. Eor instance, the question what stipulations are consistent with, and what are contradictory to, the contract formed by sub- scribing a bill of exchange, or the contract between an in- surer and an underwriter, are not questions of the Law of Evidence. NOTE XXXIII. (To Aeticle 91. — Oral Ixtekpbetation of Docu- ments.) Perhaps the subject-matter of this article does not fall strictly within the Law of Evidence, but it is generally con- sidered to do so; and as it has always been treated as a branch of the subject, I have thought it best to deal with it. The general authorities for the propositions in the text are the same as those specified in the last note; but the 512 A DIGEST OF great authority on the subject is the work of Vice-Chan- cellor Wigram on ' Extrinsic Evidence.' Article 91, in- deed, will be found, on examination, to differ from the six propositions of Vice-Chancellor Wigram only in its ar- rangement and form of expression, and in the fact that it is not restricted to wills. It will, I think, be found, on examination, that every case cited by the Vice-Chancellor might be used as an illustration of one or the other of the propositions contained in it. It is difficult to justify the line drawn between the rule as to cases in which evidence of expressions of intention is admitted and cases in which it is rejected (paragraph 7, illustrations (Jc), (I), (m), and paragraph 8, illustrations (n)and (o) ). When placed side by side, siich cases as Doe V. Hiscocks (illustration (Jc)) and Doe v. Needs (illustra- tion (n) ) produce a singular effect. The vagueness of the distinction between them is indicated by the case of Charter v. Charter, 1871, L. R. 2 P. & M. 315. In this case the testator Forster Charter appointed " my son Forster Charter " his executor. He had two sons, William Eorster Charter and Charles Charter, and many circum- stances pointed to the conclusion that the person whom the testator wished to be his executor was Charles Charter. Lord Penzance not only admitted evidence of all the cir- cumstances of the case, but expressed an opinion (p.- 319) that, if it were necessary, evidence of declarations of in- tention might be admitted under the rule laid down by Lord Abinger in Hiscocks v. Hiscocks, because part of the language employed (" my son Charter ") applied THE LAW OF EVIDENCE. 513 correctly to each son, and tlie remainder, " Forster," te neither. This mode of construing the rule would admit evidence of declarations of intention hoth in cases falling under paragraph 8, and in cases falling under paragraph 7, which is inconsistent not only with the reasoning in the judgment, but with the actual decision in Doe v. Hiscochs. It is also inconsistent with the principles of the judgment in the later case of Allgood v. Blake, 1873, L. K 8 Ex. 160, where the rule is stated by Blackburn, J., as follows : " In construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and cir- cumstances which were (or ought to have been) in the mind of the testator when he used those words." After quoting Wigram on ' Extrinsic Evidence,' and Doe v. His- cochs, he adds : " Ifo doubt, in many cases the testator has, for the moment, forgotten or overlooked the material facts and circumstances which he well knew. And the conse- quence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the Court is to construe the will as made by the testator, not to make a will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has by blunder expressed what he did not mean." The part of 33 614 A DIGEST OF Lord Penzance's judgment above referred to was unani- mously overruled in the House of Lords ; though the Court^ being equally divided as to the construction of the mil, re- fused to reverse the judgment, upon the principle proe- sumitur pro negante. Conclusive as the authorities upon the subject are, it may not, perhaps, be presumptuous to express a doubt whether the conflict between a natural wish to fulfil th& intention which the testator would have formed if he had recollected all the circumstances of the case; the wish to avoid the evil of permitting vtrritten instruments to be varied by oral evidence ; and the wish to give effect to wills, has not produced in practice an illogical compromise. The strictly logical course, I think, would be either to admit declarations of intention both in cases falling under para- graph 7, and in cases falling under paragraph 8, or to ex- clude such evidence in both classes of cases, and to hold void for uncertainty every bequest or devise which was shown to be uncertain in its application to facts. Such a decision as that in Stringer v. Gardiner (see illustration (m)), the result of which was to give a legacy to a person whom the testator had ro wish to benefit, and who was not either named or described in his will, appeai-s to me to be a practical refutation of the principle or riile on which it is based. Of course every document whatever must to some extent be interpreted by circumstances. However accurate and detailed a description of things and persons may be, oral evidence is always wanted to show that persons and things TME LAW OF EVIDENCE. 515 answering the description exist; and therefore in every case whatever, every fact must be allowed to be proved to which the document does, or probably may, refer; but if more evidence than this is admitted, if the Court may look at circumstances which affect the probability that the tes- tator would form this intention or that, why should declara- tions of intention be excluded? If the question is, " What did the testator say ? " why should the Court look at the circumstances that he lived with Charles, and was on bad terms with William? How can any amount of evidence to show that the testator intended to write " Charles " show that what he did write means "Charles"? To say that " Forster " means " Charles," is like saying that " two " means " three." If the question is " What did the testator wish ? " why should the Court refuse to look at his declara- tions of intention ? And what third question can be asked ? The only one which can be suggested is, "What would the testator have meant if he had deliberately used un- meaning words ? " The only answer to this would be, he would have had no meaning, and would have said nothing, and his bequest should be pro tanto void. XOTE XXXIV. (To Aeticle 92.- — Evidence by Stkangees to Doctt- MENTS.) See 2 Ph. Ev. 364; Star. 726; Taylor (from Green- leaf), ss. 1149, Phipson, 533. Various cases are quoted by these writers in support of the first part of the proposition in the article; but R. v. Cheadle is the only one which 616 A DIGEST OF appears to me to come quite np to it. They are all settle- ment cases. NOTE XXXV. (To Chapter XIII. — Peojjuction and Effect of Evidence.) In this and the following chapter many matters usually introduced into treatises on evidence are omitted, because they appear to belong either to the subject of pleading, or to different branches of Substantive Law. Eor instance, the rules as to the burden of proof of negative averments in criminal cases (1 Ph. Ev. 555, &c. ; 3 Russ. on Cr. 400- 403) belong rather to criminal procedure than to evidence. Again, in every branch of Substantive Law there are pre- sumptions more or less numerous and important, which can be understood only in connection with those branches of the law. Such are the presumptions as to the ownership of property, as to consideration for a bill of exchange, as to many of the incidents of the contract of insurance. Pass- ing over all these, I have embodied in Chapter XIV. those presumptions only which bear iipon the proof of facts likely to be proved on a great variety of different occasions, and those estoppels only which arise out of matters of fact, as disting\iished from those which arise upon deeds or judgments. THE LAW OF EVIDENCE. 517 NOTE XXXVI. (To Article 94. — Peesumption oe Innocence.) The presumption of innocence belongs principally to the Criminal Law, though it has, as the illustrations show, a bearing on the proof of ordinary facts. The question, " What doubts are reasonable in criminal cases ? " belongs to the Criminal Law. NOTE XXXVII. (To Aeticle 101.^ — " Omnia Eite Acta.") The first part of this article is meant to give the effect of the presumption, omnia esse rite acta, 1 Ph. Ev. 480, &c. ; Taylor, ss. 139, &c. ; Best, s. 353, &c. This, like all pre- sumptions, is a very vague and fluid rule at best, and is applied to a great variety of different subject-matters. XOTE XXXVIII. (To Articles 102-105. — Estoppels in Pais.) These articles embody the principal cases of estoppels in pais, as distinguished from estoppels by deed and by record. As they may be applied in a great variety of ways and to infinitely various circumstances, the application of these rules has involved a good deal of detail. The rules them- selves appear clearly enough on a careful examination of the cases. The latest and most extensive collection of cases is to be seen in 2 S. L. C. 808-40, where the cases referred 618 A DiaEST OF to in the text and many others are abstracted. See, too, 1 Ph. Ev. 350-3; Taylor, ss. 101-3, 776, 778; Best, s. 543; Phipson, 584-8. Article 102 contains the rule in Pickard v. Sears, 1837, 6 A. & E. at p. 474, as interpreted and limited by Parke, B., in Freeman v. Cooke, 1848, 2 Ex. 654, 663. The second paragraph of the article is founded on the application of this rule to the case of a negligent act causing fraud. The rule, as expressed, is collected from a comparison of the fol- lowing cases: Bank of Ireland v. Evans, 1855, 5 H. L. Ca. 389 ; Swan v. North British Australasian Company, which was before three Courts, see 1859, 7 C. B. (N.S.), 400; 1862, 7 H. & K 603 ; 1863, 2 H. & C. 175, where the judgment of the majority of the Court of Exchequer was reversed; and Halifax Gwirdians v. Wheelwright, 1875, L. R. 10 Ex. 183, in which all the cases are referred to. All of these refer to Young v. Grote, 1827, 4 Bing. 253, and its authority has always been upheld, though not al- ways on the same ground. The rules on this subject are stated in general terms in Carr v. L. & N. W. Railway, 1875, 10 C. P. 316-17. It would be difficult to find a better illustration of the gradual way in which the judges construct rules of evi- dence, as circumstances require it, than is afforded by a study of these cases. THE LAW OF EVIDENCE. 519 NOTE XXXIX. (To Chapter XV. — Competeis'cy of Witnesses.) The law as to the competency of witnesses was formerly the most, or nearly the most, important and extensive branch of the Law of Evidence. Indeed, rules as to the incompetency of witnesses, as to the proof of documents, and as to the proof of some particular issues, are nearly the only rules of evidence treated of in the older authorities. Great part of Bentham's ' Rationale of Judicial Evidence ' is directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded ; and his attack vipon them has met with a success so nearly complete that it has itself become obsolete. The history of the subject is to be found in Mr. Best's work, book ii. part i. ch. ii. ss. 132-88. See, too, Taylor, ?s. 1342-1311:5, and E. X. P. 160-4. As to the old law, see 1 Ph. Ev. 5 et seq., 104. NOTE XL. (To Aeticle 107. — What Witnesses Incompetent.) The authorities for the first paragraph are given at great length in Best, ss. 146-65. See, too, Taylor, s. 1375; Phipson, 436-8. As to paragraph 2, see Best, s. 148 ; 1 Ph. Ev. 7 ; 2 Ph. Ev. 457 ; Taylor, s. 1376. 629 .1 DIGEST OF NOTE XLI. (To Aeticle 108. — Competency is Ceiminal Cases.) At Common Law the parties and their husbands and wives were incompetent in all cases. This incompetency was removed as to the parties in civil, but not in criminal cases, by 14 & 15 Vict. c. 99, s. 2 ; and as to their husbands and wives, by 16 & 17 Yict. c. 83, ss. 1, 2. But sect. 2 expressly reserved the Common Law as to criminal cases and proceedings instituted in consequence of adultery. The words relating to adultery were repealed by 32 & 33 Vict. c. 68, s. 3, which is the authority for Article 109. Persons interested and persons who had been convicted of certain crimes were also incompetent "witnesses, but their incompetency was removed by 6 & 7 Vict. c. 85. Various modern statutes mentioned in Xote 1, p. 289, made an accused person and his or her wife or husband competent witnesses in various cases, and now the Crim- inal Evidence Act, 1898, has removed their incompetency to the extent mentioned in the text. The law on the sub- ject cannot, however, be correctly stated without reference to the old Common Law Rule. NOTE XLIL (To Article 111. — Privilege of .Tudges and Wit- nesses.) The cases on which these articles are founded are only Nisi Prius decisions: but as they are quoted by writers of THE LAW OF EVIDENCE. 521 eminence (1 Ph. Ev. 139; Taylor, s. 938), I have referred to them. In the trial of Lord Thanet, for an attempt to rescue Arthur O'Connor, Serjeant Shepherd, one of the special commissioners, before whom the riot took place in court at Maidstone, gave evidence, R. v. Loi'd Thanet, 1799, 27 S. T. at p. 836. I have myself been called as a witness on a trial for perjury to prove what was said before me when sitting as an arbitrator. The trial took place before Mr. Justice Hayes at York, in 1869. See, however, Article 123b. As to the case of an advocate giving evidence in the course of a trial in which he is professionally engaged, see several eases cited and discussed in Best, ss. 1S4-6. In addition to those cases, reference may be made to the trial of Home Tooke for a libel in 1777, when he proposed to call the Attorney-General (Lord Thurlow), 20 S. T. at p. 740. These cases do not appear to show more than that, as a rule, it is for obvious reasons improper that those who conduct a case as advocates should be called as witnesses in it. Cases, however, might occur in which it might be absoMtely necessary to do so. For instance, a solicitor engaged as an advocate might, not at all improb- ably, be the attesting witness to a deed or will. NOTE XLIII. (To Article 115. — Professioxat. CoiuruxiCATioNS.) This article sums up the rule as to professional commu- nications, every part of which is explained at great length. 522 A DLUEtiT OF and to much the same effect, 1 Ph. Ev. 105-122 ; Taylor, as. 911-18A; Best, s. 581. See, too, Phipson, 181-91. It is so well established and so plain in itself that it requires only negative illustrations. It is stated at length by Lord Brougham in Greenough v. Gaskell, 1833, 1 M. & K. 98. The last leading case on the subject is B. v. Cox and Railton, 1884, 14 Q. B. D. 153. Leges Henrici Primi, t. 17: "Caveat sacerdos ne de hiis qui ei confitentur peccata alicui recitet quod ei confessus est, non propinquis, non extraneis. Quod si fecerit deponetur et omnibus diebus vitse sute ignominiosus peregrinando pceniteat." 1 M. 50«. IS^OTE XLIV. (To Article 117. — Privilege of Cleegtmen- and Priests.) The question whether clergymen, and particularly whether Roman Catholic priests, can be compelled to dis- close confessions made to them professionally, has never been solemnly decided in England, though it is stated by the text writers that they can. See 1 Ph. Ev. 109 ; Taylor, ss. 916-17; E. K P. 171; Starkie, 40. The question is discussed at some length in Best, ss. 583-4; and a pamphlet was written to maintain the existence of the privilege by Mr. Baddeley in 1865. Mr. Best shows clearly that none of the decided cases are directly in point, except Butler v. Moore, 1802, MacWally, 253-4, and possibly B. v. Sparkes, which was cited by Garrow in arguing Du Barre v. Livette before Lord Kenyon, 1791, 1 Pea. 108. The report of his TBE LAW OF EVIDEXCE. 523 argument is in these words : " The prisoner heing a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted; and that confession was permitted to be given in evidence on the trial " (before Buller, J.), " and he was convicted and executed." The report is of no value, resting as it does on Peake's note of Garrow's statement of a case in which he was probably not personally concerned; and it does not appear how the ob- jection was taken, or whether the matter was ever argued. Lord Kenyon, however, is said to have observed: " I should have paused before I admitted the evidence there admitted." Mr. Baddeley's argument is in a few words, that the privilege must have been recognised Avhen the Koman Catholic religion ^^•as established by law, and that it has never been taken away. I think that the modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the Courts, and l>y decisions in the course of the last two centuries. It came into existence at a time when excep- tions in favour of auricular confessions to Eoman Catholic priests were not likely to be made. The general rule is that every person must testify to what he knows. An exception to the general rule has been established in reo-ard to legal advisers, but there is nothing to show that it extends to clergymen, and it is usually so stated as not to include them. This is the ground on which the Irish Mas- ter of the Rolls (Sir Michael Smith) decided the case of Bidler v. Moore, supra. Tt was a demurrer to a rule to 5'24 A DIGEST OF administer interrogatories to a Roman Catholic priest as to matter "which he said he knew, if at all, professionally only. The judge said, " It was the undoubted legal con- stitutional right of every subject of the realm who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery, unless specially exempted and protected by law. It was candidly admitted that no special exemption could be shown in the present instance, and analogous eases and principles alone were relied upon." The analogy, however, was not considered suffi- ciently strong. Several judges have, for obvious reasons, expressed the strongest disinclination to compel such a disclosure. Thus Best, C.J., said, "I, for one, will never compel a clergy- man to disclose communications made to him by a pris- oner; but if he chooses to disclose them I shall receive them in evidence " {obiter, in Broad v. Pitt, 1828, 3 C. & P. 518). Alderson, B., thought (rather it would seem as a matter of good feeling than as a matter of positive law) that such evidence should not be given. B. v. Griffin, 1853, 6 Cox, Cr. Ca. 219. NOTE XLIVa. (To Article 123a.— Unswoex Evidence, Relevancy of.) In R. V. Wealand, 188S, 20 Q. B. D. 827, the indict- ment, tinder the Criminal Law Amendment Act, s. 4, charged the prisoner with carnally knowing a girl under THE LAW OF EVIDENCE. 52S 13. The child, under the same section, gave evidence withoxit being sworn. The jury acquitted the prisoner of carnally knowing the child, and found him guilty of inde- cent assault. The conviction was affirmed, though on a charge of indecent assault the unsworn evidence would have been inadmissible, and though the evidence apart from the child's statement was insufficient to support a conviction. The ground of the decision was that sect. 4 of the Act made the unsworn evidence admissible, and sect. 9 made the verdict lawful. Lord Coleridge, C.J., described the result as " an anomaly," and as showing " an unsatisfactory state of the law." In B. v. Paul, 1890, 25 Q. B. D. 302, the indictment was in two counts, one under sect. 4 of the Criminal Law Amendment Act, 1885, charging an attempt to have carnal knowledge of a girl under thirteen, and the other charging indecent assault. Under sect. 4 the child gave evidence without being sworn. The other evidence was insufficient to support a convic- tion, but contributed material corroboration of the unsworn statement. The jury acquitted the prisoner (by the direction of the judge) on the "first count, and found him guilty, on the second, of indecent assault. The con- viction was quashed on the ground that, on the substantial count for indecent assault, not being a charge under s. 4 of the Criminal Law Amendment Act, the unsworn evi- dence of the child was inadmissible. The judgment of the Court (delivered by Hawkins, J., and concurred in by Lord Coleridge, C.J., and Mathew, Day, and Grantham, J,T.) distinguished B. v. WeaJand on the ground that there r,l(i A DIOEBT OP the verdict was returned, as by law it could be, upon a count (under s. 4) upon which the unsworn evidence was admissible. In this judgment "the law created by the Statute " was said to be " in a very unsatisfactory state.'^ It is clear that the two cases cannot be reconciled upon a satisfactory principle, and that, both being authoritative, the admissibility of the unsworn evidence depends in such cases upon the form of the indictment. It is to be observed that since the passing of the Prevention of Cruelty to Children Act, 1894, (57 & 58 Vict. c. 41, s. 15, & Schedule), if the indecent assault were an " offence in- volving bodily injury" to the child, it might be argued that the unsworn statement of the child was admisiible, not under the Criminal Law Amendment Act, 1885, but under the Prevention of Cruelty to Children Act. It seems probable, however, that the words " offence involv- ing bodily injury " mean an offence necessarily involving bodily injury, which indecent assault could hardly be said to be. If an indictment for having carnal knowledge of a girl under thirteen in one count were so drawn as to comprise — as it very well might — an allegation that the prisoner indecently assaulted the child, it would seem that R. V. Wealand would make the child's unsworn testimony admissible, and that in the event of a conviction for inde- cent assault R. v. Paul would not apply. THE LAW OF EVIDElslCE. 527 NOTE XLV. (To Aetioles 126, 127, 128. — Examination, etc., of Witnesses.) These articles relate to matters almost too familiar to require authority, as no one can watch the proceedings of any Court of Justice without seeing the rules laid down in them continually enforced. The subject is discussed at length in 2 Ph. Ev. pt. 2, chap. x. p. 456, &c.; Taylor, s. 1394, &c.; Phipson, 467-80; see, too, Best, s. 631, &c. In respect to leading questions, it is said, " It is entirely a question for the presiding judge whether or not the exam- ination is being conducted fairly." K. IST. P. 165. NOTE XLVI. (To Article 129. — Limits of Cross-examination.) This article states a practice which is now common, and which never was more strikingly illustrated than in the ease referred to in the illustration. But the practice Avhich it represents is modern; and I submit that it requires the qualification suggested in the text. I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is called to prove a minor fact, not really disputed, in a case of little impor- tance, thereby exposes himself to having every transaction of his past life, however private, inquired into by persons 528 A DIGEST OF who may wish to serve the basest purposes of fraud or re- venge by doing so. Suppose, for instance, a medical man were called to prove the fact that a slight wound had been inflicted, and had been attended to by him, would it be lawful, under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs, extending over many years, and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be in- volved? If this is the law, it should be altered. The fol- lowing section of the Indian Evidence Act (1 of 872) may perhaps be deserving of consideration. After authorising, in sect. 147, questions as to the credit of the witness the Act proceeds as follows in sect. 148 : — "If any such question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if he thinks fit, warn the witness that he is not obliged to answer it. In exercising this discretion, the Court shall have regard to the following considera- tions :— "(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. "(2) Such questions ai-e improper if the imputation which they convey relates to matters so remote in time or THE LAW OF EVIDENCE. 529 of such a character that the truth of the imputatioa would not affect, or would affect in a slight degree, the opinion of the Coui't as to the credibility of the witness on the matter to which he testifies. "(3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence." Order XXXVI., rule 38, expressly gives the judge a discretion which was much wanted, and which I believe he always possessed. NOTE XLVII. (To Article 131. — Statements Ijn^consistext with Pkesent Testimony.) The contents of this section are intended to represent sects. 3 and 4 of the Criminal Procedure Act, 1865, 28 & 29 Vict. c. 18, which re-enacted sects. 22 and 23 of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, now repealed by the Statute Law Kevision Act, 1892. The two sections in question are as follows : — 3. A party producing a Avitness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to des- ■ 530 A DIGEST OF ignate the particular occasion, must be mentioned to the ■witness, and he must be asked whether or not he has made such statement. 4. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the cir- cumstances of the supposed statement, sufficient to desig- nate the particular occasion, miist be mentioned to the witness, and he must be asked whether or not he has made such statement. The sections are obviously ill-arranged; but apart from this, s. 3 is so worded as to suggest a doubt whether a party to an action has a right to contradict a vratness called by himself whose testimony is adverse to his interests. The words "he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evi- dence," suggest that he cannot do so unless the judge is of that opinion. This is not, and never was, the law. In Greenough v. Eccles, 1859, 5 C. B. (:S".S.), at p. 802, Williams, J., says; "The law was clear that you might not discredit your own witness by general evidence of bad character; but you might, nevertheless, contradict him by other evidence relevant to the issue;" and he adds, at p. 803: "It is impossible to suppose that the Legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evi- TJi}^ LAW OF EVIDENCE. 531 dence relevant to the issue — a right not only established by authority, but founded on the plainest good sense." Cockburn, L.C.J., in the same case, at p. 806, said of the 22nd section of the Common Law Procedure Act, 1854: ''There has been a great blunder in the drawing of it, and on the part of those who adopted it. . . . Perhaps the better course is to consider the second branch of the section as altogether superfliious and useless (p. 806)." On this authority I have omitted it. For many years before the Common Law Procedure Act of 1854 it was held, in accordance with Queen Caro- line's Case, 1820, 2 Br. & Bing. 286-91, that a witness could not be cross-examined as to statements made in writing, unless the writing had been first proved. The effect of this rule in criminal cases was that a witness could not be cross-examined as to what he had said before the magistrates without putting in his deposition, and this gave the prosecuting counsel the reply. Upon this subject rules of practice were issued by the judges in 1837, when the Prisoner's Counsel Act came into operation. The rules are published in 7 C. & P. 676. They would appear to have been superseded by the 28 Vict. c. 18. NOTE XLVIII. The Statute Law relating to the subject of evidence may be regarded either as voluminous or not, according to the view taken of the extent of the subject. The number of statutes classified under the head "Evi- dence" in Chitty's Statutes is -30. The number referred 532 A DIGEST OF to under that head in the Index to the Kevised Statutes is 68. Many of these, however, relate only to the proof of particular documents, or matters of fact which may become material under special circumstances. Of these I have noticed a few, which, for various reasons, appear important. Such are: 34 & 35 Vict. c. 112, s. 19 (see Article 11); 9 Geo. IV. c. 14, s. 1, amended by 19 & 20 Vict. c. 97, s. 13 (see Article 17) ; 9 Geo. IV. e. 14, s. 3; 3 & 4 Will. IV. c. 42 (see Article 28); 41 & 42 Vict. c. 11 (Article 36); 7 & 8 Geo. IV. c. 28, s. 11, amended by 6 A: 7 William IV. c. Ill; 24 & 25 Vict. c. 96, s. 116; 24 & 25 Vict. c. 99, s. 37; 61 & 62 Vict. c. 36, 9. 1 (6) (see Article 56); 61 & 62 Viet. c. 36, s. 1 (Article 108); 8 & 9 Vict. c. 10, s. 6; 48 & 49 Vict. c. 69, s. 4 (Article 121); 7 & 8 Will. III. c. 3, ss. 2-4; 39 & 40 Geo. III. c. 93 (Article 122); 11 & 12 Vict. c. 42, s. 17 (Article 140); 30 & 31 Vict c. 35,, s. 6 (Article 141); 53 & 54 Vict. e. 37, s. 6 (Article 141a); 57 & 58 Vict. c. 41, ss. 13, 14 (Article 141b); 57 & 58 Vict. c. 60, s. 691 (Article 142). Many, again, refer to pleading and practice rather than evidence, in the sense in which I employ the word. Such are the Acts which enable evidence to be taken on com- mission if a witness is abroad, or relate to the administra- tion of interrogatories. Those which relate directly to the subject of evidence as defined in the Introduction, are the eleven following Acts: — THE LAW OF EVIDEyCE. 533 1. 46 Geo. Ill, c. 37 (1 section; see Article 120). .- This Act qualifies the rule that a witness is not bound to answer questions which criminate himself by declaring that he is not excused from answering questions which fix him with a civil liability. 2. 6 <£ 7 Vict. c. 85. This Act abolishes incompetency from interest or crime (4 sections; see Article 106). 3. 8 £ 9 Vict. c. 113 : " An Act to facilitate the admission in evidence of certain official and other documents " (8th August, 1845; 7 sections). S. 1, after preamble reciting that many documents are, by various Acts, rendered admissible in proof of certain particulars if authenticated in a certain way, enacts inter alia that proof that they were so authenticated shall not be required if they purport to be so authenticated. (Arti- cle 79.) S. 2. Judicial notice to be taken of signatures of -certain judges. (Article 58, latter part of clause 8.) S. 6. Certain Acts of Parliament, proclamations, &c., may be proved by copies purporting^ to be Queen's printers' copies. (Article 81.) S. 4. Penalty for forgery, &c. This is omitted as be- longing to the Criminal Law. 534 A DIGKHT OP 4- i 14 cL- 15 Vict. c. 99 : " The Evidence Act, 1851 " (7th August, 1851; 20 sections): — ■ S. 2 makes parties admissible witnesses, except in cer- tain cases. (Effect given in Articles 106 & 108.) S. 3. Persons accused of crime, and their husbands and vfives, not to be competent. Implicitly repealed by the Criminal Evidence Act, 1898. (Article 108.) S. 4. The first three sections not to apply to proceed- ings instituted in consequence of adultery. Repealed by 32 & 33 Vict. c. 68. (Effect of repeal, and of s. 3 of the last-named Act, given in Article 109.) S. 5. jSTone of the sections above mentioned to affect the Wills Act of 1838, 7 Will. IV. & 1 Vict. c. 26. (Omitted as part of the Laws of Wills.) S. 6. The Common Law Courts authorised to grant inspection of documents. (Omitted as part of the Law of Civil Procedure.) S. 7. Mode of proving proclamations, treaties, &c. (Article 84.) S. 8. Proof of qualification of apothecaries. (Omitted from the text as part of the law relating to medical men.) Ss. 9, 10, 11. Documents admissible either in England or in Ireland, or in the colonies, without proof of seal, &c., admissible in all. (Article 80.) S. 13. Proof of previous convictions. (Omitted from llic text as belouii'iuji- to Criminal Procedure.) S. 14. H'M-tain documents provable by examined copies TEE LAW OF EVIDENCE. 535 or copies purporting to be duly certified. (Article 79, last paragraph.) S. 15. Certifying false documents a misdemeanour. (Omitted as belonging to Criminal Law.) S. 16. Who may administer oaths. (Article 124.) S. 17. Penalties for forging certain documents. (Omitted as belonging to the Criminal Law.) S. 18. Act not to extend to Scotland. (Omitted.) S. 19. Meaning of the word " Colony." (Article 80, note 1.) 5. 28 (£• 29 Vict. c. 18 : " The Criminal Procedure Act,' 1865 " (9th May, 1865, 10 sections). This Act re-enacts ss. 22-27 of the Common Law Procedure Act, 1854, which are now repealed by the Statute Law Kevision Act, 1892. S. 1. Sects. 3-8 to apply to all courts and causes, crim- inal as well as civil. S. 2. Summing up of evidence in crimiual cases. (Omitted as being procedure.) S. 3. How far a party may discredit his own witnesses. (Articles 131, 133, and see Is^ote XLVLI.) S. 4. Proof of contradictory statements by a witness under cross-examination. (Article 131.) S. 5. Cross-examination as to previous statements in writing. (Article 132.) 2 This is the title given to the Act by the Short Titles Act, 1896; it seems to be based exclusively on sect. 2 of the Act. 636 A DIGEST OF S. 6. Proof of previous conviction of a vyitness may be given. (Article 130 (1).) S. 7. Attesting witnesses need not be called unless writing requires attestation by law. (Article 69.) S. 8. Comparison of disputed handwriting. (Articles 49 and 52.) 6. 31 £ 32 Vict. c. 37 (25th June, 1868, 6 sections) :— S. ]. Short title. " The Documentary Evidence Act," 1868. ' I S. 2. Certain documents may be proved in particular ways. (Article 83, and for schedule referred to, see note to the article.) S. 3. The Act to be in force in the colonies. (Arti- cle 83.) S. 4. Punishment of forgery. (Omitted as forming part of the Criminal Law.) S. 5. Interpretation clauses embodied (where necee- sai-y) in Article 83. S. 6. Act to be cumulative in Common Law. (Implied in Article 73.) 7. 32 & 33 Vid. c. 68 (9th August, 1869, 6 sections) : — S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part of 16 & 17 Vict. c. 83, s. 2. (The effect of this repeal is given in Article 109 ; and see Note XLI.) S. 2. Parties competent in actions for breach of prom- ise of marriage, but must be corroborated. (See Articles. 106 and 121.) fUE hAW OF EVWENVE. 537 S. 3. Husbands and wives competent in proceedings in consequence of adultery, but not to be compelled to answer certain questions. (Article 109.) S. 4. Atheists rendered competent witnesses. (Re- pealed by Oaths Act, 1888.) S. 5. Short title; "The Evidence further Amendment Act, 1869." S. 6. Act does not extend to Scotland. 8. 48 £ 49 Vict. c. 69 : " The Criminal Law Amendment Act, 1885 " (20 sections). S. 4. Unsworn evidence of a child admitted in cases of defilement of a girl under thirteen; but corrobation needed. (Article 123a.) 9. .51 <& 52 Vict. c. 46 : '' The Oaths Act, 1'888 " (24th Dec, 1888; 7 sections). S. 1. A person objecting to be sworn may make an affirmation. (Article 123.) S. 2. Form of affirmation. S. 3. Oath valid, though no religious belief. (Arti- cle 123.) S. 4. Form of written affirmation. S. 5. Swearing as in Scotland. (Article 124.) S. 6. Eepeals. -S. 7. Short title. 10. 57 £ 58 Vict. c. 41: "The Prevention of Cruelty to Children Act," 1894 (28 sections). 538 A DIGEST OF THE LAW OF EVIDENCE. S. 15. Unsworn evidence of a child admitted in cases of cruelty to children, etc.; but corroboration needed. (Article 123a.) 11. 61 (& 62 Vict. c. 36 : " The Criminal Evidence Act, 1898 " (7 sections). S. 1. Person charged veith offence, and their wife or husband competent witness. (Article 108.) S. 2. When such person is called. (Omitted as pro- cedure.) S. 3. Eight of reply. (Omitted as procedure.) S. 4. When husband or wife a compellable witness. (Article 108.) SS. 5, 6, 7. Application of the Article to Scotland, Ireland. Courts-martial, etc. These are the only Acts which deal with the Law of Evidence as I have defined it. It will be observed that they relate to three subjects only — the competency of witnesses, the proof of certain classes of documents, and certain details in the practice of examining witnesses. Thus, when the Statute Law upon the subject of Evidence is sifted and put in its proper place as part of the general system, it appears to occupy a very subordinate position in it. The eleven statutes above mentioned are the only ones which really form part of the Law of Evidence, and their effect is fully given in twenty-two' articles of the Digest, some of which contain other matter besides. 3 49, 52, 58, 69, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123, 123a, 124, 125, 130, 131, 132, 133. INDEX [The numbers refer to pagea.] Abortion, corroboration in, 423. Absence, presumption of death from, 378-380 Absent person, declarations of, 138 statements by, when admissible, 130 Acceptor, estoppel of, 388 Accidents, similar, 60 Account-books, 138-144 secondary evidence of, 289-291 Acts of conspirators, 19-23 similar, to show good faith, knowledge, malice, etc., 60-69 to show intention, 60-69 to show system, 69-72 statements accompanying, 33 Administration, proof of letters of, 300 Admiralty, effect of decree in, 189-192 Admission defined, 16, 88-94 Admissions relevant evidence, 88-94 when made, 94-103 who may make, 94-103 by agents, 103-111, 494 by attorneys. 104-111 of bankrupt. 112, 113 distinguished from confossions, 117 documents established liy. 266-200 under duress, 114-110 made in ignorance. 94 throuali interpreter, 114 by joint contractors, 103-111 judgments as, 194-198 by officers of corporations, 110 by parties. 493 540 INDEX. [The numbers refer to pag€8.] Admissions — Continued by nominal party, 94-103 by partners, 103-111 by persojfs with interest, 94-103, 493 by person referred to, 113, 114, 495 ■without prejudice, 114-116, 49o of principal does not bind surety, 105 by privies, 94-103, 494 of facts exclude proof, 260, 261 proof preliminary to, 94 Jhow proved, 94 by real party, 94-103 in actions against sheriflf, 112, 113 by strangers, 111-113, 494 Adultery, proceedings, witnesses in, 402-404 Advocates as witnesses, 404 Affidavits, 431 Affirmation, 426 Affirmative has burden of proof, 358-360 Age of instrument, how reckoned, 316-319 Agency, evidence to establish, 72-76 Agents, admissions by, 103-111, 494 estoppel of, 389-391 Agreement, separate, shown by parol evidence, 324-341 Alteration of ancient instrument, 318 Alterations, presumption as to, 319-322 Ambiguities, parol evidence to remove, 350-355 Ancient documents, presumption as to, 315-319 instruments to prove private matters, 152-154 Answers, irresponsive, 437 Arbitrators as witnesses, 405 Assessors' books, 170-174 Assignors, admissions by, 99-103 Atheists as witnesses, 392-396 Attested documents, proof of, 270-276, 506 when witnesses to, need not be called, 277, 278 when witness denies or does not recollect, 279 proof of, when no attesting witness required, 279 witness denying execution, 279 Attorneys, admissions by, 104-111 Attorney and client, burden of proof as to transactions between, 374 JM>K.r. 541 [The numbers refer to pages.] Bad faith, similar acts to show, 60-69 Bailee, estoppel of, 389-391 Bankers' books, 179-181 secondary evidence of, 283 Bankrupts, admissions of, 112, 113 Barrister, unsworn evidenue of, 429 Battle, presumption as to survival, 379, 380 Bigamy, presumption in, 379, 380 Bill, estoppel of acceptor of, 388 Bill of lading, estoppel by, 390, 391 Bills and notes, secondary evidence of, 288-291 Birth, declarations as to place of, 158. 159 Bonds, ancient, 310-379 Books of account, 138-144 ' secondary evidence of, 289-291 of bankers, 179-181 admissibility of law, 177-179 of medical, 177-179 of science in evidence, 176-178 Boundaries, declarations to prove, 153, 154 disputed. 25 Brahmins, how sworn, 431 Breach of promise, corroboration in, 423 Burden of proof, 358-374 on one aflBrming, 358-360 as to contributory negligence, 371 that confession was voluntary, 122-126 as to facts Required to make evidence adniissilile, 372 in fiduciary relationship, 372-374 general rule as to, 363-366 as to negligence, 370-372 as to particular facts. 366-372 shifting of, 359, 366-372 as to undue influence, 370-372 distinguished from weight of evidence. 359, 300 Business, course of, 489 when relevant, 72-76 declarations in course of, 497 judicial notice of course of, 257 642 INDEX. [The Bumberri refer to jjHges.] Census, compendium of, 169 Certificates, public, 303 Certified copies, 280-282, 300-304 Changing rules of evidence, 8 Character, generally inadmissible, xxi, 237-239 when relevant, 503 in criminal cases, 239-242 as affecting damages, 243-245 in offenses against women, 459 Charitable trusts, see Trusts Charters judicially noticed, 252 Charts, admissibility of public, 174-178 Chinese, how sworn, 431 Circumstances, parol evidence to show surrounding, 348-355 Circumstantial evidence, 7 Clerks of lawyers as witnesses, 410-413 Clergymen as witnesses, 415 privilege of, 522 Cohabitation as evidence of marriage, 234, 235 Collateral facts, 12, 14 replying to, 14 Collusion, effect on judgment, 199-202 Common casualty, presumption of survival in, 379, 380 Communications, professional, 521 during marrinpe. 403, 404 Competency of witnesses, xii, 519 Complaints, 33 admissibility of, 33, 482 in offenses against women, 36 Compromises, not admissible, 115, 116 admissions in course of, 115, 116 facts discovered through, 115, 116 how objected to. 115 Conclusive proof, defined, 4 Condition precedent, parol evidence to show, 327-341 Conduct, estoppel by, 384-387 sul)scr|uent, admissible, 27, 29, 31 Confessions, 495 defined, 116-118 distinguished from admiisioiis, 117 INDEX. 543 [The numbers refer to pages.] Confessions — Continued must be voluntary, 116-118 when voluntary', 119-126 inducement to, 495 vinder promise of secrecy, 128-130 burden of proving, voluntary, 122-126 induced by deception, 129 when drunk, 129 on oath, 126-128, 496 by silence, 117, 118 necessity of warning, 129, 130 Congress, niles of evidence prescribed by, 8 Consideration, parol evidence to show, 328-341 Conspirators, acts of, 19-23, 481 Construction, parol evidence to aid, 342-005, 511 Contractors, admissions of joint, 104 Contributory negligence, burden of proof as to, 371 Conviction of witness, effect of, 394^396 Copies, certified, 280-282, 300-304 of common original, 269 examined, 280-282, 296-298, 508 exemplified, 280-282, 299, 300, 508 equivalent to exemplifications, 300 office, 280-282 Queen's printers', 304 sworn, 297 Corporations, admissions by officers of, 110 Corpus delicti, proof of, 117, 118 Corroboration, of witness, 421-423 in action against estate of deceased person, 423 Counterparts, 281, 282 proof of, 267-269 Course of business, 489 declarations in, 497 judicially noticed, 257 when relevant, 72, 73 of duty, declarations in, 136-144 of nature, judicially noticed, 254 Court records, secondary evidence of, 288-291 Courts, judicial notice of proceedings of, 252 544 INDEX. [The numbers refer to pages.] Crimes, privilege with reference to evidence as to, 407. similar, inadmissible, 53, 57 Criminal cases, character in, 239-242 Crimination of witness, 418-420 Cross-examination, 433-443 scope of, 443-445 as to credit, 450-452 limits of, 527 questions lawful in, 447-450 Cumulative evidence, 7 Custom, 25, 26 parol evidence to show, 324-341. Damages, as affected by character, 243-245 Date, parol evidence to show, 323-341 presumption as to, 311-313 Death, presumption of, from absence, 378-380 Deceased person, claims against, 423, 424 declarations of, 161-169 statements by, when admissible, 130 testimony as to transactions with, 395, 396 Declarations of deceased person, 161-169 generally inadmissible, 86 of ill witness, 161-169 of insane witness, 161-169 in course of duty, 136-144 in course of business, 497 dying, 131-136, 496 against interest. 144-149, 497 as to pedigree, 15.5-159, 500 as to public and general rights, 151-154, 498 self-serving, inadmissible, 93 of testators as to contents of will. 149, 150 in favor of title, 24 before transaction inadmissible, 17 Deed, presumption as to ancient, 315-319 presumption of, to complete title, 382-384 presumption as to sealing and delivery of, 314 production of, 415, 417 proof of, by primary evidence, 270 secondary evidence of, 288-291 INDEX. S45 [The numbers refer to pages.] Defendant, burden of proof sometimes on, 360 Delivery of deed, presumption as to, 314 Depositions, 466-473 Detectives as witnesses, 423 Direct, oral evidence to be, 262-265 Divorce, corroboration in, 423 effect of decree of, 184 Documents, defined, 3 public, 304 counterparts of, 281 alteration of ancient, 318 oral evidence of contents of, 281, 282 primary evidence of, 266-269 proof of, 266 by primary evidence, 269, 270 attested, 270-276, 506 secondary evidence of numerous or unwieldy, 284-291 when secondary evidence of, admissible, 282-291 proof of public, 508 production of, 295, 296 notice to produce, 291-294, 507 produced on notice, 464, 465 refusal to produce, 283-291 out of jurisdiction, proof of, 286-291 in possession of stranger, proof of, 286-291 presumption as to ancient, 315-319 as to date of, 311-313 as to sealing and delivery of, 314 as to stamp of, 313 proof of lost, 273, 283-291 secondary evidence of public, 283-291 proof of public, 295 established by admissions, 266-269 lithographed, 266-269 photographed, 266-269 proof when attesting witness denies or forgets, 279 not required to be attested, proof of, 279, 280 presumption as to order of execution, 311-313 printed, 267-269 see also Alterations; Construction; Interpretation; Copies; In- j, struments; Parol Evidence. 35 546 INDEX. [The numbers refer to pages.] Documentary evidence, kinds of, xxi Dumb witnesses, 392-396 Duress, admissions under, 114-116 Dying declarations, 131-136, 496 Error in ruling on evidence, 474 Estoppel, 384^391 of acceptor of bill, 388 of bailee, agent, and licensee, 389-391 by conduct, 384-387 in pais, 517 pleading judgment as, 192, 193 of tenant and licensee, 387, 388 Evidence, defined, xviii, 4, 5, 6 definition of primary, xxi, 266-269 changing rules of, 8 circumstantial, 7 as to commission of oflfenses, privilege with reference to, 407 cumulative, 7 kinds of documentary, xxi of secondary, xxi moral, 7 oral, 262 to be direct, 505 when primary required, 269, 270 presented to senses, 5, 7 remote, 11, 12, 14 effect of, 516 in former proceedings, 500 definition of weight of, 359, 360 how taken, 431 to be upon oath, 426 production of, 516 of husband and wife aa to legitimacy of children, 377, 378 when secondary, admissible, 282-291 secondary, of recorded instrument, 278 improper rulings on, 474 as to affairs of State, 405 unsworn, 524 INDEX. 54r [The numbers refer to pages.] Examination of witnesses, 527 leading questions in, 445, 446 in chief, 433^43 Examined copies, see Copies Execution, parol evidence to show want of, 323-341 Exemplifications, 280-282, 299, 300, 508 copies equivalent to, 300 Experts, builders as, 223-227 civil engineers as, 223-237 facts bearing on the opinions of, 227, 228 medical, 222 opinions of, in evidence, 212-227 railroad men as, 224r-227 Facts, defined, 3 admitted cannot be proved, 260 admissibility of similar, 487 bearing on opinion of experts, 227, 228 burden of proof as to particular, 366-372 collateral, 12, 14 discovered through confession, 120-126 introducing relevant, 44 in issue, defined, 4, 11 judicial notice of scientific, 255 judicially noticed cannot be proved, 259 public, 168, 169 relevant, 11 similar, inadmissible, 50-60 Failure to call witness, 32 Fiduciary relationship, burden of proof in, 372-374 Foreign judgments, 202-204 law, proof of, 213-227 Forfeiture, exposing witness to, 418-420 Former proceedings, e^adence in, 159-167, 500 Fraud, burden of proof of, 363 effect on judgment, 199-202 estoppel by, 386, 387 parol evidence to show, 322-341 Frauds, similar, 68 see Statute of Frauds 548 INDEX. [The numbers refer to pages.] General interest, judgment relating to matter of, 194-198 rights, declarations as to, 151-154, 498 Geographical facts judicially noticed, 253 Good faith, similar acts to show, 60-69 Grand jurors as witnesses, 407-409 Grant, presumption of lost, 380-382 Grounds of opinion, 235, 236 Handwriting, opinions concerning, 228-231 expert evidence concerning, 221-227 comparison of, 231-235 proof of, on an attested document, 274-276 Hearsay, 77-87 defined, xx, 489 Highway injuries, 55 Histories, statements in, 174-179 Hostile witness, 446 Husband and wife, presumption of legitimacy of children of, 375-378 as witnesses, 401, 402, 403, 404, 420 Identity, 45, 47 parol evidence as to, 347, 348 Illegality, parol evidence to show, 323-341 ni witness, declarations of, 161-169 Impeaching officer's return, 173 witness, 452-459 Impeachment by proving inconsistent statements, 529 Incapacity, parol evidence to show, 323-341 Inconsistent statements of witness, 452—456 in writing, 454r-455 Injuries, highway, 55 Innocence, presumption of, 361-363, 317 Inquest, testimony at, 128 Insane persons as witnesses, 392-396 declarations of, 138, 161-169 statements by, when admissible, 130 Instrument, proof of recorded, 278 see also Copies; Documents Insurance policies, proof of, by primary e\idence, 270 Intent, similar acts to show, 65-69 INDEX. 549 [The numbers refer to pages.] Intention, parol evidence to show, 347, 348 similar acts to show, 60-69 statement of, 29, 31 Interest, declarations against, 144^149, 497 effect of, on competencj', 393-396 Interlineations, see Alterations Interpretation, parol evidence to aid, 342-355, 511 Interpreter as witness, 410-413 admissions through, 114 Intimidation, parol evidence to show, 323-341 Irresponsive answers, 437 Issue, facts in, 11 definition of facts in, 4 Joint contractors, admissions by, 103—111 Judge, defined, 3 judgment conclusive in favor of, 198, 199 privilege of, 520 as witness, 404, 405 Judgments, defined, 182 as admissions, 194-198 as evidence, 501 conclusive proof of their legal effect, 182-184 conclusive as to what facts, 185-189 efiFect of collusion, 199-202 effect of fraud, 199-202 effect on judge, 198, 199 effect of want of jurisdiction, 199-202 foreign, 202-204 relating to matter of public or general interest, 194-198 of sister States, 202-204 effect on strangers, 189-192, 194-198 different issues, 194-198 effect of pleading, 192, 193 failure to plead, 192, 193 no opportunity to plead, 192, 193 in rem, effect of, 191 Judicial notice, 246-259, 504 excludes proof, 259 Jurisdiction, effect of want of, on judgment, 199-202 Jurors as witnesses, 407-409 550 INDEX. [The numbers refer to pages.] Knowledge, similar acts to show, 60-69 Lading, estoppel by bill of, 390, 391 Land, questions of ownership of, 15 Landlord and tenant, estoppel between, 387, 388 Law, proof of foreign, 213-227 books in evidence, 177-179 Lawyer and client, communications between, in evidence, 413, 414, 417 Lawyers as witnesses, 404, 405 communications with, in evidence, 409-^13, 417 see also Attorneys clerks as witnesses, 410-413 Leading questions, 445, 446 Leases, proof of, by primary evidence, 270 Legal relation, parol evidence to show, 325-341 Legislative journals, 169 Legitimacy, presumption of, 375-378 Letters, mailing, 73, 74 ancient, 316-339 secondary evidence of, 289-291 Licensee, estoppel of, 387, 388, 389-391 Licenses, ancient, 316-319 Limitations, see Statute of Limitations Lithographed documents, 266-269 Loss of vessel, presumption of, 379, 380 Lost grant, presumption of, 380-382 Mailing letters, 74, 75 Malice, similar acts to show, 60-69 Maps, admissibility of, 153, 154 public, 174-178 Marriage, communications during, 403, 404 opinion as to existence of, 234, 235 Medical books in evidence, 177-179 experts, 222, 227 men as witnesses, 415 Memorandum, effect of, on admissibility of parol evidence, 325-341 Memory, refreshing, 461^65 Mental condition, 3, 5 similar acts to show, GO-tig INDEX. 551 [The numbers refer to pages.] Military pay-rolls, ancient, 316-319 Misprision of treason, number of witnesses in, 424 Mohammedans, how sworn, 431 Moral evidence, 7 Motion to strike out, 341, 396, 436 answer giving mere opinions, 211, 212 Motive, 28, 31 admissible, 27 Municipal records, 173, 174 Narrative of past events, 19 Negative, proving a, 370-372 Negligence, burden of proof as to, 370-372 evidence as to, 56 previous, 56, 57 New trials, 475 Nonaccess, evidence of, 378 Notarial records, 173 Notes, secondary evidence of, 288-291 Notice, document produced on, 464, 465 judicial, 246-259, 504 to produce, 291-294, 507 Number of witnesses, 424 Oath, evidence to be upon, 426 form of, 430 when unnecessary in England, 524 who may administer, 430 Objection to testimony, 396, 439, 440, 441 to compromise, how made, 115 to evidence, as being hearsay, 86 Objects may be shown to trier, 263-265 Offenses against women, character in, 459 complaints in, 36 privilege with reference to evidence concerning, 406 Offering testimony, 438 Office, evidence to show holding of, 72-76 copies, 280-282 course of, 489 holding of public, shown by parol, 325-341 552 INDEX. [The numbers refer to pages.] Officers of corporaiions, admissions by, 110 Official acts, presumption of regularity of, 382-384 Opening case, 437 Opinions based on hearsay, 86 generally inadmissible, xx, 205-212 when admissible, 263 when relevant, 205, 212, 503 of experts, 212-227 grounds of, 235, 236 motion to strike out, 211, 212 as to handwriting, 228-231 as to marriage, 234, 235 Oral evidence, 262 how taken, 431 of contents of document, 281, 282 to be direct, xxi, 262-265, 505 see also Parol Evidence Ordinances judicially noticed, 252 Pain, exclamation of, 39 Parol evidence, rule, 323-341, 509 when inadmissible, 323-341 to aid interpretation, 511 strangers may introduce, to vary document, 355-357 to contradict writing, wlien offered by stranger, 515 Partners, admissions by, 103-111 Party, admission by, 94-103 Past events, narrative of, 19 inadmissible, 18 Pedigree, declarations as to, 155-159, 500 Penalty, exposing witness to, 418^20 Perjury, number of witnesses in, 425 Person, exhibiting, to jury, 263 Photographs in evidence, 263, 264 admissibility, 175-178 of documents, 266-269 Physicians as witnesses, 415 Place of birth, declarations as to, 158, 159 Plans, admissibility of, 175-178 Pleadings, competent as admissions, 93, 94 INDEX. 553 [The numbers refer to pages.] Policies of insurance, proof of, by primary evidence, 270 Possession under ancient document, 316-319 declarations characterizing, 42 Powers of attorney, presumption as to ancient, 316-319 Practice differs from evidence, xxiv Preliminary facts, burden of proving, 372 proof to secondary evidence, 285-291 Preparation, acts of, 27, 29, 31 Preponderance of evidence, 363 Prescription, 380-382 Presence, statements in one's, 33 Presumption, 375-384 defined, 4, 5, 8, 477 as to alterations, 319-322 from course of business, 489 as to date, 311-313 of death from absence, 378-380 of deeds to complete title, 382-384 as to sealing and delivery of deed, 314 as to stamp of document, 313 as to order of execution of documents, ,311-313 as to document thirty years old, 315-319 of innocence, 361-363, 517 of legitimacy, 375-378 of lost grant, 380-382 of regularity, 382-384, 517 Price as evidence of value, 59 Prices current in evidence, 178 Priests, declarations by deceased, 137-144 as witnesses, 415 privilege of, 522 Primary evidence, defined, xxl, 266-269 when required, 269, 270 Principal, admission of, does not bind surety, 105-111 Principal and agent, estoppel between, 389-391 see Agency; Agent Printed documents, 267-269 Privies, admissions by, 94^103 Privilege of clergymen and priests, 522 of judges and witnesses, 520 of witnesses, 403-421 554 INDEX. [The numbers refer to pages.] Prize, judgments condemning ships as, 189-192 Probate, decree, eflfect of, 184 Proclamations, 305 Professional communications, 409-413, 417, 521 Proof, definition of conclusive, 4 kinds of, xxi burden of, as to contributory negligence, 371 order of, 435 of facts admitted, not allowed, 260 judicially noticed, not allowed, 259 Proof, Burden of, see Burden of Proof Prostitutes as witnesses, 423 Public certificates, 303 documents, 304 proof of, 295, 508 production of, 295, 296 secondary evidence of, 283-291 fa