(5nrn?U Ham ^rlyool Eibtatjj 
 
Cornell University Library 
 
 KF8934.A13 
 
 Select cases on the law of evidence as a 
 
 3 1924 020 099 499 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020099499 
 
SELECT CASES 
 
 ON 
 
 THE LAW OF EVIDENCE 
 
 AS APPLIED DURING 
 
 THE EXAMINATION OF WITNESSES. 
 
 ^?VITH NOTES. 
 
 BY 
 
 AUSTIN- ABBOTT, LL.D., 
 
 Dean of the New York University Law School ; Author of ** Trial Evidence/' 
 **New Yoi:k Digest," &c. 
 
 'Rules of ETldence are rules of Law, and their observance can 
 no more be dispensed with than any other rules of law. 
 Whatever may be imagined to the contrary, it will commocly 
 be found that a disregard of the ordinary rules of evidence 
 is but the harbinger of injustice " — Daniel "Websteb. 
 
 NEW YORK : 
 
 THE DIOSSY LAW BOOK COMPANY, 
 
 |)nbltsl)frs. 
 
 1895. 
 
Copyright, 
 ' 1896, 
 By Atrsira Abbott. 
 
PREFACE. 
 
 Iq this volume I have brought together the leading authorities 
 that now define our practice in the examination of witnesses. 
 I have arranged them so that the reader perusing theai in order 
 ■will find the law systematically developed in groups of doctrines 
 easy to be understood and remembered when tljeir relation is thus 
 made visible. 
 
 Ever^' attorney is becoming familiar with the disposition of 
 appellate courts to press with increasing strictness the necessity 
 of clearness and precision in framing the questions put on the 
 trial so as to bring out legal evidence without drawing improper 
 and prejudicial statements before the jury ; while at the same 
 time they require with the like increasing strictness, that objec- 
 tions be so specifically stated in the trial court, as to enable the 
 judge clearly to understand the ground, and the adverse counsel 
 to change his question or his offer so as to obviate the objection 
 if it be one which can be obviated. 
 
 In the selection of cases I have had in view the great practical 
 importance of promoting regularity in the trial court, in these 
 respects ; and (except in a few cases whei'e it has seemed unneces- 
 sary) I have prefixed to the opinion, as reported in the books, a 
 statement from the record, which I have examined for the pur- 
 pose, of the facts material to the point of evidence, and the 
 colloquy between judge, counsel, and witness, at the trial, to 
 enable the reader to see the exact line of discrimination which the 
 appellate courts have drawn between obscurity and clearness in 
 question and objection. 
 
 I trust that this volume will be useful both to the bench and to 
 the bar in aiding, alike, to avoid mistake and error, and to secure 
 efficacious objections such as will preserve to the unsuccessful 
 party his rights on appeal. 
 
 I believe that nothing could be more advantageous to the pro- 
 fession than a better common understanding of the rules of 
 forensic contest, so that less time may be lost and fewer disap- 
 pointments incurred by fruitless controversy upon questions of 
 irregularity, and less prejudice to litigants by erroneous pro- 
 cedure. 
 
 AUSTIN ABBOTT. 
 
 Washington Squabe, New York City, 
 Odober 3, 1894. 
 
c o:n"te:n"ts 
 
 [The heavy-faced figures refer to pages in this volume.] 
 
 Note on Mode of Administering 
 
 Oath (9). 
 I. Competency. (1) Voir Dire. 
 
 Seeley v. Engell, 13 N. Y., 543, 
 
 (10) ;— Loveridge V. Hill, 96 N. Y., 
 
 222, (15). 
 
 — (2) What Law Governs, Note 
 (1 7) ; — King v. Worthington, 104 
 U. S., 44, (18). 
 
 — (3) Entire or Partial. Beal v. 
 Finch, 11 N. Y., 128, (20). 
 
 — (4) Parties. Note on competency 
 of accused in a criminal case 
 (23);— People v. Tice, 131 N. Y., 
 631, (24). 
 
 — (5) Interest. Note on incompe- 
 tency by interest, (29). 
 
 — (6) Infancy. Commonwealth v. 
 Lynes, 142 Mass., 577, (30);— 
 Notes of cases on competency of 
 infants, (34). 
 
 — (7) Mental Capacity. District of 
 Columbia v. Amies, 107 U. S., 
 519, (36) ;— Eivara v. Ghio, 3 E. D. 
 Smith, 364, (42). 
 
 — (8) Deaf Mute. State?;. De Wolf, 
 8 Conn., 92, (44). 
 
 — (9) Felon. Logan v. United 
 States, 144 U. S., 363, (47) ;— 
 Note on the removal of dis- 
 qualifications of felons, (54). 
 
 — (10) Judge ; Juror. People v. 
 Dohring, 59 N. Y., 374, (56). 
 
 — (11) Husband and Wife. Note 
 on the removal of incompetency 
 of husband and wife, (62); — People 
 V. Wood, 136 N. Y., 349, (63) ;— 
 Warner v. Press Publishing Co., 
 132 N. Y., 65, (65);— People v. 
 
 Hayes, 140N.Y., 484, (67);— iVofes 
 of recent cases on confidential 
 communications between hus- 
 band and wife, (74). 
 
 — (13) Attorney and Client. 
 French v. Hall. 119 U. S., 153, 
 (78);— Root t'. Wright, 84 N. Y., 
 73, (80) ;— Hurlburt v. Hurlbuit, 
 138 N.Y., 430, (84) -—Note on con- 
 fidential communications between 
 attorney and client, (87). 
 
 — (13) Pliy sician and Patient. 
 Connecticvit Life Ins. Co. ■;;. Union 
 Trust Co., 113 U. S., 350, (99) ;— 
 Edington v. Mut. Life Ins. Co., 67 
 N. Y., 185, (103) ;— Edington r. 
 ^tna Life Ins. Co., 77 N. Y., 564, 
 (109) ;— Grattan v. Metropolitan 
 Life Ins. Co., 92 N.Y., 74, (115) ;— 
 Renihan v. Dennin, 103 N.Y., 578, 
 (118);— Piersonw. People, 79 N.Y., 
 424, (122);— People v. Murphy, 101 
 N. Y., 136, (125);— iVofe on privi- 
 leged information acquired by 
 physician as to patient, (129). 
 
 — (14) Pastor and Parishioner. 
 Note on incompetency of clergy- 
 man to disclose communication of 
 parishioner, (136). 
 
 — (15) Against Estates of Deced- 
 ents, etc. Note on the Ameri- 
 can statutes protecting estates 
 against interested witnesses, 
 (137);— The New York Statute, 
 (137) ; — Analysis of the New York 
 Statute, (138);— The Act of Con- 
 gress, (139). 
 
 (a.) Note on what proceed- 
 ings are affected by the statute 
 
VI 
 
 CONTENTS. 
 
 as to interested testimony against 
 estates of decedents, etc., (140). 
 
 (b.) Who Disqualified. Davis 
 
 V. Gallagher, 55 Hun, 593, (141);— 
 Gourlay v. Hamilton, 41 Hun, 437, 
 (143) ;— Miller v. Montgomery, 78 
 >7. Y., 283, (145);-Churchi;. How- 
 ard, 79 N. Y., 415, (149); Wallace 
 V. Straus, 113 N. Y., 238, (150) ;— 
 Morgan v. Johnson, 87 Ga., 383, 
 (153) ;— Carpenter v. Soule, 88 
 N. Y., 251, (156) ;— Hobart v. Ho- 
 bart, 63 N. Y., 80, (157);— Con- 
 nelly V. O'Connor, 117 N. Y., 91, 
 (160);— Sanford v. EUi thorp, 95 
 N. Y., 48, (162) ;— Eisenlord v. 
 Clum, 136 N.Y., 552, (164) ;— Heft 
 V. Ogle, 127 Pa. St., 344, (178);— 
 O'Brien v. Weiler, 68 Hun, 64, 
 (182);— Matter of Wilson, 103 N. 
 Y., 374, (ISi);— Notes of other 
 recent cases on who incompetent 
 against an estate, etc., (187). 
 
 (c.) As Witness for Whom 
 
 (see above cases). 
 
 (d.) Against Whom. Peters 
 
 V. Peters, 3 Misc. (Delehanty), 364, 
 (192);— Pope v. Allen, 90 N. Y., 
 398, (194) ■,—Note of recent cases 
 on who may object as representa- 
 tive of deceased or as one claim- 
 ing under him, (197);— iVoie on 
 release of interest at common 
 law, (200). 
 
 (e.) Concerning What. Hol- 
 
 comb V. Holcomb, 95 N. Y., 316, 
 (202) ;— Matter of Eysaman, 113 
 N. Y., 63, (208);— iVote of recent 
 cases on what transactions or 
 communications with deceased 
 are within the statute, (215). 
 (f.) Exception, tvhere the Ex- 
 ecutor, etc., is Examined. Nay 
 V. Curley, 113 N. Y., 575, (218) ;— 
 Potts V. Mayer, 86 N. Y., 303, 
 (224) ;— Pinney v. Orth, 88 N. Y., 
 447, (227) ;— Notes of other recent 
 oases on opening the door, (231). 
 II. Questions, Objections, Opfbes 
 
 AND Answers. Questions. Moody 
 V. Rowell, 17Pick., 490, (233);— 
 Cheeney v. Arnold, 18 Barb., 434, 
 (235) ; — People v. Mather, 4 
 Wend., 339, (237). 
 
 Objections and Offers. Boy v. 
 Targee, 7 Wend., 359, (241). 
 
 Answers. Lansing v. Coley, 13 
 Abb. Pr., 372, (242). 
 in. Facts, not Conclusions. (1) 
 General Principle. Note on the 
 rule that a witness must testify 
 to facts, not conclusions, (245) ; — 
 Notes of cases on the general 
 rule ; opinion as to ordinary af- 
 fairs, (246);— iVoies of recent cases 
 on testimony as to belief and rec- 
 ollection, (248) ; — Morehouse v. 
 Mathews, 2 N. Y., 514, (249);— 
 Nicolay v. Unger, 80 id., 54, (252). 
 
 — (3) Distance, Quantity, Speed, 
 Size, etc. Collins v. N. Y. Cen- 
 tral, etc., R.R. Co., 109 N.Y., 343, 
 (256) ;— Hallahan «. N. Y., Lake 
 Erie, etc., R.R. Co., 103 N.Y., 194, 
 (260); — Notes of other recent cases 
 on testimony as to distance, size, 
 quantity, speed, etc., (263). 
 
 — (3) Feeling, Conduct, Intent, etc. 
 M'Kee v. Nelson, 4 Cowen, 355, 
 (265) ;— Blake v. People, 73 N. Y., 
 586, (267) ;— Notes of recent cases 
 on testimony as to another's 
 feeling, manner, conduct, intent, 
 knowledge, (270). 
 
 — (4) Physical Condition. Rawls 
 V. American Mut. Life Ins. Co., 
 37 N. Y., 383, (273) ;— JVoies of 
 recent cases on another's physical 
 condition, (274);— as to one's own 
 physical condition, (275). 
 
 — (5) Hearing and Seeing. Casey 
 V. N. Y. Central, etc., R. Co., 
 6 Abb. N. C, 104, (276);— iVofes of 
 cases as to testimony regarding 
 hearing and seeing, (277). 
 
 — (6) Mental Condition. Holcomb 
 V. Holcomb, 95 N. Y., 316, (279);— 
 Paine v. Aldrich, 138 N. Y., 544, 
 
CONTENTS. 
 
 Vll 
 
 (285) ; — Notes of recent cases on 
 non-expert evidence regarding- 
 mental condition, (287). 
 
 - (7) Intoxication. People v. East- 
 wood, 14N. Y., 562,(289). 
 
 - (8) Identify, Likeness, etc. Peo- 
 ple I'. Williams, 29 Hun, 520, (293); 
 Schwartz v. Wood, 51 N. Y. St. 
 Kep., 4, (296) ;—iVofes of other 
 cases on testimony as to identity, 
 likeness, etc., (297). 
 
 - (9) Care, Danger, etc. McCarrag- 
 hevv. Rogers, 120N.Y., 536, (299); 
 — Notes of recent cases on testi- 
 mony as to care, danger, etc., 
 (301). 
 
 - (10) Ownership and Possession. 
 Notes of cases on testimony as to 
 ownership and possession, (304). 
 
 -(11) Other' s Admissions and 
 Declarations. Note on witness re- 
 hearsing sayings of others, (306). 
 
 - (12) Value of Seal Property. 
 Montana Ry. Co. v. Warren, 137 
 U. S., 348, (308);— Roberts v. N. Y. 
 El. R. Co., 128 N. Y., 455, (311). 
 
 - (13) Value of Personal Prop- 
 erty. Notes of recent cases on 
 testimony as to value of personal 
 property, (327). 
 
 - (14) Vahie of Services. McCol- 
 lom V. Seward, 63 N. Y., 316, 
 (329);— A' of es of cases on testi- 
 mony as to value of servlces,(331). 
 
 - (15) Upon Whose Credit. Tur- 
 ner V. Keller, 66N.Y., 66, (332);— 
 Richmondville Union Seminary 
 V. McDonald, 34N.Y., 379, (333);- 
 Ely V. Padden, 13 N. Y. St. Rep., 
 53, (335);— Sweet v. Tuttle, 14 
 N. Y., 465, (336) ;— Betjmann v. 
 Brooks, 39 Hun, 469, (338). 
 
 - (16) Contract,, Agency, Partner- 
 ship. Notes of recent cases as 
 to testimony to show contract, 
 agency, partnership, etc., (342). 
 
 - (17) Own Intent, Motive, Knowl- 
 edge, etc. Lawyer v. Loomis, 3 
 N. Y. Supm. Ct. (T. & C), 393, 
 
 (344) ; — Yerkes v. Salomon, 11 
 Hun, 471, (346);— Dillon v. Ander- 
 son, 43 N. Y., 331, (347) ;— People 
 V. Baker, 96 N. Y., 340, (349);— 
 Starin v. Kelly, 88 N. Y., 418, 
 (351) ; — Notes of other cases on 
 testimony as to own intent, mo- 
 tive, knowledge, etc., (355). 
 IV. Experts. (1) Qualification. 
 Slocovich V. Orient Mut. Ins. Co., 
 108 N. Y., 56, (359) ;— Gregory v. 
 Fichtner, 27 Abb. N. C, 86, (361). 
 
 — (3) On What Subjects Com- 
 petent. Ferguson v. Hubbell, 97 
 N.Y., 507, (368);— Strohmv. N.Y., 
 Lake Erie, etc., R.R. Co., 96 N. Y., 
 305, (377). 
 
 — (3) Form of Questions. People 
 V. McElvaine, 121 N. Y., 350, 
 (381); — Note on the proper foun- 
 dation of hypothetical questions, 
 (387). 
 
 "V. Aiding Memory ; akd Memo- 
 randa. (1) Questions to Refresh. 
 People V. Druse, 103 N. Y., 655, 
 (389) ; — O'Hagan v. Dillon, 76 
 N. Y., 170, (391) ;— Acerro v. Pet- 
 roni, 1 Stark., 100, (393) ;—iVofes 
 of recent cases on questions to re- 
 fresh witness' memory, (393). 
 
 — (2) Memoranda to Refresh. 
 Ruch V. Rock Island, 97 U. S., 
 693, (395) ;— Houstine v. O'Don- 
 nell, 5 Hun, 472, (397) ;- Carters. 
 Bowe, 41 Hun, 516, (898);— Barker 
 V. N. Y. Central, etc., R.R. Co., 
 34 N.Y., 599, (400) ;— Doyle v. Eye 
 & Ear Infirmary, 80 N. Y., 631, 
 (403);— Peck v. Lake, 3 Lans., 136, 
 (404) ;— Bigelow v. Hall, 91 N. Y., 
 145, (410);— Raux v. Brand, 90 
 N. Y., 309, (413) ;— Howard v. 
 McDonough, 77 N.Y., 592, (415);— 
 Notes of cases on use of memo- 
 randa to refresh, (418). 
 
 — (3) Witness Reading Memo- 
 randum. National Ulster Co. 
 Bk. v. Madden^ 114 N. Y., 280, 
 (423) ;— Halsey v. Sinsebaugh, 15 
 
Vlll 
 
 CONTENTS. 
 
 N. Y., 485, (428);— Peck v. Valen- 
 tine, 94 N. Y.,369, (432). 
 
 — (4) Memoranda of Forgotten 
 Facts. Guy v. Mead, 33 N. Y., 
 463, (435);— Maxwell V.Wilkinson, 
 113 U. 8., 657, {iB9) ■—Notes of 
 cases on use of memoranda as 
 evidence in connection with wit- 
 ness' testimony, (442). 
 
 — (5) Memoranda Made Under 
 Duty. Ocean Nat. Bk. of City of 
 N. Y. V. Oarll, 55 N. Y., 440, (444) ; 
 — Mayor, etc., of N. Y. v. Second 
 Ave. E.R. Co., 102 N. Y., 573, 
 (448) ;— Churchman v. Lewis, 34 
 N. Y., 444, (453). 
 
 — (6) Memoranda Against Inter- 
 est. Brennan v. Hall, 131 N. Y., 
 160, (460); — Livingston v. Arnoux, 
 56 N. Y., 507, (462). 
 
 VI. Handweitinu. (1) Writer's 
 Testimony. Note on direct testi- 
 mony by the writer, (469). 
 
 — (3) Signature in Court. Bron- 
 nevv. Loomis, 14 Hun, 341, (470). 
 
 — (3) Testimony by Non-expert. 
 Hammond v. Varian, 54 N. Y., 
 398, (472);— Robinson Consoli- 
 dated Mining Co. v. Craig, 4 N. 
 Y. St. Rep., 478, (474);— Jackson v. 
 Brooks, 8 Wend., 426, (477);— 
 Notes of recent cases on testi- 
 mo ny of no n-expert witness, (478). 
 
 — (4) Standards of Comparison. 
 Peck V. Callaghan, 95 N. Y., 73, 
 (481) ;— Hall v. Van Vranken, 28 
 Hun, 403, (484);— Mutual Life Ins. 
 Co. V. Suiter, 131 N. Y., 557,(489) ; 
 — Notes of recent cases on proof 
 by standards of comparison, (492). 
 
 — (5) Experts. Miles v. Loomis, 
 75 N. Y., 288, (495) ;— People v. 
 Severance, 67 Hun, 182, (502) ;— 
 Sudlow V. Warshing, 108 N. Y., 
 520, (505) ;— Dresler v. Hard, 127 
 N. Y., 235, (506) ;— Rowing v. 
 Manly, 49 N. Y., 192, (510);— 
 Notes of cases on expert testi- 
 mony to genuineness, (512). 
 
 — (6) Photographic Copies. 
 Hynes v. McDermott, 83 N. Y., 
 41, (513) ; — Notes of recent oases 
 on comparison by photographic 
 copies, (519). 
 
 — (7) Cross-examination on Other 
 Writings. Bank of the Com- 
 monwealth V. Mudgett, 44 N. Y., 
 514, (521);— People iJ. Murphy, 135 
 N. Y., 450, (524) ;— iVofe, Van 
 Wyok V. Mcintosh, 14 N. Y., 439, 
 (528); — Notes of recent cases as to 
 examining witness as to other 
 writings, (532). 
 
 VII. Some General Principles. 
 (1) Subscribing Witness. Note on 
 Preappointed Witnesses, (533); — 
 Rugg V. Eugg, 83 N. Y., 593, 
 (534). 
 
 — (2) Accounts. Note on the rule 
 as to shop books (538); — Davis v. 
 Seaman, 64 Hun, 572, (539);— 
 McGoldriek v. Traphagen, 88 N. 
 Y., 334,(540) ;— Smith v. Rentz, 
 131 N. Y., 169, (546);— Bm-ton v. 
 Driggs, 20 Wall, 135, (548);— 
 Lewis V. Palmer, 28 N. Y., 278, 
 (549);— Boston & Worcester R. R. 
 Co. V. Dana, 1 Gray, 104, (549). 
 
 — (S) Best and Secondary. Kearney 
 V. Mayor, etc., of N. Y., 93 N. Y., 
 617, (561). 
 
 — (4) Ses Gestae. Waldele v. N. 
 Y. Central, etc. R. R. Co., 95 N. 
 Y., 274, (557);— Davidson v. Cor- 
 nell, 132 N. Y., 228, (570). 
 
 — (5) Prelim,inary Questions. Peo- 
 ple V. Smith, 104 N. Y., 491, 
 (574). 
 
 vni. Cross-examination. (1> 
 The right. Langley v. Wads- 
 worth, 99 N. Y., 61, (585);— Win- 
 ner V. Lathrop, 67 Hun, 511, (589); 
 —Burden v. Pratt, 1 S'upm. Ct. 
 [T. & C], 554, (592);— People v. 
 Severance, 67 Hun, 182, (594);— 
 Notes of recent cases on the right 
 of cross-examination, (598). 
 
 — (2) Limits of Strict Cross. Neil 
 
CONTENTS. 
 
 IX 
 
 V. Thorn, 88 N. Y., 370, (600);— 
 People ex rel. Phelps v. Oyer and 
 Terminer, 83 N. Y., 436, (605);— 
 Note on recent cases on limits 
 of cross-examination, (609). 
 
 — (3) Door Opened by Direct. Pen- 
 nook V. "White, 13 Weekly Dig., 
 516, (612);— Platner v. Platner, 78 
 N. Y., 90, (617);— Marks v. King, 
 64 N. Y., 628, (627);- Winchell v. 
 Latham, 6 Cow., 682, (629). 
 
 — (4) Interrogating to Discover. 
 Storm V. United States, 94 U. S., 
 76, (632);- Kiernan v. Abbott, 1 
 Hun, 109, (635);- People v. Fitz- 
 gerald, 8 N. Y., Supp. 81 (635). 
 
 — (5) Use of Previous Statements. 
 Chicago, Jlilwaukee and St. Paul 
 Ey. Co. V. Artery, 137 U. S., 507, 
 (637);— Kosmak v. Mayor, etc., of 
 N. Y., 53 Hun, 339, and 117 N. Y., 
 361, (642);— Arnold v. Allen, 9 
 Daly, 198, (616). 
 
 — (6) Bias. People v. Webster, 139 
 N. Y., 73, i&ol);— Note on bias 
 against one not a party, (659); — 
 Note on recent cases on cross- 
 examining as to bias, (660). 
 
 — (7) Disparaging Questions. Great 
 Western Turnp. Co. v. Loomis, 
 33 N. Y., 127 (662);— Spiegel v. 
 Hays, 118N. Y., 660(671). 
 
 IX. PKr\-iLEGE Against Crimina- 
 tion. Friess-y. N. Y., Central, etc. 
 R. E. Co., 67 Hun, 205, (675);— 
 Note on the privilege against 
 self-crimination as affected by 
 statutes foi'bidding use of the evi- 
 dence to criminate, (679); — Note 
 of recent cases on privilege against 
 crimination, (679). 
 
 X. Eight OF a Witness to Ex- 
 plain. Ferris v. Hard, 135 N. 
 Y., 354, (683);— Chesebrough v. 
 Conover, 13 N. Y. Supp., 374, 
 (689);— Meakim v. Anderson, 11 
 Barb., 315, (693). 
 
 XI. Impugning Testimony of 
 
 One's Ovtn Witness. Becker v. 
 Koch, 104 N. Y., 894, (695);— 
 Notes of recent cases on impugn- 
 ing one's own witness, (701). 
 
 XII. Impeachment. (1) Impeach- 
 ment of Credit. 
 
 (a.) Evidence of Crime. Gertz 
 
 v. Fitchburg R. R. Co., 137 Mass., 
 77, (705); — Notes of recent cases 
 on impeaching adversary's wit- 
 ness, (7<i7). 
 
 (6.) Evidence of Bias. People 
 
 V. Brooks, 131 N. Y., 321, (711);— 
 Note on recent cases on evidence 
 of bias (715). 
 
 — (3) Contradicting Statem,ents 
 Draion Out on Cross- Examina- 
 tion. Sitterly v. Gregg, 90 N. Y., 
 686, (717);— Badger r. Badger, 88 
 N. Y., 546, (719);— Matter of Will 
 of Snelling, 136 N. Y., 515, (719); 
 —Van Tassel v. N. Y., L. E., etc. 
 R. R. Co., 20 N. Y. Supp., 708, 
 (722); — Note of recent ca.ses 
 against contradicting collateral 
 matter drawn out on cross-exam- 
 ination, (723). 
 
 — (3.) Previous Inconsistent State- 
 m,ents. Fisher v. Moore, 2 Misc., 
 326, (724);— Rockwell v. Brown, 
 36 N. Y., 307, (726);— Pendleton 
 v. Empire Stone Dressing Co., 19 
 N. Y., 13, (728);— Romertze v. 
 East River Nat. Bank, 49 N. Y., 
 577, (729);— Matter of Hesdra, 119 
 N. Y., 615, (735); Plyer v. German 
 American Insurance Co., 121 N. 
 Y., 689, (739);— iVofes of recent 
 cases on showing previous state- 
 ments or other facts inconsistent 
 with present testimony, (740). 
 
 — (4) Impeachment of Character 
 for Truth and Veracity. Dollner 
 v. Lintz, 84 N. Y., 669, (749);— 
 Conley v. Meeker, 85 N. Y., 618, 
 (760); — Commonwealth v. Ingra- 
 ham, 7 Gray, 46, (752);— iVoie of 
 recent cases as to character, (754). 
 
Abbott's Select Cases on Examining Witnesses. 
 
 Note on Mode of Administering Oatii. 
 
 MODE OF ADMINISTERING OATH. 
 
 The formalities to accompany administration of an oath are usually 
 prescribed by statute. 
 
 The New York statute requires the laying of the hand upon and kissing- 
 the gospels, unless the affiant desires to dispense with that act of rever- 
 ence, in which case the formula must he "You do swear in the presence 
 of the ever-living God " while the affiant lifts his hand or not, at his 
 option.* 
 
 Where a person declares that he has conscientious scruples against 
 taking an oath or swearing in any form, he may affirm. (For authorities 
 in detail see 1 Abb. New Pr. and F., 230.) 
 
 "Where he believes in a religion, other than the Christian, he may be 
 sworn according to the peculiar ceremonies, if any, of his religion. Omi- 
 chund V. Barker, Willes 238, s. c. 1 Atk., 21 (leading case). It is not neces- 
 sary that these formalities appear on the record, if it appear that the 
 witness was duly sworn. Fryatt v. Linds, 3 Edw., Ch. 289. 
 
 Although no witness is to be required to declare his religious belief as a. 
 condition of being sworn, this restriction does not prevent the court from 
 asking him what peculiar ceremonies in swearing he deems most obli- 
 gatory. 
 
 Nor does it take away the right of the adverse counsel, on cross-exam- 
 ination, to interrogate the witness as to whether he believes in the exist- 
 ence of a Supreme Being who will punish false swearing; because this 
 and similar inquiries into religious belief must be deemed competent so 
 far as bearing legitimately upon credibility. Stanbro v. Hopkins, 28 Barb. , 
 265. For the English rule see Atty. Gen. v. Bradlaugh, 14 L. E., Q. B. 
 Div., 667; s. c. 54 L. J., Q. B., 205. 
 
 * If there is a departure from the statutory directions («.(/., using hymn book instead of 
 gospels, by mistake, People v. Cook, 8 N. T., 67 ; omission of the words "in the presence of 
 the ever living God," United States v. Baer, 18 Blatchf. (V. S.), 493 ; omitting to kiBS the book, 
 Fallen v. PuUen (N. J.), 4 Atl. Rep., 82), objection must be made at the time, or the irregu- 
 larity will not necessarily vitiate the oath, 2 Bish. Cr. L., § 1018. 
 
 In Commonwealth v. Keck, 148 Pa. St., 639; 8. c. 24 Atlantic Bep., 161, it was held not error 
 upon a trial for murder to admit the testimony of a witness since deceased, taken upon the pre- 
 liminary examination oJ the accused, although upon the preliminary examination the witness 
 was not sworn nnlil his examination had been partly taken where after being sworn he repeated 
 his testimony and upon the trial no part of the testimony taken prior to the oath was admitted 
 in evidence. 
 
10 Abbott's Select Cases on Examining "Witnesses. 
 
 Seeley v. Engell, 13 N. Y., 543. 
 
 SEELEY V. ENGELL. 
 
 JVew York Court of Appeals, 1856. 
 
 [Reported in 13 N. Y., 543.] 
 
 A party who objects to a, witness of his adversary on the g-round of incom- 
 petency has, at common law, a rig'ht to examine him on the ■yoir dire 
 as to competency before he is sworn in chief. 
 
 It seems also that he has a right to give other evidence of incompetency 
 before the witness can be sworn in chief. 
 
 By the present practice, the question of competency is determined after 
 the witness is sworn in chief ; and whenever it first appears that he is 
 incompetent, the objection may be taken and the testimony struck 
 out. 
 
 It seems, however, that there are still cases in which it may be expedient 
 to examine on the voir dire. For instance, if the interest arises upon 
 written documents with which the witness is cognizant, but which are 
 not present, their contents may be sworn by oral testimony on the 
 voir dire, but not after the witness has been sworn in chief.* 
 
 George S. Seeley sued on two promissory notes made by de- 
 fendant, one for $91.39 (on which defendant had paid $58.32) 
 and the other for $8.62 ; the note for $91.39 being payable to 
 Nehemiah Seeley or bearer ; the other to one Simmon or bearer. 
 
 The complaint, after pleading the notes and payment, alleged 
 that the plaintiff at the commencement of the action, was owner 
 and holder of the same, and demanded judgment for $54.62. 
 
 The answer took issue on plaintiff's ownership and defendant's 
 indebtedness; and also alleged mistake in the making of the 
 larger note for too much and claimed that in consequence there 
 remained after the payment on account, nothing due. 
 
 At the trial before a referee, plaintiff, after reading the notes 
 in evidence and giving evidence of title and of computation of 
 interest, called Losina Seeley, proposing to have her sworn as a 
 witness. 
 
 * The better opinion is that the ground of the right to give oral evidence of the contents of 
 a writing without accounting for the absence of the writing, where the object is to show incom- 
 petency of the witness is not the technical or formal point that the witness has not been sworn 
 in chief, but the substantial point that the object is not to prove a fact in issue directly or indi- 
 rectly, but only a matter collaterally in question. See, for instance, Klein v. Eussell 19 Wall 
 439, 464; Kalk v. Fielding, 50 Wise, 339. ' '' 
 
I. Competency. (1) Yoir dire. 11 
 
 Seeley v Engell, 13 N. Y., 542. 
 
 Defendant's counsel requested plaintiff's counsel to state 
 whether she was or was not the wife of Nehemiah, the payee in 
 the larger note. 
 
 Plaintiff's counsel refused to do so. 
 
 Defendant's counsel then requested the referee to require 
 him to disclose the fact in that respect. The referee ruled that 
 he could not require any such disclosure. 
 
 Defendant's counsel then objected to her as incompetent, being 
 the wife of the real plaintiff in interest, and requested the ref- 
 eree to administer to her, on behalf of defendant, the preliminary 
 oath called the voir dire., that she might be examined thereon to 
 ascertain whether she was disqualified as a witness for the plaintiff. 
 
 The plaintiff's counsel objected and the referee ruled and 
 decided that he would not administer such oath, but would 
 swear her in chief and if, upon her examination, her incompe- 
 tency appeared, he would strike out her testimony. Exception 
 taken. 
 
 The witness, being then sworn in chief, testified that she was 
 the wife of Nehemiah Seeley ; and against defendant's objection, 
 she was held competent, exception taken, to give evidence of 
 her husband's transfer of the note to the plaintiff before com- 
 mencement of the action. 
 
 Defendant's counsel offered, for the purpose of sustaining the 
 ground of his objection, to prove that the husband of the wit- 
 ness was the real owner of the note, and that the suit was brought 
 for his benefit. The referee ruled that such evidence was not 
 in order at that stage of the proceedings ; that plaintiff might go 
 on with the examination and he would hear such evidence of 
 defendant afterwards. Exception taken. 
 
 Judgment was entered for plaintiff on the report of the referee. 
 
 James E. Dewey, for appellant, conceded it was within the 
 referee's discretion to refuse to require disclosure ; but urged 
 that his ruling that he had no discretion, was reversible error. 
 
 Also that defendant had a right, before- a witness could be 
 examined in chief, to examine as to competency, and to call other 
 witnesses to prove incompetency; and the right to examine 
 
12 Abbott's Select Cases (in Examining Witnesses. 
 
 Seeley v. Engell, 13 N. Y., 543. 
 
 the witness on the voir dire had not been abolished, but only the 
 strict rule that if that right was uol exercised, the right to object 
 for incompetency was waived. 
 
 De Witt C. Bates, for respondent, claimed that the witness 
 was competent. 
 
 The General Term affirmed the judgment. 
 
 They were of opinion " that it is entirely a matter of discre- 
 tion whether the preliminary oath, as to interest, or the oath in 
 chief, shall be administered ;" and that the better practice of recent 
 times is " to swear the witness offered in chief, and bring out the 
 facts sought to be established to prove the interest on either 
 direct or cross-examination " [citing 1 Phil. Ev., 267). They also 
 considered that no injury resulted to defendant from the ruling, 
 because in their view of the law, the witness was competent. 
 
 The Court of Appeals reversed the judgment. 
 
 Denio, Ch. J. — The determination of this case involved two 
 questions : first, whether the defendant was entitled to go into a 
 preliminary inquiry to ascertain whether the witness, Mrs. Seeley, 
 was competent to testify for the plaintiff upon the issue, before 
 she was sworn in chief ; and, secondly, whether the defendant 
 was entitled, under the pleadings, to go into evidence to show 
 that the note of $91.39 was given under a mistake of fact. On 
 both points the referee ruled against the defendant, and in both 
 instances he was, in my opinion, wrong. 
 
 I. — The point upon which the defendant objected against Mrs. 
 Seeley as a witness was, that she was the wife of JSTehemiah 
 Seeley, and that the said Nehemiah was the party for whose im- 
 mediate benefit the suit was prosecuted. The objection was not 
 put in these precise words, but that was the effect of it. The 
 case states that the defendant insisted that she was " the wife of 
 the real- plaintiff in interest." The defendant asked that she 
 might be sworn on her voir dire. This was refused ; and after 
 it had appeared by her examination in chief that she was N. 
 Seeley's wife, the defendant offered to prove that IS". Seeley was 
 the real owner of the note, and that the suit was brought for his 
 sole benefit. This the referee refused, and he persisted in allow- 
 
I. Competency. (1) Voir dire. 13 
 
 Seeley v. Engell, 13 N. Y., 543. 
 
 iBg the plaiutifi to examine Mrs. Seeley in chief before the ques- 
 tion was detennined whether she was a competent witness or 
 not. If the defendant's position had been limited to the alle- 
 gation that the witness was N. Seeley's wife, then, inasmuch as 
 she admitted that fact on the plaintiff's examination, immediately 
 after being sworn in chief, and the defendant was allowed an 
 opportunity of objecting to her further examination, and did 
 object, and the question arising upon that objection was correctly 
 detei-mined as the case then stood, no prejudice would have 
 arisen out of the refusal to administer the preliminary oath, and 
 the judgment should not be disturbed for that reason. But it 
 was a part of the defendant's objection that E" . Seeley was the 
 real plaintiff, and this the defendant offered to prove, first by 
 the preliminary examination of the witness on the voir dire, and, 
 when that was refused, by other witnesses. This request, in 
 both forms, was denied to him. The referee ruled, in effect, that 
 she should be examined in the first instance by the plaintiff, on 
 the merits, after which she might be examined by the defend- 
 ant's counsel as to her competency. This was inverting the 
 regular order of proceeding, and Avas obviously incorrect. 
 
 Previous to the witness being sworn, it is competent for the 
 counsel for the party against whom he is called to have him exam- 
 ined on the voir dire, in order to ascertain whether he is com- 
 petent to testify (Stephens' N. P., 1731, 1769 ; 0. & Hill's Notes, 
 257). This well settled rule has not been departed from, as the 
 opinion in the Supreme Court intimates, in modern cases. The 
 principle, in respect to which the rigor of the ancient practice 
 has been relaxed, is the one which precluded the party who had 
 suffered an adverse witness to be sworn in chief from afterwards 
 objecting to his competency on the ground of interest, though 
 such interest should appear in the course of the examination in 
 chief. At present, if it appear at any time during the examina- 
 tion of the witness that he is incompetent, the objection may be 
 taken, and the testimony will be expunged (1 Phil. Ev., 267 ; 
 Jacobs V. Lavborn, 11 Mees. and Welsh., 685). But there are 
 still cases in which it may be expedient for a party to put an 
 adverse witness on the voir dire. For instance, if the^ interest 
 arises upon written documents, with which the witness is cogni- 
 
14 Abbott's Select Casks on Examining Witnesses. 
 
 Seeley v. Engell, 13 N. Y., 543. 
 
 zant, but which are not present, their contents may be shown by 
 parol upon the preliminary examination, but not after the witness 
 has been sworn in chief (1 Phil. Ev., id.; Cow. and Hill's 
 Notes, 709). The tenacity with which the old rule has been 
 adhered to, even in modern times, is strikingly shown in a curi- 
 ous case in the English Court of Exchequer, decided in 18S9. 
 In ail action on a bill of exchange, the plaintiff put a witness 
 upon the stand whom he called James Dewdney. After he had 
 been examined, without objection, it was ascertained that he was 
 really George Dewdney, the plaintiff in the suit. The defendant 
 offered to call witnesses to that fact, but on an objection that it 
 was not one of the issues to be tried, the evidence was excluded, 
 and the plaintiff had a verdict. On a motion for a new trial the 
 court said : " The regular way, although in some instances the 
 strict course may have been improperly departed from, was for 
 you to make this objection on the voir dire, when other evidence 
 might have been called, if necessary, to prove the incompetency, 
 and then, if the incompetency were established, an opportunity 
 would be afforded to the plaintiff of proving his case by other 
 evidence " (Dewdney v. Palmer, 4 Mees. and Welsh , 664). I 
 do not say this is a case suitable to be followed by us, and it will 
 presently be seen that it has been overruled in the court*in which 
 it was decided. But it shows plainly enough that the rule per- 
 mitting, at least, the examination of a person called as a witness 
 on his voir dire, when the right is claimed by the adverse party,, 
 is not abolished in England. The effect of neglecting to insist 
 on the preliminary oath was carefully examined in Jacobs v. 
 Layborn, mpra, where the interest was first discovered in the 
 course of the examination, after the witness had been sworn in 
 chief. It was held, notwithstanding the decision in Dewdney v. 
 Palmer, not to be too late to object ; but there was not in that 
 case, or in any one which I have been able to find, an intimation 
 that the right to the preliminary examination, when insisted on, 
 could be denied. I conclude, therefore, that the referee fell 
 into an error in refusing to permit the w^bness to be examined 
 on the voir dire. 
 
 [The ruling as to mistake is here oviitted.l 
 
 Judgment reversed. 
 
I. Competency. (1) Yoir dire. 15 
 
 Loveridge v. Hill, 96 N. Y., 233. 
 
 LOYEEIDGE v. HILL. 
 
 New Torh Court of Appeals, 188]/.. 
 
 [Reported in 96 N. Y., 332.] 
 
 Counsel is not bound to interrupt his adversary's direct examination of a 
 witness on a material point, because of mere suspicion tliat the wit- 
 ness may be incompetent to testify to it.* He may await his oppor- 
 tunity to bring out on cross-examination the facts on which tlie ques- 
 tion of competency depends, and if it thereby appears that the wit- 
 ness is incompetent, may then move to have tlie incompetent testi- 
 mony expunged, f 
 
 A material question on the trial was whether the promissory note 
 on which plaintiff sued had been transferred to Mrs. Loveridge, 
 the plaintiff, by one Milo W. Hill as security for costs in a 
 mortgage suit, as claimed by the plaintiff, or to Mr. Loveridge, 
 the plaintiff's husband, as indemnity against his liability as bail 
 in certain contempt proceedings, as claimed by defendant. 
 
 Upon this issue a Mr. Perkins, an attorney, was called as a 
 witness for the plaintiff, who after stating that he was counsel 
 for Mrs. Loveridge in the suit against her and Milo W. Hill to 
 set aside the mortgage, and had been coimsel for Milo W. Hill 
 in various suits and remembered the appeal in the mortgage 
 suit, testified : " I heard Milo W. Hill say that he had secured 
 or satisfied the Loveridges against costs," referring as the con- 
 text shows, to the costs in the mortgage litigation. On cross- 
 examination the witness said : " Whatever I have sworn to in this 
 case as coming from Dr. Hill was learned by me as counsel." 
 
 The defendant's counsel then asked that the evidence of the 
 witness upon the subject, be struck out " upon the ground that 
 he simply testified to matters which came to his knowledge as 
 counsel, and the same was privileged." 
 
 The plaintiff objected generally. 
 
 The referee denied the motion and defendant excepted. 
 
 Judgment was entered for the plaintiff upon the report of a 
 referee. 
 
 * Compare Gregory v. Fichtner, p. 363 of this vol., and note at p. 367. 
 
 t In practice testimony tlius strueli; out ia not omitted from the minuteB. It is disregarded by 
 the referee or jnry, but remains in the minutes in order that if appeal be taken the Appellate 
 Court may review the mling. 
 
16 Abbott's Select Cases on Examii^ing Witnesses. 
 
 Loveridge v. Hill, 96 N. Y., 323. 
 
 The Supreme Court at General Term afRrraed the judgment on- 
 the ground that the " evidence was not objected to until after it 
 had been taken. The motion to strike out was, therefore, too late." 
 
 T/ie Court of Appeals reversed the judgment. The Court 
 say [after stating t}iefacts\ : We think the rule which requires 
 a party to object to incompetent evidence when offered, and which 
 precludes him from waiting until he can see, after the evidence 
 is in, whether it is damaging or not before taking his ground, 
 was misapplied in this case. It did not appear when the objec- 
 tionable evidence was given that the declaration testified to by 
 Mr. Perkins was made to him as counsel for Hill, or while the 
 relation of attorney and counsel existed between them. This 
 testimony followed the statement that the witness was counsel 
 for Mrs. Loveridge in the suit against her and Hill. The 
 declaration related to that matter, and as the case stood when the 
 declaration was proved, it was not an unreasonable inference 
 that it was made to the witness as counsel for Mrs. Loveridge. 
 It is true the witness testified that he had been counsel for Hill 
 in various suits, but when that relation commenced, or whether 
 it existed when the declaration was made, did not appear. This 
 was first disclosed on the cross-examination, and the motion to 
 strike out followed immediately upon the disclosure. 
 
 The most that can be claimed is that the evidence on the 
 direct examination might have suggested to counsel a quaere as 
 to the existence of the relation at that time, and whether the 
 communication was privileged. But it would be too strict to 
 hold that a party is bound to interrupt the examination of a 
 witness in respect to a material matter on a mere suspicion that 
 the witness may be debarred by his position from testifying. He 
 may, we think, await his opportunity on cross-examination to 
 bring out the facts, and, if on such examination it appears that 
 the witness is incompetent, make his motion to have the testi- 
 mony expunged from the record. (Hinckley v. IST. Y. C. & H. 
 K. E. R. Co., 56 K T., 429.) 
 
 We think the motion to strike out should have been granted, 
 and as the error cannot be said to have been innoxious we feel 
 compelled to reverse the judgment. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
I. Competency. (2) What Law Governs. lY 
 
 Note on What Law Governs Evidence. 
 
 NOTE ON WHAT LAW GOVERNS EVIDENCE AS 
 TO COMPETENCY. 
 
 As to f me.— The law in force at the time the witness is examined de- 
 termines liis competency. 
 
 The fact that the communication as to which he is interrogated was 
 privileged and incompetent at the time when it was made, and even at 
 the time when the action was commenced, does not prevent the applica- 
 tion of the rule of competency existing at the time of receiving the testi- 
 mony at the trial, unless the statute is so expressed as to prevent it. 
 Southwick V. Southwick, 49 N. Y., 510 ; Comins v. Hetfleld, 80 N. Y., 261. 
 
 As to place.— Tlhe law of the place of the jurisdiction of the court 
 determines the question of the competency of evidence ; and testimony 
 incompetent by that law must be excluded, although it was competent at 
 the place where the testimony was taken by deposition or by the law of 
 the place where the contract was made. 
 
18 Abbott's Select Cases on Examining Witnesses. 
 King V. Worthington, 104 U. S., 44. 
 
 KING V. WOETHINGTOK 
 
 Supreme Court of the United States, 1881. 
 [Reported in 104 U. S., 44.] 
 
 In case of a conilict between the state and federal law as to competency 
 of witnesses, the latter inust govern in a federal. court. 
 
 Where a cause has been removed from a state to a federal court, the 
 fact that while pending in the state court, a witness was held by that 
 court to be incompetent under the state law, does not affect his com- 
 petency to testify in the cause after its removal to the federal court. 
 
 Suit in equity to remove a cloud from title. The suit was 
 originally brought in an Illinois court, and while pending there, 
 certain witnesses were, under the law of Illinois, declared incom- 
 petent, and their depositions held inadmissible. The cause was 
 afterward removed to -the United States Circuit Court, and there 
 the depositions were admitted ; and decree was made in favor of 
 complainant. 
 
 The defendants appealed from the decree of the Circuit Court. 
 
 The Supreme Court affirmed the decree. Woods, J. \_After 
 considervng the regularity of the removaV] : The next ground of 
 error assigned is that the Circuit Court admitted in evidence the 
 depositions of Scott, Weeks, Bartholomew and Hinckley. 
 
 It is perfectly clear, that under the act of congress (Eev. 
 Stat., sect. 858), the persons named were competent witnesses in 
 that court. This point has been expressly ruled by this court 
 in the case of Potter v. JSTat. Bk. (102 U. S., 163), brought up on 
 error from the ISTorthern District of Illinois. It was also held, 
 in the same case, that, where there was a conflict between the 
 act of congress and the law of the state in regard to the com- 
 petency of witnesses, the United States court was bound to fol- 
 low the act of congress. The question is, therefore, reduced 
 to this : Does the fact that while the case was pending in the 
 state court, these witnesses were held by that court to be in- 
 competent under the state law, preclude them from testifying 
 in the case after its removal to the United States court ? We 
 think this question must be answered in the negative. 
 
 The federal court was bound to administer the law of evi- 
 
I. Competency. (2) What Law GoYerns. 19 
 
 King V. Worthington, 104 U. S., 44. 
 
 deuce as prescribed by act of congress, unless what had trans- 
 pired in the state court, presented an insuperable obstacle to 
 that course. This the appellants claim was the fact. They say 
 that the transfer of a case from the state to a federal court does 
 not vacate what has been done in the state court previously to 
 removal ; that what has been decided in the state court is res 
 judicata, and cannot be re-examined. In support of this posi- 
 tion Duncan v. Gegan (101 U. S., 810), and other cases are cited. 
 The law as settled by this court is correctly stated by appellants. 
 But the rulings of the Circuit Court in the progress of the cause 
 after its removal did not reverse or vacate anything which had 
 previously been adjudicated by the state court. The decision 
 of the latter court was that, under the state law, certain witnesses 
 were incompetent in the state court. The federal court decided 
 that, under the laws of the United States, the same witnesses 
 were competent when offered in a United States court. Here is 
 no conflict of opinion, and no unsettling of any matter which 
 had been adjudged by the state court. The federal court was 
 bound to deal with the case according to the rules of practice 
 and evidence prescribed by the acts of congress. If the case is 
 properly removed, the party removing it is entitled to any ad- 
 vantage, which the practice and jurisprudence of the federal 
 court give him. 
 
 In this instance the court below followed the law of evidence 
 as prescribed by congress. In doing so, it did not reverse any 
 ruling of the state court, and, we think, committed no error. 
 
 Note.— U. S. R. S. § 858, does not exclude one who is interested in the 
 issue, if he is not technically a party on the issue. Potter v. National 
 Bank, 103 U. S., 163. 
 
 Even though an executor or administrator is a party, if the only judg- 
 ment, which might be recovered against him, would be against him 
 merely as legatee or devisee the proviso in U. S. R. S. § 858, does not apply. 
 Goodwin v. Fox, 129 U. S., 601, 631. 
 
 Nor will the court extend the proviso by analogy to actions by or 
 against other representative parties such as an assignee in bankruptcy. 
 Hobbs V. McLean, 117 U. S., 567, 579. 
 
20 Abbott's Select Oases on Examining Witnesses. 
 
 Beal V. Finch, 11 N. Y., 128. 
 
 BEAL V. FINCH. 
 
 Wew York Court of Appeals, 185 i.. 
 
 [Reported in 11 N. Y. 128.] 
 
 In an action against two or more, each defendant is a competent witness 
 
 for his co-defendant. * 
 A witness competent to testify as to some matters, and not as to others, 
 
 is not to be excluded ; but improper evidence only is to be excluded 
 
 by objection to improper questions when asked. 
 It seems that a party having a witness on the stand may be called upon 
 
 by his adversary to state what he proposes to prove. 
 
 Action against several defendants for assault and battery. 
 
 The defendants put in separate answers, severally denying the 
 allegations of the complaint. 
 
 On the trial at Oircuit defendant's counsel offered McKennon, 
 one of the defendants, as a vs^itness on behalf of other defendarits. 
 
 PlaintiS's counsel objected on the ground that the offered wit- 
 ness was one of the defendants in the action. 
 
 The court sustained the objection, and refused to allow the 
 offered witness to be sworn. Exception was taken. 
 
 Defendants' counsel then separately offered each of the other 
 defendants (with one exception), as a witness for his co-defend- 
 ants. Same objection, ruling and exception. 
 
 Verdict for plaintiff against five of the defendants ; the verdict 
 stating that the jury "assess the damages jointly at $85." 
 
 Judgment was thereupon entered "that the plaintiff recover 
 a,gainstthe said [Jive named defendants'], the said sum of eighty- 
 five dollars, with " etc., costs. 
 
 The .General Term affirmed the judgment without opinion. 
 
 A. (& Ji. Parker, for appellants, urged that the exclusion was 
 simply on the ground that the offered witness was a defendant ; 
 and not because of any evidence that there was a joint assault. 
 
 Moreover, separate actions might have been brought, and as 
 the defendants answered separately, the judgment should not be 
 deemed joint. 
 
 * At the time of this decision the incompetency of a party to testify on his own behalf 
 had not been remoyed, as it since has been. N. Y. Code Civ. Pro., § 8a8. 
 
I. Competency. (3) Entire or Partial. 21 
 
 Beal V. Finch, 11 N. Y., 138. 
 
 Sayre & Banl^s, for respondent, insisted that defendants were 
 ^^ jointly " liable. 
 
 I'he Court of Appeals reversed the judgment. 
 
 Paekee, J. [after disoussing the question of the competenGy 
 of a defendant as a witness for a co-defendant^ under the then 
 existing law'] : 
 
 In every action for assault and battery, and in all other cases 
 of tort, a verdict and judgment may be rendered in favor of one 
 and against another defendant ; that is, in the language of the 
 act, a verdict or judgment separate and not joint, may be ren- 
 dered. In such an action then, a party may be examined for his 
 co-defendant, as to any matter as to which a separate and not 
 joint verdict or judgment can be rendered, and as to any matter 
 in which he is not jointly interested or liable with such co-defend- 
 ant. In all actions a defendant is a competent witness for his co- 
 defendant. His admissibility as a witness cannot be questioned, 
 but he is restricted as to the subject matter of his examination. 
 If any question be asked, tending to establish a defense of which 
 the co-defendant cannot separately avail himself, the plaintiff is 
 at liberty to object, and the court must exclude it. Where a 
 witness is called to the stand, who is competent to be sworn and 
 to testify to some matters, but who may not speak of other mat- 
 ters, it is not proper to object to his competency generally, and 
 exclude him. It will not be presumed, that an improper ques- 
 tion will be asked him. It is only by objecting to improper 
 questions, when asked, that a party can exclude improper evi- 
 dence. A party, having a witness on the stand, may be called 
 upon' by his adversary to state what he proposes to prove, and in 
 that case he must state it.* .But he need make no such state- 
 ment, unless called upon to do so. It is enough for him to pro- 
 ceed and put his, questions to the witness, unless desired to state 
 what he expects to prove. 
 
 There are many things which the witness excluded in this case 
 might have proved, that would have constituted a separate 
 defense for the other defendants, and as to which the witness 
 had no interest. He might have proved the other defendants 
 
 * Provided the court require a disclosure (see next case). 
 
22 Abbott's Select Cases on Examining "Witnesses. 
 
 Beal V. Finch, 11 N. Y., 138. 
 
 were not present or took no part in the rencontre, or that the 
 plaintiff struck first, and that they acted only in self defense. 
 Any of these matters would constitute an entire and perfect 
 defense for the other defendants for whom he would have testi- 
 fied, and would have been entirely distinct and separate from 
 the defense of the witness. 
 
 [Discussion as to what matters the co-de/endami could prove 
 under the law at that time, is here omitted.'] 
 
 Judgment reversed. 
 
I. Competency. (4) Parties. 23 
 
 Note on Competency of the Accused. 
 
 NOTE 01^ COMPETENCY OF THE ACCUSED IN A 
 CKIMINAL CASE. 
 
 Accused as a witness— Competency.— Vn&ev the present statutes of 
 nearly all the states, and of the United States, the accused may in all 
 cases testify as a witness in his own behalf, but his neglect or refusal to 
 testify does not create any presumption against him. In the absence of 
 such statute the accused is absolutely incompetent. 
 
 (See Abbott's Criminal Brief, p. 318, §387, where the statutes of all the 
 states are collected and the resulting rules as to the right of the accused 
 to be examined by his counsel and to answer as to his intent ; and as to his 
 liability to cross-examination, within the limits of the direct, or as to his 
 own character, or on the case at large, are fully stated.) 
 
24 Abbott's Select Cases on Examining Witnesses. 
 People V. Ties, 131 N. Y., 651. 
 
 PEOPLE V. TICK 
 
 JVew Yorh Court of Appeals, 1892. 
 [Reported ia 131 N.'Y., 651.] 
 
 Under a statute which like that of New York allows the accused to testify- 
 as a witness iu his own behalf — without anything to imply restriction 
 of the right of cross-examination — the accused, by becoming a witness 
 in his own behalf and testifying on any point whatever, makes him- 
 self liable to cross-examination not only on the same point, but also 
 at large in support of the case of the prosecution, and also to test his 
 character as a witness. 
 
 Whether to restrict such cross-examination within narrower limits than 
 if he were an ordinary witness, is in the discretion of the trial judge. 
 
 It is the common practice in New York to allow cross-examination at 
 large af the same time as strict cross-examination. 
 
 Defendant having been convicted at Oyer and Terminer of 
 murder, appealed. 
 
 At the trial he was called and sworn as a witness in his own be- 
 half, and his examination in chief was confined to questions 
 calling for his age, nativity, place of birth, and the fact that he 
 served as a soldier in the war of the rebellion, having enlisted 
 twice, and that he was honorably discharged. 
 
 The public prosecutor then proceeded to cross-examine him, 
 and was permitted, under objection, to ask a variety of ques- 
 tions : First, questions relating to events in his life, with the 
 dates and places, when and where they occurred, not disparag- 
 ing in their character, but which served to illustrate and test the 
 memory of the defendant ; and second, questions bearing upon 
 some of the facts brought out in the course of the trial. For 
 instance, the prosecutor asked him whether he ground a knife 
 the day before the homicide, and whether he had asked his wife 
 several times to live with him, and whether he saw her on Fri- 
 day, and to this question he replied that he did, and that " she 
 insulted him and used very bad language." 
 
 The Supreme Court affirmed the conviction. 
 
 The Court of Appeals affirmed the judgment of the Supreme 
 Court. 
 
 Andrews, J. {after passing on another pointl : These ques- 
 tions had no relation to the facts brought out in defendant's 
 
I. Competency. (4) Parties. 25' 
 
 People V. Tice, 131 N. Y., 651. 
 
 examination in chief, nor did the facts elicited affect his credi- 
 bility ; but they were pertinent to the issue. The questions put 
 to test his memory bore upon the truth of the claim made in his 
 behalf that his disease impaired his faculties, including his 
 memory. The question as to the knife he answered in the nega- 
 tive. His testimony that he saw his wife on Friday and that she- 
 abused him, bore on the question of motive. It was competent 
 for the prosecutor to show the state of feeling between the de- 
 fendant and his wife, and that their relations were hostile. Any 
 circumstances tending to explain the motive for the homicide, or 
 from which the jury might draw the inference that the defend- 
 ant was prompted by anger or resentment, were admissible. 
 
 The objections taken to the questions put to the defendant on 
 cross-examination are based upon the constitutional provision 
 that no person shall be compelled in any criminal case to be a 
 witness against himself. (Const, art. 1, § 6.) This provision 
 was aimed at the practice which in early times prevailed in Eng- 
 land and on the continent of Europe, of subjecting accused per- 
 sons to torture in order to extort confessions of guilt, and the 
 modified practice which prevails in some countries to subject 
 them to judical examination in theabsence of counsel, in order 
 to probe the conscience and induce a statement of criminating 
 facts bearing upon the charge which is the subject of the inquiry. 
 The constitutional provision protects persons charged with crime 
 against such inquisitorial and compulsory proceedings. 
 
 Under the rule of the common law an accused person was not 
 permitted to be a witness in his own behalf. The rule has been 
 changed in this and other states, by recent legislation. The law 
 of this state provides that " the defendant (in a criminal case) in 
 all cases may testify as a witness in his own behalf, but his 
 neglect or refusal to testify does not create any presumption 
 'against him." (Code Crim. Pro. § 393.) The law so far as it 
 can, protects a defendant who omits to be sworn, from having 
 that fact weigh against him. 
 
 In construing this recent legislation there has been much con- 
 trariety of decision in different states as to the scope of the right 
 of cross-examination of the accused person who has become a, 
 witness imder these enabling statutes. In some of the states the 
 
26 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Tice, 131 N. Y., 651. 
 
 rule has been adopted that by becoming a witness for himself, 
 he thereby subjects himself to the same rules of examination as 
 any other witness and may be asked any questions on cross- 
 examination or matters pertinent to the issue, or calculated to 
 test his accuracy, veracity or credibility, subject to the power of 
 the court in its discretion to limit and regulate such examination 
 as in eases of other witnesses. 
 
 In other states it has been held that the right of cross-examina- 
 tion under these statutes is confined to matters referred to in the 
 examination in chief, and that the witness cannot be required to 
 testify as to other facts material to the issue, or as to events, in 
 his life, for the purpose of affecting his credibility or character. 
 
 The difference in the decisions in different states are attribu- 
 table in part to a difference in the language of the statutes. Some 
 of the statutes in terms limit the cross-examination to matters 
 referred to in the examination in chief. In neither of the two 
 classes of decisions is there, we apprehend, any invasion of the 
 constitutional provision referred to. The accused is not compel- 
 led to become a witness. "When he avails himself of the privi- 
 lege conferred by the statute, he subjects himself voluntarily to 
 the situation of any other witness, and if he is compelled to 
 answer disparaging questions, or to give evidence relevant to the 
 issue, which is injurious, it is the consequence of an election 
 which he makes to become a witness, which involves a M'aiver 
 on his part at that time, of the constitutional exemption. If he 
 accepts the privilege given by the statute, he takes it with its 
 attendant dangers. " His own act is the primary cause, and if 
 that is voluntary he has no reason to complain." (Chuech, Ch. 
 J., in Conners v. People, 50 E". Y., 240.) 
 
 The principle that an accused person who becomes a witness 
 in his own behalf, thereby places himself in the attitude of any 
 other witness in respect to the right of cross-examination, has 
 been announced in many cases in this court. (Brandon v. 
 People, 42 N. Y., 265; Conners v. People, supra; Stover v. 
 People, 56 N. Y., 315 ; People v. Casey, 72 id., 394.) 
 
 The same rule has been declared in the courts of Massachu- 
 setts, Maine, ISTew Hampshire and other states, under statutes " 
 gimilar to the statute of this state. (Com. •». Mullin 9T Mass. 
 
I. Competency, (-t) Parties. 27 
 
 People V. Tice, 131 N. Y., 651, 
 
 545 ; State v. Witham, 72 Me., 531 ; State v. Ober, 52 N. H., 
 450.) 
 
 The cases in this state were those where exception was taken 
 to rulings peiTnitting questions affecting the credibility or the 
 moral character of the accused. But if the constitutional pro- 
 tection can be interposed at any point in the examination, we 
 do not perceive any logical reason why it may not be invoked 
 to protect the accused against answering questions affecting his 
 credibility, and also to prevent an examination as to relevant 
 facts, or indeed as to any fact, whether pertaining to his testi- 
 mony in chief or not. This broad view of the scope of the 
 constitutional exemption seems to be the one entertained by 
 Judge CooLET (Const. Lim., p. 317), but it is not in harmony 
 with the decisions in this state and does not seem to us to be 
 sound in principle. The statute permits the accused to be a 
 witness. This must mean, a witness generally in the cause, 
 and not that he may be a witness as to such matters only as to 
 which he may choose to testify. This being the construction 
 put by our courts upon the statute, there is no constitutional 
 right infringed, if the accused having elected to take the stand 
 as a witness, is subjected to the ordinary rules of examination. 
 
 The range and extent of the cross-examination is within the 
 discretion of the trial judge, provided only that it relates to 
 relevant matters or to matters affecting credibihty. The trial 
 judge may properly restrict the cross-examination of accused 
 persons within narrower limits than in ordinary cases, but the 
 latitude allowed is a matter for the trial judge. 
 
 The questions put to the defendant to test his memory were 
 relevant to his defense of insanity and were plainly competent. 
 The questions tending to show the unpleasant relations between 
 the witness and the deceased at or about the time of the homi- 
 cide, were relevant on the question of inducement and motive. 
 This was a part of the case of the people, but it is the constant 
 practice in civil and criminal trials to permit the plaintiff or 
 the people to fortify their own case by facts elicited on cross- 
 examination of the witnesses for the defense. The matter is 
 subject to the regulation and discretion of the trial judge. 
 
 There was no error, therefore, in permitting these questions 
 
28 Abbott's Select Cases on Examining "Witnesses. 
 
 People V. Tice, 131 N. Y., 651. 
 
 to be asked. That the answers to the questions respecting the 
 interview between the defendant and his wife on the day pre- 
 ceding the homicide, in fact did him no harm, is evident since 
 the same transaction had been brought out by the defendant's 
 counsel on a prior examination of a witness for the defendant. 
 
 There is no ground for interfering with the judgment and it 
 should be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
I. Competency. (5) Interest. 29 
 
 Abolition of Common-law Rule. 
 
 KOTE 01s INCOMPETENCY IN CIVIL CASES, BE- 
 CAUSE OF INTEKEST. 
 
 The interest, which would disqualify one as a witness at common-law, 
 was only a direct and certain interest in the event of the cause, or an 
 interest in the record for the purpose of evidence. Tlie interest in the 
 event of the cause might be of three varieties : 1st. Where actual gain or 
 loss would result directly from the verdict and judgment. 2d. Where the 
 situation of the witness was such that a legal right or liability would result 
 directly from the verdict and judgment. 3d. Where the witness would be 
 liable over to the party calling him in respect to some breach of contract 
 or duty on the part of the witness involved in the issue. 
 
 An interest in the question as distinguished from an interest in the 
 event of the cause, did not disqualify. 
 
 This common-law disqualification of witnesses on account of interest 
 in civil cases has generally been abolished in this country, both in federal 
 and state courts.* 
 
 Although this disqualification does not novv exist as to his general com- 
 petency, the question of interest does nevertheless arise in determining 
 a witness' competency to testify on a particular subject— concerning 
 personal transactions or communications with a deceased person or 
 lunatic, as against the executor, administrator or committee of such, or 
 as against one deriving title or interest under such deceased person or 
 lunatic. 
 
 [This existing disqualification tvill be considered later. See p. 187.] 
 
 *The reinstatement of the disqualification in tlie U. S. Court of Claims Ijy the enactment 
 of June 25th, 186S (Rev. Stat., §1079), under which the case of United States v. Clarli (96 U. S., 
 3r), was decided, has been reconsidered by Congress, and by the Act of March 3d, 1887, the dis- 
 qualification by interest, again abolished. 
 
30 Abbott's Select Xotes on Examining Witnesses. 
 
 Commonwealth r. Lynes. 
 
 COMMONWEALTH v. LYNES. 
 
 Sttpreme Court of Massachusetts, 1886. 
 
 [Reported in 143 Mass., 577.] 
 
 If where it appears to the judge that a child of tender years offered as a 
 witness does not sufficiently understand the nature and obligation of 
 an- oath, he may permit the child to be properly instructed for the 
 pm-pose, if of sufficient age and intellect to be properly instructed. 
 
 If at the time of testifying a child sufficiently understands the nature and 
 obligation of an oath, it is not ground of objection to competency 
 that he had been instructed on the point during a recess of the 
 trial.* 
 
 On tlie trial of an indictment, Lillie Lynes (thirteen years of 
 age) was called as a witness for the -prosecution ; and de- 
 fendant objected to the administration of the oath to her, on 
 the ground that she was ignorant of the nature and obligation of 
 it, whereupon the presiding judge asked her some questions, to 
 which she replied that she understood that the oath was to tell 
 the truth, and that she would be punished if she did not tell the 
 truth after taking it, but she did not know how or by whom she 
 would be punished. The judge then asked the district attorney 
 if he desired to call her at that time, to which he replied no ; 
 whereupon the judge said he would postpone the decision of her 
 competency, and she could be instructed if necessary. The next 
 day she was offered again as a witness, and upon examination 
 was found competent and was permitted to testify, against the 
 objection and exception of the defendant on the ground that it 
 appeared, as it did in her examination, that she had been in- 
 structed by a Christian minister since the last adjournment uf 
 the court. 
 
 On cross-examination, she testified that the minister told her 
 that God would punish her if after taking the oath she testified 
 what was not true ; and that she did not know that before. 
 
 The Supreme Court overruled the exceptions. 
 
 *To eaine effect McAmore v. Wiley, 49 111. App., 615. 
 
I. Competeney. (6) Infancy. 31 
 
 Commonwealth v. Lynes, 142 Mass., 577. 
 
 Gaednee, J. \_After stating the facts] : The practice has not 
 been uniform upon this question. In Rex v. Williams, 7 C. & 
 P., 320, the defendant was indicted for the murder of her 
 husband, and her daughter, eight years old, was called as a 
 witness. It appeared that before the death of her father, which 
 took place about sixteen weeks before the trial, the child had 
 never heard of God, or of a future state of rewards and punish- 
 ments ; and that she had never prayed, nor knew the nature of 
 an oath ; but that since the death of her father she had been 
 visited twice by a clergyman, who had given her some instruc- 
 tion as to the nature and obligation of an oath. She said she 
 should go to hell if she told a lie, and that hell was under the 
 kitchen gate ; but she had still no intelligence as to religion or a 
 future state. Mr. Justice Patterson refused to allow the girl to 
 testify, and stated his reasons therefor, as follows : " I must be 
 satisfied that this child feels the binding obligation of an oath 
 from the general course of her religious education. The effect 
 of the oath upon the conscience of the child should arise from 
 religious feelings of a permanent nature, and not merely from 
 instructions, confined to the nature of an oath, recently com- 
 municated to her for the purposes of this trial ; . and as it 
 appears that, previous to the happening of the circumstances to 
 which this witness comes to speak, she had had no religious 
 education whatever, and had never heard of a future state, and 
 now has no real understanding on the subject, I think that I 
 must reject her testimony." In the course of the trial, the 
 counsel for the king stated that it was every day's practice to 
 put off a trial in order that a witness might be instructed as to 
 the nature of an oath, citing Rex v. Wade, Ry. & M., 86. 
 The oath, however, was refused the witness. The reasons first 
 given by the learned justice have been criticised, and have not 
 generally been followed. 
 
 In Regina v. Nicholas, 2 0. & K. 246, Pollock, 0. B., refused 
 to put off the trial in order that a child of six years of age might 
 receive instruction, but said : " There may be cases where the 
 intellect of the child is much more ripened, as in the cases of 
 children of nine, ten or twelve years old, for example, where 
 
■32 Abbott's Sklect Cases on Examining Witnesses. 
 
 Commonwealth v. LyneSj 143 Mass., 577. 
 
 their education has been so utterly neglected that they are 
 wholly ignorant on religious subjects. In those cases a post- 
 ponement of the trial may be very proper ; but where the 
 infirmity arises from no neglect, but from the child being too 
 young to be taught, I doubt whether the loss in point of 
 memory would not more than countervail the gain in point of 
 religious education. I lay down no general rule, as there may 
 be cases where a postponement would be proper. " 
 
 In the English practice, it is usual for the judge to examine 
 an infant as to his competency before going before the grand 
 jury, or before proceeding to trial, and, if found incompetent 
 for want of proper instruction, in his discretion, to put oif the 
 trial in order that the infant may, in the meantime, receive 
 such instruction as may qualify him to take an oath. Eoscoe 
 Crim. Ev (7th Am. ed.) 114. 3 Euss. on Crimes (9th Am. ed.) 
 612. 1 Stark Ev. (4th. ed.) IIY. Eex. v. White, 1 Leach, 430. 
 Eegina v. Milton, Ir. Cir. Eep. 16. Eegina v. Baylis, 4 Cox 
 C. C. 23. The same practice is laid down in 1 Greenl, Ev. 
 (14th ed.) § 367. It is left discretionary with the court, when 
 a principal witness offered is not yet sufficiently instructed 
 in the nature of an oath, to put off the trial that this may be 
 done. 
 
 The defendant in his bill of exceptions has given us no in- 
 formation as to the moral condition of the witness, before she 
 was called to testify ; nor whether she had been instructed in 
 religious knowledge to any extent. We are not informed what 
 her intellect was, nor how far it was ripened. All these 
 considerations were before the judge who examined the witness 
 before and after her instruction. If it had appeared to the 
 presiding judge that the witness did not sufficiently understand 
 the nature and obligation of an oath, we think that it was within 
 his discretion to permit the child to be properly instructed, 
 provided she was of sufficient age and intellect to receive 
 instruction. 
 
 But the real question arose at the time when she was called 
 upon to take the oath. The judge must then have been 
 satisfied that the witness at that time understood the nature of 
 an oath, and the solemn responsibility which then rested upon 
 
I. Competency. (6) Infancy. 33 
 
 Commonwealth v. Lynes, 142 Mass., .577. 
 
 her to speak the truth.* He was to say whether .she under- 
 stood the sanctity of an oath, so that she could be a witness, 
 and the jury were to determine whether they believed her 
 evidence. Eegina v. Hill, 5 Cox C. C, 259. Kendall v. May, 
 10 Allen, 59, 61. The question of competency, depending' upon 
 the fact in evidence, was to be decided by the court. When, 
 therefore, the judge had examined the witness and fomid her 
 competent to be sworn, and she was permitted to testify, we 
 think that the defendant could not object upon the ground that 
 she had been instructed by a Christian minister since the last 
 adjournment of the court. 
 
 {Here followed a consideration of other exceptions. 'I Excep- 
 tions overruled. 
 
 * The result of the ciees is that the competency of children as witnesses is to be determined, 
 not by their age, but by the degree of their understanding and knowledge. 
 
 It is essential that they should possess suflicient intelligence to receive just impressions of 
 the facts respecting which they are examined, suflicient capacity to relate them correctly and 
 sufficient instruction to appreciate the na ure and obligation of an oath. People 11. Bernal, 
 10 Cal. 66. 
 
Si Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Cases on Competency of Infants. 
 
 E^EW YORK STATUTE. 
 
 "Whienever in any criminal proceeding a child actually or ap- 
 parently under the age of twelve years, offered as a witness, does 
 not, in the opinions of the court or magistrate, understand the 
 nature of an oath, the evidence of such a child may be received, 
 although it is not given under oath, if, in the opinion of the 
 court or magistrate, such child is possessed of sufficient intel- 
 ligen'ce to justify the reception of the evidence; but no person 
 shall be held or convicted of an offense upon such testimony 
 unsupported by other evidence. 
 
 \_Ad<ied ly Chap. 279 of the Laws of 1802 to section 392 of 
 the Code Crim. Pro., which formerly read " The rules of evi- 
 dence in civil cases are applicable also to criininal cases, except 
 as otherwise provided in this Code."] 
 
 Notes of Cases on Competency of Infants. 
 
 The objector is entitled to have the examination made in his presence 
 on the trial before the court. It is error to accept the witness merely on 
 the statement of one of the justices holding the court, that he, the justice, 
 had previously examined the child offered as a witness, and was satisfied 
 of his competency. People v. McNair, 31 Wend., 608. Nelson, Ch. J. 
 
 In People v. Findal, 58 Hun, 483; 35 State Eep., 805; 13 N. Y. Supp.., 
 498, it was held not to be the practice in criminal trials, when a witness 
 incapable of understanding an oath by reason of youth is called by either 
 party to take the unsworn statement of such witness. 
 
 In Taylor v. State (33 Tex. App., 539, s. c. 3 Southwest. Rep., 753); it 
 was held error in a criminal case where it appeared on voir dire that wit- 
 ness did not understand the nature of an oath, for the judge to take the 
 witness into a private room and instruct him. ' 
 
 At what age an examination as to a child's understanding is required 
 before he may be allowed to testify. 
 
 Michigan: Hughes v. Detroit, etc., Ey. Co., 1887, 31 Northwest. Rep., 
 603 (error not to examine as to the competency of a child of seven). Mis- 
 souri: Brashears v. Western Union Tel. Co., 45 Mo. App. 433 (Mo., R. S., 
 1889, § 8935, changes the common law as to presumed incapacity under 
 the age of fourteen to under ten) ; s. p. Ridenhour v. Kansas City Cable 
 Ry. Co., 103 Mo., 370; s. c. 14 Southwest. Rep., 760. 
 
I. Competency. (6) Infancy. 35 
 
 Notes of Cases on Competency of Infants. 
 
 At what age a child's testimony has been received where capacity was 
 shown. 
 
 Alabama: McGufl v. State, 88 Ala., 147; s. c. 7 Southern Rep., 35 
 (a child of seven and a half). Georgia: Moore v. State, 1888, 5 Southeast. 
 Rep., 51 (a boy of ten). loiva: State v. Severson, 1889, 43 Southwest. 
 Rep., 533 (boy of twelve). Missouri: State v. Doyle, 1893, 17 Southwest. 
 Rep., 751 (child of nine). Nebraska: Davis v. State, 1891, 47 Northwest. 
 Rep., 854 (a nine year old child). New York: Agnew u. Brooklyn City 
 R. Co., N. Y. Supp., 756 (child under eight); Jones i). Brooklyn, etc., 
 R. Co., 3 id., 253 (boy of eleven). Texas: Parker v. State, Tex. App., 1893, 
 •21 Southwest. Rep., 604 (a boy of twelve) ; Comer v. State, Tex. App., 1893, 
 30 id., 547 (a child of ten); Hawkins v. State, 27 Tex. App., 273 (boy of 
 eleven). 
 
 At what age a child's testimony has not been received where incapacity 
 was shown. 
 
 Alabama: Kelton v. State, 88 Ala., 189; s c. 7 Southern Rep., 38 (a 
 boy of fourteen). ' Georgia: Johnson v. State, 76 Qa., 76 (a six year old 
 girl, though she was called to show a rape upon herself). West Virginia: 
 37 W. Va., 565 ; s. c. 16 Southwest. Rep., 565 (an infant of such tender 
 years and mind as to be legally irresponsible for her conduct). Texas: 
 Halst V. State, 1887, 3 Southwest. Rep., 757 (a child of seven). 
 
 In Tobey v. Leonards, 2 Wallace, 433, a bill in equity for reconveyance 
 and compensation for waste. Mr. Justice Wayne said as to the introduc- 
 tion of children as witnesses : "Where the father of a family introduces 
 the juvenile members of it, as witnesses in such a litigation as this has 
 been, it cannot be done without its being considered as a forlorn effort of 
 parentul obliquity." 
 
36 Abbott's Select Cases on Examining Witnesses. 
 District of Columbia v. Armes, 107 U. S., 519. 
 
 DISTRICT OF COLUMBIA v. ARMES. 
 
 /Supreme Court of tJie United States, 1882. 
 
 [Reported in 107 U. S., 519.] 
 
 An insane person is a competent witness, if it appears to the court, upon 
 examination of him and competent witnesses, that he understands the 
 obhgation of an oath, and is capable of giving a correct account of the 
 matters which he has seen or heard in reference to the questions at 
 issue. 
 
 Action against a municipal corporation, for damages for in- 
 juries received from a fall caused by a defective sidewalk. 
 
 The plaintiff's spine was injured, producing partial paralysis 
 which resulted in the impairment of his mind. 
 
 On the trial in the Supreme Court of the District of Colum- 
 Ma, the plaintiff was offered and received as a witness, against 
 defendant's exception to him as incompetent on account of 
 deranged mind. 
 
 The Supreme Court of the United States affirmed the judg- 
 ment. 
 
 Field, J. {^After stating the facts'] : The present action was 
 for the injury thus sustained. He was himself a witness, and it 
 appeared from his testimony that his mind was feeble. 
 His statement was not always as direct and clear as would 
 be expected from a man in the full vigor of his mind. 
 Still it was not incoherent, nor unintelligible, but evinced a full 
 knowledge of the matters in relation to which he was testifying. 
 A physician of the Government Hospital for the Insane, to 
 which the deceased was taken two years afterwards, testified that 
 he was affected with acute melancholy ; that sometimes it was 
 impossible to get a word from him ; that his memory was 
 impaired, but that he was able to make a substantially correct 
 statement of facts which transpired before the injury took place, 
 though, from the impairment of his memory, he might leave out 
 some important part, that there would be gome confusion of 
 ideas in his mind, and that he should not be held responsible for 
 any criminal act. A physician of the Freedmen's Hospital, in 
 
I. Conj^etenoy. (T) Mental Capacity. 3Y 
 
 District of Columbia v. Armes, 107 U. 8., 519. 
 
 which the deceased was at one time a patient after his injuries, 
 testified to a more deranged condition of his mind, and that he 
 was, when there in June, 1879, insane. He had attempted to 
 commit suicide, and had stuck a fork into his neck several times. 
 Upon this, and other testimony of similar import, and the feeble- 
 ness exhibited by the deceased on the stand, the counsel for the 
 city requested the court to withdraw his testimony from the 
 jury, on the ground that his mental faculties were so far im- 
 paired as to render him incompetent to testify as a witness. 
 This the court refused to do, but instructed the jury that his 
 testimony must be taken with some allowance, considering his 
 condition of mind and his incapacity to remember all the cir- 
 cumstances which might throw some light on his present condi- 
 tion. This refusal and ruling of the court constitute the first 
 error assigned. 
 
 The ruling of the court and its instruction to the jury were 
 entirely correct. It is undoubtedly true that a lunatic or an 
 insane person may, from the condition of his mind, not be a 
 competent witness. His incompetency on that ground, like in- 
 competency for any other cause, must be passed upon by the 
 court, and to aid its judgment, evidence of his condition is admis- 
 sible. But lunacy or insanity assumes so many forms, and is so 
 often partial in its extent, being frequently confined to parti- 
 cular subjects, while there is full intelligence on others, that the 
 - Dower of the court is to be exercised with the greatest caution. 
 The books are full of cases where persons showing mental de- 
 rangement on some subjects evince a high degree of intelligence 
 and wisdom on others. The existence of partial insanity does 
 not unfit individuals so affected for the transaction of business 
 on all subjects, nor from giving a perfectly accurate and lucid 
 statement' of what they have seen or heard. In a case in the 
 Prerogative Court of Canterbury, counsel stated that partial 
 insanity was unknown to the law of England ; but the court 
 replied that if by this was meant that the law never deems a per- 
 son both sane and insane at one and the same time upon one and 
 the same subject, the assertion was a truism ; and added : "If, 
 by that position, it be meant and intended that the law of Eng- 
 land never deems a party both sane and insane at different times 
 
38 Abbott's Select Cases on Examining Witnesses. 
 
 District of Columbia v. Amies, 107 U. S., 519. 
 
 upon the same subjects ; and both sane and insane at the same 
 time upon different subjects ; (the most usual sense, this last, of 
 the phrase 'partial insanity'), there can scarcely be a position 
 more destitute of legal foundation ; or rather there can scarcely 
 be one more adverse to the stream and current of legal au- 
 thority." Dew V. Clark, 3 Add E. K., Y9, 94. 
 
 ■ The general rule, therefore, is, that a lunatic or a person 
 affected with insanity is admissible as a witness if he have suf- 
 ficient understanding to apprehend the obligation of an oath, 
 and to be capable of giving a correct account of the matters 
 which he has seen or heard in reference to the questions at issue; 
 and whether he have that understanding is a question to be 
 determined by the court, upon examination of the party himself, 
 and any competent witnesses who can speak to the nature and 
 extent of his insanity. Such was the decision of the Court of 
 Criminal Appeal in England, in the case of Reg. v. Hill, 5 Cox 
 Crim. Cas., 259. There the prisoner had been convicted of 
 manslaughter ; and on the trial a witness had been admitted 
 whose incompetency was urged on the ground of alleged insanity. 
 He was a patient in a lunatic asylum, under the delusion that 
 he had a number of spirits about him which were continually 
 talking to him, but the medical superintendent testified that he 
 was capable of giving an account of any transaction that hap- 
 pened before his eyes ; that he had always found him so ; and 
 that it was solely with reference to the delusion about spirits " 
 that he considered him a lunatic. The witness himself was 
 called, and he testified, as follows : " I am fully aware I have a 
 spirit, and twenty thousand of them. They are not all mine. I 
 must inquire. I can where I am. I know which are mine. 
 Those that ascend from my stomach and my head, and also those 
 in my ears. I don't know how many they are. The flesh 
 creates spirits by the palpitation of the nerves and the rheuma- 
 tics. All are now in my body and around my head. They 
 speak to me incessantly, particularly at night. That spirits are 
 immortal, I am taught by my religion from my childhood. No 
 matter how faith goes, all live after my death, those that belong 
 to me and those that do not." After much more of this kind of 
 talk he added : " They speak to me instantly ; they are speaking 
 
I. Competency. (7) Mental Capacity. 39 
 
 District of Columbia v. Amies, 107 U. 8., 519. 
 
 to me now ; they are not sepaj'ate from me ; they are around me 
 speaking to me now, but I can't be a spirit, for I am flesh and 
 blood. They can go in and out tlirough walls a,nd places which 
 I cannot." He also stated his opinion of what it was to take an 
 oath : " "When I swear," he said, " I appeal to the Almighty. 
 It is perjury, the breaking of a lawful oath, or taking an unlaw- 
 ful one ; he that does it will go to hell for eternity." He was 
 then sworn, and gave a perfectly collected and rational account 
 of a transaction which he declared that he had witnessed. He 
 was in some doubt as to the day of the week on which it took 
 place, and on cross-examination said : " These creatures insist 
 upon it, it was Tuesday night, and I think it was Monday ; " 
 whereupon he was asked : " Is what you have told us what the 
 spirits told you, or what you recollected without the spirits ? " 
 And he said : " No ; the spirits assist me in speaking of the date; 
 I thought it was Monday and they told me it was Christmas eve, 
 Tuesday ; but I was an eye-witness, an ocular witness to the fall 
 to the ground." The question was reserved for the opinion of 
 the court whether this witness was competent, and after a very 
 elaborate discussion of the subject it was held that he was. 
 Chief Justice Campbell said that he entertained no doubt that 
 the rule laid down by Baron Parke, in an unreported case which 
 had been referred to, was correct, that wherever a delusion 
 of an insane character exists in any person who is ^called as a 
 witness, it is for the judge to determine whether the person so 
 called has a sufficient sense of religion in his mind and sufficient 
 understanding of the nature of an oath, for the jury to decide 
 what amount of credit they will give to his testimony. 
 
 "Various authorities," said the Chief Justice, "have been 
 referred to, which lay down the law that a person non compos 
 mentis is not an admissable witness. But in what sense is the 
 expression non compos mentis employed ? If a person be so to 
 such an extent as not to understand the nature of an oath, he is 
 not admissable. But a person subject to a considerable amount 
 of insane delusion may yet be under the sanction of an oath and 
 capable of giving very material evidence upon the subject matter 
 under consideration." And the Chief Justice added : " The 
 proper test must always be, does the lunatic understand what he 
 
40 Abbott's Select Cases on Examining Witnesses. 
 
 District of Columbia v. Arnies, 107 U. S., 519. 
 
 is saying, and does he understand tlie obligation of an oath ? The 
 lunatic may be examined himself, that his state of mind may be 
 discovered, and witnesses may be adduced to show in what state 
 of sanity or insanity he actually is ; still, if he can stand the test 
 proposed, the jury must determine all the rest." He also ob- 
 served that in a lunatic asylum the patients are often the only 
 witnesses of outrage upon themselves and others, and there would 
 be impunity for offenses committed in such places if the only 
 persons who can give information are not to be heard. Baron 
 Alderson, Justice Coleridge, Baron Piatt and Justice Talfourd 
 agreed with the Chief Justice, the latter observing that "if the 
 proposition that a person suffering under an insane delusion can- 
 not be a witness were maintained to the fullest extent, every man 
 subject to the most innocent, unreal fancy would be excluded. 
 Martin Luther believed that he had a personal conflict with the 
 devil ; Dr. Johnson was persuaded that he had heard his mother 
 speak to him after death. In every case the judge must deter- 
 mine according to the circumstances and extent of the delusion. 
 Unless judgment and discrimination be applied to each particular 
 case, there may be the most disastrous consequences. ' This case 
 is also found in the 2d of Denison and Pearce's Crown Cases, 254, 
 where Lord Campbell is reported to have said that the rule con- 
 tended for would have excluded the testimony of Socrates, for he 
 had one spirit always prompting him. The doctrine of this 
 decision has not been overruled that we are aware of, and it 
 entirely disposes of the question raised here. 
 
 \_A ruling on another jjoint is here omitted.'\ 
 Judgment affirmed. 
 
 Note.— The principle in determining the competency of the insane as 
 witnesses seems to be the same both as to an insane person testifying to 
 facts which occurred before mental impairment, and as to a person 
 apparently recovered testifying to facts which occurred during insanity, 
 tiie latter situation being considered in People ex rel. Norton v. N. Y. 
 Hospital, 3 Abb., N. C, 339, where the question of insanity is fully dis- 
 cussed in its applications to witnesses ; a distinction being pointed out 
 between allowing testimony as to self regarding facts and those facts that 
 are objectively demonstrable. 
 
 After testimony of such a witness has been received, evidence that he 
 
I. Competency. (Y) Mental Capacity. 41 
 
 District of Columbia v. Armes, 107 U. S., 519. 
 
 has been of imbecile mind and memory is admisaable to afEect his credi- 
 biUty^. Spence v. Brown, 17 Weekly Dig., 518. 
 
 Walker v. State, Ala., 1893, 12 Southern Kep., 33 (if a witness 
 has sufficient capacity to understand an oath, and to narrate the trans- 
 action in what appears to be an intelligent and rational manner, he should 
 be allowed to testify, leaving the question of his credibility to the jury). 
 Worthington v. Meucer (Ala., 1893), 11 Southern Rep., 73 (one suing as of 
 unsound mind may, nevertheless, testify, if competent). 
 
 Lopez V. State (Tex., 1893), 17 Southwest. Rep., 1058 (insane woman 
 cannot testify even as to rape upon herself). 
 
 The judge may properly refuse to allow an oath to be administered to a 
 person called as a witness who appears in the judge's opinion, found on 
 inspection, to he intoxicated : It is not essential that the record describe 
 the degree of intoxication. Hartford v. Palmer, 16 Johns., 143. 
 
42 Abbott's Select Cases on Examining Witnesses. 
 Rivara v. Ghio, 3 E. D. Smith, 364. 
 
 'eIVAKA V. GHIO. 
 
 At New York Common Pleas, 185 J).. 
 
 [Reported in 3 E. D. Smith, 264.] 
 
 After a witness has been examined, even without objection, the adverse 
 party has a riglit to give evidence by another witness that the former 
 is of impaired mental capacity, such as to affect credibihty. 
 
 Plaintiff sued for injuries to personal property. After plaint- 
 itii's principal witness, Teresa, had testified to the contents of 
 the trunk, without objection, the defendant at a later stage of the 
 trial offered the testimony mentioned in the opinion of the 
 court. 
 
 The City District Court excluded the offer, and from judg- 
 ment for plaintiff defendant appealed. 
 
 Woodruff, J., [(Daniel P. Ingeaham, First Judge, and Chas. 
 P. Daly, Lewis B. Woodruff and John R. Brady, JJ. ,) after 
 indicating opinion for jjlaintijf on the merits] : But we think 
 that the court below erred in rejecting the evidence of John 
 Ginnochio, who was called to prove that the plaintiff's principal 
 witness had been of imbecile mind and memory. Such evidence 
 wonld tend to prove that less reliance should be placed upon 
 her statements than those of a witness who was compos 
 mentis. That a person who is non compos, either through de- 
 rangement or through want of ordinary understanding, is in- 
 competent, is well settled. (10 J. R., 362 ; 26 Wend., 255 ; 
 1 Green. Ev., 464; 17 Mass., 540; 10 Serg. and E., 282, 
 285.) And when this objection is not taken upon the calling of 
 a witness and, therefore, may perhaps be deemed waived as an 
 objection to the competency of the witness, it may be given in 
 evidence as going to the degree of credit to which the testimony 
 of the witness is entitled, after the plaintiff has rested. It is 
 true that the defendant's counsel states his object to be to prove 
 that the witness had been of imbecile mind and memory. If 
 this were to be taken as a mere offer to prove that at some 
 former period the witness had been thus ■ afflicted, and without 
 
I. Competency. (T) Mental Capacity. 43 
 
 Rivara v. Ghio, 3 E. D. Smith, 364. 
 
 any inference tliat that state of things continued to the time of 
 the transaction in question, or to the time of the trial it was im- 
 material and irrelevant. But proof of imbecility of mind would 
 raise a presumption that such condition continued and might 
 justly detract from, if it did not altogether destroy, the weight 
 to be given to the evidence of the witness. The evidence of a 
 lunatic, given in a lucid interval, might be received, and on proof 
 of lunacy it would lie with the party offering the witness to 
 prove that the lunacy had ceased or intermitted, and this would 
 be a matter still going to the credit of the witness. 
 
 Indeed, the reason of the rejection given below appears to 
 have proceeded from the idea that evidence of this description 
 necessarily went to competency only. In this we think the 
 court erred, and the judgment must on this ground be reversed. 
 
 Judgment reversed. 
 
, 44 Abbott's Select Cases on Examining "Witnesses. 
 State V. De Wolf, 8 Conn., 92. 
 
 STATE V. DE WOLF. 
 
 Connecticut Swpretne Court of Errors, 1830. 
 
 [Reported in 8 Conn., 92.] 
 
 A deaf mute, capable of relating facts correctly by signs, may testify in 
 that way, through the medium of an interpreter, though also capable, 
 of reading and writing, and of communicating ideas imperfectly by 
 writing. A second witness testified that the deaf mute had once com- 
 municated to her in writing- the substance of what the deaf mute had 
 just testified to, but the present witness did not know where the writ- 
 ing was. Held, that the proof of loss was not sufficient to dispense with 
 the production of the writing and, therefore, the testimony of this 
 second witness to its contents was not competent. 
 
 Indictment for an attempt to commit a rape. 
 
 On the trial, Celestia Bull, a person deaf and dumb from her 
 infancy, was sworn as a witness and testified to the principal 
 facts in the case, by signs, which were interpreted to the court 
 and jury by William W. Turner, a teacher in the American 
 Asylum for the education of the deaf and dumb, who was duly 
 sworn for that purpose, and was also sworn as a witness. Mr. 
 Turner testified that Gelestia had resided in the asylum about 
 five years, and was well acquainted with the language of signs, 
 and capable of relating facts correctly in that manner ; that she 
 could also read and write, and communicate her ideas imperfectly 
 by writing. 
 
 The defendant's objection to her testifying in this manner 
 claiming that she ought to give testimony in her own words in 
 writing, was overruled. Before the defendant had attempted, 
 otherwise than by cross-examination, to discredit Celestia's testi- 
 mony, the state offered PoUy Kowley as a witness to prove that 
 Celestia had previously communicated to her the same story that 
 she had testified to in court. This evidence was admitted 
 against defendant's objection. 
 
 It appearing that such communication was in writing, the de- 
 fendant again objected on the ground that the writing itself 
 should be produced or proved to be lost, but was overruled. 
 
 The defendant, having been found guilty, moved for a new 
 
I. Competenoy. (8) Deaf Mnte. 45 
 
 . State V. De Wolf, 8 Conn., 92. 
 
 trial on the ground of the judge's decisions as to admission of 
 evidence stated above. 
 
 The Sapreme Court of Errors granted a new trial. 
 
 Daggett, J. Several objections were made at the trial against 
 testimony offered by the public prosecutor, which appear on the 
 motion, and are now urged as reasons for granting a new trial. 
 They will be considered in the order presented by the counsel for 
 the prisoner. 
 
 1. The supposed victim of the outrage of the prisoner was 
 deaf and dumb. She was sworn, and testified by a sworn inter- 
 preter, an instructor in the Asylum fur the Deaf and Dumb, 
 throiigh certain' signs adopted as a medium of communication 
 by that class of persons. It was objected, by the prisoner, that 
 as it appeared by the testimony of the interpreter, that "she 
 could read and write and communicate her ideas imperfectly by 
 writing ; " and it further appeared that " she understood the lan- 
 guage of signs, and was capable of relating facts correctly in that 
 manner," she ought to testify in her own words in writing. The 
 judge very properly overruled the objection. The bare state- 
 ment of the objection overthrows it. She was capable of relat- 
 ing facts correctly, by signs ; she could read and write and com- 
 municate her ideas imperfectly, by writing. The objection thus 
 viewed presents this absurdity, that the court erred in resorting 
 to the most perfect mode of ascertaining the truth. The mode of 
 examination adopted by the court was the next best mode to an 
 oral examination, which for many obvious reasons, is preferable 
 .to an examination in writing, but which could not be had in this 
 case on account of an infirmity in the witness. I see no ground 
 for this objection. \_Here followed a consideration of tht ad- 
 mission of Polly Bowlefs testimony, confirming the testimony 
 of Oelestia before she had leen impeached, it heing held to have 
 heen p^roperly admitted in this case.] 
 
 The witness, Polly Eowley, then testified that in the fall of 
 1829, Celestia communicated to her in writing the substance of 
 what she had now testified, and that she did not then know 
 where the writing was. Upon this disclosure of the writmg the 
 prisoner made a further objection that the writing should be 
 
46 Abbott's Select Cases on Examining Witnesses. 
 
 State V. De Wolf, 8 Conn., 93. 
 
 produced, and that she could not testify as to its contents. This 
 objection was overruled and the testimony was admitted. I am 
 of opinion that upon this statement of the facts in relation to 
 the writing the judge should have rejected her testimony. If 
 the paper containing that communication had been lost the fact 
 could have been proved, and then its production would have 
 been dispensed with ; but her declaration was simply that she 
 did not know where it was. There was no proof that she had 
 made search for it among her papers. Upon this evidence it 
 can hardly be said that there was any proof of loss so as to let in 
 secondary evidence. 
 
 [After consideration of other rulings helow not affecting the 
 decision'] : 
 
 New trial granted. 
 
 In State v. Weldon, S. C, 1893, 17 Southeast. Rep., 688, it was held that a 
 deaf mute may be examined through sworn interpreters who, though 
 not experts, testify that they had employed the witness and that they 
 had no difficulty in communicating with him by signs. 
 
I. Competency. (9) Felon. 47 
 
 Logan V. United States, 144 U. S., 263. 
 
 LOGAlSr V. UNITED STATES. 
 
 United States Supreme Court, 1892. 
 [Reported in 144 U. S., 263.] 
 
 U. S. R. S., § 858, which provides (after removing incompetency from 
 color, and, in civil actions, from being a party or interested, etc.. etc.), 
 that in other respects "the laws of the state in which the court is held 
 shall be the rules of decision as to the competency of witnesses in the 
 courts of the United States in trials at common law, and in equity 
 and admiralty"— does not apply to criminal trials. 
 
 At common law, and upon general principles of jurisprudence, a conviction 
 and sentence in one state cannot disqualify the convict to testify as a 
 witness in another state, in the absence of express statute in such 
 latter state.* 
 
 Under a statute disqualifying a convict "unless he has been legally 
 pardoned for the crime of which he was convicted " f —a full pardon 
 restores competency, although granted after term of imprisonment 
 served. 
 
 Such a pardon restores competency to testify as to facts which came to 
 his knowledge even before the pardon. 
 
 Upon the trial in the United States Circuit Court in Texas, 
 of several indictments under Sections 5508 and 5509 of the 
 United States Revised Statutes for conspiracy and for murder 
 committed in prosecution of the conspiracy, one Martin who had 
 previously been convicted in a court of Worth Carolina of a 
 felony, and one Spear, who had been convicted likewise, in a 
 court of Texas, were offered as witnesses. It was shown that 
 Spear had been pardoned after he had served the tsrm of his 
 imprisonment. 
 
 * For the New York Statute, see Code Civ. Pro., §832. 
 
 t See Boyd v. United States, 142 U. S., 430 (pardon restores a witness' competency, thougli 
 made with that intent) ; S. P. Martin v. State, 31 Tex. App., 1 ; but to restore a witness' com- 
 petency the pardon must be unconditional. Dadley v. State, Tex., 1887, 5 Southwest. Eep., 649 ; 
 McGee «. State, Tex., 1892, 16 id., 422, A state statute giving the service of sentence the effect 
 of a pardon may be enough. U. S. v. Hall, 53 Fed. Kep., 352. 
 
 U. S. R. S. (2d ed.) 1045, § 5392, provides that one who swears falselyunder an oath adminis- 
 tered under federal iaw "is guilty of joe;;;Mry, and shall be punished * * * * and shall, 
 moreover, thereafter be incapable of giving testimony in any court of the United States until 
 such time as the judgment against him i^ reverssd.^^ 
 
 Under a similar statute formerly in force in N. T. (3 R. S.. 681, §1), it was held that a person 
 convicted of perjury remains incompetent, notwithstanding subsequent pardon. N. Y. 
 Supreme Court, 1851, Honghtalingj). Kelderhouse, 1 Park. Cr., 241 ; N. Y. Chan., 1816, Hold- 
 ridge V. Gillespie, 2 Johns., Ch. 30. 
 
 A statnte disqualifying one who has been " sentenced " does not disqualify one who has been 
 convicted but not sentenced. See People r. McGloin, 91 N. Y., L41. 
 
•is Abbott's Select Cases on Examining Witnesses. 
 Logan V. United States, 144 U. S., 363. 
 
 The United States Circuit Court holding the present trial 
 being held in Texas, the defendant's counsel relied, in support 
 of his objection to this testimony, upon the fact that the Statute 
 of Texan expressly disqualifie.d all persons convicted of felony 
 " in this state or amj other j iirisdiGtion, unless * * * the 
 convict has been legally pardoned for the crime of which he was 
 convicted." 
 
 Under this statute counsel claimed that Ma/rtin, convicted in 
 North Carolina, was expressly excluded, and that Spear, not 
 having been pardoned till after full punishment, and being 
 called to testify as to facts 0C3urring before pardon, could not be 
 deemed restored to competency. 
 
 The U. 8. Circuit Court overruled all these objections and 
 admitted the testimony of both witnesses as to material facts, in- 
 structing the jury that the conviction and sentence went only 
 to their credibility. The jury found the defendant Logan and 
 two of the others guilty of the conspiracy charged, and not 
 guilty of murder. 
 
 The U. S. Supreme Court held the ruling of the Circuit Court 
 as to the competency of the witnesses. Spear and Martin, not 
 error ; but reversed the judgment and directed the Circuit Court 
 to order a new trial, on other grounds. 
 
 Gray, J. [ On the question of oompetenoy of Spear and Mar- 
 tiii] : In support of the objection to the competency of the two 
 witnesses who had been previously convicted and sentei^ced for 
 felony, the one in North Carolina and the other in Texas, the 
 plaintiffs in error relied on article 730 of the Texas Code of 
 Criminal Procedure of 1879, which makes incompetent to testify 
 in criminal cases " all persons who have been or may be con- 
 victed of felony in this state or in any other jurisdiction, unless 
 such conviction has been legally set aside, or unless the convict 
 has been legally pardoned for the crime of which he was con- 
 victed." 
 
 By an act of the congress of the Eepublic of Texas of De- 
 cember 20, 1836, §1:1, ■' the common law of England, as now 
 practiced and understood, shall, in its application to juries and 
 to evidence, be followed and practiced by the courts of this 
 Eepublic, so far as the same may not be inconsistent with this 
 
I. Competency. (9) Felon. 49 
 
 Logan V. United States, U4 U. S., 363. 
 
 act, or any other law passed by this congress." I. Laws of 
 Eepublic of Texas (ed. 1838), 156. That act was in force at the 
 time of the admission of Texas into the union in 1845. The 
 first act of the state of Texas on the incompetency of witnesses, 
 by reason of conviction of crime, appears to have been the 
 statute of February 15, 1858, c. J 51, by which all persons con- 
 victed of felony, in Texas or elsewhere, were made incompetent 
 to testify in criminal actions, notwithstanding a pardon, unless 
 their competency to testify had been specifically restored. Gen- 
 eral Laws of 7th Legislature of Texas, 242 ; Oldham & White's. 
 Digest, 640. That provision was afterwards put in the shape in 
 which it stands in the Code of 1879, above cited. 
 
 The question whether the existing statute of the state of 
 Texas upon this subject is applicable to criminal trials in the 
 courts of the United States, held within the state, depends upon 
 the construction and the efEect of section 858 of the Eevised 
 Statutes of the United States, which is as follows : " In the 
 courts of the United States no witness shall be excluded in any 
 action on accoimt of color, or in any civil action because he is a 
 party to or interested in the issue tried : provided, that in actions 
 by or against executors, administrators or guardians, in which 
 judgment may be rendered for or against them, neither party 
 shall be allowed to testify against the other as to any transac- 
 tion with, or statement by, the testator, intestate or ward, unless 
 called to testify thereto by the opposite party or required to 
 testify thereto by the court. In all other respects, the laws of the 
 state in which the court is held shall be the rules of decision as 
 to the competency of witnesses in the courts of the United 
 States in trials at common law and in equity and admiralty." 
 
 In the provision, at the beginning of this section, 1hat '-in the 
 courts of the United States no witness shall be excluded in any 
 action on account of color, or in any civil action because he is a. 
 party to or interested in the issue tried," the distinction between 
 " any civil action " in the second clause, and " any action " in 
 the first clause, shows that the first clause was intended to in- 
 clude criminal actions, or, as they are more commonly called, 
 criminal cases ; while the second clause was in terms restricted to 
 civil actions only. Green v. United States, 9 Wall., 655, 658. 
 
50 Abbott's Select Cases on Examining Witnesses. 
 
 Logan V. United States, 144 U. S., 363. 
 
 And were the whole section to be considered by itself, without 
 reference to previous statutes and decisions, " trials at common 
 law," in the final clause of the section, might also be held to in- 
 clude trials in criminal, as well as in civil cases. 
 
 But the history of congressional legislation and judicial ex- 
 position on this subject renders such a construction impossible. 
 
 By the Judiciary Act of -September 24, 1Y89, c. 20, § 34, it 
 was enacted " that the laws of the several states, except where 
 the constitution, treaties or statutes of the United States shall 
 otherwise require or provide, shall be regarded as rules of de- 
 cision in trials at common law in the courts of the United 
 States in cases where they apply." I. Stat. 92. Although that 
 section stood between two sections clearly applicable to criminal 
 cases, it was adjudged by this court at December term. 1851, upon 
 a certificate of division of opinion in the Circuit Court, directly pre- 
 senting the question that the section did not include criminal trials, 
 or leave to the states the power to prescribe and chauge from time 
 to time the rules of evidence in trials in the courts of the United 
 States for offences against the United States. Chief Justice 
 Taney, delivering the unanimous judgment of the court, said: 
 " The language of this section cannot upon any fair construction 
 be extended beyond civil cases at common law, as contradis- 
 tinguished from suits in equity. So far as concerns rights of 
 property, it is the only rule that could be adopted by the courts 
 of the United States, and the only one that congress had the 
 power to establish. And the section above quoted was merely 
 intended to confer on the courts of the United States the juris- 
 diction necessary to enable them to administer the laws of the 
 states. But it could not be supposed, without very plain words 
 to show it, that congress intended to give to the states the 
 power of prescribing the rules of evidence in trials for offences 
 against the United States. For this construction would in effect 
 place the criminal jurisprudence of one sovereignty under the 
 control of another. It is evident that such could not be the de- 
 sign of this act of congress." "The law by which, in the 
 the opinion of this court, the admissibility of testimony in 
 criminal cases must be determined, is the law of the state, as it 
 was when the courts of the United States were established by 
 
I. Competency. (9) Felon. 51 
 
 Logau V. United States, 144 U. S., 263. 
 
 the Judiciary Act of 1Y89." " The coitrts of the United States 
 have uniformly acted upon this construction of these acts of 
 congress, and it has thus been sanctioned by a practice of sixty 
 jears." ijnited States v. Reid, 12 How., 361, 363, 366. 
 
 In 1862, congress enacted that " the laws of the state in 
 which the court shall be held shall be the rules of decision as to 
 the competency of witnesses in the courts of the United States 
 in trials at common law, in equity, and in admiralty." 12 Stat., 
 5SS. By a familiar rule, the words "trials at common law" in 
 this statute are to receive the construction which had been judicial- 
 ly given to the same words in the earlier statute relating to the 
 same subject. The Abbotsford, 98 U. S., ilO ; United States v. 
 Mooney, 116 U. S., 104; In re Louisville Underwriters, 131 U. 
 S., 488. They have received that construction in several of the 
 Circuit Courts. United States v. Hawthorne, 1 Dillon, 422; 
 United States v. Brown, 1 Sawyer, 531, 538 ; United States v. 
 Black, 1 Fox, 570, 571. The question has not come before this 
 court, probably because there never was a division of opinion 
 upon it in a Circuit Court, which was the only way, until very 
 j-ecently, in which it could have been brought up. 
 
 The provision, " that in the courts of the United States there 
 shall be no exclusion of any witness on account of color, nor in 
 civil actions because he is a party to or interested in the issue 
 tried," was first introduced in 1864 in the Sundry Civil Ap- 
 propriation Act for the year ending June 80, 1865, as a proviso 
 to a section making an appropriation for bringing counterfeiters 
 -to trial and punishment. Act of July 2, 1864, c. 210, § 3 ; 
 13 Stat., 351. That proviso, as already suggested, included 
 criminal cases in the first clause, as distinguished from the 
 second. But it had no tendency to bring criminal cases within 
 the general provision of the act of 1862. 
 
 The proviso as to actions by or against executors, adminis- 
 trators or guardians, was added, by way of amendment to 
 section 3 of the appropriation act above mentioned, by the act 
 of March 3, 1865, c. 113. 13 Stat., 533. This proviso had 
 ■evidently no relation to criminal cases. 
 
 The combination and transposition of the provisions of 1862, 
 1864, and 1865, in a single section of the Revised Statutes, put- 
 
52 Abbott's Select Cases on Examining Witnesses. 
 
 Logan V. United States, 144 U. S., 363. 
 
 ting the two provisos of tlie later statutes first, and the general 
 rule of the earlier statute last, but hardly changing the words of 
 either, except so far as necessary to connect them together, 
 cannot be held to have altered the scope and purpose of these 
 enactments, or of any of them. It is not to be inferred that, 
 congress, in revising and consolidating the statutes, intended to 
 change their effect, unless an intention to do so is clearly 
 expressed. Potter v. National Bank, 102 U. S., 163 ; McDonald 
 V. Hovey, 110 U. S., 619 ; United States v. Ryder, 110 U. S., 
 T29, Y40. 
 
 It may be added that congress has' enacted that any person 
 convicted of perjury, or subornation of perjury, under the laws, 
 of the United States, shall be incapable of giving testimony in 
 any court of the United States until the judgment is reversed ; 
 Rev. Stat., § § 5392, 5393 ; and has made specific provisions as 
 to the competency of witnesses in criminal cases, by permitting: 
 a defendant in any criminal case to testify on the trial, at his 
 own request ; and by making the lawful husband or wife of the 
 accused a competent witness in any prosecution for bigamy, 
 polygamy, or unlawful cohabitation. Act of March 16, 1878, c. 
 37 ; 20 Stat, 30 ; Act of March 3, 1887, c. 397 ; 24 Stat., 635. 
 
 For the reasons above stated, the provision of section 858 of 
 the Revised Statutes, that " the laws of the state in which the 
 court is held shall be the rules of decision as to the competency 
 of witnesses in the courts of the United States in trials at 
 common law, and in equity and admiralty," has no application 
 to criminal trials ; and, therefore, the competency of witnesses in 
 criminal trials in the courts of the United States held within 
 the state of Texas is not governed by a statute of the state 
 which was first enacted in 1868, ibut, except so far as congress 
 has made specific provisions upon the subject, is governed by 
 the common law, which, as has been seen, was the law of Texas 
 before the passage of that statute and at the time of the admis- 
 sion of Texas into the union as a state. 
 
 At common law, and on general principles of jurispradence^ 
 when not controlled by express statute giving effect within the 
 state which enacts it to a conviction and sentence in another 
 state, such conviction and sentence can have no effect, by way 
 
I. Competency. (9) Felon. 53 
 
 Logan V. United States, 144 U. S., 363. 
 
 of penalty, or of personal disability or disqualification, beyond 
 the limits of the state in which the judgment is rendered. 
 "Wisconsin v. Pelican Ins. Co., 127 U. S., 265 ; Commonwealth 
 V. Green, IT Mass., 515 ; Sims v. Sims, 75 K Y., 466 ; National 
 Trust Co. V. Gleason, 77 N. Y., 400 ; Story on Conflict of Laws, 
 § 92 ; 1 Greenl. Ev., § 376. It follows that the conviction of 
 Martin in North Carolina did not make him incompetent to 
 testify on the trial of this case. 
 
 The competency of Spear to testify is equally clear. He was 
 convicted and sentenced in Texas ; and the full pardon of the 
 governor of the state, although granted after he had served out 
 his term of imprisonment, thenceforth took away all disqualifi- 
 cations as a witness, and restored his competency to testify to 
 any facts within his knowledge, even if they came to his knowl- 
 edge before his disquahfication had been removed by the 
 pardon. Boyd v. United States, 142 II. S., 450 ; United States 
 V. Jones (before Mr. Justice Thompson), 2 Wheeler Crim. Cas. 
 451, 461 ; Hunnicutt v. State, 18 Tex. App., 498 ; s. c. 51 Am. 
 E. 330 ; Thornton v. State, 20 Tex. App., 519. 
 
 Whether the conviction of either witness was admissible to 
 affect his credibility is not before us, because the ruling on that 
 question was in favor of the plaintiffs in error. 
 
54 Abbott's Select Cases on Examining Witnesses. 
 
 Note on the Removal of the Disqualifications of Felons. 
 
 NOTE ON THE EEMOVAL OF THE DISQUALIFI- 
 CATIONS OF FELONS. 
 
 At common law neither mere verdict of guilty, nor plea of 
 guilty, unless followed by sentence, disqualifies one from testify- 
 ing as a witness. People v. McGloin, 12 Abb. N. C, 172 ; s. c. 
 91 N. Y., 241. The rule was the same under the New York and 
 Massachusetts statutes. Ih. Fay v. Harlan, 128 Mass., 244. 
 
 Modern statutes have removed this disqualification (for New 
 York statute see N. Y. Code Crim. Pro., §413). 
 
 And such a statute applies even though the felony was perjury, 
 and perjury committed in the same matter. People v. O'Neil, 
 109 N. Y., 251, 266. 
 
 Under such statutes the previous conviction for crime of one 
 called as a witness, may, for the purpose of affecting the credit 
 due to his testimony, be shown, either by the record or by his 
 cross-examination, upon which he must answer any question 
 relevant to that inquiry ; and the party cross-examining him is 
 not concluded by his answer to such a question. People v. Mc- 
 Gloin {alove cited). So held under N. Y. Code Civ. Pra., 
 §2832. Comm. v. Ford, 15 Northeast. Kep., 153. 
 
 "Where a felon is incompetent, oral evidence of his convic- 
 tion, etc., drawn out on his cross-examination without objec- 
 tion, is sufficient to entitle the objecting party to have his testi- 
 mony struck out. People v. Perry, 86 N. Y., 353. 
 
 The record of a former conviction received in evidence can- 
 not be contradicted by testimony that the convict was innocent. 
 Comm. V. Gallagher, 126 Mass., 54. S. P., Myers v. State, 92 
 Ind., 390 (holding that it cannot be attacked collaterally). 
 
 For recent cases on the removal of the Disqualification by 
 Statute, see the following : 
 
 Florida: Williams v. Dickenson, 28 Fla., 90; s. c. 9 
 Southern Eep., 847 (conviction for statutory offense of house 
 burning does not disqualify). 
 
 Georgia: Brunswick, etc., E. Co. v. Clew, 1888, 7 South- 
 east. Eep., 84 (Ga. Code §3854). 
 
I. Competency. (9) Felon. 55 
 
 Note on the Removal of the Disqualifications of Felons. 
 
 Kentucki/ : Coramoiiwealtli v. Minor, 1890, 13 Southwest. 
 Rep., 5 (Ky. Gen. Stat. C. 29, Art. S) ; Commonwealth v. Mc- 
 Qnire, 81 Xy., 57. 
 
 Louisiana : State v. McManus, 42 La. Ann., 194 (La. Act, 
 1886, No. 29); State v. Mock, 41 id., 1079. 
 
 JS^eio Yorl^: People v. O'Neil, 48 Hun, 36; Affd. in 16 
 Northeast. Eep., 68 (under IST. Y. Penal Code, §714, even con- 
 viction for perjury does not disqualify). 
 
 Tennessee: Rayland v. State, 1888,7 Southwest. Eep., 456 
 (Tenn. Acts, 1887, C. 79, §1). 
 
 United States : United States v. HoUis, 43 Fed. Rep., 248 
 (imder 20 XJ. S. Stat, at large, 30, permitting accused to testify 
 in Ms own behalf does not rendej him competent if previously 
 convicted of an infamous crime) ; but compare Ransom v. State 
 (Ark. 1887), 4 Southwest. Rep., 658. 
 
 CoJnricTioN-. — Missouri: State v. Rose, 1887, 4 Southwest. 
 Rep., 733 (imless the witness is identified as the person named 
 in the record of conviction, he may testify). 
 
 Tex'-is: Petner v. State, 1887, 5 id., 210 (conviction in 
 another state disqualifies under Tex. Code Crim. Pro., §730)., 
 Jones V. State, Tex. App., 1893, 22 Southwest. Rep., 404, (be- 
 fore sentence is actually pronounced or pending an appeal from 
 a sentence of conviction, the accused is not a convict as defined 
 by Tex. Pen. Code, Art. 27, and is not therefore disqualified as a 
 witness) ; contra, Woods v. State, 26 Tex. App., 490 ; s. c. 10 
 Southwest. Rep., lOS. 
 
 United States : United States v. Hall, D. C, 1893, 53 Fed. 
 Rep., 352 (upon a criminal trial in a federal court in Pennsyl- 
 vania, a person convicted of murder by a court of that state is 
 disqualified as a witness. 
 
 Vi't-ginia : Brown v. Commonwealth, 86 Va., 935 ; s. c. 11 
 Southeast. Rep., 759 (one found guilty of a felony, biit not sen- 
 tenced, is not disqualified as a witness). 
 
56 Abbott's Select Cases on Examining "Witnesses. 
 People V. Dohring, 59 N. Y., 374. 
 
 PEOPLE OF THE STATE OF NEW YOKK v. DOHEING. 
 
 JVew York Court of Appeals, 187 J^. 
 [Reported in 59 N. Y., 374.] 
 
 It seems that a juror may be a witness on the trial before himself and his 
 fellows, first being- sworn as a witness, besides having been sworn as 
 a juror. 
 
 It seems that where the judge is actually trying the cause and his presence 
 is necessary to constitute the court, he cannot against objection testify 
 as a witness in such cause. 
 
 A justice of the peace, while sitting as an associate judge in the Court of 
 Session on the trial of a prisoner, was examined as a witness, and gave 
 material evidence in the case without objection. Held, that though 
 [reviewing authorities] this ^as error for which conviction might 
 have been reversed had exception been taken, yet the court did not 
 thereby lose jurisdiction ; for all the component parts of the court 
 remained present taking part in the ti-ial. 
 
 The defendant, Charles Dohring, was indicted at the Court of 
 Sessions for rape committed upon one Frederica Brussow, a girl 
 of about fourteen years of age, while she was living with him as ' 
 a servant. 
 
 The power to hold Court of Sessions is given by the constitu- 
 tion of the state of New York (article YI, § 15) in these words : 
 
 "The county judge, with two justices of the peace, to be 
 designated according to law, may hold Courts of Session, with 
 such criminal jurisdiction as the legislature shall prescribe, and 
 he shall perform such other duties as may be required by law." 
 
 At the trial, Alden S. Baker, one of the judges, was called from 
 the bench to the stand as a witness on the part of the prisoner, 
 and also recalled by the prosecution, and he gave substantial 
 testimony during the progress of the trial, without objection. 
 
 In the Court of Sessions defendant was convicted. 
 
 The Supreme Court at General Term reversed the judgment, 
 being of the opinion that while Justice Baker was upon the wit- 
 ness stand, there was no lawfully constituted court. It was dis- 
 organized by calling him from the bench and subjecting him to 
 examination as a witness, and there was no court to pass upon the 
 
I. Comj>ctencij. (10) Judge ; Juror. 5Y 
 
 People V. Dohring, 59 N. Y., 374. 
 
 questions relating to the admissibility of evidence or any other 
 question. 
 
 The Court of Appeals, while overruling this point, affirmed 
 the judgment on other grounds. 
 
 FoLGEE, J. [on th is point, said] : It has been held that the two 
 justices of the sessions are indispensable to constitute a legally 
 organized Court of Sessions, and that neither can be dispensed 
 with any more than the county judge. (Blend v. The People, 
 il IST. Y., 604). The question there arose, however, upon objec- 
 tion and exception taken by the plaintiff in error, and was passed 
 upon as an error, and not as a matter affecting the jurisdiction 
 of the court. The court was held disoi'ganized, by one of the 
 justices of sessions who had taken part in the proceedings on 
 the trial for a time, after that, absenting himself from the place 
 where the court was held, and not reappearing. It is said there, 
 that it was not the case of a member of the court leaving the 
 bench for a few moments, intending to return, but a total aban- 
 donment of the trial, in consequence of which one-third of the 
 court was changed. It there appears that another justice of the 
 peace was called by the circuit judge to the vacant place. 
 
 In the case in hand, the justice of the sessions who was sworn 
 as a witness did not leave the court room while the trial was pro- 
 gressing ; he did not abandon the trial ; he left the bench for a 
 space, intending to soon return to it, and did soon return. The 
 mere absence from the bench, while he was in the witness box, 
 did not bring this case within that above cited. If the ISliagara 
 County Sessions lost jurisdiction of this case, it was not because 
 any of the members of the court were not present at the trial, 
 ready to perform the duty assigned to them by the laws.. The 
 court had, in the first instance, obtained jurisdiction and was in 
 the exercise of it. Did it lose it because one of its members was 
 called from his p.lace on the bench to stand for a time in the wit- 
 ness box and give testimony 1 We are inclined to think that it 
 was error to permit him to take his place and be sworn and tes- 
 tify, as a witness. It was erroneous, not because in this instance 
 any' harm came either to the people or to the defendant, for 
 neither made objection, and Ijoth consented ; but because such 
 
68 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Dohring, 59 N. Y., 374 
 
 practice, if sanctioned, may lead to unseemly and embarrassing 
 results, to tHe hindering of justice, and to the scandal of the 
 courts. Thus, it has been sanctioned that two of the members of 
 a court constituted by especial commission, might be sworn and 
 testify as witnesses against one on trial befqre it. But in that 
 case it would seem that without them there was a court of legal 
 fullness and capacity to conduct the business ; for they did not, 
 after being imjyroved as witnesses, return to their seats on the 
 bench. (Rex v. Hacker, Kel., fol. 12, cited in Hawk, P. C, Chap. 
 46, § 17.) It is asserted that in Reg. v. Lee, and Reg. v. Blunt (1 
 St. Tr., 1403, 1415), in the year 1600, Poph^m, Ch. J., was both 
 judge and witness ; but one would not wish to build on the pre- 
 cedents alone of those trials in those times. "When a nobleman 
 is tried by the house of lords, any of the peers is a competent wit- 
 ness. (Lord Stafford's Case, 7 How. St. Trials, 1384, 1458, 1552; 
 Earl of Macclesfield's Case, 16 id., 1252, 1391). In those cases, 
 certain lords were not only witnesses, but afterward^ gave their 
 votes upon tlie question, guilty or not guilty. But the same 
 reason was there, that without them, peers enough were present 
 to form a court ; an additional reason is given also, that they acted 
 in the capacity of jurors as well as of judges; and it is settled, 
 that a juror may be a witness on a trial before himself and his 
 fellows, first being sworn as a witness, besides his oath as a juror. 
 (Rex V. Rosser, 7 C. & P., 648 ; Manley v. Shaw, Car. & M., 
 361 ; Anon., 1 ; Salk., 405 ; Bennett v. Hundred of Hartford, 
 Styles, 233 ; Fitz James v. Moyes, Siderfin, 133.) But where 
 the judge, who is called to the witness box, is actually trying the 
 cause, and his continuance in action as judge is necessary to the 
 seemly and proper trial of the cause, then he may not become a 
 witness; it is error so to do, and if objection be made, and 
 exception taken, it is fatal error. In North v. Champernoon 
 . (Cases in Ch., pt. 2, p. 78), it was held : If a commissioner in a 
 cause be himself examined as a witness, he must, be first 
 examined ; and if others be before him examined in his pre- 
 sence, he cannot be afterward examined, having heard the 
 former examinations. A commissioner, who had so done, came 
 up afterward and was examined in court ; but his deposition 
 was suppressed on motion. 
 
I. Competency. (10) Judge ; Juror. 59 
 
 People V. Dohring, 59 N. Y., 374. 
 
 In Eoss V. Buhler (2 Martin [IST. S.,J [La.J, 312), it was held, 
 that one cannot be examined as a witness at a trial where he sits 
 as judge. One of the reasons there given does not apply to the 
 case in hand. It was asked there, who is to administer the oath ? 
 But that was done in the court below, in the case in hand, by 
 the clerk. It is though, as applicable in this case as that, the 
 consideration that the judge is to determine on his own com- 
 petency, and whether to give a non-suit in a civil case, or to 
 instruct the jury to acquit in a criminal one. (The People v. 
 Bennett, 49 IST. Y., 137.) Other considerations may be added. 
 If a judge is put upon the stand as a witness, he has all the 
 rights of a witness, and he is subject to all the duties and liabili- 
 ties of a witness. It may chance, that he may, for reasons suffici- 
 ent for himself, but not sufficient for another of equal authority 
 in the court, decline to answer a question put to him, or in 
 some other way bring himself in conflict with -the court. Who 
 shall decide what course shall be taken with him ? Shall he 
 return to the bench and take part in disposing of the interlocu- 
 tory question thus arising, and upon the decision being made, go 
 back to the stand, or go into custody for contempt ? The first 
 would be unseemly, if not unlawful, for it would be passing 
 judicially upon his own case. The last would disorganize the 
 court and suspends its proceedings. Other like results may be 
 conceived as possible, equally as contrary to the good conduct of 
 judicial proceedings. (Eeg. v. Gazard, 8 C, & P., 595 ; see an 
 interesting footnote, 1 Campbell's Lives, Ch. Jus., 166.) There- 
 fore the inclination of the courts has been to hold, that when it is 
 necessary for the conduct of the trial that one should act as judge, 
 he may not be called from the bench to be examined as a witness; 
 but when his action as a judge is not required, because there is a 
 sufficient court without him, he may become a witness ; though it 
 is then decent that he do not return to the bench. (See, also 
 People V. Miller, 2 Park. Or., 197 ; Morss v. Morss, 11 Barb., 510.) 
 
 In the case here, the justice of the sessions, who was examined 
 as a witness was a necessary part of the court, without whose 
 continued presence and assisting action it would have been 
 broken up, as we have seen from Blend v. People {sujyra). It 
 was erroneous for him to become a -witness in the case. 
 
60 Abbott's Select Cases on Examining Witnesses. 
 People V. Dohring, f59 N. Y., 374. 
 
 The error is not available here, because he was examined by 
 the consent of the People and the prisoner. 
 
 But the fact is not relied upon as error. A more fundamental 
 position is taken. It is insisted that the court became no court, 
 and the county judge and the other justices of the sessions lost 
 jurisdiction of the case. 
 
 "We are not of that mind. All the constituents of the Court of 
 Sessions were together in one place. All and each were ready 
 and able to perform each and every duty incumbent upon them. 
 That one of the members of the court was not in the place in 
 the room customary for one to occupy holding his office, did not 
 disorganize and disrupt the court. If so, a temporary absence 
 from the bench for any purpose would work the same result ; 
 Blend v. People {supra) pronounces against such effect. 
 
 We have seen that a juror may be sworn and give his testis 
 mony to the court and to his fellows without breaking up the 
 panel, yet he for the moment may be out of the jury box and 
 performing a double duty, rendering his testimony as a witness, 
 and noting its effect in aiding or abating the force of that which 
 had gone before it. 
 
 The attitude of a judge standing as a witness is not different 
 in result upon his judicial function. He still retains it and is 
 still in the exercise of it, still has his jurisdiction of the case be- 
 fore him, together with his fellows on the bench. All of the 
 component parts of the court are present together and co-opera- 
 ting, all the requisites of jurisdiction still exist as lively as when 
 the trial began. There was no physical impossibility, as there 
 was in Blend v. The People {supra), in Justice Baker at any 
 moment on the arising of a question asking a. decision from the 
 bench, joining with the other members of the court in arriving 
 at and pronouncing it. 
 
 Cancemi's Case (18 N. Y., 128), and others (The People r- 
 Campbell, 4 Park., .386 ; Grant v. The People, id., 527), are 
 cited. They are not applicable. In the first, confessedly, there 
 was not present for a part of the trial, nor on the rendition of 
 the verdict, a full and constitutional panel of jurors. One had 
 been withdrawn from the panel and had been dismissed from the 
 case, and but eleven remained doing the duty which by law could 
 
I. Competency. (10) Judge ; Juror. 61 
 
 People V. Dohring-. 59 N. Y., 374. 
 
 be done only by twelve. It was held that consent in a criminal 
 case would not give jurisdiction to a tribunal not known to the 
 law. The People v. Campbell, is like it. It holds that where a 
 court is without jurisdiction, consent cannot give it in a criminal 
 case. Grant v. The People, holds that an issue upon a special 
 plea to an indictment can only be tried by a jury, and consent 
 cannot give jurisdiction to the cotu-t to try it without a jury. 
 But here, as we have shown, the tribunal created by the law, 
 had regularly acquired jurisdiction of the case, and remaining 
 in due and orderly session, retained it to the end, without aid 
 from the consent of the parties, or either of them. 
 
62 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Incompetency of Husband and Wife. 
 
 ISTOTE ON THE EEMOYAL OF THE HSTCOMPE- 
 TENCY OF HUSBAND AND WIFE. 
 
 The competency of husband or wife to testify for or against 
 each other is now regulated by statute creating a few exceptions. 
 For the New York Act as to Civil Cases, see Code Civ. Pro., 
 § 831 ; as to Criminal Cases, Penal Code, § Y16. 
 
 If the parties to the marriage have been divorced, the incom- 
 petency, if resulting from the marriage, even in the excepted 
 cases, is at an end. 
 
 The dissolution may be proved by the record of the divorce, 
 which it seems is the only competent primary evidence of it ; and 
 such judgment cannot be excluded either for error or irregu- 
 larity in its recovery. 
 
 Wottrich V. Freeman, Tl N. Y., 601 (husband's action against 
 paramour for crim. con., supported (after divorcing his wife, and 
 proving the divorce by the record), by calling her to testify to 
 the marriage and also to prove the charge in the complaint. 
 
 If secondary evidence were not objected to by either the party 
 or the witness, it would be sufficient. See Perry v. People, 86 
 N. Y., 353. 
 
I. Competency. (11) Husband and Wife. 63 
 
 People V. Wood, 126 N. Y., 249. 
 
 THE PEOPLE OF THE STATE OF NEW YOEK v. 
 
 WOOD. 
 
 New York Court of Appeals, 1891. 
 
 [Reported in 126 N. Y., 249.] 
 
 The statute (N. Y. Penal Code, § 715) removing the common law dis- 
 qualification of husband and wife to testify for or against each other, 
 but adding that neither " can be compelled to disclose " a confidential 
 communication, etc.,— the privilege is not the personal privilege of 
 the witness ; but the other spouse, if a party, may object. 
 
 Where the wife was asked to disclose such a communication, while testify- 
 ing- on the trial of an indictment against her husband, held, that it 
 was error to overrule the objection of the husband, and put her to a 
 claim of privilege thus extracting a quasi admission that the commu- 
 nication might be evidence hurtful to the husband. 
 
 Defendant was indicted for murder for killing Leander Pasco 
 by shooting while he was passing by the roadside. Upon the trial, 
 Mattie Wood, the wife of defendant, called as a witness for 
 defendant, was asked by one of the trial judges, by way of 
 cross-examination : " Did Cal on this occasion say to you that he 
 wanted to go up to his father's, and he wanted you to go along 
 with him ? " 
 
 Defendant's counsel objected to this as incompetent, calling 
 for a confidential communication between husband and wife, and 
 within Code Grim. Pro. , § 715. 
 
 The Court : " I think the objection lies with the witness who 
 is called, and the witness should be instructed in relntion to it." 
 
 Defendant's counsel declines to give any instruction to the 
 witness, and stands upon his objection as above set forth. 
 
 The court overruled the objection but at the same time said 
 to the witness : " You need not answer the question in regard 
 to the conversation, with your husband, unless you choose ; you 
 may or may not refuse to answer, as you choose." 
 
 Defendant excepted to the admission of the question and. also to 
 the i-uling that it is not a ground of objection, but is a personal 
 privilege of the witness. Question repeated. 
 
64 Abbott's Select Cases on Examining "Witnessks. 
 
 People V. Wood, 126 N. Y., 349. 
 
 Tlie Court to witness : You may answer that or not just as 
 you choose. 
 
 A. I don't wish to answer. 
 
 Peckham, J. [after reviewing other ohjeotions] : We think 
 that other errors were committed upon the trial. 
 
 One was in regard to the right of the defendant to object to 
 his wife giving any evidence of confidential communications from 
 the defendant, her husband, to her. The court held that it was 
 not the right of the defendant to take the objection, but that it 
 was the personal privilege of the wife, and she was put to her 
 election whether she would answer or not, and she thereupon 
 declined to answer. To this ruling the defendant objected and 
 duly excepted. I think the decision, while, as a result, keeping 
 out the alleged confidential communications, yet did so by im- 
 properly extracting, a quasi admission from the wife that the 
 communication M^as of a nature to hurt the defense. If the de- 
 fendant had the right to object, and to thus relieve the witness 
 from any such partial admission, I think the exception was good, 
 and not merely of a technical nature. Perhaps the judgment would 
 not be reversed for that error, because it would seem that the 
 communications had already substantially been proved. But I 
 believe the ruling was in its nature erroneous. The common- 
 law rule that husband and wife cannot be witnesses for or 
 against each other has been modified by the Penal Code (§ 715). 
 That section makes a husband or wife of a person indicted or 
 accused of crime in all cases a competent witness, but ' ' neither 
 a husband nor wife can be compelled to disclose a confidential 
 communication made by one to the other during their marriage." 
 
 We are of the opinion that this section does not leave the 
 matter entirely to the discretion of the witness, but that the 
 other party interested may object to any such communication, 
 and that upon such objection being made the witness not only 
 cannot be compelled, but that he or she has no right to make 
 the disclosure. 
 
 All the judges concurred. 
 
 Judgment reversed on this and other grounds. 
 
» 
 
 I. Competency. (11) Husband and Wife. 65 
 
 Warner v. Press Publishing Co., 133 N. Y., 181. 
 
 WARNER V. PRESS PUBLISHING COMPANY. 
 
 Xew York Court of Aj^jJeals, 2d Div., 1892. 
 
 [Reported in 133 N. Y., 181.] 
 
 A question calling for a conversation between the witness and his wife, 
 the only object of the question being to show that she had expressly 
 or tacitly admitted to him improper relations between herself and a 
 third pereon, is incompetent for it calls on her to testify as to what 
 must be regarded as a confidential communication. 
 
 Action for libel, imputing unchastity. 
 
 The facts as to the question of evidence appear in the opinion 
 below. 
 
 The plaintiff recovered, and defendant appealed. 
 
 Paki.ee, J. [after ruling on an exception to the charge'] : Our 
 attention is called to but one other exception. 
 
 The libelous article suggests improper relations between the 
 plaintiff and one Smith, evidenced by letters from Smith to her. 
 She denied not only the charge, but all knowledge of the letters. 
 The defendant asserted the truth of the charges and insinuations 
 contained in the article, and in support of its contention called 
 the husband of the plaintiff, to whom the following questions 
 were propounded : 
 
 "Q. Had you any dispute with Mrs. Warner at any time 
 about Smith ? Q. Had you any conversation with Mrs. Warner 
 your wife, at any time in relation to a man by the name of 
 Frank Smith or F. Sidney Smith ? " 
 
 Objection was made that the evidence was incompetent under 
 ■section 831 of the Code of Civil Procedure, which provides that 
 " a husband and wife shall not be compelled or without the con- 
 sent of the other, if living, allowed to disclose a confidential com- 
 munication made by one' to the other during marriage." 
 
 The evidence offered could have no purpose useful to the de- 
 fendant unless it tended to show that during such a conversation 
 with her husband she said or did, or omitted to say or do some- 
 
66 Abbott's Selhct Cases on Examining "Witnesses. 
 
 Warner r. Press Publishing Co., 133 N. Y., 181. 
 
 thing, from which it might be inferred that there existed an un- 
 lawful intimacy between her and Smith. 
 
 A conversation on such a subject between husband and wife' 
 seems to us to be clearly within the protection of the statute. 
 
 The appellant calls our attention to the decision in Parkhurst 
 V. Berdell (110 JST. Y., 386-393), in which Judge Earl, in speak- 
 ing for the court, said : "What are confidential communications, 
 within the meaning of the section ? Clearly not all communica- 
 tions made between husband and wife when alone. They are such 
 communications as are expressly made confidential, or such as 
 are of a confidential nature, or induced by the marital relations.'' 
 
 Clearly, the definition given does not exclude such a conver- 
 sation as the defendant desired to prove from the protection of 
 the statute. Its nature was not only confidential, but it was. 
 apparently induced by the marital relation, for it cannot be con- 
 ceived that such a topic would have been the subject of discus- 
 sion but for the existence of such relation between the parties. 
 
 A further test by which to determine whether a communica- 
 tion is confidential is suggested by the learned judge in charac- 
 terizing the nature of the conversations sought to be excluded 
 in that case. He said : " They were ordinary conversations 
 relating to matters of business which there is no reason to sup- 
 pose he would have been unwilling to hold in the presence of 
 any person." 
 
 It cannot be supposed that both husband and wife would have 
 been willing to discuss such a subject in the presence of other 
 persons or would have consented to a repetition of the conversa- 
 tion by either party to it. Its nature and the relation of the 
 parties, forbade the thought of its being told to others, and the 
 law stamped it with that seal of confidence which the parties in 
 such a situation would feel no occasion to exact. 
 
 The wisdom of the statute was never more apparent than in 
 this case which exhibits the worthless husband in the attempted 
 role of a destroyer of the good name of the mother of his children 
 because she sought in the name of the law to compel him to con- 
 tribute towards her support and that of his children. 
 
 The judgment should be afiirmed. 
 
 All of the judges concurred. 
 
I. Competency. (11 ) Husband and "Wife. 6T 
 
 People r. Hayes, 140 N. Y., 484. 
 
 PEOPLE V. HAYES. 
 
 New Yorh Court of Appeals, January, 1891t,. 
 
 [Reported in 140 N. Y., 484.] " 
 
 The protection of privilege against tlie competency of a written confiden- 
 tial communication between husband and wife cannot be invoked by 
 either of them who has intentionally disclosed the communication by 
 delivering it to a third person. 
 
 A party who has united in a stipulation that all of the evidence of a witness 
 called by hiiu on a former trial shall be read ; the one who called 
 the witness to read the direct and the other the cross, but subject 
 to all legal objections, cannot refuse to read his part on the ground 
 that so doing would enable the other to read the corresponding cross- 
 examination which includes privileged matter ; for the reservation of 
 all legal objections must be understood to mean legal objections of 
 the party against whom the testimony was given. 
 
 If a numbei^ of letters are offered in evidence, it is not error to receive 
 them against a general objection to all, if some of them contradict a 
 witness, and might, as evidence, have some weight upon the question 
 of credibility. To render an exception available as against those not 
 material, separate objection should be made to them. 
 
 When a husband or a wife, to whom a written communication is made 
 by the other, makes it public by giving it to a third person, the confi- 
 dential character of the communication is gone, and the one guilty of 
 the breach of confidence cannot thereafter claim the privilege. 
 
 The rule against commenting on the omission of the accused in a 
 criminal case to testify in his own behalf, is not violated by giving the 
 jury to understand, in connection with that rule, that the prisoner had 
 a right to say in effect to the prosecution that they must prove their 
 case, and that in his judgment, the situation was such that he was not 
 bound to take the witness stand. 
 
 It is within the discretion of the trial judge to give a witness into custody, 
 even in the presence of the jury before the trial is concluded, because 
 of the character of his testimony. 
 
 Appeal from a judgment affirming a conviction on an indict- 
 ment for perjury in the making of a false affidavit used upon a 
 motion to open a default in a civil action. 
 
 The defaulted action was founded upon a promissory note for 
 $2,000, made by defendant and payable to the order of the 
 plaintiff therein, Annie M. Keating. 
 
 The defendant, for the purpose of opening that default, swore 
 to an affidavit that he never owed Annie M. Keating a dollar in 
 
68 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Hayes, 140 N. Y., 484. 
 
 his life ; that he never gave her a promissory note ; that he had 
 never seen the note, and knew nothing whatever about it. 
 
 The default was opened, and an answer was thereupon inter- 
 posed, setting up substantially the matter contained in the 
 affidavit. 
 
 At the trial upon the indictment the counsel for defendant 
 called the wife of the defendant as a witness, but before the 
 examination was concluded she became ill and was obliged to 
 retire. 
 
 The district attorney then offered to allow the testimony so 
 far given by Mrs. Hayes to stand as given, without cross-examin- 
 ation, provided, however, among other things, that the evidence 
 given by her upon a former trial of the indictment " shall be 
 used upon this trial with the same force and effect, and subject 
 to the same objections and exceptions as though it were actually 
 given in court with the witness in the chair." 
 
 The defendant's counsel said : " That the testimony stand as 
 given here, and that the testimony on the former trial is to be 
 read on this trial, subject to all legal objections, of course, and 
 exceptions ; and also, that the examination in chief and redirect 
 shall be read by our side, and the cross-examination and recross- 
 examination shall be read by the learned district attorney." 
 
 The Court : " That includes the entire testimony of the witness 
 on the former trial ? " 
 
 Defendant's Counsel : " Yes, sir." 
 
 District Attorney . " Subject to all legal objections and excep- 
 tions." 
 
 Subsequently, the defendant's counsel, after reading a portion 
 of the deposition, said : " ISTow, that next question we do not 
 wish to read, your Honor, because it was in reference to a question 
 that, I think, your Honor has ruled upon — referring to a matter 
 of belief." 
 
 District Attorney : " I submit that the entire examination 
 should be read, subject to objection and exception." 
 
 Defendant's Counsel : " The rule is, that we shall read the 
 whole of the examination, as far as we adopt it, and it is for the 
 court to rule upon our declination to read." 
 
I. Competency. (11) Husband and "Wife. 69 
 
 People V. Hayes, 140 N. Y., 484. 
 
 The Court : " I think you should read the entire examination 
 in chief, leaving you to make such objections as you think are 
 proper." 
 
 Exception taken. 
 
 One ISToah, a witness for the defense, admitted upon cross-ex- 
 amination that he had made a false certificate as a notary public 
 to the effect that Mrs. Hayes had appeared before him and 
 acknowledged the execution of an instrument, importing to have 
 been executed by her ; as a matter of fact, Mrs. Hayes had not 
 appeared before him. 
 
 At the end of his testimony, the learned judge said : " ISTow, 
 in view of the testimony of this witness, I have but one duty to 
 perform. I direct the officer to take this witness into custody." 
 
 Defendant's Counsel : " I object to your Honor's making that 
 public announcement." 
 
 The Court : " Take him into custody." 
 
 Defendant's Counsel: "At this time, because of its possible 
 effect upon the jury." 
 
 The Court : " Take him." 
 
 Defendant's Counsel : " And I earnestly and seriously protest 
 against such extraordinary efforts being made to obtain a convic- 
 tion. I solemnly declare, from my plaice at the bar, that I do 
 not believe that such a course, in the trial of a criminal, has been 
 adopted in a long time." 
 
 The Court: "I think the remarks of counsel are very im- 
 proper." 
 
 The jury found a verdict against defendant. 
 
 The Sapreme Court at General Term affirmed judgment 
 against him. 
 
 George M. Curtis, for appellant. 
 
 Henrij B. StajAer (De Lanceij Nicoll, district attorney) for 
 the respondents. 
 
 The Court of Ajtpeals affirmed the judgment. 
 
 Peckham. J. [after passing upon other suljeots'] : (3) There 
 were certain letters written to the defendant by his wife. These 
 
70 Abbott's Select Cases on Examining "Witnesses. 
 
 People V. Hayes, 140 N. Y., 484. 
 
 letters were offered by tlie People, and received in evidence 
 under the objection of the defendant, and it is now urged that 
 their admission was error for which a new trial should be 
 granted. The counsel for the defendant upon this trial had 
 called the wife of defendant as a witness, and she had broken 
 down in health before the examination was concluded, and became 
 ■so ill that it was impossible to take her examination at the house. 
 In order to obtain the benefit of her evidence in the ease the 
 defendant had to come to some understanding with the district 
 attorney, or the testimony already given would have to go out, 
 and nothing further could be admitted. Hence the stipulation 
 as to the reading of all the evidence of the witness taken upon 
 the former trial, subject to all legal objections. That meant the 
 legal objections of the party against whom the testimony was 
 given. "When the defendant read the . direct examination it was 
 subject to the legal objections which the district attorney might 
 make, and when the latter read the cross-examination it was sub- 
 ject to the legal objections thereto made by the counsel for the 
 defendant ; but each side was by the very terms of the stipula- 
 tion to read the whole of the direct or cross-examination, as the 
 case might be. The objection on this occasion was first made by 
 defendant's counsel, who refused to read the particular portion 
 of the direct examination, which, as the district attorney claimed, 
 rendered some portions of the subsequent cross-examination 
 (these particular letters included) admissible in evidence. The 
 court, because of the stipulation, committed no error in compel- 
 ling the reading of the evidence, and defendant's exception to 
 that ruling is not good. 
 
 Subsequently, when the district attorney offered the letters in 
 •evidence, the defendant's counsel objected to their introduction 
 upon the ground that they were confidential communications 
 from a wife to her husband and hence were inadmissible. Some 
 ■expressions in one or two of the letters were undoubtedly contra- 
 dictory of a portion of the testimony given by the witness upon 
 the first trial. That particular portion of the wife's evidence 
 the defendant had been compelled by the court to read. The 
 People were entitled to the benefit of whatever contradiction 
 there was. If some of the letters contained nothing by Avay of 
 
I. Coiiimtency. (11) Husband and Wife. 11 
 
 People V. Hayes, 140 N. Y., 484. 
 
 •contradiction, and hence miglit have been claimed to be inadmis- 
 sible for that reason, it is seen that there was no separate and dis- 
 tinct objection made to a particular letter that it contained no 
 contradictory matter. 
 
 The objection of immateriality made by defendant was upon 
 the ground that the letters only contradicted the Avitness upon 
 an imnaaterial matter, viz., her belief as to the paternity of the 
 child of the prosecutrix, Miss Keating, whether it was the child 
 of the witness' husband or his brother's. We think the letters 
 which contradicted the witness upon that question were properly 
 received in evidence, and there was no separate objection taken 
 to the others. Those which contradicted the witness might, as 
 evidence, have some weight upon the question of her credibility, 
 and the contradiction cannot be said to have been so plainly upon 
 an immaterial matter as to have rendered the admission of the 
 letters error on that ground. 
 
 The further ground of objection to their admission was that 
 they were confidential communications from a wife to her hus- 
 band. The answer to this objection is that the letters, after they 
 had been received by the defendant, were given by him to his 
 mistress, the prosecutrix, Annie M. Keating, and she subse- 
 quently delivered them to this district attorney by whom they 
 were ofEered in evidence. Comment upon the baseness of this 
 act of the defendant is unnecessary. It speaks for itself. The 
 result, however, is to release the letters from the operation of 
 the rule as to confidential communications between husband and 
 wife and to leave them open to use as evidence to the same extent 
 as if no such rule had ever guarded them. 
 
 The rule which protects confidential communications of this 
 nature was founded upon a wise public policy, adopted and pur- 
 sued for the purpose of encouraging to the utmost that mutual 
 confidence between husband and wife which is the sti-ongest 
 guaranty of a happy marriage. To this end the common law 
 provided that all communications between husband and wife 
 which were of a confidential nature should be kept inviolate and 
 should not be drawn from either party by any process of law. 
 (1 Stark, on Ev. M., p. 39; Greenl. on Ev. [lith ed.J § 254.) 
 The law appreciated the fact that even truth itself might be 
 
72 Abbott's Select Cases on Examining Witnesses. 
 
 People I'. Hayes, 140 N. Y., 484. 
 
 pursued too keenly and might cost too much. The general evil 
 of infusing reserve and dissimulation between parties, occupying 
 such relations to each other, would be too great a price to pay for 
 the chance of obtaining and establishing the truth in regard to 
 some matter under legal investigation. (1 Greenl. on Ev., § 240, 
 note a, citing Minet v. Morgan L. K [8 Ch. App.J 361.) The 
 case just cited related to confidential communications between 
 attorney and client, but the principles Are also applicable and 
 with added force to communications between husband and wife. 
 If, however, the privilege has been once waived by the parties, 
 it cannot be again invoked. It is personal, so that if one over- 
 hear such a communication he may testify to it, if it be otherwise 
 admissible in evidence. (Coram, v. Griffen, 110 Mass., 181 ; State 
 V. Center, 35 Vt., 378, 386 ; Eex v. Simons, 6 Car. & P. 540 ; 
 s. c. 25 Eng. Com. L. 565.) And when the husband or wife, 
 to whom a written confidential communication is addressed, 
 makes it public by giving it to another, the confidential character 
 of the communication has departed and it may be treated like 
 a,ny other communication and put in evidence if otherwise 
 admissible. (State v. Hoyt, 47 Conn., 518, 540; State v. Buffing- 
 ton, 20 Kans., 599, 613.) 
 
 In this case every reason upon which the rule rejecting a 
 confidential communication was originally founded is absent. 
 The letters were addressed by the wife to her husband, and he,, 
 deliberately violating every principle of honor and decency, gives 
 the letters to his mistress, by whom they were delivered to the 
 district attorney. A rule which would still preserve the confi- 
 dential character of these letters as against this husband would 
 be founded upon more sentiment than sense. 
 
 (4) • The charge of the learned judge in regard to the defend- 
 ant not going on the stand as a witness was not subject to legal 
 objection. The court told the jury that the defendant was not 
 bound to go on the stand, and that he could say to the prosecu- 
 tion " prove your case' against me ; it is my judgment that the 
 situation is such that I am not bound to talce the witness stand, 
 and the law gives me that right, and the law gives me that privi- 
 lege. I charge you that the law says there is no presumption to 
 be taken against a defendant by reason of the fact that he does 
 
I. Competency. (11) Husband and Wife. Y3" 
 
 People V. Hayes, 140 N. Y., 484. 
 
 not take the witness stand." The charge is criticised on the 
 gronnd, as alleged, that the'language which the judge put in the 
 mouth of the defendant amounted to a covert insinuation that 
 the situation was such that it would be disastrous to the defend- 
 ant if he took the stand. I think the criticism ill-founded. The 
 jury were plainly instructed as to the law and the rights of the 
 defendant. The insiuuation suggested would be unwarranted 
 from the language used. On the contrary, the natural interpre- 
 tation would be that the defendant regarded the situation as one 
 wholly lacking in proof of guilt, and he was under no obligation 
 to go on the stand and explain what as yet required no explana- 
 tion. The case of Ruloffe v. People (45 K Y., 213, 222) is 
 authority for the correctness of the course pursued by the learned 
 judge. 
 
 (5) The defendant's counsel complains also that one of the 
 witnesses for the defendant was committed to jail by the court 
 in the presence of the jury, because of the character of his evi- 
 dence given while on the stand as a witness. 
 
 This is not a question of legal error. The action of the court, 
 was within its power, and to be exercised within the sound dis- 
 cretion of the judge. 
 
 That it might have a bad efEect upon the jury and thereby 
 prejudice the defendant's case was one of the matters to be con- 
 sidered by the judge before making the order, but we do not. 
 think it was legal error to make the order under the circumstances. 
 
 We have carefully looked at and considered each and all the 
 other grounds for a new trial which are set forth and discussed 
 in the brief of the counsel for defendant, and we are quite clear 
 that they do not show any errors committed to the prejudice of 
 the defendant. 
 
 The judgment should be affirmed. 
 
 All the judges concurred, except Baetlett, J., not sitting. 
 
 Judgment affirmed. 
 
'14: Abbott's Select Cases on Examining Witnesses. 
 Notes of Cases on Confidential Communications. 
 
 NOTES OF EECENT CASES- OE" CONFIDENTIAL 
 COMMUNICATIONS BETWEEN HUS- 
 BAND AND WIFE. 
 
 California : Lloyd v. Pennie, 50 Fed. Eep., 4 (letters between 
 a husband and wife, found by tlie wife's administrator after the 
 death of both are not protected by Cal. Code Civ. Pro., § 1881) ; 
 People V. Mulliugs, 83 Cal., 138; s. c. 23 Pacific Eep., 229 (a 
 defendant in a criminal case, who has offered himself as a wit- 
 ness in his own behalf, but who has not testified in chief as to 
 any communication between himself and wife, his wife cannot, 
 without his consent, be examined by the state as to any such 
 communications). Connecticut : Spitz's Appeal, 14 Atlantic Rep., 
 776 (a wife in establishing her claim against her husband's estate 
 before insolvent commissioners may testify as to his representa- 
 tions made to induce her to advance her separate funds as a loan). 
 Florida : Henderson v. Chaires, 25 Fla., 26 ; s. c. 6 Southern 
 Eep., 164 (on trial of a plea in bar of dower, based on adulter- 
 ous conduct, the widow cannot be examined as to her confessions 
 of unfaithfulness to her husband in his lifetime). Indiana: 
 Stanley v. Montgomery, 102 Ind., 102 ; s. c. 26 Northeast. Rep., 
 213 (a widow cannot testify as to confidential communications 
 between herself and her deceased husband in his lifetime) ; 
 Stanley v. Stanley, 1887, 13 Northeast. Eep., 261 (in a wife's 
 action on a bond for her husband's good behavior, she may tes- 
 tify as to his intoxication in her presence) ; Bietman v. Hopkins, 
 1887, 9 Northeast. Eep., 720 (a wife may testify as to the nego- 
 tiations between herself and husband resulting in a conveyance 
 of real estate to her, to show a valid consideration therefor, 
 where it is sought to set aside the conveyance for fraud) ; Sage v. 
 Sage, 127 Ind. 15 ; s. c. 26 Northeast. Eep., 667 (in the prose- 
 cution of a husband as accessory to the murder of his child by 
 tis wife, the admission of evidence that the defendant and his 
 wife were in a room by themselves does not violate the rule as to 
 evidence of confidential communication between husband and 
 wife). Iowa: Eea v. JafEray, 1891, 48 Northwest. Eep., 78 
 {where a wife seeks to estabhsh a claim against her insolvent 
 
I. Competency. (11) Husband and Wife. Y5 
 
 Notes of Cases on Confidential Communications. 
 
 husband, the latter may testify as to the details of the transac- 
 tion -with his wife) ; Head v. Thompson, 77 la., 263 ; s. c. 42 
 Northwest. Kep., 188 (a wife's testimony as to what occurred 
 between herself and husband before the execution of a deed is 
 inadmissible). Kansas : French v. Wade, 35 Kan., 891 ; s. c. 
 11 Pacific Eep. , 229 (a widow's testimony as to communications 
 with her husband during marriage is inadmissible). Massachu- 
 setts: Lyon V. Prouty, 154 Mass., 488; s. c. 28 Northeast Pep., 
 908 (communications between husband and wife in the presence 
 of third persons are not privileged) ; Commonwealth v. Caponi, 
 1892, 30 Northeast. Pep., 82 (only private conversations between 
 husband and wife, and not written communications, are excluded 
 by Mass. Pub. Stat., C. 169, § 18, subd. 1) ; Commonwealth v. 
 Hayes, 1887, 14 Northeast. Pep., 151 (conversations between 
 husband and wife relating to business in which one acted as the 
 agent of the other are privileged) ; Commonwealth v. Cleary, 
 152 Mass., 491 ; s. c. 25 Northeast. Pep., 834 (upon the prosecu- 
 tion of a husband for the violation of the excise laws, where he 
 claims that the business was carried on by his wife, he cannot tes- 
 tify that he showed her that he was opposed to the selling of 
 liquor). Missouri: King v. King, 42 Mo. App., 454 (in a wife's 
 suit for divorce for cruelty she cannot testify as to epithets 
 spoken to her by defendant) ; Henry v. Sneed, 99 Mo., 407 ; s. 
 c. 12 Southwest. Pep., 663 (in an action to enjoin for fraud the 
 enforcement of a deed trust of the wife's lands, given to secure 
 her husband's notes, both husband and wife may testify as to con- 
 versations between themselves which formed a part of the res 
 gestae) ; State v. Ulrich, 18S2, 19 Southwest. Pep., 656 (upon a 
 trial for bigamy, letters by defendant to the woman, whom the 
 indictment charges to be defendant's lawful wife, are inadmis- 
 sible in evidence) ; Stillwell v. Patton, 1892, 18 Southwest. Pep., 
 1075 (a widow may testify as to her husband's signature from her 
 knowledge of his handwriting acquired before marriage) ; Hern- 
 don V. Triple Alliance, 45 Mo. App., 426 (under Mo. P. S., 1889, 
 § 8922, a widow, in an action upon an insurance pohcy upon 
 her deceased husband's life, cannot testify as to the husband's 
 acts and dec! arations in applying for the insurance). New York : 
 People V. Lewis, 16 N. T. Supp., 881 (communications between 
 
76 Abbott's Select Cases on Examining "Wjtnesses. 
 
 Notes of Cases on Confidential Communications. 
 
 a husband and wife in the presence of third persons are not priv- 
 ileged, and the one may testify as to them against the other, even 
 in criminal prosecutions) ; Parkhurst v. Berdell, 110 N. Y., 386 ; 
 s. c. 18 Northeast. Kep., 123 (business communications between 
 husband and wife, though made when they are alone together, 
 are not privileged) ; People v. Hayes, 24 N. Y. Supp., 194 (a 
 wife's letters to her husband, which were given by him to his 
 mistress and produced by her on his trial for perjury, are not 
 privileged). Ohio : Lowther v. State, 4 Ohio Oir. Ct. P., 522 
 (letters written by a husband to his wife, which were never de- 
 livered to her, but properly came into the hands of a third per- 
 son, are admissible against the husband upon a criminal prosecu- 
 tion against him). Pennnylvania : Brock v. Brock, 1887, 9 At- 
 lantic Pep. 486 (a divorced woman cannot testify as to confiden- 
 tial communications between herself and husband, made during 
 the existence of their marriage). South Carolina : State v. 
 Turner, 36 S. C, 534; s. c. 15 Southeast. Pep., 602 (where a hus- 
 band voluntarily testifies as to a part of a communication made 
 to him by his wife, he may be compelled to state the balance). 
 Texas : Mitchell v. Mitchell, 15 Southwest. Pep. 705 (letters by 
 a husband to a wife relating to business carried on by them are 
 inadmissible in evidence). United States : Bowman v. Patrick, 
 32 Fed. Pep., 368 (where a wife's administrator delivered her 
 husband's letters to a party in a suit in which the husband was 
 interested to be used against him, held, that the letters were 
 privileged) ; Stickney v. Stickney, 131 U. S., 227 (under U. S, 
 P. S., § 876, relating to the Dist. of Columbia, in an action by 
 a widow against her deceased husband's heirs to establish an 
 alleged claim against his estate arising out of the investment by 
 him of her property in his own name, the wife is competent, 
 though not compellable, to testify as to the directions she gave 
 her husband concerning the investment). Utah: Bassett v. 
 United States, 137 U. S., 496 (under the Utah Code Civ. Pro., 
 § 1156, a subsequent marriage by a married man is not a crime 
 against the lawful wife, and cannot be proved by her evidence 
 of his confessions to her). Virgirda: Thornton v. Gaar, 1891, 
 12 Southeast. Pep., 753 (in an action by a husband's creditors to 
 set aside a conveyance made by him to his wife, the wife is an 
 
I. Competency. (11) Plusbarid and Wife. 77 
 
 Notes of Cases on Conlldential Communications. 
 
 incompetent witness as to what took place between herself and 
 husband). Vermont : Bnckman's Will, 1892, 24 Atlantic Kep., 
 252 (a hnsband may testify as to biisiness transactions with his 
 wife, had in the presence of third persons) ; State v. Mathers, 
 1892, 23 id., 590 (where a husband wrote an incriminating letter 
 and gave it to his daughter to give to his wife, and the letter 
 was taken from the messenger by another daughter, held, that 
 the letter was admissible against the husband, and that the court 
 woidd not inquire whether it had been legally obtained). Wash- 
 ington : Columbia, etc. E.. Co. v. Hawthorn, Wash. T, 1888, 19 
 Pacific Rep., 25 (a husband who calls his wife as a witness waives 
 the privilege). West Virginia: Smith v. Turley, 32 W. Ya., 
 11 ; s. c. 9 Southeast. Eep., 46 (a wife is an incompetent witness 
 to prove a personal transaction with her husband to show a re- 
 sulting trust, not only as against his heirs, but also his creditors). 
 Wisconsin : Bigelow v. Sickles, 75 Wis., 427 ; s. c. 44 North- 
 west. Eep., 761 (a husband is a competent witness against a 
 former wife as to facts coming to his knowledge during marriage 
 by means equally accessible to other persons, and which were not 
 disclosed to him by conversations with his wife) ; Selden v. State, 
 74 Wis., 271 ; s. c. 42 JSTorthwest. Eep., 218 (in a prosecution 
 for. per jury a husband's letters to his wife cannot be given in 
 evidence against him, though only their dates and addresses are 
 sought to be shown). 
 
78 Abbott's Select Cases on Examining "Witnesses. 
 French v. Hall, 119 U. S., 152. 
 
 FEENCH V. HALL. 
 
 United States Swpreme Court, November, 1886. 
 [Reported in 119 U. S., 153.] 
 
 An attorney, thoug-h acting as such on the trial of his client's cause, is a 
 competent witness oq behalf of his client. 
 
 If, after evidence in chief on behalf of both parties has been taken, the 
 testimony of the attorney is offered in rebuttal, it is error to exclude 
 it on the ground that the attorney is incompetent ; even though the 
 court might have excluded it in the exercise of its discretion because 
 not offered as a part of the party's case in chief. 
 
 Plaintiff sued defendant for the value of his services as a 
 broker in the sale of real property. 
 
 On the trial after defendant's evidence had been received, in 
 the course of which defendant testified that he never had admitted 
 the demand ox promised to Mr. Carpenter, the plaintiff's attorney, 
 that he would pay it, plaintiff offered his attorney. Carpenter, as 
 a witness to prove such promise. 
 
 The trial court refused to allow Carpenter to be sworn as a 
 witness for the plaintiff because he was acting as an attorney for 
 the plaintiff in conducting the trial of the cause, to which ruling 
 exception was taken. 
 
 Upon a motion for a new trial, the court expressed the opinion 
 that Carpenter was in fact competent to testify as a witness for 
 the plaintiff ; but that his testimony was not offered at the proper 
 time ; that his testimony was receivable only in chief and upon 
 the plaintiff's opening, and not in rebuttal; and this being the 
 second trial of the cause, the plaintiff was not surprised by the 
 testimony of the defendant. Hall, and it was his duty to give in 
 chief and in his opening all evidence as to admissions by the 
 defendant as well as other matters. For this reason the motion 
 fc^r a new trial was denied. 
 
 Plaintiff brought error. 
 
 _ Haelan, J. {after stating facts] : The question for considera- 
 tion is, whether the court erred in its ruling in not permitting 
 the examination of the plaintiff's attorney as a witness on the 
 plaintiff's behalf. ' It appears from the bill of exceptions that no 
 objection was made to the examination of the witness by the 
 defendant ; the refusal to allow him to be sworn seems to have 
 
I. Competency. (12) Attorney and Client. 79 
 
 French v. Hall, 119 U. S., 152 
 
 emanated from the court sua sponte, on the ground that he was 
 acting as an attorney for the plaintiff in conducting the trial of 
 the cause. There is nothing in the policy of the law, as there is 
 no positive enactment which hinders the attorney of a party 
 prosecuting or defending in a civil action from testifying at the 
 call of his client. In some cases it may be unseemly, especially 
 if counsel is in a position to comment on his own testimony, and 
 the practice, therefore, may very properly be discouraged ; but 
 there are cases, also, in which it may be quite important, if not 
 necessary, that the testimony should be admitted to prevent in- 
 justice or to redress wrong. Such seems, also, to have been the 
 more deliberate opinion of the Circuit Court in this case, as it 
 appears from the bill of exceptions that the refusal to grant a 
 new trial for the alleged error in its ruling was justified, not on 
 the ground that the witness was incompetent, but that his testi- 
 mony was not offered at the proper time, being receivable only 
 in chief upon the plaintiff's opening, and not in rebuttal. 
 
 This reason might have applied if the object of the testimony 
 had been merely to prove an admission on the part of the defend- 
 ant, and the offer had been rejected on that ground at the time, 
 although it would be a strict apphcation of the rule to require 
 the plaintiff to assume in advance that the defendant would deny 
 as a witness the truth of the plaintiff's case. But aside from 
 that, the testimony seems to have been competent in rebuttal as 
 a proof of a contradictory statement made by the defendant at 
 another time and place, with a view to discrediting him as a wit- 
 ness. However that may be, and admitting that the testimony 
 offered was strictly competent only in chief, nevertheless it was 
 a matter of discretion with the court at the time of the trial 
 whether the testimony should be admitted when offered after the 
 defendant had testified. 
 
 The plaintiff was entitled to the exercise of that discretion on 
 the part of the court at that time, which in the present case he 
 was deprived of by the mling of the court rejecting the offer of 
 the testimony on another and an illegal ground. We are of the 
 opinion that the court erred to the prejudice of the plaintiff in this 
 respect. The judgment of the Circuit Court is therefore reversed, 
 and the cause remanded, with directions to grant a new trial. 
 
80 Abbott's Select Cases on Examining Witnesses. 
 Root V. Wright, 84 N. Y., 73. 
 
 KOOT V. WEIGHT. 
 
 JVew Yorh Court of Appeals, 1881. 
 [Reported in 84 N. Y., 73.] 
 
 The privilege which protects professional communications between attor- 
 ney and chent, is not abrogated by the removal of the incompetency 
 of parties.* 
 
 The attorney cannot be allowed to disclose such a communication as evi- 
 dence in a litigation between a client and a third person, even when the 
 communication was made only in a matter of conveyancing, and was 
 made to both parties to the transaction who jointly consulted him. 
 
 Appeal from a deficiency judgment on foreclosure. 
 
 At the trial before a referee, plaintiff relied on an assumption 
 •clause in the deed under which Wright had taken title. 
 
 The defense relied on showing that the deed was not an abso- 
 lute conveyance, but was given and received merely as security 
 for a debt, and therefore the assumption clause was not effectual. 
 
 To show the contrary, plaintiff called Mr. Howe, the attorney 
 to whom the parties went after they had agreed on making the 
 proposed deed as security. 
 
 The referee received the attorney's testimony against objection 
 and exception. 
 
 The Supreme Court at General Term affirmed the judgment, 
 being of opinion that the conversations and communications, 
 so far as they consisted of the conversations of Wright, were not 
 intended as confidential communications by Wright to his attor- 
 ney and counsel, but were communications made, not only in the 
 presence of the attorney, but in the presence of all the parties to 
 the arrangement, and the only relation of attorney and client grew 
 out of the fact that the attorney was employed to draw the papers 
 between the three parties holding adverse interests in relation to 
 the subject matter in respect to which the conversation sought to 
 be proved by the attorney took place ; such conversation is not 
 privileged. 
 
 The Cottrt of Appeals reversed the judgment. 
 
 * Even the accused in a criminal case, testifying as a witness in his own behalf, does not 
 thereby waive his privilege against disclosure of confidential communicalions. But the author- 
 ities are in conflict. Abb. Tr. Brief., SUl, § UOU. 
 
I. Competency. (12) Attorney and Client. SI 
 
 Root V. Wright, 84 N. Y., 73. 
 
 Andeews, J. The liability of tlie defendant for the deficiency 
 arising on the sale of the mortgaged premises turned upon the 
 question, whether the deed from Foster was intended as an abso- 
 lute conveyance, or simply as a mortgage. If it was intended as 
 a security merely, the covenant ther-eon to assume and pay the 
 plaintiff's mortgage, was in effect an agreement between Foster 
 and the defendant that the latter should advance the amount of 
 the prior lien upon the security of the land, and gave no right of 
 action to the plaintiff, who was neither a party to the contract nor 
 the person for whose benefit it was made. (Garnsey v. Eogers, 47 
 N. Y., 211 ; Pardee v. Treat, S2 id.. 385.) The referee found 
 that the deed was intended as an absolute conveyance, and to es- 
 tablish this view of the transaction, the plaintiff on the trial, 
 called as a witness, the attorney who drew the deed, who was 
 permitted, against the objection of the defendant, to testify to 
 the conversation between Crosby, Foster and the defendant 
 Wright, at his ofiice, when the deed was drawn. The evidence 
 of the attorney (who is also the attorney for the plaintiff in this 
 action) was material upon the point in controversy. The general 
 facts are, that on the morning of the day when the deed was 
 drawn, and before the conversation at the attorney's olfice, Cros- 
 by, Foster and Wright had an interview. Foster was the owner 
 of the land embraced in the plaintiff's mortgage, and the mortga- 
 gor, Crosby, held a junior mortgage on the same premises, which 
 was due. Wright was liable as second indorser of a note upon 
 which Foster was primarily liable, and Foster was also indebted 
 to him for money advanced. Crosby was urging the payment of 
 his mortgage, and at the interview between Crosby, Foster and 
 Wright, it was proposed by Crosby, that Wright should take an 
 assignment of his mortgage, and that Foster should execute to 
 Wright a deed of the land as security for the payment of the sum 
 he should advance to Crosby, and for his liability as indorser. 
 This proposition was finally assented to by Wright and Foster, 
 and the three persons by mutual, agreement, then went to the 
 office of the attorney to consummate the proposed arrangement. 
 The arrangement as the attorney testifies, was there changed, and 
 liis evidence tends to show that it was agreed that Foster should 
 convey to Wright by an absolute and indefeasible deed, and that 
 
82 Abbott's Select Cases on Examining Witnesses. 
 
 Eoot V. Wright, 84 N. Y., 73. 
 
 Crosby, instead of assigning, should satisfy his mortgage upon 
 payment thereof by Wright. The attorney was contradicted on 
 material points by other witnesses, and the question is, whether 
 the evidence of the attorney in respect to the transaction at his 
 office was admissible. 
 
 The referee found that Wright, Foster and Crosby, after mak- 
 ing the verbal agreement, went to the law office of the attorney, 
 for the purpose of employing him professionally to draw the ne- 
 cessary papers to carry out that agreement, and that on the agree- 
 ment being stated to him, it was changed by his advice. The 
 rule that an attorney cannot disclose communications made to him 
 by his clients is not, as now understood, confined to communica- 
 tions made in contemplation of, or in the progress of an action or 
 judicial proceeding, but extends to communications in reference 
 to all matters which are the proper subject of professional em- 
 ployment. (Williams v. Fitch, 18 N. Y., 550 ; Yates v. Olm- 
 sted, 56 id., 632). The rule prohibiting such disclosure still ex- 
 ists, notwithstanding the change in the law permitting a party to 
 an action to be examined as a witness on his own behalf, or at the 
 instance of the adverse party, and is made a part of the statute 
 law by section 835 of the Code of Civil Procedure. It is not 
 necessary, in this case, to consider the question whether an at- 
 torney, employed as the common attorney of two or more par- 
 ties to give advice in a matter in which they are mutually inter- 
 ested, can, on a litigation subsequently arising between them, be 
 examined at the instance of one of the parties, as to communica- 
 tions made when he was acting as the attorney for both. (See 
 Whiting V. Barney, 30 IST. Y., 330.) However this may be, we 
 are of opinion that he cannot disclose such communication in a. 
 controversy between such parties and a third person. Where 
 parties, having diverse or hostile interests or claims which are 
 the subject of controversy, unite in submitting the matter to a 
 common attorney for his advice,they exhibit, in the strongest man- 
 ner, their confidence in the attorney consulted. The law should 
 encourage, and not discourage, such efforts for an amicable ar- 
 rangement of differences, and public policy and the interests of 
 justice are subserved by placing such communications under the 
 seal of professional confidence to the extent at least of protecting 
 
I. Com/petency. (12) Attorney and Client. 83 
 
 Root V. Wright, 84 N. Y., 73. 
 
 them against disclosure by the attorney at the instance of third 
 parties. This position, if not directly adjudicated, is supported 
 by the opinions of judges in several cases. (Rice v. Kice, 14 B. 
 Monr., ilY ; Eobson v. Kemp, 4 Esp., 233 ; Same v. Same, 5 id., 
 52 ; Strode v. Seaton, 2 Ad. & EL, 171 ; see, also, opinions of 
 Grover, J., in Britton v. Lorenz, 45 N. Y., 57; Ingraham, J., in 
 Whiting V. Bamie, 30 id., 342; Smith, J., 38 Barb., 397.) 
 
 For the error in admitting the evidence referred to, the judg- 
 ment should be reversed and a new trial granted. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
•8i Abbott's Select Cases on Examining Witnesses. 
 Hurlburt v. Hurlburt, 128 N. Y., 420. 
 
 HURLBURT v. HURLBURT. 
 
 JVew Yorh Court of Appeals, 1891. 
 [Reported in 128 N. Y., 420.] 
 
 The statute, N. Y. Code Civ. Pro., § 835 — providing that an attorney shall 
 not be allowed to disclose professional information received from, or 
 advice given to his client — was not intended to change the common 
 law rule. 
 
 When two or more persons together consult the same attorney for their 
 mutual benefit, in a transaction between them the rule cannot be in- 
 voked in a litigation which may arise between them. 
 
 Neither can it be invoked in a litigation between their legal representa- 
 tives if it could not have been between themselves while living. 
 
 The facts appear in the opinion. 
 
 Eael, J. This action was brought to recover the sum of 
 $6,682, with interest thereon, which, it is alleged, Charles F. 
 Hurlburt, the plaintiff's intestate, placed in the hands of his son 
 Theron, defendant's intestate, as his agent, and for liis bene- 
 fit, in the latter part of the year 1881. Theron was a son of 
 Charles, and he died December 25, 1883, and Charles died 
 January 6, 1884. 
 
 The defendant claimed that the money was a gift to her hus- 
 band, and that he was never under any obligation to repay the 
 same. The plaintiffs were unable to produce any writing of any 
 kind evidencing any obligation on the part of Theron to repay the 
 money. They are the sons of Charles, and were the sole wit- 
 nesses to establish their claim, and this they attempted to do by 
 testifying to certain conversations which they overheard be- 
 tween their father and Theron. 
 
 Upon the trial, the defendant rested her case mainly upon the 
 conceded fact that for about two years before the death of her 
 husband, the money claimed had been in banks to his credit, and 
 had been managed and controlled by him, and she produced 
 proof of certain declarations and admissions made by Charles, 
 tending to show that the money was transferred by him to his 
 son as a gift, and not to be held for his benefit. 
 
 During the progress of the trial the plaintiffs made objections 
 to evidence, which were overruled, and they now claim some of 
 
I. Competency. (12) Attorney and Client. 85 
 
 Hurlburt v. Hurlbui-t, 128 N. Y., 420. 
 
 the rulings were erroneous. We will briefly notice some of 
 them. 
 
 Theron and Charles, in the spring of 1883, went together to 
 consult a lawyer by the name of Aldrich, as to the best mode of 
 disposing of or adjusting the prospective interest of the plaintiff 
 Lynian, as an heir, in the farm belonging to his father, and 
 several plans were suggested by Theron in the presence of his 
 father, and assented to by him to accomplish that end. The 
 statement was there made by Theron to the lawyer, and assented 
 to by his father, that Lyman had had all his share in his father's 
 personal property; and other statements were there made by 
 Theron and assented to by his father, of similar import. Aldrich 
 was called by the defendant to prove these statements and ad- 
 missions. The plaintiffs objected to his evidence on the ground 
 that he was an attorney consulted professionally, and that the 
 communications to him were privileged. The court overruled 
 the objection and received the evidence. 
 
 "We think that in receiving this evidence there was no viola- 
 tion of section 835 of the Code, which provides that "an attor- 
 ney or counsellor at law shall not be allowed to disclose a com- 
 munication made by his client to him, or his advice given there- 
 on, in the course of his professional employment." This section 
 is a mere re-enactment of the common law rule, and it cannot be 
 supposed from the general language used, that it was intended 
 to change or enlarge that rule as it had been expounded by the 
 courts. It has frequently been said that the object of the rule 
 embodied in the section is to enable and encourage persons need- 
 ing professional advice to disclose freely the facts in reference 
 to which they seek advice, without fear that such facts will be 
 made pubhc to their disgrace or detriment by their attorney. 
 Such a case as this is plainly not within the rule. Here Theron 
 and his father were both interested in the advice which they 
 sought, and they were both present at the same time and en- 
 gaged in the same conversation. Each heard what the other 
 said, so that the disclosures made, were not, as between them, 
 confidential; and there can be no reason for treating such dis- 
 closures as privileged. It has frequently been held that the 
 privilege secured by this rule of law does not apply to a case 
 
86 Abbott's Select Cases on Examining Witnesses. 
 
 Hurlburt v. Hurlburt, 138 N. Y., 420. 
 
 where two or more persons consult an attorney for their mutual 
 benefit, that it cannot be invoked in any litigation which may 
 thereafter arise between such persons, but can be in a litigation 
 between them and strangers. (Eoot v. Wright, 21 Hun, 34-Y ; * 
 Sherman v. Scott, 27 id., 331 ; Foster v. Wilkinson, 37 id., 244; 
 Eosenburg v. Eosenburg, 40 id., 91 ; Whiting v. Barney, 30 
 N. Y., 330 ; Hebbard v. Haughian, 70 id., 54 ; Root v. Wright, 
 84 id., 72.) Therefore, if Charles and Tlieron had been alive 
 and parties to this action, this evidence would have been compe- 
 tent. And as it would then have been competent, it is equally 
 competent in this action between their personal representatives. 
 The fact that these plaintiffs are personally interested in the estate 
 of their father can make no difference in the ajjplication of the 
 rule. They are parties to this action only in a representative 
 capacity. They legally stand as the representatives of their 
 father and no one else. Evidence which would have been com- 
 petent against him in his life-time, is competent against his per- 
 sonal representatives. So we think that this case is not within 
 the reason of section 835, and even if it should be regarded as 
 within its letter, it should be taken out of the letter by the ap- 
 plication of the familiar maxim " Cessante ratione legis cessat 
 ipsa lex." 
 
 [Rulings on other questions are here omitted.] 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 * See reversal of that case at p. 80 of these cases. 
 
I. Competency. (12) Attorney and Client. 8Y 
 
 Note on Professional Communications with Attorney. 
 
 NOTE ON CONFIDENTIAL COMMUNICATIONS BE- 
 TWEEN ATTORNEY AND CLIENT. 
 
 Advice to aid commission of crime. 
 
 In Bank of Utica v. Mersereau, 3 Barb., Cli. 528, the deposi- 
 tion of the attorney, who had prepared a confession of judgment, 
 was suppressed by the chancellor. The testimony related to de- 
 clarations of the client tending to show that the object of giving 
 the judgment was to hinder and delay their creditors, and that 
 it was given for a much larger sum than was justly due. The 
 chancellor held, that the fact that the attorney must have known 
 the transaction was a fraud on the creditors, did not deprive the 
 client's communication of the privilege, but, in passing on this 
 point, said (p. 598) : " The seal of prof essional confidence, I be- 
 " lieve, has never been held to cover a communication made to 
 " an attorney to obtain professional advice or assistance as to the 
 " commission of a felony or other crime which was malum in se. 
 " The opinion of Chief Baron Gilbert was that the privilege of 
 " attorney and counsel did not extend to such cases (1 Gilb. 
 " Ev., 277)." 
 
 Disclosure of Clieiifs Address. Information of this character, 
 when desired for the purpose of eflEecting personal service of a 
 process or order in the cause, is not privileged. The court may 
 require the attorney to disclose his client's address, upon an 
 application by the adverse party showing the necessity for per- 
 sonal service, his unsuccessful efforts to make such service, and' 
 the refusal of the attorney, upon request, to disclose the client's 
 address. See Note in 26 Abh. W. C, 118. 
 
 For recent cases on the Eelation ; its Cessation ; "What Com- 
 munications are privileged ; "Who May Insist on the privilege ; 
 the Manner of Objecting, and "Waiver of the privilege ; see 
 the following : 
 
 The Relation : 
 
 Alabama : Hawes v. State, 88 Ala., 37 ; s. c. 7 Southern 
 Kep., 302 (communications to an attorney's confldential clerk by 
 
88 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Professional Communications with Attorney. 
 
 one who does not know his relation to the attorney, and who ex- 
 presses no desire to have his communications conveyed to the 
 attorney, are not privileged). California : Sharon v. Sharon, 
 79 Cal., 633 ; s. c. 22 Pacific Eep., 26 (communications to an 
 attorney are not privileged unless he is the attorney for the party 
 by whom they are made, and they are made to him in the course 
 of his professional employment). Colorado : Caldwell v. 
 Davis, 1887, 15 Pacific Pep., 696 (an attorney, who merely 
 draws up a deed, and does not act as an adviser, may testify as 
 to the conversation between the parties at the time of execution). 
 Dakota : O'Neil v. Murray, 6 Dak., 107; s. c. 50 Northwest. 
 Eep., 69 (an attorney only employed to draw up a bill of sale 
 and deed for vendee may testify in vendor's behalf as to what 
 took place for the purpose of showing that a mortgage was 
 intended). Georgia: Fire Ass'n, v. Fleming, 1887, 3 South- 
 east. Rep., 420 (the privilege extends to communications between 
 the attorney of a corporation and its agent) ; Rodgers v. Moore, 
 88 Ga., 88 ; s. c. 10 Southeast. Pep., 962 (where an attorney 
 was only employed to procure a bond for defendant in a criminal 
 case, held that he was a competent witness concerning a subse- 
 quent transfer of property by defendant made to secure the bond). 
 Elinois: Tyler y. Tyler, 126 111., 525 ; s. c. 21 Northeast. Rep., 
 616 (the attorney for the assignee is competent to testify as to 
 assignor's statements made upon the execution of the assign- 
 ment). Indiana : Thomas v. Griffin, Ind. App., 1891, 27 
 Northeast. Pep., 754 (an attorney, who acted merely as a scriv- 
 ener, may testify as to the contents of the instrument) ; Ping- 
 ham V. Walk, 1891, 27 Northeast. Rep., 483 (where a husband 
 called upon an attorney and asks him to draw a contract for his 
 wife, the wife and not the husband is the client, and the attorney 
 may testify as to the transaction with her permission) ; Piper v. 
 Fisher, 121 Ind., 407; 23 Northeast. Pep., 269 (an attorney, who 
 is present and only advises one of the parties as to the making of 
 a contract, but who does not act as an agent, is not incompetent 
 as a witness of what took place under Ind. R. S., 1881, § 500). 
 Iowa: Theisen v. Dayton, 47 Northwest. Rep., 891 (com- 
 munications to an attorney, who declines to act, are not privi- 
 leged). Kentucky: Carter v. West, 1892, 19 Southwest. Rep., 
 
I. Comjietency. (12) Attorney and Client. 89 
 
 Note on Professional Communications with Attoimej'. 
 
 592 (an attorney employed by one of the parties to see tliat she 
 got good title, cannot testify in behalf of the other party as to 
 what took place between them when the deed was being drawn). 
 2Ikhigan: Dikeman v. Arnold, 1890, -14: Northwest. Kep., 407 
 (a conveyancer, who draws a deed, though also an attornej', is a 
 competent witness as to what transpired while the deed was 
 being drafted). Missouri: Tyler ^'. Hall, 106 Mo., 313; s. c. 
 IT Southwest. Rep., 319 (where an administrator, accompanied 
 by deceased's son, consulted his attorney as to a deed, which he 
 had found, of deceased to his son. ITeJd, that though the 
 administrator required the son to repay him what he paid for the* 
 consultation, the administrator was competent to testify to what 
 the son said on such consultation). Nevada : (communications as 
 to a fictitious case are not privileged). New Ilamfshire ; State v. 
 Merchant, 1889, 18 Atlantic Rep., 654 (on the trial for an assault 
 a third person's attorney, who was employed to transact certain 
 business with the defendant, may testify that defendant used 
 threatening language towards the assaulted person). New York : 
 Loder v. Whelpley, 111 N. Y., 239 ; s. c. 18 Northeast. Rep., 
 874 (an attorney, who receives directions as to a will acts in a 
 professsional capacity, though he merely reduces the directions 
 to writing without questioning or advising) ; Matter of Smith, 
 15 ISr. Y. Supp., 425 (an attorney acting as a draughtsman of a 
 will, may testify as to testator's statements made in the presence 
 of the attorney and subscribing witnesses) ; Matter of Monroe, 
 20 id., 82 (communications to an attorney giving free advice are 
 not privileged) ; People v. Gilon, 18 Civ. Pro. R., 109 ; s. c. 9 
 ]Sr. Y. Supp., 243 (the advice of the corporation counsel of New 
 York City to the board of assessors is privileged); Avery v. Mat- 
 tice, 9 N. Y. Supp., 166 (communications to an attorney are not 
 privileged, where he refuses to act) ; Haulenbeck v. McGribbon, 
 14 id., 393 (an attorney, who acts for both parties without com- 
 pensation, is a competent witness as to what took place) ; Shel- 
 don V. Sheldon, 11 id., 477 (an attorney, who draws a deed by 
 which the wife sells her separate estate, may testify as to what 
 the husband said when the deed was drawn, for the purpose of 
 showing that the wife had given the proceeds of the sale to the 
 husband, since deceased, so that he might invest it for her). 
 
90 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Professional Communications with Attorney. 
 
 Ohio : Benedict v. State, 1887, 11 ISTortheast. Eep., 125 (com- 
 munications to one who acts as a legal adviser and who practices 
 before a justice of the peace, though not admitted as an attorney, 
 are privileged). Pennsylvania : Dierstein v. Schubkagel, 131 
 Pa. St., 46 ; s. c. 18 Atlantic Eep., 1059 (communications to a 
 law student are not privileged). Texas : Stallings v. HuUum 
 T9 Tex., 421 ; s. c. 15 Southwest. Eep., 677 (communications 
 to an abstractor and an attorney employed only to search a title 
 and to make an abstract, without any view to obtaining advice 
 are not privileged) ; Simmon's Hardware Co. v. Kaufman, 1888,, 
 8 Southwest. Eep., 283 (negotiations with an attorney, who acts 
 for another, are not privileged). United States : Brungger v. 
 Smith, 49 Fed. Eep., 124 (the privilege does not apply to com- 
 manications to a solicitor of patents, who is not an attorney). 
 Virginia: Hall v. Eixey, 1888, 6 Southeast. Eep., 215 (com- 
 munications by an assignor to an attorney, who was acting for 
 the assignee, are not privileged). Wisconsin : Plane Manufg. 
 Co. V. Frawley, 1887, 32 Northwest. Eep., 768 (^tatements made 
 to an attorney by a person after he has been advised that the 
 attorney could not act for him, are not privileged). 
 
 Cessation of the Relation : . 
 
 Doherty v. O'Callaghan, Mass., 1892, 31 Northeast. Eep., 726 
 (after testator's death, the attorney, who drew his will, may 
 testify as to the directions given him) ; but compare Loder v. 
 Whelpley, 111 N. Y., 229. Wadd v. Hazleton, 17 N. T. Supp., 
 410 (after severing his relation with an attorney employed to 
 draw his will, the testator casually told him on a subsequent 
 occasion that he proposed to give an additional sum to a certain 
 legatee. Held, that this was not a confidential communication). 
 Morris v. Cain, La., 1887, 1 Southern Eep., 797 (an attorney may 
 not testify without his client's consent, though the relation has 
 ceased). Walter v. Fairchild, 4 N. Y. Supp., 552 (though the 
 litigation has ceased, plaintiff's attorney cannot be compelled to 
 disclose the address of his late client). Peek v. Boone, Ga., 
 1893, 17 Southeast. Eep., 66 (a communication to an attorney, 
 who is consulted but who is not subsequently employed to per- 
 form the service, is privileged). 
 
I. Competency. (12) Attorney and Client. 91 
 
 Note on Pi-ofessional Communications with Attorney. 
 
 What Communications are or are not Privileged : 
 
 Alabama : Chapman v. Peebles, 1888, 4 Southern Eep., 273 
 (an attorney may be compelled to testify as to whether he wrote 
 a note signed by his client, and paid him a certain sum of money 
 on the same ; as such evidence relates to facts and not profes- 
 sional communications) ; White v. State, 86 Ala., 69 ; s. c. 5 
 Southern Eep., 6Yi (in a prosecution for attempting to obtain 
 money upon false pretenses from a railroad company, an attorney 
 may testify that he was employed by defendant to demand com- 
 pensation from the company). California : Ferguson r. Mc- 
 Bean, 91 Cal., 63 ; s. c. 27 Pacific Rep., 518 (a communication 
 to an attorney which his client intends he shall impart to an- 
 other is not privileged) ; Bauer's Estate, 79 Cal., 301 ; s. c. 21 
 Pacific Eep., 759 (an attorney who drew a homestead declaration 
 for both husband and wife may testify as to the transaction in a 
 contest between the deceased husband's legatees and the widow). 
 Georgia: Skellie v. James, 81 Ga., 119; s. c. 8 Southeast. 
 Eep., 607 (under Ga. Acts, 1887, p. 30, an attorney may be com- 
 pelled to testify). Illinois : Griffin v. Griffin, 1888, 17 North- 
 east. Eep., 782 (communications to an attorney by both parties 
 in the presence of each other, are not confidential) ; Swaim v. 
 Humphreys, 42 111. App., 370 (an attorney may testify as to the 
 issuing of an execution upon a judgment for client). Indiana : 
 Hanlow v. Doherty, 1887, 9 Northeast. Eep., 782 (communica- 
 tions to an attorney acting for both parties are not privileged) ; 
 s.p. Colt V. McOomel, 116 Ind., 249; s. c. 19 JSTortheast. Eep., 106;. 
 Bruce 1). Osgood, 1888, 14 JSTortheast. Eep., 563 (statements made 
 by a client to his attorney to be communicated to others are not 
 privileged); Harrisburg Car Manuf'g Co. v. Sloan, 1889, 21 
 Northeast. Eep., 1088 (an attorney will not be compelled to pro- 
 duce client's papers) ; Lloyd v. Davis, 2 Ind. App., 170 ; s. c. 
 28 Northeast. Eep., 232 (an attorney may testify as to communica- 
 tions with his client, not connected with the action in which he 
 is employed). Kansas : Tays v. Carr, 1887, 14 Pacific Eep., 
 456 (attorney may not testify as to professional communications 
 without his client's consent) ; Sparks v. Sparks, 1893, 32 id., 892 
 (communications to an attorney in the presence of both parties. 
 
'92 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Professional Communications with Attorney. 
 
 are not privileged). Massachusetts : Blount v. Kimpton, 1892, 
 29 Northeast. Eep., 590 (the fact that the communication be- 
 tween an attorney and client was made in the presence of a third 
 person, does not make the attorney a competent witness as to 
 what took place). Michigan ; Eiley v. Conner, 1890, 44 ISTorth- 
 west. Rep., 1040 (in replevin for a mortgaged chattel,, statements 
 which the mortgagee's attorneys made to him while he was seek- 
 ing their advice are inadmissible) ; Erickson v. Milwaukee, etc. 
 Ey. Co., 93 Mich., 414 ; s. c. 63 Northwest. Eep., 393 (where 
 plaintiff is called as a witness, his attorney cannot be compelled 
 to testify as to conversation with plaintiff as to his testimony) ; 
 House V. House, 61 Mich., 69; s. c. 27 Northwest. Eep.", 858 
 (where two brothers went to an attorney for the purpose of 
 having him draw up a power of attorney for the. purpose of 
 -enabling their father to make certain collections for them, the 
 attorney may testify that one of the brothers stated to the other 
 that he intended that his father should have the moneys col ■ 
 lected ; since such statement was not necessary to enable the 
 attorney to give advice) ; Cady v. Walker, 62 Mich., 157; s. c. 
 28 Northwest. Eep., 865 (an attorney's advice to both parties to a 
 controversy is not privileged as against each other). Mi?inesota : 
 Hanson v. Bean, 1893, 53 Northwest. Eep., 871 (what was said 
 between the parties to a mortgage in the hearing of the attorney 
 who was employed to draft it, but which was not intended as a 
 communication to the attorney, is not privileged) ; State v. Tall, 
 43 Minn., 273 ; s. c. 45 Northwest. Eep., 449 (a client may be 
 questioned as to his statements to attorney) ; Stokoe v. St. Paul, 
 etc. Ey. Co., 40 Minn., 545 ; s. c. 42 Northwest. Eep., 545 (an 
 attorney will not be compelled to produce his client's papers). 
 Missouri: State v. Dawson, 90 Mo., 149; s. c. 1 Southwest. 
 Eep., 827 (where a defendant is charged with stealing $160, in 
 silver, his attorney cannot be called upon to testify in what 
 kind of money his fees were paid) ; Hickman v. Green, 1893, 
 22 id., 455 (communications to an attorney concerning proposed 
 infractions of the law are not privileged) ; Denser v. Walkup, 
 43 Mo. App., 625 (communications by client to attorney in the 
 presence of the adverse party are not privileged) ; Koontz v. 
 Owens, 1892, 18 Southwest. Eep., 928 (communications to an at- 
 
I. Competency. (13) Attorney and Client. 93' 
 
 » 
 
 Note on Professional Communications witli Attorney. 
 
 torney employed to draw a will relative to tlie amount of land 
 whicli testator intended to convey by a certain deed are inadmis- 
 sible after testator's death in an action to reform the deed). 
 Nebrasla : Nelson v. Becker, 1891, 48 Northwest. Eep., 962 (in 
 an action by an attorney for services, his client's letters, written 
 for the purpose of employing him, are inadmissible). JVew Jersey: 
 Matthews v. Hoagland, 1891, 21 Atlantic Eep., 1054 (privilege 
 extends to information acquired by an attorney from documents 
 which his client submits to him for inspection or custody;, 
 but communications with an attorney for a criminal or fraudulent 
 object are not privileged). JVew York : Hurlburt v. Hurlburt,, 
 128 N. Y., ■420; s. c. 26 Northeast. Eep., 651 (where two 
 persons go together to the same attorney for advice as to matters 
 in which they are equally interested, the subjects discussed and 
 advice given are not privileged) ; s. p. Hard v. Ashley, 44 State 
 Eep., Y92 ; s. c. 18 N. Y. Supp., 413 ; Smith v. Crego, 7 N. Y. 
 Supp., 86 ; Greer v. Greer, 58 Hun, 251 ; s. c. 12 N. Y. Supp., 
 778; 20 Civ. Pro. E., 71 (transactions between attorney and 
 client in the presence of third persons are not privileged) ; Bart- 
 lett V. Bunn, 56 Hun, 507; s. c. 10 N. Y. Supp., 210 (plaint- 
 iff's communications to his attorney with the purpose of having 
 them published to defendant are not privileged) ; Eosseau v. 
 Bleau, 131 N. Y., 177 ; s. c. 30 Northeast. Eep., 52 (an attorney 
 may testify that his deceased client gave him a deed with instruc- 
 tions to deliver it to the grantee) ; Matter of Mellen, 18 N. Y. 
 Supp., 515 (communications by a third person to whom client 
 refers attorney are not privileged) ; Barry v. Coville, 7 id., 36 
 (an attorney may testify merely as to the fact of drawing deed 
 for client) ; Martin r. Piatt, 51 Hun, 429 ; s. c. 4 N. Y. Supp., 
 359 (an attorney may testify that by his client's direction, he 
 employed plaintiff to do the work sued for) ; Hampton^ v- 
 Boylen, 46 Hun., 151 (in an action against a constable for failing 
 to return an execution, plaintiff's attorney may testify for defend- 
 ant that he directed him not to levy the execution and that he 
 had control of it) ; Holthausen v. Pondir, 55 N. Y. Super. Ct., 
 73 (an attorney may testify as to his client's handwriting) ; Matter 
 of McCarthy, 55 Hun, 7; s. c. 8 N. Y. Supp., 578 (an attorney 
 who drew a will is not incompetent to testify as to conversations 
 
'94 Abbott's Select Oases on Examining Witnesses. 
 
 Note on Professional Communicalions with Attorney. 
 
 with testator at the execution of the will in the presence of the 
 subscribing witnesses ; and he may also testify that he received 
 his instructions relative to the provisions of the will from the 
 testator) ; but see s. c. "on subsequent appeal, 65 Hun, 512; s, c. 
 48 State Eep., 301; Matter of O'lSTeil^ 7 id., 197; s. c. 26 
 State Eep., 242 (an attorney cannot testify as to acts and words 
 of his client relative to his will or its execution) ; Eastman v. 
 Kelly, 1 IST. Y. Supp. , 866 (an attorney may be asked if he is 
 not interested in the action to the extent of a share in the recov- 
 ery) ; Matter of Whitlock, 51 Plim, 351 ; s. c. 3 N. Y. Supp., 
 855 (an attorney will not be compelled to produce his client's 
 papers) ; Chellis v. Chapman, 7 id., 78 (in an action for breach 
 ■of promise to marry, defendant may be asked whether he gave 
 all of plaintiff's letters to him to his attorney) ; see following 
 cases as to general rule, that communications by a client to an 
 attorney are privileged ; Matter of McCarthy, 14 IST. Y. Supp., 
 2; Mason v. Williams, 53 Hun, 398; Mclutyre v. Costello, 
 6 N. Y. Supp., 397 ; IS^ey v. City of Troy, 3 id., 679 ; Eastman 
 -y. Kelly, 1 id., 866. North Carolina : Grant v. Hughes, 1887, 
 2 Southeast. Rep., 339 (in an action against an administrator for 
 a fraudulent settlement of the estate, the attorney who collected 
 for him certain notes belonging to the estate may testify as "to 
 the terms of such collections) ; Carey v. Carey, 108 N. C, 267 ; 
 s. c. 12 Southeast. Rep., 1038 (communications between attorney 
 and client in the presence of the adverse party, are not priv- 
 ileged;) ; s. p. Hughes v. Boone, 102 N. C, 137 ; s. c. 9 South- 
 east. Eep., 286 ; Michael v. Foil, 1888, 8 id., 264 (an attorney 
 who drew the deed may testify as to what took place between 
 the grantor and the grantee, whether he acted for one or both). 
 Oregon: State v. Gleason, 1890, 23 Pacific Rep., 817 (where, in 
 supplementary proceedings, defendant's attorney testifies that 
 after the action was begun he had in his possession certain pro- 
 perty of defendants, he may be required to specify what he had, 
 and what he did with it). Pennsylvania : Kant v. Kessler, 
 1887, 7 Atlantic Rep., c86 (knowledge acquired by an attorney 
 from direct verbal utterances of his client, is privileged) ; Appeal 
 . of Goodwin,^ etc. Meter Co., 1888, 12 id., 736 (communications 
 by two parties to an attorney acting for both, are not con- 
 
I. Competency. (12) Attorney and Client. 95 
 
 Note on Pi-ofessional Communications with Attorney. 
 
 fidential) ; Weaver's Estate, 9 Pa. Co. Ct. E., 516 (an attorney 
 may testify as to "^vliat took place between two persons in his 
 otBce, thougliboth were clients). Texas : Kalimw. State, 1892, lY 
 Southwest. Rep., 416 (the attorney for one, charged with perjury 
 for swearing that he did not sigo an order, may testify that 
 defendant did sign it) ; Everett v. State, Tex. App., 1892, 18 
 Southwest. Rep., 674 (upon trial for murder, deceased's attorney 
 may testify that deceased inquired of him how he could kill 
 defendant so as to avoid legal consequences) ; Orman v. State, 
 1888, 6 id., 544 (upon a murder trial an attorney may testify 
 that defendant eonsiilted him as to the penalty of killing de- 
 ceased). United States : Alexander v. TJ. S., 138 U. S., 353 
 (upon a murder trial an attorney cannot testify as to defendant's 
 consultation with him as to the former's rights over partnership pro- 
 perty, owing to the disappearance of his partner, the deceased) ; 
 Edison Electric L. Co. v. U. S. Electric L. Co., 44 Fed. Eep., 
 294 (non-compliance with a subpoena d-uoes tecum, cannot be ex- 
 cused by showing that the witness had delivered the documents, 
 unprivileged in his own hands to his attorney). Vermont : 
 Arbuckle?;. Templeton, 1893, 25 Atlantic Rep., 1095 (an attorney 
 cannot testify as to the indorsement on a note which his client 
 has shown to him); Hick's Estate v. Blancliard 1888, 15 At- 
 lantic Rep., 401 (an attorney who acted for plaintiff cannot tes- 
 tify in behalf of defendant that he furnished defendant with a 
 specification of plaintiff's claim, materially different from that 
 on file). Wisconsin: Selden v. State, 74 Wis., 271; s. c. 42 
 Northwest. Rep., 218 (on husband's trial for perjury his wife's 
 attorney cannot produce the husband's letters to her in his posses- 
 sion, without her consent, even if the giving of such letters in 
 evidence did not violate the rule as to confidential communica- 
 tions between husband and wife) ; C. Aultman & Co. v. Ritter, 
 1892, 5 Northwest. Rep., 569 (an attorney may testify in behalf 
 of another and against his client that he received a check from 
 the latter with which to make a payment for him, and that he 
 made the payment) ; Piano Manuf'g Co. v. Frawley, 1887, 32 id., 
 768 (an attorney may testify against his client as to the existence 
 of a matter of fact). 
 
96 Abbott's Select Cases on Examining "Witnesses. 
 Note on Professional Communications witli Attorney. 
 
 Who 7nay Insist upon the Privilege : 
 
 Laymen's Will, 40 Minn., 371 ; s. c. 42 Nortliwest. Rep., 286 
 (upon a contested probate proceeding, a contestant and heir at 
 law cannot object to the testimony of testator's attorney as to 
 his communications with deceased upon business matters where 
 the object of the testimony is to show the testator's capacity, and 
 does not, in any way, reilect on his character). Gruber v. Baker, 
 20 Nev., 453 ; s. c. 23 Pacific Rep., 453 (an attorney employed 
 by several parties to draw a deed is an incompetent witness as to 
 communications in relation thereto, in a controversy between 
 one of the parties and a third person). Matter of Mellen, 18 
 N. Y. Supp., 515 (an attorney cannot raise the objection where 
 the person, whom he claims as a client, disclaims the relation). 
 McISTulty's Appeal, Pa., 1890, 19 Atlantic Rep., 936 (a third 
 person cannot object to the disclosure of confidential communi- 
 cations by an attorney). Smith v. Wilson, 1 Tex. Civ. App., 
 115 ; s. c. 20 Southwest. Rep., 1119 (the privilege is personal 
 to the client and cannot be claimed by his adversary). 
 
 Manner of Oijectmg : 
 
 California : Sharon v. Sharon, 79 Cal., 633 ; s. c. 2t>. Pacific 
 Rep., 26 (the burden is on the objecting party to show 
 that communication is within the statute). Georgia : Brown v. 
 Matthews, Ga., 1887, 4 Southeast. Rep., 13 (in order to exclude 
 communications on the ground that they were made to an 
 attorney, the relation of attorney and client must be manifest). 
 New Jer-^ey : Matthews v. Hoagland, N. J., 1891, 21 Atlantic 
 Rep., 1054 (in a civil suit the first test as to whether the com- 
 munication between an attorney and client involved a purpose 
 which was or was not tainted with fraud as affecting the privi- 
 lege, is the issue as made by the pleading in the cause). JSfew 
 York : Brennan v. Hall, 131 IST. Y., 160 ; s. c. 29 Northeast. 
 Rep., 1009 (where an attorney is questioned as to a conversation 
 between his client and a third person, his testimony being com- 
 petent as to the statements of the latter, an objection to his testi- 
 fying as to the entire conversation is too broad». McClure v. 
 Goodenough, 19 Civ. Pro. R., 191 ; s e. 12 N. Y. Supp., 459 
 
I. Competency. (12) Attorney and Client. 9T 
 
 Note on Professional Communications with Attorney. 
 
 (where an attorney, as a witness, states tliat professional com- 
 munications are involved, he will be excused from answering). 
 Nortli Carolina: Hughes v. Boone, 102 N. C, 137; s. v. 9 
 Southeast. E,ep., 286 (it is for the court to determine whether 
 communications to an attorney are privileged, and for tliis pur- 
 pose it may inspect documents drawn by him). Texas : Harris 
 V. Daugheriy, Tex., 1889, 11 Southeast. Rep., 921 (where the 
 evidence is conflicting as to whether an attorney was employed, 
 the admissibility of communications to him is to be determined 
 by the court). 
 
 Wai 
 
 aiver 
 
 Georgia : Lewis v. State, 1893, 16 Southeast. E.ep., 986 (a 
 client cannot call his attorney to testify as to a confidential com- 
 munication made to him). Fire Assn. v. Fleming, 1887, 3 
 Southeast. Rep., 420 (the fact that evidence as to confidential 
 communications between attorney and client has been wrongfully 
 admitted on a former trial, does not justify a repetition of the 
 error on a second trial). Michigan : People v.. Hillhouse, 1890, 
 45 Northwest. Rep., 484 (though defendant, in a prosecution for 
 larceny, testifies that his attorney advised him that he could 
 take the property, if he could do so peaceably, the attorney can- 
 not be called to testify as to what advice he gave) ; People 
 V. Gallagher, 75 Mich., 512; s. c. 42 ISTorthweit. Rep., 1063 
 (statements to his attorney by one who has admitted his connec- 
 tion with a crime and testifies against his accomplices, are not 
 privileged communications, but the testimony of the attorney 
 may be admitted to impeach such witness). Mississippi : Jones 
 V. State, 1888, 3 Southern Rep., 379 (an accomplice, who has 
 tm-ned State's evidence, waives all privileges as to the facts 
 pertinent to the issue, and may be compelled to testify as to 
 consultations with his attorney). NewYo7^h: Matter of Cole- 
 man, 111 N. Y., 220 ; s. c. 19 Northeast. Rep., 71 (a testator 
 by requesting an attorney to become a subscribing witness to his 
 will waives the privilege so as to permit the attorney after the 
 testator's death to testify in proceedings to probate the will as to 
 his instructions for drawing the will) ; s. p. Matter of Lamb, 21 
 Civ. Pro. R., 324; s. c. 18 N. T. Supp., 173; Matter of 
 
98 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Professional Communications with Attorney. 
 
 Gagan, 21 id., 350; Loder v. Whelpley, 111 N. Y., 239 ; s. c. 
 18 ISTortheast. Rep., 874 (in a probate proceeding tlie privilege as 
 to communications by testator to his attorney cannot be waived 
 by the executor or any one else) ; Mutual Life Ins. Co. v. Corey, 
 54 Hun, 493 ; s. c. Y IM". Y. Supp., 939 (a notary is competent 
 to testify as to the acknowledgment of a deed, though he was 
 attorney for the grantor) ; JVEasterton v. Boyce, 6 id., 65 (a client 
 may waive the privilege by himself, examining his attorney as a 
 witness ; s. p. Smith v. Crego, 7 id., 86). South Carolina : 
 Brazel v. Fair, 2 Southeast. Rep., 293 (an attorney who wit- 
 nessed a declaration of trust drawn by himself is a competent 
 witness to prove the consideration) ; State v. James, 1891, 1'i id., 
 657 (though a conspirator, who turned State?s evidence, denied 
 on cross-examination, that he had ever told his attorney that a 
 confession had been procured from him by threats, his attorney 
 cannot be compelled to disclose what was said in order to 
 impeach him). United States : Hunt v. Blackburn, 1888, 8 
 Supm. Ct., 125 (iwhere a defendant, who alleges that she was 
 deceived by her attorney, testifies in relation thereto, she cannot 
 object to the testimony of the attorney upon the same matter) ; 
 Liggett V. Glenn, 2 U. S. Cir. Ct. App., 286; s. c. 61 Fed. 
 Hep., 381 (a contract by which shareholders employed an 
 attorney, and which had been filed by the attorney in the Pro- 
 bate Court as a voucher for a claim for fees against one of his 
 deceased clients, cannot be ofEered in evidence by third persons 
 in an action against the clients to show that they were share- 
 holders ; since no matter how the plaintifEs obtained possession 
 of the document, it could not be deprived of its character as a 
 privileged communication without some unequivocal act on the 
 part of the clients themselves). Wisconsin : Matter of Pitt's 
 Estate, 1893, 55 JSTorttiwest. Eep., 149 (in an action to contest a 
 will, testator's attorney who witnessed the will may testify as to 
 any fact in regard to it, or its execution, which he learned by 
 virtue' of his professional relation). 
 
I. Competency. (13) Physician and Patient. 99 
 
 Connecticut Life Ins. Co. v. Union Trust Co., 113 U. S., 250. 
 
 CONNECTICUT LIFE INS. CO. v. UNION TEUST CO. 
 
 United States Supreme Court, November, 188^. 
 [Reported in 113 U. S., 250.] 
 
 The act of Congress (U. S. K. S., § 731)— which makes the laws of the 
 several states rules of decision on trials at common law* in the federal 
 courts,— require those courts to enforce in such actions the exclusion 
 by a state statute (for example, N. Y. Code Civ. Pro., § 834) exclud- 
 ing information acquired by a physician or sm-geon in professionally 
 attending a patient, and which was necessary to enable him to act in 
 that capacity. 
 
 Hence, under such a statute, the physician of the deceased cannot in an 
 action on a life policy testify to the cause of death as learned by him 
 in that way. 
 
 The widow of the deceased cannot, in an action on a life policy, be asked 
 as a witness "Did you understand from your husband the nature of 
 the disease?" for the question calls for what may be nothing more 
 than the operation of her mind. 
 
 Action on a life policy. 
 
 The facts appear in the opinion. 
 
 After judgment for plaintiff, defendant brought error. 
 
 Haelan, J. \afttr stating facts] : 1. In support of the 
 defence, physicians, who had attended the insured professionally, 
 were examined as witnesses, and the first assignment of error 
 relates to the refusal of the court to permit them to answer 
 questions, the object of which was to elicit information which 
 would not have been allowed to go to the jury under section 834 
 of the Code of Civil Procedure of New York, had the action 
 been tried in one of the courts of the state. That section pro- 
 vides that " a person, duly authorized to practice physic or 
 surgery, shall not be allowed to disclose any information which 
 he acquired in attending a patient, in a professional capacity, 
 and which was necessary to enable him to act in that capacity." 
 It is not, and could not well be, seiiously questioned, that the 
 evidence excluded by the Circuit Court was inadmissible under 
 the rule prescribed by that section. Grattan v Metropolitan 
 
 *Asto eqnity and admiralty, Bce U. !^. E. S. % 911. 
 
100 Abbott's Select Cases on Examining Witnesses. 
 
 Connecticut Life Ins. Co. v. Union Trust Co., 113 U. S., 350. 
 
 Life Ins. Co., 92 N. Y., 274; Same v. Same, 80 N. Y., 281; 
 Pierson v. People, 79 JST. Y., 424 ; Ediagton v. J]]tna Life Ins. 
 Co., 77 N. Y., 664; Edington v. Mutual Life Ins. Co., 67 
 K Y., 185. 
 
 But it is suggested that trutli and justice require the admission 
 of evidence which this statutory rule, rigorously enforced, would 
 exclude, and that it can be admitted without disturbing the 
 relations of confidence properly existing between physician and 
 patient ; that it would not afflict the living nor reflect upon the 
 dead, if the physician should testify that his patient had died 
 from a fever, or an affection of the liver ; and that the rule, as 
 now understood and applied in the courts of New York, shuts 
 out, in actions upon life policies, the most satisfactory evidence 
 of the existence of disease, and of the cause of death. These 
 considerations, not without weight, so far as the policy of such 
 legislation is concerned, are proper to be addressed to the legis- 
 lature of that state. But they cannot control the interpretation 
 of the statute, where its words are so plain and unambiguous as 
 to exclude the consideration of extrinsic circumstances. Since 
 it is for that state to determine the rules of evidence to be ob- 
 served in the courts of her own creation, the only question is 
 whether the Circuit Court of the United States is required, by 
 the statutes governing its proceedings, to enforce the foregoing 
 provision of the New York Code. This question must be 
 answered in the affirmative. By § 721 of the Kevised Statutes, 
 which is a reproduction of § 34 of the Judiciary Act of 1789, it 
 is declared that " the laws of the several states, except where the 
 constitution, treaties, or statutes of the United States otherwise 
 require or provide, shall be regarded as rules of decision in trials 
 at common law in the courts of the United States, in cases where 
 they apply." This has been uniformly construed as requiring 
 the courts of the union, in the trial of all civil cases at common 
 law, not within the exceptions named, to observe, as rules of 
 decision, the rules of evidence prescribed by the laws of the 
 states in which such courts are held. Potter v. National Bank, 
 102 U. S., 166; Vance ■«. Campbell, 1 Black, 427; Wrights. 
 Bales, 2 Black, 536 ; McNeil v. Holbrook, 12 Pet., 84 ; Sims v. 
 Hundley, 6 How., 1. 
 
I. Competency. (13) Physician and Patient. 101 
 
 Connecticut Life Ins. Co. v. Union Trust Co., 113 U. S., 250. 
 
 There is no ground for the suggestion that §§ 'i'21, 85S and 
 914 of the Revised Statutes may be construed as relating to the 
 competency of ^\•itnesses rather than to the nature and principles 
 of evidence. While in some of tlie cases the question was 
 whether a witness, competent under the laws of a state, was not, 
 for that reason, under § 34 of the act of 1789, a competent wit- 
 ness in the courts of the United States sitting within the same 
 state, in others the question had reference to the intrinsic nature 
 of the evidence introduced. In McNeil v. Holbrook the court 
 held the courts of the United States, sitting in Georgia, to be 
 bound by a statute of that state declaring, as a rule of evidence, 
 that in all cases brought by an indorser or assignor on any bill, 
 bond, or note, the assignment or indorsement, without regard to 
 its form, should be sufficient evidence of the transfer thereof ; 
 the bond, bill, or note to be admitted as evidence without the 
 necessity of proving the handwriting of the assignor or indorser. 
 And in Sims v. Hundley a notary's certificate, held to be inad- 
 missible as evidence under the principles of general law, was 
 admitted upon the ground that, having been made competent by 
 a statute of Mississippi, it was competent evidence in the Circuit 
 Court of the United States sitting in that state. 
 
 We perceive nothing, in the other sections of the Revised 
 Statutes, to which attention is called, that modiiies §721, except 
 that, by § 858, the courts of the United States, whatever may be 
 the local law, must be guided by the rule that " no witness shall 
 be excluded in any action on account of color, or in any civil 
 action because he is a party to or interested in the issue tried ; " 
 and by the further rule, that, " in actions by or against executors, 
 administrators, or guardians in which judgment may be rendered 
 for or against them, neither party shall be allowed to testify 
 against the other, as to any transaction with, or statement by, the 
 testator, intestate or ward, unless called to testify thereto by the 
 opposite party, or required to testify thereto by the court." 
 " In all other respects," the section proceeds, " the laws of the 
 state in which the court is held shall be the rules of decision as 
 to the competency of witnesses in the courts of the United States 
 in trials at common law, and in equity and admiralty." As to 
 J- 914, it is sufficient to say that it does not modify § 721 in so 
 
102 Abbott's Select Cases on Examining Witnesses. 
 
 Connecticut Life Ins. Co. v. Union Trust Co., 113 U. S., 350. 
 
 far as the latter makes it the duty of the courts of the United 
 States in trials at common law, to enforce — except where the 
 laws of the United States otherwise provide — the rules of evi- 
 dence prescribed by the laws of the state in which they sit. 
 
 For these reasons, it is clear that the Circuit Court properly 
 refused to permit physicians called as witnesses to disclose in- 
 formation acquired by them while in professional attendance 
 upon the insured, and which was necessary to enable them to act 
 in that capacity. 
 
 2. The widow of the insured having been called as a witness 
 on behalf of the company, it is contended that the court erred in 
 not allowing her to answer this question : " Did you not under- 
 stand from your husband the nature of the disease ? " That 
 question, it is claimed, called for information derived from the 
 insured as to the nature of any disease under which he may have 
 been sufiering at a particular time prior to his application. If 
 she was a competent witness, and if the statements of the insured 
 to her were admissible upon the issue whether he had concealed 
 any fact in his personal history or condition with which the com- 
 pany ought to have been made acquainted, or upon the issue 
 whether he had made fair and true answers to the questions put 
 to him, still the question did not call for his statements, but only 
 as to what the witness understood from him as to the nature of 
 his disease. Her statement of what she understood may not 
 have been justified by what the insured actually said, and may 
 have been nothing more than the unwarranted deduction of her 
 own mind. The objection to the question was properly sus- 
 tained. 
 
 [^Rulings on other subjects are here omitted.l 
 
 Judgment alBrmed. 
 
I. Competency. (13) Physician and Patient. 103 
 
 Edington v. Mutvial Life Ins. Co., 67 N. Y., 185. 
 
 EDINGTON ». MDTUAL LIFE INS. CO. 
 
 New York Court of Appeals, Novemher, 1876. 
 
 [Reported in 67 N. Y., 185.] 
 
 The statute, 3 N. Y. R. S. 406, § 73 (same continued in N. Y. Code Civ. 
 Pro., § 834) — providing thiat a physician, etc., shall not disclose infor- 
 mation received as such, etc., — is remedial, and should be liberally 
 construed for the protection of the confidence of patients. 
 
 The word " information " includes not only what the patient said, but as 
 well what attendants said, and what was learned from observation, 
 appearance and symptoms. 
 
 It is not error to refuse a general offer of the testimony of several physi- 
 cians even though the testimony of one of them woidd have been 
 competent. 
 
 The patient's assignee of a cause of action is entitled to invoke the privilege 
 against testimony of the physician, even after the patient's death. 
 
 The statutory privilege is not abrogated by the adoption of the provisions 
 of law allowing parties to be examined at the instance of their ad- 
 versaries. 
 
 Appeal from judgment for plaintiif ordered at General Term, 
 on exceptions taken at the trial where the judge directed a ver- 
 dict for plaintiff and ordered the exceptions to be heard in the 
 first instance at General Term (C. C. P., § 1000). 
 
 The action was brought upon several insurance policies issued 
 by defendants to one Dief endorf , and by him assigned to the 
 plaintiff. 
 
 These questions appeared in each application : " How long 
 " since you were attended by a physician ? For what diseases ? 
 " Give name and residence of such physician; name and resi- 
 " dence of your usual medical attendant." The answer on the 
 first and second application was : " Dr. Carpenter has known me 
 two years ; " that given on the last application was : " Have 
 none ; only consulted Dr. C. H. Carpenter now and then for 
 shght ailments, and taken his prescriptions. C. H. Carpenter, 
 Geneva, has known me three years." Dr. Carpenter was sworn 
 as a witness by the defendant's counsel, who then made the 
 following offer : 
 
 To prove by the physicians who were called upon to attend 
 and prescribe for Diefendorf during the years 1863, 1864, 1865, 
 
104 Abbott's Select Cases on Examining Witnesses. 
 
 Edington v. Mutual Life Ins. Co., 67 N. Y., 185. 
 
 1866, 1867 and 1868 (being the same above sworn), tliat during 
 all of those years he was afflicted, to a very serious degree, with 
 certain chronic diseases, and that these diseases increased upon 
 him to his death ; that the knowledge which they obtained 
 upon the subject was obtained solely from their attendance upon 
 him as physicians, and not from any information received from 
 him. 
 
 The plaintiff's counsel objected to the offer on the ground 
 that the same was privileged from disclosure under the statute. 
 The court sustained the objection and the defendant's counsel 
 duly excepted. 
 
 The defendant then rested its case, and the judge directed a 
 verdict in favor of the plaintiff. 
 
 The Supreme Court at General Term, in oi'dering judgment 
 for the plaintiff, were of the opinion that the reference to Dr. 
 Carpenter, as his usual medical attendant, by the insured in his 
 application for insurance did not waive the privilege ; that 
 {first) the reference to the physician is explained by saying it 
 was given to enable defendants to verify the assured's state- 
 ment by inquiries out of court, rather than by an examination of 
 him as a witness ; and {second) inasmuch as the privilege would 
 ordinarily arise after the assured's death, and cannot in the 
 usual course of things be claimed by him, the assured cannot 
 waive the privilege. The privilege is that of the " party," but 
 the meaning of this is that the physician will not be allowed to 
 break the seal of confidence, of his own volition, but must have 
 the consent of the patient ; and where the patient dies before 
 giving such consent, the consent must be given by the living 
 litigant, who is the "party" referred to by the statute. It 
 would be unreasonable to suppose that it was the legislative 
 intention that the protection afforded by the statute should 
 wholly cease with the patient's death. 
 
 That the word " information," as used in the statute, compre- 
 hends the knowledge which the physicians acquired in any way 
 while attending the patient, whether by their own insight, or by 
 verbal statements from him, or from members of his household, 
 or from nurses or strangers given in aid of the physician in the 
 performance of his duty. 
 
I. Competency. (13) Physician and Patient. 105 
 
 Edingtoa v. Mutual Life Ins. Co., 67 N. Y., 185. 
 
 That the statutory privilege was not abrogated by § 390 of 
 the code, enabling a party to examine the adversary as a witness ; 
 that the statutes are not inconsistent, and can be both enforced. 
 
 2'he Court of Appeals reversed the judgment. 
 
 Miller, J. \_after passing 07i other rulings'] : The testimony 
 of the physicians, offered upon the trial we also think was 
 properly rejected for the reason that the information asked for 
 was obtained by the several physicians while attending the in- 
 sured as a patient, in a professional character, and was therefore 
 privileged within the provision of a statute of this state (2 R. S., 
 406, §73). The statute is very explicit in forbidding a physician 
 from disclosing any information received by him which is neces- 
 sary to enable him to prescribe for a patient under his charge. 
 It is a just and useful enactment, introduced to give protection 
 to those who were in charge of physicians from the secrets dis- 
 closed to enable them properly to prescribe for diseases of the 
 patient. To open the door to the disclosure of secrets revealed 
 on the sick bed, or when consulting a physician, would destroy 
 confidence between the physician and the patient, and it is easy 
 to see, might tend very much to prevent the advantages and 
 benefits which flow from this confidential relatipnship. The 
 point made that there was no evidence that the information asked 
 for was essential to enable the physician to prescribe is not well 
 taken, as it must be assumed from the relationship existing, that 
 the information would not have been imparted except for the 
 purpose of aiding the physician in prescribing for the patient. 
 Aside, however, from this, the statute in question, being reme- 
 dial, should receive a liberal interpretation and not be restricted 
 by any technical rule. When it speaks of information it means 
 not only communications received from the lips of the patient, 
 but such knowledge as may be acquired from the patient him- 
 self, from the statement of others who may surround him at 
 the time, or from observation of his appearance and symptoms. 
 " Even if the patient could not speak, or his mental powers were 
 so affected that he could not accurately state the nature of his 
 disease, the astute medical observer would readily comprehend 
 his condition. Information thus acquired is clearly within the 
 
106 Abbott's Select Cases on Examining Witnesses. 
 
 Edington v. Mutual Life Ins. Co., 67 N. Y., 185. 
 
 scope and meaning of the statute. None of the cases cited by 
 the appellant's counsel are in conflict, with the interpretation 
 given. In Kendall v. Gray (2 Hilt, 300), the judge, in his re- 
 marks as to the general rule of evidence on the subject, gives 
 full force to the statute, and applies it to physicians while attend- 
 ing patients professionally. The evidence there offered also was 
 not from the physician, and the communication does not appear 
 to have been made the basis of a prescription, and it was held tO' 
 be competent. In Hewit v.. Prince (21 Wend., 79), it was held 
 that a physician who had been consulted by the defendant as to 
 the means of procuring an abortion was not privileged from 
 testifying. This is not a case in point, and the decision was 
 placed upon the ground that it was doubtful whether the com- 
 munication to the physician could be considered as made while 
 consulting him professionally, and that the information given 
 was not essential to enable him to prescribe for the patient. 
 Neither of these cases sustain^the doctrine contended for by the 
 appellant's counsel. 
 
 It is also urged that as to Dr. Carpenter there was a covenant 
 that he was competent and empowered to give information as to 
 the state of health of the insured, and as to other matters, and 
 it was competent for the insured to waive the privilege, and he 
 did so waive it as to Carpenter. He was the medical referee for 
 the purpose of answering inquiries as to the condition of health 
 of the insured, with a view of enabling the defendant to deter- 
 mine the accuracy of his statements in the applications. The 
 offer of evidence made in connection with the testimony of Dr. 
 Carpenter was general in its character, embracing all the physi- 
 cians who had attended and prescribed for the insured, and not 
 being restricted to proof from him as a medical examiner, the 
 question does not arise whether it would have been competent if 
 made in that qualified form. 
 
 There is no ground for claiming that the right of objecting to 
 the disclosure of a privileged communication is strictly personal 
 to the party making it, or to his personal representatives, and 
 that it cannot be available to a third party. No valid reason in 
 shown why an assignee does not stand in the same position in 
 this respect as the original party, and the decease of the latter 
 
I. Competency. (13) Physician and Patient. lOT 
 
 Edington v. Mutual Life Ins. Co., 67 N. Y., 185. 
 
 cannot affect the right of the former to assert this privilege. 
 The authorities cited to uphold a contrary doctrine do not ga to- 
 the extent claimed, with single exception, perhaps, of Allen v. 
 The Public Administrator (1 Brad., 221), where the question 
 presented was decided as apparently arising during the progress 
 of the hearing. It is subsequently reported at page 378 of the 
 same volume, where the will was admitted to probate, and 
 although the case was heard in the Coart of Appeals, it does not^ 
 appear that the point first decided was considered or determined. 
 How far a distinction may be held to exist where the question 
 arises upon the probate of a will and a case where an assignee 
 has acquired a right, it is not necessary to determine at this time,, 
 but the general rule is well settled that the protection* which the 
 law gives to communications made in professional confidence does 
 not cease upon the death of the party. The seal which the law 
 fixes upon such communications remains unless removed by the 
 party himself or by his legal representative (1 Greenl. Ev., 
 §243). 
 
 It is also urged that section 390 of the Code, by -virtue of 
 which, a party to an action may examine the adverse party as a 
 witness in the same manner as other witnesses maybe examined,, 
 abrogates the privilege ; and as it would have been competent, 
 if the applicant had been living, to have examined hkn as a 
 witness, no privilege can be interposed by reason of his death. 
 Some cases are cited to sustain this position which have refer- 
 ence to the relationship between attorneys and their clients while 
 both are alive, and the effect of the section cited upon the same- 
 It is not necessary to determine whether these decisions can be 
 upheld as these cases present somewhat of a different question. 
 But even if there be any valid ground for holding that while 
 the parties are alive the Code sweeps away the common law rule 
 established in the interest of justice and on grounds of public 
 pohcy, that communications made confidentially between an 
 attorney and his client are privileged and should be protected, it 
 by no means necessarily follows that the positive enactment of a 
 statute which established the same rule which previously had no 
 existence in reference to the relationship existing between the 
 physician and his patient is to be regarded as nugatory. 
 
108 Abbott's Select Cases on Examining Witnesses. 
 Edington v. Mutual Life Ins. Co., 67 N. Y., 185. 
 
 The section of the code and the statute referred to are in 
 entire harmony, and, as a repeal by implication is not to be 
 encom-aged, each of them can be enforced without any inconsist- 
 ency. It is not to be assumed that the legislature intended to 
 repeal a law which was enacted to prevent the disclosure of 
 il^formation acquired by medical men in a professional capacity 
 and to remove what was previously regarded as a reproach upon 
 the administration of justice without some clear and emphatic 
 indication to that effect (People v. Street, 3 Park. Cr., 6Y3 ; 3 
 E. S. [2d ed.], 737). This is wanting, and we think that the 
 statute remains in full force and has not been affected by the 
 provision of the code cited. 
 
 [The opinion then discussed the question of a fraudulent sup- 
 pression of the truth in deceased's answers upon his application, 
 and, for a refusal to submit this point to the jury, judgment 
 was 7'eversed.'] 
 
 All the judges concurred (Church, J., in result) except Folger 
 and Eapallo, JJ., not sitting. 
 
I. Competency. (13) Physician and Patient. 109 
 
 Edington v. ^Etna Life Ins. Co., 77 N. Y., 564. 
 
 EDINGTON V. ^TNA LIFE INS. CO. 
 
 New YorTi Court of Appeals, 1879. 
 
 [Reported in 77 N. Y., 564.] 
 
 "Where insured had died of nervous apoplexy within three years after the 
 policy of insurance was issued upon his warranty that he was then 
 and had been for seven years previous, in good health and of sound 
 bodj', it is error to exclude, as immaterial, expert testimony that 
 death by such disease, is the result of some diseases of long' standing, 
 and not of any sudden cause; such evidence is material, as bearing- 
 upon the warranty. 
 
 It is not sufficient to authorize the exclusion of evidence under 3 R. S., p. 
 406, § 73 (C. O. P., § S34, substantially,)— that the physician acquired 
 the information while attending the patient— but it must be the 
 "necessary" information mentioned in the statute. 
 
 Before exclusion of evidence is authorized under this statute, the facts 
 must in some way appear which justify such exclusion, and the bur- 
 den is upon the party objecting to show those facts. 
 
 Plaintiff sued on an insurance policy. The answer alleged 
 that the pchcy had been obtained upon false warranties as to the 
 insured's condition. 
 
 The facts material to the ruling on the question of privilege 
 fully appear in the opinion. 
 
 At Circuit a judgment was entered for plaintiff. 
 
 The Supreme Court at General. Term affirmed the judgment, 
 and Ipasshig on these points] held, that the testimony regard- 
 ing the causes producing nervous apoplexy was properly ex- 
 cluded, as immaterial. 
 
 That Dr. Eastman's testimony was properly excluded, since 
 the statute prevents not only a direct disclosure, but also the 
 giving of any answer tending to throw light upon the subject of 
 the prohibition. If the question, " was he cured when he left 
 your hands," were answered, it would open the door to an inquiry 
 as to the maladies for which deceased was treated, and as to his 
 condition while under witness' treatment. The question calling 
 for witness' opinion of deceased's condition was objectionable, 
 since that opinion must necessarily be based, in part at least, on 
 
110 Abbott'k Select Cases on Examining "Witnesses. 
 
 Edington v Mtaa, Life Ins. Co., 77 N..Y., 564. 
 
 the information acquired by him in his professional attendance 
 on deceased ; nor was the objection obviated by the next 
 question, which excluded any knowledge or information he had 
 ■obtained while treating deceased, since it was impossible for the 
 witness to exclude such information from his mind in forming 
 an opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Eael, J. {after reviewing some of the facts'] : Dr. Picot 
 -was the physician who attended Diefendorf in his last illness in 
 1871, when he died ; and he certified and testified that his death 
 was caused by nervous apoplexy. He was then asked this 
 question : " State what causes will produce that ? " This was 
 objected to on the part of the plaintiffs as immaterial, and the 
 objection was sustained. Subsequently, Dr. S-\vart, a physician 
 of many years practice, was called by the defendant and testified 
 that he was very familiar with the disease called nervous 
 apoplexy, and that he knew what the authorities say about it. 
 He was then asked this question : " State to the jury what it 
 (the disease) is ? " The plaintiffs objected to this, and the objec- 
 tion was sustained. Defendant's counsel then offered to show 
 by the witness " that death by nervous apoplexy is the result of 
 some disease or diseases of long standing, and not from any sud- 
 •don cause." This evidence was also objected to and excluded. 
 The evidence excluded by these rulings should have been admit- 
 ted. It was not immaterial. Less than three years before his 
 death the assured had warranted that he was then in good health 
 and of sound body, and that he usually enjoyed good health, and 
 that he had not during seven years previous thereto had any 
 ■severe disease. As bearing upon these warranties, the defendant 
 had the right to show the nature of the disease of which the as- 
 sured died, and that it was of long standing 
 
 Dr. Eastman was called as a witness for the defendant, and 
 testified that his acquaintance with the assured commenced in the 
 winter of 1862, and continued to the time of his death ; that he 
 saw him almost daily during that winter ; and that he treated 
 him professionally during the following spring and summer, 
 prescribing for him frequently, and then ceased to attend him 
 
I. Competency. (13) Physician and Patient. Ill 
 
 Eding-ton v. Miua. Life Ins. Co.. 77 N. Y., 564. 
 
 professionally or to be consulted by him. After that, to the 
 time of his death, he continued to see him frequently, as he met 
 him in the street and other places. He testified that he did not 
 appear like a well man ; that he was sick, weak, had the appear- 
 ance of debility; that his step was slow and languid, and his 
 voice was low and feeble ; that he appeared like a feeble man, a 
 man out of health ; that at times he appeared better, and at 
 other times worse, and that on the whole his progress was down- 
 ward, to the time of his death ; and that from time to time he 
 discovered eruptions and pimples upon his face, which he de- 
 scribed. He was asked this question : " Was he cured when he 
 left your hands ? " This was objected to by the plaintiffs and 
 excluded. The following questions were also put, objected to 
 and excluded : " In the month of May, 1867, in your opinion 
 was Wilbur F. Diefendorf a man in good health and of sound 
 body, and one who usually enjoyed good health ? " " Excluding 
 any knowledge or information that you obtained while treating 
 Diefendorf, and judging from his appearance from that time 
 until 1867, what is your opinion as to whether he was a man in 
 good health, of sound body, and a man who usually enjoyed 
 good health 1 " It cannot be doubted that these questions were 
 very material, and that they were such as could properly be put 
 to a physician. But they were excluded under the statute (2 E. 
 S., 406, § 73) which. provides, that "no person duly authorized 
 to practice physic or surgery, shall be allowed to disclose any in- 
 formation which he may have acquired in attending any patient, 
 in a professional character, and which information was necessary 
 to enable him to prescribe for such patient as a physician, or to 
 do any act for him as a surgeon." 
 
 The rule excluding such evidence depends entirely upon this 
 statiite. It did not exist at common law (1 Philips on Ev., 164 ; 
 Duchess of Kingston's Case, 20 How. St. Tr., 613). It should 
 not, therefore, be made broader by construction than the language 
 of the statute plainly requires ; and in applying the statute, the 
 purpose of its enactment should be kept in view ; and that was 
 tersely expressed by the revisers, in a note to the section, as 
 follows : ". The ground on which communications to counsel are 
 privileged, is the supposed necessity of a full knowledge of the 
 
112 Abbott's Select Cases on Examining Witnesses. 
 
 Edington v. Mtaa Life Ins. Co., 77 N. Y., 564. 
 
 facts, to advise correctly, and to prepare for the proper defense 
 or prosecution of a suit. But surely the necessity of consulting 
 a medical adviser, when life itself may be in jeopardy, is still 
 stronger. And unless such consultations are privileged, men 
 will be incidently punished by being obhged to suffer the con- 
 sequences of injuries without relief from the medical art, and 
 without conviction of any offence. Besides, in such cases, during 
 the struggle between legal duty on the one hand, and professional 
 honor on the other, the latter, aided by a strong sense of the 
 injustice and inhumanity of the rule, will, in most cases, furnish 
 a temptation to the perversion or concealment of truth, too strong 
 for human resistance." 
 
 Before information can be excluded under this statute, it 
 must appear that it was such as the physician acquired in some 
 way while professionally attending a patient ; and it must also be 
 such as was necessary to enable him to prescribe as a physician, 
 or to do some act as a surgeon. It is not sufficient to authorize 
 the exclusion that the physician acquired the information while 
 attending his patient ; but it must be the necessary information 
 mentioned. If the physician has acquired any information 
 which was not necessary to enable him to prescribe, or to act as 
 a surgeon, such information he can be compelled to disclose, 
 although he acquired it while attending the patient ; and before 
 the exclusion is authorized, the facts must ia some way appear 
 upon which such exclusion can be justified. 
 
 Now as to the first of the three questions above stated, it is 
 necessarily inferable from the evidence that the witness attended 
 the assured for some disease. But it does not appear that he 
 discovered that disease or learned its nature while attending him 
 professionally. He saw him frequently before he attended him, 
 and saw him after he ceased to attend him ; and the court could 
 not say that he could not answer without disclosing the necessary 
 information which he had obtained while in professional attend- 
 ance upon him. fc'o far as appears in the evidence, he was com- 
 petent to tell whether he was cured of any disease with which he- 
 had been affected. 
 
 As to the second of the questions, the same observations are 
 appropriate. How could the court know, without a particle of 
 
I. Competency. (13) Physician and Patient. 113 
 
 Edington r. ^tna Life Ins. Co., 77 N. Y,, 564. 
 
 evidence, that it could not be answered without violating the 
 statute ? The witness, during several years when not in attend- 
 ance upon the assured professionally, had seen him daily or weekly, 
 and was well acquainted with his physical appearance ; and the 
 trial court could not say, and we cannot say that he could not 
 answer the question from information thus acquired. But even 
 if in answering the question he would have to use or disclose 
 information he acquired while attending him, how can wo, upon 
 the evidence, say that such information was necessary to enable 
 him to make his prescriptions ? 
 
 There is still less reason for upholding the ruling as to the 
 third question ; because that in terms excluded all knowledge or 
 information obtained while the witness was engaged in pro- 
 fessionally treating the assured. 
 
 It is not incumbent on the party who seeks information from 
 a physician who has been in attendance upon a patient, to show 
 that the information was not acquired as specified in the statute ; 
 but the party objecting must in some way make it appear, if it 
 does not otherwise appear that the information is within the 
 statutory exclusion. 
 
 It will not do to extend the rule of exclusion so far as to 
 embarrass the administration of justice. It is not even all infor- 
 mation which comes within the letter of the statute which is to 
 be excluded. The exclusion is aimed at confidential communi- 
 cations of a patient to his physician, and also such information as 
 a physician may acquire of secret ailments by an examination of 
 the person of his patient. The policy of the statute is to enable 
 a patient, without danger of exposure, to disclose to his physician 
 all information necessary for his treatment. Its purpose is to 
 invite confidence and to prevent a breach thereof. Suppose a 
 patient has a fever or a fractured leg or skull or is a raving 
 maniac, and these ailments are obvious to all about him, may not 
 the physician who is called to attend him testify to these matters % 
 In doing so, there would be no breach of confidence, and the 
 policy of the statute would not be invaded. These and other 
 cases which might be supposed, while perhaps within the letter of 
 the statute, would not be within. the reason thereof. Cessante 
 ratione legis, cessat et ipsa lex. Therefore before information 
 
114 Abbott's Select Cases on Examining Witnesses. 
 
 Edington v. Mtna Life Ins. Co., 77 N. Y., 564. 
 
 .sought to be obtained from pbysicians as witnesses can be ex- 
 cluded, the court must know somewhat of the circumstances . 
 under which it was acquired, and must be able to see that it is 
 within both the language and the policy of the law. 
 
 [A ruling on a motion to nonsuit is here oinitted.'] 
 
 Chuech, Ch. J., Rapallo and Miller, J J. , concurred in the 
 result on the ground that rulings on questions of evidence 
 referred to in opinion were erroneous ; the other judges took no 
 part. 
 
 Judgment reversed. 
 
I. Competency. (13) Physician and Patient. 115 
 
 Grattan v. Metropol. Life Ins. Co., 93 N. Y., 274. 
 
 GKATTAE" v. METEOPOLITAN LIFE INS. CO. 
 
 New York Court of Appeals, 1883. 
 
 [Reported ia 93 N. Y., 374]. 
 
 "What a physician sees by looking upon liis patient is as much within the 
 privilege of professional information as what he learns by hearing. ■ 
 
 The privilege is not waived for the purposes of a second trial by the mere 
 fact that the patient's counsel interrogated the physician on the point 
 when on the stand as a witness on a previous trial, especially where, 
 for aught that appears, a claim of privilege may have been asserted 
 on the former trial and overruled.* 
 
 Appeal from a judgment for plaintiff in an action on a life 
 policy. 
 
 The only facts material to the ruling on the question of privi- 
 lege appear in the opinion. 
 
 Finch, J. [after passing upon other subjects'] : The question 
 asked Dr. Mareness, viz.: " What opinion did you form, hased on 
 the general sight of the man, before you made an examination, 
 or before you had any conversation ^-ith him ? " was properly 
 excluded as privileged within the statute. The doctor had never 
 seen him before, nor seen him since. His whole knowledge 
 came from the one interview, which was wholly and purely of a 
 professional character. We have distinctly held in such a case that 
 the communication to the physician's sense of sight is within the 
 statute, and as much so as if it had been oral and reached his ear 
 (Grattaa v. Met. Life Ins. Co., SO N. Y., 297 ; 36 Am. Rep., 61T), 
 and that information derived from observation of the patient's 
 appearance and symptoms must not be disclosed. (Edington v. 
 Mut. Life Ins. Co., 67 N. Y., 185). The case here is not like 
 Edington V. Jiltna Life Ins. Co. (YY N. Y., 561). There the 
 physician had seen the patient, both before and after he attended 
 him professionally. He had a possible knowledge derived from 
 
 * Compare, McKinney v. Grand St., etc., K. Co.. 104 N. Y., 352 (1887), holding that .vhere the 
 physician was called by the patient on the first trial an.l testified fully in her behalf as to all the 
 facts bearing upon the patient's physical condition, the pati. nt thus expressly waived the pnvi- 
 lege. Such waiver is final and for all time ; that the information is such, that once divulged 
 in legal proceedings it cannot be again hidden,. and being open to the consideration of the 
 public, the privilege of forbidding its repetition is not conf erred.by the statute. 
 
116 Abbott's Select Oases on Examining Witnesses. 
 
 Grattan v. Metropol. Life Ins. Co., 93 N. Y., 374. 
 
 observation when no professional relation existed. Here such 
 relation began upon the instant that Terence came into his pres- 
 ence and continued until he disappeared from view. No infor- 
 mation so acquired could be disclosed. 
 
 Dr. Halves was examined as a witness by the defendant, and 
 testified that he was called as a witness on a former trial, bat did 
 not say by whom ; and that he attended Terence in his last ill- 
 ness. He was then asked if Terence died of consumption, which 
 was excluded. The question was then put whether upon such 
 former trial he was not asked by the plaintiff's counsel if he 
 attended Terence in his last illness, to which he answered in the 
 affirmative, and that Terence died of consumption. This and 
 some similar evidence offered was excluded. The appellant 
 claims that this ruling is erroneous, upon the ground that the 
 silence imposed upon the physician is a personal privilege which 
 may be waived, and that the questions put on behalf of the plaint- 
 iff on the former trial amounted to such a waiver. 
 
 But the evidence was inadmissible for two reasons. "What the 
 witness testified to on a former trial, he being living and present 
 for examination on the second trial, could only be proved for the 
 purpose of contradicting him or of refreshing his memory. No 
 emergency of that kind existed to justify the proof. To estab- 
 lish a waiver of the right to prevent disclosure, the only proof 
 necessary or competent in any event was the fact of the inquiry 
 by the plaintiff. The answer given was not needed for such pur- 
 pose. It was the question which opened the door. 
 
 But we do not agree that the plaintiff's inquiry on the former 
 trial precluded his objection on the latter one. It was an inci- 
 den tin the mode of the trial. It waived, for that occasion and 
 under then existing circumstances, an objection which might have 
 been relied upon. It was in no sense an admission of the party, 
 but proof by a witness. The party was not even then bound by 
 the fact but might disprove it. Owen v. Oawley (36 N. Y., 600), 
 cited as authority, was a peculiar case. An order had been 
 entered by the General Term entitling either party on the new 
 trial to read the evidence which had been given on the other. 
 And it was the admission of the party that was sought to be 
 proved, and in that connection it was said that where as absolute 
 
I. Competency. (13) Physician and Patient. 117 
 
 Grattan v. Metropol. Life Ins. Co., 93 N. Y., 374. 
 
 an unqualified admission is made in a pending cause, whether 
 by written stipulation of the attorney, or as a matter of proof on 
 the hearing, it cannot be retracted on a subsequent trial unless by 
 leave of the court. The case is far from establishing that because 
 proof which might have been, was not excluded on a first trial, 
 it cannot be shut out on the second. Such a rule would tend to 
 perpetuate and make incurable the errors or indiscretions or over- 
 sights of counsel, and hamper the second trial with a study of 
 the first. We do not know how the plaintiff came to ask the 
 questions. The case does not show who called the vdtness. The 
 plaintiff may have asserted her privilege and been overruled by 
 the court, and so driven to these inquiries without any voluntary 
 waiver of her rights. We are of opinion that the evidence 
 objected lo was properly excluded. 
 
118 Abbott's Select Oases on Examining Witnesses. 
 
 Eenihan v. Dennin, 103 N. Y., 573. 
 
 EENIHAN V. DENNIN. 
 
 J}^ew York Court of Appeals, 1886. 
 [Reported in 103 N. Y., 573.] 
 
 To bring a case within N. Y. Code Civ. Pro., § 834— forbidding- a physician 
 or surgeon " to disclose any information which he acquired in attend- 
 ing a patient in a professional capacity which was necessary to 
 enable him to act in that capacity" — it is enough to show that the- 
 witness attended as a physician or surgeon on behalf of the patient, 
 and obtained his information in that capacity, even though he was 
 summoned by a friend or a stranger, and without any actual 
 employment by the patient. So held where he was called in by the 
 attending physician.* 
 
 It seems, that to bring a case within N. Y. Code Civ. Pro,, § 835 — as to- 
 communications made between client and attorney, etc. — it naust be 
 shown that the contract relation of attorney and client existed. 
 
 The statute applies to testamentary causes, such as the probate of a will, 
 as well as other causes. The ruling in People v. Pierson (79 N. Y., 
 424) rested on the fact that that was a criminal case, and not merely 
 on death having rendered waiver impossible. 
 
 The rule in Edington v. MtnB, L. Ins. Co. (77 N. Y., 564), Grattan v. -Met- 
 ropolitan L. Ins. Co. (80 N. Y., 281) — that the statute excludes infor- 
 mation acquired by seeing-a patient, even though no communications 
 pass between hina and the physician — reiterated. 
 
 On proceedings for probate of a will, a physician, called as a witness for 
 the contestants, testified that he was requested by the attending 
 physician to visit the testator in consultation, and saw him shortly 
 before his death, and advised a prescription. Held, proper to refuse to 
 allow the witness to describe the appearance and condition of the 
 sick man, and to give an opinion as to his dying condition or his 
 condition respecting testamentary capacity. 
 
 Appeal from judgment allowing probate of will. 
 
 The surrogate of Rensselaer county admitted to probate the 
 will of James Dennin, deceased. Upon appeal to the General 
 Term the surrogate's decree was reversed, and special issues as 
 to the competency of the testator and the due execution of the 
 will were ordered to be tried before a. jury. 
 
 At the trial it appeared that the will was executed in the 
 evening, a short time before the testator's death, and that during 
 
 * otherwise where the jail authorities or prosecuting attorney sent a physician merely to ex- 
 amine a prisoner. People v. Kemmler 119 N. T., 580. 
 
I. Competeney . (13) Physician and Patient. 119 
 
 Renihan v. Dennin, 103 N. Y., 573. 
 
 that evening, and before the execution, Dr. Bontecou was re- 
 quested by the attending physician to be present at the testator's 
 house for consultation with him relative to the testator's condition 
 and treatment ; and, in pursuance of such request, he did attend. 
 
 He was now called as a witness for the contestants, and tes- 
 tified that he saw the testator, and advised a prescription for 
 him. The following questions were put to the witness : " "Will 
 you describe the appearance and condition of the sick man 
 when you got into the room ? " "At the time you examined 
 this man, was he, in your judgment, in that state known to your 
 profession as 'collapse?'" "Was he, in your judgment, in a 
 dying condition?" "State whether, in your judgment, at any 
 time after that occasion when you were there, James Dennin 
 was in such a condition that he was capable of understanding and 
 taking into account the nature and character of his property, 
 and of his relations by blood and marriage, to those who were or 
 might become the objects of his bounty, and make an intelligent 
 disposition of his property by will." The last question was re- 
 peated, confining it to the time when the witness saw the testator. 
 
 The court excluded these questions. The will was admitted 
 to probate, and the contestants appealed. 
 
 Eakl, J. \_after stating alcove facts] : All the questions were 
 objected to on behalf of the proponent as incompetent under 
 sections 834 and 836 of the Code, and the objections were 
 sustained, and counsel for the contestants excepted, and the sole 
 question for our determination upon this appeal is whether that 
 exception was well taken. 
 
 Section 834 is as follows: "A person duly authorized to 
 practice physic or surgery shall not be allowed to disclose any 
 information which he acquired in attending a patient in a 
 professional capacity, which was necessary to enable him to act 
 in that capacity;" and section 836 provides that that section 
 apphes to every examination of a person as a witness, unless the 
 provisions thereof are expressly waived by the patient.^ 
 
 Dr. Bontecou was a person duly authorized to practice physic. 
 Whatever information he had about the condition of the testator 
 he acquired while attending him as a patient. It is true that 
 
120 Abbott's Selkct Cases on Examining "Witnesses. 
 
 Kenihan v. Dennin, 103 N. Y., 573. 
 
 the testator did not call him, or procure his attendance; but he 
 did not thrust himself into his presence or intrude there. He 
 was called by the attending physician, and went in his pro- 
 fessional capacity to see the patient, and that was enough to 
 bring the case within the statute. It is quite common for 
 physicians to be summoned by the friends of the patient, or even 
 by strangers about him ; and the statute would be robbed of 
 much of its virtue if a physician thus called were to be excluded 
 from its provisions, because, as contended by the learned counsel 
 for the appellant, he was not employed by the patient, nor a 
 contract relation created between him and the patient. To 
 bring the case within the statute it is sufficient that the person 
 attended as a physician upon the patient, and obtained his infor- 
 mation in that capacity. 
 
 Section 835 provides that " an attorney or counsellor at law 
 shall not be allowed to disclose a communication made by his 
 client to him, or his advice given thereon, in the course of his 
 professional employment." Before that section can apply in 
 any case a contract relation of attorney and client must exist, 
 based upon an employment by the client, and the decisions 
 holding this, to which our attention has been called, have no 
 bearing upon section 834. 
 
 It is not disputed, and could not well be, that the information 
 obtained by the witness was necessary to enable him to act in 
 his professional capacity. Therefore, if the letter of the statute 
 is to prevail, it cannot be doubted that the rulings of the trial 
 judge were correct. 
 
 But it is claimed that the statute should be held not to apply 
 to testamentary eases. There is just as much reason for 
 applying it to such cases as to any other, and the broad and 
 sweeping language of the two sections cannot be so limited as to 
 exclude such cases from their operation. There is no more 
 reason for allowing the secret ailments of a patient to be 
 brought to light in a contest over his will than there is for 
 exposing them in any other case where they become the legiti- 
 mate subject of inquiry. An exception so important, if proper, 
 should be engrafted upon the statute by the legislature, and not 
 by the courts. 
 
I. Competency. (13) Physician and Patient. 121 
 
 Renihan v. Dennin, 103 N. Y,, 573. 
 
 It is also claimed that the statute shoiUd be so construed as 
 only to prohibit the disclosures by a physician of any informa- 
 tion of a confidential nature obtained by him from his patient 
 while attending him in a professional capacity. Such was the 
 view of the statute taken by me in my opinion in Edington v. 
 ^-Etna Life Ins. Co. (71 IST. Y., 564) ; but my brethren were then 
 unwilling to concur with me in that view. When the same 
 question again came before the court in Grattan v. Metropolitan 
 Life Ins. Co. (SO N. Y., 281), I again attempted to enforce the 
 same view upon my brethren, and again failed, and it was then 
 distinctly held that the statute could not be confined to informa- 
 tion of a confidential nature, and that the court was bound to 
 follow and give effect to the plain language without interpolating 
 the broad exception contended for. 
 
 It is further contended that the rule laid down in People v. 
 Pierson (79 N. Y., 124), should be applied to this case. We there 
 held that the statute did not cover a case where its prohibition 
 was invoked solely for the protection of a criminal, and not at 
 all for the benefit or protection of the patient who was dead, and 
 a waiver of the prohibition had, therefore, become impossible. 
 We are unable to perceive how the reasoning upon which that 
 decision rests can have any application to this case. Here there 
 is no allegation of crime, aud there is a mere contest over the 
 patient's property. 
 
 It is probably true that the statute, as we feel obliged to con- 
 strue it, will work considerable mischief. In testamentary cases 
 where the contest relates to the competency of the testator, it 
 will exclude evidence of physicians which is generally the most 
 important and decisive. In actions upon policies of life insur- 
 ance where the inquiry relates to the health and physical condi- 
 tion of the insured, it will exclude the most reliable and vital 
 evidence which is absolutely needed for the ends of justice. But 
 the remedy is with the legislature, and not with the courts. 
 
 The judgment should be afiirmed with costs. 
 
 All concur. 
 
 Judgment atfirmed. 
 
122 Abbott's Select Cases on Examining "Witnesses. 
 
 Pierson v. People, 79 N. Y., 434. 
 
 PIERSON V. PEOPLE. 
 
 JVew York Court of Appeak, 1880. 
 
 [Reported in 79 N. Y., 424.] 
 
 The statute (N.Y. Code Civ. Pro., §834) providing that a physician or sur- 
 geon shall not be allowed to disclose information acquired by hinj as 
 such, etc.— cannot be invoked in a criminal case where desired not at 
 all for the benefit of the patient, but solely for the protection of the 
 accused after the patient is dead, so that express waiver is impossible.* 
 
 Writ of error to reverse judgment of the Supreme Court affirm- 
 ing a conviction of William Pierson by the Oyer and Terminer, 
 on an indictment for murder of Seaman B. Withey. 
 
 The facts material to the question of evidence appear in the 
 opinion. 
 
 Eael, J. \after passing on othe-r questions'] : While Withey 
 was sick, sufEering from the poison which is supposed to have 
 been administered to him. Dr. Coe, a practicing physician was 
 called to see him by the prisoner, and he examined him and pre- 
 scribed for him. On the trial, he was called as a witness for the 
 People, and this question was put to him : " State the condition in 
 which you found him at that time, both from your own observa- 
 tion and from what he told you ? " The prisoner's counsel objected 
 to this question on the ground that the information which the 
 witness obtained was obtained as a physician, and that he had no 
 right to disclose it ; that the evidence offered was prohibited by 
 the statute. The court overruled the objection, and the witness 
 answered, stating the symptoms and condition of Withey as he 
 found them from an examination then openly made in the pres- 
 ence of Withey's wife and the prisoner, and as he also learned 
 them from Withey, his wife and the prisoner. There was noth- 
 ing of a confidential nature in anything he learned or that was 
 disclosed to him. The symptoms and condition were such as 
 might be expected to be present in a case of arsenical poisoning. 
 It is now claimed that the court erred in allowing this evidence, 
 and the statute (§ 834 of the Code) is invoked to uphold the 
 
 * Distinguished in People v. Murpliy, 101 N. Y., 126 ; 8. u., p. 125 of tliis vol. Ee-afflrmed in 
 People V. Harris, 136 N. Y., 438,448. 
 
I. Com2>etendy. (13) Physician and Patient. 123' 
 
 Pierson v. People, 79 N. Y., 424. 
 
 claim. That section is as follows : " A person duly authorized to 
 practice physic or surgery shall not be allowed to disclose any in- 
 formation which he acquired in attending a patient, in a profes- 
 sional capacity, and which was necessary to enable him 1 o act in. 
 that capacity." This provision of the Code is a substantial re- 
 enactment of a provision contained in the Revised Statutes. (2 
 E. S., 406). Such evidence was not prohibited at common law. 
 The design of the provision was to place the information of the 
 physician, obtained from his patient in a professional way, substan- 
 tially on the same footing with the information obtained by an 
 attorney, professionally, of his client's affair. The purpose was to 
 enable a patient to make such disclosures to his physician as to 
 his ailments, under the seal of confidence, as would enable the 
 physician intelligently to prescribe for him ; to invite confidence 
 between physician and patient and to prevent a breach thereof. 
 (Edington v. Mutual Life Ins. Co., 6Y N. Y., 185 ; YY id., 564.) 
 
 There has been considerable difiiculty in construing this stat- 
 ute, and yet it has not been under consideration in many reported 
 cases. It was more fully considered in the Edington case than 
 in any other or all others. It may be so literally construed as tO' 
 work great mischief, and yet its scope may be so limited by the 
 courts as to subserve the beneficial ends designed, without block- 
 ing the way of justice. It could not have been designed to shut 
 out such evidence as was here received, and thus to protect the 
 murderer rather than to shield the memory of his victim. If th& 
 construction of the statute contended for by the prisoner's coun- 
 sel must prevail, it will be extremely difficult, if not impossible, 
 in most cases of murder by poisoning, to convict the murderer. 
 Undoubtedly such evidence has been generally received in this 
 class of cases, and it has not been understood among lawyers and 
 judges to be within the prohibition of the statute. 
 
 How then must this statute be construed ? The office of con- 
 struction is to get a meaning out of the language used, if possi- 
 ble. If the words used are clear and unmistakable in their mean- 
 ing, and their force cannot be limited by a consideration of the 
 whole scope of the statute or the manifest purpose of the Legis- 
 lature, they must have full effect. Eut in endeavoring to un- 
 derstand the meaning of words used, much aid is received from 
 
124 Abbott's Select Cases on Examining "Witnesses. 
 
 Pierson v. People, 79 N. Y., 434. 
 
 a consideration of the mischief to be remedied or object to be 
 gained by the statute. By such consideration, words otherwise 
 far reaching in their scope may be limited. Statutes are always 
 to be so construed, if they can be, that they may have reason- 
 able effect, agreeably to the intent of the Legislature ; and it is 
 always to be presumed that the Legislature has intended the most 
 reasonable and beneficial construction of its acts. Such construc- 
 tion of a statute should be adopted as appears most reasonable 
 and best suited to accomplish the objects of the statute ; and 
 where any particular construction would lead to an absurd conse- 
 quence, it will be presumed that some exception or qualification 
 was intended by the Legislature to avoid such consequence. A 
 construction which will be necessarily productive of practical in- 
 convenience to the community is to be rejected, unless the lan- 
 guage of the law-giver is so plain as not to admit of a different 
 construction. (Potter's Dwarris on Statutes, 202). 
 
 The plain purpose of this statute, as in substance before stated, 
 was to enable a patient to make known his condition to his physi- 
 cian without the danger of any disclosure by him which would 
 annoy the feelings, damage the character, or impair the standing 
 of the patient while living, or disgrace his memory when dead. 
 It could have no other purpose. But we do not think it expedi- 
 ent, at this time, to endeavor to lay down any general rule appli- 
 cable to all cases, limiting the apparent scope of this statute. We 
 are quite satisfied with the reasoning upon it of Judge Talcott, 
 in his able opinion delivered at the General Term of the Supreme 
 Court, and we agree with him " that the purpose for which the 
 aid of tliis statute is invoked in this case is so utterly foreign 
 to the purposes and objects of the act, and so diametrically op- 
 posed to any intention which the Legislature can be supposed to 
 have had in the enactment ; so contrary to and inconsistent with 
 its spirit, which most clearly intended to protect the patient and 
 not to shield one who is charged with his murder, that in such a 
 case the statute is not to be so construed as to be used as a weapon 
 of defense to the party so charged, instead of a protection to 'his 
 victim." This objection was therefore not well taken. 
 
 [A ruling on another subject is here omitted,.'] 
 
 Judgment affirmed. 
 
I. Com;petenGy. (13) Physician and Patient. 125 
 
 People V. Mvirphy, 101 N. Y., 136. 
 
 PEOPLE V. MUKPHY. 
 
 Xew TorJc Court of Appeals, 1885. 
 
 [Reported in 101 N. Y., 126.] 
 
 The statute (N. Y. Code Civ. Pro., § 834)— providing tliat a physician or 
 surgeon sliall not be allowed to disclose information acquired'by him 
 as such, etc. — applies to criminal cases. 
 
 The rule in Pierson v. People (79 N.Y., 424 ; s. c, p. 133 of this vol.)— that 
 tlie privileg-e cannot, after the patient's death, be invoked solelj' to 
 shield a third person under prosecution — does not apply where the 
 patient is living, and the disclosure tends to convict her of a crime or 
 disgrace her. 
 
 The mere fact that the physician was selected and sent by the public 
 prosecutor, does not necessai'ily prevent the privilege if the patient, 
 while at liberty to decline his services, accepted them as services in his- 
 professional character. 
 
 Even where the witness is competent, his testimony to the patient's nar- 
 rative of past events (the patient not being a party) is not competent, 
 for a narrative of a past event is not part of the res gestae. 
 
 The opinion of an expert is not competent if founded in part upon the his- 
 tory of the case as he got it from the patient, but not disclosed in the 
 testimony as distinguished from his observation and complaints of 
 present suffering. 
 
 Appeal from conviction for causing an abortion. 
 The facts appear in the opinion. 
 
 Finch, J. We are of opinion that section 831 of the Code of 
 Civil Procedure is applicable to criminal actions, and whatever 
 possible doubt may have attended the question is fairly dispelled 
 by section 392 of the Code of Criminal Procedure. The confi- 
 dential character of disclosures by a patient to his attending 
 physician was established, before the Code, by statute, and in 
 terms which, beyond reasonable question, applied to all actions, 
 whether civil or criminal. (3 R. S., 6th ed. 671, §119 ; People v. 
 Stout, 3 Park Cr., 6Y0.) That statute was substantially incorpo- 
 rated into the Civil Code, in language broad enough to justify 
 the same general application as that which characterized the 
 older statute ; and the further provision of the Code of Crim- 
 inal Procedure, already referred to, seems to us intended to" 
 settle the question. No doubt upon that subject was intimated 
 
126 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Murphy, 101 N. Y., 136. 
 
 in Pierson v. People (79 N. Y., 424) ; but in that decision the 
 statute was construed, and we held it did not cover a case 
 where it was invoked solely for the protection of a criminal, and 
 not at all for the benefit of the patient, and where the latter was 
 dead so that an express waiver of the privilege had become im- 
 possible. The present is a different case. Plere the patient was 
 living, and the disclosure which tended to convict the prisoner 
 ■inevitably tended to convict her of a crime, or cast discredit and 
 disgrace upon her. 
 
 We have no doubt upon the evidence that between her and 
 the witness, whose disclosure was resisted, there was established 
 the relation of physician and patient. Although he was selected 
 by the public prosecutor and sent by him, yet she accepted his 
 services in his professional character, and he rendered them in 
 the same character. She was at liberty to refuse and might have 
 ■declined his assistance, but when she accepted it, she had a right 
 "to deem him her physician and treat him accordingly. It 
 follows that the exception to his disclosure of what he learned 
 while thus in professional attendance was well taken. 
 
 But if his evidence had been admissible as being competent, 
 another error was committed. He was sent to the patient after 
 the crime was complete, when the abortion had been accom- 
 plished, and the patient was merely suffering the physical con- 
 sequences of the act. Although she herself was a party to hat 
 <5rime, and relatively to it was an accomplice of the accused, and, 
 so to speak, a co- Conspirator with him, yet her declarations, 
 narrative of a past occurrence. and constituting no part of the res 
 ■gestae, were not admissible. These declarations were excluded 
 by the court upon the objection of the accused, and properly 
 excluded. But, notwithstanding, the attending physician was 
 allowed to express his opinion as a medical expert that an abor- 
 tion had been produced, founding that opinion not only upon 
 what he observed of uhe physical condition of the woman, but 
 upon all her statements, and upon the history of the case as de- 
 rived from her. 
 
 The opinion of the General Term concedes the error of such 
 •evidence, but insists that the opinion was founded upon her 
 statements merely of " the locality of the pain, the condition of 
 
I. Comj>etency. (13) Physician and Patient. 127 
 
 People V. Murphy, 101 N. Y., 126. 
 
 the injured parts, and so on." We understand what occurred 
 differently. When the witness was first asked his opinion 
 whether the birth occurred from natural or artificial causes, he 
 inquired whether in giving his answer he would be allowed to 
 consider the clinical history of the case as he got it from the 
 girl's statement, to which the prosecutor replied : " Certainly ; 
 I ask the question on the whole history of the case as you 
 learned it from her, as well as from the examination." To this 
 the prisoner objected. The court did not at once pass on the 
 objection, but suggested that the physician answer first from his 
 observation alone. He did so answer and said : " From my 
 physical examination of the woman and the foetus it would lead 
 me to believe that an abortion had been induced," and then 
 added, as a reason, that natural miscarriages were not likely to 
 occur at that stage of pregnancy with the frequency of earlier 
 stages. How weak this evidence was upon the vital point, 
 whether the miscarriage arose from natural or artificial causes, 
 was made apparent on the cross-examination, where, in answer 
 to the distinct question, "whether or not from such physical 
 examination as you describe you made there, is it possible, as a 
 matter of medical knowledge, science and experience, to say that 
 a miscarriage had been produced," the witness felt constrained 
 to answer " No, sir." The prosecutor, apparently feeling the need 
 of adding some decisive force to the opinion, followed his first 
 inquiry with this question : " On the personal examination that 
 you made of the woman and the foetus, and the history of the 
 case as you got it from her, what do you say now as to whether 
 or not there had been an abortion brought about by artificial 
 means?" To this question the prisoner's counsel objected as 
 calling for hearsay and a privileged communication, and on the 
 further ground that it involved " the history of the case " which 
 had not been disclosed. The district attorney offered to disclose 
 it, and put the question, what the girl said, which was objected 
 to and excluded. Thereupon the court overruled the objection, 
 and the witness answered, " I say an abortion had been pro- 
 duced." It is not possible on this state of facts to say justly 
 that by the history of the case and the girl's statement was 
 meant onlv her complaints of present pain and suffering. 
 
128 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Murphy, 101 N. Y., 126. 
 
 Nothing of the kind was suggested, or pretended, or could have 
 been understood by court or witness or jury. Indeed, on cross- 
 examination, the witness describes what he meant by the 
 " clinical history of the case," saying, " I wrote down part of 
 her statement and testified to it in the police court ; and that 
 included how she came there and what happened since she came 
 to that house." So that the opinion of the expert that a crime 
 had been committed, founded upon the narrative of the woman 
 of previous facts, which narrative was, itself, inadmissible and 
 remained undisclosed, was given to the jury. , Necessarily it car- 
 ried with it damaging inferences of what that narrative in fact 
 was, and drove the accused to the alternative of omitting all 
 cross-examination as to the concealed basis of the opinion, or 
 admitting inadmissible evidence. 
 
 We think there was error for which the judgment should be 
 reversed, and a new trial granted, and the proceedings remitted 
 to the Court of Sessions of Monroe County, for that purpose. 
 
 All the Judges concurred. 
 
 Judgment reversed. 
 
I. Competency. (13) Physician and Patient. 129 
 
 Note on Privilege of Professional Information of Physician. 
 
 NOTE ON PRIVILEGED INFORMATION ACQUIRED 
 BY PHYSICIAN RESPECTING PATIENT. 
 
 For recent cases on the Relation ; the Information ; Who may 
 claim the privilege ; the Manner of Objecting ; and Waiver of 
 the privilege, see the following : 
 
 The Relation : 
 
 Indiana : Aetna Ins. Co. v. Deming, 1890, 24 Northeast. Rep.j 
 86 ; id., 3T5 (a physician's partner is not competent to testify as 
 to what he learns of a patient's condition while the latter is in the 
 firm's office for treatment by the witness' partner). New York : 
 People V. Schuyler, 106 N. Y., 298 ; s. c. 12 Northeast. Rep., 
 783 (a jail physician, who has merely examined and observed a 
 prisoner, but who has never prescribed for him, may testify 
 from such examinations and observation as to his sanity) ; Matter 
 of Freeman, 46 Hun, 458 (physician called by attorney of tes- 
 tatrix to examine her mental condition, but without her knowl- 
 edge, and who at testatrix's request subscribes her will, is a com- 
 petent witness upon the probate of the will) ; Renihan v. Den- 
 nin, 103 N. Y., 573 ; s. c. 18 Abb. N. C, 101 ; 9 Northeast. Rep., 
 320 (the rule applies where the physician called as witness had 
 attended the patient upon the request of another physician, and 
 not that of the patient himself) ; but compare Henry v. N. Y., 
 Lake Erie, etc. R. R., Co., 10 N. Y. Supp., 508 ; s. c. 57 Hun, 
 76 ; 32 State Rep., 16 (holding that a surgeon who was not 
 expected to treat or advise, but merely requested by an attending 
 physician to examine plaintiff, was not disqualified from testify- 
 ing against him) ; Heath v. Broadway, etc. R. R. Co., 57 N. Y. 
 Super. Ct., 496 (in an action for personal injuries a physician, 
 who called upon plaintiff in defendant's behalf, may testify) ; 
 People V. Kemmler, 119 N. Y., 580 ; s. c. 24 Northeast. Rep., 9 
 (a physician who is sent to examine the mental condition of a 
 prisoner charged with a murder, may testify for the prosecution) ; 
 s. p. People V. Sliney, 137 N. Y., 570 ; s. c. 33 Northeast. Rep , 
 150 ; Grossman v. Supreme Lodge, etc., 6 N. Y. Supp., 821 (a 
 physician who made the rounds with an attending hospital 
 
130 Abbott's Select Oases'on Examining "Witnesses. 
 Note on Privilege of Professional Information of Physician. 
 
 pliysieian out of curiosity and assisted him in tlie examination of 
 deceased and partly attended her, but did not have charge of 
 her, cannot testify as to decedent's condition) ; Matter of Loew- 
 enstine, 2 Misc. E., 323 ; s. c. 21 N. Y. Supp., 931 (a physician, 
 who, merely as a visitor, assists the superintendent of an asy- 
 lum, may testify as to an inmate's condition, which would have 
 been apparent to any person having medical skill) ; Fisher v. 
 Fisher, 129 N. Y., 654 ; s. c. 29 Northeast. Eep., 951 (a physician 
 may be asked in answering a question as to the mental condition 
 of a person, whom he has attended professionally, to exclude 
 from his mind any knowledge or information which he acquired 
 while acting as a medical attendant and to coniine his answer to 
 such knowledge and information as he obtained when the person 
 in question was not his patient) ; S. P. Brigham v. Gott, 3 N. Y. 
 Supp., 518 ; and Matter of Loewenstine, 2 Misc. E., 323 ; s. c. 21 
 N.Y. Supp., 931; but compare Matter of Darragh, 5 id., 58; s. c. 52 
 Hun, 591 (holding that a physician who attended a testator pro- 
 fessionally and also visited her socially, could not give his opin- 
 ion of testator's capacity formed from impressions received on 
 friendly visits, as such impressions necessarily related to knowl- 
 edge acquired professionally) ; Wiel v. Cowles, 45 Hun, BOY, 
 (communications with one acting as a physician, but not licensed 
 as such, are not privileged). 
 
 Information : 
 
 California: Freel ■;;. Market St. Ey. Co., 1893, 31 Pacific 
 Eep., Y30 (a physician cannot testify as to knowledge ac- 
 quired in prescribing for a patient). Indiana : Heuston v. 
 Simpson, 1888, IT Northeast. Eep., 261 (a physician cannot tes- 
 tify as to the mental condition of his patient, whether his knowl- 
 edge was derived from the latter's words, his own observation or 
 examination); Pennsylvania Co. v. Marion, 1890, 23 id., 973 (a 
 physician who dresses wounds in an accident cannot testify as to 
 the victim's statements as to its cause). Michigan : Cooley v. 
 Foltz, 1891, 48 Northwest. Eep., 176 (in an action for an assault, 
 defendant may call as a witness the physician who attended plaint- 
 iff to prove the mere fact of such attendance; and the phy- 
 sician may also testify that when called in the plaintiff told 
 
I. Competency. (13) Physician and Patient. 131 
 
 Note on Privilege of Professional Information of Physician. 
 
 liim that she was suing and would want him as a witness) ; 
 Breisenmeister v. Supreme Lodge, K. of P., 1890, 45 North- 
 west. Eep., 977 (a physioian may testify as to the number and 
 dates of his visits). Missouri: Kling «. City of Kansas, 27 Mo. 
 App., 231 (in an action for personal injuries a physician who 
 treated plaintiff cannot testify as to whether he has been drink- 
 ing). JSfew York : Feeney v. Long Island E. Co., 116 JST. Y., 
 375 ; s. c. 22 Northeast. Pep., 402 (a physician called in by one 
 suffering from an accident cannot testify as to conversations with 
 patient concerning the injury, or information derived from the 
 examination) ; s. p. Jones v. Brooklyn, etc. R. Co., 3 N. Y. 
 Supp., 253 ; Brown v. Pome, etc. P. Co., 45 Hun, 439 (in an ac- 
 tion for personal injuries it is error to exclude the testimony of 
 plaintiff's physician that plaintiff stated to him that he heard a 
 person hallooing to him and saw a man swing his hat, but that 
 he did not know where he was until the train was almost upon 
 him) ; Hoyt v. Hoyt, 112 N. Y., 493 ; s. c. 20 Northeast. Pep., 
 402 (a physician may testify as to a conversation with a deceased 
 testator as to the sanity of testator's child); Matter of O'Neil, 7 
 N. Y. Supp., 1 97 (a physician may testify as to his patient's declara- 
 tions, as to his will and his advice on that subject) ; Harrington 
 V. "Winn, 14 N. Y. Supp., S12 (the physician of a deceased tes- 
 tator may testify as to his condition, where he states that though 
 his information was acquired while attending deceased, it was 
 not such as was necessary to enable him to act professionally) ; 
 s. p. Matter of Halsey, 9 id., 441 ; Patten v. United Life, etc. 
 Ins. Assn., 133 N. Y., 450; s. c. 31 Northeast. Pep., 342 (a phy- 
 sician may testify that his patient was sick and the number of 
 times he attended him, in order to show that the patient was not 
 in good health at a certain period) ; Numrich v. Supreme Lodge, 
 etc., 3 N. Y. Supp., 552 (a physician may prove the mere fact of 
 his attendance upon patient) ; Pandjiris v. McQueen, 13 id., 705, 
 (a physician may testify that one attended his deceased patient as 
 nurse) ; Van Orman v. Van Orman, 11 id., 931 (a physician can- 
 not testify as to the mental capacity of his deceased patient) ; 
 Kelly V. Levy, 8 id., 849 (in supplementary proceedings against 
 a physician he cannot be compelled to deliver up an account book 
 containing information received while attending patients) ; 
 
132 Abbott's Select Cases on Examining Witnesses. 
 Note on Privilege of Professional Information of Physician. 
 
 People V. Brewer, 53 Hun, 217 ; s. c. 6 N. Y. Supp., 730 (de- 
 fendant in an indictment for aiding a miscarriage upon summon- 
 ing a physician to the woman's aid, stated in reply to the phy- 
 sician's inquiry what the matter was. Held, that such communi- 
 cation was privileged) ; Matter of Hoyt, 20 Abb. IST. C, 162 (a 
 physician's afiidavit as to his patient's mental condition cannot be 
 used upon an application to appoint a committee for him as an 
 habitual drunkard). Texas: Steagald v. State, 1887, 3 South- 
 west. Kep., 771 (in absence of statute, communications by 
 patient to physician are not privileged). 
 
 W/io May Claim t/ie privilege : 
 
 People V. Harris, 136 N. Y., 4?3 ; s. c. 33 Northeast. Eep., 65, 
 (upon a trial for murder defendant cannot object to the testimony 
 of deceased's physician, since the privilege is not conferred to 
 shield the murderer of the patient). 
 
 The Manner of Ohjecting : 
 
 Michigan : Breisenmeister v. Supreme Lodge, K. of P., 1890 ; 
 45 Northwest. Rep., 977 (after a physician's testimony has been 
 received without objection, it cannot be stricken out upon motion 
 as a matter of right). New York : Hoyt v. Hoyt, 112 N. Y., 
 493; s. c. 30 Northeast. Rep., 402 (upon a contested probate 
 after proponent has called and examined testator's physician 
 without objection, and contestant has cross-examined him, his 
 testimony will not be stricken out on contestant's motion) ; Rec- 
 ord V. Village of Saratoga Springs, 46 Hun, 448 (in absence of 
 anything to show the contrary, one acting as a physician will be 
 presumed to have had the necessary license in determining upon 
 appeal whether his testimony had been properly admitted) ; Sto- 
 wel] V. American Co-operative Relief Assn., 5 N. Y. Supp., 233, 
 (one who seeks to exclude a physician's testimony must show the 
 facts to bring the testimony within the statute ; and where the 
 physician testifies that he was not acting professionally and there 
 is nothing to show the contrary, his testimony may be admitted) ; 
 Patten v. United Life, etc. Ins. Assn., 133 N. Y., 450 ; s. c. 31 
 Northeast. Rep., 342 (an objection that a physician's testimony 
 is incompetent and irrelevant is not sufficient to raise the objec- 
 
I. Cornpeiencij. (13) Pliysician and Patient. 133 
 
 Note on Privilege of Professional Information of Physician. 
 
 tio^^ tliat it relates to a privileged commnnication within Code 
 Civ. Pro., § S34). 
 
 Waiver of the privilege : 
 
 California : Yalensin v. Yalensin, 188Y, 11 Pacific Rep., 397, 
 (where the client waives the privilege the pliysician may be com- 
 pelled to testify). Indiana: Lane v. Boscourt, 1891, 2Y North- 
 east. Eep., 1111 (in an action against a physician for malpractice 
 the introduction by plaintiff of testimony by himself, his wife 
 and her mother as to all that was done by defendant at the time 
 of the operation constitutes a waiver of any objection to defend- 
 ant's testimony as to what he did do) ; Morris v. Morris, 119 
 Ind., Sil ; s. c. 21 Northeast. Eep., 918 (testator's legal repre- 
 sentatives seeking to maintain his will may waive the objection 
 as to the testimony of testator's physician) ; Williams v. Johnson, 
 1887 (the calling of a physician merely to testify that he attended 
 plaintiff does not waive the privilege). loiva: McConnell v. 
 City of Osage, 1890, 45 Northwest. Eep., 550 (the fact that 
 plaintiff testified as to her general good health during several 
 years, and that a certain physician attended, does not constitute a 
 waiver to the testimony of such physician). Michigan : Brown 
 V. Metropolitan Life Ins. Co., 1887, 32 Northwest. Eep., 610 (in an 
 action on a life policy where deceased had stated in her applica- 
 tion that she had been treated for typhoid fever by a physician, 
 the physician may testify as to whether he had so treated her) ; 
 Breisenmeister v. Supreme Lodge, K. of P., 1890, 45 Northwest. 
 Eep., 977 (statements in the proof of death under a life policy 
 by deceased's physician are a waiver of the privilege so far as they 
 relate to matters that are privileged ; and a party who has waived 
 the privilege on one trial cannot claim it on a new trial). Mis- 
 souri: Davenport v. City of Hannible, 1892, 18 Southwest. Eep., 
 1122 (the patient may waive the privilege) ; s. p. Oarrington v. 
 City of St. Louis, 89 Mo., 208; s. c. 1 Southwest. Eep., 240; 
 Blair v. Chicago, etc. Ey. Co., 89 Mo., 334 ; s. c. 1 Southwest. 
 Eep., 367 (in an action for personal injuries to plaintiff's wife, 
 the wife's physician may testify if both husband and wife waive 
 the privilege) ; Thompson v. Ish, 1889 ; 12 Southwest. Eep., 
 510 (upon a contested probate a defendant devisee may waive 
 
134 Abbott's Select Cases on Examibting "Witnesses. 
 
 Note on Privilege of Professional Information of Physician. 
 
 the privilege as to the testimony of deceased's physician) ; Mel- 
 lor V. Missouri Pac. Ky. Co., 1891, 14 Southwest. Eep., T58, 
 (where one has two physicians he does not, by calling one to tes- 
 tify concerning his injury, thereby waive the incompetency of 
 the other to testify against him) ; Adreveno v. Mutual etc. Life 
 Assn., 34 Fed. Eep., 8Y0, (under Mo. E. S., § 4017, a waiver by 
 deceased in a life insurance application is binding on the benefic- 
 iary). Nevada : State v. Depoistor, 25 Pacific Eep., 200 (on an 
 indictment for rape of a child of seven, held, that the parents of 
 the prosecutrix could waive the privilege as to the testimony of 
 the child's physician, and that such waiver might be implied 
 from the fact that the parents instituted the prosecution and were 
 with the child, the principal witnesses, and testified as to the na- 
 ture of the complaint for which the physician prescribed). Neio 
 York : McKinney v. Grand Street, etc. Ey. Co., 104 IST. Y., 352 ; 
 s. c. 10 Northeast. Eep., 544 (a party, by calling her physician as 
 a witness, waives the privilege, and upon a subsequent trial the 
 adverse party may call the physician and examine him as to the 
 same matters) ; Marx v. Manhattan Ey. Co., 56 Hun., 575 ; s. c. 
 10 ]Sr. Y. Supp., 159 (where the plaintiff in an action for per- 
 sonal injuries himself testifies as to the consultation with his 
 physician, he waives the privilege ; but compare Butler v. Man- 
 hattan Ey. Co., 30 Abb. E". C, 78, holding that plaintiff by 
 bringing an action for a miscarriage and putting her physical con- 
 dition on trial did not waive the privilege) ; Treanor v. Manhat- 
 tan Ey. Co., 28 Abb. N. C, 47; s. c. 14 N. Y. Supp., 270 (where 
 the plaintiff in an action for personal injuries testifies without 
 reservation as to his injuries and their effect, his physician may 
 testify as to what he has learned of his condition) ; Eecord v. 
 Village of Saratoga Springs, 46 Hun, 448 (the fact that one of 
 the parties to an action introduces evidence concerning a consul- 
 tation between her physician, another physician and the witness, 
 does not waive the privilege as to communications between her- 
 self and physician) ; Alberti «. New York, Lake Erie, etc. E. 
 Co., 118 N. Y., 77 (the privilege may be waived by 'the patient's 
 attorney calling the physician as a witness and stating that he 
 waives the privilege) ; Buffalo, $tc. Safe Deposit Co. v. Knights 
 Templars, etc. Assn. 126 N. Y., 450 ; s. c. 27 Northeast. Eep., 
 
I. Competency. (12) Physician and Patient. 135 
 
 Note on Pi'ivilege of Professional Information of Physician. 
 
 942 (in a suit upon an insurance certificate, a certificate as to the 
 cause of deceased's death, given by the physician who attended 
 him, and which was furnished the company by the claimant, is 
 admissible in evidence) ; Jones v. Brooklyn, etc. P. Co., 3 IST. Y. 
 Supp., 253 (the privilege is not waived by the patient's bringing 
 an action for an injury to his leg and by offering testimony to 
 show that it was broken ; nor by the fact that a physician who, 
 acted for defendant, testified as to the amputation of the leg). 
 
136 Abbott's Select Cases on Examining Witnesses. 
 
 I. Competency. (14) Pastor and Parishioner. 
 
 NOTE ON mCOMPETElSrCY OF CLEEGYMAN TO 
 DISCLOSE OOMMUmCATIOlSr OF PARISHIONER. 
 
 This privilege did not exist at common law. 
 
 Under the N. Y. Statute (Code Civ. Pro., § 833), a clergyman is not 
 privileged from disclosing communications which were made to him, not 
 in his professional character, nor in the course of discipline of his denomi- 
 nation. Thus, a conversation between the pastor and the treasurer of a 
 religious corporation as to business of the church, upon affairs in respect 
 of which the latter was charged with fraud, is not pi-ivileged. (Supreme 
 Ct., 1835, People v. Gates, 13 Wend., 311, under 3 R. S., 406, § 72, of which 
 C. C. P., § 833 is substantially a re-enactment.) 
 
I. Competency. (15) Against Estates of Decedents, etc. 137 
 
 Note on the Statutes. 
 
 NOTE ON THE AMERICAN STATUTES PROTECTING 
 ESTATES AGAINST INTERESTED WITNESSES. 
 
 The general policy of the American Statutes is to limit the admission 
 of the testimony of a party or interested witness, as against the estate of 
 a deceased person or the interest of one succeeding to his I'ight. The 
 ground of the rule is, that, although parties and interested witnesses are 
 now generally competent, some exception should be made where the 
 adversary in the controversy is deceased. The law prefers to admit all 
 parties, but where death silences one, the law will silence the other as to 
 matters peculiarly within their sole knowledge. The statutes for this 
 purpose are very diverse. Some reach the result by forbidding parties 
 and interested witnesses from testifying to transactions with or state- 
 ments by the deceased in all actions where the opposite party is an execu- 
 tor or administrator (see Act of Congress, p. 139, below). Others by 
 similar prohibition where the action is on a contract, etc. with one since 
 deceased. Others attempt to define the line with ixiore discrimination. 
 
 Where the statute is a mere proviso or saving clause in the act abolish- 
 ing the common law disqualification of interest, it has been held that it 
 does not make incompetent such testimony as would be competent at com- 
 rnon law (Sheetz v. Norris, 2 Weekly Notes (Pa.), 637. And the common 
 law exception, from necessity, in case of contents of baggage, etc., was 
 admitted in Sykes v. Bates, 26 Iowa, 521, s. p.; Nash v. Gibson, 16 id., 
 305). But where the statute is a new, independent and affirmative pro- 
 vision, it does exclude the kind of testimony described by it, although 
 such as would have been previously competent (Mattoon v. Young, 45 
 N. Y., 696). 
 
 Whatever be the frame of the statute, its object and the general guide 
 in its construction is to apply the exclusion in such manner as to put both 
 parties on an equality ; but the court will not do violence to the plain 
 language of the statute for the purpose of securing this effect (Abbott's 
 Trial Evidence, p. 61). 
 
 THE NEW YORK STATUTE. 
 
 [This act, by a long series of amendments, has been now settled in 
 the following form, which covers systematically nearly, if not quite, all 
 the points of importance which have arisen in the application of the 
 principle.] 
 
 N. Y. Code Civ. Pro., § 829 : "Upon the trial of an action, or the 
 hearing upon the merits of a special proceeding, a party or a person inter- 
 ested in the event, or a person from, through or under whom such a party 
 or interested person derives his interest or title, by assignment or other- 
 wise, shall not be examined as a witness, in his own behalf or interest, or 
 in behalf of the party succeeding to his title or interest, against the 
 
138 Abbott's Select Cases on Examining Witnesses. 
 
 Note on the Statutes. 
 
 executor, administrator or survivor of a deceased person, or the committee 
 of a lunatic, or a person deriving his title or interest from, through or 
 under a deceased person or lunatic, by assignment or otherwise, concern- 
 ing a personal transaction or communication between the witness and the 
 deceased person or lunatic, except where the executor, administrator, 
 survivor, committee, or person so deriving title or interest is examined in 
 his own behalf, or the testimony of the lunatic or deceased person is given 
 in evidence, concerning the same transaction or communication. A per- 
 son shall not be deemed interested for the purposes of this section by 
 reason of being a stockholder or officer of any banking corporation which 
 is a party to the action or proceeding, or interested in the event thereof." 
 
 ANALYSIS OF THE NEW YORK STATUTE. 
 
 The following analysis of the elements of the rule, as embodied in the 
 New York Statute, will indicate the arrangement of the following cases, 
 and will afford ready means of intelligently comparing other cases in this 
 and other jurisdictions upon the same points : 
 
 (a.) Upon what Proceed- Upon the trial of an action, or the hearing upon 
 ings Applicable. the merits of a special proceeding, 
 
 (b.) Who Disqualified. a party or a person interested in the event, or a 
 person from, through or under whom such a 
 party or interested person derives his interest 
 or title, by assignment or otherwise, 
 
 shall not be examined as a witness, in his own 
 behalf or interest, or in behalf of the party 
 succeeding to his title or interest, 
 
 against the executor, administrator or survivor 
 of a deceased person, or the committee of a 
 lunatic, or a person dei-iving his title or interest 
 from, through or under a deceased person or 
 lunatic, by assignment or otherwise, 
 
 concerning a personal transaction or communi- 
 cation between the witness and the deceased 
 person or lunatic, 
 
 except where the executor, administrator, sur- 
 vivor, committee, or person so deriving title or 
 interest is examined in his own behalf, or the 
 testimony of the lunatic or deceased person is 
 given in evidence, concerning the same trans- 
 action or communication. 
 
 (c.) As Witness for 
 Whom.* 
 
 (d.) Against Whom. 
 
 (e.) Concerning What. 
 
 (f.) Exception. 
 
 * No cases on this point separately are inserted ; see those under (a.) and (b.) 
 
I. Competency. (15) Against Estates of Decedents, etc. 139 
 Note on the Statutes. 
 
 THE ACT OF CONG-KESS. 
 
 U. S. R. S., § 858 : "In the courts of the United States no witness 
 shall be excluded in any action on account of color, or in any civil action 
 because he is a party to or interested in the issue tried : "Provided, Tliat 
 in actions by or against executors, administrators or guardians, in wliich 
 judgment may be rendered for or against tliem, neither party shall be 
 allowed to testify against the other, as to any transaction with, or state- 
 ment by, the testator, intestate, or ward, unless called to testify thereto by 
 the opposite party, or required to testify thereto by the court. In all 
 other respects, the laws of the State in which the court is held shall be 
 the rules of decision as to the competency of witnesses in the Courts of the 
 United States in trials at common law, and in equity and admiralty." 
 
140 Abbott's Select Oases on Examiniitg Witnesses. 
 
 I. Competency. (15) Against Estates of Decedents, etc. (a). 
 
 NOTE ON WHAT PROCEEDINGS AEE AFFECTED 
 BY THE STATUTE AS TO INTEEEST TESTI- 
 MONY AGAINST ESTATES OF 
 DECEDENTS, ETC. 
 
 The trial by a jury of special questions of fact directed by an order under 
 C. C. P., 823, is the "trial of an action " within the provision of the 
 statute. Parks v. Andrews, 56 Hun, 391. 
 
 A contested proceeding before the surrogate for probate is within tlie 
 statute. (Devisee incompetent.)— Matter of Eysaman, 113 N. Y., 63 
 (reported below under "e"). (Heirs at law and next of kin incom- 
 petent.)— Schoonmaker V. Wolford, 30 Hun, 166. (Legatees incom- 
 petent.) — Snyder v. Sherman, 33 Hun, 139. 
 
 Also, a contested proceeding in the same court for letters of administra- 
 tion. Estate of Molter, 33 Weekly Dig., 507. 
 
 Also, a proceeding by an executor or administrator to discover property 
 withheld under L. 1870, c. 394 (substantially incorporated in C. C. P., 
 §§ 3707-10). Tilton v. Ormsby, 10 Hun, 7. 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 141 
 
 Davis V. Gallagher, 55 Hun, 593. 
 
 DAVIS V. GALLAGHEE. 
 
 New York Supreme Court, 1890. 
 
 [Reported in 55 Hun, 593.] 
 
 The fact that a witness is a party to the record does not alone disqualify 
 him under N. Y. Code Civ. Pro., § 829, where his testimony is against 
 and not in support of his own interest. 
 
 Plaintiff sued defendants, as legal representatives of a deceased 
 person, to recover for supplies and for services rendered by 
 himself and his wife. 
 
 On the trial, Mrs. Price, who was a defendant, and who was 
 also plaintiff's mother and. the decedent's widow was called as a 
 witness by the defendant to testify to the conversations between, 
 herself and the defendant's intestate. 
 
 Objection to such evidence, as prohibited by IST. T. Code Civ. 
 Pro., 829, was overruled, and exception taken. 
 
 Upon the report of the Referee, judgment was entered for 
 plaintiff. 
 
 I'he Supreme Court at General Term affirmed the judgment, 
 
 Maetix, J. [after passing on other subjects']: We do not 
 think the exception to this evidence well taken. This ruling is, 
 we think, sustained by the doctrine of the case of Carpenter v. 
 Soule, (88 N. Y., 251). Although Mrs. Price was a nominal 
 party to the action, still she was not called to testify in her own 
 behalf or interest. Her testimony was against her interest. 
 " The fact that the witness is a party on the record is no longer 
 controUing." (Whitehead v. Smith, 81 IST. Y., 152.*) 
 
 *In Whitehead v. Smith, 81 N. Y., 151, an action where husband and 
 wife executed a mortg'age on the wife's land to secure their joint bond, 
 and she then conveyed the land to her son, who alone defended the 
 foreclosure action, setting up the defense of usury, the mortgagee died 
 before trial, which took place in 1878, while Code Civ. Pro., § 830 — 
 disqualifying husband or wife of a person incompetent under § 829 — was 
 in force. — Held, That the husband could not be called as a witness for 
 the son to prove usury, as the wife, from whom the son took title, 
 could not have testified to the fact. 
 
 The opinion also states the conclusion above quoted in the text. 
 
142 Abbott's Select Cases on Examining Witnesses. 
 
 Davis V. Gallagher, 55 Hun, 593. 
 
 It is also claimed that the provisions of section 829 were 
 violated by permitting the plaintiff to testify to the arrangement 
 made by him with the decedent about certain- logs. The 
 appellant made the plaintiff his witness and proved by him that 
 he had had logs of the decedent, and that he used a horse 
 belonging to the decedent in drawing them to the mill. After 
 this evidence was given, in explanation thereof, and for the 
 purpose of giving the whole transaction relating to the subject, 
 the plaintiff was asked to state under what arrangement with 
 Mr. Price he drew such logs. This evidence was admitted 
 under the defendant's objection and exception. The defendant 
 proved by the plaintiff that he had had logs of the decedent for 
 the purpose of charging him with their value. A transaction 
 between the plaintiff and the decedent was thus shown by the 
 defendant's examination. When this was done, the whole 
 transaction was open, and the plaintiff was entitled to testify in 
 his own behalf in relation thereto. Section 829 was not 
 intended to abrogate the rule of evidence that where a party 
 calls a witness and examines him as to a particular part of a 
 transaction or communication, the other party may call out the 
 whole of the transaction or communication bearing upon or 
 tending to qualify the particular part to which the examination 
 of the other was directed.' (Merritt v. Campbell, Y9 E". T., 625 ; 
 E"ay V. Curley, 113 id., 6Y5.) We think this evidence was 
 admissible and properly received by the referee. 
 
 [ Other rulings are here omitted.'] 
 
 Judgment affirmed. 
 
I. Conqietenoy. (15) Against Estates of Decedents, etc. (b). 143 
 Govu'lay v. Hamilton, 41 Hun, 437. 
 
 GOURLAY V. HAMILTOK 
 
 New York Supreme Court, 1886. 
 
 [Reported in 41 Hun, 437.] 
 
 Interest, in the sense conveyed by N. Y. Code Civ. Pro., § 839, means a 
 direct legal interest in the judgment at the time the witness is sworn. 
 
 "When a person causes title to land to be taken in the name of another to 
 prevent his wife from having- any interest therein, there being no 
 writing to show an interest remaining in himself, that other has the 
 legal title, and the former has no legal interest within the meaning 
 of the law. 
 
 A defendant in a foreclosure suit who was made a party as a tenant of 
 part of the mortgaged premises, but left their occupation before the 
 trial, is not disqualified from testifying to personal transactions with 
 the original mortgagee, since deceased, although it be shown that 
 the title was taken in the name of the apparent owner to prevent the 
 witness from acquiring any rights in the land, there being no written 
 evidence that the witness had any interest therein, and consequently 
 nothing which would establish an enforceable legal right. 
 
 Plaintiff, as executor of Thomas C. Gourlay, deceased, sued 
 to foreclose a mortgage given by defendant, Eliza Hamilton, to 
 the plaintiff's testator. 
 
 Upon the trial, one Cook, who was made a party defendant, 
 having been a tenant of part, of the mortgaged premises, was 
 called as a witness by his co-defendant, to testify to personal 
 transactions and communications between the witness and the 
 plaintiff's testator. 
 
 PlaintifE objected, as a violation of N. T. Code Civ. Pro., 
 § 829 ; the objection was overruled and exception taken. 
 
 Judgment for defendant on a trial without a jury. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Baenaed, p. J. [on this poinf] : The witness, Cook, although 
 a defendant, had no interest in the event of the action, and he 
 did not testify in favor of a co-defendant who derived a title 
 through him. The action was brought to foreclose a mortgage 
 given by the defendant, Hamilton, to the plaintiff's testator, and 
 Mrs. Hamilton held the fee of the land. Cook was her tenant 
 
144 Abbott's Select Cases on Examining Witnesses. 
 
 Gourlay v. Hamilton, 41 Hun, 437. 
 
 in possession of a portion of the premises, and proof was given 
 tending to sliow that Cook had said that he had caused the title 
 to be taken in the name of Mrs. Hamilton, but that it was done 
 to escape the rights of his wife, which would have been created 
 therein if the deed were taken to himself. The defendant, 
 Cook, had left the occupation of the premises before the trial. 
 Cook's interest must be made out either because he was a tenant 
 defending his own premises or that he was the equitable owner 
 of the property. 
 
 I do not deem either position sound. Cook had left the prem- 
 ises at the time he was offered as a witness, and interest, in the 
 sense conveyed by section 829 of the Code, rdeans a direct legal 
 interest in the judgment at the time he is sworn. This he had 
 not at the time of the trial. "When a person takes a title to 
 evade responsibility in any way in the name of another, that 
 other owns the title absolutely by statute if his interest is not 
 evidenced by writing. No such writing is proved, and the 
 presumption is in favor of the competency without proof of that 
 fact. As the evidence stands, if credited. Cook has taken a title 
 in Mrs. Hamilton in the expectation, without the power of en- 
 forcement, legally or equitably, that Mrs. Hamilton will hold the 
 title for him and give it up to him when required. Such a condi- 
 tion of the situation would affect Cook's credibility, but would 
 not amount to a legal interest. The judgment in favor of or 
 against Mrs. Hamilton, would not strengthen his right as against 
 Mrs. Hamilton. A judgment against Mrs. Hamilton would 
 render it impossible for her to give up the title to Cook, if she 
 wished to do so. 
 
 CuLLEN, J., concuri-ed. 
 
I. Gomjpetency. (15) Against Estates of Decedents, etc. (b). 14& 
 
 Miller v. Montgomeiy, 78 N. Y., 282. 
 
 MILLEK V. MONTGOMERY. 
 
 New York Co%trt of Appeals, 1879. 
 
 [Reported in 78 N. Y., 3S3.] 
 
 A surety on an administration bond, since he is bound for his principal's 
 obedience to all orders of the Surrogate touching the administration, 
 is interested in the event of an accounting- by his principal in the Sui-- 
 rog-ate's Court. 
 
 A party, by putting on the stand an interested witness without inquiring' 
 upon direct examination for any transaction or communication with 
 the deceased, does not waive his right to object that the adverse party 
 cannot cross-examine as to such transactions or communications. 
 
 If the interest of a witness is first discovered after testimonj', rendered 
 thereby incompetent, has been given without objection, it is within 
 the discretionary power of the court to grant a motion to strike out 
 such testimony. 
 
 Upon the settlement of the account of William A. Miller, as 
 executor of David Eea, deceased, the account was contested by 
 certain legatees and objections filed, they claiming tliat he had 
 failed to charge himself with the proceeds of certain securities 
 for the payment of money, which they alleged, were owned by 
 the testator at the time of his death. The executor claimed that 
 these securities were given to his wife by the testator some 
 months before his death. 
 
 Hugh S. Pollock was called by contestants and gave evidence 
 showing that the securities belonged to testator before his death, 
 and were found in an unsealed envelope in his room, after his 
 death, by the witness, who delivered them to Mrs. Miller, the 
 executor's wife. The contestants did not examine him as to any 
 personal transaction or communication with the testator. 
 
 On cross-examination he said : " he [the deceased] handed it 
 (the envelope containing sureties) to me, and told me to hand it 
 to Mrs. Miller, when she came down, as a New Year's present." 
 
 He said to me : " Pollock, will you be kind enough to take 
 this package — handing to me the enclosed package in question — 
 and deliver it to Mrs. Miller, my niece ? " 
 
 Sometime after the cross-examination, the counsel for contest- 
 ants first discovered that the witness was a surety upon the 
 
146 Abbott's Select Cases on Examining Witnesses. 
 
 Miller v. Montgomery, 78 N. Y., 382. 
 
 bond of the executor, who was a non-resident, which bond was 
 given on taking out letters testamentary in this state. He 
 thereupon, at a regular hearing of the case, moved that all the 
 evidence given by Pollock upon his cross-examination relat- 
 ing to personal transactions and communications with testator, 
 be stricken out, on the ground that the witness was interested 
 and incompetent under section 399 of the Code of Procedure 
 (equivalent in this respect to § 829 of the Code of Civil 
 Procedure). On showing that such interest was unknown to, 
 contestants at the time the evidence was given, the evidence 
 was stricken out. 
 
 An auditor's report was rendered in favor of the contestants. 
 
 The Surrogate's Court confirmed the auditor's report. 
 
 The Supreme Court at General Term afTirmed the surrogate's 
 decree, on the same ground as taken by the surrogate, viz., 
 that the surety was bound under the rule in "Wilcox v. Smith, 36 
 Barb., 316. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, J. [after stating the facts'] : That the witness was in- 
 competent to give the evidence stricken out cannot be doubted. 
 The executor, being a non-resident, was required, before letters 
 could be issued to him, to give such a bond as is required 
 of administrators in cases of intestacy (2 E. S., 70), and the bond 
 required of admiaistrators is conditioned that the administrator 
 " shall faithfully execute the trust reposed in him as such, and 
 also that he shall obey all orders of such surrogate touching the 
 administration of the estate committed to him." (2 E. S., 78.) 
 It has never been doubted that the surety on such a bond is 
 bound by the decree of the surrogate made upon a regular ac- 
 counting, and that such decree would be evidence against 
 him in a suit upon the bond. (Wilcox v. Smith, 26 Barb., 316, 
 346.) A surety, therefore, upon such a bond is so far interested 
 that he would, in such a case, be an incompetent witness under the 
 rule of the common law. That rule is laid down in 1 Greenleaf 
 
I. Competenoy. (15) Against Estates of Decedents, etc. (b). 147 
 
 Miller v. Montgomery, 78 N. Y. , 283. 
 
 on Evidence, section 390, as follows : '' The true test of tlie inter- 
 est of a witness is tliat lie .will either gain or lose by the direct 
 legal operation and effect of the judgment, or that the record 
 will be legal evidence for or against him in some other action." 
 By section 398 of the old Code this common law rule, except as 
 provided in the next section, was abrogated by the provision 
 that no witness should be excluded by reason of his interest in 
 the event of the action or proceeding. And then in section 399 
 it is, among other things, provided that no person interested in 
 the event of an action or proceeding shall be examined as a wit- 
 ness against a legatee in regard to any personal transaction or 
 communication between such witness and the deceased person 
 under whom the legatee claims. Pollock was, therefore, inter- 
 ested in the event of the accounting, and was not a competent 
 witness to testify to the matters stricken out, unless the legatees 
 in this case waived their right to object to or complain of the 
 evidence. 
 
 They waived nothing by calling him as a witness. He was not 
 an incompetent witness. Either party had the right to call him 
 and have him sworn ; and either party had the right to examine 
 him as to all matters to which he was competent to testify; and 
 by such examination they waived nothing. By examining him 
 as to matters for which he was competent, a party would not 
 be bound to permit him to testify as to matters for which he was 
 incompetent. Ey producing him as a witness, a party would not 
 certify that he was competent to testify as to all matters perti- 
 nent to the issue on trial. A party may put his lawyer or physi- 
 cian on the stand as a witness to • testify to certain facts, and yet 
 the adverse party could not upon cross-examination question the 
 witness as to professional communications or disclosures excluded 
 by the general rules of law. 
 
 But a party may waive his objections to the incomp3tent evi- 
 dence in several ways. He may do it by himself, inquiring as to 
 the forbidden transaction? or conversations. If he does this, the 
 opposite party may inquire as to the same matters. But here. 
 Pollock, upon his examination on behalf of the contestants, was 
 asked only as to facts to which he Avas perfectly competent to 
 testify. He was not asked as to any transaction or conversation 
 
148 Abbott's Select Cases on Examining Witnesses. 
 
 Miller v. Montgomery, 78 N. Y., 282. 
 
 with the testator. A party may also waive the objection to the 
 incompetent evidence by omitting to make any objection. If 
 he does not object, the evidence is received, and must be 
 weighed for what it is worth. 
 
 Usually the objection must be made when the incompetent 
 evidence is offered ; and this is the rule as to all incompetent 
 evidence. But if the objection be not made at the time, and the 
 omission be shown to have been from mistake or inadvertence, 
 the trial court may permit it to be made at any time before the 
 close of the trial, by motion to strike out the incompetent evi- 
 dence. This is not uncommon practice in the trial of cases. 
 When the objection is not made at the time the evidence is. 
 offered or given, it is in the discretion of the trial judge to 
 permit it to be made at a later stage of the trial. That discre- 
 tion should be carefully exercised, so that no harm will come to 
 the other party ; and it should be exercised when it is just that 
 the incompetent evidence should be excluded, and no harm can 
 come to the opposite party from the delay in making the objec- 
 tion. It is like many other matters of discretion in the conduct 
 of the trial, with the fair exercise of which a court of review 
 will not interfere. 
 
 Here, this evidence should not have been given. It is such as 
 the policy of the law excludes as not sufficiently reliable for the 
 fair administration of justice. There is no suggestion that there 
 was any harm to the executor by the delay in making the objec- 
 tion, and it is clear that there was no harm. The executor lost 
 nothing by the delay, and was in no way embarrassed thereby ; 
 and there is no reason to suppose that the delay was from bad 
 faith. If the evidence had not been stricken out, the executor 
 would, from the mere ignorance and mistake of the counsel 
 opposed, have received the benefit of evidence to which he was 
 nut entitled under the law. 
 
 The fact that this evidence was called out upon cross-examina- 
 tion does not help the executor,. It was not a cross-examination 
 as to any matter inquired of by the other party. It was an 
 examination to establish his defense by new facts against the 
 claim of the legatees. As to such examination, he was 'in the 
 same attitude, so far as pertains to the competency of the wit- 
 
CompetenGy. (15) Against Estates of Decedents, etc. (b). 149 
 
 Miller v. Montgomery, 78 N. Y., 283. 
 
 ness to testify to such new facts, as if he had himself produced 
 the witness. 
 
 With this evidence stricken out, it is not claimed that the 
 alleged gift was established ; and, therefore, without determin- 
 ing whether or not all the evidence, if left in the case, would 
 have shown a valid gift, the judgment must be affirmed, with 
 costs. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 Note. — In Church v. Howard, 79 N. Y., 415, an action upon a promis- 
 sory note, Fargo, the maker of the note for whom defendant Howard 
 signed as surety, was a party defendant, but did not answer. Upon the 
 trial Fargo was called as a witness for the defense, and was permitted 
 to testify, against the objection of the plaintiff, to personal transactions 
 which took place between the witness and plaintiff's intestate ; the 
 trial judg-e holding that the Code did not apply to a party who had not 
 interposed answer and was not interested in the event. — Held, error. — 
 Miller, J. [referring to Code Civ. Pro., %S29, saidl: The question whether 
 the witness was not a party within this provision and hence incompetent, 
 is not free from difficulty ; but however that may be, we think that he 
 was "a person interested in the event," and therefore incompetent to 
 testify as to any personal transaction between himself and the intestate, 
 and his testimony was improperly received. He was interested in avoid- 
 ing a judgment against the defendant Howard, the surety, which would 
 entitle such surety to prosecute and obtain a judgment against the de- 
 fendant Fargo, which he might be compelled to pay. He would be 
 affected by the legal operation and effect of the judgment, and the record 
 would be legal evidence in an action by the surety to recover the amount 
 paid for his principal (1 Greenl. on Ev., § 390). The case of Hobart v. 
 Hobart (63 N. Y., 80), cited by the defendant's counsel, is not in point in 
 reference to the question last discussed. And the view we have taken 
 upon the question last considered is sustained by the recent case of 
 Miller v. Montgomery (78 N. Y., 383). 
 
150 Abbott's Select Cases on Examining Witnesses. 
 Wallaces. Straus, 113 N. Y., 238. 
 
 WALLACE V. STRAUS. 
 
 JVew Yorh Court of Appeals, 1889. 
 
 [Reported in 113 N. Y., 238.] 
 
 la an action against a guarantor, the principal debtor who has not, by 
 formal notice to defend or its equivalent, been put in a position to be 
 bound by the judgment, is not interested, and is not disqualified from 
 testifying in behalf of the defendant to personal transactions with 
 the plaintiff's decedent. 
 
 Action upon a guaranty. 
 
 Ferdinand Straus being indebted to F. B. Wallace, for the 
 amount of wbich indebtedness Wallace held, as collateral 
 security, 200 shares of railroad stock on Avhich the margin was 
 inadequate, and which he was about to sell to satisfy the debt, 
 one Moses Straus agreed to guarantee Wallace from any loss 
 that might be sustained by reason of holding and carrying said 
 stock. Wallace having died, his executrix, after notice to 
 Moses Straus and Ferdinand Straus, sold the stock at a loss and 
 brought this suit against Moses Straus for the balance. 
 
 On the trial, the defendant called his brother, Ferdinand 
 Straus, as a witness, and he was asked : " Did you give any 
 instructions to Wallace in November, 1881, with reference to a 
 sale of these two blocks of stock ? " 
 
 Objected to by the plaintiff's counsel on the ground that the 
 witness being the principal debtor, and the action being against 
 his surety, he was interested in its event and, therefore, incom- 
 petent to testify to a personal transaction with the plaintiff's 
 testator under IST. Y. Code Civ. Pro., § 829. 
 
 The Court permitted the witness to answer " yes or no " and 
 he answered " yes." This question was followed by one calling 
 for the instructions given, and the objection being renewed, the 
 court sustained it and excluded the testimony. 
 
 Judgment was entered for plaintiff upon decision of the court 
 without a jury. 
 
 The Supreme Court at General Term aflfirmed the judgment. 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 151 
 
 Wallace v. Straus, 113 N. Y., 238. 
 
 The Court of Appeals reversed the judgment. 
 
 Andeews, J. [afte7' stating the facts'] : It must be assumed, 
 in the absence of any objection on that ground, that the testi- 
 mony offered was materiaL It is certainly possible that instruc- 
 tions might have been given by Ferdinand Straus to "Wallace, 
 the disregard of which would furnish a defense, in whole or in 
 part, to the action. 
 
 The question, therefore, is whether the witness was interested 
 in the event of the action, as upon this ground only could the 
 question have been excluded under section 829. The test of the 
 interest which disqualifies a witness, not a party, under this sec- 
 tion, is stated by Church, Ch. J., in Hobart v. Hobart (62 JST. 
 Y., 80), in construing a corresponding section of the prior code, 
 adopting substantially the language in 1 Greenleaf on Evidence 
 (§ 390). He says : " The true test of the interest of a witness, 
 is that he will either gain or lose by the direct legal operation 
 and effect of the judgment, or that the record will be legal evi- 
 dence for or against him in some other action. It must be a 
 present, certain and vested interest, and not an interest remote,, 
 uncertain or contingent." The same rule was reiterated in 
 Nearpass v. Gilman (104 IST. Y., 507). The witness, Ferdinand 
 Straus, was not interested within the rule. He was not bound 
 by the judgment rendered against the surety. It is plain that 
 the judgment would not determine his liability in an action sub- 
 sequently brought by Wallace against him to recover the debt 
 or in any way limit it, except that if collected it might operate 
 as payment in full or pro tanto of the debt. So, if the surety, 
 having paid the judgment, should bring an action for reimburse- 
 ment, the recovery against the surety would not fix the liability 
 of the principal. The judgment against the surety would not 
 be an adjudication as against Ferdinand Straus, that the surety 
 had incurred any liability for which he was entitled to indem- 
 nity. It would be admissible to prove the fact of the judgment, 
 and it would determine the amount of the liability over of the 
 primary debtor to the surety when his liability had been other- 
 wise established. This conclusion results from the " most obvi- 
 ous principle of justice, that no man ought to be bound by pro- 
 ceedings to which he was a stranger." (1 Qreenl. Ev., 522.) 
 
152 Abbott's Select Cases on Examining Witnesses. 
 
 Wallace v. Straus, 113 N. Y., 238. 
 
 Ferdinand Straus, was, within this principle, a stranger to the 
 suit against the surety. He was not a party, nor, so far as it ap- 
 pears, was any notice given to him by the surety to defend the 
 action, nor had he undertaken the defense. It may be assumed, 
 from the fact that he was called as a witness, that he knew of 
 the pendency of the suit. But before he could be bound by the 
 judgment he must have been placed by the act of the surety in 
 a situation calling upon him to assume the control of the action 
 or to aid in its defense, as though a party, with the right to 
 adduce testimony and to cross-examine witnesses, and to appeal 
 from the judgment. (1 Greenl. Ev., § 623.) The bare fact that 
 he was called as a witness by the surety, nothing else appearing, 
 did not bind him by the result of the litigation. It will be found 
 in the cases upon the subject that something more was necessary. 
 There must be formal notice to defend, or something tantamount 
 to such notice, given by the surety, or the principal must have 
 assumed the defense of the action, or aided in preparing the de- 
 fense in order to bind him by the result. (Barney v. Dewey, 13 
 Johns., 224; Brewster «. Countryman, 12 Wend., 446; Chicago 
 V. Eobbins, 2 Black, 418 ; Lovejoy v. Murray, 3 Wall., 1.) In 
 short, no fact determined against the surety in the action, or 
 which might have been determined therein, would, under the 
 circumstances disclosed, when the ruling in question was made, 
 be available to, or would bind the witness in any subsequent 
 action brought against him either by the surety or the creditor 
 Wallace. 
 
 We think, therefore, the evidence offered was erroneously ex- 
 cluded, and that for this error the judgment should be reversed 
 and a new trial granted. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 153 
 Morgan v. Johnson, 87 Ga., 382. 
 
 MORGAN V. JOHNSOK 
 
 Supreme Cotirt of Georg'ia, 1891. 
 
 [Reported in 87 Ga., 383.] 
 
 In an action broug-ht by the beneficiaries of a trust fund against surviving 
 partners, tire trustee is ^jj'inia facie incompetent to testify for the 
 plaintiffs concerning- a transaction or communication between him- 
 self and a member of the partnership, now deceased, under the 
 Georgia Act of 1889, which declares that "where a person not a 
 party, but a person interested in the result of the suit, is offered as a 
 witness, he shall not be competent to testify, if, as a party to the 
 cause he would for any cause be incompetent." 
 
 The facU appear siifficiently in the opinion.. 
 The Superior Coiwt granted a nonsuit. 
 The Supreme Court aliirmed the judgment. 
 
 Bleckley, C. J. 1. The suit was by the children of Morgan 
 against the surviving partners of the firm of liarrold, Johnson 
 & Co. and others. It involved the tracing of a trust fund which 
 Morgan had held as trustee for the plaintifEs, and which he had 
 wasted. A portion of this fund had been invested by him in 
 certain realty which was paid for in part with his own money, 
 and in part with the trust money. He took the title to this 
 property in his own name, with no declaration or disclosure of 
 any trust upon the face of the conveyance. He afterwards sold 
 and conveyed it as his own to Harrold, Johnson & Co., and they 
 paid him for it. The plaintiiis sought by this action to assert their 
 rights as beneficiaries of the trust, and to charge Harrold, Johnson 
 & Co. with their equitable interest in the realty, thus acquired 
 by the firm from their trustee. To affect the firm with notice 
 of the trust they offered at the trial to prove by their father, the 
 trustee, conversations which he had had with Thomas Harrold 
 (a member of the firm since deceased), in which he informed 
 him, Harrold, that some of the trust money was invested in this 
 land. These conversations were prior to 'and at the time of the 
 execution of his deed to the firm. There was no sugge>:tion that 
 any other member of tlife firm was present at or privy to the 
 conversations, or any of them. The court ruled the witness 
 
154 Abbott's Select Cases on Examining "Witnesses. 
 
 Morgan v. Johnson, 87 Ga., 382. 
 
 incompetent to give the evidence offered, because Thomas 
 Harrold was dead. 
 
 The witness act of 1889, in clause (b) declares that " where 
 any suit is instituted or defended by partners,persons jointly liable, 
 or interested, the opposite party shall not be admitted to testify 
 in his own favor as to transactions or communications solely with 
 an insane or deceased partner, or person jointly liable or interested, 
 and not also with a survivor thereof." Under this provision, if 
 one or all of the plaintiffs had been present at the alleged con- 
 versations with Harrold, and had heard notice of the trust commu- 
 nicated to him, they would have been incompetent to so testify 
 at the trial, Harrold being then dead. Thus the plaintiffs them- 
 selves were not competent witnesses to prove what they sought 
 to prove by their trustee. In clause (d) the act declares that 
 " where a person not a party, but a person interested in the 
 result of the suit, is offered as a witness, he shall not be compe- 
 tent to testify if, as a party to the cause, he would for any cause 
 be incompetent." The trustee was not a party to this suit. If 
 he had been a party, that is, if he had brought the suit as trustee 
 to recover the trust fund, or trust property, which he had parted 
 with to Harrold. Johnson & Co., he would have been incompe- 
 tent to testify in the cause in his own favor as to his conversa- 
 tions with Harrold, for the reason that Harrold is dead. Thus 
 he certainly has two of the three marks of an incompetent wit- 
 ness which are specified in clause (d), the clause last above quoted. 
 Has he the third and most important mark,— was he interested in 
 the result of the suit ? 
 
 " The predicaments in which a witness may be incompetent in 
 respect of the result admit of three varieties : 1st. Where actual 
 gain or loss would result simply and immediately from the verdict 
 and judgment. 2dly. Where the witness is so situated that a legal 
 right or liability would immediately result from the verdict and 
 judgment. 3dly. Where the witness would be liable over to the 
 party calling him in respect to some breach of contract or duty 
 on the part of the witness involved in the issue." 1 Stark Ev., 
 7 Am. ed. from 3d London ed. (1842), pp. 106, lOT. " It seems 
 that in general where a witness is prima facie liable to the plaint- 
 iff in respect of the cause for which he sues, he is not a compe- 
 
I. Comf.ctency. (15) Against Estates of Decedents, etc. (b). 155 
 
 Morgan r. Johnson, 87 Ga., 383. 
 
 tent M-itness for the plaintiff to prove the defendant's liability. 
 For his evidence tends to produce payment or satisfaction to the 
 plaintiff at another's expense ; and the proceeding and recover- 
 ing against another would afford strong if not conclusive evi- 
 dence against the plaintiff in an action against the witness." 1 
 Stark. Ev., supra, 112. 
 
 There can be no doubt that a trustee who has wasted the fund 
 is liable to answer for it to the beneficiary of the trust ; and it 
 is manifest that if the beneficiary follows the fund and recovers 
 it from a third person to whom the trustee has parted with it, 
 the liability of the trustee to his cestui que trust is thereby dis- 
 charged. The trustee is consequently as much interested in 
 "aiding the beneficiary in maintaining a suit to recover the fund 
 from a third person as he would be were the suit his own. ISToth- 
 ing, therefore, can be more clear than that Morgan, the trustee, 
 was interested in the result of this suit ; and prima facie his 
 whole interest was f>n the side of the plaintiffs, the party calling 
 him to testify. What effect the warranty of title in his deed, as 
 an individual, to Harrold, Johnson & Co., may have had in balanc- 
 ing his interest is not now for consideration ; for that waii'anty 
 so far as it appears, was not before the court or brought to its 
 attention when the competency of the witness was under adjudi- 
 cation. According to the order of statement in the bill of 
 exceptions, the deed was not put in evidence until after the 
 decision on the competency of the witness was pronounced ; and 
 it is nowhere intimated that the witness or the rejected testi- 
 mony was again offered after the deed was introduced. Ignoring 
 the warranty as a factor in the question, we hold simply that, on 
 the facts presented, the court did not err in ruling the witness 
 incompetent and excluding his testimony. 
 
 [^ ruling that the nonsuit ivas not error is here ojnitted.'] 
 
 Judgment affirmed. 
 
156 Abbott's Select Cases on Examining Witnesses. 
 
 Carpenter v. Soule, 88 N. Y., 351. 
 
 CARPENTEK V. SOULE. 
 
 JVew York Court of Appeals, 1882. 
 
 [Reported in 88 N. Y., 351.] 
 
 In an action by a mortgagor against the mortgagee's executors, to cancel 
 the mortgage on tlie ground of a g'ift by the testator, to the mort- 
 gagor of the amount unpaid thereon, — Held, that § 839 did not ex- 
 clude the testimony of a specific and residuary legatee under the tes- 
 tator's will, but who was not a party to the action, as to declarations 
 of the deceased tending to establish the validity of the gift; since, as 
 specific legatee, she had no interest in the result of the action, and as 
 residuary legatee, her testimony was against her interest, so that she 
 was not testifying "in her own behalf and interest" within said 
 section. 
 
 Plaintiff, Jackson S. Carpenter, a son of the testator, Azel 
 Carpenter, liad executed a mortgage to his father in the lifetime 
 of the latter ; and now brought this action against the executor 
 to have the mortgage adjudged paid and satisfied. The cause 
 turned on the efPect of a receipt which the father before his 
 death had (without actual payment) given the son, expressed to 
 be for " $2,000 to apply on a bond and mortgage 1 hold against 
 him, the same to be endorsed on said mortgage." 
 
 On the trial, Anna Stevens, a daughter of Azel Carpenter, but 
 not a party to the action although a specific and residuary legatee 
 under her father's will, was called as a witness for the plaintiff 
 and permitted, against defendant's objection, to testify to certain 
 communications with her father, deceased. 
 
 The trial court held that this was a gift of that sum, the 
 clause as to endorsement not being a condition. 
 
 The Supreme Court at General Term npheld it as a release or 
 present discharge, which may be given by sealed release ; and a 
 receipt should have substantially the same effect. They also 
 held the testimony properly received. 
 
l.Competenc;/. (15) Against Estates of Decedents etc. (b). 157 
 
 Hobart v. Hobart, 63 N. Y., 80. 
 
 Leaexed, p. J. [^on thin point said] : The testimony of Anna 
 Stevens is conapetent, as she testified, not in her own interest, 
 but against her interest. Section 399 of the old Code was different 
 from section 829 of the new. 
 
 The Court of ApjKcih atRrmed the judgment. 
 
 Finch, J. [«s to the cul mission of Anna Stevens'' testlinoiiy'\ : 
 She was not a party to the action, but was clain^ed to be both a 
 specific and residuary legatee under the will of her father, and 
 so interested in the event of the action, and testifying in her 
 own behalf and interest. The Code, as it now stands, has modi- 
 fied section 399, of its predecessor, by inserting the words "in 
 his own behalf or interest, or in behalf of the party succeeding 
 to his title or interest." As thus amended, the witness did not 
 fall within the prohibition. As specific legatee she was totally 
 unaffected by the result of the pending litigation, and as residu- 
 ary legatee, her plain and direct interest was against the validity 
 of the gift, which her evidence tended to establish. She testified 
 not in her own behalf or in her own interest, but against it, and 
 for that reason her testimony was properly admitted. 
 
 HOBART V. HOBAET. 
 
 Neio Yorh Coihrt of Appeals, 1875. 
 [Reported in 63 N. Y., 80.] 
 
 In an action by one heii- ag'ainst another to set aside a deed as being- fraud- 
 ulently obtained, a third heir holding like deeds, but not a party to 
 the action, is competent to testify to personal transactions with the 
 decedent. 
 
 Such pei'son is interested only in the question involved and not in the 
 event of the action. 
 
 His interest in the question goes only to his credibility. 
 
 Action to set aside deeds ^vhich William L. Hobart, the father 
 of both plaintiff and defendants, had executed to the defendants, 
 prior to his death, upon the ground that the grantor was then 
 incompetent to convey, and also upon the ground of fraud and 
 undue influence. 
 
158 Abbott's Select Cases on Examining Witnesses. 
 
 Hobart v. Hobart, 62 N. Y., 80. 
 
 Upon the trial, Lucinda Decker and Charles H. Hobart, 
 children of the deceased who were not parties to the action, but 
 who had received conveyances from him of property about the 
 same time and under similar circumstances as those to the defend- 
 ants which were sought to be set aside, were called on behalf 
 of plaintiff, but were not allowed, on defendants' objection, to 
 testify to personal transactions and communications with the 
 deceased. 
 
 The Supreme Court at Special Term gave judgment for the 
 defendants. 
 
 The Oeneral Term affirmed the judgment without opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Chtjeoh, Ch. J. {after stating the facts'] : If these witnesses 
 were competent to testify to conversations with the deceased, 
 either for the pui'pose of showing the state of his mind, or to 
 mafee his statements evidence of material facts, it was unneces- 
 sary, in the first instance, at all events, to state the particular 
 language sought to be proved. It cannot be claimed that the 
 court was misled, nor but that it was intended to hold that these 
 persons were incompetent to give this evidence, and the only 
 question is whether such holding is error. These persons were 
 not incompetent by reason of being jDarties to the action, and I 
 am unable to see how they were in a legal sense interested in the 
 event of the action. " The true test of the interest of a witness 
 is, that he will either gain or lose by the direct legal operation 
 and effect of the judgment, or that the record will be legal evi- 
 dence for or against him in some other action. It must be a 
 present, certain and vested interest, and not an interest uncer- 
 tain, remote, or contingent." (1 Greenl. on Ev., § 390). The 
 record could not be used for or against them. If the plaintiff 
 succeeded, the result would not affect these persons. The deeds 
 would still remain valid as against them and their interest, not- 
 withstanding the prayer for judgment that they be declared void 
 as against the heirs of the deceased. A plaintiff cannot enlarge 
 his rights in respect to the judgment by asking for more than he 
 is entitled to, nor can he in this way litigate the rights of others 
 
I. Comjx'tency. (15) Against Estates of Decedents, etc. (b). 159 
 
 Hobart v. Hobart, 63 N. Y., 80. 
 
 not parties. The most tliat can be claimed is, that these persons 
 were interested in the question involved, but such interest is 
 not sufficient to disqualify {Id.. § 389, and cases cited). If these 
 persons were either proper or necessary parties to the action, 
 they could have been brought in at any time under the code, 
 but application was not made by either party, nor was the point 
 taken. They were competent to testify to any facts which any 
 other witness might, and their feeling or position in reference to 
 the subject-matter of the action could only go to their credibility. 
 
 The point, that communications or personal transactions 
 sought to be proved for the sole purpose of showing the state of 
 a person's mind as to sanity or competency, is not within the 
 purview of the restrictions contained in section 399, was not 
 urged, and it is unnecessary to pass upon it ; and yet the defend- 
 ant, Chester Hobart, was permitted to testify to conversations 
 with his father upon the matters invoh'ed in the action. It is 
 said by counsel that this evidence was given only to show the 
 state of mind of the grantor. This does not appear either by 
 the objection or decision, but if so, why should not the evidence 
 of Charles Hobart and Mrs. Decker have been received for the 
 same purpose. The counsel felt obliged to claim that the code 
 rendered them incompetent to testify to personal communica- 
 tions for any purpose, and yet to sustain the ruling as to Chester 
 Hobart, he must occupy the opposite ground. It is difficult to 
 reconcile the two decisions as they appear in the printed case. 
 
 It is urged that these decisions would not have changed the 
 result. This may be so, but we have no legal means of so 
 determining. When the admission or rejection of evidence 
 could not legitimately affect the result, the error will be disre- 
 garded, but it cannot be seen what facts might have been proven, 
 nor can we say what influence such facts might have had upon 
 the court who tried the case. 
 
 It is unnecessary to discuss the other questions. For the error 
 in rejecting the evidence referred to, we feel constrained to 
 reverse the judgment and grant a new trial ; costs to abide the 
 event. 
 
 AH the judges concurred. 
 
 Judgment reversed. 
 
160 Abbott's Select Cases on Examining "Witnesses. 
 Connelly v. O'Connor, 117 N. Y., 91. 
 
 CONNELLY V. O'CONNOR 
 
 JVew York Cotirt of Appeals, 1889. 
 
 [Reported in 117 N. Y., 91.] 
 
 The interest or liability of a mother in respect to the support of her ille- 
 gitimate child, is not an interest in the event of an action broug-ht bv 
 a third person against an executor or administrator to recover on a, 
 promise of the decedent to pay plaintiff for care and support of the 
 child. 
 
 The interest, if any, is too " remote, contingent and uncertain," and is an 
 interest in the question as distinguished from an interest in the event. 
 
 An action originally against John O'Connor, defendant's in- 
 testate, to recover for the care and support of an illegitimate 
 child under an alleged contract with him. 
 
 Upon the death of O'Connor, his administratrix, Mina E. 
 O'Connor, was substituted as defendant. Upon the trial before a 
 referee, plaintiff called her sister, the mother of the child, as a 
 witness, and the witness was asked to state the conversation be- 
 tween Mr. O'Connor and the plaintiff. 
 
 Defendant's counsel objected to the question upon the ground 
 that the witness was interested in the event of the action and the 
 question called for a personal transaction and conversation between 
 the witness and decedent and is incompetent under N. Y. Code 
 Civ. Pro., S 829. 
 
 Objection overruled and exception taken. 
 
 A subsequent motion to strike it out was also denied. 
 
 Judgment entered for plaintiff upon the report of the referee. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Beadley, J. The mother of a bastard child has at common 
 law the duty of its maintenance and the father can be made 
 chargeable only by proceedings under the statute, although he 
 may charge himself by express promise. (Moncrief v. Ely, 19 
 Wend., 405 ; Birdsall v. Edgerton, 25 Wend., 619.) 
 
 Assuming that the mother would have been liable to the plaint- 
 iff, if the latter had failed to recover of the defendant, she would 
 
I. Ciiiiipetency. (15) Against Estates of Decedents, etc. (b). 161 
 
 Connelly v. O'Connor, 117 N, Y., 91. 
 
 be deemed to have an interest in tlie event of the action (1 GreenL 
 Ev., §§ 390, 393.) 
 
 This agreement, so far as appears, was a transaction wholly be- 
 tween plaintiff and O'Connor, in which the witness and others 
 took no part, and as she says she was not treated by them as 
 doing so by acquiescence or otherwise. 
 
 In that view it seems to have been exclusively a conversation 
 between the two and the evidence of the witness would seem to 
 have been competent. (Simmons v. Session, 26 N. Y., 264 ; Gary 
 V. White, 59 K Y., 336.) 
 
 The Co^irt of Appeals affirmed the judgment, rendering the 
 following opinion per Guriam, : The witness Lucy Mooney was 
 not a party or privy to the action. She was, therefore, a com- 
 petent witness to prove the alleged contract between the plain- 
 tiff and the defendant's intestate, unless she was interested in 
 the event, even assuming that her testimony involved a personal 
 transaction between herself and the intestate. (Code, §829.) 
 
 "We think she was not interested in the event of the action 
 within that section. In construing that section it has been held 
 that the test of interest, where the witness is not a party, is that 
 the witness " will either gain or lose by the direct legal operation 
 of the judgment, or that the record will be legal evidence for or 
 against him in some other action. It must be a present, certain 
 and vested interest, and not an interest uncertain, remote or con- 
 tingent." (Hobart v. Ilobart, 62 N. Y., 81 ; Wallace v. Straus, 
 113 id., 238.) 
 
 The recovery of a judgment by the plaintiff in this action 
 against the administratrix of O'Connor would not bar a subse- 
 quent action by the plaintiff against the witness to recover for 
 the support of the child, nor would it establish that the expenses 
 incurred by the plaintiff in its support were incurred under cir- 
 cumstances which precluded her from enforcing the common law 
 liability of the mother of a bastard child to provide for its sup- 
 port and maintenance. The fact that the support was furnished 
 by the plaintiff under a contract with the father might constitute 
 a defense to a suit against the mother. But a judgment against 
 the administratrix of the putative father in this action, to which 
 
162 Abbott's Select Cases on Examining "Witnesses. 
 
 Sanford v. Ellithorp, 05 N. Y., 48. 
 
 the witness was neither a party or privy, would not be conclusive 
 upon the plaintiff in favor of the mother in a subsequent action 
 against her, that the plaintiff furnished the maintenance under 
 such a contract, nor, indeed, would the record be evidence that 
 such a contract had been made. The evidence of Lucy Mooney 
 tends to show that the plaintiff took the child as her own, acting 
 in respect to it in loco parentis, thereby precluding herself from 
 claiming that the maintenance was furnished on account of the 
 mother and on her credit. We think the interest of the witness 
 in the event of the action was, if any, " remote, contingent and 
 uncertain," and was an interest in the question as distinguished 
 from an interest in the event. 
 
 Without, therefore, considering whether the testimony of the 
 witness was concerning a personal transaction between herself 
 and the defendant's intestate, we think the judgment should be 
 affirmed on the ground that she was not a party or a person in- 
 terested in the event of the action within the meaning of the 
 Code. 
 
 All the judges concurred, except Ruger, Ch. J., and Andrews, 
 J., not voting. 
 
 Judgment affirmed. 
 
 SANFOED V. ELLITKORP. 
 
 Wew Yorh Court of Appeals, ISSJ/,. 
 
 [Reported in 95 N. Y., 48.] 
 
 A widow, who, during her husband's lifetime joined in a conveyance of 
 land by him in order to release her dower, is interested in the event of 
 an action broug-ht after his death to set aside the conveyance as ob- 
 tained from him by fraud and undue influence, and therefore incom- 
 petent to testify, against defendant, to a personal transaction or com- 
 munication with her husband. 
 
 Plaintiffs sued to cancel deeds made by their deceased father 
 to his sons, the defendants, on the ground of fraud and undue 
 influence in obtaining them. 
 
 On the trial, Mrs. Cooper, who, at the time of the execution 
 of the deeds, was the Avife of the grantor and had joined in the 
 
I. Conqyetency. (15) Against Estates of Decedents, etc. (b). 163 
 
 Sanford r. Ellithorp, 95 N. Y., 4S. 
 
 •conveyances, was called as a witness by plaintiff to testify as to 
 a communication between herself and the deceased person. 
 
 The defendants objected " that the witness is not competent ; 
 that she is interested in the event of the action." And, after an 
 answer stating conversation between her and the deceased had 
 been given, defendants moved to strike it out on the ground 
 " that witness seeks to show the purpose of the conveyance of 
 the land in controversy by deceased to his sons, and that it 
 details personal and private ti'ansactions between husband and 
 wife." 
 
 The objection and motion were overruled and exception taken. 
 
 Upon report of the Refei^ee, judgment entered for plaintiffs. 
 
 The Supreme- Court at General Term aifirmed the judgment 
 without opinion. 
 
 2'he Court of Appeals reversed the judgment. 
 Danpokth, J. {after stating the facts'] : It cannot be doubted 
 that her testimony was of an important character, bearing dis- 
 tinctly upon every issue in the case. The objection was in sub- 
 stance that it related to personal transactions with the deceased 
 by an interested witness, and it was not necessary to refer to the 
 section of the Code or other authority by which the objection 
 
 ■ could be sustained. It is enough that the objection was in fact 
 well taken. It pointed directly to the respondent's testimony as 
 incompetent, because it involved a personal communication be- 
 tween the witness — an interested person — and the deceased 
 grantor. If the objection had simply been that the witness was 
 not competent under the section referred to (§829), it woidd 
 have been unavailing, because too general. (Ham v. Van Orden, 
 84 N. y., 271.) But the reasons for the exclusion were in the 
 relation of the witness to the event of the action, the character 
 of the testimony, and the source of title in the defendants to 
 the property in controversy. The attention of the referee and 
 adverse counsel was called to them, and that was enough (Simp- 
 son V. Downing, 23 Wend., 316). The cases to which the 
 learned counsel for the respondent has referred are not to the 
 
 • contrary, viz.: Somerville v. Crook (9 Hun, 664), Le^'in v. Ens- 
 
164 Abbott's Select Cases on Examining Witnesses. 
 
 Eisenlorcl v. Clum, 136 N. Y., 553. 
 
 sell (42 JSr. Y., 251), Williams v. Sargeant (-46 id., 481), and! 
 Quinby v. Strauss (90 id., 664). In all of them the terms of 
 objection were of the most general kind, viz.: " Objected to." 
 
 The case here is quite different, and specific grounds of objec- 
 tion were stated. Moreover the course of examination and the 
 ruling of the referee were such that it must have been under- 
 stood that the objection was to tlie competency of the witness to 
 answer the question addressed to her under the prohibition of 
 the section of the code above referred to. 
 
 {Rulings on other subjects are here omitted.'] 
 
 All the judges concurred in reversal except Rugee, Ch. J.,, 
 dissenting. 
 
 EISEJfLOED V. CLUM. 
 
 New York Court of Appeals, 1891. 
 
 [Reported in 136 N. Y., 553.] 
 
 The mother of a plaintiff in ejectment, called as a witnes.s, to prove her- 
 marriage to his father, the person last seized, upon the validity of 
 which niarriage, plaintiff's right to inherit and therefore to recover- 
 depends, has not such an interest in the action as to render her incom- 
 petent to testify to the transaction. 
 
 She is not one from, through or under whom the son derived any interest 
 from his father. 
 
 The term ' ' interest in the event " of the action used in the statute does not . 
 have any lai-ger meaning than it had in the common law rule dis- 
 qualifying interested witnesses. 
 
 She has no interest in the record for the purpose of evidence, because the- 
 judgment would not be competent against her son in a subsequent 
 action by her for dower founded on the same facts. The fact that he- 
 had alleged in this action and sought to prove the validity of the 
 marriage would be competent against him as an admission ; but the 
 judgment would not be competent against him as an adjudication ohi 
 that point, in her action for dower. 
 
 In an action of ejectment by a son to establish his right to inherit from 
 his father, the fact of marriage between the father and mother being ■ 
 in issue, a judgment recovered against his father, by the father of his- 
 mother, on the ground of his alleged seduction of the mother, is not 
 competent; for neither the plaintiff in the ejectment nor his mother- 
 was a party to it. 
 
I. L'ompetency. (15) Against Estates of Decedents, etc. (b). 165 
 Eisenlorcl v. Cluui, Vi% N. Y., 553. 
 
 Although where cohabitation between a man and a woman has been shown, 
 declaration of the parties made during cohabitation and characterizing' 
 it as matrimonial rather than meretricious are competent, as part of 
 the res gestae ; such declarations are not competent on that ground 
 (except against the party making them), unless there was cohabi- 
 tation. 
 
 The declaration of the supposed husband or wife in an alleged marriage, 
 even thoug'h there was never cohabitation, is competent after the 
 death of the declarant, as evidence in an action by issue of the mar- 
 riage, to establish legitimacy and the rig-ht of inheritance. 
 
 The exception which allows admission of hearsay evidence in the case of 
 pedigree, is not confined to ancient facts nor to matters part of the 
 ,res gestae. 
 
 Admissions, while competent evidence of a marriage, are nevertheless 
 unsatisfactory and may be open to grave doubt. 
 
 The plaintiff brings this action of ejectment; as the son and 
 «ob heir-at-law of one Peter O. Eisenlord, who died in Mont- 
 gomery county on the 30th day of June, 1885, seized in fee 
 simple and possessed of the premises described in the complaint. 
 
 The defendants other than Clum are respectively the brothers, 
 sisters or nieces of the deceased Eisenlord, and claim that they 
 are his sole heirs-at-law, and the defendant Clum is in possession 
 of the premises described in the complaint and claims under the 
 other defendants as tenant. 
 
 The plaintiff is the son of one Margaret Lipe, and the question 
 in. issue depends upon whether she was married to the deceased, 
 Eisenlord prior to this son's birth. The plaintiff endeavored to 
 prove an actual marriage between the deceased and his mother 
 prior to his birth on the 21st of October, 1857, and for that pur- 
 pose called among others his mother, then married to one Austin. 
 The plaintiff offered to prove by her various conversations 
 between the witness and the deceased upon the subject of their 
 getting married, and also offered to prove by her the performance 
 of the marriage ceremony between them by a justice of the 
 peace in Montgomery county, at a time anterior to the plaintiff's 
 
 birth. 
 
 All the evidence was objected to by defendant's counsel and 
 was excluded by the court, on the ground that the witness was 
 interested and came within the provisions of section 821j of the 
 Code because if she established the fact that she was married to 
 
Ifi6 Abbott's Select Oases ojst Examining Witnesses. 
 
 Eisenlord v. Clum, 136 N. Y., 553. 
 
 the deceased, slie would then be entitled to dower in this real 
 estate. 
 
 Judgment was entered for defendant. 
 
 T/ie Supreme Court at General Term affirmed the judgment, 
 holding that she was interested in the event, as a judgment in 
 favor of the plaintiff would furnish her evidence to claim her 
 dower. [As to seduction case], it held, that this record was com- 
 petent to prove the status of his father with respect to his 
 mother, although plaintiff was not a party to the record. 
 
 The Court of Af peals reversed the judgment. 
 
 Pecsham, J. {after stating the facts'] : The witness was not a 
 party to the action, and hence could not be excluded as having any 
 interest on that ground. Nor was she a person from, through or 
 under whom the plaintiff derived any title or interest by assign- 
 ment or otherwise. His title or interest, if any, came through 
 Eisenlord, and that, of course, depended upon the question 
 whether the plaintiff was his legitimate son. 
 
 The only other ground of exclusion contemplated by the^ 
 statute refers to a person " interested in the event of the action." 
 
 Prior to the adoption of the Code the law excluded interested 
 witnesses from testifying. "What amounted to such an interest, 
 as would exclude a witness was a question which was frequently 
 presented, and in almost every conceivable phase, and the courts 
 had finally settled down to a general rule on the subject, which 
 had long prevailed before the legislature altered it. 
 
 At common law, as the rule became developed by successive 
 decisions, the interested witness was excluded only when he had 
 what was termed a legal interest in the event of the action. A 
 direct and certain interest in the event of the cause or an inter- 
 est in the record for the purpose of evidence, became necessary 
 in order to exclude (Starkie on Ev., Marg. Pgng., 23, 24, 9th 
 ed., 1849). 
 
 The inclination of the coiirts was towards a holding that the 
 fact of interest should go to the credit rather than to the com- 
 petency of the witness, and hence they said that the party alleg- 
 ing incompetency must show it beyond doubt. The English 
 
I. Com.petency . (15) Against Estates of Decedents, etc. (b). 16T 
 
 Eisenlord v. Clum, 126 N. Y., 552. 
 
 legislature interfered with the rale as to the record, and provided 
 that it should not be evidence in another action for or against, 
 the witness who testified (3 and 4 Will. lY., ch. 42, § 26). Then, 
 under the suggestion of Lord Denman, another act was passed 
 limiting very greatly the cases in which a person should be ex- 
 cluded by reason of interest (6 and T Yic , ch. 85). 
 
 In this state the question arose at an early date and in one of 
 the pioneer cases, Yan ISTuys v. Terhune (3 Johns., Cas. 82) the 
 rule as above stated was declared as the law. It was thereiil ex- 
 plained that a witness was not interested in the event of the 
 cause unless he would gain or lose by the event, and he was not 
 interested by the record, unless the verdict would be given in 
 evidence for or against him in some other proceeding. In a 
 note to this case it is stated that the rule was formerly that an 
 interest in the question put to the witness excluded him, but it 
 was admitted that such rule had been explained away and limited, 
 so that the one announced in the case was the true rule. This 
 case was decided in 1802. In Jackson ex dem. v. Bard (i Johns., 
 230), it was held that the widow of one Dickenson, who was the 
 mediate grantor under whom the defendant claimed the land in 
 question, was a competent witness, although it was argued she 
 might claim dower in case the deed had not been executed. The 
 Supreme Court held the decision correct, and said she was not 
 an interested witness because the verdict in the cause could 
 never be given in evidence in an action of dower brought by her. 
 
 Then in Jackson ex dem. v. Yan Dusen (5 Johns., 141), which 
 was an action of ejectment, it was distinctly held that the widow 
 of a person deceased was a competentwitness in an action brought 
 by the heir to recover the possession of lands claimed under her 
 husband though she would be entitled to dower in such lands. 
 Yan JSTess, J., delivered the opinion of the court and said the 
 witness had no other interest in the case than that which grew 
 out of her right or dower in the premises and as to that the ver- 
 dict in the cause would be no evidence in a suit to be brought l)y 
 her for the recovery of her dower. 
 
 In Jackson ex dem. v. Nelson (6 Cow., 248) it was held that in 
 an action of ejectment against a devisee, a co-devisee and tenant. 
 in common with the defendant, not in actual possession, might 
 
168 Abbott'k Select Cases on Examining "Witnesses. 
 
 Eisenlord v. Clum, 126 N. Y., 553. 
 
 be a witness for defendant, because the effect of a recovery by 
 the plaintiff would not be to turn him out of any possession, nor 
 could the verdict be evidence for or against him in any other suit. 
 
 Again in Jackson ex dem. v. Brooks (8 Wend., 426, 431) an 
 action of ejectment it was held that a tenant by the courtesy was 
 a competent witness for the plaintiff, who was the heir-at-law. 
 The court said the witness could not use the verdict if the plaint- 
 iff recovered, as evidence in his favor in any suit he might 
 bring to enforce his title as tenant by the courtesy, and hence he 
 had but an interest in the question and not in the event of the 
 suit (see also Peake on Ev., Norriss' Notes, 209, Pt. 1, ch. 3, § 3 ; 
 1 Green], on Ev., § 386, et seq.). The interest must be certain, 
 direct, not contingent or remote, or a mere possible benefit. 
 
 Under the rule of the common law on the subject of interest 
 it is plain that the mother in this case would have been a com- 
 petent witness. She had no interest in the event of the suit as 
 that expression has been defined by the courts, and the judg- 
 ment would not have been any evidence for or against her in 
 any action she might bring. I think the expression " interest in 
 the event " as used in our statute was never intended to enlarge 
 the class to be excluded under it beyond that which the common 
 law excluded in using the same language. 
 
 All legislation on the subject has been in favor of greater 
 liberality in the rules relating to the competency of witnesses. 
 Upon referring to the cases which have been decided under the 
 section of the Code already referred to, we find that the rule de- 
 fining what is an interest in the event is laid down in about the 
 same terms as those used by the common law (Hobart v. Hobart, 
 62, K T., 80; IsTearpass v. Gilman, 104 id,, 606; "Wallaces. 
 Straus, 113 id., 238 ; Connelly v. O'Connor, 117 id., 91). 
 
 But the learned General Term, upon the appeal in this case, 
 has held the exclusion was proper on the ground that the judg- 
 ment would furnish the witness with important evidence to 
 establish her claim to dower in the premises described in the 
 complaint. The cases I have cited show conclusively that such a 
 judgment would not been admissible in evidence at common 
 law in any such action, either for or against the witness, and in 
 this respect the Code has not changed the rule. 
 
I. Coinpetency. (15) Against Estates of Decedents, etc. (b). 169 
 
 Eisenlord r. Clum, 126 N. Y., 553. 
 
 The case of IMiller v. Montgomery (TS IST. Y., 282), is cited 'to 
 show that the record would be legal evidence for or against her. 
 A surety upon the bond of a non-resident executor was there 
 held to be interested in the event of the accounting of his prin- 
 cipal. This was so held because the surety is bound by the 
 decree of the surrogate made upon a regular accounting, and 
 such decree would be evidence against the surety in a suit upon 
 the bond. "Within all rules such a witness is interested and is 
 incompetent to testify to a personal transaction with the de- 
 ceased. 
 
 The General Term also thought the judgment would be evi- 
 dence as a declaration or admission by the plaintiff of the facts 
 or some of them which the witness would have to prove in her 
 action against him for dower. Any declaration or admission 
 made by the plaintiff as to any fact material for the witness to 
 prove in her action is undoubtedly admissible as an admission. 
 If found in a pleading and it be shown that it was placed there 
 with the knowledge and sanction of the plaintiff herein, such 
 pleading would be admissible for the purpose of proving such 
 admission (Cook v. Barr, 11 N. Y., 156). In order however, to 
 prove such admisssion, it is not necessary or proper to put in 
 evidence the judgment in the action, for it is not the judgment 
 which furnishes the proof, but the admission contained in the 
 pleadings, and the judgment is not in that case the least evidence 
 in fav(^r of the witness in any action she might bring. The ad- 
 mission would exist without the judgment and regardless of it. 
 
 That the witness has an interest in the question is very plain, 
 but I am aware of no principle that would permit the introduc- 
 tion of this judgment as any proof for or against the witness in 
 any other action. I sse no foundation for any estoppel as 
 against the plaintiff herein in an action brought by the witness 
 to recover her dower. If, as I say, he has made admissions they 
 may be proved, but to. say that he is estopped in the action for 
 dower from denying any fact upon which the right of the plaint- 
 iff in such action depends, because, in another action between 
 himself and a third party it was necessary for him to prove the 
 same fact, would be a great extension of the doctrine of estop- 
 pel. If in the course of such first trial the plaintiff had ad- 
 
170 Abbott's Select Cases on Examining Witnesses. 
 
 Eisenlord v. Oum, 126 N. Y., 553. 
 
 mitted by his own testimony any fact material in the dower 
 action it would be an admission which could be taken advantage 
 of by proving that it was made, but if the fact had been proved 
 by some third party instead of by the plaintiff, it is not in that 
 ■event an admission or declaration of the plaintiff therein, which 
 renders a judgment in that action proof against him in any future 
 controversy with a third party. 
 
 The cases cited from 1 Greenl. on Ev. (§ 527 a) are those 
 where it was claimed the party had made an admission in a dec- 
 laration or other pleading, or had suffered default, and it was 
 held such express admission, or such constructive admission 
 by suffering a default, was competent evidence against him. We 
 do not doubt the correctness of this rule. It is not the judg- 
 ment which is to form the evidence. It is the admission con- 
 tained in the pleading or by the suffering of the default. 
 
 Our conclusion is that the mother of the plaintiff was a com- 
 petent witness to prove any or all facts of which she was cogni- 
 zant and which were material and which were not inadmissible 
 upon some ground other than the alleged interest of the witness 
 in the event of the action. 
 
 Second. Another question arises upon the reception in evi- 
 dence against the objection of the plaintiff, of the judgment in 
 the action of John A. Lipe v. Feter O. Eisenlord. It was an 
 action brought by Mr. Lipe (who was the father of Margaret 
 Lipe, the mother of the plaintiff in this action), against the de- 
 fendant on account of his alleged seduction of the plaintiff's 
 daughter, Margaret, and in which action the plaintiff recovered 
 a verdict, upon which judgment was entered in his favor. 
 
 I see no ground on which to permit its introduction in this 
 action. The plaintiff here was no party to it, nor was his 
 mother, Margaret Lipe. The judgment established nd status 
 of the plaintiff's mother. As a judgment it simply established 
 the fact which was conclusive on all parties and privies thereto, 
 that in 1856, the defendant had seduced the plaintiff's daughter, 
 Margaret Lipe. Neither the plaintiff in tliis action nor his 
 mother was a party or privy to it. In that class of judgments, 
 which toucli the subject of marriage or divorce, and either estab- 
 lish a marriage or decree a divorce between the parties, it has 
 
I. Cohipetency, (15) Against Estates of Decedents, etc. (b). 171 
 
 Eisenlovd r>. Clum, 186 N. Y., 553. 
 
 been held that nndei" certain circumstances and within proper 
 limitations as to jurisdiction, etc., such judgments are binding 
 and of universal obligation. It is upon the same principle that the 
 decree of a court in rem is conclusive upon the title to the res 
 adjudicated upon (1 Greenl. on Ev., §§ 5±3, 544 and notes). 
 
 But this is no such judgment. It adjudges no status and is 
 conclusive of the facts therein adjudged, simply between the 
 parties and privies thereto and the plaintifE occupies neither 
 position. If the witness had been sworn and had testiiied to 
 facts upon this trial, which it was'claimed were inconsistent with 
 what she swore to on the trial of the seduction case, upon her 
 attention being called thereto and a proper foundation laid, such 
 contradictory and inconsistent declarations or evidence, if ma- 
 terial, could have been proved with a view to impeach her evi- 
 dence upon this trial. 
 
 We think the judgment spoken of was not admissible in evi- 
 dence against the plaintiff. A third question arises upon the 
 exclusion of declarations said to have been made by Eisenlord at 
 times long subsequent to the time when this alleged marriage 
 ceremony took place. One "witness was called and the plaintifE 
 ofiered to prove by him that Eisenlord had said to him, in 1863 or 
 1864, that he was married and had a wife, and that it was Margaret 
 Lipe. The plaintiff offered to prove by another witness that 
 Eisenlord had said he was married and had an heir, a son, the one 
 witness had teased him about, the plaintiff herein. This was in 
 1867 or 1S68. Eisenlord died in 1885. The evidence was 
 objected to as incompetent and as not characterizing any act or 
 thing which could render it admissible. The objection was sus- 
 tained and the plaintiff excepted. 
 
 The fact is undisputed that the deceased Eisenlord and 
 Margaret Lipe never lived} together or cohabited as man and 
 wife. No declarations of his could therefore characterize or ex- 
 plain the nature of a cohabitation which confessedly never ex- 
 isted. It is equally undisputed that Eisenlord never had any- 
 thing to do with this alleged son. They never lived together, 
 and i'f they ever met, there is no proof of such fact aside from 
 the possible inference arising from some of the alleged declara- 
 tions, and they only went to the extent of an inference that 
 
1*72 Abbott's Select Cases on Examining Witnesses. 
 
 Eisenlord v. Clum, 126 N. Y., 553. 
 
 Eisenlord had seen the plaintiff. These declarations, therefore, 
 did not in any manner characterize or explain the footing upon 
 which the plaintiff and Eisenlord had ever lived together, or 
 even met. 
 
 Under such, circumstances, the question arises as to the admissi- 
 bility of the proposed evidence for the purpose of proving, or as 
 corroborative proof of a marriage in an action of this nature. 
 They might be admissible upon the trial of an action to which 
 the person making them was a party. 
 
 It has been held in England and in some of the states of this 
 Union that evidence of declarations as to a former marriage was. 
 competent on the trial of an indictment for bigamy against the 
 party making them. (1 Whart. on Ev., § 86, and note ; Miles 
 V. U. S., 103 U. S., 304.) 
 
 But in this state it has been held that such evidence was not 
 suiEcient, in a prosecution for bigamy, to establish a marriage, 
 even against the party making the admissions. (People v. Hum- 
 phrey, T Johns., 314: ; Gahagan v. People, 1 Park, Cr. 378.) 
 
 The court in the latter case held them admissible to corrobo- 
 rate the proof of the actual marriage. In cases where a coliabita- 
 tion between a man and woman was proved at the time when 
 the declarations of the parties were made, they have been admit- 
 ted in evidence, even in the life-time of the parties making 
 them, upon the principle that they were a part of the res gestae, 
 accompanying, characterizing and explaining the nature of that 
 cohabitation as being matrimonial, rather than meretricious. 
 They were admitted as competent proof, corroborative of the 
 claim of a marriage between the parties so cohabiting. It was 
 stated that proof of cohabitation, conduct, reputation, reception 
 in family and in society, holding each other out as husband and 
 wife, all tended to prove a marriage, and that in a perfect case 
 they all combined, the lesser facts attending upon and explain- 
 ing the material and important fact of cohabitation. These 
 principles are illustrated in the authorities herein cited (1 Bish. 
 on M. & D., § 439 ; 1 Ph. Ev., Cow., Hill & Edwds. Notes 
 pg. 252, Note 91 ; Read v. Passer, 1 Esp., 213 ; Loader v. Barry, 
 id., 353 ; Matchews on Presump. Ev., 283 ; Fenton v. Reed, 4 
 Johns., 52; In re Taylor, 9 Paige, 611; O'Gara w. Eisenlohr, 
 
I. Compdencij. (15) Against Estates of Decedents, etc. (b). 173 
 
 Eisenlorcl v. Clum, 126 N. Y,, 553. 
 
 Q . 
 
 3S X. Y., 296 ; Chamberlain v. Chamberlain, Yl id., 42;; 
 Badger v. Badger, 88 id., 546). All these cases do not speak of 
 the principle upon which the declarations were admitted, but 
 it plainly appears that there was cohabitation, and the-declara- 
 rations, reputation, holding themselves out as married persons, 
 etc., all came in as adjuncts to strengthen the inference and to 
 corroborate the presumption of marriage resulting from such 
 cohabitation and as explanatory thereof, and therefore as part of 
 the res gestae. 
 
 How far the principle of res gestae extends was somewhat dis- 
 cussed in Badger v. Badger {supra), by Finch, J., but die point 
 here was not decided. I do not see that these declarations in 
 the face of evidence that there never was any cohabitation be- 
 tween the parties, can be claimed to have been part of the res 
 gestae, even under the most extended definition of that term, 
 and some other ground must be sought for their admission, if 
 they be competent at all. 
 
 It seems to me that they are competent as hearsay evidence in 
 a case of pedigree. Such a case is a well known and recognized 
 exception to the general rule excluding hearsay evidence. This 
 case involves without doubt a question of pedigree simply. It is 
 what is termed in the books, a purely genealogical controversy. 
 Peter O. Eisenlord, is, upon the plaintiff's claim, the common 
 ancestor of all the parties, while the defendants only deny the 
 plaintiff's relationship to him. The sole question involved is as 
 to this relationship of the plaintiff, and that depends upon the 
 fact of a marriage having taken place between Eisenlord and the 
 plaintiff's mother before his birth. The exception regarding the 
 admission of hearsay evidence in case of pedigree is not confined 
 to ancient facts, but extends also to matters of pedigree which 
 have recently transpired ; and the hearsay as to deceased wit- 
 nesses is admitted as to facts which have occurred in the presence 
 of living witnesses. (1 Ph. on Ev., Cow., II. & Edws. notes, pg. 
 248, Yowles v. Young, 13 Yes., 140.) Matters of pedigree con- 
 sist of descent and relationship, evidence of declarations of par- 
 ticular facts, such as births, marriages and deaths {^!d., 251). 
 
 In cases of pedigree, hearsay evidence of declarations of per- 
 sons who from their situation were likely to know, is admissible 
 
17-i Abbott's Selkct Cases on Examining Witnesses. 
 
 Eisenloi'cl v. Clum, 126 N. Y., 552. 
 
 f 
 
 when the person making the declaration is dead. (Jackson ex 
 
 dem. Ross v. Cooley, 8 Johns., 128.) 
 
 It is not the question whether such evidence is sufficient to 
 prove the marriage, but only whether it is competent. In many 
 cases it will be readily seen, such evidence may, under the cir- 
 cumstances, be the only evidence which can be obtained, and 
 there might be no evidence of cohabitation. In those cases the 
 decl'trations might be less open to criticism, and entitled to much 
 greater credence than where the facts were recent, and other 
 evidence readily attainable, if the truth were in that direction. 
 The weight to be given this kind of evidence depends upon the 
 facts surrounding each particular case. It is plain, however, 
 that in cases of pedigree the declarations to be admissible need 
 not be a part of the res gestae, for if they were, they would be 
 admissible on that ground, irrespective of any question of their 
 admissibility as in a case of pedigree. The exception to the 
 general rule in the latter case takes a wide range. Traditional 
 declarations become the best evidence sometimes, when those 
 best acquainted with the fact are dead. When derived from 
 those who are most likely to know the truth and are under no 
 bias to misrepresent the fact, such evidence affords a reasonable 
 presumption of the truth (Starkie on Ev., pg. 47, 9th Am. ed., 
 1879). 
 
 Upon questions of pedigree, /. e., in a controversy merely 
 genealogical, hearsay evidence is allowed as to the time of birth 
 of a certain party, as to a marriage, death, legitimacy or the re- 
 verse, consanguinity generally, and particular degrees thereof, 
 and of affinity (Per Knight-Bruce, Y. Chan , in Shields v. 
 Boucher, 1 DeG. & Sm., 40-52). The term pedigree, says 
 Greenleaf, embraces not only descent and relationship, but also 
 the facts of birth, marriage and death, and the times when these 
 events happened, and the rule permits hearsay evidence of the 
 declarations of deceased members of the family upon these points 
 in any case involving pedigree (1 Greenleaf on Ev., §§ 103, 104). 
 The declarations to be admissible need not bs upon the knowledge 
 of the declarant. If this was so the main object of permitting 
 hearsay evidence would be frustrated, as it seldom happens that 
 the declarations of deceased relations embrace matters within 
 
I. Competency. (15) Agaiust Estates of Decedents, etc. (b). 175 
 Eisenlord v. Clum, 126 N. Y., 553. 
 
 their own personal knowledge. Thus evidence, that a deceased 
 member of the family said that he heard from others of his 
 family the facts which he states, is admissible (1 Whart. on Ev., 
 § 205 ; Doe ex dem. BanDing v. Grifiin, 15 East., 293 ; Doe ex 
 dem. Putter v. Randall, 2 Moore & Payne, 20). The evidence 
 is of course not rendered less admissible where the declarant 
 knows the fact which he declares. For the purpose of proving 
 a marriage in cases of pedigree where the object is to trace re- 
 lationship, the declarations of deceased members of the family 
 are competent (1 Whart. on Ev., § 212). 
 
 It has been stated ' that declarations in regard to particular 
 facts are not competent. This is true in cases where proof of a 
 custom right of way of common, and the like is offered. But 
 in a case of pedigree it is always a particular fact . that is to be 
 proved, and in relation to which the declarations of the deceased 
 person are offered, and in such cases the particular facts stated, 
 such as birth (place or time where material), marriage and death 
 are competent (1 Ph. Ev., Ch. Edws., notes, M. Pg., 251 ; "Whart. 
 on Ev., § 209). 
 
 In respect to such proof of particular facts it has been said 
 that " a birth however from a single woman, a birth from a 
 married woman, a death, a man-iage is a particular fact, or a 
 single act which, of course, is provable by hearsay ( hearsay from 
 a proper quarter), on a question of pedigree " (Per V.-Chan. 
 Knight-Bruce, in Shields v. Boucher, supra). 
 
 The only case looking to the contrary that I have found, is 
 Westfield v. Warren (8 IS". J. L., 249), where Ewing, Ch. J., said 
 that where marriage was to be shown as a substantive, independ- 
 ent fact, it was within none of the exceptions to the general rule, 
 and that hearsay evidence could not be received. The case was 
 one regarding the settlement of a pauper and might well have 
 been placed upon the ground that it was not a case of pedigree 
 at all. In Rex v. Erith (8 East, 539), Chief Justice Ellen- 
 borough held in a case of a settlement of a pauper, that it was 
 not a case of pedigree but simply a question as to what place an 
 undisputed birth derived from acknowledged parents had taken 
 place in. 
 
 I think it entirely clear, that from the nature of the case, as 
 
176 Abbott's Select Cases on Examining Witnesses. 
 
 Eisenlord v. Clum, 126 N. Y., 553 
 
 'well as upon authoritj, a case of pedigree forms an exception to 
 the general rule as to proof of a particular fact by hearsay, 
 reputation or tradition. As to what is a case of pedigree, an ex- 
 amination of the question shows that a case is not necessarily 
 one of that kind, because it may involve questions of birth, 
 parentage, age or relationship. Where these questions are merely 
 incidental and the judgment will simply establish a debt, or a 
 person's liability on a contract, or his proper settlement as a 
 pauper, and things of that nature, the case is not one of pedigree, 
 although questions of marriage, legitimacy, death or birth are 
 incidentally inquired of (Whittuck v. Waters, 4 C. & P., 375). 
 
 Thus, in Haines v. Guthrie (L. R. [13 Q. B. D.J, 818), it was 
 held both in the Queen's Bench Division, and in the Court of 
 Appeals, that declarations of a deceased father were not admis- 
 sible in evidence to prove the age of his son, who had been sued 
 for the price of a horse sold him, and who had set up the de- 
 fense of infancy. They would have been admissible, the court 
 stated, if the case had been one of pedigree. 
 
 Beett, M. E., in the course of his opinion in the Court of Ap- 
 peals, shows the absence of those facts which make up a case of 
 pedigree, for he says, " What the family of the defendant is, is 
 immaterial, whose son he is, is immaterial, whether he is a 
 legitimate or an illegitimate son, is immaterial, and wbether he is 
 an elder or a younger son, is immaterial. ISTo question of family 
 is raised in the case." It simply involved the point of the age 
 of a defendant for the purpose of thereby determining his 
 liability upon a contract which he had made, and upon which, if 
 of age, he was liable. The judgment would in such case estab- 
 lish no fact in any contest the defendant might have in regard 
 to property depending upon his being a member of his father's 
 family, or his age, at any particular time. It was not at all 
 genealogical controversy, but a mere collateral issue, and hence 
 the rule in pedigree cases did not apply. In the case at bar, 
 however, the case is solely one of pedigree, and the evidence 
 must be judged of with regard to this fact. 
 
 The case of In re Taylor (9 Pai., 611), where the chancellor 
 held that the declarations of one of the parties, made after the 
 cohabitation had ceased, could not be admitted in evidence, was 
 
T. Competency. (15) Against Estates of Decedents, etc. (b). Ill 
 
 Eisenlord r. Clura, 136 N. Y., 553. 
 
 Kot a pedigree case, but only involved the appointment of a 
 ■committee for the father, who was insane, and such declarations 
 were held inadmissible as not being a part of the 7'es gestae. 
 
 A careful examination of the question has led me to the con- 
 clusion that the evidence of Flanders and Saltsman, regarding 
 Eisenlord's declarations should have been received as in a case 
 of pedigree. Other evidence, of course, may be offered that 
 may be definite enough to be competent, though most of what 
 was offered, other than that to which I have alladed, was 
 altogether too vague to be admissible. It identified no one, and 
 really amounted to nothing. 
 
 Although admissible, the evidence is liable to grave suspicion. 
 Indeed, we are bound to say that this whole case presents itself 
 as full of suspicion. The silence of the woman during all these 
 vears as to .the marriage, silence Avhieh was continued until the 
 death of her alleged husband, is in and of itself a suspicious fact. 
 Admissions of a marriage are, under such circumstances, most 
 unsatisfactory and open to grave doubt. If such declarations' 
 were in truth ever made, there may have been motives which 
 it is impossible to fathoin, and which may at the same time have 
 operated upon Eisenlord, and induced him to make an admission 
 of this kind when it was wholly untrue. Where the facts are of 
 comparatively recent occurrence, and the alleged declarations of 
 ^the deceased are at war with his known actions during his life, 
 and where there was no cohabitation or recognition of the party 
 as wife or husband, it may be averred that the evidence is to be 
 looked upon with very great distrust. Still, within the authori- 
 ties the evidence is competent. Under our rulings there may be 
 evidence enough in the case to require its submission to a jury. 
 
 The judgment must be reversed and a new trial granted, costs 
 io abide event. 
 
 All concurred, Andrews and Finch, J J., on first two grounds. 
 
 Judgment reversed. 
 
1Y8 Abbott's Select Cases on Examining Witnksses. 
 Heft V. Ogle. 137 Pa. St., 344. 
 
 HEFT V. OGLE. 
 
 Supreme Court of Pennsyl can ia, 1889. 
 [Reported in 127 Pa. St., 344.] 
 
 Where an executor or administrator sue.s on a claim in favor of the estate,, 
 a legatee or distributee, who has parted with his interest by release — 
 or it seems by payment or assignment — is competent as a witness for- 
 the plaintiff, unless there is some other ground of exclusion than that 
 he is a legatee or distributee. 
 
 Assumpsit by an administrator for money lent by the decedent. 
 
 At the trial, the administrator, Frank Ogle, who was the son 
 of the decedent, called his sister, Maria S. Ogle, as a witness to 
 prove the loan. 
 
 She was objected to as incompetent, being the daughter of 
 decedent, whereupon the following paper was produced : 
 
 " Know all men by these presents, that I, Maria S. Ogle, do 
 hereby for myself, my heirs, executors and administrators, abso- 
 lutely release, assign, transfer and discharge unto Frank E. Ogle 
 all my right, title and interest of whatsoever kind, either in law 
 or equity, of, in and to any sum or sums of money which may be 
 recovered in or which may result from the action of Frank E. 
 Ogle, administrator, against Jacob D. Heft, surviving partner, 
 now pending in the Court of Common Fleas No. 1, of September 
 Term, 1884, No. 486, and do discharge him from any liability or' 
 accountability to me in any form whatever for any sum or sums 
 of money which may be recovered in said action. 
 
 " "Witness my hand and seal the twentieth day of September, 
 A. D. 1884. [Signed] Maria S. Ogle. [l- s.] " 
 
 The witness testified that there existed no other agreement 
 between herself and her brother than the writing produced, and 
 that she had no interest in the moneys sought to be recovered. 
 
 The defendant's objection having been renewed, it was over- 
 ruled, and witness was admitted to testify generally. 
 
 In the Court of Common Pleas a verdict was returned for the 
 plaintiff. 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 179 
 Hett V. Og-le, 127 Pa. St., 344. 
 
 The Supreme Court affirmed the judgment. 
 
 Stereett, J. This suit was broiight by Frank E. Ogle, 
 administrator of Mary F- Ogle, deceased," against Jacob D. Heft, 
 who survived Harry S. Ogle, late partners as Heft and Ogle, to 
 recover money alleged to have been loaned to said firm by 
 plaintifE's intestate, Mary F. Ogle, who died leaving as her only 
 heirs-at-law, four children, viz., Maria S., Harry S. (deceased 
 member of Heft ifc Ogle), Frank E. (the administrator), and 
 Caroline Ogle. 
 
 On the trial, plaintiff below called his sister, Maria S. Ogle, to 
 substantiate the claim in suit. The witness being objected to as 
 incompetent, he proved and put in evidence a paper, signed and 
 sealed by her, wherein she absolutely releases, assigns and trans- 
 fers to her brother, Frank E. Ogle, individually, all her " right, 
 title and interest of whatsoever kind, either in law or equity, of, 
 ia and to any sum or sums of money which may be recovered or 
 which may result from " this suit, and discharges " him from all 
 liability or accountability * * * * * -x- * in any form 
 whatever, for any sum or sums of money which may be re- 
 covered in said action." The witness also testified, on her voir 
 dire, that there was no other agreement between herself and her 
 brother, and that she then had no interest in the fund. The ob- 
 jection was overruled, and bill sealed for defendant below. 
 
 The question thus presented in the first specification is, whether 
 the learned judge erred in ruling as he did. We are of opinion 
 that he did not. The witness was not a party to the record. She 
 was neither the owner nor the assignor of the claim in suit ; nor 
 could she, individually, in her own right, ever have been plaint- 
 iff in an action to recover the same. She was not a party in 
 interest, because prior to suit brought, she absolutely released 
 and transferred to her brother, individually, all the interest she 
 ever had or could have in the amount that might be recovered. 
 She was therefore competent to testify, and no policy of law ex- 
 cluded her. On the contrary, the policy of the law is rather to 
 favor the admission of witnesses who are divested of all interest. 
 Whenever it is practicable to do so, the tendency of modern 
 legislation, as well as judicial decision, is to let questions of 
 
ISO Abbott's Select Cases ox Examining Witnesses. 
 
 Heft V. Ogle, 127 Pa. St., 244, 
 
 policy, interest, etc. go to the credibility, rather than to the com- 
 petency of witnesses. 
 
 On principle as well as authority, it ought to be considered 
 settled that in an action by an executor or administrator, based 
 on a claim in favor of the estate he represents, a legatee or dis- 
 tributee who has parted with his interest, either by release, pay- 
 ment or assignment, is a competent witness for plaintiff, unless 
 there is some ground of exclusion other than the fact that he is 
 a legatee or distributee, and as such was previously interested in 
 the result of the suit : 1 Greenl. Ev., §§419, 430 ; Miller on 
 Witnesses, 58 ; Scott v. Lloyd, 12 Pet., 145; Gebhart v. Shindle, 
 15 S. & E., 235 ; Dellone ?;. Eehmer, 4 W., 9 ; Commonwealth «. 
 Ohio & P. E. Co., 1 Gr., 348 ; Cornell /;. Vanartsdalen, 4 Pa., 
 364 ; Carter v. Trueman, 7 Pa., 315 ; Steininger ?'. Hoch, 42 Pa., 
 432 ; Forrester v. Torrence, 64 Pa., 29 ; Brant v. Dennison, 3 
 East'n. E., 9 ; s. c, 1 Cent. E., 400. 
 
 In some of our cases there is more or less confusion of thought, 
 arising from the failure to properly distinguish those of the class 
 to which the one now before us belongs, from eases in which the 
 proffered witness was either actually or substantially a party to 
 the suit, or in which he was the assignor of the thing or contract 
 in action, a party to a negotiable instrument, or otherwise in- 
 competent on the ground of public policy. In Hans ?\ Palmer, 
 21 Pa,, 296 ; Montgomery n. Grant, 5YPa., 243 ; Grayson's App., 
 5 Pa., 395 ; Bailey v. Knapp, 19 Pa., 193 ; Hatz v. Snyder, 26 
 Pa., 511; Fross' App., 105 Pa., 258, 266, and kindred cases, 
 witnesses were excluded for one or other of the reasons above 
 stated. Some of those grounds of exclusion are now greatly 
 restricted by legislation of comparatively recent date. 
 
 In Commonwealth r. Ohio & P. E. Co., sujyra, Mr. Justice 
 Black notices the distinction between an interest that is collateral 
 and one that is direct, as follows : " When the interest of the 
 witness is collateral, his competency may be restored by a release 
 or transfer of it The rule in Post ?\ Avery applies only to 
 persons Avho have assigned choses in action on which the 
 recovery would have been for their own use, if no assignment 
 had been made. Its object is to prevent a party from transform- 
 ing himself into a witness by the magic of a bit of paper. It 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 181 
 
 Heft V. Ogle, 137 Pa. St., 344. 
 
 forbids one who assigns a claim to sell his oatli along with it. 
 But a person wlio has a merely incidental interest in the result, 
 an interest which arises entirely out of the fact that the record 
 may be evidence for or against him in some other action, niav 
 divest himself of such interest, and if he does so at any time 
 before he is offered as a witness, his testimony must be received. 
 For instance, a stockholder in a corporation may transfer his 
 stock and become a witness for the company ; a legatee may dis- 
 pose of his interest in the estate and testify for the executors ; 
 an attorney who has a contingent fee may release it and give evi- 
 dence in favor of his client. * The rule in question is not leveled 
 against interested witnesses, but is founded in the policy of 
 stopping a disinterested party from testifying in favor of one who 
 sues in his right." 
 
 Brant i\ Dennison, siqji'c., was an action of ejectment against. 
 a mortgagor by the administrators of the mortgagee who died 
 intestate, unmarried and without issue. On the trial, a niece 
 and heir-at-law of the intestate, and wife of one of the adminis- 
 trators, was called bv them to sustain the mortgage on which the 
 action was based. Being objected to as incompeteijt, because 
 she was the wife of one of the plaintiffs and also a distributee of 
 the estate represented in part by her husband, and therefore 
 interested, it was shown that she had previously executed and 
 delivered to a third party an assignment of all her interest in the 
 mortgage in controversy ; and on the authority of Carter o. 
 Trueman ; Steininger v. Hoch, and kindred cases, it was held 
 that inasmuch as she was not a party to the suit, either actually 
 or substantially, and her interest as distributee, so far as the 
 claim in suit was concerned, having been divested by the assign- 
 ment, she was a competent witness. In principle, that case is 
 not essentially different from the one under consideration. The 
 first specification of error is not sustained. 
 
 \_Here followed a ruling on the rejeetion of another offer of 
 euldenoe in the Court helow, it helng held, no e?'ror.] 
 
 Judgment affirmed. 
 
182 Abbott's Select Cases on Examining Witnesses. 
 O'Brien v. Weiler, 68 Hun, 64. 
 
 O'EEIEN V. WEILEE. * 
 
 New York Sujpreme Court, 1893. 
 
 [Reported in 68 Hun, 64] 
 
 In an action by or against the executor to recover alleged assets, a release 
 by the interested witness to the estate of all claim to and Interest in 
 such assets is sufficient, because that precludes all pecuniary advan- 
 tage to the witness from a recovery ; and the fact that other distribu- 
 tees or legatees will gain by a recovery is not material. 
 
 Action on a savings bank account 
 
 Peter T. O'Brien, the plaintiff's testator, made a gift or created 
 a trust in favor of his daughter by opening an account in a 
 savings bank in his name as guardian of his daughter. 
 • The deposit having accumulated interest for several years, the 
 father invested a similar sum in railroad bonds and delivered 
 them to his daughter who accepted them in lieu of the bank 
 account. The father and daughter having both died, their repre- 
 sentatives respectively claimed the money standing to the credit 
 in the bank account. 
 
 Upon the trial, the widow of the testator, having released her 
 husband's estate from all claim and interest in respect to the 
 moneys involved in the action, was called by the plaintiff as a 
 witness to testify to the transactions and communications between 
 her husband and the deceased daughter ; and between herself 
 a nd the deceased daughter. 
 
 It was objected that she was excluded from testifying under 
 s ection 829 of the Code of Civil Procedure. 
 
 The Supreme Court at Sjpecial Term entered judgment for 
 plaintiff. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Van Bednt, P. J. [on this point said] : It is claimed that 
 because the witness did not release all her interest in the estate, 
 or which she might acquire under the will, therefore she was 
 not competent. It is undoubtedly true that a legatee'or devisee 
 Tunder a will is incompetent to testify to personal transactions 
 
I. Compettnoy . (15) Against Estates of Decedents, etc. (b). 183 
 
 O'Brien v. Weiler, 68 Hun. 64. 
 
 or communications with tlie deceased, preceding, attending or 
 succeeding the execution of tlie will, in support of which propo- 
 sition various authorities may be cited. But it is equally true 
 ihat a party may ^become competent by releasing his interest in 
 the subject matter involved ; and, therefore, when the witness 
 released and discharged the estate of and from all interest or 
 ■claim she might have in and to the moneys involved in this 
 action, she was no longer a party or person interested in the 
 event of the action, and consequently did not come within the 
 prohibition of section 829. All the cases cited by the learned 
 counsel for the appellant in support of the claim that there 
 must be a release of all interest under the will in order to enable 
 a legatee or person interestsd in the will to become a competent 
 witness as to personal transactions or communications between the 
 witness and the testator, were those relating to the validity of 
 -the will itself, and consequently, without such a general release, 
 interest still remained. Those cases, therefore, are entirely 
 different from one in which it is simply sought to collect a debt 
 due to the estate; and, as already observed, where the legatee 
 Tinder the will releases all his interest in or claim to such debt or 
 any income derivable therefrom, it is apparent that all interest 
 in the event of the litigation has ceased, and the witness has 
 become competent. The mere fact that such release swells the 
 interest of other legatees, does not in any way continue the 
 interest of the witness who has released the same. 
 
 The claim that there was no evidence to sustain the finding of 
 the court below to the effect that the testator advanced out of 
 his own money the sum invested for the use of his daughter in 
 the purchase of the Second Avenue Eailroad bonds, and that his 
 daughter received the same as the equivalent of her money de- 
 posited in the bank, is certainly not well taken. The evidence 
 of the widow was clearly to the effect that the daughter accepted 
 the bonds purchased by her husband in lieu of the money de- 
 posited in the bank ; and even if the books of the bank showed 
 that no money had been taken from the bank at the time, but 
 that the interest continued to accumulate until the death of the 
 testator, it was a substitution of the bonds for the money, by and 
 with the consent of the beneficiary. 
 
IS-i Abbott's Select Oases on Examining Witnesses. 
 
 Matter of Will of Wilson, 103 N. Y., 374. 
 
 The claim that it was error to permit the widow as the mother' 
 of the deceased daughter, to testify to conversations she claimed 
 to have had with her, not in the presence of the testator, in re- 
 gard to the property which is the subject of this action, does not 
 seem to have any foundation. It is claimed that the release 
 given and put in evidence was not applicable to the daughter, 
 and, therefore, did not make her mother a competent witness. 
 The question was not whether it was applicable to the daughter 
 or not. The point was that by the giving of the release the 
 widow had ceased to be interested in the event of the litigation, 
 and, therefore, she was just as competent a witness as though she 
 never had any interest whatever in this particular money under 
 the will of her husband. 
 
 {^Ruling another subjects is here omitted?^ 
 
 Judgment affirmed. 
 
 MATTEE OF WILL OF WILSON. 
 
 New York Court of Appeals, 1886. 
 [Reported in 103 N. Y., 374]. 
 
 One named in a will as executor is not disqualified from testifying as a 
 
 subscribing witness upon its probate. 
 The fact that such executor will be entitled to a legacy under the will, if 
 
 it be proved, will not prevent his testifying, where he has released 
 
 his legacy by sufficient release under seal. 
 The executor propounding a will for probate is not such a party to the 
 
 proceeding as to be, therefore, incompetent therein. 
 His right to commissions as executor is not an interest which renders 
 
 him incompetent. 
 The residuary legatee who will gain thereby, will take nothing in right 
 
 of the releasing legatee nor by, through or under any right of his. 
 
 Probate of a will, was contested on the grounds, that, at the 
 time it was claimed that John Wilson executed the will, he had 
 not sufficient testamentary capacity to make a valid disposition 
 of his property, and that he never executed the will, and that it 
 was a forgery. 
 
 At the trial, one Hart, who was executor and legatee under 
 the will, presented it for probate and offered himself as witness 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 185' 
 
 Matter of Will of Wilson, 103 N. Y., 374 
 
 to prove conversations and transactions between himself and the 
 deceased. 
 
 Tliis was objected to, as incompetent, under N. Y. Code Civ. 
 Pro., § 829, both because he was a party to the proceeding and 
 also by reason of his interest in the event. 
 
 The proponent, thereupon offered in evidence a release to the 
 administrator, of his interest as legatee under the will. 
 
 Objected to by contestant's counsel, as being entirely im- 
 proper and immaterial to the litigation. Objection overruled 
 and release received and read in evidence. 
 
 The Surrogate admitted the will to probate. 
 
 The Supreme Court at Oeneral Terrn affirmed the decree. 
 
 The Court of Appeals affirmed the judgment of the General 
 Term. 
 
 RuG-EE, Ch. J. \_after stating the faGts\ : We think the ques- 
 tions presented have been settled by authority against the con- 
 tention of the appellants. 
 
 The interest, which the witness might have taken as legatee 
 under the will, was effectually discharged by the release. It was 
 an instrument under seal importing a consideration, and its ef- 
 fect was to swell the residuum of the estate and increase the 
 amount to be distributed under the provisions of the will. The 
 residuary legatee took nothing thereby in the right of the releas- 
 ing legatee, and did, in no sense, succeed to the sum derived 
 from, through or under any right of such legatee. 
 
 Neither was the witness incompetent by reason of being a 
 party to the proceeding, or as being interested by way of com- 
 missions as executor. It was held in the case of Children's Aid 
 Society v. Loveridge (^70 N. Y., 387), that an executor was not 
 such a party to the proceedings to prove a will, as would pre- 
 clude him from testifying to personal transactions with the de- 
 ceased testator, within the spirit and meaning of section 399 of 
 the Code of Procedure. 
 
 Neither did his right to compensation as executor render him 
 incompetent by reason of interest to testify to such transactions. 
 This rule was approved and followed in Rugg v. Rugg (83 N. Y., 
 
186 Abbott's Select Cases on Examining "Witnesses. 
 
 Matter of Will of Wilson, 103 N. Y., 374. 
 
 592). The same question was decided in a similar manner in 
 Keeve v. Crosby (3 Eedf., 74). In McDonough v. Loughlin (20 
 Barb., 238), the proposed witness was an executor and trustee 
 under the will as well as a subscribing witness. The question 
 was whether the execution of the will could be proved by him, 
 without working a forfeiture of his appointment as executor, and 
 the devise to him as trustee, under 2 Kevised Statutes, page 65, 
 section 50, avoiding any beneficial devise, legacy, interest or 
 appointment to subscribing witnesses. It was held that it could, 
 inasmuch as the devise to him was in trust, he taking no bene- 
 ficial interest therein, and his appointment as executor was 
 fiduciary, and not for his own benefit. It was said that the com- 
 missions were given by statute as compensation for services, and 
 did not accrue to the executor as a gi'atuity by force of the will. 
 The claim and appointment were not beneficial within the mean- 
 ing of the statute. It is said in the same case that the doctrine 
 of the English Courts is to the same effect, citing 1 Mod., 107 ; 
 Lowe V. JoUiffe (1 W. B., 365) ; Holt v. Tyrrell (1 Barn. [K. B.], 
 12) ; Bettison v. Bromley (12 East., 250). 
 
 We find no cases in this state conflicting with the principles 
 laid down in those referred to. In Lane r. Lane (95 N. Y., 494), 
 the proposed witness was not only an executrix, but also a lega- 
 tee, and it was properly held, she not having released her claim 
 as legatee, that she was an interested party. 
 [A ruling as to costs is here omitted.'] 
 All the judges concurred in affirming the judgment. 
 
I. Competeneij. (15) Against Estates of Decedents, etc. (b). 187 
 
 Note on who is incompetent. 
 
 NOTES OF OTHEE EECENT CASES, ON WHO IS 
 
 DEEMED INCOMPETENT AGAINST 
 
 AN ESTATE, ETC. 
 
 L Party, or person under luhom a party claims : 
 
 Colorado: Cooper r. Wood, 37 Pacific Rep., 884 (in a suit against tlie 
 surviving partner and the representative of the deceased member of a 
 firm, the survivor is an incompetent witness to establish the partnership 
 with deceased). Georgia: Hooks v. Hays, 1891, 13 Southeast. Rep., 134 
 (a person not a party or interested may testify as to a transaction with 
 deceased! Illinois: Robnet v. Robnet, 43 111. App., 191 (in an action 
 against a decedent's estate for services the administratrix is not disquali- 
 fied from testifying in plaintiff's behalf). Indiana: Scott v. Harris, 1891, 
 27 Northeast. Rep. , 150 (in partition of decedent's lands upon the issue as 
 an advancement to a son, the widow, though a party to the action is not 
 interested). Kentucky: Beach i-. Cummins, 1893, 18 Southwest. Rep., 360 
 (in a suit by two beneficiaries against the executor of deceased trustee to 
 establish the trust, each may testily in favor of the other as to conversa- 
 tions with deceased). Michigan: Penny v. Groul, 1891, 49 Northwest. 
 Rep., 311 (in an action to recover bonds delivered by plaintiff's intestate 
 to defendant, defendant may testify that he held Ihem as an executor of 
 another ; the contest being between the two estates, defendant is not an 
 " opposite" party). Minnesota: Darwin v. Keigher, 45 Minn., 64; s. c. 
 47 Northwest. Rep., 814 (an agent of a party is a competent witness as to 
 transactions with deceased) ; Bowers v. Schuler, 1893, 55 Northwest. Rep., 
 817 (a party to an action means a party to the issue to which the testi- 
 mony relates and not a mere party to the record). Missouri: Baer'r. 
 Pfaff, 44 Mo. App., 85 (agent of a parly is a competent witness as to trans- 
 actions with deceased) ; Ford v. O'Donnell, 40 id., 51 (a person not a 
 party or interested is a competent witness as to a transaction with 
 deceased). New York: Porter v. Dunn, 131 N. Y., 814; s. c. 30 North- 
 west. Rep., 123 (in an action by a husband suing the representatives of 
 deceased for the loss of his wife's services, the wife is a competent wit- 
 ness) ; Kelsey v. Cooley, 58 Hun, 601 ; s. c. 11 N. Y. Supp., 745 (a party is 
 a competent witness when not examined in his own behalf) ; s. p. Davis 
 V. Gallagher, 55 Hun, 593; s. c. 9 N. Y. Supp., 11; Gennerich v. Ulrioh, 
 13 N. Y. Supp., 358 (in partition of the property of a deceased person, the 
 executor of a mortgagee set up a mortgage on the widow's interest. Held, 
 that the executor was a party interested and could not testify as to con- 
 versations with the deceased husband to show his knowledge of the mort- 
 g-age) ; Pand-jiris v. McQueen, 37 State Rep., 603 ; s. c. 13 N. Y. Supp., 705 
 (where separate claims of a physician and a nurse, presented against 
 decedent's estate, were referred to the same referee. Held, that the 
 nurse was competent to testify for the physician) ; Wilcox v. Corwin, 117 
 N. Y., 500; s. c. 28 Northeast. Rep., 165 (in an action on a joint note 
 
188 Abbott's Sf:lect Cases on Examining "Witnesses. 
 
 Note on who is incompetent. 
 
 against the surviving maker and executor of deceased maker, the survivor 
 cannot testify as to transaction with the deceased to show his liability) ; 
 Conner 1). N. Y. City, 19 N. Y. Supp., 85 (in action against a city to re- 
 cover the salary of plaintiff's intestate, as assistant engineer, the chief 
 engineer may testify as to intestate's discharge) ; Godine v. Kidd, 19 N. Y. 
 Supp., 835 (in an action to enforce an agreement to leave property to 
 an adopted child, the natural mother, who made the contract with 
 deceased for the child's benefit, may testify as to the transaction in hei* 
 child's behalf) ; Rice v. Daly, 20 id., 941 (in an action on a bond and mort- 
 gage plaintiff cannot testify in support of them as to a transaction with 
 the deceased mortgagee under whom defendant claims) ; Eighme v. 
 Taylor, 68 Hun, 573 ; s. c. 23 N. Y. Supp., 348 (a party though he acquired 
 his interest in the subject matter of the action after the conversation 
 with deceased which he seeks to prove is an incompetent witness as to 
 what was said) ; Matter of Gagan, 20 id., 426 (an executor is not a party 
 in interest to a proceeding for the probate of the will) ; Matter of Bedlaw, 
 67 Hun, 408 ; s. c. 22 N. Y. Supp., 290 (parties resisting a testamentary 
 disposition are not competent to show that the facts stated by the testa- 
 tor as the reason for the gift were untrue). North Carolina: Bunn v. 
 Todd, 107 N. C, 266 (a person not a party or interested is a competent wit- 
 ness as to transactions with a deceased person). Pennsylvania: Arrott, 
 etc., Mills Co. ti. Way Manuf'g. Co., 143 Pa. St., 485; s. c. 23 Atlantic 
 Rep., 699 (to show the terms of an oral lease from a deceased person in an 
 action for rent by his successor, as member of a limited company, defend- 
 ant cannot testify as to conversation with deceased); South Carolina: 
 Wood V. Wood, 25 S. C, 600 (in contest between two claimants under a 
 deceased obligee in a bond, the obligor, though a party, is not interested 
 and may testify as to a conversation .between himself and the deceased 
 obligee. United States: Snyder v. Fiedler, 139 TJ. S., 478 (when plaintiff, 
 an administratrix, resigns, pending 'the action, and an administrator de 
 bonis non is appointed and allowed to prosecute in her place ; she ceases 
 to be a party and becomes a competent witness) ; Kingsbui-y v. Buckner, 
 134 U. S., 650 (a husband, who joins his wife in a cross bill to enforce a 
 trust for her beneflt alone against decedent's estate is not an " adverse 
 party" under Bl. Pub. L., 1867, p. 183., § 2). West Virginia: Quarrier v, 
 Quarrier, 1892, 15 Southwest. Rep., 154 (one, who is apparently a first in- 
 dorser, cannot testify against the estate of deceased second indorser to 
 show that the latter became bound as joint guarantor or promisor with 
 the maker); Pattersons. Martin, 33 W. Va., 494; s. c. 10 Southwest. 
 Rep., 817 (party, though having no interest in the result is incompetent). 
 Wisconsin: Hanf v. Northwestern, etc. Ass'n., 1890, 43 Northwest. Rep., 
 315 (agent of party may testify in his behalf as to a transaction with a de- 
 ceased person) ; s. p. Gifford v. Thomas, 3 b., 1890, 19 Atlantic Rep., l088. 
 
 11. A person interested in the event : 
 
 Alabama: Espella v. Richard, 1892, 10 Southern Rep., 137 (disinterested 
 witness may testify in behalf of a party as to his transactions with de- 
 
I. Competency. (15) Against Estates of Decedents, etc. (b). 189 
 
 Note on wlio is incompetent. 
 
 ceased) ; Morris v. Birming-hani Nat. Bk., 1891, 9 id., 606 (in an action by 
 an indorsee against a deceased indorsee, the maker of the note is not in- 
 terested, and may testify that the note was made for the deceased's 
 accommodation.) Illinoia: Sherret r. Royal Clan, 37 111. App., 446 (in an 
 action against a benefit society, a member liable to assessment not 
 interested); Bevan i'. Atlanta Nat. Bk., 39 id., 577 (where decedent's 
 sig'nature to a note is in dispute, holders of the other notes purporting to 
 be signed by him are not disqualified as witnesses). First Nat. Blv. of 
 Morrison v. Bressler, 38 id., 499 (in trover by an administrator against a 
 bank for notes of decedent pledged by his son, the payee of the note, 
 though not a party, but who has paid interest to the son, cannot testify as to 
 decedent's declarations to show the son's authority). Bressler v. Baum, 43 
 id., 190 (in an administrator's action to recover the value of notes con- 
 verted, the maker and others adverselj^ interested to the administrator 
 should not be allowed to testily in behalf of defendant). Graves v. 
 Safford, 41 id., 659 (an heir's husband is a competent witness for adminis- 
 trator). Indiana: Sullivan v. Sullivan, Ind. App., 1893, 32 Northeast. 
 Eep., 1133 (in an action against an administrator or executor, an heir or 
 legatee may testify for defendant). loiva: Boot and Shoe Manuf g. Co. v. 
 Seevers, 1893. 53 Northwest. Rep., 555 (in action for debt, continued against 
 an administrator of one charged as a partner, a member of the firm, though 
 not brought in as a party cannot testifj' as to the partnership in behalf of ' 
 plaintiff). Minnesota: Bowers v. Schuler, 1893, 55 Northwest. Rep., 817 
 <the interest of witness to disqualify must be a direct and immediate 
 pecuniary interest adverse to the party against whom the testimony is 
 offered). Missouri: Leach v. McFadden, 1893, 19 Southwest. Rep., 947 (in 
 an action against an executor's sureties, the executor, though not a party, 
 cannot testify in defendant's behalf as to payment to plaintiff's deceased 
 agent). Fuchs v. Fuchs, 48 Mo. App., 18 (in action to specifically enforce 
 an agreement to will propei-ty, plaintiff's mother who has no interest in 
 the action is a competent witness). Neiv YorJc: Beakes v. Da Cunha, 126 
 N. Y., 293; s. c. 27 Northeast. Rep., 2ol»(in an action upon decedent's 
 guaranty, the person whose debt is guaranteed is not interested). Bowen 
 V. Sweeney, 63 Hun, 334; s. c. 32 Civ. Pro. R., 79; 17 N. Y. Supp., 753 (a 
 husband is not disqualified by reason of his right, as tenant by courtesy 
 initiate from testifying in support of a will in which his wife is devisee as 
 to acts of testatrix). Matter of Lasak, 131 N. Y.. 624 ; s. c. 30 Northeast. 
 Rep., 113 (where one as legatee would have the income on one-third of the 
 estate for lite, but if the will was overthrown would as heir be entitled 
 absolutely to one-fifth of it, held, that she was interested in the overthrow- 
 ing of the will). Hoffman v. Hoffman, 18 N. Y. Supp., 387 (in ejectment 
 where defendant claims under oral agreement with plaintiff's deceased 
 vendor, defendant's wife cannot testify as to transaction between deceased 
 and defendant). Whitman v. Faley, 125 N. Y., 651; s c. 36 Northeast. 
 Eep., -735 (in foreclosure the husband of a defendant who acted as wife's 
 agent, is not interested). Fogal v. Page, 37 State Rep., 280 ; s. c. 13 N. Y., 
 Supp., 656 (a husband is not interested in action of wife to recover money 
 
190 Abbott's Select C-ases on Examining Witnesses. 
 
 Note on who is incompetent. 
 
 paid upon pui-chase of real estate). Luetchford v. Lord, 133 N. Y., 465 ; s. 
 c, 30 Nortlieast. Rep., 859 (in foreclosure of a mortgage made by husband 
 and wife on the wife's land, the husband is not a competent witness 
 against deceased moi'tgagee to show that the mortgage was given for his 
 gambling debt, as it would release him from personal liability). Eisenlord 
 V. Clum, 136 N. Y., 552 ; s. c. 27 Northeast. Rep., 1034 (in ejectment by an 
 heir, his mother is a competent witness on the question of his legitimacy 
 to prove her marriage with deceased, since the judgment therein would 
 not be admissible in any action for dower). Connally v. O'Conner, 117 
 N. Y., 9 ; s. c. 23 Northeast. Rep,, 753 (the mother of a bastard is not 
 interested in a suit ag-ainst the administratrix of the putative father on 
 his alleged contract to support the child). Korminsky v. Korminsky, 2 
 Misc., 138 ; s. c. 21 N. Y. Supp., 611 (in an action to enforce an agreement 
 by plaintiff's deceased father to will them certain lands, plaintiff's sisters 
 who have deeded over their interest in the lands without consideration 
 may testify as to conversations with their deceased father in relation to 
 the agreement). Richards v. Crocker, 20 id., 954 (in an action to recover 
 land, neither defendant, nor his brother to whom the land would descend 
 if plaintiffs deed from their deceased father proves invalid, can testify as 
 to their father's mental and physical condition when he made the deed 
 to plaintiff). Payne v. Kerr, 21 id., 800 (an attorney at law may testify as 
 to an oral agreement which he made with a deceased person in behalf of 
 his client). Pennsylvania: Keener v. Zartman, 144 Pa. St., 179; s. c. 32 
 Atlantic Rep., 889 (in an action for debt against an administrator, an in- 
 testate's son is interested and cannot testify for defendant). Gerz v. 
 Weber, 151 Pa. St., 396 ; s. c. 25 Atlantic Rep., 83 (in an action against an 
 executor a legatee may testify that the claim was paid in testator's life- 
 time). Dickson v. McGrau, 151 Pa. St. , 98 ; s. c. 24 Atlantic Rep. , 1043 
 (where an execution creditor sought to show that a former sale of the 
 property through which defendant claimed was made in fraud of creditors, 
 the original owners have no adverse interest which prevents them from 
 testifying as to a transaction wilh the first purchaser prior to his death). 
 Matter of Taylor's Estate, 154 Pa. St., 183; s. c. 25 Atlantic Rep., 1061 
 (where a decedent drew a check to a person in order that he might make a 
 payment to another to whom decedent wished to give a sum of money, 
 the payee of the check is not beneficially interested therein and may testify 
 as to decedent's declarations when he drew it). Fowler v. Smith, 153 Pa. 
 St., 639; s. c. 35 Atlantic Rep., 744 (in an action by an executrix, the 
 bi-other of defendant is a competent witness in his behalf in absence of 
 any interest in suit). Vermont: Manley v. Staples, 1893, 26 Atlantic 
 Rep., 630 (one who has made a contract with another for the latter's sup- 
 port in consideration of property conveyed is a competent witness upon 
 the contest of the probate of the will of the person to be supported which 
 recites that it confirms and approves the contract, and bequeaths to the 
 witness testator's personal property ; as the establishment of the will if it 
 can have any effect on the contract, can only do so incidentally and 
 collaterally). Smith ■;;. Pierce, 1893 (the person who wrote letters for 
 
I. CompeteJiey. (15) Against Estates of Decedents, etc. (b). 191 
 
 Note on who is incompetent. 
 
 another, since deceased, in which the latter promised the plaintiff to leave 
 him all his property in consideration ot support, is a competent witness 
 to show that deceased authorized the letters to be written and sent). 
 
 III. Oilier recent cases : 
 
 Removal of disqualification bj' i-elease of interest. Moore v. Schofield, 
 96 Cal., 486; s. c. 31 Pacific Rep., 533 (in an action agaiost co-contractors, 
 where one dies pending the action, and the action is renewed against his 
 administrator, the .surviving' contractor, though a judgment has been ren- 
 dered against him by default, is not a competent witness for the plaintiff) ; 
 La Prad v. Sherwood, ilich., 1890, 44 Northwest. Rep., 943 (in suit to set 
 aside a mortgage for agent's fraud, agent cannot be dismissed from the 
 case by tlie filing .of a disclaimer so as to enable him to testify as to a trans- 
 action with deceased) ; Fink v. Hey, 43 Mo. App., 395 (in an action by an 
 unincorporated society, upon a bond of a deceased person, members of the 
 society at the time of its execution, but not at the time of ti'ial, are com- 
 petent to testify as to the bond's execution by deceased, otherwise as to 
 those who continued to be members) ; Ehmann v. Scheuerman, N. Y. 14, 
 Daly, 411 (in an action against a surety the principal in whose favor the 
 statute of limitations has run, is not interested in the event) ; O'Brien v. 
 "VVeiler, 68 Hun, 64 ; s. c. 23 N. Y. Supp., 637 (in an action to recover a debt 
 due the estate of testator, a legatee who relinquishes her interest in the 
 fvind in controversy withovit releasing her interest in the rest of the estate 
 becomes a competent witness for plaintiff) ; Keener v. Zartmann, 144 Pa. 
 St., 179 ; s. c. 23 Atlantic Rep., 889 (where a claim is made against de- 
 ceased father's estate, a son who has received real property from the 
 father which may be liable for his debts, is disqualified, though the son has 
 assigned his interest in his father's estate) ; Hutchinson v. Brown, 19 D. 
 C, 136 (in an action by an executrix on a joint or joint and several prom- 
 ise, one defendant cannot, by confessing judgment without plaintiff's con- 
 sent, make himself competent to testify on behalf of his co-defendant) ; 
 Turnstall v. Withers, Va., 1890, 11 Southeast. Rep., 565 (in a suit to enforce 
 vendor's lien, vendee is incompetent, though the claim against him was 
 barred by limitation, and his interest in the suit was only as to costs). 
 
 IV. Objection, how raised : 
 
 McHugh V. O'Dowd, Mich., 1891, 49 Northwest. Rep., 316 (material evi- 
 dence by a claimant against a decedent's estate, which was equally within 
 decedent's knowledge, should not be received, though the' administrator 
 does not object); Ferine v. Grand Lodge, etc., Minn., 1893, 50 Northwest. 
 Rep., 1032 (the burden is on the party objecting to show witness' interest, 
 and if it is not shown sufficiently he may testify) ; Reynolds v. Reynolds, 
 45 Mo. App., 633 (where surviving party to a contract is offered as a wit- 
 ness concerning it, he must bring himself within some exception to the 
 statutory rule, and offer to contradict assertions he is said to have made is 
 too general) ; Norris v. Stewart, 105 N. C, 455 ; s. c. 10 Soiithea.st. Rep., 
 913 (a general objection that the witness is interested is not sufficient). 
 
192 Abbott's Select Casks on Examining Witnesses. 
 Peters v. Peters, 3 Delehanty, 264. 
 
 PETEES V. PETEKS. 
 
 JV^ew York Court of Common Pleas, 1893. 
 
 [Reported in 3 Delehanty, 264.] 
 
 A receiptor to a public officer for money found on the person of a lunatic, 
 under a promise to apply it to the lunatic's use, is a person deriving 
 his title to the fund " from, through or under" the lunatic, withiathe 
 meaning of N. Y. Code Civ. Pro., § 839, so as to render testimony of an 
 interested witness incompetent. 
 
 If insanity is alleged, and is not contested on the trial, evidence of its 
 actual continuance at the time of the trial is not essential to justify 
 exclusion. 
 
 Plaintiffs sued defendant to recover certain money delivered 
 to defendant by the commissioners of charities, upon his alleged 
 express agreement to keep the money for the benefit of his 
 mother, Mrs. Peters, in whose possession the money was found, 
 when she was committed to the City Asylum for the Insane, as 
 of unsound mind. 
 
 At the trial, plaintiffs, who were respectively the husband 
 and two others of the children of Mrs. Peters, adduced evidence 
 showing that all the children, except defendant, had originally 
 deposited money with Mrs. Peters for her and their benefit. 
 
 Plaintiffs were allowed to testify against objection to personal 
 transactions with their mother. 
 
 Judgment was entered for plaintiffs, upon a verdict of a jury. 
 
 The Court of Common Pleas at General Term reversed the 
 Judgment. 
 
 Daly, Ch. J. [after stating the facts said]: He [defendant] 
 received the fund from the bailees of his mother, and can defend 
 in her right. As she was insane when committed to Blackwell's 
 Island, she could not make a valid agreement of bailment, but 
 the commissioners of charities and corrections, as public officers, 
 coming into possession of the fund as custodians of her person 
 and of the property found upon it, have all the obligations of 
 bailees, and the defendant, Stephen -stands in a position some- 
 what resembling that of a receiptor, and is entitled to the same 
 
I. Comjpetency. (15) Against Estates of Decedents, etc. (d). 193 
 
 Peters v. Peters, 3 Delehanty, 264. 
 
 defenses against claimants of the fund as are available to the 
 public officers from whom he received it. (Edwards' Bailments, 
 title " Eeceiptors.") 
 
 His title to the money is derived by, or through or from his 
 mother, an insane person, and the evidence of the plaintifEs as to 
 personal transactions with her should not have been received 
 against him. (Code, § 829.) For this error alone the judgment 
 would have to be reversed. 
 
 It is urged by the plaintiffs that there was no proof that the 
 mother was insane at time of the trial. The complaint expressly 
 alleged that she was committed to the City Asylum for the Insane 
 on Blackwell's Island, being of unsound mind and so far deprived 
 of her reason and understanding as to be altogether unfit and un- 
 able to govern herself or to manage her affairs and that at that 
 time the money in qiiestion was found in her possession. A 
 derangement of mind proved or admitted to exist at any particular 
 period is presumed to continue until disproved, unless the derange- 
 ment was accidental, being caused with the violence of a disease. 
 (1 Greenl. Ev., 42.) But there was no question of her insanity at 
 the time of the trial. It seemed to be conceded on all sides, and 
 the only apparent reason why the evidence of transactions with 
 her was admitted against tlie defendant, was that he did not have 
 any right or title to the money and therefore could not derive 
 his interest or title from or through her. 
 
 It would seem that the proper course for plaintiffs to pursue 
 would be to have a new trustee of the fund appointed, in place of 
 the mother, who has become incapacitated from acting ; bu.t, with- 
 out discussing this question further, it is enough to say that upon 
 the proofs, and for the errors appearing in the record, this judg- 
 ment cannot possibly be sustained. 
 
 Bischoff and Pryor, JJ., concurred. 
 
 Judgment reversed, and a new trial ordered, with costs to 
 appellant to abide the event. 
 
19i Abbott's Select Cases on Examining Witnesses. 
 
 Pope V. Allen, 90 N. Y.. 29 
 
 POPE V. ALLEN. 
 
 New York Court of Ajyjoeals, 1882. 
 
 [Reported in 90 N. Y., 298.] 
 
 The prohibition of N. Y. Code Civ. Pro., g 829, is not limited to the par- 
 ticular decedent from whom the adver.se party directly took his title, 
 but extends to any decedent from whom the adverse party took his 
 title, though through one or more mesne conveyances. 
 
 Ejectment in whicli plaintiff souglit to recover as tlie grantee 
 of one Nathaniel B. Pope. He proved his deed from said Pope 
 to himself and also that at the time he took such deed there was 
 a deed on record to said Pope, from one Rogers who was the 
 common source of title. 
 
 Defendant claime,d that he had all that time been in posses- 
 sion. That said Pope was his agent to purchase the premises 
 for him from Sogers, and did so with defendant's money ; and 
 fraudulently took the deed to himself instead of to defendant, 
 so that a trust resulted for defendant. 
 
 Upon the trial, Nathaniel B. Pope and Jonathan Eogers both 
 having died, defendant was called as a witness in his own behalf 
 and asked : " Did you at any time make a bargain with Rogers 
 in regard to the purchase of the twenty-five acres of him 1 " 
 
 Objected to as incompetent, irrelevant and immaterial under 
 IST. Y. Code Civ. Pro., § 829, Rogers being dead ; objection sus- 
 tained and exception taken. Judgment for plaintiff. 
 
 The Supreme Court at General Term affirmed the judgment 
 without opinion. 
 
 The Court of Appeals affirmed the judgment. 
 
 Finch, J. {^after stating facts]: Under the language of the 
 old code there was authority for this doctrine. (§ 399 ; Prouty- 
 V. Eaton, 41 Barb., 409 ; Cary v. White, 59 N. Y., 336.) We 
 need not consider these cases, since the language upon which 
 they were founded had been materially changed in the later 
 revision. The former prohibition excluded the party's evidence 
 as to " any personal transaction or communication between such 
 witness and a person at the time of such examination deceased. 
 
I. Comjjetency. (15) Against Estates of Decedents, etc. (d). 195 
 Pope V. Allen, 90 N. Y., 398. 
 
 * * ^ against the executor, administrator, heir-at-law, next 
 of Ivin, assignee, legatee, devisee, or survivor of stieh deceased 
 person." It was possible to construe this language as limiting 
 the prohibition to the particular deceased person from whom 
 directly the adverse party took his title. Whether even that 
 construction was sound might not be beyond debate, but the 
 essential change in the language, at all events, requires us to 
 adopt a different construction. 
 
 The language now is " against the executor, administrator or 
 survivor of a deceased person, '^ * '•* or a person deriving 
 his title or interest from, through or under a deceased person, 
 
 * * * concerning a personal transaction between the witness 
 and the deceased person " (§ 829). The specific modes of suc- 
 cession named in detail in the old code are represented in the 
 revision by a general and broader phrase. " Tlie deceased 
 person," referred to in the latter, is one " from " whom, or 
 " through " whom, the adverse party derives his title, or 
 ■' binder " whom he holds. The plaintiff here derived his title 
 " from " Jonathan Kogers, " through " JST. B. Pope, and held 
 " under " the former as well as the latter. The language covers 
 the case, and we can see no just reason which excludes personal 
 transactions with JST. B. Pope, which does not also apply to 
 Eogers, " under " whom both parties claimed title. 
 
 Note.— la Gary v. "White, 59 N. Y., 336 (foreclosure), defendant Jane 
 White claimed under unrecorded deeds dated prior to the mortgage. 
 One Foster was the attorney employed by the deceased grantor and 
 moi-tgagor to draw the mortgage. Upon the trial the court refused to 
 allow the mortgagee plaintiff to testify to a conversation between the 
 mortgagor and Foster.— Heid, not error. (1.) A third person can testify 
 to what he heard pass between attorney and client. (3.) A general objec- 
 tion is not enough. Johnson, J. [after stating facts, says] : The proposed 
 evidence was objected to by the defendant on the ground that under sec- 
 tion 399 of the Code plaintiff could not be permitted to make the proof. 
 Taking the objection in the form most favorable to the objecting party, it 
 may be said to specify two grounds of objection, the one that Foster was 
 the attorney who drew the papers ; the other, that the plaintiff was 
 a participant in the conversation. In respect to the first ground, its 
 materiality is not perceived. If Foster be regarded as counsel for White 
 and the conversation as relating to a consultation between them, as to 
 which Foster could not be compelled to testify, there is no rule of 
 law forbidding the proof of what passes between attorney or counsel and 
 
396 Abbott's Select Cases on Examining Witnesses. 
 
 Pope V. Allen, 90 N. Y., 398. 
 
 client, if it can be proved without violating the immunity from examina- 
 tion which attaches to the attorney or counsel. A third person may prove, 
 if he can, what a party says to his counsel, as well as his declarations to 
 any other person, when they are material. Nor does section 399 of the 
 Code alter the matter. That relates only to a personal transaction or 
 communication between the witness and the deceased. Foster being 
 White's counsel does not transform what is said between them into a per- 
 sonal transaction or communication between White and the plaintiff. Nor 
 would the fact that the plaintiff participated in the conversation alter the 
 matter, so long as what is proposed to be proved is limited to what was 
 neither personal transaction nor communication between the witness and 
 deceased. The fact that another person is competent to speak goes far to 
 take the case out of the substantial reason of the statute, and it does not 
 fall within its letter. It is neither personal transaction ncr communica- 
 tion between the witness and the party deceased, and these alone cannot 
 be proved by the testimony of a party. Under the existing laws, the rule 
 ■is that a party is competent as a witness. His exclusion is to be made out 
 by the party alleging his incompetency as to any particular matter. 
 Simmons v. Sisson (26 N. Y., 277) and Lobdell v. Lobdell (6 id., 333, 334), 
 sustain the views above expressed. It must, we think, be regarded as set- 
 tled, under the present provision of the Code, that the three hundred and 
 ninety-ninth section does not preclude a party from testifying to the state- 
 ments of a person deceased, made to a third person in the hearing of the 
 witness.* 
 
 It is suggested that the declarations of White were not, as mere decla- 
 rations, admissible in evidence against the defendant Jane White. To this 
 we are compelled to answer that neither the objection nor the exclusion of 
 the proposed evidence was put upon that ground, but distinctly upon the 
 force of the three hundred and ninety-ninth section. If that objection had 
 been made, as it was possible by evidence to have supplied the defect and 
 .shown that, under the real circumstances of the case, the title of the 
 defendant, Jane White, was properly to be affected by the facts, in proof of 
 which the declarations were offered, we must assume that such evidence 
 would liave been produced. 
 
 Note. — In Conway v. Moulton, 6 Hun, 650, the defendants had hired 
 ■tools of the plaintiff' s father, supposing them to be his and in ignorance of 
 their prior sale by him to the plaintiff. — Held, in an action to recover their 
 value', and in which one of the defendants died before trial, that the father 
 was precluded by Code Pro., § 399, from testifying that he made demand 
 ■for the tools upon tlie deceased defendant. 
 
 * On this point later cases have made the rale much more stringent. See p. a08 of this vol. 
 
I. Competency. (15) Against Estates of Decedents, etc. (d). 19T 
 
 Note on Who May Object. 
 
 NOTE ON EECENT CASES.— WHO MAY OBJECT AS 
 
 KEPKESENTATIYE OF DECEASED OK AS 
 
 ONE CLAIMING UNDEE HIM. 
 
 Alabama : ■Warten v. Strone, 82 Ala., 311 ; 8 Southern Rep., 231 (imder 
 Code Ala., 1876, § 3058, a party cannot testify against principal as to trans- 
 actions with his deceased agent); s. p. Downing v. Woodstock Iron Co., Ala., 
 1891, 9 SouthernRep., 117. California: Shawt). Forbes, 82 Cal., 577 ; s. c. 28. 
 Pacific Rep., 198 (in action for services jointly against two defendants, one 
 of whom has since died, though plaintiff's testimony as to value of his ser- 
 vices is incompetent against deceased's executors, it should be admitted 
 against the surviving defendant, if a several judgment may be entered 
 against him). Georgia : Johnson v. Champion, 88 Ga., 527 ; 15 Southeast. 
 Rep., 15 (a wife of one dying without descendants, who is authorized to 
 take possession of deceased's estate without letters, is a personal represen- 
 tative of decedent, and a creditor of deceased cannot testify against her as 
 to persona] transactions with deceased) ; Mayfield v. Savannah, etc. R. R. 
 Co., Ga., 1891, 13 Southeast. Rep., 459 (under Ga. Act, Oct. 29, 1889, in suit 
 against a corporation, the opposite partj cannot testify as to a transaction 
 had solely with a deceased officer or agent of the corporation) ; but other- 
 wise where other surviving- officers were present, Lyttle v. Chicag-o, 
 etc. Ry. Co., 84 Mich., 289, 47 Northwest. Rep., 571 (under a similar statute, 
 Mich. How. Stat, § 7545). Illinois : People v. Borders, 31 111. App., 426, 
 (in an action against a deceased guardian's sureties, the ward may testify 
 that he had not been paid by deceased) ; Esterly Harvesting Co. v. Hill, 
 36 111. App., 99 (in an action against an administrator personally defendant 
 cannot raise the objection, the estate leaving no interest) ; Johnson v. 
 Johnson, 111., 1891, 27 Northeast. Rep., 930 (in an action against a sole heir 
 to establish verbal agreement, by which decedent promised to hold certain 
 lands for plaintiff, plaintiff is an incompetent witness as to the agreement). 
 Indiana : Larch v. Goodacre, 126 Ind., 224 (in an action hy decedent's 
 creditors charging his widow with conversion of his estate, the widow is. 
 "heir " within Ind. R. S., 1881, § 499, though complaint alleges her to be 
 administratrix de son tort, and defendant cannot testify as to transaction 
 had with decedent); Hess v. Lowery, 122 Ind., 335; s. c. 23 Northeast. 
 Rep., 156 (in an action against two physicians as partners lor malpractice, 
 one having died pending the suit, plaintiff can testify as to declarations. 
 made by the deceased partner while performing the operation) ; Reddick 
 V. Keesling, 129 Ind., 138 ; s. c. 28 Northeast. Rep., 316 (where daughter 
 sues father to recover money left with him in trust for plaintiff by her de- 
 ceased mother, the father cannot testify in his own behalf as to the trust 
 agreement). Iowa : French v. French, Iowa, 1892, 51 Northwest. Rep., 
 145 (widow who has taken unauthorized possession of decedent's estate- 
 may take advantage of the rule as one of the next of kin) ; Bellows v^ 
 
198 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Who May Object. 
 
 Liitchfleld, Iowa, 1891, 48 Northwest. Rep., 1063 (vendee is a competent wit- 
 ness as to transactions with vendor's deceased agent) ; s. p. Reynolds v. 
 Iowa, etc. Insurance Co., 80 la., 563 ; s. c. 43 Northwest. Rep., 659). Ken- 
 tucky : Alexander v. Alford, 89 Ky., 105; s. c. 30 Southwest. Rep., 164, 
 (in an action by surety of a removed guardian against the surviving mem- 
 bers of a partnership, to recover a loan of estate's money made by the 
 guardian, notwithstaading his removal, the guardian cannot testify that 
 the deceased partner linew the money belonged to the ward) ; Hurry v. 
 Kline, 1893, 20 Southwest. Rep., 277 (though an indorsee has lost his ri*ht 
 of recourse again.stthe estate of the deceased payee, the maker qlthe note 
 cannot testify as to what took place between him and the payee). Mis- 
 souri : Aultman v. Adams, 35 Mo. App., 503 (under Mo. Stat, in an action 
 by a corporation defendant cannot testify as to what took place between 
 him and plaintiff's deceased agent). Nevada : Gage v. Phillips, Nev., 
 1891, 36 Pacific Rep., 60 (in foreclosure by a surviving partner defendant 
 ■cannot testify that the deceased partner by verbal agreement accepted 
 property in satisfaction of the mortgage). New Hampshire : Clark v. 
 Clough, 65 N. H., 43 ; s. c. 33 Atlantic Rep., 536 (executor or administrator 
 includes all persons holding decedent's estate in an ofBcial representative 
 capacity). New Jersey : Joss v. Molin, 1893, 26 Southern Rep., 987 (de- 
 visees are representatives of deceased. New York ; Curnan v. Delaware, 
 etc. R. R. Co., 17 N. Y. Supp., 714 (in an action against a corporation upon 
 -a contract to build, plaintiff may testify as to conversations with acleceased 
 person, who supplied defendant with money) ; Mason v. Pcndergast, 130 
 N. Y., 536; s. c. 24 Northeast. Rep., 806 (decedent gave money to C. for 
 plaintiff ; C wrongfully gave it to the defendant ; held, that C. might tes- 
 tify in behalf of plaintiff as to transactions with deceased, since defendant 
 did not derive title from him, but that defendant was disqualified from giv- 
 ing like testimony as plaintiff claimed under deceased) ; Miller v. Davis, 
 14 N, Y. Supp., 725 (in action by administrator to set aside decedent's deed 
 as in fraud of creditors, defendants may testify as to conversations with 
 decedent, since the administrator represents the creditors and not the 
 estate); Matter of Dunham, 131 JS. Y., 575; s. c. 34 Northeast. Rep., 933, 
 <one who is both heir and legatee cannot testify as to testator's mental un- 
 soundness against one who is a legatee for a relatively larger amount). 
 North Carolina . Roberts v. Richmond, etc. R. R. Co., 109 N. C, 670 ; s. c. 
 14 Southeast. Rep., 106 (plaintiff may testify as to contract with defend- 
 ant's deceased agent). Pennsylvania: Walton v. Hinnan, Pa., 1892, 33 
 Atlantic Rep., 342 (cestei que trust cannot testify against one claiming 
 under deceased trustee) ; Jackson v. Lewis, s. c. 10 Southeast. Rep., 1074, 
 <in an action by deceased's creditors to set aside a fraudulent conveyance, 
 the grantee may testify as to conversations with deceased) ; Young v. 
 Searft, 153 Pa. St., 352 (a wife may testify that her deceased husband 
 purchased property in his own name with her money in ejectment by a 
 purchaser at an execution sale of the property as the husband's). Texas: 
 Mitchell V. Mitchell, Tex., 1891, 15 Southwest. Rep., 705 (the heir is not a 
 "legal representative" wiihin Tex. E. S., Art. 2248); Curtis v. Wilson, 
 
1. Competency. (15) Against Estates of Decedents, etc. (d). 199 
 
 Note on 'Who May Object. 
 
 Tex. Civ. App., 1893, 21 Southwest. Bep., 787 (a legatee is not). Washing- 
 ion : Smith v. Taylor, 3 Wash. St., 423 ; s. c. 27 Pacific Rep., 812 (in eject- 
 ment by one claiming to be the equitable owner of land in name of de- 
 ceased, defendant, a tenant of deceased, cannot testify as to his agreement 
 with deceased). Wisco7isin : Nau i-. Brunette, Wis., 1891, 48 Northwest. 
 Rep., 649 (in ejectment by persons claiming under deceased mortgagee, 
 the mortg-agor cannot testify as to payment to the mortgagee before the 
 latter assig-ned the mortg'ag-e). 
 
200 Abbott's Select Cases on Examining Witnesses. 
 Note oa Release to terminate Interest. 
 
 NOTE ON KELEASE OF INTEEEST AT COMMON 
 
 LAW. 
 
 The cases above given show the effect of a release hy a witness having- 
 an interest. 
 
 At common law a release by the party to a vvritness to terminate his lia- 
 bility was good. 
 
 In a Mechanic's Lien case, where, under the statute, the mechanic sued 
 the owner to recover, on the theory that there was a fund in the owner's- 
 hands due to the contractor, which plaintiff had a right under the statute 
 to reach ; held, that the contractor having full notice of the suit, and there- 
 fore liable to be bound by the judgment, was incompetent by reason of in- 
 terest. (Hoyt V. Miner, 7 Hill, 525 ; affg. 4 id., 193.) 
 
 But further held, that the plaintiil could release the contractor at the 
 trial, after objection made that he was interested, and thus render him 
 competent ; but the judges were not agreed whether such release would 
 not necessarily bar the plaintiflf's action if it were pleaded by the defend- 
 ant because (Cowen, J.) " plaintiff's demand against the defendant was no 
 more than a collateral security for his demand against the contractor," 
 and the latter being the principal, his release might release the one in the 
 position of surety. 
 
 The release in terms contained a clause which declai-ed it to be under- 
 stood that the release should not operate to prejudice the plaintiff's claim 
 in the suit. 
 
 LoTT, Senator, delivering the opinion of the Court of Errors upon affirm- 
 ance of the judgment, against an exception to the admission of the con- 
 tractor's testimony, said : "The testimony of D. Hoyt (the contractor) 
 was in my opinion properly admitted. After the release, he certainly was 
 not interested in favor of the plaintiflf. He was discharged from all lia- 
 bility for tlie amount, and a recovery by the plaintiff would be of no ad- 
 vantage to him. The learned judge who delivered the opinion of the 
 Supreme Court, however, appears to consider that he was still incompe- 
 tent, on the ground that ' the effect of his failure to show a fund adequate 
 to the payment of his demand, would be to bar the witness pro tanto in 
 any suit he might afterwards bring in his own name for the same funds.' 
 If that be conceded, it is equally true that, if a fund adequate to the pay- 
 ment is shown, he would then be barred from the recovery of it. 
 
 "Itis contended, however, that the effect of the release to D. Hoyt was 
 to discharge all claims on the defendant. I think not. The plaintiff, on 
 the non-payment of the amount due him, as adjusted and ascertained, had 
 a right to the fund, which could be enforced by action against the owner. 
 Besides, the release in terras reserves his right to recover the claim against 
 Miner, and declares that it shall not prejudice the claim, but only release 
 the witness from all personal liability. It is manifest, therefore, that it 
 was not intended to operate as a release of the defendant, and it will be 
 
I. Competency. (15) Against Estates of Decedents, etc. (d). 201 
 
 Note on Release to terminate Interest. 
 
 •construed according- to the intent of the parties." (Citing Stewart v. Eden, 
 13 Caines' Rep., 131 ; Lyman v. Clark, 9 Mass. Rep., 235.) 
 
 S. p. Starkweather v. Mathews, 2 Hill, 131, where it was held that in an 
 action on a promissorj' note by the holder against an endorser, the maker 
 •of the note may be rendered a competent witness for the defendant en- 
 dorser, upon the latter-'s releasing- him from liability over for the costs and 
 charges of the suit. The maker's interest then is balanced. 
 
 So, in Seymour v. Strong, 4 Hill, 255, involving similar facts, it was also 
 held that there must be more than a constructive delivery of the release, 
 but that the rule is satisfied if it appear that the witness, examined on a 
 •commission, knew of the release at the time of giving his testimony. 
 
 In Tobey v. Leonards, 2 "Wall. (U. S.), 423, in delivering the opinion of 
 the court, Wayne, J., says, that it is lawful for a person to sell out all his 
 interest in property about to be the subject of a suit, to his son, to enable 
 himself to be a witness upon the trial of the cause (citing Babcock v. Wy- 
 man, 19 How. [U. S.], 289), even though the sale was made to a party who 
 uhad no previous interest. 
 
 But such a witness would be incompetent under the N. Y. statute which 
 ■extends its prohibition to a person from, through or under whom the in- 
 -.terested party -or person claims. 
 
202 Abbott's Select Cases on Examining AVitnksses. 
 Holcomb V. Holcomb, 95 N. Y., 316. 
 
 HOLCOMB V. HOLCOMB. 
 
 Wew York Court of Appeals, 1884- 
 [Reported in 95 N. Y., 816.] 
 
 In an action by an administrator to set aside an assignment by his intes- 
 tate on the ground of want of mental capacity and undue influence,. 
 — Held, that the next of kin were disqualified from testifying on be- 
 half of the administrator to personal transactions with intestate. 
 
 "Transactions" and "communications," in the statute, embrace every 
 variety of affairs which can form the subject of negotiations, inter- 
 views, or actions, between two persons; and include every method by 
 which one person can derive impressions or information from the 
 conduct, condition or language of another. 
 
 Although it must appear that the interview or transaction sought to be 
 excluded was a personal one, it need not have been private or confined 
 to the witness and deceased. If they participated, it does not change- 
 its character because others were present. 
 
 The policy of the statute excludes the evidence of an interested witness 
 concerning : 1st, Any transaction between himself and a deceased per- 
 son, or in which the witness in any manner participated ; 2d, All 
 communications in the presence or hearing of the witness, if he in any 
 way was a party thereto, or communications to either one of two or 
 more persons, if all were interested. 
 
 Hence, an interested witness cannot testify to the demeanor, the physical 
 weakness and the appearance of feebleness of intelligence of the de- 
 ceased, even thoug-h when these were observed he said nothing to the- 
 witness. 
 
 Action to set aside an assignment, by Homer Holcomb, plaint- 
 iff's intestate, of a bond and mortgage, on the ground that he 
 was of unsound mind and subjected to undue influence at the time 
 he made the assignment. 
 
 On the trial many members of deceased's family, entitled to 
 share in the fund which a recovery by plaintiff would create or 
 increase were called by plaintiff and testiiied to deceased's trans- 
 actions and conversations. Several instances appear at length in 
 the opinion. 
 
 Griswold and Crowell, for plaintiff. 
 King and HallocJc, for defendant. 
 
 The Supreme Court at Special Term gave judgment for 
 plaintiff. 
 
 The General Term affirmed the judgment. 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 203 
 Holcomb V. Holcomb, 95 N. Y„ 316. 
 
 BoAKDMAiT, J. \i'ef erring to exception to the admission of the 
 evidence, said]: Nearly all the exceptions may be grouped 
 under this head. 
 
 Were the next of kin of Homer Holcomb, the deceased, com- 
 petent witnesses to prove the declarations of the deceased in 
 their presence but not to them, and the acts and condition of 
 their father as seen by them ? 
 
 This class of exceptions was disposed of at the former appeal 
 (20 Hnn, 156), where it was held that such testimony did not 
 constitute personal transactions between the witness and the 
 deceased such as are prohibited by N. Y. Code Civ. Fro., §' 829. 
 The authorities cited, abundantly sustain the position. (Sim- 
 mons V. Sisson, 26 N. Y., 264, 27Y ; Cary v. White, 59 jST. Y., 
 336 ; Franklin v. Pinckney, 18 Abb., 186). 
 
 The Court of Appeals reversed the judgment. 
 
 Da^'forth, J. \pn the point in question, said]: There was 
 also error in disregarding the prohibition of the statute (Code, 
 § 829), as to evidence of personal transactions and communica- 
 tions between certain persons and the deceased. (1.) They were 
 interested in the event of the action, because a recovery would 
 create or increase a fund, in the distribution of which they would 
 share. The defendant derived his title by assignment from the 
 deceased person, and that title is the particular claim sought to 
 be affected by their testimony. It should be borne in mind that 
 its validity depends upon the mental condition of the assignor 
 when it was executed. The words of exclusion are as compre- 
 hensive as language can express : Transactions and communica- 
 tions embrace every variety of affairs which can form the subject 
 of negotiation, interviews, or actions between two persons, and 
 include every method by which one person can derive impres- 
 sions or information from the conduct, condition, or language of 
 another. The statute is a beneficial one and ought not to be 
 limited or narrowed by construction. Although it must appear 
 that the interview or transaction sought to be excluded was a 
 personal one, it need not have been private or confined to the 
 witness and deceased. If they participated, it does not change 
 its character because others were present. A contrary rule 
 
204 Abbott's Select Cases on Examining Witnesses. 
 Holcomb V. Holoomb, 95 N. Y., 816. 
 
 would defeat the reasonable intent of the statute that a surviv- 
 ing party should be excluded, as one interested, from maintaining 
 by his testimony an issue which in any degree involved a com- 
 munication or transaction between himself and a deceased 
 person. On the otlier hand such a party may testify to an inde- 
 pendent fact, as was held in Pinney v. Orth (82 N. Y., 619), 
 where a survivor was thought competent to contradict a state- 
 ment made by a third party as to his presence at an alleged 
 interview between himself and the deceased. So also a distinc- 
 tion is taken between a communication exclusively between 
 others, which the witness overheard, and one in which he him- 
 self took part, either actually, or by acquiescence. (Simmons v. 
 Sisson, 26 N. Y., 264; Lobdell v. Lobdell, 36 id., 327; Gary v. 
 "White, 59 id., 336 ; Pinney v. Orth, stipra; Brague v. Lord, 2 
 Abb. N. C, 1.) In the case of Gary v. White, the court regard 
 it as settled that the provisions of the Code (§ 399), there under 
 consideration, and which were not unlike those now in force 
 (§ 829), do not preclude a party from testifying to the statement 
 of a person deceased, made to a third person in the hearing of a 
 witness. Such a case was said not to fall within the letter of the 
 statute, and the fact that another person is competent to speak 
 as to what occurred, is referred to as going far to take it out of 
 the substantial reason of the statute. 
 
 It is obvious that a proper regard to the rights of suitors in 
 the administration of justice requires the conditions upon which 
 this conclusion depends to be strictly observed. The policy of 
 the statute excludes the evidence of an interested witness 
 concerning, 1st : Any transaction between himself and a deceased 
 person, or in which the witness in any manner participated ; 2d : 
 all communications between the person deceased and the 
 witness, including communications in the presence or hearing 
 of the witness, if he in any way was a party thereto, or com- 
 munications to either one or two or more persons, if all were 
 interested. 
 
 Each of these species of testimony is as much opposed to the 
 spiril, and intent of the statute as the other. If the proposed 
 witness has asked a question of the decedent, and it is answered 
 it is a conversation ; if while the decedent is conversing with a 
 
I. Comj>etenGy. (15") Against Estates of Decedents, etc. (e). 205 
 Holcomb V. Holcomb, 95 N. Y., 316. 
 
 te 
 
 third person the witness by word or sign participates in it, or is 
 referred to, his evidence of what occurred cannot be received. 
 "Within this rule the following evidence was improperly 
 received: Abel G. Holcomb, a son of the deceased assignor, 
 was asked, ' ' Do you know anything about his (the deceased's) 
 having a spasm, or fits, or anything ; what do you know about 
 it ; what did you ever observe ? " The attention of the court 
 had been called to the relationship between the witness and the 
 grantor, and the objection was distinctly placed on section 829. 
 He answered : " I remember once I was up there, he had one of 
 those spells, I led him out to make water. I noticed when he 
 straightened up, I had to catch him from falling back. I had 
 to hold him and lead him back into the house." This evidence 
 was to show the assignor's enfeebled and dependent condition, 
 the very point in the case. Again : on the day in question, 
 when the assignment was executed, this witness and his brother 
 ISTorman were alone with the assignor. They were each allowed 
 to give evidence as to what they saw of him at that time — his 
 appearance and that he did not speak to either; — by this 
 witness that he did not open his mouth while Norman was 
 there, and by JSTorman substantially the same thing. Each 
 testified to a mental and bodily condition of the assignor, as 
 indicated by conduct which they observed and by his absolute 
 inattention to them and their remarks, entirely incompatible 
 with the possession of understanding, or the ability to compre- 
 hend the nature of the act— that of acknowledging the assign- 
 ment, which he, that day, is said to have performed. Sherwood 
 Holcomb, another son, after objection under section 829 of the 
 Code, as if to obviate its force, was asked, " State what yon 
 heard your father saying or doing, or what you heard your father 
 say when it was not addressed to you." 
 
 " A. I have often heard him talking to himself and carrying 
 on conversations the same as though he was talking to somebody, 
 and there was nobody in the house, that was in the room he 
 occupied. I listened to hear what he was saying. 
 
 Q. What was it? 
 
 Objected to by defendant's counsel, on the ground that it is 
 incompetent and immaterial ; also that it is a personal communi- 
 
206 Abbott's Select Cases on Examining Witnessks. 
 Holcomb V. Hokomb, 95 N. Y., 316. 
 
 cation by Homer Holcomb to the witness and is excluded by 
 section 829 of the Code. 
 
 Objection overruled and defendant excepted." 
 
 In this instance the witness prepared himself to hear what his 
 father mii^ht say. His testimony is not made admissible 
 because his father did not solicit the interview, and was even 
 ignorant of his presence. The words, when spoken, became a 
 communication which he received. It was then a communica- 
 tion to him. He answered, " I heard him talking in his bed- 
 room. He would be talking to my mother, even asking her to 
 come back." (She was not then living.) "I heard him a 
 number of times." 
 
 The inquiry is pursued. 
 
 " Q. "What about his memory in the spring of 1869 ? 
 
 A. I thought he was very forgetful. 
 
 Q. What made you think so ? 
 
 A. He would ask me questions, and may be ten or fifteen or 
 twenty questions. He would ask me over again. In a little 
 while he would ask me again the same thing." 
 
 Thomas B. Holcomb, the plaintiff, who is also a son of the as- 
 signor, said: 
 
 " I recollect of meeting my father on the road just below Big 
 Hollow, within two or three years of his death. I was in a 
 wagon and he on foot, walking. I saw him ahead ; he was tot- 
 tering along feebly. I stopped my horse and spoke to him and 
 he kind of stared at me. 
 
 Defendant's counsel moved to strike out the words "he stared, 
 at me," on the ground that it is a personal communication 
 and excluded by section 829 of the Code. Motion denied, and 
 defendant excepted. 
 
 Q. What was the expression of his eyes and countenance ? 
 
 Objected to by defendant's counsel on same grounds as last 
 above stated. Objection overruled and the defendant excepted. 
 
 A. I don't think he knew me. 
 
 Q. Would you think that his countenance did not indicate 
 recognition? 
 
 Objected to by defendant's counsel on same gromids as last 
 above stated. Objection overruled and the defendant excepted. 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 20Y 
 Holcomb V. Holcomb, 95 N. Y., 316. 
 
 A. Yes, sir. 
 
 Q. Did he speak to you ? 
 
 Objected to by defendant's counsel on same grounds as last 
 above stated. Objection overruled and the defendant excepted. 
 
 A. I think not. I got off the wagon. 
 
 Q. What did he do after you took hold of him ? 
 
 A. He did not move away. 1 took him in my arms. 
 
 Defendant's counsel objected to what witness did. 
 
 Court : He may answer it. Exception by defendant. 
 
 A. I took him in my arms and set him in my wagon. I went 
 with him up to Lyman Payne's. In former days father's weight 
 was from one hundred and sixty to one hundred and seventy-five 
 3)0unds. 
 
 Q. What was his weight then ? 
 
 Objected to by defendant's counsel on same grounds as last 
 above stated. Olajection overruled and defendant excepted. 
 
 A. I should think not over seventy-five pounds— the lightest 
 man I ever lifted. 
 
 Q. Judging from what you heard him say then and afterward 
 at Payne's, how would you characterize his appearance % 
 
 Objected to by defendant's counsel on the same grounds last 
 above stated. Objection overruled and defendant excepted. 
 
 A. He appeared almost exhausted, mentally and physically 
 — imbecile." 
 
 None of this evidence can be justified. There was more of 
 the same character. In some instances we see a plain and un- 
 mistakable personal communication and a personal transaction, 
 and in all, such participation as brings the witness within the 
 reason and policy of the prohibition imposed by statute. 
 
 It is contended by the learned counsel for the respondent that 
 the errors should be disregarded as not affecting the result. Bat 
 this we cannot say. On the other hand it seejiis that injustice 
 may have resulted from the evidence adverted to, and in such a 
 case, whether the action is for equitable or legal relief, the ap- 
 peal of the aggrieved party should prevail. 
 
 The judgment appealed from, should, therefore, be reversed 
 and a new trial granted, with costs to abide the event. 
 
 All concur. 
 
 Judgment reversed. 
 
208 Abbott's Select Cases on Examining Witnesses. 
 Matter of Eysaman, 113 N. Y., 62. 
 
 MATTEE OF EYSAMAN. 
 
 New YorJc Court of Appeals, 1889. 
 
 [Reported in 113 N. Y., 62.] 
 
 In a contest over the probate of a will, on the question of testamentary 
 capacity, an interested witness is incompetent, under the statute, to 
 testify as to his observations of the acts and conduct of the deceased. 
 
 Such witness is also incompetent to testify as to conversations between 
 the deceased and third persons in his presence, even thoug-h he took 
 no pai't therein. 
 
 It appearing from previous evidence that such witness was present and 
 assisted the deceased during the execution of the will, he is incom- 
 petent to testify as to the publication and attestation thereof, although 
 he took no part. 
 
 Tlie act of executing a will, although consisting of several incidents, con- 
 stitutes but one continuing transaction ; a participation by a person 
 in any of the material acts required to complete its valid execution 
 makes tlie transaction one between the testator and such person. 
 
 An application for the probate of the will of Henry P. Eysa- 
 man, contested by the heirs and next of kin on the ground of 
 undue influence. 
 
 Upon the trial, Ware, the principal devisee under the will and 
 who had been the testator's attendant during sickness, was called 
 as a witness for the proponents to testify to the acts, conduct 
 and conversations of the testator during the last week of his sick- 
 ness; and was asked by proponent's counsel: "Did you hear 
 any conversations or conversation between Henry P. Eysaman 
 and any other person on Sunday immediately previous to his 
 death in which you did not engage ?" Objected to, as incom- 
 petent under IST. Y. Code Civ. Pro., § 829. Admitted and ex- 
 ception to contestants. 
 
 Evidence of this kind was then uniformly objected to, except 
 in one instance, by the contestants, upon the specific ground that 
 Ware, as a legatee under the will, was not competent to testify 
 to personal transactions and communications with the testator 
 under N. Y. Code Civ. Pro., § 829. 
 
 The objections were uniformly overruled and Ware gave 
 abundant evidence of the condition of the testator during the 
 last week of his life. 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 201> 
 
 Matter of Eysanian, 113 N. Y., 63. 
 
 Smif/t c6 Steel, for defendant. 
 
 JliUs, Palmer <& Ilorgan, for plaintiff. 
 
 John D. Henderson, for executors. 
 
 The Surrogate admitted the will to probate. 
 
 The Supreme Court at General Term affirmed the decree. 
 
 FoLLETT, J. [dissenting, said] : When the probate of a will is 
 contested upon the ground that at the time of its execution, the 
 testator was without sufficient mental capacity to understand the 
 nature of the act in which he is engaged, a legatee who assists in 
 its execution by the request of the testator, is incompetent to 
 testify in support of the will, to acts or declarations of the testa- 
 tor observed or heard by the legatee during the transaction. 
 (:N". Y. Code Civ. Pro., § 829 ; Holcomb v. Holcomb, 95 JS^". Y., 
 316; Lane v. Lane, id., 1:91:; Hatter v. Smith, id., 516 ; Schoon- 
 maker v. Wolford, 20 Hun, 166 ; Cadmus v. Oakley, 3 Denio, 
 321.) 
 
 The Court of Appeals reversed the judgment. 
 
 EuGEE, Ch. J. \_after stating the facts'] : "Ware, who was the 
 principal devisee under the will, and had been in the testator's 
 employ for upwards of forty years, and his constant attendant 
 during his last sickness, was called as a witness in support of the 
 will. He was permitted to testify to his observations of the acts, 
 conduct and conversations of the testator during the last week of 
 the testator's sickness. This evidence was imiformly objected 
 to, except in one instance, by the contestants, upon the specific 
 ground that "Ware, as a legatee under the will, was not compe- 
 tent to testify to personal communications and transactions with 
 the testator, under section 829 of the Code. These objections 
 were unifoi-mly overruled by the surrogate, and "Ware gave 
 abundant evidence upon the subject of the testator's mental and 
 physical condition during the last week of his life. Among 
 other things, he was permitted to testify, under objection, to a 
 conversation occurring between himself and the testatoi- on Satur- 
 day, the twenty-sixth of April, in relation to the subject of an 
 ofier by the testator to execute a deed of a certain one hundred 
 acres of land to the witness, which was declined by him. The 
 
■210 Abbott's Select Cases on Exajmining Witnesses. 
 
 Matter of Eysaman, 113 N. Y., 63. 
 
 -conceded error in admitting tliis evidence was disregarded by 
 the General Term, upon tlie ground that the objection thereto 
 was not sufficiently specific. The objection immediately suc- 
 ceeded eight previous objections to similar evidence, made upon 
 the ground that the witness was not competent to testify to such 
 transactions and conversations, and that it was " incompetent and 
 immaterial." "We think the admission of this evidence was error, 
 and that the trial court was sufficiently apprised of the real 
 nature of the objection by the whole course of the examination 
 of the witness. (Church v. Howard, 79 N. Y., 415.) This wit- 
 ness was further permitted to testify to his observations of the 
 testator's acts, conduct and conversations during the four days 
 succeeding the Saturday in question. Excluding, for the present, 
 his evidence on the subject of the execution of the will, he testi- 
 iied, under objection, to eleven different conversations had by 
 the testator with various persons, indicating capacity to converse 
 intelligently and understandingly upon the subject introduced ; a 
 recognition of the various persons who visited him ; appreciation 
 and intelligent answers to all questions put to him ; a conscious- 
 ness of his physical wants and the ability, in language, to make 
 them known ; and, generally, to a sufficient degree of conscious- 
 ness, intelligence and judgment to show that when he executed 
 his will, he did so with full knowledge and appreciation of the 
 nature and effect of the transaction in which he was engaged. 
 
 It is quite impossible to say that this evidence did not have a 
 powerful effect upon the determination of the question of testa- 
 mentary capacity presented to the surrogate for decision. This 
 evidence was offered and received as bearing upon the condition 
 of the body and mind of the testator, without reference to the 
 particular signification of the language used by him, and was im- 
 portant only as showing the mental capacity of the testator, and 
 whether he had an intelligent understanding and appreciation of 
 what took place within his sight and hearing at the time of the 
 execution of the will. The issue in the ease was whether the 
 -testator was conscious and of sound disposing mind on the Sun- 
 day in question, and Ware's evidence consisted of his observa- 
 tions of the acts, conduct and conversations of the testator as 
 'exhibited to those wLo were attending him. Such evidence was 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 211 
 
 Matter of Eysaman, 113 N. Y., 63. 
 
 important and material upon tlie issue tried, and is clearly within 
 the letter and spirit of those transactions to which the Code pro- 
 hibits an interested witness from testifying. It was of the same 
 class of evidence as that pronounced by this court to be incom- 
 petent under section 829 of the Code in Holcomb v. Holcomb 
 (95 IS". Y., 316) ; Lane v. Lane (id., 491) ; In re Smith {id., 516). 
 
 As indicated by the head-note of Holcomb v. Holcomb, it was 
 there held that " the policy of the statute excludes testimony of 
 an interested witness concerning any transaction with the de- 
 ceased in which the witness in any manner participated, or of 
 any communication in his presence or hearing, if he, in any way, 
 was a party thereto," and that testimony of interested witnesses 
 was improperly received " as to conduct and actions of the 
 deceased, tending to show his enfeebled and dependent condi- 
 tion, and as to statements made by him, although not addressed 
 to the witness, and made in ignorance of his presence." 
 
 The case of Cary v. White (59 N. Y., 336) is not an authority 
 for the admission of this evidence. Several grounds for the con- 
 clusion reached in that case were stated, but a single judge only 
 concurred with the opinion ; two judges concurred in the result 
 and two dissented, the remaining judge not voting. One of the 
 grounds suggested in that case was, that the party objecting to 
 the evidence offered was not an assignee of the deceased person 
 within the meaning of the statute. The evidence there sought 
 to be given consisted of a declaration made by the deceased per- 
 son to his own attorney in the presence of the plaintiff. The 
 point was presented upon an objection to the question calling 
 for the evidence which was sustained by the trial court. The 
 judge who wrote in this court was of the opinion that the ques- 
 tion excluded did not necessarily relate to a personal communi- 
 cation or transaction between the deceased person and the wit- 
 ness, and was therefore competent. The case cannot be con- 
 sidered an authority upon the question here presented. 
 
 Ware was also permitted to testify, under objection, to the 
 •conversation taking place between the testator and Sharer and 
 Barse attending the attestation and publication of the will. His 
 evidence tended, in every material respect, to corroborate the 
 version given of the transaction by Sharer, and conflicted with 
 
212 Abbott's Select Casks on Exaiiinixg Witnesses. 
 
 Matter of Eysaman, lib N. Y., 63. 
 
 tliat of Barse. At the time this evidence was admitted, it 
 appeared that Ware had been present during the whole inter- 
 v^iew, during which the will was alleged to have been executed, 
 and had, confessedly, taken a part ,in its subscription by the 
 testator. Ware and Sharer were the only persons then present, 
 and Ware supported the testator upon the bed in his arms by the 
 testator's express request, while Sharer guided the hand upon 
 similar request, and assisted Eysaman in subscribing his name 
 to the will. It cannot be doubted that the request to Ware, 
 and acquiescence and participation in the act of the testator 
 in subscribing the will, was a personal transaction and com- 
 munication between him and the testator within the meaning 
 of the statute. Sueli must have been the understanding of the 
 proponents, for they voluntarily omitted to examine Ware in 
 chief as to the signing of the will, but confined his evidence to 
 the publication and attestation which followed the testator's sub- 
 scription. This was claimed by them to be competent as relat- 
 ing to another transaction in which he took no part. 
 
 We think it was error to admit this evidence. The act of 
 executing the will, although consisting of several incidents, con- 
 stituted but one transaction, and derived its efficacy as a valid 
 execution from the performance of each requirement of the 
 statute. The transaction was continuing and related to but one 
 subject, viz., the execution of the will. A participation by a 
 person in any of the material acts required to complete its valid 
 execution made the transaction one between the testator and that 
 person. Ware was present from the subscription to the publica- 
 tion and attestation, and it cannot reasonably be held that he 
 did not participate in the execution of the will. 
 
 [A ruling on another point omitted.'] 
 
 Judgment reversed. 
 
 Note.— Ill Matter of Dunham's Will, 121 N. Y., 575 (obscurely reported), the executor (beiu^ 
 also a pecuDiary legatee and a residuary legatee) propounded the will. A codicil, propounded 
 by a legatee under the codicil, if proved would reduce the residuary bequest. The executor wa& 
 offered as a witness in his own behali to testify to conversations of the testator with the pro- 
 ponent of the codicil, and this was claimed to be not within the spirit of the statute, but rather 
 within the exception, because the executor was testifying in his own behalf. — Heldt in- 
 competent. 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 213 
 Matter of Eysaman, 113 N. Y., 63. 
 
 Gray, J. [passing on the point, said] : The ground for the ruling is, 
 that communications in tlie presence of the witness are deemed to be 
 made to liim. While the ruling may be said to be stretched to the 
 extremest tension, it has the merit, possibly, of being in furtherance of 
 justice. The evidence is intended to work here against the respondent, 
 who derives her interest vxnder the testator's codicil, and whose lips are 
 sealed by the law as to the matters ; and to permit a witness, so much 
 interested as this one was in the amount of the estate ultimately distribu- 
 table, to testify to things said and done by testator, though with others, 
 but while he was present, witlr the only supposable purpose of affecting the 
 interests of the respondent, would certainly seem to be giving an undue 
 advantage to the one as against the other. This is certainly true, if the 
 evidence sought to be elicited is material in its bearing upon the question 
 of restraint or influence upon testator, or upon his disposing strength of 
 mind ; while, if it is' not material, the exclusion of the evidence has worked 
 no prejudice to the appellant, and, hence, would not require a reversal for 
 «rror. This section of the Code offers considerable difficulty, in the en- 
 <leavor to give to its provisions a reasonable and just interpretation ; and 
 -each case, as it arises, may, in its circumstances, control the application 
 ■of the rule intended to be established by the Legislature, It suffices, as to 
 this case, to hold that within the authorities cited by me the evidence 
 was properly excluded. 
 
 (The cases cited were Holcomb v. Holcomb, 95 N. Y., 316, and Matter 
 of Eysaman, 113 N. Y., 63, both reported supra.) 
 
 In Smith v. Ulman, 36 Hun, 388, an action for partition between 
 heirs-at-law of Frederick Ulman, deceased, defendant William Ulman 
 was sworn as a witness in his own behalf, and was permitted to tes- 
 tify to a conversation between his father and one Race as follows : 
 ■"Father told Andrew Eace that he had made a bargain with me to 
 come and take care of him during his life, and that he had told Race's 
 wife that she could stay a year according to agreement. Race said the 
 work was rather hard, and he would rather leave right away. He told 
 Hace I was to come with my family and take care of him during his 
 life-time. I took some part in the conversation ; father commenced it. I 
 told Race he could stay, and he said he would not remain between father 
 and child." 
 
 From a judgment for defendant entered upon the report of a referee 
 plaintiff appealed to the General Term. 
 
 The General Term reversed the judgment. 
 
 OSBORN, J. [after stating the facts]: Now, it would seem that Race 
 and his wife had been living on the place prior to, and were so living at 
 the time of the conversation. The objection was that this evidence was 
 inadmissible under section 839 of the Code, as a conversation or personal 
 transaction with the deceased. 
 
 We are aware that the courts have held that a party disqualified 
 under this section to swear to a conversation or transaction between 
 
21J: Abbott's Select Oases on Examintng "Witnesses. 
 
 Matter of Ej'sainan, 118 N. Y., 63. 
 
 himself and the deceased, may do so when the conversation is be- 
 tween the deceased and a third party, which he may see or hear and 
 in which he in no manner participates. In the language of Bockes, J., 
 in Holconib v. Holcomb (30 Him, 159), after a careful review of all the 
 cases, "If the transaction be one wliolly independent of the witness,, 
 neitlier induced by his solicitation or supported by his action, one with 
 wliich he in no way interferes or joins, itcannot beone of a personal char- 
 acter as regards him." But in this conversation the defendant did partici- 
 pate. He swears distinctly that he took some part in it. He states some 
 thing's he said, but does not pretend that it was by any means all that he- 
 said. But if lie said nothing more, it was still inadmissible. The deceased 
 was speaking of tlie contract between himself and the witness ; of tlie 
 bargain that had been made between them. This was in the presence 
 and hearing of the witness. Suppose the father had lived many years, 
 and the vakie of the property was entirely inadequate to compensate for 
 the care and maintenance bestowed, so that a claim against the estate 
 could have been established for a much larger amount, and he bad under- 
 talien to make such a claim, which was resisted by the estate, on the 
 ground that he had made this agreement, and was entitled to nothing- 
 more, would not this evidence have aided, and if the representatives of the 
 estate believed it, have entirely defeated the allowance of such claim ? If 
 he had remained entirely silent, would it not have been treated as an 
 assent on his part to the agreement as thus stated by the deceased to the 
 witness Race ? Clearly so. If a party stands by and hears another state 
 over an agreement in which he has an interest ; if not true, and it is to 
 his prejudice, is he not bound to speak at once, or forever after keep his 
 mouth closed ? But here defendant admits that he went farther than to 
 remain silent, and impliedly admitted that the agreement as stated was 
 correct, and that he was willing to carry out the agreement which his 
 father had made with Race and his wife ; in a word, it is a conversation in 
 which all three participated. The deceased stated the agreement to Race. 
 Race then made his statement, and the defendant William assented in 
 express words to it. As before stated, this was clearly inadmissible under 
 the section above referred to, and in direct violation of its spirit and mean- 
 ing, as well as its express language. 
 
 In Lane v. Lane, 95 N. *¥., 494, the probate of a will was contested by 
 the heirs-at-law. It appeared that through partial paralysis of his vocal 
 organs, the testator, at the time he executed the will, was unable to utter 
 words, bvit he made sounds intelligible to those familiar with him, and 
 signs, which, to some extent, anj^one could interpret. His wife went 
 with him to the house of the- scrivener who drew the will. She was ex- 
 ecutrix and legatee.— if eZd, that she was incompetent to testify to any- 
 thing said by her to the testator, or to what he communicated to her or 
 others, in reply. 
 
I. Competency. (15) Against Estates of Decedents, etc. (e). 215' 
 
 Note on What Transactions are Protected. 
 
 XOTE OF KECENT CASES ON WHAT TRAIfSAGTIO^v S 
 
 OE COMMUNTCATIOIs'S WITH DECEASED 
 
 ARE WITHIN THE PROHIBITION 
 
 OF THE STATUTE. 
 
 Arltanaas: Nunnally v. Becker, 53 Ark., 550 ; s. c. 13 Southwest. Rep.,, 
 79 (in an action for conversion against an administrator, plaintiff cannot 
 testify as to the dehvery of the property to deceased). Florida: Holli- 
 day «. McKinney, 32 Fla., 153 (in replevin, plaintiff cannot testify as to- 
 deceased's handwriting to establish his signature to a bill of sale). Lewis 
 V. Meginniss, 30 id., 419 ; 13 Southern Kep., 19 (an agent to establish his. 
 commissions may testify as to the sums of money collected for a deceased 
 person, and what would be a I'easonable compensation for collecting- it). 
 Indiana; Merritt v. Straw, Ind. App., 1893, 33 Northeast. Rep., 657 (in an 
 action by an administrator upon a note, defendant cannot testify as to 
 deceased's handwriting' to establish receipts purporting to be signed by 
 him). Iowa: Sankey w. Cook, 1891, 47 Northwest. Rep., 1077 (opinion as 
 to a deceased's handwriting is not testimony as to a transaction with 
 him). JfcElhenny v. Hendricks, 1891, 48 id., 1056 (where defendant pro- 
 duced checks to show payment, he may testify that he did not deliver 
 them to another than decedent). Kentucky : Williams v. Willianas, 1890, 
 13 Southwest. Rep., 350 (under Ky. Civ. Code, g 1890, a contestant of a 
 will may testify as to deceased's conduct and conversations). Maryland:- 
 Webster v. Le Compte, 1891, 33 Atlantic Rep., 333 (plaintiff may not 
 testify as to the contents of his own letter to deceased, though the admin- 
 istrator fails to produce it after notice). Minnesota: Hall v. Northwestern,, 
 etc. Ass'n., 47 Minn., 85 ; s. c. 49 Northwest. Rep., 534 (plaintiff may 
 testify as to the reading of a letter in deceased's presence ; the Minnesota 
 statute applies only to spoken words and not acts of deceased from which 
 admissions may be implied). Neiv Hampshire: Simpson v. Gafney, SO' 
 Atlantic Rep., 931 (in an action for personal injuries which occurred while 
 plaintiff was riding with a person since deceased, plaintiff cannot testify 
 as to her want of knowledge of the horses, peculiarities, etc., as such 
 matters must have been equally within the knowledge of deceased).. 
 Sabre v. Smith, 63 N. H., 663 (a party cannot testify as to the contents of 
 a lost letter received from deceased). Neiv Jersey: Mathews v. Hoag- 
 land, 1891, 31 Atlantic Rep., 1054 (a party cannot testify as to transactions 
 between deceased and another in which the witness and such person was 
 interested, though their interests were distinct). New York: Wing v.. 
 Bliss, 8 N. Y. Supp. , 500 (plaintiff may testify that he found a letter on 
 his desk in deceased's handwriting). Spicer v. Spicer, 54 N. Y. Super. Ct., 
 380 (in a suit to set aside a deed for fraud upon deceased ; defendant can- 
 not testify how long the deed remained in his possession). Hard v. Asli- 
 ley, 117 N. Y., 606 ; s. c. 33 Northeast. Rep., 177 (where evidence of deced- 
 
216 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on What Transactions are Protected. 
 
 ent's statements prior to an agreement's execution has been admitted 
 without objection, defendants may testify they rehed on the statements ; 
 as such testimony does not relate to any matter which deceased could 
 contradict). Heyne «. Doerfler, 134 N. Y., 505; s. c. 26 Northwest. Eep., 
 1044 (a third person's presence does not i-ender plaintiff's testimon}' as to 
 a conversation with deceased competent ; nor can a nurse testify as to his 
 visits to deceased's house, in an action for services). Matter of McArthur, 
 12 N. Y. Supp., 822 (an interested witness' testimony as to testator's 
 appearance to show testamentary incompetency is inadmissible) ; s. p. 
 Matter of Bartholic, 12 id., 640. Harrington v. Winn, 14 id., 612 (to show 
 delivery of goods to deceased, plaintiff cannot testify that F. made entries 
 in a book under deceased's directions and read them aloud to deceased). 
 Myers ■«. Hunt, 14 id., 471 (plaintiff cannot testify that decedent's note 
 was never paid). Gregory v. Fichtner, 27 Abb. N. C, 86; s. c. 14 N. Y. 
 Supp., 891 (in an action of conversion against an administrator, plaintiff 
 cannot testify as to the contents of a box delivered to intestate through a 
 third person, nor as to the value of the goods). Finton •;;. Eggleston, 61 
 Hun, 246 ; s. c. 16 N. Y. Supp., 721 (in an action for a breach of warranty, 
 plaintiff is incompetent to testify that he left a notice that he was being 
 sued for the land at the house of the deceased vendor). Mortimer v. 
 Chambers, 63 Hun, 835 ; s. c. 17 N. Y. Supp., 874 (to prove decedent's 
 delivery of notes, plaintiff may testify that they were in his possession be- 
 fore decedent died). Hall «. Roberts, 63 Hun, 473; s. c. 18 N. Y. Supp., 
 480 (to disprove notice by decedent to him, plaintiff may not testify that 
 he had received no information from any source). Martin v. Hilten, 21 
 N. Y. Supp. , 309 (in an action against a husband for the conversion of his 
 -deceased wife's bonds, he cannot testify that he did not know that his 
 wife possessed any property, except a monthly jDayment). McMurray v. 
 McMurray, 63 Hun, 183 (a mortgagee cannot testify as to the non-pay- 
 ment of the mortgage by the deceased mortgagor). Hard v. Ashley, 18 
 JSr. Y. Supp., 413 (neither of two defendants can testify as to what he 
 heard decedent say to the other concerning both defendants' joint rights). 
 Matter of Bernsee, 17 id., 669 (a devisee present at the execution of a will 
 may corroborate an attesting witness). Matter of McCarthy, 20 id., 581 
 <evidence as to testator's physical condition when the witness reached 
 his home and as to whether he left his bedroom after her arrival, is 
 not objectionable as relating to a transaction or communication with a 
 deceased person). Van Vechten v. Van Vechten, 47 State Rep., oil ; s. c. 
 65 Hun, 315 (rule applied, in an action brought to have a deed declared a 
 mortgage, to exclude letters written by defendant to the original grantor, 
 and found in his trunk after his death, and the indorsement on a note 
 from the grantor to the defendant, found in the same place, which defend- 
 ant claimed to have made on the note at the time of the conveyance to 
 him). North Dakota: Hutchinson v. Cleary, 1893,55 Northwest. Rep., 
 729 (a defendant is prohibited from testifying as" to a conversation with 
 plaintiff's intestate, though decedent's agent was present at the time the 
 conversation took place). North Carolina: Cornelius v. Brawley, 109 N. 
 
I. Competency. (15 j Against Estates of Decedents, etc. (e). 21T 
 
 Note on What Transactions are Protected. 
 
 C, 543 ; s. c. 14 Southeast. Rep., 78 (legatee may testify as to tlie finding 
 of a will). Simpson v. Simpson, 107 N. C, 553 ; s. o. 13 Southeast. Rep., 
 447 (a mortgagee cannot testify as to how much has been paid by deceased 
 mortgagor). Watts v. Warren, 108 N. C, 514; s. l-. 13 Southeast. Rep., 
 233 (in an action to set aside decedent's assignment of an insui'ance policy, 
 to show consideration defendant may testify that he paid decedent's debts). 
 Hopkins v. Bowers, 111 N. C, 175 (a widow, who is a party to the action, 
 cannot testify as to her marriage with her deceased husband). Ferebee v. 
 Pritchard, 1893, 16 Southeast. Rep., 908 (in an action by a husband after 
 his wife's death to set aside a conveyance made by her, he is a competent 
 witness to prove that the signature of a letter in which the writer 
 promised to marry him was in his wife's handwriting). Pennsylvania: 
 Keener v. Zartman, 144 Pa. St., 179 ; s. c. 33 Atlantic Rep., 889 (under Pa. 
 Stat., a witness, though an interested party, is competent to prove deced- 
 ent's book entries). Mell v. Barrier, 19 id., 940 (the maker of a note is in- 
 competent to prove payment to the deceased payee). Toomey's Estate, 
 1893, 34 id., 697 (where a claim a.gainst an estate is contested for forgery, 
 an heir is not competent to testify as to deceased's handwriting). South 
 Carolina: Griffin u. Earle, 34 S. C, 346; s. c. 13 Southeast. Rep., 473 (a 
 party may testify that he had no conversation with deceased). Foggeth v. 
 Gaffney, 33 S. 0., 303 ; s. c. 13 Southeast. Rep., 360 (plaintiff may testify 
 as to work done on the premises of deceased when he was at home and 
 could not have been ignorant of the work). Sullivan v. Latimer, 1893, 17 
 id., 701 (a witness may testify as to a conversation between his wife and a 
 deceased person in which he took no part). Tennessee: Montague v. 
 Thomson, 1893, 18 Southwest. Rep., 364 (a surviving party cannot testify 
 as to the contents of a lost letter from deceased). Texas: Choate v. Huff, 
 18 Southwest. Rep., 87 (plaintiff cannot testify that he lost a note executed 
 by a deceased person). United States; Andrews v. Hunt, 7 Mackey, 311 
 (under U. S. R. S., § 858, a party may testify that a transaction with 
 deceased never took place). Vermont: Orr v. Clark, 1890, 19 Atlantic 
 Rep., 939 (where an instrument executed by deceased under which plaint- 
 iff claims is in the possession of defendant, who refuses to produce it, 
 plaintiff may prove its contents by a party to the instrument). West 
 Virginia: Voss v. King, 33 W. Va., 236 (a party may testify as to a 
 transaction with a deceased agent of deceased). 
 
218 Abbott's Select Cases on Examining "Witnesses. 
 Nay V. Curley, 113 N. Y., 575. 
 
 NAT V. CUELEY. 
 
 JVew York Court of Appeals, 1889. 
 [Reported in 113 N. Y., 575.] 
 
 Section 839 of N. Y. Code Civ. Pro. — disqualifying an interested witness 
 as to a personal transaction with a decedent, etc. — is subject to the 
 common law principle in the law of evidence, that where a party calls 
 a witness and examines iiim as to a part of a communication or trans- 
 action, the other party may call out any other part of tlie communi- 
 cation or transaction tending to explain or qualify or put in a different 
 lig-ht the particular pait called out by the examination in chief.* 
 
 In an action on behalf of the estate of a decedent, plaintiffs, to prove that 
 money the decedent had paid to the defendant by check, was a loan 
 (not a payment of a debt as would otherwise be presumed by the law) 
 called defendant and asked if at the time of the transaction the 
 decedent owed him any money. He answered. No. 
 
 Held, that this opened the door for him to be called and examined on his 
 own belialf as to what took place in that transaction between him and 
 the decedent. 
 
 The prohibition of the statute cannot be avoided by putting a question 
 which does not purport to allude to any particular transaction, but 
 the answer to which must affirm or deny the having a transaction 
 in a manner which even indirectlj' will raise or rebut an inference as 
 to some material element therein. 
 
 An action to recover an alleged loan made by plaintiff's in- 
 testate to defendant. The answer contained a general denial. 
 
 Plaintiffs gave in evidence a check signed by the intestate, 
 payable to defendant, and proved that it was delivered to, 
 indorsed by and paid to him. 
 
 Plaintiff called the defendant as a witness, and asked him, 
 " On the 22d day of December, 1886 (the date of the check), did 
 Joseph 0. Nay owe you any money ? " And the defendant 
 answered, "No, sir." 
 
 The defendant, on assitming the defense, offered himself as a 
 witness in his own behalf, and after stating that he received the 
 check from the drawer, was asked by his counsel, " State what 
 took place between you and him ? " 
 
 The plaintiff's counsel objected to the question, on the ground 
 that it was incompetent, and it was excluded by the court. 
 
 *The leading case on this principle as now applied is House v. Whited, 25 N. Y., 170. 
 
I. Competency. (15) Against Estates of Decedents, etc. (f). 219 
 
 Nay V. Cvirley, 113 N. Y., 575. 
 
 Upon a verdict, judgment entered for plaintiff. 
 
 The Court of Common Pleas at Oeneral Term affirmed the 
 judgment without opinion. 
 
 Tlie Court of Appeals reversed the judgment. 
 
 Akdeews, J. \_after stating the facts\ : There can be no 
 doubt that the question was properly excluded, assuming 
 that the plaintiffs had not opened the matter by their 
 examination of the defendant. The evidence sought to be 
 elicited by the excluded question directly pointed to the trans- 
 action between th-e witness and the decedent at the time the 
 check was given, and called for a narrative of what took place 
 between them on that occasion. It was evidence directly within 
 the prohibition of section 829, and did not fall within the ex- 
 ception in that section, since the plaintiffs had not been examined 
 concerning that transaction, in their own behalf or otherwise. 
 There was no error, therefore, in excluding the question put to tlie 
 defendant, if its admissibility is to be determined by section 829. 
 But that section was not intended to abrogate the principle in 
 the law of evidence, that where a party calls a witness and ex- 
 amines him as to a particular part of a communication or trans- 
 action, the other party may call out the whole of the communica- 
 tion or transaction bearing upon or tending to explain or qualifj^ 
 the particular part to which the examination of the other party 
 was directed. This rule does not need the sanction of authority. 
 It is founded upon obvious equity and justice. A part of the truth 
 often implies a' falsehood, and in the search for truth, through 
 the examination of witnesses, courts do not countenance partial 
 statements of facts by witnesses. The principle adverted to is 
 just as applicable in reason to a case where a party calls an 
 adverse party and examines him as to one fact or phase of a 
 transaction in his favor, and then discontinues the inquiry, as in 
 any other. The party examined by the other may, at his own 
 instance, complete the narration for the purpose of explaining, 
 modifying or putting in a different light the particular part to 
 which the examination by the adverse party was restricted. 
 Section 829 in no manner affects the application of the rule. If 
 
220 Abbott's Select Cases on Examining Witnesses. 
 
 Nay V. Curley, 113 N. Y., 575. 
 
 a party calls tlie adverse party and examines him as to a personal 
 communication or transaction witli a deceased person, in reference 
 to whicli he would be precluded from testifying in his own 
 behalf under that section, the witness is entitled to state the 
 whole transaction or conversation and thereby explain or qualify 
 the testimony called out by the other party. This was explicitly 
 held in Merritt v. Campbell (79 IST. Y., 625). 
 
 The correctness of the ruling, excluding the defendant from 
 testifying in his own behalf as to what took place between the 
 intestate and himself at the time the check was given, turns 
 upon the point whether the plaintiffs by asking the defendant, 
 on their examination, whether on the day tRe check was given 
 their' intestate owed him anything, and obtaining an answer in 
 the negative, thereby gave proof as to the transaction between 
 the parties at the time of giving the check, and opened the way 
 to the defendant to testify thereto. Evidence of a personal 
 transaction between parties may become material on a trial, (1) 
 where the cause of action originates in the transaction sought to 
 be proved, the transaction itself creating the duty or obligation ; 
 or (2), where the communication or transaction tends to establish 
 an antecedent cause of action, or to disprove it, as, for example, 
 where admissions are relied upon, made by one party to the 
 other ; or, (3), where the original cause of action is admitted, and 
 the communication or transaction is sought to be proved to show 
 that the cause of action had been satisfied or discharged, as by 
 payment or otherwise. In the present case the cause of action, 
 if any, arose out of the giviag of the check, and whether it 
 created a cause of action depended upon the real nature of that 
 transaction, whether the check represented a loan, gift or some- 
 thing else. The check, on its face, imported a personal transac- 
 tion between the parties to the instrument, and that it was, in 
 fact, a personal transaction between them was shown outside of 
 the testimony of the defendant. The material issue was, what 
 was the real character of that transaction. The plaintiffs, by 
 calling the defendant and proving by him that the intestate owed 
 him nothing when the check was given, showed that the trans- 
 action was not a payment, and, by eliminating this element, 
 characterized the transaction as a loan. If the question put to 
 
I. Competency. (15) Against Estates of Decedents, etc. (f). 221 
 
 Naj' V. Curley, 113 N. Y., 575. 
 
 defendant by the plaintiffs had been in a direct form as, for in- 
 stance, " Was the check given for a debt ?" no doubt could be 
 entertained that the question would have been concerning the 
 transaction between the parties when the check was given, and, 
 if answered in the negative, the door would have been opened to 
 the defendant to show what the transaction was, and that it was 
 not a loan, which would be the presumption in the absence of 
 further explanation. The mere form of the question can make 
 no difference, if the question put, in substance, called for an 
 affirmation or negation as to the character of the transaction in 
 question. The point is tlie same in principle as if the defend- 
 ant, not having been called as a witness by the plaintiffs, had 
 offered himself as a witness in his own behalf, and, with a'view 
 of showing that the check was given in payment of a debt, had 
 teen asked : "Was the intestate, on the day of the date of the 
 check, indebted to you in the amount for which the check was 
 given ? " It is plain that he could not have been permitted to tes- 
 tify directly that he received the check in payment of a debt, or 
 that it was not given as a loan, or that it was a gift, because this 
 would be permitting him to testify what the transaction was. 
 It is equally plain, we think, he could not have been permitted 
 indirectly to accomplish the same end by permitting him to tes- 
 tify that wlien the check was given there was a debt owing him 
 by the intestate of the same amount, thereby excluding the idea 
 of a loan, and raising the inference that the transaction was a 
 payment. He could not in this way be permitted to characterize 
 the transaction, i. e., to show what it was not, and to accomplish 
 by indirection what he could not have done directly. The plaint- 
 iffs could not ask the defendant, as their witness, the same ques- 
 tion, except at the risk of opening the whole transaction. They 
 could not call the defendant and show by him that there was no 
 debt and, consequently, that the transaction was not the payment 
 of a debt, and preclude him from testifying as to what the transac- 
 tion was, or that it was not that which the evidence given by him 
 on their examination presumptively established it to have been. 
 There is difficulty in administering the rule declared in section 
 829. The survivor of one of two parties is not precluded by 
 that section from testifying to any independent fact material to 
 
223 Abbott's Select Cases on Examining Witnesses. 
 
 Nay V. Curley, 118 N. Y., 575. 
 
 the litigation, that is, to any fact which does not involve the dis- 
 closure of a personal transaction or communication with the 
 deceased, or is not concerning such personal transaction or com- 
 munication. Every material fact tends, directly or indirectly to 
 prove or disprove the issue to which it relates. But the survivor 
 is not precluded from testifying in his own behalf to a material 
 fact, simply because it may throw light upon and tend to prove 
 or disprove the transaction in issue. The statute closes the lips 
 of the survivor only as to personal dealings between the parties. 
 It does not deprive him of the right to testify to any material 
 fact known to him, not involving the disclosure of a personal 
 transaction with the decedent, although such fact may indirectly 
 prove or disprove a personal transaction upon which the suit is 
 founded. In other words, the testimony of the survivor is not 
 excluded because it bears upon the issue to be decided or 
 because it bears upon a personal transaction which is itself 
 the subject of the inquiry. It is excluded only when it is in 
 effect a disclosure of what has occurred between the witness 
 and the deceased in relation to the subject in controversy. If, in 
 substance, the fact sought to be elicited respects a personal trans- 
 action and tends directly to disclose a personal transaction, or 
 the presence or absence of some element in a personal trans- 
 action, then the fact is not, we think, an independent one, and 
 the survivor is precluded from testifying to it, unless the way is 
 opened by his examination by the other party. (Tooley v. Bacon, 
 YO ISr. Y., 34 ; Maverick v. Marvel, 90 id., 656 ; Koehler v. Adler, 
 78 vVi., 28Y ; Lerche v. Brasher, 104 N. Y., 157 ; Clift v. Moses, 
 112 id., 426.) The examination of the defendant by the plaint- 
 iffs, as to the existence of a debt between the witness and the 
 intestate when the check was given, directly bore upon the 
 nature and character of the transaction, and was an indirect 
 method of proving the transaction itself. They thereby made 
 the defendant a competent witness to testify in his own behalf 
 as to the same transaction. 
 
 For the error of the trial court in rejecting the evidence of 
 the defendant the judgment should be reversed. 
 
 All concur. 
 
 Judgment reversed. 
 
I. Competency. (15) Against Estates of Decedents, etc. (f ). 223 
 Nay V. Curley, 113 N. Y., 575. 
 
 Note. — In Lewis v. Merritt, 98 N. Y., 206, an action by an executor foi* 
 conversion of notes belonging to testatrix, plaintiff swore that deceased 
 kept the notes in a trunk in her room and that he saw them there the 
 morning before she died. The notes thereafter were found in possession 
 of the defendant. Defendant claimed that the testatrix gave him the 
 notes two days prior to her death as a gift. — Held, error not to allow him 
 to be asked " if he took the notes from any trunk or person." 
 
 RuGER, Ch. J. {deciding the case, says]: The excluded evidence did 
 not purport to be admissible, nor was it offered for the purpose of estab- 
 lishing an affirmative defense ; but it is claimed to have been competent, 
 as tending to overthrow a fact upon which plaintiff's cause of action solely 
 rested, and which was testified to by the plaintiff alone. While of course 
 it is not competent for a party, when called as a witness in his own behalf 
 against one representing a deceased person, to testify affirmatively as to 
 any transaction or communication had personally with such deceased per- 
 son, or whether a particular interview between them took place or not, 
 unless his adversary is first examined in reference thereto, or the evidence 
 of the deceased person given on some former occasion is proved on the 
 trial ; yet this does not necessarily and under all circumstances exclude 
 the evidence of the surviving party, when it tends to negate, or affirm, the- 
 existence of such transaction or communication. The object and intent 
 of the restriction placed upon the survivor of those engaged in personal 
 dealings and transactions, from giving evidence in relation thereto, will 
 be accomplished, if it is limited to cases which preclude him from giving 
 such evidence when it is offered for-the purpose of establishing an affirm- 
 ative cause of action or defense. It is difficult to lay down any general 
 rule which shall cover all possible transactions, but it is safe to say when 
 a party gives material evidence as to extraneous facts, which may or not 
 involve the negation or aflSrmation of the existence of a personal transac- 
 tion or communication with a deceased person, that the adverse party, 
 although precluded from directly proving the existence of such communi- 
 cation or transaction, may give evidence of extraneous facts tending to 
 controvert his adversary's proof, although those facts may also incident- 
 ally involve the negation or affirmation of such personal communications, 
 or transactions. 
 
224: Abbott's Select Cases on Examining Witnesses. 
 
 ■Potts V. Mayer, 86 N. Y., 303. 
 
 POTTS V. MAYER 
 
 JV^ew York Court of Appeals, 1881. 
 
 [Reported in 86 N. Y., 303.] 
 
 "Where the testimony of the deceased party, taken at a former trial, has 
 been introduced in evidence by one party, a witness, otherwise dis- 
 qualified under § 839, may testify on behalf of the other, in con- 
 tradiction or correction of the matters testified to by the deceased 
 witness. 
 
 Hyman and Mayer as makers and Kohn as endorser were sued 
 on a note, the defense being that Kohn paid no consideration, 
 etc. After Hyman only was served, trial was had, and he testi- 
 fied in his own behalf. After judgment against him he died. 
 Mayer was then summoned, under Code Pro. § 375, to show 
 -cause why he should not be bound by the judgment. On the 
 trial after his answer, his counsel read from the direct examina- 
 tion of Mayer on the first trial, the following : Q. " "What did 
 Kohn, the endorser, give you for the note ? " A. " Nothing, but 
 I paid for the note to Mr. Mayer." 
 
 Plaintiff then read in evidence the cross-examination of the 
 same witness upon the previous trial, wherein he testified that 
 Mayer was indebted to the witness in the amount of the note 
 upon a private account, for which the note was given. 
 
 The defendant then called Mayer as a witness to contradict the 
 evidence of Hyman as to the consideration of the note and was 
 asked this question by defendant's counsel : " You have heard 
 the testimony of Mr. Hyman which has been read in relation to 
 his giving you the money for this note ? " 
 
 A. " I have." 
 
 Q. " Is that correct ? " 
 
 Objected to as incompetent under the Code, objection sus- 
 tained, and exception taken. . 
 
 Benj. F. Carpenter, for defendant. 
 
 B. S. NewGomhe, for plaintiff. 
 
 Judgment was entered for plaintifE upon a verdict. 
 
I. Competency. (15) Against Estates of Decedents, etc.- (f). 225 
 
 Potts V. Mayer, 86 N. Y., 303. 
 
 The Superior Court at General Term affirmed the judgment, 
 being of opinion that it being conceded that the note liad, 
 with Mayer's assent, been executed, indorsed and delivered by 
 Hyman, the proposed testimony was incompetent under N. Y. 
 Code Civ. Fro., § 829. Nor did the testimony come within the 
 saving clause of that section, because Hyman was Mayer's own 
 witness. The exception made by that clause would have 
 applied only if the plaintiff upon the said question of value, 
 had been examined in his own behalf or had read the testimony 
 of Hyman as part of his case. 
 
 The Court of Appeals reversed the judgment. 
 
 Finch, J. [after stating the fads] : The offered evidence 
 was within the letter and the spirit of the exception in the Code 
 which permits such evidence to be given where the testimony of 
 the deceased person is given in evidence concerning the same 
 transaction or communication. (Code, § 829.) The obvious 
 intention of the statute is to preserve equality, and prevent 
 unfair advantage. The mouth of the survivor is closed because 
 the other party to the transaction is dead, and to allow the 
 living witness to speak, secure from the contradiction or correc- 
 tion of his adversary, is to give him an advantage manifestly 
 unfair, and dangerous to the truth. Such inequality and in- 
 justice does not exist, however, where the deceased party has 
 spoken and his statement of a transaction is pat in evidence. In 
 that event, to allow the dead man to speak through his 
 declarations while living, and deny the right of contradiction or 
 correction to the surviving party, would shift the unfair 
 advantage to those representing the deceased party, and it was 
 to obviate such injustice that the exception in the statute was 
 framed. The question is not, as the respondent states it, 
 whether a party can put in evidence the adverse statements of a 
 deceased party, and so open the door to his own version of the 
 same transaction. If that was, in truth, the question, we should 
 be very likely to feel the force of the respondent's argument in 
 favor of excluding the proposed contradiction. But here the 
 plaintiff himself read in his own behalf the cross-examination of 
 the deceased party, showing, what had nowhere else appeared 
 
226 Abbott's Select Cases on Examining Witnesses. 
 
 Potts V. Mayer, 86 N. Y., 303. 
 
 in the case, the existence of an indebtedness due from the' 
 defendant Mayer to Hynian, and which constituted the agreed 
 consideration of the note. By this proof of the sworn declara- 
 tions of the deceased, the plaintiff encountered the exception in^ 
 the Code, and exposed himself to the evidence of the defendant 
 Mayer as to the same transaction. The ruling which excluded 
 the offered proof was, therefore, erroneous. 
 
 The judgment should be reversed ; new trial granted, costs to- 
 abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 In Corning v. Walker, 100 N. Y., 547, an action brought by plaintiff as- 
 assig-nee to recover moneys loaned to defendant by a firm in which Erastus- 
 Corning, Si\ (who died before trial), and plaintiff were partners. 
 
 The defense was that the moneys were had by the defendant as pay- 
 ment for services and not as loans. 
 
 Plaintiff, as a witness in his own behalf, testified that neither he nor- 
 the company ever authorized any money to be advanced to defendant by 
 way of payment for services. 
 
 Upon ci, cross-examination by the defendant's counsel, the plaintiff 
 testified that he knew there could have been no arrangement between, 
 defendant and Corning, Sr., as to payment for defendant's services, from 
 what Corning, Sr., told witness. 
 
 Thereafter defendant on his own behalf offered to prove an arrange- 
 ment between Corning, Sr. , and himself. 
 
 This evidence was objected to and excluded as incompetent under sec- 
 tion 829 of the Code. — Held, no error. 
 
 Miller, J. [deciding the points, says]: "We think the testimony offered 
 was not competent on any such ground. The defendant was not required 
 to examine the witness in order to explain his testimony upon the direct ex- 
 amination, by introducing evidence as to the declarations of Mr. Corning, 
 Sr., and by doing so did not open the door to the introduction of conver- 
 sations had by him with a deceased person. Even if it may be assumed 
 that this testimony related to the same subject in regard to which the 
 plaintiff had given evidence, it was not given by the plaintiff in his own 
 behalf so as to authorize a contradiction ot the same. It was drawn out 
 on a cross-examination by the defendant's counsel, and cannot therefore 
 be considered to have been given on behalf of the plaintiJEf and for that 
 reason oonld not properly be contradicted. There is no rule which author- 
 izes a party to contradict evidence given by his adversary, as to a transac- 
 tion with a deceased person, which he has himself introduced, and the- 
 Oode does not provide for any such case. The testimony being introduced, 
 by the defendant himself, he was not authorized to contradict it by show- 
 ing an interview with a deceased party in relation to the same subject. 
 
I. Comjpetency . (15) Against Estates of Decedents, etc. (f). 22T 
 Pinnej' v. Orth, 88 N. Y., 447. 
 
 It may be added that it is not apparent that the introduction of tlie 
 books of the firm in connection with the testimony given by Erastus Corn- 
 ing, Jr., furnished any ground for the cross-examination of the witness in 
 reference to a conversation had between him and a deceased person, or 
 rendered the evidence offered competent for the purpose of exonerating 
 him from the liability established by the proof given. The testimony 
 offered was indefinite and did not of itself include any conversation with a 
 deceased party or purport to relate to the evidence which had been given, 
 and in this respect it was also liable to objection. 
 
 The case of Lewis v. Merritt (98 N. Y., 309), cited by the appellant, has 
 no application. 
 
 PINNEY V. OETH. 
 
 New YorJc Court of Appeals, 1882. 
 
 [Reported in 88 N. Y., 447.] 
 
 While a party cannot testify that any particular conversation testified to by 
 a witness as having taken place in his presence between the party and 
 the deceased did not take place, he is not precluded from testilying to 
 extraneous facts or circumstances which tend to show that such wit- 
 ness testified falsely, or that it was impossible that his statement can 
 be true, e. g., that the witness was nevei- present at the place speci- 
 fied when any conversation occurred between himself and the de- 
 ceased ; nor is such party precluded from testifying that the inter- 
 view did not occur at the place named by the witness, but in a differ- 
 ent place. 
 
 Plaintiff sued, as administratrix, to recover for services ren- 
 dered by lier intestate to the defendants as their attorney. The 
 facts are fully stated in the opinion. 
 
 Judgment was entered for plaintiff upon the report of a 
 referee. 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. 
 
 Kapallo, J. On the trial of this action John Streib, a witness 
 on the part of the plaintiff, and formerly the managing clerk of 
 plaintiff's intestate, testified to certain conversations between 
 plaintiff's intestate and the defendant Orth, material to the issues 
 in this case, at which conversations Streib stated he was present. 
 
228 Abbott's Select Cases on Examining Witnesses. 
 
 Pinney «. Orth, 88 N. Y., 447. 
 
 and that the conversations took place at the office of deceased. 
 The defendant Orth was called as a witness in his own 
 behalf, and the referee very properly refused to allow him to 
 testify as to what was said, or what was not said, between him 
 and the deceased at those interviews. Mr. Orth was then asked 
 whether he ever had any conversation with the deceased at his 
 office at which Streib was present, and at which Orth made cer- 
 tain statements to deceased, which Streib had testified to. 
 
 These questions were excluded and we think properly, because 
 they related to what was said between Orth and deceased, 
 and not merely to the fact of Streib's presence at an interview 
 between them. But the counsel for the defendants then asked 
 Orth whether or not he had a conversation with deceased, at 
 his office, at which Streib was present ; also whether Streib was 
 ever present with Orth in the office of the deceased, when the 
 deceased was looking up authorities in the case of Friend v. 
 Orth (a fact to which Streib had testified, and which was 
 relevant). 
 
 These questions were excluded and exceptions taken. Peter 
 Cook, another witness for the plaintiff, and his attorney in 
 this action, gave important testimony as to the services of de- 
 ceased and their value, and testiiied to twenty interviews and 
 conversations between Orth and deceased at which he said he 
 was present and which related to the sale of a distillery, for the 
 services of deceased in which matter, the plaintiS has been 
 allowed by the referee $2,600. Mr. Cook testified that deceased 
 had a dark room, and that there was also a large room ; that up 
 to the fifteenth or sixteenth of their conversations they all took 
 place in the large room, and witness was present at every one 
 of them ; that the sixteenth was had in the large room and the 
 eighteenth in the same room. Where the others were had did 
 not clearly appear, but the wdtness testified that Orth and de- 
 ceased did not sit in the dark room. 
 
 When Mr. Orth was on the stand he was asked whether Mr. 
 Cook was ever present with him and deceased at any conversa- 
 tion in regard to the distillery. This question was excluded, 
 but was afterward answered. He was afterward asked whether 
 he had daily meetings with deceased, at which Cook was present 
 
I. Competency. (15) Against Estates of Decedents, etc. (f). 229' 
 
 Pinney v. Oi-th. 88 N. Y., 447. 
 
 (Mr. Cook having testified to sucli meetings), and this was ex- 
 cluded. He was asked in which room at the office of deceased 
 he had conversations with him ; this was excluded, and the 
 question whether deceased saw him in the dark room, was also 
 excluded. 
 
 We think the referee went too far in excluding the inquiries 
 above referred to. Section 829 of the Code prohibits the 
 examination of a party as a witness in his own behalf against the 
 executor, etc., of a deceased person " concerning a personal 
 transaction or communication between the witness and the 
 deceased person. " It is contended that the purpose of this 
 prohibition is, in all cases where a personal transaction between 
 a surviving party and the representatives of a deceased party 
 comes in question, to confine the survivor to such evidence con- 
 cerning the transaction as was admissible at common law ; and 
 that, consequently, if a competent witness testifies to such a 
 transaction the survivor is not only prohibited from contradicting 
 him directly, but is also precluded from contradicting liim in- 
 directly, by testifying to facts which tend to show that his testi- 
 mony is not true ; for it is claimed that any testimony which 
 bears upon the question whether or not the transaction testified 
 to took place, is testimony concerning the transaction, and the 
 surviving party is not a competent witness on that subject, but 
 must rely wholly on common law evidence. 
 
 We cannot assent to this construction of the section. By 
 other provisions of the Code, parties to actions are declared to be 
 competent witnesses in their own behalf, and the special prohibi- 
 tion contained in section 829 is an exception to the general rule. 
 The primary intent of this prohibition is very apparent, and is to 
 prevent a surviving party from proving, by his own testimony, 
 a personal transaction or communication between himself and a 
 deceased person, which, but for the prohibition, he might do 
 without fear or possibility of contradiction. The language of 
 the prohibition is sufficiently broad to prohibit the survivor from 
 testifying that any particular communication or transaction did 
 not take place, personally, between himself and the deceased, but 
 there we think the prohibition ends, and that it does not preclude 
 the survivor from testifying to extraneous facts or circumstances,. 
 
230 Abbott's Select Cases on Examining Witnesses. 
 
 Pinney v. Orth, 88 N. Y., 447. 
 
 which tend to show that a witness who has testified affirmatively 
 to such a transaction or communication has testified falsely, or 
 that it is impossible that his statement can be true, as, for instance, 
 that the survivor was at the time absent from the country where 
 the transaction is stated to have occurred, and that so long as the 
 survivor refrains from testifying as to anything that passed, or did 
 not pass personally between himself and the deceased, it is not a 
 valid objection to his testimony that the facts which he states 
 bear upon the issue, whether or not the personal transaction in 
 question took place, or upon the truth of the testimony by which 
 such transaction is sought to be proved against him. 
 
 We think that Mr. Orth for instance was competent to testify 
 that he was not in the city of New York at the time referred to 
 by the witness, or that the witness was at some other place, or that 
 he never met the Mdtness at the office where the conversations 
 are alleged to have occurred, and on the same principle we see no 
 reason why he should not have been allowed to testify that the 
 witness was never present at that office when any conversation 
 took place between Mr. Orth and the deceased, so long as he re- 
 frained from testifying as to anything that was or was not said 
 between him and the deceased. 
 
 The fact that the interviews between the party and the de- 
 ceased did not occur at the place named by the witness, but in a 
 different room, we think was an independent fact, inquiry as to 
 which did not trench upon the rule. It was not testimony as to 
 the transaction itself, but as to the fact, whether the witness saw 
 the party and the deceased together at the place named by the 
 witness. A party surely ought to be allowed to testify that he 
 never was in a particular house, or room, or never met the witness 
 or the deceased there, for the purpose of contradicting the wit- 
 ness who testifies to a transaction between them at that place. 
 
 [A ruling on the materiality of the evidence is omittedJ] 
 
 The judgment should be reversed, and a new trial ordered, 
 <;osts to abide the event. 
 
 All concur ; except Eael and Danfoeth, J J. , M^ho dissent 
 as to admissibility of Orth's testimony regarding a conversation 
 lie had with deceased in presence of Streib. 
 
 Judgment reversed. 
 
\. ComjMe-ncy. (15) Against Estates of Decedents, etc. (f). 231 
 Note on Opening Door. 
 
 KOTES OF OTHEE RECENT OASES ON OPENING 
 
 THE DOOE. 
 
 Georgia : Skelton v. Richardson, 77 Ga., 546 (testimony of defendant's 
 ^vitness as to paj'ments by defendant's intestate cannot be rebutted by 
 plaintiff's testimony). Rudolph v. Underwood, 88 Ga., 664; s. c. 16 South- 
 ■east. Rep., 55 (where plaintiff testifies that no payment was made to a 
 deceased person in her presence, defendant is not a competent witness to 
 prove payment to deceased, unless he testifies that it was not made in 
 presence of plaintiff). Indiana : Allen v. Jones, 1891, 27 Northeast. Rep., 
 116 (plaintiff cannot testify in rebuttal as to what took place at an inter- 
 view between himself and decedent concerning which a witness has testi- 
 fied lor the defense), Maryland: Webster v. Le Compte, 1891, 22 
 Atlantic Rep., 332 (where witnesses for defendant, and administrator, have 
 testified as to conversations with plaintiffs, plaintiffs are incompetent to 
 testify in rebuttal as to such conversations). Michigan: Dunlap v. Dun- 
 lap, 94 Mich. 11 (where heirs interrogate the adverse party as to matters 
 .equally within the knowledge of deceased, the witness may testify in 
 explanation of the matters drawn out). Minnesota: Redding v. Godwin, 
 44 Minn., 355 ; s. c. 46 Northwest. Rep., 355 (where disinterested witnesses 
 testify as to the fraudulent representations made by defendant to deceased, 
 defendant cannot testify that in conversations referred to by the witnesses 
 he did not make such representations). Missouri: Allen v. Choteau, 103 
 Mo., 309; s. c. 14 Southwest. Rep., 869 (where a testator's deposition is 
 introduced, the adverse party may testify only as to matters covered by 
 the deposition, and no further). Hayden v. Grill, 43 Mo. App., 1 (where 
 testimony of a person, since deceased, taken on a former trial, is received 
 in evidence on a second trial, an objection that the adversaries' testimony 
 ^ives a different version must be specifically taken). Stone v. Hunt, 1893, 
 21 Southwest. Rep., 454 (where the testimony of a deceased party on a 
 former trial is preserved, the opposite party may testify as to the matters 
 to which the testimony of the deceased party relates, though such testi- 
 mony has not been introduced in evidence by the representative of 
 deceased. Nebraska: American Savings Bank v. Harring-ton, 1893, 33 
 Northwest. Rep., 376 (where deceased's representatives call out a part of a 
 transaction with deceased on direct examination, the opposite party, on 
 cross-examination may examine as to the whole). Neiv Jersey: Matthews 
 V. Hoagland, 1891, 31 Atlantic Rep., 1054 (if executor testifies as to trans- 
 actions with deceased, the other party may be a witness as to all trans- 
 actions or statements of deceased pertinent to the case). Joss v. Mohn, 
 N J L 1898, 36 id., 987 (plaintiff, by calling defendant as a witness as to 
 transactions with and statements by deceased, does not thereby acquire 
 competency himself to testify as to such matters). Neiv York : Weston 
 V Reich, 7 N. Y. Supp., 784 (the cross-examining of defendant as to the 
 contents' of a letter from plaintiff since deceased, does not enable defend- 
 
232 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Opening Door. 
 
 ant to testify as to conversations with plaintiff preceding the writing). 
 De Varry v. Schuyler, 8 id., 231 (though executor testified that testator's- 
 signature to a note was not genuine, defendant cannot testify that he 
 received the notes from deceased). Davis v. Gallagher, 9 id., 11 (where 
 deceased's representative testifies as to a transaction between deceased 
 and the opposite party the latter may also testify in relation thereto) ; 
 a. p. Wilcox V. Corwin, 117 N. Y., 500; s. c. 33 Northeast. Eep., 165;, 
 Matter of Bedlow, 67 Hun, 408 ; s. c. 23 N. Y., Supp., 290 (the examination 
 of the mother of beneficiary as to a transaction with deceased, she not 
 being an interested party, does not entitle the adverse party to testify in 
 relation thereto). McMurray v. Ennis, 14 N. Y., Supp. 635 (permitting a 
 party to testify as to transactions with deceased does not prevent a subse- 
 quent objection to further testimony as to such transaction) ; Blankman 
 V. McQueen, 13 id., 663 (on redirect examination, an interested witness 
 may testify as to a transaction with deceased, if on cross-examination he 
 was questioned on the subject by the administrator's counsel) ; Harring- 
 V. Winn, 14: id., 612 (the answering by executrix on cross-examination as to 
 testator's conversation with plaintiff does not enable plaintiff to testify as 
 toil); Brown v. Burgett, 15 id., 943 (in an action for the price of land 
 deceased's assignee testified that plaintiff had told him that deceased had 
 paid for the land by transferring to plaintiff a contract for the purchase of 
 certain other lands; held, that this did not permit plaintiff to deny that he 
 took such transfer in payment) ; Hard v. Ashley, 18 id., 413 (proof of 
 transaction with deceased by a disinterested witness does not authorize an 
 mterested party to give his version). North Carolina: Hopkins v. Brown, 
 108 N. 0., 298; 12 Southeast. Rep., 984 (to prove meretricious union and 
 illegitimacy, heirs produced deceased's alleged widow and children to 
 show that they had negro blood ; held, that this did not make the woman 
 a competent witness as to her marriage with deceased). Rhode Island : 
 Bowen v. Bowen, R. I., 1893, 24 Atlantic Rep., 714 (where opposite party 
 calls defendant to account, his account under oath may be received, 
 though it relates to transaction with deceased). 
 
II. Questions, Objections, Offers and Answers. 233 
 Moody V. Rowell, 17 Pick., 490. 
 
 MOODY V. EOWELL. 
 
 Supreme Court of Massachusetts, 1835. 
 
 [Reported in 17 Pickering, 490.] 
 
 Leading questions may in the discretion of the court be put to a witness 
 on cross-examination, although relating to matters not inquired of 
 upon the direct examination. 
 
 Assumpsit on a promissory note. 
 
 The defense rested on the ground that the signatures of the 
 defendant and of the payee were forged. 
 
 Henry H; Brown was called as a witness by the defendant 
 and examined as to the handwriting of the payee. On cross- 
 examination by plaintiff, as to defendant's handwriting, one of 
 the questions was objected to as leading. The objection was 
 sustained and the plaintiJBf not permitted to cross-examine the 
 witness as to the defendant's signature, he not having been ques- 
 tioned on that subject by the defendant. 
 
 At the trial, a verdict was rendered for the defendant. 
 On exceptions to several rulings as to admission of evidence, 
 the plaintiff moved for a new trial. 
 
 The Supreme Court declared the plaintiff entitled to a new 
 trial. 
 
 Shaw, C. J. [after considering other points] : The court 
 have no doubt, that it is within the discretion of a judge at the 
 trial, u^der particular circumstances, to permit a leading question 
 to be put to one's own witness, as when he is manifestly reluc- 
 tant and hostile to the interests of the party calling him, or 
 where he has exhausted his memory without stating the partic- 
 ular required, where it is a proper name, or other fact, which 
 cannot be significantly pointed to by a general interrogatory, or 
 where the witness is a child of tender years, whose attention can 
 be called to the matter required only by a pointed or leading 
 
234 Abbott' s Select Cases on Examining Witnesses. 
 
 Moody V. Rowell, 17 Pick., 490. 
 
 question. So a judge may, in his discretion, prohibit certain 
 leading questions from being put to an adversary's witness, 
 where the witness shows a strong interest or bias in favor of 
 the cross-examining party, a,nd needs only an intimation, to say 
 whatever is most favorable to that party. The witness may 
 have purposely concealed such bias, in favor of one party, to 
 induce the other to call him and make him his witness ; or the 
 party calling him may be compelled to do so, to prove some 
 single fact necessary to his case. This discretionary power to 
 vary the general rule, is to be exercised only so far as the pur- 
 poses of justice plainly require it, and is to be regulated by the 
 circumstances of each case. 
 
 But upon the question, whether, as a general rule, the cross- 
 examining party is prohibited from putting a leading question, to 
 a matter not inquired of by the party calling him, on his exam- 
 ination in chief, there is a diversity of opinion. It was held by Mr. 
 Justice Washington, that such question could not be put. (Har- 
 rison V. Eowan, 3 Wash. C. C. E., 580.) This is a very respect- 
 able authority and entitled to great consideration. But in the 
 case cited, the nature of the question, and the circumstances 
 under which it was put, are not stated, no argument was had, 
 and no authority cited. The same view seems to have been taken 
 by the Supreme Court of Pennsylvania. (Ellmaker v. Buckley, 
 16 Serg. & Eawle, 77.) But we think the general practice has 
 been otherwise both in England and in this state, and is so laid 
 down by the compilers. (1 Starkie on Ev. (-ith Am. Edit.), 131 ; 
 1 Phillips on Ev. (6th Edit.), 260.) 
 
 There is one authority directly in point, where the objection 
 was taken, and it was decided by Lord Kenyon, at nisi prius 
 that such leading question is admissible. (Dickinson v. Shee, 
 4 Esp. Cas., 67.) So, in several recent cases, it has been held that 
 where a witness is called to a particular fact, he is a witness to 
 all purposes, and may be fully cross-examined to the whole case, 
 and no distinction is suggested as to the mode of examination. 
 (Morgan v. Brydges, 2 Stark. E., 314 ; Eex o. Brooke, Hid., 472.) 
 
 On the whole, the court are of opinion, that the weight of 
 authority is in favor of the right to put leading questions, under 
 the circumstances stated, and that this is confirmed by practice 
 
II. Questions, Objections, Offers and Answers. 235 
 
 Cheeney v. Arnold, 18 Barb., 434. 
 
 and experience. It is most desirable that rules of general prac- 
 tice, of so much importance and of such frequent recurrence, 
 should be as few, simple and practical as possible, and that dis- 
 tinctions should not be multiplied without good cause. It would 
 be often difficult, in a long and complicated examination, to de- 
 cide whether a question applies wholly to new matter, or to 
 matter already examined to in chief. The general rule admitted 
 on all hands is, that on a cross-examination, leading questions may 
 be put, and the court are of opinion, that it would not be useful 
 to engraft upon it a distinction not in general necessary to attain 
 the 23urposes of justice, in the investigation of the truth of facts, 
 that it would be often difficult of application, and that all the 
 practical good expected from it may be as effectually attained 
 by the exercise of the discretionary power of the court, where 
 the circumstances are such as to require its interposition. As 
 this was laid down as the general rule of law, the court are of 
 opinion, that upon this ground, the plaintiff, if he shall be so ad- 
 vised, is entitled to have a new trial. 
 
 CI-IEENEY V. ARNOLD. 
 
 Supreme Court of New Yorlc, 1851^,. 
 
 [Reported in 18 Barb., 434.] 
 
 The judge has a discretionary power to permit leading questions to be 
 put to a witness on direct examination so far as justice plainly re- 
 quires under the circumstances of the case. 
 
 So held where the draftsman of a will had in the course of years become 
 so blind that he could not scrutinize the writing. 
 
 The plaintiffs, to maintain their action, proved title to the 
 premises in question in Charles Harris at the time of his death ; 
 that he died in the year 1S28, leaving Betsy Harris, his widow, 
 and Phila Cheeney [plaintiff], his only child, him surviving ; 
 that the widow had since married a Mr. Pike, and that the 
 defendant had lived on said premises nearly twenty years. After 
 making this proof the plaintiffs rested. 
 
 The defendant, in order to establish the last will and testa- 
 ment of Charles Harris, deceased, introduced the testimony of 
 
236 Abbott's Select Cases on Examining Witnesses. 
 
 Cheeney v. Arnold, 18 Barb., 434. 
 
 Barnabas Brown, taken conditionally, after iirst proving that 
 the witness was about ninety years of age, and so infirm as to be 
 unable to attend the trial. It appeared by the testimony of the 
 witness, that he had lived in the town of New Berlin for the 
 period of about fifty years ; that he was nearly blind ; that he 
 was acquainted with Charles Harris in his lifetime, and wrote 
 his last will and testament for him, and saw him sign it and 
 witnessed its execution, with Mr. De Long and Mr. Steere ; that 
 he wrote the will according to the directions of the testator, and 
 read it over to him as he wrote it ; that the witnesses subscribed 
 their names in the presence of the testator and in presence of 
 each other. It appeared that the witness De Long was dead. 
 
 Questions put to the witness Brown were objected to by 
 plaintiff, as leading, the answers nevertheless being admitted. 
 
 At Circuit, verdict was rendered for the defendant. 
 Plaintiff appealed on several grounds, among them, the per- 
 mitting of leading questions to be put to the witness Brown. 
 
 The General Term affirmed the judgment. 
 
 Ckippen, p. J. [after stating thefaGts\ : No error was com- 
 mitted by the defendant's counsel in the manner of putting 
 questions to the witness Barnabas Brown, under the circumstances 
 of the case. Length of years had so far obscured his vision as 
 to render him unable to discover his own handwriting on the 
 paper containing it. It was therefore entirely legal and proper 
 to direct his attention to the will and to the fact that he had 
 written it for Mr. Harris, and also to all the principal facts 
 ordinarily occurring upon the transaction of such business. It 
 was not pretended that the witness was merely imbecile, or that 
 he was not fully competent to comprehend the force and effect 
 of the questions put to him ; he could not look at and discern 
 the instrument ; he could not, from an examination of it, know 
 or ascertain the names of, or who were the attesting witnesses to 
 its execution; nor could he discover the manner and form 
 of execution of the testator. Under such circumstances it was 
 not improper to allow questions in a leading form to be put to 
 the witness, in the manner adopted in this case. 
 
II. Questions, Objections, Offers and Answers. 237 
 
 People V. Mather, 4 Wend., 229. 
 
 Where a witness has become blind, a writing may even be 
 read over to him to refresh his recollection. (1 Greenl. Ev., 
 § 439.) Leading questions are permitted, even in a direct ex- 
 amination, where an omission in the witness' testimony is 
 evidently caused by a want of recollection, which a suggestion 
 may assist. {Id. § 435.) It is within the discretion of the 
 judge, at the trial, under particular circumstances, to permit 
 leading questions to be put to a witness. This discretionary 
 power to vary the general rule should be exercised only so far 
 as the purposes of justice plainly require it; and must be 
 regulated by the circumstances of the case. (Moody v. Eowell, 
 17 Pick., 498.) We do not discover in the case at bar that the 
 judge in any manner abused the discretion vested in him, hy 
 allowing leading questions to be put to the witness Brown. 
 
 The judge charged the jury, that if the will of Charles Harris 
 was established by satisfactory evidence, it entitled the defend- 
 ant to a verdict in his favor. The testator devised the farm in 
 question to his wife, with power to sell and convey the same. 
 The whole proof upon the question of the due execution of the 
 will was properly submitted to the jury to pass upon. We have 
 no doubt that the testimony was sufficient to go to the jury, and 
 the verdict in favor of the due execution of the will should not 
 be disturbed. 
 
 \_Here folloioed a consideration of other ^points not relevant to 
 our present inquiry.] 
 
 Judgment affirmed. 
 
 PEOPLE V. MATHEK. 
 
 JSfew York Supreme Court, 1830. 
 
 [Reported in 4 Wend., 339.] 
 
 A question is leading which puts into the witness' mouth the words to be 
 echoed back, or plainly suggests the answer desired from him. 
 
 Where the witness appears to be in the interest of the adverse party, it is 
 proper to permit the direct examination to take the character of cross- 
 examination in this respect. 
 
 A question which relates to introductory matter and is designed to ex- 
 pedite the witness to what is material to the issue, is allowable 
 although it be leading. 
 
238 Abbott's Select Cases on Examining "Witnesses. 
 People V. Mather, 4 Wend., 229. 
 
 Putting a question in the alternative form, does not render it less objec- 
 tionable as leading'. 
 
 Putting a question which assumes a fact to be in evidence which is not, is 
 not allowable, even on cross-examination. 
 
 Action on an indictment against defendant as a conspirator in 
 the abduction of William Morgan. 
 
 Benjamin Wright, a witness, called in behalf of the prosecu- 
 tion, after detailing with much particularity, a conversation with 
 the defendant about the abduction of Morgan, said he had given 
 all the conversation on the occasion referred to, which he could 
 recollect in words or in substance. 
 
 The public prosecutor then proposed to ask the witness, 
 whether or not /*<?, in siibstance or effect, addressed the defendant 
 as one of those concerned in the transaction. 
 
 This question being objected to and overruled, it was varied, 
 and the witness was asked how he addressed the defendant vn 
 respect to his ieing one of the persons concermed. 
 
 This question was also objected to and overruled, exceptions 
 being taken to both decisions. 
 
 At Circuit the defendant was acquitted, and the prosecution 
 moved for a new trial. 
 
 The Supreme Court at General Term denied the motion for 
 a new trial. 
 
 Maecy, J. [considering the questions put to the witness, Wright'] : 
 Considerable discretion is left to a judge who presides at a trial 
 to regulate and control the examination of witnesses, and this 
 court are cautious to avoid encroaching upon the proper exercise 
 of this discretion. If, however, an established rule of law has 
 been violated, the party injured has an undoubted right to relief, 
 and the court feel no reluctance in such a case to grant it. 
 
 It is a mistake to sup|jose that such only is a leading question, 
 to which yes or no would be a conclusive answer. A question is 
 leading which puts into a witness' mouth the words that are to 
 be echoed back, or plainly suggest the answer which the party 
 wishes to get from him. (1 Stark. Ev., 124). It is often a matter 
 of extreme difficulty to distinguish such questions as ought not 
 to be tolerated because they are leading, from those which, 
 
II. Questions, Objections, Offers and Answers. 23;t 
 
 People V. Matlier, 4 Wend., 329. 
 
 though in their form leading, are in effect only calculated to 
 draw the mind of the witness to the subject of inquiry. * 
 
 In passing on these questions, the court are to regard in some 
 measure the inclinations of the witnesses as well as the subject 
 matter to which the question relates, If it is apparent that the 
 witness is in the interest of the adverse party, the court will be 
 justified in going so far as to permit the direct examination to 
 take the character of a cross-examination. If the question relate 
 to introductory matter, and be designed to lead the witness with 
 the more expedition to what is material to the issue, it ip captious 
 to object to it, even if it be leading. The pernicious influence 
 of leading questions is most felt and to be feared when the object 
 of inquiiy is, to ascertain the details of a conversation, admission 
 or agreement ; and therefore more rigor is called for and jus- 
 tified in confining the direct examination in such cases to its ap- 
 propriate rules. There is an essential difference between a direct 
 examination and a cross-examination ; and the court ought not, 
 except in peculiar cases, to permit the former to assume the char- 
 acter of the latter. The grounds on which the judge proceeded 
 in overruling the questions proprosed to be put to the witness, 
 Wright, must have been, I presume, that they were leading, or 
 that the party by whom he was called were subjecting him to a 
 cross-examination. It is quite evident that the witness' memory 
 as to the conversation was exhausted before those questions were 
 proposed. The first appears to me to be a leading question. I 
 consider it no more nor less than asking the witness if he ad- 
 dressed the defendant as one of the abductors of Morgan. This 
 seems to me to be very similar to asking a witness, after he had 
 testified to all he kneAv as to the contents of a letter, if it had in 
 it anything about the writer being offered a certain price for a 
 special article of merchandize. Such a question is admitted by 
 
 *In People v. Parish, 4 Deaio, 153, where an indictment for cheating by- 
 false pretences, alleged that the defendant had falsely represented one 
 Miner of the town of Pike, to be responsible for a sum of money, it was 
 held, that for the public prosecutor to ask a witness examined for tlie 
 prosecution this question, though objected to as leading: " Had Miner 
 absconded from Pike in July, 1842?" was improper for the reason stated 
 in the objection, it plainly suggesting to the witness the answer desired 
 from him by the district attorney. 
 
240 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Mather, 4 Wend., 339. 
 
 Lord Ellenborough to be a leading one. (Courteen v. Touse, 
 1 Campb., 43.) The question in that case was allowed to be put 
 to the witness by the party calling him, but it was for a partic- 
 ular reason which does not exist in this case. If the question 
 put to Wright had been in the direct instead of the alternative 
 form, it would clearly have been exceptionable ; but by putting 
 it in the alternative, the effect of it was not changed. As it was, 
 it jjlainly suggested to the witness the answer which the party 
 wished to get from him. It therefore conformed to the very 
 definition of a leading question. 
 
 After the question was overruled it was varied, and so varied, 
 I think, as to assume the fact as true, wliich it was the object of 
 the question to prove. It assumed that the witness did address 
 the defendant as one of the persons concerned in carrying off 
 Morgan, and only asked him to tell the manner of the address. 
 In this respect I hold the second question objectionable. Even 
 on cross-examination it is not allowable to put a question which 
 assumes a fact proved which is not. (1 Stark. Ev., 133.) 
 
 If I had serious doubts as to the correctness of the judges' 
 decisions on these questions I should feel inclined to hesitate 
 before granting a new trial. There should be a reasonable ex- 
 pectation that something will be gained by a further examination 
 of the witness; such an expectation can scarcely be indulged 
 here. It is conceded that the witness in this case was intelligent, 
 and it was not pretended that he manifested the least reluctance 
 to disclose whatever he knew ; his memory was exhausted as to 
 the details of his conversation with the defendant, so much so 
 that he declared he had stated in words or in substance all he 
 could recollect. The experiment of submitting such a witness 
 to a sifting cross-examination holds out but a faint hope that 
 more truth would be elicited from liim; but the right thus to 
 examine him does not exist in this instance. 
 
 \_Here followed a disou-tsion of other questions, not relevant to 
 our present inquiry. '\ 
 
 Motion for new trial denied. 
 
 Note.— In WilliaiBS v. Eldridge, 1 Hill, 349, the third direct interroga- 
 tory annexed to the commission was as follows : " Look upon the annexed 
 aoouat marked B., and declare how and which of said articles, mentioned 
 
II. Questions, Objections, Offers and Answers. 241 
 
 [Roy V. Targee, 7 Wend., 359.] 
 
 in said account, were sold and delivered by the saidplaintilTs to the de- 
 fendant?" To which the answer was thus; "I have examined the annexed 
 account marked B., and from the defendant's own acknowledgment, he 
 bought and received from the plaintiffs all the articles therein charged." 
 The fourth and fifth direct interrogatories were as follows : 
 
 "Is the account correct, and is it a true copy and extract from the 
 mercantile books of said plaintiffs'?" — "Did you exhibit a copy of the ac- 
 count to the defendant, and did he admit it to be correct?" To each of these, 
 the witness answered affirmatively, giving dates, circumstances, &c. 
 
 The Court, Cowen, J. [as to this question said] : The account was 
 properly put in the hands of the witness ; for, the object of the interroga- 
 tories was to prove, among other things, that the defendant had acknowl- 
 edged its correctness. 
 
 But we think the court erred, in deciding that the interrogatories were 
 proper to be put to the witness. It is scarcely denied that they were 
 leading, being calculated throughout to instruct the witness in what the 
 plaintiffs desired him to answer. 
 
 Judgment reversed. 
 
 ROY V. TAKGEE. 
 
 JVew York Supreme Court, 1831. 
 
 [Reported in 7 Wend., 359.] 
 
 It rests in the discretion of the judge, to require the counsel to state the 
 substance of the evidence about to be offered by him, so as to enable 
 the judge to determine as to its materiality and relevancy; and the 
 exercise of such discretion is not to be revised by a covu-t of review. 
 
 Certiorari to General Sessions of New York. An order of lilia- 
 tion having been made and appealed from, tlie counsel for the 
 appellant on the hearing of the appeal called several witnesses. 
 The court required him to state what he expected to prove by 
 them, so that they might judge of the materiality of the evi- 
 dence proposed to be given, and he refusing so to do, except in 
 general terms, the court refused to have the witnesses sworn. 
 
 The Supreme Court affirmed the order of the General Sessions. 
 
 Nelson, J. {on the point in qii.sstion'] : As to the refusal to hear 
 the testimony offered, the sessions, from the belief that there 
 was a disposition to protract unnecessarily the examination on 
 the part of the appellant, called on his counsel to state to them 
 the substance of what he intended or expected to prove. This 
 
242 Abbott's Select Cases on Examining Witnesses. 
 
 Lansing- v. Coley, 13 Abb. Pr., 373. 
 
 the counsel declined, and the court refused to hear the witnesses 
 until he did ; the counsel did not decline to comply with the 
 order of the court on account of his inability to do so, and it is 
 stated in the return that all the witnesses thus offered, had been 
 examined before the justices. It undoubtedly rests in the dis- 
 cretion of every court, in the trial of causes, to require of the 
 counsel to state the substance of the evidence about to be offered 
 by him. The reason of the rule is obvious, it^is to ascertain 
 whether the evidence is competent and pertinent to the issue or 
 issues to be tried, and thereby prevent the introduction of irrel- 
 evant and improper testimony, and to facilitate the trial. In 
 the sound exercise of this discretion, courts should always listen 
 to reasons offered for not making a full disclosure before the 
 examination, and give them their due weight. Many times it is 
 unadvisable to apprise the witnesses about to be examined of the 
 facts expected to be proved ; the counsel may not be sufficiently 
 advised of the facts himself— these or any other sufficient 
 reasons for not enforcing the rule, the court take upon sugges- 
 tion of counsel. In this case no sufficient, nor indeed any 
 reasons whatever, were given by the counsel for withholding 
 from the court the facts expected to be proved by the witnesses, 
 and we therefore think the sessions were right in rejecting them. 
 
 Note. — As to general offers see Pepin v. Lachenraeyer, 45 N. Y., 37; 
 and Tochman v. Brown, 33 New York Super. Ct. (J. and S.), 409, 413, 431. 
 
 LANSING w. COLEY. 
 
 JV^ew York Supreme Court, Third District; Oentral Term-, I860.. 
 
 [Reported in 13 Abb. Pr., 373.] 
 
 An answer to an interrogatory, under a commission, which is not respon- 
 sive to the interrogatory, may be objected to by eitlier partjr on the- 
 trial,* and must be excluded. 
 
 The action was brought upon several promissory notes indorsed 
 by the defendant. The answer which was veritied, denied notice- 
 of dishonor. A commission was issued for the examination of a 
 
 * By the preeent practice in respect to depositions, the remedy in such cases Is to. mov.e: 
 before trial (Fassin v. Hubbard, 55 X. Y., 465). 
 
II. Questions, Objections, Offers and Answers. 243 
 
 Lansing v. Coley, 13 Abb. Pr., 372. 
 
 witness, who had been a partner with the plaintiff ; and to an 
 interrogatory of the defendant asking when the partnership was 
 dissolved, and under what circumstances, the witness answered, 
 " There has never been any regular dissolution-papers drawn up, 
 except when I got into trouble and then the plaintiff brought me 
 a paper to sign, so it could be published that we had dissolved 
 partnership." On the trial the plaintiff objected to this answer, 
 and it was excluded. 
 
 Ji. A. Parmenter for appellant, insisted that only the party 
 asking a question of a witness can object if the answer is not 
 responsive. 
 
 J. Romeyn and A . B. Olin, for respondent. 
 
 By the Court : Gould, P. J. (Hogeboom and Bockes, JJ.) 
 The only question in this case which is of general importance, 
 arises upon the defendant's exception to the exclusion of part of 
 an answer to the seventh interrogatory put to "William Lansing. 
 The excluded part of the answer is plainly — and the defendant's 
 counsel in his argument concedes it to be^not responsive to the 
 interrogatory, but he says that the party putting the question is 
 the only one who can object to the answer on that ground. 
 That is to say, a party who knows that he has a willing witness, 
 can shape his interrogatory so as to touch an entirely proper 
 matter ; and one about which the opposite party has no desire to 
 propose a cross-interrogatory, and after answering what is asked, 
 the witness can volunteer an entirely distinct piece of evidence, 
 not even hinted at in the question, and the party to be injured 
 by it is not at liberty to object to the evidence so impertinently, 
 and it may well be fraudulently put in. The claim is too bald 
 to be entertained for a moment. The ruling at the circuit was 
 clearly right. 
 
 [^Rulings on other points are omitted.'] 
 
 Judgment affirmed. 
 
III. Facts, not Conclusions. (1) General Principle. 245 
 Note on the distinction between facts and conclusions. 
 
 NOTE ON THE EULE THAT A WITNESS MUST 
 TESTIFY TO FACTS, NOT CONCLUSIONS. 
 
 Considered with respect to mental certainty, there are three qualities 
 or classes oC testimony : 
 
 1. Testimony to having observed perceptible facts. The foundation 
 of this is perceptive knowledge, and this knowledge of a fact, once 
 acquired, should be certain and unchangeable, although fading with the 
 lapse of time. This includes observations which involve some exercise of 
 judgment, if its exercise was in the very act of observation, as distinguished 
 from a resulting process of deduction. But the law recognizes and makes 
 due allowance for the existence of fertile sources of deception of the 
 senses, such, for instance, as the influence of great fear, or the optical 
 illusion as to which of two vehicles or vessels, on one of which the witness 
 was, was in motion, etc. See The Ship Marcellus, 1 Black, 418 ; McNally 
 V. Meyer, 5 Ben., 239 ; The Laura, 14 Wall., 343. 
 
 3. Testimony to matter of opinion, whether of skill or experience, 
 i. e., whether it be that of scientific experts, or that of common experi- 
 ence in the daily affairs of life upon which ordinary witnesses may speak, 
 such as whether a person was intoxicated, or whether a couple were sin- 
 cerely attached to each other. See cases following. 
 
 3. Belief or inference, such as the mind forms by its own secondary 
 processes. This the law recognizes as uncertain ; not only easily simu- 
 lated by a dishonest witness, and difficult, if not impossible, to be tested ; 
 but fluctuating and reversible in the mind of an honest witness, by pro- 
 cess of reflection without new knowledge, and the constant production of 
 even unnoticed shades of mental derangement. All mental delusions are 
 of this class. The law excludes all testimony of this class with two 
 exceptions : 1. Belief or inference may be competent where the intent of 
 the same person is material. See, for instance, Hamilton v. People, 57 
 Barb., 625; Goodmans. Stroheim, 36 Super. Ct. (J. & S.), 216; Farnam 
 V. Feely, 56 N. Y., 451. 3. In some cases the belief or impression produced 
 on a witness' mind at the time of the occurrences to which he speaks, is 
 admitted as giving the necessary and proper color to his testimony to the 
 occurrence, as circumstantial evidence. See, for instance, Fraiser v. 
 Fraser, 5 Notes of Eo. Cas. 11, 34; Faussett v. Faussett, 7 Notes of Ecc. 
 and M. Cas., 88; Davidson v. Davidson, 1 Dean and 8. Ecc, 133; s. c. 
 3 .Jur. N. S., 577 But in both these exceptional classes of cases it is never 
 the present behef of the witness that is received, it is the belief concur- 
 rently existing with the incident of which he speaks, or then instantly 
 produced in his mind, and so connected with the incident as to form, so as 
 to speak, the mental part of the res gestae. 
 
246 Abbott's Select Oases on Examining Witnesses. 
 Notes of Cases on General Rule. 
 
 The present belief of a witness, sometimes inquirable into on cross- 
 examination, is heard, not because it has any competency on the issue, 
 but, if at all, because it is a proper mode of probing- the mind of the wit- 
 ness and testing" his capacity and consistency. But even the fact that a 
 witness has at different times expressed contradictory opinions as to the 
 guilt or innocence of the one who is accused does not involve any very 
 serious impeachment of credibility as to the tangible facts testified to. 
 (Atkinson v. Atkinson, 3 Addams, 4S4.) 
 
 The distinction between "impression," or uncertain recollection of 
 facts and belief or inference, is one of kind, not of degree. The former is 
 faint or partly obliterated memory, and is competent ; the latter is a 
 secondary mental impression by deduction and is not competent (unless 
 in the cases stated above), however distinct and positive. See Clark v. 
 Bigelow, 16 Me. , 246 ; Humphreys v. Parker, 53 id., 503 ; State v. Flanders, 
 S8 N. H., 343. 
 
 NOTES OF CASES ON" THE GENEEAL EULE ; 
 OPINION AS TO OEDINAEY AFFAIES. 
 
 Alabama: Brinkley v. State, 89 Ala., 84; s. c. 8 Southern Rep., 23 (on 
 trial for homicide, a witness cannot testify that a dance in which de- 
 ceased was engaged was indecent). McCalman v. State, 1893, 11 Southern 
 Rep., 408 (a witness cannot state his conclusion whether or not a room in 
 which gambling was carried on, was or was not a private bedroom). Con- 
 necticut: Spencer I). N. Y. & New Eng. R. Co., 63 Conn., 343; s. c. 25 
 Atlantic Rep. , 350 (testimony that the use of land adjoining a railway 
 station by the public was a convenience and necessity is competent upon 
 an issue whether such land constitutes a part of a public way where the 
 witness is familiar with the location and knows the needs of the public). 
 Georgia: Dowdy v. Georgia R. Co., 88 Ga. 726 ; s. c. 16 Southeast. Rep., 
 63 (a witness cannot testify that tHe engineer had time to blow the 
 whistle before the deceased was struck, nor can he be asked whether the 
 engineer had time to signal the approach of the engine, and if he had 
 done so whether the deceased would not have had time to get off the 
 track). Illinois: Chicago, etc. R. Co. v. Legg, 33 111. App., 218 (a witness 
 may testify whether an animal's tracks indicated that it had been run- 
 ning). Illinois Cent. R. Co. v. People, 1893, 33 Northeast. Rep., 173 (a wit- 
 ness cannot testify that a train is a regular passenger train). Indiana : 
 Ohio & M. R. Co. V. Wrape, lud. App., 1892, 30 Northeast. Rep., 437 (one, 
 who has examined the conditions along a, track after cattle had been 
 killed and has testified in reference thereto, may be permitted to give his 
 opinion as to the direction in which the animals were going when they 
 were struck). loiva: Dunham v. Rix, 1893, 53 Northwest. Rep., 353 (a 
 non-expert cannot testify as to the condition of a stallion when it was 
 tended back because it did not comply with the warranty under which it 
 
III. Facts, not Conclusions. (1) General Principle. 24Y 
 
 Note of Cases on General Rule. 
 
 had been sold). JSLtryland: Baltiraoi-e & Turnp. Road v. State, 71 
 Md., 573 ; s. c. 18 Atlantic Rep., 884 (a witness cannot give his opinion, 
 based on the testimony ot other witnesses, as to whether a wag-on load of 
 wood is calculated to frighten a well-broken horse). Micliigan: Geveke 
 V. Grand Rapids, etc. R. Co., 57 Mich., 589; s. c. 24 Northwest. Rep., 675 
 (a driver is competent to testify as to what frightened his horses). Mc- 
 Nally V. Colwell, 91 Mich., 527 ; s. c. 52 Northwest. Rep., 70 (in an action 
 to recover for loss from a fire communicated from an adjacent lumber mill, 
 the opinion ot a witness as to the sufficiency of appliances to put out fire, 
 provided at defendant's mill, is incompetent). Minnesota: Williams v. 
 Clark, 47 Minn., 53; s. c. 49 Northwest. Rep., 398 (a witness cannot give 
 his opinion as to whether a written instrument was executed at a recent 
 or remote time, when based upon its appearance). Mississippi: Louis- 
 ville, etc. R.- Co. V. Natchez, etc. R. Co., 67 Miss., 399; s. c. 7 Southern 
 Rep., 850 (a witness cannot give his opinion whether cotton would have 
 been burned if it had been loaded on a box car instead of a flat oar). 
 Nevada: McLeod v. Lee, 17 Nev., 103 ; s. c. 38 Pacifio Rep., 124 ( a wit- 
 ness, familiar with a dam and its surroundings, may testify that it was 
 the cause of an overflow). New York: People v. Fanshawe, 19 N. Y. 
 Supp., 865 Ca witness may testify whether a bed appeared as thoug'h some- 
 one had been recently sleeping- in it). Dunn v. Ultsch, 2 Misc. R., 211 ; s. c. 
 21 N, Y. Supp., 362 (where misappropriation of money from defendant's 
 cash register is set up in an action for wages, defendant cannot be asked 
 whetlier the register was an accurate machine). North Carolina: Hop- 
 kins V. Bower, 111 N. C, 175; s. c. 16 Southeast. Rep., 1 (a witness, who 
 has had an opportunity of seeing and knowing- a person, may testify as 
 to whether she had negro blocd). Pennsylvatiia: Kehler v. Schwenk, 151 
 Pa. St., 505; s. c. 25 Atlantic Rep., 130 (other boys, similarly employed, 
 may testify whether a boy of plaintiff's size could have detached a car 
 while standing outside the rails). Texas: Gulf, etc. R. Co. i;. Locker, 78 
 Tex., 379 ; s. c. 14 Southwest. Rep., 611 (a non-expert may give his opin- 
 ion as to the cause of the overflow of a river where he has apparently 
 stated all the facts upon which his opinion is founded). International, 
 etc. R. Co. V. Kuehn, Tex. Civ. App., 1893, 21 Southwest. Rep., 58 (a non- 
 expert witness cannot testify as to whether a train could have been 
 stopped in time to prevent an accident if it had been running slower). 
 Galveston, etc. Ry. Co. v. Daniels, 1 Tex. Civ. App., 695 ; s. c. 30 South- 
 west. Rep. , 935 ( a non-expert cannot testify as to the sufficiency of timbers 
 to support a bridge). Jackson v. State, Tex. App., 1891, 16 Southwest. 
 Rep., 347 (a non-expert, who has seen several human skeletons, may 
 testify whether certain bones were those of a child, though on cross-, 
 examination he testifies that he has never seen the bones of various small 
 animals and did not know the difference between them and those of a 
 child). • United States: St. Louis, etc. Ry. Co. v. Bradley, U. S. Cir. Ct. 
 App., 1893, 54 Fed. Rep., 630 (a witness may testify as to the effect of a 
 bridge and embankment in causing an overflow, where he has resided in 
 the neighborhood and experienced several overflows). 
 
248 Abbott's Select Cases on Examining Witnesses. 
 Notes of Cases on Belief and Eecollection. 
 
 NOTES OF EEOENT CASES ON TESTIMONY AS TO 
 BELIEF AND EECOLLECTION. 
 
 Alabama: Alabama, etc. R. Co. v. Hill, 93 Ala., 514; s. c, 9 Southern 
 Rep., 722 (a witness' testimony that, to the best of his judgment, a rail was 
 broken at a certain place, but that he would not be positive, is but a state- 
 ment of the witness' best recollection, and is properly received). Keller 
 V. Taylor, 90 Ala., 389, s. c. 7 Southern Rep., 907 (where there is a doubt 
 as to whether a witness is attempting to repeat what another told him or 
 is merely trying to express his opinion or inference formed from what was 
 said to him, his testimonj' should be rejected. Montgomery, etc. R. Co. 
 V. Malette, 1891, 9 Southern Rep., 363, it is not error to exclude a mere 
 conclusion by a witness that all the passengers were out of a railroad car 
 before it was overturned, which is based on facts stated by him and not 
 upon his recollection. California: Prior v. Diggs, 1893, 31 Pacific Rep., 
 155 (a witness is not required to give his testimony with absolute positive- 
 ness ; it is not necessarily a mere expression of opinion where his testi- 
 mony-is prefaced with such statements as, he does not consider, or, does not 
 think, etc.) Missouri: State t). Duncan, 1893, 22 Southwest. Rep., 699 (a 
 witness' having testified that he saw an act done, may be asked as to wh ether 
 he has any doubt as to its commission as he has described it). Pugh v. 
 Ayers, 47 Mo. App., 590 ^testimony by a witness as to his impression is not 
 competent unless it appears that what he terms his impression is really a 
 recollection). North Carolina: People v. Teague, 106, N. C, 576; s. c, 
 11 Southeast Rep., 66S (a witness is competent to testify as to a fact of 
 which he saj's he is reasonably certain ; it is not necessary that his recol- 
 lection should be so exact as to exclude all doubt). Texas: Harris v. 
 Nations, 79 Tex., 409 ; s. c, 15 Southwest Rep., 363 (where a witness has 
 been in the position to know the facts, but his memory has grown dim, 
 what he thinks his recollection is, is admissible in connection with other 
 testimony). Snell v. State, 39 Tex. App. 336 ; s. c, 15 Southwest. Rep., 
 733 (it is not error to refuse to allow a witness to testify that a deceased 
 person made statements in his hearing different from his dying declara- 
 tions which have been given in evidence, where the witness is unable to 
 state the substance of the variant statements). Jones v. State, 30 Tex. App. ,, 
 436; s. c, 17 Southwest, Rep., 1080 (su.spicions are not proper evidence). 
 
III. Faots, not Conclusions. (1) General Principle. 249' 
 Morehouse v. Mathews, 3 N. Y., 514. 
 
 MOKEHOUSE v. MATHEWS. 
 
 J^ew York Court of Appeals, 18Jf9. 
 
 [Repoi'ted in 3 N. Y., 514.] 
 
 The g-eneral rule is that witnesses must be confined to tiie communication 
 of facts, not ojjiiiions, nor conckisions whicli they may have formed 
 from facts even known to themselves. 
 
 The exceptions to the g'eneral rule are confined to questions of science, 
 trade and a few others of the same nature. 
 
 Sherman Morehouse sued James E. Mathews in a justice's 
 court for breach of contract by which defendant had undertaken 
 certain services, etc., including the keeping of plaintiff's cows 
 and feeding them on hay of good quality then in his barn and of 
 which he had shown plaintiff a sample. 
 
 The complaint alleged that defendant fed them on stack hay 
 which was weather-beaten and otherwise injured, and entirely 
 unfit for feeding, whereby the cattle became poor and valueless. 
 
 After a witness had testified to the contract, and that defend- 
 ant had fed hay of an inferior quality to plaintiff's cattle, plaint- 
 iff asked the witness "What damage accrued in consequence of 
 feeding the cattle upon the stack hay and not upon the hay in 
 the barn as agreed ?" Objected to by defendant on the ground, 
 "that the witness cannot give his opinion, l^ut must give facts." 
 
 The objection was overruled, and the witness answered tliat 
 he thought the damage would be fifty dollars. 
 
 Another witness over same objection was allowed to give a 
 similar opinion that he thought the damage would be %61. 
 
 The JvMiee gave judgment for plaintiff for $25 damages, with 
 costs. 
 
 The County Court affirmed the judgment. 
 
 The Supreme Court at General Term reversed tlie judgment 
 without opinion. The plaintiff brought error. 
 
 M. Grover, for plaintiff in error, argued that in a case hke this, 
 where the witnesses appeared to be fanners, saw the cattle and 
 
250 Abbott's Select Cases on Examiniitg "Witnesses. 
 
 Morehouse v. Mathews, 2 N. Y., 514. 
 
 were acquainted with the keeping of cattle, and the facts could 
 not be so presented as to enable the court to pass upon the ques- 
 tion, the opinion was competent. 
 
 Norton & Wetherly, for defendant in error. 
 
 The Court of Appeals affirmed the judgment of the Supreme 
 Court. 
 
 Shankland, J. The question propounded to the witness 
 seems to have been understood by the defendant, and by the 
 witness himself, to call for his opinion as to the amount of 
 damages, rather than to the fact whether damage accrued, and 
 the character of it, as the language of the interrogatory would 
 more properly imply. "What damage accrued in consequence of 
 feeding cattle upon poor hay, instead of good hay, called for no 
 opinion of the witness, but for a specification of facts, as its legit- 
 imate response ; and the question put to the witness in this 
 case, was strictly legal. But the defendant and the witness 
 imderstood it to call for the opinion of the latter as to the 
 amount of damages sustained by the plaintiff, and it is very prob- 
 able the plaintiff asked the question with that object in view, as 
 he did not explain, after the specific objection was interposed by 
 the defendant, nor repudiate the answer of the witness after it 
 was given. "We should therefore pass upon the admissibility of 
 the question put, in the same way as we would if it had been in 
 the following form: "How much, in your opinion, was the 
 damage sustained by the plaintiff, in consequence of feeding the 
 cattle upon the poor hay instead of that agreed upon ? " 
 
 If the interrogatory had been propounded in the form above 
 indicated, it would have been clearly inadmissible within all the 
 authorities. The general ruTe upon the subject is, that witnesses 
 must be confined to the communication of facts, and not opinions 
 or conclusions which they may have formed from facts, whether 
 known to themselves, or derived from the testimony of others. 
 It is the special duty of the jury to draw conclusions, and not of 
 the witness, (1 Phil. Ev., 290.) The exceptions to the general 
 rule are confined to questions of science, trade and a few others 
 of the same nature, but cannot be extended to a case like the ofie 
 under discussion. It is allowable for a witness who deals in, or 
 
III. Facts, not Conclusions. (1) General Principle. 251 
 
 Morehouse v. Mathews, 3 N. Y. , 514. 
 
 is acquainte(1 with, the value of cattle, or horses, to testify as to 
 the value of such animals, because he then speaks of facts as 
 derived from the market price of such property. In such a case, 
 his testimony would not be opinion, it would be knowledge. In 
 the case before us, the witness could have legally testified to the 
 degree of inferiority of the hay fed to that agreed to be fed by 
 the defendant. He could also have testified as to the condition 
 of the cattle when brought to the defendant's, and when taken 
 away, and to any other fact calculated to enable the court or jury 
 to form a just opinion on the question of damages ; but the mere 
 opinion of the witness on the amount of damage was entitled to 
 no weight. If the witness had testified that he was acquainted 
 with the value of cattle, I think he might have been allowed to 
 state how much less valuable these were when taken away than 
 when driven to the defendant's, in consequence of the inferior 
 quahty of the food. But then he should state the facts upon 
 which he founded his valuation, so that the jury might be able 
 to appreciate his estimate at its just value. 
 
 A few adjudged cases will show the strictness with which our 
 courts have held to the rule which excludes the opinions of wit- 
 nesses, unless they f aU within the exceptions to the general rule. 
 In Paige v. Hazard & Kelley (5 Hill's K., 603), it was held that a 
 witness, who testified that he was a boatman and knew the boat 
 which had been sunk by defendant, previous to her being in- 
 jured ; that he had raised sunken boats, and caused them to be 
 repaired; could not be permitted to testify what the damage 
 would be, from the description of the situation of the boat as 
 given by the witnesses. In Dunham v. Simmons (3 Hill, 609), 
 which was an action for damages for injuring a horse by over- 
 driving, a witness having described the condition of the horse 
 after the injury complained of, was asked what amount of dam- 
 ages had been sustained in consequence of ill usage ? And it 
 was held that the question was inadmissible, if it had been ob- 
 jected to on the proper ground. (See also Norman v. Wells, 17 
 Wend. E., 136 ; 13 id., 81 ; 23 id., 425 ; 4 Denio, 312 ; 23 
 Wend. K., 354.) In the case last cited, which was an action to 
 recover damages for killing a setter dog, a majority of the court 
 thought it barely competent to allow a witness who was ac- 
 
252 Abbott's Select Cases on Examining Witnessks. 
 
 Nicolay v. Unger, 80 N. Y., 54. 
 
 quainted with such animals and their value, to testify to such 
 value. In the case at bar, the witness should have been confined in 
 his testimony to questions of fact, such as the number, condition 
 and value of the cattle kept by the defendant, the quality of hay 
 used in comparison with that agreed for, the efEect the poor hay 
 produced upon the cattle, and thus have laid a foundation of 
 facts from which the jury or justice could have formed an 
 opinion of the amount of damages actually sustained. The judg- 
 ment of the Supreme Court should be affirmed. 
 
 NICOLAY /;. UNGEE. 
 
 JVew York Court of Appeals, 1880. 
 
 [Reported in 80 N. Y., 54.] 
 
 T)ie issue being whether a sale of a bond was made by defendants, or the 
 bond merely dehvered by them on the order of a third person alleged 
 to be the real owner and seller, it is not competent for defendants to 
 ask the person who acted in the transaction, " Did your firm ever sell 
 the bond to plaintiff?" for this calls for consti-uction rather than fact. 
 
 Action to recover money paid for a bond alleged to have been 
 sold to plaintiffs by defendants and subsequently discovered to 
 be a forged bond. The question litigated was whether defend- 
 ants were the sellers, or whether, as they claimed, they were only 
 pledgees, and delivered it on the owner's order on payment of 
 their lien. 
 
 On the trial, one of defendants' witnesses was asked by de- 
 fendants' counsel the following questions. 
 
 " Q. Did your firm ever sell the bond to Mr. Nicolay ? 
 
 Objected to ; objection sustained ; defendants excepted. 
 
 Q. Did you ever sell the bond to Mr. Nicolay or to anybody 
 else? 
 
 Objected to ; objection sustained ; defendants excepted. 
 
 Q. Were you and Charles Unger & Co. ever directed by the 
 owner to sell any of these bonds ? 
 
 Objected to upon the ground that that is a question of law ; 
 objection sustained ; defendants excepted." 
 
III. Facts, not Conclusions. (1) General Principle. 253 
 
 Nicolay v. Unger, 80 N. Y., 54. 
 
 R. Duncan Harris, for plaintiffs. 
 Lea)'ned c& Warren, for defendants. 
 
 Judgment was entered on a verdict, for the plaintiffs. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Ingalls, P.J. \as to exclusion of questions heloio] : " It will 
 be perceived that these questions were not in regard to some 
 collateral subject but bore upon the direct issue which was being 
 tried, which involved a mixed question of law and fact. In 
 such a case the witness must be required to state the conversa- 
 tion and leave the jury to deduce the inference therefrom. 
 
 The instructions from the owner of the bonds, if at all material 
 under the facts of the case, should have been detailed, to enable 
 the court and jury to determine the effect to be given thereto, 
 and the precise language employed might be all important." 
 
 The Court of Appeals affirmed the judgment. 
 
 MiLLEK, J. [after reviewing the facts] : The question put to 
 one of the witnesses for the defendants, inquiring whether the 
 firm ever sold the bond to Mr. Nicolay, as well as the other two 
 questions of a similar character and embodying the same idea 
 substantially, were, we think, properly overruled, for the reason 
 that an answer to each of them called for a construction which 
 the witness would place upon the facts which took place or his 
 opinion in reference to the same. The witness had stated the 
 facts within his knowledge, and the questions put called upon 
 him, in the place of the jury, to determine what the contract 
 was. The questions related to the main issue to be tried, 
 whether there was a sale by the defendants to the plaintiffs. 
 The witness had stated the conversation and the facts of which 
 he had knowledge, and it was for the jury to draw the inference 
 to be derived from his evidence. The defendants would 
 receive all the advantage which would flow from the evidence 
 given in regard to what transpired between the parties, and it 
 would not add to its weight or increase its effect by proof of 
 the conclusion of the witness. Its rejection, therefore, would 
 not prejudice the defendants or furnish any ground for a new 
 trial. 
 
254 Abbott's Select Cases on Examining Witnesses. 
 
 Nicolay v. Unger, 80 N. Y., 54. 
 
 We have been referred to some reported decisions which are 
 claimed as establishing that the questions put were competent ; 
 but a careful examination of the principal cases relied upon 
 evinces that they are not analogous. It is not difficult to see 
 that it is entirely competent to prove under some circumstances 
 as a fact what under others might be regarded as a mere con- 
 clusion of law and would be clearly inadmissible. There are 
 cases which hold that where the question involves a fact clearly 
 within the knowledge of the witness, and not the expression of 
 an opinion upon facts proven, it is admissible. (DeWolf v. 
 Williams, 69 IST. Y., 621; Knapp v. Smith, 27 id., 277; Sweet 
 V. Tuttle, 14 id., 465; Davis v. Peck, 54 Barb., 425.) But 
 in these cases the testimony does not, as in the case before us, 
 present the transaction and involve the construction of the facts 
 proved by the witness himself. The decisions are numerous, 
 that such evidence, when the whole issue in the case turns upon 
 it, is incompetent. (See Miller v. L. I. E. E. Co., 71 IST. Y., 380 ; 
 Carpenter v. Eastern Trans. Co., id., 574 ; DeWitt v. Barley, 17 
 id., 349 ; s. c, 9 id., 371 ; Lincoln v. S. and S. E. E. Co., 23 Wend., 
 425.) The question discussed (jomes very near the border line, 
 and the distinction between the two classes of cases is a 
 close one, so that it is often a matter of discretion, when 
 such is the fact, with the judge before whom the trial 
 is had, to decide as to the right to put questions of this 
 kind ; but it would be opening a wide door to allow witnesses 
 to swear as to the construction of a contract under circum- 
 stances like, those presented in this case. If the defendants 
 could be allowed to testify directly that no sale was made, 
 the plaintiffs could be allowed, for the same reason, to swear 
 that it was ; it would leave it for the jury to determine the case 
 upon these opinions of interested or partisan witnesses, and 
 take from the province of the jury the duty of deciding from 
 the facts sworn to. [Here followed a consideration of other 
 points not relevant to our present inquiry.'] 
 
 All concur (Folgee, J., in result) except Chuech, C. J., and 
 TIapallo, J., not voting. 
 
 Judgment affirmed. 
 
III. Facts, not Conclusions. (1) General Principle'. 2.5.5 
 Notes of Cases. 
 
 Note. — Where the question was as to whether there was neghgeiice in 
 the handhng' of a ship, a witness who was on hoard was asked : " Do you 
 recollect how the weather on that occasion compared with the weather at 
 that season of the year, as to its heing rougher or more stormy than 
 usual ? " 
 
 This was objected to as calhng- for an opinion. 
 
 Held, properly excluded, Guiterman v. Liverpool, etc., S. S. Co., 9 
 Daly, 119. 
 
 "Where a question arose as to whether a person was a minor or not, 
 several witaesses, well acquainted with the person were called, and testi- 
 fied that they should think from his appearance that he was between the 
 age of fourteen and the age of seventeen years. The defendant objected 
 to the admission of this testimony as being opinions. 
 
 Held, to have been improperly admitted, as it was opinion entirely 
 abstracted from tact. That if the witnesses had testified to the facts indica- 
 tive of his age and accompanied them with their opinion it would have 
 been competent (Morse v. State, 6 Conn., 9). 
 
 Where the soundness of a person's mind was in question a witness 
 was asked: "What did you hear him say imputing that anyone had 
 stolen his tobacco ? " 
 
 This was objected to as asking the witness to construe the language, 
 interpret it and give an opinion to the jury as to the meaning of the words 
 and language. 
 
 Held, not error to admit it, Coffey, J., saying : " It calls for the lan- 
 guage of Richard Haxton upon a particular subject, and not for the wit- 
 ness' opinion of the language. Haxton v. McClaren, 31 N. E. Rep., 48 
 Indiana. 
 
'256 Abbott's Select Cases on Examining Witnesses. 
 Collins V. N. Y. Central, etc., E. Co., 109 N. Y., 343. 
 
 COLLINS V. N. Y. CENTEAL, ETC., E. CO. 
 
 JVew York Court of Appeals, 1888. 
 
 [Eeported in 109 N. Y., 343.] 
 
 Questions to a locomotive engineer as to W'hether his engine discharged 
 as many sparks as another engine furnished with a different stack; 
 and as to which he had observed had discharged most sparks, 
 
 Held, to call for a statement of observation and not for an opinion, and 
 therefore not objectionable. 
 
 The plaintiff sought to recover damages from defendant for 
 loss of property by a fire alleged to have been caused by defend- 
 ant's negligent use of a defective spark-arrester on one of its 
 engines, JNo. 113. It appeared that near the plaintiff's premises 
 the Erie Eailway runs parallel with defendant's road, and that an 
 Erie train passed plaintiff's premises a short time prior to defend- 
 ant's engine, No. 113. Defendant claimed the fire to have been 
 set by sparks from the Erie engine. 
 
 The plaintiff claimed that the spark-arrester on defendant's 
 engine was out of order, and had been negligently allowed to 
 remain so for some time, thus permitting larger sparks to be 
 emitted than could otherwise have escaped, and that the larger 
 sparks remaining alive longer than the smaller ones, caused the 
 fire. 
 
 The plaintiff also claimed that the general plan and mode of 
 constructing the spark-arresters used on defendant's road was 
 faulty and inferior to that of other roads, which fact was known 
 to all persons familiar witli the construction of engines and con- 
 duct of railroad trains. On the trial, considerable evidence was 
 given as to the comparative safety of the two plans for spark- 
 arresters as used, the one on defendant's road, and the other on 
 the Erie Railway, the plaintiff' claiming the Erie's to be the 
 better and safer. The defendant called the engineer of engine 
 No. 113 upon the night in question, who testified that he had 
 been an engineer on passenger locomotives for sixteen years ; 
 that he carefully examined the spark-arrester of his engine on 
 reaching Niagara Falls and found everything all right. He 
 testified that he was acquainted with the kind of spark-arrester 
 
III. Facts, etc. (2) Distance, Quantity, Speed, Size, etc. 257 
 
 Collins V. N. Y Central, etc., R. Co., 109 N. Y., 243. 
 
 used on the Erie locomotives, generally described as the Dia- 
 mond stack. 
 
 The main question at issue was, which of these two classes of 
 engines was the more likely to set fires, and that depended partly 
 upon the quantity of sparks emitted by each. 
 
 The engineer of No. 113 was asked, on direct examination : 
 
 Q. Xow, with reference to this engine of yours, state whether 
 or not she discharged as many sparks as the Diamond stack of 
 the Erie ? 
 
 Objected to as a conclusion of the witness, and that he should 
 describe what he saw. 
 
 Defendant's counsel proposes to show by the witness that one 
 discharges less sparks than the other. 
 
 Objected to by plaintiff's counsel. Objection sustained, and 
 exception taken by defendant's counsel. 
 
 By the Court — I do not rule that you are not permitted to 
 show his observation as to both. 
 
 Q. Have you observed during the three years you run this, 
 after it was changed, and had this style put in, have you 
 observed, and do you know as to whether this engine, or the 
 engines used there upon the Erie road with the Diamond stack, 
 discharged the most sparks ; 1 ask you whether you know by 
 observation ? 
 
 A. I know, sir, by observation. 
 
 Q. Which do you say discharges the more sparks? 
 
 Objected to the same as before stated. Objection sustained 
 and exception taken by defendant's counsel. 
 
 Again he was asked tliis question : 
 
 " Q. I-Iave you been, all these years that you have been a 
 locomotive engineer, familiar with the various kinds of spark- 
 arresters in use, and are you well acquainted with the Diamond '>. " 
 He answered that he was. The following afterward took 
 place : 
 
 Q. Have you used the Diamond stack a good many years \ 
 
 A. Yes, sir. 
 
 Q. Have you observed which sets the most fires 1 
 
 A. Yes, sir. 
 
 Q. Will you state which ? 
 
258 Abbott's Select Cases on Examining Witnesses. 
 Collins V. N. Y. Central, etc., R. Co., 109 N. Y., 243. 
 
 By the Court — Do you mean of the two varieties ? 
 
 Defendant's Counsel — Yes, sir. 
 
 Plaintiff's Counsel — 1 object to it, on the same ground as I 
 stated to the question with reference to the sparks ; that he may 
 state what he observed, but not his conclusions. 
 
 Objection sustained and exception taken. 
 
 By the Court — If he has had any observation as to any 
 particular engine, and had noticed what that engine did, I think 
 it is (3ompetent. 
 
 Q. You have stated the extent to which you have seen 'No. 
 19 throw sparks '': 
 
 A. Yes, sir. 
 
 Q. Have you ever seen 113 throw sparks to that extent? 
 
 Objected to same as before. Objection sustained, and ex- 
 ception taken. 
 
 The witness also said that he observed a stream of fire and 
 sparks from the Erie stacks every time he got along anywhere 
 near them ; that he used to run side by side nearly every day, 
 and at night, for some distance with an Erie engine ; that at a 
 particular time at night the two trains would run near together 
 on the two roads, the Erie engine being a little ahead of him, 
 about five or ten minutes. This question was then asked him : 
 
 " Q. JSTow state whether there is any such stream of fire or 
 sparks, or volume of sparks, emitted from engine No. 113 * " 
 
 Objected to by plaintiff's counsel. (3bjection was sustanied 
 and exception taken. 
 
 David Miller, for respondent. 
 
 Green, McMillan & Oluok; for appellants. 
 
 Judgment was entered upon a verdict for plaintiff. 
 
 The Supreme Court at General Term affirmed the judgment 
 without discussing this question. 
 
 The defendants appealed to the Court of Appeals. 
 
 Green, McMillan (.h GluoJc, for appellants, urged that the 
 question was just as competent as it would be to ask whether 
 one thing was larger or smaller than another, or lighter or 
 
III. Facts, etc. (2) Distance, Quantity, Speed, Size, etc. 251J 
 
 Collins V. N. Y. Central, etc., R. Co., 109 N. Y., 243. 
 
 heavier, without showing the exact measure or weight of 
 either. 
 
 David 2liller, for respondent, argued in substance that the 
 result of the comparison was a conclusion of the witness. 
 
 The Court of Appeals reversed the judgment. 
 Peckham, J. \after stating the facts'] : We think the trial 
 court erroneoiisly sustained the plaintiff's objections to the above 
 questions. The questions put were proper in that they sought 
 to elicit facts, and not mere opinion. The witness was asked to 
 state whether his engine discharged as many sparks as the 
 Diamond stack of the Erie. This the court held was asking 
 for an opinion, the court stating that the defendant might 
 show this witness' observation, but that he could not give his 
 opinion. He was then asked if he had observed which of the 
 two discharged the most sparks and he stated that he had, 
 and that he knew by observation ; and he was then asked to say 
 which discharged the most sparks. This, upon plaintiff's ob- 
 jection, the court excluded. We know of no other way in 
 which the witness could have stated his observation than by 
 answering this question; so of the other two questions. The 
 evidence was upon a very material issue in the case. There 
 were no means of stating the result of the witness' observation 
 other than the determination he came to as to the fact that the 
 one or the other emitted the most sparks, and hence it was 
 proper that he should have been permitted to answer questions 
 of that nature. 
 
 If this evidence had been given, it might not have changed 
 the result. But that fact we do not know. It was material and 
 proper evidence, and we cannot say that no harm resulted to the 
 defendant from its exclusion. [Remarks on another point are 
 here omitted.'] 
 
 All concur, except Danfoeth, J., not voting. 
 
 Judgment reversed. 
 
260 Abbott's Select Cases on Examining Witnesses. 
 Hallahan v. N. Y., L. E. & W. R. R. Co., 103 N. Y., 194. 
 
 HALLAHAN v. N. Y., LAKE ERIE & W. E. R CO. 
 
 JVeto York Court of Appeals, 1886. 
 [Reported in 103 N. Y., 194] 
 
 A statement of facts by a witness without positively affirming its accuracy 
 — c. g., " His elbow was resting on the sill, and I should judge that it 
 could not project out of the window by the position that he held it in 
 the car" — is not incompetent. 
 
 It is not error to deny a motion to strike out the part beginning with the 
 words, "I should judge." 
 
 To a question whether the elbow was inside or outside the window, an 
 answer, " It could not be outside ; it was probably on the level with 
 the outside; my opinion was from the position that it was inside" — 
 is not improper, except as to the part beginning " My opinion was, 
 etc." 
 
 Confusion among the passengers in a car at the time of an accident is 
 competent as part of the res gestae. 
 
 Action for damages for personal injuries alleged to have been 
 occasioned by defendant's negligence while plaintiff was a 
 passenger. His right to recover depended on the simple ques- 
 tion whether his elbow was outside or within the window when 
 it was struck by a mail bag crane near the track. 
 
 Lewis IE. Carr, for Appellant. 
 D. F. Gedney, for Respondent. 
 
 Judgment was entered upon a verdict for plaintiff. 
 
 The Sihpreiiie Court at General Term affirmed the judgment 
 without opinion. 
 
 The Court of Appeals affirmed the judgment. 
 
 MiLLEE, J.: The only questions presented upon this appeal 
 relate to the rulings of the judge in regard to the evidence. 
 
 It is insisted by the appellant's counsel that certain testimony 
 of one of the witnesses for the respondent, Daniel Creegan, was 
 incompetent and improper, and that the court erred in refusing 
 to strike out the same. The questions put to the witness were 
 not objectionable, but it is urged that the answers were im- 
 
III. Facts, etc. (2) Distance, Quantity, Speed, Size, etc. 261 
 
 Hallahan v. N. Y., L. E. & W. R. R. Co., 103 N. Y., 194. 
 
 proper and should have been stricken out, in accordance with 
 the motion made by the appellant's counsel. 
 
 The following was one of the questions put to the witness and 
 the answer given : " Q. Just describe the position of his right 
 elbow in reference to that window of the car ? A. Mr. Halla- 
 han sat straight up in the seat at the window and his elbow was 
 resting on the sill, and I should judge that it could not project 
 out of the window by the position that he held it in the car." 
 
 Defendant's counsel objected to the latter part of the answer 
 commencing at " and I should judge," etc. , and moved to strike 
 it out, on the ground that it was a conclusion and not a statement 
 of fact, which motion was denied and defendant excepted. The 
 witness was also asked : " Q. Was or was not his elbow, at the 
 time this object struck the car, inside or outside the car window?" 
 to wliich he answered, " It could not be outside the car window ; 
 it was probably on a level with the outside of the car ; my 
 opinion was, from the position, that it was inside." Counsel for 
 the defendant objected to this answer, and moved to strike it 
 out, on the ground, that it was the opinion of the witness and 
 not a statement of fact, and the motion was granted as to the 
 part " my opinion," etc. Defendant's counsel excepted to the 
 refusal to strike out the remainder of the answer. 
 
 The objection to the first answer was upon the ground that it 
 gave witness' opinion as to the position of the plaintiffs elbow, 
 which would have been inadmissible if it had been asked for by 
 a question put for that purpose. The witness had described the 
 position of the plaintiff's arm, and his expression, " I should 
 judge," was qualified by what he had previously stated and by 
 what he stated afterward. It was a simple statement of the 
 facts as they actually existed, with the qualification that in the 
 postion his arm was, it could not project out of the car window. 
 It was merely a careful statement of the facts without a positive 
 allegation as to its accuracy, and not in the nature of an opinion 
 alone. It may be regarded as the statement of a witness who is 
 extremely cautious in giving evidence. The expression used 
 and others of a similar character, such as " I think," when the 
 facts are presented, cannot always be regarded as a mere opinion. 
 Cases frequently arise where witnesses are called upon to state 
 
262 Abbott's Select Cases on Examining Witnesses. 
 
 HallaLan v. N. Y., L. E. & W. R. R. Co., 102 N. Y., 194. 
 
 the appearance of a person at a particular time, when a ques- 
 tion arises as to the soundness of his mind ; and when the facts 
 are stated, the witness can properly be allowed to testify as to 
 such appearance in a manner which to some extent involves the 
 judgment of the witness. 
 
 Within this rule we think the answer given to the iirst ques- 
 tion was not objectionable. But even if the evidence may be re- 
 garded as calling for an opinion in any way, as the testimony was 
 based upon the personal knowledge of the facts, we think it may 
 be considered as competent. (Blake v. People, 73 'N. Y., 586.) 
 
 The cases relied upon by the appellant's counsel are not 
 adverse to the rule laid down. The remarks we have made will 
 apply to the answer given to the second question. The objec- 
 tionable part of that answer was stricken out and what remained 
 was proper testimony based upon the fact previously stated that 
 the witness saw the position of plaintiff's elbow. 
 
 Another witness on the trial testified that he was sitting in 
 about the middle of the car on the right hand side, and at this 
 point there was a rattling noise which appeared to be on the 
 same side ; that the people looked around, apparently wondering 
 what the trouble was ; that he noticed a commotion in the for- 
 ward part of the car ; that he went there and saw that plaintiff 
 was hurt. He was then asked : " Did you notice any confusion 
 produced among the passengers by the noise on the outside of 
 the car ? " 
 
 The question was objected to on the ground that it was imma- 
 terial and improper. Objection overruled and an exception 
 taken. 
 
 We think the plaintiff had a right to prove all the circum- 
 stances attending the accident as a part of the res gestae and to 
 show that others in the car heard the noise of the collision of 
 the crane with the car, the confusion being the result of the col- 
 lision and showing the nature thereof. Similar testimony was 
 given by other witnesses without objection. The evidence was 
 we think admissible.* 
 
 *In a prosecution for disturbing a meeting, it lias been lield that a wit- 
 ness could not testify directly that the meeting was disturbed ; for that 
 was a question for the jury. Morris v. State, 84 Ala., 457. 
 
III. i'lR'fe, etc. (2) Distance, Quantity, Speed, Size, etc. 263 
 Notes on Size, Distance, etc. 
 
 We are not at liberty to review tlie questions of fact presented 
 by tlie evidence upon the trial, and tlie verdict of the jury is 
 conclusive in regard to them. 
 
 The judgment should be affirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 Note. — In an action for negligently causing the death o£ A, the defend- 
 ant to show negh'gence on the part of of A, asked a witness : " Did he not 
 have time to jump after lie saw the train?" Objected to as calling for 
 an opinion. 
 
 Held, admissible; that it was matter of fact discernible by judgment 
 or estimate. 
 
 Quin V. N. Y., N. H. & H. E. R. Co., 12 Atl. Rep., 97 (Conn.). 
 
 In an action against a railroad company for personal injury caused by 
 defendant's steam-shovel, the operator of the shovel was allowed to 
 testify that " no human force could have prevented the lever, or 
 bucket, from swinging around to its accustomed place." Objected to as 
 an opinion of the witness. 
 
 Held, admissible ; that it was a summary of a number of involved 
 facts; that it was the statement of "the result of personal observation 
 and knowledge as to a collective fact." 
 
 -Alabama G. S. R. R. Co. v. Yarbrough, 3 So. Rep., 447 (Ala.). 
 
 NOTES OF OTHEE KECEKT CASES ON TESTIMONY 
 
 TO DISTANCE, SIZE, QUANTITY, 
 
 SPEED, ETC. 
 
 Alabama: Kansas City, etc., R. Co. v. Crocker, 1893, 11 Southern 
 Rep., 363 (a witness may testify that a hand car was going faster than a 
 man could run). California : Posachane Water Co. v. Standart, 97 Cal., 
 496 ; s. c. 33 Pacific Rep., 533 (a non-expert's opinion as to grade of a ditch 
 per mile admissible). Indiana: Bohr v. Nevensohwander, 130 Ind., 449 ; 
 s. c. 33 Northeast. Rep., 416 (a witness who has examined a creek cannot 
 testify as to whether it appears to have sufficient fall to drain the prem- 
 ises in controversy). Romaok v. Hobbs, 1893, 33 Northeast. Rep., 307 (a 
 statement that a repaired ditch was wider and deeper than the original 
 ditch is a statement of fact and not an opinion). Iowa: Pence v. Chicago, 
 etc., R. Co., 79 Iowa, 389 ; s. c. 44 Northwest. Rep., 686 (a witness familiar 
 with the running of trains may testify as to the speed at which certain 
 trains were running). Blackmore v. Fairbanks, 79 Iowa, 383 ; 44 North- 
 
264 Abbott's Select Cases on Examining "Witnesses. 
 
 Notes on Size, Distance, etc. 
 
 west. Rep., 548 (a non-expert may testify as to the horse-power of an engine 
 where his knowledge was derived by a comparison with a water wheel, the 
 power of which was ascertained by actual measurement). Hunger v. 
 City of Waterloo, 83 Iowa, 559 ; s. c. 49 Northwest. Rep., 1038 (in an action 
 for personal injuries where the size of the hole in which plaintiff claimed 
 to have slipped is in evidence, the opinion of a witness as to whether or 
 not a person could have put his foot in it is inadmissible). Louisiana : 
 State V. Casey, 44 La. Ann., 969 ; s. c. 11 Southern Rep., 583 (a question as 
 to time between two events, calls for a fact and not an opinion). Mich- 
 igan: Osteni). Jerome, 93 Mich., 196; s. c, 53 Northwest. Rep., 7 (testimony 
 that a drain was not large enough to carry the water conveyed to it by a 
 certain cut, but that before the cut was made the drain was large enough 
 to carry the water that came from other sources, is not a statementof an 
 opinion but a description of the drain's capacity). Thomas v. Chicago, 
 etc., R. Co., 86 Mich., 496; s. c. 49 Northwe.st. Rep., 547 (one who has 
 observed trains is competent to testify as to their speed). Clink v. Gunn, 
 90 Mich., 135 ; s. c. 51 Northwest. Rep., 193 (testimony as the quantity of 
 logs converted is not a mere guess when based on a careful estimate 
 made on the premises). Oregon: Hudson v. Goodale, 33 Oreg., 68 ; s. c. 
 39 Pacific Rep., 70 (a foreman, as a witness who had been engaged in run- 
 ning the logs in question down a stream, was asked by plaintiff to state 
 from what he saw upon his trips, the number of logs taken by defendant 
 with plaintiff's brand. Held, that the question was proper). Pennsylvania: 
 Vulcanite Paving Co. v. Ruch, 1893, 33 Atlantic Rep., 555 (a witness may 
 testify from measurements and calculations as to the quantity of paving 
 done). South Carolina: Harmon v. Columbia, etc., R. Co., 33 S. C. 137 
 (a non-expert may testify from his own experience and observation, as 
 to the distance in which a train may be stopped. Texas: International, 
 etc. R. Co., V. Kuebn, Tex. Civ. App., 1893, 31 Southwest. Rep., 581 (a 
 witness may testify how long it would take a team to cross a track from 
 the beginning of the approach to the crossing). Wisconsin: Ward v. 
 Chicago, etc., R. Co., 1893, 55 Northwest. Rep., 771 (a witness who lived 
 near a railway and had seen trains pass may give his opinion as to how 
 many miles an hour a train was running, although he does not know how 
 many feet or rods there are in a mile). 
 
III. Facts, etc. (3) Feeling, Conduct, Intent, etc. 265' 
 
 M'Kee v. Nelson, 4 Cowen, 355. 
 
 M'KEE V. NELSON. 
 
 N'ew Yorh Supreme Court, 1825. 
 
 [Eeported in. 4 Cowen, 355.] 
 
 In an action for a breacli of a promise to marry, a witness who has lived 
 with plaintiff as a member of the family, may give testimony, based 
 upon observation of plaintiff's deportment, as to whether she was- 
 sincerely attached to tlie defendant. 
 
 Action for breacli of promise of marriage. On the trial, in the 
 course of the examination of witnesses, W. J. M'Kee, Margaret 
 M'Kee and Thomas M'Kee, witnesses for the plaintiff, expressed 
 their opinions that the plaintiff was, from what they saw, much 
 attached to the defendant. This passed without objection. 
 
 Afterwards, the plaintiff's witnesses, Thomas M'Kee, Margaret 
 M'Kee and Eobert M'Kee, were asked, by plaintiff's counsel, 
 whether, living in the same house, and constantly associating with 
 the plaintiff as a member of the family and from an attentive 
 observance of her whole deportment during the courtship, and 
 at the time of the defendant's deserting her, it was their opinion 
 or not, that the plaintiff was sincerely attached to the defendant. 
 
 Defendant's objection to this question was overruled, the judge 
 observing, that, whether the plaintiff's affection was sincere or 
 not, could only be gathered from an attentive observation of her 
 conduct, and was not susceptible of any other proof than what 
 had been already given and was then offered by the plaintiff. 
 
 Yerdict having been rendered for the plaintiff, and a bill of 
 exceptions having been sealed, plaintiff's counsel moved to bring 
 it to a hearing as frivolous. 
 
 The Supreme Court held there was no ground for the bill and 
 denied a new trial. 
 
 Curia : We think the judge's decision founded in good sense, 
 and in the nature of things. We do not see how the various 
 facts upon which an opinion of the plaintiff's attachment must 
 be grounded are capable of specification, so as to leave it, like 
 ordinary facts, as a matter of inference, to the jury. It is true. 
 
366 Abbott's Select Cases on Examining Witnesses. 
 
 M'Kee v. Nelson, 4 Cowen, 355. 
 
 as a general rule, that witnesses are not allowed to give their 
 opinions to a jury ; but there are exceptions, and we think this 
 one of them. There are a thousand nameless things, indicating 
 the existence and degree of the tender passion, which language 
 cannot specify. The opinion of witnesses on this subject must 
 be derived from a series of instances, passing under their obser- 
 vation, which yet they never could detail to a jury. "Were there 
 nothing more in the case ; therefore, we think there is no ground 
 for the bill. 
 
 But we are not left to this ground. The objection came too 
 late. It was certainly waived. The same opinion had been 
 repeatedly expressed, in the same manner, in the course of the 
 trial, by different witnesses, without any sort of objection. Just 
 as the trial is drawing to a close, on these questions being put, 
 the objection is made for the first time. The answer would have 
 been a mere iteration of what had passed without objection, at 
 intervals, during the whole previous course of the trial. At 
 least, under the circumstances, it was altogether immaterial. It 
 could not change the complexion of the case. {^Here followed a 
 consideration of miother point not relevant to our present inquiry.] 
 
 New trial denied. 
 
 Note.— In Tompkins v. Wadley, 3 N. Y. Supna. Ct. (T. & 0.), 424, an ac- 
 tion for breach of promise of marriage, a witness, called for the defendant 
 having testified to meeting and conversing with the plaintiff, was asked 
 the question : " Will you tell us what the manner of Mrs. Tompkins was 
 in speaking ? " " what your opinion, from the manner of her speech, was, 
 as to her respect for Wadley ? " 
 
 This was held to have been properly excluded, as the witness was not 
 :shown to have had intimate enough acquaintance with plaintiff, to qualify 
 her to give an opinion derived from her general deportment toward the 
 defendant— she having visited the plaintiff only once after or about the 
 vtime of the engagement, and met her once upon the street. 
 
III. Facts, etc. (3) Feeling, Conduct, Intent, etc. 267 
 Blake v. People, 73 N. Y., 586. 
 
 BLAKE V. PEOPLE. 
 
 New YorJc Court of Appeals, 1878. 
 [Partly reported in 73 N. Y., 586.] 
 
 "While the rule is that a witness must depose only to such facts as are 
 within his own knowledge, yet he is not required to speak with such 
 certainty as excludes all idea of doubt in his own mind — even in giv- 
 ing- evidence in chief. 
 
 A witness may testify that he "does not think" one combatant in a 
 struggle was choking the other. 
 
 AIho, that "to the best of his knowledge" one of the combatants was 
 down and the other was helping him up. 
 
 Also, in answer to a question whether the hold of the combatants was a 
 friendly or unfriendly grasp, that "he did not know; he believed it 
 was a friendly grasp." 
 
 In a criminal prosecution, where the intention characterizes the act, such 
 intention may be directly shown when a witness is available who is 
 cognizant of it. 
 
 After tlie accused has testified in his own behalf, regarding his acts, it is 
 permissible to cross-examine him on the motives which influenced 
 him in such act. 
 
 Plaintiff was indicted for the murder of John McDonald by 
 shooting. 
 
 Upon the trial, the testimony showed that at half-past eight 
 the prisoner and the deceased, both under the influence of liquor, 
 were standing together under a gas light, when McDonald, the 
 deceased, slipped on one knee and got up again ; they then had 
 hold of each other, Blake having one hand on McDonald's arm 
 and the other hand free, when the prisoner put his free hand 
 behind him, drew a revolver and fired, and McDonald fell. 
 
 Asst. Bist. Atty. Rollins, for people. 
 Peter Mitchel, for plaintiff in error. 
 
 At the trial, the accused was found guilty. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Court of Appeals afiirmed the judgment, after consider- 
 ing among others the following questions : 
 
 A witness for the people, was asked on cross-examination by 
 
268 Abbott's Select Cases on Examining Witnessks. 
 
 Blake v. People, 73 N. Y., 586. 
 
 the prisoner's counsel, if he would swear that the deceased was 
 not choking him. The witness replied : " I would not swear it ; 
 hut donH think he was." 
 
 The last part of the answer the counsel moved to strike out. 
 The court refused. 
 
 This was not error. Every witness must swear according to 
 the impression on his mind, more or less strong. It has been 
 been held in this state that a witness may testify to an impres- 
 sion (Snell V. Moses, 1 J. E., 96-103 ; see, however, Cutler v. 
 Carpenter, 1 Cow., 81). In the case in hand, the witness was 
 conveying to the jury, his own conclusion, from the evidence of 
 his senses directed to the acts of the prisoner and the deceased, 
 on the evening of the shooting. When he said that he did not 
 think that the deceased was choking the prisoner, he meant, and 
 must have been so understood, that he recalled no circumstance 
 of the encounter, which led his mind to such conclusion or 
 belief. When he said that he would not swear that he was 
 not choking him, he meant, and must have been so understood, 
 that it was possibly so, though not observed by him. He was 
 stating the fulness of his observation, and the strength of his rec- 
 ollection of what he observed (Lewis v. Freeman, 17 Maine, 260 ; 
 Franklin v. City of Macon, 12 Geo., 257). True, it is a rule, 
 that a witness must depose to such facts only as are within his 
 own knowledge ; but even in giving evidence in chief, he is not 
 required to speak with such certainty as excludes all idea of 
 doubt in his own mind. A witness may testify to his belief in 
 the identity of a person, or of the handwriting of an individual, 
 though he will not aver positively thereto (Eex-y. Miller, 3 Wils., 
 427), and for false evidence so given he may be indicted for 
 perjury (Rex v. Pedley, 1 Leach, 325 ; Eeg. v. Schlesinger, 10 
 Q. B., 670 ; Folkes v. Chad, 3 Doug., 157-159). 
 
 A witness was asked " Which was down ; are you able to tell ? " 
 He answered, " The one that was shot was down, and the other 
 was helping him up, to the best of my knowledge." The phrase, 
 "to the best of my knowledge," it was moved to strike out. 
 The refusal to do so was not error. It is referable to the same 
 rules as the exception last considered. 
 
 A witness was asked on cross-examination in behalf of the 
 
III. Facts, etc. (3) Feeling, Conduct, Intent, etc. 269 
 
 Blake v. People, 73 N. Y., 586. 
 
 prisoner wlietlier the hold of the prisoner and the deceased upon 
 each other was a friendly or an unfriendly grasp. He said he 
 did not know ; he believed it was a friendly grasp. The same 
 principle above noticed comes in play here again. It is also 
 within the rule of the People v. Eastwood, 4 Kernan, 562, where 
 a witness was asked if, in his judgment, a person was intoxicated, 
 and the question was held correct. 
 
 It was not error to permit the District Attorney to put ques- 
 tions to the prisoner, on cross-examination, calling for the motives 
 which influenced him in certain of his actions. It was legitimate 
 cross-examination. It did address itself to the operations of the 
 mind rather than to bodily actions. But it was permissible to 
 educe the purpose of the prisoner, in the bodily acts which he 
 had just related, which purpose was material on the trial. 
 
 The objection, that operations of the mind are called for by 
 such questions, is not tenable. Operations of the mind include 
 the intention which precedes and urges an act. That intention 
 is to be shown, to characterize the act. It may be such, as to 
 make the act innocent, or guilty. It is to be inferred, or directly 
 shown. "When no witness is available who can directly prove it, it 
 must be inferred or not known ; when a witness is available, who 
 is cognizant of it, it is proper for him to say what it was. (Dillon 
 V. Anderson, 231, 236 and cases cited.) 
 
 The questions put by the court to the prisoner when on the 
 stand as a witness, are of the same character. As questions, in 
 the nature of a cross-examination, they are not erroneous. As 
 to the propriety of the court addressing them to the prisoner, or 
 other witness, we have nothing to say, for that depends very 
 much upon the circumstances of each case, and the exigencies 
 of each trial. 
 
 Note -. Upon a trial for wile murder, a witness who had heard cries 
 proceeding from the prisoner's house in the night preceding the wife's 
 death, was asked what those cries indicated, whether the person was cry- 
 ing for joy, or what. This was objected to, but objection overruled, and 
 the witness was permitted to answer that it seemed to him she cried for 
 help ; that he did not think she did it for pleasure. 
 
 Held, error; Grover, J., saying, the question called for the con- 
 jecture of the witness as to the cause of the cries and not for a descrip- 
 tion of them ; the former \^ as incompetent, though the latter was not. 
 
2T0 Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Cases on Another's Feelings, etc. 
 
 It was for the witness to describe the cries, so as to give the jury as 
 correct an idea of them as possible, and then for the latter to draw such 
 inferences therefrom as in their judgment were warranted. Messner v. 
 People, 45 N. Y., 1. 
 
 In Melick V. State, 24 Southwest. Rep., 417 (Appeal to the Court of 
 Criminal Appeals of Texas, Dec. 3d, 1893), on an indictment for murder 
 at the trial court, one of the witnesses testified that he heard the voice of 
 a woman at appellant's house on the evening before the dead body of 
 deceased was found next morning-. Counsel for the state asked witness, 
 "Was the sound you heard a sound of distress?" Appellant objected be- 
 cause the question was leading and suggestive, whereupon the presiding 
 judge prepared proper questions, in writing, came down from the bench 
 to where the interpreter was sitting, handed him the paper upon which 
 the questions were written, and told him to ask the questions as written. 
 Appellant objected to the questions because they were, also, leading and 
 suggested the answers. Tlae questions were : "Did the noise sound as if 
 the person was in joy, or distress ? Was it as if she was laughing, or cry- 
 ing, or if she was suffering pain, or enjoying pleasure. Or was she mak- 
 ing a mere idle noise, as if nothing was the matter with her?" Witness 
 answered, "It sounded like a woman's voice, crying." Held, the ques- 
 tions were neither leading, nor suggestive of the answers. 
 
 NOTES OF RECENT CASES ON ANOTHEE'S FEEL- 
 ING, MANNER, CONDUCT, INTENT, 
 KNOWLEDGE. 
 
 Alabama: Poe v. State, 87 Ala., 65 ; s. c. 6 Southern Rep., 378 (upon a 
 murder trial, it is not error to exclude testimony that defendant was 
 afraid to go out after dark upon his own premises because of the threats 
 of deceased). Lewis ih State, 1892, 11 id., 259 (it is not error to exclude 
 testimony that the accused seemed afraid, when offered to rebut the in- 
 ference of guilt raised by his flight). Montgomery v. Crosthwait, 90 Ala., 
 553 ; s. c. 8 Southern Rep., 498 (testimony that a party examined a note 
 throughly held admissible to show the party's knowledge of the manner 
 the note was signed). Reeves v. State, 1892, 11 id., 296 (upon the trial of 
 an indictment charging a person with disturbing women at a public 
 assembly, it is not error to permit a witness to testify that the accused 
 was talking mad and that he and another looked like they were trying to 
 tight). Baldwin v. Walker, 91 Ala., 428 ; s. c. 10 Southern Rep. , 391 (in an 
 action on attachment bond, it is error to permit a witness to testify that 
 he knew the plaintiff was not about to leave the state). Alabama, etc. R. 
 Co. V. Tapia, 1891, 10 id., 336 (in a passenger's action for ejectment from 
 a train, it is not error to exclude testimony that the conductor seemed to 
 
III. Facts, et<\ (3) Feeling, Conduct, Intent, etc; 271! 
 
 Notes of Cases on Another's Feeling-, etc. 
 
 be anxious to get the matter settled as to wiiether the plaintiff paid his 
 tare, and in the witness's opinion the conductor acted as well as a man 
 could do in such a case). BoUing- v. State, 1893, 13 id., 782 (it is error to 
 permit an officer, who arrested one charged with larceny, to testify that 
 the accused at the time of her arrest thrust her hand in a basket and 
 under bundles '-as though she was trying to conceal something").. 
 Arkansas: Williams v. State, 47 Ark., 230 ; s. c. 16 Southwest. Rep., 816 
 (a witness may state a conclusion of fact drawn from the appearance and 
 acts of another which are difficult to describe). California: People v. 
 Wright, 93 Cal., 564 ; s. c. 29 Pacific Rep., 240 (upon a trial for mayhem, 
 it is not error to exclude a question as to whether the interference of the 
 prosecutor was such as would carry the information to the defendant that 
 he was interfering only as a friend or would likely mislead the defendant 
 as to his object). Florida: Hodge v. State, 26 Fla., 11 ; s. c. 7 Southern 
 Rep., 593 (it is proper to exclude questions calling for a witness's conclu- 
 sion or understanding of the conduct and intent of a person charged with 
 a crime). Georgia: Gardner v. State, Ga., 1893, 17 Southeast. Rep., 86 (a 
 witne.ss cannot eive his opinion, as to what deceased intended to do with 
 a pistol for the possession of which he was struggling with a third person 
 when defendant shot him). Illinois: Walker v. People, 111., 1890, 34 
 Northeast. Rep., 424 (where the defense of one accused of murder is self- 
 defense, it is proper to exclude testimony as to what the witness thought 
 deceased was going to do when he reached for a revolver in his hip 
 pocket). loiva: Stately. Bi-own, 1893, 53 Northwest. Rep., 92 (on a trial 
 for seduction, prosecutrix's testimony that defendant kept company with 
 her is not a statement of a mere conclusion, but that he treated her very 
 affectionately is). Massachusetts: Brown -y. Massachusetts Title Ins. Co., 
 151 Mass., 127 ; s. c. 23 Northeast. Rep., 733 (in an action for libel against 
 a corporation, corporate officers may testify that they did not, and to their 
 knowledge no officer or employee of the corporation had any hatred, ill- 
 will, or malicious intent, towards plaintiff in publishing the libel). Min- 
 nesota: State V. Holden, 43 Minn., 350; 44 Northwest. Rep., 123 (it is not 
 prejudicial error to permit a witness to testify that the statements of 
 another were made voluntarily' where it appears that such testimony, 
 when regarded with the other evidence, merely imported the fact that the 
 statements were made without any inducements or threats from the per- 
 son to whom they were made). Missouri: State i\ Buechler, 103 Mo., 
 203 ; s. c. 15 Southwest. Rep., 331 (a witness may give his impression or 
 opinion as to the appearance or expressio7a of countenance of one accused 
 of murder just after the aft'ray). North Carolina: State v. Edwards, N. 
 C, 1893, 17 Southeast. Rep., .531 (upon a trial for murder it is not error to 
 permit a witness to testify whether defendant appeared mad or to be in 
 fun when he approached deceased and declared his intention of killing 
 him). Pennsylvania: Barre v. Reading City, etc. Ry. Co., 155 Pa. St., 
 170 ; s. c. 36 Atlantic Rep., 99 (in an action for injuries while getting on a 
 street car, a companion of the injured person cannot testify as to what she 
 thought the driver was going to do). South Carolina: State v. James, 81 
 
272 Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Cases on Another's Feelings, etc. 
 
 S. C, 318; s. c. 9 Southeast. Rep., 844 (a witness, who has observed the 
 intercourse between two persons may state generally that they were 
 friendly; but if it appears on cross-examination that he merely speaks 
 from what one of them has told him his testimony should be stricken out 
 as hearsay). Western Union Tel. Co. v. Adams, 75 Tex., 531; s. c. 13 
 Southwest. Bep., 857 (it is not error to admit evidence that a person felt 
 and exhibited mental anguish on account of a delay in the delivering of a 
 telegram). Biering tJ. Wegner, 76 Tex., 506; s. c. 13 Southwest. Rep., 
 537 (it is error to permit a witness to testify that it was the understanding- 
 of the payee that the note was given under an agreement). Cochran v. 
 State, 38 Tex. App., 433; s. c. 13 Southwest. Rep., 651 (upon a mur- 
 der trial it is error to exclude testimony that the witness passed behind 
 ■defendant because he expected that deceased would strike defendant with 
 a billiard cue and that he himself might get hit, since the effect produced 
 by deceased's conduct on a bystander's mind tends to explain the probable 
 effect produced by deceased's acts upon the mind of defendant). United 
 States: Union Pac. Ry. Co. v. O'Brien, 4 U. S. App., 112 ; s. c. 1 Cir. Ct. 
 App., 854 ; 49 Federal Rep., 538 (where a locomotive engineer testified as 
 to the defective condition of a portion of a railway, held, that it was not 
 error not to allow him to state on cross-examination that the engineers 
 •on the road were all aware of such condition). Vermont: State v. Brad- 
 ley, 64 Vt., 466; s. c. 34 Atlantic Rep., 1053, (a question as to accused's 
 appearance when charged with a crime and the answer that he appeared 
 worried, lield admissible). 
 
III. Facts, etc. (4) Physical Condition. 273 
 
 Rawls V. Amer. Mutual Life Ins. Co., 37 N. Y., 383. 
 
 RAWLS V. AMEEICAN MUTUAL LIFE INS. CO. 
 
 New York Court of Appeals, 1863. 
 
 [Reported in 27 N. Y., 383.] 
 
 Witnesses, shown to have known a person intimately for a number of 
 years, are competent to testify to the fact of his general good health 
 and soLindness of constitution during the period. 
 
 Rawls sued on a policy issued by defendant in July, 1853, 
 on the life of John L. Fish, payable to plaintiff. The defence 
 set up, among other things, that false representations as to 
 Fish's health were made. 
 
 On the trial a witness, who knew him intimately from 1848 to 
 1853, was asked by the plaintiff : " "When you first knew Fish 
 what was his health and constitution? " Another witness, his part- 
 ner during that period, was asked: "What was it down to 1853?" 
 
 Objection was overruled, and defendant excepted. 
 
 At Circuit judgment was entered on a verdict for the plaintiff. 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Co%irt of Appeals affirmed the judgment. 
 
 Weight, J. \as to this particular questiotij : The witnesses 
 to whom the inquiry was made, had known Fish intimately from 
 1848 down to the period when the policy was obtained, and were 
 competent to testify to the fact of his general good health and 
 soundness of constitution. 
 
 In Sloan c. N. Y'. Central E. R. Co. 4.1 N. Y., 130, an action for damages 
 for injuries received in a railroad accident ; it was held, proper in determin- 
 ing plaintiff's condition, to ask her female attendant how far she helped 
 herself, and at what point she required assistance to do wliat was neces- 
 sary to be done, as such a question called for facts and not mere opinion. 
 
 In Higbie ». Ins. Co. 53 N. Y., 603, an action on a life insurance policy, 
 it was held, that all persons of ordinary understanding are competent to 
 give an opinion whether one whom they have had an opportunity to ob- 
 serve appears to be sick or well. 
 
 In Ashland v. Marlborough, 99 Mass., 47, where the issue was whether 
 one Maynard had or had not become disabled from disease contracted 
 while engaged in mihtary service, it was held, error to allow a non-expert 
 witness on the trial to testify that, before enlisting, Maynard "did not 
 appear like a well man." , 
 
27-4 Abbott's Select Cases on Examining "Witnesses. 
 
 Notes of Cases on Physical Condition. 
 
 NOTES OF EECENT CASES ON ANOTHER'S PHYSI- 
 CAL CONDITION. 
 
 Alabama: Dean v. State, 89 Ala., 46; s. c. 8 Southern Rep., 38 (it is not 
 error not to permit a non-expert to testify whether another's injui-ies are 
 permanent). Georgia: Chattanooga, etc. R. Co. «. Huggins, 89 Ga., 494; 
 s. c. 15 Southeast. Rep., 848 (after stating facts tending to show that 
 plaintiff had been disabled by an injury, a witness may give his opinion 
 that plaintiff has been unable to perform any duties requiring the slightest 
 physical exertion and during severe attacks was unable to do anything, 
 :ind at his best could do nothing but slight jobs). Illinois: Chicago City 
 Ry. Co. V. Van Vleck, 1893, S2 Northeast. Rep., 363 (it is not error to- 
 permit the familiar associates of a person to testify as to whether he was 
 in good or bad health, or has good or bad sight or hearing, etc.). Jowa: 
 Winter v. Central Iowa R. Co., 80 Iowa, 443; s. c. 45 Northwest. Rep., 
 737 (it is not error to allow a non-expert to testify in an action for negli- 
 gence as to plaintiff's appearance and condition and as to whether he had 
 recovered from former injuries); Van Gent v Chicago, etc. R. Co., 80' 
 Iowa, 536; s. c. 45 Northwest. Rep.. 913 (it is not error to permit a non- 
 expert to testifj' as to the effect of an injury upon another's health so far 
 as it relates to visible effects manifested by physical exertions) ; Stone v. 
 Moore, 83 Iowa, 186 ; s. c. 49 Northwest. Rep., 76 (it is not error to allow 
 in an action for an assault an acquaintance of the plaintiff to testify that 
 plaintiff's physical condition was one of feebleness and inability to do hard 
 work). New York: James «. Ford, 80 State Rep., 667; s. c. 9 N. Y. 
 Supp., 504 (any intelligent person may testify as to an injured person's 
 appearance before the accident). Ohio: Shelby v. Clag-ett, 46 Ohio St., 
 549 ; s. c. 33 Northeast. Rep., 407 (a non-expert may testify from personal 
 observations as to another's condition of health, pain, etc.). South 
 Carolina: Price v. Richmond, etc. R. Co., 38 S. C; s. c. 17 Southeast. 
 Rep., 733 (in an action for causing death it is not error to allow decedent's 
 brother as a witness to give his opinion as to decedent's condition of health 
 before his death, where the witness states the facts upon which his opinion 
 is based). Texas: Houston City St. Ry. Co. ■». Sciacca, 80 Tex., 850 ; s. c. 
 16 Southwest. Rep., 31 (it is not error to exclude the testimony of a non- 
 expert as to whether a, crushed head had been caused by a car passing 
 over it). West Virginia: Lawson v. Conway, 37 W. Va., 159; s. c. 16- 
 Southwest. Rep., 564 (in an action for malpractice, one well acquainted with 
 plantiff's physical condition to perform labor both before and after the 
 injury may testify that before the injury plaintiff was a strong and able- 
 bodied man, but that since then he was unable to perform half a man's 
 work). Wisconsin: Heddles «. Chicago, etc. R. Co., 1890, 46 Northwest. 
 Rep., 115 (in an action for personal injuries it is not error to permit a wit- 
 ness who nursed plaintiff after the accident to state whether plaintiff 
 suffered greatly or not). 
 
III. Facts, etc. (4) Physical Condition. 275 
 
 Notes of Cases on Physical Condition. 
 
 NOTES OF EECENT CASES ON ONE'S OWN PHYS- 
 ICAL CONDITION. 
 
 Alabama, etc. R. Oo. ■». Frazier, 93 Ala., 45 ; s. c. 9 Soathern Rep., 303 
 (it is not error to permit plaintiff in an action for personal injuries to tes- 
 tify as to the permanent character of the injury inflicted, where there has 
 been a lapse of time since the injury was inflicted during- which the ab- 
 normal condition continued). 
 
 Branth' v. State, 91 Ala., 47 ; s. c. 8 Southern Rep., 816 (a witness may 
 testify as to the effect of a liquor upon himself in order to show that it 
 was intoxicating). 
 
 Spaulding- v. Bliss, 83 Mich., 311; s. c. 47 Northwest. Rep., 210 (in an 
 action for malpractice in reducing a fracture of plaintiff's thighbone, 
 plaintiff may testify as to the symptoms and her feelings as to the location 
 of the pain, but not whether they were caused by a rupture of a ligament). 
 
 Pullman Palace Car Co. v. Smith, 79 Tex., 468; s. c. 14Southwest. Rep., 
 993 (a person claiming to have been injured by exposure caused by the act 
 of defendant's servant may testify that she knew of nothing else except 
 the exposure which could have caused her illness). 
 
2Y6 Abbott's Select Cases on Examining Witnesses. 
 Casey v. N. Y. Central, etc., R. Co., 6 Abb. N. C, 104. 
 
 CASEY V. N. Y. CENTEAL, ETC., K. CO. 
 
 JV. Y. Court of Common Pleas, 1879. 
 
 [Reported in 6 Abb. N. C, 104.] 
 
 In an action for negligently causing the death of plaintiff's intestate, a 
 witness was asked if he was in a position where, if the bell of a loco- 
 motive engine had been rung, he could have heard it, and he answered 
 that he was. Held, that this was testifying to a fact and not to an 
 opinion. 
 
 Plaintiff sued to recover damages for the death of his child, 
 alleged to have been caused by the negligent running of defend- 
 ant's train. 
 
 The facts material to the ruling appear in the opinion. 
 
 At Trial Term, judgment was entered for the plaintiff. 
 
 The General Term of the Court of Common Pleas affirmed 
 the judgment. Daly, Ch. J. [after passing upon a refusal to 
 non-iuit, and another question of evidence'] : The same witness 
 was asked if he was in a position where, if a bell had been rung, 
 he could have heard it, and he answered that he was. This also 
 was testifying to a fact and not to an opinion. He was sitting in 
 the window of a house at the southeast corner of Tenth avenue 
 and Thirty-first street with his head out of the window. He 
 saw the train in motion before the girl was killed, and saw it 
 pass Tenth avenue. He testified that his hearing was good, and 
 a subsequent witness testified that the ringing of a bell of a loco- 
 motive could be heard for three or four blocks. It is insisted 
 that it was for the jury, and not for the witness, to judge 
 whether he could, from the position he occupied, hear the bell. 
 It was for the jury to determine whether the bell was rung or 
 not ; but as to the witness' faculty of hearing, he knew better 
 than the jury could possibly know, how far he could hear the 
 ringing of the bell of a locomotive. He knew that at a certain 
 distance from a locomotive, which he saw passing, that he could 
 hear the ringing of its bell, and could swear to that as a fact. It 
 was not testifying that he must have heard it, if it were rung, 
 but simply as to his ability to hear the ringing of such a bell at 
 
III. Facts, etc. (5) Hearing and Seeing. 277 
 
 Note of Cases on Hearing- and Seeing. 
 
 a given distance, which was testimony to go to the jury for what 
 it was worth. It is often difficult to determine the line of de- 
 marcation which separates the expression of an opinion from the 
 statement of a fact, and this, in my judgment, was the statement 
 of a fact. 
 
 Yan Beunt and Laekemoee, JJ., concurred. 
 
 Judgment affirmed. 
 
 Note : In People v. Oliacon, 3 N. Y. Grim. Rep., 418, 428, thn trial of 
 an indictment charging- murder, a witness was asked by a juror " If Maria 
 Williams (the deceased) had been in her room at the time of the shooting, 
 would not you have seen her there?" The answer was, " Certainly." 
 
 Held, that the coui't properly refused to strike out the answer, for the 
 question called for no matter of judgment or opinion, but strict matter of 
 fact. 
 
 In an action for negligence of defendant, whereby plaintiff's intestate 
 was rvin over by a locomotive, one of tlie plaintiff's witnesses, on cross- 
 examination, having stated that the locomotive was some forty or fifty 
 feet east of the switch shanty blowing- off steam, was asked whether the 
 deceased could have heard it. This was objected to. 
 
 Held, that the objection was properly sustained, Baker, J., saying: 
 "It does not appear that the witness was either in or near the shanty, 
 and the jury was just as capable of drawing a conclusion, whether or not 
 the deceased heard the steam escaping, as the witness. Chicago, M. & 
 St. P. Ky. Co. V. O'Sullivan, 32 N. E. Rep., 398 (Illinois, 1892). 
 
 NOTES OF CASES AS TO TESTIMONY KEGAEDING 
 HEAEING AND SEEING. 
 
 Alabama. Ensley, etc., R. Co. v. Chewning, 93 Ala., 34; s. c. 9 
 Southern Rep., 458 (a witness who has testified that he did not hear a loco- 
 motive whistle or bell, may state that there was nothing to prevent his 
 hearing them, though he cannot testify that he would have heard them if 
 they had been sounded). East Tenn., etc., R. Co. v. Watson, 90 Ala., 41 ; 
 s. c. 7 Southern Rep., 813 (upon cross-examination it is not error to 
 exclude a question as to whether there might have been a whistle sounded 
 which the witness did not hear). Helton v. Alabama Midland Ry. Co. , 
 1893, 13 Southern Rep., 376 (where the testimony of two witnesses differed 
 as to what railway lights were displayed, it is error to permit one to 
 testify that he was in a better condition to see the lights than the othei-). 
 East Tenn., etc., R. Co. v. Watson, cited before (a witness may give his 
 opinion as to how far a house could ordinarily be seen along a railway, 
 where all the details cannot be laid before the jury). Illinois : Chicago, 
 
278 Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Cases on Hearing and Seeing. 
 
 etc., R. Co. V. Dillon, 123' 111., 570; s. c. 15 Northeast. Rep., 181 (it is not 
 error to permit a witness to testify that he could have heard a locomo- 
 tive's whistle or bell, if they had been sounded or rung). Chicago, 
 etc., Ry. Co. v. O'Sullivan, 1893, 32 id., 398 (a witness cannot testify as to 
 whether a deceased person could have heard the locomotive by which he 
 was killed blowing off steam just before the accident, if it does not appear 
 that the witness was near the place at the time). Maynard v. People, 135 
 111., 416; s. c. 25 Northeast. Rep., 740 (where a witness has testified that cer- 
 tain statements were not made, it is error to refuse to permit him to answer 
 an inquiry whether if there had been any such conversation he would 
 have heard it). Ogden v. People, 134 111., 599; s. c. 25 Northeast. Rep., 
 735 (a statement by a witness as to what he ascertained by hearing is a 
 fact, and not an opinion). Carter v. Carter, 1892, 28 id., 948 (a witness, 
 after stating the conversation and sounds which he had heard in an ad- 
 joining' room, may give his opinion that from what he heard, an act of 
 adultery was being committed). Iowa : Snyder v. Witwer, 82 Iowa, 652 ; 
 s. c. 48 Northwest. Rep., 1046 (one who has examined an elevator opening 
 under similar conditions, may testify whether the light in the opening 
 was suflficient to enable it to be readily seen). Kentucky : Eskridge v. 
 Cincinnati, etc., R. Co., 89 Ky., 367; s. c. 12 Southwest. Rep., 580 (after a 
 witness has testified that he did not hear a whistle, it is not error to 
 exclude a question as to whether he could have heard one if it had been 
 given). United States, Gulf, etc., R. Co. v. Washington, 4 U. S. App., 
 121 ; s. c. 1 Uir. Ct. App., 286 ; 49 Fed. Rep., 347 (a witness familiar with a 
 railway track where cattle were killed, is competent to testify as to the 
 distance at which cattle on the track could be seen by an engineer). Wis- 
 consin: Grundy v. Janesville, 84 Wis., 574 ; s. o. 54 Northwest. Rep., 1085 
 (a witness living in a house opposite to a depression in a street, may testify 
 that during a night she heard a wagon going into it). 
 
III. Facts, etc. (6) Mental Condition. 279 
 
 Holcomb V. Holconib, 95 N. Y., 316. 
 
 HOLCOMB V. HOLCOMB. 
 
 New York Court of Appeals, ISSlf.. 
 
 [Reported in 95 N. Y., 316.] 
 
 The rule in Clapp c. Fullerton (34 N. Y., 190)— tliat a lay witness who is 
 examined as to facts within his own knowledge and observation, tend- 
 ing- to show tiie soundness or unsoundness of a person's mind, maj' 
 characterize as rational or irrational the acts and declarations to 
 which he testifies ; but, except in the case of a subscribing witness to 
 a will, his opinion must be limited to his conclusions from the specific 
 facts he discloses ; that is, he may give the impression produced by 
 what he witnessed but cannot give an opinion on the general question 
 whether the person's mind was sound or unsound, — applied, the 
 court holding that the witness should state the facts which he observed 
 whether they were acts or declarations, and his examination should 
 be limited to the conclusions drawn from them. 
 
 The reception of testimony of lay witnesses that from what they had 
 observed in the acts and conversations of an assignor (without limit- 
 ing it to acts, etc., specified), they thought tjiat his mind was gone, 
 and characterizing his condition as imbecile. — Held, error. 
 
 On tlie trial, witnesses for the plaintiff were permitted to testify 
 as to their opinion of assignor's mental condition, without speci- 
 fying the facts on which they based their opinions. \_2^he gen- 
 eral forms of the questions and answers appear in the opinion.'] 
 
 The Supreme Court at Special Term gave judgment for 
 plaintiff. 
 
 The General Term affirmed the judgment, saying as to the im- 
 pressions and opinions : Such impressions or opinions are the re- 
 sults of observation and experience in the ordinary affairs of 
 life. It is difficult and frequently impossible to give all the 
 circumstances going to create the impression or belief. So we 
 say a person was intoxicated or a couple were attached to each 
 other, and such evidence is competent to establish the fact 
 though but few of the reasons can be detailed which enter into 
 the formation of our judgment. Such was the character of the 
 evidence excepted to in the present case. The witnesses stated 
 circumstances which they had observed, declarations which they 
 had heard, conduct attracting their attention, and from the^e 
 
280 Abbott's Select Cases on Examining Witnesses. 
 
 Holcomb V. Holoomb, 95 N. Y., 316. 
 
 facts, and others too impalpable to be remembered or detailed, 
 they believe the deceased had lost his mind and memory, that he 
 was an imbecile and was incapable of taking care of himself. 
 The evidence was competent and properly received (Clapp v. 
 Fullerton 34 N. Y., 190 ; O'Brien v. People, 36 N. Y., 282 ; 
 Hewlett V. Wood, 55 N. Y., 634). It is peculiarly proper in a 
 case where mental imbecility is in issue (De Witt v. Barly, IT 
 N. Y., 340). 
 
 The Court of Appeals reversed the judgment. 
 
 Danfoeth, J. The plaintitf averred, and the defendant by 
 answer admitted, that the bond and mortgage in question were 
 assigned, transferred and delivered by Homer Holcomb, the plaint- 
 iff's intestate, to the defendant. The plaintiff's right to the relief 
 sought in this suit depended upon his showing, either that at the 
 time the transfer was made the assignor was imbecile or unsound 
 of mind and mentally incompetent and incapacitated to make 
 the same or, that the transfer was procured by the defendant by 
 threats, oppression or other undue influence. These things are 
 alleged in the complaint as the grounds of action. The jury 
 have found both allegations to be true, and the only question for 
 our consideration is whether improper testimony was received 
 and submitted to them as evidence upon which such a result 
 might be reached. 
 
 The assignment was dated April 1, 1875, and acknowledged 
 February 3, 1876. The intestate died on that day. First, 
 many witnesses called by the plaintiff, delivered their opinions 
 as to the mental condition of the assignor; and, second., many 
 members of his family, entitled to share in the avails of this 
 judgment, if it be sustained, testified to his transactions and 
 conversations. The contention of the appellant hangs upon 
 these two circumstances. 
 
 The general rule is not disputed that in ordinary eases a wit- 
 ness ought to be examined as to facts only, and not as to any 
 opinion or conclusion which he may have drawn from them. 
 An admitted exception to this rule is found in cases where the 
 conclusion to be drawn is an inference of skill and judgment. 
 It is not claimed that the witnesses to whom I have referred were 
 
III. Fam, etc. (6) Mental Condition. 281 
 
 Holcoinb V. Holcomb, 95 N. Y., 316. 
 
 especially versed in the matter to which their attention was 
 directed, nor were they presented to the jury in the character of 
 experts ; but the respondent insists that as mere observers of 
 the subject of inquiry they were equally competent to express 
 an opinion, provided it was formed upon what they saw and 
 heard, and cites to this point, De Witt v. Barly (17 N. Y., 340). 
 AVTien that case was iirst before this court (9 id., 371), it was 
 held by a divided court after a very full discussion by several of 
 its members, that unless specially qualified by scientific knowl- 
 edge to judge of such matters, the opinions of witnesses were not 
 competent evidence of the soundness or unsoundness of mind 
 of a grantor at the time of execution of a deed. This rule 
 necessarily excluded the opinions of laymen upon questions of 
 mental capacity. Upon the second appeal the rule was some- 
 what modified, and the court held such evidence admissible, but 
 that the witness must state, so far as he is able, the facts and rea- 
 sons upon which he bases his conclusions, in order that the jury 
 may test the accuracy of his opinion, and if from such statement 
 they are able to see that his conclusion is unfounded, they are 
 of course to disregard it. 
 
 In Clapp V. Fullerton (34 N. Y., 190), with both these decisions 
 before it, the court reiterated with some amplification the rule 
 laid down upon the last occasion, saying, when a layman is ex- 
 amined as to facts within his own knowledge and observation 
 tending to show the soundness or unsoundness of a testator" s 
 mind, he may characterize as rational or irrational the acts and 
 declarations to which he testifies. " But," they add, " to render 
 his opinion admissible, even to this extent, it must be limited to 
 his conclusions from the specific facts which he discloses. lie 
 may testify to the impression produced by what he witnessed, 
 but he is not legally competent to express an opinion on the 
 general question whether the mind of the testator was sound or 
 unsoimd." 
 
 The limitation applied to such witnesses is made more 
 apparent by the exception in favor of subscribing witnesses, who 
 may be required to state not only such facts as they remember 
 but their own conviction of the testator's capacity. (Clapp v. 
 Fullerton, swpra.) 
 
28;^ Abbott^'s Select Cases on Examining Witnesses. 
 
 Holcomb V. Holcomb, 95 N. Y., 316. 
 
 The rule which I have quoted from the case cited was 
 adhered to in O'Brien v. People (36 IST. Y., 276), where, after 
 describing the appearance and manner of the person concerned, 
 the witness was asked " Was he, or not, in your opinion, insane 
 or delirious." This court held the question to have been 
 properly excluded, because it contravened the rule referred to. 
 In Keal v. People (42 N. Y., 270), witnesses testified to facts 
 tending to show the mental unsoundness of the accused, but the 
 court held that they could not be permitted to testify as to what 
 they thought of his state of mind, or of their impression as to 
 liis state ' of mind. In Hewlett v. Wood (55 N. Y., 634), the 
 rule laid down in Clapp v. Pullerton, and quoted in the O'Brien 
 & Heal cases, was again relied upon and applied. In Rider v. 
 Miller (86 N. Y., 507), testimony was held admissible of impres- 
 sions of the witness that specific acts and conversations of the 
 grantor at different times were irrational, and in the more 
 recent case of In re Eoss (87 IST. Y., 514), the rule of evidence 
 given in the preceding cases is re-stated. It flows legitimately 
 from the reasoning of the court in De Witt v. Barly {supra), 
 and in all cases requires the witness to state the facts which he 
 observed, whether they are acts or declarations, and limits his 
 examination to the conclusions drawn from them. 
 
 This rule was violated in the case at bar. The subject in 
 dispute was the mental condition of the assignor. The jury 
 were to say whether he was capable of contracting. The 
 plaintiff asked Abel Holcomb, a son of the assignor, " How 
 would you characterize his acts and conversations from what 
 you observed within the last two years of his life, and received 
 for answer "From his acts I considered his mind was gone." 
 The question was objected to, and defendant's counsel also 
 moved to strike out the answer because, among other reasons, it 
 was incompetent. The motion was denied and the defendant 
 excepted. The acts referred to had not been specified, and, 
 although the testimony of the Avitness embraced various matters, 
 the question was not limited to those, and no clue was afforded 
 the jury by which they could test the accuracy or value of the 
 <)pinion of the witness. 
 
 In 1871 he was with the witness " three or four days or a 
 
III. Facts, etc. (6) Mental Condition. 283 
 
 Holcomb r. Holcomb, 95 N. Y., 316. 
 
 week." Question: "What did you notice about him then?" 
 Objected to as incompetent. Answer : " I noticed, to be plain 
 about it. that his mind was about as good as gone." 
 
 Woolhiser met him in the street and gives particulars of the 
 interview. Being asked " What was your impression as to his 
 mental condition, from what you saw and what he said," the 
 question was objected to and was then put in this form : " What 
 was your impression as to his mental condition. How would 
 you characterize it?" The court: "You may give his appear- 
 ance as well as you can." The witness replied " My idea was 
 that he had failed very much in his mind," and being again 
 asked "How did his actions and conversations appear to you?" 
 answered " He appeared to be what we might call at the time 
 imbecile, not in good healthy mind, what you would say, an 
 imbecile." Frank H. Burroughs, plaintiff's son-in-law, being 
 called by the plaintiif, said he first saw the intestate in the 
 summer of 1874, at the defendant's house ; was there present at 
 an interview between his (witness') wife and the intestate. She 
 said " How do you do, grandfather." He did not know her 
 until she told him who she was, and then he knew her. tie 
 did not have anything particular to say, or manifest any 
 pleasure at seeing her. He did not inquire about her father. 
 The defendant came in and brought some wine, and gave some to 
 all except the intestate. The witness says " I think he, at the 
 time, looked as if he wanted some wine. Looked as a child 
 would. JSTone was offered to him and he did not have any." 
 Witness proceeds : " I saw him in July, 1875. I was riding in a 
 wao'on with Tliomas B. Holcomb. Met intestate in the road, 
 walking by the side of the road with a cane. When we got to 
 him we stopped, and Thomas got out and went to him and said, 
 ' how do you do father,' shook hands with him and asked him if 
 he didn't know him. His reply was, he didn't know him. My 
 father-in-law said ' I am , Thomas.' The intestate made no 
 manifestation of gratification or pleasure, or any inquiries of our 
 family." 
 
 Asked by plaintiff's counsel : 
 
 "Q. How would you characterize his condition from what 
 you saw of his acts, what you heard ? " 
 
284 Abbott's Select Cases on Examining "Witnesses. 
 Holcomb V. Holcomb, 9o N. Y., 316. 
 
 This was objected to by defendant's counsel as " incompetent 
 and immaterial, — witness was not an expert." 
 
 The objection was overruled and defendant excepted. 
 
 Witness answered : " His appearance and manner and what 
 he said, taking it altogether, I considered him imbecile and his 
 mind gone, indicating imbecility of mind." 
 
 Counsel for the defendant here moved to strike out the 
 evidence that witness regarded the intestate as an imbecile, on 
 the ground tliat it is an opinion of the witness, and that it is for 
 the jury to draw their conclusion from the evidence or facts 
 detailed by the witness. 
 
 Abel G. Holcomb, son of the deceased, testifying to an inter- 
 view with him during the last two or three years of his life, 
 said : " From his acts I considered his mind was gone." 
 
 Defendant moved to strike that out. Motion denied and 
 exception taken. 
 
 These are but instances illustrating the practice which 
 appears to have been followed upon the trial. It cannot be 
 doubted that the evidence was of a character to greatly 
 prejudice the defendant. If the jury believed the witnesses and 
 trusted to their opinions it is difficult to see how they could 
 have rendered any verdict other than the one which they did 
 render. The assignor was presented to them, by evidence 
 pronounced competent, as one who had wholly lost his memory 
 and understanding — as an imbecile —and the answer of the jury 
 to the question, whether his mind has become so impaired that 
 he was mentally incompetent to comprehend and make the 
 transfer of the bond and mortgage, was but an echo of the 
 opinions which had been expressed in evidence. Such a person 
 would necessarily be liable to be controlled, and a conclusion" 
 would easily follow that the act of assignment, upon the validity 
 of which the jury were to pass, was caused by undue influence. 
 [Here followed a consideration of the admission of evidence 
 improper under, the Code Civ. Pro., % 829.] 
 
 Judgment reversed. 
 
III. Facts, etc. (6) Mental Condition. 285 
 
 Paine v. Aldrich, 133 N. Y., 544. 
 
 PAINE V. ALDEICH. 
 
 New Torh Court of Ajjpeals, 1892. 
 
 [Reported in 133 N. Y., 544.] 
 
 On the question of soundness of mind of a grantor, a non-professional 
 witness cannot testify as to the opinion he formed of the grantor's 
 mind, from his conversations, or what impressions he gave the wit- 
 ness as to whether he was rational or irrational ; although he might 
 testify whether in his judgment the grantor's conversations and acts 
 which the witness has stated were those of a rational or irrational 
 man. 
 
 Action to set aside conveyances by plaintiff's grandfather, John 
 Paine, since deceased, on the ground that the grantor was nan 
 compo.s mentis at the time of its execution. On the trial several 
 exceptions were taken by plaintiff to the exclusion of evidence, 
 much of it relating to the conclusions or opinions of non-expert 
 witnesses as to rationality of the ancestor. 
 
 The Supreme Court at Special Term gave judgment for the 
 defendants. 
 
 Tlie General Term affirmed the judgment on the same 
 grounds as stated in the following opinion on appeal. 
 
 The Court of Appeals affirmed the judgment. 
 
 Maynaed, J. \after stating the facts'] : We have carefully 
 examined the exceptions taken to the exclusion and admission of 
 evidence offered upon the trial, and are of the opinion that no 
 such errors were committed as to require a new trial of the ac- 
 tion. Much of the matter excluded related to the conclusions or 
 opinions of non-expert witnesses, and was clearly inadmissible. 
 The question put to the witness, Cornish, was not brought within 
 the rule laid down by this court in Holcomb v. Holcomb (95 
 ]Sr. Y., 316), and kindred cases. The witness had testified to 
 some extended conversations with Mr. Paine, comprising negotia- 
 tions for a business transaction of an important character, and 
 had stated, with some detail, what he had observed, what had 
 been said and what Mr. Paine did, and he was then asked, " From 
 
286 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Aldrich, 133 N. Y., 544. 
 
 his acts that you saw there in your conversation with him, what 
 opinion, if any, did you form as to his mind ? " Objection was 
 made and sustained, when this question was asked : " Taking 
 into consideration these facts that you have stated here in your 
 testimony to-day, which you learned from your contract with 
 Mr. Paine and from his conversations with you, what impression 
 did he give you as to whether or not he was rational or irra- 
 tional ? " An objection to this question was also sustained. The 
 court then put the following question : " From the conversations 
 you had with him, and from his actions, his acts in your presence, 
 were those conversations or those acts those of a rational or an 
 irrational man ?" which the witness answered in his own way. 
 
 The trial court applied the correct rule in regard to this class 
 of evidence. The witness was a layman and could not properly 
 give an opinion as to the mental capacity of the grantor, or as to 
 whether he was rational or irrational, even when such opinion 
 might be based upon specific acts and conversations, and his 
 personal observations. He could state the acts and conversations 
 of which he had personal knowledge, and then be permitted to 
 say whether, in his judgment, such acts and conversations were 
 rational or irrational, or were those of a rational or irrational 
 person.* This is the extent to which any of the cases have gone, 
 and the tendency is to limit rather than enlarge the rule, because,, 
 
 *Ia People v. Paokeuham (110 N. Y., 200), a homicide case, where the 
 condition of the accused at about the time of the homicide was under 
 investigation ; a witness having- testified that he appeared to be sober but 
 "looked as though he had been getting over the effects of a drunk," yet 
 answered questions responsively, was asked "Now, from what you saw 
 and what you heard him say at that time, in your opinion, was he rational 
 or irrational?" 
 
 This was objected to as incompetent and admitted under exception, the 
 witness answering "Rational." 
 
 Held, that the evidence was competent. Finch, J., in discussin"- the 
 point saying : " The question and answer clearly related to the appearance 
 and conduct of the prisoner on the one occasion which formed the subject 
 of the inquiry, and what was sought was a description of that appearance 
 and conduct as rational or the reverse. * * * The effort now is to trans- 
 form the inquiry into one as to the prisoner's actual mental condition, 
 which could only be given by an expert. Such was not the question, and 
 its meaning is so entirely obvious that it could not have been misunder- 
 stood by the court and jury." 
 
III. Facts, etc. (6) Mental Condition. 287 
 
 Notes of Cases on Mental Condition. 
 
 even in its present form, it is an infringement of tlie funda- 
 mental law of evidence that a witness, who is not an expert, 
 shall not be permitted to testify to his conclusions or opinions 
 as to an issuable fact. {Here followed a consideration of an- 
 other question.] 
 
 Judgment affirmed. 
 
 NOTES OF KECENT CASES ON NON-EXPERT EVI- 
 DENCE REGARDING MENTAL CONDITION. 
 
 California: Carpenter v. Bailej', 94 Cal., 406 ; s. c. 39 Pacific Eep., 1101 
 (ander Cal. Code Civ. Pro., § 1870, only an intimate acquaintance of a per- 
 son is competent to g-ive an opinion of his sanity, the reason for the opin- 
 ion being given). Florida: Armstrongs. State, 30 Fla., 170; s. c. llSoutii- 
 ern Eep., 618 (non-experts cannot give a general opinion as to sanity, but 
 may .state factstending'toshowthementalconditionof another, and express 
 an opinion thereon). Indiana: Pennsylvania Co. r. Nevvraeyer, 139 Ind., 
 401; s. c. 28 Northeast. Eep., 860 (a non-expert should first be asked tostate 
 the facts on vs^hich his opinion as to the mental condition of another is 
 based, and then the question should be so framed as to call for an opinion 
 based on such facts); s. p. Burkhart v. Gladish, 133 Ind., 337; s. c. 24 
 Northeast. Eep., 118 ; Fiscus v. Turner, 135 Ind., 46 ; s. c. 34 Northeast. 
 Eep., 663; Mull v. Carr, Ind. App., 1893, 33 id., 591 (one, who has nursed 
 a person for a few days and has testified as to liis appearance, actions and 
 conversations, is competent to give an opinion as to such person's sanity). 
 Kentucky: Hite v. Commonwealth, 1892, Ky., 20 Southwest. Eep., 217 (it 
 is for the trial court to determine whether a non-expert's opinion as to 
 sanity is based on sufficient observation). Massachusetts : "Williams v. 
 Spencer, 150 Mass., 346 ; s. c. 23 Northeast. Eep., 105 (ordinary witnesses, 
 whatever their opportunities of observation may have been, cannot give a 
 mere opinion as to tiie mental condition of another; and although subscrib- 
 ing witnesses to a will may testify as to the opinions they had of the testa- 
 tor's capacity at the time of the execution of the will, yet the rule excludes 
 even the opinions of such witnesses where they were formed either before 
 or after the will was executed). Montana: Territory v. Eoberts, 9 Mont., 
 13 ; 33 Pacific Eep., 132 (a non-expert may testify as to his opinion of the 
 sanity of a person witli whom he is well acquainted). Missouri: Sharp v. 
 Kansas City Cable Ey. Co., 1893, 30 Southwest. Eep., 93 (a non-profes- 
 sional witness may give his opinion as to another's mental condition, pro- 
 vided he states the facts upon which his opinion is based). Nevada: State 
 V. Lewis, 30 Nev., 333 ; s. c. 33 Pacific Eep., 341 (a non-expert may give 
 his opinion as to another's sanity without giving all the details upon which 
 he bases it). Neiu York: White v. Davis, 17 N. Y. Supp., 548; s. c. 42 
 State Eep., 901 (non-experts cannot give a general opinion as to another's 
 
288 Abbott's Select Cases on Examining "Witnesses. 
 
 Notes of Cases on Mental Condition. 
 
 sanity, but can only give their opinion as to whether the particular words 
 and acts to which they testify are rational or irrational). Matter of 
 Klock, 49 Hun, 450 ; s. c. 19 State Rep., 307 (upon a proceeding for the 
 appointment of a lunacy commission a non-expert cannot testify that the 
 impression made upon his mind was that the person was failing fast, 
 physically and mentally). Pennsylvania: Commonwealth v. Buccieri, 153 
 Pa. St., 535 ; s. c. 26 Atlantic Rep., 228 (a non-expert will not be permitted 
 to express an opinion as to the sanity of one accused of a crime where the 
 acts and convei-sations upon which the opinion is based, as well as the 
 phase of insanity to be proven have no bearing on the mental condition of 
 the prisoner at the time when the crime was committed). Texas: Brown 
 V. Mitchell, 75 Tex., 9 ; s. c. 13 Southwest. Rep., 606 (a witness present at 
 the execution of a will, may, after testifying as to testatrix's appearance 
 and conversations, give his opinion as to her mental capacity). Vermont: 
 Chickering v. Brooks, 61 Vt., 554 ; s. c. 18 Atlantic Rep., 144 (a non-expert 
 may testify as to iiis opinion of the mental capacity when he states his op- 
 portunity for observation and details the conversations from which he 
 .draws his opinion). In re Blood's estate, 62 Vt.,359; s. c. 19 Atlantic Rep., 770 
 (upon the contest of a will, a non-expert's opinion as to testator's capacity 
 to make a will is admissible ; as it permits the witness to pass upon the 
 question in issue). West Virginia : State v. Maier, 36 W. Va., 757 ; s. c, 
 15 Southeast. Rep., 99 (on a trial for murder it is not error to permit a wit- 
 ness, examined by the state in rebuttal— who knew the defendant well, and 
 had had transactions with him — to be asked whether or not he had ever 
 observed anything about the accused in what he said or did that indicated 
 insanity). 
 
III. Facts, not Conclusions. (7) Intoxication. 289 
 
 People V. Eastwood, 14 N. Y., 562. 
 
 PEOPLE V. EASTWOOD. > 
 
 New York Court of Af peals, 1856. 
 
 [Reported in 14 N. Y., 562.] 
 
 On the question whether a person was intoxicated, it is competent to ask a 
 witness who saw and observed him on the occasion referred to, 
 whether or not he was tl:ien under the influence of intoxicating liquor, 
 or what was his condition as to sobriety ; for this does not call for an 
 answer violating the general rule as to excluding the opinions of wit- 
 nesses. 
 
 Writ of error to review the reversal by the General Term of 
 a conviction on an indictment for murder. 
 
 It appeared that the prisoner and one La Rock, having quar- 
 reled with Edward Brereton, the deceased (who, with his 
 brother, John Brereton, was driving cattle along the road), 
 followed them up, interfering with them and keeping up the 
 quarrel, the prisoner using language which indicated a design to 
 kill the Breretons. 
 
 It was a question on the trial whether the threatening words 
 were intended in ordinary import, or were the comparatively idle 
 and unmeaning expressions of drunken men. 
 
 Green, a witness of the affray, examined for the defence, said : 
 " Eastwood's appearance was as if something was the matter 
 with him ; I am accustomed to see men under the influence of 
 liquor and intoxicated. 
 
 Q. (By defendant's counsel) : From his conduct and deport- 
 ment, and other facts connected with it, state whether he was, in 
 your judgment, to any considerable extent, under the influence 
 of intoxicating liquors '. 
 
 Objected to by the prosecution, on the ground that it was not 
 competent for the witness to state his opinion : he must be con- 
 fined to the statement of facts. 
 
 Objection sustained ; exception taken. 
 
 The witness then testified that immediately after the blow " I 
 discovered incoherence in Eastwood's speech. He acted wild 
 and quite different from what he formerly did. He did not 
 
290 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Eastwood, 14 N. Y., 562. 
 
 make many remarks. He looked wild out of his eyes and very 
 blue. His breath smelt of liquor." 
 Defendant was convicted. 
 
 T/ie Supreme Court at General Term reversed the judgment,, 
 on the ground, among others, that it was error to exclude the 
 above question. They said that when intoxication is material, 
 the opinion of one who was present and had full opportunity to 
 judge can be received. Selden,* J., delivering the opinion of 
 the court, said, in effect, that there is one of two classes of excep- 
 tions to the rule that opinions are not evidence : (1 ) questions of 
 science, art or trade, on which skilled witnesses or experts may 
 give opinions; and (2) opinions wecessa/'y to enable the jury to 
 form a clear and accurate judgment, because of the impossibility 
 of accurately describing in language the minute facts and 
 appearances, upon which a judgment as to the main fact must 
 necessarily depend ; and he gave as illustrations, McKee /■. Nel- 
 son, 4 Cow., 355 (sincere attachment of persons engaged to be 
 married) ; Morse v. State of Conn., 6 Conn., 9 (age of absent 
 person at a specified time); Clay v. Clary, 2 Ired. L., Y8 (the 
 temper in which words were spoken or acts done ; kindly or 
 rudely, in good humor or in anger, in jest or in earnest). 
 
 1^. A. Raym,ond, district attorney, for plaintiff in error. 
 
 T. Hastings, for defendant. 
 
 The Court of Appeals affirmed the judgment of the Supreme 
 Court. 
 
 Mitchell, J. \after stating the facts aiid oonsidering intoxi- 
 cation as affecting " design in murder "] .• The question, whether 
 the prisoner was intoxicated was also material, that the jury 
 might judge (as before stated) whether the threats used were 
 the deliberate words of sober and bad men, or the idle and 
 coarse language of drunken men ; accordingly, the facts to show 
 intoxication were received, not in this instance alone, but other 
 witnesses also testified to them. Seth Keyes said : " They 
 appeared to be intoxicated." Osborn Hanford said : " I should 
 think Eastwood had been drinking at the time, but I did 
 
 * Samuel L. Selden. 
 
III. Facts, not Conclusions. (7) Intoxication. 291 
 
 People V. Eastwood, 14 N. Y., 563. 
 
 not see him stagger." The prosecutor, on the other hand, had, 
 before this, proved that before either affray Eastwood and La 
 Rock had rndely interferred with other travelers, thus tending 
 to exhibit them as ready for a row or a fight, and the first to 
 provoke it. He showed that Eastwood took hold of the horse's 
 bits of a traveler, and shoved the horse of an old man off the 
 track, claiming the track for himself ; that he next had talk with 
 men passing in a wagon ; and after that had the first affray with the 
 Breretons. The jury might belive this, if done by sober men, 
 showed a deliberate design to do every kind of bodily harm, 
 but if done by intoxicated men, might consider it merely a tem- 
 porary excitement, without such design. 
 
 The objection was, accordingly, to the form of the question, 
 as if it sought the witness' opinion. If the opinion of the witness 
 had been asked asked as to facts not within his own observation,, 
 the objection would have been good ; as to such facts, opinions 
 can be given generally only as to matters of science or art, and 
 by men of the particular science or art. The Court of Oyer and 
 Terminer were probably misled by the form in which the ques- 
 tion was put. The inquiry was not intended to bring out an 
 opinion, but to lead the witness to answer to a fact which he 
 saw. If the question had been (as it might have been) direct, 
 " What was the condition of the prisoner as to sobriety at that 
 time \ " it probably vrould have been answered (as it had been 
 before, by other witnesses) without objection. It did not 
 become incompetent by adding the words, " in your judgment," 
 while the judgment was restricted to what the witness saw. A 
 child six years old may answer whether a man (whom it has 
 seen) was drunk or sober ; it does not require science or opinion 
 to answer the question, but observation merely ; but the child 
 could not, probably, describe the conduct of the man, so that, 
 from its description, others could decide the question. Whether 
 a person is drunk or sober, or how far he was affected by intoxi- 
 cation, is better determined by the direct answer of those who 
 have seen him than by their description of his conduct. Many 
 persons cannot describe particulars; if their testimony were 
 excluded, great injustice would frequently ensue. The parties 
 who rely on their testimony will still suffer an inconvenience,. 
 
292 Abbott's Select Cases on Examining Witnesses. 
 
 Peoples. Eastwood, 14 N. Y., 563. 
 
 for the court and the jury are always most impressed by those 
 witnesses who can draw and act a living picture before them of 
 what they have seen, so that if there is any controversy as to the 
 fact, such witnesses control ; if there is no controversy as to it, 
 the general testimony answers all useful purposes. The Supreme 
 Court was right in granting a new trial on this ground ; and the 
 judgment and order granting such new trial should be affirmed. 
 Judgment accordingly. 
 
 Notes of other Cases on Intoxication. 
 
 People V. McLean, 37 State Rep., 628; s. o. 13 N. Y. Supp., 677; a 
 non-expert may testily from what he saw, whether a person was intoxi- 
 cated ; s. p. McCarty v. Wells, 51 Hun, 171 ; McKillop v. Duliith St. Ry. 
 Co., Minn., 1893, 55 Northwest. Rep., 739. 
 
III. Facts, etc. (S) Identity, Likeness, etc. 293 
 
 People V. Williams, 29 Hun, 520. 
 
 PEOPLE V. WILLIAMS. 
 
 General Term,, Fourth Department, 1S83. 
 
 [Reported in 39 Hun, 530; s. c. 1 Crim. R., 336.] 
 
 Upon a trial for murder, it being important for the prosecution to establish 
 that a pei'son was seen at a certain time and place, — held, error to allow 
 it witness, testifying as to a man met bj' him on that night, to state 
 his impression and thought at the time that the man met by him was 
 such person. 
 
 The accused was indicted for murder, and evidence of liis com- 
 mission of the crime was given by an accomplice. 
 
 In the Court of Oyer and Terminer the accused was found 
 guilty. 
 
 The General Term of the Supreme Court reversed the judg- 
 ment. 
 
 Haedin, J. It is now provided by statute that the testimony 
 of an accomplice is not sufficient to warrant a jury in convicting 
 an accused person of a crime. By chapter 360 of the Laws of 
 1882, section 399 of the Code of Criminal Procedure was 
 amended so as to read as follows : " Section 399. A conviction 
 cannot be had upon the testimony of an accomplice, unless he be 
 corroborated by such other evidence as tends to connect the 
 defendant with the commission of the crime." 
 
 Prior to this statute a jury might convict upon the uncor- 
 roborated testimony of an accomplice, although courts were 
 required, and it was their duty, to caution juries against render- 
 ing a verdict upon the uncorroborated evidence of an accomplice, 
 and juries were advised not to convict on such testimony in the 
 absence of confirmation of the material facts thereof by other 
 evidence. (People v. Costello, 1 Denio, 83 ; People v. Dyle, 21 
 N. Y., 578 ; Dunn v. People, 29 id., 523 ; Lindsay v. People, 
 63 id., 154.) 
 
 In the case in hand we have found in the appeal book no 
 direct and positive testimony, aside from that given by the ac- 
 complice, which connects the accused with the crime charged in 
 the indictment; but many circumstances and some admissions 
 
29i Abbott's Select Cases on Examining Witnesses. 
 
 People V. Williams, 39 Hun, 530. 
 
 and declarations of tlie accused, when considered in connection 
 with the positive testimony of the accomplice, tending to impli- 
 cate the accused in the commission of the offense. In the cir- 
 cumstantial evidence relied upon by the people to implicate the 
 accused and corroborate the accomplice, is the testimony given 
 for the purpose of estabhshing that William Cortright was seen 
 at the time and place narrated by Martin Teeter. It appears by 
 this witness' evidence that he said, "I cannot swear that this 
 man was Cortright '' (whom he met) " I don't know whether 
 it was he or not." When the witness was asked if he had ah 
 impression who it was, the defendant's counsel objected to.it as 
 incompetent. The objection was overruled, and the defendant 
 excepted. The witness was permitted to answer, viz. : " I don't 
 know for certain, only whom I thought it was ; I thought it was 
 William Cortright, but I don't know ; I had known him for a 
 number of years, and seen him frequently." After this ruling 
 the district attorney propounded the following question, viz. : 
 " It was your impression at the time ? " and the witness answered, 
 " Yes, sir." Following this answer the appeal book shows that 
 the defendant asked to have the testimony of this " witness about 
 passing this man stricken out," and that the court refused, and 
 the defendant took an exception. In these several rulings occur- 
 ring in the testimony of this witness, Teeter, we think there was 
 error. First. It expressly appears by the testimony that the 
 witness was not able to identify positively or upon knowledge 
 the person he met as that of William Cortright. The most that 
 he could say was, that he had an impression who it was, and that 
 he " thought it was William Cortright." We are of the opinion 
 that such impression and such " thought " of the witness ought ' 
 not to have been received, or, having been received, ought to 
 have been stricken out upon the defendant's motion. (People v. 
 Wilson, 3 Parker's Grim. Eep., 206.) 
 
 Strong, J., says in the case last cited : " Ordinarily the ques- 
 tion of identity is one of fact, and a witness may be .asked 
 whether he knows a particular individual, and if so, whether he 
 is the person indicated ; but the question put to this witness is 
 not the ordinary one of identity. It calls for an opinion relative 
 to a body which, if that of the deceased, had been submerged in 
 
III. Facts, etc. (8) Identity, Likeness, etc. 295 
 
 People 1'. Williams, 29 Hun, 520. 
 
 salt water for upwards of five months, and liad undergone many 
 changes. The witness can only state a conclusion drawn from 
 the points of resemblai^ce mentioned by him. The jury liave 
 heard his statements, and it is for them, and not the witness, to 
 decide whether the body was that of the deceased captain." The 
 question must be rejected. 
 
 Again, if a witness could be allowed to testify to an impres- 
 sion, to a "thought at tlie time," it would be difficult to predicate 
 and establish perjury in respect to such answers. "We are of the 
 opinion that the usual course upon trials is to require the witness 
 to state knowledge, recollection or memory of facts in respect to 
 the identity of individuals, and not to allow them in the first 
 instance, as evidence in chief, to state " impressions " or 
 ■" thoughts," in respect to the identity of individuals. It appears 
 to us the rule was departed from in receiving and retaining the 
 testimony of the witness, Teeter. We cannot say this erroneous 
 evidence was not prejudicial to the rights of the' accused. We 
 are not able to say that it had no influence in producing the 
 verdict rendered against the accused ; nor can we say that " if 
 his evidence was struck from the case the proof of defendant's 
 guilt " would be clear and overwhelming ; and we can say, there- 
 fore, that the rule found in the Gonzales case is not applicable. 
 (People V. Gonzales, 35 N. Y., 58.) 
 
 \A ruling on another point is he?'e omitted.'] 
 Judgment and conviction reversed, and new trial ordered in 
 the Oyer and Terminer of Wayne County, to whicli court these 
 proceedings are remitted, with directions to proceed. 
 
 Note: In Brotherton v. People, 75 N. Y., 159, an indictment for murder, 
 the admissibility o! an ante mortem declaration of the deceased was ob- 
 jected to on the ground that the evidence did not show a proper founda- 
 tion for its admission, and that it was a statement of opinion merely, and 
 not of facts. On this point. Church, Ch. J., said: " The deceased was 
 shot on Thursday evening, and from that time he was apprehensive that 
 the wound was fatal, but no declarations were allowed by the judge until 
 Saturday, a short time before he became unconscious. On Friday the 
 deceased repeatedly stated that he would not recover, and on Saturday 
 morning he was told by his physician that he must die, and there is not a 
 doubt from the evidence but that he believed so himself. (1 Greenl. on 
 Ev., i) 158.) Nor is the other ground tenable. The prisoner approached 
 the deceased, disguised as a tramp, and the deceased stated, that at first 
 
296 Abbott's Select Cases on Examining Witnesses. 
 
 Schwartz v. Wood, 51 N. Y. St. Rep., 4. 
 
 he did not i-ecognize him, but that when he drew the pistol ' and com- 
 menced his pranks,' he knew that it was the prisoner. The deceased was 
 the son-in-law of the prisoner, and was intimately acquainted with him, 
 and his language indicates that he spoke from knowledge derived from 
 personal observation." 
 
 SCHWARTZ V. WOOD. 
 
 JV. Y. Supreme Court, General Term, First Department, 1893. 
 
 [Reported in 51 N. Y. St. Rep., 4; s. c. 31 N. Y. Supp., 1053.] 
 
 A person, who has been shown to be well acquainted with another, is 
 competent to testify as to whether or not a bust is a likeness of the 
 latter. 
 
 Plaintiffs sued for breach of contract, upon the defendant's 
 refusal to accept a number of busts of Rev. T. DeWitt Talmage ; 
 the contract provided that the busts should be perfect likenesses. 
 
 The facts upon which the ruling was made sufficiently appear 
 in the opinion. 
 
 Plaintiffs recovered judgment upon report of a referee. 
 
 The General Term of the Supreme Cov.rt reversed the judg- 
 ment. 
 
 O'Beien, J. [after passing on other points'] : Another serious 
 error was that committed in the ruling of the referee excluding 
 the entire testimony of a witness called for the defendant to 
 prove that the busts were not a likeness of Mr. Talmage, or of 
 any resemblance whatever. When the introductory question 
 was put to this witness as to how long he had been acquainted 
 with Mr. Talmage, it was objected to upon the ground that 
 the defendant should not be allowed to prove anything by 
 this witness; and notwithstanding the statement of counsel 
 that this witness was a trustee of the Brooklyn Tabernacle, 
 and had been for many years, and was well acquainted with 
 Mr. Talmage, and that he was competent as a witness upon 
 the question of whether the bust was a likeness of Mr. Talmage 
 or not, he was prevented at the very outset from testifying, 
 
III. Facts, etc. (8) Identity, Likeness, etc. 297 
 
 Notes on Identity, Likeness, etc. 
 
 the referee excluding it upon the ground that such evidence 
 would not qualify him as an expert. Or, to put it in the referee's 
 own language, he sustained the objection saying, " I shall exclude 
 any further evidence that does not qualify as expert evidence." 
 "We think that in this the referee erred. As well said in Barnes 
 V. Ingalls, 39 Ala., 193 : 
 
 "Although experts only may be competent as witnesses to 
 testify whether or not a photograph is well executed, yet, to 
 enable a person to determine whether the picture resembles the 
 original requires no special skill or knowledge of the photo- 
 graphic art, and on that question, consequently, a person for 
 whom such a picture has been taken, although possessing no 
 special skill or knowledge of the art, may testify that the picture 
 was a good likeness. The fact of likeness or resemblance is one 
 open to the observation of the senses, and no peculiar skill is 
 requisite to qualify one to testify to it." 
 
 Baeketi, J., concurs. Yan Brunt, P. J., took no part. 
 Judgment reversed. 
 
 NOTES OF OTHER CASES ON IDENTITY, LIKE- 
 NESS, ETC. 
 
 Alabama : Barnes v. Ingalls, 39 Ala., 193 ; Hodge v. State, 1893, 12 
 Southern Rep., 164 {it is error to allow witnesses to give their opinions 
 that foot-tracks seen near the place of an alleged murder were made by 
 the same persons as those which they saw elsewhere, or that the impres- 
 sions from defendant's shoes were the same as other footprints) ; s. p. 
 Kiley v. State, 88 Ala., 193; s. c. 7 Southern Eep., 149. Georgia. 
 Traveler's Ins. Co. i>. Sheppard, 85 Ga., 751 ; s. c. 13 Southeast. Eep., 18 
 (where a witness testifies that a photograph is a likeness of a person seen 
 alive since the date of an alleged death, evidence of another witness in 
 rebuttal that the first witness, when previously shown the photograph, 
 had declared it to be the likeness of a different person is irrelevant). 
 Indiana: Miller v. Louisville, etc., E. Co., 1891, 27 Northeast. Eep., 339 (a 
 witness may testify that a photograph introduced in evidence is a correct 
 representation of the surroundings of a certain locality). Massachusetts : 
 Commonwealth v. Meserve, 1891, 37 Northeast. Rep., 997 (the mere fact 
 that a witness cannot read writing does not necessarily disqualify him 
 from identifying a written paper). New York : Schwartz v. Wood, 51 
 State Rep., 4; s. c. 31 N. Y. Supp., 1053 (in an action for a bust which 
 
29S Abbott's Select Cases on Examining Witnesses. 
 
 Notes on Identity, Likeness, etc. 
 
 defendant had refused to accept on the ground that it was not a good 
 lilieness of the person to be represented, intimate acquaintances of such 
 person may testify as to whether the bust is like him). Texas : Fulcher 
 i\ State, 28 Tex. App., 465 (upon a trial of one charged with murder, 
 testimony tliat decedent " identified " defendant is admissible as a short- 
 hand rendering of the facts). Buzard ij. McAnulty, 77 Tex., 438; s. c. 14 
 Southwest. Rep., 138 (a witness acquainted with a person's signature can- 
 not testify that an alleged photograph of it is a true likeness). Clark v. 
 State, 28 Tex. App., 189; s. c. 12 Southwest. Rep., 729 (upon the trial of 
 one indicted for robbery, testimony that certain tracks corresponded with 
 defendant's shoes is admissible) ; s. p. Grumes v. State, 28 Tex. App., 516 ; 
 s. c. 13 Southwest. Rep., 739. West Virginia: State v. Harr, 1893, 17 
 Southeast. Rep., 794 (a witness who testifies that he knows a person may 
 be asked as to his belief as to such person's identity). 
 
III. Facta, etc. (9) Care, Danger, etc. 299 
 
 .McCuri-ag-her r. ilogers, 130 N. Y.. ."i'^Oi. 
 
 McC A.REAGHER v. ROGEES. 
 
 JS\'ii^ Yorh Court of Appeals, Second Division, 1890, 
 
 [Reported in 130 N. Y., 536.] 
 
 The question whethei' a plaintiff suing' for personal injuries was acting- in 
 a careless or careful manner, — held, objectionable as calling- lor a con- 
 clusion of a witness ; the evidence of witnesses must be confined to a 
 statement of the facts. 
 
 Plaintiff sued to recover damages for an injury received while 
 operating a machine in defendant's factory. The questions pre- 
 sented -were, whether the accident was attributable to defend- 
 ant's negligence, and whether plaintiff was free from fault. 
 
 The facts material to the ruling on the question of evidence 
 sufficiently appear in the opinion. 
 
 At Circuit, judgment was entered upon a verdict for plaintiff. 
 
 The General Term affirmed the judgment, without, however, 
 passing on the particular question. 
 
 The Court of Ajypeals affirmed the judgment. 
 
 Bradley, J. [after reviewing other exceptions] : A witness 
 who was in the service of the defendant was called by the latter 
 and asked to state whether, from his knowledge of the plaintiff's 
 conduct while at the press, he was generally careless or careful ; 
 also, whether or not, from what he saw of the plaintiff just at 
 the time of the accident and before it occurred, he was acting in 
 a careful or careless manner while sitting at the press. The evi- 
 dence thus offered was excluded and exception taken. It did 
 not appear that the witness was present at the time of the acci- 
 dent or saw its occurrence. He had been there shortly before 
 and observed the conduct of the plaintiff, to -which he testified. 
 Whether the plaintiff was careless, depended upon the manner 
 he conducted himself, and -when that appeared, the conclusion 
 whether the accident or injury was, to any extent, attributable to 
 his want of care, was for the- jury, and that was a question upon 
 the determination of which the result of the action was depend- 
 ent. It was not one for expert evidence resting in opinions of 
 
300 Abbott's Select Cases on Examining Witnesses. 
 
 McCan-ag-her v. Rogers, 120 N. Y., 536.. 
 
 witnesses. The fact of care or carelessness of the plaintiff was 
 not one involving any question of skill or, science to determine,, 
 nor was it founded upon any knowledge peculiar to any class of 
 persons. His conduct, as bearing upon the question of care or 
 want of care, was susceptible of such description as to convey 
 information of it to common understanding, and to enable the 
 jury intelligently to determine it and the relation it had to the 
 accident. In such case the evidence of witnesses must be con- 
 fined to a statement of facts, and their opinions or conclusions 
 derived from them are not competent. And the numerous cases 
 cited by the defendant's counsel do not seem applicable to the. 
 question here. (Yan Wycklen v. City of Brooklyn, 118 JNT. Y., 
 424 ; Schwander v. BirgCj 46 Hun, 66.) The evidence of this 
 witness, as to what he saw a short time before the occurrence, 
 tended to prove that the attention of the plaintiflE was more or 
 less diverted from his work, and this" was properly matter for 
 the consideration of the jury, as bearing upon the question of the 
 care he exercised when he was hurt shortly after, although it 
 may not necessarily have characterized his conduct at that time. 
 
 All concur (Haight and Brown, JJ., not sitting), except 
 Paekee, J., dissenting. 
 
 Judgment affirmed. 
 
 Note: In Carpenter v. Eastern Transportation Co., 71 N. Y., 574, a 
 collision case, a witness was asked on defendant's behalf, " Did Mr. Car- 
 penter, in your opinion as a canal boatman, in any way omit or neglect to 
 do anything which he might have done to save his boat? " Excluded, on 
 objection. Held, that the question was clearly improper. An expert may 
 be asked whether certain acts which are proven are seamanlike and 
 proper under a given state of circumstances ; but he cannot be allowed 
 to express an opinion as to the care or carelessness of what was or was 
 not done as a matter of fact. 
 
 In an action for damages arising from an accident in which plaintiff's 
 intestate, the fireman on the locomotive derailed, was killed, the engineer 
 of the train was asked, as a witness, how the deceased performed his duties, 
 and also whether he understood the working of the engine. The answer 
 was, "He always ran her well while he was with me; that is, when I 
 asked him to move her one way or another he done so.'' 
 
 This evidence was objected to. 
 
III. Facts, etc. (9) Care, Danger, etc. ' 301 
 
 Notes of Cases on Care, etc. 
 
 Held, that the evidence was proper, Learned, P. J., observing that 
 •• it would hardly be possible for a witness to describe the work which he 
 had seen a mechanic do so that the jury could judge as to his skill." 
 "Wheeler v. Delaware, etc.. Canal Co., 30 Weekly Dig., 301. 
 
 NOTES OF OTHER RECENT CASES ON TESTIMONY 
 TO CARE, DANGER, ETC. 
 
 Alabama: Louisville, etc., E. Co. v. Watson, 90 Ala., 68; s. c. 8 Southern 
 Rep.. 249 (plaintiff, a brakenian, whose hand was crushed while coupling 
 a car, may testify that the engineer backed the train with unnecessary 
 force). Birmingham Blineral R. Co. v. Wilmer, 1893, 11 Southern Rep., 
 886 (in an action by a railroad employee for personal injuries caused by 
 falling from the train, plaintiff may testify that the jerk of the train which 
 caused the fall was an unusually hard one). Arkansas: Little Rock &M. 
 Ry. Co. r. Shoecraft, 56 Ark., 465; s. c. 20 Southwest. Rep., 372 (in an 
 action against a railway company for killing cattle, where the locomotive 
 engineer has testified that he sounded the stock alarm, put on brakes and 
 reversed his engine, it is not prejudicial error not to permit him and the 
 fireman to testify that they did all they could do to avoid hitting the 
 cattle). St. Louis, etc., R. Co. v. Tarborough, 56 Ark., 613 ; s. c. 20 South- 
 west. Rep., 515 (in an action for causing the overflowing of lands, a non- 
 expert cannot testify as to whether defendant's embankment caused it, 
 since all the facts could be perfecth' described to the jury). Georgia: 
 Mayfield r. Savannah, etc., R. Co., 87 Ga., 874; s. c. 13 Southeast. Rep., 
 4.')9 (in an action for pei-sonal injuries it is not error not to permit plaintiff 
 to testify in general terms that he acted cautiously). Kendrick v. Central 
 R. & B'k'g. Co., 89 Ga., 783; s. c. 15 Southeast. Rep., 685 (a witness can- 
 not be asked whether, if defendant's engineer had paid attention to the 
 signals, plaintiff's intestate would have been killed). Central R. Co. i\ 
 Ryles, 84 Ga., 430 ; s. c. 11 Southeast. Rep., 499 (it is not error to exclude 
 testimony that a train was backed very carefully and that nothing was 
 done careless] J' or negligently). Illinois: Kolbi;. Sandwich Enterprise Co., 
 36 111. App., 419 (a witness cannot give his opinion whether a trap-door 
 was dang-erous for employees). Illinois Cent. R. Co. v. Blye, 43 id., 613 
 (in a passenger's action for personal injuries, where one of the issues was 
 whether the plaintiff had been given a sufHcent opportunity to alight, a 
 witness cannot testify that she had a sufficient opportunity if she had pro- 
 ceeded right out of the car). Indiana: City of Elkhart v. Witman, 133 
 Ind., 538 ; s. c. 33 Northeast. Rep., 796 (it is not error to permit a witness 
 to testily that there were defects in a sidewalk). Sherfey w. EvansviUe, 
 etc., R. Co., 131 Ind., 437 ; s. c. 23 Northeast. Rep., 373 (it is not error to ex- 
 clude testimony that deceased was as far oft' the track as he could be before 
 the train sucked him under). Pennsylvania R. Co. v. Mitchell, 124 Ind., 
 473; s. c. 24 Northeast. Rep., 1065 (it is not error to exclude » witness' 
 
302 Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Cases on Care, etc. 
 
 opinion as to whether a cattle guard could be maintained at a particular 
 place without increasing the danger of trainmen). Brunker v. Cummins, 
 1893, 33 Northeast. Rep., 732 (where plaintiff was injured by falling over a 
 barrel on a sidewallv, it is error to admit testimony to the effect that a 
 person could walk between the barrel and the building with safety). 
 Citizens' Street Ry. Co. v. Spahr, Ind. App., 1893, 33 Northeast. Rep., 446 
 (in a passenger's action for injuries it is not error to exclude the testimony 
 of a witness for defendant that people were not in the habit of trying to 
 get on cars at the rate of speed the car in question was g'oing-). Iowa: 
 Butler V. Chicago, etc., R. Co., 1893, 54 Northwest. Rep., 308 (in an action 
 for causing death by the alleged unskill fulness of defendant's engineer, a 
 witness cannot testify as to the engineer's skill). Michigan; Kelley v. 
 Detroit, etc., R. Co., 1890, 45 Northwest. Rep., 90 (it is not error to exclude 
 the testimony of a witness who saw plaintiff fall, as to whether it occurred 
 to him at the time that the accident happened by reason of the darkness). 
 Girard v. City of Kalamazoo, 93 Mich., 610 ; w. c. 53 Northwest. Rep., 1031 
 (it is not error to exclude witness' opinion as to wliether a walk was in 
 reasonable repair or reasonably safe for pviblic travel). Missouri: 
 Hamilton V. Rich Hill Coal Min. Co., 108 Mo., 364; s. c. 18 Southwest. 
 Rep., 977 (in an action for personal injuries plaintiff's witness cannot be 
 asked on cross-examination as to whether it is negligent for a person who 
 has business with a railroad to stand on a track immediately in front of a 
 moving car). New Hampshire: Wells v. Eastman, 61 N. H., 507 (a wit- 
 ness may give his opinion as to negligence of setting fire to brush in a 
 high wind, and in the management of the fire, where he has observed the 
 wind and acts of the defendant). Netv York: Murtaugh v. N. Y. Central, 
 etc., R. Co., 49 Hun, 456 (a question which seeks to substitute the'opinion 
 of a witness as to prudence and care for that of the jury is inadmissible). 
 McDonald v. State, 137 N. Y., 18 ; s. c. 37 Northeast. Rep., 358 ; 37 State 
 Rep. , 248 (upon a claim for damages caused by the giving away of a bridge, 
 testimony of one who made alterations in the bridge that in his judgment 
 the change left the bridge safe for ordinary uses as a highway is inadmis- 
 sible). Ivory 17. Town of Deerpark, 116 N. Y., 476; s. c. 33 Northeast. 
 Rep., 1080 (a witness' opinion as to the comparative danger between partic- 
 vilar places on a highway is not competent). Schneider v. Second Ave. 
 R. Co., 133 N. Y., 583; s. c. 30 Northeast. Rep., 753 (in an action for per- 
 sonal injuries caused by a defective brake, a witness, who has testified 
 that the striking of the brake with a hammer, would have revealed the 
 defect, cannot state that in his opinion the inspection that had been made 
 was insufficient). Mauer v. Ferguson, 17 N. Y. Supp., 349 (in an action 
 for death caused by the breaking of a scaffold, a witness cannot testify 
 whether, in his opinion, the scaffold wasputup right). Oregon: Johnston 
 V. Oregon, etc. Ry. Co., 1893, 31 Pacific Rep., 283 (in an action for the kill- 
 ing of a switchman who was riding on the ladder of a freight car, the per- 
 son, who picked up deceased after the accident, cannot testify as to 
 whether it was negligent for the deceased to so ride). Pennsylvania: 
 Graham ^. Pennsj-lvania R. Co., 139 Pa. St., 149; s. c. 31 Atlantic Rep., 
 
III. Faets, etG. (9) Care, Danger, etc. 303 
 
 Notes of Cases on Care, etc. 
 
 151 (it is error to permit a witness to give his opinion that a station plat- 
 form was dangerous, where the character of tlie platform can be fully 
 described to the jm-y). McNerney v. City of Beading, 150 Pa. St., 611 ; s. 
 c. 25 Atlantic Rep., 150 (in an action against a city a witness, who has 
 examined an area and has requisite skill to speak intelligently on the 
 subject, after describing the area, may give his opinion as to its danger- 
 ous character). South Carolina: Bridgerv. Ashville, etc.,R. Co., 35 S. C, 
 24 (a witness may state upon his knowledge of the character and loca- 
 tion of a turntable, that it is dangerous for children to ride on it). Texas: 
 Fort Worth, etc. Ry. Co. v. Thompson, Tex. Civ. App., 1893, 21 South- 
 west. Rep., 187 (a witness cannot testify as to whether or not the defend- 
 ant railway was ordinarily careful in keeping its tracks in g'ood condition). 
 United States : Inland & S. Coasting Co. v. Tolson, 139 U. S., 551 ; s. c. 
 11 Supm. Ct. Rep., 653 (in an action for negligence a witness cannot give 
 his opinion as to whether the place where the plaintiff stood was reason- 
 ably safe). Washington: Sears v. Seattle, etc., R. Co., 1893, 33 Pacific 
 Rep., 389 (a witness, after testifying as to a cable car's rate of speed and 
 the motorman's effort to stop it, may testify that the latter was unable to 
 do so because he was running at a too high rate of speed). 
 
304 Abbott's Select Cases on Examining Witnesses. 
 Notes of Cases on Ownership and Possession. 
 
 Note. — In De Wolf v. "Williams, 69 N. Y., 631, where ownership of 
 furniture was in issue, plaintiff was asked : " Whose was the property in 
 the house? " and answered, that it was her own. Held, proper ; for title 
 to property is ordinarily a simple fact, to which a witness having the 
 requisite knowledge may testify directly. * 
 
 In Bo3'le v. Williams, IDelehanty, 112, an action for conversion, defend- 
 ant was called as a witness by plaintiff, and was asked on cross-examina- 
 tion : "Did you take possession of these goods as assignee?" Held, 
 proper to exclude the question as calling for a conclusion. 
 
 In Potter v. Weidman, 20 N. Y. Weekl. Dig., 110, an action by an as- 
 signee of a judgment against the original judgment creditors, upon a 
 breach of a covenant in the assignment that they would not release nor 
 discharge the judgment, the judgment debtor was asked to state whether 
 he owned certain real property. Objected and excepted to, on the ground 
 that title to real estate could not be proved in that way. Held, that as 
 the fact was only incidentally in issue, it might be proved by the witness 
 who had knowledge of it; that his deeds were not so involved in the 
 Controversy as to require their production as the best evidence of tiie fact. 
 
 In an action for conversion, where the question was whether the defend- 
 ants had come lawfully into possession of the property, the plaintiff, as a 
 witness, was asked whether he at any time delivered possession of the 
 boat to the defendants or either of them. 
 
 This was objected to as calling for a conclusion of the witness. 
 
 Held, that the exclusion of the answer was error. 
 
 Collins V. Manning, 1 N. Y. State Eep., 204. 
 
 NOTES OF OTHER CASES ON TESTIMONY ON 
 OWNEESHIP AND POSSESSION. 
 
 Alabama: Woodstock Iron Co. v. Roberts, 87 Ala., 436; s. c. 6 Southern 
 Eep., 349 (a witness may testify that defendant in ejectment went into 
 possession and thereafter controlled the land ; the statement as to control 
 being a statement of a collective fact) ; Steiner t). Tranum, Ala., 1893, 13 
 Southern Kep., 365 (ownership of personal property is a fact to which a 
 witness may testify). California: Bunting v. Salz, 22 Pacific Rep., 1132, 
 reversed upon other grounds upon rehearing in 84Cal., 168 ; s. c. 24 Pacific 
 Rep., 167 (for the purpose of showing an invalid sale as to attaching 
 creditors, a witness may be asked whether the debtor exercised any acts 
 of ownership or control over the property). Illinois: Bahe v. Baker, 
 44 111. App., 578 (in trespass for carrying away property plaintiff cannot 
 testify that defendant took property belonging- to him). Iowa: Benjamin 
 r. Shea, 83 Iowa, 392 ; s. c. 49 Northwest. Rep., 989 (a witness cannot tes- 
 
 * Compare with Nicolay v. Unger, at p. 252 of these cases, where a witness was not allowed 
 to testify whether a transaction was a sale or not. 
 
III. Facts, etc. (10) Ownership and Possession. 305 
 Notes of Cases on Ownership and Possession. 
 
 tify as to his ownership of land when such ownership is in issue). 
 Kansas: Hite v. Stimniell, 1891, 35 Pacific Rep., 853 (a witness cannot 
 testify as to ownership of cattle where it is the principal fact to be 
 proved). Missouri: W. W. Kendall Boot & Shoe Co. v. Bain, 46 Mo. 
 App., 581 (where the question of possession is one of mixed law and fact it 
 is error to permit a witness to testify as to who had possession). Neiv 
 York: Boj'le v. Williams, 1 Misc. R., 113; s. c. 30 N. Y. Supp., 737 (in 
 conversion, defendant cannot testify that he took possession of the prop- 
 erty as assignee). North Carolina: Bryan v. Spiney, 109 N. C, 57 ; s. c. 
 13 Southeast. Rep., 766 (testimony that a pei'son was in possession of 
 land in the ordinary sense of a laj'man is a statement of fact). Texas . 
 Johnston v. Martin, 81 Tex., 18; s. c. 16 Southwest. Rep., 550 (it is not 
 error to exclude the testimony of a mortgag'or that be owned no home- 
 stead except the land in controversy) ; Howard v. Zimpelman, 1893, 14 
 id., 59 (a witness cannot testify that persons are joint owners of land). 
 
306 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Others' Admissions, etc. 
 
 ADMISSIONS AND DECLARATIONS. 
 
 NOTE ON WITNESS EEHEAESING CONVERSATION OF OTHERS. 
 
 The following- are the most important rules which guide the examina- 
 tion of witnesses as to conversations of others heard by them : 
 
 1. To enable a witness to testify to an admission, it is not necessary 
 that he should have heard or understood the whole of the conversation. 
 
 3. It is not necessary tliat the witness should be able to testify to the 
 exact language ; but he must be able to give the substance.* He may 
 state the impressions of his mind as to the fact of what he said, bvit not 
 what he understood to be meant by what he testifies was said.f 
 
 3. The witness, testifying to a conversation, cannat state his under- 
 standing as to what or who was referred to by language which requires 
 explanation, unless he is limited to his understanding from the conversa- 
 tion itself. 
 
 4. A conversation with a party ig-norant of the language, being had 
 through the medivnn of his friend and agent as an intei-preter in his pres- 
 ence, that which was said to and by the interpreter in English is compe- 
 tent against the party. 
 
 5. Dying declarations, made by pressing the hand in answer to inquiry 
 when unable to speak, may be proved. 
 
 6. The receiver or hearer of a message, through the telephone, may 
 testify to the identitj"- of the person speaking through the instrument, if 
 he had had previous conversations with him through the instrument and 
 otherwise, and at the time of the conversation in question recognized his 
 voice through the instrument. 
 
 7. The identity of a speaker may be proved by other evidence than 
 the testimony of the one whom he addressed through the telephone. 
 
 8. If a person or corporation has a telephone instrument in his place 
 of business, the response received tlirough it, to a commvinication ad- 
 dressed to him, is competent against him without evidence to identify 
 the speaker. 
 
 9. If it be shown that the person serving as operator at the telephone 
 was requested or authorized by the speaker to act for him in speaking 
 through the instrument, or in hearing the message through the instru- 
 ment, and repeating it to the receiver, he may be regarded as the agent of 
 
 * According to some Massacliusetts authorities, he must be able to give the Bubstance of . 
 the language. The New York practice allows him to give the substance of the conversation or 
 statement, without restricting him to the substance of the language. 
 
 ^■ On this point compare with authorities below indicated, and Abb. Crim. Br., § 503. 
 
III. Facts, etc. (11) Otliers' Admissions and Declarations. 307 
 
 Note on Others' Admissions, etc. 
 
 the speaker, and liis interpretation of tlie message to tlie receiver binds 
 the spealier, and may be proved by any witness who heard it. 
 
 10. Under tlie rule that a party whose admissions are proved has a 
 right to liave all that was said by the same person in the same conversa- 
 tion in any way qualifying or explaining the part adduced against him, or 
 tending to destroy or modify the use sought to be made of it, but no 
 more ; the burden is upon him to show affirmatively the simultaneousiiess 
 of the qualifying- parts he claims to prove. 
 
 [The authorities will be found in detail in Abbott's Brief on the Facts, 
 sections 66, 67, 69, 395, 396, 698, 699, 700, 701, SI.] 
 
308 Abbott's Select Oases on Examining Witnesses. 
 Montana Eailwaj- Co. v. Warren, 137 U. S., 348. 
 
 MONTANA EAILWAY 00. v. WAEEEN. 
 
 UnitBd States Supreme Court, 1890. 
 
 [Reported in 137 U. S., 348.] 
 
 The amount of knowledge which a witness must possess to be competent 
 to express an opinion as to the value of land rests largely in the dis- 
 cretion of the trial judge. Knowledge of actual sales is not essential. 
 
 The Montana Kailway Oo. took appropriate proceedings for 
 the condemnation of a right of way over a certain mining claim 
 in Silver Bow County, Montana. 
 
 Damages having been assessed at $1,552, the defendants 
 appealed to a District Oourt of the county where the case was 
 tried by a jury. 
 
 On the trial, several witnesses, having testified that they knew 
 the land, and many of them that they had dealt in mining claims 
 in the district and had opinions as to the value of the property, 
 were permitted against plaintiff's objection to give their opinions 
 as to the value of the land. 
 
 In the District Court of the Second Judicial District of Silver 
 Bow County, a verdict of $7,000 was returned for the defendants 
 and judgment entered. The plaintiff appealed. 
 
 The Supreme Court of the Territory of Montana affirmed 
 the judgment. 
 
 The Supreme Court of the United States affirmed the judg- 
 ment. 
 
 Beewee, J. [as to the point in question'] : There remains for 
 consideration but a single point — that there was admitted in 
 evidence on the trial the opinions of witnesses as to the value of 
 the land, which were not based upon the sale of the same or 
 similar property, and were not, therefore, the opinions of persons 
 competent to so testify. It appears that the land taken was a 
 strip running through a mining claim," which had been patented 
 and belonged to the defendants in error. The claim adjoined 
 the Anaconda mining claim, wliich had been developed and 
 
III. Facts, etc. (12) ValiTe of Eeal Property. 309 
 
 * ' ~ ' "^ 
 
 Jlotitana Railway Co. v. Warren, 137 U. S., 848. 
 
 worked, and demonstrated to contain a vein of great value. 
 The claim in controversy had been developed so far as to 
 indicate that possibly, perhaps probably, the same rich vein ex- 
 tended through its territory. It had not been developed so far 
 that this could be affirmed as a fact proved. The strip taken ran 
 lengthwise through the claim ; and, upon the trial, witnesses 
 were permitted to testify as to their opinion and judgment of 
 its value. It may be conceded that there is some element of 
 uncertainty in this testimony ; but it is the best of which, in 
 the nature of things, the case was susceptible. That this mining 
 claim, which may be called "only a prospect," had a value 
 fairly denominated a market value, may, as the Supreme Court 
 of Montana well says, be affirmed from the fact that such 
 "prospects" are the constant subject of barter and sale. Until 
 there has been full exploiting of the vein its value is not 
 certain, and there is an element of speculation, it must be 
 conceded, in any estimate thereof. And yet, uncertain and 
 speculative as it is, such "prospect" has a market value; and 
 the absence of certainty is not a matter of which the railroad 
 company can take advantage, when it seeks to enforce a sale. 
 Contigiious to a valiiable mine, with indications that the vein 
 within such mine extends into this claim, the railroad company 
 may not plead the uncertainty in respect to such extension as a 
 ground for refusing to pay the full value which it has acquired 
 in the'market by reason of its surroundings and possibilities. In 
 respect to such value, the opinions of witnesses familiar with 
 the territory and its surroundings are competent. At best, 
 evidence of value is largely a matter of opinion, especially as to 
 real estate. True, in large cities, where articles of personal 
 property are subject to frequent sales, and where market quota- 
 tions are daily published, the value of such personal property 
 can ordinarily be determined with accuracy; but even there, 
 where real estate in lots is frequently sold, where prices are 
 generally known, where the possibility of rental and other 
 circumstances affecting values are readily ascertainable, common 
 experience discloses that witnesses the most competent often 
 widely differ as to the value of any particular lot ; and there is 
 no fixed or certain standard by which the real value can be 
 
310 Abbott's Select Cases on Examining Witnesses. 
 
 Montana Railway Co. v. Warren, 137 U. S., 848. 
 
 ascertained. The jury is compelled to reach its conchision by 
 comparison of various estimates. Much more so is this true 
 when the effort is to ascertain the value of real estate in the 
 country, where sales are few, and where the elements which 
 enter into and determine the value are so varied in character. 
 And this uncertainty increases as we go out into the newer 
 portions of our land, where settlements are recent and values 
 formative and speculative. Here, as elsewhere, we are driven 
 to ask the~ opinions of those having superior knowledge in 
 respect thereto. It is not questioned by the counsel for plaintiff 
 in error that the general rule is that value may be proved by the 
 opinion of any witness who possesses sufficient knowledge on 
 the subject ; but their contention is, that the witnesses permitted 
 to testify had no such sufficient knowledge. It is difficult to 
 lay down any exact rule in respect to the amount of knowledge 
 a witness must possess ; and the determination of this matter 
 rests largely in the discretion of the trial judge. Stillwell 
 & B. Manufacturing Co. v. Phelps, 130 U. S., 520 ; Lawrence v. 
 Boston, 119 Mass., 126 ; Chandler v. Jamaica Pond Aqueduct 
 Corporation, 125 Mass., 544. The witnesses whose testimony is 
 complained of, all testified that they knew the land and its 
 surroundings ; and many of them that they had dealt in mining 
 claims situated in the district, and had opinions as to the value 
 of the property. It is true, some of them did not claim to be 
 familiar with sales of other property in the immediate vicinity ; 
 and the want of that means of knowledge is the specific 
 objection made in the Supreme Court of the Territory to the 
 competency of those Avitnesses. But the possession of that 
 means of knowledge is not essential. It has often been held 
 that farmers living in the vicinity of a farm whose value is in 
 question, may testify as to its value although no sales have been 
 made to their knowledge of that or similar property. Indeed, 
 if the rule were as stringent as contended, no value could be 
 established in a community until there had been sales of the 
 property in question, or similar property. After a witness has 
 testified that he knows the property and its value, he may be 
 called upon to state such value. The means and extent of his 
 information, and therefore the Avorth of his opinion, may be 
 
III. Fact.% etc. (12) Value of Eeal Property. 311 
 
 Roberts v. N. Y. El. E. R. Co., 138 N. Y., 455. 
 
 developed at length on cross-examination. And it is fully open 
 to the adverse party, if not satisfied with the values thus given, 
 to call -witnesses in the extent of whose knowledge and the 
 weight of whose opinions it has confidence. 
 
 We think the Supreme Court of Montana was right in hold- 
 ing that no error was committed in permitting the testimony of 
 these witnesses. 
 
 Judgment affirmed. 
 
 In Whitney v. City of Boston, 98 Mass., 312, it was held, not error to 
 exclude testimony as to the value of real estate in Boston, which was in 
 controversy, from a shoemaker whose only knowledge of the subject was 
 that he had hired one of the buildings on the land, for five years, 
 occupying- the upper stories and under-letting the lower .story ; and that 
 he had resided in this country for seventeen years, hiring and occupying 
 during that time five different houses in different parts of the city ; on 
 the ground that the witness was not shown to have had sufficient dealing 
 and experience in real estate to entitle him to give an opinion. 
 
 EOBEKTS V. K. Y. ELEVATED E. K. CO. 
 
 New York Court of A])j)eals., 1891. 
 [Reported in 128 N. Y., 455.] 
 
 In an action against an elevated railroad for an injunction and for dam- 
 ages, expert testimony as to what the present value of the abutting 
 property would have been if the structure and road were not in front 
 of it, is incompetent evidence upon which to predicate the measure of 
 damages. 
 
 An abutting owner sued to enjoin the elevated road. 
 
 The Sjjecial Term granted the injunction, with the usual con- 
 dition that defendants might pay the value of the easements. 
 
 The General Term of the Sujjerior Court affirmed the judg- 
 ment without reported opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Peckham, J. {after stating the facts'] : Whether the value of 
 the property would have been still greater without the road 
 than it now is with it, was the fact to be found by the court. 
 
 Upon the trial a witness was called on behalf of the plaintifl: 
 
312 Abbott's Select Cases on Examining "Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y., 455. 
 
 and testified that he was a real estate broker and had carried on 
 that occupation in the city of New York for twenty-eight 
 years ; his transactions had extended throughout the whole city, 
 and had involved both leasing and selling ; he knew the property 
 in question, and was familiar v;ith the value of that property 
 and of the property in the neighborhood ; he had made an 
 examination of the property with a view of seeing what 
 physical effects to the abutting property were produced by the 
 railroad and its trains, commencing at least six months ago, on 
 four or five different occasions ; he had given special attention 
 to the effect upon abutting property, produced by the elevated 
 railroad and the passing of its trains ; he had been examined a 
 large number of times as a witness on the subject and in refer- 
 ence to property scattered all over the city ; he had made it his 
 business to be familiar, not only with the selling, but the rental 
 values of property along Third avenue, since the railroad came 
 there ; he had informed himself about such transactions, not 
 only in reference to this property, but other property ; so far as 
 experience from personal transactions was concerned, he had 
 none in that vicinity since the building of the railroad, in renting 
 or in selling ; he had been engaged by property owners for the 
 last three years to make examinations and testify as an expert 
 witness, and it had been a considerable part of his business, and 
 in every case in which he had testified he had testified against 
 the railroad company ; he was paid §100.00 to come and give 
 .these opinions ; he did not know but that the property at the 
 upper end of Third avenue had been benefited to some extent ; 
 his opinion was that rapid transit had helped Harlem ; the build- 
 ing up of the upper end of Harlem had been due to the growth 
 and filling up of all the cross streets ; the growth and filling up 
 of the cross streets had been due to the rapid transit afforded by 
 the elevated railroad in large part. 
 
 The following question was put to him : " To what extent, if 
 at all, in your judgment, is the value of Mr. Eobert's four 
 buildings on the Third avenue— excluding from consideration 
 the house on Ninety-ninth streeet ; to what extent, in your 
 judgment, is the value of that property damaged, if at all, by 
 the presence of the structure and the running of the trains ? " 
 
III. Fads. etc. (12) Value of Keal Property. 313 
 
 Roberts v. N. Y. El. R. R, Co., 138 N. Y., 455. 
 
 Under objection and exception the answer was permitted, and 
 
 •tlie witness stated that the diminntion extended from about 
 
 $110.(h;)0 to $80,000, including the loss to the fee value simply. 
 
 The court then said : " That is, jou think that the four houses 
 fronting on Third avenue are worth $80,000 now i 
 
 Witness : Yes, sir. 
 
 Court: And that thej would be worth $110,000 if the struct- 
 ure and road were not there '. 
 
 AVitness : Yes, sir. 
 
 Q. What do you estimate the rental value of the property to 
 be, the railroad not being there 'i I refer to the Third avenue 
 front only. 
 
 Same objection and exception. 
 
 A. $9,000. 
 
 Q. And the railroad being there i 
 
 A. $6,400 ; as collectible rents, I mean." , 
 
 Upon this appeal the question is, were theSe objections of the 
 defendant properly overruled 'i 
 
 By resorting to a court of equity and seeking the aid of the 
 court to prevent the operation of the defendant's road until all 
 his damages consequent upon the illegal construction of its road 
 in front of his premises have been paid once for all, the plain t- 
 iti has brought before the court the question, what were the 
 damages to the fee of the premises owned by him, consequent 
 upon this wrongful act of the defendant i 
 
 The amount of damages thus caused to the plaintiff's fee is 
 the precise question which the court or jury must determine, 
 and for such amount the court gives judgment upon condition 
 of the plaintiff executing a deed to the defendant of the property 
 wrongfully taken or interfered with by it, 
 
 The first question asked the witness, to which exception is 
 taken, as above noted, calls for his opinion as to the amount of 
 such damage, and the second question is of substantially the 
 same nature, except that it refers to the injury to the rental value 
 of the property instead of the injury to the fee. The precise 
 and specific question which is to be determined by the court and 
 jury is by this interrogatory placed before the witness for his 
 opinion and decision. To permit it to be asked and answered is, 
 
314 Abbott's Select Cases on Examining Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455. 
 
 beyond all question, against the great mass of authority in this. 
 and other states. 
 
 It is now asked that this court, in view of the alleged 
 abnormal character of the litigation growing up in the city of 
 New York, over the erection and operation of these elevated 
 railroads, shall sanction in regard to them a departure from well 
 established rules of law touching the admission of expert evi- 
 dence. It seems to me that neither the nature nor the extent of 
 the litigation affords the slightest justification for such departure. 
 
 Expert evidence, so called, or, in other words, evidence of the 
 mere opinion of witnesses, has been used to such an extent that 
 the evidence given by them has come to be looked upon with 
 great suspicion, by both courts and juries, and the fact has 
 become very plain that in any case where opinion evidence is 
 admissible, the particular kind of an opinion desired by any party 
 to the investigation can be readily procured by paying the 
 market price therefor. We have said lately that the rules, 
 admitting the opinions of experts should not be unnecessarily 
 extended, because experience has shown it is much safer to con- 
 fine the testimony of witnesses to facts in all cases where that is 
 practicable, and leave the jury to exercise their judgment and 
 experience on the facts proved. As is stated by Eakl, J., in 
 Ferguson v. Hubbel (97 E". Y., 507), " It is generally sifer to 
 take the judgments of unskilled jurors than the opinions of 
 hired and generally biased experts." 
 
 It is the general rule that testimony should consist of facts 
 and not opinions, and the admission of opinions forms an excep- 
 tion to that general rule. Mr. Justice Cowen said, in speaking 
 of the opinions of witnesses as to the then present value of real 
 estate, that they were barely admissible and that to receive them 
 at all was a departure from the general rule of evidence, and 
 that judges who preside at nisiprius sometimes have reason to 
 regret that they should in practice form an exception. He re- 
 ferred to Kochester v. Chester, (3 N. H. 349, 364-366), where 
 the court refused to receive the opinions of witnesses as to the 
 value of land, even from those skilled in the market. They 
 said the land must be described and the jury must then judge 
 from the facts. (See matter of Pearl Street, 19 Wend. 654.) 
 
III. Facts, etc. (12) Value of Eeal Property. 315 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y., 455. 
 
 1 refer to this not for the purpose of throwing any doubt upon 
 the admissibility of expert evidence upon the question of the 
 past or present vahie of real estate, where the witness is shown to 
 be competent to give an opinion thereon. That was decided 
 years ago by this court, and has been continuously approved since 
 that time, see Clark v. Baird, 9 N. Y., 183 ; but I cite it for the 
 purpose of showing the opinion of learned judges regarding evi- 
 dence of this kind when it first came into practice and the ques- 
 tions thereon iirst came up for decision. The only inquiry here 
 is whether this is one of these cases in which the testimony is 
 allowable. 
 
 The precise question has been decided by this court as lately 
 as the llTth N. T. Eep., 219, in McG-ean v. Manhattan Railway 
 Co. The question there asked was, " What would have been the 
 fair rental value in the years 18'79, 1880 and 1881 if the railroad 
 had not been built ? And we decided it to be improper. It 
 was so held because it is merely speculative, and it is speculative 
 upon the very question and upon the only question which the 
 court or the jury is called upon to decide, and the question calls 
 for the opinion of the witness upon that very subject. Some criti- 
 cism has been made in regard to that case by the learned counsel 
 for the plaintiff herein, and we are asked substantially to review 
 it and to reverse our decision therein. We have carefully con- 
 sidered the arguments of counsel on both sides and have . again 
 looked through the cases decided in this court upon the subject, 
 and we are unable to see that there has been any error in the 
 McGean case, but, on the contrary, we think it is in strict con- 
 formity with the law as heretofore laid down by this court. 
 
 I shall refer to but a few of the cases cited by the appellant 
 hereiin to sustain his claim that the court below erred in admitting 
 the question in controversy. They are all contained in his very 
 voluminous brief upon the subject submitted to us, and out of 
 them the following are all I deem it necessary to comment upon. 
 Morehouse v. Mathews (2 N. T., 514) was an action brought by 
 the plaintiff to recover damages for a breach of contract by the 
 defendant in not feeding to the plaintiif's cattle as good hay as 
 had been agreed upon. The plaintiff asked a witness what dam- 
 age had occurred in consequence of feeding the cattle upon the 
 
316 Abbott's Select CIases on Examining Witnesses. 
 
 Roberts v. N. Y. El. E. R. Co., 128 N. Y., 455. 
 
 hay in question instead of that agreed upon. Under objection, 
 the witness answered, he thought the damage would be fifty 
 dollars. Tliis court reversed the judgment on the ground that 
 the evidence had been erroneously admitted, and that the 
 question called simply for the opinion of the witness as to the 
 amount of damage sustained by the plaintiff. 
 
 Van Deusen^». Young (22 N. Y., 9) was an action under the 
 Revised Statutes to recover treble damages for cutting trees on a 
 certain piece of land owned by the plaintiffs, who were remain- 
 der men subject to a life estate. A witness was asked, " What, 
 in )'our opinion, is the difference in value of the farm by the 
 removal of the timber ? " and also, " Would the farm be worth 
 more or less with the timber cut off ? " Da vies, J., held the 
 questions were objectionable as calling for a speculative opinion 
 and not for facts, and referred to McGregor v. Brown (6 Seldon, 
 114) : and Mullin, J , said : " It is unquestionably competent 
 for the witness to give his opinion as to the value of the farm 
 with the timber on, and its value after it was taken of. The 
 difference between the two may be the damages, and in cases 
 where the damages are arrived at by merely subtracting one sum 
 from another, it may seem to be refining over much to refuse 
 the witness the right to make the subtraction himself and declare 
 the result ; for this is what he is called on to do when asked to 
 give his opinion as to the amount of damages." The learned 
 judge was speaking of a case where the witness knew the farm 
 in question — knew it when the timber was on it and knew what 
 its value then was, and the timber having been cut off, he knew 
 what the value of the land was with the timber thus cut off. And 
 yet in a case where the difference between the two would be the 
 legal damages, it does not even then follow that a witness may 
 be asked the bold question, " What amount of damages has the 
 plaintiff sustained ? " The reason is that the rule of damages is 
 a question of law, and the witness, upon such a question, might 
 adopt a rule of his own and hold the defendant responsible 
 beyond the legal measure. In Marcly v. Schults (29 N. Y., 346) 
 the court, per Denio, J., held that a witness could not be allowed 
 to state his opinion of the amount of damages. That was in an 
 action for damages for raising a dam so as to overflow the plaint- 
 
III. Facts, etc. (12) Value of Eeal Property. 317 
 
 Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455. 
 
 iff's bouse. The learned judge said the witness could describe 
 the character of the overflow and its effect, and tlien it would be 
 for the jury to estimate the damages ; and what was offered was 
 in substance an opinion as to the amount of the damages which 
 the plaintiff' had sustained by the wrongful act of the defendant. 
 
 This court, in Green v. Plank (48 I^. Y., 669), in an action of 
 replevin for a canal boat, reversed the judgment for the plaint- 
 iff, where the witness had been asked to state the damages for 
 taking and withholding the boat during the time the defendant 
 had it. In Ferguson v. Hubbell {supra), which was an action 
 for damages for a Are, claimed to have been negligently set, 
 from which the plaintiff sustained damage to his land, a farmer 
 was called as a witness for defendant and asked the question, 
 " What do you say as to whetlier it was a proper time or not to 
 burn a fallow ? " The testimony was said to have been errone- 
 ously admitted. 
 
 In Van Wycklen v. City of Brooklyn (118 X. Y., 124), the 
 question of the admissibility of expert evidence is discussed and 
 held to be allowable only when, from the nature of the case, the 
 facts cannot be stated or described to the jury in such a manner 
 as to enable them to form a correct judgment thereon, and no 
 better evidence than such opinions is attainable. 
 
 In Avery v. N. Y. Central, etc., Co. (121 N. Y., 31), which 
 was an action for damages on account of the violation of a 
 covenant to keep a proper opening from the defendant's depot 
 yard, opposite the plaintiff's hotel, the plaintiff was asked this 
 question : " Do you know what the rental value of your Con- 
 tinental property, real and personal, would have been between 
 the 10th day of September, 1881, and the 28th day of January, 
 1884, if there had been a sufficient opening kept and maintained 
 by the defendant opposite your hotel, for the convenient access 
 of passengers and their baggage to and from the twenty foot 
 strip of land lying south of the hotel ?" This evidence was held 
 to be improper. 
 
 Judge Gkay, in delivering the opinion of this Court, said : 
 "The witness should not have been permitted to give his 
 opinion upon that head. His testimony should have been 
 confined to stating facts. He might have described the condi- 
 
318 Abbott's Select Cases on Examining "Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y., 455. 
 
 tion of Ms property. He could have given evidence of what 
 the defendant did to or upon the land over which he claimed to 
 possess rights. He could have stated what his business was and 
 what it amounted to at times prior and subsequent to any 
 change in the situation and circumstances surrounding its 
 conduct ; and it would then be for the jury to draw the con- 
 clusions from the facts stated as to whether plaintiff had been 
 injured by the defendant and what amount of damages he 
 should recover." 
 
 In Norman v. Wells (17 Wend., 136), it was held by the 
 old Supreme Court that the amount of indemnity, when it is 
 not capable of being reached by computation, is always a 
 question for the jury. It was stated that if there be any rule 
 without exception, it is this, and the court was unable to 
 find any instance where the opinion of a witness had been 
 received upon that particular question. The action was on 
 covenant for damages to the plaintiff by the erection of another 
 mill on the same stream with plaintiff's mill, and a witness was 
 asked the damages which in his opinion the plaintiff has 
 sustained by reason of the erection of such mill. The question 
 was allowed at circuit, and a new trial was granted for the error 
 in allowing it. The learned counsel for the plaintiff has cited a 
 number of cases on his side, which he claims are authorities for 
 the question put to the witness herein. The briefs of both 
 counsel exhibit untiring industry and research, and all the cases 
 that have been decided involving questions of this nature both 
 in this and other states would seem to have been found and 
 cited on the one brief or the other. It is impossible to notice 
 them all, and I shall not make the attempt. Special reliance 
 seems to have been placed by the learned comisel for the 
 plaintiff upon the cases I now refer to. In Clark v. Baird (9 
 ]Sr. Y., 183), the point decided was that the opinions of a witness 
 acquainted with real estate, the value of which was in dispute, 
 were competent upon the question of such value. It was an 
 action on the case by the purchaser of a tavern stand against his 
 vendor for fraudulently misrepresenting the boundaries of the 
 land. A witness for the plaintiff testified that he had examined 
 the tavern stand with a view of buying it, and that " it was worth 
 
III. Facts, etc. (12) Value of Eeal Property. 319 
 
 Roberts r. N. Y. El. R. R. Co., 128 N. Y., 455. 
 
 $1,000, if it extended to tlie race and trees. The strip taken 
 ■off wcnild reduce it one-fourth." This testimony was objected 
 to on the ground that the amount of damage could not be ascer- 
 tained by the opinion of the witness. The objection was over- 
 ruled and the defendant excepted. Part of the alleged fraud 
 consisted in the statement that the tavern stand extended to the 
 race . and trees. The plaintiff claimed as a matter of fact it did 
 not extend so far. The learned judge in the course of his 
 opinion said that the witness had in substance stated the value 
 of the stand, including all the land it was represented to include, 
 and also in contrast witli that statement, and as bearing upon 
 the question of damages, had further stated the value of the 
 stand excluding that part which, as the plaintiff contended, did 
 not pass by the defendant's conveyance to the plaintiff by reason 
 of his want of title. I do not see that the case affords any 
 countenance for the claim of the plaintiff herein. The witness 
 simply stated the value of the tavern as it stood, estimating that 
 a certain amount of ground in plain view was attached to the 
 stand, and then stated what in his opinion was the value of the 
 land with that particular piece of land not included. Within 
 any rule regarding the opinions of experts we think this 
 evidence admissible. 
 
 In Eochester ife Syracuse E. E. Co. v. Budlong (10 How. Pr., 
 289), which was a proceeding by plaintiff to take defendant's 
 property by the right of eminent domain, the opinion of the 
 General Term of the Supreme Court was delivered by Judge 
 Seldon in 1851. It contains expressions which favor the views 
 contended for here by plaintiff's counsel and it includes all that 
 can be said in favor of the admission of this kind of evidence. 
 The opinion has not been followed by the courts of this state, 
 and many subsequent decisions of this court, some of which 
 have already been cited, are at war with the doctrines announced 
 by Mr. Justice Seldon. The case cannot be regarded as 
 authority in this state at the present time. (See Hai-pending v. 
 Shoemaker, 37 Barb., 270 ; Simons v. Monier, 29 id., 419.) 
 
 In Hine v. K. Y. Elevated E. E. Co. (36 Hun, 293), which 
 was an action brought to recover damages for the obstruction of 
 light, air and access to the plaintiff's premises by reason of the 
 
320 Abbott's Select Cases on Examining "Witnesses. 
 
 Roberts c. N. Y. El. R. R. Co., 128 N. Y., 455. 
 
 construction of the defendant's road, a real estate broker was 
 called on the part of the defendant, who, after stating that he 
 was familiar with the premises in question, was asked this 
 question: "What has been the effect in your opinion of the 
 elevated railroad upon the value of the property, so far as the 
 items of light, air and access are concerned ? " Upon the 
 plaintiff's objection the question was excluded and the court 
 held that this was error. The court in the course of the 
 opinion, which M'as delivered by Davis, P. J., said that " the 
 answer to the question should have been received. The witness 
 was an expert, and that fact was sufficiently shown to entitle him 
 to express an opinion on the subject. The opinion called for 
 related to the precise question of damages which, as will be 
 seen, the court submitted to the jury, and there is no reason 
 why the opinions of experts are not admissible upon those 
 questions." No case is cited in the opinion and what I have 
 quoted is all the learned judge said in regard to the admissibility 
 of evidence of this kind. The case is not in harmony with the 
 cases in this court and should not be followed. The evidence 
 is open to all the objections spoken of, in that it puts the witness 
 in the place of the court and jury, and' is only his opinion upon 
 the very point to be decided by them. 
 
 In Kenkele v. Manhattan Kailway Co. (.55 Ilun, 398), an action 
 similar to the one at bar and where, as here, the defendant had 
 neglected to take proceedings to condemn the property of the 
 plaintiff, the General Term of JSTew York held that the measure 
 of damages was the difference at the time of the trial bet-ween 
 the value of the pro^jerty to which the easements were appurten- 
 ant, with the easements, and its value without them. The 
 manner of proving such difference was not discussed. Mr. 
 Justice Van Beunt in the course of his opinion in that case, 
 after stating what lie regarded as the true rule of damages, said : 
 "We do not think that the Court of Appeals has as yet 
 condemned the rule. Until they do, justice seems to require 
 that it should be followed." It is stated as one of the grounds 
 for the motion for a new trial in that case, that incompetent 
 evidence upon the subject of damages had been given, but it 
 does not appear what that incompetent evidence was. The 
 
HI. Facts, etc. (12) Value of Eeal Property. 821 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y.. 455. 
 
 learned judge said: " Tlie evidence as to the value of these 
 easements is necessarily, from the very nature of the case, 
 somewhat conjectural, and stringent and strict rules are not to 
 be applied where they would deprive the owner of all proof of 
 damage, as we are dealing with the damage done by a tres- 
 passer; and, while damages should be proven with reasonable 
 certainty, the rights and interests of the owner of these ease- 
 ments should not be sacriiiced." 
 
 This is undoubtedly true. Continuing, the learned judge 
 said : " What more certain evidence of the value of these ease- 
 ments can be gi-ven than by proof of what the property to which 
 they are appurtenant would now be worth with the easements, 
 and what it is worth without these easements i " 
 
 Evidence as to what the value of the property would be with 
 the easements alluded to, unaffected by defendant's acts, is 
 proper. jSTo dispute arises on that point. The controversy 
 arises when the fact of that value is to be sworn to as an opinion 
 by a so-called expert, and which opinion, speculative and un- 
 certain as it must be, is directed to the very point which the 
 jury is to determine. Evidence upon the subject of this speciila- 
 tive value, a value which in fact does not and cannot exist, 
 should be confined to those facts which the court shall hold to 
 be material for a fair and intelligent judgment and then the in- 
 ferences to be deduced from them may be drawn just as well by 
 the jury as by the expert, and in all probability much more fairly. 
 
 This case is one where the facts which form the basis of opin- 
 ion can be specified and should be stated, and the inference to 
 be drawn from those facts should be drawn by the court or by 
 the jury. 
 
 A sufficient number of cases has been cited on both sides, I 
 think, to place fairly before us the different reasons for the dif- 
 ferent views which would exclude or permit evidence of this 
 nature to be laid before a jury. There can be no doubt, as I 
 have already observed, that the great weight of authority both 
 in the Supreme Court and in this court, is against the introduc- 
 tion of this evidence. And, indeed, there is no reason why it 
 should be introduced. Expert evidence of the actual value of 
 real estate is proper and in many cases essential. The present 
 
322 Abbott's Select Cases on Examining Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y., 455. 
 
 value of the property of the plaintiff can be proved by expert 
 evidence, both the value of the fee and the rental value. Both 
 classes of value could also be proved by expert evidence, as of a 
 time immediately prior to the building of this road. They are 
 opinions based on facts which now exist or which once existed, 
 and if the expert have knowledge of them, he should be permitted 
 to state it. As to what the value would have been under circum- 
 stances which never existed, he knows and can know nothing, 
 but must form an opinion wholly speculative in its nature, which 
 opinion must be based upon data perfectly easy for him to state, 
 and from which when once stated, an ordinarily intelligent jury 
 can draw as just and fair an inference of a possible, yet conjec- 
 tm-al value as could the expert. And that very inference must 
 in some way be drawn by the jury, for it is the question it is 
 called upon to decide. The opinion of the expert, if of the 
 least value, would have to be based upon an intelligent con- 
 sideration and knowledge of the value of other property as 
 nearly as may be similarly situated, in about the same quarter of 
 the town and under nearly the same circumstances, but without 
 the presence of a railroad of the nature of the defendant's in 
 front of the property. All this information he could easily 
 impart to the jury. 
 
 Proof might be made of the filling up of the side streets along 
 the lines of this railroad and of the incoming of a large popula- 
 tion, the erection of buildings somewhat similar to plaintiff's, 
 and their rental and fee value, and, finally, a general statement of 
 the condition and value of property in the neighborhood of that 
 in question could be proved. All these facts wo aid be of 
 service in determining the question to be submitted to the jury. 
 "When they are all stated and past and present values proved, 
 the jury or the court will then be as fully competent to draw 
 the inference which it is its peculiar province and duty to draw 
 as the expert. This special question is one which all admit is 
 to some extent and in all cases a matter of conjecture and 
 speculation. How much the appreciation of property is itself 
 due to the erection of the road and the consequent tilling up of 
 the neighborhood opened by it, and whether the property with- 
 out the construction of the road would ever have become as 
 
III. Facts, etc. (12) Yalue of Keal Property. 323 
 
 Eoberts r. N. Y. El. R. R. Co,, 138 N. Y., 455. 
 
 valuable as it is, are questions -wiiicli, when these various data 
 have been given, can be speculated upon as well by the judicial 
 tribunal as by the hired expert. It is none the less conjecture 
 and speculation because the expert is willing to swear to his 
 opinion. He comes on the stand to swear in favor of the party 
 calling him, and it may be said he always justifies by his works 
 the faith that has been placed in him. 
 
 This case is a good illustration of what may be almost 
 termed the wholly worthless character for any judicial purpose 
 of the testimony on both sides upon this one point, as to 
 what would be the -^-alue of this property if this railroad 
 had not been built. The experts on the part of the plaintiff 
 guessed that it would have been $30,000 more valuable, 
 while those on the part of the appellant, equally intelligent, 
 it would seem, and equally honest, thought that the value 
 of the property would have been less than at present if 
 the railroad had not been built. The court is not in the least 
 aided by the various guesses of these hu-ed experts. If the facts 
 upon which these gentlemen based their guesses are placed 
 before the court, more exact justice will, in my judgment, be 
 the result if their speculations be excluded, and all speculation 
 as to the damage sustained by a plaintiff be confined to the court 
 and drawn entirely from the evidence in the case. 
 
 It is urged, however, on the part of the plaintiff that even if 
 this question were objectionable, yet the fault was cured by the 
 questions put by the court, in response to which the witness 
 said that the four houses fronting on Third avenue were worth 
 $80,000, and would have been worth $110,000 if this structure 
 and road were not there. If the objection were only to the 
 form of the question, that which was made use of by the court 
 would probably have cured the difiiculty. But it is no objection 
 to form that I have been discussing. The objection is to the 
 substance of permitting the \\-itness to state what in his opinion 
 would have been the value of this property at this time, in case 
 the railroad had not been built and operated. This objection 
 was not cured by the alteration of the form of the question. 
 
 It is also claimed that there was suflicient evidence, excluding 
 entirely the evidence of experts under the ruling of the- court, 
 
324 Abbott's Select Cases on Examining Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 138 N. Y., 4.'5o. 
 
 upon which the judgment may be sustained. There is some 
 other evidence in the ease, but what would have been the result 
 if all this objectionable evidence were eliminated it is impossible 
 for this court to determine. We vsent to the very extreme 
 limit in upholding the judgment in the McGean case, but there 
 the evidence was much more minute and the objectionable 
 evidence seemed to have been objected to on the grounds other 
 than its absolute incompetence. We thought it was doubtful 
 whether the objection specifically and pointedly raised the 
 question. The objection in this case is not only that it was 
 incompetent, but the question was objected to on the ground 
 that it was for the court alone, and not for the witness to deter- 
 mine the amount of damage. We think tlie objection was suf- 
 ficiently exact to raise the question that has been discussed here. 
 
 Gkay, J., dissented, upon the following grounds, in substance : 
 That the argument against this species of proof — as calling for 
 the conclusions of the witness on a matter which the court or 
 jury should alone determine, and hence invading the province — 
 is inapplicable to cases of this character, where evidence as to 
 the damage cannot always be furnished by exact data, nor in 
 statements of facts, and where expressions of opinion seem so 
 necessary to intelligent judgment. ]S"or is the evidence for- 
 bidden by established rules or principles ; these principles are 
 not embodied in rigid and lifeless formulas, which deny appli- 
 cation to new conditions, but they admit of expansion and of 
 frequent exception. 
 
 It is very plain that the value of plaintiff's easements, which 
 defendants have taken, cannot be fixed by exact proof. The 
 admissibility of opinions as proof of value and marketable con- 
 dition of property constitutes a long settled excepti(S)n to the 
 rule excluding opinions. The ground of the exception is 
 because the witness has been shown to have a knowledge of such 
 matters, which jurors have not, and value is actually a mere 
 matter of opinion. If admissible to prove value generally, why 
 should such evidence be deemed inadmissible to prove value 
 under different circumstances, L e., not only as the property is 
 at present circumstanced, but what Avould be its value if circum- 
 stanced differently under ordinary conditions of street use ? 
 
III. Foet^, etc. (12) Value of Real Property. 325 
 
 Roberts r. N. Y. El. R. R. Co., 128 N. Y., 4.15. 
 
 The fact, wlietlier or not the value of the property might be 
 greater to-day thau it was before defendant's structure was built, 
 if the street remained in its earlier condition, is a fact incapable 
 of detiuite knowledge and, plainly, best ascertainable through 
 the opinions of experts, qualified by familiarity Avith the neigh- 
 borhood and by business habits. 
 
 The question is not like that of a trespass once committed, 
 where the value before and after commission might suiiiciently 
 express the facts from which jurors could deduce conclusions as 
 to damage. Here the aggravation of a continuing trespass and a 
 deprivation of property rights must be considered in connection 
 with possible benefits conferred ; the resiilt as to enhanced or 
 diminished value, is best and more intelligently determined from 
 competent opinions. 
 
 After reviewing the authorities, the judge concludes : " The 
 witness' evidence does not conclude the court or jury, and it is 
 still left to them to decide, with the aid of such skilled opinions, 
 as to the measure and amount of damages which should be 
 awarded by way of compensation. And if the witness is asked 
 for his opinion as to the extent to which the plaintiff's estate has 
 been damaged, it seems an over-refinement of argument to deny 
 the propriety of allowing him to state the result of a mere sub- 
 traction of the values assigned to the premises with and without 
 the structure. The judgment of the court, or of jurors, is not 
 limited to the opinions given, but is formed from the consider- 
 ation they may give to the evidence, and is simply aided by the 
 information they may have derived from the skilled opinions in 
 the case." 
 
 " Upon the groimds of superior convenience, of necessity and 
 of an obvious pro])riety, and if we would have intelligent and 
 just decisions of such issues, I think the evidence objected to is 
 admissible in such cases." 
 
 All of the judges concurred with Peckham, J., except Eugee, 
 Ch. J., and Geay, J., who dissented. 
 
 Judgment reversed. 
 
 Note.— In an action for damages for negligence of defendant whereby 
 injury resulted to the plaintiff, the depositions were offered in evidence, of 
 several witnesses who testified tluit they were well acquainted witli the 
 
326 Abbott's Select Cases on Examining Witnesses. 
 
 Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455. 
 
 nature and extent of the plaintiff's business, and expressed their opinions- 
 as to the damage which he must have sustained in consequence of his 
 absence caused by the injuries in question. 
 
 The defendant's counsel objected to the introduction of the depositions 
 in evidence on the ground, among others, that the testimony did not prove 
 the fact — it was merely the opinion or conjectures of the witnesses, which 
 ovight not to be submitted to the jury, as they might have an improper 
 influence on their minds in estimating the damages. 
 
 Held, that the depositions were improperly admitted; Nelson, Ch. J., 
 saying, that the conjectures were not proper to be submitted to a jury, 
 that the facts on which their opinions were founded, e. g., the amount of 
 business; the ability and attention of the plaintiff; the business season; 
 the comparative inexperience of the partners ; the money pressure in the 
 market and the like, could be submitted to the jury and they were to give 
 them such weight in estimating the damages as they should deem them 
 entitled to. 
 
 Lincoln v. Saratoga R. R. Co., 23 Wend., 435. 
 
III. Facts, etc. (13) Value of Personal Property. 327 
 Note on Value of Personal Propertj-. 
 
 NOTES OF RECENT CASES ON TESTIMONY AS TO 
 VALUE OF PERSONAL PROPERTY. 
 
 Alabama: Littlo v. Lischkoff, 1898, 13 Southern Rep., 439 (in an action 
 upon an attachment bond, plaintiff may testify as to his opinion of the 
 market value of the goods when attached). Illinois: Parniele i\ Ray- 
 mond, 43 111. App., 609 (every one is presumed to know the value of 
 articles in common use, e. g., toilet articles). Michigan: Richter v. 
 Harper, 95 Mich., 331 ; s. c. 54 Northwest. Rep., 768 (it is error to allow a 
 witness to testify as to the value of articles described to him, where the 
 description is not stated to the jury) ; Erickson i'. Drazkowski, 94 Mich., 
 .551; s. c. 54 Northwest. Rep., 383 [in an action to recover the value of 
 household goods, the plaintiff and her husband are presumed, as house- 
 holders, to know their value, and may testify in reference thereto). Mis- 
 souri: Bowne v. Hartford Fire Ins. Co., 46 Mo. App., 473 (a witness alter 
 he testifies that he knows the value of articles, may stalre their value ; his 
 means of knowledge is properly a subject for cross-examination). Ne- 
 braska: Omaha Auction, etc., Co. v. Rogers, 35 Neb., 61 ; s. c. 53 North- 
 west. Rep., 836 (a person having a general knowledge of household goods 
 may testify in reference thereto, though he has not dealt in goods of that 
 land). New York: Moore v. Baylies, 33 N. Y. State Rep., 73; s. c. 10 
 N. Y. Supp., 63 (any person who knows the value of personal property is 
 competent to give his opinion on the subject) ; S. P. Robinson v. Peru 
 Plow&W. Co., Okla., 1893, 31 Pacific Rep., 988). Texas: Gulf, etc., R. 
 Co. V. Vancil, Tex., Civ. App., 31 Southwest. Rep., 303 (a railway pas- 
 senger suing for a delay in the delivering of her trunk may testify as to 
 the value of the use of her property during the delay). 
 
 Note.— In an action for damages done by defendant's cattle, in entering 
 on the plaintiff's land and destroying his grass and apples, the following 
 questions were put to witnesses and objected to as calling for opinions. 
 
 1. "To the best of your judgment, were there one hundred bushels of 
 apples there?" 
 
 3. "What was the rowen worth ? " 
 
 3. " What was the grass worth? " 
 
 Held, that the questions were properly admitted ; Learned, P. J., say- 
 ing as to the first question : " Unless a witness has actually made a count, 
 an inquiry as to numbers' is always a matter depending in a certain sense 
 on his judgment, but it is admissible ; " and as to the other questions : "It 
 is always proper to ask a witness who is acquainted with the matter what 
 is the value of an article. There is hardly any other way of proving 
 value." Townsend v. Brundage, 6 N. Y. Supm. Ct. (T. &C.), 537. 
 
 In an action upon a promissory note made by the defendants, in which, 
 as a counterclaim, the defendants set up a demand against the plaintiff for 
 board, lodging and use of room, one of the defendants having testified 
 that she had been a housekeeper for thirty years ; that she performed the 
 
d-2S Abbott's Select Cases on Examining Witnesses. 
 
 Note on Value of Pei-sonal Property. 
 
 services necessary in furnishing such board, and that she herself rented 
 the house where they lived when the plaintiff commenced boarding with 
 them, and afterwards owned the house in which she boarded, was asked : 
 "How much was the board and occupation of the room worth during the 
 time plaintiff was there ? " 
 
 Tliis was objected to as incompetent, immaterial and improper, and also 
 that the witness was not qualified to speak. 
 
 Held, that the question was properly admitted ; that the witness was 
 competent. 
 
 Hook V. Kenyon 55 Hun, 598. 
 
III. Facts, etc. (14) Value of Services. 329 
 
 jMct'ollom V. Seward, 63 N. Y., 316. 
 
 ]\rcCOLLO]VI V. SEWARD. 
 
 XcW York Court of Appeals, 1875. 
 
 [Reported in 63 N. Y., 316.] 
 
 After a witness has heard plaintiff testify as to the character and Ihiie of 
 his services, he may be asked : " What were his services as he (plaint- 
 itf) described them, worth per month?" for the question, in effect, is 
 liypothetical, and leaves the jury to pass upon the credibility of the 
 testimony upon which the opinion was based. 
 
 Action for services as laborer and foreman ; the issue being 
 on their value. 
 
 A witness for plaintiff who having testified he had heard 
 plaintiff's testimony in his own behalf stating the details of what 
 he did, then was asked : " "What were his services, as he de- 
 scribes them, worth a month, taking the whole year round * " 
 
 Defendant's counsel objected on the ground that it was not 
 competent for witness to give an opinion on plaintiff's state- 
 ment. 
 
 The referee overruled the objection and defendant's counsel 
 excepted. 
 
 Judgment was rendered for plaintiff on Referee's repoi-t. 
 
 The Siqyreme Court at General Term affirmed the judgment, 
 being of opinion that the question was to all intents and pur- 
 poses a hypothetical qiiestion. 
 
 The Court of Appeals aflarmed the judgment. 
 
 Andeews, J. The question put to the witness Robinson, is 
 not subject to the objection that it called upon him to determine 
 the truth of facts deposed to by the plaintiff before giving an 
 opinion as to the value of his services. If the question was 
 subject to the construction put upon it by the counsel for the 
 defendant the objection was well founded. It was for the jury 
 to determine the credit to be given to the plaintiff's testimony, 
 and the opinion of Robinson as to the value of the services 
 founded upon the plaintiff's evidence could only be given 
 
330 Abbott's Select Cases on Examining Witnesses. 
 
 McCollom v. Seward, 62 N. Y., 316. 
 
 liypothetically, that is, assuming that the facts stated by him 
 weie true, which it was for the jury to decide. And this we 
 think was implied in the question put. The question was : 
 "What were his services, as he (plaintiff) described them, worth 
 a month, taking the whole year round ? " This was equivalent to 
 asking him " Assuming that the services rendered were as de- 
 scribed by the plaintiff what were they worth ? " It left the jury 
 to pass upon the credibility of the testimony upon which the opin- 
 ion was based. The allowance of interest on the plaintiff's claim 
 from the time of tlie commencement of the suit although the 
 amount was then unliquidated, was proper within the recent 
 authorities upon the subject. (Feeter v. Heath, 11 Wend., 478 ; 
 Van Eensselaer v. Jewett, 2 N". Y., 135 : Adams v. Fort Plain 
 Bank, 36 id., 255 ; Mygatt v. Wilcox, 45 id., 306 ; McCormick 
 V. The Penn. Central K. E. Co., 49 id., 304.) 
 
 The judgment should be affirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 In Head v. Harg'rave, 105 U. S., 45, an action foi' legal services, it was 
 held that the opinions of attorneys as to their value, were not to preclude 
 the jury from exercising their "own knowledge or ideas" upon the value 
 of such services ; that tliis was a principle applicable to opinions as to the 
 value of labor in other departments, and as to the value of property, it 
 being the jury's province to determine the weight due the opinions ex- 
 pressed. 
 
 In Johnson v. Mj'ers, 103 N. Y., 663, an action for services, a witness 
 having been shown to have had abundant opportunity to know, was asked 
 what proportion of Johnson's time was devoted to Myers' business. 
 
 This was objected to on the gi-ound that the witness was incompetent 
 to give an opinion. The objection was overruled and an exception taken. 
 The witness answered, "One-half from 1864, to the time of Johnson's 
 death." Held, that the question was proper as calling for a fact within 
 tile witness' knowledge and not for an opinion. 
 
III. FacU, etc. (14) Value of Services. 331 
 
 Notes of Cases on Value of Services, etc. 
 
 NOTES OF OTHEE CASES ON TESTIMONY AS TO 
 YALUE OF SEEYICES. 
 
 Chicago, etc., R. Co. v. Roberts, 85 111. App., 137 (in an action for killing- 
 a luarriecl woman her husband cannot testify as the value of her services 
 to himself and family). Chicago, etc., R. Co. v. Bivans, 143 111., 401; s. c. 
 3'J Northeast. Rep., 456 (in an action for personal injuries plaintiff may 
 give his opinion as to tlie value of his services per day during the time he 
 was disabled). 
 
 Loy r. Petty, Ind. App., 1893, 39 Northeast. Rep., 788 (in an action by a 
 minor for services on a farm, farmers who had seen the plaintiff work 
 may testify as to the value of his services). 
 
332 Abbott's Select Cases on Examining Witnesses. 
 Turner v. Keller, 66 N. Y., 66. 
 
 TUENEE V. KELLEE. 
 
 JVew York Court of Appeals, April, 1876. 
 
 [Eeported in 66 N. Y., 66.] 
 
 Where evidence had been introduced .tending- to show that ElHott, under 
 whom plaintiff derived title to the note sued on, had procured George 
 Reges to sign Henry Keges' name to the note, knowing that he had 
 no authority, the question to Elliott, as a witness, whether he sup- 
 posed at the time of the signing that George had such authority, — 
 Held, competent in rebuttal of any inference of knowledg-e, but not 
 competent upon the question of authority. 
 
 That Elliott, in subsequent similar transactions with George, had given 
 credit to Henry, therefore also, held, competent. 
 
 Plaintiff sued on notes purporting to have been made by Henry 
 Eeges and endorsed by defendant. 
 
 Tlie defense was that one Elliott, to whom defendant endorsed 
 the note produced and from whom plaintiff derived it after 
 maturity, requested and procured George, the brother of Henry, 
 to sign the note in the name of Henry and without authority, 
 and that Elliott induced defendant to indorse the note by fraudu- 
 lently representing that the signature was Henry's. 
 
 Plaintiff claimed that George, the brother of Henry, having 
 failed in business, Henry bought the establishment and author- 
 ized George to do business in his name and make notes thereon, 
 and told Elliott of the fact, and that he would be responsible for 
 cattle sold to George. 
 
 Upon the report of the Referee, judgment was entered for 
 plaintiff. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Chuech, Ch. J. {after stating the facts] : The exception 
 to the decision overruling the objection to the question to 
 Elliott, whether, he supposed and believed, at the time George 
 signed Henry's name to the notes, that George had authority 
 to thus sign them, is not tenable. The defendants had before 
 put in evidence tending to prove that Elliott requested Henry 
 to sign the notes, knowing that he had no authority. The 
 
111. J^'acts, etc. (15) Upon Whose Credit. 333 
 
 Richmondville Union Seminary v. McDonald, 34 N. Y., 379. 
 
 fact of authority was sought to be proved by circumstances 
 Avhich were not conclusive and might be true, and yet Elliott 
 might know that no authority existed. To rebut such an infer- 
 ence it was competent to ask what the fact of his belief was at 
 the time . It was not competent upon the question of authority, 
 but if it was competent for a.r]j purpose it was sufficient. 56 
 Kew York, 61S is not applicable. 
 
 The fact that Elliott gave credit to Henry for cattle, after the 
 conversation, was also competent ; it showed that he acted upon 
 the authority Henry had given him, and tended to corroborate 
 the fact of such authoritv. 
 
 RICHI^rONDVILLE UNION SEMINAEY v. McDONALD. 
 
 iVew York Court of Apjjeals, 1866. 
 [Reported in 34 N. Y., 379.] 
 
 In an action bj' a -corporation upon a subscription paper, an officer of tbe 
 corporation, examined as a witness and having knowledge upon the 
 matter, may state that debts were contracted by the corporation on 
 the faith of the subscription. 
 
 This is rather matter of fact than opinion. 
 
 Plaintiff sued defendant as a subscriber to eight shares of its 
 capital stock, which defendant agreed to pay for at such times as 
 the trustees should require. 
 
 Upon faith of the subscription, the plaintiff, by its trustees 
 erected buildings and incurred liabilities. 
 
 The trustees passed a resolution requiring payment of the 
 subscription, of which defendant had notice, and was requested 
 to pay, but neglected and refused so to do. 
 
 One of the trustees of the plaintiff corporation called by the 
 plaintiff was asked on its behalf ; " Were the debts contracted 
 by the trustees and officers of plaintiff, on the faith of and rely- 
 ing upon the subscription made ? " 
 
 The 'defendant's counsel objected: 1. The evidence offered 
 is irrelevant ; 2. It calls for a conclusion of the witness, and 
 not a fact." 
 
 The referee overruled the objection, and exception was taken. 
 
334 Abbott's Select Cases on Examining "Witnesses. 
 
 Riohmondville Union Seminary v. McDonald, 34 N. Y., 379. 
 
 The witness answered, " They were." 
 
 Upon report of the Referee, judgment was entered for the 
 plaintiif. 
 
 The Supreme CouH at General Term afhrmed the judgment 
 without discussing this point. 
 
 The Court of Appeals affirmed the judgment. 
 
 Smith, J., [on this point7\ : It is now insisted that the 
 referee erred in permitting the witness to testify that there were 
 debts contracted by the trustees and officers of the plaintiif on 
 the faith of and relying upon the subscription. Of these two 
 objections to the question taken at the trial, the only one now 
 urged is, that it called for a conclusion of the witness, and not a 
 fact. If it be assumed that the witness had such an acquaint- 
 ance with the acts of those who contracted debts as the agents of 
 the plaintiff, as to enable him to speak to! the subject, the over- 
 ruling of the objection was not erroneous. The question called 
 for a f.ict, and not for aii opinion. If the opposite party wanted 
 the witness to state the matter more in detail, he could have 
 cross-examined him for that purpose. (33 Barb., 229, 235, 236.) 
 
 It is not now objected that the question was leading. It was 
 not objected at the time that the witness was not shown to have 
 such an acquaintance with the subject matter as to make liim 
 competent to answer the question.' If that object had been 
 taken, it is to be presumed it could have been obviated. Indeed, 
 it was proved that the witness was the vice-president and one of 
 the trustees of the corporation, and it may be presumed that, if 
 the objection last suggested had been taken, the plaintiff could 
 have shown that the witness had sole personal charge of the 
 construction of the building, and the contracting of debts there- 
 for, under the authority of the board of trustees, and thus that 
 the question related to a matter which was within his personal 
 knowledge. A party objecting to evidence should state specitic- 
 ally the precise ground of his objection (20 Johns., 357 ; 5 Barb., 
 398), and in such plain and unequivocal terms as to leave no 
 room for debate about what was intended. Daniels v. Paterson, 
 3 N. Y., 47, 51. The objection stated was properly overruled. 
 
III. Facts, etc. (15) Upon Whose Credit. 335 
 
 Ely V. Padden, 13 N. Y. St. Rep., 53. 
 
 ELY V. PADDEN. 
 
 Neic York Supreme Court, 1887. 
 
 [Reported in 13 N. Y. State Rep., o:].] 
 
 The principle that In actions to rescind contracts for fraud, etc., plaintid' 
 may testify that he believed the alleged fraadulent representations of 
 defendant, — applied in an action to recover money paid by mistake on 
 a purchase of real estate, though no fraud was alleged : and held, not 
 error to allow plaintiff's agent to testify that he believed defendant's 
 statement as to quantity. 
 
 Plaintiff sued to recover back a sum of money overpaid by lier, 
 by mistake, upon the purchase of defendant's farm. 
 
 The deed of the farm described three pieces of land, of iifty, 
 eighty and eleven acres, respactively, making in all 141 acres, 
 while, in fact, the eleven acre piece was a part of the eighty 
 acres, so that only 130 acres were conveyed. 
 
 It appeared in evidence that both the defendant and Pierce, 
 her son-in-law, who acted for her in the transaction, said to Cooper, 
 agent of the plaintiff, that the defendant's farm contained 141 
 acres. In that respect, they acted under a mutual mistake. 
 
 The plaintiff's counsel asked the witness Cooper " From what 
 the defendant has stated to you, did you believe there were 141 
 acres in the land that was conveyed to the plaintiff ? " 
 
 Objected to on the ground that " it is improper for the wit- 
 ness to give his belief in an action founded on contract ; no fraud 
 is alleged and none claimed." 
 
 Objection overruled and exception taken. The witness 
 answered " I did." 
 
 Upon the report of the Referee, judgment was entered for 
 the plaintiff. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Smith, P. J. It is contended that this was error. If the action 
 had been to rescind the contract for fraud, or in affirmance of it, 
 to recover damages for the fraud, there is abundant authority for 
 saying that it would have been competent for the plaintiff to 
 
336 Abbott's Select Oases on Examining Witnesses. 
 
 Sweet V. Tuttle, 14 N. Y., 465. 
 
 testify that lie believed the alleged fraudulent representations of 
 the defendant, and was induced by them to enter into the con- 
 tract. We think it was also competent, in this action, to show 
 that the plaintiff, or her agent, relied upon the representations of 
 the defendant, which, although not fraudulent, were untrue. In 
 either case, the fact to be proved is, that the action of the plaint- 
 iff was induced by the statements of the other party, and if the 
 testimony objected to is competent in one case, it seems to be 
 equally so in the other. The case cited by the appellant's counsel 
 (Betjmann v. Brooks, 39 Hun, 649, and the cases there cited) 
 do not sustain his position. 
 
 Equally unobjectionable was the question addressed to the 
 plaintiff: "How many acres did you suppose you were getting 
 in return ? " It was competent upon the issue as to her mistake. 
 
 SWEET V. TUTTLE. 
 
 JVew YorJc Court of A]ypeals, 1856. 
 
 [Reported in 14 N. Y., 465.] 
 
 On an issvie as to whether defendant employed the plaintiff or whether 
 several persons acting jointlj' were the real employers, it is competent 
 on direct examination to ask one of the alleged joint contractors, 
 called as a witness : " On the part and behalf and lor whom did the 
 defendant do what he did?" for this calls for a fact rather than an 
 opinion. 
 
 Bensley G. Sweet sued Jonathan W. Tuttle for services in 
 saving the wreck of the propeller Phoenix on the lakes, in the 
 fall of 184Y. 
 
 The answer set up and the contention on the trial was, that the 
 services, etc., had been performed not for the defendant but for 
 and at the request of several persons jointly, who were the 
 owners of the Delaware and of whom defendant was one ; and 
 that they all ought to have been joined. 
 
 One of the persons named as joint promissors with defendant, 
 was called as a witness for defendant ; and after testifying that 
 he was at the time in question, one of the owners of the Del- 
 aware, naming them, he was asked : " On the part and behalf, 
 
III. Facts, etc. (IS") Upon Whose Credit. SSi 
 
 Sweet V. Tuttle, 14 N. Y., 465. 
 
 tind for whom did Tuttle [the defendant], do what lie did, that 
 iall, in relation to the wreck of the Phoenix?" 
 
 Plaintiff's counsel objected that it does not appear what he 
 ■did, and second, it asts for the legal effect of what he did. 
 
 Objection overruled and exception taken. 
 
 Ans. " For the owners of the Delaware that I have named." 
 
 Thi' Referee's report was for defendant and judgment for 
 ■defendant was entered thereon. 
 
 The Supreme Court at General Term affirmed the judgment 
 without opinion. 
 
 The Court of Appeals affirmed the judgment. 
 
 CoMSTOCK, J. [on this point'] : The question did not call for 
 an opinion, and therefore was not open to objection on that 
 ground. The fact •which it called may have been a conclusion 
 deducible from other special facts, but this conld not well appear 
 nntil the question was answered and the examination then pushed 
 somewhat further. After the inquiry was answered the plaintiff 
 had a right, if lie pleased, to cross-examine, and it might thus have 
 appeared that the fact stated by the witness was a mere deduc- 
 tion of his own mind from the special circumstances of the trans- 
 ■action. But this course was not taken ; and on the face of the 
 question I think the answer called for belonged to a class of facts 
 to which a witness may be allowed to speak directly. 
 
 HuBBAED, J. [dissenting on another point, said as to the 
 question in controversy] : It is a general rule that witnesses 
 must be confined to the communication of facts, and not opinions 
 or conclusions drawn by them from facts, whether such facts are 
 known to them or deri\'ed from the testimony of others. (More- 
 house V. Matthews, 2 N. Y, 514.) But the question in this case 
 does not conflict with this rule. It called not for an opinion or 
 ■conclusion, but for a primary fact presumed to be within the 
 knowledge of the witness, the same as an inquiry as to who com- 
 pose the members of a co-partnership. It is a common practice on 
 trails to prove the fact of hiring or an employment by a direct 
 question ; the means or grounds of knowledge, as it respects 
 credibility, are left to be tested by cross-examination. 
 
338 Abbott's Select Cases ox Examining Witnesses. 
 Betjmana i\ Brooks, 39 Hun, 649. 
 
 BETJMANN 0. BROOKS. 
 
 JVew York Supreme Court, 1886. 
 
 [Reported in 39 Hun, 649.] 
 
 In an iiction to recover from defendant for g'oods sold to her through an 
 alleged agent, it is error to allow the plaintiff to testify to what person 
 lie mentally gave credit for the goods at the time of the sale. 
 
 Plaintiff sued for goods sold. The chief issue was, to whom the 
 plaintiff charged the goods — upon whose credit they were .sold 
 — and this was a legal conclusion to be drawn from all the facts 
 and circumstances disclosed. The plaintiff had admitted, while 
 under examination, that he did not know the defendant per- 
 sonally and had never seen her, and that he did not know her 
 son William L. Brooks personally, and had not received any 
 orders from him personally for groceries; and therefore^ as 
 suggested, the establishment of the defendant's responsibility 
 depended upon facts and circumstances. After the defendant 
 rested, the plaintiff was recalled and asked under proper objec- 
 tion and exception, the following question : " In delivering the 
 goods which were delivered during the administration of Mrs. 
 (Jlapp, did you give the credit to Mrs. Clapp personally or to 
 Mrs. Brooks?" to which the plaintiff answered, "On paper?" 
 And then followed the question : " Not on paper but in your 
 mmd ? " to which the plaintiff responded, " Mrs. Brooks." And 
 this question was repeated as to the goods furnished the other 
 alleged agents, and allowed under objection and exception. 
 
 Upon the report of a R'ife)^ee, judgment was entered for 
 plaintiff. 
 
 The Supreme Court at General Term reversed the judgment. 
 
 Beady, J. [after stating facts] : This was an error. It has 
 been so declared by two cases in the court of last resort. (Nichols 
 V. The Kingdom Iron Ore Co. of Lake Champlain, 56 IST. Y., 
 618 ; Merritt v. Briggs, 57 id., 651.) 
 
 In the former case the question was whether machinery alleged 
 to have been sold to the defendant was purchased by him or one 
 
III. Facts, eh: (15) Upon Whose Credit. 
 
 Betjmann c. Brooks, 89 Hun, 649. 
 
 Colt. The witness who set up the machinery was asked, " For 
 whom did you set up that machinery, as you supposed ; " 
 Tliat was objected to and answered, but was held to be error. 
 
 The plaintiff was a witness on his own behalf in that case and 
 was asked whether he asked Colt for the payment of the bill as 
 his debtor. This was objected to as calling for a construction 
 of what was said and not the language, and an answer having 
 been allowed, it was held to be error. 
 
 In the latter case the defendant gave evidence tending to 
 show that he purchased the cattle alleged to have been bought 
 by him as a broker for one Hall and upon his credit, the plaint- 
 iff knowing his agency. He was a witness on his own behalf 
 and asked this question : " State on whose credit the cactle were 
 bought \ " It was helcf that the question was incompetent, for it 
 called for the defendant's conclusion or opinion, but that the ob- 
 jection taken was insufficient to make the exception available.''- 
 
 Note.— In Sloan v. New York Central Eailroad Co., 45 N. Y., 125, an 
 action for damages for injui-ies received through the negligence of the 
 defendant in running cars on a road which was not in a safe and proper 
 condition (the car in which plaintiff sat being thrown down an embank- 
 ment, and incurable injuries resulting) ; the female attendant of the 
 plaintiff was asked on the trial : " How far did the plaintiff help herself, 
 and at what point did she require your assistance to do what was neces- 
 sary to be done?" Held, proper. Church, Ch. J., said, it called for 
 facts and not mere opinions. 
 
 In Murray v. Deyo, 10 Hun, 3, an action by plaintiffs as trustees of a 
 ■second mortgage made by the WalkJ] Valley Ry. Co., the trustees 
 having, on a default of the railway company in payment of interest, 
 taken possession of the railroad, claiming to recover certain moneys col- 
 lected by the defendant from the United States Government for postal 
 service on the railroad under a contract between that company and the 
 government — where a question involved was as to whether the plaintiff's 
 had taken possession of tlie road in May, 1873, a witness whom plaintiffs 
 had employed in June, 1873, as superintendent on this road, was asked : 
 " For whom and on whose behalf did Mr. Burdell make that employment, 
 if you understood?" This was admitted, under defendant's exception. 
 Held, not ei'ror, Barnard, P. J., saying- : "I think the question here pro- 
 posed rather comes under the case of Sweet v. Tuttle (14 N. Y., 465). 
 There the question was : ' On the part and behalf and for whom were the 
 services rendered ? ' Tliis was held not necessarily to call for an opinion. 
 
 ■* No ground for the objection was stated. 
 
340 Abbott's Select Cases on Examining "Witnesses. 
 
 Betjmann v. Brooks, 39 Hun, 649. 
 
 The question in this case does not. A single question further would have 
 rendered it certain whether he related what was said, or only a deduction 
 from what was said. In Nichols v. Kingdom Iron Ore Co. (56 N. Y., 618), 
 the question is entirely different ; ' For whom did you set up the machin- 
 ery, as you supposed ? ' This question manifestly called for an opinion of 
 the witness instead of for a fact." 
 
 In De Cordova v. Powter, 16 N. Y. State Rep., 1006, an action to re- 
 cover moneys advanced to the defendants, and for commissions upon 
 merchandise sold by the plaintiff, where a question was raised whether 
 plaintiff had given the credit to defendants as partners, the plaintiff as a 
 witness was asked what, if anything-, induced him to give credit to the 
 Phosphate Company, or to the defendants as a partnership. This was 
 •objected to as incompetent and immaterial, but the objection was over- 
 ruled and the appellant excepted, and the answer was that he supposed 
 they were perfectly solid, and that he meant Mr. Powter and Mrs. Habich. 
 Then he was asked whether he supposed they were in partnership, that 
 they were both principals, and the same objections were made to this 
 question. The court allowed it to be answered, and the defendant 
 excepted, and the witness answered " Undoubtedly." The Supreme 
 Court at General Term, held it not error, Daniels, J., saying: "The 
 questions were inartistic in form, but it is quite evident that the design 
 with which they were asked was no more than to ascertain the belief of 
 the witness, or a statement of what he may have relied upon in the deal- 
 ings. And the answer which was made was an indication of the fact that 
 he did believe the defendants were partners. It was not very impcirtant 
 that this answer should have been obtained from him, for it is evident 
 from the other testimony given in the action, and the form in which it 
 was commenced, that this belief existed in the mind of the plaintiff. And 
 where that is a circumstance m the case the witness maj- he interrogated 
 as to the state of his mind in this respect." 
 
 In Kellar'y. Richardson, 5 Hun, 353, held, that the question " To whom 
 did you look for performance of the contract ? " called merely for thoughts 
 and not acts, and was not competent. 
 
 Where the issue was with whom plaintift' made his coiitract, he was 
 asked as a witness : "IsDonal Campbell a man of responsibility ? " The 
 plaintiff answered : "So far as I know, he was not responsible." 
 
 Held, that the admission of such evidence was error. 
 Denraan v. Campbell, 1 Hun, 88. 
 
 On a question as to a man's solvency at a certain time, a witness who 
 had been acquainted with the man's pecuniary circumstances for several 
 years, and who subsequently stated numerous facts touching the man's 
 property and indebtedness, was asked: "Was he able to pay his debts, 
 in December, 1855, in the usual course of trade?" This was objected to 
 as calling for an opinion. 
 
 Held, that it did not call for the opinion of the witness simply ; that in 
 form it called for a fact, whether James was able to pay his debts in the 
 usual course of trade. 
 
 Thompson v. Hall, 45 Barb., 214. 
 
III. F(U'h\ etc. (15) Upon Whose Credit. 341 
 
 Betjmann v. Bi'ooks, 39 Hun, 849. 
 
 On trial oJ: an indictment for obtaining' moneys by false pretenses as to 
 his business connections and as to the pecuniary standing of one Cham- 
 berlain an alleged partaer, a witness who testified that lie was conversant 
 with Chamberlain's business and knew of his real and personal estate and 
 of his bank stock and of his debts from 1877 up to June, 1878, was asked 
 what in his opinion was the financial standing' of Calvin T. Chamberlain 
 from October 1877, to February, 1878. 
 
 This was objected to, among other reasons, on the ground that his. 
 opinion was not evidence. 
 
 Held, error to receive the witness' opinion. 
 York V. People, 31 Hun, 446. 
 
 Where the question was whether an assignment of property to plaintiff 
 had been bona fide and was held by hei-, independent of her insolvent 
 husband, she was asked as a witness in her own behalf : " For whom did 
 your husband do what business he did after you took the deed?" etc. This 
 was objected to as calling for a legal conclusion. 
 
 Held, competent. " Legal considerations may no doubt be involved in 
 a question of agency. But prima facie the inquiry whether a person 
 engaged in a particular employment was doing business on his own 
 behalf or as the agent of another, involves only the question of fact 
 whether he had been employed by that other person, and it is therefore a. 
 competent question." 
 
 Knapp r. Smith, 37 ^\ Y., 277. 
 
342 Abbott's Select Cases on Examining Witnesses. 
 Notes of Cases on Contract, etc. 
 
 XOTES OF KECEKT CASES AS TO TESTIMONY TO 
 
 ESTABLISH A CONTRACT, AGENCY, 
 
 PAETNEESHIP, ETC. 
 
 Alabama: Jacksonville, etc., R. Co. i'. Woodworth, 1891, 8 Southern Rep., 
 177 (a witness cannot g-ive his opinion as to whether or not a contract has 
 been abandoned ; the facts must be proved). Clark i\ Ryan, 189^, 11 id., 
 33 (it is error to permit plaintiff to testify' that he was discharg-ed without 
 any fault on his part and that up to the time of his discharg-e he had per- 
 formed his part of the contract in full). Alexander v. Handley, id., 390 
 (in an action to charg-e defendant as a partner where the business agree- 
 ment between defendant and his associates has been given in evidence it 
 is incompetent for one of the associates to testify that they were partners). 
 California: Kreuzberger v. Wingfield, 96 Cal., 351 ; s. c. 31 Pacific Rep., 
 109 (where plaintiff has testified as to the work he did and the materials 
 he has furnished, it is not improper to ask him whether he completed the 
 work according to contract). Colorado: Moffatt v. Corning, 14 Colo., 
 104 ; s. c. 34 Pacific Rep., 7 (a witness' opinion as to what was the consider- 
 ation for a contract is inadmissible. Georgia: McCaullar. Murphj-, 84 Ga., 
 475; s. c. 12 Southeast. Rep., 655 (a witness cannot testify as to a mere 
 conclusion of law from facts stated in the question). Illinois: Druley r. 
 Johnson, 21 111. App., 267 (one of the makers of a note cannot testify as to 
 whether he signed as principal or surety). "Wiley v. Stewart, 23 id., 236 ; 
 affd. in 123 111., 545 (a witness cannot testify that one partner did not give 
 to another authority to do an act which is alleged to have been within the 
 .scope of the firm's business). Indiana: McCormick v. Smith, 137 Ind., 
 380 ; s. c. 36 Northeast. Rep., 835 (a grantor's testimony that grantee was 
 to pay full value by cancelling certain debts, is not a mere statement of a 
 conclusion of fact where all the circumstances are stated). lou-a : Haller 
 r. Parrott, 82 Iowa., 43; s. c. 47 Northwest. Rep., 996 (a mortgagor of 
 cattle may testify upon what cattle the mortgage was given to identify 
 them). Jamison v. Weaver, 81 Iowa, 313 ; s. c. 46 Northwest. Rep., 996 
 (testimony of one sued for services under an alleged special contract as to 
 whether the services were rendered under the contract or not, is a state- 
 ment of fact). Sax r. Davis, 81 Iowa, 692 ; s. c. 47 Northwest. Rep., 990 
 (one sued for goods may testify that he never purcliased, nor authorized- the 
 purchase~of, any goods from the seller). Eg-gieston v. Mason, 1893, 51 id., 
 1 (a witness who has merely observed the manner in whicli a firm has con- 
 ducted business cannot testify that a person was a member of the firm). 
 Gault r. Sickles, 52 id., 206, (a member may testify that the husband of a 
 claimant against a decedent's estate managed his wife's business when 
 she did not). Kansas : Cogshall v. Pittsbugli Roller Milling Co., 48 Kan., 
 480 ; s. c. 29 Pacific Rep., 591 (in an action for breach of a contract it is 
 not error to refuse to allow defendant to ask a witness, who is also a defend- 
 ant, whether he ever accepted a certain proposition). Kentucky : Thomp- 
 
III. Facts, etc. (16) Contract, Agency, Partnership. 343 
 
 Notes of Cases on Contract, etc. 
 
 son r. Brannin, 1^93, 21 Southwest. Rep., 1057 (a witness cannot g-ive his 
 opinion as to the legal effect of a transaction between the parties as to a 
 sale of goods). Minnesota : Larson ;■. Lombard Invest. Co., 1898, .'iS North- 
 west. Rep.. 179 (thoug'h a witness cannot give his opinion as to one's agency 
 it is not prejudicial error to have admitted such evidence where it does not 
 effect the result). Nebraska: Burkholder r. Fonner, 34 Neb. 1; s. c. 51 
 Northwest. Rep., 393 (in an action to recover commissions for selling real 
 estate, the purchaser, after testifying in detail as to the transaction and 
 from whom he received information concerning tlie propet'ty, it is not error 
 not to permit the witness to state from whom he made the purchase). A'eic 
 York: Stone r. Assip, 18 N. Y. Supp., 441; s. c. 45 State Rep., 271; testi- 
 mony as to the effect of a contract is incompetent); s. p. Voisin v. Com- 
 mercial :Mut. Ins. Co., Oa Hun, 4; s. c. 16 N. Y. Supp., 410. Sentenne v. 
 Kelly, 59 Hun, 51-'; s. c. 37 State Rep., 163; 13 N. Y. Supp., 539; s. o. 37 
 State Rep., 163 (a witness cannot testify as to what would be a reasonable 
 time for the doing of an act required by contract to be done). Fislier' v. 
 Monroe. 17 N. Y. Supp., S37; s. c. 43 State Rep., 118 (man action for a 
 breach of a contract of employment, plaintiff cannot be asked whether she 
 has performed all her duties). Ellison v. Jones, 15, N. Y. Supp., 356 (in an 
 action for services plaintiff may testify that he did a full man's work). 
 Holler V. Apa, 17 id., 504; 43 State Rep., 539 (a question whether work had 
 been done under an alleged agreement held properly excluded). Allen t\ 
 Rogers, 33 N. Y. Supp., 1071, (in an action to recover money upon a con- 
 tract which defendant denied, defendant as a witness cannot be asked, 
 "Did you know at any of the time that A. (the plaintiff) was working for 
 your") Johnson r. Crotty. 33 id. 753; s. c. 3 Misc., 370 (in an action for 
 services plaintiff cannot be asked on cross-examination whether he relies 
 upon a direct agreement with defendant). Duryea v. Vosburgh, 17 id., 
 743; s. c. 45 State Rep., 17 (in an action to recover from defendant an 
 alleged overcharge which plaintiffs had paid defendant for the purchase 
 of an interest in a partnership which defendant had negotiated, defendant 
 may testify whether he acted for plaintiffs or for the partnership). Reynolds 
 V. Lawton, 63 Hun, 596; s. c. 17 N. Y. Supp.', 433, (in an action on an alleged 
 partnership debt, defendant cannot testify that he did not hold himself 
 out as a partner). Pennsylvania: New England Monument Co. ;■. Johnson, 
 144 Pa. St., 61 ; s. c. -i'i Atlantic Rep., 974 (a witness present at negotia- 
 tions cannot testify that a contract was made). Texas : Doggett v. Wal- 
 lace, 75 Tex., 353 ;"s. c. 13 Southwest. Rep., 49 (in an action for breach of 
 promise plaintiff may testify that she became engaged to defendant). 
 
344 Abbott's Select Cases on Examining Witnesses. 
 Lawyer v. Loomis, S Sup. Ct., (T. & C), 393. 
 
 LAWYEE V. LOOMIS. 
 
 JVew York Supreme Court, 1874-. 
 
 [Reported in 3 N. Y. Sup. Ct., (T. & C), 393.] 
 
 Where the facts proved are equivalent to an illegal intent,— e. g., where, 
 in malicious prosecution, want of probable cause is proved, — the party 
 cannot, on testifying in his own behalf, be asked as to his intent. 
 
 An action for malicious prosecution, in which defendant had 
 caused the arrest of plaintiff for taking his buggy, after plaintiff 
 had learned that another person took it. 
 
 Defendant's counsel proposed to ask the defendant whether in 
 procuring the warrant he acted without malice. 
 
 The question was objected to by plaintiff's counsel, and ex- 
 cluded, and defendant's counsel excepted. 
 
 77ie Circuit Court entered judgment for plaintiff. 
 
 The New York Supreme Court affirmed the judgment. 
 
 MuLLiN, P. J. \oyi this questioii] : It was for the jury to say 
 whether the defendant acted maliciously, and to allow the ques- 
 tion would be substituting the witness in place of the jury to 
 determine one of the most important questions in the cause. 
 When the intent with which an act is done forms an essential 
 element of it, the actor may, as a general rule, be asked whether 
 he did the act with such intent. Doing an act maliciously is 
 equivalent to doing it with a malicious intent. If this is a case 
 in which the defendant was entitled to deny the intent, the 
 evidence offered should have been received. 
 
 Proof of malice, however intense it may be, will not dispense 
 with proof of the absence of probable cause. But malice may be 
 inferred from the absence of probable cause. When, therefore, 
 the jm'y find the absence of probable cause, malice or a malicious 
 intent is established ; proof of want of malice is, therefore, im- 
 material in a case where want of probable cause is found. There 
 
III. Facts, etc. (IT) Own Intent, Motive, Knowledge, etc. 345 
 
 Lawyer v. Loomis, 3 Sup. Ct. (T. & C), 393. 
 
 cannot be a total absence of malice in a case in which want of 
 probable cause is established. It is not necessary to consider 
 whether the evidence of the absence of malice would be admis- 
 sible vrhen the plaintiff gave evidence tending to prove express 
 malice. Malice can only be rebutted by facts which show, or 
 tend to show, probable cause. 
 
 In Fiedler v. Darrin, 50 N. Y., 437, the defendant resisted a 
 recovery in ejectment, on the ground that the deed under which 
 plaintiif claimed was a mortgage, and that it was void for usury. 
 On the trial the plaintiff's counsel offered to ask the plaintiff 
 whether he intended to take usury. I infer from the case that 
 the evidence was excluded on the trial, and the Court of Appeals 
 held that it was excluded properly. Taking more than seven per 
 cent, constituted usury, and the law inferred the intent from the 
 terms of the contract, and an intent not to violate the statute 
 could not be otherwise proved. I cannot discover any distinction 
 in principle between that case and this. Malice is inferred from 
 want of probable cause, the want of probable cause must be 
 established by the facts surrounding the transaction. A case of 
 want of probable cause, without malice, would be felo de se. 
 The thing is impossible. 
 
 The judgment must be affirmed. 
 
 Judgment affirmed. 
 
 Note: la Waugh v. Tielding-, 48 N. Y., 681, an action to recover a 
 balance alleged to be due upon the sale of an engine and boiler ; defense, 
 fraud in the sale. Upon the trial, after the defendants had given evidence 
 as to plaintiiT's representations and the defects in the property purchased, 
 plaintiff offered himself as a witness, and was asked by his counsel, and 
 allowed to answer the" question : "Did you give, or intend to give, the 
 defendants anything more than your opinion in regard to its condition?" 
 Held, error. The cases of Seymour v. "Wilson (14 N. Y., 567), and Cortland 
 V. Herkimer (44 N. Y., 22), distinguished. 
 
346 Abbott's Select Cases on Examining Witnesses. 
 Yerkes v. Salomon, 11 Hun, 471. 
 
 YEEKES V. SALOMON. 
 
 JVew York Supreme Court, 1877. 
 
 [Reported in 11 Hun, 471.] 
 
 Although a contract for the sale and delivery of stock at a future day is 
 not void because the vendor does not possess the stock, yet if neither 
 party intended its delivery, but merely to pay the difference, accord- 
 ing to the different rate of the market, the contract is void as a wager 
 contract. It is therefore proper to ask one of the parties his intent 
 as to delivery. 
 
 Plaintiff sued on contracts for the sale of stocks at a future 
 day, commonly called puts and calls. 
 
 The defense was that the contracts were wagers, it being 
 claimed that it was the intention of the parties to settle the dif- 
 ference, as they subsequently did, and not to deliver or accept 
 the stock ; and the defense relied on the Statute, which is as 
 follows : [1 E. S., p. 662, § 8] [3 id., 8th ed., p 2218, § 8.] " All 
 wagers, bets or stakes, made to depend upon any race, or upon 
 any gaming by lot or chance, or upon any lot, chance, casualty or 
 unknown or contingent event whatever, shall be unlawful. All 
 contracts for or on account of any money or property, or thing 
 in action so wagered, bet or staked, shall be void." 
 
 The plaintiff having been examined on his own behalf , was, on 
 cross-examination, asked : " Was it your intention at the time 
 these contracts, or either of them, were made, to tender or call 
 for the stock, or merely to settle upon the difference ? " 
 
 Objected to and excluded and defendant excepted. 
 
 The Circuit Court entered judgment for plaintiff. 
 
 The Stipreme Court at Oeneral Term reversed the judgment. 
 
 Beady, J. [after stating facts] : The form of the contract 
 does not decide the question, because it would not be difficult to" 
 make the contract relating to the bet apparently lawful, while 
 the intent with which it was entered into was to avoid or evade 
 the statute. It is not the form in which the trick or device is 
 presented, but the intent with which it is planned. "When the 
 question was asked, therefore, as to the intent, the subject was 
 
III. Facts, etc. (17) Own Intent, Motive, Knowledge, etc. 347 
 
 Dillon V. Anderson, 43 N. Y., 231. 
 
 opened and the inquiry was pertinent. The authorities are 
 abundant upon the proposition that if neither party intended to 
 deliver or accept the shares, but merely to pay differences 
 according to rise or fall of the market, the contract is for gaming. 
 (Grizewood v. Blaine, 73 Eng. Com. Law, 525 ; Brua's Appeal, 
 55 Penn., 298 ; Cooke v. Davis, 53 JST. Y., 318 ; Cameron v. Durk- 
 heim, 55 id., 425 ; Peabody v. Speyers, 56 id., 230 ; Bigelow 
 V. Benedict, 9 Hun, 429 ; Storey v. Salomon, Com. Pleas, 
 6 Daly, 531 [affd. in 71 IsT. Y., 420].) The intent of the plaint- 
 iffs was one step in the defense, and when the attempt to prove 
 it was rejected, the defendant secured the advantage of an ex- 
 ception. In Cassard v. Hinman, (6 Bosw., 14) the question asked 
 was, " at the time of the making the writings between you and 
 Cassan, was anything said by Nathan (the broker) as to the per- 
 formance by receipt and delivery of pork, or the settlement by 
 payment and receipt of differences, and if so, what ?" The 
 question was excluded, and it was held to have been erroneously 
 ruled upon. The inquiry was held relevant to the defense, 
 which was substantially that the contract was a wager. The 
 ruling considered demands, therefore, that a new trial be 
 granted. 
 
 Ordered accordingly, with costs to abide the event. 
 
 Davis, P. J.,and Daniels, J., concurred. 
 
 Judgment reversed, new trial ordered, costs to abide event. 
 
 DILLON «. ANDEESON. 
 
 New York Court of Appeals, 1870. 
 
 [Reported in 43 N. Y., 231.] 
 
 The intent of a party, unexpressed, in making- a contract, is not admissible 
 in evidence to show what the contract was. It is only when th.; act 
 is admitted, and its validity turns on the intent, that the witness may 
 be asked his intent. 
 
 Plaintiff sued to recover damages for breach of contract. 
 One defense was, that one John L. Hasbrouck was a joint con- 
 tractor with the defendant. 
 
 On the trial it appeared that the contract was signed and 
 
348 Abbott's Select Cases on Examining Witnesses. 
 
 Dillon V. Anderson, 43 N. Y., 231. 
 
 delivery exchanged between plaintiff and the defendant alone ; 
 but Hasbrouck's name appeared in the instrument as a party. 
 
 The defendant being a witness in his own behalf, was asked 
 by his counsel : " Did you intend to make an individual 
 contract ? " 
 
 The question was excluded by the court. 
 
 The Ulster Circuit entered judgment for plaintiff. 
 
 The Sujpre7ne Court at General Term affirmed the judgment. 
 
 HoGEBOOM, J. [passing upon this poinf] : I think the ques- 
 tion "Did you intend to make an individual contract," was 
 properly overruled, for if he had answered in the affirmative, its 
 exclusion would have been prejudicial to defendant ; if in the 
 negative, it would not have been decisive of non-liability of the 
 defendant, except as joint contractor with Hasbrouck. 
 
 Contemporaneous acts and declarations drawn out by the 
 adversary, would of course be admissible evidence of a party's 
 intent ; but declarations of a party as to his intent at any other 
 time, called for by himself, would not be admissible, and admit- 
 ting evidence of such intent, which had never been expressed in 
 words, but kept confined within the party's own breast, and not 
 brought forth till the actual trial of the cause had exposed the 
 party to all the temptations of fraud and perjury, would seem to 
 be still more objectionable. 
 
 The Court of Appeals reversed the judgment. 
 
 FoLGEK, J. [on the point in question'] : It called for his 
 purpose mentally formed, but undisclosed to the plaintiff. It 
 sought to annul, by an intention not expressed, words and 
 acts rehed upon by the plaintiff, by which he was influenced, 
 and which of themselves were prima facie evidence of an 
 agreement. An agreement is said to be the meeting of minds 
 of the parties. But minds cannot meet when one keeps to 
 itself what it means to do, nor can one party know that the 
 other does not assent to a contract, the terms of which have 
 been discussed and settled between them, unless dissent is made 
 known. Here was the oral bargaining going before the written 
 contract. Here was the written contract signed and delivered 
 
III. Facts, eto. (17) Own Intent, Motive, Knowledge, etc. 349 
 
 People V. Baker, 96 N. Y., 340. 
 
 without qualification of tlie act of delivery, without the expres- 
 sion of the intention called for by the question that the act of 
 delivery was not to be taken as meaning all it seemed to mean. 
 The testimony called for was not proper. There are authorities 
 that a witaess may be asked his motive or intent in doing an act. 
 {See McKown v. Hunter, 30 N. Y., 625 ; Thurston v. Cornell, 38 
 id., 281 ; Bedell v. Chase, 34 id., 386.) We think that they hold 
 no more than this : That where the doing of the act is not 
 disputed, but is affirmed, and whether the act shall be held valid 
 or invalid, hangs upon the intent with which it was done, which 
 intent from its nature would be formed and held without 
 avowal ; there he upon whom the intent is charged may testify 
 whether he secretly held such intent when he did the act. 
 Thus an insolvent assignor in trust, charged with the fraudulent 
 intent to hinder and delay creditors, may be called in support of 
 the deed of trust, and may say whether, when he made it, he had 
 no fraudulent purpose. And one sued for a malicious prosecu- 
 iion, may testify that in setting on foot the legal proceedings, he 
 believed that there was cause for them. And, as an extreme 
 case, which we are not willing to extend, one, against whom the 
 defence of usury has been set up, has been permitted to testify 
 what was the intention in stipulating for a sum reserved out of 
 the face of a note. But that an act should be held to have or 
 not to have effect, and one party to it, to be bound or not as the 
 other party to it should, by his undisclosed purpose, have 
 determined, is warranted by no sound principle. \_Euling on 
 other points omitted^ 
 
 PEOPLE V. BAKER. 
 
 New Yorlc Court of Appeals, 188^. 
 
 [Eeported in 96 N. Y., 340.] 
 
 On an indictment for obtaining a specified sum by false pretences, the 
 prosecvition having given evidence of other sums obtained before and 
 afterward from the same person, in the same course of conduct,— 
 Held, error to refuse to allow defendant, as a witness in his own 
 behalf, to answer the question whether it was his intention, when he 
 received such moneys from time to time, to defraud. For the case 
 
350 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Baker, 96 N. Y., 340. 
 
 went to the jury in such a way that the receipt of all the moneys had 
 a tendpncy to show the intent. 
 Held, also, error to refuse to allow defendant to state what was his inten- 
 tion, it being the theory of the defense that his intention was to 
 replace the security which he had converted, but had reported to be 
 still retained. 
 
 Trial of indictment for obtaining money by false pretences. 
 
 One Meeker, having bought some stock on margin, through 
 the defendant, sent him money at different times to pay for the 
 stock. 
 
 Defendant, pressed by financial necessity, sold the stock with- 
 out the knowledge or consent of Meeker, who kept sending him 
 money, which defendant acknowledged ; and defendant continued 
 to send statements showing credits for money and dividends as 
 if the stock was still actually held by him. 
 
 On the trial the People were permitted, against objection, to 
 show payments of money by Meeker to defendant from time to 
 time, before and after the payment of a sum of $575, the only 
 sum the indictment charged him with obtaining. 
 
 Evidence of such other payments was given for the purpose of 
 showing his guilty intention. 
 
 The defendant, as a witness in his own behalf, was asked: 
 " Was your intention, when you received moneys from time ta 
 time from Meeker, to defraud him ? " 
 
 Objected to as incompetent and inadmissible. The objection 
 was sustained and exception taken. 
 
 At the Court of General Sessions defendant was convicted. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. 
 
 Eael, J. [after reviewing the facts, in passing upon this 
 point, said] : As the intent with which those moneys were 
 received was one of the material inquiries, he should have been 
 permitted to show that he did not receive them with any fraud- 
 ulent intent. The case went to the jury in such a way as to 
 enable the people to claim that not only the $5T5 was received 
 by the defendant with the intent to defraud Meeker, but that all 
 
III. Facts, etc. (lY) Own Intent, Motive, Knowledge, etc. 351 
 
 Starin V. Kelly, 88 N. Y., 418. 
 
 the other moneys were received in the same way, and that the 
 receipt of all the moneys had a tendency to show with whfet 
 intent the $575 was received ; and hence the defendant clearly 
 had the right to show that he had no fraudulent intent in receiv- 
 ing any of it. 
 
 The defendant, after answering that at the time he received 
 the §575 he did not intend to defraud Meeker, was also asked to 
 state his intention at the time he received it, and the question 
 was objected to on the part of the People, and the objection was 
 sustained. We think that ruling was also erroneous. Upon the 
 facts of the case, as they were developed at the trial, it was 
 claimed by the defendant that when he received the $575, it was 
 his intention to replace the stock, to respond to Meeker when- 
 ever called upon for the stock, and that he was at the time able 
 to do so. That was a theory he had a right to prove if he could, 
 and the proof would bear upon the final issue whether he in- 
 tended to cheat and defraud him, and hence he should have 
 been permitted to answer the question. 
 
 STAEIN V. KELLY. 
 
 New Yorh Court of Aj^peals, 1882. 
 [Reported in 88 N. Y., 418.] 
 
 In an action against a sheriff for wrongful taking of plaintiff's property, 
 which defendant justified under an attachment against plaintiff's 
 vendor, claiming that the sale to him was in fraud of the vendor's 
 creditors, 
 
 Held, not error to allow the plaintiff to testify that he did not make the 
 purchase with intent to hinder, delay or defraud the vendor's creditors. 
 
 An action for the wrongful taking of property by the defend- 
 ant as sheriff. The defendant justified under attachments issued 
 to him against the property of one Theodore Besson, and claimed 
 that the property was transferred to the plaintiff by Besson with 
 intent to hinder, delay and defraud creditors. 
 
 Upon the trial plaintiff was called as a witness in his own 
 behalf, and after giving evidence showing the purchase from 
 Besson, and that he had no notice of any fraudulent intent on the 
 
352 Abbott's Select Cases on Examining Witnesses. 
 
 Starin v. Kelly, 88 N. Y., 418. 
 
 part of Besson, was asked, " Did you make this purchase with 
 any object or intention of aiding or assisting him to hinder, delay 
 or defraud his creditors V Objected to by defendant's counsel 
 as irrelevant and incompetent ; objection overruled and excep- 
 tion taken. 
 
 Witness answered : " In no way whatever ; I considered him 
 perfectly good." 
 
 Allen Lee 8midt, for plaintiff. 
 
 Vanderpoel, Green & Guming, for defendant. 
 
 Judgment for plaintiff on a verdict. 
 
 The Superior Court at General Term affirmed the judgment. 
 
 The Court of Appeals aiSrmed the judgment. 
 
 Eael, J. \_after stating the facts\ : The statute declares 
 that every conveyance or assignment of property, made with the 
 intent to hinder, delay or defraud creditors, shall, as against the 
 person so hindered, delayed or defrauded, be void, except that 
 the title of a purchaser for a valuable consideration shall not in 
 any manner be affected or impaired, unless it shall appear that 
 such purchaser had previous notice of the fraudulent intent of 
 his immediate grantor (2 E. S., 137, §§ 1 and 5). To maintain 
 the issue on the part of the defendant it was sufficient for him, 
 in the first instance, to show Besson's fraudulent intent in mak- 
 ing the sale. Then it was for the plaintiff to show that he pur- 
 chased the property for a valuable consideration. The title would 
 then be unimpeachable, unless the defendant should make it 
 appear that he had previous notice of Besson's fraudulent intent 
 or that he participated in the fraud. 
 
 Under the statute, a creditor assailing a transfer of property 
 as fraudulent, may succeed by simply showing a fraudulent 
 intent on the part of the vendor, or such intent on the part of 
 the vendee. If, however, the vendee shows that he paid a valu- 
 able consideration for the property transferred to him, then proof 
 of the fraudulent intent of the vendor only is not sufficient ; 
 then there must be proof also of a fraudulent intent on the part 
 of the vendee or that he had notice of the vendor's fraudulent 
 
ni. Facts, etc. (17) Own Intent, Motive, Knowledge, etc. 353 
 
 Starin r. Kelly, 88 N. Y,, 418. 
 
 intent. It is believed that these rules existed and were applied 
 at common law before the statute against fraudulent convey- 
 vances was enacted. The proof of notice, on the part of the 
 purchaser, of the fraudulent intent of the vendor, when it is 
 necessary to establish it, need not be direct and j^ositive, but 
 such notice may be proved like any other fact in the case by cir- 
 cumstances, and proper and legitimate inferences to be drawn 
 from the whole transaction. It would be sufficient for the partj 
 assailing the trarfsfer to show that the purchaser was aiding and 
 assisting the vendor in perj^etrating a fraud, or that he, himself, 
 in making the purchase, also had the same fraudulent intent, and 
 from such facts notice could be inferred. 
 
 Hence, in such cases the good faith and intention of both 
 parties is a proper subject of inquiry. In Jackson v. Mather 
 (T Cow., 301) it was held that a conveyance might be held to be 
 fraudulent as to creditors upon proof of the fraudulent intent of 
 the grantee without reference to the grantor's intentions. In 
 Waterbury v. Sturtevant (lb Wend., 353) it was held that the 
 question of fraud in such a case may depend upon the motive of 
 both parties ; that the purchase must be bona tide as well as upon 
 a valuable consideration ; and that the fraudulent intent of the 
 grantee may be inquired into was also decided in 43 Barb., 418. 
 
 We are, thereof, of opinion that it is proper for the purchaser 
 to testify directly in answer to such a question as here com- 
 plained of, that he did not have any fraudulent intent, and that 
 he made the purchase in good faith. That such a question is 
 proper to be put to the purchaser ^vas directly decided in the 
 case of Bedell v. Chase (31 N. Y., 386). In that case, as we find 
 by examining the papers in the action, one of the purchasers 
 testified that he had no intent, nor was he aware that the vendors 
 had sold the property then in question to hinder, delay or 
 defraud their creditors. That evidence, as to the witness' intent, 
 was objected to by defendant's counsel as irrelevant, immaterial 
 and incompetent, and that it called improperly for witness to 
 state his intent. The objection was overruled, and defendant's 
 •counsel excepted. Upon the argument of appeal in that case in 
 this court, the precise point was presented for consideration by 
 the counsel for the defendant, ^vhich was brought to our atten- 
 
354 Abbott's Select Cases on Examining Witnesses. 
 
 Starin v. Kelly, 88 N. Y., 418. 
 
 tion in this case in the following language : " It was error tO' 
 admit the testimony of one of the purchasers as to his intent 
 or his knowledge of the intent of the vendors. The question 
 for the jury to determine was solely whether the vendors made^ 
 the sale with intent to hinder the creditors of their lawful suits. 
 This court have determined that an assignor may be examined 
 as to his intent, but have never held that a purchaser could be- 
 so examined." 
 
 It is thus seen that the precise argument was made in that 
 case that has been made before us in this. But the court held 
 that it was " legitimate to permit the examination of the plaint- 
 iffs as to their intention in making the purchase." 
 
 A contrary decision was made in Hathaway v. Brown, 18 Minn., 
 414, where it was held that a similar question put to a purchaser 
 from a fraudulent vendor was incompetent. It is sufficient to- 
 say that that decision does not shake our confidence in the prior- 
 decision in this court referred to. 
 
 When there is evidence showing fraudulent intent on the part 
 of the vendor, and no evidence tending to show a fraudulent 
 intent on the part of a purchaser for a valuable consideration, 
 then the question of fact to be submitted to the jury is whether- 
 the purchaser had notice of the vendor's fraudulent intent. 
 Even in such a case, as bearing upon that question, the evidence 
 here complained of should be received. In case the evidence iff 
 clear that he had such notice, this evidence will have no import- 
 ant bearing upon the issue. In a case of doubt and conflict 
 it is entitled to some weight. 
 
 Note.— In Seymour v. Wilson, 14 N. Y., 567, it was held that an 
 assignor charged with having assigned and disposed of his property with 
 an intent to hinder, delay and defraud creditors, may be inquired of as a- 
 witness in a civil action aiTecting the validity of such assignmeut, as to-' 
 his intent in making it. 
 
 Denio, C. J. [holding that exclusion was erroneous] : Fraud against 
 creditors always consisted in the corrupt intent of the parties to the trans- 
 action. The Statute of Frauds (13 Eliz., ch. 5) defines fraudulent convey- 
 ances as '-Feigned, covinous and fraudulent feoffments," etc., "devised, 
 and contrived of malice, Iraud, covin, collusion or guile, to the end, pur- 
 pose and intent to delay, hinder or defraud creditors," and they are- 
 described in the same language in the early re-enactments of that statute 
 in this state (1 R. L., 75). In the Revised Statutes, though the language is; 
 
III. Facts, etc. (17) Own Intent, Motive, Knowledge, etc. 355 
 
 Notes of Cases on Own Intent, etc. 
 
 move refined, the meaning is the same. Fraudulent conveyances are such 
 as are made " with the intent to hinder, delay or defraud creditors or other 
 persons of their lawful suits," etc. (2 R. S. 137, 1). It is also declared that 
 the question of fraudulent intent sliall be a question of fact and not of law, 
 and that no conveyance shall be adjudged fraudulent as to creditors solely 
 on the ground that it was not founded on a valuable consideration (§ 4) ; 
 and, moreover, the parties to such conveyances are declared to be guilty 
 of a criminal offence {id. 690, § 3). In this case the party who made the 
 alleged fraudulent transfer was a competent witness, and he was examined 
 as to the facts of the transaction by the plaintiff who sought to set aside 
 the conveyance. It may be that the circumstances disclosed by him 
 would lead to the conclusion that the assignment was fraudulent notwith- 
 standing anything which he might say as to his motives in making- it. 
 That was a question for the referee to determine after he had heard all 
 the testimony respecting it, and it is one upon which we express no 
 opinion. There are cases which present circumstances in themselves con- 
 clusive evidence of a fraudulent intent ; and there no proof of innocent 
 motives, however strong-, will overcome the legal presumption : thus,, 
 where an insolvent debtor conveys his estate to a trustee with a reserva- 
 tion in his own favor, or with some provision which the courts have 
 determined to furnish conclusive evidence of fraud. In such cases the 
 oath of the assignor, that his motives were pure, would be idle, and could 
 not aSect the determination one way or the other. But where the facts, 
 do not necessarily prove fraud, but only tend to that conclusion, the evi- 
 dence of the party who made the conveyance, when he is so circumstanced 
 as to be a competent witness, should be received for what it maj' be con- 
 sidered worth (Cunningham v. Freeborn, 11 ■Wend.,*341, 254). This case 
 did not present a feature which so conclusively established the alleged 
 fraud that it was not incapable of being overcome by rebutting evidence. 
 Among the facts which might be shown in answer to the plaintiff's case 
 is certainly this, that the party making the conveyance had no intention 
 of delaying or defrauding his creditors. 
 
 The judgment of the Supreme Court must, for this reason, be reversed. 
 
 NOTES OF OTHER CASES OE" TESTIMONY AS TO 
 OWN INTENT, MOTIVE, KNOWLEDGE, ETC. 
 
 Alabama: Lewis v. State, 1892, 11 Southern Eep., 359 (one accused of 
 homicide cannot testify as to the uncommunicated intent with which he 
 did the act). Scott v. State, 94 Ala., 80 ; s. c. 11 Southern Rep., 193 (upon 
 a prosecution for larceny, it is error to permit a witness to testify that he 
 claimed to be owner of the article stolen because the defendant asked him 
 to do so). Colorado: Love v. Tomlinson, 1 Colo. App., 516; s. c. 29 Pacif- 
 ic Eep., 666 (a vendor and his agent, who negotiated a sale, may testify 
 upon an issue of fraud, that there was no fraudulent intent). Georgia: 
 
356 Abbott's Select Oases on Examining Witnesses. 
 
 Notes of Cases on Own Intent, etc. 
 
 Howard i\ Savannah, etc., E. Co., 84 Ga., 711 ; s. c. 11 Southeast. Rep., 
 453 (in an action by a car inspector for personal injuries received while 
 l^erforniing his duties, held, that it was error to permit tlie plaintiff to 
 testify concerning' his belief as to what protection he would receive while 
 inspecting- car wheels). Central R & Bk'g Co. v. Kent, 84 Ga., 351 ; s. c. 
 10 Southeast. Rep., 965 (a road-master, who testifies that shortly before an 
 accident he examined a railway embanlcment, may state that he appre- 
 hended no trouble therefrom). Illinois : Chamberlain v. Bain, 37 111. 
 App., 634 (a person cannot testify that he was willing and ready to per- 
 form his ag-reement). Indiana: Fi-eeman i'. Sanderson, 123 Ind., 364; s. 
 c. 34 Northeast. Rep., 339 (a witness may give his understanding of alleged 
 slanderous words). Kansas : Gentry v. Kelley, 49 Kan., 83 ; s. c. 30 Pacif- 
 ic Rep., 186 (it is not error to permit a mortgagee to testify as to her 
 intent in taking a mortgag-e, validity of which is in issue). Louisiana : 
 State V. Thomas, 41 La. Ann., 1088 ; s. c. 6 Southern Rep., 803 (a witness 
 may testify that he expected to meet a person at a certain place). Hutch- 
 ins V. Ford, 83 Me., 363 ; s. c. 19 Atlantic Rep., 833 (a master of a vessel 
 may testify that in selecting a mate, he had every reason to suppose that 
 the man was sufficient lor a coasting mate and that he believed that he 
 was capable). Massachusetts: Stevens v. Stevens, 150 Mass., 557; s. c. 
 33 Northeast. Rep., 378 (a grantor may testify that she had never parted 
 with the possession of the deeds with any intent to pass the property pur- 
 ported to be conveyed). Michigan: Thomp.son v. Clay, 60 Mich., 637 (it 
 is error to permit a person to testify as to the effect of a conversation upon 
 his mind). Farrand ?;. Aldrich, 85 Mich., 593; s. c. 48 Northwest. Rep., 
 €38 (a person, vsrho has read a libelous article containing a misspelled 
 name, may testify tifat he understood it to mean the plaintiff). Coller v. 
 Porter, 88 Mich., 549 ; s. c. 50 Northwest. Rep., 658 (in an action against a 
 firm for money borrowed, plaintiff may testify that she had no knowledge 
 of any fraudulent attempt by a member of the firm to make his individual 
 debt appear a firm debt). Missouri: Vawter v. Hultz, 112 Mo., 633; s. 
 ■o. 20 Southwest. Rep., 689 (in answer to an inquiry as to his purpose in 
 drawing and firing his pistol, defendant replied, "to protect my life and 
 person," held, that this answer was properly stricken out). State v. 
 Mason, 34 Mo. App., 331 (the intent with which acts were done may be 
 proved by the direct testimony of the actors). Nebraska : Cressler v. 
 Rees, 43 Northwest. Rep., 363 (the testimony of a party as to what repre- 
 sentations of the other party induced him to make a trade is not conclu- 
 sive). New Hampshire : Fiske v. Go wing, 61 N. H., 431 (a witness is not 
 required to state the exact words of a conversation, but may state what 
 he understood from the language and conduct of a person). Clark v. Mar- 
 shal, 62 id., 498 (the knowledge or intent with which an act was done, may 
 be proved by the direct testimony of the actor). New York : Moore v. 
 N. Y. El. R. Co. , 34 Abb. N. C. , 74 ; s. o. 29 State Rep. , 432 (a tenant cannot 
 testifj' as to whether the reason for his going away was in any way con- 
 nected with the effect produced by the operation of defendant's elevated 
 railway in front of the premises). MoCormack v. Perry, 47 Hun, 71 ; s. c. 
 
III. Facts, etc. (lY) Own Intent, Motive, Knowledge, etc. 357 
 
 Notes of Cases on Own Intent, etc. 
 
 14 State Rep., 1.'54 (in an action for malicious prosecution defendant may 
 testify that he was not actuated by malice). Hahlo v. Grant, .31 Statu 
 Rep., 919 ; s. c. 10 N. Y. Supp., 168 (tlie seller's clerk may testify that in 
 orderina: the goods purcliased to be delivered, lie i-eiied partly on the pur- 
 chaser's statements as to his financial condition and partly on a com- 
 mercial agency's report). People v. Moore, 50 Hun, 8.56 ; s. o. 30 State 
 Rep., 1 (on an indictment for an assault, evidence as to the manner in 
 which words spolien by defendant at the time of tlie assault were under- 
 stood by tlie party assaulted is admissible). Lally v. Emery, 54 Hun, 517 ; 
 s. c. 28 S. ate Rep., 137; 8 N. Y. Supp., 135 (in an action for a slander 
 charging a -crime, defendant may testify in mitigation that he did not 
 intend to cliarge a crime). Wilcox v. Joslin, 32 State Rep., 423; s. c. 10 
 N. Y. Supp., 343 (a witness cannot testifj' as to what he meant by a. 
 certain sworn statement). Fox i'. Fort Edward, 48 Hun, 863; s. c. 16 
 State Rep., 808 ; affd. without opinion in 131 N. Y., 666 (in an action for 
 personal injuries, upon cross-examination the plaintiff testified that he 
 had wall?:ed in the street before the accident and not on the sidewallv. 
 Held, that it was proper to let him state on re-direct examination tiiat lie 
 returned to the sidewalk because he had seen a foot-passenger knocked 
 down in tlie street by a passing team). North Carolina : Wolf v. Artliur, 
 113 N. C, 691 ; s. c. 16 Southeast. Rep., 843 (upon an issue as to whether 
 a deed was executed in fraud of creditors, one of two grantees as a witness 
 cannot be asked if the trade was a bona fide transaction since altliough he 
 may testify as to his own good faith, he cannot testify to that of the 
 other parties). Nixon u McKinney, 105 N. C, 38; s. c. 11 Southeast. 
 Rep. , 154 (where it is material to know whether a grantor acted in good 
 faitli in making a deed, or the motives of the grantee in taking the benefit 
 of the conveyance, either may testify as to his own intent in the transac- 
 tion). Texas: Berry v. State, 30 Tex. App., 433; s. c. 17 Southwest. 
 Rep., 1080 (upon the trial of an indictment for an aggravated assault in 
 striking a boy, defendant may testify as to his object and purpose in strik- 
 ing him). Robertson v. Gourley, 84 Tex., 575 ; 19 Southeast. Rep., 1006 
 (upon the issue as to whether a sale was fraudulent as to seller's creditors, 
 the seller may be asked if in making tlie sale he was trying to put . is 
 property out of the reach of anyone ; s. p. Schmick v. Noel, 72 Tex., 1). 
 Baldridge & C. Bridge Co. v. Cartrett, 75 Tex. 628 ; s. c. 13 Southwest. 
 Rep., 8 (to disprove contributory negligence in not jumping when his 
 team was backing off a bridge, plaintiff may testify that he looked around 
 and saw a railing and thought it was sufficiently strong to stop the team). 
 Kansas, etc., R. Co. r. Scott, 1 Tex. Civ. App., 1 ; s. c. 30 Southwest. Rep., 
 725 (in an action in which the value of a railway pass repudiated by de- 
 fendant was an element of damage, plaintiff cannot testify as to the 
 probable number of trips he would make over the road before the pass 
 would expire). Smith r. Sun Pub. Co., 50 Fed. Rep., 399 (in an action for 
 libel a witness cannot testify as to whom in his opinion the article apphes, 
 where it is ambiguous, but after stating that he knows to whom it applied 
 he mav state the facts and circumstances to show to whom it did apply). 
 
•358 Abbott's Select Casks on Examining Witnesses. 
 
 Notes of Cases on Own Intent, etc. 
 
 Washington : Lyts v. Keevey, 5 Wash. St., 606 ; s. c. 32 Pacific Eep., 534 
 {the maker of a note cannot testify, for the purpose of showing that the 
 ■consideration for the note was illegal, that he supposed there was a 
 criminal relation between his wife and the payee, except as preliminary to 
 evidence showing the reasons for his supposition). West Virginia : State 
 1). Evans, 33 W. Va., 417; s. c. 10 Southeast. Eep., 793 (one accused of 
 murder may testify as to his own feelings when the fatal act was com- 
 mitted). Wisconsin: Holtz v. State, 76 Wis., 99; s. c. 44 Northwest. 
 Eep., 1107 (upon a trial for murder defendant may testify that he went to 
 the place where the homicide was committed for the purpose of getting a 
 girl away, but cannot state the character of the place). 
 
IV. Experts. (1) Qualification. 359 
 
 Slocovich V. Orient Mut. Ins. Co., 108 N. Y., 56. 
 
 SLOCOVICH V. OEIENT MUTUAL INSUEANCE CO. 
 
 New Torh Court of Appeals, 1887. 
 [Reported in 108 N. Y., 56.] 
 
 It is for the judge at the trial to determine whether a witness is competent 
 to testify as an expert. 
 
 The decision of a trial judge as to whether a witness, offered as an 
 expert, had those qualifications, is not subject to review in the Court 
 of Appeals, where it appears from the preliminary examination of the 
 witness that it was a fair matter for the judgment of such trial 
 judge. 
 
 Plaintiff sued to recover upon a marine policy. The facts 
 material to the ruling f uUy appear in the opinion. 
 
 At Trial Term, judgment was entered for plaintiff upon a 
 verdict. 
 
 The General Term of the Court of Common Pleas affirmed 
 the judgment, without passing on this question. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, J. [after stating the facts involved']: There was an 
 issue upon the trial as to the value of the vessel at the time of 
 her insurance and of her destruction soon thereafter by fire ; and 
 several experts were called and testified upon both sides, as to 
 her value, who varied widely in their judgments. Among the 
 witnesses called on the part of the defendant was Francis A. 
 Martin, who testified that he was a marine surveyor ; that he 
 had been engaged in that business altogether twenty-five years ; 
 that he had followed the sea six or seven years and had been in 
 command of a vessel; that his business had led him to be 
 familiar with the market-values of vessels in the port of New 
 York for ten years ; that in his regular business he had been 
 called upon to value vessels, principally by adjusters of aver- 
 
360 Abbott's Select Cases on Examining Witnesses. 
 
 Slocovitch V. Orient Mut. Ins. Co., 108 N. Y., 56. 
 
 ages; that he knew the ship Zorka and had been on board of 
 her a good many times, but not within five or six years. He 
 stated, in answer to a question that he thought he was able from 
 his experience and personal knowledge, and the personal 
 examination he made of her, to form an opinion as to her value 
 in 1883. He was then asked this question : " What, in your 
 judgment, judging from your personal knowledge of the vessel, 
 gathered from your personal observation, and your knowledge of 
 the oi-dinary results of wear and tear in ordinary use, was the 
 market value in the port of New York of the ship Zorka in the 
 month of April, 1883?" This question was objected to by the 
 plaintiff and excluded by the court, on the ground, as we must 
 assume from the record, that the witness did not have suificient 
 knowledge of the vessel to testify as to her value at the time she 
 was burned. It will be observed that the witness was asked for 
 his judgment, based solely upon his personal knowledge. It 
 was for the trial judge to determine in the first instance whether 
 the witness was competent as an expert to testify to the value of 
 this vessel. He had not seen her for five or six years, and knew 
 nothing about her condition at the time of her destruction. It 
 did not appear what her condition was at the time he last saw 
 her, and it appeared that subsequently to that time, and after 
 the year 1880, the plaintiffs had expended at least $Y,000 in 
 repairing her. Under such circumstances we cannot say that 
 the judge committed any error in excluding the testimony. If 
 the evidence had been received, it certainly would not have 
 been entitled to very much weight with the jury. While it 
 would not, we think, have been erroneous to receive and submit 
 the evidence to the jury for what it was worth, we cannot say, 
 as matter of law, that the judge exceeded the bounds of a 
 reasonable discretion in holding that the witness was not 
 qualified as an expert to give an opinion as to the value of the 
 ship at the time she was burned. The rules determining the 
 subjects upon which experts may testify, and prescribing the 
 qualifications of experts, are matters of law, but whether a 
 witness offered as an expert has those qualifications is generally 
 a question of fact to be decided by the trial judge. And it has 
 been held that his decision in reference thereto is not review- 
 
IV. Experts. (1) Qualification. 361 
 
 Gregory v. Fichtner, 37 Abb. N. C, 
 
 able iu an appellate court (Searle v. Arnold, 7 R. I., 582 ; Dole 
 V. Johnson, 50 IST. H., 455 ; Jones v. Tucker, 41 id., 546 ; Wriglit 
 V. Williams, 47 Vt., 222). Without going the full length of 
 these cases, it is sufficient to hold here that the decision of the 
 trial judge in such a matter should not he held to present an 
 error of law, and on that account he reversed, unless it is against 
 the evidence or wholly or mainly without support in the facts 
 which appear. Here, we think, it was a fair matter for the 
 judgment of the trial judge whether this witness had the 
 requisite knowledge and qualifications to give an opinion as an 
 expert as to the value of this ship ; and hence we think that 
 judgment is not the subject of review here. 
 
 Smother riiZings are here omitted.'] 
 
 AH the judges concurred, except Andrews and Peckham, 
 JJ., dissenting. 
 
 Judgment affirmed. 
 
 Note.— To similar effect : Still well Mfg. Co. v. Phelps, 130 U. S., 530 ; 
 Perkins v. Sticlcney, 133 Mass., 317; Sorg v. First German Congregation, 
 63 Penn. St., 156. 
 
 GKEGORY V. FICHTNER. 
 
 New Torh Common Pleas, General Term ; May, 1891. 
 
 [Reported in 27 Abb. N. C, 86.] 
 
 Upon an appeal from a judgment of afHrmance by the general term of the 
 City Court of New York of a judgment entered upon a verdict, the 
 Court of Common Pleas has no jurisdiction to review the weight of 
 evidence, but is confined to a consideration of the errors of law apparent 
 on the record. 
 
 Proof that defendant had possession of plaintiff's property as bailee, and 
 that when plaintiff demanded it of him he gave her a pusli and said, 
 "Go away from here; whatever I have I will keep," furmshes 
 sufficient evidence of demand and refusal to establish a conversion. 
 
 Where property is deposited with another for an indefinite period, the 
 Stattite of Limitations does not begin to run against an action by the ^ 
 owner for its conversion, until a demand and refusal. 
 
 A plaintiff suing for the conversion of property by the defendant's testator, >^ 
 is not incon,petent under Code Civ. Pro., § 839, to testify to the value 
 of the property. ' 
 
362 . Abbott's Select Cases on Examining "Witnesses. 
 Gregory v. Fiohtner, 27 Abb. N. C, 86. 
 
 It is error to permit a witness, although the owner, to testify to the value 
 of certain jewehy, without some evidence of her competency as an 
 expert. Proof that she had purchased it, without stating the price, , 
 is insufficient. ^ 
 
 It is error to permit a witness to give an opinion on a matter requiring 
 expert knowledge without first requiring proof of her competency: and 
 simply to permit the adverse party to cross-examine as to that point, 
 is improper, as in effect casting the burden of proving incompetencj' 
 on the objecting party. 
 
 A recovery for conversion cannot be sustained where the only evidence in 
 the case as to value of the property is the opinion of a witness whose 
 competency as an expert has not been, established. 
 
 In an action for conversion by defendant's testator of certain jewelry 
 deposited with him, it appeared that plaintiff placed the jewelry in a 
 box which she left with a third person who delivered it to defendant 
 without knowledge of its contents. — Held, that plaintiff was not com- 
 petent to testify to the contents of the box ; that such testimony 
 related to a personal transaction with the deceased in which the third 
 person was a mere unconscious intermediary. 
 
 Appeal from judgment and order of the General Term of tlie 
 City Court of New York, affirming judgment on a verdict and 
 an order denying motion for a new trial. 
 
 Amelia Gregory sued August Fichtner, as executor, etc., for 
 conversion of several pieces of jewelry by defendant's testator. 
 
 John A Strayley, for appellant. 
 J^o/m Siaoom, for respondent. 
 
 Petoe, J. The contention that the proof was insuiScient to 
 authorize a verdict for the plaintiff, is clearly untenable ; and 
 upon an appeal from a judgment of affirmance by the general 
 term, we have no jurisdiction to review the weight of evidence. 
 "We are confined, therefore, to the consideration of errors in law 
 apparent on the record. 
 
 As intimated, the court rightly refused to dismiss the com- 
 plaint, either for intrinsic defect or insufficiency of proof. The 
 complaint alleges property in the j)laintifl:'s possession by the 
 defendant as bailee ; his refusal on demand to deliver the jewelry, 
 and its value. ISTothing more was requisite to a cause of action 
 for conversion. 
 
 And of these allegations something more at least, than a 
 
ly. E^tperts. (1) Qualification. 363 
 
 Gregory v. Fichtner, 27 Abb. N. C, 86. 
 
 scintilla of evidence was adduced. The criticism of the appellant, 
 is, that the jewelry owned and demanded by the plaintiff, was 
 not identified, by proof, as the jewelry in controversy ; but, as 
 only one parcel of jewelry is indicated either by the pleadings of the 
 evidence, the inference is irresistible, that the jewelry demanded 
 by the plaintiff was the jewelry detained by the defendant. 
 
 The appellant argues that the demand and refusal in evidence 
 was not sufficient proof of conversion ; because it was not apparent 
 that the defendant had either possession of the jewelry or had 
 parted with it to evade delivery of it. But, if a defendant has 
 parted with possession, it is not necessary to show that he did so 
 with a fraudulent purpose. The facts here fail to support the 
 proposition on which the appellant relies, namely : " If, at the 
 time the demand is made, the goods are in the actual possession 
 of another, and the person of whom the demand is made has not, 
 and never had, any control over them, the fact that he claims 
 the goods, and declares they are his own property, will not amount 
 to a conversion (Andrews v. Shattuck, 32 Barb., 396), but the 
 evidence presents rather that other criterion of conversion pro- 
 pounded by Eael, J., in Gillet v. Koberts (57 N. Y., 28), namely : 
 where mere words are relied upon, they must be uttered under 
 such circumstances, in proximity to the property, as to show a 
 defiance of the owner's right, a determination to exercise 
 dominion and control over the property, and to exclude the 
 owner from the exercise of his rights." The uncontradicted 
 evidence is, that defendant's testator had possession of the 
 jewelry; and that when the plaintiff demanded it of him " he 
 gave her a push " and said " go away from here ; whatever I have 
 I will keep." A refusal to deliver under such circumstances, 
 furnishes plenary proof of conversion. 
 
 The appellant further contends that his plea of the Statute of 
 Limitations was made good by uncontroverted evidence. The 
 proof is that in 1872, the defendant received the articles of 
 jewelry on deposit for an indefinite period, and that in ISSi or 
 1885, the return of them was demanded by the plaintiff. The 
 action was commenced in February, 1885. In the absence of evi- 
 dence of any actual conversion, the refusal to deliver on demand, 
 constituted the conversion; and indisputably the statute com- 
 
364 Abbott's Select Cases on Examining Witnesses. 
 
 Gregory •;;. Fichtner, 27 Abb. N. C, 86. 
 
 menced to run at tlie time of that refusal. It was so dt common 
 law, and it is so by the express terms of the Code, whicli provides 
 that " where there was a delivery of jap-rsonal property, not to be 
 returned at a fixed time or upon a fixed contingency, the time 
 must be computed from the demand." § 410, Sub. 2 : " This 
 section was a codification of the law as it existed at the time of 
 its adoption, and created no new rule of law" (King?;. Mac- 
 keller, 109 JST. Y., 215, 224), and at common law the rule was 
 elementary, that " where a demand is necessary to. perfect a right 
 of action, the statute runs from the demand " (13 Am. & Eng. 
 Ency. of Law, 721 ; Payne v. Gardiner, 29 N. Y., 146 ; Smiley?;. 
 Fry, 100 id., 262). The authority relied upon by the appellant 
 (Ganley v. Troy, 98 id., 487) instead of sustaining, quite clearly 
 discredits his contention. The distinction is between a deposit 
 for a determinate and a deposit for an indeterminate period ; and 
 in the latter case, the Code, § 410, expressly provides that " the 
 time must be computed from the demand." Here, the jewelry 
 was not to be returned " at a fixed time or on a fixed con- 
 tingency ; " in other words, the deposit was for an indefinite time ; 
 and so the Statute of Limitations is no answer to this action (Fry 
 V. Clow, 50 Hun, 574). 
 
 So far as to the allegations of error, which we find to be 
 untenable ; we proceed to indicate others which we deem to be 
 well supported and of sufBcient moment to require a reversal of 
 the judgment. 
 
 Although the action be against an executor, the plaintiff was 
 not incompetent under section 829 of the Code, to testify to the 
 value of the jewelry (Burrows v. Butler, 38 Hun, 157). But, as 
 a condition of the admissibihty of her opinion it was neces- 
 sary to show that she was competent to form an opinion ; in 
 other words, that she was an expert on the value of jewelry. 
 That a witness cannot testify as an expert unless he be an expert, 
 is elementary law and familiar practice (7 Am. and Eng. Ency. of 
 Law, 514). Yet, here, without any evidence whatever of her 
 qualification to speak as to the value of the jewelry, the plaintiff 
 was allowed to state the value as $1,857. True, she had said that 
 she bought the jewelry, but she did not give the price ; and 
 the mere fact of the purchase was no proof of her acquaintance 
 
IV. E.rperU. (1) Qualification. 365 
 
 Gregory v. Fichtner, 37 Abb. N. C, 86. 
 
 with the value. On objection to the evidence as incompetent, 
 the learned trial judge answered : " I will allow you " (defend- 
 ant's counsel) " to cross-examine the witness concerning her 
 knowledge as to the value of this jewelry " — implying that the 
 burden is upon a party to prove the incompetency of an adverse 
 witness, rather than upon the party producing him to show his 
 competency. 
 
 This error in the admission of evidencp was palpably pre- 
 judicious to the appellant ; for the case discloses no other proof 
 of value to sustain the verdict ; and in his charge, the learned 
 trial judge assumed that the value was so conclusively shown by 
 the plaintiff's testimony as not to be a question for the jury. In 
 vain the respondent cites Jones v. Morgan (90 N. Y., 4, 10), as 
 establishing the suihciency of the proof of value in the present 
 case ; for there was evidence of the cost price and of deteriora- 
 tion by age and use, while here neither of those facts is exhibited. 
 
 Another error in the admission of evidence is equally fatal to 
 the judgment. 
 
 It was, of course, an indispensable part of the plaintiff's case 
 to prove what and how much jewelry had been delivered to the 
 defendant ; and the fact was thus shown : The plaintiff testified 
 that she put the jewelry in a box ; that the jewelry consisted of 
 such and so many pieces ; and that she left the box in custody of 
 Mrs. Immer with directions to deliver it to the defendant's 
 testator. Mrs. Immer then testified that she did not know what 
 was in the box, but that she delivered it to the defendant's testa- 
 tor ; and so, and not otherwise, was it proved that the defendant's 
 testator received the particular pieces, and all the pieces of the 
 jewelry for the conversion of which the plaintiff has recovered 
 damages. The defendant moved to strike out the plaintiff's 
 'testimony as to what jewelry was delivered to the defendant's 
 testator, on the ground that it was incompetent under section 829 
 of the Code; but the motion was denied, with an exception. 
 The defendant then moved the court for a dismissal of the com- 
 plaint on the ground " that there is no competent evidence of 
 the delivery of the articles," which was also denied with an 
 exception. Finally, the defendant requested the court to charge 
 the jury "that there is no competent proof of the delivery of 
 
366 Abbott's Select Cases on Examining Witnesses. 
 
 Gregory v.- Fichtner, 27 Abb. N. C, 86. 
 
 the jewelry," and this, too, was denied with an exception. Thus 
 the point is duly presented, that the plaintiff was incompetent, 
 under section 829 of the Code, to testify to the delivery of the 
 jewelry to the defendant's testator. 
 
 Did the plaintiif's testimony go to prove a personal transaction 
 or communication with the deceased ? Mrs. Immer did not show 
 what jewelry was delivered to the deceased, for she did not know. 
 She proved only that she delivered the box to him. . It was by 
 the evidence of the plaintiff that the jury were informed what 
 jewelry was delivered to the deceased. Strike out the plaintiff's 
 testimony and there is no evidence of that delivery. And the 
 transaction was between the plaintiff and the deceased, although 
 an unconscious • intermediary was employed, as strictly and 
 essentially as if the box had been sent by the plaintiff to the 
 deceased through the agency of the post office or an express 
 company. Suppose an action for the conversion of articles 
 enclosed in an envelope and transmitted by mail ; a third party 
 proves the delivery of the envelope to the deceased, and then 
 the plaintiff offers to testify to the contents of the envelope ; 
 would not such evidence be rejected as involving, strictly and 
 essentially, a personal communication by the plaintiff to the 
 deceased ? Disclosure of the contents of the envelope is not by 
 the plaintiff to, the postmaster, but is made, for the first time, to 
 the deceased. So here, the contents of the box were not divulged 
 'to Mrs. Immer, and she did not reveal them to the deceased ; 
 but knowledge of those contents was, in the most literal sense, 
 imparted to the deceased by the plaintiff. Plainly it was a 
 personal transaction and communication between the plaintiff 
 and the defendant's testator. 
 
 Statutes are to be construed so as to effectuate the remedy for 
 which they are designed ; and the mischief against which sec- 
 tion 829 of the Code was directed, is testimony by an interested 
 party of a transaction or communication which the decease of the 
 other party makes incapable of contradiction. The present case 
 involves the mischief ; since the plaintiff testified to a transaction 
 and communication as to which only the deceased could speak ; 
 and being within the mischief of the former law, it is within the 
 scope of the remedy which the new law contemplates. " The 
 
lY. Experts. (1) Qualification. 367 
 
 Gregory v. Fichtner, 27 Abb. N. C, 86. 
 
 statute is a beneficial one, and ought not to be limited or narrowed 
 by construction. Although it must appear that the interview or 
 transaction sought to be excluded was a personal one, it need not 
 have been private or confined to the witness and the deceased. 
 A contrary rule would defeat the reasonable intent of the 
 statute, that a surviving party should be excluded, as one 
 interested, from maintaining by his testimony, an issue which in 
 any degree involved a communication or transaction between 
 himself and a deceased person " (Holcomb v. Holcomb, 95 IST.Y. 
 316, 325 ; Heyne v. Doerfler, 36 N. T. St. Eep., 49 Y). 
 
 " Any fact as to which a party is prohibited from testifying by 
 section 829 of the Code, cannot be established inf erentially from 
 his testimony " (Johnson v. Spies, 5 Hun, 468). " A fact that 
 cannot be proved by him directly cannot be established inferen- 
 tially by his testimony " (Jacques v. Elmore, 7 Hun, 675 ; Grey 
 V. Grey, 47 N. Y., 554). 
 
 We are of the opinion that the evidence in discussion was 
 incompetent, and its admission error. 
 
 Judgment reversed, and new trial, costs to abide the event. 
 
 Daly, C. J., and Allen, J., concurred. 
 
 Note. — The adversary may interrupt with cross-examination as to the 
 qualificatious of the alleged expert (Abb. Tr. Brief on the Facts, 338, 
 § 579, and cas. cit.) ; it has been held error to refuse to allow such 
 preliminary cross-examination. First Nat. Bk. of Easton v. Wirebach, 
 14 Rep., 606 ; s. c, more fully, 13 Weekly N. C, 150. 
 
 Where such witness was allowed to testify in chief, without objection on 
 the part of the adversary, but during cross-examination a motion 
 was made to strike out his testimony on the ground that the witness 
 was not competent to testify as an expert. — Held, that the burden was 
 upon the adversary to make it appear affirmatively that the witness 
 was disqualified. Mercer v. Vose, 40 N. Y. Super. Ct., 318. 
 
368 Abbott's Select Cases on Examining Witnesses. 
 Ferg-uson v. Hubbell, 97 N. Y., 507. 
 
 FEEGUSON V. HUBBELL. 
 
 JS^ew Yorli Cotort of Appeals, ISSJ/,. 
 [Reported in 97 N. Y., 507.] 
 
 The question as to what is a proper time to burn a fallow, is not one tor 
 expert witnesses, for it does not require any peculiar habits or study- 
 in order to qualify a' man to understand it. 
 
 To warrant expert evidence it is not enougii that the witness may l^now 
 more of the subject and may better comprehend it than the jury ; but 
 the subject must be one relating to some trade, profession, science or 
 art in which persons instructed therein, by study or experience, may 
 be supposed to have more skill and Ivnowledge than jurors of average 
 intelligence may be i^resumed generally to have. 
 
 Plaintiff sued to recover damages resulting from a lire 
 negligently set by defendant. The facts upon which the rulings 
 are based are sufficiently presented in the opinion. 
 
 At Circuit, judgment was entered for defendant upon a 
 verdict. 
 
 The General Term affirmed the judgment, being of opinion 
 that expert evidence was properly admitted upon the question 
 whether the fire was set at a proper time ; that such question 
 would depend on the degree of dryness, on the force of the wind 
 and its direction, and on many other circumstances which are 
 hardly capable of such accurate description that a witness could 
 give a jury an accurate idea of the facts. 
 
 The Court of Appeals reversed the judgment. 
 
 Eael, J. On the 17th day of May, 1880, and for a long time 
 prior thereto, the plaintiff owned a certain lot of land numbered 
 104 in the county of Warren in this State, and the defendant 
 owned lot 116, situated north of 104, and lot 105, situated west of 
 104. The defendant had leased lot 105 to Charles Hammond to 
 work upon shares, under an agreement by which each party was 
 to furnish half the seed and have half the crops, and the defend- 
 ant was to pay Hammond |10 per acre for clearing so much of 
 the lot as he should choose to clear. On Thursday, the 13th 
 day of May, Hammond, for the purpose of clearing up a portion 
 
IV. Bxj'eHs. (2) On What Subjects Competent. 360 
 
 Ferguson r. Hubbel), 97 N. Y., fi07. 
 
 of his lot, set iire to some wood and brush thereon. That fire 
 burned moderately and smouldered Friday, Saturday, Sunday 
 and until Monday, ^^•hen the wind began to blow and the fire . 
 started up and passed out of that lot upon lots 116 and 101. 
 On Monday, the 17th, in the forenoon, the defendant, for the 
 purpose of clearing up a portion of lot 116, set a fire upon that 
 lot, and either at the time he set the fire or shortly after, the 
 wind began to blow a sharp gale. One or both of the fires thus 
 set upon these two lots passed upon lot 101 and set fire to and 
 burned down a house and barn upon that lot belonging to the 
 plaintiff; and this action was brought by him to recover his 
 damages thus sustained. 
 
 [A ruling on ihe question of defendant s lialjiHty is omitted.'] 
 The case was submitted to the jury to determine whether the 
 fire which destroyed the buildings came from lot 105 or from 
 lot 116, and they were also permitted to determine, if it came 
 from lot 116, whether it was set at a proper time and managed 
 in a proper manner. They found generally for the defendant, 
 and it is impossible to know whether they based their verdict 
 upon the ground that the fire was set upon lot 105, or upon the 
 ground that it was set at a proper time and managed in a careful 
 manner upon lot 116. And it is therefore necessary to inquire 
 whether error was committed ifi the rulings to which we will 
 now call attention. 
 
 There was evidence tending to show that the fire was set 
 upon lot 116 by the defendant at a time when the land 
 was very dry, and when the wind was blowing a strong 
 gale in the direction of the plaintiff's lot. The defend- 
 ant's witnesses gave evidence as to the condition of the 
 land, the state of the weather, and of the wind and various 
 •other circumstances surrounding the fire. As a witness in his 
 own behalf, he testified that he was a farmer, and that he had 
 cleared and seen others clear land, and then he was asked this 
 question : " What do you say as to whether or not as to that 
 time, the fires were set there at that place, it was a proper time in 
 your judgment for burning log heaps on a fallow that had been 
 burned over ? " The question was objected to on the part of the 
 plaintiff as calling for a conclusion of the witness on a subject 
 
370 Abbott's Select Cases on Examining Witnesses. 
 
 Ferguson v. Hubbeir, 97 N. Y., 507. 
 
 not proper to give an opinion ; that tlie witness could only state- 
 facts, and the jury must draw the conclusion. The trial judge 
 remarked that the evidence would be received upon the 
 principle that the witness was shown to have superior knowledge 
 upon that subject. The plaintiff excepted to the ruling, and 
 the witness answered : " I thought it was." Another witness, 
 who was shown to have had experience in clearing land, was 
 asked this question : ' ' How was it at that time as to being dry 
 enough for a proper time to burn a fallow ? " which was objected 
 to on the jjart of the plaintiff as calling for a conclusion. The 
 objection was overruled and the witness answered : " It was dry 
 enough." Another witness who was also shown to have had 
 experience in clearing land was asked this question : " What do 
 you say as to whether it was a proper time or hot to burn a 
 fallow ? " to which there was the same objection and ruling, and 
 he answered : '• I should say it was a proper time to burn it, and 
 advised him that way that day." \ 
 
 We think there was some evidence from which a jury could 
 have found that the fire which destroyed plaintiff's buildings 
 came from lot 116, and the jury may have found from the 
 answers to these questions that the fire was set at a proper time, 
 and thus may have been influenced to find their verdict in favor 
 of the defendant. 
 
 It is contended on behalf of the plaintiff that the questions 
 objected to were improper, and that the subject of the inquiry 
 was not one proper for expert evidence. The questions related 
 to a vital point in the case. The principal claim on the part of 
 the plaintiff was that, in consequence of the wind and the 
 dryness of the ground and the wood, brush and timber, it was 
 an improper time to set the fire ; and whether it was or not, was 
 the main question to be determined by the jury if they reached 
 the conclusion that the fire came from lot 116. These witnesses 
 were therefore asked their opinions upon a controlling issue 
 which was to be determined by the jury. In answering the 
 questions, they did not testify to facts, and they did not tell 
 what they knew as matter of knowledge. They simply ex- 
 pressed opinions which were based upon the facts as they 
 existed. The general rule of law is that witnesses must state 
 
IV. Eeperts. (2) On What Subjects Competent. 371 
 
 Ferguson v. Hiibbell, 97 N. Y., 507. 
 
 facts within their knowledge, and not give their opinions or 
 their inferences. To this nile there are some exceptions, among 
 which is expert evidence. Witnesses 's^ho are skilled in any 
 science, art, trade or occupation, may not only testify to facts, 
 biit are sometimes permitted to give their opinions as experts. 
 This is permitted because such witnesses are supposed, from their 
 experience and study, to have peculiar knowledge upon the 
 subject of inquiry which jurors generally have not, and are 
 thus supposed to be more capable of drawing conclusions from 
 facts, and to base opinions iipon them, than jurors generally are 
 presumed to be. Opinions are also allowed in some cases where, 
 from the nature of the matter under investigation, the facts 
 cannot be adequately placed before the jury so as to impress, 
 their minds as they impress the minds of a competent, skilled 
 observer, and where the facts cannot be stated or described in 
 such language as will enable persons not eye-witnesses to form 
 an accurate judgment in regard to them, and no better evidence 
 than such opinions is attainable. But the opinions of experts. 
 cannot be received where the inquiry is into a subject, the 
 nature of which is not such as to require any peculiar habits or 
 study in order to qualify a man to understand it. 
 
 It is not sufficient to warrant the introduction of expert 
 evidence that the witnesses may know more of the subject of 
 inquiry, and may better comprehend and appreciate it than the 
 jury ; but to warrant its introduction, the subject of the inquiry 
 must be one relating to some trade, profession, science or art in 
 which persons instructed therein, by study or experience, may 
 be supposed to have more skill and knowledge than jurors of 
 average intelligence may be presumed generally to have. The 
 jurors may have less skill and experience than the witnesses and 
 vet have enough to draw their own conclusions and do justice 
 between the parties. Where the facts can be placed before a jury, 
 and they are of such a nature that jurors generally are just as 
 competent to form opinions in reference to them and draw 
 inferences from them as witnesses, then there is no occasion to 
 resort to expert or opinion evidence. To require the exclusion 
 of such evidence, it is not needed that the jurors should be able 
 to see the facts as they appear to' eye-witnesses or to be as. 
 
372 Abbott's Select Cases on Examining Witnesses. 
 
 Ferguson v. Hubbell, 07 N. Y., 507. 
 
 capable to draw conclusions from them as some witnesses might 
 be, but it is sufficient that the facts can be presented in such a 
 manner that jurors of ordinary intelligence and experience in 
 the affairs of life can appi'eciate them, can base intelligent 
 judgments upon them and comprehend them suiBciently for the 
 ordinary administration of justice. 
 
 The rules admitting the opinions of experts should not be 
 unnecessarily extended. Experience has shown that it is much 
 .safer to confine the testimony of witnesses to facts in all cases 
 where that is practicable and leave the jury to exercise their 
 judgment and experience upon the facts proved. Where wit- 
 nesses testify to facts they may be specifically contradicted, and 
 if they testify falsely, they are liable to punishment for perjury. 
 But they may give false opinions without the fear of punishment. 
 It is generally safer to take the judgments of unskilled jurors than 
 the opinions of hired and generally biased experts. A long time 
 ago in Tracy Peerage (10 CI. & Fin. 154, 191) Lord Campbell 
 said, that skilled witnesses came with such a bias on their minds 
 to support the cause in which they are embarked, that hardly 
 any weight should be given to their evidence. Without indors- 
 ing this strong language which is however, countenanced by the 
 utterances of other judges and of some text writers, and believing 
 that opinion evidence is in many cases absolutely essential in the 
 administration of justice, yet we think it should not be much en- 
 couraged and should be received only in cases of necessity. Better 
 results will generally be reached by taking the impartial, unbias- 
 ed judgments of twelve jurors of common sense and- common 
 experience than can be obtained by taking the opinions of 
 experts, if not generally hired, at least friendly, whose opinions 
 cannot fail generally to be warped by a desire to promote the 
 cause in which they are enlisted. 
 
 From a careful examination of many cases in this and other 
 states, we are satisfied that the questions objected to in this case 
 should have been excluded. 
 
 In Eraser v. Tupper (29 Vt., 409), in an action like this, a 
 question entirely similar to this, was held to be inadmissible. 
 There the defendant offered to prove by farmers who were ac- 
 ■quainted with the clearing of land by burning the same, and 
 
IV. Eqjerts. (2) On What Subjects Competent. 3Ya 
 
 Ferguson v. Hubbell, 97 N. Y., 507. 
 
 who were upon the land the day the fires Avere set, and who de- 
 scribed to tlie jnry, as well as they could, the position of the fire 
 and the force and direction of the wind, that in their opinions 
 it was a suitable and proper and safe day for setting the piles on 
 fire with reference to the position of the piles in respect to the 
 plaintiff's coal and the force and direction of the wind. To this 
 evidence the plaintiff objected, and it was excluded by the court, 
 and to its exclusion the defendant excepted, and it was held that 
 the ruling was proper. In the opinion of the court it is said i 
 " There could be no difficulty in this case in the witnesses stating 
 to the jury the position of the fires which were set by the 
 defendant, their number and magnitude, the direction and the 
 course of the wind, the position, distance and character of plaint- 
 iff's property and its exposure to injury from that source. The 
 jurors, upon the question whether the defendant exercised 
 proper care, could form as definite opinion, from the facts stated 
 by the -witnesses, as the witnesses themselves. The subject- 
 matter is not one of science or skill, but is susceptible of direct 
 proof, and in most cases the triers themselves are qualified from 
 experience in the ordinary affairs of life, duly to appreciate the 
 material facts when found. If there is any materiality attached 
 to the force of the wind on that day, w-e do not see any difficulty 
 in conveying a true idea of it, sufficient at least, for all practical 
 purposes." 
 
 In Higgins v. Dewey (lOY Mass., 494) the action was also like 
 this and the defendant offered to prove by a surveyor and civil 
 engineer of many years experience in clearing land by fire, who 
 had observed the effects of wind on fires in different localities, 
 and had been upon the land where the defendant set his fire and 
 made a plan of it and was acquainted with the surrounding 
 country, that there was no probability that a set fire under the 
 circumstances in the case, as described by the witnesses, would be 
 communicated to the plaintiff's land ; but the judge excluded the 
 evidence, and his ruling was held to be proper on the ground 
 that the evidence offered related to a subject within the common 
 knowledge of the jury. In Luce v. Dorchester Mutual Fire 
 Ins. Co., (105 Mass., 297), the action was to recover for a loss on 
 a policy of insurance against fire upon a dwelling-house which 
 
374 Abbott's Select Cases on Examining Witnesses. 
 
 Ferguson v. Hubbell, 97 N. Y., 507. 
 
 ttie plaintiff had left unoccupied at the time of the loss, and for 
 some time before ; and the opinions of witnesses that leaving 
 a dwelling-house unoccupied, for a considerable length of time, 
 increased its liability to be destroyed or injured by fire, were 
 held to be inadmissible, on the ground that the subject was within 
 common knowledge. In Sowers v. Dukes (8 Minn., 23) the 
 action was to recover for a breach of contract in neglecting to 
 build and keep in repair a fence around a certain field, whereby 
 plaintiff's crops were injured. Upon the trial the plaintiff, a wit- 
 ness in his own behalf, was asked this question : " Was the fence a 
 proper fence to turn stock, and could they easily put their heads 
 through between the fence and rider ? ' ' This question was ob- 
 j acted to, on the ground that the jurors were the proper judges 
 as to whether the fence was sufficient, after it had been described. 
 The objection was overruled and the witness was permitted to 
 answer ; and the question was held to be incompetent, and the 
 judgment was reversed for that reason. It was held that the 
 witness should have stated the. facts ; that the jury should 
 have based their judgments upon the facts, and that it was not 
 a proper subject for opinion evidence. In Enright v. S. E. & S. 
 J. E. E. Co., (33 Cal., 230), in a suit against the defendant for 
 injury to plaintiff's cattle caused by an insufficient fence, it was 
 held that the evidence of farmers that the fence was sufficient to 
 turn cattle was improper. In Bills v. City of Ottumwa (35 
 Iowa, 109), the defendant was sued for injuries to the plaintiff, 
 alleged to have been sustained in consequence of the bad con- 
 dition of the street, which caused him to be thrown from a wagon 
 loaded with hay ; and it was held, that the opinion of a farmer, 
 that a wagon loaded in a manner in which the one was, upon 
 which the plaintiff was riding, was not safe for riding upon over 
 ordinary roads, was inadmissible. In Concord E. E. v. Greely (23 
 N.H., 237),in a proceeding to assess damages for a right of way for 
 a railroad, it was held that the opinion of a farmer, as to the effect 
 upon a farm of a railroad passing through it, was inadmissible. 
 In Paige v. Hazard (5 Hill, 603), in an action for negligence in 
 injuring and sinking a canal boat, the plaintiff, after proving the 
 cause of action as alleged, called a witness who testified that he 
 was a boatman and knew the boat in question previous to her 
 
IV. Kvperts. (2) On What Subjects Competent. 875 
 
 Ferguson v. Hubbell, 97 N. Y., 507. 
 
 being injured, that he had raised sunken boats and caused them 
 to be repaired, and he was then asked the following question : 
 ^' From the description of the situation of the boat, as given by 
 the witnesses, what would the damage be ? " and it was held im- 
 proper and that the witness' answer was inadmissible. In Teall 
 V. Barton (40 Barb., 137), the action was brought to recover 
 damages caused by fire communicated by a steam dredge, and it 
 was held that a question put to a witness, who had had experience, 
 as to whether he considered it dangerous to use a steam dredge 
 without a spark-catcher, was properly overruled, it not being a 
 question of science or skill, and not falling within the rule relat- 
 ing to evidence by experts. In McGregor v. Brown (10 N. Y., 
 114), the action was by a landlord against his tenant for waste ; 
 and it was held that the opinions of witnesses, that the acts 
 complained of were not injurious to the inheritance, not waste, 
 were inadmissible. 
 
 In all these cases it was held that the witnesses should be con- 
 fined to a statement of the facts, and that it was the province of 
 the jury to draw inferences and form judgments. In most of them 
 it was as probable as it was here that some of the jurors might not 
 know as much about the subject of inquiry, and not be as ca- 
 pable of forming opinions or drawing inferences from the facts 
 as the witnesses ; and yet it was held, as the subjects of inquiry 
 were of such a nature that jurors generally might be presumed 
 to have sufficient knowledge of them to enable them to discharge 
 their duty when the facts were placed before them, that it was 
 safer to rely upon them than upon the opinions of witnesses, how- 
 ever expert they might be. Here the subject of inquiry related 
 to the common elements of fire, and wind, and dry wood, and 
 brush, and timber, with which every man has some acquaintance; 
 and whether under all the circumstances, it was a safe, prudent or 
 proper act to set a fire, a jury with the common experience 
 which, if not all men, most men have, would be sufficiently com- 
 petent to form an opinion. This is not a case where it was im- 
 possible to place the facts before a jury. The character of the 
 wind, the condition of the soil as to being dry or not, the character 
 of the brush and timber, the nature of the ground, the distance, 
 exposure, everything, could be proved so that the jury would 
 
376 Abbott's Select Cases on Examining "Witnesses. 
 
 Ferguson v. Hubbell, 97 N. Y., oOT. 
 
 have substantially as correct knowledge in reference to it as the 
 witnesses ; if not as correct, they could acquire knowledge suffi- 
 ciently correct to enable them to discharge their duty as jurors. 
 
 We have carefully examined the numerous cases cited in re- 
 ference to this evidence in the brief of the learned counsel for 
 the defendant, and none of them sustain its admission. They 
 show that farmers may be permitted to give their opinions of the 
 value of farms, and farm stock, and produce ; that witnesses may 
 give their opinions on questions of identity or whether a person 
 is under the influence of liquor, and as to many other matters. 
 There is a broad range for expert evidence, but none of the 
 authorities go far enough to hold that this evidence is within the 
 proper range. The question of expert evidence was not involved 
 in the case of Hays ?;. Miller (6 Hun, 320, and 7(J IST. Y., 112). 
 The action in that case was brought to recover damages caused 
 by fire to the lands of the plaintiff's intestate, through the alleged 
 negligence of the defendant ; and the referee, instead of passing 
 upon the question of negligence directly as one of fact, made 
 special findings of the circumstances and from those found negli- 
 gence as a conclusion of law, and he ordered judgment in favor of 
 the plaintiff. The question under consideration upon the appeal 
 was whether the inference of law was justified by the factu 
 found. The appellant claimed that it was the duty of this court 
 to review the conclusions of the referee, and decide as matter of 
 law, whether the facts and circumstances found by him estab- 
 lished that the burning upon the defendant's land was conducted 
 in an improper and negligent manner, or at an improper time 
 and season ; or whether it was conducted in a proper manner and 
 at a proper time ; and we held that this court was not competent 
 to draw the conclusions and inferences from the facts ; that that 
 was a matter for the referee, and that we were concluded by the 
 inferences and conclusions drawn from the facts by him ; and in 
 discussing that question some language was used by the judge 
 writing the opinion in this court which, it is claimed, favors the 
 contention of the respondent here that these questions were 
 proper to elicit expert evidence. But as we have seen, the 
 learned judge writing the opinion did not have in mind the 
 subject of expert evidence and was simply discussing the com- 
 
IV. Experts. (2) On What Subjects Competent. SYT 
 Strohm v. The N. Y., L. E. & W. E. R. Co., 96 N. Y., 305. 
 
 petency aud power of this court to draw inferences from facts 
 and circumstances foiind by the referee ; aud it was held, as we 
 always hold in such cases, that the inferences are for the triers of 
 facts. 
 
 AYe are therefore, constrained to reverse this judgment and 
 grant a new trial as we think an important rule of evidence was 
 violated. To uphold the propriety of these questions would 
 carry the rule of expert evidence fiirther than it has ever been 
 carried in this state, and would be an unwarranted invasion of 
 the rule which confines witnesses to facts, and excludes their 
 opinions. It is important to maintain the rule in its integrity, 
 and to permit as few invasions of it as the proper administration 
 of justice will allow. 
 
 The judgment should be reversed and a new trial granted, 
 costs to abide the event. 
 
 All concur, except IVIillee, J., dissenting. 
 
 Judgment reversed. 
 
 STKOHM V. THE NEW YORK, LAKE EEIE AND 
 WESTERN RAILROAD COMPANY. 
 
 New TorJc Court of Appeals, I88J1.. 
 
 [Reported in 96 N. Y., 305.] 
 
 In an action for negligently injuring plaintiff's child, an expert, after 
 having testified as to anticipated consequences, that the child 
 would always have some remnants of the injury, and was liRely to 
 retain the greater part of the symptoms or grow worse, was allowed 
 to testifiy as to what worse developments might ensue.— KeZd, that 
 this was error, because opening the door for the jury to include 
 compensation for mere hazard in violation of the rule that to recover 
 for future injuries there must be a reasonable certainty that they will 
 result. 
 
 Plaintiff sued to recover damages for a personal injury result- 
 ing from defendant's negligence. The facts material to the 
 ruling fully appear in the opinion. 
 
 At Ctrm'd, judgment was entered for plaintiff on a verdict. 
 
378 Abbott's Select Cases on Examining "Witnesses. 
 
 Strohm v. The N. Y., L. E. & W. E. E. Co., 96 N. Y., 305. 
 
 The General Term afBrmed the judgment without discussing 
 Ihe question. 
 
 The Court of Appeals reversed the judgment. 
 
 Rapallo, J. We feel constrained to order a new trial in this 
 ■case on account of the admission of the evidence of Dr. Spitzka 
 as to the disorders into which the symptoms the plaintiff was 
 said to have exhibited, might develop. Future consequences, 
 which are reasonably to be expected to follow an injury, may be 
 given in evidence for the purpose of enhancing the damages to 
 be awarded. But to entitle such apprehended consequences to 
 be considered by the jury, they must be such as in the ordinary 
 ■course of nature are reasonably certain to ensue. Consequences 
 which are contingent, speculative, or merely possible, are not 
 proper to be considered in ascertaining the damages. It is not 
 enough that the injuries received may develop into more serious 
 conditions than those which are visible at the time of the injury, 
 nor even that they are likely to so develop. To entitle a plaint- 
 iff to recover present damages, for apprehended future con- 
 sequences, there must be such a degree of probability of their 
 occurring as amounts to a reasonable certainty that they will 
 result from the original injury. (Curtis v. Rochester & Syracuse 
 E. R. Co., 18 N. Y., 541 ; Filer v. K Y. C. R. R. Co., 49 id., 45 ; 
 Clark V. Brown, 18 Wend., 229 ; Lincoln v. Saratoga & S. R. R. 
 Co., 23 id., 425, 435.) 
 
 The witness, Dr. Spitzka, had personally examined the physical 
 condition of the plaintiff, had received from him an oral 
 statement of his symptoms, and had also been asked a hypotheti- 
 cal question, embodying a description of the apparent condition 
 and symptoms exhibited by the plaintiff since the injury, as 
 claimed by the plaintiff's counsel to have been established by 
 the evidence. He was then asked what the symptoms related 
 to him and those described in the hypothetical question in- 
 dicated, and he answered that the elements of the hypothetical 
 question proved epilepsy, while those related by the patient 
 himself left that matter open, leaving it either as a preliminary 
 stage of epilepsy or meningitis, or traumatic dementia, the 
 witness could not decide which of the three. Being afterward 
 
IV. Experts. (2) On What Subjects Competent. 379 
 
 Strohm v. The N. Y., L. E. & W. E. R. Co., 96 N. Y., 805. 
 
 asked as to tlie permanency of the condition of the plaintiff, he 
 stated that it was very likely to be permanent. The question 
 was then put to him by the plaintiff's counsel " What do you 
 mean by very likely ? " and he answered, " I mean that the boy 
 will always have some remnants of this injury, some reminder of 
 it, great or small, that is certain ; how much he will retain I 
 •cannot tell but I think it very likely he will retain." 
 
 Here the witness was interrupted by an objection of the 
 ■defendant's counsel to the words "very likely" and what 
 followed, as entirely too speculative. The court overruled the 
 objection, and an exception was taken. The witness then 
 answered that the plaintiff was likely to retain the greater part 
 of the symptoms if he did not develop worse signs. The 
 following question was then put : " Q. You said it might 
 develop into worse signs or conditions. What do you refer 
 to?" 
 
 This question was objected to as speculative and hypothetical. 
 The objection was overruled, and the counsel for the defendant 
 excepted and the witness then answered : " A patient sustaining 
 such injuries and presenting such premonitory signs, may 
 develop traumatic insanity, or meningitis, or progressive de- 
 mentia, or epilepsy with its results." 
 
 This answer was quite responsive to the question asked, which 
 in substance called upon the witness to state what worse signs or 
 conditions might be developed from the injuries sustained by 
 the plaintiff ; and the evidence being admitted by the court in 
 the face of the objection that the inquiry was too speculative, 
 the door was opened for the jury, in estimating the damages, to 
 include compensation for the mere hazard to which the plaintiff 
 was claimed to be exposed of being afflicted with the terrible 
 disorders, or some of them, enumerated in the answer. It is 
 impossible to reconcile the admission of this evidence with the 
 authorities before referred to, or to say that the error could not 
 have prejudiced the defendant or influenced the amount of the 
 verdict. 
 
 The judgment should be reversed and a new trial ordered, 
 costs to abide the event. 
 
 All concur; except Roser, Ch. J., and Danforth, J., who 
 
380 Abbott's Select Cases on Examining Witnesses. 
 
 Strohm v. The N. Y., L. E. & W. R. R. Co., 96 N. Y., 305. 
 
 dissent upon the ground that the question is not properly raised, 
 and if it is, that evidence by experts of the probable and even 
 possible consequences of the injury is admissible for the con- 
 sideration of the jury. 
 Judgment reversed. 
 
 In an action of covenant for damages to plaintiff by the erection of 
 another mill on the same stream with plaintiff's mill, a witness (who had 
 been a workman in plaintiff's mill) was asked what damages, in his opinion, 
 plaintiff had sustained. 
 
 This question was objected to. 
 
 Held, that the question was improperly admitted. Co wen, J., after 
 adverting to the principles upon which opinions are allowed on matters 
 of science, added : "Surely there can be nothing like science in ascertain- 
 ing the loss of this plaintiff from a rival factory. After hearing particu- 
 lars, one man can reckon up the amount as well as another, though none 
 with perfect accuracy. That is no reason for receiving opinion, but a very 
 powerful argument against it." 
 
 Norman v. Wells, 17 Wend., 136. 
 
 In an action for damages caused by defendant permitting water to run 
 from his premises upon those of the plaintiff, a witness, Auld, was asked 
 "What relative amount of water to the whole in Mr. Thomas' yai'd comes 
 from the defendant's lot? " This was objected to by the plaintiff. 
 
 Held, to have been properly excluded ; Brady, J., saying: " The ques- 
 tion which was put to Auld was scientific in its whole breadth and scope, 
 and could not have been answered without some knowledge of laws with 
 which he was not shown to be familiar.'' 
 Thomas v. Kenyon, 1 Daly, 132. 
 
IV. ExperU. (3) Form of Questions. 381 
 
 People V. McElvaine, 121 N. Y., 250. 
 
 PEOPLE V. McELVAUSTE. 
 
 Neio York Court of Appeals, 1890. 
 
 [Reported in 121 N. Y., 350.] 
 
 A hypothetical question to an expert, if based upon the whole evidence 
 in the case, is incompetent, since it is also predicated upon the as- 
 sumption that the witness recollects the testimony, and it would be 
 impossible for the jury to determine the facts upon which the witness 
 based his opinion, and whether such facts were proved or not. 
 
 The defendant was indicted for murder ; the sole defense was 
 insanity. 
 
 The Court of Sessions entered judgment on a verdict of 
 •conviction. 
 
 The Court of Appeals reversed the judgment. 
 
 EuGER, Ch. J. [after stating the nature of the crime'] : The 
 sole defense' attempted was the alleged insanity of the accused. 
 Considerable evidence was given on the trial in his behalf tend- 
 ing to show that he possessed a defective mental organization 
 and was subject to delusions and hallucinations, which were 
 claimed to be evidence of his insanity. Two witnesses were 
 called on his behalf, as experts, who respectively gave evidence 
 tending to show a belief that he was, to a certain degree, insane. 
 Two expert witnesses were also called on behalf of the prosecu- 
 tion to give opinions upon the question of the defendant's sanity, 
 and each testified that he was, in their opinion, sane. It cannot 
 be questioned but that the evidence of these witnesses was material 
 and had weight with the jury upon the question of the defendant's 
 mental condition. If these opinions were based upon an 
 erroneous hypothesis and were founded in any material respect 
 upon indefinite or unascertainable conditions, or upon considera- 
 iions which were not the proper subject of expert evidence, they 
 must be regarded as having been erroneously admitted. The 
 only serious objection to the conviction arises upon an exception 
 to the ruling of the court, permitting Doctor Gray, a witness for 
 the prosecution and an expert of high reputation and character, 
 to answer, against objection, a hypothetical question as to the 
 
382 Abbott's Select Cases on Examining Witnessfs. 
 
 People V. McElvaine, 121 N. Y., 250. 
 
 defendant's sanity. The question put by the district attorney^ 
 and the proceedings accompanying the question were as follows : 
 
 " Q. Now are you able to say whether in your judgment, based 
 upon all the testimony, the acts of the defendant on the night of 
 the homicide, the testimony as to his past life given by the 
 Avitnesses in his defense, and based upon the whole case, whether 
 this young man is sane or insane ? 
 
 Mr. Curtis : I object, as it is not a question properly put. 
 
 The Court : Why not ? 
 
 Mr. Curtis : It is too vague and indefinite. In order to put a. 
 hypothetical question properly, so say the Court of Appeals, it 
 must consist of specifically proven facts, which come within the 
 pale of the proof ; not where a person, for instance, is permitted 
 to give an anomalous opinion. 
 
 The Court : You had better frame the question. 
 
 Mr. Eidgway : Then I will ask the stenographer to read all 
 the evidence to this witness. 
 
 The Court : I don" t see why the question is not competent. 
 
 Mr. Curtis : The way is, to take compact, substantial, concen- 
 trated oral proof, what the learned counsel relies on to prove the 
 defendant insane. 
 
 The Court : Where a medical witness, who is called as an 
 expert, has been in court during the whole trial and heard all the 
 testimony in the case, everything that has been done and said by 
 everybody, I don't see why it is not competent to ask him 
 whether upon those facts, all he heard testified to, he thinks the 
 defendant is sane or insane. This witness has heard all that has 
 been sworn to by everybody. 
 
 To the witness: You have heard all the testimony in the 
 case ? 
 
 The District Attorney : Based upon the whole testimony of 
 the prosecution and the defense, including the hypothetical 
 question pat by Judge Curtis, and everything that you have 
 heard sworn to here, now will you answer the question ? 
 
 The defense excepts. 
 
 A. I have formed an opinion. 
 
 Q. State it. 
 
 The defense excepts. 
 
IV. Exj>erts. (3) Form of Questions. 383 
 
 People V. McElvaine, 131 N. Y., 350. 
 
 A. I believe the defendant is sane. 
 
 Q. What do you believe he was at the time of the commission 
 of the offense '5 
 
 A. I believe he was sane at the time of the commission of the 
 offense." 
 
 We cannot doubt but that this question was improper. The 
 witness was thus permitted to take into consideration all the 
 evidence in the case given upon a long trial extending over nine 
 days, and, upon so much of it as he could recollect, determine 
 for himself the credibility of the witnesses, the probability or 
 improbability of their statements, and drawing therefrom such 
 inferences as, in his judgment were warranted by it, pronounce 
 upon the sanity or insanity of the defendant. It cannot be 
 questioned but that the witness was by the question put in the 
 place of the jury and was allowed to determine upon his own 
 judgment what their verdict ought to be in the case. 
 
 It hardly needs discussion or authority to shov/ the impro- 
 priety of this question, and indeed the learned trial judge, at a 
 subsequent stage of the proceedings, emphatically protested 
 against the implication that he had permitted such a question to 
 be put to the witness. 
 
 A reference to the record, however, shows that the court 
 must then have been laboring under some misconception as to 
 what had really taken place. This might reasonably have 
 happened to any judge from the prejudice excited by the 
 exasperating mode in which the defense was conducted by the 
 prisoner's counsel. The rule as to the conditions governing the 
 formation of hypothetical questions to experts, has frequently 
 been discussed and illustrated in the reported cases in this court. 
 It was said by Judge Andrews, in the case of People v. Barber 
 (115 JST. Y., 475, 491), that : " The opinion of medical experts as 
 to the sanity or insanity of the defendant, based upon testimony 
 in the case, assumed for the purpose of the examination to be 
 true, was undoubtedly competent. So, in connection with their 
 opinion, they could be permitted to state the reasons upon which 
 it was founded. But inferences from facts proved are to be 
 drawn and found by the jury, and cannot be proved as facts by 
 the opinion of witnesses." 
 
384 Abbott's Select Cases on Examining Witnesses. 
 People V. McElvaine, 121 N. Y., 250. 
 
 In Eeynolds v. Eobinson (64 JST. Y., 589, 595), Judge Eael, in 
 speaking of evidence attempted to be given under a hypothetical 
 question, says : " In such a case it is not the province of the wit- 
 ness to reconcile and draw inferences from the evidence of other 
 witnesses and to take in such facts as he thinks their evidence 
 has established, or as he can recollect and carry in his mind, 
 and thus form and express an opinion. His opinion may be 
 obtained by stating to him a hypothetical case, taking in some 
 or all of the facts stated by witnesses, and claimed by counsel 
 putting the question to be established by their evidence, and 
 when the question is thus stated the witness has in his mind -a 
 definite state of facts, and the province of the triers, whether 
 referees or jurors, is not interfered with." So too it was said 
 by Judge Miller, in Guiterman v. Liv., JST. Y. & Phila. S. S. Co. 
 (83 ]Sr. Y., 358), that it is not the province of an expert witness 
 " to draw inferences, or to take in such facts as he can recollect 
 and thus form an opinion." 
 
 In Gregory v. IN". Y., L. E. & W. E. Co. (28 IT. Y. S. E., 726, 
 the court say : " An expert witness cannot be asked to give an 
 opinion based upon what he has heard other witnesses testify. 
 Such opinion must be based on a hypothetical question contain- 
 ing facts which are assumed to have been proven." The case 
 of People V. Lake (12 IST. Y., 358) is not an authority for appellant 
 on the question under discussion. 
 
 The court in that case did not concur in the opinion written, 
 but placed their decision upon two propositions, one of which 
 only bears upon the question here, and that was that " the Court 
 of Oyer and Terminer erred in permitting physicians, who did 
 not hear all the evidence relating to the mental condition of the 
 prisoner, to give opinions as to his sanity, founded on the 
 portion heard by them." The question was not mooted or 
 decided whether, in case they had heard all of the evidence, 
 they could give opiaions based thereon, but it passed off solely 
 upon the question whether a person who had heard only a part 
 of the evidence upon a trial, could give an opinion based upon 
 the portion, of the evidence so heard by him. It is true that an 
 implication may be drawn from the decision that if the witness 
 had heard the whole evidence he might properly have given his 
 
TV. E:q}e)is. (3) Form of Questions. 385 
 
 People V. McElvaine, 131 N. Y,, 250. 
 
 •opinion, but tliat question was not in the case and it falls far 
 «hort of being an authority on the point. 
 
 The case of Sanchez v. People (22 N. Y., 147, 150) is to a 
 similar effect. Two opinions were delivered in that case, but 
 neither of them secured the concurrence of the court. The 
 decision was placed upon the decision in the Hartung case, and 
 had no reference to the question under consideration here. The 
 ■case of People v. Thurston (2 Parker's Cr. R., 49) was in the 
 Supreme Court, and failed to secure the concurrence of the 
 <30urt in the grounds upon which it was decided. 
 
 Xo rule was, therefore legally formulated by the decision, but 
 the inferences to be drawn from the opinions read are plainly 
 •opposed to the People's contention here. No other decisions 
 from this state are cited, and we deem it unnecessary to discuss 
 or consider the rules prevailing in other counti-ies in view of the 
 reported decisions made in our own courts. 
 
 An attempt was subsequently made to, in some degree, cure 
 the error committed, by proving by the witness that in answering 
 the question he assumed the truth of the evidence given by the 
 defendant's witnesses; but we think this did not remove the 
 vice inhering in the question. Even as thus affected, it left the 
 uncertainty of his memory as to all of the evidence in the case, 
 and the freedom of his judgment as to all other evidence to give 
 such weight as he should in his own mind determine it was 
 entitled to, and substantially allowed him to usurp the functions 
 of the jury in deciding the questions of fact. 
 
 We think it is not competent in any ease to predicate a hypo- 
 thetical question to an expert upon all of the evidence in the 
 case, whether he has heard it all or not, upon the assumption 
 that he then recollects it, for it would then be impossible for the 
 jury to determine the facts upon which the witness bases his 
 •opinion, and whether such facts were proved or not. Suppose 
 the jury concluded that certain facts are not proved, how are 
 they, in such an event, to determine whether the opinion is not 
 to a degree, based upon such facts ? When specific facts, either 
 3)roved or assumed to have been proved, are embraced in the 
 question, the jury are enabled to determine whether the answer 
 to such question is based upon facts which have been proved in 
 
386 Abbott's Select Cases on Examining Witnessks. 
 
 People V. McElvaine, 121 N. Y., 350. 
 
 the case or not and whether other facts bearing upon the correct- 
 ness and force of the answer are contained therein, or have been 
 omitted from it ; but in the absence of such a question the evi- 
 dence must always be, to a certain extent, uncertain, unintelligible 
 and perhaps, misleading. 
 
 We regret that an error of this character is found in a case 
 which was otherwise tried by the learaed court with an intelligent, 
 understanding of and adherence to the rules of law applicable to 
 the case, and a strict regard to the rights of the accused ; but in 
 compliance with the uniform practice of courts in capital cases to- 
 avoid even the possibility of injustice to. the accused, we think 
 the error referred to requires a new trial. 
 
 All concur. 
 
 Judgment reversed. 
 
 Note. — In Link v. Sheldon, 136 N. Y., 1, an action to recover damages, 
 for malpractice in failing to properly redress a fractured arm, an expert, 
 having no Icnovvledge of the case, and having first been asked a hypo- 
 thetical question on an assumed case involving consequences to the arm, 
 for neglect to redress within a certain time, was asked whether he could 
 trace any of the results he had heard testified to, to the lack of redressing 
 on a certain day. Held, incompetent and properly excluded, since to 
 have answered the question would have required the witness to pass upon, 
 or to draw inferences from the evidence in the case by another witness. 
 The court say (Gray, J.) :" An expert witness should be confined to.\ 
 questions which contain in themselves the facts assumed to be proven, and' | 
 upon which his opinion is desired." 
 
 (Citing Reynolds v. Robinson, 69 N. Y., 589.) 
 
 In the Matter of Snelling, 136 N. Y., 515, a contest over the probate of a 
 will based on want of capacity and undue influence, the contestants called 
 two witnesses, who testified at length to conduct of the testatrix tending 
 to establish their objections. The proponents then called two physicians, 
 who both testified they had read the whole of the testimony of the two- 
 witnesses, and were each asked: " Assuming their testimony to be true, 
 and basing your opinion upon such testimony, what would you say as to- 
 the mental condition of Mary Snelling, say in June, 1890 ? " The physicians 
 were allowed to answer, over the contestants' objection, to competency of 
 the testimony. Held, error, under the rule applied in People v. McElvaine 
 and Link v. Sheldon (both supra), and that the pi-inciple is not changed 
 by the circumstance that all the testimony embraced within the sweeping 
 terms of the question was before the court, or that the mass of testimony 
 upon which the opinions were based came from witnesses of the opposite- 
 party. 
 
IV. Experts. (3) Form of Questions. 38T 
 
 Note on Hypothetical Questions. 
 
 In People v. Mm-phy (101 N. Y., 126), reported at p. 125 of this volume, 
 a prosecution for causing an abortion, it was held, error to allow the- 
 physician who had attended the woman, to testify as an expert whether 
 or not in his opinion, an abortion had taken place, it appearing that such 
 opinion was founded not only upon what he observed of the physical con- 
 dition of the woman, but upon all her statements and the history of the 
 case as derived from her, which statements and history were inadmissible 
 and remained undisclosed. 
 
 NOTE ON THE PROPER FOUNDATION OF 
 HYPOTHETICAL QUESTIONS. 
 
 In the framing of hypothetical questions, counsel may assume 
 facts as they claim them to exist, and an error in the assumption 
 does not make the question objectionable if it is within the 
 probable or possible range of the evidence. 
 
 Nor need such questions state facts as they exist ; each side 
 may shape questions according to its theory. 
 
 If the facts assumed are not unsupported by evidence in the 
 case, the question cannot be excluded merely on the ground that 
 in the opinion of the judge the facts are not established by a 
 preponderance of evidence. 
 
 If, on direct examination, the question assume any material 
 fact which there is no evidence to support, it must be excluded. 
 
 On cross-examination, abstract questions and hypothetical 
 questions not founded on evidence in the case, may be put for 
 the purpose of testing the witness, nor will snch cross-examina- 
 tion make him the adversary's witness within the rule against 
 contradicting one's own witness. 
 
 {The above frinoijples are taken from Abbott's Trial Brief on 
 the Fads, pp. 227-232, §§ 578-593, where the cases are collated; 
 for the application of the rules in criminal cases, see Abbott's 
 Trial Brief of Criminal Cases, §§ 68'2, et seq., as partly modi- 
 fied by People v. McElvaine, reported supra.~\ 
 
V. Aiding : and Memoranda. (1) Questions to Eefresh. 38&' 
 People V. Druse, 103 N. Y., 6.)5. 
 
 PEOPLE V. DRUSE. " 
 
 New Yoi'h Court of Appeals, 1886. 
 
 [Reported in 103 N. Y., 655.] 
 
 Aftor a witness for the prosecution has, without interruption, gone- 
 throug-li the story of the incidents of a transaction, tlie trial judge 
 may permit the district attorney to call his attention to particular- 
 facts without leading. 
 
 Trial of an indictment for murder. 
 
 On the trial the following controversy occurred over several 
 questions put by the district attorney to the witnesses for the 
 prosecution. 
 
 Frank Gates having testified generally to all the facts in the 
 case known to him, was asked by the district attorney : " Going 
 back to the time that you and Georgie were at the corner of the 
 house, and when you went in, describe what you first saw when- 
 you went in the house, after Mrs. Druse called you. 
 
 Defendant's Counsel : "We object to the question. 
 
 The Court : Upon what ground ? 
 
 Defendant's Counsel : Upon the ground he has been all over 
 the transaction and told it all. 
 
 The Court : I will overrule the objection. I didn't permit 
 him as he went along to ask very much of anything, and let the 
 boy tell his own story. Now, I will permit him to call his atten- 
 tion to details so far as he thinks necessary, without leading, of 
 course. 
 
 Exception for defendant recorded. 
 
 George Druse, having testified as follows: I have heard 
 mother tell him to go to hell : that is all I remember : yes, more 
 than once ; I don't know how many times. 
 
 Q. Did you ever hear her say she wished he was dead ? 
 
 Objected to by defendant, on the ground the witness had 
 
390 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Druse, 103 N. Y., 655. 
 
 just said he only heard this talk and that is all ; he never heard 
 anything else. 
 
 By the Court : Did you hear her call him, or say anything to 
 liim ; test your own recollection; if you recollect anything else, 
 tell us what it is ? 
 
 A. I don't recollect anything else she said. 
 
 District Attorney : Now, I ask you, whether yuu heard her 
 say anything, that she wished he was dead ? 
 
 Defendant's Counsel: We object to that; he has been ex- 
 hausted upon that subject ; says he don't recollect anything. 
 
 The Court : And that being so, I think I will allow the dis- 
 trict attorney to call his attention to it and ask him if he heard 
 anything of that sort and if so, what it was ? 
 
 Exception for defendant recorded." 
 
 At Oyer and Terminer judgment was rendered on a verdict 
 •convicting defendant of murder. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Hardin, P. J., in the course of his opinion, referring to the 
 fact that after witnesses had on the trial narrated some of the 
 conversations and had stated generally all that they remembered 
 in respect to them, the examining counsel was permitted to 
 direct their attention to particular facts or particular conversa- 
 tions and phrases used in conversation, and to interrogate them 
 in respect to such particulars, said " We are of the opinion that 
 the rulings are within the rule prescribed for the examination of 
 witnesses under similar circumstances." 
 
 The Court of Appeals aifirmed the judgment. 
 
 Andrews, J. [on this point said] : The court, in its discre- 
 tion, properly permitted the district attorney to call the atten- 
 tion of the witnesses for the people, Frank Gates and George 
 Druse, to particular facts, after they, without interruption, had 
 gone through the story of the incidents of the eighteenth of 
 December. We think the judge carefully guarded and protected 
 the legal rights of the defendant in their examination. 
 
Y. Aiding: and Memoranda. (1) Questions to Eefresh. 391 
 O'Hagan v. Dillon, 76 N. Y., 170. 
 
 O'HAGAN V. DILLON. 
 
 New York Court of Appeals, 1879. 
 
 [Reported in 76 N. Y., 170.] 
 
 "While a party cannot cross-examine his own witness, and is in general 
 bound by the answers made, he may, after the witness has given an 
 ambiguous answer, inquire (there being no objection to the question 
 as leading) as to any circumstance or fact tending to enable him to 
 recollect the fact sought to be proved more clearly or certainly. 
 
 An action for damages for injuries caused by the plaintiff's 
 falling into an excavation made by defendants, it being alleged 
 that defendants were negligent in not putting up and maintain- 
 ing proper barriers and lights. A witness for the defendant 
 having stated that he hung a lamp on the evening of the ac- 
 •cident on the fence by the side of the excavation, was asked, 
 when he removed it, and answered : " I expect I removed it 
 from half past four to five in the morning." He was then asked: 
 *' Is your recollection refreshed, or your attention called to that 
 from any circumstance — any accident that happened there ? " 
 This was objected to and excluded and an exception taken. 
 
 Judgment was entered upon a verdict for the plaintiff. 
 
 The Superior Court at General Term affirmed the judg- 
 ment, saying on this point: "The general rule is that there 
 can be no corroboration until a necessity has been shown for 
 it by impeachment. If a witness remembers what he testi- 
 fies to, that is all the party who calls him can have. The 
 fact is before the jury that he. has a recollection. Primarily 
 the cause of his having a recollection is not material. If the 
 other side does not, by cross-examination, show that his recol- 
 lection is not positive, it is presumed to be what he impliedly 
 states it when he answers positively. Such a question as was 
 asked might call out immaterial and trifling matter, tending to 
 make a confusion and irrelevant issue. But on cross-examina- 
 tion the witness did state the cause of his having a distinct 
 recollection that he hung out a lamp and the defendant then 
 
392 Abbott's Select Cases on Examining "Witnesses. 
 
 O'Hagan v. Dillon, 76 N. Y., 170. 
 
 obtained all that the excluded question (except the leading 
 portion) could have obtained. 
 
 The Cornet of Appeah reversed the judgment. 
 
 Per Cueiam [after consideration of another pointj : "We 
 think that the question should have been allowed. It was not 
 objected to as leading. While a party cannot cross-examine 
 his own witness, and is in general bound by the answers made, 
 it is not objectionable, after the witness has given an ambiguous 
 answer, to inquire as to any circumstance or fact tending to 
 enable him to recollect the fact sought to be proved more clearly 
 or certainly. 
 
 It is suggested that the cross-examination elicited all the facts 
 from this witness, but that examination related to the hanging of 
 the lamp in the evening, and not to its removal in the morning, 
 which was material as tending to show whether it remained 
 through the night, and thus afforded light to see the excavation. 
 
 Judgment reversed and a new trial ordered. 
 
 All concur, except Andrews and Millee, J J. , dissenting. 
 
 Note.— In Tozer v. N. Y. Central & H. R. R. R. Co., 17 N. Y. Weekly 
 Dig., 370, an action for killing plaintiff's infant son, by a locomotive run- 
 ning backward at high speed without proper warning, and no light upon 
 the locomotive, a witness having testified that she had observed the 
 pusher, before and after the accident, with respect to a light upon it, was 
 directed to state what she knew about the question "whether there was 
 alight on the rear of the engine that night," and answered, "I don't 
 know whether I did or not; I wouldn't take my oath I did." 
 
 After testifying that she saw that engine the morning before the 
 accident, she was asked, "Did you after that accident observe any change 
 in the appearance of the engine?" This was objected to, the objection 
 overruled, and the witness allowed to answer, "Yes, sir, I saw them 
 strike a light on it the first time that day, the light on the hind end of 
 the engine ; there might have been a head light there that hadn't been 
 lit. I wouldn't swear there was not, but I never saw it." 
 
 Held, that as she had not sworn positively as to whether there was a 
 light on the pusher or not on the night of the accident, and had given 
 indefinite answers to questions leading up to her recollection, the ques- 
 tion was proper to enable plaintiff to ascertain exactly what her recol- 
 lection was as to the night in question on the subject of a light. How it 
 was on other occasions was unimportant, b-jt the reference to the other 
 occasions was apparently with an honest effort to develop her memory of 
 the night when the accident occurred. 
 
V. Aiding : and Memoranda. (1) Questions to Refresh. 393 
 Acerro v. Petroni, 1 Stark., 100. 
 
 ACEREO V. PETRONI. 
 
 King''s Bench and Common Pleas, 1815. 
 [Reported in 1 Starlde (3 E. C. L. R.), 100.] 
 
 "When a witness, called to prove the partnership of plaintiffs, could not 
 recollect their names, but stated tliat he thought he could recognize 
 them if suggested to him, — held, not objectionable for plaintiff's coun- 
 sel to ask the witness whether specified persons were members of the 
 firm. 
 
 It is not suflficient to prove the several surnames, without proving also 
 the Christian names of the members of the firm, as specified in the 
 declaration. 
 
 Assnmpsit by the plaintiffs, bankers, at Paris, upon an account 
 stated by the defendant. 
 
 The witness called to prove the part-nership of the plaintiffs, 
 could not recollect the names of the component members of the 
 firm, so as to repeat them mthout suggestion, but said he might 
 possibly recognize them if suggested to him. 
 
 Lord Ellenborough, alluding to a case tried before Lord Mans- 
 field in which the witness had been allowed to read a written 
 list of names, ruled that there was no objection to asking the 
 witness, whether certain specified persons were members of the 
 firm. 
 
 The witness recollected the surnames, but not the Christian 
 names of those mentioned, as members of the firm, and their 
 Christian names being specified in the declaration in the count 
 upon the account stated, and the .terms of the acknowledgment 
 being generally to Acerro and Co., the plaintiffs were non- 
 suited. 
 
 NOTES OF RECENT CASES ON QUESTIONS TO 
 REFRESH WITNESS' MEMORY. 
 
 Alabama: Whiter. State, 87 Ala., 34; s. c. 5 Southern Rep., 839 (it is 
 error not to permit a party to ask his own witness, for the purpose of re- 
 freshing his memory, or of showing that the party has been put to a dis- 
 advaMage by unexpected evidence,-whether he had not at some other 
 time made statements inconsistent with his testimony, even though the 
 admission of such inconsistency would injuriously affect the witness' 
 
■394 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Questions to Refresh. 
 
 credibility) ; s. p. Louisville, etc., R. Co. v. Hurt, Ala., 1893, 13 Southern 
 Rep., 130. Indiana : Stanley v. Stanley, 112 Ind., 143 ; s. c. 13 Northeast. 
 Rep., 261 (a party may call his own witness' attention to his testimony 
 on a former hearing in order to refresh his memory) ; s. p. Ehrisman v. 
 Scott, 5 lad. App., 596. Iowa: State v. Cummins, 76 Iowa, 133 ; s. c. 40 
 Northwest. Rep., 124 (it is not error to allow a witness to be asked on 
 direct examination, in order to refresh his memory, if he has not testified 
 at another time to facts which are in conflict with hispresent testimony). 
 Massachusetts : Commonwealth v. Brown, 150 Mass., 330 ; s. c. 23 North- 
 east. Rep., 49 (where a witness for the commonwealth upon the trial of an 
 indictment testifies that he does not remember an admission of guilt made 
 by the defendant in his presence, he may be asked, as preliminary to further 
 inquiries, if he did not make a statement in respect to it upon his examina- 
 tion before the committing magistrate). Michigan : Pickard v. Bryant, 
 92 Mich., 430; s. c. 52 Northwest. Rep., 788 (it is error not to allow the 
 stenographer's notes of a witness' testimony on a former trial to be read 
 by the party calling the witness, to refresh his memory, though the coun- 
 sel, when he first asked to have them read, announced that it was for the 
 purpose of impeaching the witness, and only after such request was 
 denied, asked to have them read to refresh the witness' memory). Pren- 
 tis V. Bates, 88 Mich., 567; s. c. 50 Northwest. Rep., 637 (where, on cross- 
 examination, a witness, who testified as to the mental unsoundness of a 
 testatrix, could not renlember whether testatrix had attended a banquet 
 at her house, it was held, error not to allow the cross-examining counsel 
 to seek to refresh the witness' memory by questioning her in relation to 
 certain facts connected with the banquet). New York: People v. Kelly, 
 113 N. Y., 647 ; s. c. 21 Northeast. Rep., 122 (where a witness for the pro- 
 secution upon a trial for murder showed a disposition to favor the prisoner, 
 it was held, not error to allow the district attorney, for the purpose of re- 
 freshing the witness' memory, to ask him if he had not previously testified 
 to certain contradictory facts, specified) ; s. p. People v. Sherman, 133 
 N. Y., 349 ; s. c. 31 Northeast. Rep., 107. 
 
y. Aiding : and Memoranda. (2) Memo, to Eefresli. 395 
 Ruch V. Rock Island, 97 U. S.. 693. 
 
 EUCH V. KOCK ISLAND. 
 
 United States Supreme Court, 1878. 
 [Reported in 97 U. S., 693.] 
 
 A witness, called to prove what a witness, since deceased, testified to on a 
 former trial, may state the substance of the testimony given, although 
 not able to give the exact language. 
 
 He may use his own notes taken at the former trial to refresh his memory. 
 
 An action of ejectment. 
 
 Upon the first trial a verdict was entered for the defendant. 
 
 This verdict was set aside and new trial ordered. 
 
 A second trial also resulted in favor of the defendant, and 
 judgment was entered accordingly. Between the two trials the 
 great Chicago fire had occurred, and all the papers filed in the 
 case were destroyed. Among them were a deposition of Henry 
 Powers and a deposition of Hibbard Moore. At the time of the 
 second trial both deponents were dead. The depositions of 
 Connelly and Harson were offered to prove the contents of the 
 depositions which had been burned. Connelly deposed that he 
 was the counsel for the defendant at the first trial, and that he 
 put the interrogatories to Powers when his deposition was taken. 
 He then proceeded " to give the substance of the testimony of 
 said Powers as given in his (Powers') deposition, he, Connelly, 
 refreshing his recollection by liotes taken," as witness said, " by 
 him at that time." He said he gave " the main and principal 
 points of the deposition of the deceased witness, but could not 
 give the exact language." He also said he gave " the main and 
 principal points of the cross-examination and re-examination of 
 said Powers, as given when said Powers' deposition was taken." 
 Harson deposed that he was the commissioner who took the 
 deposition of Powers and the deposition of Moore ; that he 
 remembered the substance of the testimony of each of those 
 witnesses but was not able to give the exact language of either. 
 He then made a statement of the testimony of each as given 
 when his deposition was ^aken. To the admission of all this 
 testimony of Connelly and Harson the counsel for the plaintiflE 
 in error objected. It was received, and he excepted. 
 
396 Abbott's Select Cases on Examining Witnesses. 
 Ruoh V. Rock Island, 97 U. S., 693. 
 
 T/ie United States Swpreme Court affirmed the judgment. 
 
 SwATNE, J. {after stating the facts'] : There was no error in 
 admitting the testimony. The precise language of the deceased 
 witnesses was not necessary to be proved. To hold otherwise 
 would, in most instances, exclude this class of secondary evidence 
 and in so far defeat the ends of justice. Where a stenographer 
 has not been employed, it can rarely happen that anyone can 
 testify to more than the substance of what was testified by the 
 deceased, especially if the examination was protracted, embraced 
 several topics, and was followed by a searching cross-examination. 
 It has been well said that if a witness in such case, from mere 
 memory, professes to be able to give the exact language, it is a 
 reason for doubting his good faith and veracity. Usually there 
 is some one present who can give clearly the substance, and that 
 is all the law demands. To require more would, in effect, 
 abrogate the rule that lets in the reproduction of the testimony 
 of a deceased witness. The uncertainty of human life renders 
 the rule, as we have defined it, not unfrequently of great value 
 in the administration of justice. The right to cross-examine the 
 witness when he testifies shuts out the danger of any serious 
 evil, and those whose duty it is to weigh and apply the evidence 
 will always have due regard to the circumstances under which it 
 comes before them, and rarely overestimate its probative force. 
 (1 G-reenl. Evid., § 165, and notes.) 
 
 The living witness may use his notes taken contemporaneously 
 with the testimony to be proved, in order to refresh his recollec- 
 tion, and, thus aided, he may testify to what he remembers ; or 
 if he can testify positively to the accuracy of his notes, they 
 may be put in evidence. {Id. , § 166, and notes.) 
 
 The bill of exceptions discloses nothing wrong in the use of 
 his notes made by Connelly. 
 
Y. Aiding : and Memoranda. (2) Memo, to Eefresh. 39Y 
 Houstine v. O'Donnell, 5 Hun, 472. 
 
 HOUSTINE V. O'DONNELL. 
 
 New York Supreme Court, 1875. 
 
 [Reported in 5 Hun, 473.] 
 
 A memorandum or statement prepared by the witness a long time after 
 the transaction — in this case, three years, — cannot be used to refresh 
 his memory by the party who called him, especially where the state- 
 ment is purely negative. 
 
 Judgment was entered for the plaintiff upon report of a 
 JReferee. 
 
 The Siip7'eme Court at General Term affirmed the judgment. 
 
 Gilbert, J. [saying on the, point'] : With respect to the 
 affidavit of November 28th, 1874, we are of the opinion that it 
 in no sense belongs to the class of documents or memoranda 
 which the law always permits, and sometimes requires, to be 
 shown to a witness for the purpose of refreshing his recollec- 
 tion. It was not made contemporaneously with the transactions 
 mentioned in it, but three years afterward. It is not a record 
 or note of any fact or occurrence, but contains a mere statement 
 that the disputed fact did not occur. Such a paper when piit 
 before a witness by the party who calls him, can have no proper 
 effect in refreshing his memory, and would be calculated to 
 stimulate his courage, rather than his veracity. We think the 
 practice of procuring such papers, and then using them ostensibly 
 for the purpose of refreshing the recollection of a witness who 
 appears to be adverse, but really to intimidate him, ought not to 
 be encouraged or sanctioned. The proper course is to examine 
 the witness in the usual way, and. if his testimony be in 
 contradiction of written statements previously made by him, to 
 interrogate him respecting the latter, for the purpose of probing 
 his recollection, and of obtaining an explanation of his incon- 
 sistency. (Bullard v. Fearsall, 53 N. Y., 230.) 
 
398 Abbott's Select Cases on Examining Witnesses. 
 
 Carter v. Bowe, 41 Hun, 516. 
 
 CAETEE V. BOWE. 
 
 JSfew Yorh Sujpreme Court, 1886. 
 [Reported in 41 Hun, 516.] 
 
 It is error not to allow a witness to look upon a memorandum produced 
 to refresh his memory, on the ground that the memorandum has not 
 been identified. * 
 
 Whatever the memorandum may contain, if it would refresh the recollec- 
 tion of the witness as to the facts in issue, the party has the right to 
 have that memorandum consulted by him, and to the testimony he 
 may be able to g-ive after referring to it. 
 
 PlaintifE sued the sheriff to recover the value of goods seized 
 and sold by him on an execution against Wellington A. Carter. 
 Plaintiff claimed title by virtue of a mortgage from said Carter 
 and another. 
 
 Upon the trial, Welhngton A. Carter was called as a witness 
 for the plaintiff and was asked by plaintiff's counsel to look at an 
 invoice of goods and see if those goods were in the store. The 
 witness replied that he knew those articles were in the store. 
 
 In response to questions put by defendant's counsel and the 
 court, the witness stated he did not make the memorandum 
 himself, and could not say whether he had ever seen it before. 
 
 ■" By the Court : Q. You do not know of your own knowl- 
 edge whether it is a correct or true memorandum ? 
 
 A. I know this much, that the gentleman had the goods 
 there in the store. 
 
 * This case is to be regarded with some caution .because there are many authorities to the 
 efEect that a memoranduin to refresh must be identified, and shown to be in some sense at least 
 correct to the Itnowledge of the witness. Compare on this point Com. v. Ford, 130 Mass., 64. 
 
 But another principle allows leading questions to be put to a witness whose memory fails 
 at the point, and it is upon this principle that if a witness cannot recall a name, counsel may be 
 permitted by the judge to suggest several names asking the witness if it was any of those (see 
 Acerro y. Petroni, p. 393), just as for the purpose of identifying a person, several others may be 
 brought in with him, leaving the. witness to pick out the one identified. 
 
 Upon general principles there could be no necessary impropriety in handing the witness in 
 the principal case any printed catalogue of a drug house, without any evidence of its correct- 
 ness, and allowing him to make as complete a statement of the items relevant to the cause by 
 running his eye over such a catalogue raisonnee of all the goods in the trade. The objection to 
 such a course if any would rest not on the danger of the use of such a memorandum to refresh, 
 but on taking the time of the court to supply the want of preparation which ought to have been 
 made before trial. 
 
 It is clear that coumel had aright to use the memorandum in interrogating the witness, 
 subject of course to whatever objection there might be to putting leading questions. 
 
Y. Aiding : and Memoranda. (2) Memo, to Refresh. 39& 
 Carter v. Eowe, 41 Hun, 516. 
 
 Q. You did not see the schedule made, you do not know 
 whether it is accurate or inaccurate ? 
 
 A. When he sent the goods there, I must have seen the 
 receipt or the memorandum, or something of the kind. 
 
 The Court : I exclude the memorandum on the ground, that 
 it appears from the testimony of the witness that he does not 
 know anything about the correctness of it, and that the goods, 
 therein specified were in the store. 
 
 Plaintiff excepted. " 
 
 After further questioning by plaintiff's counsel for the pur- 
 pose of showing what goods the witness recollected were in the 
 store, during which the counsel was not allowed even to use the 
 paper himself, to ask questions from it, on the ground that it was 
 not identified and could not be used, plaintiff's counsel asked : 
 
 " Q. State anything else that you remember ? 
 
 A. If I knew what was in the invoice I would probably call 
 it to mind. 
 
 Q. Tou did not make the invoice ? 
 
 A. Ko, sir ; but if I had the names of the things 1 could re- 
 member whether they were there or not, by looking over the 
 invoice ; but to remember them is pretty hard work just at the 
 moment ; so many things else to remember at the same time. 
 
 By Plaintiffs Counsel : Q. Do you think upon looking at 
 the memorandum, you might refresh your memory, so that you 
 could state the articles that were left there by Mr. Aymar ? 
 
 Defendant's counsel objects that the memorandum has not 
 been identified. Objection sustained and exception taken.'' 
 
 At Cireuit judgment was entered for defendant on a verdict. 
 
 The General Term of the Supreme Court reversed the judg- 
 ment. 
 
 Daniels, J. [on this pointy said]: Among these was the 
 ruling sustaining the objection that the witness, Wellington A. 
 Carter, could not look upon a memorandum produced upon the 
 trial to refresh his memory, so that he could state the articles 
 which had been left in one of the stores by Mr. Aymar, who 
 was one of the plaintiff's assignors. Liberty was refused the 
 
400 Abbott's Select Cases on Examining Witnesses. 
 
 Barker v. The New York Central Railroad Company, 24 N. Y., 599. 
 
 witness to answer this question, on the ground that the memo- 
 randum had not been identified. But that objection was not 
 well taken, for whatever the memorandum may have been, if it 
 would refresh the recollection of the witness so that he could 
 state the articles which were left, the plaintiff had the right to 
 have that memorandum consulted by him, and to the testimony 
 he might be able to give after referring to it. 
 
 The object of the inspection or examination of the memoran- 
 dum was to revive the memory of the witness, and whatever it 
 may have been, if it would have been attended with that effect, 
 and the plaintiff was entitled to an opportunity to prove that it 
 would, the witness had the right to look at it. (Doe ex dem- 
 Church V. Perkins, 3 Durn. & East., 749 ; Bigelow v. Hall, 91 
 K Y., 145 ; Marcly v. Shults, 29 id., 346.) 
 
 BARKEE V. THE NEW YORK CENTRAL RAILROAD 
 
 COMPANY. 
 
 JVew York Court of Appeals, 1862. 
 
 [Reported in 34 N. Y., 599.] 
 
 Upon a question as to the time when a railroad train arrived at a certain 
 station on a particular day, it is competent to discredit the testimony 
 of plaintiffs intestate given on a former trial, and to corroborate the 
 conductor's testimony, by proving that, on the day in question, the 
 latter made a memorandum of the time of arriving, pursuant to 
 regulations of the company ; and also by proving the time-table and 
 other rules governing the arrival and departure of trains.* 
 
 Action for damages sustained by one Page, by being put off 
 from defendant's train. The present plaintiff was Page's admin- 
 istrator and substituted on Page's death. 
 
 Upon the trial William T. Rudd, the conductor of the train, 
 was called by defendant and testified as to the two branches of 
 the road that diverge from Syracuse and then said: "My train 
 arrived at Syracuse at 11.55 ; I am able to state it from a note 
 of it made by me at the time ; the entry was made as I entered 
 the depot." 
 
 Here the witness was asked in relation to, and to state what 
 
 * For the admissibility of a " train sheet," see a recent case in 168 Mass., 450. 
 
V. Aiding : and Memoranda. (2) Memo, to Eefresh. 401 
 Barker v. The New York Central Railroad Company, 24 N. Y., 599. 
 
 were, the regulations of tlie company in regard to time-bill and 
 entering the time of the arrival and departure of the trains. 
 
 Plaintiff's counsel objected to the reception of such evidence ; 
 objection overruled, and exception taken. 
 
 The witness proceeded : " The established regulations of the 
 company are, to put down times of arrival and leaving ; I hand 
 it over to the conductor who takes the train from me, and it is 
 sent to the general ticket office ; we regulate by Albany time ; 
 the railroad clocks are regulated by Albany time ; there are 
 railroad clocks at TJtica, Syracuse, and Rochester ; 1 timed the 
 arrival of the train by my watch, and handed it to Mr. Chapman, 
 the next conductor ; that train never stopped to dine at Syracuse, 
 to my recollection, but the T.SO train did. The time for my 
 train to arrive at and leave Syracuse was 12 M." 
 
 On cross-examination Eudd testified : " I fix the time of 
 arrival at Syracuse from my notes made at the time ; have no 
 distijict recollection of the time that day independent of my 
 notes." 
 
 The memorandum was not offered in evidence. It does not 
 appear from the record in the appeal book whether the memo- 
 randum was produced or used by the witness on the trial. 
 
 On direct examination Rudd was asked to state the regula- 
 tions of the company, prescribed for his brakemen, and their 
 custom in regard to announcing change of cars at Syracuse. 
 
 Plaintiff's counsel objected; objection overruled, and exception 
 taken. 
 
 The witness answered : " My brakemen made an announcement 
 at Syracuse at my direction; my instructions are for them to 
 announce that passengers for the new road by way of Clyde, 
 Lyons, &c., must change cars." 
 
 Brakeman Hughes testified on direct, as to the regulation to 
 announce the change of cars : " I always carried it out ; I never 
 failed to do my duty ; I have no distinct recollection of the 8th 
 day of October more than any other day." 
 
 Brakeman Cotter testified that he always made announcements 
 at Syracuse; that he could not say he did it on the day in 
 question ; but from his usual custom, he was satisfied he did it on 
 that day. " 
 
402 Abbott's Select Cases on Examining "Witnesses. 
 
 Barker v. The New York Central Railroad Company, 24 N. Y., 599. 
 
 Brakeman Kicliards subsequently testified on cross-examina- 
 tion that, " when the train was in the depot at Syracuse, I went 
 to every car and made the announcement." 
 
 At Circuit, judgment was entered for defendant. 
 
 The General Term of the Superior Court affirmed the 
 judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 SuTHEELAND, J. [passing on exceptions to admissions of 
 evidence, said] : The first exception was to the allowance of the 
 evidence of Budd, the conductor on the train from Albany to 
 Syracuse, in answer to a question asked him as to the regula- 
 tioiis of the defendant in regard to the time-bill, or time-table, 
 and entering the time of the arrival and departure of trains. 
 His evidence in answer to this question was, in substance, that 
 it was a regulation of the defendant that the time of the arrival 
 and departure of a train should be noted down ; that he 
 accordingly noted down the time of the arrival of the train at 
 Syracuse and handed it to the conductor who took the train 
 from him there, that the railroad time and the railroad clocks at 
 Utica, Syracuse, etc., were regulated by the Albany time ; that 
 the 6.30 o'clock train never stopped to dine at Syracuse, but the 
 7.30 o'clock train ; that the time for the 6.30 o'clock train to 
 arrive and leave Syracuse was 12 o'clock, noon. 
 
 This evidence was, perhaps, not very material ; but as Page had 
 testified that the train in which he was passenger arrived at 
 Syracuse about a quarter to 12, and that notice was given that it 
 stopped twenty minutes for dinner, and that it left there a few 
 minutes past 12, and as Budd had previously testified that the 
 train arrived at 11.55 A. M. precisely, I think the evidence was 
 competent and proper. 
 
 The object of the evidence was, no doubt, to discredit Page 
 by supporting or corroborating Budd. 
 
 It was certainly competent, with that view, to prove the fact 
 that Budd made a memorandum of the time of the arrival of 
 the train and handed it to the next conductor; and as to the 
 evidence as to the regulations, etc., as Budd had contradicted 
 
Y. Aiding : and Memoranda. (2) Memo, to Refresh. 40S 
 
 Doyle V. Eye and Ear Infirmary, 80 N. Y., 681. 
 
 Page as to the time of the arrival of the train, this evidence 
 would tend to corroborate JBudd upon the principle that the 
 business of the defendant is a sort of public business and their 
 employees a kind of public oificers ; and that the presumption is 
 that they would perform their duties according to the regulations 
 of the business. (1 Greenl. Ev., 40.) 
 
 Upon the same principle, I think, the exceptions to the 
 allowance of the evidence of Budd, Hughes and Cotter, as to 
 the regulations of the company and the custom of brakemen as 
 to giving notice to passengers to change cars, were not well 
 taken. 
 
 It was a material question in the case whether such notice was 
 given to Page or not. ' That was a disputed question. Page 
 had sworn that he heard no notice. The object of the evidence 
 as to regulations and custom was to show that the customary 
 notice was given on this occasion according to the regulations. 
 
 It was not the object of the evidence to show what was done 
 on other occasions, but what was done on this. 
 
 The evidence may not have been very material in this case, 
 for Eichards subsequently testified positively that he did give 
 the notice, in a certain manner which he described, on the 
 arrival of the train at Syracuse, but the evidence was competent 
 (the order of proof not being material) to corroborate Eichards, 
 and as tending to show notice independent of his evidence. 
 
 DOYLE V. EYE AND EAE INEIEMAEY. 
 
 Wew YorJc Court of Appeals, 1880. 
 
 [Reported in 80 N. Y., 631.] 
 
 It is not error to allow a witness to look at a memorandum proper to re- 
 fresh his memory, merely because it has not been shown that his recol- 
 lection was not clear without it. 
 
 Plaintiff sued to recover for injury to his eyes, claiming it 
 had been caused by the malpractice of the defendants, The 
 New York Eye and Ear Infirmary, and one Derby, one of its 
 assistant surgeons. 
 
 Upon the trial the defendant Derby testified on direct : 
 
404 Abbott's Select Cases on Examining "Witnesses. 
 Peck V. Lake, 3 Lans., 136. 
 
 " I have heard the testimony as to my interview with young 
 Doyle and his father in 1872 ; I remember his case. 
 (Witness is sliown a paper.) 
 
 Q. "What is that paper ? 
 
 A. This paper is a diagnosis of a patient, James Ferguson. 
 Doyle gave his name as James Ferguson. His treatment 
 began January 19th, 1872. There are certain words upon 
 that paper giving the name of the disease, and some other 
 points, and a prescription in my own handwriting. I made 
 that writing January 19th, 1872. 
 
 Q. When did you make that handwriting ? 
 
 A. January 19th, 1872, at the first examination of Doyle. 
 
 Q. "Will you state, referring to that paper to refresh your 
 memory, what was the first thing you did to Doyle ? 
 
 Objected to by plaintiff's counsel as irrelevant and incompe- 
 tent, it not appearing thai; witness' recollection is not clear and 
 distinct. Objection overuled ; exception taken. " 
 
 At Circuit, defendant had a verdict. 
 
 TAe General Term of the Supreme Court affirmed the judg- 
 ment without opinion. 
 
 The Court of Appeals affirmed it. 
 
 PECK V. LAKE. 
 
 New York Supreme Court, 1870. 
 [Reported in 3 Lans., 136.] 
 
 Where a witness makes his answers from consulting a written memo- 
 randum on the stand, the opposite party may inspect the paper and 
 examine concerning it, without putting the paper in evidence. 
 
 If the court refuse to compel submitting the paper to the inspection of 
 counsel it should strike out the testimony which depends entirelj' on 
 the memorandum. 
 
 PlaintijQE sued for compensation for services as the defendant's 
 clerk, rendered for one year without specific agreement on salary, 
 and for nearly another year on fixed salary. 
 
 The defendant claimed an agreement on $150 for the first 
 year, and that he had credited the plaintiff with that sum in his 
 ledger, to which the plaintiff had access, he being the principal 
 
Y. Aiding : and Memoranda. (2) Memo, to Refresh. 405 
 Peck V. Lake, 3 Lans., 136. 
 
 book-keeper. One of the questions litigated was when the entry- 
 was made ; and when it was brought to the plaintiff's knowledge 
 and whether he had acquiesced in it. There was also a contro- 
 versy as to an item of charge against the plaintiff of ten dollars, 
 in defendant's handwriting in the cashbook under date of Octo- 
 ber 3d, 1868, and which had not been carried to the ledger. 
 
 While on the stand, the plaintiff stated among other things, 
 that the defendant had paid him $554.94. On cross-examination 
 as to the amounts paid him, he read from a memorandum book 
 as to the amounts paid, and denied payment to him of certain 
 sums asked about by defendant's counsel. At a subsequent stage 
 of the cross-examination he said : " I made the account which I 
 have in my book and which I have read from, in December, 
 1868 or in January, 1869. I had it on another book and copied 
 it on this. The items that accrued after January, 1869, I pnt on 
 as they accrued from day to day. I destroyed the other memo- 
 randum which was on bill paper." On redirect examination he 
 said : " This memorandum was taken from the ledger. It is a 
 true copy of that ledger. 1 first handed Share this book, and I 
 read from the ledger to him first, and then we changed books, 
 and I think he read from the ledger and I from this book. " I 
 have received goods and merchandise, amounting to $29.85, of 
 defendant, and $554.94 in all. In cash, $525.08. 
 
 On further cross-examination, he said : " I will not produce 
 the book from which I refreshed my recollection yesterday about 
 payments. It was not an accurate memorandum of every item 
 of my account upon Mr. Lake's books. There was one item 
 there not transcribed by me ; that item was a credit to me of 
 $150 for one year's labor." 
 
 Being recalled on his own behalf, he testified concerning entry 
 in the ledger of the $150 credit, and stated that he had opened 
 a new ledger when he first discovered that credit ; and on being 
 cross-eisamined, he said : "I have my memorandum book with me, 
 from which I read credits to defendant and answered defendant's 
 questions. I will not produce it unless I am obliged to do so." 
 
 The referee was then asked by the defendant to compel the 
 witness to produce the book, and declined on account of a want 
 of power, the defendant excepting. 
 
406 Abbott's Select Cases on Examining Witnesses. 
 Peck V. Lake, 3 Lans., 136. 
 
 The plaintiff being afterward recalled on his own behalf and 
 further cross-examined, said : " In figuring up the amount I 
 received for the first year, both in cash and merchandise, I re- 
 freshed my recollection from my memorandum book. I could 
 not have remembered the amounts without reference to my 
 memorandum book. Neither could I have remembered the 
 dates of the items. I did not make the entries of the items on 
 this book at the dates they occurred. I have the book with me 
 now. 
 
 I will not produce the book and let you see it. I footed up 
 these items while on the stand as a witness, after the question 
 was asked me as to amount I received the first year." 
 
 The referee was then asked by the defendant to require the 
 witness to produce the book referred to, for the inspection of 
 defendant and his counsel, and again declined on the ground of 
 a want of power, the defendant excepting. 
 
 The defendant then asked the referee that all the plaintiff's 
 evidence be stricken out, and again that the evidence in refer- 
 ence to the amount of cash and merchandise taken from his 
 memorandum book be stricken out, on account of plaintiff's re- 
 fusal to produce the book for defendant's inspection. The mo- 
 tion was denied both as to all the evidence and as to a part, on 
 the ground of want of power. 
 
 Judgment was entered upon a report of the referee in plaint- 
 iff's favor. 
 
 T/ie General Term of the Supreme Court reversed the judgment. 
 
 Taloott, J. [after stating the facts] : I have no doubt the 
 defendant's counsel was entitled to inspect this memorandum 
 and to cross-examine from it. Phillips states the rule to be, that 
 where the memory of a witness has been revived by a previous 
 inspection of a memorandum, it is not absolutely necessary to 
 the admission of the testimony that the memorandum shall be 
 produced in court ; but if produced, the opposite party has a 
 right to see it and cross-examine from it. (2 Phil. Ev., 4 Am. 
 ed., 917.) This is where the witness is able to testify to the 
 fact absolutely after having his memory revived, and the testi- 
 
V. Aiding : and Memoranda. (2) Memo, to Refresh. 40Y 
 
 Peck V. Lake, 3 Lans., 136. 
 
 mony itself is entirely independent of the memorandum. There 
 are other cases where the memorandum itself is made evidence 
 to a certain extent, as in the familiar case of proving the 
 testimony of a witness on a former trial, where the party who 
 took the minutes has no present recollection even after inspec- 
 tion of the minutes as to what the testimony was, but is able to 
 swear he took it accurately at the time. Here the minutes in 
 connection with the testimony are made the evidence, and, of 
 course, the parties are entitled to inspect and examine from it. 
 In this case the memorandum of the plaintiff was sought to be 
 made in some sort evidence, without permitting the defendant 
 to see it. At one stage of the case, the plaintiff, on direct 
 examination, testified to its having been copied from defend- 
 ant's ledger. On his last cross-examination the plaintiff said 
 that he could not. have remembered the amounts or dates of the 
 items without his memorandum. "When it is recollected that 
 his testimony, in connection with which he had used the 
 memorandum, consisted entirely of amounts and dates of items, 
 it is difficult to say that this was not an attempt substantially to 
 use the memorandum as evidence without permitting the 
 opposite party to see it. But I have no doubt that whenever it 
 appears that a witness is making his answers on the stand from 
 a written statement or memorandum, it is the privilege of tlie 
 party against whom the witness is introduced to inspect the 
 paper, and to examine concerning it, and even to submit it to the 
 jury if he sees fit. Probably it is the right of the counsel on 
 either side to inspect any paper which is exhibited to the witness 
 on the stand for the purpose of refreshing his memory or in any 
 way affecting his testimony, though this is said not to be the 
 case where a paper is exhibited to a witness for the mere 
 purpose of proving the signature. 
 
 In Hardy's case (24 How. State Trials, 824), Eyre, 0. J., said : 
 " It is always usual and very reasonable, when a witness speaks 
 from memorandums, that the counsel should have an oppor- 
 tunity of looking at those memorandums when he is cross- 
 examining that witness." 
 
 In Sinclair v. Stephenson (1 Car. & P., 582), the court held: 
 " If a paper be put into the hands of a witness for the purpose 
 
408 Abbott's Select Cases on Examining Witnesses.. 
 
 Peck V. Lake, 3 Lans., 136. 
 
 of refreshing his memory, the opposite counsel has a right to 
 see it." 
 
 Of course it can make no difference whether the paper first 
 makes its appearance on the direct or cross-examination of the 
 witness. 
 
 It may have been prepared in order to meet and frustrate a 
 probable course of cross-examination. 
 
 It Dowling V. Finigan (1 Car. & P., 58Y), where it appeared 
 that the witness had taken a memorandum of a conversation he 
 was testifying to, and neither counsel called for it, the judge 
 asked the witness for it after the evidence was closed, and when 
 produced, told the defendant's counsel he might have it read to 
 the jury or not, as he thought proper, saying that either party 
 might have called for it. 
 
 In Eel V. Kamsden and al. (2 Car. & P., 603), the counsel for 
 defendants, on cross-examination, put a paper into the hands of 
 witness for the crown to refresh his memory as to date. The 
 attorney-general (Sir James Scarlett) wished to look at the 
 paper. The counsel for the prisoners submitted that the 
 attorney-general had no right to see it unless he would put it in 
 evidence. To this Lord Tenterden, C. J., answered : " You put 
 the paper into the hands of the witness to refresh his memory. 
 It is, usual for the opposite counsel to see it and examine upon 
 it. I think he has a right to see it." 
 
 N'isi2)rius reports in this state being rare, it would probably 
 be difficult to find any authority in our reports on this question, 
 for I apprehend it has been the almost invariable practice of the 
 judge where a witness has been using a memorandum on the 
 stand to require the witness at once to submit it to the inspec- 
 tion of the counsel examining or the other party, upon the 
 request being made. I think the rule is founded in good sense. 
 Very improper uses may be made of memoranda, to suggest, 
 regulate or control the testimony of a witness, and the right of 
 the counsel to inspect them furnishes some safeguard against 
 their abuse. An artful witness will sometimes, for the purpose 
 of adding weight to his testimony with the jury, produce a 
 memorandum claimed by him to have been made at the time of 
 a transaction, when an inspection of the paper will show it to 
 
V. Aiding : and Memoranda. (2) Memo, to Eefresh. 409 
 
 Peck V. Lake, 3 Lans.,.136. 
 
 have been of more recent origin, or from the handwriting, or 
 other circumstances, to have been fabricated with a view to the 
 testimony. 
 
 The referee declined to require the plaintiff and Avitness to 
 submit the memorandum, from which he was testifying, to the 
 inspection of the counsel for the opposition, not because he. 
 thought it useless or improper for any reason, but on the ground 
 of a want of power, and for the same reason refused to strike 
 out the testimony given by the plaintiff as such witness. In 
 this, I think, the referee erred. He, without doubt, possessed 
 and might have exercised the same power as the court would 
 have done under the same circumstances. The mildest form of 
 relief against the conduct of the witness was to grant the request 
 of the defendant, that so much of the plaintiff's testimony as 
 depended, according to his own statement, entirely on the 
 memorandum, should be stricken out. This was the least to- 
 which the defendant was entitled under the circumstances, and 
 I think the referee erred in denying the motion. The memo- 
 randum, with its contents, is not before us. Erom the circum- 
 stances of the case, and the description given by the plaintiff of 
 the memorandum, it is quite probable that its production would 
 in no way have affected the result, and perhaps quite improbable 
 that anything would have been disclosed by it, to which the 
 plaintiff could have any serious objection, and it is to be 
 regretted that the plaintiff should, if this is so, in the indulgence 
 of mere captiousness, have subjected himself to the trouble and 
 expense of a retrial of his case. Pie alone, however, is primarily 
 responsible for the error which renders such a course necessary. 
 
 The judgment should be reversed and a new trial ordered, 
 costs to abide the event. 
 
 Judgment reversed. 
 
 Note.— In Tibbetts v. Sternberg, 66 Barb., 2Ql—Held, error to refuse to 
 compel one of plaintiff's witnesses to produce for inspection of defendant's 
 counsel, a memorandum from which the counsel alleged the witness had 
 been testifying, on his direct examination. 
 
 MULLIN, J., said : " It is the right of a party to inspect a memorandum 
 used by a witness while testifying ; whether he reads its contents or only 
 uses it to refresh his recollection. 
 
 The witness has no right to use a memorandum in either way, unless 
 
410 Abbott's Select Cases on Examining "Witnesses. 
 
 Bigelow V. Hall, 91 N. Y., 145. 
 
 made by himself ; and if the witness cannot be compelled to pi'oduce it, 
 he might use documents made for him by the party calling him, of the 
 accuracy of which he knows nothing. Such a practice, if tolerated, 
 would lead to the greatest abuses. 
 
 Before the witness can be required to produce a paper, however, it must 
 appear tliat he is using it as or in aid of his testimony. No lawyer would 
 claim to be entitled to an inspection of every paper the witness might 
 have in his custody, or even in his hand, while giving evidence. 
 
 When the referee was called on to compel the production of the paper, 
 it does not appear, except inferentially, that the witness had, or used, a 
 memorandum, save by the allegation of counsel. The case says the 
 defendant's counsel requested the witness to allow him to examine the 
 memorandum used by him (the witness) in giving, on his direct examina- 
 tion, the amount of logs ; and the plaintiff declined to comply with his 
 request. This is a. tacit admission by the witness that he had and used 
 such a paper. No objection or suggestion was made by the plaintiff's 
 counsel that he had no such paper ; the witness did not deny it ; and the 
 referee did not ask him whether he did or did not have it ; but he seemed 
 to assume that the witness had it, and yet refused to require the witness 
 to produce it. 
 
 This was an error, for which we must reverse this judgment. The 
 production of the paper might have been of no value to the defendant, 
 but it is the principle thus sought to be established that is mischievous 
 and dangerous. The right of a party to protection against the introduc- 
 tion against him of false, forged or manufactured evidence, which he is 
 not permitted to inspect, must not be invaded a hair's breadth. It is too 
 valuable to be trifled with, or to permit the court to enter into any 
 calculation as to how far it may be encroached upon without injury to 
 the party. 
 
 I am of the opinion that the referee erred in not directing the witness 
 to produce the memorandum as desired to do by the defendant's counsel. 
 (1 Co wen & Hill's Notes, 757.) 
 
 BIGELOW V. HALL. 
 
 JVew York Court of Appeals, 1883. 
 
 [Reported in 91 N. Y., 145.] 
 
 A witness, who has refreshed his memory by the use of a memorandum 
 made at the time of the transaction, as to which he is testifyino-, 
 may be allowed to read items from it as his testimony, provided the 
 memorandum itself is not introduced in evidence. 
 
 On the trial, the defendant Hall, as a witness in his own 
 behalf, testified among other things that the consideration of the 
 
y. Aiding : and Memoranda. (2) Memo, to Refresh. 411 
 Bigelow V. Hall, 91 N. Y., 145. 
 
 mortgage consisted of various items, of which there was a 
 memorandiim, made at the time and place of the transaction, 
 some of the figures of which were in his handwriting, and others 
 in the handwriting of the plaintiff. 
 
 The memorandum was then produced, delivered to the witness 
 and identified by him, and the following took place in regard 
 to it : 
 
 " The counsel for the plaintiff said I object to the paper. 
 
 The Court: It is not evidence of itself, he can use it 
 however. 
 
 Plaintiff's counsel : He can use it to refresh his recollection, I 
 suppose. 
 
 Defendant's counsel : State how the $3,000 was made up. 
 
 A. Here is a cash item of 
 
 Plaintiff's counsel objected to his reading that paper. 
 
 The witness said : I merely do it to refresh my memory, to 
 get at the items. 
 
 Plaintiff's counsel : You must swear to it independent of that 
 paper. 
 
 The Court : If he made the memorandum and can't recollect 
 the items without reference to the paper, he can rea(i the paper. 
 
 Exception taken, the witness read the items from the paper." 
 
 At a Special Term of the Supreme Court, judgment was 
 entered for defendant. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Smith, J. One of the settled rules in this state respecting 
 tht use of memoranda is, that a witness may, for the purpose of 
 refreshing his memory, use any memorandum, whether made by 
 himself or another, written or printed, and when his memory 
 has been refreshed, he must testify to the facts of his own 
 knowledge, the memorandum itself not being evidence. (Ho- 
 ward •?;. McDonough, 77 N. Y., 592). The decision excepted to, 
 as we understand it, was not an infraction of the rule. The 
 decision was simply to the effect that the witness might read the 
 memorandum to refresh his recollection, the memorandum itself 
 was not held to be in evidence. 
 
 Judgment affirmed with costs. 
 
412 Abbott's Select Cases on Examining Witnesses. 
 Bigelow V. Hall, 91 N. Y., 145. 
 Talcott, J., concurred. 
 
 The Court of Appeals affirmed the judgment. 
 
 MiLLEE, J. [after stating the facts'] : It will be noticed that 
 the judge did not hold distinctly that he could read the paper in 
 evidence ; but, construing what he said literally, it will bear the 
 interpretation in connection with what previously transpired and 
 particularly what was said by the witness, that he might read it 
 himself to refresh his memory, to get at the items. 
 
 The rule is no doubt well settled in this state that a vdtness, for 
 the purpose of refreshing his memory, may use any memorandum 
 made at the time of a transaction in regard to which he is called 
 upon to testify, whether made by himself or another, and when his 
 memory has been refreshed, he must testify to facts of his own 
 knowledge, the memorandum itself not being evidence. Within 
 this rule it is not apparent that the judge erred in holding that 
 the witness could read the items from the memorandum for the 
 purpose of refreshing his memory ; he did not say he could read 
 it in evidence, nor was the memorandum introduced in evidence 
 of itself, the items only were read, and there is no statement in 
 the case that anything more was done. Tt is true it was stated 
 in the case, the witness read the items ; stating them, but it no- 
 where appears that the paper itself was introduced as an inde- 
 pendent piece of testimony. 
 
 Under these circumstances and regarding what would ordinari- 
 ly be considered as part of the proceedings of the trial, it is not 
 clear that the memorandum itself was introduced in evidence 
 and if it was not, no error was committed by the judge in his 
 rulings. It may also be observed that if the evidence of 
 the witness went beyond the ruling of the judge, that he 
 might read the items, and in this form the memorandum became 
 evidence by such reading and a part of his testimony, instead of 
 his swearing to the facts within his own knowledge, after his 
 memory had been refreshed, such evidence was not objected to 
 by the defendant's counsel. It is, at least, very questionable as 
 the case stands, whether the distinct point was made as to the 
 introduction of the memorandum as evidence. Be that as it 
 may, however, the memorandum was made, according to the 
 
Y. Aiding: and Memoranda. (2) Memo, to Refresh. 413 
 
 Eaux V. Brand, 90 N. Y., 309. 
 
 testimony of the defendant, at the ofHce of the plaintiff at the 
 time of the transaction and in the presence of both the parties, 
 and the figures were put on at the time, part of them in the 
 handwriting of the defendant and part in the handwriting of the 
 plaintiff. 
 
 The plaintiff swears that some of the figures are in his hand- 
 writing, but whether they were made at the time, he does not 
 know. Taking this testimony as it stands there was evidence to 
 show that the memorandum thus made constituted a part of the 
 res gestae and hence, as the act of both parties in connection 
 with the transaction, it was admissible on that ground. 
 
 There being no error, the judgment should be afiirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 EAUX V. BRAND. 
 
 JS'ew York Court of Appeals, 1882. 
 
 [Reported in 90 N. Y., 809.] 
 
 A defendant testified in his own behalf that he knew that articles entered 
 in his account book were delivered to plaintiff, that the entries were 
 made at the time of the deliveries, and that he knew them to be cor- 
 rect when made, but that he could not from memory tell the articles. 
 Held, not error for him to state from the book the articles deUvered. 
 
 Plaintiff sued to recover a balance on a mutual account. 
 
 The answer set up a general denial, the Statute of Limitations, 
 a set-off and a counterclaim. 
 
 The reply set up the Statute of Limitations to defendant's 
 coimterclaim. 
 
 On the trial defendant was sworn as a witness and testified in 
 his own behalf that he kept an account of the articles he let 
 plaintiff hare in a book which was produced. 
 
 He was then asked by his counsel : 
 
 " Q. Did you have any other book in which you kept an ac- 
 count against the plaintiff ? 
 
 Objected to as immaterial and incompetent. 
 
414 Abbott's Select Cases on Examining "Witnesses. 
 Raux V. Brand, 90 N. Y., 309. 
 
 Objection overruled and exception taken. 
 
 A. Eo ; there are other accounts in that book; I put it in my 
 book when I dealt with plaintiff ; commenced in 1858 dealing 
 with plaintiff ; the account is kept in Holland Dutch ; account 
 commenced in Feb., 1858 ; I kept this account to Dec. 25, 1876; 
 the entries were made at the time they bear date ; I could not 
 from my memory tell the articles I have delivered without my 
 book of entries. 
 
 Q. Turn to the book and state what articles you delivered to 
 Mr. Eaux, if any ? 
 
 Objected to as incompetent, improper, because it does not call 
 for his recollection, and outlawed. 
 
 Objections overruled, and exception taken. 
 
 Thereupon the witness turned to the book and read therefrom 
 as evidence. 
 
 Thereafter the defendant was asked by his counsel : 
 
 Q. Do you know that the several articles which you have 
 stated, and which appear in this book, from which you have 
 testified were delivered to Mr. Eaux, the plaintiff ? 
 
 Plaintiff's counsel objected to it as incompetent and improper, 
 leading, and no foundation laid. 
 
 Objection overruled, and exception taken. 
 
 A. Yes, sir. 
 
 Q. At the time you made these entries in that book did you 
 know them to be correct ? 
 
 Same objections, ruling and exception, as last above. 
 
 A. Yes, sir; plaintiff and I agreed on the price of the 
 shingles ; I charged on the book the price agreed on ; the note 
 marked ' 2 ' was for $400 cash I let plaintiff have, and I took 
 his note." 
 
 Upon report of referee judgment was entered for defendant. 
 
 The Supreme Cov,rt at General Term afBrmed the judgment 
 without opinion. 
 
 The Court of A/ppeals afBrmed the judgment. 
 
 Per Curiam. First. — "We think there was no legal error in 
 
Y. Aiding: and Memoranda. (2) Memo, to Eefresh. 415 
 
 Howard v. McDonough, 77 N. Y., 592. 
 
 permitting the defendant to state from lais book the items of his 
 account against the plaintiff. The book was not offered in evi- 
 dence. The witness testified that he knew that the several 
 articles which he had stated in detail, and which appeared in the 
 book were delivered to the plaintiff, and in addition that he knew 
 the entries when made to be correct. This was original evi- 
 dence of the several items of the account. The witness assumed 
 to speak from actual recollection, using the books to refresh his 
 memory. The questions put to the defendant were leading but 
 an objection on that ground is not available in this court. 
 
 Second.— ThQ point made that the cash items appearing in the 
 account were not proved, because the question put to the defend- 
 ant called for a statement of the Hxticles delivered, and did not 
 refer to the cash items, rests upon a hypercritical construction of 
 the question. The question was understood to relate to the 
 entire account of the witness with the plaintiff, including cash 
 items as well as others. Neither the attention of the witness 
 nor of the referee, was called to any distinction between them. 
 The witness answered the question on the assumption that the 
 question called for the entire account. The plaintiff cannot now 
 be heard to object that the question related only to shingles, pro- 
 duce, etc., included in the account and not to cash. 
 
 HOWAED V. McDONOUGH. 
 
 New York Court of Appeals, 1879. 
 [Reported in 77 N. Y., 593.] 
 
 In an action for the conversion of many items of property a witness may 
 make a list of all the items, and their values, and may aid his memory 
 by it while testifying ; but he must be able to state that all the articles 
 named in the list were seized, and that they were of the values therein 
 stated, and he may use the list to enable him to state the items. 
 
 After he has thus testified, the memorandum which he has used may be 
 put in evidence, not as proving anything of itself, but as a detailed 
 statement of the items testified to by the witness. 
 
 It seems, it is m the discretion of the trial judge in such a case to allow 
 the witness to testify quite generally as to the items and their values, 
 
416 Abbott's Select Cases on Examining "Witnesses. 
 
 Howard v. McDonough, 77 N. Y., 592. 
 
 and receive the memorandum as the detailed result of his exmaina- 
 tion, leaving to the adverse party a more minute cross-examination. 
 
 Action for taking and converting of the contents of a printing 
 office. 
 
 Upon the trial, Eowland M. Stover, a witness for plaintiff 
 testified on direct examination that he was the manager of the 
 business ; and from the schedule of , items of goods, filling nine 
 pages, annexed to the camplaint he testified to the value of each 
 item referring to and reading from the schedule. 
 
 The schedule itself was then offered in evidence and received. 
 
 In the Court of Common Pleas judgment was entered upon 
 a verdict for the plaintiff. 
 
 The Supre7ne Court at General Term affirmed the judgment. 
 
 Daly, J. This schedule was not admitted to prove the items 
 apart from the testimony of the witness. 
 
 The witness swore that each and every article in the schedule, 
 were in plaintiff's store when the marshal took possession of the 
 property, and where such items have each been distinctly 
 proved, the schedule is receivable in evidence to show what was 
 in the establishment when its contents were seized. 
 
 [Distinguishing Halsey v. Smeebaugh, 15 N. Y., 485 ; Mc" 
 Cormick v. Penn. E. E. Co., 49 IST. Y., 315.J 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, J. \on this poinf] : The law as to the use of memor- 
 anda by witnesses while testifying is quite well settled in this 
 state. 1. A mtness may, for the purpose of refreshing his 
 memory, use any memorandum, whether made by himself or 
 another, written or printed,and when his memory has thus been re- 
 freshed, he must testify to facts of his own knowledge, the memo- 
 randum itself not being evidence. 2. When a witness has so far 
 forgotten the facts that he cannot recall them even after looking 
 at the memorandum of them, and he testifies that he once knew 
 thena and made a memorandum of them at the time or soon 
 after they transpired, which he intended to make correctly, and 
 which he believes to be correct, such memorandum in his own 
 
V. Aiding ; and Memoranda. (2) Memo, to Refresh. 41Y 
 Howard v. McDonovig-h, 77 N. Y., 592. 
 
 handwriting may be received as evidence of the facts therein 
 contained, although the witness has no present recollection of 
 them. 3. Memoranda may be used in other cases which do not 
 precisely come under either of the foregoing heads. A store of 
 goods is wrongfully seized, and an action is brought to recover 
 for the conversion. There are thousands of items. No witness 
 could carry in his mind all the items and the values to be 
 attached to them. In such a case, a witness may make a list of 
 all the items and their values, and he may aid his memory, while 
 testifying, by such list. He must be able to state that all the 
 articles named in the list were seized, and that they were of the 
 value therein stated, and he may use the list to enable him to state 
 the items. After the witness has testified, the memorandum which 
 he has used may be put in evidence, not as proving anything of 
 itself, but as a detailed statement of the items testified to by the 
 witness. The manner in which the memorandum, in such a case, 
 may be used is very much in the discretion of the trial judge. 
 He may require the witness to testify to each item separately, 
 and have his evidence recorded in the minutes of the trial, and 
 then the introduction of the memorandum will not be import- 
 ant ; or he may allow the' witness to testify quite generally to the 
 items and their values ; and receive the memorandum as the 
 detailed result of his examination, leaving to the adverse party a 
 more minute cross-examination. Without the use of the memo- 
 randum in such cases, it would be difficult, if not impossible, to 
 conduct a trial involving the examination of a large number of 
 items. (Driggs v. Smith, 36 N. Y. Superior Ct., 283, affirmed 
 in this court ; McOormick v. Penn. Central E. R. Co., 49 N. Y., 
 303.) 
 
 All the Judges concurred. 
 
 Judgment affirmed. 
 
418 Abbott's Select Cases on Examining Witnesses. 
 Note on Memoranda to Refresh. 
 
 NOTES OF CASES ON USE OF MEMOEANDA TO 
 EEFKESH MEMOEY. 
 
 For recent cases on use by witness, for purpose of refreshing his 
 memory, of Own Memoranda; of Memoranda made by Otliers ; of Copies 
 of Memoranda ; of Memoranda as to Numerous Facts or Items ; and 
 Cross-examination as to Memoranda, see the following : 
 
 I. Witness' own memoranda to refresh his recollection : 
 
 Alabama: Howell v. Bowman, Ala., 1892, 10 Southern Eep., 640 (it is 
 error to permit a witness to refresh his memory from a memorandum 
 made before trial, but long after the occurence to which it refers). Cali- 
 fornia : Morris v. Lachman, 68 CaL, 109 (a witness will not be allowed to 
 refresh his memoi'y from his own ex parte a,tR6a,\it unless it is first shown 
 that it was written by the witness, or under his direction, at a time when 
 the facts were fresh in his memory). Watrous v. Cunningham, 71 id., 30; 
 s. c, 11 Pacific Rep., 811 (it is not error to allow a shorthand reporter as a 
 witness to refresh his memory by reading his own notes). Colorado : 
 Rohrigi;. Pearson, 15 Colo., 127; s. c. 24 Pacific Rep., 1083 (a witness^ 
 who at the time of sale personally made entries in books in reference 
 thereto, may refresh his memory from such entries). Iowa : Riordan v. 
 Guggerty, 74 Iowa, 688 ; s. c. 39 Northwest. Rep.-, 107 (it is not error to 
 permit a witness to refer to a stub check book, where he is instructed by 
 the court that he cannot testify from the book, but can only use it to re- 
 fresh his memory). Kansas: State v. Baldwin, 36 Kan., 1 (it is not error 
 not to permit a witness to refer to a memorandum where he is able to 
 testify independently thereof). Sanders v. Wakefield, 41 Kan., 11; s. c. 
 20 Pacific Rep., 518 (a witness may refer to a memorandum to refresh his 
 memory which he made or was concerned in making, at the time of the 
 occurrence to which it refers, took place). Massachusetts: Common- 
 wealth V. Clancy, 154 Mass., 128 ; s. c. 27 Northeast. Rep., 1001 (a witness 
 may refresh his memory from his own memorandum made at the time of 
 the occurrence). Michigan: Skeels v. Starrett, 57 Mich., 350; s. c. 24 
 Northwest. Rep., 98 (a scale of logs made by a witness can he used by him 
 to aid his memory). Hiuchman v. Weeks, 85 Mich., 535 ; s. c. 48 North- 
 west. Rep., 790 (it is not error to permit a witness to aid his recollection 
 of another's statements with a memorandum thereof, taken down at the 
 time they were made, though the memorandum was not signed or read 
 by the person who made the statements). Missouri : Ahern v. Boyce, 28 
 Mo. App., 558 (a witness may use a memorandum to refresh his memory 
 as to the measurements of work done, though the measurements were 
 made long after the work was completed). Abel v. Strimple, 31 id., 86 (a 
 witness may refresh his recollection from a memorandum, though he had 
 no independent recollection of the facts stated in it, if he recollects that 
 he saw the memorandum befoi-e, and knows that the contents are true). 
 Nebraska : Weston v. Brown, 30 Neb., 609 ; s. c. 46 Northwest. Rep., 826 
 
V. Aiding: and Memoranda. (2) Memo, to Refresh. 419' 
 
 Note on Memoranda to Refresh. 
 
 (a witness may use a memorandum to refresh his memory, if it was made 
 at the time of the occurrence). Small v. Poffenbarger, 32 Neb., 234; 
 s. c. 49 Northwest. Rep. , 837 (it is not error to allow a witness, who has 
 taken shorthand notes upon a former trial to refresh her naemory there- 
 from, where she states that without the notes she cannot i-emember the 
 testimony to which they refer). Schuyler v. Bollong-, 24 Neb., 82.5 ; s. c. 
 40 Northwest. Rep., 413 (it is improper to permit a witness to refresh his- 
 memory from a memorandum made up by a party's attorney from other 
 evidence several months after the occurrence ; but its use is not prejudicial 
 error where it appears that the witness in fact testified from his own 
 memory). Neiv Hampshire: Converse v. Hobbs, 64 N. H., 43; s. c. 2 
 Northeast. Rep., 857 (a witness allowed to refresh his memory from a 
 private cash book). Neiv York: Whitney v. Camman, 45 State Rep., 
 570; s. c. 18 N. Y. Supp., 200 (witness may refresh his memory from a 
 memorandum made at the time of the occurrence, which he knows to 
 have been true when made). Grossman v. Walters, 33 State Rep., 921 ; 
 s. c. 11 N. Y. Supp., 471 (a witness' examination upon supplementary pro- 
 ceedings may be used by him to refresh his recollection as to what he 
 swore to). United States : United States v. Cross, D. C, 1893, 20 Wash. 
 L. Rep., 90 (a witness can only have his memory refreshed as to what he 
 testified upon a former occassion by reference to some record or memor- 
 andum, and not by having his former testimony repeated to him). See 
 also as to general rule : McClaskey v. Barr, U. S. Cir. Ct., S. D., Ohio W. 
 D., 1891, 45 Fed. Rep., 151 ; Kingory v. United States, U. S. Cir. Ct, W. 
 D. La., 1891, 44 id., 669. Wisonsin : A. C. Conn Co. v. Little Suamico 
 Lumber, etc. Co., 74 Wis., 653 ; s. c, 43 Northwest. Rep., 660. 
 
 II. Memoranda made by others to refresh witness' memory : 
 
 Alabama: Billingslea t;. State, 85 Ala., 323; s. c. 5 Southern Rep., 137 
 (it is not error to allow a witness to refresh his memory as to the date 
 of the alleged crime from liis own testimony before the grand jury which 
 has been reduced to writing and signed by him, though independent of 
 such testimony he has no recollection of the date). Connecticut : 7 New 
 Eng. Rep., 94 (a witness may refresh his memory from a memorandum 
 made at his dictation where he testifies from his memory so refreshed). 
 Minnesota: Culver v. Scott & W. Lumber Co., 1893, 55 Northwest. Rep., 
 553 (a memorandum used by a witn-ess to refresh his memory need not 
 have been made by himself, if after inspecting it he can testify from his 
 own recollection). Eder v. Reilly, 48 Minn., 437 ; s. c. 51 Northwest. Rep., 
 226 (it is error to allow a witness to refer to a writing, which is not 
 shown to be correct, for the purpose of refreshing his memory). Mis- 
 souri : Taussig v. Schields, 26 Mo. App., 318 (it is sufficient if the witness 
 knows that the memorandum used by him to refresh his memory was 
 correct when made, though lie did not make it himself). Nebraska : La- 
 baree v. Klosterman, 33 Neb., 150 ; s. c. 49 Northwest. Rep., 1102 (it is not 
 error to allow a witness to refresh his memory from a memorandum 
 made by another at or near the time of the transaction, where after seeing 
 
420 Abbott's Select Cases on Examining "Witnesses. 
 
 Note on Memoranda to Eefresh. 
 
 it the witness can testify from his own recollection). New York : Steub- 
 ing- V. N. Y. El. R. Co., 19 N. Y. Supp., 313 (where a witness after looking 
 at book entries made by another, can testify from his own memory inde- 
 pendent of the entries as to the transaction to which they relate, he may 
 be allowed to do so and it is not necessary to call the person, who made 
 the entries as a witness). Lamberty v. Eoberts, 31 N. Y. State Rep., 148 ; 
 s. c. 9 N. Y. Supp., 607 (in an action for services it is not error to permit 
 a witness to refresh his memory from a time-book kept by another where 
 the witness had given the time-slips to the bookkeeper from which the 
 entries were made, and had afterwards compared the entries with the 
 slips). Bateman v. N. Y. Central, etc. R. Co., 47 Hun, 429 ; s. c. 14 N. Y. 
 State Rep., 454 (the witness and C. made measurements together, C. enter- 
 ing them upon a memoi'andum which the witness signed. The witness 
 testified that he knew the memorandum was true, when he signed it, but 
 without it he could not state what the measurements were ; and that 
 his recollection was not refreshed by looking at the figures. Held, that 
 the witness could look at the paper and state what the figures were). 
 Oregon : State v. Moran, 15 Oreg., 263 ; s. c. 14 Pacific Rep., 419 (it is not 
 error to allow a witness to testify, who has refreshed his memory before 
 going on the stand by reading a narrative of the facts written by another; 
 such fact affects his credibility, not his competency). Texas : Sisk v. 
 State, 28 Tex. App., 432 ; s. c. 13 Southwest. Rep., 647 (on a trial for per- 
 jury committed before a grand jury, it is not error to permit the foreman 
 of the grand jury to read the indictment in order to refresh his memory 
 as to defendaat's statements). United States: Flint v. Kennedy, U. S. 
 Cir. Ct., S. D. N. Y., 1888, 33 Fed. Rep., 820 (a witness, who has obtained 
 knowledge of the correctness of the entries in an order-book by checking 
 them off in the course of his duty, may refresh his memory therefrom). 
 Washington : Brotton v. Langert, 1 "Wash. St., 327 ; s. c. 23 Pacific Rep., 
 803 (it is error to allow a witness to refer to a memorandum made by his 
 clerk without his knowledge, and where it is not shown that the witness 
 has any knowledge of the facts to which the memorandum refers). Wis- 
 consin : Stubbings v. Dookery, 80 Wis., 618 ; s. c. 50 Northwest. Rep., 775 
 (it is not error to allow a witness to refer to entries in an order-book, made 
 by another, where the witness had himself put a check mark against 
 •each entry to show that the goods were forwarded by him to the persons 
 charged therewith). 
 
 in. Copies of Memoranda to refresh witness' memory. 
 
 Alabama : Hawes v. State, 88 Ala. , 37 ; s. c. 7 Southern Rep., 303 (it is not 
 error to allow a newspaper reporter, whose original notes have been des- 
 troyed, to refer to the published article to refresh his memory where he 
 testifies that it contains the substance of the notes). Mayor, etc., of Bir- 
 mingham V. McPoland, Ala., 1893, 11 Southern Rep., 427 (it is not error 
 for the court to refuse to allow a witness to refresh his memory from a 
 copy of his memorandum, which was copied by another, where the cor- 
 rectness of the copy has not been shown). Kansas : McNeely v. Duff, 50 
 
V. Aiding: and Memoranda. (2) Memo, to Refresh. 421 
 
 Note on Memoranda to Refresh. 
 
 Kan., 488; s. c. 31 Pacific Eep., 1061 (a witness may refresli liis recollection 
 from any book or memoranda, whether it is itself admissible in evidence 
 or not, provided he has a recollection independent of it). Michigan : Ciald- 
 well V. Bowen, 80 Mich., 382 ; s. c. 4o Northwest. Rep., 185 (a witness, 
 who is asked to refresh his memory from a copy of a memorandum which 
 he has made, cannot read it to the jurj', as such procedure is equivalent 
 to putting the copy in evidence). Missouri : Rose v. Rubeling,. 34 Mo. 
 App., 369 (a witness, who has an independent recollection, may be allowed 
 to refresh his memory from books, not of original entry). Nebraska : 
 Anderson v. ImhoiS, 34 Neb., 335 ; s. c. 51 Northwest. Rep., 854 (a witness 
 may refresh his memory from a copy of a memorandum of measurements, 
 which he testifies is correct, where the original is lost). New York : 
 Scott V. Slingerland, 44 Hun, 254 (an attorney as a witness may read a 
 copy of a contract which he drew, in order to refresh his memory as to the 
 contents of the original). 
 
 rV. Memoranda as to numerous facts or items : 
 
 Alabama: Stoudennie v. Harper, 81 Ala., 343 (where a witness testified 
 that a memorandum was not a copy of the original entries in books, but a 
 summary, and the books themselves were not in court, — held, that it was 
 not error to allow the witness to refresh his memory from such memo- 
 randum, and to allow it to be exhibited to the jury). Powell v. Henry, 
 Ala., 1892, 11 Southern Rep., 311 (it is not error to allow a witness, who 
 has established the correctness of his book accounts to refresh his recol- 
 lection as to amounts from a paper which he had drawn from the books a 
 few days before the trial and as to which he is able to testify from an 
 independent memory). Georgia : Finch v. Barclay, 87 Ga. , 393 ; s. c. 13 
 Southeast. Rep., 566 (a witness may refresh his memory -from a memo- 
 randum taken from his books, if after so refreshing it, he can testify from 
 his own recollection). Illinois: Bonnett v. Glattfeldt, 120 111., 166 (it is 
 not error to allow a witness to refresh his memory from a memorandum 
 taken from his own books, if his memory, refreshed thereby, enables him 
 to testify from his own recollection of the original facts ; but he should 
 not be allowed in such case to read from the copy) ; s. p. Brown v. Gales- 
 bury Pressed Brick, etc. Co., 133 ID., 648; s. c. 24 Northeast. Rep., 533. 
 Indiana: Johnson v. Culver, 116 Ind., 278; s. c. 19 Northeast. Rep., 139 
 (a witness may refresh his memory by reference to a memorandum made 
 by himself in a case where many items are involved ; but he cannot testify 
 entirely from the writing, he must have a recollection independent of the 
 memorandum). Maryland: Nelson v. Columbian Iron, etc. Co., 76 Md., 
 354 ; s. c. 25 Atlantic Rep., 417 (it is error not to allow a witness to con- 
 sult a price list to refresh memory where the lists are recognized by the 
 trade as authority and the items are too numerous to be carried in the 
 memory). 3Iichigan: Robinson v. Mulder, 81 Mich., 75 ; s. c. 45 North- 
 west. Rep., 505 (a salesman as a witness may refresh his memory from 
 the bill of particulars in the action, where he can remember the specific 
 articles sold after referring to such bill, although he sent written orders 
 
422 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Memoranda to Refresh. 
 
 for the goods or copies thereof to his employer, and he is not asked to 
 refi-esli liis memory from them). Missouri: Wernwag v. Chicago, etc., 
 R. Co., 20 Mo. App., 473 ; s. c. 4 "Western Rep., 344 (a witness may refresh 
 his memory from hoolcs or memoranda as to dates, sales, or other numer 
 ous items in respect to which no memory could be expected to be suffl' 
 cient to retain) ; s. p. Third Nat. Bk. v. Owen, 101 Mo., 538 ; 14 Southwest, 
 Rep., 633 ; Stavinow v. Home Ins. Co., 43 Mo. App., 513 ; Nipper v. JoneS; 
 27 id., 538 ; Robertson v. Reed, 38 id., 33 ; Austin v. Boyd, 33 id., 317, 
 New York : Wise v. Phoenix Fire Ins. Co., 101 N. Y., 194 (in an action on 
 an insurance policy there is no error in permitting plaintiff as a witness 
 to refresh his memory by referring to the schedule attached to the proof 
 of loss which was made a few days after the fire ; to hold otherwise would 
 be to make the witness dependent upon an unusual streng-th of memory) ; 
 s. p. Hartleys. Cataract Steam Engine Co., 46 State Rep., 374; s. c. 19 
 N. Y. Supp., 121. Pennsylvannia : Mead v. White, 8 Atlantic Rep., 913 
 (a witness may use a paper containing a list of items to refresh his 
 memory which he knows to have been correct when made, though the 
 paper itself is not admissible in evidence). Texas : Watson v. Miller, 83 
 Tex., 279 ; s. c. 17 Southwest. Rep., 1053 (it is not error to refuse to allow 
 a party as a witness to refresh his memory from a memorandum made by 
 his attorney at his dictation from old letters and other writings). 
 
 V. Cross-examination as to memoranda. 
 
 Little V. LischkofF, Ala., 1893, 12 Southern Rep., 439 (it is error not to 
 permit the adverse party to cross-examine a witness as to entries in a book 
 to which he has referred to refresh his memory on direct examination, 
 unless such party should first put the book in evidence). Steele v. Wis- 
 ner, 141 Pa. St., 63; s. c. 21 Atlantic Rep., 527 (it is not error on cross- 
 examination to refuse to allow the witness to refresh his memory as to 
 matters to which he has testified in chief from a letter with which the 
 witness' connection is not shown). O'Riley v. Clampet, Minn., 1893, 55 
 Northwest. Rep., 740 (a party desiring to cross-examine a witness as to 
 contents of a paper must introduce the paper as a part of his cross- 
 examination). Wernwag v. Chicago, etc., R. Co., 20 Mo. App., 473 ; s. c. 
 4 Western Rep., 343 (a memorandum used by a witness to refresh his 
 memory must be produced for the benefit of the opposite party so that he 
 may use it upon cross-examination) ; s. p. Cortland Manuf. Co. v. Piatt, 
 83 Mich., 419 ; s. c. 47 Northwest. Rep., 330. Kerr v. Lunsford, 31 W. Va., 
 659; s. c. 8 Southeast. Rep., 493 (where a witness testifies that testimony 
 of another person in another proceeding was incoherent and upon cross- 
 examination states that the stenographer's notes of the same were sub- 
 stantially correct, it is not error to permit the notes to be read to the 
 jury in order to contradict the witness). 
 
T . Aiding : and Memoranda. (3) Witness reading Memo. 423 
 
 National Ulster County Bank v. Madden, 33 Abb. N. C, 118. 
 
 NATIONAL ULSTEE COUNTY BANK v. MADDEN. 
 N. F. Court of Appeals, Second Division, 1889. 
 
 [Reported in 114 N. Y., 380; s. c, with note, in 33 Abb. N. C, 118, rev'g 
 
 41 Hun, 113.] 
 
 Although a witness may refer to his original memorandum for the 
 purpose of refreshing his recollection, the memorandum is not made 
 admissible merely by his testimony to its truth, but its admission 
 must rest on the principle of necessity for the reception of secondary 
 evidence ; and it is not admissible if his testimony fairly indicates that 
 he has a distinct recollection of the facts to which the memorandum 
 referred ; unless the memorandum is shown to have been made as 
 part of the res gestce of a fact properly in evidence.* 
 
 Plaintifi sued to recover the amount of eighteen checks ; the 
 defendant Madden was the payee and indorser, and defended on 
 the ground that after indorsement the checks were made payable 
 at a future day without his knowledge or consent. 
 
 The defendant Madden was called on his own behalf, and 
 testified in chief : " I have examined every one of the checks in 
 evidence, and the words making checks payable on a future day 
 were not in any of them when I indorsed them ; I never gave 
 my consent to, or had any knowledge of their insertion. * * * 
 When endorsed by me they were payable on the day they had 
 date at the top of each one of them." 
 
 He further testified as follows : 
 
 "I kept a record of each one of these checks, at the time the 
 endorsement was made by myself ; every check I endorsed for 
 him, before I left the check out of my hand or endorsed it, I 
 entered it up in my bill book. 
 
 Q. What entry did you make upon the day the first check 
 was endorsed? 
 
 The counsel for the plaintifE objected, that what entry witness 
 made was immaterial and incompetent as evidence. That the 
 
 *The error for which the judgment was here reversed was that such a memorandum cannot 
 properly be read in evidence, and the court treated the act of the witness in reading from his 
 memoranda as a "reading in evidence." 
 
 If the record had made it clear that the offer of counsel and the act of the witness amounted 
 only to the witness testifying whUe aiding himself as to details by having the paper under his 
 eye, and that the memoranda were not as documents read in evidence, the rule in Bigelow v. 
 Hall, pp. 410-413 of these cases, would have applied. 
 
424 Abbott's Select Cases on Examining Witnesses. 
 
 National Ulster County Bank v. Madden, 33 Abb. N. C, 118. 
 
 witness' own act is not competent evidence upon his direct 
 examination, in his own behalf, as corroborative of his statement. 
 
 The objection overruled and exception taken. 
 
 A. It shows the date of the check, the amount, endorser, 
 drawer, the place where due — The National Bank ; the time 
 when it was due was October 18. 
 
 Q. Take the next date 1 
 
 A. (Defendant reads from book) October 21 ; S. M. Fowks ; 
 M. J. M.; The Nat. Bank; no time; payable the same day; 
 amount $75. 
 
 The counsel for the plaintiff renews and makes same objection 
 to each of the checks as above. Objection overruled and excep- 
 tion taken by plaintiff. 
 
 The witness then proceeded, and against such objections of 
 the plaintiff was allowed to, and read from such book a similar 
 entry in relation to each one of the other checks in evidence." 
 
 At Cirouit, judgment was entered for defendant 
 
 The General Term of the Supreme Court affirmed the judg- 
 ment. They were of opinion that such an abstract could be 
 used, on the same principle as a copy ; also that the principle 
 applied that in a conflict of evidence that which tends to 
 corroborate a witness may be proved, though it might not other- 
 wise be competent. 
 
 The Court of Appeals reversed the judgment. 
 
 Beadlby, J. The action was brought to recover the amount 
 of eighteen checks drawn by the defendant, Sarah M. Fowks, 
 by her attorney, Horatio Fowks, upon the National Bank of 
 Kondout and payable to the ' order of the defendant. Madden, 
 and endorsed by the latter. Madden alone defended, and 
 alleged that after the checks were endorsed by him, they were 
 altered in respect to the time for payment, so as to make them 
 payable at a future day without his knowledge or consent. He 
 testified that when so endorsed by him no time of payment was 
 expressed in any of them. "When they were discounted by the 
 plaintiff, they respectively appeared to be payable at specified 
 times subsequent to their dates. The defendant Madden also 
 
Y. Aiding : and Memoranda. (3) Witness reading Memo. 425 
 
 National Ulster County Bank v. Madden, 33 Abb. N. C, 118. 
 
 testified that when he endorsed the several checks, he made a 
 memorandum entry of the dates, amounts and time when payable 
 of them respectively, and in his examination in chief, in his own 
 behalf, he was permitted against the objection and exception of 
 the plaintiff's counsel to read such memoranda to the jury. The 
 main question arises upon the admissibility of those entries in 
 evidence. The rule in this state, prior to the decision in 
 Merrill v. The Ithaca & Oswego R. R. Co., 16 Wend., 586, was 
 that a witness might refer to his memorandum to refresh his 
 memory, and then was permitted to testify to the facts, provided 
 he could do so independently of it upon his recollection. That 
 was the extent of the rule in this respect (Feeter v. Heath, 11 
 Wend., 4T9 ; Lawrence v. Barker, 5 id., 301). 
 
 In the Merrill case, the court reviewed the cases, and cited 
 text books upon the subject, and announced the conclusion, that 
 orginal entries read by a witness and which he should testify,, 
 were correctly made, might be read in evidence, though he 
 remembered nothing of the facts represented by them, but that 
 to render such entries admissible, it should appear that " every 
 source of primary evidence had been exhausted." Since then, 
 so far as we have observed, it has uniformly been held admissible 
 for the witness to refer to the original entries in respect to the 
 facts, wliich he is called upon to testify, and if he verifies their 
 correctness and is unable to recollect such facts independently 
 of such entries, they may be read in evidence (Bank of Monroe 
 V. Culver, 2 Hill, 531 ; Cole v. Jessup, 10 N. Y., 96 ; Halsey v. 
 Sinsebaugh, 15 id., 485 ; Russell v. Hudson River R. R. Co., IT 
 id., 134 ; Guy v. Mead, 22 id., 462 ; Squires v. Abbott, 61 id., 
 530-535 ; Howard v. McDonough, 77 id., 592 ; . Peck v. Valen- 
 tine, 94 id., 569 ; Mayor, etc. v. Second Ave. R. R. Co., 102 id., 
 572-580 ; Brown v. Jones, 46 Barb. 400 ; Meacham v. Pell, 51 
 id., 65 ; Kennedy v. O. & S. R. R. Co., 67 id., 170-182). 
 
 The General Term cited on this question Guy v. Mead 
 {swpra) and made the remark, that while that case differed from 
 this in the fact that there the witness had no recollection of the 
 matter independently of the memorandum referred to, the court 
 did not place its decision upon that ground. Although in that 
 case the court did not expressly declare that the admissibility 
 
426 Abbott's Select Cases on Examining "Witnesses. 
 
 National Ulster County Bank v. Madden, 23 Abb. N. C, 118. 
 
 of the evidence was dependent upon the want of recollection of 
 the witness, the fact existed which rendered the paper competent 
 evidence within the rule as before stated. And reference was 
 there, with apparent approval, made to Russell v. Hudson 
 River R. R. Co. (supra), where the judgment of the court below 
 was reversed for error in receiving a memorandum in evidence, 
 when for aught that appeared, the witness had recollection of 
 the facts, to which he was called upon to testify, independently 
 of it. And the cases above cited, determined subsequently to 
 Guy V. Mead, state and adhere to the doctrine that original 
 entries made by a witness are admissible as auxiliary to his 
 evidence, only when he is unable to distinctly recollect the fact 
 without the aid of it. This proposition seems well settled in 
 this state by a current of authority for the last fifty years, which 
 now requires adherence to it, unless it may be seen that it works 
 unjustly upon the rights of the parties. The rule which 
 renders such entries admissible rests upon the principle of 
 necessity for the reception of secondary evidence, and is not 
 applicable where the witness has a distinct recollection of the 
 essential facts to which they relate. The primary common law 
 proof is there furnished, and the necessity for evidence of the 
 lesser degree does not arise, and this right so qualified to 
 introduce such secondary evidence is the better rule in view of 
 the opportunity, which otherwise might exist, to super-add a 
 written memorandum to the evidence of a witness, which, it can- 
 not be said, would not sometimes be improperly made available 
 to strengthen his testimony with a court or jury, and such may 
 be within reasonable apprehension until the moral infirmity of 
 human nature becomes exceptionally less than it yet has. This 
 reason for the rule so limited has also been in the minds of the 
 courts in deciding the cases declaring it (Meacham v. Pell, 51 
 Barb., 65-68 ; Driggs v. Smith, 4 J. & S., 283 ; Russell v. Hudson 
 River R. R. Co., 17 N. Y., 134). 
 
 In holding, as we do, that entries made by a witness are not 
 admissible unless it appear that he does not recollect the 
 occurrence, to which they relate, independently of them, we but 
 reaffirm what may be deemed the rule already quite well 
 established in that respect. 
 
V. Aiding : and Memoranda. (3) Witness reading Memo. 427 
 National Ulster County Bank v. Madden, 23 Abb. N. C, 118. 
 
 In the present case it not only did not so appear, but the 
 evidence of the defendant fairly indicated that his recollection 
 was distinct of the facts in issue to which his memoranda 
 referred. 
 
 The ruling which permitted the entries to be read in evidence 
 therefore was error, unless they may, as contended by the 
 defendant's counsel, be treated and admissible as part of the res 
 gestw. It is difficult to see that it does, and we think it does 
 not come within that doctrine. The entries were made by the 
 defendant and were descriptive of the paper endorsed by him. 
 The acts which he then was called upon to do, and did do, were 
 to endorse the checks. The fact of the endorsement by him of 
 his name upon them is not questioned. The act of making the 
 entries was not illustrative of that of the endorsement, nor did 
 it tend to characterize it, and it does not come within the rule 
 requisite to permit it to be treated as part of the transaction 
 (Wharton's Ev., § 259 ; Nutting v. Page, 4 Gray (Mass), 581, 
 584 ; Moore v. Meacham, 10 N. T., 20Y ; Tilson v. Terwilliger, 
 56 id., 277). 
 
 The case of Bigelow v. Hall, 91 id. 145, is not applicable in 
 that respect to the situation presented in this case. There the 
 parties participated in making the entries at the time of the 
 transaction and they had relation to it, while here the current 
 entries were made by the defendant alone, and all that Fowks 
 appears to have done was to make from time to time entry of a 
 supposed past act of payment of a previously endorsed check, 
 and that was done before the defendant's entry descriptive of 
 the succeeding one, and with the latter entry the party procur- 
 ing the endorsement had nothing to do, nor does it appear that 
 he was then advised of the entry as made by the defendant. 
 (Brown v. Thurber, 58 How. Pr., 95-97). 
 
 The evidence of the person who represented the drawer of 
 the checks and drew them as her attorney was contradictory of 
 that given by the defendant Madden in every respect essential 
 to the issue presented at the trial. It connot be seen that the 
 reading to the jury of the memoranda may not have had some 
 influence upon their action on the main question of fact, which 
 they were required to determine.. 
 
428 Abbott's Select Oases on Examining Witnesses. 
 Halsey v. Sinsebaugh, 15 N. Y., 485. 
 
 The alleged alteration was a material one, and the finding that 
 it was made after the defendant's endorsement and without his 
 consent, presumptively required the conclusion that the checks 
 so altered were rendered invalid as against the endorser, and 
 that such defendant was entitled to a verdict (Crawford v. West 
 Side Bank, 100 N. Y., 50). 
 
 The presumption in such case is that it was so made as to 
 vitiate it, and the burden is with the party seeking to make an 
 altered instrument the basis of recovery to relieve it from the 
 effect of the unauthorized alteration, which may be done by 
 showing that it was made by a stranger to it (Waring v. Smyth, 
 2 Barb. Ch., 119; Herrick v. Malin, 22 Wend., 388; Smith v. 
 McGowan, 3 Barb., 404). 
 
 Nothing appears in this case to indicate that any relief in that 
 manner can be had from the effect of the alteration, if the jury 
 find it was made after the endorsement and without the knowl- 
 edge or consent of the endorser. 
 
 No other question presented here by the plaintiff's counsel 
 seems to require consideration. 
 
 The judgment should be reversed and a new trial granted, 
 costs to abide the event. 
 
 All the judges concurred, except Paekee, J., not sitting. 
 
 HALSEY V. SINSEBAUGH. 
 
 JVew York Court of Appeals, 1857. 
 
 [Reported in 15 N. Y., 485.] 
 
 Where it is competent to prove what was testified to by a witness on a 
 former trial, an attorney, who testifies that he was present at the 
 trial and as attorney took notes of the testimony and has no doubt of 
 the correctness of his notes, which he produces, may read such notes, 
 although he has no present recollection of the facts. 
 
 Plaintiff sued for purchase money of land. 
 
 The answer contained a denial of the contract and allegations 
 of mistake in the instrument and of false representations. 
 
 On the trial plaintiff called a witness who gave testimony to 
 show that a witness for defendant had testified differently on a 
 
V. Aiding : and Memoranda. (3) Witness reading Memo. 429 
 
 Halsey v. Sinsebaugh, 15 N. Y., 485. 
 
 former trial of the cause, and other witnesses gave testimony 
 against the character of the same witness for truth and veracity. 
 
 The defendant for the purpose of sustaining the witness, 
 called an attorney who testified " I am one of the attorneys in 
 this cause. In that capacity I took down the testimony on the 
 first trial of this action. I took it down correctly. I have no 
 doubt of its correctness. [Paper shown to witness.] These are 
 my minutes taken on the first trial. 
 
 Q. By defendant's counsel: How did Isaiah Sinsebaugh 
 testify on the first trial of this cause as to the ability of defend- 
 ant to read writing ? 
 
 Plaintiff's counsel objected to the witness answering unless he 
 had a recollection independent of his minutes. 
 
 The witness said he had not, and the objection was sustained ; 
 and exception taken. 
 
 At Circuit judgment was entered for the plaintiff, upon a 
 verdict. 
 
 The Supreme Court at General Term, affirmed the judgment 
 without opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Seldbn, J. Upon the trial of this cause, an attempt having 
 been made to impeach one of the defendant's witnesses by 
 showing that he had sworn differently upon a former trial of 
 the cause, the defendant, for the purpose of sustaining the 
 witness, called one of the counsel engaged in the former trial, 
 who testified that he was present at the first trial, and took notes 
 of the testimony, and that he had no doubt of the correctness of 
 his notes, which he produced. The plaintiff's counsel then 
 objected to his stating what the witness had said, unless he 
 recollected the testimony independently of his minutes; and 
 upon his saying that he did not, the objection was sustained and 
 the evidence excluded. 
 
 Although the memorandum, from which the witness was 
 called upon to testify in this case, consisted of the minutes of 
 testimony taken upon a previous trial of the cause, I am not 
 aware that such cases are governed by any peculiar rule, but 
 
4:30 Abbott's Select Oases on Examining Witnesses. 
 
 Halsey v. Sinsebangh, 15 N. Y., 48o. 
 
 regard tlie exception taken by the defendant's counsel as pre- 
 senting the general question, whether a memorandum made at 
 or about the time when the event or transaction mentioned in it 
 took place, and where the author swears that he knows it to 
 have been correct when made, can be read to the jury in 
 connection with the oral testimony of the witness ; or whether 
 the evidence is confined to what the witness is able to recollect, 
 after refreshing his memory by referring to the memorandum. 
 
 The learned judge who presided at the trial, seems to have 
 followed the rule laid down by Mr. Phillips, in his work upon 
 evidence, which is, in substance, that such memoranda may be 
 used to refresh the recollection of the witness, but can have no 
 force as evidence, unless the witness, after referring to the 
 memorandum, has a present recollection of the facts to which 
 the memorandum relates. 
 
 This was, no doubt, at one time, supposed to be the true rule, 
 and as such it was adopted and followed in several cases, by the 
 courts of this and other states. (Lawrence v. Barker, 5 "Wend., 
 301 ; Feeter v. Heath, 11 Wend., 485 ; Calvert v. Fitzgerald, 1 
 Litt. Sel. Cas., 388 ; Juniata Bank v. Brown, 5 Serg. & Rawle, 
 232.) But in the case of the State v. Kawls (2 JSTott & McCord, 
 334), this rule was subjected to a critical examination by the 
 Constitutional Court of South Carolina, and was, as I think, 
 proved to have originated in a misapprehension of the cases of 
 Doe V. Perkins and Tanner v. Taylor, cited by Mr. Phillips in 
 its support. The commentary by Nott, J., upon those cases 
 shows conclusively that the memoranda there produced, were 
 not the originals, made by the witness at the time the events 
 occurred, but mere copies or extracts from such originals taken 
 long afterwards. 
 
 This commentary, which is quoted in extenso and approved 
 by Cowen, J., in the case of Merrill v. Ithaca & Oswego Kail- 
 road Company (16 Wend., 596), seems to me entirely just and 
 sound ; and I entertain no doubt that Mr. Phillips fell into an 
 error from not discriminating with sufficient care between the 
 original memorandum itself and a mere copy. This subject is 
 treated with much learning and ability in the Notes to Phillips' 
 Evidence, by Messrs Cowen & Hill (note 528 to p. 290), where 
 
Y. Aiding : and Memoranda. (3) Witness reading Memo. 431 
 Halsey v. Sinsebaugh, 15 N. Y., 485. 
 
 the authorities bearing upon it are elaborately reviewed ; 
 and I fully assent to the principle there stated, " that an original 
 memorandum, made by the witness presently after the facts 
 noted in it transpired, and proved by the same witness at the 
 trial, may be read by him, and is evidence to the jury of the 
 facts contained in the memorandum, although the witness may 
 have totally forgotten such facts at the time of the trial." 
 
 There are various cases, English as well as American, in 
 addition to The State v. Kawls and Merrill v. Ithaca & Oswego 
 Railroad Company {supra), which tend to support this rule. 
 (Cases cited in Cow. & Hill's Notes, uhi supra). It is quite 
 obvious that the doctrine supposed to be derived from the woik 
 of Mr. Phillips would serve in many cases to defeat the ends of 
 justice, and particularly in cases where witnesses are called upon 
 to testify to the language of parties, used upon occasions long 
 previous. It is well known that the efforts of memory are 
 seldom equal to the task of recalling, after any considerable 
 lapse of time, even the exact substance of words and phrases ; 
 while it would be comparatively easy, at the time or immediately 
 afterwards, to make an accurate record of their import. To 
 exclude such a record, when shown to have been honestly made, 
 would be to reject the best and frequently the only means of 
 arriving at truth. 
 
 The same reasoning apphes to memoranda in regard to dates, 
 sums, &c., and, although with perhaps less force, to memoranda 
 in general, if made at or aboiit the time when the events which 
 they record transpired, and duly verified by the oath of the 
 party making them. It follows from tbese views that the 
 exception to the ruling of the judge upon this point was well 
 taken. 
 
 The judgment should be reversed and there should be a new 
 trial, with costs to abide the event. 
 
 Dbnio, C. J., CoMSTOCK, JoHNSON, Paige and BOWEN, JJ.„ 
 concurred in this opinion. 
 
 Bbown, J., read an opinion for reversing the judgment upon 
 another ground, reserving his judgment upon that discussed by 
 Selden, J. ; and Shankland, J., took no part in the decision. 
 
 Judgment reversed and new trial ordered. 
 
432 Abbott's Select Oases on Examining Witnesses. 
 Peck V. Valentine, 94 N. Y., 569. 
 
 PECK V. VALENTINE. 
 
 JVew York Court of Appeals, 188Jf. 
 
 [Reported in 94 N. Y., 569.] 
 
 An original memorandum made by a witness can be used to refresh his 
 recollection ; or, if he has forgotten the facts stated and cannot on 
 seeing the memorandum recall them, yet if he states that it was a 
 true statement of a transaction known to him at the time, it may be 
 read in evidence in connection with and as auxiliary to his testimony. 
 
 But secondary evidence of the contents of such memorandum is in- 
 admissible, even after proof of its loss, being mere hearsay. 
 
 Action against an agent, for alleged embezzlement of moneys 
 received on sales. 
 
 For the purpose of proving the defendant's failure to enter in 
 the cash-book all moneys received by him on sales, one Leggett 
 was called as a witness who testified that he was employed in 
 plaintiff's lumber yard in July, 1879, and kept on a loose piece 
 of paper an account of moneys received by the defendant from 
 sales of lumber from the 1st to the 18th of that month ; that 
 the entries were made each day, continuously, except Sunday, 
 and were correct ; that he gave the paper to the plaintiff, and 
 that the defendant never saw it. 
 
 The plaintiff testified that he received the memorandum from 
 Leggett, and had lost it ; but that he copied the figures correctly 
 into a memorandum-book (which he produced), and that the 
 •entries had not been altered. The entries in the memorandum- 
 book were then offered and received in evidence, under the 
 defendant's objection. 
 
 Judgment was entered for the plaintiff upon the report of a 
 
 Teferee. 
 
 The Supreme Court at General Term affirmed the judgment ; 
 being of opinion that what the witness Leggett was unable to 
 remember himself, the plaintiff could prove by other witnesses. 
 The witness, Leggett, gave to the plaintiff this memorandum 
 and he transcribed it. This copy was admissible as proof of the 
 lost paper, and that paper thus reproduced was part of the 
 
V. Aiding : and Memoranda. (4) Memo, of Forgotten Fact. 433 
 
 Peck V. Valentine, 94 N. Y., 569. 
 
 evidence of the witness Leggett. It was therefore direct, 
 3)0sitive, and if credited, conclusive proof of the fact that the 
 defendant received one sum of money belonging to plaintiff and 
 returned a less sum. 
 
 The Court of Appeals reversed the judgment. 
 
 Andrews, J. [after stating the facts] : "We think the entries 
 were not competent evidence. The original memorandum, if it 
 had been produced, could have been used by Leggett to refresh 
 his recollection ; or if he had forgotten the facts stated, and 
 could not on seeing the memorandum recall them, yet if he had 
 been able to state that it was a true statement of the transactions, 
 known to him at the time, it could have been read in evidence 
 in connection with, and as auxiliary to his testimony. (Gruy v. 
 Mead, 22 N. Y., 462.) But the adverse party, on production by 
 the witness of the memorandum, would have had the right of 
 inspection and cross-examination, a right of great importance as 
 a protection against fabricated evidence. (Stephens on Evidence, 
 art. 136 ; Cowen, J., Merrill v. Ithaca, etc., E. R. Co., 16 Wend., 
 600.) In this case the memorandum was not produced and 
 Leggett was not sworn as to its contents, for the reason doubt- 
 less that he could not remember what it contained. The only 
 evidence to connect the entries in the plaintiff's book with the 
 original memorandum, or to establish the amount of money 
 received by the defendant during the time stated, was the oath 
 of the plaintiff that the entries were a true transcript from the 
 memorandum in connection with the testimony of Leggett that 
 the memorandum was a true statement of the transactions at the 
 time. The original memorandum was the mere declaration of 
 Leggett in writing of certain facts observed by him. The case 
 is not distinguishable in principle from what it would have been 
 if there had been no memorandum and the plaintiff had been 
 permitted to prove the oral representations of Leggett to him of 
 the same facts. This would be mere hearsay, and the fact that 
 the statement instead of being oral was written does not alter 
 the character of the evidence. A similar question was presented 
 in Clute v. Small (17 Wend., 238). The plaintiff in that case 
 sought to prove an admission of the defendant made to the 
 
434 Abbott's Select Cases on Examining "Witnesses. 
 
 Peck V. Valentine, 94 N. Y., 569. 
 
 sheriff at the time of the service of the writ, and was permitted 
 to prove the contents of a letter written by the sheriff to the 
 plaintiff's attorneys on returning the process, in which he 
 reported the admission made by the defendant. The letter was 
 lost and the sheriff testified that he could not recollect the 
 contents of the letter or what the defendant had said, but that 
 what he wrote was undoubtedly as stated by the defendant. 
 The evidence of the sheriff was held to be inadmissible, 
 Cowen, J., saying : " There was only one of two ways in which 
 he could be allowed to speak, that is, either from positive 
 recollection or from seeing the letter and knowing it to be his 
 own statement." And again : " The inquiry here was no more 
 than the common one to a witness ; would you have asserted 
 such a matter unless it had been true ? and on obtaining the 
 witness' affirmative answer, going on to prove what he did say." 
 
 The substantive fact sought to be proved in this case was the 
 receipt by defendant of moneys for which he had not accounted. 
 It could be proved by any competent common law evidence. 
 But the original memorandum of Leggett was not original or 
 primary evidence to charge the defendant. 
 
 It was not a writing inter partes, nor one creating rights or 
 of which rights could be predicated, as a will, contract or deed ; 
 nor was it a record of transactions in the ordinary course of 
 business, as books of account, nor a paper made by the defend- 
 ant, or to which he was in any way privy. It was apparently a 
 private statement of an exceptional transaction, made by an 
 agent in aid of his memory, for the information of his principal. 
 The facts stated were relevant and could be proved by any one 
 who could testify to their existence, either directly as matter of 
 personal recollection, or from a memorandum made by him, 
 which he could verify as true. The entries in the plaintiff's 
 book were not authenticated by Leggett. "Whether they were 
 a correct transcript of his original memorandum depended solely 
 upon the plaintiff's evidence. The original memorandum was 
 not a writing the contents of which, if lost, could be proved by 
 secondary evidence. The rule upon that subject relates to 
 writings which are in their nature original evidence, and in case 
 of loss, their contents are from necessity allowed to be proved 
 
V. Aiding : and Memoranda. (4) Memo, of Forgotten Fact. 435 
 
 Guy V. Mead, 32 N. Y., 463. 
 
 by parol. We think the admission of the entries from the 
 plaintiff's book was not justified by any rule heretofore estab- 
 lished and to extend the rule so as to admit a copy of a 
 memorandum not in its nature original evidence of the facts 
 recorded and not verified by the party who made the original 
 and knew the facts, would open the door to mistake, uncertainty 
 and fraud, a consequence far more serious than would flow from 
 a restriction which in a particular instance might seem to 
 prevent the ascertainment of truth. 
 
 For the error in admitting the entries the judgment should be 
 reversed and a new trial ordered. 
 
 All concur. 
 
 Judgment reversed. 
 
 GUY.^y. MEAD. 
 N'ew York Court of Appeals, 1860. 
 • [Reported in 32 N. Y., 463.] 
 
 A memorandum is competent, which the maker swears was made at or 
 about the time when tlie event or transaction mentioned in it took 
 place, and that he knows it was correct when made, but has no recol- 
 lection of the fact. 
 
 It is not necessary that such memorandum be made in the c ourse of 
 b usine ss. 
 
 This principle applies even where the memorandum is used to show 
 negatively that something not noted did not exist. 
 
 Plaintiff sued as transferee after maturity of a promissory 
 note for $250, made by defendant, to George Sharts, or bearer. 
 
 The note had two endorsements of payments, as follows: 
 " $90.00. Eeceived on the within note ninety dollars, January 
 20th, 1846. $40.00 Eeceived on the within note February, 26th, 
 forty dollars, 1849." 
 
 The defence was payment. 
 
 On the trial, plaintiff gave evidence that the $40 was paid at 
 the date of the endorsement, February, 1849, while the defend- 
 ant gave evidence that it was paid in February, 184Y, and not 
 in 1849. 
 
436 Abbott's Select Cases on Examining "Witnesses. 
 Guy V. Mead, 23 N. Y., 463. 
 
 The plaintiff for tlie purpose of showing that it was not 
 endorsed at the time claimed by the defendant, called one 
 Ingersoll as a witness, who testified, on direct examination that 
 he saw the note on April 1st 1848 ; that it then had but one 
 endorsement ; that he cast the interest on the note for George 
 Sharts, and that he had " the cast " before him on the original 
 paper while testifying. 
 
 The paper contained a statement of the first endorsement of 
 $90, January 20th, 1846, and the interest up to April 1st, 1848. 
 
 Upon cross-examination he said " independent of the writing 
 I have no recollection of the time when said cast of interest was 
 made ; but from an examination thereof I have no doubt the 
 statement therein is accurate, and the $40 endorsement was not 
 on the note when said computation was made." 
 
 Plaintiff offered to read the paper in evidence to sustain his 
 position that the endorsement of the $40 was not on the note in 
 1848. 
 
 Defendant objected ; objection sustained ; evidence excluded 
 and plaintiff excepted. 
 
 The Supreme Court at General Term directed judgment for 
 defendant on the verdict, the majority of the judges being of 
 opinion that a memorandum to be received in evidence of a 
 fact, instead of the recollection of the witness, who made it, 
 must show the existence of the fact sought to be established. 
 
 The Court of Appeals reversed the judgment. 
 
 Denio, J. Formerly, I think, it was the doctrine of the 
 courts of this State that such a paper could not be given in 
 evidence as an independent piece of testimony. The rule was, 
 that it might be referred to by a witness, to refresh his memory, 
 but he must then swear to the truth of the facts, or his state- 
 ment would not be evidence. (Lawrence v. Barker, 5 Wend., 
 301.) The doctrine was so stated by the Chancellor, in the 
 Court of Errors, in Feeter v. Heath (11 Wend., 485). But the 
 subject has been re-examined since these cases were decided, 
 and a different rule now prevails. In Merrill v. The Ithaca and 
 Owego Eailroad Company (16 Wend., 699), Judge Cowen ex- 
 amined the cases upon this rule of evidence at great length, and 
 
V. Aiding : and Memoranda. (4) Memo, of Forgotten Fact. 437 
 Guy V. Mead, 33 N. Y., 463. 
 
 his conclusion was, that original entries might be read in 
 evidence, though the witness had forgotten the fact attested by 
 them ; but he said that, in this state, the rule was restricted to 
 entries made by a person in the course of his business. He 
 seemed to consider that qualification peculiar to this state. In 
 the Bank of Monroe v. Culver, (2 Hill, 531) the rule is laid 
 down with that limitation, and applied to the case of entries 
 made by clerks in a bank in the regular course of their duties. 
 In Halsey v. Sinsebaugh (15 N. T., 485), the question — 
 whether a memorandum, made at or about the time when the 
 event or transaction mentioned in it took place, and where the 
 autlior swears that he knows it to have been correct when made, 
 can be read to the jury in connection with the oral testimony of 
 the witness ; or whether the evidence is confined to what the 
 witness is able to recollect after refreshing his memory by 
 referring to the memorandum — came up for decision in this 
 court. The memorandum referred to was the minutes of 
 testimony taken by the counsel upon a former trial of the cause ; 
 the matter to be proved being what a witness had sworn to on 
 that trial ; and it was held to be admissible. The paper did not 
 fall within the rule as an entry made in the course of business, 
 like the memoranda and entries made by clerks in banks and 
 the like ; and it was not placed on that footing in the opinion 
 of the court. On the contrary. Judge Selden, by whom the 
 opinion was prepared, took pains to say that he did not consider 
 that the case of such a memorandum as the one then in question 
 was governed by any peculiar rule, but that the general question 
 was presented, whether a memorandum, that is, any memorandum, 
 made and sworn to in the matter stated, would be admissible. 
 The whole of the reasoning of the opinion, and the cases relied 
 on, sustain the position as a general one, applicable to every 
 species of memorandum, and are not restricted to the routine 
 entries referred to. 
 
 I am, therefore, of opinion that the qualification, formerly 
 considered as annexed to the rule, has been abolished ; and 
 although my reluctance to depart from decisions upon practical 
 questions,, which have been long acted upon, would not have 
 permitted me to propose such a change as was made in this 
 
438 Abbott's Select Oases on Examining Witnesses. 
 
 * Guy V. Mead, 33 N. Y., 463. 
 
 instance, I am convinced that the former doctrine was based 
 upon a misunderstanding of some earlier adjudications, and that 
 the principle now established is, at least, equally conducive to 
 the elucidation of truth, which should be the object of all rules 
 of evidence. In Eussell v. The Hudson Eiver Eailroad Com- 
 pany (17 N. Y., 134), the memorandum which had been received 
 in evidence was a written statement made by a surgeon as to the 
 character of the injuries which the plaintiff had sustained by 
 the alleged negligence of the defendants, and of the remedies 
 applied, made at the time the witness was called on to attend 
 him. It was not doubted, in the opinion of the court, that the 
 memorandum was one to which the rule applied ; but a new trial 
 was granted, because it did not appear but that the witness had 
 a perfect recollection of all the matters sought to be proved by 
 the memorandum. 
 
 I have not intended to be influenced in my conclusion as to 
 the true rule of evidence by the peculiar aspect of this case; 
 but I cannot avoid remarking, that if this computation of 
 interest was actually made, as stated, in April, 1848, for the 
 purpose of ascertaining the amount due on the note, the 
 memorandum of it then made is one of the most satisfactory 
 pieces of evidence which could be adduced as to the existence of 
 the indorsement. The parties to the alleged transaction had 
 sworn differently upon the point, and several alleged declara- 
 tions on one side or the other had been given in evidence. If 
 this paper was made at the time and for the purpose claimed, it 
 furnishes written evidence of the most authentic character, made 
 when the party who now seeks to produce it to the jury had no 
 interest in fabricating it. To my mind it would be more 
 persuasive evidence than any amount of oral statement verified 
 by the oaths of the parties interested, or of verbal declarations 
 proved to have been made by those parties. 
 
 Judgment reversed. 
 
Y. Aidiflg : and Memoranda. (4) Memo, of Forgotten Fact. 439 
 Maxwell v. Wilkinson, 113 U. S., 657. 
 
 MAXWELL V. WILKINSON. 
 
 United States Supreme Court, 1885. 
 
 [Reported in 113 U. S., 657.] 
 
 A memorandum made from other memoranda since destroyed, and a long 
 tinre — in this case, twenty months — after a transaction, of which the 
 one, who made the memorandum, now testifies that he has no recol- 
 lection, but which he knows took place because so stated in the 
 memorandum, and because his habit was never to sign statements 
 unless true, cannot be read in aid of his testimony. 
 
 Plaintiffs sued to recover back duties paid by them on imported 
 iron on October 23, 1852. 
 
 The main question was whether the duties had been paid 
 Tinder protest. 
 
 The plaintiffs introduced evidence tending to show that the 
 entry of the goods, to which any protest would have been at- 
 tached, could not be found at the custom house, and called 
 William S. Doughty, a clerk of their consignees, who produced 
 a copy of protest, purporting to be dated October 18, 1852, and 
 to be signed by the consignees, and having upon it, these two 
 memoranda : First, in pencil, " Handed in on the 28d day 
 of October, 1852." Second, in ink, " The above protest was 
 handed to the collector the 23d day of October, 1852. New 
 York, June 16th, 1854. Wm. S. Doughty." 
 
 Doughty, on direct examination, testified that he handed the 
 original, of which this was a copy, to the collector on October 
 23, 1852. Being then cross-examined by leave of the court, he 
 testified that the memorandum in ink was written by him on 
 June 16, 1854 ; that he had previously made the memorandum 
 in pencil so as to be able to make a statement in ink at some 
 future time; that he did not know when he made the pencil me- 
 morandum ; that he could not tell, otherwise than as his memory 
 was refreshed by the memorandum; that he ever filed a protest 
 with the collector ; that he had no recollection now that he filed 
 such a protest ; but that he must have done it because it was his 
 duty to do it ; and that he was willing to swear positively that he 
 did so, because he had signed a statement to that effect, and his 
 
440 Abbott's Select Cases on Examining "Witnesse's. 
 
 Maxwell v. Wilkinson, 113 U. S., 657. 
 
 habit was never to sign a statement unless it was true. The 
 witness then, by permission of the court, voluntarily stated as 
 follows : " The fact that the statement was made two years 
 after was when there was sufficient data for me unquestionably 
 to make that statement at the time two years afterwards. Pro- 
 bably there were memoranda which were destroyed long ago." 
 
 The defendant's counsel, thereupon, objected to the admission 
 in evidence of the alleged copy of the protest, " upon the 
 ground that the witness testifies that he has no recollection of the 
 fact of the service of the original upon the collector at or prior 
 to the time of the payment in question, and that the memoran- 
 dum referred to by the witness, as the basis of his willingness to 
 swear to the fact without any recollection, was not made for 
 nearly two years after the transaction to which it relates, and 
 that the data upon which the witness made the memorandujn to 
 which he refers are not produced or shown." 
 
 The court overruled the objection and admitted the copy of 
 the protest in evidence. 
 
 In the United States Circuit Court a verdict was returned for 
 the plaintiffs and judgment entered. 
 
 The United States Supreme Court reversed the judgment. 
 
 Gray, J. [ after stating the facts'] : " The witness, according 
 to his own testimony, had no recollection, either independently 
 of the memoranda, or assisted by them, that he had filed a pro- 
 test with the collector ; did not know when he made the memo- 
 randum in pencil ; made the memorandum in ink twenty months 
 after the transaction, from the memorandum in pencil, and 
 probably other memoranda, since destroyed and not produced, 
 nor their contents proved ; and his testimony that he did file 
 the protest was based exclusively upon his having signed a state- 
 ment to that effect twenty months afterwards, and upon his habit 
 never to sign a statement unless it was true. 
 
 Memoranda are not competent evidence by reason of having 
 been made in the regular course of business, unless contempor- 
 aneous with the transaction to which they relate. NichoUs v. 
 Webb, 8 Wheat., 326, 337 ; Insurance Co. v. Weide, 9 Wall., 
 67T and 14 Wall., 3T5 ; Chaffee v. United States, 18 Wall., 516. 
 
V. Aiding : and Memorai\da. (4) Memo, of Forgotten Fact. 441 
 Maxwell v. Wilkinson, 113 XT. S., 657. 
 
 It is well settled that memoranda are inadmissible to refresh the 
 memory of a witness unless reduced to writing at or shortly after 
 the time of the transaction, and while it must have been fresh in 
 his memory. The memorandum must have been " presently 
 committed to writing," Lord Holt in Sandwell v. Sandwell, 
 Comb., 445 ; s. c. Holt, 295 ; " while the occurrences mentioned 
 in it were recent and fresh in his recollection," Lord Ellen- 
 borough in Burrough V. Martin, 2 Camp., 112; "written con- 
 temporaneously with the transaction," Chief Justice Tindal in 
 Steinkeller v. jSTewton, 9 Car. & P., 313 ; or " contemporaneously 
 or nearly so with the facts deposed to," Chief Justice Wilde 
 (afterwards Lord Chancellor Truro), in Whitfield v. Aland, 2r 
 Car. & K., 1015. See also Burton v. Plummer, 2 Ad. & EL, 
 341 ; s. c. 4 Nev. & Man., 315 ; Wood v. Cooper, 1 Car. & K., 
 645 ; Morrison v. Chapin, 9Y Mass.^ 72, Y7 ; Spring Garden Ins. 
 Co. V. Evans, 15 Maryland, 54. 
 
 The reasons for limiting the time within which the memoran- 
 dum must have been made are, to say the least, quite as strong 
 when the witness, after reading it, has no recollection of the 
 facts stated in it, but testifies to the truth of those facts only 
 because of his confidence that he must have known them to be 
 true when he signed the memorandum. Halsey v. Sinsebaugh, 
 15 K Y., 485 ; Marcly v. Shults, 29 N. Y., 346, 355 ; State v. 
 Eawls, 2 ISTott & McCord, 331 ; O'lSTeill v. Walton, 1 Eich., 234. 
 
 In any view of the case, therefore, the copy of the protest was. 
 erroneously admitted, because the memorandum in ink, which 
 was the only one on which the witness relied, was made long 
 after the transaction which it purported to state ; and its admis- 
 sion requires that the judgment be reversed, and a new trial 
 ordered. 
 
 Judgment reversed. 
 
 Note.— In Downs v. New York Central R. R. Co., 47 N- Y., 83, an action 
 for injury to plaintiff, while a passenger on the defendant's road, alleged 
 to have been caused by the defendant's negligence, the defendant's coun- 
 sel offered in evidence a newspaper account of the transaction, prepared 
 from accounts received on the day and at the place of the accident. The 
 author testified that he talked with the plaintiff and others about it, and 
 supposed he got his information from them. 
 
 He had no distinct recollection of what was. said to him,, but knew that 
 
442 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Use of Memoranda as Evidence. 
 
 what he published then were the facts he had got; from whom, principally, 
 he could not say. 
 
 After refreshing his recollection by reading the article, he was unable 
 to testify that he received the statement from the plaintiff, or from whom 
 he did receive it. 
 
 Held, not error to exclude the article, Allen, J., saying on this point : 
 " The article did not purport to be, and was not, in truth, a statement of a 
 conversation with, or declarations made by, the plaintiff, and was not a 
 memorandum made by the witness of a particular conversation at or near 
 the time it was had, and which the witness could state under oath was a 
 correct memorandum of such conversation. It was not, therefore, com- 
 petent as evidence of a statement made by the plaintiff, material to the 
 issue, or inconsistent with his testimony on the trial. The printed paper 
 was not the original memorandum made by the witness ; neither did he, 
 nor could he, testify that the article, or the copy from which it was 
 printed, was a correct memorandum or reproduction of the statement of 
 the plaintiff, and it is not within the principle of a;ny of the cases relied 
 upon by the defendant. In all the cases, the original memoranda have 
 been produced, and the persons by whom they were made have vouched 
 for their correctness. (Guy v. Mead, 22 N. Y., 462 ; Halsey v. Sinsebaugh, 
 15 N. Y., 485 ; Russell v. Hudson R. R. Co., 17 id., 134.) The article was 
 but a summary of the facts collected by the writer from all sources, or 
 rather of his understanding of the facts." 
 
 NOTES OF CASES ON USE OF MEMOEANDA AS 
 EVIDENCE IN CONNECTION WITH WIT- 
 NESS' TESTIMONY. 
 
 Alabama: Battiest;. Tallman, 1892, 11 Southern Rep., 247 (it is error to 
 receive in evidence a memorandum of a census enumerator to prove a per- 
 son's statement as to the age of his daughter, when it was not first shown 
 that the enumerator after examining the memorandum could not testify 
 from his recollection). Illinois: .Tones v. Smith, 37 111. App., 169 (time 
 tickets signed by a witness, who verifies their accuracy, may be admitted 
 in evidence where the witness testifies that they are necessary to enable 
 him to recollect the matters sought to be proved thereby). Hayden v. 
 Hoxie, 27 id., 538 (unless the necessity for the use of a memorandum is 
 made to appear bj' the witness' own testimony, it is not error to refuse to 
 admit it in evidence). Maryland: Owens v. State, 67 Md., 807 ; s. c. 10 
 Atlantic Rep., 210 (where a witness testifies to the truth of a memorandum 
 when made, it is not error to admit it in evidence in confirmation of what 
 the witness states from memory). Massachusetts: Miller v. Shay, 145 
 Mass., 162; s. c. 13 Northeast. Rep., 468 (where items are numerous, plaint- 
 iff, as a witness, may use his account book in aid of his memory ; and 
 where he so uses it, it is not prejudicial error to permit the book to go to 
 
Y. Aiding ; and Memoranda. (4) Memo, of Forgotten Fact. 443 
 
 Note on Use of Memoranda as Evidence. 
 
 the jury). Michigan: Passmore v. Passmore, 60 Mich., 463; s. c. 27 
 Northwest. Rep., 463 (it is not error to allow a memorandum book by 
 which a witness fixes dates to be submitted to the jury). Minnesota: 
 National Bank of Commerce v. Meader, 40 Minn., 325 ; s. c. 41 Northwest. 
 Eep., 1048 (a memorandum of a witness, who has already testified from his 
 recollection as to the facts to which it refers, is inadmissible in evidence). 
 Neiv Hampshire : Pinkham v. Benton, 62 N. H., 687 (a memorandum is 
 admissible in evidence where the witness verifies it as true when made, 
 has since forgotten the transaction to which it refers, and is unable to 
 recall it after examining the memorandum). Neiv Jersey: North Hudson 
 County E. Co. v. May, 48 N. J. L., 401; s. c. 4 Central Rep., 81 (it was held 
 not error to refuse to allow a written statement as to an accident made by 
 a conductor the da}' after it occurred, to be admitted in evidence ; as such 
 statement was not under oath, and if it was untrue the conductor could 
 not be punished for perjury). New York: National Ulster Co. Bk. v. 
 Madden, 114 N. Y., 380 (it is error to admit a memorandum in evidence 
 where it is not shown that the witness has forgotten the circumstance) ; 
 s. p. Voisin v. Commercial Mut. las. Co., 67 Hun, 351 ; s. c. 51 State Eep., 
 635 ; 23 N. Y. Supp., 848. Carradine v. Hothchkiss, 130 N. Y., 608 ; s. c. 
 24 Northeast. Rep., 1020 (it is not error to exclude a memorandum of a 
 conversation when offered as evidence in chief, where the party who made 
 it, has already testified as to what was said) ; s. p. Cunard v. Manhattan 
 E. Co., 1 Misc. R., 151 ; s. c. 48 State Rep., 755; 20 N. Y. Supp., 724. 
 Cunningham v. Massena Springs, etc., R. Co., 63 Hun, 489; s. c. 44 State 
 Eep., 723; 18 N. Y. Supp., 600 (it is not error to receive in evidence a 
 memorandum of the measurements of work made while the work was 
 being done, where the witness has no independent memory as to such 
 measurements). Oregon: Friendly v. Lee, 20 Oreg., 203 ; s. c. 25 Pacific 
 Kep., 396 (where a witness has a distinct recollection of an occurrence 
 there is no error in refusing to permit his memorandum thereof to be read 
 to the jury). Pennsylvania: Du Bois City Nat. Bk. v. First Nat. Bk. of 
 Williamsport, 114 Pa. St., 1 (a diary by which a witness fixes a date need 
 not be produced for inspection by the jury). United States : Glaspie ?;. 
 Keator, 8th U. S., Cir. Ct. App., 1893, 56 Fed. Eep., 203 (a memorandum 
 made by two persons in estimating the quantity of timber from examina- 
 tion only, and not from actual measurement may be referred to by either 
 to refresh his memory and when so used it is admissible in evidence in 
 connection with his testimony) ; s. p. Continental Ins. Co. v. Insurance Co. 
 of Pa., 1 U. S, App., 301; s. c. 2 Cir. Ct. App., 535; 51 Fed. Eep., 884. Ver- 
 mont: Bates V. Wager, 64 Vt., 326 ; s. c. 24 Atlantic Rep., 745 (a witness' 
 memorandum is admissible in evidence in connection with his testimony 
 to explain and elucidate it, though such memorandum is not admissible 
 as independent evidence); s. p. Bates v. Sabin, 64 Vt, 511; s. c. 34 
 Atlantic Eep., 1013. Wisconsin: Curran v. Witter, 68 Wis., 16; s. c. 81 
 Northwest. Eep., 705 (it is error to exclude the testimony of the person 
 who made a memorandum as to its correctness, where he does not dis- 
 tinctly remember the transaction, and to refuse to admit the memoran- 
 dum in evidence). 
 
444 Abbott's Select Cases on Examining Witnesses. 
 Ocean Ntl. Bank v. Carll, 55 N. Y., 440 ; 9 Hun, 339. 
 
 OCEAN NATIONAL BANK OF THE CITY OF NEW 
 YOEK V. CAELL. 
 
 JVew York Court of Appeals, 1874- 
 [Reported in 55 N. Y., 440 ; again, in Supreme Court, 1876, 9 Hun, 339.] 
 
 Entries made in the usual course of duty by a person still living and 
 within the state, are not receivable without other evidence of their 
 truthfulness, such as the testimony of a witness who had personal 
 knowledge of the transaction. 
 
 Entries made by a bank clerk in the usual course of his duty are admis- 
 sible upon showing that he is dead. 
 
 Action on a promissory note for $500, made by defendant, 
 payable to the order of F. H. Holmes. 
 
 The defense was that the note was given as an accommodation 
 note, without consideration, and diverted by the payee. The 
 further facts material to the ruling appear in the opinion. 
 
 At Circuit, judgment was entered for plaintiff on a verdict. 
 
 The Supreme Court at General Term affirmed the judgment 
 without opinion. 
 
 The Court of Ajypeals reversed the jiidgment. 
 
 Church, Ch. J. The only point presented for the considera- 
 tion of this court is, that the plaintiff failed to prove that it was 
 a hona fide holder for value of the note upon which the action 
 was brought. The possession of the note was sufficient prima 
 facie to establish this, but when it was proved that the note was 
 given without consideration, and fraudently put in circulation, it 
 was incumbent upon the plaintiff to prove the fact (45 N. Y., 762). 
 It was sought to prove the fact by the president and discount 
 clerk, but these officials did not occupy their respective positions 
 at the time the note was discounted, and could not, therefore, 
 speak from personal knowledge as to some of the facts. Their 
 evidence proved that the note was in the possession of the bank 
 before maturity, that the usual course of business upon discount- 
 ing a note was for the discount clerk to draw a check upon the 
 president for the amount of the note, less the discount, and for 
 
V. Aiding: and Memoranda. (5) Memo, in Course of Duty. 445 
 
 Ocean Ntl. Bank v. Carll, 55 N. Y., 440 ; 9 Hun, 239. 
 
 the president and person procuring the discount to indorse it. 
 Such a check was produced bearing even date with the note for 
 $Y92. If this check had corresponded with the amount of the 
 note (8500), less the discount, the evidence might have been 
 sufficient to prove the discount, but being for a larger amount 
 it required further proof to show that tlie avails of this note 
 were included in it. 
 
 As the officers of the bank could not speak from personal 
 knowledge, it was necessary to resort to the entries made by the 
 discount clerk. These could only be proved by the clerk 
 making them, as it appeared he was alive and within the state. 
 This rule of authenticating entries of this character has never 
 been departed from in this state. (8 N. Y. [4 Seld J, 170, 2 
 Hill, 531, 537.)* 
 
 It is true that the entries were not formally introduced in 
 evidence, but the witnesses were allowed to state substantially 
 what they were and the evidence derived from them was 
 effective to prove the fact. The president and clerk stated that 
 this note and a note for $300 were discounted and that the check 
 of $792 was given for the avails, and the amount j)aid by the 
 bank ; but they made the statement from the entries and papers 
 and not from personal knowledge, and this use of the entries 
 without proper verification was error. The rule is a wise one, 
 and we are not at liberty to overlook a departure from it, even 
 if its application is unimportant in this case. The precedent 
 would be injurious. 
 
 As the General Term gave no opinion we are not advised 
 upon what ground that court affirmed the judgment. The 
 judgment must be reversed and a new trial granted; costs to 
 abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 Upon the new trial, plaintiff produced a discount register of 
 the bank used at the time of the alleged discounting of the note 
 in suit, which contained entries tending to show that the note was 
 
 *Brewster v. Doane, 3 Hill, 537, held that death must be shown. Absence 
 from the jurisdiction is not enough. The contrary is held in some states. 
 
446 Abbott's Select Cases on Examining "Witnesses. 
 
 Ocean Ntl. Bank v. Carll, 55 N. Y., 440 ; 9 Hun, 239. 
 
 discounted by the bank on tbe 31st day of July, 1869 ; and 
 proved that at that time one H. S. Murray was discount clerk of 
 the bank ; that he was since deceased ; that it was his business 
 to make the entries, and, in short, that they were made in the 
 usual course of business, and were in the handwriting of the 
 deceased clerk. The entries were then ofEered in evidence. 
 The court refused to admit them until it should be shown that 
 the entries were correct. The plaintiff duly excepted. 
 
 At Cirouit, judgment was entered for defendant upon a 
 verdict directed by the court. 
 
 The Oeneral Term of the Supreme Court reversed the 
 judgment. 
 
 Davis, P. J. \after stating the facts] : It was then shown by 
 a witness who was, at the time of the alleged discount, the 
 cashier of the bank, and afterwards its president, in substance, 
 that at that time, when a note was discounted, the only persons 
 who had anything to do with it were the president and the 
 discount clerk, and all the president would do would be to mark 
 it with the letter " A ; " that the discount clerk then would enter 
 it upon the discount register, and either give credit, or deliver a 
 check for the amount. It was proved that the note in suit was 
 marked with the letter " A " by the president of the bank, and 
 that that was the evidence upon which the discount clerk acted 
 in making the discount entries. 
 
 The possession of the note by the bank before its maturity 
 was also proved. That fact, however, must be regarded as 
 admitted by the pleadings. The plaintiffs again ofEered the 
 entries in the discount book, in evidence, and they were rejected 
 by the court. There is nothing in the decision in this case when 
 before the Court of Appeals, as reported in 55 !New York, 440, 
 to justify the rejection of the entries. At that time, as is stated 
 in the opinion of the Court of Appeals, it appeared that Murray, 
 the clerk, was alive, and within the state, and it was held that the 
 entries made by him could only be proved by the clerk making 
 them, as it appeared he was alive and within the state. The case is 
 now entirely changed by proof of the fact of the. death of the 
 
Y. Aiding: and Memoranda. (5) Memo, in Course of Duty. MY 
 
 Ocean Ntl. Bank v. Carll, 55 N. Y., 440 ; 9 Hun, 239. 
 
 clerk, at the time of tlie last trial. " The rule is," says Bronson, 
 J., in Brewster v. Doane (2 Hill, oSY), " that entries and memo- 
 randa made in the usual course of business by notaries, clerks 
 and other persons may be received in evidence after the death 
 of the person who made them. (Halliday v. Martinet, 20 
 Johns., 168 ; Butler v. Wright, 2 Wend., 369 ; Hart v. Wilson, 
 id., 513; Nichols v. Goldsmith, 7 id., 160; Cowen & Hill's. 
 Notes to Phil. Ev., 674, 676.) And in Sheldon v. Benham (4 
 Hill, 129, 131), where the entries made by the teller of a bank 
 were offered in evidence, the same learned justice says: "It is 
 enough that he acted on this occasion in the usual course of his 
 employment, and being dead, the entries which he made at the 
 time were properly received in evidence. The rule for admit- 
 ting them is not confined to entries made by public officers."' 
 (Welsh V. Barrett, 15 Mass., 380.) Where there is any reason 
 for doubt, it is for the jury to say how much the entries prove.. 
 This rule is very distinctly recognized by the Court of Appeals 
 in the decision of the case above cited. 
 
 It was, therefore, we think, clearly error for the court below 
 to reject the entries There were, we think, several other errors 
 in the progress of the trial, in the exclusion and striking out of 
 evidence, and in the refusal of the court to submit the case upon 
 any of the questions to the jury; but it is not necessary to 
 consider them in detail. 
 
 The judgment must be reversed and a new trial granted, with 
 costs to abide event. 
 
 Daniels, J., concurred ; Beady, J., concurred in the result. . 
 
 Judgment reversed ; new trial ordered ; costs to abide event. 
 
448 Abbott's Select Cases on Examining "Witnesses. 
 Mayor, etc., of N. Y. v. Sec. Ave. R. R. Co., -103 N. Y., 573. 
 
 MAYOR, ETC., OF N. Y., v. SECOND AYE. K. E. CO. 
 Wew Yorh Court of Appeals, 1886. 
 [Reported in 103 N. Y., 573.] 
 
 In an action to recover the cost of work, the number of days' labor 
 performed being material, a time book kept by a foreman, consisting 
 ■of entries made not upon his own knowledge of the facts but from 
 the reports of gang foremen — Held, admissible in evidence, upon the 
 "testimony of the foreman keeping it, that he had correctly entered 
 the facts as reported, and of the gang foremen to the effect that they 
 had correctly reported the facts to the foreman as they existed to 
 their knowledge at the time of making them to the foreman. 
 
 An ultimate fact may be proved by showing by a witness that he once 
 knew the details, and communicated them to another person at the 
 time, but has now forgotten them ; and supplementing this testimony 
 by that of the person receiving the communication to the effect that 
 at that time he made an entry of the facts communicated, and by 
 producing, as evidence the writing so made. 
 
 It seems that the entry must have been made in the ordinary course of 
 business, and that the rule should not be extended, so as to admit a 
 mere private memorandum, not made in pursuance of any duty 
 owing by the person making it, or when made upon information 
 derived from another who made the communication casually and 
 voluntarily, and not under the sanction of duty or other obligation. 
 
 DefendaBts had covenanted with plaintiffs to have and keep 
 in repair the streets in and about the rails of defendant's track, 
 which however they failed to do ; and this action was brought to 
 recover the expense incurred by plaintiffs in having the work 
 ■done. 
 
 The action was tried before Mr. Justice Yan Yorst, and a 
 
 John B. Wilt, a foreman in the department of Public Works at 
 the time the work was done, testified that he-had charge of the 
 work, " my duties were to see that the men did the work and 
 that they were supplied with the material ; I was not present at 
 the work all day : I called in the morning and in the afternoon ; 
 had the men's names in a time book ; I marked the time when I 
 iound them there. 
 
 Q. Are those the books ? 
 
 A. Yes, sir." 
 
Y. Aiding: and Memoranda. (5) Memo, in Course of Duty. 449 
 Mayor, etc., of N. Y. v. Sec. Ave. R. R. Co., 102 N. Y., 573. 
 
 Defendants counsel objects to the reception of the books. 
 
 The Court : " The logical way will be to show what was the 
 work that was clone there." 
 
 The witness then described the work, adding: "they [the 
 men] worked during these hours [eight hours a day] so far as 
 reported to me by the head pavers when I went around in the 
 morning and the afternoon. * * * I was there sometimes 
 ten minutes, sometimes half an hour ■* * * I marked the 
 men's names as I saw them." * * * 
 
 The testimony of three gang foremen was then given : that 
 they were such in this work ; knew the witness Wilt, who took the 
 time of their respective gangs twice each day, morning and 
 afternoon. 
 
 Q. Assuming such a thing as this to have occurred, — that after 
 the first roll call any one or more of your men had ceased work 
 and not reported till the time of the second roll call, — is that a 
 circumstance which you would have reported to Mr. Wilt ? 
 
 A. Always did, sir. 
 
 It was further testified that they made a report to the time- 
 keeper [Wilt] when he came around, of the quantity of stone 
 used: and that the amounts were correctly given to him. 
 
 The time book was again offered in evidence. 
 
 Defendant objected that Wilt had no personal knowledge of 
 the facts purporting to be entered. 
 
 By the Court : Q. That is what you call a time book ? 
 
 A. Yes, sir. 
 
 Q. A book of original entries at the time ? 
 
 A. Yes, sir. 
 
 Objection overruled and book received." 
 
 In the same way the witness' report (made to his superior at 
 the time of the work) of the quantity of stone used was received. 
 
 The pay-rolls were also put in evidence. 
 
 At Circuit, judgment was entered for the plaintiff upon a 
 verdict directed by the court. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
450 Abbott's Select Cases on Examining Witnesses. 
 Mayor, etc., of N. Y. v. Sec. Ave. R. R. Co., 102 N. Y., 573. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andrews, J. [o7i the point in question] : The exception to the 
 admission of the time-book presents a question of considerable 
 practical importance. The ultimate fact sought to be proved in 
 this branch of the case, was the number of days' labor performed 
 in making the repairs. The time-book was not admissible as 
 a memorandum of facts known to Wilt and verified by hiiri. 
 His observation of the men at work was casual, and it cannot be 
 inferred that he had personal knowledge of the amount of labor 
 performed. His knowledge, from personal observation, was 
 manifestly incomplete, and the time-book was made up, mainly 
 at least, from the reports of the gang foremen. The time-book 
 was clearly not admissible upon the testimony either of the 
 gang foremen, or of Wilt, separately considered. The gang 
 foremen knew the facts they reported to Wilt to be true, but 
 they did not see the entries made, and could not verify their 
 correctness. Wilt did not make the entries upon his own 
 knowledge of the facts, but from the reports of the gang 
 foremen. Standing on his testimony alone the entries were 
 mere hearsay. But combining the testimony of Wilt and the 
 gang foremen, there was, first, original evidence that laborers 
 were employed, and that their time was correctly reported by 
 persons who had personal knowledge of the facts, and that their 
 reports were made in the ordinary course of business, and in 
 accordance with the duty of the persons making them, and in 
 point of time were contemporaneous with the transactions to 
 which the reports related ; and second, evidence by the person 
 who received the reports that he correctly entered them, as 
 reported, in the time-book, in the usual course of his business 
 and duty. It is objected that this evidence taken together, is 
 incompetent to prove the ultimate fact, and amounts to nothing 
 more than hearsay. If the witnesses are believed, there can be 
 but little moral doubt that the book is a true record of the 
 actual fact. There could be no doubt whatever, except one 
 arising from infirmity of memory or mistake, or fraud. The 
 gang foremen may by mistake or fraud, have misreported to 
 Wilt, and Wilt may either intentionally or unintentionally have 
 made entries not in accordance with the reports of the gang 
 
V. Aiding: and Memoranda. (5) Memo, in Course of Duty. 451 
 
 Mayor, etc., of N. Y. v. Seo. Ave. R. R. Co., 103 N. Y., 573. 
 
 foremen. But the possibility of mistake or fraud on tlie part of 
 witnesses exists in all eases and in respect to any kind of oral 
 evidence. The question arises, must a material, ultimate fact 
 be proved by the evidence of a witness who knew the fact and 
 can recall it, or who, having, on personal recollection of the fact 
 at the time of his examination as a witness, testifies that he 
 made, or saw made, an entry of the fact at the time, or recently 
 thereafter, which, on being produced, he can verify as the entry 
 he made or saw, and that he knew the entry to be true when 
 made, or may such ultimate fact be proved by showing by a 
 witness that he knew the facts in relation to the matter which 
 is the subject of investigation and communicated them to 
 another at the time, but had forgotten them, and supplementing 
 this testimony by that of the person receiving the communica- 
 tion to the effect that he entered at the time, the facts 
 communicated and by the production of the book or memo- 
 randum in which the entries were made. The admissibility of 
 memoranda of the first class is well settled. They are admitted 
 in connection with, and as auxiliary to, the oral evidence of the 
 witness, and this, whether the witness, on seeing the entries, 
 recalls the facts, or can only verify the entries as a true record 
 made or seen by him at, or soon after the transaction to which 
 it relates. (Halsey v. Sinsebaugh 15 N. Y. 485 ; Guy v. Mead, 
 22 id., 462.) 
 
 The other branch of the inquiry has not been very distinctly 
 adjudicated in this state, although the admissibility of entries 
 made under circumstances like those in this case was apparently 
 approved in Payne v. Hodge (71 N. Y., 598). We are of 
 opinion that the rule as to the admissibility of memoranda may 
 properly be extended so as to embrace the case before us. The 
 case is of an account kept in the ordinary course of business, of 
 laborers employed in the prosecution of work, based upon daily 
 reports of foremen who had charge of the men, and who, in 
 accordance with their duty, reported the time to another 
 subordinate of the same common master, but of a higher grade, 
 who, in time, also in accordance with his duty, entered the time 
 as reported. We think entries so made with the evidence of 
 the foremen that they made true reports, and of the person who 
 
452 Abbott's Select Cases on Examining- Witnesses. 
 
 Mayor, etc., of N. Y. v. Sec. Ave. R. R. Co., 103 N. Y., 573. 
 
 made the entries, that he correctly entered them, are admissible. 
 It is substantially by this method of accounts, that business 
 transactions in numerous cases are authenticated, and business 
 could not be carried on and accounts kept in many cases, without 
 great inconvenience, unless this method of keeping and proving 
 accounts is sanctioned. In a business where many laborers are 
 employed, the accounts, must, in most cases, of necessity, be kept 
 by a person not personally cognizant of the facts, and from 
 reports made by others. The person in charge of the laborers 
 knows the fact, but he may not have the skill or, for other 
 reasons, it may be inconvenient that he should keep the account. 
 It may be assumed that a system of accounts based upon 
 substantially the same methods as the accounts in this case, is in 
 accordance with the usages of business. In admitting an 
 account verified, as was the account here, there is little danger of 
 mistake, and the admission of such an account as legal evidence 
 is often necessary to prevent a failure of justice. "We are of 
 opinion, hovever, that it is a proper qualification of the rule 
 admitting such evidence, that the account must have been made 
 in the ordinary course of business, and that it should not be 
 extended so as to admit a mere private memorandum, not made 
 in pursuance of any duty owing by the person making it, or 
 when made upon information derived from another who made 
 the communication casually and voluntarily, and not under the 
 sanction of duty or other obligation. The case before us is 
 within the qualification suggested. In Peck v. Yalentine (94 
 N. Y., 569), the memorandum there admitted was not an 
 original memorandum but a copy of a private memorandum 
 made by an employe of the plaintifE for his own purposes^ 
 and not in the course of his duty, or in the ordinary course 
 of business. The original memorandum was delivered by the 
 one who made it, to the plaintiff, who lost it, but testified 
 that the paper produced and received in evidence was a copy. 
 The person who made the original memorandum was unable to , 
 verify the copy. The court held that the copy was improperly 
 admitted in evidence. The decision in Peck v. Yalentine rests 
 upon quite different facts than those in this case. 
 
 In respect to the admission of the account of material, we 
 
V. Aiding : and Memoranda. (5) Memo, in Course of Duty. 453 
 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 think that part of the account based upon the reports of Madden 
 was admissible on the same grounds upon which we have 
 justified the admission of the time-book. Madden, in substance, 
 testified that he knew the facts and properly reported them, and 
 Wilt testified that he entered them as reported. The part of 
 the account of materials, the items of which were furnished by 
 Coughlan, was not strictly admissible. Coughlan does not 
 appear to have had personal knowledge of the quantity of stone 
 delivered on his part of the work, but took the count of the 
 carman, and his reports to Wilt were based upon the reports of 
 the carman to him. The carman was not called, and the evidence 
 of Wilt and Coughlan was mere hearsay. If the attention of 
 the court had been called by the defendant to this part of the 
 account, and objection had been specifically taken to the items 
 entered upon the reports of Coughlan, the objection would, we 
 think, have been valid. But the objection was a general objection 
 to the whole account. It was clearly admissible as to the items 
 reported by Madden, and, we think the general objection and 
 exception is not available to raise the question as to the 
 admissibility of the items entered on the report of Coughlan, 
 independently of the others. The whole amount of the 
 materials embraced in the recovery was small, and, we think, no 
 injustice will be done by affirming the judgment. 
 
 The judgment should, therefore, be afiirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 CHUECHMAN v. LEWIS. 
 
 Neio York Court of Appeals, 1866. 
 
 [Reported in 34 N. Y., 444.] 
 
 What evidence is insuiiicient to allow a memorandum of a transaction to 
 be received. 
 
 Owen Churchman sued Lewis and Beardsley, upon a draft for 
 $5,000, drawn by defendants in favor of Frederick C. Mills, 
 upon Suydam, Sage & Co. 
 
454 Abbott's Select Cases on Examih-ing "Witnesses. 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 The defense was usury ; that the draft was drawn for the ac- 
 comodation of Suydam, Sage & Co., and purchased by the plaint- 
 iff, of Ward & Co., as agents of the drawees, at a greater rate of 
 discount than seven per cent, per annum. 
 
 Upon the trial, the defendants, to establish usury, called the 
 three members of the firm of Ward and Co. and their clerk, 
 Joseph H. Taylor, as witnesses and each one testified that he 
 could not identify the paper [the draft] in question, and did n ot 
 know that it had ever passed through the hands of their firm, 
 and they knew nothing about - the rate of its discount. They 
 further stated, as their general course of business that, when 
 paper was sold, a statement was made to one of the clerks, who 
 gave a copy to the party for whom the draft was sold, and made 
 a memorandum in the books. 
 
 The following statement in the handwriting of Mr. Taylor, 
 the clerk, was read in evidence by the defendants against objec- 
 tion: 
 
 " Ward & Co. 
 
 Suydam, Sage & Co $5,000 00 122 days, $101 67 
 
 Less interest 12J ; com., J. . 215 84 101 67 
 
 Check herewith $4,784 16 $203 34 
 
 i com 12 50 
 
 $215 84 
 Lewis & Beaedslet, 
 
 Messes Sutdam, Sage & Co. 
 May 24th, 1850." 
 
 The Supreme Court at Special Term entered judgment for 
 defendant. 
 
 The Supreme Court at General Term affirmed the judgment 
 without opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Hunt, J. [after stating facts'] : This was supposed to have 
 been a cppy from the books of Ward & Co. It was not, how- 
 
"V. Aiding : and 2Ie)noranda. (5) Memo, in Course of Duty. -±55 
 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 ever, proved to have been such, the witness Taylor, testifying 
 that he had not compared it with the entry in the books ; that 
 it was in his handwriting, but he did not remember from what 
 the memorandum was taken. 
 
 The defendants claimed that this entry showed that the draft 
 referred to in the entry was discounted at the rate of twelve per 
 cent, per annum and that the holders received only $4,784.16 for 
 their draft of $5,000, having only 122 days to run ; and that the 
 draft in suit was the one referred to in the entry. Although the 
 entry is, in some respects, unintelligible without explanation, 
 and although the plaintiff's name is not mentioned in it, it did 
 tend strongly to make that proof, and the jury must have con- 
 sidered it as satisfactory, as there was no other evidence to estab- 
 lish the usury. 
 
 On what prinicple was it competent ? It was the written 
 hearsay statement of Joseph li. Taylor, that the draft in the 
 statement referred to was sold at the discount therein stated. 
 Taylor testifies that he did not himself make the transaction of 
 the discount of the draft, and that he had no personal knowl- 
 edge of it ; that he did not know who told him to make the 
 entry, and that he had no knowledge whatever of the facts, 
 aside from the memorandum. He supposed the entry to have 
 been made by directions from one of the firm ; that such was 
 the general instructions of the firm. 
 
 The evidence was incompetent. Suppose that either member 
 of the firm or all of them had stated to him orally the precise 
 facts set forth in the entry. "Would his recital of such statement 
 have been evidence against the plaintiff? Would it be com- 
 petent, to go still farther, and to hold that Taylor's statement 
 (not his testimony) of the Ward's statement to him would be 
 competent 1 I am aware of no principle which would justify Mr. 
 Taylor's evidence of such statement if he distinctly remembered 
 it, much less his written recital of it, when at the same time he 
 could not testify that he had ever been so informed by them. 
 
 The statement gains no additional competency by having been 
 written in the books of Ward & Co. The parties acting in the 
 transaction were all living and competent to testify, and all did 
 testify on the trial. The statement was not within the excepted 
 
456 Abbott's Select Cases on Examining Witnesses. 
 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 class of subjects wMch may be proved by hearsay, such as birth, 
 age, pedigree, etc.; nor was it a part of ihe res gestm, a,s, the 
 statement is expressly stated to be a subsequent record of the 
 supposed transaction ; nor could it come under the head of a 
 public document or an official certiiicate. It was a pure simple 
 hearsay statement, made without the knowledge of the plaintiff, 
 by parties not acting for him, and in a business in which he had 
 no interest or control, and then read from an uncompared copy 
 of such statement, without explaining the absence of the original, 
 or more properly, in defiance pf the presence of the original in 
 an adjacent street. 
 
 A new trial should be granted. 
 
 Judgment accordingly. 
 
 Note.— In Payne v. Hodge, 7 Hun, 612 (aflfd. without opinion in 71 
 N. Y., 598), an action for the value of services, etc., plaintiff offered in 
 evidence his books containing contemporaneous memoranda, made by 
 him, of the time of the workmen in his employ on the house in question, 
 who testified that they gave their time correctly to the plaintiff, saw him 
 enter it in the books and settled with him according as given. 
 
 GiLBEBT, J., at General Term said on this poiat : The evidence was 
 clearly sufficient to establish the correctness of the plaintiff's account. 
 The plaintiff testified that he made the entries in accordance with state- 
 ments made to him by other witnesses, and the latter testified that such 
 statements were true. This is all that the law requires. Such evidence 
 is not necessarily upon hearsay, which is very properly Condemned in 
 Gould V. Conway (59 Barb., 361). Bat the plaintiff testified that he en- 
 tered the facts as given to him, and the other witnesses proved that the 
 facts were correctly given to the plaintiff and that he entered them. It 
 can make no diflerence how the truth of the facts stated in the entry is 
 proved, whether by the one who made the entry or by the one who gave 
 him the facts which he entered. Nor is an entry incompetent because it 
 is of a fact not within the personal knowledge of the person who made it; 
 it is enough if it appears that the entry rests upon knowledge and not 
 hearsay, and is proved to have been correctly made. 
 
 In Gould V. Conway, 59 Barb., 355, plaintiff suing for the price of goods 
 sold, were allowed to put their account books in evidence containing 
 original entries made by their bookkeepers who did not, however, make 
 the sales charged, but only entered sales reported to them by salesmen, 
 and usually noted the initials of the salesman in the entry. The salesman 
 called did not remember the sales made. 
 
 Held, error to receive the books. Johnson, J., after referring to the 
 cases on this question, said : 
 
 They are all, or nearly all, cases where the witness who made the me- 
 
Y. Aiding : and Memoranda. (5) Memo, in Course of Duty. 45Y 
 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 mofandum, knew, at the time he made it, that the matter therein stated 
 was true. In such a case it has been repeatedly held in this state, since 
 the decision in Merrill v. The Ithaca & Owego R. R. Co. (16 "Wend., 586), 
 where the witness who naade the memorandum was unable to recollect 
 the facts contained in it at the trial, but was able to state that he knew 
 the memorandum stated what was true when he made it, that the me- 
 morandum so made might be received, in connection with tlie oral testi- 
 mony of the witness, as evidence of the facts therein stated. But here 
 the witness making the memorandum had no knowledge of the fact, ex- 
 cept what another told him, and the one who told him did not see the 
 memorandum at the time it was made, and consequently cannot state 
 that he knew it was trvily made at the time. It comes just to this, that 
 the memorandum is used to prove that what another person told the one 
 who made it was true. This is going a long stride beyond any adjudged 
 ■case, and would be a most dangerous rule to adopt. It would be little 
 short of hearsay upon hearsay. I am of the opinion tliat in a case of this 
 kind, if it had appeared that the salesman who reported the sale had seen 
 the charge made by the bookkeeper, and knew, then, that it was correctly 
 made, it might be introduced as a memorandum, in connection with the 
 testimony of the salesman, either with or without the testimony of the 
 bookkeeper, the salesman having forgotten the fact that such sale had 
 been made by him. I do not find any decision going quite so far, but it 
 seems to me that it falls within the principle of allowing memoranda of 
 facts once known, and committed to writing, but forgotten by one of the 
 actors in the transaction, to be used in evidence to supplement liis 
 memory, or in the place of it. The question as to who made the me- 
 morandum is of much less importance than the question whether the 
 person who saw it made, knew at the time, personally, that the fact ex- 
 isted and was there truly recorded. Of course if the witness did not make 
 the memoi-andum, in such case, it should be clearly and unmistakably 
 identified by him as the identical one he saw made, or at least that he 
 saw and understood it when the fact of which he then had personal 
 knowledge was clearly within his recollection. But here the memorandum 
 is quite too far removed from the transaction which it is sought to prove. 
 
 I think no one would claim that the bookkeeper would be allowed to 
 testify to what the salesman had told him in regard to a sale, where the 
 salesman could only say that if he told the bookkeeper so, it was true ; 
 but that he had forgotten both the fact, and the narration of it to the 
 bookkeeper. That is just what we have here ; the salesman, who alone 
 knew the fact, if it existed, has forgotten both the sale, and the report of 
 it to the bookkeeper ; all he can say is, that he reported sales truly, and 
 none falsely. 
 
 Then comes the bookkeeper, who can only say that the entry is in his 
 handwriting, and that he knows he recoi-ded accurately what the salesmen 
 reported. So it all comes back upon the memorandum alone, to prove 
 that the sale was made and the indebtedness incurred as the salesman 
 said it was. This is quite too loose. But the ruling upon the trial goes 
 
458 Abbott's Select Cases on Examining Witnesses. 
 
 Churchman v. Lewis, 34 N. Y., 444. 
 
 even farther than this. The books, or the entries therein, were used as 
 evidence of the correctness of charges which had the name of no salesman 
 attached, and in regard to which there was no evidence other than the- 
 entry itself. The bookkeeper did not pretend to know anything about 
 the fact of the sale, and did not know even by whom it was reported. In 
 regard to one of the items, he stated that it was "probably" reported to- 
 him by one of the plaintiffs, and that was all he could state. In regard to 
 two items, which the books or entries were used to establish, there was 
 no evidence, except that they were in the handwriting of a bookkeeper 
 who had gone away, and the testimony before referred to, of one of the 
 plaintiffs, that at some time he had given similar articles to one of his 
 boys in the store to deliver to the defendant. 
 
 My conclusion upon the whole case is, that the books, as such, were 
 altogether incompetent, and that the evidence was wholly insufficient to 
 authorize the entries in question therein to be received or read in evi- 
 dence as memoranda of the transactions to which they related. 
 
 In Shear v. Van Dyke, 10 Hun, 528, one question litigated was how 
 many loads of hay plaintiff had gathered under a contract with defendant. 
 A witness for plaintiff who aided in taking in the hay, was asked by 
 plaintiff's attorney, how many loads were taken in on an occasion) 
 specified. He answered, that he could not now remember, but that he 
 knew at the time, and then told the plaintiff. The plaintiff was then 
 called, and was allowed, against objection, to state that the number of 
 loads given him by the witness was fourteen. 
 
 Held, to have been properly admitted, Bookes, J., saying : "I am in- 
 clined to the opinion, contrary to my first impression, that this evidence 
 was admissible. The witness noted the number of loads taken in at the 
 time, and, as he stated, gave the number trvily to the plaintiff. Now, the 
 latter mi*ht state the number so sworn to have been given him. The evi- 
 dence sought from him was original evidence. The question was as to the 
 declarations made to him ; not as to its truth or falsity. In this view, it 
 was not hearsay evidence. Had the witness given the plaintiff a me- 
 morandum of the loads at the time, and had he sworn that the memoran- 
 dum so furnished was correct, the plaintiff then might have produced and 
 verified the memorandum by his own oath. It has been repeatedly held 
 that when a witness testifies that he made a memorandum correctly at 
 the time the event occurred, but was unable to recollect the fact .con- 
 tained in it when examined in regard to the transaction, the memoran- 
 dum may then be received in evidence of the fact therein stated. So, in 
 Payne v. Hodge (14 S. C, N. Y.) [7 Hun], 612, the plaintiff testified that 
 he made entries in accordance with statements made to him by other 
 witnesses, and the latter testified that such statements were true ; the 
 evidence was held to be admissible. Now, in the case in hand, the fact 
 sought to be proved comes verified by the oath of witnesses in a way that 
 renders it definite and certain. Nor does it rest at all on any statement 
 unsupported by a sworn witness. 
 
Y. A iding: and Memoranda. (5) Memo, in Course of Duty. 459' 
 
 Churchman v. Lewis, 84 N. Y., 444. 
 
 Learned, P. J. (dissenting'), was of the opinion that tlie propriety of 
 admitting such evidence depends largely upon the fact that evidence thus- 
 g-iven was committed to ivriting. 
 
 The rule as laid down by Bockes, J., however, received some sanction 
 in Dunn v. James, 62 How. Pr., 307 ; affd. in 83 N. Y., 643, without opinion ;. 
 but it was also held that the objection had been waived in that case. 
 
 In Fisher v. Mayor of N. Y., 67 N. Y. ,73, the defendant claimed, as a set-off,, 
 an unpaid assessment upon plaintiff's premises, but on the trial no order of 
 confirmation was produced, and it was admitted that no such order could 
 be found in the clerk's office. To pi'ove the making of the order, among 
 other things, a copy of an entry in the official register of the corporation 
 counsel, at the time, was admitted in evidence, as follows : "Widening 
 and extending- Centre street ; Charles Dusenbury, Abraham Dally, John 
 B. Thorpe, 183o, June 6. Commissioners appointed, 1837, June 4. Re- 
 port confirmed." 
 
 Andebws, J., [on the point saicU]: Entries made by third persons 
 in the usual course of professional employment contemporaneously 
 with the transaction recorded, are admissible to prove the fact stated 
 after the death of the person by whom the entry was made (Doe v. 
 Tinford, 3 B. & Ad., 898 ; Brewster v. Doane, 3 Hill, 537). The entry by 
 an attorney in his register of the making of an order or decree in a 
 proceeding conducted by him, is admisssible within this rule. The order 
 or decree is the act of the court, but it is procured upon the application 
 of the attorney, and the fact of obtaining it is a part of the history 
 of the proceeding, which properly and usually is inserted in the register. 
 There is no absolute duty resting upon an attorney to make such an 
 entry, but this is not essential, it is sufficient if the entry was the 
 natural coucomitaut of the transaction to which it relates, and usually 
 accompanies it. (1 Greenl. Ev., § 11.5, Leland v. Cameroa, 31 N. Y., 115). 
 The facts and circumstances proved independently of the entry, rendered 
 it probable that an order of confirmation was made, and in connection 
 therewith, the original entry of the corporation counsel, was after his 
 death, admissible secondary evidence of the fact. But the entry admitted 
 in this case was not the original entry, and it was not shown that the 
 person who made the entry was dead. On both grounds the evidence 
 was incompetent. 
 
460 Abbott's Select Cases on Examining Witnesses. 
 
 Brennan v. Hall, 181 N. Y., 160. 
 
 BKENNAN V. HALL. 
 
 JVew York Court of Appeals, 1892. 
 
 [Reported in 131 N. Y., 160.] 
 
 In an action to determine the ownership of a mortgage, where it appeared 
 that the deceased to whom it was assigned and in whose possession it 
 was found, claimed no beneficial interest in the security,— ifeZd, pro- 
 per to exclude an entry made in his handwriting tending to show 
 ownership bj' one of the claimants. 
 
 The rule stated, as to admission of entries and declarations made by per- 
 sons since deceased, against their interests when made.* 
 
 Plaintiff sued as administrator of Mary H. Jarvis to recover 
 the avails of a mortgage assigned to and found in possession of 
 defendant's testator, W. A. Hall, at the time of his death. 
 Plaintiff alleged that the mortgage was assigned to said Hall 
 under a parol agreement that he would assign it to Mary H. 
 Jarvis whenever she wanted it. 
 
 Upon the triaj the defendants did not claim that Hall at the 
 time of his death, or at any prior time, owned or had any inter- 
 est in the mortgage. ISTor did they claim any title to or interest 
 in the mortgage as executors and trustees under the will of Hall. 
 While in their answer they did allege that the mortgage was the 
 property of Hall at the time of his death, and as such came to 
 them, and that they were entitled to the proceeds thereof, upon 
 the trial they alleged that Hall took the assignment of the mort- 
 gage in trust for the beneiit of Sarah A. Jarvis, the mother of 
 Judson Jarvis. Some time after the death of Hall the mortgage 
 was found in an envelope in the bank where it had been de- 
 posited by Hall, and on the envelope, in his handwriting, were 
 these words : " All the papers, bond and mortgage, assignment, 
 etc., are the property of S. A. Jarvis." The envelope also con- 
 tained this paper, which was in the handwriting of Hall : 
 
 " ISTew Yoek, Octoler 8, 1881. 
 " The bond and mortgage assigned to me by Prince & White- 
 ly, for the sum of $20,400, does not belong to me, the money to 
 pay for said mortgage being furnished by Mrs. Sarah A. Jarvis, 
 
 * See on this eubjecl, Lj'on v. Eicker, 141 N. Y., 2:25. 
 
Y. Aiding : and Memoranda. (6) Memo, against Interest. 461 
 
 Brennan v. Hall, 131 N. Y., 160. 
 
 and tlie same is to be reassigned to her, or wliom she may des- 
 ignate, and I hereby bind myself, my heirs or assigns, to make 
 said assignment. W. A. Hall." 
 
 The defendants offered the paper and indorsement in evidence, 
 claiming that the evidence was competent because they were 
 written declarations and entries made by Hall, now deceased, 
 which were against his interest when made. The trial judge 
 excluded the evidence, and defendants excepted. 
 
 The Special Term gave judgment for the plaintiff. 
 
 The General Term of the Supreme Court affirmed the judg- 
 ment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, Ch. J., [on this point said]: Defendants offered to put in 
 evidence the indorsement upon the envelope and the other paper 
 for the purpose of showing that the mortgage actually belonged 
 to Sarah A. Jarvis and was held by Hall in trust •for her. It was 
 claimed that the evidence was competent because these were 
 written declarations and entries made by Hall, then deceased, 
 which were against his interest when made. There is a well- 
 recognized exception to the rule which excludes hearsay evi- 
 dence, by which declarations and entries made by persons, since 
 deceased, against their interests when made, are allowed. Such de- 
 clarations and entries are received because of the extreme im- 
 probability that the person making them would fabricate or 
 falsely make them against his own interests. (1 Greenleaf's Ev., 
 § 147 et seq.) To bring the declarations and entries in such a 
 case within the exception, the fundamental requirement is that 
 they should at the time be against the interests of the person 
 making them. The exception does not apply here because these 
 statements of Hall were, when made, against the interests of 
 Mary H. Jarvis and not against his interest. He never at any 
 time claimed to hold the mortgage as his own, and never in fact 
 owned it, and the defendants, upon the trial, did not claim he 
 ever owned it, or that they had any interest in it. If these state- 
 ments were allowed as evidence they would simply tend to show 
 thatthe money in controversy belonged to Sarah A. Jarvis, and not 
 
462 Abbott's Select Cases on Examining AVitnesses. 
 
 Livingston v. Arnoux, 56 N. Y., 507. 
 
 to Mary H. Jarvis, and hence they are not within the reason of 
 the exception, and it is confidently believed that no authority 
 can be found holding such statements competent evidence under 
 such circumstances. 
 
 When a person makes statements or entries impairing, qualify-^ 
 ing or limiting his title to property in his possession, then, in a ' 
 litigation after his death when the title to the same property 
 comes in question, such statements or entries may be given in 
 evidence, and the fact that they were against the interest of the 
 person making them, stands in the place of an oath, and gives . 
 nearly if not quite the same assurance of veracity. So if eithef 
 of the parties to this action were here asserting the title of Hall 
 to the mortgage, and claiming under, through or from him, then 
 his statements made in derogation of his title and thus against 
 his interest could be given in evidence against such party, and 
 the rule referred to could have no other application to such a case. 
 
 We are, therefore, of opinion that the trial judge did not err 
 in excluding these written statements made by Hall. 
 
 LIYINGSTON v. AKNODX. 
 
 JVew York Court of Ajpfeals, 1871},. 
 
 [Reported in 56 N. Y., 507.] 
 
 A public officer's memorandum of a matter pertaining to his official duty, 
 and against his interest, such as a usual receipt, though not required 
 by law, is, after his death, competent evidence, not only of the fact 
 which was against his interest, but of any incidental but material 
 fact mentioned in it, — e. g., of the date of the transaction. 
 
 Privity between the officer aud the party against whom it is offered need 
 not appear. 
 
 This case, which was ejectment for land which had been sold 
 under execation, depended upon the question whether there was 
 a redemption, by the judgment debtor, from the sale on the 
 BrinckerhofE judgment, reported in 15 Abb. Pr. IST. S., 158. 
 
 To establish such redemption the plaintiff proved a receipt, 
 signed by the sheriff, Westervelt, in his official character, dated 
 April 10th, 1849, entitled In the action of Brinckerhoff v. Price, 
 
Y. Aiding : and Memoranda. (6) Memo, against Interest. 463 
 
 Livingston v. Arnoux, 56 N. Y., 507. 
 
 by which the sherifE acknowledged that he had received from 
 Francis Price, the defendant in the action, $72.05, to redeem 
 property sold upon execution therein, April 13th, 1848, the said 
 amount being (as stated in the receipt) the purchase money, at 
 10 per cent, interest, for all the property sold by the sheriff on 
 that day on the execution. 
 
 Below the receipt, on the same paper, was a memorandum of 
 Mr. Adriance, an attorney, indicating that he had paid the 
 sheriff the money mentioned, and taken the receipt for Francis 
 Price. 
 
 It was admitted that the sale on the execution embraced 
 several parcels of land, in addition to the premises in question, 
 represented by fifteen separate certificates of sale, and that the 
 aggregate amount of the purchase money, including ten per cent, 
 interest from the time of the sale to April 10th, 1849, was the 
 sum expressed in the receipt. "Westervelt, who was sheriff dur- 
 ing the years 1848 and 1849 ; his undersheriff ; Price, the judg- 
 ment debtor ; and Adriance had all died several years before the 
 trial. 
 
 Plaintiff, after having proved the death of the sheriff, called 
 Edgar Ketchum to prove the written receipt of the redemption 
 money paid by Price to the sheriff. 
 
 The witness, being cross-examined, testified as follows : 
 
 " I do not know personally anything of the particular trans- 
 action spoken of in this paper. 
 
 Q. At the time this paper bears dates did Adriance act as 
 attorney for Francis Price ? 
 
 A. He occasionally acted as his attorney. 
 
 Q. Do you know whether it was Adriance who acted in 
 the settlement in behalf of Francis Price ? 
 
 A. Yes ; Mr. Isaac Adriance. 
 
 Plaintiff's counsel offered the paper in evidence. 
 
 Defendant objected. 
 
 Court : IVhat is this paper that plaintiff's counsel offers ? 
 
 Plaintiff's Counsel : Ihis is the certificate of redemption, sir. 
 
 Defendant's Counsel : I object to the admissibihty of the 
 paper on the ground; first, No declaration of the sheriff is evi- 
 dence unless made as is provided by statute, and when it is made 
 
464 Abbott's Select Oases on Examining Witnesses. 
 
 Livingston v. Arnoux, 56 N. Y. , 507. 
 
 as provided by statute, to be competent as proof, it must conform 
 to the requirements of the statute. There is no paper in exis- 
 tence that is competent evidence, and they have got to prove the 
 fact ; second, It is not in the form required by the Act of 1847 ; 
 third, It is not acknowledged or proved as is required to be by 
 that law to be priina/acie evidence ; fourth, It does not truly 
 state the facts transpiring before the sheriff at the time of pay- 
 ment ; and fifth, It is incompetent to prove a redemption. 
 
 Court : The only question is, was there such payment or re- 
 demption? It appears by the paper, signed by the person 
 authorized to receive the amount, that a certain sum correspond- 
 ing to the amount due, and referring directly to these proceed- 
 ings under execution was paid. The party is dead, and I think 
 the paper itself is e^idence to go to the jury to show that pay- 
 ment was made and that statute complied with. Therefore, I 
 shall rule that the paper be admitted and give you the benefit of 
 an exception. 
 
 Defendant's counsel duly excepted. 
 
 Plaintiff's Counsel : It is admitted that Francis Price died 
 several years before the commencement of this action." 
 
 Judgment was entered for plaintiff. 
 
 T//e Court of Common Pleas at General Term affirmed the 
 judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andrews, J. [on this point, said] : By the Eevised Statutes, 
 payment, on redemption by the judgment debtor, may be made 
 to the purchaser, his personal representatives or assigns, or " to 
 the ofiicer who made the sale, for the use of the purchaser." 
 (§ 45.) Where the sale is made by a deputy of the sheriff, either 
 the sheriff or the deputy is the officer who made the sale, within 
 the purview of this statute, and payment may be made to either. 
 NelsoNj J., in The People v. Becker (20 Wend., 602), in respect 
 to a redemption by creditors, where the premises were sold by a 
 deputy and payment was made to the sheriff, said : " Both 
 made the sale ; one in fact, and the other in judgment of law.* 
 
 * The subject of sale and redemption is now regulated by Code Civ. Pro., § 1130, etc. 
 
V. A iding : and Memoranda. (6) Memo, against Interest. 465 
 Livingston v. Arnoiix, 56 N. Y., 507. 
 
 The receipt, if competent evidence established prima facie all 
 the facts essential to constitute a redemption ; to wit. , the pay- 
 ment by the judgment debtor, within a year after the sale, to the 
 officer by whom it was made, of the amount bid, with interest at 
 the rate prescribed by statute. The receipt was competent com- 
 mon law evidence of the facts stated in it. The Revised Statutes 
 did not require the sheriff to give the judgment debtor, who re- 
 deemed, a certificate or other evidence of the fact of redemp- 
 tion. But he was a public officer, acting under an official oath, 
 invested by law with authority to receive, for the use of the pur- 
 chaser, the money paid on redemption, j^lthough giving a 
 receipt on payment being made was not strictly an official act, it 
 was a proper and reasonable one, in the ordinary course of biisi- 
 ness, and within the general scope of his authority and diity ; 
 and the giving of a receipt, where no payment, in fact, was 
 made, would be a gross dereliction of duty, calculated to defraud 
 the purchaser, and would subject the officer to the charge of 
 official misconduct. 
 
 Entries and memoranda, made by persons, since deceased, in 
 the ordinary course of professional and official employment, are 
 competent secondary evidence of the facts contained in them, 
 where they had no interest to misrepresent or misstate them. 
 (1 Greenl. Ev., § 115 ; Nichols v. Webb, 8 Wheat., 326.) They 
 are admitted from necessity. In Leland v. Cameron (31 IST. T., 
 115), the entry by an attorney in his register, in the proceedings 
 in the action, of the issuing of an execution which could not be 
 found, was held, the attorney being dead, to be competent evi- 
 dence of the fact that the execution was issued. Nor is it neces- 
 sary, as the defendant claims, that the entry should have been 
 made in a book, to make the evidence admissible. No cases 
 have been cited which proceed upon this distinction, and there 
 is no principle upon which it' can be supported. (See Porter v. 
 Judson, 1 Gray, 175 ; Doe v. Turford, 3 B. & Ad., 898). 
 
 The receipt given by the sheriff, in this case, related to a fact 
 known to him, and to which, if living, he would have been com- 
 petent to testify ; it was given in conformity with the usual 
 practice in transactions involving the payment of money, and all 
 the parties concerned in the matter to which it relates are dead. 
 
466 Abbott's Select Cases on Examining Witnesses. 
 Livingston v. Arnoux, 56 N. Y., 507. 
 
 The general fact of redemption shown by the receipt is corro- 
 borated by the other facts in the case. The long delay of the 
 purchaser in procuring a deed from "Westervelt who was living 
 as late as 1860 ; the small amount for which the land was sold 
 compared with its real value ; the holding under Price's title of 
 these and the other premises sold on the execution, for eighteen 
 years, no claim at any time so far as it appears, having been made 
 that the other parcels of land sold at the same time had not been 
 redeemed nor any assertion of right to these premises by the 
 purchaser until the sheriff's deed was executed, are circumstances 
 supporting the conclusion that a redemption was made. It is 
 not necessary to hold that receipts of public officers for money 
 paid to them, which they are authorized to receive, are primary 
 -evidence of the fact of jDayment; but they are competent 
 secondary evidence, after the officer's death, within the general 
 principle upon which entries and memoranda of persons, since 
 ■deceased, are admitted. (Harrison v. Blades, 3 Camp., 457 ; 
 Jones V. Carrington, 1 C. & P., 327; id., 497; Lessee of Clug- 
 gage v. Swan, 4 Bin., 150 ; 1 Phil. Ev. [3d ed.], 299, and cases 
 •cited). 
 
 The receipt was admissible on another ground. The officer 
 thereby charged himself with the money, and rendered himself 
 accountable for it to the creditor. 
 
 It was an admission against his interest, made in respect to a 
 matter pertaining to his official duty. Written memoranda, 
 made under such circumstances, may reasonably be assumed to 
 be truthful, and are e-pidence after the death of the party who 
 made them, as well of the fact against his interest, as of the other 
 incidental and collateral facts and circumstances mentioned, and 
 are admissible irrespective of the fact whether any privity exists 
 between the person who made them and the party against whom 
 they are offered. (Doe v. Eobson,15 East., 52 ; DaAdes v. Hum- 
 phreys, 6 M. & W., 153; Percival v. Nanson, 7 Exch., 1; Marks?;. 
 Colnaghi, 3 Bing., E". C, 408; Hinghamw. Kidgway, 1 East., 109.) 
 The general presumption is that an instrument was made at its 
 date. (Costigan V. Gould, 5 Den., 290.) Some exceptions exist 
 which it is not now material to notice. (Houliston v. Smyth, 2 
 C. & P., 22; Ptoseboom v. Bellingtoji, 17 J. E., 182.) The date 
 
V. Aiding : and Memoranda. (6) Memo, against Interest. 467 
 Livingston v. Arnoux, 56 N. Y., 507. 
 
 •of the payment in the receipt was not collateral to the main pur- 
 pose for which it was given. The time of payment was material, 
 as the redemption must be made within the year, and the true 
 date of the transaction would naturally be stated in it. The 
 memorandum on the back of the receipt, indicates that the pay- 
 ment was made by Adriance for Price. Adriance had acted as 
 his attorney, and there was evidence, aside from this indorse- 
 ment, that he acted in mating the redemption for him. It is not 
 necessary that a redemption should be made by the debtor in 
 person ; many circumstances may prevent it, and it would be a 
 very inconvenient construction of the statute to require it. If 
 the receipt is alone considered, it shows the payment was, in 
 fact, made by Price ; admitting the memorandum, it shows that 
 Adriance made it for him, and as there is nothing to contradict 
 fhe fact of his agency, it must be assumed. 
 
 The receipt was competent evidence for another reason. By 
 the fifth section of Chapter 410 of the Laws of 184T, it is made 
 the duty of the officer making a sale of real estate on execution, 
 or any other person who may lawfully act in his behalf, to execute 
 to the person making a redemption, a certificate truly stating all 
 such facts transpiring before him, as shall be sufficient to show 
 the redemption. 
 
 The sixth section provides for the proof or acknowledgment 
 of the certificate, and for recording it in the clerk's office of the 
 county where the lands are situate, and delares that " such certi- 
 ficate, or the record thereof or a duly authenticated copy of such 
 record, shall be received in all courts and places d,s prima facie 
 evidence of the facts therein stated." Some of the sections in 
 the act of 1847 relate to redemptions by creditors exclusively, 
 but the language of the fifth and sixth sections is general, and 
 applies, we think, to redemptions made either by the judgment 
 debtor or by creditors. The receipt states all the facts neces- 
 sary to show a redemption, and is in substance a certificate with- 
 in the act of 1847, and as such was evidence of the facts stated 
 in it under the statute. The omission to have the certificate 
 proved or acknowledged and recorded is immaterial as between 
 these parties. 
 
 Judgment affirmed. 
 
^'I. Handwriting. (1) "Writer's Testimony. 469 
 
 Note op Testimony by the "Writer. 
 
 NOTE ON DIKEOT TESTIMONY BY THE WEITER. 
 
 It is not necessary to call the writer as a witness to prove a disputed 
 signature, nor to account for his absence, but its genuineness may be 
 proved by any other competent evidence. 
 
 Abbott's Trial Ev., p. 393, § 6. 
 Royce v. Gazan, 76 Ga., 79. 
 
 A supposed or alleged writer may be asked directly : "Did you write 
 that, or sign that"; or, "Did you authorize anyone to sign that for 
 you?"* 
 
 Com. V. Kepper, 114 Mass., 278. 
 
 * These questions were held unobjectionable both in form and substance in the Massachusetts 
 case, where we may suppose that the objection was that both were leading, and the second one 
 called for a conclusion. 
 
470 Abbott's Select Oases on Examining Witnesses. 
 Bronner v, Loomis, 14 Hun, 341. 
 
 BEONNEE V. LOOMIS. 
 
 JVeiv York, Supreine Court, 1878. 
 
 [Reported in 14 Hun, 341.] 
 
 Where the genuineness of a signature is in controvei'sy, tlie party whose- 
 signature it purports to be, may, when testifying in his own behalf, 
 be asked by the adverse party to sign his name in the presence of the 
 court and jury ; and a signature thus made may be i^ut in evidence- 
 by such adverse party for the purpose of comparing it with the 
 signature in question. 
 
 It seems, that the party asserting that his own name has been forged,, 
 cannot, at liis own instance, make his own signature and then put 
 it in evidence for the purpose of such comparison. 
 
 Plaintiff sued on a promissory note ; and defendant alleged 
 that the signature was a forgery. 
 
 Talcott, p. J., said : The only exception to which our atten- 
 tion is called by the counsel for the defendant is that stated at 
 the close of the case, as follows : " A signature made by the 
 defendant upon trial, at the request of the plaintiff's counsel, 
 offered in evidence, written by the defendant ; objected to by 
 defendant's counsel and objection overruled, and exception taken 
 by the defendant." The defendant's counsel undertakes to 
 sustain his objection and exception by a reference to the general 
 rule of law as settled' in this state, that when the question is 
 upon the genuineness of a signature, you cannot give in 
 evidence other instruments which are genuine to enable the 
 jury to compare the signatures thereto with the one which is 
 disputed. It is true, this is the general rule as adopted in this 
 state. This rule seems to be founded on two reasons: 1. 
 Because, in the absence of such a rule, there would be a great 
 temptation to make an unfair selection of signatures. 2. Because 
 the introduction of a large number of signatures would create a 
 number of collateral issues, and thus tend to burden the case 
 with irrelevant questions and to embarrass the jury. (Van 
 Wyck V. Mcintosh, 14 N. Y., 439 ; Greenl. Ev., § 580.) 
 
 But, where the signature is made by the person whose sig- 
 nature is in controversy, in the presence of the court and jury, at 
 the request of the adverse party, or where such a signature is 
 
VI. Handwriting. (2) Signature made in Court. 4'71 
 
 Bronner v. Loomis, 14 Hun, 341. 
 
 obtained on the cross-examination of tlie witness, tlie reasons for 
 the application of the rule do not exist. The party asserting the 
 forgery cannot, upon the trial, make his own signature, and then 
 offer the signature so made in evidence for the purpose of 
 comparison with the controverted signature for obvious reasons ; 
 (King V. Donahoe, 110 Mass., 155) ; but, if the opposite party 
 chooses to take the risk, we think a signature thus made may be 
 offered in evidence by the latter, for the purpose of comparing 
 it with the signature in question. (Greenleaf's Ev. [13th ed.],. 
 § 581, note. Taylor on Ev., § 1669, and note ; 1 Wharton on Ev., 
 § 706 ; Chandler v. Le Barron, 45 Me., 534 ; Roe v. Eoe, 40 Super. 
 Ct. Eep. [Jones & Spencer], 1 ; Hayes v. Adams, 2 Supm. Ct. [T. 
 & C], 593 ; Doe v. Wilson, 10 Moore's Priv. Council Cases, 202.) 
 
 In the case of Doe v. Wilson, last cited, which was decided 
 by the English Privy Council in 1857, the court, in its opinion, 
 says : •' Their lordships have no doubt that, if on trial at nisi 
 jprius, a witness denies his signature to a documeut produced in 
 evidence, and, upon being desired to write his name, has done 
 so in open court, such writing may be treated as evidence in the 
 case and be submitted to a jury, who may compare it with the 
 alleged signature to the document." (See, also, as bearing upon, 
 the 'question, Birch v Eidge, 1 Foster & Finlason, 270 and note ;. 
 Cresswell v. Jackson, 2 id., 24 ; Cobbett v. Eilminster, 4 id., 
 490, and note.) 
 
 We think the referee committed no error in allowing the^ 
 signature to be introduced in evidence, under the circumstances, 
 in this case. The question of fact passed upon by the referee 
 was upon conflicting evidence of the force and effect of which 
 he was the judge, and his finding cannot be disturbed. 
 
 Note.— In Williams v. Riches 77 Wis., 569 ; s. c, 46 Northwest Rep. 
 817, it was held not error to refuse to compel a witness to I'ewi'ite in 
 presence of the jury an endorsement which she claims to have made, 
 especially where the witness testified that she made the endorsement 
 when a child and that since then her handwriting had very much changed. 
 
 In Allen v. Gardner, 44 Kan., 337 ; s. c. 27 Pacific Rep., 983, it was held 
 not reversible error to permit a witness against objection to write his 
 signature in the presence of the jury for their inspection and comparison 
 with a chattel mortgage which purported to have been executed by the 
 witness, where the adverse party on cross-examination also asked the- 
 witness to write his name and then offered the signature in evidence. 
 
472 Abbott's Select Casks on Examining Witnesses. 
 Hammond v. Varian, 54 N. Y., 398. 
 
 HAMMOND V. VAEIAN. 
 
 New YorJc Commission of Appeals, 1873. 
 [Reported in 54 N. Y., 398.] 
 
 A witness wlio has seen a person write his name once, and one who has 
 never seen liim write, but has held his note, aclcnowledged and con- 
 ceded by him to be genuine, are each competent to testify to his 
 opinion and belief of the genuineness of his signature. 
 
 Where the defense of forgery of his name is set up by a joint maker of a 
 note, evidence is competent that he had theretofore recognized the 
 validity of other like joint notes purporting to be, but not really signed 
 by him, after knowledge that the signature was not his, in connec- 
 tion with evidence that his name was so signed by the same joint 
 maker, and for the purpose of showing an implied authority to such 
 other joint maker to sign his name. 
 
 Plaintiff sued father and son on a note purporting to have been 
 made by them jointly. 
 
 The son was in business as member of a firm. The note sued 
 on was given for the price of a horse bought by the son. Plaint- 
 iff relied on evidence that the father actually signed the note, and 
 also on evidence that the father had authorized the son to sign 
 notes to raise money in connection with the son's partnership 
 business. 
 
 Upon the trial John Buckley was called by plaintiff and asked 
 by plaintiff's counsel the following questions : 
 
 Q. " Have you seen him write " (meaning defendant Varian) ? 
 A. Yes, sir ; I have seen him write his name. 
 
 Q. From your knowledge of his handwriting, is that his signa- 
 ture ? 
 
 Defendant's counsel objected on the ground that the witness 
 had not shown himself sufficiently acquainted vidth the defend- 
 ant's handwriting. Objection overruled, evidence admitted, and 
 exception taken, and the witness answered : " Judging from what 
 I have seen of his writing, I should judge it was." 
 
 Sinclare Dayton, was also called by plaintiff and was asked by 
 plaintiff's counsel the following questions : 
 
 Q. " Did you ever see Allan C. Varian write ? A. I never 
 have. 
 
VI. Handwriting. (3) By ISTon-expert. 473 
 
 Hammond v. Varian, 54 N. Y., 398. 
 
 Q. Have you ever held any notes which he has paid to you % 
 A. Yes, sir. 
 
 Q. More than one ? A. .1 think not but one, of $100. 
 
 Q. From yoiir knowledge of his handwriting would you think 
 that to be his signature '\ 
 
 Defendant's counsel objected on the grounds that it was incom- 
 petent and improper, and that the witness had not shown himself 
 sufficiently acquainted with the handwriting of the defendant 
 to testify as to its genuineness, and that he was wholly incompe- 
 tent to testify thereto, for the reason that he had never seen the 
 defendant write. 
 
 Objection overruled and exception taken. 
 
 The witness answered : ' I see nothing why it does not, in 
 every way, look like the signature to the note he gave me.' 
 
 Q. You judge it to be his handwriting ? A. Yes, sir." 
 
 At Circuit, plaintiff had judgment upon a verdict. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 \_Ref erring to opinion of loitness Dayton, the Court said] : 
 His opinion that Allan C. Varian's signature to the note in ques- 
 tion, was his handwriting, could not have been very reliable ; 
 but it was admissible and its weight was for the jury to deter- 
 mine (Greenl. Ev., § 577). 
 
 'When a man pays a note to which his name is signed as maker, 
 it is reasonable to presume his signature was in his handwriting 
 [see Cunningham v. Hudson Kiver Bank, 21 Wend., 559]. 
 
 T/ie Commission of Appeals reversed the judgment. 
 
 LoTT, Ch. C. [on this ruling, said] : The objection taken to the 
 testimony was, that they had not shown themselves sufficiently 
 acquainted with the defendant's handwriting to testify as. to its 
 genuineness. This was not tenable. They had some means, 
 although slight, of enabling them to judge whether the signature 
 was that of the defendant, yet sufficient, in their belief, to express 
 an opinion in reference thereto. The extent of their knowledge, 
 and the weight or effect to be given to their opinion, were proper 
 matters for the consideration of the jury (see Greenleaf on Evi- 
 dence, Yol. 1, § 577). 
 
4:7 i Abbott's Select Cases on Examining Witnesses. 
 Robinson Consol. Mining Co. v. Craig, 4 N. Y. St. Rep., 478. 
 
 Evidence was also given, against tlie defendant's exception 
 tending to prove that he had recognized the validity and his- 
 liability for the payment of other notes to which his name, in 
 conjunction with that of his co-defendant (who was his son), pur- 
 ported to be signed, but which he himself had not signed, after- 
 full knowledge that the signature was not in his projser hand- 
 writing. This, within the principle of the decisions in Weed v. 
 Carpenter (4 Wendell, 219) ; Same v. Same (10 id., iOi), was. 
 admissible, in connection with the fact that his name was so- 
 signed by his co-defendant, or assumed so to have been, on the 
 trial, for the purpose of showing that he had authorized it to be 
 done, from which the jury might infer or presume an implied 
 authority to sign his name to the note in question, if, as the judge 
 at the circuit instructed the jury, he " was in the kahit of recog- 
 nizing these notes which his son thus signed in his name, as 
 authorized and genuine notes " (see also Cunningham v.. Hudson 
 Eiver Bank, 21 Wendell, 559). 
 
 \_Other evidence ieing erroneously admitted]. 
 
 Judgment reversed. 
 
 EOBINSOlvr CONSOLIDATED MINING CO. v. CKAIG. 
 
 JVew Yorh Supreme Court, 1886. 
 
 [Reported in 4 N. Y. State Rep., 478.] 
 
 The fact of having seen a person write is not essential to qualify a witness- 
 to prove his handwriting. Familiarity, acquired by receiving com- 
 munications from him in the course of business, and acting upon them, 
 is competent. 
 
 Plaintiff sued defendants, as sureties for one Thomas H. 
 Greer, alleging breach of covenant by Greer in not accounting 
 for royalties under a mining lease. The answer denied any 
 indebtedness under the lease, or any agreement of suretyship. 
 
 Upon the trial, John C. Marrin, vice-president of the plaintijS 
 company was called as a witness on behalf of the defendants and 
 testified as follows, regarding transactions with one Carpenter, 
 who was plaintiff's agent at the mine and received and transmit- 
 ted royalties paid by Greer : " I do not know Carpenter per- 
 
YI. Handwriting. (3) By Non-expert. 475 
 
 Robinson Consol. Mining Co. v. Craig, 4 N. Y. St. Rep., 478. 
 
 sonally ; Mr. Carpenter sent tlie moneys that were paid from 
 time to time for the royalties arising from the ores that were 
 taken out of this mine by Mr. Greer ; I saw his signature to the 
 communications, whatever they were, that accompanied the 
 transmission of these moneys. 
 
 By Defendants' Counsel : Q. Will you look at this paper 
 and say whether this signature is the signature of Thomas L. 
 Carpenter ? 
 
 Objected to by plaintiff's coimsel. 
 
 A. I never saw Mr. Carpenter sign his name ; 1 never saw 
 him write at all. 
 
 To Defendants' Counsel : The signature to the paper shown me 
 is Ins signature — to the best of my knowledge; I believe it is his. 
 
 To the Court : The knowledge that I have is derived from 
 having received from Mr. Johnson the various communications 
 from Mr. Carpenter to the company, which were usually handed 
 me the date of the receipt, reading them over, and general 
 knowledge of his handwriting. 
 
 Defendants' Counsel : I offer the paper referred to by the wit- 
 ness in evidence. 
 
 Objected to, and excluded. Defendant excepts. 
 
 At Circuit, judgment was entered for plaintiff. 
 
 The Supreme Court at General Term reversed the judgment. 
 
 Daniels, J. \on a motion ly the respondent for a re-argument, 
 said on this point] : It (the evidence of Mr. Marrin) showed 
 such a familiarity with the handwriting of the agent, whose name 
 was attached to the receipt, as to prove his signature. The evi- 
 dence as to this fact was given by the vice-president of the com- 
 pany, who had observed tJie signature of Carpenter, who was the 
 agent of the company at the mine, upon communications which 
 were signed by him to, and acted upon by, the company. This 
 witness had not seen Carpenter write, but that was not necessary 
 to enable him to prove his handwriting, if he had become famihar 
 with it in another manner ; and that he had become so, appears 
 from his evidence. His statement was that he " saw his signature 
 to the communications, whatever they were, that accompanied 
 
476 Abbott's Select Cases on Examining Witnesses. 
 
 Robinson Consol. Mining Co. v. Craig, 4 N. Y. St. Rep., 478. 
 
 the transmission of those moneys," and the moneys he referred 
 to were the royalties sent by Carpenter from time to time to the 
 office of the company for the ores taken out of the mine by Mr. 
 <jrreer, the lessee. The witness further testified that " the knowl- 
 edge that I have is derived from having received from Mr. 
 Johnson the various communications from Mr. Carpenter to the 
 company, which were usually handed to me the date of the re- 
 ceipt, reading them over, and general knowledge of his hand- 
 writing." This Mr. Johnson mentioned by the witness was the 
 president of the company, and the communications which were 
 received related to its business and were connected with the 
 transmission of moneys to it, and were acted upon as the genuine 
 statements of Mr. Carpenter, the agent. 
 
 And that was sufficient within the rule applicable to proof of 
 handwriting to enable the witness to acquire such familiarity 
 Avith the signature of Carpenter as to enable him to identify and 
 verify it. For that may be done by the witness acquiring a 
 knowledge of the handwriting of another person by the inspec- 
 tion and examination of authentic documents of the description 
 of those sent by Carpenter to the company. Upon this subject 
 the rule is stated to be that the witness may testify to the hand- 
 writing of the person whose signature it is important to prove 
 *' from having seen letters, bills, or other documents, pm-porting 
 to be the handwriting of the party, and having afterwards per- 
 sonally communicated with him respecting them, or acted upon 
 them, as his, the party having known and acquiesced in such acts, 
 founded upon their supposed genuineness ; or by such adoption of 
 them into the ordinary business transactions of life as induced a 
 reasonable presumption of their being his own writings." Greenl. 
 Ev. (Tth ed.), § 57Y. And this witness was by his testimony 
 shown to be within this latter statement of the rule. He was 
 brought within what the court held to be the law in Johnson v. 
 Davenie (19 Johns., 134:). 
 
 Where the statement of it was approved, that, " the admis- 
 sibility of the evidence must depend upon whether there is a 
 good reason to believe that the specimens from which the wit- 
 ness has derived his knowledge were written by the supposed 
 writer of the paper in question," and that has the sanction of the 
 
)> 
 
 VI. Handwriting. (3) By Non- expert. 477 
 
 Jackson v. Brooks, 8 Wend., 436. 
 
 case of Rogers v. Kitter (12 Wall., 317). From this knowledge 
 and experience of the handwriting of Carpenter, the witness 
 further testified, " the signature to the paper shown me is his 
 signature, to the best of my knowledge. I believe it is his. 
 And this, in the absence of any evidence tending to discredit the 
 statement of the vsdtness, sufficiently authenticated the receipt to 
 entitle it to be read in evidence. 
 
 JACKSON V. BROOKS. 
 
 New Yorh Supreme Cotirt, 1832. 
 
 [Reported in 8 Wend., 436 ; affirmed in 15 Wend., Ill, without opinion.] 
 
 Where the antiquity of a writing is such that no witness can swear tliat 
 he has seen the parties write, a witness is competent to prove their 
 signatures, who has become familiar with their signatures by inspect- 
 ing other ancient writings bearing them, wliich have been treated 
 and regularly preserved as authentic* 
 
 Action of ejectment. 
 
 The plaintiff claimed under Arent Bradt, through mesne 
 conveyances. To prove title in Bradt, two deeds dated in 1733 
 were produced by plaintiff, and one Yrooman testified that the 
 grantors and witnesses had been dead too long a period for any 
 person living to have seen them write ; that he had acquired a 
 knowledge of the handwriting of those grantors and witnesses 
 by inspecting deeds in his possession from those persons which 
 constituted some of his muniments of title, and could swear 
 to the genuineness on the deeds in question. On this evidence, 
 the deeds were admitted in evidence, over an objection to its. 
 sufficiency. 
 
 In the Circuit Court a verdict was entered for plaintiff, 
 subject to the opinion of the court on a case made. 
 
 The Supreme Court entered judgment for defendant. 
 Savage, Ch. J. [after stating the facts'] : Evidence of this 
 description has been distinguished from comparison of hands. 
 
 ♦To the same effect, Rogers v. Bitter, 13 Wall., 317. 
 
4Y8 Abbott's Select Oases on Examining Witnesses. 
 
 Note on t'roof by Non-expert. 
 
 The witness is supposed to have formed a standard in his mind, 
 from an examination of writings deemed authentic and with 
 that standard to compare the writings in question (1 Phil. Ev., 
 428, Gould's ed., 1823). It is added : "When the antiquity of a 
 writing purporting to bear a person's signature, makes it 
 impossible for a witness to swear that he has ever seen the party 
 write, it has been held sufficient that the witness should have 
 become acquainted with his manner of signing his name, by 
 inspecting other ancient writings which bear the same signature, 
 provided those ancient writings have been treated and regularly 
 preserved as authentic documents (7 East., 282 n. and 14 id., 
 328). The documents in this case, from an examination of which 
 the witness formed his opinion, have been preserved as muni- 
 ments of title, and constitute the evidence of the title of the 
 defendant himself to a small piece of land included in the same 
 deed with the premises in dispute. The deeds, therefore, from 
 Jan Wemp and Arent Bradt to Jacob Glen, and from the 
 latter to Arent Bradt, must be considered as sufficiently proved, 
 and they show title in Arent Bradt. 
 
 NOTES OF KECENT CASES ON TESTIMONY OF 
 NON-EXPEET WITNESS. 
 
 Alabama : Cambell v. Woodstock Iron Co., 83 Ala., 351; s. c. 3 Southern 
 Rep., 369 fa witness who has corresponded with a person is competent to 
 testify as to his handwriting though the witness has never seen his corre- 
 spondent). Gibson i;. Trowbridge Furniture Co., 1893, 11 Southern Rep., 365 
 (one cannot be permitted to testify as to the genuineness of han'dwriting 
 of another, who has merely seen writings purporting to be those of such 
 other person, but who has not been shown to have personally communi- 
 cated with him respecting them, or to have acted upon them as his). 
 Nelms V. State, 1891, 9 Southern Rep., 193 (a non-expert, who has seen 
 defendant write but once and has seen but one writing that he knew to be 
 defendant's, and who states that he is not familiar with defendant's hand- 
 writing, is not a competent witness in relation thereto). Colorado: Salazar 
 V. Taylor, 1893, 33 Pacific Rep., 369 (a bank-teller who has seen the checks 
 of a person may testify as to his handwriting). Georgia: Wimbish v. 
 State, 89 Ga., 294 ; s. c. 15 Southeast Rep., 335 (a non-expert cannot testify 
 as to the identity of handwritings if his opinion is wholly founded upon 
 the comparison of a signature, which he knows to be genuine, with the one 
 
VI. Handwriting. (3) By Non-expert. 47*9 
 
 Note on Proof by Non-expei-t. 
 
 which is in question ; it makes no difiference that he saw the genuine signa- 
 ture executed unless he testifies that by some means or otlier he Itnows or 
 •would recog-nize the handwriting of the person who executed it). Illinois: 
 Ennor v. Hodson, 38 111. App., 445, (one who testifies that he is acquainted 
 with a person's signature from seeing it attached to papers known to have 
 been signed by him, is a com.petent witness as to the handwriting of such 
 person). First National Bank of Galesburgw. Hovall, 34 id., 594 (a witness 
 ■who had only examined the signatures of defendant, admitted to be gen- 
 uine after the dispute arose, held not a competent witness as to defend- 
 ant's handwriting). Riggsv. Powell, 1893, 33 Northeast. Rep., 483 (in order 
 to render a witness competent to testify as to handwriting it is not neces- 
 sary that he should directly state that he is familiar with the persons hand- 
 writing, if the fact otherwise sufficiently appears from his testimony). 
 Indiana: Talbott v. Hedge, Ind. App., 1893, 33 Northeast. Rep., 788 (a 
 witness is not competent to testify as to another's handwriting who has 
 merelj' received a notice purporting to be signed by the person whose sig- 
 nature is in dispute, and who has never seen such person write, and it does 
 not appear that the signature was ever acknowledged by the person pur- 
 porting to have signed it, or that the notice was ever acted upon by the 
 witness). Iowa: Egan v. Murray, 80 Iowa, 180; s. c. 45 Northwest. Rep., 
 563 (a witness who answered affirmatively a question as to whether he 
 was acquainted with the handwriting of the person whose signature was 
 in dispute, and who was not cross-examined as to such knowledge, may 
 give his opinion as to the genuineness of the disputed signature). Kansas : 
 Arthur v. Arthur, 88 Kan., 691 ; s. o. 17 Pacific Rep., 187 (a witness cannot 
 testifj' as to the signature of another unless his knowledge of the other's 
 handwriting is. first shown). Louisiana : Succession of Morvant, 45 La. 
 Ann.; s. c. 13 Southern Rep., 349 (any person who has seen another write 
 and has acquired a standard in his mind of such person's writing is a com- 
 petent witness as to the genuineness of a writing purporting to have been 
 made by such person). Minnesota : Berg v. Peterson, 49 Minn., 430 ; s. c. 
 53 Northwest. Rep., 37 (a witness may acquire sufficient knowledge of 
 another's handwriting to enable him to testify in relation thereto from hav- 
 ing seen papers purporting to have been executed by the person whose 
 writing is in dispute and which he has acknowledged or acquiesced in as 
 being genuine). NovthDakota : Territory w. O'Hare, 1 N. Da., 30; 44Noi-th- 
 west. Rep., 1003 (an expert in handwriting who has seen defendant write 
 but once, and then, only to enable the expert to become a witness, is incom- 
 petent). North Carolina : Tuttle v. Rainey, 98 N. C, 513; s. c. 4 South- 
 east. Rep., 475 (it is not necessary that a witness as to handwriting should 
 have seen the person write ; it is sufficient if he has acquired knowledge of 
 such person's handwriting from handling papers admitted to be genuine). 
 Pennsylvania: Second Natl. Bk. v. Wentzel, 151 Pa. St., 143; s. c. 34 
 Atlantic Rep., 1087 (a witness who testifies that he saw defendant's 
 signature, which defendant admitted to be genuine may be permitted to 
 give his opinion as to the genuineness of defendant's signature to the note 
 in suit). Wilson v. Van Leer, 137 Pa. St., 371 ; s. c. 17 Atlantic Rep., 1097 
 
480 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Proof by Non-expert. 
 
 (it is witliin the discretion of the trial court to allow a witness to testify- 
 as to another's handwriting, although the witness testifies that he has only 
 seen the person whose signature is in dispute write twice in 82 years and 
 once endorse a check, 33 years before). South Carolina : Weaver v. 
 Whildon, 33 S. C, 190 ; s. c. 11 Southeast. Rep., 686 (it is not error to refuse 
 to permit a non-expert, unfamiliar with the handwriting of an alleged 
 grantor to testify as to the genuineness of his signature by comparison 
 witli other signatures admitted to be genuine). Stoddard v. Hill, 1893, 17 
 Southeast. Rep., 138 (it is sufficient if a witness as to handwriting states- 
 that he knows the handwriting of the person which is sought to be proved, 
 though he is not directly asked whether he has seen such person write). 
 Utah : Tucker v. Kellogg, 1892, 28 Pacific Rep., 870 (a witness who as 
 administrator has seen numerous checks and notes among' the papers of 
 intestate, and who states that he is acquainted with deceased's signature, 
 is a competent witness to testify as to deceased's handwriting). 
 
 Coimparison with ivriting not produced. 
 
 Spottiswood V. Weir, 80 Cal., 448 ; s. c. 22 Pacific Rep., 289 (a non-expert 
 cannot testifj' that the signature to a lost deed which he has seen was the 
 same as the signature to another deed produced and shown to him). 
 
 Hammond v. Wolf, 78 Iowa, 237 ; s. c. 43 Northwest. Rep., 778 (a witness 
 majr give his opinion as to the genuineness of a disputed lost signature 
 which he has seen, based upon a comparison of his recollection of it with a. 
 signature of the same person in evidence and admitted to be genuine). 
 
 Mugge V. Adams, 76 Tex., 448 ; s. c. 13 Southwest. Rep., 880 (a witness 
 who has not qualified himself to testify as to the handwriting of a person 
 who signed a letter not produced cannot be permitted to express an opinion 
 that the unproduced signature was similar to the signature of an instru- 
 ment in the cause). 
 
VI. Handwriting. (4-) Standards of Comparison. 481 
 
 N. Y. Statutes. 
 
 The New York statutes which provide for proof of liandwrit- 
 ing by standards of comparison, are as follows : 
 
 L. 1880, C. 36 : " § 1. Comparison of a disputed writing with 
 any writing proved to the satisfaction of the court to be genuine, 
 shall be permitted to be made by witnesses in all trials and pro- 
 ceedings, and such writings and the evidence of witnesses respect- 
 ing the same may be submitted to the court and jury as evidence 
 of the genuineness, or otherwise, of the writing in dispute. 
 
 " § 2 [as amended by L. 1888, C. 555]. Comparison of a dis- 
 puted writing with any writing proved to the satisfaction of the 
 court to be the genuine handwriting of any person, claimed on 
 the trial to have made or executed the disputed instrument or 
 writing, shall be permitted and submitted to the court and jury 
 in like manner. But nothing within contained shall affect or 
 apply to any action or proceeding heretofore commenced or now 
 pending." 
 
 PECK V. CALLAGHAN. 
 
 Neio Yorh Court of Appeals, 1884- 
 
 [Reported in 95 N. Y., 73.] 
 
 To prove the g-enuineness of standards of comparison under N. Y. L., 1880, 
 c. 36 [and consequently under N. Y. L., 1888, c. 555], it is not neces- 
 sary to produce a witness who saw tliem written ; but opinion evidence 
 is competent, and may be sufficient. The act leaves the sufBcieney of 
 the identification of the standards, and, it seems, their number and 
 character, to the discretion of the trial judge.* 
 
 Application for probate of the will of Gertrude B. Callagban, 
 contested on the grounds (among others) that the signature was 
 forged. 
 
 On the trial, William M. Murray, cashier of the Goshen 
 INational Bank, was called by proponent, and testified on direct 
 examination that he had seen decedent endorse her name on the 
 back of certificates of deposit, that he was acquainted with her 
 
 * So far as this case alao holds that the contestant cannot offer in evidence specimens of the 
 handwriting of the person who is claimed to have forged the instrument, it is superseded hy 
 L. 1888, c. 5-5. 
 
482 Abbott's Select Cases on Examining Witnesses. 
 
 Peck V. Callaghau, 93 N. Y., 73. 
 
 ■writing, and able to recognize it, and identified lier signature on a 
 number of certificates. Thereupon proponent's counsel offered 
 the certificates in evidence for the purpose of enabling experts 
 to give their opinions as to the genuineness of her signature to 
 the will by comparison with such specimens. 
 
 Contestant's counsel objected to the certificates as incompetent 
 and immaterial, on the ground that in the states where this class 
 of testimony has heretofore been allowed, the handwriting of the 
 party proposed as a standard test cannot be proved by the opinion 
 of the witness, but that before the writings are proper to be 
 introduced as standard, the actual evidence of a person who saw 
 the papers written must be had, and that the evidence of a wit- 
 ness who is acquainted with the handwriting is not sufficient. 
 Counsel made the further general objection, that the evidence is 
 incompetent and irrelevant, on the ground that this new statute 
 has not changed the rule of the- evidence upon this subject. 
 
 The Surrogate : " I think this statute justifies receiving the 
 usual proof of the signatures, and that upon that proof being 
 uncontradicted, the court is to be satisfied that that is the genu- 
 ine signature of the person it purports to be, and that the court 
 is not to stop to try the issue, and that upon that basis the court 
 is justified in receiving the evidence by way of comparison 
 respecting that signature ; I will therefore overrule the objec- 
 tion." 
 
 Subsequently, the contestant's counsel offered in evidence 
 specimens of the handwriting of a person who was claimed by 
 contestant to have forged tlie will. The surrogate refused to 
 receive such specimens in evidence. 
 
 TAe Surrogate admitted the will to probate. 
 
 The Supreme Court at General Term affirmed the decree 
 without opinion. 
 
 The Court of Appeals affirmed the judgment. 
 
 EuGER, Ch. J. [after stating the fact^: The appellant, on 
 the hearing, objected to the introduction of specimens of the 
 handwriting of the decedent, offered for the purpose of enabling 
 experts to give their opinions as to the genuineness of the signa- 
 
VI. Handwriting. (4) Standards of Comparison. 483 
 Peck V. Callag-han, 95 N. Y., 73. 
 
 ture to the will by comparison with such specimens, and excepted 
 to the decision of the surrogate admitting such evidence. 
 
 We think the evidence was proper under chapter 36 of the 
 laws of 1880. This act was evidently intended to enlarge the 
 rules of evidence and extend the facilities for testing the hand- 
 writing of a party, the genuineness of whose signature was dis- 
 puted, beyond the opportunities afforded by the then existing 
 rules. 
 
 It was theretofore competent to give the evidence of experts 
 as to the genuineness of handwriting by comparison with other 
 specimens of the party's handwriting, which had been admitted 
 in evidence for other lawful purposes on the trial ; but it had 
 not been com]Detent to introduce such specimens for the sole pur- 
 pose of comparison. (Miles v. Loomis, Y5 JST. Y., 288 ; 31 Am. 
 Eep., 4'J'O.) The evils apprehended from the introduction of such 
 evidence have been stated to \>e, first: the selection of imfair 
 specimens of the handwriting which is in dispute by the party 
 offering them in proof, and second : the embarrassments arising 
 from the multiplication of issues over the genuineness of the 
 various signatures which might be offered in evidence. (Miles 
 V. Loomis, supra.) The act in question leaves the character, 
 number and sufficiency of identification of the specimens offered 
 in evidence for the purposes of comparison entirely to the dis- 
 cretion of the court, and thus attempts to obviate the objections 
 formerly existing to this species of evidence. 
 
 The language of the act, however, Avhich permits the introduc- 
 tion of specimens of a person's handwriting for the purpose of 
 comparison, when proved to the satisfaction of the court, author- 
 izes only the admission of such writings as purport to be the hand- 
 writing of the person, the genuineness of whose signature is dis- 
 puted. The disputed writing referred to in the statute relates 
 only to the instrument which is the subject of controversy in the 
 action, and the specimens of handwriting admissible thereunder 
 are those of the person purporting to have executed the instru- 
 ment in controversy. Any other construction would place it 
 within the power of a contestant to introduce in evidence speci- 
 mens of the handwriting of as many persons as he should see fit 
 to charge with the act of forging the signature in dispute. 
 
484 Abbott's Select Oases on Examining "Witnesses. 
 
 Hall V. Van Vranken, 28 Hun, 403. 
 
 The exception, therefore, by the appellant to the decison of 
 the surrogate, excluding specimens of the handwriting of a per- 
 son who was claimed to have forged the signature to the will in 
 question was not well taken. 
 
 HALL V. YAN YEANKEN. 
 JVeio YorJc Supreme Court, 1882. 
 
 [Reported in 28 Hun, 403.] 
 
 The genuineness of an irrelevant paper offered as a standard of compari- 
 son, under L. 1880, c. 86, — permitting the comparison of a disputed 
 writing with any writing proved to the satisfaction of the court to be 
 genuine — is a preliminary question for the court, not a question for 
 the jury. 
 
 The signature of a deed, the execution of which was acknowledged before 
 a notary and duly certified, maybe received as a standard for com- 
 parison, without further evidence than the certificate of acknowledg-- 
 ment, although there be no proof of tlie identitj' of the party with the 
 signer of the deed, except the identity of name and the fact that he 
 does not offer to disprove the assertion. 
 
 In this action the signature of a note was in issue. 
 
 The Supreme Court affirmed judgment for plaintiff. 
 
 Leaened, p. J., said : The statute of 1880, chapter 36, permits 
 the comparison of a disputed writing with any writing proved to 
 the satisfaction of the court to be genuine. This pi-oof of gen- 
 uineness, therefore, is addressed to the court, in distinction from 
 the jury. The evidence on this point is not direct evidence upon 
 the merits. It is somewhat analogous to evidence tending to 
 prove the competency of one who is called as an expert and the 
 like. And the general rule, in regard to such classes of evidence 
 is, that as the evidence is addressed to the court, error cannot be 
 alleged in respect thereto. The degree of proof which shall 
 show that a witness has experience enough to testify as an ex- 
 pert must be left to the trial judge. So, too, the sufficiency of 
 the proof which shall show that a paper is genuine, so that it may 
 be used for comparison, must be also left to the trial judge. 
 
VI. Handwriting, (i) Standards of Comparison. 485 
 
 Hall V. Van Vranken, 28 Hun, 408. 
 
 Possibly, to admit a paper without any evidence of its genuine- 
 ness might be error. 
 
 Ko-sv, in this case, a deed executed and acknowledged by the 
 defendant ■was admitted for the purpose of comjDarison with the 
 disputed note. And the defendant objects to this. 
 
 Of course, a person, whose name had been signed to a deed, 
 might acknowledge the instrument — and thus adopt a signature 
 made by some other person. And therefore an acknowledg- 
 ment of a deed is not conchisive evidence that the signature is 
 that of the party. But it is certainly prima facie evidence of 
 that fact. In the very great majority of cases signatures to deeds 
 are made by the parties thereto. The cases are rare where a 
 party adopts a signature made by another person. 
 
 If a person on borrowing money Avere to deliver a note pur- 
 porting to have been signed by him, would not that be jprima 
 facie evidence that the signature was in fact his own ? True he 
 might have caused some one else to sign for him, and by adopt- 
 ing the signature might bind himself. But in the majority of 
 cases such signature would be genuine, and it is therefore prima 
 facie to be so considered. 
 
 "Witnesses have often testiiied to a knowledge of handwriting 
 based on correspondence with the party. JSTow, in such cases, 
 the correspondence might possibly have been written by some 
 other person, with the authority of the party whose name was 
 used. Yet, inasmuch as persons usually write their own letters 
 (unless the letters otherwise indicate), a knowledge of handwrit- 
 ing gained by correspondence makes a witness competent, al- 
 though the witness never saw the party write. 
 
 Now, in the present case, a deed acknowledged by the de- 
 lendant was offered for the purpose of comparing the signature. 
 The defendant was present at the trial ; he made no offer to dis- 
 prove the genuineness of the signature to the deed, a matter 
 which he could easily have done, if it had not been genuine, and 
 it was thereupon admitted for comparison only. 
 
 The defendant urges that this was improper, because he says 
 that a certified copy from the record would, on this principle, be 
 equally proper as a standard of comparison (Code C. P., 935). 
 But there is no weight in that argument. A certified copy does 
 
486 Abbott's Select Cases on Examining "Witnesses. 
 
 Hall V. Van Vrankeii, 38 Hun, 403. 
 
 not purport to contain the signature of the party, but on the con- 
 trary purports to contain a copy thereof. The original deed pur- 
 ports to contain the genuine signature. We think that there was 
 not an absence of all evidence as to the genuineness of the signa- 
 ture to the deed, and therefore there was no error in this respect. 
 
 It is again urged that there was no proof of identity between 
 the signer of the deed and the defendant. Identity of name, 
 coupled with the fact that the defendant made no ofiEer to dis- 
 prove the assertion that he was the signer of the deed, was enough 
 to authorize the court to hold the signature of the deed to be the 
 defendant's. 
 
 The plaintiff was asked whether that was the signature of the 
 defendant attached to the note, and this was excluded. It did 
 not appear that the plaintiff had any knowledge as to the making 
 of the note, or as to the defendant's handwriting. It does not 
 seem therefore that he could have given any evidence in aid of 
 the defendant's case on this point. He afterwards stated that 
 from the evidence before him the signature was defendant's. 
 That testimony was objected to after it had been given. But 
 there was no ruling. It proved nothing and was of no conse- 
 quence. 
 
 On behalf of the defendant, one Phair had testified that the 
 signature to the note was not the defendant's. In order to dis- 
 credit this testimony he was asked on cross-examination as to cer- 
 tain statements which he had made to the plaintiff respecting thi& 
 note. And afterwards the plaintiff was allowed to contradict 
 Phair's testimony on this point. The testimony of Phair on his 
 cross-examination was not so collateral that the plaintiff might 
 not contradict it. The admission of the defendant as to the ex- 
 istence of the note was coupled with the assertion that it had been 
 paid. The fact that the note was still in possession of the plaint- 
 iff tended to contradict the defendant's assertion that it had been 
 paid. 
 
 The important question in this case is that which is first dis- 
 cussed in the opinion. The others are of little consequence. And 
 we may add, that under the Iowa statute referred to, the instru- 
 ment used for comparison is to be " proved to be genuine "—not 
 proved to the satisfaction of the court. Thus it would seem that 
 
VI. Handwriting. (4) Standards of Comparison. 487 
 
 Hall V. Van Vranken, 28 Hun, 403. 
 
 the question of genuineness in that state is one for the jury. We 
 cannot, for that reason, give much weiglit to flyde v. Woolfolk,, 
 (1 Iowa, 159). 
 
 An examination of the opinion in that case convinces us that 
 it cannot he taken as a well-considered expression of the law. 
 Doubt is therein expressed, whether a writing used for com- 
 parison can be proved by the testimony of witnesses, who have 
 only seen the party write, if they have not seen him write that 
 identical paper. And the court, in that case, does not appreciate 
 the reason of the old rule (abolished by the statute under consid- 
 eration) which forbade the introduction of writings, merely for 
 the purpose of comparison. 
 
 The statute allowing comparison of writings is most beneficial. 
 Anyone who has had experience in the trial of questions of dis- 
 puted handwriting, must have seen the worthlessness of expert 
 testimony. Nothing can be so useful on this class of questions, 
 which are generally perplexing, as to permit an examination with 
 other writings proved to be genuine to the satisfaction of the 
 court. And on this collateral matter we may safely repose a 
 liberal discretion in the trial judge, who sees much from the con- 
 duct of the parties that does not appear on appeal papers. 
 
 Judgment affirmed, with costs. 
 
 Note.— In Mortimer v. Chambers, 63 Hun, 835, an action was brought 
 under § § 1843-1850 of the Code of Civil Procedure, against defendants, as 
 devisees under the will of one Louisa F. Fardon, for the purpose of charg- 
 ing upon real estate devised to them certain alleged debts of the testatrix, 
 evidenced by her pi-omissory notes. 
 
 Upon the trial the plaintiff sought to compare the sig-nature of the 
 testatrix upon the notes with a signature which appeared upon a bond. 
 This bond with the mortgage collateral to it was produced and the bond 
 put in evidence, and the genuineness of the signature proven by the sub- 
 scribing witness. Held, that such practice was proper. Andrews, J. 
 [on this point] : The bond only appears to have been put in evidence. The 
 witness who produced these papers testified that he was an attorney in 
 this state, and, as the attorney of Mrs. S. E. Morgan, he held a bond and 
 mortgage given by Louisa F. Fardon to the Home Insurance Company, 
 which were the ones produced by him in court ; that he had the papers 
 first about two years ago, and that they were still outstanding liens on 
 the real property, described in the complaint in this action, and that the 
 witness had gone to the insurance company with an assignment of the 
 same. Mr. Coman, also called for the plaintiff, testified that he was an 
 
488 Abbott's Select Cases on Examining Witnesses. 
 
 Hall V. Van Vranken, 28 Hun, 403. 
 
 attorney and was the subscribing witness to tlie bond, and that the name 
 of the subscribing witness there was his own name and in his handwrit- 
 ing ; that he saw that paper executed by Mrs. Louisa F. Fardon. He also 
 testified as follows : " I saw her sign it. I know her. I searched the title 
 and had to do with the getting of this bond and mortgage from Mrs. Far- 
 don to the Home Insurance Company. I had charg-e of it. * * * I con- 
 nect Mrs. Fardon witli some Rockland County transaction, in addition to 
 this, but I cannot be more specific. * * * i have no doubt that Louisa 
 F. Fardon, who is the mortgagor in this instance, signed that in my 
 presence." It also appeared by the testimony that the plaintiff was the 
 sister, and that the defendant Marj' Ann Chambers was the daughter of the 
 testatrix ; also, that the plaintiff had at one time lived with the testatrix, 
 and at another time with said daughter ; and that the testatrix, with her 
 husband, had at one time lived upon the premises desci'ibed in the com- 
 plaint. We think that the evidence was sufficient to prove that Louisa 
 F. Fardon, the testatrix, was the same Louisa F. Fardon who signed the 
 bond, and that the signature to the bond was the signature -of the 
 testatrix ; and this established a sufficient basis for a comparison of the 
 signature upon the bond with tlie signature upon the notes. Mr. Ames, 
 an expert in handwriting, was called as a witness for the plaintiff, and 
 testified, in substance, that the signature of Louisa F. Fardon upon the 
 notes was written by the same person who wrote the signature Louisa F. 
 Fardon upon the bond. No contradictory evidence was offered by defend- 
 ant's counsel, although the defendant. Mar3' Ann Chambers, was called 
 as a witness, and, as she appears by her evidence to have been an intel- 
 ligent person, it may be fairly presumed that she was familiar with her 
 own mother's signature ; and it is, therefore, somewhat significant that 
 no attempt was made to prove by her that the signatures upon the notes 
 were not the genuine signatures of her mother. Moreover, another 
 significant fact is that when the plaintiff, the sister of the testatrix, was 
 on the stand, she was asked this question : "In whose handwriting is the 
 signature and in whose handwriting is the body of each of these three 
 promissory notes which have been shown you?" This question was 
 objected to by the defendant's counsel, and the objection was sustained. 
 We think that the making of the notes was sustained by the evidence. 
 
 It is also insisted by the counsel for the defendants that there was no 
 evidence that the notes in question, or any of them, were or was ever 
 delivered to the plaintiff, or that the testatrix ever negotiated or know- 
 ingly parted with the said notes. 
 
 The plaintiff, against the objection of defendant's counsel, testified upon 
 the trial that the notes in suit had been in her possession prior to the 
 month of December, 1880, when Mrs. Fardon died, and were in her pos- 
 session at the time of such death. 
 
 It is claimed that this was testimony in relation to a personal transac- 
 tion with the deceased, and that under Section 839 of the Code it was not 
 competent. We do not think this objection is well taken. In Simmons 
 V. Havens (101 N. Y., 433) it was said : " Exception was also taken to the 
 
YI. Handwriting. (4) Standards of Comparison. 489 
 
 Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557. 
 
 plaintiff .being' allowed to testify that she had the deed in her possession, 
 and that the ' signature was in the handwriting of her mother ; she was 
 not asked, and did not state, from whom she received tlie deed ; and her 
 testimony as to the handwriting- or the contents of the deed did not in- 
 volve a personal transaction between lier and her mother.' The plaintiff 
 might have received the deed from some third person." Counsel for the de- 
 fendants, in ills brief, points out some particulars wherein the case of 
 Simmons v. Havens differs from the case at bar. But the portion of the 
 opinion above quoted is clear and explicit, and whatever differences be- 
 tween the cases may exist, we think that the decision in that case applies 
 to and controls the case at bar (see also Taber v. Willetts, 44 Hun, 346 ; 
 Greer v. Greer, 20 N. Y. Civ. Pro. Rep., To; Wing v. Bliss, 8 N. Y. 
 Supp., 500). 
 
 MUTUAL LIFE INSURANCE COMPANY v. SUITEE. 
 
 New York Court of Appeals, 189-2. 
 
 [Rf-ported in 131 N. Y., 557.] 
 
 A party who claims that the signature in question in the action is not 
 hers, has a right under the acts of 1880 c. 36, and 1888, c. 555 to give in 
 evidence specimens sworn by her to be her own signature and made 
 before the controversy arose, in order to use them as standards of 
 comparison. 
 
 lu an action to foreclose a mortgage, plaintiff relied on an 
 assumption clause in a conveyance to the defendants which 
 purported to be executed and acknowledged by the defendants as 
 parties of the second part. 
 
 Upon the trial it was claimed by defendants that the alleged 
 signatures of the grantees to the deed as well as that of the 
 notary public to the acknowledgment were forgeries. 
 
 Plaintiif claimed that the defendant Mary A. Suiter had 
 written her own signature and the signature of her mother and 
 sister, (the other grantees) to the deed, and that then each of the 
 latter had made her mark. 
 
 The defendant Mary A. Suiter was called as a witness in her 
 own behalf and was asked the following question by her counsel 
 as to her signature written on a scrap of paper, marked, 
 " Exhibit D " : 
 
4:90 Abbott's Select Cases on Examining Witnesses. 
 Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557. 
 
 " Q. Did you write these words Mary A. Suiter, Manlius, 
 N. Y., on there ? A. Yes, sir. 
 
 Q. Is that your handwriting ? A. Yes, sir. 
 
 Q. You may state to the court when you wrote it ? A. About 
 two years ago. 
 
 Defendant's Counsel : I offer it in evidence. Of course we 
 had to gather this up the best way we could. 
 
 Plaintiff's Counsel : I object to it as incompetent, immaterial 
 and improper. It is in pencil. 
 
 The Court : I don't think the signature of a party written on 
 a loose scrap of paper at some time or another should be put in 
 evidence. I will sustain the objection. It would be a most 
 dangerous rule to adopt. I will sustain the objection on that 
 particular piece of paper. Defendant excepted. 
 
 Further examined by her counsel : 
 
 Q. I show you exhibit E. Is that in your handwriting ? A. 
 Yes, sir. 
 
 Q. How long ago did you write that? A. That is about 
 fo.urteen years ago. 
 
 Q. Is exhibit F. in your handwriting ? A. Yes, sir. 
 
 Q. What was the occasion of you writing that ? A. It was a 
 song and I wrote my name on it. 
 
 Q. How long ago ? A. About twelve or thirteen years ago. 
 
 Q. Is the body of it in your writing ? A. Yes, sir. It is all 
 in my writing. 
 
 Q. This exhibit E., how came you to vrrite that? A. That is 
 the song. 
 
 Q. Where has it been ever since ? A. I have had it lying on 
 the melodion. 
 
 Q. At home ? A. Yes, sir ; just came across it the other 
 day. 
 
 Defendants Counsel : I think those specimens, Exhibits E. and 
 F., should be put in evidence. 
 
 Plaintiff's Counsel : When was that written : did she say ? 
 
 Defendant's Counsel : Q. When was the last one written ? 
 A. About twelve or thirteen years ago. 
 
 Plaintiff's Counsel: I object to that as incompetent, im- 
 material and imj^roper. 
 
VI. Handwriting. (4) Standards of Comparison. 491 
 Mutual Life Ins. Co. of N. Y. v. Suiter, 131 N. Y., 557. 
 
 By Defendants Counsel : Q. Are these the only specimens of 
 your handwriting at home you could find to bring here ? A. I 
 have got some more in books, I didn't care about bringing in 
 court ; I didn't think they would be of any use. 
 
 Defendant's Counsel offered Exhibits E. and F. in evidence 
 for the purpose of comparison only. 
 
 Objected to as incompetent, immaterial and improper. 
 Evidence excluded. Exception taken." 
 
 The Supreme Court at Special Term directed judgment for 
 plaintiff. 
 
 The Supreme Court at General Term reversed the judgment. 
 
 The Court of Appeals affirmed the judgment of the General 
 Term. 
 
 Earl, J., {after stating facts] : It will be observed that these 
 three signatures were not excluded upon the ground that they 
 were not sufficiently proved, or that the judge was not satisfied 
 that they were genuine. We agree with the General Term that 
 these signatures should have been received in evidence for 
 comparison. 
 
 They would have given to the expert witnesses a wider range 
 for comparison. As it was, the only signatures they had for 
 comparison with the alleged forged signatures were the signatures 
 of Mary A. Suiter to her affidavit upon the answer and the 
 signature of Ann Suiter to her affidavit upon her answer in this' 
 action, which was written by Mary A. Suiter. So that there 
 was in evidence for comparison only one signature of the name 
 of Mary A. Suiter, with which the experts cou.ld compare the 
 alleged forged signature. We think the range of comparison 
 was altogether too narrowly limited, and that it could not be 
 thus arbitrarily confined. It cannot be said that the exclusion 
 of this evidence was harmless. It was rendered competent by 
 the act, chapter 36 of the Laws of 1880, as amended by the act, 
 chapter 5.55 of the Laws of 1888, and whatever the views of the 
 trial judge may have been as to its value or safety, he should 
 have received it. 
 
 For this rejection of this evidence the judgment was properly 
 
492 Abbott's Select Cases on Examining Witnesses. 
 
 Notes on Proof by Comparison. 
 
 reversed at the General Term, and its order should be affirmed 
 and judgment absolute rendered against the plaintiff, with costs. 
 All concur (Finch, J., in result), except, Peckham, J., not 
 sitting. 
 
 NOTES OF KECENT CASES ON PEOOF BY STAND- 
 AKDS OF COMPARISON. 
 
 Alabama: Snider v. Burks, 84 Ala., 53 ; s. o. 4 Southern Eep., 225 (upon 
 a contested probate of a will the court properly refused to allow contest- 
 ant to exhibit to a witness as to the handwriting of a deceased witness to 
 the will, for the purpose of comparison with the latter's signature to the 
 will, other papers not in evidence purporting to have been written by the 
 deceased witness) ; s. p. Gibson v. Ti'owbridge Furniture Co., 1893, 11 id., 
 365. California: Marshall v. Hancock, 80 Cal., 82 ; s. c. 22 Pacific Eep., 
 61 (where the genuineness of the signature of one who is justice of the 
 peace is in dispute, and the genuineness of his signature to his official 
 docket as justice has been proved to the satisfaction of the trial judge, the 
 docket is admissible in evidence for the purpose of comparison with the 
 disputed sig-nature without formal proof that it is a public record). 
 Illinois: Rogers t;. Tyley, 1892, 32 Northeast. Rep., 393 (the genuineness 
 of the handwriting of a letter may be established by comparison with 
 other instruments written by the same person by whom the letter pui-ports 
 to have been written which are already in evidence for other purposes) ; 
 s. p. Franks. Taubman, 31 111. App., 592; Himrod v. Bolton, 44 td., 516. 
 Travers v. Snyder, 38 id., 379 (it is error to allow the jury upon defend- 
 ant's request to compare defendant's disputed signature to the note in 
 suit with his signature to the plea ; it being obnoxious to the principle, 
 that a party should not be allowed to manufacture evidence for himself). 
 Gitchell V. Ryan, 24 id., 372 (the genuineness of a signature cannot be 
 proved or disproved by a witness comparing the disputed signature with 
 others admitted to be genuine). Bevan v. Atlanta Nat. Bk., 1892, 31 
 Northeast. Rep., 679 (where a witness has testified from his knowledge as 
 to the genuineness of a disputed signature, it is proper on cross-examina- 
 tion to show the witness another signature admittedly genuine and to 
 ask him whether he based his opinion on such signature, and whether its 
 spelling was not different from the disputed signature ; but the signature 
 shown tlie witness is not admissible in evidence for the purpose of allo^y- 
 ing a comparison of the handwriting). Indiana: Swales v. Grubbs, 126 
 Ind., 106; s. c. 25 Northeast. Rep., 877 (a witness for the adverse party 
 may compare the disputed signature with other signatures to instruments 
 signed by the party disputing his signature and introduced in evidence by 
 him for other purposes). White S. M. Co. v. Gordon, 1890, 24 Northeast. 
 Rep., 1053 (a signature to an instrument not in evidence and not admitted 
 to be genuine cannot be given in evidence for the purpose of allowing 
 
VI. Handwriting. (4) Standards of Comparison. 493 
 
 Notes on Proof of Comparison. 
 
 them to be compared with the disputed signature) ; s. p. Wallcer v. Steele, 
 121 Ind., 436; s. o. 32 Northeast. Rep., 142; Merritt v. Straw, Ind. App., 
 1893, 33 id., 657. Iowa: Sankey v. Cook, 82 Iowa, 125; s. c. 47 North- 
 west. Rep., 1077 (the standard of comparison must be so absolutely estab- 
 lished that the jury may be instructed as a matter of law that it is 
 g-enuine). Kansas: State v. Zimmerman, 47 Kan., 242; s. c. 27 Pacific 
 Rep., 999 (upon a trial for forgery where both the evidence for the State 
 and defendant show that an instrument has been genuinely executed by 
 the person whose signature is alleged to have been forged, it is error not 
 to permit the defendant to introduce such instrument in evidence for the 
 purpose of comparison with the disputed signature) ; s. p. Holmberg v. 
 Johnson, 45 Kan., 197; s. c. 25 Pacific Rep., 575. Maine: State v. Thomp- 
 son, 80 Me., 194 ; s. c. 13 Atlantic Rep., 892 (it is for the court and not for 
 the jary to determine whether the genuineness of the standard of com- 
 parison has been sufficiently proved ; and upon appeal an objection to its 
 admission will not be sustained unless there has been some erroneous 
 application of the law to the facts or it has been admitted without any 
 competent evidence as to its genuineness). Michigan: Dietz v. Fourth 
 National Bk., 69 Mich., 287 ; s. c. 37 Northwest. Rep., 230 (where a party 
 as a witness denies that a signature is his and on cross-examination admits 
 that signatures to other instruments foreign to the cause are genuine, it 
 is error not to admit such instruments in evidence for the purpose of al- 
 lowing the jury to compare their signatures with the disputed signature). 
 Missouri: Edmonston u. Henry, 45 Mo. App., 346 (a signature to a docu- 
 ment not a part of the case cannot be proved with a view of using it as a 
 standard of comparison of a party's handwriting). NebrasTca: Grand Isl- 
 and Bkg. Co. V. Shoemaker, 18.92, 47 Northwest. Rep., 696 (orders on a 
 school fund drawn by defendant, who was treasurer of a school district, 
 and shown to be genuine, &re admissible in evidence to enable the jury to 
 make comparison with the signature of a note purporting to have been 
 made by defendant). New York: McKay v. Lasher, 121 N. Y., 477; s. c. 
 34 Northeast. Rep., 711 (documents used for comparison of handwriting 
 may be proved according to the general rules of evidence applicable to the 
 proof of handwriting and need not be established by the testimony of a 
 witness w^ho saw the party write them). Mortimer v. Chambers, 63 Hun, 
 335 ; s. c. 17 N. Y. Supp., 874; 43 State Rep., 365 (a standard of compari- 
 son may be sufBoiently established by a witness who has seen the person, 
 whose signature is disputed, write). People v. Pinckney, 67 Hun, 428 ; 
 s. c. 33 N. Y. Sup., 118 (a jury can only compare writings in aid of wit- 
 ness' testimony ; and it is error to submit them to the jury unless the 
 ■witness has first examined them). Mutual Life Ins. Co. v. Suitor, 131 
 N. Y., 557; s. c. 39 Northeast. Rep., 833 (it is error not to permit the 
 party, v;ho denies that he executed the instrument in suit to introduce in 
 evidence for the purpose of comparison other writings satisfactorily 
 proven to be executed by him). Bruyn v. Russell, 52 Hun, 17 ; s. c. 4 
 N. Y. Supp., 784; 33 State Rep., 374 (comparison of handwriting is con- 
 flnedto the disputed signature and the genuine handwriting of the person 
 
494 Abbott's Select Cases on Examinin© Witnesses. 
 
 Notes on Proof o£ Comparison. 
 
 by whom such signature purports to have been written ; a comparison 
 cannot be made between the disputed signature and the admitted genuine 
 handwriting of the person who is charged with the forgery). North 
 Carolina: Tunstall i;. Cobb, 109 N. C, 316; s. c. 14 Southeast. Rep., 38 
 (it is error to allow an expert to compare the disputed signature with the 
 handwriting of a paper not in evidence or admitted to be genuine, and 
 which depends on proof for its authenticity). Croom v. Sugg, 110 N. C, 
 359 ; s. c. 14 Soutlieast Rep., 748 (in an action against executors who deny 
 that a bond was executed by their testatrix, defendants are estopped to 
 deny the genuineness of testatrix's signatui'e to the will, and an expert 
 may be allowed to compare the signature thereto with the signature to 
 the bond). Fuller v. Fox, 101 N. C, 119; s. c. 7 Southeast. Rep., 589 
 (though an expert may compare a signature admitted to be genuine with 
 the signature in dispute, it is not error not to allow the signature used as 
 the standard of comparison to be submitted to the jury ; the jury are not 
 experts and cannot make a comparison of handwriting) ; s. p. Forbes v. 
 Wiggins, 113 N. C, 133; s. o. 16 Southeast. Rep., 905. Oregon: Holmes 
 V. Goldsmith, 147 U. S., 150; s. o. 13 Supm. Ct., 388 (under 1 Hills Oreg. 
 Ann. L., § 765, the introduction of papers otherwise incompetent in evi- 
 dence for the purpose of enabling the jury to make a comparison of hand- 
 writing is proper). South Carolina : United States v. McMillan, U. S. 
 Dist. Ct., E. D., S. C, 1886, 39 Fed. Rep., 347 (in South Carolina papers 
 can only be offered in evidence as a standard of comparison when no col- 
 lateral issue can be raised concerning them). Tennessee: Powers ■«. Mc- 
 Kenzie, 90 Tenn., 167 ; s. c. 16 Southwest. Rep., 559 (the genuineness of a 
 deed being the matter in controversy other writings of the parties or wit- 
 nesses thereto, which are deemed genuine by the court may be admitted in 
 evidence under the Act of 1889, c. 33, though otherwise irrelevant, for the 
 purpose of allowing them to be compared with the disputed instrument 
 by an expert witness, and to be considered with the opinions of such wit- 
 ness as evidence in the cause) ; s. p. Franklin v. Franklin, 90 Tenn., 44 ; 
 s. c. 16 Southwest. Rep., 557. Vermont: Row'ell v. Fuller, 59 Vt., 688 ; 
 s. c. 10 Atlantic Rep., 853 (when a signature is in dispute and other signa- 
 tures are offered in proof as standards of comparison, it is error for the 
 court, without determining itself whether the signatures to be used for 
 comparison are genuine, to admit them in evidence and let them go to the 
 jury with a statement that if the jury should be satisfied upon full 
 examination of all the proof that such signatures were not genuine, the 
 comparison would go for nothing). 
 
VI. Handwriting. (5) Experts. 495 
 
 Miles V. Loomis, 75 N. Y., 288. 
 
 MILES V. LOOMIS. 
 
 New Yorlc Court of Appeals, 1878. 
 
 [Reported in 75 N. Y., 288.] 
 
 A witness, who is qualified as an expert, may, at tiie trial, compare the 
 disputed signature with other signatures, the genuineness of which 
 has been established, and is competent to give his opinion as to the 
 genuineness of the signature in dispute. 
 
 Such witness may also state whether, in his opinion, the disputed signa- 
 ture is simulated. 
 
 Defendants were sued, as executors of James M. Miles, upon 
 a promissory note, purporting to have been made by deceased. 
 Defendants claimed that the note was forged. 
 
 Upon the trial, plaintiff put in evidence the disputed note, 
 which was marked " Ex. No. 2." The defendants put in evi- 
 dence, without objection, a note, the body of which, including 
 the name of James M. Miles, was proved to be in the handwrit- 
 ing of the deceased, and the same was marked " Exhibit A." 
 They also put in evidence, without objection, the deceased's 
 will, which had been duly probated ; this was marked " Exhibit 
 B." John W. Truesdell was called by defendants and, after 
 qualifying as an expert, was asked : " Won't you look at the 
 body of this note, 'Ex. A,' and particularly at the name of 
 James M. Miles, which appears in the body, and also at the sig- 
 nature of James M. Miles to that will ; now look at the signature 
 of Ex. No. 2. Assuming that the name of James M. Miles in 
 the body of Ex. ' B ' and the signature of James M. Miles to 
 the will which you have before you are genuine signatures, what 
 is your opinion as to the genuineness of the signature attached 
 
 to E? No. 2 ? 
 
 Objected to as incompetent ; that such comparison of hands 
 cannot be made by experts. Objection overruled and exception 
 taken. 
 
 A. I should say that this handwriting (Ex. No. 2) does not 
 agree with this one (Exs. 'A ' and 'B'). I should not think 
 that the same person wrote it : I should say these two (Exs. A 
 and B) were written by the same person. This (Ex. No. 2) I 
 don't think could be. 
 
496 Abbott's Select Cases on Examining Witnesses. 
 Miles V. Loomis, 75 N. Y., 388. 
 
 Q. Now, I would ask you whether, in your opinion, the sig- 
 nature to Ex. No. 2 is a simulated signature ? 
 
 Objected to as incompetent ; objection overruled and excep- 
 tion taken. 
 
 A. Yes, sir ; I think there is an effort to imitate this hand in 
 the other two instruments." 
 
 Defendants recovered. 
 
 T/ie iStcpreme Court at General Term affirmed the judgment. 
 
 Talcott, J. [after reviewing numerous authorities said]; We 
 think that the weight of authority and the tendency of modern 
 decisions is to establish the rule, that experts may be examined 
 to give their opinions from a comparison of a disputed signature 
 with other genuine writings in evidence in the cause, and to state 
 from an examination of the genuine writings and the disputed 
 signature whether the latter appears to be simulated ; of course 
 all these signatures are open to the examination of the referee 
 or jury, and they are not concluded by the opinions of the 
 experts, but may hear those opinions on the subject, giving them 
 such weight as in view of all the circumstances they may deem 
 them entitled to. 
 
 The Court of Appeals affirmed the judgment. 
 
 Hand, J. {after holding that, since no objection had teen 
 talcen at the trial, appellant could not on appeal question the 
 admissibility of the documents containing the genuine signa- 
 tures'] : Treating, therefore, these two signatures of the testator 
 as properly in evidence, the question is, whether experts in 
 handwriting could be permittsd, upon comparison in court of 
 these signatures with that of the note in suit, without any other 
 knowledge of the testator's writing, to express an opinion as to 
 the genuineness of the latter, and as to whether it appeared a 
 natural or simulated hand. 
 
 The statement of the learned counsel for the appellant, that 
 precisely this kind of evidence has never yet been held proper 
 by the court of 'last resort in this state is, we believe, accurate, 
 although it comes in principle within the decision in Dubois v. 
 Baker (30 N. Y., 355, 361). Indeed, I think it must be conceded 
 
VI. Handwriting. (5) Experts. 497 
 
 Miles V. Loomis, 75 N. Y., 288. 
 
 tliat the earlier cases adjudged in onr courts lean pretty decidedly 
 against the admissibility of such evidence. In this respect we 
 were formerly more strict than any of the other states. (People 
 V. Spooner, 1 Den., 343 ; Jackson ex deni. v. Phillips, 9 Cow., 
 112 ; Phoenix F. Ins. Co. v. Philip, 13 Wend., 81.) Our courts 
 followed, of course, the common law, which was supposed to 
 •difier from the practice of the civil and ecclesiastical courts. 
 The nisi prius decisions in the Enghsh courts, although not in 
 entire harmony (Allesbrook v. Koach, 1 Esp., 351), and much 
 criticised by the text writers, were generally hostile to the ad- 
 mission of comparison by experts, until, by the act of parliament 
 in 1854, such evidence was declared legitimate (Stranger v. 
 Searle, 1 Esp., 14 ; Clermont v. Tullidge, 4 Car. & P., 1 ; Kex 
 V. Cator, 4 Esp., 117). Even, however, before the passage of 
 that act, a jury was allowed, itself, to institute the comparison, 
 but only with documents in evidence before them and relevant 
 to the issue (Doe dem. Perry -y. Newton, 5 Ad. & EIL, 514; 
 Solita V. Yarron, 1 Moo. & Kob., 133 ; GrifSths v. Williams, 1 
 Cro. & Jer., 47 ; Bromage v. Kice, 7 C. & P., 547). 
 
 In Doe V. Suckermore, decided in 1836, the whole subject 
 received very great consideration, four judges of the King's 
 bench delivering elaborate opinions, reviewing the cases very 
 iuUy, and discussing very thoroughly the principles upon 
 which evidence of this character should be received or ex- 
 cluded. The rule seemed to be conceded in that case by all 
 the judges, that as to any but ancient writings, an opinion 
 formed upon a mere comparison of hands at the trial eo instanti, 
 was not admissible, but they were equally divided upon the 
 ■question whether a knowledge of the handwriting might be 
 obtained by a skilled person sufficient to render him a witness 
 ■competent to speak as to the genuineness of the signature merely 
 by a previous examination of other signatures proved to be 
 genuine (Lord Denman, Ch. J., 5 Ad. & Ell., 737 ; Williams, 
 J., id., 718). -This distinction is admitted to be subtle, but seems 
 to have prevented the concurrence of these two judges with 
 Coleridge and Patterson, JJ., in refusing the rule for a new 
 trial. It is to be observed that the decisions to which I have 
 referred were as to evidence of experts, that a signiture was or 
 
498 Abbott's Select Cases on Examining Witnesses. 
 
 Miles u Loomis, 75 N. Y., 288. 
 
 was not that of the party whose it purported to be. Upon the 
 question, whether a signature upon its bare inspection alone 
 appeared to be simulated and not natural, persons professing the 
 skill to speak have been more often admitted, although this 
 species of evidence has been declared not entitled to any credit 
 (L'd Denman, 5 Ad. & Ell., supra). 
 
 In our own state, the legislature has not interfered as in 
 England, but the courts have in their later decisions shown a 
 disposition to relax the rule. It has been conceded here that 
 while documents could not be put in evidence for the purpose of 
 comparison, yet, as in the English courts, those, which were in 
 for other purposes, might be compared with the disputed signa- 
 ture by the jury (T. A. Johnson, J. Van Wyck v. Mcintosh^ 
 4 Kern., 439 ; Leonard, Com. Kandolph v. Loughlin, 48 N. Y., 
 456) ; and in Dubois v. Baker (30 N. Y., 355, 361), the majority 
 of the judges held evidence admissible which cannot in principle 
 be distinguished from that admitted in the present case. Da vies, 
 J., indeed, in delivering the opinion expressly says " a comparison 
 of the handwriting of papers introduced and relevant is permit- 
 ted, to ascertain the genuineness of the one in controversy ; " and 
 Mullen, J., though dissenting on other grounds concurred in 
 this (30 ]Sr. Y., 366). 
 
 Although this decision lays down, as has been already inti- 
 mated, a somewhat more liberal rule as to evidence of handwriting 
 than had previously prevailed in this state, yet it has been gene- 
 rally acquiesced in, is in conformity with the law in other states,, 
 and seems to have become an established practice in the trial 
 courts. (See Goodyear v. Vosburgh, 63 Barb., 154 ; Johnson v. 
 Hicks, 1 Lans., 160 ; Koe v. Eoe, 40 Superior Court (8 J. & S., 1). 
 
 We are very strongly of the opinion that it is sounder in prin- 
 ciple than the more narrow one, and in no respect an infringe- 
 ment upon any wholesome and just limitation of expert tes- 
 timony. 
 
 Evidence of handwriting, it is universally conceded, may be 
 opinion merely. It is as universally conceded that a witness 
 who has either never seen the party write, or who, not hav- 
 ing seen him write, has received letters from him which have 
 been " acted upon " by him as genuine, is competent to give 
 
VI. Handwriting. (5) Experts. 499' 
 
 Miles V. Loomis, 75 N. Y., 388. 
 
 an opinion as to his liandwriting. And this competency is not 
 afEected by the lack of frequency of observation, the length 
 of time which has elapsed since the writing was seen, or the 
 slightness of the correspondence, although the weight of the 
 opinion will of course depend much upon these circumstances. 
 
 From what in these eases is the opinion derived, if not from a 
 mental comparison of hands ? The signature is presented to the 
 witness and his only means of forming an opinion upon it is by 
 recalling with more or less distinctness to his mind images of the 
 signatures he has either seen made or attached to letters received,, 
 and comparing them with the one presented for his opinion. 
 This is certainly a '.' comparison of hands " and in my judgment 
 no favorable distinction as to accuracy or safety can be made be- 
 tween such a mental process and that of the expert who has be- 
 come quick by practice in detecting identity of hands, and also 
 compares in his mind and with his eye the one in question with 
 other signatures as certainly genuine as those which the ordinary 
 witness has seen written or received in letters. The comparative 
 weight of the two kinds of evidence is not the question under 
 consideration. The opinion of the ordinary witness, founded 
 only upon a mental comparison of the disputed writing with a 
 single signature seen by him twenty years before, would be 
 worth little, but it would undoubtedly be competent (Jackson 
 ex. dem. v. Van Dusen, 5 Johns., 144 ; Eagleton v. Kingston, 
 8 Ves., 473). So the opinion of an expert founded upon a com- 
 parison with but one or two genuine signatures should not per- 
 haps be regarded as of much value, but it still has every claim, 
 in principle, to competency possessed by the other. Nor does 
 the distinction sought to be raised by Lord Denman in Doe v. 
 Suckermore {supra) between an opiaion of an expert who has. 
 previously examined other genuine signatures put in evidence 
 and then is called to speak as to genuineness from his knowledge 
 of the signature thus gained, without actual comparison before 
 the court, and one given upon an examination or comparison in 
 court of the signatures and without any previous knowledge, 
 seem on scrutiny to be well grounded or practicable. It would 
 be impossible to draw a line between these processes. It is un- 
 doubtedly true that the opinion as to handwriting should depend 
 
•500 Abbott's Select Cases on Examining "Witnesses. 
 
 Mi)es V. Lopmis, 75 N. Y., 388. 
 
 not so much upon mathematical measurements and minute criti- 
 cisms of lines, nor their exact correspondence in detail, when 
 placed in juxtaposition with other specimens, as upon its general 
 character and features as in the recognition of the human face. 
 But in the case of one expert, his mental image or idea of the 
 genuine handwriting may become as clear and vivid and accurate 
 by an examination of the other signatures on the instant as in 
 the case of another of less practice or quickness of perception 
 after hours or days of study. The amount of knowledge gained 
 by this study and the length of time and frequency of opportunity 
 to gain it affect the weight of the evidence as in the case of the 
 ordinary witness, but cannot pi'operly decide its competency. 
 
 The principal objections which have been raised to the com- 
 parison of hands are two : First, the introduction of numerous 
 and distracting collateral issues as to the genuineness of the 
 signatures to be compared. As to each one of these, it is said 
 there might be the same controversy as with regard to the 
 original signature, and the further introduction of the comparison 
 of hands and so the number of issues to be decided be without 
 end. But this objection seems tolerably met by the restriction 
 of the signatures to be compared to those necessarily or properly 
 proved in the case as relevant evidence for other purposes and 
 upon the genuineness of which, if there is any controversy about 
 them, the jury must pass in any event. This limitation, it must 
 be conceded, is not very philosophical or logically satisfactory, 
 but is justified by the necessity of the case, and at all events 
 answers the objection of collateral issues. Second, the second 
 objection to the comparison of hands is that no man writes always 
 the same signature and the specimens will be unfairly selected 
 as being unlike or like the signature in dispute according to the 
 interest of the party producing them. They will not be fair 
 average specimens of the general character of the handwriting 
 (Dallas, C. J., Burr v. Harper, Holt, N. P. C, 44). That, conse- 
 quently, the expert, to whom they are submitted, will have no 
 ■opportunity of obtaining an accurate notion of the ordinary 
 natural hand ; and as illustrative of this objection, the decision 
 of Lord Kenyon is cited, who refused to allow a witness to give 
 .an opinion, whose only knowledge was from the signatures he 
 
VI. Handwriting. (5) Experts. 501 
 
 Miles V. Loomis, 75 N. Y., 288. 
 
 had seen the party himself write for the avowed purpose of 
 showing .his true manner of writing (Stranger v. Searle, 1 Esp., 
 11). The force of this objection also is, I think done away by 
 the restriction of the rule to signatures relevant in the cause for 
 other purposes and as to which therefore there could hardly be 
 any selection of the signatures for the purpose of comparison. 
 
 On the whole, therefore, I am inclined to concur in the sound- 
 ness of the doctrine upon this point contended for in the most 
 approved text writers upon evidence. " It cannot be denied " 
 says Mr. Starkie (Starkie on Evi., vol. 2, p. 375), " that abstractly 
 a witness is more likely to form a correct judgment as to the 
 identity of handwriting, by comparing it critically and minutely 
 with a fair and genuine specimen of the party's handwriting- 
 than he would be able to make by comparing what he sees with 
 the faint impression made by having seen the party write but 
 once, and then, perhaps, under circumstances which did not 
 awaken his attention." " When other writings " says Prof. 
 Greenleaf (Greenl. on Evi., § 578), " admitted to be genuine are 
 already in the case, here comparison may be made by the jury 
 with or without the aid of experts." (See also, Phillips on Evi., 
 vol. 1 [6th ed.J, 472; Evans' note to Pothier on Contracts,, 
 2 Evans' Pothier, p. 185.) 
 
 My conclusion is that there was no error in the admission of 
 the evidence of experts before the referee. 
 
 The counsel for appellant insists here that the witnesses called 
 by the defendants as experts were not qualified as such, but no 
 such objection was taken upon the trial. These witnesses were,^ 
 however, we think, shown to be sufficiently competent to give 
 the opinions upon handwriting. They had been engaged in oc- 
 cupations in which it was their duty to scrutinize handwritings. 
 and detect forgeries and had acquired more or less skill l>y 
 practice. 
 
 All concurred, except Andeews, J., absent. 
 
 Judgment affirmed. 
 
502 Abbott's Select Cases on Examining Wi'toesses. 
 People V. Severance, 67 Hun, 182. 
 
 PEOPLE V. SEYEEANCE, 
 
 N. Y. Supreme Court, Fourth Dejyartment, 1893. 
 
 [Reported in 67 Hun, 183.] 
 
 A witness who has no knowledge of the handwriting of a person ex- 
 cept from seeing a signature that has been proved on the trial to be 
 genuine, cannot, even though an expert, be asked directly as to the 
 genuineness of the signature in issue ; but should be confined to com- 
 paring the two writings and giving an opinion as to whether they 
 were written by the same person. 
 
 The defendant was indicted for making a false entry in an 
 account book of a corporation, while an officer thereof, with an 
 intent to defraud. 
 
 Upon the trial for the purpose of proving that defendant had 
 made the false entries, the people called one Myers. He testi- 
 fied that he had never seen the accused write, but gave testimony 
 to show he was an expert as to handwriting. The witness was 
 then shown a paper which contained a signature which had been 
 proved to be the accused's, and a second paper being handed him, 
 he was asked by the prosecution : 
 
 Q. In your opinion as an expert, was the writing upon that 
 [paper] done by the same person that signed this signature ? 
 
 Objected to as an improper method of proving handwriting. 
 Overruled and exception to defendant. 
 
 A. It is in Mr. Severance's handwriting. 
 
 Defendant's counsel moved to strike out the answer as not 
 responsive. Denied ; defendant excepts. 
 
 The witness subsequently testified in detail that numerous 
 writings shown him were " in Mr. Severance's handwriting." 
 
 Further facts appear in the opinion. 
 
 At the Court of Sessions, the defendant was convicted. 
 
 The General Term of the Supreme Court reversed the judg- 
 ment. 
 
 Martin, J. [after passing on another questiori] .- The people 
 also called a3 a witness one Lawrence W. Myers, who claimed to 
 be an expert both in bookeeping and as to handwriting. He 
 
YI. Handwriting. (5) Experts. 503 
 
 People V. Sevei'ance, 67 Hun, 182. 
 
 testified at great length, not only as to the propriety of the man- 
 ner in which the boots of the bank were kept, bnt was permitted 
 to testify unqualifiedly that a great many papers and entries in 
 the books were in the handwriting of the defendant, although it 
 was shown by the undisputed evidence that he had never seen 
 the defendant write, and there was evidence but a single signa- 
 ture that was proved to be that of the defendant. 
 
 On the occasions referred to, of which there was a great num- 
 ber, he was, in substance asked : " Is the writing I show you in 
 defendant's handwriting?" These questions were objected to 
 by the defendant on the ground, among others, that the witness 
 was not qualified to testify on that subject. These objections 
 were overruled, and the defendant duly excepted. 
 
 The writings were then ofEered in evidence without any other 
 3)roof as to their having been made by the defendant, to which he 
 duly objected, and they were admitted by the trial court under his 
 objection and exception. The propriety of admitting suchproof 
 of the defendant's handwriting and then admitting in evidence 
 the writing, with no other proof of its genuineness, is sharply 
 presented by the various objections and exceptions made and taken 
 by him. Indeed a large portion of the written evidence received 
 against the defendant was verified in this manner only. The 
 people attempted to justify these rulings under the provisions of 
 the statute which provide that comparison of a disputed writing, 
 with any writing proved to the satisfaction of the court to be 
 genuine, shall be permitted to be made by witnesses in all trials 
 and proceedings, and such writings, and the evidence of the wit- 
 nesses respecting the same may be submitted to the court and 
 jury as evidence of the genuineness, or otherwise of the writing 
 in dispute. (La-sre 1880, chap. 36, § 1.) 
 
 It may be observed that this statute only permits a comparison 
 to be made by a witness of a disputed writing with any writing 
 proved to be genuine, and the submission of such writings, and 
 the evidence of such witnesses to the court and jury, as evidence of 
 the genuineness or otherwise, of the writing in dispute. Although 
 this statute permits the comparison of a genuine handwriting of 
 a person with that of a disputed instrument, we find in it no 
 authority which would justify a court in permitting a witness to 
 
50-i Abbott's Select Cases on Examinikg Witnesses. 
 
 People V. Severance, 67 Hun, 183. 
 
 testify to tlie handwriting of a person, wlien he had no knowledge 
 of its genuineness, except from having seen a signature that was 
 proved to be genuine. In this case, the witness had never seen 
 the defendant write, nor was there any claim that he had ever 
 received documents purporting to be written by defendant, 
 in answer to documents written by the witness or under his 
 authority, or that, in the ordinary course of business, documents 
 purporting to be written by the defendant had been habitually 
 submitted to the witness. 
 
 As this witness was not qualified to give evidence as to the 
 handwriting of tlie defendant, except as he compared the writ- 
 ings in dispute with the one proved to be genuine, he should not, 
 we think, have been permitted to testify positively, that these 
 different entries and papers were in defendant's handwriting. 
 His evidence should have been confined to a comparison of the 
 handwriting of the genuine paper with the handwriting of those 
 in dispute, and to his opinion that they were or were not written 
 by the same person. Upon such an examination, the jury would 
 have readily understood that his evidence was confined to a com- 
 parison of the writings, and his opinion was based thereon, which 
 would naturally have given it less weight than his positive testi- 
 mony, when the fact that he had no knowledge of the defend- 
 ant's writing, except by such comparison, might have been easily 
 forgotten by the jury. Such proof was all that was justified by 
 the statute, and all that should have been allowed. He was also 
 permitted to testify that a paper was in the defendant's hand- 
 writing which was not presented to the court or jury, and which 
 he had not seen since the standard offered in evidence was 
 proved to be genuine, and upon this proof he was then permitted 
 to give secondary evidence of the contents of swch paper. We 
 think the admission of this evidence, in the form in which it was 
 given, was error. 
 
 [Other rulings are here omitted.'] 
 
 All the judges concurred ; Meewin, J., in result. 
 
 Judgment reversed. 
 
VI. Handwriting. (5) Experts. 505 
 
 Sudlow V. Warsliing-, 108 N. Y., 530. 
 
 SUDLOW V. WAESHING. 
 
 New Torh Court of Appeah, 1888. 
 
 [Reported in 108 N. Y., 530.] 
 
 In an action involving- the genuineness of a deed, the plaintiffs denied the 
 genuineness of the signatures thereto, but testified that they bore a re- 
 semblance to their signatures and to those of tlie other grantors, and 
 one of them testifled that what purported to be his signature to tlie 
 deed was a fair imitation. Held, not error to allow an expert in liand- 
 writing, called bj' defendants, to be asked what evidence, if any, lie 
 found in the signatures to the disputed deed, of their being " simulated 
 imitations instead of genuine signatures." / 
 
 Action of ejectment by lieirs-at-law. The defense set up a 
 deed by the widow and heirs-at-law to defendant's grantor. The 
 issue tried was whether this deed was a forgery. 
 
 Upon the trial testimony was given by plaintiffs that the signa- 
 tures on the deed bore a resemblance to their signatures, and one 
 of them testified that what purported to be his signature was a 
 fair imitation. 
 
 Daniel T. Ames, an expert in handwriting, was afterwards 
 called by the defendants and asked : " What evidence, if any, 
 do you find in the signatures to the disputed deed, of their being 
 simulated instead of genuine signatures ? " 
 
 Objected to as immaterial and incompetent. 
 
 Objection overruled and exception taken. 
 
 A. " None, whatever." 
 
 At Trial Term judgment was entered for defendants. 
 
 The Court of Cotiimon Pleas at General Term affirmed the 
 judgment without opinion. 
 
 The Coxirt of Appeals afiirmed the judgment. 
 
 Gray, J. {after stating the facts'] : Plaintiffs excepted to the 
 allowance of this question and based their exception on the case of 
 Kowing V. Manly, decided by this court in 1872 (49 N. Y., 192'. 
 What was precisely decided' in that case was, that where the 
 plaintiff had not introduced any evidence to show that a paper, 
 produced and relied upon by the defendants, was in a simulated 
 
506 Abbott's Select Cases on Examining Witnesses. 
 
 Dresler v. Hard, 137 N. Y., 235. 
 
 handwriting, but had merely testified that it was not written by 
 him, it was not competent for the defendants to offer evidence to 
 prove that the paper was in a simulated handwriting. 
 
 In the present case a state of facts is presented which did not 
 exist in the case cited. Here two of the grantors in the deed 
 were dead, namely, the widow and a son of John W. Sudlow. 
 These plaintiffs, while denying the genuineness of the signatures 
 to the disputed deed, testified that they bore a resemblance to 
 their signatures and to those of the deceased grantors, and, in at 
 least one instance, the witness testified to the signature being a 
 fair imitation of his own. Comparisons of the disputed deed 
 with other writings, conceded to be genuine, were also made 
 through the witnesses. That was sufficient to warrant the allow- 
 ance of the question. 
 
 In Miles v. Loomis (T5 N. Y., 288), it was decided that it was 
 competent for experts, upon a comparison of signatures without 
 any other knowledge of testator's writing, to express an opinion 
 as to whether the disputed writing appeared a natural or simu- 
 lated hand. Since the decision in Kowing v. Manly, Chapter 
 36 of the Laws of 1880, was passed, by which the rules of evi- 
 dence in respect of disputed handwritings were enlarged beyond 
 what had been permitted under then existing rules (Peck v. 
 Callaghan, 95 N. Y., 73). 
 
 DEESLEE V. HAED. 
 
 JVew York Court of Appeals, Second Division, 1891. 
 
 [Reported in 137 N. Y., 235.] 
 
 Where a material word in a writing is obscure, expert opinion is compe- 
 tent as to what such word is, based on a comparison of such instru- 
 ment with other exhibits in the case in tlie handwritmg- of the same 
 person. 
 
 Plaintiff sued to recover moneys paid toward the purchase price 
 of stock, to defendants, who, on their part, alleged, delivery of 
 the stock. 
 
 The defendants offered in evidence a receipt in the handwrit- 
 
VI. Handwriting. (5) Experts. 507 
 
 Dresler v. Hard, 127 N. Y., 285. 
 
 ing of defendant, Blauvelt, signed by plaintiff ; a dispute arose 
 over a material fact, whether the date of the receipt was January 
 or July, the abbreviation being " Jay " or " Juy." To support 
 their contention that the date was January, defendants introduced 
 in evidence various papers relating to transactions between the 
 plaintiff and the defendant Blauvelt, in the latter's handwriting. 
 Other material facts appear in the opinion. 
 
 At Trial Term., plaintiff had a verdict. 
 
 The General Term of the Superior Court affirmed the judg- 
 ment. 
 
 They were of opinion that, although an expert might give his 
 opinion of the handwriting, he could not be asked whether the 
 date was January or July, as it was the office of the jury to find 
 what the date was. 
 
 The Court of Appeals reversed the judgment. 
 
 PoTTEE, J. [after stating the facts] : The defendant called an 
 expert to show that the date of the receipt was " January," and 
 not " July." For that purpose the defendant asked "this ques- 
 tion : " Will you state from the examination which you have 
 made of Exhibit B, and of the comparison you have made between 
 the handwriting of that and the handwriting on these other 
 exhibits, in Mr. Blauvelt's handwriting, what your opinion is with 
 reference to that date on that paper?" This question was 
 objected to by the plaintiff, but not upon any specific ground. 
 The court excluded the question, manifestly upon the ground 
 that the question calls for the opinion of the witness as to what 
 the word or characters mean. 
 
 To make the point of the proposed evidence and ruling more 
 precise, the defendants' counsel asked this question : " Q. I ask 
 you to compare it with the exhibit you have in your hand, and 
 then I desire to ask the question again whether, in your opinion, 
 the word written at the heading of defendants' Exhibit B, in the 
 place of the date, is January or July ; " which, upon plaintiff's 
 objection, was also excluded. Tlie defendants' counsel excepted 
 to the rulings. 
 
 We think the learned trial judge erred in excluding the evi- 
 
508 Abbott's SEf-ECT Cases on Examining "Witnesses. 
 
 Dresler ■«. Hard, 127 N. Y., 235. 
 
 dence. We will assume, as stated in the language of the courts 
 that the object of the proof was to show by the witness what the 
 words and characters indicating the date of the receipt were. 
 The principle involved is whether it may be shown what the 
 word in a written instrument is. To a person or a juror (if we 
 may suppose the latter case) who can neither read nor write it is 
 indispensable that someone who can should be allowed to testify 
 what the words are. This course would be necessary in such 
 case, however plainly written or printed the word might be. 
 Upon the same principle it is allowable for the jurymen, who are 
 perhaps only moderately skilled in letters and words, to deter- 
 mine what the letters and characters are, and what word they 
 make. The jurors may do this from the knowledge they 
 already possess and such as they gain during the trial by the 
 reading and the comparison they make with other writings already 
 introduced in evidence. Indeed, the court held in the opinion 
 in this case at general term that the jury might compare the 
 receipt in question with the dates and letters in the note and the 
 other writings to determine the date of the receipt. If such 
 comparison may be made by unskilled jurymen, why should they 
 not be aided and enlightened, as they may be in analogous cases 
 of the genuineness of handwriting, alterations, and assimilations, 
 by men who have made the subject of handwriting a study, and 
 have obtained skill and proticiency in that branch of knowledge. 
 As no objection was made that the witness was incompetent it 
 must be assumed that he was qualified as an expert to give his 
 opinion, and the grounds of it, in aid of the jury. Van Wycklen 
 V. City of Brooklj-n, 118 E". Y., 424, 429, and the cases there 
 cited ; Masters v. Masters, 1 P. Wms., 425 ; Rogers on Exp. 
 Test, § 128. 
 
 If we analyze the practical processes which have to be gone 
 through with in order to elicit and apply this kind of evidence, 
 whether from experts or lay witnesses, we shall iSnd that the 
 witness is required to examine and determine what the letters 
 and characters or even hieroglyphics are, and what word they 
 form in combination. The word thus formed may be in a native 
 or foreign language ; and, if it is foreign, then another process 
 is yet to be gone through with before it can reach the appre- 
 
YI. Handwriting. (5) Experts. 509 
 
 Dresler v. Hard, 127 N. Y., 235. 
 
 hension of the lay mind, and that is, to interpret its meaning into 
 the native language of the juror. The testimony of expert wit- 
 nesses frequently exemplify one or both of these processes, and 
 are of common use in the investigations carried on in courts of 
 justice, and in other avocations. It often becomes necessary and 
 pertinent in judicial proceedings to introduce foreign laws, and to 
 interpret their meaning to the comprehension of the juror not 
 familiar with the foreign language. 
 
 "We think these views are abundantly supported by adjudicated 
 cases. In Sheldon v. Benham, 4 Hill, 129-131, a skilled book- 
 keeper was allowed to show the words indicated, ^and the mean- 
 ing of certain characters and abbreviations of entries made by a 
 deceased officer of the bank. In the opinion in that case Judge 
 Beonson says : " I see no objection to the testimony of the book- 
 keeper in relation to these memoranda. He was not called to 
 give a construction or to declare the legal effect of a written 
 instrument ; but, as a person skilled in such matters, to tell the 
 jury what words these short entries stood for. It is not unlike 
 the case of an instrument written in a foreign tongue, where a 
 translator may be called in to tell the jury how the instrument 
 reads." " Where the difficulty arises from the obscurity of the 
 writing itself — e. g., if it be illegible from lapse of time, acci- 
 dent, etc. — one skilled in deciphering may be called ; as, for 
 instance, a clerk from the post-office. Greenl. Eq. Ev. 198, 199 ; 
 (PhiL Ev. Cow. & H. Notes), 1419." " The very point arose in 
 Armstrong v. Burrows, 6 Watts Eep., 266. There the parties on 
 a trial in the common pleas differed about the date of a receipt, 
 which had been rendered illegible ; the one contending that it 
 was dated 1823, and' the other that the date was 1824." In 
 Yinton v. Peck, 14 Mich. 287-290, the question was whether the 
 note had been altered from " eight " to " eighty." An expert 
 engraver was allowed to testify from comparison with the genuine 
 writing whether an " 8 " was altered from a " 3." In that case 
 the court said : " It is very true that the jury may examine the 
 paper for themselves, and that opinions are not usually admissi- 
 ble, where the jury can form their own conclusions unaided. 
 But we do not think it would be safe in this country to adopt a 
 rule which assumes such a degree of knowledge and skill among 
 
510 Abbott's Select Cases on Examining "Witnesses. 
 
 Ko-wing V. Manly, 49 N. Y., 192. 
 
 jurors. Even reasonably expert writers may obtain valuable aid 
 from experience in such questions, as neither law nor custom 
 requires our jurors to meet any standard of education, we think 
 that to exclude such aid would lead to absurd results. .The most 
 enlightened courts have availed themselves of such assistance^ 
 and we deem it wise to use it in all cases where it is at hand. It 
 can do no harm, and at all events must often be indispensable to 
 justice." In the case of Stone v. Hubbard, 7 Cush. 595, it 
 was held in a ease where the date of a note was doubtful, it 
 being uncertain as to whether the last figure was a 4 or a 2, the 
 plaintiff was entitled to call experts, and ask their opinion, " for 
 the purpose of aiding the court and jury in arriving at a true read- 
 ing of the document. ' ' Expert testimony upon the same sub- 
 ject as in this case, as to whether the figure was an 8 or a 3, was 
 admitted in the case of IS'orman v. Morrell, 4 Ves., 770. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 KOWING V. MANLY. 
 
 JVew York Court of Appeals, 1872. 
 
 [Reported in 49 N. Y., 192.] 
 
 Upon an issue as to the genuineness of a signature, after the person 
 whose signature it purports to be, had only testified to the fact that it 
 was not his signature, held, not error to exclude expert evidence 
 as to whether or not the signature was in a simulated hand. 
 
 Kowing sued Manly and another, to recover the value of 
 certain bonds. On the trial it appeared that defendants, who 
 were brokers, bought these bonds for plaintiff, who left them in 
 their keeping with directions not to deliver them except on his 
 written order ; that plaintiff's wife had thereafter obtained the 
 bonds on an order purporting to be made by her husband. 
 Plaintiff claimed that the order was a forgery. 
 
 Upon the trial, Abraham C. Dayton, defendant's cashier, was 
 called by defendants and testified on direct examination : " From 
 my observations of signatures I can tell whether a hand is 
 simulated or not, or is a natural handwriting, where I am 
 
YI. Handwriting. (5) Experts. 511 
 
 Kowing V. Manly, 49 N. Y., 193. 
 
 familiar with the signature ; I can tell whether it is an attempted 
 forgery." 
 
 Q. " From your knowledge of signatures can you say whether 
 the signature to order, Exhibit 3, is in a simulated handwriting? 
 
 Objected to by plaintiff's counsel, objection sustained and 
 exception taken. 
 
 At Oircidt, a rerdict was rendered for plaintiff, the exceptions 
 to be heard at General Term. 
 
 The Supreme Court at General Term entered judgment for 
 defendants without passing on the point. 
 
 The Court of Appeals reversed the judgment. 
 
 Rapallo, J., \on this point} : We think that the evidence 
 offered to prove that the order produced by the defendants was 
 not in a simulated handwriting was properly rejected. The 
 plaintiff had not introduced any evidence to show that it was in 
 a simulated handwriting, but had testiiied to the fact that it was 
 not written by him. It was incumbent upon the defendants to 
 prove that the order was in the handwriting of the plaintiff; 
 and we do not think that, as the evidence stood, the opinion of 
 an expert, that the signature was not in a simulated hand, was 
 competent for the purpose of establishing that it was the 
 plaintiff's. In the cases cited (3 B. Ch. 325, and 17 Pick., 490), 
 for the purpose of proving that a mark or signature was not 
 genuine, evidence of experts was admitted, to show that the 
 writing was simulated. The only case cited in which evidence 
 was admitted to show that the writing was not simulated is that 
 of People V. Hewit (2 Park. Cr. Eep., 20), where, on the trial of 
 an indictment for forgery, the prisoner was allowed to prove by 
 an expert that the signature was not in a simulated hand. 
 Whatever effect might be given to such evidence in a criminal 
 trial for counterfeiting or forgery, as to which we express no 
 opinion, we do not think it competent for the purpose of prov- 
 ing the genuineness of a signature against a party sought to be 
 charged thereby. 
 
 The judgment appealed from should be reversed, and judg- 
 ment entered for the plaintiff on the verdict, with costs. 
 
 All concur. 
 
512 Abbott's Select Oases on Examining "Witnesses. 
 
 Note on Proof by Expert. 
 
 NOTES OF CASES ON EXPEET TESTIMONY TO 
 ESTABLISH GENUINENESS. 
 
 Kentucky: Fee v. Taylor, 83 Ky., 259 (experts not acquainted with tiie 
 handwriting of the person whose signature is disputed cannot testify by 
 comparison of handwritings that the contested paper is not genuine, 
 unless the disputed paper is ancient or the standard of comparison is in evi- 
 dence or its genuineness is admitted). Illinois: Rogers v. Tyley, 1893, 32 
 Northeast. Rep., 393 (where other writings admitted to be genuine are 
 already in the case, whether such writings and the disputed writing were 
 written by the same person is a prower subject for expert evidence). Neiv 
 York: Hadoock t;. O'Rourke, 6 N. Y. Supp., 549; s. c. 23 State Rep., 55 
 (there is no rule which confines the testimony of an expert as to hand- 
 writing who has no knowledge of the handwiting of the person whose 
 writing is disputed to statements as to the characteristic of the several 
 writings submitted to him for comparison, their resemblance and dis- 
 similarity and which does not allow him to state whether the disputed 
 signature is genuine or not). People v. Severance, 67 Hun, 182; s. c. 51 
 State Rep., 399 ; 23 N. Y. Supp., 91 (an expert should not be permitted to 
 testify positively that the disputed writing and the instrument used as. the 
 standard of comparison were written by the same person ; his testimony 
 should be confined to a comparison of the handwritings, and the expres- 
 sion of his opinion as to whether or not the writings were by the same 
 person). Ohio: Bell v. Brewster, 44 Ohio St., 696 ; s. c. 10 Northeast. 
 Rep., 679 (comparison of writings may be made not only by witnesses who 
 have knowledge of the handwriting of the person who purports to have 
 written the disputed document, but also by persons who are skilled in 
 handwritings generally called experts). Pennsylvania: Rockey's Estate, 
 155 Pa. St., 453 ; s. c. 26 Atlantic Rep., 656 (a mere expert cannot give his 
 opinion as to comparison of signatures ; such comparison is for the court 
 or jury). Utah: Tucker v. Kellogg, 8 Utah, 11 ; s. c. 28 Pacific Rep., 870 
 (an expert may testify as to his opinion formed by comparison of signa- 
 tures admitted to be genuine with the signature in question, irrespective 
 of the fact whether genuine signatures are already in evidence for other 
 purposes). Virginia: Hannot v. Sherwood, 83 Va., 1 (a skilled expert 
 may testify from comparison as to the handwriting of another). 
 
YI. Handwriting. (6) Photographic Copies. 513 
 
 Hynes v. McDermott, 82 N. Y., 41. 
 
 HYNES V. McDERMOTT. 
 
 Neiv York Court of Appeals, 1880. 
 [Reported in 83 N. Y., 41.] 
 
 _A.n expert cannot testify as to the genuineness of a disputed signature, 
 from comparing witli it merely photographic copies of genuine signa- 
 tures ; but the originals to be compared should be before him when 
 be testifies. 
 
 A hired agent employed to get evidence in the cause who has formed an 
 opinion as to the genuineness of a disputed signature, by comparison 
 with specimens selected for the purpose by him or the party employ- 
 ing him, cannot, though an expert, testify to such opinion. 
 
 Action of ejectment by the alleged widow and sons of 
 William K. Hynes, deceased. 
 
 Upon the trial, William J. Loader, a detective, was called by 
 ■defendants to prove that a lease to one Elizabeth Saunders was 
 signed by plaintiff in that name, after her alleged marriage to 
 Hynes. The witness testified he had been employed by the 
 •defendants in connection with the case, and that he had been 
 present at the taking of a deposition in England, where certain 
 .signatures had been produced. 
 
 He was then asked by defendant's counsel : 
 
 " Q. Was Mrs. Hynes [plaintiff] present at the time of the 
 examination ? A. She was. 
 
 Q. Do you know whether she looked at the signatures or not 'i 
 A. She did. 
 
 Q. What did she say as to who wrote the name in the signa- 
 ture book? A. When the signature of Elizabeth Hynes was 
 produced, the bank manager said that he had written " Victoria 
 Yilla " himself ; and she said, " Yes, I wrote Elizabeth Hynes." 
 A.nd we turned back then to the signature of Elizabeth Saunders, 
 and the manager said, "The lady present wrote the whole of 
 that ; I did not write any of it," and she said, " I did." 
 
 Q. You saw the two signatures ? A. I did. 
 
 Q. Elizabeth Hynes and Elizabeth Saunders, in the signature 
 book to which you have referred ? A. I did. 
 
 Q. Were there copies taken of those signatures ? A. There 
 was. 
 
514 Abbott's Select Cases on Examining "Witnesses. 
 Hynes v. McDermott, 82 N. Y., 41. 
 
 Q. These are tlie copies that are annexed to the testimony of 
 Mr. Brewer of the bank ? A. Yes ; they are annexed to the 
 testimony of Mr. Brewer. 
 
 Q. Did you make an examination of the two signatures which 
 Mrs. Hynes on that occasion stated she wrote ? A. I did. 
 
 The witness then stated he had had experience in the exami- 
 nation of handwritings, and was further asked : 
 
 Q. Now state, from your knowledge of the handwriting of the 
 plaintiff, Mrs. Hynes, acquired in the manner you have stated, in 
 whose handwriting the signatures to the paper marked No. 1 
 for identification is ? 
 
 Objected to by plaintiffs' counsel. Objection sustained on the 
 ground that the witness had not shown that he had seen Mrs. 
 Hynes write her signature, or had ever received any letters 
 signed by her, or had shown in any way that he was acquainted 
 with her signature. To which ruling defendant's counsel 
 excepted." 
 
 At Circuit, judgment was entered for plaintiff. 
 
 The Court of Common Pleas at Oeneral Term affirmed the 
 judgment. 
 
 The Court of Apjpeals affirmed the judgment. Folgek, Ch. J. 
 \on this point'] : The court did not allow the witness, Loader,, 
 to testify that the handwriting of the signature to the lease of 
 the premises in Leverton street was that of the adult plaintiff. 
 The witness had never seen her write ; he- had no knowledge of 
 her handwriting save that got by looking upon two writings other 
 than the signature to this lease, which other writings she had 
 acknowledged in his presence and with the writings then before 
 them, to have been penned by her. Those other writings were 
 two signatures of names of persons and one written name of a 
 place of residence, as shown by a signature book kept by a bank 
 at which she had opened two accounts of money deposited by 
 her. These writings were not in evidence in the case ; that is, 
 they were not produced before the jury and kept in court 
 throughout the trial. The witness who controlled them was ex- 
 amined beyond the seas on commission. He produced them be- 
 
YI. Handwriting. (6) Photographic Copies. 515- 
 
 Hynes v. McDermott, 82 N. Y., 41. 
 
 fore the commissioner, but refused to part with them. Copies 
 were taken in manuscript by the commissioner and annexed 
 to the deposition of the witness. Copies were also taken by the 
 photographic process and certified by the commissioner and an- 
 nexed to the deposition of the witness. The witness, Loader, 
 was presented to the court as doubly competent to speak on an 
 issue as to the genuineness of handwriting, — as an expert, and as 
 having personal knowledge of the handwriting of the adult 
 plaintiflF. It does not appear from the case that the trial court 
 determined whether he was qualified to speak as an expert. 
 We will assume that he was, and that had the trial court thought 
 it needful to pass upon the question, it would have held that he 
 was. Yet, in our judgment, it was not proper to receive his 
 testimony as that of an expert, and by a comparison of writings. 
 An expert in handwriting, when speaking as a witness only 
 from a comparison of handwriting, that is, with two pieces of it 
 in juxtaposition under his eye, should have before him in court 
 the wTiting to which he testifies and the writings from which he 
 testifies ; else there can be no intelligent examination of him 
 either in chief or cross; nor can' there be fair means of meeting 
 his testimony by that of other witnesses. This requirement is 
 included in the rule that there can be no comparison of hand- 
 writing, unless the pieces of writing by which comparison is- 
 made are properly in evidence in the case for some purpose other 
 than that of being compared (Randolph v. Loughlin, 61 N. Y., 
 456 ; Dubois v. Baker, 30 id., 355 ; Miles ■«. Loomis, 75 id., 288). 
 The nearest approach to having before the witness at the trial 
 the writings by which comparison had been or was to be made, 
 was the bringing of the photographic copies. There was no 
 proof of the details of the process by which they were taken, nor 
 as to accuracy of the work. AVe think that a comparison of 
 a signature in dispute, with such photographic copies of other 
 writings, for the purpose of allowing an opinion from an expert 
 as to the character of the signature, as real or feigned, when the 
 originals, from which the copies are made, are not brought be- 
 fore the jury, and may not be shown to other witnesses, ought 
 not to be permitted. Photographs that have been taken of per- 
 sons found dead have been admitted in evidence in this state, in 
 
516 Abbott's Select Cases on Examining Witnesses. 
 
 Hynes v. MoDermott, 82 N. Y., 41. 
 
 aid of other proofs of identity, but not alone. They were char- 
 acterized as slight evidence in addition to other and more reliable 
 testimony (Euloff v. People, 45 JST. Y., 213). A photo- 
 graphic picture was more unreservedly admitted as evidence 
 upon the question of identity of person in Udderzook v. Com- 
 monwealth (76 Penn. St., 340). And in another case when the 
 genuine signature and the disputed signature were both brought 
 into court, magnified photographic copies of each, together with 
 the originals, were submitted to the inspection of the jury, and 
 it was held not to have been error (Marcy v. Barnes, 16 Gray, 
 162). But copies of letters in a letter-book produced by impress, 
 or by a machine, have been rejected (Comm. v. Eastman, 1 Cush., 
 189). It would be carrying the matter much farther, to permit 
 an expert to compare photographic copies of signatures, and 
 therefrom to testify as to the genuineness of a disputed signature. 
 We may recognize that the photographic process is ruled by gen- 
 eral laws that are uniform in their operation, and that almost 
 without exception a likeness is brought forth of the object set 
 before the cainera. Still, somewhat for exact likeness will de- 
 pend upon the adjustment of the machinery, upon the atmos- 
 pheric conditions and the skill of the manipulator. And in so 
 delicate a matter as the reaching of judicial results by the com- 
 parison of writings through the testimony of experts, it ought to 
 be required that the witness should exercise his acumen upon 
 the thing itself which is to be the basis of his judgment ; and 
 still more, that the thing itself should be at hand, to be put un- 
 der the eye of other witnesses for the trial upon it of their skill. 
 The certainty of expert testimony in these cases is not so well 
 assured as that we can afford to let in the hazard of errors or 
 differences in copying, though it be done by howsoever a scientific 
 process. Besides, as before said, there was no proof here of the 
 manner and exactness of the photographic method used. It was 
 right not to receive Loader's evidence as that of an expert. 
 
 The witness was also offered as one having acquaintance with 
 the handwriting of the adult plaintiff. All his means of knowl- 
 edge have been stated. The testimony was finally rejected, 
 ^fter the objection made to it, that it was a collateral fact 
 -whether the lease was signed by the plaintiff, and that the defend- 
 
VI. Handwriting. (G) Pliotograpliic Copies. 517 
 
 Hynes v. McDermott, 82 N. Y., 4t. 
 
 ants liad proved by her that she had not signed it. The objec- 
 tion is not well put, in claiming that the defendants proved by 
 the plaintiff that she did not sign the lease. At one time she 
 said that she did not recognize the signature to it as hers ; but 
 she would not say that it was not hers, while she would not admit 
 that it was. At another time she was explicit in denial. But 
 her testimony on this head was not conclusive. Neither can we 
 assent that the fact sought to be proved was a collateral fact, in 
 a sense that precluded the defendants from offering any other 
 testimony upon it than that of the plaintiff herself. She was the 
 witness of the defendants, to be sure, and they could not impeach 
 her. But if she was mistaken in her testimony, or forgetful, so 
 that she could not speak as to a matter, the defendants were not 
 shut out from proving the fact, if material, by other witnesses. 
 It was material, if this plaintiff, during the time that, as she now 
 claims, she was the wife of Hynes, and entitled and bound to 
 bear his name, was entering into written contracts in another 
 name which- was that of the wife, or widow still unmarried, of 
 another man. The testimony offered tended to prove that. We 
 think, therefore, that that objection was not good. The prior 
 objection was in effect that Loader had not shown that he was 
 acquainted with the signature of the plaintiff. Testimony as to 
 handwriting is testimony of opinion. Any persoa acquainted 
 with it may be permitted to give his opinion of it. The ac- 
 quaintance need not come from having seen the person wiite. 
 It may be formed from seeing writing under such circumstances 
 as put it beyond doubt that it was a true signature. In this case 
 the witness, Loader, had seen writing admitted by the plaintiff 
 to be hers ; thus he had seen her genuine handwriting. If the 
 case was confined as that the correctness of the holding at the 
 circuit would hang upon whether the view of one piece of 
 genuine handwriting would qualify one to speak as a witness as 
 to the genuineness of another and a disputed signature, we find 
 authority to show that a holding rejecting the testimony would 
 be incorrect (Hammond v. Varian, 51 N. Y., 398 ; Garrells v. 
 Alexander, 4 Esp. Gas., 37). The competency of a witness is 
 not determined by the degree of his knowledge. If he has had 
 means of becoming acquainted with the handwriting in question,, 
 
518 Abbott's Select Cases on Examining "Witnesses. 
 
 Hynes v. McDermott, 83 N. Y., 41. 
 
 he is competent to speak, and the weight of his testimony is for 
 the jury. The objection, however, was broader than that, and 
 coyered all the circumstances in which Loader had been placed 
 with regard to this handwriting. It appeared that he was by 
 calling a private detective, and had gone to England as such in 
 the employ of the defendants, after the commencement of this 
 action ; that it was while in the pursuit of evidence against the 
 plaintiffs that he learned of this bank-book writing ; and while 
 engaged in taking the evidence in behalf of the defendants of a 
 witness on commission, that he saw the .writing and heard the 
 admission of the plaintiff that it was made by her. His ac- 
 quaintance with her handwriting was from an examination of 
 these two pieces of it, and it was formed while he was, as a hired 
 agent, in quest of testimony with which to combat the plaintiff's 
 case, and of testimony to be made from the handwriting of the 
 adult plaintiff. It is not to be distinguished from a case of 
 genuine writings furnished to a person to enable him to become 
 ii witness as to a disputed signature. It is clear .that if the 
 genuine writings had been made or chosen for his inspection by 
 the party who called him as a witness, so as to qualify him to 
 speak, his testimony, to be based upon an acquaintance got from 
 a view of them, would not be received (Stranger v. Searle, 
 1 Esp. ISr. P. C, 14 ; Tome v. Parkersberg E. K. Co., 39 Md., 36 ; 
 s. c. 17 Am. Eep., 540). And it has been held at nisi 
 jyrius, that when the acquaintance is formed from the view of 
 writings admitted by the attorney of the writer to be genuine, 
 the witness will not be allowed (Greaves v. Hunter, 2 Carr & 
 Payne, 4T7). Though, on the other hand, when the genuine 
 writing from which the witness got his knowledge was to a 
 paper filed in the cause by the opposite party, the testimony was 
 allowed (Smith v. Sainsbury, 5 Carr & Payne, 196). These 
 cases exemplify how lacking in uniformity are the rulings on 
 this matter, and how dehcate a question it is to handle. The last 
 two cases are not directly in point, inasmuch as it did not appear 
 that the witness, when he saw the genuine writings, was seeking 
 the means of making acquaintance, so that he might testify there- 
 from. A difference between the case in hand, and those cited 
 above from Espinasse and the Maryland Eeports, is that in the 
 
VI. Handwriting. (6) Photographic Copies. 519 • 
 
 Note on Photographic Copies. 
 
 latter two, the genuine signatures were made or chosen by the 
 parties who wished it to appear to the witness that the disputed 
 signature was unlike the genuine ones inspected by him ; while 
 in the former, the genuine signature is used in the case, and is 
 admitted to be genuine by the party against whom the witness is 
 called. Still, it is a case of signatures selected in the interest of 
 the party who calls the witness. They were pitched upon by 
 the witness himself who, in the hire of the party, had been sent in 
 quest of hostile evidence, and that after the commencement of 
 the action. All the stimulus upon him, and all the impulses of 
 liis calling, were against impartiality in selection of specimens. 
 The distinction is taken in Fitzwalter Peerage Case (10 CI. & 
 Pin., 193), between the testimony of a witness who, intending 
 to be a witness, has inspected genuine documents, for the pur- 
 pose of forming an acquaintance with the characteristics of a 
 certain handwriting, and that of one who, in the course of bus- 
 iness without having in view the being a witness, has used the 
 same documents, and thus got an acquaintance. In our judg- 
 ment, the evidence is open to the objections that have been held 
 fatal to testimony as to handwriting, created post litem motam. 
 We think that upon all that transpired on the trial in the tes- 
 timony of Loader, and the objections made, the trial court erred 
 not in ruling out the question. 
 
 The legislature of this state has, this year (Laws of 1880, 
 chap. 36), passed an act which is intended to allow proof of signa- 
 ture by comparison of handwritings, and which perhaps will 
 forestall for the future much discussion of this topic. That 
 statute, however, is probably yet to be the subject of judicial 
 interpretation. 
 
 NOTES OF EECENT CASES ON COMPARISON BY 
 PHOTOGEAPHIC COPIES. 
 
 Indiana: White S. M. Co. v. Gordon, Ind., 1890, 34 Northeast. Eep., 
 1053 (it is not error to exclude an enlarged photographic copy of the dis- 
 puted signature when offered in evidence for the purpose of comparison 
 with the original; the original being in court, the photograph is only sec- 
 ondary evidence). Texas: Buzard v. McAnulty, 77 Tex., 438; s. c. 14 
 Southwest. Rep.', 138 (in an action upon a contract, a photographic copy 
 
520 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Photographic Copies. 
 
 thereof was admitted in evidence without objection ; butthei'e was no evi- 
 dence how the copy was talven nor whether it was exact reproduction, nor- 
 why tlie original was not produced. Held, that the copy could not be used 
 as a standard of comparison as to the signatures of one of the defendants). 
 Vermont: Rowell v. Fuller, 59 Vt., 688 ; s. c. 10 Atlantic Eep., 853 (en- 
 larged photographic copies of a disputed signature or writing- or those used 
 as standards of comparison, may be used by the jury to aid_theni in compar- 
 ing and examining the signatures). Washington: Crane v. Dexter, 5 Wash. 
 St., 479 ; s. c. 32 Pacific Rep., 233 (it is nnt error to exclude a photograph 
 of the disputed and genuine signatures where the originals are in court 
 and the only object of the photograph was to get all the signatures on 
 paper to facilitate comparison ; and where the trial court refuses to admit 
 enlarged photographic copies of the signatures for the purpose of compari- 
 son because the photographs were not taken with sufficient care, the ap- 
 pellate court will not undertake to reverse such ruling). 
 
VI. Handiorltiiig. (Y) Cross-exam, on Other "Writings. 521 
 Bank of the Commonwealth v. Mudgett, 44 N. Y., 514. 
 
 BANK OF THE COMMONWEALTH v. MUDGETT. 
 
 JVeio York Court of Appeals, 1871. 
 [Reported in 44 N. Y., 514.] 
 
 A witness called to prove the genuineness of a signature may not be asked 
 on direct examination "Would you take it against his (the alleged 
 writer's) denial of the signature ? " for this is purely speculative. 
 
 A witness called to prove the genuineness of a signature, who has stated 
 on cross-examination that he became acquainted with the signature 
 by seeing it to invoices coming to him as a customs officer, may be 
 asked on re-direct whether, and how often, he is called on officially to 
 pass upon the genuineness of the person's signature ; for this shows 
 the extent of his knowledg'e. 
 
 When a witness has testified to the genuineness of a signature it is not 
 error to refuse to allow him to be asked on cross-examination, merely 
 for the purpose of testing his knowledge and accuracy, his opinion as 
 to other signatures not in evidence. 
 
 An action on a promissory note, discounted by plaintiffs, who 
 sought to charge Mudgett as indorser. 
 
 The facts sufficiently appear in the opinion. 
 
 At Circuit, judgment was entered for plaintiffs. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Leonaed, C. One Calhoun, a deputy collector of customs, at 
 New York, occupying the same room with the defendant in that 
 department, called by the plaintiff to prove his handwriting, 
 having stated on the direct, that it was his impression that the 
 writing was Mr. Mudgett's, was asked on the cross-examination, 
 " Would you take it against his denial of the signature ? " The 
 question was disallowed, on objection by the plaintiff, 'and the 
 counsel for the defendant excepted. 
 
 The inquiry was purely hypothetical, predicated on no known 
 or authenticated fact. It called for belief or an opinion, on a 
 subject as to which no one can be called an expert. Whether 
 answered affirmatively or negatively it would be immaterial. No 
 witness can tell what he would have done in such a case. It 
 calls for mere speculation and vague belief. The answer might 
 
522 Abbott's Select Cases on Examining "Witnesses. 
 
 Bank of the Commonwealth v. Mudgett, 44 N. Y., 544. 
 
 create some doubt with a weak juror, or be tbe foundation of an 
 ad capfandum argument, although wholly immaterial as evidence. 
 
 The ruling was very proper. 
 
 One Bausch, a witness for the plaintiff, testified that he was an 
 assistant appraiser in the custom house, slightly acquainted with 
 Mr. Mudgett, knew his handwriting, and thought the indorse- 
 ment to be his. On his cross-examination, he stated that he be- 
 came acquainted with the signature by seeing it to invoices which 
 came from the custom house. The witness was then asked, on 
 the re-direct, the following question : 
 
 " In the course of your official duties, are you called upon to 
 pass and act upon the signature of the deputy collector ? (mean- 
 ing Mr. Mudgett.) A. Every day. 
 
 Q. How many times a day ? A. It may be from five to 
 sixty." 
 
 The counsel for the defendant objected to each of these ques- 
 tions, and being overruled, excepted. 
 
 This examination was material to show the means and extent 
 of the knowledge of the witness, upon which his opinion as an 
 expert was based. It is urged that it calls for a comparison as to 
 the handwriting of different signatures by Mr. Mudgett. That is 
 remotely probable ; but not more so than every opinion on that 
 subject. The evidence also shows the opportunity which the 
 witness has had to form an opinion ; and, for that purpose, the 
 evidence was properly admitted. 
 
 Counsel for the defendant produced a number of checks on a 
 bank, which, it was alleged, were drawn by him, and proposed to 
 inquire of certain witnesses whether the signatures to them were 
 in the handwriting of Mr. Mudgett. The court refused to allow 
 the inquiry ; and the defendant's counsel excepted. 
 
 It is ^id that the inquiry was not for the purpose of compari- 
 son, which would be inadmissible, nor for exhibition to the jury, 
 but for the purpose of testing the knowledge and accuracy of the 
 witnesses. Two of the witnesses were produced by the plaintiff, 
 and were then on cross-examination. It could be no test, unless 
 other witnesses were also called to prove their genuineness. No 
 precedent can be found for such a test. If allowed to call wit- 
 nesses to prove these checks, others might be called by the plaint- 
 
YI. Handwriting. (7) Cross-exaui. on Other "Writings. 523 
 
 Bank of the Commonwealth v. Mudgett, 44 N. Y., 544. 
 
 iff to prove the contrary. Such a proceeding would involve the 
 trial of an issiie wholly collateral to the main question. If the 
 witnesses should pronounce them to be genuine, the evidence 
 would be wholly immaterial, or would then degenerate to a com- 
 parison of signatures, and perhapS; to their exhibition to jurors 
 not expert in handwriting. If the witnesses said, on the con- 
 trary, they were not genuine, it would be inadmissible to contra- 
 dict them, on such a collateral issue, by showing that they were 
 in fact genuine. In the aspect in which the evidence was urged, 
 the checks were immaterial as evidence. In any view they were 
 inadmissible. 
 
 The question addressed to the other witness (Potter), as to the 
 genuineness of certain other signatures to notes which were made 
 by the defendant, to the certain knowledge of the witness, was 
 for the purpose of comparing them with the indorsement in ques- 
 tion. Like the inquiries addressed to the two former witnesses, 
 it was for the purpose of comparison, or raised collateral and 
 immaterial issues. 
 
 The principle is sound, that the trial must be confined to the 
 issues in the cause. The case of Van Wyck v. Mcintosh (14 N. 
 T., 439) is authority directly applicable, both as to the inquiries 
 sought to be addressed to the two witnesses on the cross-examin- 
 ation and to the one last mentioned, on the direct, fully sustaining 
 the views here expressed. 
 
 The judgment should be affirmed. 
 
 All the judges concurred. 
 
624: Abbott's Select Cases on Examining "Witnesses: 
 People V. Murphy, 135 N. Y., 450. 
 
 PEOPLE V. MUEPHY. 
 
 JVeio TorTi Court of Appeals, 1892. 
 
 [Reported in 135 N. Y., 450.] 
 
 If evidence objected to generally is not, in its essential nature, incompetent, 
 all grounds of objection which might have been obviated if speciBc- 
 ally stated must be deemed on appeal to have been waived. 
 
 If an expert, after testifying- to the handwriting of a paper upon the 
 strength of standards of comparison written by the alleged writer of 
 the disputed writing, is shown upon cross-examination other writings,, 
 and asked if they are by the same wi-iter, his answer that they are 
 concludes the cross-examiner, and evidence that they were writtenr 
 by a third person is not competent, for it would draw a collateral 
 matter into controversy. 
 
 Whether upon the question of the authorship of an anonymous letter 
 offered in evidence as having been written by a party, specimens of his 
 genuine writing may be used and a comparison made at the trial under 
 N. Y. L., 1880, c. 36, Query. 
 
 The objection that an anonymous writing is not within the terms of the act 
 of 1880, because it does not " purport " to be the writing of the party,, 
 must be specifically taken. A mere general objection, made after 
 receiving the standards and making the comparison, that the disputed 
 writing is incompetent and improper, does not make it error to receive 
 the disputed writing. 
 
 Indictment for arson. Upon tlie trial the People called a num- 
 ber of expert witnesses who testified that an anonymous letter, 
 addressed to Mrs. Eehm, which contained threats to bum her 
 house and barn and the property of one Moody, and an anony- 
 mous letter, addressed to Moody, containing like threats, were in 
 the handwriting of the defendant ; their opinions were formed 
 from comparing the letters with a number of specimens of his- 
 genuine handwriting. 
 
 The anonymous letters were received in evidence, against a 
 mere general objection that they were incompetent, and im- 
 proper as evidence. 
 
 Upon cross-examination of these witnesses, the defendant's 
 counsel produced nine different specimens of writing, and asked 
 each witness to compa.re them with the letters and the specimens 
 put in evidence by the People, and to say whether in his opinion. 
 they were in the same handwriting. Some of the experts testi- 
 fied that they thought they were all in the handwriting of the 
 
YL Handwriting. (7) Cross-exam, on Other Writings. 525 
 
 People V. Mm-phy, 135 N. Y., 450. 
 
 defendant, and others thought that some of them were written 
 by the defendant and that the others were not. 
 
 Thereupon, John Murphy, a brother of defendant was called 
 ■as a witness, and asked by defendant's counsel : " Look at these 
 several pieces of paper and state whether or not you wrote any 
 of them, and pick out the ones you wrote ? " 
 
 Objected to by the district attorney as incompetent, improper 
 and immaterial. Objection sustained, and exception taken. 
 
 Defendant's counsel offered to show by the witness that he 
 (the accused's brother) wrote all nine specimens which had been 
 shown to the expert witnesses. Excluded on the same ground. 
 Exception taken. 
 
 The Court of Sessions convicted defendant. 
 
 The Supreme Court at General Term affirmed the judgment, 
 Lewis, J., saying : The opinions of the People's witnesses were 
 not based upon an examination of the writings produced by the 
 defendant. They had not seen them when they gave their testi- 
 mony. So that, as far as their evidence was concerned, it was 
 immaterial who wrote the nine papers produced by the defendant. 
 
 If the evidence had been admitted it would have been collateral 
 to the material question, to wit, the authorship of the letters. 
 The defendant was therefore, concluded by the answer of the 
 People's witnesses. Van Wyck v. Mcintosh, 14 N". Y., 439; 
 Hilsley v. Palmer, 32 Hun, 472. 
 
 The Court of Appeals affirmed the judgment. 
 
 Maynakd, J. {after stating facts'] : It is now objected that 
 this mode of proof of defendant's handwriting was unauthorized ; 
 that it was not a case of a disputed writing within the provisions 
 of the act of 1880 ; that the statute was only intended to change 
 the rules of evidence formerly in force when the authenticity of 
 the paper is directly the subject-matter of the issue to be tried, 
 as in the case of the denial of the execution of a note, or a deed, 
 or a will, or any other instrument relied upon as the foundation 
 of an action or defense. 
 
 It is insisted that all of the reported cases are of this character, 
 and the language of Chief Judge Ecgee, in Peck v. Callaghan 
 (95 N. Y., 75), is quoted, where it is said : " The disputed writing 
 
526 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Murphy, 135 N. Y., 450. 
 
 referred to in the statute relates only to the instrument which is- 
 the subject of controversy in the action, and the specimens of 
 handwriting admissible thereunder are those of the person pur- 
 porting to have executed the instrument in controversy." 
 
 Whatever intrinsic merit there may be in this contention, we 
 do not think it is available to the defendant upon this appeal. 
 No such objection appears in the record. The genuine speci- 
 mens were received in evidence, and the expert witnesses called 
 and permitted to make the comparison and give their opinion 
 upon the subject without any intimation from the defendant that 
 such proof was inadmissible. The defendant himself even called 
 two expert witnesses, and had the benefit of an opinion from 
 them, after a comparison of the letters with the genuine specimens,, 
 to the effect that at least one of the letters was not written by 
 the same person as the concededly genuine exhibits. When the 
 letters were offered in evidence there was no objection to their 
 reception on the ground that the proof of their genuineness was 
 insufficient, but they were objected to solely on the ground that 
 the letters themselves were incompetent and improper as evi- 
 dence ; an objection which pertains to the subject matter of the 
 proof offered and not to the method of its presentation, or to any 
 of the preliminary steps to be observed in its introduction. If 
 the defendant had seasonably objected to the evidence of com- 
 parison of handwriting, and the objection had been sustained, 
 the prosecution might have been able to have furnished sufficient 
 common law proof of the genuineness of the letters to have 
 authorized their admission as evidence, for one of the expert wit- 
 nesses was a bank officer who had seen the defendant wi-ite, and 
 who might have testified, from his personal knowledge of the 
 defendant's handwriting, that, in his opinion, he wrote the letters- 
 in question, and other like testimony might have been pro- 
 duced. 
 
 The evidence objected to was not, in its essential nature 
 incompetent, and therefore, all grounds of objection which might 
 have been obviated if they had been specifically stated must be 
 deemed to have been waived (Turner v. City of Newburgh, 109 
 N. Y., 301 ; Bergmann v. Jones, 94 id., 51). 
 
 Upon the cross-examination of the expert witnesses for the 
 
VI. Handwriting. (7) Cross-exam, on Other Writings. 52T 
 
 People V. Murphy, 135 N. Y., 450. 
 
 prosecution, the defendant, for the purpose of testing the ac- 
 curacy of their judgment, submitted to them nine different 
 specimens of handwriting, and each was asked to compare them 
 Avith the letters and the specimens put in evidence by the people, 
 ' and to say whether in his opinion they were in the same hand, 
 writing. Each gave a different answer, and, with two exceptions, 
 each testified that some of the specimens were written by the 
 same person who wrote the letters and the other specimens ; but no 
 two witnesses agreed as to the particular specimens which were 
 so written. The defendant then offered to prove that these nine 
 specimens were not in the handwriting of the defendant, but 
 were written by his brother, and the evidence was excluded, 
 "We can discover no error in this ruhng. It was a collateral 
 matter properly used for the purposes of a cross-examination, 
 and the defendant was bound by the replies of the witness to 
 the questions put. 
 
 It served as an impressive warning to the jury to closely 
 scrutinize the expert evidence, because of the want of concurrence 
 of judgment on the part of the witnesses when they were 
 required to compare the letters with specimens of whose 
 authorship they were ignorant ; and, to that extent, the cross-ex- 
 amination was valuable and proper, although it must rest some- 
 what in the sound discretion of the trial court to determine how 
 far it shall be carried. 
 
 But the defendant could not be permitted to go farther and to 
 litigate the immaterial issue of the authenticity of the additional 
 specimens submitted by him for such a purpose (Hilsley v. 
 Palmer, 32 Hun, 4Y2). 
 
 It would give rise to a multiplicity of collateral issues which 
 might render the litigation interminable, for the people would 
 have the right to disprove, if they could, the testimony offered, 
 and by a comparison of handwriting show that these specimens 
 were not written by the defendant's brother. 
 
 The case of the First National Bank of Hornellsville v. Hy- 
 land (53 Hun, 108, afiirmed by this court, 125 N. Y., 711) is 
 not applicable here. The inquiry upon cross-examination was 
 there limited to the genuineness of other signatures, which were 
 already in evidence. 
 
528 Abbott's Select Cases on Examining Witnesses. 
 People V. Murphy, 135 N. Y., 450. 
 
 Nor does tlie case of the Mutual Life Ins. Co. v. Suiter (131 
 N. Y., 557) aid the defendant. It was there held that a party 
 was not necessarily limited to the genuine signatures, introduced 
 by his adversary for the purpose of comparison, but should be 
 permitted to put in evidence other genuine signatures in order 
 to afford as wide a range for comparison as might be practicable. 
 
 But the handwriting offered here was not that of the defend- 
 ant, but of a stranger to the controversy, and the object of its 
 proposed introduction was not for the purpose of comparison 
 under the act of 1880, but to affect the degree of credit to be 
 given to the testimony of the expert vdtnesses. 
 
 Note.— In Van Wyck v. Mcintosh, 14 N. Y., 489, the court (T. A. 
 Johnson, J.) said : The questions arising upon the cross-examination of 
 the defendant's witnesses, respecting- the genuineness of the handwriting 
 indorsed upon the two notes exhibited by tlie plaintiffs' counsel, and the 
 proof of the handwriting thus indorsed, have little, if any, relation to the 
 question of comparison of handwritings by witnesses or by a jury. The 
 plaintiffs' counsel did not propose or offer to submit them to the jury 
 to inspect. His object plainly was, in case they should testify, as they 
 did, that the handwriting on these notes was not genuine, to contradict 
 them by other evidence and show that it was genuine, and then ask the 
 jury to infer that they were mistaken, or had misjudged in respect to the 
 handwriting in issue, because he had proved they were mistaken in respect 
 to that not in issue. This was precisely what was allowed. It was in the 
 nature of impeaching evidence, not direct, but indirect and argumentative. 
 The fact, even if established, that the defendant indorsed the two notes 
 thus exhibited, had no direct bearing upon the credibility of the defend- 
 ant's witnesses, and only affected their credit incidentally and remotely. 
 Facts bearing directly upon the credibility of witnesses are material to the 
 issue, and witnesses may be cross-examined in regard to such facts, and 
 may be contradicted, if they deny the truth, by other evidence. (Newton 
 V. Harris, 6 N. Y., 345.) Hostile feelings on the part of the witness 
 towards the party he is called to testify against, and interest in the action 
 or question in litigation, belong- to this class. 
 
 But the evidence as to the handwriting on the two notes was wholly, 
 collateral, and in no respect material to the issue. In Griffits v. Ivery (11 
 Adolph. & EUis., 333) it was held that signatures, other than the one in 
 issue, could not be shown to witnesses on cross-examination for the pur- 
 pose of testing their knowledge of the defendant's handwriting by their 
 agreement or disagreement. And in Hughes v. Eogers' Executors (8 
 Mees. & Wells, 133), where the witness had been examined in regard to 
 the signature of an attesting witness to a paper not in evidence in the 
 action, and had testified it was not the signature of such attesting witness, 
 it was held that the plaintiff could not, by other witnesses, prove that such 
 
YI. Handwriting. (7) Cross-exam, on Other Writings. 529 
 
 People V. Murphy, 135 N. Y., 450. 
 
 paper was sig-ned by other attesting witness in their presence, as it tended 
 to raise a collateral issue. The practice allowed upon the trial has, doubt- 
 less, prevailed quite extensively at the circuit, but it is obviously subject 
 to very grave objections, and ought not to be sanctioned. The real issue 
 was made to depend, in no inconsiderable degree, upon the collateral issue 
 ■made upon the signature to other papers in no way connected with the 
 -action. The jury were, in effect, instructed that they might discredit the 
 testimony of the defendant's witnesses, it they were perfectly convinced 
 that the defendant had admitted the signatures endorsed upon the two 
 notes to be genuine. It is a familiar rule of evidence that a party cannot 
 -examine witnesses upon collateral subjects, for the purpose of showing 
 afterwards that they are mistaken. And if he does examine them on such 
 .subjects, he cannot contradict their testimony, by other witnesses, for the 
 purpose of discrediting it. I am of opinion, therefore, that the ruling 
 .allowing the cross-examination in regard to the two notes, and also that per- 
 mitting the testimony given on such cross-examination to be contradicted, 
 and the signatures to be proved, was erroneous ; and that the judgment 
 •of the Supreme Court should be reversed and a new trial granted, with 
 costs to abide the event. 
 
 A. S. Johnson, J.: A witness on the part of the defense, who had 
 ■become acquainted with the handwriting of the defendant by seeing him 
 write, testified that the signature to the indorsement in suit was not that 
 •of the defendant. Upon cross-examination he was shown certain signa- 
 tures, likewise purporting to be the defendant's, upon papers not relevant 
 -to nor in evidence in the cause, and was asked under objection whether 
 they were the signatures of the defendant. He answered that they were 
 not. The plaintiffs afterwards, under objection, gave evidence legally 
 tending to show that the genuineness of these latter signatures had been 
 admitted by the defendant. 
 
 The first inquiry was put with one of two views, suited to the two 
 answers which the witness might give. In case he affirmed the genuine- 
 ness, to contend to the jury that these and the indorsement in question 
 were in the same handwriting, or, if he denied their genuineness, to con- 
 tradict him upon that point by other witnesses. The first of these ques- 
 tions was presented to the King's Bench in Doe v. Newton (5 Adolph. & 
 Ellis., 514), and it was decided, all the judges agi-eeing, that the jury could 
 not institute a comparison between the signature in question and other 
 signatures unless these last were relevant evidence in the cause. The 
 decision was put upon the grounds that the issue, as to the genuineness 
 of the documents produced for the purpose of comparison, was collateral 
 and irrelevant, and that there was great danger of unfair selection of 
 specimens of handwriting. Griffits v. Ivery (11 Adolph. & Ellis., 333) and 
 Hughes V. Rogers (8 Mees. & Wells, 133) cover whatever remained unde- 
 cided of the questions here presented, after the decision in Doe v. Newton. 
 In the first of those cases, the question being upon the genuineness of the 
 defendant's signature, and witnesses being called for him, and deposing 
 that the signature in question was not his, the plaintiff proposed to ask 
 
530 Abbott's Select Cases ojsi Examining "Witnesses. 
 
 People V. Murphy, 135 N. Y., 450. 
 
 each witness as to another paper, not in evidence for any other purpose, 
 whether it was signed by the defendant, to the end that their agreement 
 or disagreement might be considered by the jury in measuring the wit- 
 ness' knowledge of the handwriting of the party. The evidence was 
 rejected. On refusing a rule for a new trial, Coleridge, J., said : "We 
 must not allow papers which are not evidence in the cause to be let in for 
 any purpose whatever. It is said that this was offered merely for the 
 purpose of trying the knowledge of the witnesses ; but the inquiry would 
 not stop there. It would be impossible to keep from the jurj' questions 
 whether this or that paper was or was not in fact written by the party," 
 Lord Denman, C. J., said : It would be ludicrous to suppose that a paper 
 may be used for the purpose suggested, and that a jury must then be told 
 that they cannot look at it to see how far its appearance supports the 
 evidence of the witnesses. But if they did look at it, all the unlimited 
 multiplicity of questions would come before them, which we meant to- 
 shut out by our ruling in Doe v. Newton. 
 
 In Hughes v. Rogers (supra), which was an action upon a bond, the 
 plaintiff called a witness to prove the signature of an attesting witness 
 who was dead. The witness stated that the signature was not in the- 
 handwriting of the deceased attesting witness. He was then shown 
 another paper, not in evidence in the cause, and, being asked, denied that 
 it was the handwriting of the attesting witness. It was then proposed to 
 prove, by witnesses, that this second paper had been signed by the attest- 
 ing witness in their presence. The evidence was excluded, and the 
 ruling was afterwards held in banc to be correct, upon the principle- 
 that to have received it would have raised a collateral issue. 
 
 These cases are, it is true, not of a binding authority in this court ;. 
 but the principle which they apply, of confining the trial to the issues in 
 the cause, is sound and familiar. It was applied to a question belonging- 
 to this subject, in Jackson v. Phillips (9 Cow., 94), where the plaintiff, 
 who disputed the genuineness of the signature of a deed, called a witness- 
 who had seen the party write, and who stated the signature in question 
 to be not genuine, and offered to prove by him another writing to be 
 genuine, in order to submit it with the deed to the jury. It was rejected, 
 and the ruling was afterwards approved, both upon the ground of danger 
 of unfairness in the selection of specimens, and of the inconvenient 
 length to which such collateral inquiries would run. Undoubtedly, a 
 witness who speaks to handwriting aiflrms that he knows the handwriting 
 of the party, and that the particular writing is or is not his. Each branch 
 of his testimony is material, and the one as material as the other. He 
 may be contradicted as to his knowledge ; may be cross-examined as to- 
 how he acquired it, and may be contradicted in all the particulars on which 
 his pretended knowledge is founded. If he bases his knowledge on having- 
 seen the party write, it might be shown that it was some other persotT, 
 and not the party whom he saw write ; or if his knowledge was pro- 
 fessedly founded upon correspondence with the party, this might be proved 
 to be erroneous or untrue. His knowledge may, unques-tionably, be 
 
VI. Handwriting. (7) Cross-exam, on Other Writings. 531 
 
 People V. Murphy, 135 N. Y., 450. 
 
 experimented upon, but a fact irrelevant to the issue cannot be introduced 
 in the cause, and tried for the sake of so experimenting in regard to it. 
 The credit of a witness is always in issue ; yet nothing is clearer law than 
 if a witness is asked as to an irrelevant fact, and answers, he cannot be 
 contradicted in respect to it. So, even in the case of an expert, called 
 upon a trial where the issue was whether two machines were identical in 
 principle, it was held that he could not, on cross-examination, be exam- 
 ined as to another machine, and be. called upon to point out how far it 
 differed in principle from those first alluded to, though the purpose was 
 stated to be to show by his answers and by other testimony the incorrect- 
 ness of the witness in his previous examination and in his knowledge of 
 mechanics. Judge Story held the inquiries irrelevant, and that, if 
 answered, they would not authorize the contradiction of the witnesses. 
 (Odiome v. Winldey, 3 Gallison, 53.) 
 
 "Whether the two notes were or were not genuine was immaterial. 
 A written admission of their genuineness by the party would have had no 
 bearing upon the question of the genuineness of the note in suit. Nor 
 would it furnish even moral evidence upon the subject. The tact is 
 brought into> the cause solely because the witness has spoken about them 
 in his testimony, and by that means only does the inquiry as to their 
 genuineness assume any significance. Now a witness' credit may be 
 attacked, by showing a want of knowledge or a perverse use of his knowl- 
 edge ; one is as material as the other, and the inquiry must be confined 
 within the same legal bounds in each case. Suppose the plaintiff's theory 
 was that the witness denied the signature in suit to be the defendant's, 
 perversely and wickedly, could it be pretended that he could be 
 interrogated as to the other signatures, and contradicted if he also denied 
 them ? The argument in favor of that course might be just that which 
 is presented in this case, that as to those signatures the plaintiff is pre- 
 pared with conclusive evidence to contradict him. The legal answer to 
 both propositions is, that the inquiry was not relevant to the issue on 
 trial, and that it involved the trial of a new issue, which again might give 
 rise to other new issues without end. 
 
 It is quite true that the proof of handwriting by witnesses, who have 
 not seen the very paper written, is among the most unsatisfactory parts of 
 evidence, resting, as it always does, upon presumptions of greater or less 
 infirmity. It is possible that some mode of comparison of the disputed 
 writing with genuine specimens, fairly selected, might result in more 
 accurate determination; but until the Legislature shall introduce it, 
 properly guarded as to the fairness and genuiness of the specimens to be 
 employed, it cannot be introduced into the common law of this State. 
 
 The French code excludes, as standards of comparison, private writ- 
 ing not admitted to be genuine in the cause (Doe v. Suckermon, 5 Adolph. 
 & Ellis., 703), while we could frame no limit to the kind of evidence by 
 which the writings, to serve as standards, should be proved. If the courts, 
 admit them at all, and in any case, they are of right provable by no other 
 rules than those which apply to writings generally, and thus the genuine- 
 
.532 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Examination as to Writings not in issue. 
 
 ness of the standards would, except in accidental cases, be just as uncer- 
 tain as that of the writings whose genuineness they were introduced to 
 test. Under such a state of things, I think the rule a wise one which 
 ■excludes the inquiries as remote and irrelevant. 
 
 The judgment should be reversed and a new trial ordered. 
 
 All the judges concurred in the foregoing opinions. 
 
 In Brown v. Hall, 85 Va., 146; s. c. 7 Southeast. Rep., 182, upon an 
 ssue of devisavit vel non as to an Holographic will, it was held error not 
 to allow one who was acquainted with the handwriting of the propounder 
 to testify as to whetlier the will was in his handwriting in order to show 
 that it was not in the handwriting of testatrix. 
 
 NOTES OF KEOENT CASES AS TO EXAMINING WIT- 
 NESS AS TO OTHER WRITINGS. 
 
 Georgia : Travelers Ins. Co. v. Sheppard, 85 Ga., 751 ; s. c, 13 South- 
 ■east. Rep., 18 (to test the skill of an expert as to handwriting on cross- 
 examination, writings or parts of writings no matter by whom written, 
 may be exhibited to him for comparison with the handwriting in question; 
 and neither the witness nor the opposing counsel is entitled to know what 
 writings will be used for such purpose, or whether genuine cJl- not). Ken- 
 tuclcy : Andrews v. Hayden, 88 Ky., 455; s. c, 11 Southwest. Rep., 428 
 (where a non-expert witness who is acquainted with a person's handwriting 
 testifies as to his signatiu'e, it is not proper on cross-examination to show 
 the witness a number of spurious, signatures prepared for the purpose, 
 and to ask him to select the genuine signature). Michigan : Johnston 
 Harvester Uo. v. Miller, 73 Mich., 365 ; s. c. 40 Northwest. Rep., 429 (it is 
 not error upon the cross-examination of handwriting experts, who have 
 no knowledge of the handwriting of the person whose signature is dis- 
 puted, to examine them as to whether the signatures of another person 
 to documents already in evidence were actually written by the same per- 
 -son). Missouri: Rose v. First National Bank, 91 Mo., 399; s. c. 3, 
 Southwest. Rep., 876 (a bank cashier, who testified as to the genuineness of 
 the signature to a check disputed by plaintiff, was shown the signatures 
 •of plaintiff's name to two blank checks and was asked in whose hand- 
 writing they were. The witness replied that he would pay them as 
 plaintiff's checks. The plaintiff was then allowed to introduce such sig- 
 natures in rebuttal, and show that they were written by third persons 
 during the pi-ogress of the trial. Held, that this was error). New York : 
 First National Bank v. Hyland, 53 Hun, 108 ; s. c. 25 State Rep., 446 ; 6 
 N. Y., Supp., 87 (the judgment of an expert as to handwriting may prop- 
 erly be tested by inquiries as to his opinion in regard to the genuineness of 
 ;signatures to other notes and endorsements which are in evidence). 
 
VII. Some general j)rinci_pJes. (1) Subscribing Witness. 533- 
 Note on Preappointed Witnesses. 
 
 NOTE ON PREAPPOINTED WITNESSES. 
 
 [See on this subject: Maine Miss. Soc. v.Jngalls, 111., 1893, 35 Northeast., 
 Rep. 743; Carleton v. Carleton, 40 N. H., 14, s. c. Thayer's Cas. on Ev. 
 772-816.] 
 
 At common law if an instrument was attested by a subscribing- wit- 
 ness that witness must be produced or accounted for before any other 
 proof of execution could be given, and, if accounted for, his handwriting 
 must be proved. 
 
 See the rule fully stated in the opinion of Justice Nelson, in Pelletreau 
 V. Jackson, 11 Wend., 110, and of Senator Tracy, on affirmance sub nom., 
 Jackson v. Waldron, 13 Wend., 178, at p. 196. 
 
 By statute in New York (N. Y. L. 1888, p. 200, c. 195) and in some 
 other states, a subscribing witness is not necessary unless a subscribing 
 witness is necessary to the validity of the instrument. For a list of such 
 instruments see 1 Univ. L. Rev., p. 36. Such instruments are now usually 
 acknowledged, or proved by the subscribing witness before a notary or 
 other officer (which may be done after suit brought, unless the acknowledg- 
 ment or proof was essential to validity, Holbrook v. N. J. Zinc Co., 57 
 N. Y., 616) instead of producing him at the trial. 
 
 Acknowledgment of a deed dispenses with the necessity of calling a. 
 subscribing witness. Simmons v. Havens, 101 N. Y., 427. 
 
534 Abbott's Select Cases on Examining Witnesses. 
 Rugg- V. Rugg, 83 N. Y., 593. 
 
 EUGG V. KUGG. 
 
 JVew York Court of Appeals, 1881. 
 
 [Reported in 83 N. Y., 593 ; affirming 21 Hun, 383.] 
 
 One named in the will as executor is not thereby rendered incompetent 
 to testify as a witness on the probate of the will. 
 
 The due execution of a will may be established even in opposition to the 
 testimony of the subscribing witnesses. 
 
 Tlae subscription by the testator must be shown to have been made prior to 
 that of the subscribing witnesses. 
 
 Pailure of recollection by the subscribing witnesses cannot defeat probate 
 if the attestation clause and the surrounding circumstances satisfac- 
 torily prove execution of the will. 
 
 Appeal from the decree of a surrogate in probate proceed- 
 ings. 
 
 The Supreme Court at General Term affirmed tlie decree. 
 
 Haedin, J., said : Jackson v. Jackson (39 E". Y., 153) is an 
 authority for holding that the witnesses who are to attest the 
 subscription and publication of a will by a testator should sign 
 the same after the subscription by the testator. The declaration 
 of the testator may be that it is his last will, on the same occa- 
 sion of the signing and witnessing, and it is not essential that it 
 immediately precede the subscription. 
 
 We are called upon to review the evidence and from it de- 
 termine whether there was a due execution of the will shown by 
 it. Both of the subscribing witnesses were called, and gave 
 evidence touching the circumstances of the execution of the 
 will ; and Jenks, who was named as one of the executors, was 
 also called as a witness in behalf of the proponents, and gave 
 evidence of the facts and circumstances attending the execution 
 of the will. His testimony was objected to by the contestants. 
 But the authorities require us to hold that he was a competent 
 witness, and that his testimony was properly received by the 
 surrogate, (McDonough v. Loughlin, 20 Barb., 239 ; Children's 
 Aid Society w. Loveridge, 70 K". Y., 387 ; Pruyn v. Brinker- 
 hoff, 7 Abb. Pr., N. S., 401.) 
 
 We must, in considering the question raised in respect to the 
 
Yll. Some ge)ieralj)rhioiples. (]) Subscribing Witness. 535 
 
 Eugg V. Rugg, 83 N. Y., 598. 
 
 due execution of the will, give effect and force to the evidence 
 _given by Jenks. He was a man about sixty years of age, had 
 been accustomed to draw wills, and supervise their execution, 
 and the evidence given by him is to the effect that the essentials 
 to a due execution were all observed, and he is emphatic in his 
 statements that the testator subscribed his name before the 
 subscribing witnesses. It is settled beyond doubt or discussion, 
 that the due execution of a will may be established by other 
 evidence than such as may be derived from the subscribing wit- 
 nesses. Indeed, in opposition to the evidence of subscribing 
 witnesses, wills have been estabhshed and admitted to probate. 
 (Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 425 ; and 
 op. of Denio, J., in Tarrant v. Ware, quoted in a note to the 
 last case ; Jauncey v. Thorn, 2 Barb. Ch., 40). 
 
 But it is said that one of the subscribing witnesses in the case 
 before us stated that the testator did not sign uptil after the 
 witnesses had subscribed their names. During the course of his 
 examination he became somewhat in doubt as to the order of the 
 signing, and he stated, viz : "I thought first it was after, and it 
 seems as if it was. I may be mistaken." The other witness, in 
 the course of his examination stated, viz.: " I am not positive 
 who signed first ; think Mr. Hooker did. Mr. Hooker first 
 signed it, Mr. Jenks showing him where ; he rose, I sat down 
 and asked Mr. Jenks where I should sign." Then in answer to 
 the question, viz.: " Do you recollect that Mr. Rugg had signed 
 this before Mr. Jenks told you where to sign ? " he said, " I do 
 not recollect." * * * He is further asked, viz.: Ques. " Is 
 it not your best recollection, that immediately after you signed, 
 Mr. Jenks picked up the paper, folded it, and you and Mr. 
 Hooker immediately passed out," and the witness answered: 
 " I think it was." Ques. " Before that you had seen Mr. Eugg 
 sign ? " Ans. " Yes, sir, after the time it was folded Hooker and 
 I passed out." He subsequently stated, " I do not remember 
 that Eugg signed after us ; I saw him sign." 
 
 Thus we see that the two witnesses are not clear and positive 
 in relating the order in which the events, stated by Jenks in his 
 evidence, took place. But we think their evidence, taken with 
 his, gives rise to a very strong presumption, that, after the testa- 
 
536 Abbott's Select Cases on Examining Witnesses. 
 
 Eugg V. Eugg-, 83 N. Y., 593. 
 
 tor had signed his name, the two witnesses became subscribing- 
 witnesses, by placing their naines below the attestation clause. 
 In Gwilliam v. Gwilliam (3 Swabey & T., 200), it was held that 
 the court is at liberty to judge from the circumstances of the 
 case, whether it was probable that the testator's' name was on 
 the will or not, at the time of the attestation ; and, being of the 
 opinion that it was, to pronounce for the will and its due execu- 
 tion. That was a case where two old ladies were the subscrib- 
 ing witnesses, and they testified they did not remember the 
 testator's name being on at the time they became subscribing 
 witnesses. Sie C. Ceesswell upheld the proofs and admitted 
 the will to probate. The same principle is asserted in the- 
 Matter of John Kellum's Will (52 N. Y., 517). Chdech, Ch. J., 
 says: "The principle is that a mere failure of memory on the 
 part of the witnesses shall not defeat a will, if the attestation 
 clause and oiher circumstances are satisfactory to prove its 
 execution. 
 
 We have read all the evidence touching the execution of the 
 will before us, and we cannot resist the conclusion that the testa- 
 tor's name was written by him to the will before the subscrib- 
 ing witnesses signed their names in his presence and in the 
 presence of each other, and the testator declared the instrument 
 to be his last will and testament. Some questions were quite 
 leading, but as the witnesses were not clear in recalling the 
 events attending the execution of the will, we cannot say that 
 the surrogate abused his discretion in allowing them, and there- 
 fore we must decline to interfere with the rulings made upon 
 the hearing. 
 
 The Court of Appeals affirmed the judgment. 
 
 MiLLEE, J. We think that the evidence was sufficient ta 
 establish that the will was executed in accordance with the pro- 
 visions of the Eevised Statutes and the decisions of this court. 
 The evidence of the subscribing witnesses upon the cross- 
 examination, which, it is claimed, tended to show that they did 
 not sign the will after it was signed by the testator, is insufficient 
 to establish that it was not properly executed. Hooker, one of 
 them, after stating that the testator signed after he did, appears 
 
VII. Some general principles. (1) Subscribing Witness. 53T 
 
 Rugg V. Rugg, 83 N. Y., 593. 
 
 to have had doubt on the subject, and testifies that he may be 
 mistaken. The other witness, Smallwood, who testifies that he 
 does not remember that Rugg signed last, states, in the course 
 of his examination, that he (the witness) was the last one wha 
 signed. It will be seen that the testimony is by no means satis- 
 factory that Engg signed last, and the most which can be claimed 
 from the evidence of the subscribing witnesses is that they were 
 not positive — that they did not remember exactly how the fact 
 was. To supply this want of memory, Jenks, the executor, who 
 had considerable experience in such matters, testifies distinctly 
 a? to all which took place, the order in which the several acts 
 were done, and that the testator signed before the subscribing 
 witnesses. The preponderance of proof was in favor of the due 
 execution of the will, and, as the evidence stood, the surrogate 
 could not come to any other conclusion than that the will was 
 properly executed. "Where there is a failure of recollection by 
 the subscribing witnesses, the probate of the will cannot be de- 
 feated if the attestation clause and the surrounding circum- 
 stances satisfactorily establish its execution. (Matter of Kellum, 
 52 N. Y., 51T.) In fact, wills may be established even in oppo- 
 sition to the evidence of the subscribing witnesses. (Trustees of 
 Auburn Theo. Sem. v. Calhoun, 25 N. Y., 425.) 
 
 There was no objection to the questions put to the subscribing 
 witnesses in regard to their being mistaken ; and within well- 
 settled rules they were properly allowed. 
 
 Jenks was also a competent witness. (See Children's Aid 
 Society v. Loveridge, 70 N. Y., 387.) There is no distinction 
 between this case and the one cited which authorizes a disregard 
 of the latter authority. 
 
538 Abbott's Select Cases on Examining Witnesses. 
 
 Note on the Rule as to Shop Books. 
 
 NOTE ON THE EULE AS TO SHOP BOOKS. 
 
 This rule, otherwise knowa as the rule in Vosburgh v. Thayer, 13 
 Johns, 461 ; s. c. Thayer's Cas., 533, as developed in practice and established 
 by later cases, results as follows : In actions for goods sold and services 
 rendered, not founded on special conti-act, the party's books of account 
 are admissible in evidence foi- the consideration of the jury, in his own 
 favor, upon due preliminai'y proof : 1. That they are his books of account 
 kept in the regular course of business ; 2. That there was a course of 
 dealing between the parties ; 3. Tliat some article or service charged was 
 actually furnished ; 4. That the party had no clerk or bookkeeper (unless 
 it may be for merely writing up or posting- charges originally made and 
 completed in substance by the party) ; 5. That he kept fair and honest 
 accounts. 
 
 In more detail observe : 1. The record must be shown to have been 
 the party's account, kept in the regular course of business. Formal book- 
 keeping is not important. The record derives whatever respect it 
 receives, from the fact that it is the personal record of the party, kept 
 according to his usage and degree of intelligence, for the purpose of pre- 
 serving the memory of moneys due him for goods or labor. The account 
 is not to be excluded because kept in ledger form, so that the charges 
 against defendant are on a separate page from those against others ; 
 although entries scattered tlu'ough an account in the journal or day-book 
 form are more cogent evidence. But if shown not to be the book of 
 original entries, it is not competent without producing or accounting for 
 those entries. If it appear either from the books themselves, or extrinsic 
 evidence, tliat they are a part of a system of books involving others which 
 may be necessary to a complete view of the state of accounts, tlie others 
 must be produced or accounted for. Thus, where the ledger is relied on, 
 a day-book shown to have been kept must be produced. The charge 
 should be made under an existing right to charge, not merely in anticipa- 
 tion of such a right, and must appear to have been made for the purpose 
 of charging, for specific things, the person upon whose credit the trans- 
 action was had, as distinguished from memoranda of orders, or deliveries, 
 or of things to be subsequently done. 
 
 3. There must have been some course of dealing between the parties. 
 A single sale, though of more than one article, is not enough to constitute 
 that relation between the parties which allows the books to be admitted. 
 
 3. Independent evidence that some article or service charged was 
 furnished, is indispensable. Proof of this prior to the time covered by 
 the account is insufficient. One article delivered and one item of work 
 done, as charged, satisfy this requirement. 
 
 4. The rule we are now considering does not apply to admit the books 
 of a party to the suit, if they were kept by a regular clerk or bookkeeper, 
 whose business it was to notice sales and enter them in the books; 
 such entries are admissible under other rules already stated. But the 
 books of daily entries, made by the party himself, are not rendered 
 
VII. So7ne ge7ieral principles. (2) Accounts. 539 
 
 Note on the Rule as to Shop Books. 
 
 incompetent by the fact that his servant, porter or messenger noted in 
 temporarj' form the deliveries made by him, and reported them to the 
 party, who, upon such information, or copying from the temporary 
 memoranda, made the entries in question. If there were partners, it is 
 enough to produce the one who kept the book ; butif he is dead, the book 
 may be admitted on the oath of the other, if he can testify to his 
 knowledg'e of the correctness of the entries. 
 
 5. To show that the party kept fair and honest books, the testimony of 
 ■one witness is enough, who has dealt with the party, and settled with 
 him by his account ; but he should be a customer, or a witness to settle- 
 ment bj' customers, or may be even an employee. A settlement by the 
 ledger is enough, though the witness did not see the day-books. The 
 evidence of fair and honest accounts should be directed, in part at least, 
 to the period covered by the dealing's in question. 
 
 The competency of an account under these rules is a preliminary 
 •question for the court. 
 
 An account offered in evidence under these rules should be submitted 
 to the judge for inspection. But if the books are shown to have been 
 lost or destroyed, secondary evidence of their contents may be received. 
 Without laying a foundation for secondary evidence, a copy is not 
 -admissible. Abbreviations and symbols may be explained by parol, by 
 -testimony other than that of the party himself. The party may explain 
 by stating his usage, not by stating- a secret intent. The fact that the 
 book has been mutilated in a part not appearing to be material to the 
 issue, such as having leaves torn out, etc., does not make it incompetent, 
 but goes to its credit. But apparent alterations or erasures in a part 
 material to the cause must be explained before the account can be 
 admitted. Any fact showing the books unworthy of credit may be proved, 
 such as bad method of bookkeeping; or bad business character of the 
 party; or erasures, mutilations, etc.; but not the general bad moral 
 character of the party. 
 
 An account properly in evidence under this rule is competent evidence 
 •of the facts of sale, of the dates, of the price or value, and of the delivery; 
 but not evidence of any other matter than the issue of debit and credit 
 between the parties. 
 
 Pass books, kept by one party and written up by the other, are 
 •competent, irrespective of whether the entries were original memoranda, 
 or copies. 
 
 Abb. Tr. Ev., 333, &c., as modified by cases below given. 
 
 Note. —In Davis v. Seaman, 64 Hun, 572, it was held that, (1) as 
 against the executor or administrator of a deceased person, the books of 
 account of one who rendered services, etc., to the deceased, cannot (under 
 N. Y. Code Civ. Pro., §839) be proved by oath of the claimant. (3) The 
 testimony of a customer that he settled the bill presented, because the 
 bill was for a specific amount agreed upon before the services were ren- 
 dered, is not sufficient to prove "settlement according to the book," under 
 the rule in Vosburgh v. Thayer, although he may have seen the making 
 of the entry in the book. 
 
54:0 Abbott's Select Cases on Examining "Witnesses. 
 McGoldrick v. Traphagen, 88 N. Y., 334. 
 
 McGOLDEICK v. TEAPHAGEN. 
 
 JVew York Court of Appeals, 188^. 
 [Reported in 88 N. Y., 334.] 
 
 The employment of a bookkeeper who had nothing to do with the trans- 
 actions, but only with transferring- entries and posting books, is not 
 the keeping of a " clerk," within the rule in Vosburgh v. Thayer.* 
 
 An employee of the party is competent to give the necessary testimony of 
 someone who has settled his accounts with the employer by the 
 employer's books and found that he kept honest and correct books. 
 
 Arthur McGoldrick, a blacksmith and sheer of horses, pre- 
 sented to W. C. Traphagen, executor of one Wilson, who had 
 in his lifetime been a livery stable keeper, a claim for 7,337^\- 
 doUars for services in horseshoeing : the executor disputed the 
 justice -of the claim ; it was thereupon, by agreement, referred 
 pursuant to the statute (2 N. T.K. S., 88, 4 id., 8 ed., 2,560-§36). 
 
 The deceased had carried on two large livery stables, and the 
 claimant's account contained items running from 1868 to 1876. 
 
 At the trial before the referee, it appeared by the testimony 
 of the claimant and of one Birmingham and one Pryor, that the 
 usage of plaintiff's business was, his men shod the horses under 
 his direction ; he kept an account, but seldom made the entries 
 in the book himself ; he usually entered on the slate the work 
 he saw done, at the time, or in the afternoon, or at night of the 
 same day : in his absence the foreman made the slate entries. 
 The entries from the slate were then transferred by the claimant 
 or by Birmingham, who kept the claimant's books, into the day- 
 book about every day ; and every two or tliree days, or once a 
 week, Birmingham posted them into the ledger, and when the 
 entries of work had been made in the ledger the claimant iixed 
 the prices. 
 
 Similar usage during a later period than Birmingham's, was 
 proved by one Pryor, who transferred charges in the same way, 
 and also made some entries on the slate. 
 
 When the bookkeeper made entries on the slate he did so 
 from reports made to him by the men or the foreman. 
 
 * See note at the end of this case. 
 
VII. Some general principles. (2) Accounts. 541 
 
 McGoldrick v. Traphagen, 88 N. Y., 334. 
 
 There was direct testimony to plaintiff's rendering of constant 
 services to the decedent in slioeing during the period in question. 
 
 Several other customers of the claimant were called as wit- 
 nesses, and each produced the claimant's bills against himself, 
 and testified to having found his bills honest and fair (and correct, 
 except for some clerical errors), and to having paid his bills ; but 
 neither of them had seen his books. The claimant's bookkeeper, 
 however, was called, and on being shown the bills of these cus- 
 tomers, testified that he made them out from the books, from 
 which they were correctly copied. 
 
 He also testified that he, the bookkeeper, settled his own 
 accounts with the claimant by the claimant's books, and to the 
 best of his knowledge and belief, the claimant kept honest books. 
 
 On the first trial the referee refused to receive the books on 
 the ground that the proper suppletory evidence had not been 
 given ; and he therefore reported against the plaintiff. 
 
 The Supreme Coitrt at General Term reversed the judgment. 
 
 Ingalls, J., said: We discover nothing in the case which 
 should create suspicion in regard to the honesty or accuracy 
 with which the accounts were kept ; we are convinced that the 
 books of accounts should have been received as evidence by the 
 referee, and considered by him in connection with the other 
 testimony in the case. 
 
 One pre-requisite was wanting to constitute them sufficient 
 evidence to establish the account. Independent of the other 
 proofs, viz., the failure by McGoldrick to show that other per- 
 sons had had dealings with him and settled their accounts from 
 the books and found them correct, they were, nevertheless, com- 
 petent evidence as original entries or memoranda, having been 
 made at or about the time the work was performed, and by the 
 parties who did the work, and by whotn the accuracy of sach 
 entries upon the books is satisfactorily established. It was the 
 province of the referee to determine the value of the books as 
 evidence when once received ; but he rejected them absolutely, 
 whereby, in our judgment, error was committed prejudicial to 
 the case of McGoldrick. The courts of this state by their 
 
542 Abbott's Select Cases on Examining- "Witnesses. 
 
 McGoldrick v. Traphagen, 88 N. Y., 334. 
 
 decisions have extended the doctrine very far in favor of the 
 reception of this class of evidence, and sufficiently so to have 
 justified the admission of the boots of account as evidence in 
 conjunction with the other proofs in the case (Krom v. Levy, 
 1 Hun, 171 ; Filkins v. Baker, 6 Lans., 546 ; Merrill v. Oswego 
 K. E., 16 Wend., 599; Gray v. Mead, 22 K Y., 462 ; Marclay v. 
 Schults, 29 N. Y., 346, 351). 
 
 On the second trial before another referee the books were 
 received, and judgment was given for plaintiff. 
 
 The General Term affirmed the judgment without further 
 opinion. 
 
 The Court of Appeals now affirmed the judgment. 
 
 Charles Matthews, for defendant appellant, insisted that the 
 books should have been excluded because on the grounds among 
 others that (1) there was no proof that any particular service 
 charged was actually rendered ; (2) the claimant kept a book- 
 keeper ; (3) the ledger could not be deemed a book of original 
 entries; (4) the customers produced had never seen plaintiff's 
 books ; and the bookkeeper being an employee was not a cus- 
 tomer within the rule. 
 
 J. M. Martin, for respondent, cited besides the cases in the 
 opinion, Stroud v. Tilton, 4 Abb. Ct. App. Dec, 324 ; Davidson 
 V. Powell, 16 How. P., 467 ; Breinig v. Matzler, 28 Penn., 156 ; 
 Ewart V. Merrill, 5 Haw. (Del.), 126 ; Bailey v. Barnelly, 23 
 G-eo., 528; Karr v. Stephens, 24 Iowa, 123; Hill v. Scott, 12 
 , Penn., 168; Wollenweber v. Kitterlinus, 17 Penn., 389; Pen- 
 dleton V. Weed, 3 E. D. Smith, 72. 
 
 Miller, J . We think that there was no error committed by 
 the admission of the ledger of the respondent as evidence. It was 
 proved upon the trial that the work done by the respondent for 
 the testator was first entered at the time upon a slate, generally 
 by the respondent. The entries werethen transferred by the book- 
 keeper to a day book about every day, and then to the ledger 
 from the day-book. No prices for the work were entered until 
 the charges were carried out into the ledger, and then the 
 respondent fixed the -prices and they were entered accordingly. 
 
YII. Some general jprincijples. (2) Accounts. 54?- 
 
 McGoldrick v. Traphag-en, 88 N. Y., 334. 
 
 The respondent testified that he directed the men in shoeing the 
 horses and superintended the work generally, and attended in part 
 to the shoeing of the horses himself, and they were shod from 
 the date of the bills to the death of the testator. That he kept 
 the account, entered the work when there, except when occa- 
 sionally absent, and then the foreman did it, and that the entries 
 were correctly carried from the slate to the day-book, and from 
 the day-book to the ledger. There was evidence that one of the 
 bookkeepers saw some work done and made some entries on the 
 slate, and also testimony from other witnesses showing that the 
 work had been done by the respondent and his workmen; the man- 
 ner in which the account had been kept and the account showed a 
 credit of $3,247 for moneys paid by the testator. There was no con- 
 tradictory testimony as to the correctness of the amount ; nor were 
 any witnesses sworn for the defendant to contradict the evidence 
 given as to the nature of the services rendered or to prove that they 
 were not rendered. It also appeared that the respondent kept no 
 clerk who had anything to do with his accounts or his business 
 generally, but that he had a bookkeeper who transferred the 
 same as already stated. The accounts of the respondent were 
 really kept by himself or iTuder his immediate direction, with the 
 assistance of a bookkeeper to transfer the original entries made 
 from the slate to the day-book and from the day-book to the 
 ledger. This was done under his superintendence, and by his 
 direction expressly the prices were carried out. Until then the 
 entries were imperfect and incomplete, and neither of the books 
 contained all which was required to make complete entries 
 showing the work done and the amount of the charges made for 
 the same. There was no entry of the entire charge prior to the 
 price being carried out. As it stood then the ledger contained 
 but imperfect entries of the items with no prices, and when these 
 prices were entered they were original entries of such prices. 
 JSTeither the slate, the day-book nor the ledger was perfect of 
 itself. As a book of original entries all of them may be taken 
 together ; the ledger equally with the day-book may be regarded, 
 we think, as a book of original entries. Without it there was no 
 charge actually made in full, showing any service rendered and 
 the amount claimed. With it the charges made are complete, and 
 
544 Abbott's Select Cases on Examining Witnesses. 
 
 McGoldrick v. Traphagen. 88 N. Y., 334. 
 
 the ledger contained the first original entry of them as an 
 entirety. It was then competent evidence as a book of original 
 entries, unless there was a failure to comply with some other 
 requirements of the law as to the admissibility of books of 
 account as evidence. 
 
 It claimed that there was no proof that the respondent keeps 
 honest and correct books. Several witnesses testified that they had 
 settled their accounts with the respondent and found them honest 
 and correct, but had never seen the books. 
 
 The bills settled, which were proved to have been copied from 
 the books, were introduced in evidence and the respondent's 
 bookkeepers testified that they were copied correctly from the 
 books. One oi them also swore that he had settled his own 
 account with the respondent by his books, and to the best of Ms 
 knowledge he kept honest books and that he never heard any- 
 thing to the contrary. Although the evidence of those who had 
 settled from copies from the books which were produced does 
 not strictly comply with the rule stated as to this portion of the 
 proof, the evidence of the bookkeeper who settled his accounts by 
 the books supplied this defect, and he testified to all that was 
 required within the authorities. The rule in regard to this sub- 
 ject is that the party shall prove by those who have dealt and 
 settled with him that he keeps fair and honest accounts. (Vos- 
 burgh V. Thayer, 12 Johns,, 461.) 
 
 We do not discover any reason why a bookkeeper who has an 
 account with his employer is not a competent witness within the 
 rule stated. He deals with the employer, has an account which 
 he has settled from the books, and ought to be able to state 
 whether the accounts were honestly and fairly kept. The rule is 
 a general one and no reason exists why it should be restricted in 
 its operation so as to exclude any one who deals with the party. 
 In Hauptman v. Catlin (1 E. D. S. [N. Y. C. P.], 729), it is laid 
 down in the opinion of one of the judges that the correctness of 
 the books cannot be proved by persons in the employ of the 
 party. In this case one judge dissented, another judge did not 
 concur in this view, and the case was disposed of upon other 
 grounds. 'Ho authority is cited which sustains the rule laid down 
 in the opinion referred to, and I am unable to perceive any prin- 
 
VII. Some general principles. (2) Accounts. 545 
 
 McGoldrick v. Traphagen, 88 N. Y., 334. 
 
 ■ciple upon which it can he upheld. The points of the appellant's 
 <;ounsel do not distinctly claim that either of the respondent's 
 bookkeepers who had charge of the books alone was a clerk 
 within the meaning of that term, and within the rule applicable 
 to this species of evidence. Be that as it may, however, we think 
 that the clerk intended was one who had something to do with 
 and had knowledge generally of the business of his employer in 
 reference to goods sold or work done, so. that he could testify on 
 that subject. It evidently means an employee whose duty it is to 
 attend to the details of business, and thus is able to prove an 
 account, and not one who from his isolated position as a book- 
 keeper can have but little means of knowledge personally as to 
 the transactions done or information relating thereto, except 
 what is mainly derived from others. The latter position was that 
 occupied by the bookkeepers of the respondent, and they were in 
 no sense clerks within the meaning of the law as to evidence of 
 this character. The authorities are numerous which hold that 
 books containing entries made by those whose duty it was to 
 make them in the usual course of business are competent evi- 
 dence when other requisites are sufficiently established. (Bank 
 of Monroe v. Culver, 2 Hill, 531 ; Merrill v. Ithaca and O. K. K. 
 Co., 16 Wend., 586 ; Krom v. Levy, 1 Hun, lYl, s. c. 3 Supm. 
 Ct. (T. & C.) 704.) The ledger of the respondent was clearly ad- 
 missible within the rule as to the admission of books of account as 
 evidence. That they were transferred from a slate does not 
 affect their admission as testimony. (Sickles v. Mather, 20 Wend., 
 72 ; Faxon v. HoUis, 13 Mass., 427.) 
 
 While the large account of the respondent should induce cau- 
 tion and close scrutiny, the evidence should not be excluded when 
 it is apparent that no rule of law has been violated. It may be 
 observed that there is considerable evidence in this case to show 
 that the demand of the respondent is honest and just, indepen- 
 dent of the books. 
 
 The questions raised as to the admission of other evidence are 
 without merit and do not require examination. 
 
 All the judges concurred except Finch and Tract, JJ., dis- 
 senting, and Kappallo, J., absent. 
 
 Judgment affirmed. 
 
546 Abbott's Select Cases on Examining "Witnesses. 
 Smith V. Rentz, 131 N. Y., 169. 
 
 SMITH V. EENTZ. 
 iV^io York Court of Appeals, February, 189^. 
 
 [Reported in 131 N. Y. 169, reversing- 37 State Rep., 69.5; s. c. 14 N. Y, 
 
 Supp., 255.] 
 
 The mere inspectioh by the adverse party of a book or paper produced 
 upon notice does not give the party prodvioing it the right to put it in 
 evidence. 
 
 The rule admitting in evidence tlie boolcs of tradesmen, and otlier persons- 
 engaged in business, in their own favor, is confined to transactions in 
 the ordinary course of buying and selling or rendition of services, and 
 has no application to books or entries relating to cash items or dealings- 
 between tlie parties — e. g., the books of a person who acted as banker 
 and general business ag-ent of another. 
 
 Appeal by defendant from the affirmance of a judgment bj 
 tbe General Term of the Supreme Court of the First Depart- 
 ment entered upon the report of a referee, appointed at circuit, 
 to hear and determine all the issues. 
 
 Eugene Smith as executor of Richard Patrick, deceased, sued 
 Frederika Rentz for moneys advanced and paid out by plaintiff's 
 testator in behalf of defendant as her banker and general busi- 
 ness agent. 
 
 The Supreme Court at General Term held (37 State Rep. 695 ; 
 s. c, 14 ]Sr. T. Supp. 255), that the books of plaintiff's testator 
 were admissible in his behalf, because on examination of plaintiff 
 before the trial, they had been produced on defendant's notice, 
 and inspected by tis attorney ; and that they were also admissible, 
 notwithstanding the account related wholly to transactions in 
 money, under the general rule admitting the books of a party 
 keeping no clerk. 
 
 Leopold Leo, for appellant. 
 II. B. Ciosson, for respondent. 
 
 Andrews, J. {After considering at length and ruling on the 
 point stated in the first head note, continued thus] : 
 
 The claim is also made that the books were competent as 
 original evidence of the entries under the rule making books- 
 
VII. Some general principles. (2) Accounts. 54T 
 
 Smith V. Rentz, 181 N. Y., 169. 
 
 of account in certain cases evidence in favor of tlie party 
 keeping them. We tMnk there is no foundation for this con- 
 tention. 
 
 The rule vfhich prevails in this state (adopted, it is said, from 
 the law of Holland), that the books of a tradesman or other per- 
 son engaged in business, containing items of accounts, kept in 
 the ordinary course of book accounts, are admissible in favor of 
 the person keeping them against the party against whom the 
 charges are made after certain preliminary facts are shown, has no 
 application to the case of books or entries relating to cash items 
 or dealings between the parties. 
 
 This qualification of the rule was recognized in the earliest 
 decisions in this State, and has been maintained by the courts- 
 with general uniformity (Yosburgh v. Thayer, 12 John., 461). It 
 stands upon clear reason. The rule admitting account books, of 
 a party in his own favor in any case was a departure from the 
 ordinary rules of evidence. It was founded upon a supposed 
 necessity, and was intended for cases of small traders who kept 
 no clerks, and was confined to transactions in the ordinary 
 course of buying and selling, or the rendition of services. In 
 these cases some protection against fraudulent entries is afforded 
 in the publicity which, to a greater or less extent, attends the 
 manual transfer of tangible articles of property or the rendition 
 of services, and the knowledge which third persons may have of 
 the transactions to which the entries relate. 
 
 But the same necessity does not exist in respect to cash trans- 
 actions. They are usually evidenced by notes, or writing, or 
 vouchers in the hands of the party paying or advancing the 
 money. 
 
 Moreover, entries of cash transactions may be fabricated with 
 much greater safety and with less chance of the fraud being 
 discovered than entries of goods sold and delivered, or of services, 
 rendered. 
 
 It would be unwise to extend the operation of the rule 
 admitting a party's books in evidence beyond its present limits, 
 as would be the case, we think, if books containing cash dealings 
 were held to be competent. 
 
 Parties are now competent witnesses in their own behalf. A 
 
518 Abbott's Select Cases on Examining Witnesses. 
 Burton v. Di-iggs, 30 Wall., 135. 
 
 resort to books of account is thereby rendered unnecessary in the 
 majority of cases. 
 
 We think the ledger was erroneously admitted in evidence, 
 and the judgment below should, therefore, be reversed and a 
 new trial ordered. 
 
 All the judges concurred except Matnaed, J., taking no part. 
 
 BUKTON V. DEIGGS. 
 
 United States Supreme Court, 1873. 
 
 [Reported in 30 Wall., 135.] 
 
 When it is necessary to prove the results of voluminous facts or of the 
 examination of many books and papers, and the examination cannot 
 be conveniently made in court, the results either affirmative or nega- 
 tive may be proved by the person who made the examination.* 
 
 All the material facts appear in the opinion. 
 The jury found in favor of plaintiff. 
 
 The Supreme Oou,rt affirmed the judgment. 
 
 SwAYNE, J. \after passing on other points'] : The next assign- 
 ment of error is the admission in evidence " of such parts of the 
 depositions of A. L. Turner and C. P. Steers as refer to what 
 appeared or did not appear on the books of the Tioga County 
 Bank." It was shown by the plaintiff in this connection that 
 the books in question were in the village of Tioga, Pennsylvania, 
 that the plaintiff had endeavored to obtain them for use on this 
 trial, and that those having the custody of them refused to per-, 
 mit them to go. The testimony of Turner was, in substance, 
 -that he was the cashier, that he had examined the books and 
 papers in the bank relating to its affairs from its organization 
 down to July, 1859, and that he found no evidence of any kind 
 that the defendant ever had any connection or transaction with 
 the bank, or any interest in it whatever ; and that subsequently 
 at the request of the plaintiff and for the purposes of this suit, 
 
 * It is within the discretionary power of the court to refuse to receive such evidence and 
 require the boolis to he produced, unless the party gives such evidence as to their absence as to 
 et in secondary evidence of contents. See Von Sachs v. Kretz, 1i N. Y., 548, affg. 10 Han, 95. 
 
yil. Some (jeneval princ'jyles. (2) Accounts. 549' 
 
 Burton i\ 
 
 he repeated the examination with the same result. Steers testi- 
 fied that he was cashier of the bank from about the 16th of Sep- 
 tember, 1858, to about the 29th of April, 1859, and that during 
 that time the defendant. Burton, did not furnish to the bank 
 $7,060.18, or any other sum of money, that his name was never 
 on the books of the bank, nor did the bank owe him anything 
 on any account during that period, and that the witness did not 
 think his name appeared on the books of the bank as a stock- 
 bolder during that time. The books being out of the State and 
 beyond the jurisdiction of the court, secondary evidence to 
 prove their contents was admissible. 
 
 When it is necessary to prove the results of voluminous facts 
 or of the examination of many books and papers, and the exam- 
 ination cannot be conveniently made in court, the results may 
 be proved by the person who made the examination. 1 Greenl.. 
 Ev.,§93. 
 
 Here the object was to prove, not that the books did, but 
 that they did not show certain things. The results sought to be 
 established were not affirmative, but negative. If such testimony 
 be competent as to the former, a invito fortiori must it be so tO' 
 prove the latter. 
 
 Note.— In Lewis v. Palmer, 28 N. Y., 278, an action for conversion, in 
 which the validity and effect as against defendants, of a chattel mortgage- 
 made by W. & W. H. Lewis to plaintiff was in question, one of that firm, 
 examined as a witness, was asked : " What was the state of the accounts 
 between the plaintiff and your firm at the time of the giving of the mort- 
 gage?" The answer was : " He was indebted to us about $160 ; I ascer- 
 tain this from our books." The defendants then objected to the evidence 
 without a production of the books. 
 
 "Wbight, J. There was no force in the objection. It was not necessary 
 to produce the books of the firm to qualify the witness to answer the- 
 interrogatory. 
 
 Note. —In Boston & Worcester R. E. Co. v. Dana, 1 Gray, 104,. 
 BiGELOW, J., said : The defendant further objects that schedules made 
 from the original papers and documents previously proved in the case,, 
 showing certain data and results obtained therefrom, and verified by the- 
 witness by whom they were prepared, were improperly admitted. But it. 
 appears to us, that questions of this sort must necessai-ily be left very 
 much to the discretion of the judge who presides at the trial. It would 
 doubtless be inexpedient in most cases to permit ex parte statements of" 
 
550 Abbott's Select Cases on Examining Witnesses. 
 
 Boston & Worcester E. E. Co. v. Dana, 1 Gray, 104. 
 
 facts or figures to be prepared and submitted to thie jury. It siiould only 
 be done wliere books and documents are multifarious and voluminous, 
 and of a character to render it difficult for the jury to comprehend mate- 
 rial facts without the aid of such statements, and even in such cases they 
 should not be admitted unless verified by persons who have prepared them 
 from the originals in proof, and who testify to their accuracy, and after 
 ample time has been given to the adverse party to examine them and test 
 their correctness. Such was the course pursued in the present case, and 
 there can be no doubt that, in a trial embracing so many details and occu- 
 pying so great a length of time as the case at bar, during which a great 
 mass of books and documents were put in evidence, it was the only mode 
 of attaining to an intelligible view of the cause before the jury. 
 
YII. Same general principles. (3) Best and Secondary. 551 
 Kearney v. Mayor, 92 N. Y., 617. 
 
 KEAENEY v. MAYOR, ETC., OF NEW YOEK. 
 
 N^ew Yorh Court of Appeals, 1883. 
 
 [Reported in 93 N. Y., 617.] 
 
 The rule that oral evidence of the contents of a document is not admis- 
 sible until the absence of the writing has been explained, applies to 
 such a writing as the endorsement of authority to publish, made on 
 an official notice by the officer required by law to cause the notice to 
 be published, when sought to be proved as authorizing the plaintiff, a 
 newspaper publisher, to publisli the notice. 
 
 It naakes no difference that the law did not require the avithorization to 
 publish to be in writing. 
 
 Proof of the facts excusing the production of the original instrument so 
 as to let in secondary evidence, is addressed to the trial judge and 
 presents a question to be determined by him. 
 
 His determination that the explanation is insufficient cannot be reviewed 
 in the Court of Appeals unless the proof was so clear and conclusive 
 as to make it error of law to find against it. 
 
 To excuse the non-production of the original document by reason of its 
 loss, the person last known to have been in possession of it must be 
 examined as a witness, notwithstanding lie is out of the jurisdiction; 
 for his deposition should be procured or good excuse given. 
 
 The general rule is that the party offering such excuse must show that he 
 has in good faith exhausted to a reasonable degree, all the sources of 
 information and means of discovery which the nature of the case 
 would naturally suggest, and which were accessible to him. 
 
 Testimony of one who had acted as assistant of the publisher of a news- 
 paper during the transactions in question, that he and his employer 
 had searched in vain in the archives of the newspaper office for a 
 written authorization to make the publication, the price of which is 
 sued for, is insufficient without accountmg for omission to produce 
 evidence of search by the principal himself, and among his own papers. 
 
 If the only witness to the circumstances relied upon as excusing the non- 
 production of the best evidence, is the party himself, testifying in his 
 own behalf, the judge is not bound, as matter of law, to credit the 
 statements of a witness thus interested ; and, therefore, his decision 
 on the question whether the testimony is sufficient, cannot be 
 reviewed in the Court of Appeals. 
 
 The complaint alleged that about a day named, one Scanlon, 
 then and some time previously the publisher and owner of the 
 " Irish Eepublic " newspaper in the city and county of New 
 York was duly authorized by the officers or agents of the above 
 
552 Abbott's Select Cases on Examining Witnesses. 
 
 Kearney v. Mayor, 93 N. Y., 617. 
 
 named defendants [the mayor, aldermen and commonalty of 
 that city] duly created and empowered by law and having law- 
 ful right and authority so to do, to print, publish and advertise 
 in his said newspaper, a copy or copies of an election notice, 
 authorized and ordered to be published according to law, for the 
 period of eleven weeks, at the compensation of, &c., &c. It 
 further alleged Scanlon's performance of the service, the amount 
 due therefor, and that the service was worth that amount ; and 
 that the claim had been assigned to plaintiff, and also duly pre- 
 sented to the city a'uthorities. The answer admitted only the 
 corporate existence of the defendant, and denied all else, and 
 alleged that the claim had been disallowed by the Board of 
 Audit. Before the trial the publication and the assignment of 
 the claim were admitted by stipulation. 
 
 At the trial the only contest was on the effort to prove that 
 the sheriff, O'Brien, authorized the publication. Plaintiff, 
 as a witness in his own behalf, testified that he was an assistant 
 of Scanlon on the paper ; that in pursuance of Scanlon's direction 
 to go and get the notice to be pubhshed, he called on O'Brien ; 
 adding : " lie gave me a written notice giving authority to 
 publish the election notice. 
 
 Defendant's counsel. I object to his stating the contents of 
 the written notice, and move to strike out that part of his 
 answer. 
 
 Motion granted and exception taken. 
 
 Q. Did he give you the election notice ? A. That is what 
 was on it. 
 
 Q. "What was on the back of it ? Objected to, and excluded, 
 and exception taken." 
 
 The witness further testified : "Afterward when the business 
 of the paper was wound up, I remember making search among 
 the records of the ' Irish Republic ' newspaper for this election 
 notice. I have made earnest and diligent search among my 
 papers as well as among the papers of the ' Irish Repubhc ' 
 for this paper. I did not find the paper. I don't know what 
 has become of it ; it was lost. I haven't it anyhow." 
 
 On further inquiry the witness said that he remembered the" 
 
VII. Some general principles. (3) Best and Secondary. 55^ 
 
 Kearney v. Mayor, 93 N. Y., 617. 
 
 contents of the authorization but not the exact words; that the 
 authorization was in writing and that he did not remember that 
 Mr. O'Brien said anything besides giving the paper when asked 
 for an order to publish the notice. 
 
 He further testified : " I remember a search being made of this. 
 written order or election notice in connection with this publica- 
 tion. I made that search. Both Mr. Scanlon and myself 
 searched all over for it. "We were not able to find it. " 
 
 Numerous questions put by plaintiff's counsel calling for the 
 contents of the authorization and questions calling for what Mr. 
 O'Brien said, were excluded. 
 
 Plaintiff asked to go to the jury on the question whether 
 O'Brien authorized the publication, which was refused, and the 
 court dismissed the complaint. 
 
 The Nexo York Common Pleas at General Term aflfirmed 
 the judgment of dismissal. 
 
 Beach, J., delivering the opinion of the court, said : The testi- 
 mony of the plaintiff showed the authority to publish the notice 
 was in writing, to render parol proof of its contents, counsel 
 stated his intention to prove the paper lost. It appeared the 
 plaintiff delivered it to one Scanlon, the proprietor and publisher 
 of the newspaper. He at some indefinite time afterwards, 
 searched among the records of the newspaper office for it, among 
 his own papers, and at the time of and prior to the assignment, 
 he and Scanlon searched for it in the archives of the newspaper 
 office. This evidence did not prove the instrument lost. It 
 was of great importance, being the foundation of the plaintiff's 
 claim. In such case clear proof is required before parol state- 
 ment of contents will be heard. The paper belonged to Scan- 
 lon, was shown in his possession, and may be there still, for all 
 the testimony discloses. I am unable to imagine how its loss 
 could have been legally shown without his evidence. Although 
 he may not be within the State of New York, presumably his. 
 evidence could have been taken on commission. The remaining; 
 exception were to rulings of the court, rejecting or striking 
 out parol evidence of the contents of the papers. (These were 
 all correct, because the preliminary and vital fact of loss did not 
 
554 Abbott's Select Cases on Examining Witnesses. 
 
 Kearney v. Mayor, 92 N. Y., 617. 
 
 appear.) All such proof was incompetent and properly excluded. 
 (Greenleaf on Evidence, Vol. 1, Sec. 558, and notes.) 
 The judgment should be affirmed with costs. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eapallo, J. The alleged employment by the sheriff, pursu- 
 ant to chapter 480 of the Laws of 1860, of Scanlon, the plaintiff's 
 assignor, to publish the election notice in the newspaper en- 
 titled " The Irish Eepublic," lay at the foundation of the 
 plaintiff's supposed cause of action. The fact of such employ- 
 ment was put in issue by the answer. The plaintiff was the only 
 witness called to prove it, and he testified that, at the request of 
 Scanlon, he called upon the sheriff and asked him for the election 
 notice. That the sheriff gave it to him with a written indorse- 
 ment thereon, which indorsement, the plaintiff claims, contained 
 an authorization to Scanlon to publish the notice. 
 
 The plaintiff then endea scored to give parol evidence of the 
 contents of the written indorsement, but on objection being 
 made, the court excluded such parol evidence. 
 
 The plaintiff then attempted to prove that the paper was lost, 
 but the court held the proof insufficient, and excluded parol evi- 
 dence of its contents. The plaintiff was then asked what was 
 said bj' the sheriff at the time, and answered that he did not 
 remember that he said anything. After this the witness was re- 
 peatedly pressed to state the contents of the writing indorsed on 
 the notice, and to state what the sheriff said at the time, but all 
 these questions were excluded, and the answers given by wit- 
 ness to some of them were stricken out. 
 
 There can be no doubt that the defendant had the right to 
 insist on the production of the paper, and to object to parol evi- 
 dence of its contents without proof of its loss. It is no answer 
 to this objection to say that the law did not require the authority 
 or contract of employment to be in writing. 
 
 The proof of loss of the paper was addressed to the trial judge 
 and presented a question to be determined by him as matter of 
 fact. His determination of the fact cannot be reviewed here, 
 unless the proof of loss was so clear and conclusive that it was 
 error of law to find against it. (Jackson v. Frier, 16 Johns., 193 ; 
 
YII. Some general ^prinoi pies. (3) Best and Secondary. 555 
 
 Kearney v. Mayor, 92 N. Y., 617. 
 
 Stevens on Evidence, Article 71 ; Mason v. Libbey, 64 How. 
 Pr., 267.) The proof in this case fell far short of that standard. 
 According to the testimony of the witness he gave the paper to 
 Scaulon. That is the last trace we have of it. The witness 
 says that afterward, when the business of the newspaper was 
 being wound up, he remembers making search among the records 
 ■of " The Irish Republic " for the election notice ; that he has 
 made earnest and diligent search among his own papers, as well 
 .as among the papers of " The Irish Eepublic" for that purpose ; 
 that he and Mr. Scanlon together searched all over for it, but 
 were not able to find it, and that Mr. Scanlon told witness he 
 was unable to find it. He does not say where they searched, ex- 
 cept among the papers of "The Irish Republic." It does not 
 appear that search was made among Scanlon's papers. The 
 witness says that he is quite positive that at the time of the as- 
 signment of the claim to him, and before that, the search for 
 this notice was made in the archives of the newspaper office, 
 that both he and Scanlon searched for it and it could not be 
 found. 
 
 This is all the evidence in the case on the subject of the loss 
 of the paper, and it is apparent at the first glance that it is any- 
 thing but conclusive. The first glaring defect is that although 
 the paper was last seen in Scanlon's possession, and although the 
 witness says that Scanlon subsequently assisted in the search for 
 it, he was not examined as a witness. The only excuse offered 
 for this omission is the testimony of the plaintiff that since the 
 assignment of the claim to him, Scanlon has not been living in 
 the city, county and State of New York. It was not shown, 
 however, that there was any difficulty in reaching him, and it 
 has repeatedly been held that the person last known to have been 
 in possession of the paper must be examined as a witness, to 
 prove its loss, and that even if he is out of the State, his deposi- 
 tion must be procured, if practicable, or some good excuse given 
 for not doing so (Deaver v. Rice, 2 Ired. [N. C], 280 ; Dickin- 
 son V. Breeden, 25 111., 186 ; Bunch's Adm'r. v. Hurst, 3 Desaur 
 Eq. [S. C], 273 ; Turner v. Yates, 16 How. [U. S.], 14 ; Parkins 
 V. Cobbet, 1 C. & P., 282). And the general rule is that the 
 party alleging the loss of a material paper, where such proof is 
 
556 Abbott'$ Select Cases on Examining "Witnesses. 
 
 Kearney w. Mayor, 93 N. Y., 617. 
 
 necessary for the purpose of giving secondary evidence of its^ 
 contents, must show that he has in good faith exhausted, to a 
 reasonahle degree,<a.ll the sources of information and means of 
 discovery which the nature of the case would naturally suggest^ 
 and which were accessible to him (Simpson v. Dall, 3 Wall., 460, 
 475). 
 
 The questito being one of fact, it is not necessary to show that 
 it would have been error in the trial judge to hold the proof of 
 loss sufficient, and admit the parol evidence offered. The point 
 which the^ appellant must establish is that the proof was so con- 
 clusive that it- was erXor of law not to hold it sufficient, and if 
 there wei'e hothin^else in the case, the fact that the only witness. 
 called to testify to the loss was the plaintiff himself, was enough 
 to preclude this court from reviewing the decision of the trial 
 judge and General Term. For the court below was not bound 
 as matter of law to credit the statements of a witness thus inter- 
 ested, given in his own behalf, though uncontradicted by any 
 other witness (Elwood v. Western Union Tel. Co., 45 N. Y.^ 
 549 ; 6 Am. Eep., 140 ; Nicholson v. Conner, 8 Daly, 2.15). 
 
VII. Some general princijyles. (4) Kes Gestae. 657 
 Waldele v. N. Y. Central, etc., E. Co., 95 N. Y., 274. 
 
 IVALDELE V. N. Y. CEJS^TRAL & HUDSON K. R. CO. 
 
 New York Court of Appeals, 188 1^. 
 [Reported in 95 N. Y., 374, reversing 29 Hun, 35.] 
 
 The res gesta of a railway casualty does not include declarations describ- 
 ing the casualty, made by a sufferer, though within half an hour after 
 the accident and to the first person finding the sufferer. 
 
 In a civil case, the fact that declarations partake of the nature of dying 
 declarations does not render them competent. 
 
 Catherine Waldele, as administratrix of John E. Waldele, 
 (deceased, sued for damages by injuries which caused his death. 
 The material facts appear in the opinion. 
 
 At the trial verdict was rendered in favor of plaintiff for 
 $3,000 which the court at Special Term set aside. 
 
 The Supreme Court at General Term reversed the order, thus 
 allowing judgment on the verdict. Smith, P. J. \afler stating 
 facts and citing a number of cases, which a/re fully discussed in 
 the Court of Appeals opinion which follows, said] : The 
 statement of the injured man, as to the cause of the accident, 
 was made to his brother, who was the first person he saw after 
 ^he occurrence, with whom he could converse, and it was so soon 
 after the event as, in view of all the circumstances, to preclude 
 the idea of design. It is, to a great extent, in the discretion of a 
 Irial judge, to say whether under all the circumstances of the 
 case on trial, declarations of that nature are a part of the res 
 gestoB, and his decision should not be reversed except for plain 
 error or abuse of discretion. [Reported in 29 Hun, 35. j 
 
 The Court of Appeals reversed the judgment. 
 
 Eael, J. The intestate came to his death from injuries re- 
 ceived on defendant's railroad in the city of Rochester, near 
 midnight, July Ist, 1876. He was an educated deaf-mute, intel- 
 ligent, and in possession of all his faculties, except that of speech 
 and hearing. He was familiar with the railroad at the place 
 where he was injured ; and was probably attempting to cross the 
 railroad on his way home at the time he was struck by an engine 
 
558 Abbott's Select Cases on Examining "Witnesses. 
 
 Waldele v. N. Y. Central, etc., E. Co., 95 N. Y., 374. 
 
 and fatally injured. No one saw the accident, but the theory of 
 the plaintiff is that as he approached the railroad tracks, a freight 
 train came from the east, and he waited for that to pass, and 
 then started to cross the track and was struck by an engine back- 
 ing in the same direction at a distance of about fifty feet in the 
 rear of the train. The manner of the accident, and whether it 
 was caused solely by the negligence of the defendant, without 
 any contributory negligence on the part of the intestate, were 
 matters of controversy at the trial. The evidence to support 
 the theory of the plaintiff was all circumstantial, except declara- 
 tions of the intestate which were read in evidence. ' 
 
 Shortly after the passage of the train and the engine, the 
 groans of the intestate were heard, and he was found lying upon 
 the southerly or outer track of the railroad, about fifteen feet 
 from the sidewalk, badly bruised and mangled. He was soon re- 
 moved to the sidewalk, and afterward to the hospital, where he 
 died in about three hours. After he was removed to the sidewalk, 
 his brother, also a deaf-mute, was sent for ; and about thirty 
 minutes after the accident, he there obtained from him by signs, 
 the declarations the reception of which in evidence are com- 
 plained of as error. He was produced by plaintiff as a witness 
 and was asked : " What did he tell you ? " To this defendant's 
 counsel objected, on the grounds (1) " that the declarations of 
 the deceased are incompetent ; (2) that they are no part of the 
 res gestae ; (3) that whatever the conversation may have been, it 
 took place at a time considerably subsequent to the time of the in- 
 jury, at a place other than where the injury occurred ; (4) that the 
 evidence is inadmissible for any purpose." The Court overruled 
 the objections and the defendant's counsel excepted. The counsel 
 further objected to the reception of the evidence, "upon the ground 
 that the declarations of the deceased are not competent for the pur- 
 pose of establishing either negligence on the part of the defendant,, 
 or absence of negligence on the part of the deceased." The court 
 overruled the objection, and defendant's counsel again excepted.. 
 The witness then answered : " John said he got hit. John said 
 there was a long train, that he stood waiting for it to go, and an 
 engine followed and struck him." The counsel in objecting to 
 this evidence, and the court in ruling upon the objection must 
 
YII. S(»ne general prmoiples. (4) Res Gestae. 559 
 
 "Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 374. 
 
 liave known what evidence was sought to be elicited by the 
 question, as the case had before been tried, and the same evi- 
 dence had been given (19 Hun, 69). It is not disputed that this 
 evidence was quite material, and we cannot say that it was not 
 very damaging to the defendant upon a vital issue. Was it com- 
 petent I We think not. 
 
 The claim tliat the declarations can be treated as part of the 
 res gesta is not supported by authority in this state. The res 
 gesta, speaking generally, was the accident. These declarations 
 were no part of that — were not made at the same time, or so 
 nearly contemporaneous with it as to characterize it, or throw 
 any light npon it. They are purely narrative, giving an account 
 of a transaction not partly past, but wholly past and completed. 
 They depend for their truth wholly upon the accuracy and relia- 
 bility of the deceased, and the veracity of the witness who testi- 
 fied to them. Nothing was then transpiring or evident to any 
 witness which could confirm the declarations or by which, upon 
 cross-examination of the witnesses testifying, or by the examina- 
 tion of other witnesses, the truth of the declarations could be 
 tested. 
 
 It is not easy always to determine when declarations may be 
 received as part of a res gesta, and the cases upon this subject in 
 this country and in England are not always in harmony. The 
 case of Commonwealth v. McPike (3 Gushing, 181), and Insur- 
 ance Company v. Moseley (8 Wall., 397), are extreme cases upon 
 one side, and would justify the reception of these declarations. 
 The case of Regina v. Bedingfield (11: Cox's Cr. Oases, 311), is 
 an extreme case upon the other side, and goes much further than 
 would be needed to justify the exclusion of these declarations. 
 That case was decided by Lord Chief Justice Cockburn, after 
 consulting with Field and Manisty, JJ., and aroused much dis- 
 cussion and criticism in England. (Bedingfield's Case, 14 Am. 
 Law Review, 817 ; 15 id., 71.) 
 
 The rule as to res gesta laid down in Commonwealth v. 
 McPike, has since been limited, and very properly apphed in 
 other cases in that state. In Lund v. Tyngsborough (9 Cush., 36), 
 in view of the frequent recurrence of questions in regard to the 
 admission of declarations claimed to be part of some res gesta, 
 
560 Abbott's Select Cases on Examining Witnesses. 
 
 Waldele v. N. Y. Central; etc., R. Co., 95 N. Y., 274. 
 
 the court undertook to set forth and illustrate with some particu- 
 larity the principles and tests by which such questions must be 
 determined and among other things said : 
 
 " When the act of a party may be given in evidence, his 
 declarations made at that time, and calculated to elucidate and 
 explain the character and quality of the act, and so connected 
 with it as to constitute one transaction and so as to derive credit 
 from the act itself, are admissible in evidence. The credit which 
 the act or fact gives to the accompanying declarations as a part 
 of the transaction, and the tendency of the contemporary decla- 
 rations as a part of the transaction to explain the particular fact 
 distinguish this class of delarations from mere hearsay ; " and 
 further : " Such a declaration derives credit and importance as 
 forming a part of the transaction itself, and is included in the 
 surrounding circumstances which may always be given in evi- 
 dence to the jury with the principal fact. 
 
 There must be a main or principal fact or transaction ; and 
 only such declarations are admissible as grow out of the principal 
 transaction, illustrate its character, are contemporary with it, 
 and derive some degree of credit from it." In Commonwealth 
 V. Haekett (2 Allen, 136), upon a trial for murder, a witness 
 testified that, at the moment the fatal stabs were given, he heard 
 the victim cry out : " I am stabbed," and he at once went to him 
 and readied him within twenty seconds after that, and then 
 heard him say : " I am stabbed — I am gone — Dan Haekett' has 
 stabbed me." This evidence was held competent as part of the 
 res gesta. Bigelow, Ch. J., speaking of this evidence, said : " If 
 it was a narrative statement wholly unconnected with any trans- 
 action or principal fact, it would be clearly inadmissible. But 
 such was not its character. It was uttered immediately after 
 the alleged homicidal act, in the hearing of a person who was 
 present when the mortal stroke was given, who heard the first 
 words uttered by the deceased, and who went to him after so 
 brief an interval of time that the declarations or exclamations of 
 the deceased may fairly be deemed a part of the same sentence 
 as that which followed instantly, after the stab with the knife 
 was inflicted. It was not, therefore, an abstract or narrative 
 statement of a past occurrence, depending for its force and effect 
 
VII. Some general principles. (4) Res Gestae. 561 
 
 Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. 
 
 ;solely on the credit of the deceased, unsupported by any prin- 
 •cipal fact, and receiving no credit or significance from the 
 accompanying circumstances. But it was an exclamation or state- 
 ment contemporary with the same transaction, forming a natural 
 and material part of it and competent as being original evidence 
 in the nature of res gestae." The learned judge also said that 
 the rule which renders res gesta competent has been often 
 loosely administered by courts of justice so as to admit evidence 
 of a dangerous and doubtful character ; and that the tendency 
 of recent decisions has been to restrict within the most narrow 
 limits this species of testimony ; and that that court was disposed 
 to apply the rule strictly, and to exclude everything which did 
 not clearly come within its just and proper limitations. 
 
 In these cases (the last two) I think the rule under considera- 
 tion was correctly laid down and applied, and properly defined 
 and limited. 
 
 In Eockwell v. Taylor (41 Conn., 55) the rule was laid down 
 thus : " To make declarations on this ground admissible, they 
 must not have been mere narratives of past occurrences, but 
 must have been made at the time of the act done, which they 
 are supposed to characterize, and have been well calculated to 
 unfold the nature and quality of the acts they were intended to 
 explain ; and to so harmonize with them as to constitute a single 
 transaclion." In Hanover Railroad Company v. Ooyle (55 Penn. 
 St., 396) the action was against a railroad company for injuring 
 the plaintifi^ by negligence ; and the trial court admitted declara- 
 tions of the engineer by whose negligence the plaintiff was 
 injured, made at the time of the injury, as part of the res gesta ; 
 and it was held that they were properly admitted. Agnbw, J., 
 writing the opinion and speaking of the declaration of the 
 engineer, said : " It was made at the time of the accident, in 
 view of goods strewn along the road by the breaking of the 
 boxes ; and seems to have grown directly out of and immedi- 
 ately after the happening of the fact. The negligence com- 
 plained of being that of the engineer himself, we cannot say that 
 his declarations, made upon the spot, at the time, and in view of 
 the effects of his conduct, are not evidence against the company 
 as a part of the very transaction itself." 
 
562 Abbott's Select Cases on Examining Witnesses. 
 Wcaldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. 
 
 Without further calling attention to cases outside of tliis state, 
 I will now refer to a few cases decided by this court in further 
 illustration of this rule. In Moore v. Meacham (10 N. Y., 207), 
 the plaintiff sought to show his own declarations while perform- 
 ing, or endeavoring to perform, his agreement for the purpore 
 of characterizing the agreement itself, and they were held in- 
 competent. Gray, J., writing the opinion, said : 
 
 " The general rule is that declarations, to become a part of the 
 res gestae, must accompany the act which they are supposed to 
 characterize and must so harmonize as to be obviously one trans- 
 action." In Luby v. H. R K. E. Co. (17 N. Y., 131), the action 
 was for alleged negligence in running a railroad car, drawn by 
 horses, against the plaintiff in one of the streets of the City of 
 New York. Upon the trial he was allowed to prove that, im- 
 mediately after the accident, a policeman arrested the driver of 
 the car,. and that, upon arresting him, as he was getting off the 
 car, and out of the crowd which surrounded him, he asked why 
 he did not stop the car ; to which the driver replied, that the 
 brake was out of order. This evidence was objected to on the part 
 of the defendant. The plaintiff recovered a judgment which 
 was affirmed by the Supreme Court at General Term. The 
 defendant then appealed to this court, ^nd the judgment was 
 reversed on two grounds— (1) because , proof of the arrest was 
 allowed ; (2) because the declaration of the driver was received. 
 Upon the latter ground, Comstock, J., writing the opinion, said : 
 " The declarations of an agent or servant do not, in general, bind 
 the principal. Where his acts will bind, his statements and 
 admissions respecting the subject-matter of those acts will also> 
 bind the principal if made at the same time, and so that they 
 constitute a part of the res gestae. To be admissible they must be 
 in the nature of original and not hearsay evidence. They must 
 constitute the fact to be proved, and must not be the mere 
 admission of some other fact. They must be made not only 
 during the continuande of the agency, but in regard to a trans- 
 action depending at the very time ;" and further : '• The declara- 
 tion was ro part of the driver's act, for which the defendants 
 were sued. It was not made at the time of the act, so as to give 
 it quality and character. The alleged wrong was complete, and 
 
YII. Some general 2:)rinGij)les. (4) Kes Gestae. 56& 
 
 Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 27-t. 
 
 the driver, when he made the statement, was only endeavoring- 
 to account for what he had done." In Hamilton ti. N. Y. C. E. 
 R. Co. (51 N. Y., 100), the plaintiff was ejected from the cars of 
 the defendant on his way from Utica to Albany, at St. Johns- 
 ville, by the conductor, because he did, not then have a ticket, 
 and was unwilling to pay his fare. He then paid his fare under 
 protest, and re-entered the car, and went to Albany. Shortly 
 after reaching Albany he went to the conductor, and, with tlie 
 assistance of the person who had acted as conductor west of 
 Utica, satisfied him that he paid his fare, whereupon tlie con- 
 ductor refunded the fare to him ; and he was allowed to prove, 
 against the objection of the defendant, a conversation then had 
 between him and the conductor, in which the latter applied to him 
 very slanderous and abusive epithets as a part of the res gesta. 
 The Commission of Appeals held that that evidence was errone- 
 ously received, and reversed the judgment and granted a new 
 trial, holding that that conversation, although it took place at the 
 time the conductor refunded the fare, was not a part of the res 
 gesta, in a suit to recover damages for being ejected from the 
 cars at St. Johnsville. In Whitaker v. Eighth Ave. K. E. Co. 
 (51 N. Y., 295), the action was brought to recover damages for 
 an injury caused by the willful act of one of the defendant's car 
 drivers in running one of its cars against the plaintiff, and throw- 
 ing him into an excavation by the side of the track ; and the 
 plaintiff, in order to sustain his allegation of the driver's intention 
 to do him an injury, was permitted to prove by a witness that 
 immediately after the car passed he heard the driver cursing and 
 damning the plaintiff, saying : " Let him fall in and be killed." 
 The trial judge held that the declaration was a part of the res 
 gesta and, therefore, admissible. The evidence was objected to on 
 the part of the defendant, and the Commission of Appeals decided 
 that it was error to receive it ; and for that and other reasons 
 reversed the judgment and granted a new trial, holding that the 
 declaration made by the driver after the car had passed and the 
 injury was done, was no part of the res gesta. In People v. 
 Davis (56 N. Y., 95), upon an indictment under the statute 
 against abortions, the woman upon whose person the abortion 
 was attempted being dead, the district attorney was permitted to 
 
564 Abbott's Select Cases on Examining Wi'inesses. 
 
 Wiildele V. N. Y. Central, etc., E., Co., 95 N. Y., 374. 
 
 prove that she went away with the defendant in a buggy, and 
 returned in the night, and what, on a return, she said to a witness 
 had been done and said to her by the doctor who performed the 
 operation upon the alleged procurement of the defendant. This 
 evidence was objected to on the part of the defendant and the 
 General Term reversed the judgment of conviction by the Oyer 
 and Terminer. The ease was then brought into this court by 
 writ of error on behaK of the people ; and the decision at the 
 (reneral Term was affirmed, this court holding that ihe declara- 
 tions proved were simply a narrative of a past transaction, and 
 not competent as a part of the res gesta. Geovee, J., writing 
 the opinion of the court, said : " In this case the thing done, or 
 res gestae, was at the doctor's office in another town, and it is 
 clear that its narration by the deceased was no part of that thing, 
 Any thing said accompanying the performance of an act explana- 
 tory thereof, or showing its purpose or intention, when material, 
 is competent as a part of the act. Eut when the declarations 
 offered are merely narratives of past occurrences they are incom- 
 petent. That is precisely this case. The declarations given in 
 evidence were a mere statement of what had been done at the 
 doctor's office, and not any part of what was then done, and, 
 therefore, no part of the res gestae ; " and speaking of the case of 
 the Ins. Co. v. Mosley, siojpra, he said that the doctrine as to what 
 may be regarded as a part of the res gestae was certainly carried 
 to its utmost limit in that case by the majority of the court. 
 And he further very appropriately said : " The length of time 
 between the act and its subsequent narration by one of the actors 
 I do not regard as material. The question is, did the proposed 
 declaration accompany the act, or was it so connected therewith 
 as to constitute a part of it ? If so, it is a part of the res gestae 
 and competent ; otherwise, not." 
 
 In Tilson v. Terwilliger (56 N. Y., 273) Folger, J., lays down 
 the rule as to the res gesta declarations as follows : " to be a part 
 -of tlie res gesta' they must be made at the time of the act done, 
 wliich they are supposed to characterize ; they must be calcu- 
 lated to unfold the nature and quality of the acts which they are 
 intended to explain ; they must so harmonize with those facte as 
 to form one transaction. There must be a transaction of which 
 
YII. Some general jn'lncij)lts. (4) Res Gestae. 565- 
 
 Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. 
 
 they are considered a part ; they must be concomitant with the 
 principal act, and so connected with it as to be regarded as- 
 the result and consequence of co-existing motives." In Casey 
 V. K Y. C. & H. E. E. E. Co. (78 JS. Y., 518) it ^yas held,, 
 as stated in the head note, that " the testimony of a witness 
 as to what occurred after the accident was competent as part of 
 the res gestsB ; " but it was so held for the reason that the occur- 
 rences there referred to constituted a part of the transaction. A 
 child had been run over, and on the trial a police officer, who went 
 to the place of the accident immediately after the child was 
 killed, and found the child under the wheels of the car, was per- 
 mitted as a witness for the plaintiff to state what the engineer in 
 charge of the engine said and did in extricating the body of the 
 child from under the wheels of the car. The evidence was 
 clearly competent as a part of the res gesta. 
 
 The counsel for the plaintiff, in his argument before us to- 
 justify this evidence, cited but two cases from the reports of this 
 State ; Swift i'. Mass. Mut. Life Ins. Co. (63 N. Y., 186), and 
 Schnicker v. People (88 N. Y., 193). In the first case it was 
 held that in an action upon a policy of life insurance, issued 
 upon the life of one person for the benefit of another, evidence 
 of declarations made to third parties by the insured at a time 
 prior to, and not remote from, that of his examination and in 
 connection with facts, or acts, exhibiting his then state of health 
 (for instance, declarations made by him when apparently ill, as- 
 to the nature or cause of his illness) is competent upon the- 
 question as to the truthfulness of statements made by him to the 
 examining physician, as to his knowledge that he had, or had 
 not had, a certain disease, or symptoms of it. It is difficult to- 
 perceive how any thing decided in that case, or stated in the 
 opinion of the court, can have any material bearing upon this.. 
 In the secona case, Schnicker was indicted for the offense of 
 taking a woman, unlawfully against her will, with the intent to 
 compel her by force, menace, or duress to be* defiled. The- 
 evidence tended to show that the prosecutrix went to a house of 
 prostitution kept by the prisoner, not knowing the character of 
 the house, for tlie purpose of obtaining employment as a 
 domestic ; that the prisoner detained her there by exciting her- 
 
■5GG Abbott's Select Cases on Examining Witnesses. 
 
 Walclele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. 
 
 fears tliat if she left slie would be arrested, and by keeping the 
 ■outer door locked ; that the prisoner plied her daily with 
 solicitations to consent to the defilement of her person, but she 
 refused ; that finally the prisoner told her to go up stairs with a 
 man, and upon her refusal, opened the door of the room where 
 she was and shoved her into the hall, whereupon she went up- 
 stairs to her room, and in a half hour after a man called the 
 " boss " came to her room with another man and left him there, 
 and this man by force defiled her ; and it was held that the evi- 
 dence as to what occurred in the room of the prosecutrix was 
 properly received ; that the occurrence was part of the res gesta 
 and might reasonably be inferred to have been in pursuance of 
 the scheme of the prisoner to subject the prosecutrix to defile- 
 ment. Judge Andrews, writing the opinion of the court said : 
 ^' We think the evidence was competent. It was so closely con- 
 nected in point of time with the direction of the prisoner, that 
 the prosecutrix should go to her room with a man, as to consti- 
 tute a part of the res gesta, and what followed, might reasonably 
 be inferred to have been in pursuance of the scheme of the pris- 
 oner to subject the prosecutrix to defilement. " That case fur- 
 nishes no support for the claim of the plaintiff, that the declara- 
 tions in this case were properly received. 
 
 I have now called attention to the principal authorities in this 
 State, upon the doctrine of res gesta evidence, and I have ex- 
 amined all the other cases which have been reported in this 
 State relating to the doctrine, and I confidently assert that there 
 is no authority in this State for holding that this evidence was 
 competent. Here the res gesta, strictly and accurately speak- 
 ing, was not the fact that the intestate was injured, nor the fact 
 that he was injured by coming in collision with the engine. 
 These facts were apparent and undisputed. But the point of in- 
 quiry was, how he came to be hit by the engine, with the view of 
 ascertaining whether the accident was solely due to the negligence 
 of the defendan^t, or partly, or wholly due to the negligence of 
 the intestate. The manner of the accident was, therefore, the 
 res gesta to be inquired into ; and these declarations made after 
 the accident had happened, after the train had passed from 
 sight, and the whole transaction had terminated were no part of 
 
YII. Some general pr'mciph's. (-t) Res Gestae. 567 
 
 Waldele v. N. Y. Central, etc.. R. Co., 95 N. Y.. 274. 
 
 that res gesta, had no connection with it, and were purely narra- 
 tive. It lias been well said, that res gesta must be a res gesta 
 that has something to do with the case, and then the declaration 
 must have something to do witli the res gesta. It cannot be 
 said that these declarations were in such manner connected with 
 the res gesta as to constitute one transaction so that they and the 
 res gesta were parts of the same transaction. They were not 
 made under such circumstances that they are in any way con- 
 firmed by the res gesta, and they had no relation to what was 
 then present, or had just gone by. Suppose the intestate had 
 been found at that point with a mortal wound freshly inflicted 
 by some person ; and he had charged that an individiial, naming 
 him, had thirty minutes before caused the wound ; would that 
 declaration have been competent upon the trial of the person 
 thus charged with the murder ? Clearly not, within the princi- 
 ples laid down in the cases which I have cited. Suppose in this 
 case the person had been found there with a wound upon his 
 head ; and he had stated that tlie engineer upon one of these en- 
 gines had struck him, as the engine passed, and the engineer had 
 been upon trial for the offense ; would the declaration have been 
 competent ? It makes no difference that the intestate had died, 
 and could not therefore be called as a witness. If these declara- 
 tions were competent, they would have been no less competent 
 if he had survived and brought the action himself, and had been 
 a witness upon the trial. Suppose the engineer upon the engine 
 which struck the defendant had, at the precise time Avhen these 
 declarations were made, also made declarations either favorable 
 or unfavorable to the defendant, could they have been given in 
 evidence as a part of the res gesta ? In view of the authorities 
 which I have cited, that will not ba claimed, and yet if these 
 declarations were competent, those made at the same time by the 
 engineer would have been competent ; and this illustrates, too, 
 how important it is that a correct rule upon this subject should 
 be laid down in this case. 
 
 This evidence cannot be received upon the theory that there 
 is a very strong probability that the declarations made by the in- 
 testate were true. The probability would have been equally 
 strono- if they had been made several hours later when he was 
 
568 Abbott's Selkct Cases on Examining Witnesses. 
 
 Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 374. 
 
 removed to the hospital. Tlie probability is that as he neared 
 his death, he would have told the truth, if he said anything about 
 it. The same may be said of many statements not under oath. 
 They are frequently made under such circumstances as entitle 
 them to very great, and frequently to implicit confidence ; and 
 yet they do not answer the requirements of the law— that a party 
 prosecuted shall be confronted with the witnesses, shall have an 
 opportunity of cross-examination, and that the evidence against 
 him shall be given under the test and sanction of a solemn oath. 
 Declarations which are received as part of the res gesta are to 
 some extent a departure from or an exception to the general 
 rule ; and when they are so far separated from tlie act which 
 they are alleged to characterize that they are not part of that 
 fact or interwoven into it by the surrounding circumstances 
 so as to receive credit from it and from the surrounding circum- 
 stances, they are no better than any other unsworn statements- 
 made under any other circumstance. They then depend entirely 
 upon the credit of the persons who testify to them, and hence are 
 of no more value as evidence in a legal proceeding than the un- 
 sworn declarations of a person under any other circumstances. 
 
 Even dying declarations are not received in civil actions unless 
 part of the res gesta. Such declarations made in the immediate 
 presence of death, under the most solemn circumstances, when 
 all motive to pervert the truth may be supposed to have ceased 
 to operate, are received only in trials for homicide of the declar- 
 ant in cases where the death of the deceased is the subject of the 
 charge, and the circumstances of the death are the subject of 
 the dying declarations. It is said that the reasons for thus re- 
 stricting the rule may be that credit is not in all cases due to the 
 declarations of a dying person, for his body may survive the 
 powers of his mind ; or his recollection, if his senses are not im- 
 paired, may not be perfect ; or for the sake of ease, and to be 
 rid of the importunity and annoyance of those around him may 
 say, or seem to say, whatever they may choose to suggest. The 
 rule admitting dying declarations as thus restricted stands only 
 upon the ground of the public necessity of preserving the lives 
 of the commimity by bringing man-slayers to justice (GreenL 
 on Ev., § 156). 
 
VII. Some general principles. (4) lies Gestae. 569 
 Waldele v. N. Y. Central, etc., R. Co., 95 N. Y., 274. 
 
 There is no middle ground for receiving declarations of this 
 character — that is, they must be received either as dying declara- 
 tions or as declarations forming part of the res gesta. 
 
 But it is said that although this evidence may have been in- 
 competent to show how the accident happened, it was competent 
 to explain the condition of the intestate at the time he made the 
 declarations. It is clear, however, that they were not received 
 for that purpose. There was no dispute about his condition. It 
 was not questioned that he was badly mangled and bruised, and 
 that his injuries were received upon the defendant's railroad by 
 contact with one of its engines ; and so far as the declarations 
 tended to show that he was simply hit by an engine, and received 
 his injuries in that way, they were wholly unnecessary and im- 
 material. The sole point of the evidence was to show that he 
 approached the track, waited for a long train to pass, and then in 
 attempting to cross the track, was struck by an engine backing 
 in the same direction, thus making a question 'for the jury as to 
 the contributory negligence on his part. For that purpose the 
 evidence was incompetent, and that was the sole purpose, mani- 
 festly, for which it was offered or received. Suppose the intestate 
 had been found there with a mortal stab inflicted half an hour 
 before, and he had said, " I am stabbed, John Doe did it ! " and 
 the evidence had been objected to and received, would it have 
 been an answer to say that it was competent to show his then 
 present condition, and that the whole evidence should not, 
 therefore, have been excluded ? The stab would have been ap- 
 parent, and the declarations wholly immaterial and unnecessary to 
 show it, and the sole purpose and effect of the evidence would 
 have been to show who the murderer was. So here the evidence 
 was given for the sole purpose of showing what took place at 
 the time the intestate was injured, and not for the purpose of 
 characterizing his condition at the time he spoke. 
 
 "We are, therefore, of opinion that an important rule of evidence 
 was violated in receiving these declarations, and that upon that, 
 ground the judgment should be reversed and a new trial granted. 
 
 All the judges concurred, except Eapallo, J., not voting, and 
 Danfoeth, J., not sitting. 
 
 Judgment reversed. 
 
5Y0 Abbott's Select Oases on Examining Witnesses. 
 Davidson v. Cornell, 133 N. Y., 338. 
 
 DAVIDSON V. CORNELL. 
 
 New York Court of Appeals, 1892. 
 [Reported in 183 N. Y., 338.] 
 
 In an action for personal injuries, declarations of the plaintiff as to his 
 injui'ies, to be proved at the trial must have related to present and not 
 past pain and suffering. 
 
 In an action for personal injuries, declarations of plaintiff to his physician 
 consisting not of exclamations of present pain and suffering, but of 
 statements of the effect upon him of the injury and the consequences 
 which had followed from the time it occurred, a period of nearly fifteen 
 months, — Held, hearsay, the admission of which was error. 
 
 Such evidence is not made competent by being corroborated by plaintiff's 
 own testimony at the trial. 
 
 Statements expressive of present condition are allowed in evidence only 
 when made to a physician for the purpose of treatment by him. 
 
 It seems that non-expert testimony as to involuntary exclamations of 
 present pain is cempetent. 
 
 Plaintiff sued for damages sustained while in defendants' em- 
 ploy, aiding them in building an elevated railroad. The structure 
 gave way and fell to the ground while plaintiff was working • 
 upon it, thus casting plaintiff to the street below and severely 
 injuring him. 
 
 At the trial Dr. Corey, a medical witness for plaintiff, testified 
 that he examined plaintiff more than a year after the injury and 
 formed an opinion that plaintiff's spinal cord was injured. The 
 symptoms were want of sensation in the lower extremities, 
 tenderness over part of the spine and loss of sexual power ; add- 
 ing : " of course, my opinion in that respect must rest upon his 
 declarations." .... [which the witness proceeded to repeat.] 
 
 The court denied a motion to strike out the evidence, but 
 said that it would be stricken out unless plaintiff himself testified 
 to the fact. 
 
 Plaintiff afterward testified to the existence of the facts indi- 
 cated by the medical witness. 
 
 Plaintiff had a verdict for $2,500. 
 
 The City Court of Brooklyn at General Term aflnrmed the 
 judgment, holding, that this was a proper dispositon of the 
 
VII. Some general frinciples. (4) Res Gestae. 5Y1 
 
 Davidson v. Cornell, 133 N. Y., 338. 
 
 ■objection, and preserved all defendants' right ; these statements 
 •of plaintiff were incidental to the medical examination, and 
 .contributed to its completness and efficiency. 
 
 Although similar statements made by a layman have, here- 
 tofore, been held inadmissible on the ground in part, that they 
 -were hearsay, and in part, that it afforded an opportunity to 
 unduly exaggerate the injuries complained of, these objections, 
 however, were removed by the plaintiff's testimony that the 
 statements made by him to Dr. Corey were true. 
 
 The Court of Appeals reversed the judgment. 
 
 Beadley, J. [after passing upon other questions] : As a 
 ■general rule, declarations made out of court by a party are not 
 admissible as evidence in his behalf. But his statements to his 
 attending physician of the nature of the symptoms of his malady 
 or suffering have quite uniformly been held admissible, and from 
 necessity they were formerly deemed competent when made to 
 persons other than medical attendants under some circumstances. 
 (Caldwell v. Murphy, 11 N. Y., 416 ; Werely v. Persons, 28 id., 
 344 ; Matteson v. K Y. C. E. E. Co., 35 id., 491.) But since 
 the Code permits parties to make their statements under oath as 
 witnesses, that necessity in this state has ceased to exist, and, as a 
 rule, declarations made to persons other than the medical attend- 
 ant of the party, are not admissible as evidence. (Eeed w. N. Y. 
 C. E. E. Co., 45 N. Y., 5T4 ; Eoche v. Brooklyn City, etc., E. 
 E. Co., 105 id., 294.) 
 
 It was, however, held in Hagenlocher v. C. I. & B. E. E. Co. 
 (99 Is.Y., 136), that the evidence of a non-medical witness, that the 
 plaintiff (who had received an injury) manifested pain by scream- 
 ing, was held competent, because it was apparently involuntary 
 and corroborated by what appeared to be her condition. The rule 
 of admissibility .of statements made to physicians by persons who 
 have been physically injured, or are suffering from disease, is not 
 an unqualified one. They must relate to present and not past 
 pain and suffering. (Towle v. Blake, 48 N. H., 92.) And it 
 has been held that their declarations, after controversy had 
 arisen, made at a medical examination then had for the purpose 
 of preparing evidence, and not for medical treatment, were in- 
 
572 Abbott's Select Cases on Examining Witnesses- 
 
 Davidson v. Cornell, 133 N. Y., 328. 
 
 competent. (Grand Eapids & Ind. E.E. Co. v. Huntley, 38 Mich.,. 
 537; Jones v. Prest., etc., of Portland, 50 IST. W. K, 731.) In 
 Matteson v. JS". Y. C. K. R. Co. (35 JST. Y., 487), it was held that 
 expressions of pain and suffering made by the injured person to 
 physicians when they were examining him were competent evi- 
 dence, notwithstanding the examination was made by them with 
 a view to testifying as to the result of it in a suit then pending. 
 The same was said in Kent v. Town of Lincoln (32 Vt, 591). It 
 may be seen that when attended by a physician for the purpose 
 of treatment there is a strong inducement for the patient tO' 
 speak truly of his pains and sufferings, while it may be otherwise 
 when medically examined for the purpose of creating evidence 
 in his own behalf. It is, therefore, that the weigh.! of judicial 
 authority is to the effect that the statements expressive of their 
 present condition are permitted to be given as evidence only 
 when made to a physician for the purposes of treatment by him. 
 (Barber v. Merriam, 11 Allen, 322 ; Fay v. Harlan, 128 Mass., 
 244 ; Eoche v. Brooklyn City, etc., E. E. Co., 10& K. Y., 294.) 
 In the present case the declarations in question of the plaintiff 
 were not instinctive, nor were they made to the physician with a 
 view to medical treatment. They consisted not of exclamation of 
 present pain or suffering, but were the plaintiff's, statements, so- 
 far as called for by the doctor, of the effect upon, him of the injury 
 and the consequences which had followed in such respects from 
 the time it occurred, a period of nearly fifteen months. This was 
 hearsay, and is very different from that of a medical witness, as 
 the expressions by a patient or person suffering from injury or 
 disease, indicating pain or distress, or expressive of the present 
 state of his feelings in that respect. We think the reception of 
 the evidence was error. And although the plaintiff testified to 
 the truth of the statements made to the doctor, his evidence did 
 not cure the error. The character of his injury was an import- 
 ant fact as bearing upon the question of damages. And although 
 his evidence may have constituted the basis in part at least of a 
 hypothetical question for the opinion of the doctor, it cannot be 
 said that evidence given by the latter of the plaintiff's declarations 
 were not prejudicial to the defendants. The plaintiff's interest 
 as a party presented the question of his credibility for the jury„ 
 
VII. Same general principles. (4) Res Gestae. 573 
 
 Davidson v. Cornell, 133 N. Y., 238. 
 
 and bis evidence could not properly be corroborated by proving 
 that tbe facts to which he testified corresponded with the decla- 
 rations made by him to the doctor. This, for the support to the 
 plaintifE's evidence, was not admissible. (Robb v. Hackley, 23 
 Wend., 50 ; Eeed v. N. Y. C. E. R. Co., 45 N. Y., 574.) 
 
 The other exceptions taken require no consideration, as they 
 may not necessarily arise upon another trial. 
 
 The judgment should be reversed and a new trial granted, 
 with costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
574 Abbott's Select Cases on Examining "Witnesses. 
 People V. Smith, 104 N. Y., 491. 
 
 PEOPLE V. SMITH. 
 JVew York Court o/ Appeals, 1887. 
 [Reported in 104 N. Y., 491.] 
 
 Whether declarations were made under such a sense of impending death, 
 as to render them competent as dying declarations, is a preliminary 
 question for the trial judg-e. 
 
 How far the trial judge shall go in hearing the evidence of such declara- 
 tions, in order to ascertain the mental condition of the declarant, is a 
 question of judicial discretion. 
 
 It is not error to allow this evidence to be taken in the hearing of the jury 
 if they are afterward instructed as to what is actually received as 
 competent for them to consider. 
 
 Indictment for murder : 
 
 The facts as stated by Andrews, J., were as follows : The 
 defendant was jointly indicted with one Alexander Sweeney, in 
 the Court of General Sessions, in the city of New York, for the 
 murder of John Hannon, by shooting with a pistol, April 7, 
 1885. He was separately tried, and was convicted of murder iii 
 the first des;ree. The transaction took place at about six o'clock 
 in the evening, at a shanty at the foot of Thirty-eighth street, in 
 the city of JSTew York, where the deceased was employed as a 
 watchman in the street-cleaning department. The deceased was 
 at the time sitting or lying on a bench in the shanty, and a man 
 named Tracy was in the room, 'sitting by and leaning upon a 
 table. Tracy saw Smith and Sweeney enter the door, and he 
 pretended to be asleep. He testifies that they had some conversa- 
 tion in a whisper, which was followed almost immediately by the 
 report of a pistol, and they then turned and left the place. 
 Tracy, seeing that Hannon was shot, followed the two men and 
 pointed them out to officers who arrested them. The shooting 
 was done on Tuesday evening. Hannon was taken the same 
 evening to Bellevue Hospital and died there the Saturday 
 following. It was found that the ball had penetrated the skull, 
 over the right eye, entering the brain. 
 
 There was no controversy on the trial that the shot proceeded 
 from a pistol in the hands of the defendant. The defence was. 
 
VII. Some general principles. (5) Preliminary Questions. 575 
 
 People V. Smith, 104 N Y., 491. 
 
 that the shooting was unintentional and accidental. Tlie 
 testimony of the defendant, who was sworn as a witness in his 
 own behalf, tended to support this explanation. The theory of 
 the prosecution was that it was a deliberate and premeditated 
 murder, committed by Smith and Sweeney, acting in concert, 
 from enmity, each having a grudge against the deceased. The 
 prosecution, in support of this theory, proved that Smith and 
 Sweeney had known each other from boyhood and were intimate 
 friends, and they were also acquaintances of the deceased. For 
 the purpose of showing the hostility of Sweeney to the deceased, 
 the prosecution was permitted, against the objection of the 
 defendant's counsel, to show that a fight had occurred between 
 them on the day before the homicide. It was also shown by the 
 evidence of the mother and sister of the deceased, that about two 
 years prior to the homicide an altercation took place between 
 the defendant and the deceased, during which the former drew 
 a pistol, and that on that occasion the defendant threatened to 
 kill Hannon " if it is twenty years to come." The people 
 further, to support the indictment, offered evidence of declara- 
 tions made by the deceased to his mother at the hospital on 
 Wednesday morning, the day after the shooting, and also to his 
 sister on Thursday morning. 
 
 The principal and serious allegations of error relate to this 
 evidence, first, as to whether the declarant made the declarations 
 under a sense of impending death, within the rules governing 
 the admission of dying declarations, and, second, whether the 
 court committed a legal error in permitting declarations of the 
 deceased to be proven in the first instance, not relating to the 
 immediate circumstances of the death, and which the court 
 subsequently ordered to be stricken out. In respect to the first 
 question, viz., whether the deceased at the time of making the 
 declarations was in such condition of body and mind, and had 
 such a sense of impending dissolution as to make his declarations 
 admissible, we entertain no doubt. As the sequel proved, he had 
 received a mortal wound. His conversation with his mother 
 indicated that he considered his condition hopeless. He said : 
 " Tes, mother, I am shot ; mother will you take me home ? the 
 Bellevue people are good ; they are good enough, but they can 
 
576 Abbott's Select Casks on Examining Witnesses. 
 
 People V. Smith, 104 N. Y., 491. 
 
 do nothing for me." The mother said : " Johnny, the doctor 
 don't say so, the doctor says you will get well." He said: 
 " Mother, lift me up, kiss me, kiss me, because I am going to 
 die ; the bullet that Pete Smith put in my head, it is in it, and 
 it will fetch me and leave you without your only son." There 
 was other conversation not necessary to repeat. SuflBce it to 
 say that all his statements as to his condition, indicate that 
 both on Wednesday and Thursday mornings he had a settled 
 conviction that he was fatally wounded and that death was 
 imminent. 
 
 It would not be proiitable to go over the cases as to the pre- 
 liminary proof necessary to entitle dying declarations to be given 
 in evidence. Each case differs in its circumstances, and the cases 
 are not all reconcilable, the rule admitting dying declarations 
 is anomalous, and courts are strict in requiring that, before 
 admitting them, it shall be made clearly to appear that the 
 declarant was, in fact, resting under the shadow of death from 
 the fatal stroke, and so believed, entertaining no hope of 
 recovery. The circumstances proved in this case bring it within 
 the rule, according to the best considered authorities. (Reg. v. 
 Howell, 26 Law J. [M. C] 43 ; Reg. v. Jenkins, 11 Cox. Cr. C. 
 250 ; Reg. v. Peel, 2 Post. & P. 21 ; 3 Russ. on Cr. [4th Eng. 
 ed.] 250 et seq.; 1 Greenl. Ev. chap. 9.) 
 
 The more serious question arises in respect to the alleged 
 error of the court in admitting declarations made by the deceased 
 in relation to matters not the proper subject of proof by dying 
 declarations. The course of the trial upon this point, as disclosed 
 by the record, was this : The mother of the deceased, on being 
 called and sworn as a witness for the people, was asked by the 
 prosecuting attorney to state the conversation she had with the 
 deceased at the hospital on Wednesday morning. The defend- 
 ant's counsel interposed an objection that it was not " in the 
 nature of an ante moftem, and was inadmissible." The court 
 repKed, " I cannot determine whether it is or not until I hear 
 it." On the defendant's counsel repeating the objection, the 
 court stated, " Mr. Palmer, rather than you should interrupt at 
 every question put to the witness,' ' you may consider an objection 
 an exception to every question put to the witness. The witness was 
 
YII. Some general prinoijples. (5) Preliminary Questions. 57Y 
 
 People V. Smith, 104 N. Y., 491. 
 
 again asked to state the conversation, when the defendant's counsel 
 asked the court if it had decided to admit declarations of Han- 
 non when not in fear of imminent death, and the court replied 
 that it had not, adding, " How do I know as yet but that they 
 were made in anticipation of immediate death ? " The defend- 
 ant's counsel then asked to be permitted to cross-examine the 
 witness on that point, but the court denied his request, saying 
 that when the district attorney got the statement of the witness, 
 the defendant's counsel could then cross-examine, and the court 
 would decide whether it came within the rule, and to this ruling 
 an exception was taken. The district attorney then proved by 
 the mother, the declarations of the son heretofore stated, and 
 said. " Wow 1 think we have laid the foundation for declarations." 
 The court then took up the examination of the witness, and she 
 proceeded, in answer to the question of the court and the 
 district attorney, to give testimony occupying four printed pages 
 of the case, narrating the whole conversation with her son. 
 Much of the evidence was elicited by answers to specific questions 
 as to declarations having no relation to the res gestae of the 
 homicide. After an examination of the witness, covering 
 -twenty printed pages, embracing many subjects other than the 
 interview at the h-ospital, the court directed the stenograper to 
 read to the jury from his stenographic notes a part of the evi- 
 dence of the witness pointed out by the court, of the conversa- 
 tion with her son, which embraced the evidence which has been 
 detailed, showing Hannon's expectation of death, and also his 
 declarations as to the circumstances of the murder, and directed 
 that the further evidence of the vntness of what transpired at 
 the interview, should be stricken out and disregarded by the 
 jury. The portion of the evidence directed to be read to the 
 jury is enclosed in black lines in the error book, and occupies 
 about a printed page of the testimony. Following the testimony 
 admitted, is the testimony stricken out, which occupies three 
 printed pages. 
 
 In the testimony thus stricken out were statements made by 
 the deceased in regard to the cause of the altercation and the 
 account of all his ensuing conversations with his mother, relat- 
 ing to the controversy. 
 
578 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Smith, 104 N. Y., 491. 
 
 The Court of General Sessions convicted defendant of the 
 crime of murder in tlie first degree. 
 
 The Supreme Court at General Term aflSrmed the judgment.. 
 No express ruling on this point. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andeews, J., was of the opinion that it was eri'or to receive 
 evidence of declarations other than those which may go to the 
 jury as dying declarations, and that the error was not cured by 
 striking them out and directing the jury to disregard them. 
 
 But the majority of the court held otherwise. Finch, J., said : 
 "We all agree in this case that no error was committed upon the 
 trial, unless as to the single point which, in the opinion of 
 Andrews, J., is deemed suflScient ground for ordering a new 
 trial. That opinion states fully and accurately the facts dis- 
 closed by the proofs, and shows that the killing was admitted, 
 and the only issue that remained was whether the fatal shot was, 
 accidental or intentional. It further holds that when the admis- 
 sibility of the dying declarations of Hannon was brought in 
 question, it became the duty of the court to determine, as a pre- 
 liminary issue, whether the alleged declarations were made by 
 the deceased under a conviction of approaching and imminent 
 death, and that such necessary preliminary examination might,, 
 in the discretion of the court, be conducted in the presence of 
 the jury. When the dying declarations of Hannon were offered 
 by the prosecution, the defence objected upon the ground that 
 they were not such. The trial judge answered, in substance, 
 that he could not determine that question until he knew whether 
 or not they were made in anticipation of approaching death. 
 The defence then claimed a right to cross-examine " upon that 
 point." The judge answered, " not just yet," and finally said, 
 before the preliminary examination began, " when the district 
 attorney gets the statements of the witness you may cross-examine 
 and I will then determine whether it comes within the rule." At 
 this stage of the case there seems to have been no room for a 
 misunderstanding as to what was at the moment before the court. 
 It was an issue of law to be determined by the court upon facts- 
 addressed to it and with which the jury had nothing whatever to- 
 
Yll. Some general jyrincsples. (5) Preliminary Questions. 57& 
 
 People V. Smith, 104 N. Y., 491. 
 
 do. The defence so understood it, for they sought to enter at 
 once upon a cross-examination of the witness on that point. 
 Everybody understood that the admission of any declarations of 
 Hannon was stayed and barred, until upon the examination by 
 the prosecution and the cross-examination by the defence, the 
 issue of admissibility should be tried and determined by the 
 court. During the trial of that preliminary issue the jury stood 
 merely in the attitude of spectators. They had no concern with 
 it, and knew from the statements of the court that they had not. 
 They understood that out of its result something might come 
 before them as evidence, or nothing, and that until the judge 
 ruled, the facts developed were for his consideration and not for 
 theirs. The fact that their presence was not error shows that, in 
 the judgment of the law, a jury must be deemed capable of that 
 amount of discrimination at least. And thus the trial of the pre- 
 liminary issue before the court was entered upon with the com- 
 plete knowledge and understanding of all parties. The district 
 attorney proceeded at once to the precise point and proved the 
 statement of Hannon to his mother, that he was " going to die." 
 At the close of about one-half of a printed page, directed to the 
 issue before the court the prosecution said : "Now we think we 
 have laid the foundation for declarations." The judge seems 
 not to have been entirely satisfied. The mother had given to 
 her son the doctor's assurance that he would get well. It had 
 produced no apparent effect at the moment, but who could tell 
 that the rest of the conversation occurring thereafter should be 
 disclosed there might not appear a hope of recovery born of that 
 assurance, or a spirit of hatred and revenge inconsistent with the 
 solemn truth of statements in the presence of death? The 
 prosecution had obtained enough for its purpose, but the court 
 had a duty to its own conscience ; a duty not to be hasty or to be 
 misled, and to make sure that it fully and correctly understood 
 the frame of mind of the deceased. The learned judge, there- 
 fore, continued the examination, and at some point the district 
 attorney apparently aided in its progress, until the witness had 
 disclosed, not a selected part, but the whole of what deceased 
 said to her during the last two days of his life. Near its close 
 Hannon spoke of the influence of Sweeney with the police. The 
 
.580 Abbott's Select Oases on Examining Witnesses. 
 
 People V. Smith, 104 N. Y., 491. 
 
 prisoner' s counsel asked the court, " will you admit this ? " to 
 which the judge replied : " I have not admitted anything yet ; 
 I want to hear the whole statement made by the deceased before 
 I determine whether I will or will not allow the alleged dying 
 declaration in evidence." Nothing could be plainer or more 
 direct than this. All that had been said by the witness was 
 thus again declared to be purely tentative and preliminary, not 
 yet evidence in the case and wholly directed to the enlighten- 
 ment of the court in the performance of its duty. The state- 
 ment, thus interrupted, was thereupon finished in a single sen- 
 tence more of about half a dozen lines. So far, no evidence of 
 Hannon's declarations had been admitted at all. They had been 
 repeated for the information of the court to enable it to perform 
 the duty of ruling whether any, and if so, what portion of them 
 were competent evidence to be submitted to the jury. Until 
 some such ruling was made there could be nothing to which 
 the prisoner could except as constituting legal error. What 
 followed was in some respects out of regular order. The dis- 
 irict attorney, dropping the entire subject of the conversations 
 with the deceased, proceeded to examine her, not upon the 
 preliminary issue, but upon matters relating to the main issue 
 and belonging to the consideration of the jury. It would have 
 been more regular to have first finished the preliminary issue. 
 The prisoner's counsel, however, seems to have acquiesced. 
 He had been told that he could cross-examine upon the pre- 
 liminary issue when the prosecutor had finished. That time 
 had come, and he was at liberty, if he cared for the order 
 of the proceeding, to interpose and assert the right which the 
 court had promised to give him, and ask a decision of the 
 preliminary issue before the trial proper was resumed. He did 
 not do so. He chose to sit silent while the added proof, com- 
 petent upon the main issue, was being submitted to the jury. 
 When the district attorney closed his examination of the witness 
 the prisoner's counsel asked three not very important questions, 
 and then, turning to the court, said : " I move now to strike out 
 all the evidence given by the witness, in regard to the interview 
 with the deceased, upon the ground that it is" inadmissible, for 
 the reason that the necessary foundation has not been laid for 
 
VII. Some general principles. (5) Preliminary Questions. 581 
 
 People V. Smith, 104 N. Y., 491. 
 
 such declarations." This motion was singularly inapt, except for 
 one purpose. As no declarations had yet been received in evi- 
 dence, there were none to strike out, and the objection was to the 
 whole of them, when some were beyond doubt admissible. If 
 the purpose was to draw from the court an admission that they 
 had been received, or an assent to such a claim, that purpose 
 failed, for the court said in answer to the motion : "As I under- 
 stand the position of the matter now, it is this : Mr. O'Bryne 
 claims the right to cross-examine the witness, in reference to 
 lohat will he claimed hy the district attorney as evidence of dy- 
 ing declarations, for the purpose of ascertaining whether it is ad- 
 missible. Are you cross-examining on that point ? " The pris- 
 oner's counsel replied : " I am not ; I am in a general cross-exam- 
 ination." The answer suggested to the judge the possibility of 
 some confusion, for he at once said : " You may enter on the 
 record that the court will now permit the defendant's counsel to 
 cross-examine the witness before passing upon the question of 
 the admissibility of the alleged dying declarations made by the 
 deceased to the witness, as testified to by her." To this the 
 prisoner's counsel said : " We cannot be estopped by any such 
 record as that ; it is a monstrous proposition." "Why that should 
 have been said, after what had occurred, it is difficult to say. "We 
 do not mean to criticise the counsel, who bore the heavy respon- 
 sibility of his client's life, or misinterpret his zeal, but at least 
 we differ from him entirely. We see in the action of the trial 
 court, a steady purpose to keep the evidence of declarations out 
 of the case until, at a proper and suitable time, it should be de- 
 termined, what, if any, were admissible. The counter-eflEort 
 seemed to be to insist that the court stood in the position of 
 having admitted in evidence what it is clear was never admitted at 
 all. The cross-examination then proceeded. Before it closed it 
 reverted to the declarations of the deceased, which had been 
 repeated to the court. The witness was asked if she recollected 
 the interview clearly ; if she thought her son was dying, why she 
 did not send for a priest on Wednesday ; what was the subject 
 matter of deceased's conversation on Thursday, and what was the 
 whole conversation between them. As the witness began to re- 
 peat it the counsel suddenly closed his cross-examination. The 
 
582 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Smith, 104 N. Y., 491. 
 
 court then asked if it was finished, and receiving an affirmative 
 answer, proceeded to determine the preliminary issue and decide 
 what portion of the statement of the witness to the court should 
 he admitted, and directed the stenographer to read to the jury, 
 and he did read to them " so much and such parts thereof as are 
 embraced within black lines," and marked on the margin, " al- 
 lowed to stand as evidence of dying declarations," and ordered 
 the balance to be " stricken from the evidence," and in view of 
 what had occurred took the added pains to caution the jury to 
 disregard what they had heard repeated but what the court de- 
 cided it would not admit. Upon this state of facts I cannot 
 resist the conviction that the declarations of Hannon, now ob- 
 jected to, were never admitted in evidence, but wholly excluded ; 
 and that the case is not at all one in which erroneous proof was 
 first admitted and then sought to be stricken out, but one in 
 which no error of admission existed which required correction. 
 It seems sufficiently evident also that any doubt on the subject 
 and any confusion or mistake as to what was being done, was 
 steadily and persistently guarded against by the court, and the 
 admissibility of the proposed evidence determined as soon as it 
 could be done consistently with the right of cross-examination 
 reserved to the defense. 
 
 Since there could be no valid exception to the admission of evi- 
 dence which was never admitted, the only possible inquiry becomes 
 whether the action of the court in acquiring the needed infor- 
 mation on which to rule is itself the subject of our review. We do 
 not see how it can be. It rests in the judicial discretion. It 
 never goes to the jury except so far as admitted. Some means 
 of information the court must have. The suggestion made is 
 " that it should have confined the preliminary examination to 
 the facts relating to the declarant's condition of body and mind 
 at the time." That proposition, stated as a general guidance 
 of trial judges in exercising their discretion, need not be doubted ; 
 but the inquiry will remain in each case, under its own peculiar, 
 circumstances, how far the examination should extend in order 
 to ascertain with accuracy and reasonable certainty the mental 
 condition and belief of the declarant. The exercise of that dis- 
 cretion was reviewable by the General Term, but is beyond our 
 
YII. Some general principles. (5) Preliminary Questions. 583 
 
 People V. Smith, 104 N. Y., 491. 
 
 jurisdiction, unless we can see that such discretion was abused, 
 and the action of the court arbitrary and without reason. We 
 cannot say that. There was a motive which might fairly have 
 operated upon the judicial mind to push the inquiry beyond the 
 point at which the district attorney paused, and that motive was, 
 as we have already suggested, to ascertain whether the assurance 
 of survival, which the deceased had been told the doctors had 
 given, became at any time so operative upon him as to awaken 
 a hope of life. "With that circumstance before it, the court 
 might reasonably conclude that a part of what was said would 
 scarcely furnish as safe a basis of judgment as the whole. We 
 ■can readily see that the determination of the court to hear all 
 that the deceased said before deciding whether any of it was ad- 
 missible, should not be deemed arbitrary or an abuse of discre- 
 tion under the existing facts. Suppose that it had turned out, 
 as from what appeared seemed quite possible, that the very last 
 thing said by Hannon, relating not at all to the facts of the 
 shooting, had shown the presence of a lurking but confident 
 hope of recovery. Singularly enough, the prisoner's counsel 
 illustrates the force of what we are saying by claiming in his 
 able brief precisely such a result. He plants himself upon the 
 very last words of Hannon, which closed the conversation with 
 his mother, and which were about Sweeney and the police, and 
 argues that they show a hope of recovery. Hannon said, " I am 
 afraid, mother, you will get no satisfaction for your son." She 
 replied, " Johnnie, that can't be so." He answered, " I hope so, 
 mother, because I would like to go agin them fellows." The 
 counsel claims that the expression does bear somewhat upon 
 Hannon's frame of mind, and yet, without what preceded it, its 
 occasion and even its accurate meaning might be lost to us. It 
 does not appear to have been deemed sufficiently material by 
 the learned trial judge to have affected his judgment, but he 
 could not have known that in advance ; and it is easy to see that 
 it might have assumed a form which would have been very ma- 
 terial. The hope of survival, the lingering belief that death is 
 not inevitable, may disclose itself to an observant mind where 
 even the witness does not see it, and may come to the surface 
 when the talk is far away from the facts of the killing, and from 
 
584 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Smith, 104 N. Y., 491. 
 
 the res gestae. These suggestions show that the action of the- 
 court was, at least, not arbitrary and without some apparent 
 reason, and so its discretion was not abused. The General 
 Term, which had the power to review it, has held that the rights 
 of the prisoner were not prejudiced, and its conclusion must, 
 therefore, prevail. 
 
 The judgment should be affirmed. 
 
YIII. G toss-examination. (1) The right. 585 
 
 Langley v. Wadsworth, 99 N. Y., 61. 
 
 LANGLEY v. WADSWOETH. 
 
 New York Court of Appeals, 1885. 
 
 [Eeported in 99 N. Y., 61.] 
 
 It is not error to refuse to direct a verdict, unless the request.sufRciently 
 
 indicates the ground to call the attention of the court to it specificall J^ 
 Cross-examination as to facts in issue or facts relevant to the issue, is 
 
 matter of right. 
 Cross-examination to ascertain the accuracy or credibility of a witness is 
 
 subject to the discretion of the trial judge in respect both to method 
 
 and duration. 
 Cross-examination as to a fact which, if admitted, would be collateral and 
 
 wholly irrelevant to the matter in issue and in no way affect the credit 
 
 of the "witness, is not allowable. 
 
 Action upon a promissory note for $4,000, alleged to have 
 been made by the defendant's testator, John B. Wadsworth, 
 deceased, and payable to the order of plaintiff. 
 
 The answer admitted the death of John B. "Wadsworth and the 
 appointment of defendant as his executor, and then followed 
 with a general denial, and defendant's counsel claimed that it 
 thus put in issue the consideration as well as the execution of the 
 note. 
 
 Upon the trial, after plaintifP had rested, defendant introduced 
 in evidence, letters written by the plaintiff to John B. Wads- 
 worth, the alleged maker. 
 
 Mr. ISToltin, an expert on handwriting, was called by plaintiff, 
 and gave his opinion that the signature to the note was genuine. 
 On cross-examination he said he could see very great dissimilarity 
 between it and other signatures assumed to be genuine, which he 
 could only account for by the fact that the writer was in ill health. 
 The defendant's counsel then put a hypothetical question which 
 assumed that shortly before the time when, as plaintiff claimed, 
 the testator executed the note, he walked from a Jersey City 
 ferry to the Grand Central Hotel, carrying quite a large satchel ; 
 upon that hypothesis the witness was asked what he would say as 
 to the testator being in such a condition as not to be able to write 
 his name. The question was objected to as incompetent, and ex- 
 cluded. A second question "Assuming that the man had simply 
 
586 Abbott's Select Cases on Examining "Witnesses. 
 
 Langley v. Wadsworth, 99 N. Y., 61. 
 
 the asthma, or a difficulty of breathing, do you think that would 
 account for the difference in his signature," was likewise ex- 
 cluded. 
 
 At the close of the case, defendant's counsel asked the court 
 to direct a verdict for the defendant, in view of the letters of the 
 plaintiff. 
 
 Motion denied and exception taken. 
 
 The jury rendered a verdict for the plaintiff. 
 Special Term denied motion for a new trial. 
 
 The Supreme Court at Oeneral Term affirmed the order and 
 judgment. 
 
 Smith, P. J. [_as to witness Nolton, said'l : The hypothesis 
 submitted to the witness furnished no facts upon which an opin- 
 ion could properly be based as to the testator's ability to write, 
 and the question what eifect the physical exertion supposed 
 would have had upon the testator's handwriting, or what it 
 indicated as to his ability, if proper for an expert, was one for a 
 medical expert, rather than an expert in handwriting. As the 
 witness was not shown to be a medical expert, his answer to the 
 question would have been of no value as testimony. 
 
 The Court of Appeals affirmed the judgment. 
 
 Danifoeth, J. : The complaint stated a good cause of action in 
 favor of a payee and holder against the maker of a promissory note. 
 The answer was a general denial. Upon the trial it was assumed by 
 both parties that the plaintiff, when she rested, had given evi- 
 dence, which, unless disproved, would justify a verdict in her 
 favor, and the defendant took the burden. 
 
 With other evidence he introduced letters written by the plain- 
 tiff to the testator — the alleged maker of the note — and at the close 
 of the case asked the court " to direct a verdict for the defendant in 
 view of these letters." The court declined to do so, and the ex- 
 ception then taken is now placed upon the ground " that they 
 showed the note to be without consideration." If so, and the defend- 
 ant relied upon that fact, the attention of the court should have 
 been called to it: (Thayer v. March, Y5 N". Y., 340.) Had it been, 
 
VIII. CroifS-examination. (1) The Right. 587 
 
 Langley v. Wadsworth, 99 N. Y., 61. 
 
 other evidence might have been permitted from the plaintiff. 
 She was not called upon to give it in the first instance. The 
 form of the note, its possession, and proof of genuineness, made 
 for her di prima faoie right of action. 
 
 But we think it quite apparent that the letters referred to were 
 not introduced for the purpose contended for, but rather to show 
 that the note was in fact spurious. "We see from the record that 
 all the evidence was directed to that issue. 
 
 But, however that may be, we find nothing in the letters them- 
 selves, nor in the argument of the learned counsel for the appel- 
 lant, which would require a trial court to dispose of it as matter 
 of law. The question was for the jury, and was submitted to 
 them in a manner satisfactory to the defendant. Their verdict 
 has been approved by the trial judge and by the General Term. 
 We think the exception was not well taken. 
 
 Nor do we find any error in regard to evidence. So far as the 
 cross-examination of a witness relates either to facts in issue or 
 relevant facts, it may be pursued by counsel as matter of right ; 
 but when its object is to ascertain the accuracy or credibility of 
 a witness, its method and duration are subject to the discretion 
 of the trial judge, and unless abused, its exercise is not the sub- 
 ject of review ; nor can the witness be cross-examined as to any 
 facts, which, if admitted, would be collateral and wholly irrele- 
 vant to the matter in issue, and which would in no way affect 
 his credit. The exception presented comes within one or both 
 of the last two conditions. The issue was upon handwriting. 
 The witness Nolton, as an expert, had testified to his belief in 
 its genuineness. It was not suggested that he lacked skill or ex- 
 perience in that matter, nor that both were not sufiicient to en- 
 title him to be considered an expert. He had testified that it 
 was represented to him that the party was ill when it (the note) 
 was written, and that he examined the signature upon that hypoth- 
 esis. His attention was called to two signatures, and he said : 
 " I accounted for the differences in the two by the fact that the 
 man was not in good health." One signature was on the note in 
 suit, the other on a check, and on cross-examination concerning 
 the latter, he says : " I find no evidence of tremulousness," and 
 as to the other, he saw "a great dissimilarity," adding, " can only 
 
588 Abbott's Select Cases on Examining Witnesses. 
 
 Langley v. Wadsworth, 99 N. Y., 61. 
 
 aecoimt for it by the health of the man," speaking of it, not as a 
 fact perceived by or known to him, but obviously as on his di- 
 rect examination — of something represented to him. 
 
 Then came questions which were excluded. By the first, wit- 
 ness was in substance told to assume that the alleged writer did, 
 just about the time of the supposed writing, take a certain de- 
 scribed walk, " carrying quite a large satchel," and was then 
 asked ; " What do you say about his being in such a condition as 
 not to be able to write his name ? " and by the second to assume 
 that " the man had simply the asthma or a difficulty of breath- 
 ing, and declare whether that would account for the diflfer- 
 ence in his signature." 
 
 The first question suggests no fact on which an opinion upon 
 any issue before the court could properly be based, but if it did, 
 it was for the jury and not the witness, who had no better or 
 other information concerning its efliect than they had, and the 
 second involved an inquiry disconnected from any matter to 
 which the witness had spoken. He had attributed no disease to 
 the writer — did not pretend to have known or ever to have seen 
 him, but had acted upon the representation that he was ill ; and 
 while it is possible to imagine that the scheme of cross-examin- 
 ation was so extensive as to embrace every known disorder, the 
 witness had asserted no skill as to any, but only knowledge com- 
 mon to every one— that illness does sometimes so affect the 
 nerves and muscles of a man as to diminish his strength and 
 induce tremulousness. He spoke of this condition as concomi- 
 tant with illness, and not as an effect of any particular disease. 
 It would have been pertinent to ask by whom the representation 
 on which the witness relied was made, or what opportunity he 
 had of seeing signatures written under such supposed condition. 
 The questions asked were pointless. The facts to which they 
 were directed were irrelevant to the matter in issue, and, however 
 answered, would not have affected the credit due the witness. 
 ISTo other point is made, and we think the appeal fails. 
 
 All the judges concurred, except Andeews, J., absent. Judg- 
 ment affirmed. 
 
VIII. Cross-examination. (1) The Eight. 589 
 
 Winner v. Lathorp, 67 Hun, 511. 
 
 WINNEK V. LATHOKP. 
 
 New Yorh Supreme Court, 1893. 
 
 [Reported in 67 Hun, 511.] 
 
 If one party exhibits to the jury a thing, such as the broken arm in a 
 negligence case, as evidence, the other has a right to have an expert 
 inspect it, and to have the expert testify as a witness ; and it seems, 
 if it be the case of an injury to the person, to cross-examine the 
 party. 
 
 Ida O. Winner sued for damages claimed to have been sus- 
 tained by reason of the alleged unskillfulness or negligence of 
 the defendant, a surgeon, in reducing a fracture of the plain- 
 tifi's arm or wrist. 
 
 Upon the trial, plaintiff was called as a witness in her own 
 behalf, and testified generally as to the accident, her visit to the 
 defendant's office, and his mode of treatment. 
 
 She further testified : " I cannot move my fingers, nor move 
 my arm in this rotary motion." 
 
 While describing the condition of her wrist, the witness, at 
 the direction of her counsel, rolled up her dress sleeve, removed 
 a small bandage, and exhibited her arm and wrist to the court 
 and jury. 
 
 After plaintiff had rested, defendant's counsel asked that 
 Mrs. Winner allow Dr. Lathorp to examine her wrist. 
 
 Plaintiff's counsel objected. 
 
 The court held it had no power to direct such an examination ; 
 defendant excepted ; defendant's counsel asked that so much 
 of Mrs. Winner's testimony as relates to the present condition of 
 the wrist be stricken out on the ground that she refused to 
 permit an examination by defendant. 
 
 Motion denied and exception taken. 
 
 Dr. Lathorp, the defendant, was then called as a witness in 
 his own behalf, and testified as to instruction given plaintiff for 
 the treatment of the wrist, and further : " was present in court 
 when she was examined as a witness. Could not tell from where 
 I sat what the condition of her wrist now is. I could by feeling 
 of it, I think. I am willing to make an examination of it." 
 
590 Abbott's Select Oases on Examining "Witnesses. 
 Winner v. Lathorp, 67 Hun, 511. 
 
 Defendant's counsel here asked the court to allow the witness- 
 to look at the plaintiff's wrist and examine it with a view of 
 testifying to its present condition. 
 
 Plaintiff's counsel objected. 
 
 The court sustained the objection on the ground that it had 
 not the power to direct such examination. Defendant excepted. 
 
 The County Court entered judgment for plaintiff. 
 
 The Supreme Court at General Term reversed the judgment. 
 
 Mayham, p. J. [after stating facts], said: It is quite true, as 
 contended by the learned counsel for the respondent, that the 
 court has no power to compel an injured party in a case like 
 this to exhibit her injury to the defendant before trial for inspec 
 tion, for the purpose of furnishing evidence for the defendant. 
 
 In McQuigan v. The Delaware and Lackawanna Eailroad 
 Company, 129 IS". Y., 50, the Court of Appeals held that the 
 court had no power to compel a party, in advance of a trial for 
 physical injury, to submit to a surgical examination on the 
 application of the adverse party. 
 
 But Judge Andrews, in his opinion, states that : " The sole 
 question presented by this record is whether the Supreme 
 Court has power in advance of the trial of an action for personal 
 and physical injury, to compel the plaintiff, on application made 
 in behalf of the defendant, to submit to a surgical examination ;" 
 Any discussion beyond the examination of that precise question 
 in that case would be irrelevant and obiter, and would not, there- 
 fore, be authority in a case where, on the trial, the injured party 
 had voluntarily exhibited the injured part to the jury. 
 
 The same doctrine was held by the General Term in Koberts 
 V. Ogdensburgh, etc., Eailroad Company (29 Hun, 158) where 
 an order of a Special Term granting such examination before 
 trial was reversed. In this case as in the case of McQuigan v.- 
 Eailroad Company (supra), all that the court was called upon to 
 decide was as to the power of the court to compel an examination, 
 before trial. 
 
 In McSwyny v. Broadway and Seventh Avenue (Y IST. Y. 
 Supp., 459), it was held that a plaintiff might properly refuse to 
 submit to a personal inspection of the alleged injury on the 
 
VIII. Cross-examination. (1) The Eiglit. 591 
 
 Winner v. Lathorp, 67 Hun, 511. 
 
 application of the defendant at the trial. But the plaintiff had 
 not in that case voluntarily exhibited the injured part to the jury 
 as done in this. I have been referred to no case nor have I been 
 able to find any in which a party claiming a physical injury has 
 first voluntarily submitted the injured part to the inspection of 
 the jury as evidence, and has refused to permit the adverse party 
 to follow up that examination in the presence of the jury by a 
 personal or professional inspection of such injured part. 
 
 Such an examination seems to me to stand upon a different 
 principle from that of a compulsory examination by the adverse 
 party before or at the trial when the injured party has not made 
 profert of the injured part. 
 
 It seems to me that it would be unfair and might result in a 
 gross injustice to the party against whom such evidence was 
 used. In such a case it would be in the power of the party by 
 muscular distortion of the injured part, especially an arm or 
 hand, to impose upon the jury and court, as well as the adverse 
 party, andprodace upon the mind of the jury a false impression 
 as to the extent of the injury. 
 
 The member having been put in evidence as a part of the 
 direct examination, it is, for the purposes of the trial, made the 
 property of the court and opposite party for the purpose of a 
 cross-examination. It is difficult to conceive of a species of 
 evidence that is offered by one party in support of his case which 
 may not, in the presence of the same tribunal, be examined and 
 criticised by the party against whom it is offered. We think, 
 therefore, that the inspection and examination of this limb should 
 have been ordered and permitted by the court, and, iu case of 
 refusal to submit to such inspection by the plaintiff, her evidence, 
 so far as that exhibit and explanation of the same by the plaintiff 
 was concerned, should have been stricken out on defendant's 
 motion. 
 
 The plaintiff had a right to exhibit this injured limb to the 
 jury, and the defendant had no power to exclude it (Hiller v. 
 The Tillage of Sharon Springs, 28 Hun, 344). 
 
 In this case Leaened, P. J., says : " But jf the plaintiff's leg 
 was injured, there was no more certain and unquestionable way 
 of proving that fact to a jury than by showing them the leg itself." 
 
592 Abbott's Select Cases on Examining Witnesses. 
 Burden v. Pratt, 1 Supm. Ct. [T. & C], 554. 
 
 In Mulhado v. Brooklyn City Railroad Company (30 N. Y., 
 370), the court speaking upon this subject, say : " Such exhibi- 
 tion certainly tended to make the description of the injury more 
 intelligible." 
 
 If the party injured can offer this evidence, most certainly the 
 adverse party should be permitted to cross-examine and criticise 
 such evidence. 
 
 For both the grounds above discussed we think that this judg- 
 ment and order should be reversed. 
 
 Heeeick, J., concurred ; Putnam, J., concurred in the result. 
 
 Judgment and order reversed and a new trial granted, costs to 
 abide the event. 
 
 BUEDEN V. PRATT. 
 
 jyew York Supreme Court, 1873. 
 
 [Reported in 1 Supm. Ct. [T. & C], 554.] 
 
 The non-appearance of a witness, who has been cross-examined, for fur- 
 ther cross-examination on a subsequent day, is not necessarily ground 
 for striking- out his testimony, unless chargeable to the misconduct or 
 neglect of the party calling him. 
 
 An action for breach of warranty on the sale of a horse. 
 
 On the trial in the County Court the plaintiff called one Somers 
 as a witness. He was examined and was cross-examined by 
 defendant's counsel. When the cross-examination closed, defend- 
 ant's counsel stated in open court, in the hearing of plaintiff's 
 attorney and the witness, that he desired the witness to be 
 present on the morrow, as he desired to further cross-examine 
 him. Other witnesses were then called and the trial pro- 
 ceeded. 
 
 On the next day the court, at the request of defendant's 
 counsel, directed the clerk to call Somers for further cross-exam- 
 ination. He was called but did not answer. 
 
 The defendant's counsel told the court that the witness had 
 been told he (the counsel) should want to cross-examine him, and 
 that he had told the witness that morning, before the opening of 
 
VIII. Cross-examination. (1) The Eight. 593 
 
 Burden v. Pratt, 1 Supni. Ct. [T. & C], 554. 
 
 the court, that he should expect him in court, as he desired to 
 <;ross-examine him further. 
 
 The defendant's counsel then moved to strike out the direct 
 examination of the witness, as he had notified the plaintiff's 
 -counsel and the witness that he desired to further cross-examine 
 him, and the plaintiff's counsel had failed to produce him. The 
 ■court denied the motion and the defendant's counsel excepted. 
 
 The Justice's Court entered judgment for the plaintiff. 
 
 The County Court affirmed the judgment. 
 
 The Supreme Cou.rt at General Term affirmed the judgment. 
 
 MuLLiN, P. J. [after stating facts'], said : The party produc- 
 ing a witness and examining him must have him in court to be 
 cross-examined, and if he does not the direct examination will be 
 stricken out. 
 
 If, however, the party desiring to cross-examine does so, and 
 he is not prevented by the plaintiff, or by the adjournment of 
 the court from completing it, it is his duty to complete it ; and 
 if he defers it to another day, for his own convenience, the 
 opposite party is not obliged to detain the witness, and, if the 
 latter absents himself, it is not the fault of the party calling 
 him. 
 
 In this case it would seem that the defendant voluntarily 
 suspended the examination till the next day, the trial continuing 
 in the mean time. Notice to tlie plaintiff's counsel and the wit- 
 ness that he intended to resume the cross-examination at a future 
 time imposed no duty upon the plaintiff or the witness. If 
 defendants could compel the party to keep his witnesses for one 
 day, he could for ten days, if the trial should continue so long. 
 No such burthen can be imposed on one party by another for 
 his own convenience.* 
 
 The cases of Cole v. The People, 2 Lans., 370 ; Sheffield v. 
 E. & S. E.R. Co., 21 Barb., 339 ; Forrest v. Kissam, Y Hill, 463, 
 ■do not sustain any such practice. 
 
 To entitle the party to have evidence on direct examination 
 
 ^ Compare Neil v. Thorne, p. 600 of this volume. 
 
594 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Severance, 67 Hun, 183. 
 
 stricken out, because the witness does not appear to be cross- 
 examined, the loss must be chargeable in some way to the mis- 
 conduct or neglect of the party calling him, unless it is the other 
 party is not entitled to relief. 
 
 PEOPLE V. SEVEEANCE. 
 
 New YorTc Suj>reme Court, 1893. 
 
 [Eeported in 67 Hun, 183.] 
 
 If, after cross-examination, a witness is allowed to leave the stand and 
 the courtroom, without the attention of the court being called to the 
 fact that the cross-examining counsel wishes to cross-examine him 
 further, it ma y be error to refuse to give a brief adjournment to en- 
 able the cross-examining counsel to secure the attendance of the 
 witness. 
 
 Indictment for feloniously making a false entry in a book of 
 accounts kept by a corporation, while being an officer of such 
 corporation, with an intent to defraud. 
 
 Upon the trial, Oscar F. Richardson, the bank examiner who- 
 examined the Bank of Fayetteville, was called and examined as a 
 witness for the People, and cross-examined by defendant and 
 then left the stand, and other witnesses were called and ex- 
 amined. 
 
 Several days afterward, when the prosecution were about to 
 rest their case, defendant's counsel, stated that before, the prose- 
 cution rested, he wished to ask more questions of the bank ex- 
 aminer. 
 
 The bank examiner had left the court the previous day, after 
 his examination ; the defense claimed, and the prosecution' 
 denied, that notice of a wish to further cross-examine had been 
 given. 
 
 The court said that, the witness not being present and there 
 being no information that he was still in town, the court had no 
 recourse but to proceed with the cause. 
 
 The defendant's counsel thereupon moved to strike out the 
 testimony of the witness for not having been accorded the right 
 to further cross-examine him. 
 
VIII. Cross-examination. (1) The Eight. 595 
 
 People V. Severance, 67 Hun, 183. 
 
 The court said : " The witness is not here and is not available 
 so far as I can learn. He is bound to stay until he is examined 
 and cross-examined, and then if counsel desire him to remain 
 they should ask the court to direct him to remain. "Well, the 
 People rest ; what do you desire ? " 
 
 Defendant's counsel asked and obtained leave to file affidavits 
 as to the facts, and the prosecution did the same, that the claim 
 of each side might appear on the record. 
 
 The court said : " No suggestion has been made to the court 
 that the cross-examination was not completed. The witness 
 has answered the subpoena and subjected himself to examina- 
 tion on both sides fully, and has gone away without either any 
 direction or consent either way of the court, and now to strike 
 out his evidence because the defendant desires further to cross- 
 examine him under those circumstances would be, in my judg- 
 ment, a gross perversion of the rule, and that application is 
 denied." 
 
 The Court of Sessions of Onondaga County convicted de- 
 fendant. 
 
 The Supreme Court at General Term reversed the judgment. 
 
 Maetii^, J. [on this point said] : Oscar F. Kichardson, the 
 bank examiner, who examined the Bank of Fayetteville, was 
 called as a witness by the People early in the trial of the case. 
 He was examined by the People, and cross-examined by the 
 defendant, and left the stand. Afterwards and during the trial 
 the defendant's counsel desired to further cross-examine him, 
 but he was not in court, having that morning, or the pre- 
 vious night, returned to his home in the city of Brook- 
 lyn. The defendant claims, and has introduced affidavits to 
 show that, at the conclusion of his examination, the defendant's 
 counsel stated to the district attorney, in the presence of the 
 court, that he desired to further cross-examine this witness, and 
 desired him to remain in attendance for that purpose. The dis- 
 trict attorney and others made affidavits that they heard no such 
 request or notice from any source. The witness was in the city 
 of Syracuse the night before he was called for further cross- 
 examination, and the defendant's attorney had reason to believe 
 
596 Abbott's Select Cases on Examining "Witnesses. 
 
 People V. Severance, 67 Hun, 183. 
 
 that he would be present when required, as one of the defend- 
 ant's attorneys informed the witness the night before, that they 
 desired to recall him for further cross-examination. The court 
 refused either to delay the trial to enable the defendant to pro- 
 cure the attendance of the witness, or to strike out the evidence 
 that he had already given, on the ground that the defendant had 
 not been permitted to fully cross-examine him. The defendant 
 •contends that this was error, and that the court should either 
 have given him an opportunity to procure the attendance of the 
 witness, or have stricken out the evidence he had already given. 
 
 It was said by Folgee, J. , in Sturm v. Atlantic Mutual In- 
 surance Company (63 N. Y., 8T) : " It may be taken as a rule 
 that, where a party is deprived of the benefit of the cross-exam- 
 ination of a witness by the act of the opposite party, or by the 
 refusal to testify, or other misconduct of the witness, or by any 
 means other than the act of God, the act of the party himself, or 
 some cause to which he assented, that the testimony given on the 
 •examination in chief may not be read." 
 
 It was held in People v. Cole (43 N.Y., 508), that it was error 
 to suffer to go to the jury any evidence given by a witness on 
 direct examination by the people where, by sudden illness, or by 
 the death of such witness, or other cause, without the fault of 
 .and beyond the control of the prisoner, he is deprived of his 
 right of cross-examination. 
 
 In Sheffield v. Eenssalaer and Saratoga Railroad Company (21 
 Barb., 339), where, on the trial, the plaintiff's counsel, before 
 dismissing the. witness from the stand, inquired of the defend- 
 ant's counsel whether any of the facts testified to by the witness 
 would be controverted, to which the defendant's counsel replied 
 that they should introduce no evidence on the points testified to 
 by him, and the right of cross-examination was not reserved, but 
 at the close of the trial the defendant's counsel called the witness 
 for further examination and he did not appear, having gone 
 home, it was held that, under these circumstances, the plaintiffs 
 were under no obligation to detain the witness for the purpose 
 •of further examination by the defendant's counsel. In that 
 case the court said : " We are not called upon to decide whether 
 in every case where a party introduces and examines a vritness 
 
VIII. Gross-examination. (1) The right. 59T 
 
 People V. Severance, 67 Hun, 182. 
 
 he is bound, at the peril of losing his evidence, to keep him in 
 court until the trial is closed for the benefit of the adverse 
 party. We incline to think the counsel should avail themselves^ 
 of the opportunity to cross-examine before the witness leaves the 
 stand, unless the court for some good reason should allow them 
 the privilege at a subsequent stage of the trial. In this case the 
 plaintiff's counsel had good reason to suppose the witness would 
 not be wanted further by the defendant." 
 
 In Euloff's case (11 Abb. [IST. S.J, 245), it was held by the 
 trial judge that, where witnesses have once been cross-examined^ 
 and have left the stand, without reason to expect to be called 
 again, the fact that they do not appear when called again to be 
 further cross-examined, as to a fact on which they were not 
 previously examined, is not, necessarily, ground for striking 
 out their testimony, especially where other evidence has already 
 been given of the fact sought to be proved. 
 
 In Burden v. Pratt (1 T. & C, 554), where a witness for the 
 plaintiff was examined and cross-examined, and at the close of 
 the cross-examination the defendant's attorney gave notice to the 
 witness and plaintiff's attorney, that he wished to further cross- 
 examine the next day and desired the witness present at that 
 time, and the trial continued and other witnesses were examined, 
 it was held that the plaintiff was not bound to produce the wit- 
 ness on the following day for further cross-examination. 
 
 " The court may, in all cases, permit a witness to be recalled, 
 either for further examination in chief, or for further cross- 
 examination." (Keynold's Stephen on Evidence, 178.) 
 
 While the authorities upon this question are not in entire har- 
 mony, and some of them would seem to justify the rulings of the 
 court in this case, yet, we are disposed to think the court should 
 have permitted the defendant to secure the attendance of this 
 witness, and held the trial open a reasonable length of time to 
 enable him to do so. It can be readily seen by an examination 
 of the case how a further cross-examination of this witness might 
 have been important to the defendant after the introduction of 
 the other evidence given by the People. That the defendant 
 intended to reserve the right of further cross-examination and 
 to give the People's attorneys notice of that fact, we have no 
 
598 Abbott's Select Cases on Examining Witnesses. 
 Notes of Recent Cases on the Right of Cross-examination. 
 
 doubt. The aiHdavits of four witnesses are to the effect that 
 such statement was made by the defendant's counsel, while the 
 affidavits in opposition are only to the effect that no such notice 
 was heard, although at the trial one of the affiants simply stated 
 ihat he did not remember that any such statement was made by 
 the defendant's attorney. Under these circumstances, we think 
 the proper administration of justice would have been better 
 served by permitting the defendant to secure the attendance of 
 this witness, even if a brief postponement of the trial, until his 
 attendance could be secured, had been necessary, (lls^eil v. 
 Thorn, 88 N. Y., 2Y0, 276.) 
 
 There are other grave exceptions in the ease, but, as we think, 
 the judgment should be reversed for the errors already pointed 
 out, and as those raised by the other exceptions will probably be 
 avoided upon a second trial, we do not deem it necessary to 
 specially consider them on this appeal. 
 
 The conviction, judgment and order must be reversed and a 
 new trial ordered, and the clerk of Onondaga county directed to 
 enter judgment and remit certified copy thereof, with the return 
 and decision of this court to the Court of Sessions of Onondaga 
 county, pursuant to sections 547 and 548 of the Code of Criminal 
 Procedure. 
 
 Haedin, p. J., concurred ; Meewin, J., concurred in result. 
 
 NOTES OF EECENT CASES ON THE EIGHT OF 
 CEOSS-EXAMINATIOK 
 
 Georgia: Woolfolk v. State, 85 Ga., 69; s. c. 11 Southeast. Rep., 814 
 (while a party has a right to throughly cross-examine a witness called 
 against him, this right must end some time and it is within the discretion 
 of the trial court to place a reasonable limit thereto) ; s. p. Hamilton v. 
 Miller, 46 Kan., 486; s. c. 26 Pacific Rep., 1030. Illinois: Truesdale 
 Manufg. Co. v. Hoyle, 39 111. App., 583 (cross-examination which calls for 
 argumentative replies is not permissible). Indiana: Applet. Board of 
 Commissioners of Marion County, 137 Ind., 553; s. c. 27 Northeast. Rep., 
 166 (cross-examination may be allowed as to voluntary statements of a 
 witness on direct which has been allowed to stand by the party callino- 
 the witness). Pennsylvania Co. v. Newmeyer, 129 Ind., 401 ; s. c. 28 
 Northeast. Rep., 860 (questions assuming facts are improper even on 
 cross-examination). Foss-Schneider Brewing Co. v. McLaughlin, 5 Ind. 
 
VIII. Cross-examination. (1) The right. 599 
 
 Notes of Recent Cases on the Right of Cross-examination. 
 
 App., 415 ; s. c. 31 Northeast. Rep., 838 (an error in permitting cross-exami- 
 mation as to a writing not in evidence is cured by subsequently putting 
 tlie writing in evidence). Maryland: Scott v. McCann, 76 Md., 47 ; s. c. 
 24 Atlantic Rep., 536 (it seems to be admissible, in equity at least, to 
 receive the testimony of a witness whose cross-examination has been pre- 
 vented without fault of the witness or party producing him, or has been 
 cut off by the witness's death). Michigan: Beers v. Payment, 95 Mich., 
 361 ; s. c. 54 Northwest. Rep., 886 (where there is no abuse of the privi- 
 lege nor any attempt to consume the time of the court with fruitless 
 cross-examination, it is proper cross-examination to ask a witness to re- 
 peat what he has testified on a particular point on his direct examination; 
 and it is not a sufficient reason to refuse to allow cross-examination re- 
 specting what he has testifled to, that he has already testified upon the 
 subject upon his direct examination) ; s. p. Zucker ■;;. Karpeles, 88 Mich., 
 418 ; s. c. 50 Northwest. Rep., 373. Minnesota: O'Riley v. Clampet, 1893, 
 55 Northwest. Rep., 740 (it is proper not to permit a witness to be cross- 
 examined as to the contents of a written instrument not in evidence ; if 
 the cross-examining party desires to examine as to such an instrument 
 he may introduce it in evidence as a part of the cross-examination if its 
 ■execution is admitted). Hamilton v. Hulett, 1893, 58 id. , 864 (the trial 
 court may in its discretion refuse to allow cross-examination to be unrea- 
 sonably extended). Missouri: State v. Duncan, 1898, 33 Southwest. Rep., 
 699 (where a witness on cross-examination evades legitimate questions, 
 the adverse counsel should not be permitted to interpose frivolous objec- 
 tions to rapid cross-examination, thereby affording the witness an oppor- 
 tunity to fabricate ; and where a witness evades replies to proper questions 
 he may be pressed for answers). Nebraska : Jones v. Stevens, 36 Neb., 
 849 ; s. c. 55 Northwest. Rep., 351 (it is not error to prohibit the repetition 
 of a question which has already been three times asked, under the penalty 
 of forbidding further cross-examination). Neiv Forfc; Cornwell v. Cog- 
 win, 17 N. Y. Supp., 299; s. c. 44 State Rep., 13 (questions on cross- 
 examination which assume facts not in evidence are properly excluded). 
 To test memory— Bta,te v. Duffy, 57 Conn., 525 ; s. c. 18 Atlantic Rep., 791 
 (it is not error to allow cross-examination as to matters not in issue for the 
 purpose of testing the witness's recollection ; such examination is largely 
 within the discretion of the trial court). Davis v. California Powder 
 Works, 84 Cal., 617 , s. c. 24 Pacific Rep., 387 (a witness, who testified in 
 chief as to the date he signed a lost grant, was allowed to be cross- 
 examined as to other grants made by him about the same time in order to 
 test his memory). State v. Bllwood, 17 R. I., 763 ; s. c. 34 Atlantic Rep., 
 783 (where a jeweler as a witness was called to identify a stolen watch, it 
 was held not within the latitude of cross examination for the purpose of 
 testing his memory to inquire into his private affairs by asking him how 
 much business approximately he did in a certain year). 
 
600 Abbott's Select Cases on Examining "Witnesses. 
 Neil V. Thorn, 88 N. Y., 270. 
 
 NEIL V. THOKN. 
 
 Jfew York Court of Appeals, 1882. 
 
 [Reported in 88 N. Y., 370.] 
 
 In an action for malicious prosecution and false imprisonment, evidence 
 that the complaint made by the defendants to the magistrate differed 
 from that stated in the written complaint drawn up by the magistrate, 
 and that he advised them to make the charge in the form in which he 
 drew it up, is competent, if foundation is laid for it in the answer, as 
 tending to disprove malice. 
 
 A defendant has no right to introduce his case by cross-examining the 
 witness of the plaintiff ; whether this should be done is in the discre- 
 tion of the trial judge. ^^ 
 
 Thus in an action for malicious prosecution and false imprisonment, 
 plaintiff's counsel having called the magistrate and interrogated him 
 so far as to prove that he issued the warrant on a complaint signed 
 b3' one of the defendants after statements to him by all of the defend- 
 ants, defendants' counsel cannot, as matter of strict cross-examina- 
 •tion, call for the particulars of the statement for the purpose of show- 
 ing, to disprove malice, that it stated a different charge from that 
 which the magistrate put into the complaint. 
 
 Error in excluding relevant evidence is cured if the party excepting to its 
 exclusion subsequently offers, and is allowed to prove the matter 
 which had been erroneously excluded. 
 
 If he was prejudiced by not being' allowed to prove it by the witness who 
 was under cross-examination, he should ask to have that witness 
 again brought in. The appellate court will not presume that the wit- 
 ness had left the court without consent of the cross-examining counsel 
 or permission of the court. 
 
 Action for malicious prosecution and false imprisonment. The 
 complaint alleged that the defendants caused plaintiff to be 
 brought before a justice of the peace without probable cause, on 
 a charge of obtaining by false pretenses the signature of one of 
 the defendants to a writing, by which, with intent to cheat and 
 defraud, plaintiff procured money from a third person. 
 
 The defendants' answer stated that they were trustees of a 
 school district and the plaintiff a teacher who, on being dis- 
 missed, carried away the school register and the school house 
 door key, and refused to return them, and that he also by promis- 
 ing to get the signature of the other trustees, obtained the signa- 
 ture of one of them to an order for money to be paid him by the 
 collector, and obtained payment without such other signatures, 
 
VIII. Cross-examination. (2) Limits of Strict Cross. 601 
 
 Neil V. Thorn, 88 N. Y., 270. 
 
 on a promise to get them, which he did not fulfil ; and that on 
 stating the facts to the justice, the justice advised the issue of 
 the warrant in the form in which it was issued, and proved un- 
 sustainable. 
 
 Upon the trial, the magistrate was called as a witness for the 
 plaintiff and identified the complaint for false pretenses (which 
 was signed, however, by only one of the defendants, viz. Ferris), 
 as the one on which he issued the warrant of arrest. In answer 
 to inquiries by plaintiff's counsel, the witness testified that first 
 the other two trustees came before him, and at a second interview 
 all three came. At each interview some statement was made 
 about this charge. Witness did not know, he said, at whose re- 
 quest he issued the warrant, but he issued it on the complaint 
 signed ouly by Ferris. 
 
 At the very beginning of the cross-examination, being asked 
 "when these trustees first came there" (i. e., before him as 
 magistrate), " did they make this complaint," he said : " Do you 
 mean the two, or three trustees ? " And defendant's counsel 
 replied, " well, the two, first." The witness then said, " I think 
 they came to.make a different complaint first.'' Counsel : " A 
 different complaint, please state what that was ? " To this in- 
 quiry the plaintiff objected as immaterial. The objection was 
 sustained, and the defendants excepted. Their counsel then 
 said : " We offer to prove, by this witness, that the defendants 
 first went there for the purpose of making complaint before him 
 (that is, the witness), to procure from the plaintiff the key and 
 register of this district." The objection was repeated and was 
 followed by the same ruling. The defendants' counsel contin- 
 ued, " and that, after having told their object, including the 
 transaction with reference to this order, this witness advised 
 them to take this proceeding, and that Mr. Ferris (one of the 
 defendants), in pursuance of that advice, made that complaint." 
 This was also objected to with like result. 
 
 At Circuit, plaintiff recovered judgment. 
 
 The General Term of the Supreme Court reversed it without 
 discussing these questions of evidence. 
 
602 Abbott's Select Cases on Examining Witnesses. 
 Neil V. Thorn, 88 N. Y., 270. 
 
 The Court of Appeals reversed the judgment of the General 
 Term, and aiBrmed judgment upon the verdict. 
 
 Danfoeth, J. [after stating the facts, said upon these 
 questions] : It is now argued by the learned counsel for the 
 defendants (respondents here), that " the testimony was material 
 upon the question of malice, as tending to prove a claim of the 
 defendants that they applied to the justice for process to ob- 
 tain the key and register from the plaintiflE, and that the justice 
 advised instead the proceeding upon which the warrant in 
 question was issued ; " and again, " that it was competent, if for 
 no other reason, for the purpose of disproving malice." It was 
 no doubt obvious on the trial that this was the object of the 
 testimony called for, and it must have been so understood by the 
 judge. 
 
 In view of the proceedings upon the trial, it may be conceded 
 that this position is well taken, for the trial judge charged the 
 jury in accordance therewith. He said : " If you find that these 
 trustees went to the magistrate and told him their story, and 
 stated to him the facts of the case, and that he advised them to 
 procure this warrant, then I charge you that you have the right 
 to take that circumstance into consideration in mitigating the 
 damages." 
 
 It does not follow, however, that the exception should prevail. 
 
 First. The offer was of new matter. If true, it would, to some 
 extent, perhaps, support the allegations in the answer; but it 
 was not called forth by any part of the direct examination of the 
 witness, and was in violation of the general rule that a party 
 cannot introduce his case to the jury by cross-examining the wit- 
 ness of his adversary. (Hartness v. Boyd, 5 Wend., 563; 
 Kerker v. Carter, 1 Hill, 101.) It was, therefore, in the discre- 
 tion of the trial judge to admit or exclude it at that time. The 
 orderly conduct of the trial might, in his opinion, require that 
 the evidence for the plaintiff should be first concluded before the 
 defence was introduced, or matter in support of the defence. 
 His decision, if made on that ground, could not be reviewed. 
 (Bedell v. Powell, 13 Barb., 183 ; Allen v. Bodine, 6 id., 383 ; 
 Fry V. Bennet, 3 Bosw., 200 ; 4 Denio, infra.) 
 
 Second. This ruling, if erroneous, was cured by subsequently 
 
VIII. Gross-examination. (2) Limits of Strict Cross. 603 
 
 Neil V. Thorn, 88 N. Y., 370. 
 
 admitting the same evidence at the instance of the defendants. 
 It should be noticed^that the objection was general, and, there- 
 fore, related, not to the competency of the witness, but to the 
 relevancy of the testimony. (Stevens v. Brennan, Y9 N. Y., 
 254.) The defendants did not adhere to the exception, but 
 when the case came to them, made the same offer and the evi- 
 dence was received. They proved the facts embodied in their 
 offer by several witnesses, but did not again call Turk. I think 
 this was a waiver of the exception on the part of the defendants, 
 acquiesced in by the trial judge, and, therefore, not available 
 here. 
 
 It is said that it does not appear that Turk was present when 
 this evidence was given. If the defendants were prejudiced by 
 the ruling, it was their duty so to present the case upon appeal 
 that his absence and their inability to obtain him should be made 
 apparent. A witness once summoned and called to testify upon 
 a trial is presumed to be present until its conclusion. It is his 
 duty to be in court, and without consent of the opposite party 
 or permission of the court, he could not lawfully leave.* Had 
 it appeared that the witness left the court and was not pres- 
 ent when wanted, it would have been in the discretion of the 
 judge to suspend the trial until he could be again brought in. 
 (Rapelye v. Prince, 4 Hill, 119.) If that was refused, the de- 
 fendants might perhaps have had the benefit of an exception. 
 It is well settled that an erroneous ruling as to evidence may be 
 corrected by the court. (People v. Parish, 4 Denio, 153) ; or an 
 objection may be withdrawn by the adverse party. (Ligget v. 
 Bank of Pa., 7 S. & P., 218.) 
 
 In either of these cases it must indeed appear that the error 
 was corrected under circumstances which worked no injury to 
 the party excepting. But an exception may also be waived by 
 the party taking it; he is not bound to stand by the exception. 
 It may be waived expressly or by inference, and the implication 
 of such waiver is unavoidable when he offers again proof of a 
 fact excluded by a former ruling ; for by his renewed application 
 he elects to submit to the decision of the court. If that is in 
 his favor, the former exception falls. He cannot retain the ex- 
 
 * Compare Burden v. Pratt, p. 592 of this vol. 
 
604 Abbott's Select Cases on Examining "Witnesses. 
 
 Neil V. Thorn, 88 N. Y., 370. 
 
 ception and so allege error in law, after getting in such evidence 
 as he offers, and try before the jury its effect upon the question 
 of fact. He must be deemed to have made the new offer under 
 circumstances satisfactory to himself, and is thus brought di- 
 rectly within the rule, that exclusion of evidence at any stage of 
 the trial is no ground of exception if it is subsequently admitted. 
 (The Park Bank v. Tilton, 15 Abb., Pr. 384 ; Morgan v. Eeid, 7 
 id., 215 ; Jackson v. Parkhurst, 4 "Wend., 369 ; Hay v. Douglas, 8 
 Abb. Pr. []Sr. S.], 220; Forrest v. Forrest, 6 Duer, 102, 117.) 
 
 In the case last cited, a letter was offered in evidence by de- 
 fendant, but rejected. It was afterward admitted and read in 
 evidence by him. Upon appeal the defendant sought the bene- 
 fit of his exception to the first ruling, but the court say : " There 
 is nothing in this point, unless it be a sound rule of law that a 
 ruling, rejecting evidence offered, erroneous at the time it was 
 made, cannot be cured by admitting the same evidence at the 
 instance of the party excepting in a subsequent stage of the 
 trial. No authority has been cited to the effect that for such an 
 error a new trial should be granted." " It is as if on exception 
 to the refusal of the court to nonsuit, a defendant gives evidence, 
 and after verdict for the plaintiff, alleges the exception as ground 
 for a new trial. It is in such a case held that, by not standing 
 on his exception, it is lost to the party taking it," and the court 
 in the case cited (Forrest v. Forrest, supra), say : " It is diffi- 
 cult to state a principle which should exempt the omission to 
 rely upon the exception in this case from the same consequences." 
 
 In Eobinson v. The Fitchburg & W. E. E. Co. (7 Gray, 92), the 
 plaintiff offered in evidence the admissions of the president of 
 the defendant. They were excluded and exception taken ; they 
 were afterward admitted, and in reviewing the exception the 
 court say : " The order of proof is always within the discretion 
 of the judge presiding at the trial, and his exercise of this dis- 
 cretion is not open to exception. The plaintiff has had the full 
 benefit of the evidence offered by him, it having been laid be- 
 fore the jury in the course of the trial ; and it is therefore quite 
 immaterial that it was not admitted at the time when it was first 
 offered." 
 
 The principle and the authorities apply here. We have seen 
 
VIII. Cross-examination. (2) Limits of Strict Cross. 605 
 
 People, ex rel. Phelps v. Oyer and Terminer, 83 N. Y., 436. 
 
 by tlie extract already given from the charge of the judge in 
 the case before ns, that the evidence first rejected, but afterward 
 received, was given to the jury, and it does not appear that the 
 ■defendants again offered to examine Turk, or that they were 
 precluded from examining him, or other witnesses to the same 
 point. If there was error, therefore, in excluding the evidence 
 when first offered, the error was cured and the exception falls. 
 
 PEOPLE, eic rel. PHELPS v. OTEE AND TEEMINER. 
 
 New York Court of Appeals, 1881. 
 
 [Reported in 83 N. Y., 436, affirming 19 Hun, 91.] 
 
 When a party is extending cross-examination of his adversary's witness 
 into new matter, material only to his own case in defense, he cannot, 
 as matter of right, put leading questions.* 
 
 Henry "W. Genet was indicted for feloniously obtaining the 
 signature of the mayor of the city of New York to a written 
 instrument for the payment of money, by means of false 
 pretenses. 
 
 The representation was that the city was justly indebted to J. 
 McBride Davidson in the sum of $4,802, for materials for a 
 public building, and a bill of the items was at the same time 
 exhibited. This bill was certified by the commissioners, and 
 sent to the comptroller's ofiice, where it was audited, and a war- 
 rant for its amount was signed by the comptroller and subse- 
 quently countersigned by the mayor 
 
 Upon the trial Davidson was called as a witness for the 
 People, and was asked : " Was that bill that you first saw, the 
 blue paper, made out by you ? A. Yes, sir. 
 
 Q. "Were the goods ever furnished by you ? A . No, sir." 
 * .-k * * * * * * * 
 
 On cross-examination, the witness was asked : Q. " Did you, 
 at the time, agree to furnish the materials included in the esti- 
 mate for this court house building ? A. Yes, sir. 
 
 Q. At that time did you say to Mr. Genet, in words or in 
 
 * Compare to the contrary, Moody v. Kowell, p. 233 of this volume. 
 
606 . Abbott's Select Cases on Examining Witnesses. 
 
 People, ex rel. Phelps v. Oyer and Terminer, 83 N. Y., 436. 
 
 substance, that you could not furnish the materials unless the 
 price of them was paid at the time of delivery ? A. I did. 
 
 Q. This bill was then made out in this form, and delivered 
 to Mr. Genet for the purpose of enabling him to obtain the 
 money and pay for the materials which you had agreed tO' 
 furnish ? 
 
 Plaintiff's Counsel : I object to that question as leading, for 
 one thing ; and asking for an inference or conclusion from this 
 witness ; so far as we are concerned, we have simply questioned 
 him as to the furnishing these goods, and nothing else ; I have 
 no objections to the witness being asked to state everything that 
 occurred, but do object to the witness being called upon to ratify 
 the testimony of the counsel. 
 
 The Court : Is not the proper course to allow him to go on 
 and state what was said and done, and then it is for the jury to 
 infer what the character of the transaction was ? 
 
 Defendant's Counsel : This is on the cross-examination. 
 
 The Court : But this is a new matter, I think. 
 
 Plaintiff's Counsel : The whole of this examination is en- 
 tirely new matter. 
 
 The Court : It would not be admissible to allow the wit- 
 ness to put himself in the place of the jmy and give them the 
 result of the negotiation. It would still be an objectionable cir- 
 cumstance brought into the case. 
 
 Defendant's Counsel : The counsel is mistaken in supposing 
 that my question called for a declaration from the witness with 
 regard to the purpose and intent of Mr. Genet ; I was asking 
 simply in regard to his own motive and purpose ; I had sup- 
 posed the rule to be where fraud was charged, and fraudulent 
 intent and purpose were charged, it was competent to ask the 
 witness in regard to his own emotion and intention. 
 
 The Court : That, I think, is not the inquiry. I think the 
 witness should be asked to go on and relate what was done and 
 said between himself and the defendant concerning this trans- 
 action, and if you desire to follow it by a general question as. 
 to intent, that is a matter to be put in afterwards. 
 
 Q. Was this bill prepared and furnished by you to Mr. 
 Genet for the purpose, in your own mind, to enable him to raise 
 
VIII. Cross-ixaminatloii. (2) Limits of Strict Cross. 607 
 
 People, ex rel. Phelps v. Oyer and Terminer, 83 N. Y., 436. 
 
 tlie money to pay for the materials whicli you agreed to f urnisli 
 mentioned in the bill ? 
 
 Objected to as leading, and as new matter, and as asking for 
 the inference of the witness from what actually occurred, which 
 is for the jury to infer. 
 
 The Court : I don't think that is proper. I think the wit- 
 ness must go on and state what was said and done between him- 
 self and the defendant about the bill, and the purpose for which 
 it was made, and his intent in making it. Exception taken. 
 
 Q. I see by the receipt, attached to the paper [bill] marked 
 A, that the money was received by Mr. Genet on the lYth of 
 July, 1871 i A. That I don't know anything about. 
 
 Q. You didn't see him from that day, July 17, 1871, until 
 you returned in September ? A. I think it was about the 1st of 
 September I saw him. 
 
 Q. Did he then offer you this money? A. He said he 
 would produce the money, or bring it, and I could deliver the 
 goods. 
 
 Q. Then, in substance, he asked for the delivery of the 
 goods, and averred his readiness to pay the money ? 
 
 Plaintifi's Counsel : I object to this style of examination as 
 utterly improper. 
 
 Court : I think it is for the jury to draw the inference. 
 
 Defendant's Counsel : Do you rule that I am not entitled on 
 this subject to leading questions ( Court: Yes; the witness 
 should state facts. Exception taken. 
 
 The Court : I think the witness shou.ld be asked what the 
 motive was. If the evidence is not satisfactory upon this ques- 
 tion, it may develop the necessity for putting another question. 
 
 Defendant's Counsel : I understand your honor to sustain 
 the objection." 
 
 The Court : Substantially, for the present. Exception taken." 
 
 The Court of Oyer and Terminer convicted defendant. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Bkady, J. [on this point said] : Leading questions are ad- 
 mitted on cross-examination, in which much larger powers are 
 given to counsel than on the original examination. But upon 
 
608 Abbott's Select Cases on Examining Witnesses. 
 
 People, ex rel. Phelps v. Oyer and Terminer, 83 N. Y., 436. 
 
 cross-examination, a leading question, in respect to new matter, 
 is objectionable, altbougli the subject is within the discretion of 
 the presiding judge. (Harrison v. Eowan, 3 Wash. C. C. Eep., 
 580 ; EUmaker v. Buckley, 16 Serg. & Eawle, 7T.) In the 
 latter case, Gibson, Ch. J., dissented from the doctrine broached 
 in Phillips' evidence, that the cross-examination continues 
 through all stages of the cause, and secures the right to ask lead- 
 ing questions in regard to new matter. The Supreme Court of 
 the United States has declared that the right does not exist. 
 (The Philadelphia and Trenton R. R. Co., v. Stimpson, 14 Pet., 
 448.) A party cannot cross-examine the plaintiff's witnesses as 
 to new matter, in oi-der to introduce his defence untrammeled by 
 the rules of the direct examination. (Castor v. Brovington, 2 
 Watts & Serg., 505 ; Floyd v. Bovard, 6 id., 75.) See, also, 1 
 Greenl. Ev., §445, in which it is stated that this rule is consid- 
 ered to be well established. The learned authors of Cowen & 
 Hill's Notes on Phillips' Evidence (see vol. 2, p. 730, n. 511) 
 defend Mr. Phillips from the criticism of Gibson, Ch. J., and 
 concede that the text of Phillips does not assert the right to ask 
 leading questions on cross-examination to sustain new matfer of 
 defence, and the case of Harrison v. Eowan, holding that there 
 is no such privilege, is cited in the note with approbation. In 
 Jackson v. Son (2 Caines, 178), it was held that the cross-examina- 
 tion of a witness in such a manner as to call forth new matter; 
 made him the witness of the party cross-examining as to it, and ' 
 this doctrine was approved in The People v. Moore (15 Wend., 
 423). It was said, prior to the last case cited, " there is an essen- 
 tial difference between a direct examination and a cross-examina- 
 tion ; and the court ought not, except in peculiar cases, to permit 
 the former to assume the character of the latter. (Per Makct, J., 
 in the People v. Mather, 4 Wend., 248). But in conclusion, it 
 must be said, that the propriety of putting leading questions is a 
 matter of discretion. This is, indeed, an elementary principle 
 of evidence. 
 
 The witness, it must be observed, was not prevented by the 
 ruling complained of from stating any facts, but the mode of ob- 
 taining such facts was designated. There is nothing, therefore, 
 in the exception considered. 
 
VIII. Cross-examination. (2) Limits of Strict Cross. 609 
 Note on Recent Cases on Limits of Cross-examination. 
 
 The Court of Appeals affirmed the judgment. 
 
 Finch, J., said : Upon the cross-examination of Davidson, the 
 ■defendant's counsel, while seeking to elicit new matter consti- 
 tuting an element of the intended defence, claimed the right to 
 "put leading questions, which was denied by the court. The rule 
 in such case was very fully and ably discussed in the opinion of 
 Judge Brady at General Term and the authorities cited. (Har- 
 rison V. Rowan, 3 Wash. C. C. 580 ; EUmaker v. Buckley, 16 
 Serg. & E., 7T ; Phil. & T. E. E. Co. v. Stimpson, 14 Pet. 448 ; 
 Castor V. Bavington, 2 Watts & Serg., 505 ; Floyd v. Bovard, 6 
 Watts & Serg., 75 ; Jackson v. Son, 2 Caines, 178 ; People v. 
 Moore, 15 Wend., 419.) The conclusion reached, that such 
 3"ight does not exist, meets our approval. A different rule would 
 enable a party to develop his defence untramineled by the rules 
 which govern a direct examination, and give him an advantage 
 for which we can see no just reason. As to the new matter the 
 witness becomes his own, and in substance and effect the cross- 
 examination ceases. That is properly such only while it is 
 ■directed to the evidence given in behalf of the adversary. When 
 it passes beyond that it becomes the direct and affirmative evi- 
 dence of the party, and should be subjected to the appropriate 
 restraints. There is no reason in the nature of. the case, why a 
 direct examination should be guarded against the evil and danger 
 resulting from leading questions which does not apply to an 
 effort upon cross-examination to introduce a new and affirmative 
 defence. We see no error in the ruling of the court in this 
 respect. 
 
 Is^OTE ON EECENT CASES ON LIMITS OF CEOSS- 
 EXAMINATION. 
 
 Alabama : Huntsville, etc., E. Co. v. Corpening, Ala., 1893, 12 Southern 
 Eep., 395 (error cannot be predicated on allowing- cross-examination as to 
 matters not referred to in cliief ; since it is entirely within the discretion 
 of the trial court to allo-w it). California: People v. Deegan, 88 Cal., 603 ; 
 .s. c, 36 Pacific Rep., 500 (it is not error, -where a witness testified in chief 
 only as to the time of his meeting with certain persons, to refuse to allow 
 him to be cross-examined as to what conversation he had -with them on 
 such occasion). Watrous v. Cunningham, 71 Cal., 30; s. c, 11 Pacific 
 
610 Abbott's Skleot Cases on Examining Witnesses. 
 
 Note on Recent Cases on Limits of Cross-examination. 
 
 Rep., 811 (where a witness testifies in chief as to a part of a conversation 
 the whole may be brouglit out on cross-examination). People v. Dixon, 
 94 Cal., 255; s. c, 29 Pacific Rep., 504 (where a witness testified in chief 
 that defendant had induced him to leave the country so that he might not 
 testify against him, it was held error not to allow the witness to be asked 
 if the reason why he left was not on account of his father). McFaddeh v. 
 Santa Ana, etc., R. Co., 87 Cal., 464 ; s. c, 25 Pacific Eep., 681 (a plaintiff 
 in an action for personal injuries, who has testified as to her pain and 
 suffei'ing, may be asked on cross-examination as to whether she called in 
 a physician). Colorado: Tourtelotte t;. Brown, 1 Colo. App., 408 ; s. c. , 
 29 Pacific Rep., 130 (it is an abuse of discretion for the trial court to allow 
 a witness to be cross-examined generally as to matters not embraced in 
 chief and thus deprive the party who called the witness o"f the I'ight to 
 cross-examination as to such matters). Florida: Adams v. State,28 Fla.,511;. 
 s. c, 10 Southern Rep., 106 (a party has no right to cross-examine a wit- 
 ness except as to facts and circumstances connected with his direct ex- 
 amination ; if he wishes to examine the witness as to other matters he 
 must do so by making the witness [his own) ; J. P. Tischler v. Apple, 30 
 Fla., 132 ; s. c, 11 Southern Rep., 278. Illinois: Hansen v. Miller, 145 111., 
 538 ; s. c, 32 Northeast Rep,, 548 (a party litigant like any other witness 
 cannot be cross-examined as to matters as to which he has not testified in 
 chief). Poppers v. Peterson, 43 111. App., 571 (where a witness testified that 
 lie signed an instrument without reading it, it was held proper upon cross- 
 examination to inquire as to his previous business experience). Indiana: 
 Chandler v. Beall, 183 Ind., 596 ; s. c, 33 Northeast Rep., 597 (it is not error 
 not to permit a witness to be cross examined as to matters not pertinent 
 to the direct examination). Kansas: City of Atchison v. Rose, 43 Kan., 
 605 ; s. c, 28 Pacific Rep., 561 (it is not error not to permit cross-examina- 
 tion as to matters not relevant to the examination in chief). Louisana : 
 State V. "Walsh, 44 La. Ann., 1133 ; s. c, 11 Southern Rep., 811 (a defend- 
 ant in a criminal case may cross-examine a witness lor the State as to anj' 
 matter material to his defense, but such cross-examination should not 
 be so extended as to allow the introduction of testimony without having 
 laid a foundation required by the rules of evidence). State v. Johnson, 41 
 La. Ann. 1076; s. c, 6 Southern Rep., 802 (where a witness for one accused 
 of murder has been examined as to the physical power and prowess of the 
 deceased, questions by the State on his cross-examination as to like quali- 
 ties of the accused, one germane and responsive to the subject matter of 
 the examination in chief). State v. MoFarlain, 42 La. Ann., 803; s. c, 8 
 Southern Rep., 600 (to prove an alibi a witness for defendant testified that 
 defendant crossed a ferry at a certain time and did not return until the 
 following morning. Held that it was proper cross-examination to question 
 the witness as to other ferries, distances, etc.). Michigan : Hay v. Reed, 
 85 Mich., 296 ; s. c, 48 Northwest Rep., 507 (where plaintiff is offered as a 
 witness any cross-examination affecting the merits of the cause is admis- 
 sible, whether the particular transaction sought to be shown by such cross- 
 examination has been referred to on the direct exammation or not) ; S. P. 
 
VIII. Cross-examination. (2) Limits of Strict Cross. 611 
 
 Note on Recent Cases on Limits of Cross-examination. 
 
 Ireland v. Cincinnati, etc., R. Co., 79 Mich., 163 ; s. c, 44 Nortiiwest Rep., 
 426; People I). Barker, 60 Mich., 379. Piokard v. Bryant, 92 Mich., 430 j 
 s. c, 52 Northwest. Rep., 788 (where defendant attached a sale of stock by 
 a flrni as fraudulent and plaintiff examined a member as to the sale and 
 change of possession, on cross-examination the witness may be interrogated 
 as to the various dealings between the firm and its members; defendant 
 is not required to show such facts by his own witnesses). Missouri: State 
 V. McKenzie, 102 Mo., 630 ; s. c, 15 Southwest Rep., 149 (upon a trial for 
 murder which took place outside of a saloon, one of the defendants, as a 
 witness testified in chief that he did not strike the deceased with a cane. 
 Held that it was proper to allow the witness to be cross-examined as to 
 whether he was not leaning on a cane inside of the saloon before the homi- 
 cide, tho' on the direct examination he had only testified as to what 
 occurred outside of the saloon). Walter v. Hoeffner, 51 Mo. App., 46 (a 
 witness called by one party to prove any fact may be cross-examined as to 
 the whole case). North Carolina: State v. Allen, 107 N. C, 805 ; s. c, 11 
 Southeast Rep., 1016 (cross-examination is not limited to matters brought 
 out on the direct.) Pennsylvania: Bohen v. Avoca Borough, 154 Pa. St., 
 404; s. c, 36 Atlantic Rep., 604 (in an action against a municipality for 
 injury to property from an imperfect gutter, where a witness for defend- 
 ant testified in chief as to the grade and condition of the gutter, and it 
 might also fairly be inferred from his testimony that the work was done 
 under the direction of the municipality, held that it was proper to ask 
 upon cross-examination by whom the work was done). McNeal v. Pitts- 
 burgh, etc., R. Co., 181 Pa. St., 184; s. c, 18 Atlantic Rep., 1036 (where 
 the plaintiff's witnesses testified as to the circumstances of a railway acci- 
 dent, it was held not error to permit defendant to oross-examitie them as 
 to the presence and gestures of the track foreman immediately preceding 
 the accident, though not referred to on the examination in chief). Boyd 
 V. Conshohocken Worsted Mills, 149 Pa. St., 368; s. c, 34 Atlantic Rep., 
 387 (in an action against a corporation for dividends, a witness for plaintiff 
 testified in chief as to a demand for ten dividends, held that it was proper 
 to exclude cross-examination as to a transaction which occurred several 
 years before, though it might tend to justify a refusal of the demand ; 
 such matter should be proved as a part of the defense). United States: 
 Home Benefit Asso. v. Sargent, 143 U. S., 691 ; s. c, 13 Supm. Ct., 883 (it 
 is competent to cross-examine as to other parts of the same conversation 
 which was not brought out on the direct examination). 
 
'612 Abbott's Select Cases on Examining "Witnesses. 
 Pennock v. White, 12 Weekly Dig., 516. 
 
 PENNOGK V. WHITE. 
 
 J\^evj York Court of Appeals, 188 J. 
 
 [Reported in 12 Weekly Dig., 516 ; also, 85 N. Y., 654, without opinion.] 
 
 It seems that a witness called to testify to the signature to articles of 
 co-partnership as showing the existence of partnership at a specified 
 time, may be cross-examined as to its dissolution after that time ; 
 for as the articles raise a presumption of continuance, the same 
 witness may be used to show matter in rebuttal of such presumption. 
 
 Erroneous exclusion of testimony is cured if other testimony subsequently 
 brings out the same fact beyond controversy, so that the exclusion 
 could not have affected the result. If an objectionable question is 
 answered before objection made, and no m.otion to strike out is made, 
 the reception of the evidence is not error. 
 
 A witness having been in the employment of a firm can testify directly as 
 to who composed the firm. An objection that the evidence is 
 secondary is not sufficient in the absence of any objection that the 
 question called for a conclusion. 
 
 If after a witness has testified to a fact it appears that he testified from 
 information and not from knowledge, the testimony may be stricken 
 out as hearsay. 
 
 Proper form of question as to who was the company. 
 
 Plaintiffs sued defendants as copartners, doing business under 
 the name of the Lawrence Brewing Company, to recover a 
 balance due on sale of bops. 
 
 Defendant White was alone served, and defended on the 
 ground of an alleged dissolution of the copartnership prior to 
 the sale, of which plaintiffs had notice. 
 
 Upon the trial, Charles J. Miller was called by plaintiffs, was 
 shown the articles of copartnership between the defendants, and 
 i;estified : " That is my signature, as witness, I saw Mr. Wm. H. 
 Nichols sign that, I believe * * * I know that I was asked 
 by him to witness his signature." 
 
 ***** .x- * 
 
 On cross-examination, after the witness had testified that he 
 was bookkeeper for Wm. H. Nichols and had charge of liis cash 
 book, he was asked : Q. " Did you have charge as late as 
 March, 18Y2? Do you know of any checks being given or 
 made by Wm. K. Nichols, payable to or delivered to Pennock & 
 Andrews [plaintiffs] or either of said firm 1 
 
YHI. Cross-examination. (3) Door Opened by Direct. 613' 
 Pennook v. White, 13 Weekly Dig., 516. 
 
 Plaintiff's counsel objects to the question on the ground that 
 this witness is called only to prove the signature to a written 
 instrument, and it is not competent to cross-examine him 
 generally. 
 
 Objection sustained. Exception taken." 
 
 [The defendants' articles of copartnership provided for no 
 termination other than by one year's notice by one to the other. 
 The transaction which was the basis of the suit had occurred lesSi 
 than one year after the commencement of the partnership.] 
 
 Pennock, one of the plaintiffs, was asked on cross-examination ; 
 
 Q. " "What money have you received from the Lawrence 
 Brewing Company [the name under which defendants had done 
 business] outside of the $600, or by their direction, or from any 
 one through them ? A. To apply on the account, I have 
 received only the $600." 
 
 Plaintiffs counsel objected to the question as indefinite, irrele- 
 vant and immaterial. The referee sustained the objection.. 
 Exception taken. 
 
 Edward A. Nichols was called by plaintiff, and after testifying^ 
 that he was employed by the Lawrence Brewing Company in 
 1871, was asked : Q. Who composed it in November, 18T1. 
 
 Objected to by the defendant as calling for secondary evidence. 
 Objection overruled and exception taken. 
 
 A. "William H. Nichols and Andrew G. White. 
 
 Horace B. King called by defendant, testified that he had 
 had charge of the defendant's brewery ; on cross-examination, 
 as to the dissolution of the partnership, he testified as follows : 
 
 "By Plaintiff's Counsel: Q. What sources of information 
 did you have as to the dissolution of the firm ? A. Both writ- 
 ten and oral declarations of both parties that the firm was dis- 
 solved ; that was all the source of information that I had. 
 
 Q. " To what do you refer when you speak of written sources- 
 of information ? A. I refer to a letter . received by me from A. 
 Gr. White, and a letter received from Wm. H. Nichols by 
 me ; I had interview one day with Wm. H. Nichols ; I think 
 same day I received letter, lith Oct. , 'Yl ; it might have been 
 
614 Abbott's Select Cases on Examining "Witnesses. 
 
 Pennock v. "White, 13 Weekly Dig., 516. 
 
 the next day or the next ; also with Mr. White, within a very 
 few days after 14th October. 
 
 Plaintiff's counsel moved to strike out the testimony in chief 
 of this witness as to the dissolution of the firm on the grounds : 
 1st, that it is secondary ; 2d, that it is hearsay ; 3d, that it ap- 
 pears that it is founded upon written documents, which are the 
 best evidence. 
 
 Motion denied. Plaintiff's counsel excepted." 
 
 At the next sitting the referee announced that he had recon- 
 sidered his decision on the motion made yesterday by plaintiff 
 to strike out the testimony of H. B. King, that the partnership 
 was dissolved, and now decided to grant the motion striking out 
 the testimony of H. B. King that the partnership was dissolved. 
 
 Exception taken. 
 
 William H. Nichols, the co-partner, who had not been served, 
 was called by defendant and asked : " Q. Who was the Lawrence 
 Brewing Company on the 6th day of January, 1872 ? 
 
 Objection by plaintiff as immaterial, irrelevant and calling for 
 conclusion of law. Objection sustained. Exception taken. " 
 
 The witness was subsequently asked : " Q. Was defendant, 
 Andrew G. White, one of the firm of the Lawrence Brewing 
 Company on the 1st day of January, 1872, or any date subse- 
 quent ? 
 
 Objection by plaintiff's counsel as not best evidence ; 2d, Con- 
 clusion of law. Objection sustained. Exception taken. 
 
 The witness also testified : " I wrote a letter to plaintiff in 
 October, '71 ; had a copy of the letter with me— a letter book ; 
 don't remember whether I sent the letter to plaintiff by mail or 
 whether I sent it over to his office ; don't know that I had any 
 conversation with him in regard to his receiving it. 
 
 Copy letter offered in evidence by defendant, dated Boston, 
 October 18, 1871, addressed to plaintiff, signed by William H. 
 Nichols." 
 
 Plaintiff admitted that he received notice to produce letter 
 dated October 18, 1871. Plaintiff objected to the admission of 
 the evidence on the ground : 1st, That it is not the best evi- 
 dence ; 2d, That there is no evidence that plaintiff ever received 
 
YIII. Cross-examination. (3) Door Opened by Direct. 615 
 
 Pennock v. "White, 12 Weekly Dig., 516. 
 
 it ; it is not brought home to his knowledge in any way. The ob- 
 jection sustained and exception taken. 
 
 The witness also testified : " I went to Lawrence, October 
 14th ; saw Mr. Jewett ; told him that I had bought out Mr. 
 White. 
 
 Plaintiff objected to anything said between Mr. Jewett and 
 witness not in presence of plaintiff. 
 
 Defendant offered to show that this conversation was a revoca- 
 tion of the power of attorney to Jewett. 
 
 Objection sustained. Exception taken." 
 
 He was also asked : Q. Did you take possession of the brew- 
 ery on that day ''. Did Mr. King leave the brewery ? Both 
 questions were excluded — the first as calling for a conclusion, the 
 latter as immaterial. 
 
 The Referee rendered judgment for plaintiff. 
 
 The Geneml Term of the Suj)re?ne Court affirmed the judg- 
 ment, but did not pass on the rulings on admission of evidence. 
 
 The Court of Apj>eals atiirmed the judgment. 
 
 MiLLEE, J. [after disj)osing of a hannless error] : It is also 
 urged that there was error in excluding the question put to the 
 witness, Charles J. Miller : •' Did you have charge as late as 
 March, 1872? Do you know of any checks being given or made 
 by Wm. H. Nichols, payable to or delivered to Pennock & An- 
 drews, or either of said firm?" The question was objected to 
 by plaintiff's counsel, on the ground that this witness is called 
 only to prove the signature to a written instrument, and it is not 
 competent to cross-examine him generally. The objection was 
 sustained and an exception taken. The witness had testified to 
 the signature of William H. Nichols to the articles of co-part- 
 nership, and for the purpose of showing that the dissolution was 
 known to the plaintiffs, the defendant undertook to prove the re- 
 ceipt of checks by plaintiff drawn by William H. Nichols indi- 
 vidually. These articles would show when the partnership com- 
 menced, and raise a presumption of its continuance at the time 
 of the dealings in question in January, 1872. To rebut such 
 
616 Abbott's Select Cases on Examining Witnesses. 
 
 Pennock v. White, 12 Weekly Dig. , 516. 
 
 presumption it was competent for the defendant to show the 
 plaintiff's knowledge by the same witness whose testimony- 
 created the presumption, and he was not incompetent to show 
 that fact because he was called merely as a witness to prove a 
 signature to the written instrument. It appears, however, that 
 the proof offered was afterwards fully brought out by other tes- 
 timony, so that there was no controversy on the subject, and 
 hence the rejection of the evidence offered would not have 
 affected the result. 
 
 The question put to Pennock, one of the plaintiffs, as to what 
 money had been received from " The Lawrence Brewing Com- 
 pany," outside of the $600, or by their direction, or from any 
 one through them, was answered before any objection was made, 
 and the answer was allowed to stand without a.ny motion tO' 
 strike out the same. As no further question was put on the sub- 
 ject after the objection, or offer made, it cannot be said that any 
 evidence offered was improperly excluded. It may also be re- 
 marked that the defence of payment was not interposed, nor any 
 such issue made upon the trial. The finding of facts and the 
 conclusions of the referee, we think, are sustained by sufficient 
 evidence, and we are unable to discover any error in this re- 
 spect. 
 
 The question put to the witness as to who composed the part- 
 nership in November, 1871, was properly allowed. The witness 
 had been in the employment of the company, and could speak 
 from his own knowledge on the subject, and the only objection 
 made was that the evidence was secondary, and it was not 
 claimed that it called for a conclusion. 
 
 There was no error in the decision of the referee in striking 
 out the testimony of King, to the effect that the partnership 
 was dissolved. It appears that he testified from information de- 
 rived from oral and written communications with each of the 
 two defendants separately, and it was therefore hearsay and 
 secondary evidence, and hence was incompetent. 
 
 The decision of the referee in regard to the questions put to 
 William H. Nichols, as to who the company was in 1872, was 
 objectionable, because it called for a conclusion of law or an 
 opinion, and not for a fact within the knowledge of the witness. 
 
VIIT. Cross-examination. (3) Door Opened by Direct. 617 
 
 Platner v. Platnev, 78 N. Y., 90. 
 
 In this respect the questions difEer from the question put to another 
 witness of a similar character, which was properly allowed. The 
 allowance of these questions was also to a great extent a matter 
 of discretion with the referee, the exercise of which is not the 
 subject of review. 
 
 The copy letter, purporting to be from defendant, William 
 H. Nichols, to the plaintiffs, and to be signed by said defendant, 
 was properly excluded, as there was no evidence that it was ever 
 recO'ived. 
 
 It was also incompetent to prove a conversation between a 
 witness and a third party in the absence of the plaintiff. Nor 
 was it proper to show a revocation of a power of attorney, with- 
 out also connecting with it a notice to the plaintiff, proof of 
 which was not offered. The revocation of such power by the 
 defendant. White, could not be shown by the conversation 
 offered to be proved between William H. Nichols and Jewett. 
 
 The questions put as to William H. Nicliols taking possession 
 of the brewery, and as to Mr. King leaving the brewery, are 
 liable to the same objection as other testimony of a similar char- 
 acter, which has already been the subject of consideration, nor 
 does such evidence appear to have been material. 
 
 No other objections are urged which demand especial consider- 
 ation, and as no error is manifest, the judgment should be 
 affirmed. 
 
 PLATNER V. PLATNEE. 
 
 Nevj Torlc Court of Appeals, 1879. < 
 
 [Reported 78 N. Y., 90.] 
 
 Whatever testimony will assist in knowing which party speaks the truth 
 as to the issue in a conflict of evidence, is relevant. 
 
 On a question as to whether a hushand had authority to act for his wife 
 in the transaction in question, evidence of his prior and continued 
 mode of dealing with her property and her knowledge and acquies- 
 cence, is relevant. 
 
 Whether the declarations of an alleged agent shall be received before 
 proof of the agency is a question of the order of proof in the discre- 
 tion of the trial judge. 
 
 Evidence admitted, either without objection, or properly after objection, 
 which for any reason should not be considered by the jury or affect 
 
618 Abbott's Select Cases on Examining Witnesses. 
 
 Platner v. Platner, 78 N. Y., 90. 
 
 the result, is not necessarily to be stricken out, but may be retained 
 in the discretion of the court; the remedy of the party being to ask 
 for instructions to the jury to disregard it. 
 
 The office of an objection is to stop an answer. When the question is 
 proper and has been put, and the witness answers it with proper 
 and responsive matter, and of his own head adds something else irrel- 
 evant, an objection does not check it. The improper part of the 
 answer is to be met, and its effect taken away, by motion to strike out, 
 or request for instruction to the jury that they disregard it. 
 
 The rule, that where a statement has been proved, the party has a right 
 to prove all that was said by the speaker at the same time and at the 
 same conversation, that will in any way qualify or explain the state- 
 ment — applies to declarations of a third person not a party to the 
 action. 
 
 Action on a promissory note. 
 
 The defence was that the note was given as a memorandum 
 or security to the plaintiff, a married woman at the time, when 
 her husband, as her agent (being himself insolvent), procured 
 the defendants to act for her in the purchase of government 
 bonds, which the husband paid for with the wife's moneys, and 
 left in the defendants' possession on their giving the note in 
 question ; and that subsequently they surrendered the bonds to 
 the husband on his representation that he would deliver them 
 to his wife and cause the note to be destroyed, and that the bonds 
 were accordingly delivered to plaintiff. 
 
 Upon the trial, George Platner, the defendant, was called as a 
 witness in his own behalf and was asked by defendant's counsel : 
 
 " Q. Do you remember your Uncle Stephen coming to your 
 place in the fall of '66 in regard to any transaction ? A. Yes, sir. 
 
 Q. Who was present at the time ? A. My brother Henry, and 
 it was at our house ; before the hay barn. 
 
 Q. Was there anyone present except you three ? A. No, sir. 
 
 Q. What took place at that time ? 
 
 Objected to as calling for the declaration of a third person who 
 had not authority to act for the plaintiff ; and also it is a violation 
 of the spirit of Code Proc, § 399. Overruled and exception 
 taken." 
 
 Thereupon the witness was allowed to state the conversation 
 between himself and the uncle (Stephen) as to the intent to 
 purchase bonds, and the subsequent conversation between the 
 
VIII. Cross-examination. (3) Door Opened by Direct. 619 
 
 Platner v. Platner, 78 N. Y., 80. 
 
 two and the bank cashier in pursuance of that purpose ; but 
 nothing was brought out indicating that Stephen acted for 
 his wife (plaintiff) in the transaction. 
 
 George Platner further testified on direct examination : 
 
 Q. " Did you ever have a conversation with Dr. Platner in the 
 year '56 in relation to the Ooncklin note, so-called ? 
 
 Objected to as not within the ruling. Counsel for defendants 
 proposed to show that Mr. Platner, while in this embarrassed 
 condition, held a three thousand dollar note against Ooncklin ; 
 that he requested defendants to take that note and go to Oonck- 
 lin, and take from him a new note and collect the note for him, 
 and that the note was subsequently collected and paid over to 
 the plaintiff. 
 
 The Oourt : 1 must allow the evidence as tending to estab- 
 lish how he has been assuming to act for the wife, and how far 
 it has been recognized and ratified by her. 
 
 Plaintiff excepted on the ground that the evidence was hear- 
 say and immaterial. 
 
 Acts and declarations of the husband as to the Ooncklin note 
 were then testified to ; but no evidence to connect the plaintiff 
 therewith was given. 
 
 Plaintiff moved to strike all the evidence as to the Ooncklin 
 note as hearsay, irrelevant, immaterial and incompetent ; the 
 motion was entertained as seasonably made, but denied. Ex- 
 ception taken." 
 
 At Circuit, the defendants recovered. 
 
 The Supreme Court at General Term aflSrmed the judgment. 
 
 Learned, P. J., saying : It is urged by the defendants that in 
 actions based on fraud, similar fraudulent transactions may be 
 shown. Where that rule applies it is only to establish intent. 
 The question here is simply whether the plaintiff's husband was 
 her agent. Now previous similar transactions could be material 
 only as tending to show that the plaintiff had recognized his 
 agency, and therefore the defendant might rely thereon. 
 
 It may be that from the surrounding circumstances other than 
 this Ooncklin transaction (and similar cases not shown to have 
 come to her knowledge) there is abundance of evidence to show 
 
620 Abbott's Select Oases on Examining Witnesses. 
 
 Platner v. Platner, 78 N. Y., 90. 
 
 that the plaintiff allowed her husband to do as he pleased. 
 She says herself that when she had business to attend to, she left 
 him to see to it for her ; that she would rather trust to him than 
 to herself. And it might be, too, that the jury would find that 
 the whole transaction was really one in which no one but her 
 husband had any interest. 
 
 The learned justice who tried the case took this view of the 
 evidence, which had been previously stated. He admitted it as 
 tending to show how far the acts of the husband had been ratified 
 and recognized by the plaintiff. And, indeed, the offer as to the 
 Concklin note was to show that the avails had been subsequently 
 paid to the plaintiff. 
 
 It cannot be said, therefore, when the evidence was offered, 
 that it might not be, or be made material. The order of 
 proof is a matter of discretion, and when the motion was made 
 to strike out the evidence as to the Concklin note, the defend- 
 ants had not finished their case. At the close of the whole evi- 
 dence no motion was made to strike out this or any evidence on 
 any ground. In his charge the" learned justice referred to the 
 previous transactions between the plaintiff's husband and. the 
 defendants. And no exception was made, nor was there any 
 request made that the learned justice should call the attention of 
 the jury to any alleged failure of the plaintiff to recognize her 
 husband's acts, or some of them. 
 
 If the plaintiff's counsel had thought that in regard to any of 
 these acts the plaintiff had not been connected with them by the 
 evidence, he should have called attention to this. He should 
 have insisted that the defendants had not given the evidence 
 which was needed to make the evidence as to the Concklin note, 
 or as to some other of the transactions. 
 
 As to some of the other transactions at least, there was evi- 
 dence that the plaintiff had knowledge of her husband's acts 
 which assumed to be on her behalf. 
 
 Judgment should be affirmed with costs. 
 
 7%e Court of Appeals affirmed the judgment. 
 FoLGEE, J.: Though the objections to evidence were stated 
 in different words, they were substantially that it was not rele- 
 
VIII. Cross-examination. (3) Door Opened \\j Direct. 621 
 
 Plainer v. Platuer, 78 N. Y., 90. 
 
 ■vant. Now the meaning of the word relevant as applied to 
 the testimony, is that it directly toiiches 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 reliever, 
 which means to assist. Whatever testimony was offered, 
 which would assist in knowing which party spoke the truth of 
 the issue, was relevant ; and when to admit it did not override 
 ■other formal rules of evidence it ought to have been taken. 
 
 It is well, then, to see what was the issue raised by the plead- 
 ings. The complaint is upon a promissory note made by the 
 ■defendants, jointly and severally, one day after date, to the 
 plaintiff or bearer for $3,569.31 with interest for value received. 
 The answer alleges certain circumstances as going before and 
 leading to the making of the note ; sets up that the note was 
 given for certain United States bonds, and that the amount of 
 the one was the cost of the other ; that those bonds were handed 
 to the defendants by the plaintiff's husband, when they made 
 and delivered the note to him ; and that afterwards the bonds 
 were handed back again to him upon a promise given that the 
 note should be delivered up to them or destroyed. The allega- 
 tion of those preceding circumstances was to tender an issue that 
 by reason of the pecuniary embarrassment of the plaintiff's hus- 
 band, and the rumors of her connection with his business affairs, 
 it was prudent for the plaintiff in general that even investments 
 made with her own money should not be in her name, but 
 in the name of the defendants or one of them ; and that in 
 pursuance thereof tliese bonds were bought with her money in 
 the name of one of the defendants, and this note given for the 
 amount of the cost and expense thereof, and that to give color to 
 the matter one of the defendants went with the husband of the 
 plaintiff to make the purchase of the bonds in the name of that 
 defendant, but with the money of the plaintiff and for her use 
 and ownership. Apart from the allegation of the precedent 
 circumstances, the answer substantially avers what was the con- 
 sideration for the note, and that the note was in effect paid by a 
 return of the same consideration. 
 
 The testimony shows that the reliance of the defendants to 
 prove the preceding circumstances above-named and the pay- 
 
622 Abbott's Select Oases on Examining Witnesses. 
 
 Platner v. Plainer, 78 N. Y., 90. 
 
 ment was necessarily upon facts which took place between them 
 and the husband of the plaintiff. The note was to the plaintiff 
 by its terms. It was to her or bearer, and thus negotiable. A 
 payment to any one, who produced the note to them as the bearer 
 of it, would have been a good discharge of the defendants from 
 their obligation. But when that took place which they claim 
 was in effect a payment of the note, it was not produced to them. 
 Hence it was that though negotiable and payable to any one 
 who was the bearer of it, they did not make a good payment of 
 it to the husband, he not having the note then in possession, 
 unless he had authority from the plaintiff to receive payment. 
 And as the transaction between them and the husband was not 
 technically a payment, but only in effect such, inasmuch as it 
 was only an exchange of public securities for the note, it was not 
 available against the plaintiff as a payment, unless her husband 
 had authority to deal generally in her affairs, and to accept for 
 her those bonds instead of money. 
 
 Thus it was material and proper for the defendants to prove 
 that he had such authority ; and any testimony was relevant 
 thereto, which went to show his prior and continued mode of 
 dealing with her securities and evidences of debt, and her knowl- 
 edge and acquiescence. The extent to which such testimony 
 should come in was in the discretion of the circuit judge. It 
 was also relevant to prove that the consideration of the note was 
 United States bonds. Had the allegation of the answer been to that 
 purport that the defendants gave this note for those bonds ; as a 
 purchase of them to become the property of the defendants, and 
 had such been the fact relied upon, it would have been enough 
 to have shown that they made and delivered the note, and in 
 exchange for it received the bonds. That was not the fact 
 averred in the answer, nor claimed on the trial. The claim was 
 that the bonds were bought for the plaintiff and with her money, 
 in fact for her ; but for prudential reasons in the name of a de- 
 fendant, that they were left with the defendants for keeping, and 
 the note taken, though evidence on its face of indebtedness, yet 
 really as a means of insuring a return of the bonds when called 
 for, or of obtaining a compensation if they were withheld And 
 the claim was that the return of the bonds was a carrying out of 
 
VIII. Cross-examination. (3) Door Opened by Direct. 623 
 
 Platner v. Platner, 78 N. Y., 90. 
 
 the long preceding understanding on which they were received, 
 and a discharge of the obligation of which the note was the 
 proof. Hence testimony of any precedent negotiation or trans- 
 action between the defendants and the plaintiif , or her authorized 
 agent, paving the way for or leading up to the formation of 
 such a bargain and to its consummation, was relevant, if not too 
 remote or disconnected. 
 
 It follows that testimony which assisted in making known the 
 truth upon this issue, was relevant, and if competent in itself, 
 and not in the face of other rules of evidence, ought to have 
 been admitted. 
 
 We may now take up seriatim the points made by the plaintiff 
 in this court. The first point made is that the testimony was il- 
 legally received, wherein one of the defendants sought to show 
 that the husband of the plaintiff asked him to go to Catskill to 
 get some government bonds in the name of that defendant, and 
 the accompanying conversation. The objections made at the 
 trial were, first, that it was the declaration of a third person, 
 who had no authority to act for the plaintiff ; second, that it was 
 in violation of the spirit of the 399th section of the Code,* the 
 husband having died before trial ; third, that it was irrelevant. 
 There was also a motion to strike it out as hearsay and incom- 
 petent. 
 
 The first objection was not well taken. True, there had not 
 yet been authority shown in the plaintiff's husband to act for her. 
 It is plain, however, from the record that the trial court knew 
 that it was needful that that should be shown before his declara- 
 tions were competent. It was an objection to the order of 
 proof, which is always in the discretion of the court. 
 
 It was not open to objection for any reason arising from the 
 provision of the 399th section. 
 
 "Was the testimony irrelevant ? By which is meant, in this 
 case, that the connection between the fact which it proves and 
 the fact in issue is too remote and conjectural. In determining 
 whether evidence is rele/ant, all the issues must be kept in 
 
 * The rule now embodied in a modified form in § 839 of the Code of 
 Civil Procedure, agaipst testimony of an interested person to a personal 
 transaction with deceased. 
 
624 Abbott's Select Cases on Examining "Witnesses. 
 
 Platner v. Platner, 78 N. Y., 90. 
 
 view, as it may be admissible as to one though not as to another. 
 Thus, here, if the only issue was one of which we have spoken, 
 that the defendants bought the plaintiff's bonds as their own, 
 and gave their note for the amount of the purchase, and after- 
 wards, it being then agreed that she take them in payment of 
 the note, they were handed over and the note discharged, the 
 evidence objected to might be irrelevant ; for it would not mat- 
 ter where, when or how the bonds were in the first instance got 
 by the plaintiff's husband. But the issue is that reasons existed 
 in the affairs of the husband which made it needful for him and 
 the plaintiff that her dealings should be veiled under the name 
 of the defendants or one of them, and that she desiring to 
 invest in these bonds, it was thought safer to do so in the name 
 of the defendants or one of them, they giving their note to her, 
 so as to make her secure. Then it is relevant to show what took 
 place by word or act of the plaintiff, or by authority from her, 
 which led the defendants to the act of giving the note and taking 
 the bonds into their safe-keeping. All the acts and declarations 
 of the husband are matter which touched the defendant George 
 Platner, and led him and his brother up to the making of the 
 note. They do not deny that they gave the note. They say 
 that it is not to be read merely as an evidence of indebtedness, 
 that it grew out of a state of circumstances by which they were 
 induced to give their obligation in that form, for an arranged 
 purpose, and having substantially carried out that purpose their 
 obligation is discharged. In such case, it is relevant to show 
 that the state of things existed out of which could naturally 
 grow such a transaction. The claim is of an arrangement by 
 which the investments of the plaintiff should be protected from 
 her husband's creditors, by being taken in the name of the de- 
 fendants. 
 
 Part of the testimony objected to was of acts to that end, of 
 which the witness was personally knowing. The other part of it 
 was of declarations at the time those acts were done ; the res 
 gestae therewith. That they took place sometime before the 
 giving of the note does not matter. They were as much con- 
 nected with that act as if it came in on the heel of them. It 
 was they that led the defendants to the making of the note, in 
 
YIII. Cross-examination. (3) Door Opened by Direct. 625 
 
 Platner v. Plainer, 78 N. Y., 90. 
 
 the absolute form of it, and which made the giving up of the 
 bonds by them afterwards a discharge of them from the note. 
 
 The second point of the appellant is that it was error to deny 
 the motion to strike out from that evidence testimony of decla- 
 rations of the husband. The ground taken was that it was hear- 
 say and incompetent. Of course, it was upon the defendants to 
 show that the husband was the agent of the plaintiff. After 
 that should be shown his declarations, when about the work of 
 the plaintiff, were not hearsay, but the same as if her declara- 
 tions. "Whether the declarations should be testified to before 
 his agency was proved was a matter for the discretion of the 
 trial court. It is hardly susceptible of contest, that before the 
 trial was over he was shown to be her agent to deal generally 
 in her affairs. Hence his declarations when part of the res 
 gestae were not hearsay, and if relevant were competent. We 
 have shown that they were relevant. 
 
 [^Rulings on some other points are here omittedJ] 
 
 The seventh point is that the testimony of George Platner, as 
 ■to a conversation between him and his uncle about the Concklin 
 note, should have been stricken out on motion thereto. The 
 testimony was allowed, on the motion that knowledge and 
 acquiescence would be brought home to the plaintiff. It may 
 be conceded that it was not so done. It may be conceded, also, 
 that when the motion to strike out was made, the defendants had 
 made an end of their evidence as to the ConckKn note. The 
 motion to strike out was then made. It was not renewed, nor 
 the matter again noticed. It should have been. " Evidence ad- 
 mitted either without objection, or properly on an objection, 
 which for any reason should not be considered by the jury or 
 affect the result, is not necessarily stricken out, but may be re- 
 tained in the discretion of the court, the remedy of the party 
 being to ask for instructions to the jury to disregard it. There 
 was no request to instruct the jury to disregard the evidence, and 
 no exceptions to the charge of the judge in respect to it, and the 
 weight to be given to it" (see opinion in MS. of Allen, J., in 
 Marks v. King [reported in note following this case] ). This is 
 conclusive against this point. 
 
 The eighth point is that the testimony of George Platner, that 
 
626 Abbott's Select Cases on Examining "Witnesses. 
 
 Platner v. Platner, 78 N. Y., 90. 
 
 his uncle said in 1858-1859 " he wanted to get his property out 
 of his hands as fast as he could," was illegally received. The ob- 
 jection was that it was hearsay, irrelevant, Immaterial and incom- 
 petent. It will be noticed here that the objection was not taken 
 to the question put by the defendant's counsel. The question 
 was proper and pertinent. Nor was the objection made until 
 the witness had given the answer. The answer had been uttered 
 without objection and was before the court and jury. Of what 
 avail was it then to object? The proper course was for the 
 plaintiff's counsel to have moved to strike out the part of the 
 answer deemed reprehensible. The question was proper. The 
 answer, let it be conceded, was improper. The office of an ob- 
 jection is to stop an answer. When the question is proper and 
 has been put, and the witness answers that with proper and re- 
 sponsive matter, and of his own head adds something else 
 irrelevant, an objection does not check it. The improper part 
 of the answer Is to be met, and its effect taken away by motion 
 to strike out, or request for instruction to the jury that they 
 disregard. (Farmers' Bank of "Washington Co. v. Cowan, 2 Abb- 
 Ct. App. Dec, 88.) Though the court sustain the objection, the 
 improper evidence is on the record. A motion matte to strike 
 out and granted remo"\es it therefrom. 
 
 The ninth point is that the plaintiff should have been allowed 
 to state, when she was on the stand as the witness, on her direct 
 examination resumed, all that her husband said in a conversation,. 
 as to the taking place of which she had been asked by the defend- 
 ants on her prior cross-examination. She was asked what was 
 her best impression about there being at the bottom of the note a 
 certain certificate. In reply she had said : I couldn't say ; when I 
 found the note I took and looked at it ; talked it over with him. The 
 question was then put : Did you and he say anything about there 
 being a certificate at the bottom ? She answered that she didn't 
 think that they did. She also said, upon being questioned, that 
 they talked some about the amount of the note ; but nothing 
 about it being dated back. On direct-examination resumed,, 
 plaintiff offered to show the whole of that conversation. It was 
 excluded, for the reason that the defendants had not gone into it,, 
 save to show in a negative way that it was not talked about. There 
 
VIII. Cross-excmiination. (3) Door Opened by Direct. 62T 
 
 Marks v. King, 64 N. Y., 638. 
 
 is a limit to the extent to wMcli a party may go in calling out 
 what was said by and to him in a conversation, parts of which 
 the other party has proven : (Eouse v. Whited,* 25 IST. Y., 170). In 
 the case just cited, the rule for that limit is adopted and followed 
 which is laid down in Prince v. Samo (7 Ad. & Ell., 627). The 
 rule is this : that where part of a conversation has been given in 
 evidence, any other or further part of that conversation may be 
 given in evidence in reply, which would in any way explain or 
 qualify the part first given. In the case last cited, the rule is 
 applied only to the declarations of a party to the action ; and so 
 far it is approved in Garey v. Nicholson (24 "Wend., 350). But 
 even if the conversation held by the plaintiff's husband with her 
 should be deemed the declarations of a third person not a party to 
 the action, the principle of the rule will apply. It is so laid 
 down in 1 Phil, on Ev., 415, but without the citation of English 
 authority directly in point. 
 
 The offer of the plaintiff, in the case in hand, was to show the 
 whole conversation, not limiting the evidence to what was said 
 that would explain or qualify what had been proved by the de- 
 fendant. The plaintiff made also a specific offer to prove that her 
 husband said that the defendants gave the note in suit for the 
 $2,900 note that she owned. Clearly this did not relate to any- 
 thing which the defendants had shown as we have stated it. 
 
 The reason given by the trial court for excluding the evidence 
 was that the defendants had not gone into the conversation,, 
 except in a negative way. Be this reason good or bad, the action 
 of the court was proper, on the ground we have stated, and must 
 be sustained. 
 
 Judgment afiirmed. 
 
 Note.— In Marks v. King, 64 N. Y., 638, defendant was sued as- 
 endorser of a note. His defence was that the endorsement was a forgery. 
 On the trial it was shown on behalf of the plaintiff, without objection, that 
 the note in question was made to take up a previous note by the same 
 maker. Bell, which also purported to bear defendant's endorsement, such, 
 previous note having been discounted by the bank ; and plaintiff offered in 
 evidence, bank drafts for the amount of the first note, given to Bell, the 
 maker, offering in connection therewith, evidence that these drafts were 
 the avails of the discount of the first note and delivered to Bell as such. 
 
 * This ie the leading American case. 
 
■628 Abbott's Select Oases on Examining Witnesses. 
 Marks v. King-, 64 N. Y., 638. 
 
 At Circuit plaintiff recovered. 
 
 The Supreme Court at General Term affirmed the judgment. (Report- 
 ed 67 Barb., 335.) 
 
 The Court of Appeals affirmed the judgment. 
 
 Allen, J. : But three exceptions taken at the trial are relied upon or 
 urged by the counsel for the appellant in this court. The first objection 
 and exception was to the admission in evidence of the drafts of the Sus- 
 quehanna "Valley Bank given to Bell upon, and as the avails of the dis- 
 count of the note of March 3d, 1870, to take up which the note in suit was 
 made. The discount of that note had been proved without objection, and 
 the connection between it and the note in issue had been shown ; and these 
 •drafts offered in evidence with proof that they were the avails of the note 
 were competent as part of the res gestae. The admission of them in evi- 
 dence did not necessarily or without other evidence affect the defendant 
 ■or tend to establish the genuineness of his endorsement of the note in suit. 
 The evidence was not only competent as a part of the history of the trans- 
 action but as laying the foundation for other evidence which might con- 
 nect the defendant with it. The evidence was proper in another view, as 
 showing that the note which formed the consideration of the alleged en- 
 dorsement of the defendant had a valid inception, and that the bank paid 
 value for it. The objection that at the time the defendant had not been 
 ■connected with the drafts only went to the order of proof which as a 
 general rule is and was in this case in the discretion of the court. The 
 defect might have been and was attempted to be supplied by the plaintiff 
 .at a later stage of the trial. 
 
 The motion subsequently-made to strike the drafts and all evidence re- 
 lating thereto, out of the case, and the denial of the motion by the court,^ 
 ■do not constitute any ground of a legal exception. Evidence admitted 
 either without objection or properly over an objection, which for any rea- 
 son should not be considered by the jury or affect the result, is not neces- 
 sarily to be stricken out, but may be retained in the discretion of the 
 ■court, the remedy of the party being to ask for instructions to the jury to 
 disregard it. There was no request to instruct the jury to disregard the 
 ■evidence and no exception to the charge of the judge in respect to it and 
 the weight to be given to it. 
 
 The next objection presented by the learned counsel for the appellant 
 is to the admission in evidence of a check purporting to be signed by the 
 ■defendant, upon the Second National Bank of Jersey City, under date of 
 February 7th, 1870. This check was for the avails of a note made by the 
 defendant and claimed to have been discounted hy the bank named, which 
 it is claimed was paid and taken up with the drafts of the Susquehanna 
 Valley Bank. That the note then discounted was made by the defendant 
 for the accommodation of Bell is not disputed ; the objection to the check 
 was not that it was not made by the defendant, but for the reason that 
 -the witness then under examination, who was the cashier of the Jersey 
 City Bank had no knowledge of the note being paid and no personal 
 
VIII. Cross-exam.ination. (3) Door Opened by Direct. 629' 
 
 Winchell v. Latham, 6 Cow., 682. 
 
 knowledge of the note or of the draft, and that it .was not the best evi- 
 dence of the discount of the note. At the time the objection was made it 
 was assumed that the signature of the defendant was genuine, and was 
 therefore some evidence that the note which he had made for the accom- 
 modation of Bell, had been discounted bj' the bank upon which the check 
 was drawn. The subsequent testimony given by the defendant, tending 
 to impeach the check and challenging its genuineness, cannot be referred 
 to, to sustain the objection, taken without a suggestion that the check 
 was not in fact signed by the defendant. If the check was genuine it was 
 a circumstance connecting the defendant with the origin of the debt and 
 the making of the note, the first in a series of which the note in suit was 
 the last, as was claimed by the plaintiff, and of which there was some 
 evidence ; and of the cogency of that evidence the jury were the judges. 
 
 The only other point urged or relied upon by the counsel for the appel- 
 lant was the refusal of the court to permit evidence to be given that Dick- 
 inson, a principal witness for the plaintiff, had been active in procuring 
 the indictment of Bell for counterfeiting the endorsement of the defendant 
 upon the note in suit. The evidence was properly excluded ; it did not 
 discredit his testimony either in respect to the declarations and admissions 
 of the defendant or his opinion as to the genuineness of the endorsement 
 as given under oath. Neither did it tend to impeach his character as a 
 witness ; there was no pretense or offer to show that his statements, either 
 before the grand jury under oath or when not under oath, were inconsist- 
 ent with his evidence upon the trial. The fact offered in evidence was 
 entirely collateral and its rejection does not lay the foundation of an ex- 
 ception. (Great "Western Turnpike Eoad Company vs. Loomis, 32 N. Y.,, 
 127.) We find no error in the record, and the judgment must be affirmed. 
 
 WINCHELL V. LATHAM. 
 
 New Yorh Supreme Court, 1827. 
 [Reported in 6 Cow., 682.] 
 
 An accidental disclosure of the nature of a communication called out on 
 cross-examination by a question only intended to elicit the/act of such 
 a communication, is not necessarily a ground for allowing the adverse 
 party on re-direct examination to call for the consequent conversa- 
 tion. 
 
 Action on three promissory notes, one of which was for 
 $2,100.20, signed by.Porter, defendant's testator. 
 
 Defendant contended that the note was obtained from Porter 
 by imposition when he was in a state of intoxication, or that he 
 supposed it to be a small note, probably for twenty-one dollars 
 
-630 Abbott's Select Cases on Examining "Witnesses. 
 
 Winchell v. Latham, 6 Cow., 683. 
 
 .and twenty cents ; and that the word hundred was fraudulently 
 inserted by the plaintiff either before or after it was signed ; or 
 if signed with a knowledge of its contents, that it was given 
 without any legal consideration. 
 
 Upon the trial Simon Hyde was called as a witness for the 
 defendant and stated on his direct examination, that in November 
 or December, 1823, "Winchell showed him a note, upon back of 
 which was written Oliver Porter's note, for $2,100 and some 
 <;ents, which he believes to be the note in question. "Winchell 
 was then on his way to Connecticut and the witness asked him 
 how he came by such a note against Porter ? "Winchell replied 
 "that he had some money which he did not wish to carry with 
 him to Connecticut ; and hie had left it with Porter because he 
 knew it would be safe and that he would not use it. 
 
 Upon his cross-examination he was asked by the plaintiff's 
 ■counsel if he had ever told anybody that he had seen such a note 
 or that the plaintiff had such a note ? and if he had, when and 
 whom? The witness answered that the first person to whom 
 he mentioned it was Porter, the testator ; that it was after Win- 
 •chell's return from Connecticut ; but how long he could not tell. 
 The counsel for the defendant then asked the witness what 
 Porter said about the larger note when he gave him the infor- 
 mation ? 
 
 This question was objected to by the plaintiff's counsel, on the 
 ground that the defendant could not give in evidence the decla- 
 rations of Porter in his own favor. Objection sustained and 
 question excluded. 
 
 At Circuit plaintiff recovered. 
 
 The Supreme Court reversed the judgment. Sutheeland, J. 
 {after stating facts] : The decision of the judge was undoubtedly 
 correct. The witness was not asked whether he had ever 
 informed Porter that he had seen the note ? But the question 
 was general, if he had informed anybody and whom ? He was 
 the defendant's witness ; and it is not to be supposed that the 
 plaintiff knew what his answer would be. 
 
 The question was not, therefore, put with the view or expecta- 
 tion of bringing home to Porter knowledge of the existence of 
 
VIII. Cross-examination. (3) Door Opened by Direct. 631 
 
 Winchell v. Latham, 6 Cow., 683. 
 
 the note ; but for the purpose, probably, of testing the accuracy 
 of the witness, by compelling him to name the individuals to 
 whom he had communicated the fact, if any ; so that they might 
 be called to corroborate or impeach him. The disclostire, there- 
 fore, came out accidentally, and did not lay the foundation for 
 the course of inquiry which the defendant had not a right to 
 pursue upon the direct examination. Occurrences of this sort 
 are not only common, but inevitable in almost every trial. It 
 is impossible to anticipate what the answer of a witness will 
 be to a general question, until his answer is given. If it is of 
 a nature which would have been inadmissible upon a direct 
 and specific inquiry the course is not to permit the inquiry to 
 be pursued, and the evidence to be repelled by other testi- 
 mony ; but to exclude the answer from the consideration of the 
 jury, so far as it was improper to have been given. There is 
 no danger of a jury being misled or prejudiced by such a cir- 
 cumstance. The pi-esiding judge will explain to them why they 
 are to disregard the evidence ; and that no inference is to be 
 drawn from it against the opposite party, because he is precluded 
 from pursuing the inquiry, and explaining it. If the plaintiff's 
 counsel had asked specifically whether the witness ever communi- 
 cated the information in relation to the note to Porter, what 
 Porter said on that occasion would probably have been compe- 
 tent evidence ; for the inquiry could have been made with no 
 other view, than to raise the presumption of his admission of the 
 . genuineness and validity of the note ; and that presumption the 
 opposite party, of course, ought to be permitted to repel. The 
 question would be considered as embracing, not only the infor- 
 mation communicated by the witness to Porter, but Porter's 
 answer also ; and the answer would then be evidence against the 
 plaintiff, having been called for by him. But there would be 
 no safety in putting a general question to a witness upon his 
 cross-examination, if his answer might be the means of render- 
 ing the declaration of the opposite party evidence in his own 
 favor, without being called for by his antagonist. 
 \_Rulings on other points are here omitted.'] 
 
632 Abbott's Select Casus on Examining Witnesses. 
 Storm V. United States, 94 U. S., 76. 
 
 STOEM V. UNITED STATES. 
 
 United States Supreme Court, 1876. 
 
 [Reported in 94 TJ. S., 76.] 
 
 It is not error, on cross-examination, to refuse to allow questions to be 
 put merely to ascertain the names of persons whom the cross-exam- 
 ining- counsel may wish to call as witnesses. So held in a civil case. 
 
 Action at law by the United States against principal and 
 sureties on a contract to supply hay, grain, etc. 
 
 The plaintiffs claimed damages among other things by reason 
 of the loss suffered by them in being obliged to purchase in the 
 market, in consequence of the contractor's failure to supply. 
 
 The witness called by the plaintiffs to prove the facts in this 
 respect, stated, on cross-examination, that sometimes, when he 
 did not have the supplies wanted on hand, he went out and pur- 
 chased what was necessary to fill the order, and that he usually 
 filled the orders on the same or the following day. 
 
 In the course of his examination-in-chief the witness gave the 
 name of a firm of whom he bought some hay to fill some one of 
 the orders, and the defendants inquired of whom he purchased 
 the quantity of oats charged to the United States in his account ; 
 to which interrogation the plaintiffs objected, and the court sus- 
 tained the objection, and excluded the question. 
 
 Due exceptions were taken to the preceding rulings, and the 
 defendants asked the witness if he did not commute with some 
 of the subordinate officers for some portion of the forage to which 
 they were entitled, paying them in money instead of forage, 
 grain or straw ; and, if so, he was asked to state what quantity of 
 such supplies were charged on his books during those three 
 months as having been purchased in open market, which were 
 not so purchased, but were commuted by the witness with the 
 officers, paying them money instead of delivering the required 
 supphes ; to which the witness replied that he could tell by looking 
 at his books. He was then requested by the defendants to look 
 at his books and to state what amount of such supplies, within 
 that period, was charged by him which was not purchased in 
 open market and delivered to the United States. Prompt objec- 
 
YIII. Cross-examination. (4) Interrogating to Discover. 633 
 
 Storm V. United States, 84 U. S., 76. 
 
 tion was made to the question as irrelevant and immaterial, and 
 it v?as excluded by the court. 
 
 The United States recovered and the defendants brought error. 
 
 Cliffoed, J. \on this point] : Seasonable exception was taken 
 by the defendants to the ruling of the coiirt, excluding the 
 question propounded to the witness called by the plaintiffs, of 
 whom he purchased the quantities of oats which he furnished to 
 the United States. Three grounds are suggested to show that 
 the defendants were entitled to have an answer : 1. That the 
 answer might have affected the credibility of the witness. 2. 
 That the defendants, if the name of the seller of the oats had 
 been given, might have called him as a witness and perhaps 
 might have proved by him that the price paid was not as great 
 as represented, or that a less quantity than that charged had 
 been delivered. 3. That the answer might have shown that 
 persons had an interest in the sale of the oats who are prohibited 
 by the contract from having any share in furnishing such supplies. 
 
 ISTone of the reasons assigned to support the exception are 
 entitled to any weight when considered in connection with the 
 explanations given in the bill of exceptions. 
 
 Evidence of an undisputed character had previously been 
 introduced, showing that the requisitions for such supplies were 
 not in excess of the quantity prescribed by law, and that the 
 United States did not purchase and pay for any greater quantity 
 than that specified in the requisitions, and that the purchases 
 were made in the open market, and that the prices paid did not 
 exceed the fair market value of supplies purchased. 
 
 Litigants ought to prepare their cases for trial before the jury 
 is empanelled and sworn ; and if they do not, they cannot com- 
 plain if the court excludes questions propounded merely to 
 ascertain the names of persons whom they may desire to call as 
 witnesses to disprove the case of the opposite party. Courts 
 usually allow questions to be put to a witness to affect his credi- 
 bility ; but it is plainly within the discretion of the presiding 
 judge to determine whether, in view of the evidence previously 
 introduced, and of the nature of the testimony given by the wit- 
 ness in his examination in chief, it is fit and proper that ques- 
 
634: Abbott's Select Cases on Examining Witnesses. 
 
 Storm V. United States, 94 U. S., 76. 
 
 tions of the kind should be overruled, and to what extent such 
 a cross-examination shall be allowed. Sturgis v. Kobins, 62 Me., 
 293 ; Prescott v. Ward, 10 Allen, 209 ; Wroe v. State, 20 Ohio 
 St., 460 ; 1 Greenl. Evi., §449. 
 
 Purchases to supply deficiency arising from the failure of the 
 contractors to perform their contract were required to be made 
 in open market, in order to ascertain the excess of cost, if any,, 
 beyond the contract price ; and the bill of exception shows that 
 the evidence to prove that the purchases made by the United 
 States were so made was undisputed and uncontradicted. Still 
 the defendants ask the witness called to prove those facts, 
 whether he did not commute with some of the subordinate 
 ofBcers for a portion of the forage to which they were entitled, 
 instead of delivering the same to such subordinate officers, tO' 
 which no direct answer was given ; but when the witness was 
 asked if he could state what quantity of such supplies were 
 charged on his books as delivered, which was adjusted by com- 
 muting the same with subordinate officers, he answered that he 
 could by looking at his books. Prior to that, the witness had 
 stated that the prices charged were regular market prices in gold 
 coin, which is in strict conformity to the terms of the agreement ; 
 but the defendants requested the witness to examine his books, 
 and to state what the amount was which had been commuted ; 
 to which interrogatory the plaintiff objected, and the court 
 excluded the question. 
 
 Interrogatories calling for immaterial testiimony may be ex- 
 cluded in the discretion of the court, as shown by the author- 
 ities to which reference has previously been made. Doubt 
 upon that subject cannot be entertained, and it is equally certain 
 that it is error to exclude a question, proper in form, which calls 
 for evidence material to the issue. DifKculty frequently arises 
 in determining whether a particular question falls within the 
 one or the other of these categories ; and in solving that doubt, 
 it often becomes necessary, especially in an appellant court, to 
 ascertain what the state of the case was when the question was 
 propounded, and what the effect of the evidence would have 
 been if it had been admitted. 
 
 No attempt is made to impeach the fairness of the requisi- 
 
YIII. Cross-examination. (4) Interrogating to Discover. 635 
 
 People V. Fitzgerald, 8 N. Y. Supp., 81. 
 
 tions made by tlie quartermaster, or to show that they were 
 greater than the public service required ; nor is it contended 
 that the prices paid to supply the deficiencies were higher than 
 the regular market prices in gold coin. "What the defendants 
 suggest is, that the agent employed to provide and deliver the 
 deficiency paid some of the subordinate officers in money, instead 
 of delivering the required amount of forage and grain, as he 
 should have done. Both the agent and the subordinate officers 
 in question agreed to the commutation ; nor is it suggested that 
 the quartermaster approved the commutation, or that he had 
 any knowledge of the irregular transaction of the agent. 
 Proper charges were made by the agent, and the same were 
 duly paid by the proper disbursing officer. 
 
 Yiewed in the light of these suggestions, it is clear that no 
 injury resulted to the contractors. They did not suffer by the 
 irregularity, nor is it perceived that it is a matter with which 
 they have any concern, and it certainly furnishes no grounds for 
 reversing the judgment. 
 
 Judgment affirmed. 
 
 Note. — Compare Kieenan v. Abbott, 1 Hun, 109, s. c. 3 Supm. Ct. 
 (T. & C.) 755, where, in an action to enjoin surreptitious obtaining of news 
 — defendant having testified, on examination before trial, that the news 
 he furnished was obtained direct by cable from London, through a New 
 York banking house— it was proper to compel him to answer through 
 what banking house the despatches were received, in order that plaintiff 
 might have an opportunity to call the members and clerks of the house 
 and examine them. 
 
 PEOPLE V. FITZGEEALD. 
 
 New York Swpreme Court, 1889. 
 
 [Reported in 8 N. Y. Supp., 81, s. c. 27 N. Y. State Rep., 595]. 
 
 In a criminal case, a witness who, in testifying to the commission of the 
 offense, has disclosed the fact that a third person was present, may 
 be required on cross-examination to state who it was.* 
 
 The defendant was •convicted of the crime of selling liquor on 
 Sunday, without license to sell the same. One Puttenburgh 
 
 * If no objection he made the name may be given by the witness in writing and submitted 
 to the jndge and the counsel without making it public. And this doubtless may be required by 
 the judge for the prevention of unnecessary scandal. 
 
636 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Fitzgerald, 8 N. Y. Supp., 81. 
 
 testified that he went to defendant's saloon on Sunday night. 
 That he bought fifteen cents worth of whiskey there. That he 
 went in alone and found two other gentlemen there. Upon cross- 
 examination the witness was asked whom he saw after he got 
 there, and this question was excluded upon the objection of the 
 people. 
 
 The Supreme Court on appeal reversed the judgment. 
 
 Baenaed, p. J.: This was an erroneous ruling. The credi- 
 bility of the witness was for the jury, and the circumstances 
 surrounding the commission of the offense with the names of 
 those present were material. 
 
 The defendant was sworn and denied the facts and all knowl- 
 edge of the offense. It -was impossible for the accused to pro- 
 duce in his behalf the persons alleged to be present, unless the 
 question put was allowed and answered. 
 
 Pratt, J., concurred. 
 
VIII. Cross-examination. (5) Use of Previous Statements. 63T 
 C, M. and St. P. Railway Co. v. Artery, 137 U. S., 507. 
 
 CHICAGO, MILWAUKEE AND ST. PAUL E. CO. v. 
 
 AETERY. 
 
 United States Supreme Court, 1890. 
 
 [Reported in 137 U. S., 507]. 
 
 A previous written statement by the witness, shown to him on cross- 
 examination and admitted by him to have been signed by him, cannot 
 be excluded from use for the purpose of impeachment, merely on the 
 ob.iection that it was put into writing by another person for the pur- 
 poses of being signed by the witness, and that such other person ought 
 to be called to testify to the statements orally made to him. 
 
 If a witness has admitted his signature of a paper previously signed by 
 him, it is not error as against a general objection, to allow a particular 
 part to be read to him and to require him to answer whether it is cor- 
 rect. The objection that the whole paper should be read as the best 
 evidence of its contents should be specifically made. 
 
 Action for injuries sustained by alleged negligence of the 
 defendants. 
 
 The question here presented arose in consequence of the course 
 of defendants' counsel in using by way of discrediting the testi- 
 mony given in plaintiff's behalf by his brother, a statement given 
 by the brother to the defendants' claim agent while the casualty 
 was fresh. 
 
 The facts appear in the opinion. 
 
 In the Circuit Court, plaintiff recovered. 
 
 The Supreme Court reversed the judgment. 
 
 Blatchfoed, J. [after passing on other questions'] : 
 
 At the trial one Jerry Artery, a brother of the plaintiff, was 
 called as a witness by him. lie was on the hand-car with the 
 plaintiff at the time of the accident and saw all that occurred. 
 He testified as to the speed of the car, and as to its size and its 
 cramped and crowded condition, and as to the fact that there 
 was nothing on it in front upon which the plaintiff could rest 
 his feet while he was holding the shovel, and as to the arrange- 
 ment of the cattle guards. In the course of his cross-examina- 
 tion, the following proceedings occurred : 
 
 " Q. On the 23d of March, 1886, at Harper's Ferry, in the 
 
638 Abbott's Sei-ect Oases on Examining "Witnesses. 
 
 C, M. and St. P. Railway Co. v. Artery, 137 IT. S., 507. 
 
 presence of Mr. Buell, did you sign a written statement, stating 
 what you knew about this case and about the accident to your 
 brother, after the written statement had been read over to you ? 
 A. Yes, sir. Q. I will show you now the written statement and 
 ask you whether that is your signature? Written statement shown 
 the witness hereto attached and marked Exhibit A. A. That is 
 my signature there. Q. In the written statement which I have 
 just shown you you state as follows : ' At the time Jim got hurt 
 we were running from 4|- to 5 miles an hour — certainly not to 
 exceed 5 miles.' Is that statement correct ? Objected to by 
 plaintiff. Objection sustained. 
 
 " The grounds upon which the court sustained the objections 
 to interrogatories to this and other witnesses, based upon a vsrit- 
 ten statement signed by the witness, and to the introduction of the 
 written statements themselves, were, that it appeared that the 
 statements were not volunteered by the witnesses, but that the 
 company had sent its claim agent after the happening of the 
 accident, to examine the employes of the company who were 
 present at the time of the accident, in regard to the transaction ; 
 that the statements made by the witnesses were not taken down 
 in full, but only a synopsis thereof made by the agent, the cor- 
 rectness of which is questioned by the witnesses in some particu- 
 lars, although such written statement was signed by the wit- 
 ness; that, upon the trial of this case, these statements, thus 
 obtained, were sought to be used not alone as a means of im- 
 peaching the witness, but as evidence of the matters therein re- 
 cited ; that it is apparent to the court that, whether so intended 
 or not, these statements become a ready means of confusing and 
 intimidating witnesses before the jury, and that, if it be permitted 
 to parties to thus procure written statements in advance from 
 witnesses, and then use the same in examining such witnesses, 
 it will enable parties to shape and control the evidence in 
 a cause by committing the witnesses to particular statements, 
 couched in the language not of the witness, but of the person 
 carrying on such ex parte examination ; that these growing 
 abuses can only be prevented by entirely excluding such state- 
 ments, thus procured, from being introduced in evidence for any 
 purpose ; that, if the party desired to impeach a -svitness by show- 
 
'Yin. Cross-examination. (5) Use of Previous Statements. 639 
 
 C, M. and St. P. Railway Co. v. Artery, 137 U. S., 507. 
 
 ing contradictory statements made by him, tlie person to whom 
 or in whose presence such alleged contradictory statements were 
 made should be called as a witness, so that opportunity might 
 be afforded of placing before the jury the statements actually 
 made by the witness sought to be impeached, and not a mere 
 synopsis thereof made by another person, and the accuracy of 
 which, in some particulars, was challenged. Exception by de- 
 fendant." 
 
 The following further proceedings took place on the cross- 
 examination of the same witness : " Q. On the occasion I have 
 referred to, did you make this statement : ' Six men on a hand- 
 car have plenty of room. We often have had eight and ten men 
 on a hand-car of the same size ? ' Objected to by the plaintiff ; 
 objection sustained ; exception by defendant. Q. Did you, on the 
 occasion I have referred, at Harper's Ferry, say as follows: 'I 
 am a larger man Jim ever was and my legs are a great deal 
 longer. I have never had any trouble in keeping my feet up 
 when I sat on the front of the car? ' Objected to by plaintiff ; 
 objection sustained ; exception by defendant. Q. On the occa- 
 casion referred to, did you state as follows : ' If a man is hold- 
 ing a shovel on the rail and he is sitting on the front of a hand- 
 car there is no way for him to get hurt unless he forgets himself 
 and lets his feet drop down ? ' Objected to by the plaintiff ; 
 objection sustained ; exception by defendant. Q. On the 
 occasion referred to, did you state : ' The hand-car was in good 
 condition, nothing broken about it in any way. It was an ordin- 
 ary car, full size ? ' Objected to by plaintiff ; objection sus- 
 tained ; exception by defendant. Q. Did you, on the occasion 
 referred to, state as follows : ' I am foreman at present on section 
 No. 20. The top of the ribbons on the ties of the cattle-guard 
 was about level with the ball of the rail 1 ' A. Well, sir, I don't 
 remember whether I did or not say that. Q. If you did say 
 that, was it the truth or not « Objected to by the plaintiff ; ob- 
 jection sustained ; exception by defendant. 
 
 Subsequently, while the defendant was putting in its evidence, 
 the bill of exception says : " Thereupon the defendant offered 
 in evidence, for the purpose of impeachment, the statement 
 under date of March 21, 1886, shown the witness Jerry Artery, 
 
640 Abbott's Select Oases on Examining Witnesses. 
 
 C, M. and St. P. Eailway Co. v. Artery, 137 U. S., 507. 
 
 and hereto attached, marked Exhibit A, which, on objection by 
 plaintiff, was ruled ont by the court ; to which ruling the de- 
 fendant, at the time, excepted." The court, in sustaining the 
 objection, stated that it deemed the proper method to be to 
 produce the person to whom the alleged statement was made, 
 and to prove by him what the witness may have said on the occa- 
 sion. Exhibit A, thus referred to, is a paper signed by the wit- 
 ness, and contains the statements set forth in the six questions 
 thus excluded, as above. 
 
 That the evidence covered by the six questions was material 
 to the issue, is apparent. They related to the speed of the car, 
 to the question of its size and whether it was crowded or not, to 
 the question whether the plaintiff could have kept up his feet 
 without a foot-rest, and to tlie question of the condition of the 
 cattle guard. 
 
 It is an elementary principle of the law of evidence, that if 
 a witness is to be impeached in consequence of his having made, 
 on some other occasion, different statements, oral or written, 
 from those which he makes on the witness stand as to material 
 points in tlie case, his attention must first be called, on cross- 
 examinatiou, to the particular time and occasion when, the place 
 where, and the person to whom he made the varying statements. 
 In no other way can a foundation be laid for putting in the im- 
 peaching testimony. In the present case, it is apparent that the 
 views of the court, as set forth in the bill of exceptions imme- 
 diately after the exclusion of the first question, which is above 
 stated to have been excluded on the cross-examination of the 
 witness Jerry Artery, must have been founded not only upon 
 what had at that time transpired, but also upon the subsequent 
 proceedings at the trial, and were the views of the court upon 
 additional and kindred questions which arose in the case, because, 
 at the time such first question was asked upon cross-examination, 
 and excluded, it had not yet appeared in evidence under what 
 circumstances the written statement was made by the witness. 
 Moreover, it was stated by the court that the written statements 
 of the witnesses " were sought to be used not alone as a means 
 of impeaching the witness, but as evidence of the matters therein 
 recited"; whereas, when the statement signed by the witness 
 
VIII. Cross-examination. (5) Use of Previous Statements. 641 
 
 C, M. and St. P. Railway Co. i'. Artery, 137 U. S., 507. 
 
 Jerry Artery was offered in evidence and excluded, it was dis- 
 tinctly offered '• for tlie purpose of impeachment," and it is not 
 otherwise stated in the bill of exceptions that it was offered for 
 any other purpose ; and, in excluding it, the court excluded it as 
 so offered. 
 
 "We think the Circuit Court erred in laying it down as a rule 
 that a written statemeut signed by a witness, and admitted by 
 him to have been so signed, cannot be used in cross-examining 
 him as to material points testiiied to by him ; and in announcing 
 it as a further rule, that the only way to impeach a witness by 
 showing contradictory statements made by him, is to call as a 
 witness the person to whom, or in whose presence, the alleged 
 contradictory statements were made. The foundation must first 
 be laid for impeaching a witness, by calling his attention to the 
 time, place and circumstances of the contradictory statements 
 whether they were in writing or made orally ; and the court, in 
 the present case, excluded that from being done. 
 
 The written statement having been presented to the witness, 
 and he having admitted that what purported to be his signature 
 to it was his signature, it was perfectly open to him to read it, 
 and he could have been inquired of as to the circumstances under 
 which it was taken down and signed, so as to advise the jury as 
 to its authenticity, and the credit to be given to it. The bill of 
 exceptions does not show that the plaintiff's counsel asked the 
 witness to read the statement, or asked the court to have it read 
 to him, or that the witness did not read it, or did not have it 
 read to him. The exclusion of the first question put to him and 
 excluded, namely, " Is that statement coi-rect ? " did not refer to 
 the entire written statement, but to the statement in it as to the 
 speed at which the car was running. That inquiry was directly 
 pertinent to the issue that was being tried. 
 
 The rule of evidence invoked by the plaintiff, and laid down 
 in the Queen's Case, 2 Brod. & Bing., 284, 288, is that if, on 
 cross-examination, a witness admits a letter to be in his hand- 
 writing, he cannot be questioned by counsel as to whether state- 
 ments such as the counsel may suggest are contained in it, but 
 the whole letter must be read as the evidence of the existence 
 of the statements. This principle is not applicable to the present 
 
642 Abbott's Select Cases on Examining Witnesses. 
 
 Kosmak v. Mayor, etc., of New York, 117 N. Y., 361. 
 
 case, because the plaintiff did not take the objection that the 
 whole statement was not, but should have been, read as evidence, 
 and the court, with the assent of the plaintiff, excluded it from 
 being read in evidence. 
 
 The case of Vicksburg & Meridian Eailroad v. O'Brien, 119 
 U. S., 99, is not in point. In that case, which was a suit against 
 a railroad company to recover for personal injuries recei^^ed by 
 an accident to a train, a written statement as to the nature and 
 extent of the injuries, made by the plaintiff's physician while 
 treating him for them, was held not to be admissible as affirma- 
 tive evidence for the plaintiff, even though it was attached to a 
 deposition of the physician, in which he swore that it was written 
 by him and that it correctly stated the condition of his patient at 
 the time referred to. The question was not one which arose on the 
 cross-examination of a witness or in regard to his im;^eachment. 
 
 Nor was the present case one involving the well-established 
 proposition that incompetent questions are not allowable on cross- 
 examination in order to predicate upon them an impeachment or 
 ■contradiction of the witness. 
 
 The judgment is reversed. 
 
 KOSMAK V. MAYOK, ETC., OF THE CITY OF 
 NEW YOEK. 
 
 JVew York Supreme Court and Court of Appeals, 1889. 
 
 [Reported in 53 Hun, 339, and 117 N. Y., 3(51.] 
 
 it seems, that in cross-examining a witness, counsel may read a statement 
 previously made by the witness in writing ; asking him whether he 
 made such statements ; and the fact that he showed the paper to the 
 witness before so doing, and the witness admitted his signature, does 
 not necessarily entitle the party who called the witness to read the 
 other statements contained in the writing.* 
 
 An action to recover damages by reason of the negligent 
 management of a sewer in front of plaintiff's premises, causing 
 the refuse to be emptied upon plaintiff's premises. 
 
 * The better practice is, where there is no desire to lay foundation for contradiciion, to use 
 the paper simply as brief or instructions for cross-examination, in which case it is clear that the 
 other side cannot use it. 
 
YIII. Cross-examination. (5) Use of Previous Statements. 643 
 Kosmak v. Mayor, etc., of New York, 117 N. Y., 361. 
 
 On the trial, Emil H. Kosmak was called as a witness in his 
 •own behalf and testified on cross-examination that, " shortly after 
 I brought my claim I was subpcBnsed to appear before the comp- 
 troller to tell the nature of my claim * * * * * what I 
 then said, I said under oath and my statements were then taken 
 down by a stenographer as is being done here now, and after- 
 wards they were written out and sent to me and I signed it and 
 swore to it the second time." 
 
 Q. (Showing paper), " Is that your signature ? " A. " Yes." 
 [It was admitted that he was sworn.] 
 
 Q. " On that occasion, this examination was taken on the 8th 
 ■of January, were you asked this question (reading from said 
 examination ) : ' What are the elements of your damage here in 
 -dollars and cents ? ' and did you answer, ' I don't knoAV ? ' " A. 
 " Yes, if I gave that answer, that is correct, I don't know." * * 
 
 Q. " And then (again reading from said examination) were 
 you not asked this question : ' State them as well as you can ' 
 (referring to elements of damage), and the best answer you then 
 gave was : 'I am suing for $50,000 ? ' " A. " That is correct." 
 
 Q. " Then (again reading from said examination) you were 
 asked these questions : ' How do you fix that amount V And 
 yon answered : ' I had all my goods laying in the cellar ; ' 
 question, 'your stock?' and you answered: 'Liquors, etc.;' 
 question : ' Did you lose all the stuff that was in the store 
 room ? ' and you answered : ' Not all, it was mostly all spoiled.' " 
 A. " All my goods were broken and completely upset." 
 
 On re-direct examination of Mr. Kosmak : 
 
 PlaintifE's Counsel : " We offer in evidence the balance of 
 the examination before trial of Mr. Kosmak, parts of which have 
 been read by defendant's counsel." 
 
 Objected to on the ground that they cannot offer any afiidavit 
 in corroboration of their own witness. 
 
 Plaintiff's Counsel: "We offer in evidence and read this 
 examination ; you cannot read parts of it and thereby let that 
 impression go to the jury. We will read the balance." 
 
 The Court: "I have my doubts about that. The distinc- 
 tion that comes to my mind is this, that if parts of a deposi- 
 tion are read for the purpose of contradicting a witness, then 
 
644 Abbott's Select Cases on Examining Witnesses. 
 
 Kosmak v. Mayor, etc., of New York, 117 N. Y., 361. 
 
 that does not necessarily make the whole deposition evidence. 
 I suppose that is just what defendant's counsel used this for." 
 
 Defendant's Counsel : " That was my only object." 
 
 Plaintiff's Counsel : " The Corporation Counsel takes a de- 
 position and picks out one or two parts favorable to him, and 
 asks the witness if he did not swear so and so. Of course, what 
 precedes it or what follows it, the jury knows nothing about. 
 They don't see what the questions were the man labored under, 
 as we have seen them here to-day. I propose, therefore, to 
 read the questions immediately preceding and immediately fol- 
 lowing the parts read by the Corporation Counsel, for the pur- 
 pose of showing the circumstances under which those answers 
 read by him were given, and they are qualified by those very 
 facts ; it would be unfair to take a part of the statement, and 
 that is about what it is." 
 
 The Court : " That depends upon the technicalities of the 
 rule of evidence. That would all be very true if the Corpora- 
 tion Counsel offered parts of the deposition in evidence as admis- 
 sions under oath of the plaintiff. That would undoubtedly 
 bring in the rest of it, but he didn't read it. He merely read to 
 the witness for the purpose of contradicting the witness, and 
 asked him if he didn't swear so, and if he said he did, isn't that 
 true. Then it is in evidence for the purpose of affecting with the 
 jury his credibility that he has sworn at some time differently." 
 
 Plaintiff's Counsel : " I offer the deposition in its entirety, 
 upon the ground that it is competent ; an examination taken be- 
 fore trial under a statute which gives the Corporation Counsel 
 the right to take it ; either party has the right to read it." 
 
 The Court : " I don't think it is admissible. Have it marked 
 for identification and ta1ie your exception." Exception taken. 
 
 At the trial defendant prevailed. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Yan Brunt, P. J. [Daniels and Baeeett, JJ, concurring, 
 said on this point :] The record shows that the original of such 
 examination was in court, and the plaintiff was shown what pur- 
 ported to be his signature to such examination and asked if it 
 was his, and he said it was. He was then asked whether he did 
 
YIII. Cross-examination. (5) "Use of Previous Statements. 645 
 
 Kosmak v. Mayor, etc., of New York, 117 N. Y., 361. 
 
 not swear thus and so in that examination before the comptroller, 
 and a variety of questions were put to him in that form. It appears 
 from the record (improperly, as no such statement should have 
 been made in view of the manifest manner in which the ques- 
 tion was put) that the questioner read from this examination, and 
 asked the witness whether he did not swear thus and so before 
 the comptroller. It was not at all necessary, in order to frame a 
 perfect question, that he should have shown plaintiff this exam- 
 ination or read from any portion of it, but if he chose to put 
 the question, using the examination for the purpose of framing 
 the question, the examiner had a right to do so. He was not 
 reading the examination in evidence or any part of it. He was 
 only asking the witness whether, on a previous occasion in con- 
 nection with this transaction, he had not stated certain things. 
 This gave no right, upon the part of the plaintiff, to have read 
 the whole of his deposition. If there was anything that was 
 pertinent in reference to the matter inquired about, and which 
 would explain the answer which he then made, it was com- 
 petent, upon the part of his counsel, to have asked him " Do 
 you not also state thus and so " in connection with the matter 
 about which you have testilied ? Or in the event of his having 
 been asked for a statement which formed part of the testimony 
 relating to a particular point, he could have been asked to state 
 the balance relating to that subject. But the mere fact of his 
 having been asked whether he had or had not testified on a pre- 
 vious occasion in a certain way in no way gave the plaintiff the 
 right to read the balance of such deposition in evidence, as no 
 part of the deposition ever had been offered in evidence, and it 
 was only a method of cross-examination, well recognized and 
 well established. 
 
 Plaintiff appealed ; and his counsel relied on the rule sup- 
 ported by numerous authorities, that when part of a statement 
 has been given in evidence, the adverse party is entitled to prove 
 the residue so far as it tends to explain or qualify or vary the use 
 which might be made of the part already proved. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andbews, J. [in passing on the point here in question, said ;] 
 
646 Abbott's Select Oases on Examining Witnesses. 
 
 Arnold v. Allen, 9 Daly, 198. 
 
 The point that the plaintiff was excluded from testifying tO' 
 what was stated by him in his deposition presented to the comp- 
 troller, is not ground of reversal. It is claimed that the part of 
 his statements in the deposition proved by the defendant bearing 
 upon the correctness of his claim, as to items of damage, as 
 made before the jury, tended to impeach his credibility, and 
 therefore may have influenced the jury in determining the credit 
 given to his evidence as to the obstruction being in the Frankfort 
 street sewer, and not in the drain. The alleged impeachment 
 of the plaintiff's credibility by the statements in the depositions 
 proved by the defendant, was at most very slight. The exclu- 
 sion of the plaintiff's evidence in explanation could have had^ 
 we think, no material influence on the case. 
 
 AENOLD V. ALLEX. 
 
 Wew Yorlc Court of Common Pleas, 1880. 
 
 [Reported in 9 Daly, 198.] 
 
 In an action against a husband for goods delivered to his wife and alleged 
 to have been sold to the husband and on his credit,— ffeZd, that the 
 fact that the charge in plaintiffs' books of account was against the 
 wife, did not preclude recovery, if the credit was in fact given to 
 the husband ; and that evidence was admissible to show that it was 
 the plaintiffs' custom to charge the goods to the ladies who dealt with 
 them, and send the bills to the husbands. 
 
 Where a witness is examined at the trial after having been examined under 
 a commission before the trial, it is not allowable in cross-examining to 
 read to the witness the answers given under the commission and ask 
 it he or she had so testified, merely for the purpose of proving in that 
 way that he had.* 
 
 If such testimony is used to impeach the witness it should be read to the 
 jury. 
 
 If a fact called for by a question put on cross-examination is competent 
 within the rule that disparaging questions, not relevant to the issue, 
 may be put, an objection to it as immaterial is not sufficient. 
 
 Action to recover for goods sold to defendant and delivered 
 to his wife. 
 
 * Compare the two preceding cases. 
 
WW. Cross-examination. (5) Use of Previous Statements. 64T 
 Arnold v. Allen, 9 Daly, 198. 
 
 On the trial Thomas H. Lyons, an employee of the plaintiff, 
 was called as a witness and testified that Mrs. Allen applied for 
 an account at the store in the fall of 1874. 
 
 He was subsequently asked the following questions by plaint- 
 iff's counsel : Q. " Now, state at the time these goods were pur- 
 chased or at the time the credit was opened by Mrs. Allen at the 
 store of the plaintiff, with whom was the arrangement made ? 
 
 Objected to on the ground that it was shown that the goods- 
 were sold to her. Objection overruled and exception taken. 
 
 A. With me. Q. At the time she made the arrangement 
 with you for the opening of a credit account with these plaint- 
 iffs, the account here sued for, what was said between you and 
 her in regard to whom credit was to be given for these goods ? 
 
 Objected to and excluded. 
 
 Q. If the goods -^ere charged to Mrs. Allen and they were 
 delivered to her, how comes it they are charged to her husband 
 for the purpose of this action ? 
 
 Objected to ; objection overruled and exception taken. 
 
 A. We open all accounts in our ledger in the name of the 
 ladies — our dealings are exclusively with ladies ; they come to 
 me and open their accounts, giving their references, unless we 
 pre^aously know the standing of their husbands ; when we don't, 
 know the husbands we ask for reference as to their standing. 
 Q. Eeference as to the standing of their husbands ? A. Yes. 
 
 Defendant's counsel objected on the ground that the custom 
 of Arnold, Constable & Co. is incompetent, and does not render 
 the defendant liable ; custom must be universal. Admitted. 
 Exception. 
 
 Q. In doing that, is it done for the purpose of charging the 
 wife personally or charging the husband ? 
 
 Objected to. Objection overruled and exception taken. 
 
 A. The custom is to render the account in their names, that is,. 
 to the ladies ; our books will show that. 
 
 Objected to. Objection overruled and exception taken. 
 
 Q. In your course of dealing, to whom do you look for pay- 
 ment of these accounts? A. To the husband; we always send 
 the bills to the husband. 
 
 Objected to. Admitted. Exception. 
 
648 Abbott's Select Cases on Examining Witnesses. 
 Arnold v. Allen, 9 Daly, 198. 
 
 The defendant's wife, whose testimony had been taken under 
 a commission while she resided in another State, was called as a 
 witness for plaintiff, and on cross-examination by defendant's 
 counsel the commission was shown her, and she testified that the 
 signature was hers. She was then asked (counsel reading from 
 the commission and testimony) : " Do you recollect this question 
 being put to you on that commission : " ' State fully any other 
 matter which may be within your knowledge pertinent to the 
 matters herein inquired of you.' " To the 26th interrogatory 
 she says : " She expected to pay said bill of the plaintiffs when 
 the defendant should return to her the sum of one thousand dol- 
 lars, borrowed by him of her, and further to said interrogatory 
 she said no. ' Did you testify to that ? " 
 
 Objected to on the ground of irrelevancy and having no tend- 
 ency to contradict anything the witness has sworn to in her ex- 
 amination in chief. Objection sustained. Exception taken. 
 
 Ira A. Allen, the defendant, whose wife had ultimately ob- 
 tained a divorce from him under the Laws of Connecticut, was 
 called as a witness in his own behalf, and testified on direct ex- 
 amination that the ground of the divorce was not cruelty. On 
 cross-examination the witness was asked : " On what ground 
 was that divorce obtained by her against you ? " 
 
 Objected to as immaterial. Objection overruled and excep- 
 tion taken. 
 
 A. " Inhuman and cruel treatment." 
 
 He was subsequently asked: "When was the subject first 
 brought up to get a divorce on the ground of violence on your 
 part towards her ? " 
 
 Objected to as immatei'ial. Objection overruled and excep- 
 tion taken. 
 
 A. " I do not know that we ever discussed that question of 
 violence." 
 
 Li the Marine Court at trial term plaintiff had a verdict, on 
 which judgment was entered. 
 
 The Oeneral Term of the Marine Court reversed the judg- 
 ment. 
 
YIIl. Cross-examination. (5) Use of Previous Statements. 649 
 Arnold v. Allen, 9 Daly, 198. 
 
 The Court of Common Pleas reversed the judgment of Gen- 
 eral Term and affirmed that of the trial term. 
 
 J. F. Daly, J., \on this point said] : The exceptions to the 
 rulings of the court as to evidence were not well taken. The 
 plaintiffs were properly alloAved to explain why the goods were 
 charged on the books to the wife and not to the husband. The 
 question as to whom credit is given by a tradesman is one of 
 intent, and he may explain entries in his books, as well as his re- 
 ceipts, and similar writings, which prima faoie contradict his 
 assertions on the subject. The custom of the plaintiffs to enter 
 in their ledger the names of the ladies who deal with them, but 
 to send the bills to the husbands, was the explanation offered 
 and properly received. 
 
 The objection that such custom must be universal was not 
 tenable ; plaintiffs were not attempting to prove a usage of a par- 
 ticular trade, but only to explain why Mrs. Allen's name instead 
 of Mr. Allen's appeared on their books. 
 
 The defendant's counsel, on his cross-examination of the wife, 
 read to her from the return to a commission (under which her 
 evidence had been taken while she resided in another State) an 
 answer she had made to one of the interrogatories, and asked her : 
 " Did you testify to that ? " Plaintiff objected, and the court 
 sustained the objection. The objection was good. 
 
 The return to the commission showed what evidence she had 
 there given, and unless defendant based some question material to 
 the issue upon such evidence, it was improper to read her answers 
 over and ask her if she had given them. Counsel for defendant 
 had just previously asked a similar question, and had not fol- 
 lowed it up by any other query. It was not too much of an as- 
 sumption to suppose that he intended to prove her evidence 
 under the commission in that way, which he had no right to do. 
 The court did not rule out the interrogatories and answers in the 
 return. If defendant wished to use them to impeach plaintiff, 
 the proper course was to read them to the jury. 
 
 The defendant was asked, on cross examination, on what 
 grounds his wife obtained her divorce from him. This was 
 objected to as immaterial, but not as incompetent. Testimony 
 had been given on both sides as to alleged cruel treatment, and 
 
650 Abbott's Select Cases on Examining Witnesses. 
 
 Arnold v. Allen, 9 Daly, 198. 
 
 defendant on his direct examination had testified that tliere had 
 been no cruelty. He also volunteered on the cross-examination, 
 evidence about a negotiation between him and his wife for a 
 divorce, and stated that it was ultimately obtained " under the 
 laws of that State." It was within the scope of cross-examination 
 to inquire whether it was a divorce for cruel treatment. The de- 
 fendant answered that it was. The record would have been 
 the best evidence on the point, but the objection to the query 
 was not put on that ground. 
 
 These observations apply even more directly to the objection 
 taken to a subsequent question : " When was the subject first 
 brought up to get a divorce on the ground of violence on your 
 part towards her ? " for this would have helped to confirm the 
 testimony of one or the other as to the date of the alleged cruel 
 treatment. 
 
VIII. Cross-examination. (6) Bias. 651 
 
 People V. Webster, 139 N. Y., 73. 
 
 PEOPLE V. WEBSTEE. 
 
 New York Court of Appeals, 1893. 
 
 [Reported in 139 N. Y., 73.] 
 
 A witness under cross-examination may be interrogated in regard to any- 
 vicious or criminal act of his life and compelled to answer, unless he 
 claims his privilege. 
 
 This rule applies to a party in a criminal case who offers himself as a wit- 
 ness in his own behalf. 
 
 The extent to which dispai-aging questions not relevant to the issue may 
 be put is in the discretion of the court. 
 
 It is not error to allow such questions against the objection that the 
 answer may implicate another person.* 
 
 The existence of intimate and confidential relations between a witness 
 who has testified and the party on whose behalf the witness was 
 called, may be shown by the other party as matter of right, for bias is 
 not a collateral question. *" 
 
 Testimony of the witness, drawn out on cross-examination tending to 
 negative the acts and declarations rehed on as showing bias, may be 
 contradicted by the cross-examining counsel calling other witnesses. 
 
 A principal witness to the circumstances of the crime having been cross- 
 examined as to her habitual use of opium, and whether she was under 
 its influence at the time of the event she had observed, and, on re- 
 direct having- denied that she had once said she could not live without 
 it. Held, that the question of the accuracy of her perceptions was 
 material, and, the foundation having been laid, the cross-examining 
 counsel could prove that she had said so. 
 
 The defendant was indicted September 23d, 1891, charged 
 with the crime of murder, in the killing of Charles E. Good- 
 win. 
 
 Defendant admitted the act of homicide, but pleaded that it 
 was justifiable on the ground of self-defence. 
 
 The deceased and the defendant occupied rooms upon the 
 same floor of the Percival flat in 42d street, New York City. 
 The deceased was unmarried: the defendant was cohabitating 
 with a woman with whom a marriage ceremony had not been 
 solemnized, but he claimed that a civil contract of marriage had 
 been entered into between them in the month of January of the 
 
 same year. 
 
 Upon the trial the defendant was called as a witness in his 
 
652 Abbott's Select Oases on Examining Witnesses. 
 
 People V. Webster, 139 N. Y., 73. 
 
 own behalf, and on his cross-examination the district attorney 
 sought t6 show the unchaste character of his alleged wife and 
 his illicit relations with her. 
 
 After examination at some length as to her occupation, the 
 defendant was asked : Q. How did you think she was living 
 •on 39th street in a flat there on Sixth avenue ? 
 
 Objected to ; objection overruled and exception taken. 
 
 A. She told me that she had been sick and ill for some 
 
 time. 
 
 ******* 
 
 Q. Did you have any interest in knowing how the woman 
 was living whom you were going to take as your wife ? A. 
 I did not. 
 
 Q. Then didn't you jGlnd out when this actress had last 
 played upon the stage ? A. I never asked her. 
 
 Q. You didn't care, because you knew perfectly well that 
 
 . A. I loved her and wanted to make her my wife. 
 
 ******* 
 
 Q. And was not the suggestion of a common law marriage 
 the suggestion of a lawyer to you, to help you in the trial, just 
 as the suggestion of a civil marriage before the justice, and at 
 the suggestion of your counsel ? You told this jury you took as . 
 your wife in a common law way, or under the law of this state, 
 a woman whose past history you did not care to inquire into, and 
 as to how she was living, or how long without employment. 
 
 Objected to ; objection overruled. 
 
 A. I met her and loved her. She told me she had b^en sub- 
 jected to many temptations, and' she might have succumbed to 
 some. I told her we would forget the past and begin life anew. 
 I thought too much of her to ask her. 
 
 * ****** 
 
 Fanny Komaine was called as a witness on behalf of defend- 
 ant, and on cross-examination testified as follows : 
 
 Q. Don't you remember that she told you, and complained to 
 you, that if you didn't stop this intimacy, you as chambermaid, 
 this intimacy with Mrs. Webster, staying in her room until four 
 o'clock in the morning, that she would discharge you? 
 
 Defendant's counsel : I object to that as wholly immaterial, 
 
VIII. Gross-examination. (6) Bias. 653 
 
 People V. Webster, 139 N. Y., 73. 
 
 incompetent, and introduced for one unfair, obvious purpose." 
 Objection overruled. 
 
 District Attorney : It is introduced for tbe purpose of show- 
 ing the nn)tives of this witness. 
 
 The Court : Objection overruled ; it is not improper cross- 
 examination. 
 
 A. 1 do not remember anything of the Mnd. 
 
 Q. What were you doing in Mrs. Webster's room — drinking 
 opium ? A. I was keeping her company. 
 
 Defendant's Counsel : Is this fair ? I object to it. 
 
 Q. Was Mr. Webster there ? The Court : I think I will 
 allow it. Q. Was Mr. Webster there? A. E"o, sir. Q. Did 
 Mrs. Webster used to come down into the servants' quarters in 
 your room. A. I don't think I ever saw her there. 
 
 Defendant's Counsel : I object to it on the same ground that 
 they objected to our proving against Goodwin. 
 
 The Court: This is cross-examination of a witness, asking 
 her questions as to the intimacy with one of the parties inter- 
 ested in this transaction, and it is admissible, on the question of 
 her credibility, and the motives she has in testifying. 
 
 Defendant's counsel excepts. 
 
 Q. Did you daily keep yourself under the influence of 
 opium all the time that you were at the Percival Flats ? 
 
 Defendant's Counsel : It is objected to, your Honor. 
 
 Objection overruled and exception taken. 
 
 A. I took opium at times, yes, sir. 
 
 Q. What connection was there between the former trial and 
 your continuation in the service of Mrs. Webster ? 
 
 Objected to. Objection overruled. Exception taken. 
 
 A. I was under bail with Mrs. Webster at that time. 
 
 Q. What connection was there with your continuing in her 
 pay until the trial was over, and the next day there is no pay 
 for you and you have to go to a home for friendless women ? 
 
 Objected to as incompetent. Objection overruled. Excep- 
 tion taken. 
 
 A. I was under bail with Mrs. Webster at that time, and 
 she was kind enough to give me a home until after the trial. 
 
654: Abbott's Select Oases on Examining- Witnesses. 
 People V. Webster, 139 N. Y., 73. 
 
 The Court of Oyer and Terminer convicted defendant of the 
 crime of manslaughter in the first degree. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 O'Beien, J. — The exceptions taken in the cross-examination 
 of the defendant as a witness in his own behalf, with respect to 
 his relations and conduct with Evelyn Granville prior to her 
 marriage, were certainly within the discretion of the trial Judge, 
 in view of the claim made that in resenting the insults offered to 
 his wife he was justified in calling the deceased to account, and 
 that the encoimter with the deceased which resulted, and which 
 placed defendant in apprehended danger of great bodily harm 
 from the cuspidor in the hands of the deceased, justified the 
 shooting as an act of self-defence. 
 
 Throughout the trial the prisoner placed great stress on estab- 
 lishing that the relation between him and Evelyn Gra,nvi]le was 
 that of husband and wife, and it was, therefore, competent on 
 the part of the People to show what in the beginning was the 
 relation between these parties, in view of the admitted fact that 
 no marriage ceremony had ever been performed between them 
 prior to the shooting ; and as the question was an open one 
 whether or not it was a common-law marriage or a meretricious 
 relation, the cross-examination of the defendant as to whether 
 such relation was marital or meretricious was entirely proper. 
 
 {^As to witness Romaine.] We think it clear that these mat- 
 ters upon which the witness was cross-examined were collateral 
 matters, and that under the rule, by her answers given upon 
 cross-examination, the people were bound. As said in Stokes v. 
 People (63 If. T., 176) : " Upon cross-examination the prosecu- 
 tion had the right, for the purpose of impairing the credit of 
 the witnesses, to ask questions as to those collateral matters, but 
 having asked and obtained answers, must abide by the answers 
 given ; other witnesses could not be called to prove such answers 
 untrue." 
 
 In People v. Ware (29 Hun, 473 ; aff'd 92 IST. Y., 658) it is 
 said : " The rule upon this subject has frequently been made a 
 matter of consideration by the courts, and it is now well estab- 
 lished that to entitle the party interrogating the witness in this 
 
YIII. Cross-examination. (6) Bias. 655 
 
 People V. Webster, 139 N. Y., 73. 
 
 jnanner, by way of cross-examination, to introduce evidence to 
 contradict liis statenaents, the cross-examination must be directed 
 to a material inquiry in tbe case, or to evidence establisbing a 
 hostile or unfriendly bias against the party in the mind of the 
 witness." (See also Kirkpatrick «. IS. T. C. & H. E. K. K. Co., 
 Y9 ISr. Y., 243 ; Chapman v. Brooks, 31 N. Y., 87 ; Carpenter v. 
 Ward, 30 N. Y., 243.) 
 
 "We think this rule was violated by admitting this evidence to 
 contradict Fanny Eomaine on collateral matters, involving as it 
 did, the questions whether she had or had not, weeks prior to the 
 shooting,, slept in Mrs. Webster's apartment, and whether she 
 had not, while she lived at the Percival, been in the habit of 
 taking opium, and had not told Mrs. Wade that if she was de- 
 prived of the opium it would kill her. 
 
 The question, however, to be determined is, whether this was 
 a prejudicial error. The criminal code requires (Sec. 542) that, 
 " after hearing the appeal, the court nmst give judgment, with- 
 out regard to technical errors or defects, or to exceptions which 
 do not affect the substantia] rights of the parties." 
 
 The court therefore affirmed the judgment. 
 
 2'he Court of Appeals affirmed the judgement. 
 
 Matitaed, J. \_After stating facts, and ruling on other points.] 
 We do not think any error was committed in permitting the dis- 
 trict attorney, upon cross-examination of the defendant, to show 
 the circumstances under which he met the woman with whom he 
 was living and the kind of life slie was then leading. The ques- 
 tions were all within the range of a proper cross-examination. 
 Their manifest purpose was to prove that his relations to this 
 woman were unhallowed and adulterous in their origin; that 
 their subsequent life together was that of libertine and mistress, 
 and not of husband and wife, and that his word was, therefore, 
 not entitled to the same weight as if his conduct had always been 
 upright and blameless. 
 
 It is now an elementary rule that a witness may be specially 
 interrogated upon cross-examination in regard to any vicious or 
 criminal act of his life, and may be compelled to answer unless he 
 claims his privilege. A party who offers himself as a witness in 
 
666 Abbott's Select Cases on Examining "Witnesses. 
 
 People V. Webster, 139 N. Y., 73. 
 
 a criminal cause is not exempt from the operation of the rule. 
 He is not compelled to testify, and if not examined the law pro- 
 vides that it shall not give rise to any presumption against him. 
 When he elects to become a witness, it is for all the purposes for 
 which a witness may be lawfully examined in the case, and he is 
 not, in the constitutional sense, " compelled to be a witness 
 against himself," although, when subjected to the test of a legiti- 
 mate cross-examination, he may be required to make disclosures 
 which tend to discredit or to incriminate him. (People v. Tice, 
 131 N. Y., 667). The extent to which disparaging questions, not 
 relevant to the issue, may be put upon cross-examination, is dis- 
 cretionary with the trial court, and its rulings not subject to re- 
 view here unless it appears that the discretion was abused. 
 (Great Western Turnpike Co. v. Loomis, 32 N. Y., 12T; Greton 
 V. Smith, 33 id., 245.) 
 
 It is urged that this evidence should have been excluded, be- 
 cause it tended to implicate the defendant's wife, who was a 
 witness for him, and thus to impeach her in an unauthorized way 
 before the jury. But any apprehended misuse of this species of 
 evidence may always be avoided by asking and obtaining an in- 
 struction to the jury that it is only to be considered in determin- 
 ing the credibility of the witness who makes the confession. 
 
 The exception which remain to be considered relate to the 
 evidence of the witness, Fannie Eomaine. She was, ostensibly, 
 in the employ of the proprietor of the flat, as a chambermaid, 
 and in that capacity had no other duties to perform with 
 reference to the occupants of the defendant's rooms, than per- 
 tained to the other rooms of the house. The prosecution sought 
 to show that she had, in fact, become devotedly attached to the 
 defendant and his wife, and was, at the time of the homicide, 
 practically one of his household, and that their relations were in- 
 timate and confidential. "We think the People were entitled to 
 a submission of this proof, not as of a collateral, but as of an in- 
 dependent fact, and that the trial court properly allowed it to be 
 so given. That such is the rule where the witness is hostile to 
 the party against whom he is called cannot be questioned. As 
 was said by Ch. J. Eael, in People v. Brooks (131 IST. Y., 325), 
 " The hostility of a witness towards a party against whom he is 
 
YIII. Cross-examination. (6) Bias. 657 
 
 People V, Webster, 139 N. Y., 73. 
 
 called, may be proven by any competent evidence. It may be 
 shown by cross-examination of the witness, or witnesses may 
 be called who can swear to facts showing it." (Garnsey v. Ehodes, 
 138 N. Y., 461.) The same rule must prevail where the rela- 
 tions of the witness and the party who produces him are more 
 intimate and friendly than those which ordinarily exist in social 
 or business intercourse. This kind of evidence is especially 
 valuable in criminal prosecutions ; for " there are no cases," says 
 Wharton, " in which party sympathy, personal friendship, family 
 afEection operate, as a rule, so effectively as where life and 
 hberty are at stake. In such cases, while (unless in the relation- 
 ship of marriage, to be hereafter discussed) there is no exclusion 
 on account of bias, however strong, bias is always of importance 
 in determining credibility. ISTor is this exclusively on the 
 ground that bias prompts perjury. So it may sometimes do, 
 but cases of this class are rare, while cases in which bias leads to 
 unconscious perversion of facts are frequent. * * * For 
 these reasons interest and party or social sympathy may be 
 always shown in order to discredit a witness, and the same ob- 
 servation may be made as to near relationship." (Wharton 
 Grim. Ev. § 3Y6.) 
 
 In the pursuit of this line of proof, the People were per- 
 mitted to show by the housekeeper of the flat, that this witness 
 spent a great deal of the time in the company of defendant's 
 wife ; that she was her companion, and went out to dinner with 
 her in that capacity, and that she stayed with her evenings, and 
 as late as three o'clock in the morning. The housekeeper was 
 then allowed, under objection, to state that on one occasion the 
 witness, Komaine, had told her that she used to go with the de- 
 fendant's Avife to hunt up the defendant, and remain outside of a 
 well known place of amusement two hours at a time, while de- 
 fendant's wife was looking for him. The witness, Eomaine, had 
 denied upon her cross-examination that she had ever done so, or 
 that she had ever so stated to the housekeeper. The evidence 
 was properly allowed. It tended to contradict the Eomaine 
 woman as to a fact which was material in the case, and related 
 directly to the intimacy of her associations with the defendant's 
 family and the extent to which she was willing to serve them. 
 
658 Abbott's Select Oases on Examining Witnesses. 
 People V. Webster, 139 N. Y., 73. 
 
 The housekeeper was also allowed to state, under objection, 
 that Miss Eomaine, while employed in the Percival flats, was an 
 habitual opium eater, and that she was many times under the 
 influence of the drug, and that Miss Romaine had told her that 
 she could not leave it off or she would go mad. The witness 
 Eomaine had admitted, upon her cross-examination, that she 
 was in the habit of taking opium, and in reply to the question : 
 " Were you under the influence of it on this particular night 
 when this occurred ? " She replied : " IS'ot any more than any 
 other time." She was asked if she had not told the housekeeper 
 that if she gave up the use of opium, it would kill her. She 
 denied having so stated, or that she had any conversation with her 
 upon the subject. Upon re-direct examination, apparently for 
 the purpose of excusing some discrepancies between her testi- 
 mony on this trial and that given upon the examination before 
 the police magistrate, the defendant's counsel asked her if she 
 was not, at the time of the former examination, taking opium 
 frequently, and she replied in the affirmative, and also stated 
 that she was cured of the habit while in the hospital subse- 
 quently. 
 
 Under these circumstances we think the People were entitled 
 to give independent proof of the extent to which this habit had 
 control of her, and to contradict her testimony when she denied 
 that she had stated that she was so addicted to the use of the 
 drug at the time the homicide occurred that she could not live 
 without it. She was one of the principal witnesses for the de- 
 fense. She claimed to have been present when the defendant 
 killed the deceased, and to have witnessed the entire occurrence, 
 and to be able to give a minute description of the fatal en- 
 counter, and the value of her testimony depended largely upon 
 the accuracy of her perceptions. If she was then under the in- 
 fluence of a powerful narcotic, whose well known properties are 
 to distort the vision and induce mental confusion, it was material 
 to show it : and her denial of the admission she made to the 
 housekeeper was the denial of a material fact with respect to 
 which she might be contradicted if the denial was untrue. It was 
 not within the rule which concludes the cross-examining party by 
 the answers of the witness. 
 
YIII. Cross-examination. (6) Bias. 659 
 
 Note on Bias against one not a party. 
 
 We are satisfied that no errors were committed on the trial to 
 the prejudice of the defendant, and judgment of conviction 
 must be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 NOTE ON BIAS AGAINST ONE NOT A PAETY. 
 
 In Gai-nsey v. Rhodes, 138 N. Y., 461, an action upon a building con- 
 tract, tlie defendant's contention was that the plaintiff and his architect 
 colluded and conspired to alter the specifications, etc., or substitute otliers, 
 to the defendant's prejudice, An employe of the architects, one King, 
 was called by defendants to testify in support of tliis contention. 
 
 Maynaed, J., said : " We also think it was error to sustain tlie objec- 
 tions of the defendant to the questions put to the witness King, on cross- 
 examination, in which he was asked whetlier there had been any disagree- 
 ment between him and the architects ; or whether he left their employ in 
 consequence of a disagreement ; or whether when he left it was with 
 friendly feelings towards them, and whether his relations with them were 
 then friendly. This was the principal witness for the defendant to establish 
 the alleged conspiracy. He was at the time employed as a draughtsman 
 in the oflBce of the architects, and testified to transactions between them 
 and the plaintiff tending to show the collusion which the referee found. A 
 few months after he left their employ, and we think it was competent for 
 plaintiff to prove, if he could, that the witness was unfriendly to the archi- 
 tects. The object of the defense was to charge the plaintiff with the conse- 
 quences of a conspiracy between him and the architects, and it was, there- 
 fore, quite as material and important for the plaintiff to show that the wit- 
 ness by whom it was sought to establish the unlawful combination was hos- 
 tile to one of the parties to it as it would have been to have shown hosti- 
 lity on his part towards the plaintiff himself. The admission or rejection 
 of the evidence was not discretionary with the trial court. It is a material 
 fact which may be proved by any competent evidence, as was held by this 
 court in People v. Brooks (131 N. Y., 321). It was not there held, as the 
 counsel for the defendant seems to suggest, that it was in the discretion 
 of the court, whether such questions should be allowed. All that was 
 said upon the point was that the extent to which such an examination 
 may go must be in some measure within the discretion of the trial judge. 
 This must be so or else it might become interminable. 
 
 " But here the whole inquiry was ruled out. Even general questions 
 were disallowed, and, as it must be assumed, for the purposes of this 
 appeal, that if answered, the responses would have shown bias, the plaint- 
 iff may have been prejudiced by the exclusion of the evidence." 
 
660 Abbott's Select Cases on Examining Witnesses. 
 Note on Recent Cases on Cross-examining as to Bias. 
 
 NOTE ON EECENT CASES OE" CEOSS-EXAMININQ 
 AS TO EIAS. 
 
 Alabama: Salm v. State, 89 Ala., 56 ; s. c. 8 Southern Eep., 66 (on cross- 
 examination it is error not to allow a witness to be questioned as to facts 
 showing an unfriendliness to the party against whom he testifies ; as that 
 the witness had procured a warrant to be sworn out charging such party 
 with a criminal offense). California: People v. Gillis, 97 Cal., 542; s. c. 
 32 Pacific Rep., 586 (in a criminal prosecution it is error to refuse to allow 
 the prosecuting witness to be asked on cross-examination whether he had 
 not employed an attorney who was assisting in the prosecution). Anderson 
 V. Black, 70 Cal., 226; s. c. 11 Pacific Eep., 700 (in ejectment, one of the 
 plaintiffs as witness was asked on cross-examination if he had not on a 
 certain night gone with a shotgun upon the premises while defendants 
 were in possession and forcibly dispossessed them. Held, that it was im- 
 proper to exclude such question, but that its exclusion was not reversible 
 error, as the witness had previously admitted hostility). People v. 
 Thomson, 92 Cal., 506; s. c. 28 Pacific Rep., 589 (upon a trial for murder 
 it was held error not to allow defendant, on cross-examination, to ask a 
 witness who testified in chief that in going to the scene of the homicide 
 he took his rifle with him, why he took the rifle with him, where, under 
 the circumstances, the taking of the rifle by the witness might have been 
 actuated by his hostility to defendant). Colorado: Stewart v. Kindel, 15 
 Colo., 539 ; s. c. 35 Pacific Rep., 990 (an admission of hostility by a witness 
 does not preclude his cross-examination as to the extent of the ill feeling 
 and the character of such prejudice). Indiana: Hinchcliffe v. Koontz, 121 
 Ind., 423; s. c. 23 Northeast. Rep., 271 (it is discretionary with the Court 
 to limit cross-examination "to show a witness' bias). Sage v. State, 137 
 Ind., 15 ; s. c. 26 Northeast. Rep., 667 (defendant's witness may properly 
 be asked, on cross-examination, if he did not leave home in order to 
 enable the defendant to obtain a continuance). Robertson v. McPherson, 
 4 Ind. App., 595 ; s. c. 31 Northeast. Rep., 478 (a defendant may ask on 
 cross-examination if witness did not say that he and others were going to 
 keep up law suits against defendant until they broke him up). Louisiana : 
 State V. McFarlain, 41 La. Ann., 686 ; s. c. 6 Southern Rep., 738 (it is error 
 not to permit the accused to question a State witness as to his particular 
 acts of hostility against him, such as the witness' attempt to induce a 
 crowd to lynch the accused shortly after the offense). Missouri: State v. 
 Turlington, 102 Mo., 643; s. c. 15 Southwest. Rep., 141 (upon atrial for 
 murder it was held competent for the State to introduce a letter written 
 by witness to the defendant in order to show that the witness sympathized 
 with him ; if the letter contained anything prejudicial to the defendannt, 
 a proper precautionary instruction to the jury could have been requested). 
 Nebraska: Consaul v. Sheldon, 35 Neb., 347; s. c. 53 Northwest. Rep., 
 1104 (it is discretionary with the trial court to limit cross-examination as 
 to bias, and it is not error not to allow defendant to cross-examine a wit- 
 
YIII. Cross-examination. (6) Bias. 661 
 
 Note on Recent Cases on Cross-examining as to Bias. 
 
 ness as to his ill feeling towards him more than three years before the 
 "trial, where the witness had admitted that he had felt tmfriendly toward 
 defendant, but disclaimed any present ill feeling). New York: Lustig v. 
 N. Y., Lake Erie, etc., R. Co., 65 Hun, 547; s. c. 30 N. Y. Supp., 477 
 (where a witness on cross-examination denied any interest in the case, it 
 was held within the discretion of the court to refuse to allow further cross- 
 examination in reference thereto). Garnsey v. Rhodes, 138 N. Y., 461 ; 
 s. c. 34 Northeast. Rep., 199 (it is proper on cross-examination to show 
 that a witness who has given material evidence is hostile to one of the 
 parties ; and while it is in some measure in the discretion of the court how 
 far the examination shall go, it is not within its discretion to refuse to 
 allow any examination in relation thereto, and the exclusion of all such 
 testimony is error). Cambias v. Third Ave. R. Co., 1 Misc. R., 158; s. c. 
 20 N. Y. Supp., 638 (in an action for personal injuries defendant's witness, 
 on cross-examination, may be asked whether he had not offered plaintiff 
 money to settle). Strawbridge v. Vandenburg, 10 N. Y. Supp., 610 (it is 
 error not to allow plaintiff, as a witness, to be asked on cross-examination 
 whether he was the sole owner of the claim sued on). Oregon: State v. 
 ■Olds, 18 Oreg., 440 ; s. c. 32 Pacific Rep., 940 (in a criminal case the State 
 has a right to cross-examine the defendant's witness as to anything that 
 would show interest in the result of the trial, and anything he did in aid 
 •of defendant about the trial). State v. Jarvis, 18 Greg., 360 ; s. c. 23 Pacific 
 Rep., 251 (evidence of witnesses' declarations to show bias cannot be re- 
 garded as evidence in support of the facts in issue). 
 
662 Abbott's Select Oases on Examhstxng Witnesses. 
 Great Western Turnpike Co. v. Loomis, 33 N. Y., 127. 
 
 GKEAT WESTEKN TUKNPIKE CO. v. LOOMIS. 
 
 JVew York Court of Appeals, 1865. 
 
 [Reported in 33 N. Y., 137.] 
 
 Disparaging questions, put on cross-examination, if not relevant to the 
 issue, may be excluded in the discretion of the judge, though put for 
 tlie avowed purpose of impairiag credibility. The party, who called 
 tlie witness, may object. It is not necessary to put the witness to his 
 claim of privilege. 
 
 Plaintiff sued in a justice's court to recover fifty cents toll 
 money. 
 
 On tlie trial plaintiff's gatekeeper was called as a witness for 
 plaintiff, and testified that tlie defendant passed over plaintiff's 
 road and through the gate in question twice and refused to pay 
 toll. 
 
 On cross-examination he was asked : " Have you collected or 
 attempted to collect legal toll twice over or more of the same 
 individuals for one passing through the gate ? 
 
 Objected to as immaterial. Objection sustained. 
 
 The same question was then asked for the purpose of impeach- 
 ing the witness' credibility. 
 
 Same objection and ruling. 
 
 Q. Have you ever collected or attempted to collect toll of 
 people who are not liable to pay toll ? 
 
 Same objection and ruling. 
 
 A. I have been instructed to detain persons until they paid 
 their legal toll." 
 
 The Justice gave judgment for plaintiff. 
 
 The Madison County Court reversed the judgment, holding 
 that the questions were competent for the purpose offered, viz.: 
 to impeach the credit of the witness ; and although he might 
 have claimed the privilege of refusing to answer, the party could 
 not object, and it was error to exclude the questions upon such 
 objection. 
 
 The Supreme Court affirmed the judgment of the county- 
 
YIII. Cross-examination. (7) Disparaging Questions. 663 
 
 Great Western Turnpike.Co. v. Loomis, 32 N. Y., 127. 
 
 court, saying that if the gatekeeper had been permitted to 
 answer the questions put to him and he had answered them in 
 the afflmative, without any explanation more favorable to him- 
 self than direct affirmative answers would imply, such answers 
 would have affected his credibility as a witness. We held in 
 the People v. Blakely ^see i vol. Parker's Criminal Reports), that 
 counsel have the right to put question to witnesses on cross- 
 examination in regard to their own conduct to affect their credi- 
 bility, which, if answered in the affirmative, would have such 
 eifect, and that the court could not in its discretion refuse to 
 allow such questions to be put. 
 
 The Gotirt of Appeals reversed the judgment of the Supreme 
 and County courts, and affirmed that of the justice. 
 
 Poster, J. If the judgment of the court below be upheld 
 by the sanction of this tribunal it will embody in our system of 
 jurisprudence a rule fraught with iniinite mischief. It will sub- 
 ject every witness who, in obedience to the mandate of the law, 
 enters a court of justice to testify on an issue in which he has no 
 concern, to irresponsible accusation and inquisition in respect to 
 every transaction of his life affecting his honor as a man or his 
 character as a citizen. 
 
 It has heretofore been understood that the range of irrelevant 
 inquiry, for the purpose of degrading a witness, was subject to 
 the control of the presiding judge ; who was bound to permit 
 such inquiry when it seemed to him, in the exercise of a sound 
 discretion, that it would promote the ends of justice, and to ex- 
 clude it when it seemed unjust to the witness and uncalled for 
 by the circumstances of the case. 
 
 The judgment now under review was rendered on the assump- 
 tion that it is the absolute legal right of a litigant to assail the 
 character of every adverse witness, to subject him to degrading 
 inquiries, to make inquisition into his life, and drive him to take 
 shelter under his privilege or to self vindication from unworthy 
 imputations wholly foreign to the issue on which he is called to 
 testify. 
 
 The practical effect of such a rule would be, to make every 
 witness dependent on the forbearance of adverse counsel for that 
 
€64 Abbott's Select Cases on Examining "Witnesses. 
 
 Great Western Turnpike Oo..«. Loomis, 33 N. Y., 137. 
 
 protection from personal indignity which has been hitherto se- 
 cured from the courts, unless the circumstances of the particular 
 case made collateral inquiries appropriate. This rule, if estab- 
 lished, will be applicable to every tribunal having original juris- 
 diction. It will perhaps operate most oppressively in trials be- 
 fore inferior magistrates, where the parties appear in person, or 
 are represented by those who are free from a sense of professional 
 responsibility. But it may well be questioned whether, even in 
 our courts of record, it would be safe or wise to withdraw the 
 control of irrelevant inquiry from the judge and commit it 
 to the discretion of adverse counsel. The interposition of the 
 court has often been necessary to protect witnesses from the 
 vigor of examinations conducted on the supposition that they 
 were entitled to such protection. When this power of protec- 
 tion is withdrawn, is it to be expected that counsel, deeply en- 
 listed for their clients and zealous to maintain their rights, would 
 feel bound to exercise toward witnesses a forbearance which the 
 courts themselves refuse ? There is much diversity of opinion, 
 even among eminent members of the profession, as to the meas- 
 ure of obligation imposed upon counsel by the implied pledge of 
 fidelity to the client. This could not be more strikingly illus- 
 trated than by the atrocious, but memorable, declaration of one 
 of the leading lawyers of England, on the trial of Queen Caro- 
 line : " that an advocate, by the sacred duty which he owes his 
 client, knows, in the discharge of that office, but one person in 
 the world — that client, and none other. To save that chent by 
 all expedient means ; to protect that client, at all hazards and 
 cost to all others, and, among others, to himself, is the highest 
 and most unquestioned of his duties, and he must not regard the 
 alarm, the suffering, the torment, the destruction which he may 
 bring upon any other." (1 Brougham's speeches, 63.) Such a 
 proposition shocks the moral sense, but it illustrates the impolicy 
 of divesting the presiding judge of the power to protect wit- 
 nesses from irrelevant assault and inquisition. From the nature 
 of the case, he is in a position and frame of mind more favorable 
 than that of counsel to arrive at a safe and impartial conclusion. 
 The balance of justice should be held as steady and even between 
 the witness and the parties as between the opposing litigants, and 
 
VIII. Cross-examination. (7) Disparaging Questions. 665 
 
 Great Western Turnpike Co. v. Loomls, 33 N. Y., 127. 
 
 the rights of neither should be committed to the absolute discre- 
 tion of counsel. 
 
 It is believed that the practice on this subject which has here- 
 tofore prevailed in this state rests on sound principle and is 
 abundantly fortified by authority. Its propriety seems to have 
 been always recognized in the English courts, and the judges 
 have never hesitated at nisi prius to exercise a liberal discre- 
 tion in the admission or exclusion of irrelevant inquiries tending 
 to degrade the witness, according to the varying circumstances 
 under which the offer was made. 
 
 ]S'o better illustration of this can readily be found than is fur- 
 nished by a comparison of three of the reported decisions of Lord 
 Ellenborough, " that great master of the law of evidence," as he 
 is designated by Phillips and Roscoe. In the case of Frost v. 
 Halloway, the bearing of the witness was such that he not only 
 permitted an inquiry whether he had not been tried for theft, 
 but threatened to commit him if he refused to answer the ques- 
 tion. (1 Phillips, Cowen & Hill's ed., 283, note.) In the case of 
 Millman v. Tucker, when a witness was asked by Lord Erskine 
 if he had not been imprisoned for forgery, he gave permission to 
 the witness to answer the question if he felt it due to himself, 
 but advised him not to do so, and declared that if he himself 
 had been asked such a question he should have refused to answer, 
 " for the sake of the justice to the country and to prevent such 
 an examination." (Peak's Additional Cases, 222.) In the case of 
 Hex V. Lewis, the prosecutor was asked on cross-examination if 
 he had not been in the house of correction. Lord Ellenborough 
 at once interposed and prohibited the inquiry, on the ground 
 that witnesses engaged in the discharge of a legal duty should 
 not be subjected to improper investigation. (4 Espinasse, 226.) 
 
 In the leading case of Spencely v. De Willet, as in the case at 
 bar, the disparaging question was overruled, without any objec- 
 tion by the witness or any claim of privilege. In that case, as in 
 this, the avowed object of the defendant's counsel was to discredit 
 the witness. The defendant's counsel declared it to be their 
 purpose to avail themselves of the answer if affirmative, and, if 
 negative, to contradict the witness. Lord Ellenborough excluded 
 the question, on the ground that it called for an answer which, if 
 
, 666 Abbott's Select Cases on Examining "Witnesses. 
 
 Great "Western Turnpike Co. v. Loomis, 33 N. Y., 137. 
 
 affirmative, would be irrelevant, and, if negative, would not be 
 opened to contradiction. At his instance, for the purpose of 
 setting the practice at rest, the decision was reviewed on bill of 
 exceptions, and the exclusion of the question was sustained by 
 all the judges. (7 East, 108.) 
 
 Since that decision we find no case i7i the English courts in 
 which a new trial has been granted for the exclusion of dis- 
 paraging questions irrelevant to the issue ; though since that 
 time, as before, the judges at nisij)rius have continued to exer- 
 cise their discretion by permitting such collateral inquiries when 
 the ends of justice seemed to demand it, and in all other cases 
 excluding them in justice to the witnesses. The existing rule on 
 that subject in England is, undoubtedly, that stated in the note 
 subjoined to the report of the case of Hex v. Pitcher : " In prac- 
 tice, the asking of questions to degrade the witness is regulated 
 by the discretion of the learned judge in each particular case. 
 (1 Carr & Payne, 85.) Such has been the practice in this state 
 hitherto, and it has received the sanction of the General Term 
 in the fifth judicial district, in the case of the present plaintifE 
 against Phillips, which was precisely similar to that now under 
 review. 
 
 The judgment in the present case was rendered on the authority 
 of a recent decision in the sixth judicial district, in the case of the 
 People V. Blakely (4 Parker, 1Y6). That is the only case found 
 in our state reports in which a judgment has been reversed on the 
 ground of the exclusion of inquiries as to particular transactions, 
 tending to degrade the witness, but wholly irrelevant to the 
 issue. A careful and deliberate examination of the question, 
 aided by the learned and able opinion delivered in that case, has 
 failed to bring us to a conclusion in harmony with that of the 
 court below. 
 
 Much confusion and conflict in the treatment of this subject is 
 apparent in the English text-books, as well as our own. This is 
 mainly due to the fact, that the question usually arises only at 
 nisiprius. The rulings of the judges in different cases, being 
 on a mere question of practice at the trial, are not the subject of 
 review, and are necessarily acquiesced in by the parties. The 
 decisions, in these as in all other cases, resting in mere discretion 
 
Yin. Cross-examination. (T) Disparaging Questions. 667 
 
 Great Western Turnpike Co. v. Loomis, 32 N. Y., 127. 
 
 have been, of course, inharmonious, according to the views of 
 different judges and the varying circumstances of the cases in 
 which the question was presented. The text writers, as well as 
 the judges, differ in their views as to the rules which should con- 
 trol the exercise of this discretion ; some being predisposed in 
 favor of the liberal allowance of irrelevant crimination and 
 others preferring the practice of rigid exclusion. 
 
 Thus, two vsriters, as acute and discriminating as Roscoe and 
 Peak, cite respectively the case of Yewin, in 2 Campbell, and that 
 of Spenceley v. DeWillott, in Y East, as authority for proposi- 
 tions in apparent antagonism. Koscoe regards those cases as 
 establishing the rule, " that questions not relevant may be put to 
 the witness for the purpose of trying his credibility." (Eoscoe's 
 Crim. Ev., 181.) Peak quotes the same cases as superseding his 
 elaborate discussion, in the text of the first edition of his work, 
 as to the right to put such questions, and adds, that " as it may 
 now be considered as settled, that matters wholly foreign to the 
 cause cannot be inquired into from the purpose himself, those 
 arguments are now reprinted in the appendix. " (Norris's Peak, 
 204.) But when we reflect that both authors in what they wrote, 
 had in view the existing practice of England, by which the limits 
 of collateral examination were under the control of the presiding 
 judge, the seeming conflict ^disappears and their respective con- 
 clusions harmonize with each other, and with the cases on which 
 they rest. It is entirely true, as affimied by Roscoe, that 
 inquiries on irrelevant topics to discredit the witness, may be 
 permitted on the trial in the discretion of the judge ; and equally 
 true, as affirmed by Peak, that such inquiries may be excluded 
 without infringing any legal right of the parties. The writers 
 on evidence have endeavored to aid the courts in the exercise of 
 this discretion, with such results as they supposed to be deduc- 
 ible from the various decisions at nisi prius ; but from the nature 
 of the case, no fixed rule could be devised, defining the right and 
 limiting the extent of irrelevant inquiry, which would be just or 
 safe in universal application. 
 
 The opinion in the case of the People v. Blakely rests mainly 
 on prior decisions in our own courts, which, when examined and 
 classified do not seem to us to uphold the present judgment. 
 
668 Abbott's Select Cases on Examining Witnesses. 
 Great Western Turnpike Co. v. Loomis, 33 N. Y., 137.' 
 
 In several of the cases cited, the question did not arise. In 
 one of them, the discrediting evidence was received, and its ad- 
 mission was held to be no ground for reversal. (Howardy City 
 Fire Insurance Co., 4 Denio, 502.) In another, the witness 
 answered the disparaging questions ; and a new trial was 
 granted, on the ground that a party calling him should have been 
 permitted to give general evidence in support of his character 
 for truth. (The People v. Rector, 19 Wend., 569.) In a third, 
 the witness claimed his privilege ; the judge held that he was not 
 bound to answer and the court sustained his decision. (The 
 People V. Mather, 4 Wend., 229.) In four of the cases cited, the 
 exclusion of the discrediting evidence was held to be erroneous. 
 In neither of them did the witness claim his privilege. In each, 
 the proof offered and rejected was adjudged to be material and 
 relevant to the issue. (Jackson v'. Humphrey, 1 Johns, 498 ; 
 Southard v. Eexford, 6 Cow., 234; the Peoples. Abbott, 19 
 Wend., 192 ; the People v. Bodine, 1 Denio, 281.) 
 
 None of these .decisions tend to sustain the proposition that the 
 exclusion of inquiries as to particular transactions, wholly irrele- 
 vant to the issue, for the purpose of degrading the witness is 
 cause for reversal by any appellate tribunal. 
 
 That the witness was under no obligation to answer the ques- 
 tions propounded in the case at bar, is settled by the decision of 
 this court in the case of Lohman v. The People. It is there ex- 
 pressly adjudged that the party is not entitled to an answer to an 
 inquiry tending to disgrace the witness unless the evidence would 
 hear directly upon the issue. (1 N. Y., 380, 385.) 
 
 If, therefore, the defendant in this case had any cause of com- 
 plaint, it was not that he was deprived of an answer to which he 
 was entitled in law, but that he was deprived of the benefit of an 
 irrelevant fact, the truth of which does not appear, and which, if 
 true, the witness was under no obligation to disclose. The office 
 of a court ot review is to correct errors in law, prejudicial to the 
 appellant. If the answer was not matter -of legal ri^ht, the 
 question could properly be excluded unless it was relevant to the 
 issue. 
 
 But it is said that as the question tended to degrade the witness 
 he alone could take the objection. Strictly speaking, there is no 
 
YIII. Cross-examination. {Tj Disparaging Questions. 669 
 
 Great Western Turnpike Co. v. Loomis, 33 N. Y., 127. 
 
 case in wliich a witness is at liberty to object to a question. That 
 is the office of the party or the court. The right of the witness 
 to decline an answer if the court sustains his claim of privilege. 
 When the question is relevant, it cannot be excluded on the ob- 
 jection of the party, and the witness is free to assert or to waive 
 his privilege. But when the question is irrelevant, the objec- 
 tion properly proceeds from the party, and the witness has no 
 copcern in the matter unless it be overruled by the judge. The 
 precise issue is, whether the court before which the cause is tried 
 is authorized, in the exercise of a sound discretion, to exclude in- 
 quiries as to particular transactions irrelevant to the issue, and 
 tending to degrade the witness, on the objection of the party, 
 without putting the witness to his election. On this point we 
 understand the decision in the case of "Ward v. The People to be 
 controlling and decisive. Ward was indicted for larceny. On 
 the trial, the prosecutor was asked in the course of his cross- 
 examination, whether he had not himself stolen the property, 
 which he alleged to have been stolen from him by the prisoner. 
 The question was excluded on the objection of the district 
 attorney. The conviction was sustained in the Supreme Court, 
 on the ground that if the question had been permitted the witness 
 would not have been bound to answer it, and even if it had been 
 answered affirmatively the fact would have been immaterial to 
 the main issue. (3 Hill, 395.) The court of errors affirmed the 
 judgment on the specific ground, that though the witness had 
 not claimed his privilege, the objection was properly sustained 
 as the inquiry was irrelevant to the issue. (6 Hill, 144, 146.) 
 
 Every court having original jurisdiction is authorized to reject 
 evidence on immaterial issues, though objected to by neither party; 
 and if it were otherwise it would be a reproach to the adminis- 
 tration of justice. (Coming v. Corning, 2 Seld., 9Y ; The Peo- 
 ple V. Lohman, 2 Barb., 221.) 
 
 If, however, the question were res nova, we should have no 
 difficulty in arriving at the same conclusion. The practice which 
 has heretofore prevailed in this respect has been satisfactory to 
 the community, the bench and the bar. Questions of this nature 
 can be determined nowhere more safely or more justly than in 
 the tribunal before which the examination is conducted. Justice 
 
670 Abbott's Select Oases on Examining Witnesses. 
 
 Great Western Turnpike Co. v. Loomis, 32 N. Y., 127. 
 
 to the witness demands that the court to which he appeals for 
 present protection shall have power to shield him from indignity, 
 unless the circumstances of the case are such that he cannot fairly 
 invoke that protection. If the range of irrelevant inquisition 
 be committed to the discretion of adverse counsel, it will be no 
 reparation of the wrong to the witness, that the judgment in 
 which he has no concern may be afterward reversed by an appel- 
 late tribunal. 
 
 It often happens that leading questions become appropriate in 
 the course of a direct examination, in eliciting from hostile or 
 unwilling witnesses facts material to the issue. It happens often, 
 too, that the appearance and deportment of an adverse :witness — 
 his prevarications, reluctance, apparent bias — the intrinsic im- 
 probability of his testimony, or its incongruity with known facts 
 — make it the plain duty of the court to permit searching and 
 disparaging inquiries on matters irrelevant to the issue, for the 
 purpose of aiding the jury in a collateral inquiry as to his credit. 
 In each of these, as in other like cases, involving mere questions 
 of practice, order and decorum, the right and the duty of deci- 
 sion are wisely committed, in this state, as in England, to the 
 sound discretion of the court in which the trial is conducted. 
 Unless there be a plain abuse of discretion, decisions of this 
 nature are not subject to review or appeal. 
 
 The proposition that no witness has a right to complain of an 
 opportunity to vindicate his integrity by his own oath is plausi- 
 ble and specious, but illusory. It ignores the indignity of a 
 degrading imputation, when there is nothing in the circumstances 
 of the case to justify it. It ignores, too, the humiliation of 
 public arraignment by an irresponsible accuser, misled by an 
 angry client, and shielded by professional privilege. Few men 
 of character, or women of honor, could suppress, even on the 
 witness stand, the spirit of just resentment which such an exam- 
 ination on points alien to the case, would naturally tend to 
 arouse. The indignation with which sudden and unworthy im- 
 putations are repelled, often leads to injurious misconstruction. 
 A question, which it is alike degrading to answer or decline to 
 answer, should never be put, unless, in the judgment of the court, 
 it is likely to promote the ends of justice. A rule which would 
 
YIII. Cross-examination. (Y) Disparaging Questions. 6Y1 
 
 Spiegel V. Hays, 118 N. Y., 660. 
 
 license indiscriminate assaults on private character, under the 
 forms of law would contribute little to the development of truth, 
 and still less to the furtherance of justice. It would tend neither 
 to elevate the dignity of our tribunals, nor to inspire reverence 
 for oui- system of jurisprudence. 
 
 In the case now under review, there was no conflict in the 
 evidence. The witness was neither a stranger nor a volunteer. 
 The facts to which he testified were not only probable in their 
 nature, but within the personal knowledge of the party against 
 whom he was called. ISTo attempt was made to contradict him. 
 There was nothing in his testimony or the relations he sustained 
 to the parties, to deprive him of the benefit of the ordinary 
 presumptions in favor of good character and good faith. If the 
 disparaging questions had all been answered in the affirmative, 
 the jury would not have been justified in discrediting his evidence 
 on the facts material to the issue. But they were wholly irrele- 
 vant and were properly excluded on the trial. 
 
 The judgment of the Supreme Court and the County Court 
 should be reversed with costs, and the original judgment should 
 be afiirmed, with an order for restitution. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 SPIEGEL V. HAYS. 
 
 J^ew YorJc Court of Appeals, 1889. 
 
 [Reported in 118 N. Y., 660.] 
 
 The fact that a witness has been convicted of crime can be shown by his 
 cross-examination. 
 
 At common law this cannot be done against objection that the record is 
 the best evidence ; but under the statute (N. Y. Penal Code, § 714 ; 
 N. Y. Civ. Pro., § 832) conviction may be proved, either by the record 
 or his cross-examination. 
 
 The witness on such a cross-examination may be asked whether he has 
 been convicted of a crime, and so also whether he has been imprisoned 
 upon conviction, or whether he has committed a crime [subject to his 
 privilege against self-crimination] ; but it seems, he cannot be asked 
 merely whether he has been arrested or indicted, for this is not evidence 
 of guilt. ^ 
 
 Replevin for property claimed by plaintiff under a bill of sale 
 
672 Abbott's Select Cases on Examining "W"itnessp:s. 
 
 Spiegel V. Hays, 118 N. Y., 660. 
 
 from one Samuels. Defendants sought to justify their taking 
 under an attachment against Samuels, claiming that the sale to 
 plaintiff was fraudulent and void, as to the creditors of the 
 vendor. 
 
 On the trial Louis Behrman was called as a witness by the 
 defendant, and gave material testimony against plaintiff. 
 
 On cross-examination he was asked by plaintiff's attorney : Q. 
 " How long is it since you have been out of prison ? A. Nine 
 or ten years. 
 
 Q. What were you convicted of? 
 
 Objected to by defendant. Exception. 
 
 The Witness : Your Honor, must I answer that question ? 
 
 The Court : Yes. A. I was convicted for breaking open a 
 door and taking some bundles which belonged to my brother. 
 
 Q. Convicted for grand larceny, weren't you? A. I don't 
 know for what I was convicted, but I know that much. My 
 brother is Bernard Behrman, in the old country. 
 
 Q. Weren't you convicted of grand larceny in January, 1878, 
 at the residence of Philip Kraft, by breaking into the drawer of 
 a table and stealing therefrom a sum of money, at least, thirty 
 marks ? 
 
 Objected to. Objection overruled. Exception taken. 
 
 A. ISTo, sir ; not as I know ; I don't recollect. 
 
 Q. All you recollect is that you were convicted of what? 
 
 Objected to. Objection overruled. Exception. 
 
 A. Breaking in a bam door and taking bundles away." 
 
 Judgment entered for plaintiff. 
 
 The City Court of BrooUyn at General Term affirmed the 
 judgment without opinion on this point. 
 
 The Court of Apjpeals affirmed the judgment. 
 
 PoTTEE, J. [of ter passing on an exception to the charge, said'] : 
 There is another question, which is presented by exceptions, and 
 that relates to the questions which were asked the witness Behr- 
 man, who had been called by the defendant and had given 
 material and damaging testimony to the plaintiff, if believed by 
 the jury. He was asked upon his cross-examination, after he 
 
YIII. Cross-examination. (7) Disparaging Questions. 673 
 
 Spiegel V. Hays, 118 N. Y., 660. 
 
 answered without objection, how long since he had been out of 
 prison : " What were you convicted of ? " This question was 
 objected to generally, and the witness appealed to the court if 
 he must answer the question, and was answered, "Yes " by the 
 court. Thereupon the witness answered, " I was convicted for 
 breaking open a door and taking some bundles which belonged 
 to my brother." 
 
 Further on, in the course of his cross-examination, the witness 
 was asked of what he had been convicted, in respect to another 
 transaction, and, after a general objection to the question, he 
 answered : " Breaking in a barn door and taking bandies away." 
 These answers showed that the witness had been convicted of a 
 crime. As Sec. 714 Penal Code, permits that it may be shown 
 by a cross-examination of the witness that he has been convicted 
 of a crime without the production of the record of his convic- 
 tion, the question is simply whether a conviction of a witness, of 
 a crime, may be shown for the purpose of discrediting his 
 evidence. 
 
 That the jury may and should give proper consideration and 
 weight to evidence, showing that the witness has committed 
 crime, is beyond question (Real v. People, 42 IST. Y., 270-280 ; 
 The People v. Noelka, 94 N. Y., 137; The People v. Irving, 95 
 K Y., 541 ; Ryan v. The People, 79 N. Y., 598). 
 
 The apparent conflict in some of the cases, in respect to this 
 mode of discrediting witnesses, has arisen from the mode of 
 proving the discrediting fact. 
 
 It had been held before the penal code that it is not competent 
 to show by a cross-examination of the witness himself that he 
 had been convicted of a crime, if the objection was made that 
 the record of the conviction is the best evidence (Newcomb v. 
 Griswold, 24 N. Y., 298 ; Real v. People, 42 N. Y., 286). Such 
 objection being no longer available, you may show upon the 
 cross-examination of the witness himself, that he has been con- 
 victed of a crime, or that he had been imprisoned upon the con- 
 viction of a crime or that he had committed a crime (The People 
 V. Irving, 95 JST. Y., 541 ; The People v. Noelke, 94 N. Y., 187- 
 144 ; Real 'o. The People, 42 N. Y., 280). 
 
 The courts have repeatedly held that it does not prove that a 
 
674 Abbott's Select Oases ok Examining "Witnesses. 
 
 Spiegel 'v. Hays, 118 N. Y., 660. 
 
 witness has been guilty of a crime, to prove lie lias been arrested 
 upon the charge of a crime or that he has been indicted for a 
 crime (People v. Crespo, 76 N. T., 288 ; People «. Brown, 72 
 ]Sr. Y., 571; The People v. Irving, 95 N. Y., 544; Smith v. 
 Mulford, 42 Hun, 347). 
 
 We do not perceive that any error was committed upon the 
 trial and the judgment should be affirmed, with costs. 
 
IX. Privilege Against Crimination. 6Y5 
 
 Friess v. New York Central, etc., R. R. Co., 67 Hun, 205. 
 
 FKIESS V. NEW YOEK CENTKAL AND HUDSON 
 EIYEK E. E. Co. 
 
 New York Supreme Court, 1893. 
 [Reported in 67 Hun, 205.] 
 
 "Where it reasonably appear? that the answer to a question will have a 
 tendency to expose the witness to a criminal charge, he is not bound 
 to answer. 
 
 He may be protected without being required to explain how he might be 
 criminated. 
 
 When the court can perceive that such a question would have such a 
 tendency, its duty is to inform the witness of his privilege and sustain 
 him in declining to answer. It is only where the question does not dis- 
 close ground for apprehension, that the party is entitled to have the' 
 ground of the privilege stated by the witness, at least sufficiently to 
 show tliat the answer may fairly tend to criminate him. 
 
 Where the privilege of the witness is sustained, the refusal cannot be 
 commented on by counsel, nor considered by the j ury in weighing the 
 testimony. 
 
 PlaintifE sued for damages for personal injuries by catching 
 his foot in a frog maintained by the defendant on its track in the 
 sidewalk of a city street, crossed by the track. The defendant 
 contended and introduced evidence to show that the plaintifE was 
 stealing a ride at the time of the accident, and that his injuries 
 resulted from his falling from the train and being run over by 
 the cars. 
 
 One of the witnesses who was called and testified on behalf of 
 the plaintifE was a young woman. 
 
 Defendant's counsel in the course of her cross-examination in- 
 terrogated her as to her having sworn out a warrant charging 
 a man with having committed a rape on her ; as to having seen 
 the district attorney and sheriff ; and as to having seen a couple 
 of other men. She was then further examined as follows : 
 
 " Q. A couple of other men who said that they had been 
 familiar with you at that time ? 
 
 Objected to as incompetent, immaterial and improper. Objec- 
 tion sustained. 
 
676 Abbott' s Select Oases on Examining Witnesses. 
 Friess v. New York Central, etc., E. E. Co., 67 Hun, 205. 
 
 Q. At that time there, in the presence of District Attorney 
 Hancock and Mr. O'JSTeil here, did yon admit that it was not true 
 that Mr. De Eusha had committed a rape upon you, and that you 
 had sworn falsely when you charged him with it ? 
 
 Objected to as incompetent ; immaterial and improper. 
 
 The Oourt : You may answer it if you like, you are not 
 obliged to answer it unless you see fit. Do you decline to 
 answer? A. No, sir. 
 
 Q. Do you want to answer ? A. No, sir. 
 
 By Defendant's Oounsel : Q. You decline to answer that ques- 
 tion, do you ? You refuse to answer that question, do you ? A. 
 Yes, sir. 
 
 Q. Subsequently this proceeding against this man was 
 dropped ? 
 
 Objected to as incompetent. Objection sustained. 
 
 Defendant's Counsel : Your honor holds that she can refuse to 
 answer whether she has admitted committing perjury or not ? 
 
 The Court : Yes. 
 
 Exception for defendant. 
 
 By Defendant's Oounsel : Q. Do you refuse to answer that 
 question, whether you admitted then committing perjury, upon 
 the ground that it would disgrace you to answer the question ? 
 
 Objected to as incompetent. 
 
 The Court : I don't think that is proper. 
 
 Exception for defendant. 
 
 By Defendant's Oounsel : Do you refuse to answer that ques- 
 tion upon the ground that it would be confessing the commission 
 by you of a crime ? 
 
 Same objection, sustained. Exception taken. 
 
 The Court : I am wrong perhaps in these rulings, and I will 
 recall both of these last rulings. The plaintiff is not in a posi- 
 tion to object to her being asked these questions. I overrule the 
 objections to both questions, and instruct the witness she may 
 answer them or not, as she sees fit. 
 
 Exception for defendant. 
 
 (Question read.) Do you refuse to answer that question 
 whether you admitted then committing perjury upon the ground 
 that it would disgrace you to answer the question ? 
 
IX. Privilege Against Crimination. 6YT 
 
 Friess v. New York Central, etc., E. R. Co., 67 Hun, 205. 
 
 The Court : You may answer that or not, as you see fit. 
 Do you want to answer that question ? A. No, sir. 
 
 (Question read.) Do you refuse to answer that question upon 
 the ground that it would be confessing the commission by you 
 of a crime ? 
 
 By the Court : Do you want to answer that question ? A. No, 
 sir. 
 
 Exception taken to each ruling. 
 
 By Defendant's Counsel : Q. Now, I ask you to state here 
 any reason why you decline to answer that question, whether you 
 admitted at that time committing perjury ? 
 
 The Court : Q. What do you answer to the question ? Do you 
 understand the question ? A. Yes, sir. 
 
 Q. Do you want to answer that ? A. No, sir. 
 
 Q. You don't want to answer that ; you don't want to state 
 any reason ? A. No, sir. 
 
 Defendant's Counsel : I ask the court separately to instruct 
 her to answer each of those questions. 
 
 The Court : I decline to instruct her that she must answer 
 them ; I decline to compel her to answer them. 
 
 Exception taken. 
 
 At Circuit Court plaintiff 'recovered. 
 
 The Supreme Court at General Term aiBrmed the judgment. 
 
 JVIaetin, J. [after stating facts, said on this point] : It is an 
 old and well established principle of the law of evidence that 
 where it reasonably appears that the answer to a question will 
 have a tendency to expose a witness to a criminal charge, he is 
 not bound to answer. This is so, even where the fact in regard 
 to which he is interrogated forms but a link in the chain of tes- 
 timony which would convict him, and he is protected without 
 being required to explain how he might be criminated by the 
 answer. 
 
 In respect to this claim of privilege, there are two extremes 
 which ought equally to be avoided : First, That of requiring 
 from a witness, who has honestly claimed the privilege, any ex- 
 planation whatever of his reason for refusing to answer, if the 
 court can see how such answer may fairly and reasonably tend 
 
678 Abbott's Select Cases on Examining "Witnesses. 
 
 Friess v. New York Central, etc., E. E. Co., 67 Hun, 205. 
 
 to criminate him ; and, second, That of permitting a witness to 
 interpose the shield of apprehended peril as a protection against 
 every question which he is disinclined to answer, although there 
 be nothing in the circumstances of the case which, in the least, 
 suggests the danger. (Youngs v. Youngs, 5 Eedf., 506 ; People 
 V. Mather, 4 Wend., 232.) 
 
 "Whether an answer may tend to criminate a witness is a point 
 which the court may determine, under all the circumstances of 
 the case when the protection is plain, without requiring the 
 witness to explain how the effect is to be produced. In cases 
 of this kind, the court must see, from the circumstances and 
 nature of the evidence wliich the witness is called upon to give, 
 that reasonable grounds exist for apprehending danger to the 
 witness from being compelled to answer. (Taylor on Ev., § 145T.) 
 It is said, however, in New v. Fisher (11 Daly, 313): " Where 
 the answer to a question may tend to criminate or degrade a 
 witness, it is, undoubtedly, the privilege and duty of the court 
 to instruct the witness as to his legal rights, and the witness then 
 has the right to claim his privilege ; but the party seeking the 
 evidence has the right to make the witness claim his privilege,, 
 and to [require] the statement by the witness that he refuses to 
 answer because the answer may incriminate or degrade him." 
 
 "We seriously doubt the correctness of this rule. We are of 
 the opinion that when the court can perceive that a question put 
 to the witness would have a tendency to criminate him, it is its 
 duty to inform the witness of his privilege, and to sustain him in 
 declining to answer. It may be that where a question pro- 
 pounded does not disclose any ground for apprehension, that the 
 party may be entitled to have the ground of the privilege stated 
 by the witness, at least sufficiently to enable the court to see how 
 the answer might fairly and reasonably tend to criminate him. 
 Surely no such necessity existed in this case, as the question put 
 to the witness was whether she had admitted committing per- 
 jury. That this would tend to convict her of that crime was 
 readily seen and clearly understood by the trial court, and must, 
 also have been equally understood by the defendant. 
 
 Moreover, if the rule is as claimed by the defendant, and as 
 held in the ISTew case (supra) still, we are unable to discover 
 
IX. Privilege Against Crimination. 679 
 
 Note of Recent Cases, Privilege against Crimination. 
 
 in the rulings of the trial court, anything that would justify a 
 reversal of the judgment. From the claim of such privilege 
 and its allowance, no inference whatever could be legitimately 
 drawn affecting either party. (Phelan v. Ivenderdine, 20 Penn. 
 St., 354.) Nor could the fact of such refusal have been commented 
 on by counsel, or taken into consideration by the jury in de- 
 termining the weight to be given to the witness' testimony. 
 (Rose V. Blakemore Ey. and M., 382 ; Eex v. Watson, 2 Starkie, 
 158 ; Lloyd v. Passingham, 16 Ves. Jim., 59 ; Carne v. Litch- 
 field, 2 Mich., 340 ; Foster v. People, 18 id., 278: People v. 
 Maunausau, 60 id., 15.) If the court had compelled the witness 
 to specify the ground on which she claimed her privilege, it 
 would not have legitimately aided the defendant. Therefore, if 
 the rulings were erroneous, the error was harmless, and not 
 prejudicial to any of the defendant' s legal rights. 
 
 NOTE ON THE PEIYILEGE AGAINST SELF-CRIM- 
 INATION AS AFFECTED BY STATUTES 
 FORBIDDING USE OF THE EYL 
 DENCE TO CRIMINATE. 
 
 Whettier the existence of a statute providing that a witness' testi- 
 mony which tends to criminate him cannot be used in any prosecution 
 against him for the offense removes the privilege, is disputed. 
 
 Affirmative, People v. Kelly, 24 N. Y., 74 ; Gilpen v. Daly, 59 Hun, 413. 
 
 Negative, Counselman v. Hitchcock, 143 U. S,, 547. 
 
 The privilege extends to the production of documents, Boyd v. United 
 States, 116 U. S., 616. 
 
 NOTE OF RECENT CASES, PRIYILEGE AGAINST 
 CRIMINATION. 
 
 (a) As to what is privileged. 
 
 Illinois: Minter v. People, 39 111. App., 488 ; s. c. 29 Northeast. Rep., 45 
 (a witness cannot refuse to testify as to the names of those violating the 
 law, and as to their offense, because of a fear that they might give evi- 
 dence against him in turn). Iowa : Mahanke v. Cleland, 76 Iowa, 401 ; 
 s. c. 41 Northwest. Rep., 53 (a witness, by answering, must not only be 
 
680 Abbott's Select Cases on Examining "Witnesses. 
 
 Note of Recent Cases, Privilege against Crimination. 
 
 exposed to public disapproval, but public hatred, detestation or dishonor, 
 to entitle him to refuse to answer on the ground that he will be exposed 
 to public ignominy). Kansas: In re Nickell, 47 Kan., 734; s. c. 28 Pacific 
 Rep., 1076 (in a contempt proceeding against a party for inducing witnesses 
 to absent themselves, he cannot be compelled to testify; the act of which he 
 is accused of being made a crime by statute). Stevens v. State, 50 Kan. , 712 ; 
 s. c. 32 Pacific Rep., 350 (in bastardy proceeding, a witness cannot be com- 
 pelled to testify as to whether he had had illicit relations with the relatrix, 
 where his answer would expose him to a like prosecution, or would tend 
 to convict him of a crime). Michigan : People v. Mannausau, 60 Mich. 
 15 ; s. c. 26 Northwest. Rep., 797 (where a witness declines to answer on 
 the ground that his answer would tend to criminate him, he cannot be 
 impeached by showing that he had admitted, under oath, the fact sought 
 to be shown). Missouri : State v. Summons Hardware Co., 1892, 18 
 Southwest. Rep., 1125 (the act of 1889, §6, imposing the penalty of for- 
 feiture of franchise upon corporations entering into pools, trusts, etc., and 
 requiring corporate officers, under the penalty of fine and imprisonment, 
 to inform the Secretary of State whether their corporation had violated the 
 act, is in conflict with the constitutional provision, by which no one shall 
 be compelled to testify as to matters which tend to criminate him). New 
 York: Davies v. Lincoln National Bank, 19 State Rep., 905 ; s. c. 4 N. Y. 
 Supp., 873; 16 Civ. P^-o. R., 68 (under Code Civ. Pro., §837, providing that 
 a witness shall not be required to answer if his answer would expose him 
 to a penalty or forfeiture, the president of a bank cannot be examined 
 before trial in an action as to matters which would subject the bank to 
 the penalty for taking usurious interest). United States: Brunger v. 
 Smith, Cir. Ct., 49 Fed. Rep., 124 (where a witness, improperly claiming 
 the privilege of an attorney, refuses to answer in a trial for an interfer- 
 ence with a patent, the remedy is by a petition for an attachment, and 
 not by an order to compel him to answer). 
 
 [b.) How claimed and by whom. 
 
 California: Sharon v. Sharon, 79 Cal., 633; s. c. 22 Pacific Kep., 26 
 (whereupon cross-examination to impeach him a witness is questioned as 
 to a particular wrongful act, whether the question is pertinent or not, the 
 witness may object to answering on the ground that it will tend to crimi- 
 nate him ; but if the question is irrelevant, as well as incriminating, the 
 party introducing the witness may also object, and his objection should be 
 sustained, whether the witness object or not). Colorado: Lathrop v. 
 Roberts, 16 Colo., 250; s. c. 27 Pacific Rep., 698 (the objection that the 
 answer, if made, may tend to criminate the witness can only be made by 
 the witness himself ; it is not an objection by which a party may exclude 
 testimony). Illinois : Mohne "Wagon Co. e. Preston, 35 111. App., 358 (it is 
 error for the trial court to sustain a witness' objection to answering where 
 the answer would merely tend to disgrace the witness), Minter v. People, 
 39 111. App., 438; s. c. 29 Northeast. Rep., 45 (to entitle a witness to the 
 privilege of not answering, the court must be able to see from the circum- 
 
IX. Privilege Against Crimination. 681 
 
 Note of Recent Cases, Privilege against Crimination. 
 
 stances and the nature of the question there is reason to apprehend 
 danger). Iowa : State v. Van Winkle, 80 Iowa, 15 ; s. c. 45 Northwest. 
 Rep., 388 (defendant in a criminal action has no ground for exception, 
 though a witness called in his behalf is wrongfully compelled to testify as 
 to matters which would tend to criminate him). Mahanke v. Cleland, 76 
 Iowa, 401 ; s. o. 41 Northwest. Rep., 53 (a witness may be compelled to 
 answer against his objection that it will tend to criminate him or expose 
 him to public ignominy, unless it appears to the court that there is a 
 reasonable ground for tiis objection). Massachusetts : Commonweath 
 V. Gould, 1893, 33 Northeast. Rep., 656 (in a prosecution for illegally selling 
 liquor, defendant cannot object to a purchaser testifying as to matters 
 which would tend to incriminate himself). Minnesota : State v. Thaden, 
 43 Minn., 253; s. o. 45 Northwest. Rep., 447 (to entitle a witness to the 
 privilege of silence the court must be able to see from the circumstances 
 that there is a reasonable ground to apprehend danger from being com- 
 pelled to answer); s. p. State v. Tall, 43 Minn., 273; s. c. 45 Northwest. 
 Rep., 449. New York: Friess v. N. Y. Central, etc., R. Co., 67 Hun, 205 ; 
 s. c. 22 N. Y. Supp., 104 (where it clearly appears from the nature of the 
 question put a witness that an answer would tend to criminate him, the 
 court may instruct the witness that he need not answer, and the examin- 
 ing party is not entitled to have the witness state the ground on which he 
 refuses to answer). Boston Marine Ins. Co. v. Slocovitch, 55 N. Y. Super. 
 Ct., 452 (it is no ground for exception, for the court instructed the witness 
 as to his privilege). North Carolina : People ex rel. Boyer v. Teague, 106 
 N. C, 576 ; s. c. 11 Southeast. Rep., 665 (neither party can contend for a 
 witness' privilege from not testifying as to how he voted, and he, the 
 witness, is wrongfully compelled to testify against his will, his testimony, 
 if competent in other respects, may be submitted to the jury). Pennsyl- 
 vania : Eckstein's Petition, 148 Pa. St., 509 ; s. c. 24 Atlantic Rep., 63 (a 
 witness cannot refuse to appear and be sworn on the ground that he has 
 been indicted for the transaction which is the subject of investigation, he 
 must wait until the question is put him before he can claim the privilege). 
 Commonwealth v. Bell, 145 Pa. St., 374; 23 Atlantic Rep., 641 (a witness 
 who declines to answer on the ground that it will tend to criminate him 
 is not the sole judge whether it will have such effect ; but it is for the 
 trial judge to determine whether there is a reasonable ground for such 
 refusal.) Texas: Brown ■«. State, Crim. app., 1893, 20 Southwest. Rep., 
 924 (no one but the witness himself can object to his testifying as to mat- 
 ters which tend to criminate him). 
 
 (c.) Removal of danger or waiver hy witness. 
 
 Colorado: Lathrop v. Roberts, 16 Colo., 250; s. c. 27 Pacific Rep., 698 
 (after acquittal upon a criminal charge a witness cannot refuse to answer 
 in relation thereto). Iowa : State v. Van Winkle, 80 Iowa, 15 ; s. c. 45 
 Northwest. Rep., 388 (where one jointly indicted with defendant testified 
 before the grand jury to wha-t he knew about the alleged cj'ime, held, that 
 upon the trial of the co-defendant, the witness could not refuse to testify 
 
682 Abbott's Select Oases on Examining Witnesses. 
 
 Note of Eecent Cases, Privilege against Crimination. 
 
 on the ground that he might thereby tend to criminate himself). State v. 
 Peffers, 80 Iowa, 580 ; s. c. 46 Northwest. Rep., 663 (defendant's wife was 
 arrested for the murder of which defendant was also accused, and volun- 
 tarily testified before the coroner ; held that as a witness for her husband 
 she might be cross-examined as to what she testified to before the coroner, 
 to lay a foundation for her impeachment). Michigan: People v. Gosch, 
 83 Mich., 33; s. c. 46 Northwest. Eep., 101 (where the wife of accused 
 testifies in his behalf, the People are entitled to full and fair cross-exami- 
 nation upon all matters relevant to the case. Missouri: Ex parte 
 Baskett, 106 Mo. 603; s. c. 17 Southwest. Bep., 753 (a witness is not 
 excused from being compelled to testify as to whom he was gambling 
 -with, since Mo. E. S., § 3819, providing that the testimony of one who 
 has been himself gambling shall in no case be used against him, afl'ords 
 the witness a protection co-extensive with that intended by the constitu- 
 tion). New Hampshire: Manchester, Etc., E. Co. v. Concord E. E., 1891, 
 20 Atlantic Eep., 383 (where the prosecution for a penalty is barred by 
 the statute of limitations, a party cannot refuse to discover matters con- 
 nected with the transaction. New York: People v. Tice, 131 N. Y., 651 ; 
 s. c. 30 Northeast. Eep., 494 (where defendant in a criminal action volun- 
 tarily testifies in his own behalf, he may be required on cross-examination 
 to answer questions concerning his credibility and matters relevant to the 
 issue, though he may not have been examined in reference thereto on his 
 direct examination). Gilpin v. Daly, 59 Hun, 413; s. c. 13 N. Y. Supp., 
 390 (where in an action to recover money lost at gambling, the complaint 
 charged a violation of Penal Code, §§341, 343, making gambling a mis- 
 demeanor, held, that the action was within Penal Code, §341, providing 
 that no person shall be excused from testifying as to the violation of the 
 act against gambling upon the ground that it would tend to convict the 
 witness, but that his testimony cannot be received against him in a crimi- 
 nal proceeding ; and defendant might therefore be compelled to answer 
 though his answer might tend to show that he had violated such law). 
 North Carolina: State v. Allen, 107 N. C, 805; s. o. 11 Southeast. Eep., 
 1016 (defendant, in a criminal action, waives his privilege if he voluntarily 
 testifies in his own behalf). United States: Counselman v. Hitchcock, 
 143 U. S., 547; s. c. 13 Supm. Ct., 195 (under the TT. S. Constitution, 5th, 
 Amend., which declares that no person shall be compelled in any criminal 
 case to be a witness against himself, a person under investigation before a 
 grand jury as to the violation of the interstate commerce act, is not 
 obliged to answer a question which he claims will tend to criminate him, 
 though under U. S. E. 8., §860, no evidence given by such a witness could be 
 in any manner used against him in any criminal proceeding ; no statute 
 which leaves a party or witness subject to prosecution after he answers 
 questions, can have the effect of supplanting his constitutional privilege. 
 
X. Right of a Witness to Explain. 683 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 FERRIS V. HARD. 
 
 New York Court of Appeals, 1892. 
 
 [Reported in 135 N. Y., 354.] 
 
 "Where there is a clear contradiction between the testimony of a 
 witness and new matter stated as a defence in his sworn answer, 
 he sliould be permitted to testify in explanation thereof that he 
 stated the facts to the attorney who prepared the answer and was 
 advised by the latter that there was no legal difference. 
 
 "Where the party has been permitted without objection to give testi- 
 mony contradicting the allegations of his pleading it is too late to ob- 
 ject to the explanation as precluded by the pleading. 
 
 The distinction explained between an admission, in the answer, of an 
 allegation in the complaint (which constitutes an issue and therefore 
 limits the evidence), and aa allegation of new matter in the answer. 
 
 Plaintiff sued to foreclose a mortgage made by the defendants, 
 Samuel B. Hard and wife, to Joseph Bork, and by him assigned 
 to the plaintiff. The verified answer of Samuel B. Hard to the 
 amended complaint set up new matter relied on as a defence 
 which contained the allegation : " that on or about the said tenth 
 day of September, 1874, in order to secure said firm [Lyon, 
 Bork & Co.], for loans of money theretofore made, or which 
 might thereafter be made by them to the said defendant, said 
 defendant made and executed the bond mentioned in the amended 
 •complaint herein and also procured to be delivered to Joseph 
 Bork, one of the members of said firm, the mortgage mentioned 
 and set forth in the said amended complaint herein for the bene- 
 fit of said firm as collateral security for said loans made or to be 
 made the said defendant." 
 
 Upon the trial Samuel B. Hard was called as a witness for the 
 defence and testified as follows : " I told him [Bork], I wanted 
 some money, that I would get my wife to execute a mortgage 
 for $10,000 on a part of the creek property, and think I said I 
 would give my bond and asked him to sell it ; I can't say whether 
 anthing more was said then, but at that time or some other time 
 pending sale, I wanted him to accept my draft for about $1,500 ; 
 
684 Abbott's Select Cases on Examining Witnesses. 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 if I did not say it then I did some days after on finding that the 
 mortgage could not be immediately sold ; nothing was said be- 
 tween me and Bork, that the mortgage should stand for anything 
 I owed, or as I remember, about this bond and mortgage being 
 given to secure any advances, subsequently to be made by either 
 of said firms or by Eork." 
 
 The defendant, Margaret H. Hard, then offered to show by 
 this witness that when his and Mrs. Hard's answers to the com- 
 plaint herein were drawn, he informed the attorney who drew 
 them that the bond and mortgage in question were executed and 
 delivered to Bork, to be sold by him for the benefit of this wit. 
 ness, as absolute securities, and not as securities for any amount 
 then owing by him or for advances thereafter to be made. That the 
 said attorney advised him that there was no legal difference, that 
 the mortgagee would have the right to hold them as such security, 
 and that such was the legal effect of the transaction, and that, 
 relying upon such advice and supposing it to be correct, he and 
 the defendant Margaret H. Hard, answered said complaint as 
 shown by their answers herein." The Court, on plaintiff's ob- 
 jection, excluded this testimony. 
 
 Upon the trial before Referee plaintiff recovered. 
 
 The Superior Court of Buffalo at General Term affirmed the 
 judgment without opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Peckham, J. {after stating facts] : We think this offer should 
 have been allowed to be proved. As the evidence stood a clear 
 contradiction was shown between the evidence and the sworn 
 answer of the witness, and any evidence which tended, if be- 
 lieved, to explain such contradiction in a manner consistent 
 with the honesty of the witness the defendants were entitled to 
 give. 
 
 If the plaintiff claims that the allegation in the answer was 
 an admission of a fact which concluded the defendant so long as 
 it remained a part of the pleading, one objection to such claim 
 is that it comes too late. The plaintiff had permitted the evi- 
 dence to be given which showed the contradiction, and it was 
 
X. Bight of a Witness to Explain. 685 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 then too late to interpose with an objection which would pre- 
 clude any explanation of the contradiction. This is upon com- 
 mon principles of fairness. If the plaintiff had a conclusive 
 objection to the proof of any fact which would contradict an 
 admission in the answer, he was bound to state it when the evi- 
 dence in contradiction was offered, and he should not be per- 
 mitted to acquiesce in its admission without objection, and 
 subsequently present the objection when the witness desires 
 to explain this contradiction. Otherwise the plaintiff ob- 
 tains the benefit of the contradiction and its effect as more 
 or less of an impeachment of the rest of the evidence of the 
 witness, while at the same time he secures the conclusive charac- 
 ter of the admission in the pleading. This he should not be 
 permitted to do. 
 
 Upon examination of the so-called admission we are of the 
 opinion that it is not of such a character as to prevent on that 
 ground evidence of an inconsistent fact. It admits no allega- 
 tion of the complaint. That pleading made no allegation as to 
 the consideration of the bond and mortgage. It alleged the ex- 
 ecution of the bond in the penal sum of twenty thousand dol- 
 lars, with the condition for the payment of ten thousand as 
 therein stated, and that the mortgage was executed as security 
 for the bond. 
 
 The answer of Mrs. Hard set up as an afiirmative defense the 
 execution of the mortgage for the purpose of securing the firm 
 of Lyon, Bork & Co. for loans already made by that firm to her 
 husband, or which might thereafter be made to him, and then 
 stated the further facts necessary to secure an accounting, and 
 denied the indebtedness of ten thousand dollars. The only ad- 
 mission that could possibly be here claimed would consist in an 
 admission of the execution of a mortgage upon the lands de- 
 scribed in the amended complaint. 
 
 It in fact is nothing but an allegation of the execution of a 
 mortgage, coupled with and forming part of the allegation as to 
 its consideration. An answer may contain a direct or an implied 
 admission of some fact alleged in a complairit. The admission 
 is implied when the fact alleged in the complaint is not denied 
 in the answer. It is direct when the admission is made in terms. 
 
686 Abbott's Select Cases on Examining "Witnesses. 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 Either form of admission of an allegation contained in the com- 
 plaint is conclusive upon a defendant so long as it remains in the 
 pleading, and the plaintifE can point to it as conclusive proof of 
 the truth of his allegation. {Paige v. Willett, 38 N. Y. 28 ; 
 Bobbins v. Codman, 4 E. D. Smith, 315, 325.) 
 
 An allegation contained in an answer setting up an affirmative 
 defense, which has no reference to, and does not admit any alle- 
 gation of the complaint, is of an entirely different nature. Such 
 allegation is not an admission contained in a pleading which is 
 conclusive so long as it remains in the record. An admission 
 which, so concludes a party admits something already alleged or 
 set forth in the pleading to which the pleading containing the 
 admission is an answer. In this case the allegation as to the con- 
 sideration of the mortgage admitted nothing as to that consider- 
 ation which was set forth in the complaint, for there was no 
 allegation therein as to the consideration, and consequently the 
 defendant was not concluded from showing a fact which was in- 
 consistent with his allegation of the consideration on the ground 
 that he had admitted the consideration and could not be heard 
 to prove one inconsistent with such admission. The plaintiff 
 could avail himself of the allegation in the answer as a declara- 
 tion by defendant, and the defendaat could explain it by other 
 evidence so far as possible. 
 
 The question whether this evidence of the consideration as 
 testified to by Mr. Hard was not objectionable on the ground 
 that it changed substantially the defense (Code, § 723) is not now 
 here. No such question was raised when the evidence was given. 
 Subsequent to that time the defendants requested the referee to 
 give them leave to amend the answers by striking out the allega- 
 tions as to the consideration of the mortgage and by inserting 
 allegations in conformity to the testimony of defendant. Hard. 
 This was objected to by the plaintiff upon the ground that such 
 amendment would change the issues and also because the defend- 
 ants had been guilty of laches. The court denied the motion for 
 lack of jurisdiction, and not as discretionary. I suppose the 
 motion was made so that the evidence already in without objec- 
 tion might be regarded by the referee as properly taken upon a 
 question raised by the pleadings and in order that he should not 
 
X. Right of a Witness to Ex]plain. 68^ 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 ignore the evidence as not material to any issue raised, although 
 coming in without objection. The defendants, of course, desired 
 the benefit of this evidence, if there were any, and, therefore, 
 naturally sought to have it appear as material evidence offered 
 upon an issue raised by their answers in the action. 
 
 As there must be a new trial because of the error in refusing, 
 under the circumstances already set forth, to allow the defend- 
 ant, Hard, to explain the apparent contradiction in his evidence 
 when compared with his answer, it is not necessary to decide 
 whether the referee was or was not correct in his decision. The 
 motion for leave to amend can be now made at Special Term, if 
 defendants be so advised, before another trial is entered upon, 
 and the court can decide the motion upon such terms as to it may 
 appear to be just. The rules for permitting amendments to 
 pleadings before trial so as to have them present the case as the 
 parties desire it, are very properly quite liberal and there is no 
 fear that the defendants will be treated with any injustice in 
 such a matter. 
 
 It would be quite unfortunate for the parties if we should send 
 this case back for a new trial without deciding the real question 
 which appellants' counsel has so ingeniously argued. He says 
 this mortgage was executed by the defendant, Mrs. Hard, as a 
 surety for her husband's liability, and her contract must be judged 
 according to the strictest rules governing contracts of sureties. 
 The mortgage, he says, is in terms one to Joseph Bork and on 
 its face purports to secure the payment to him of ten thousand 
 dollars, and it cannot be enforced as security for the payment of 
 Mr. Hard's debt to Lyon, Bork & Co., or any other firm, even 
 though Joseph Bork were a member thereof, and it can only be 
 enforced as a security for a debt owing to Joseph Bork person- 
 ally. He urges that the contract is one to answer for the debt 
 of a third person and must be in writing, and the writing must 
 govern., even though it do not express the parol contract which 
 in fact had been entered into. Thus, if Mrs. Hard had agreed 
 by parol to secure by her mortgage the debts of her husband to 
 Bork, or to any firm of which he was a member, and the mort- 
 gage was in terms to secure her husband's personal indebtedness 
 to Bork alone, it could not, he argues, be enforced for the firm 
 
688 Abbott's Select Cases on Examining Witnesses. 
 
 Ferris v. Hard, 135 N. Y., 354. 
 
 indebtedness because of the want of an agreement in writing to 
 that effect. Tbe principle claimed by the counsel may be correct, 
 but it is not applicable to this case. 
 
 It is true that the indebtedness for which the land of Mrs. 
 Hard is to be held liable is that of a third person, viz. : her hus- 
 band, but her contract in regard to it is in writing and signed by 
 her. The statute which forbids holding her liable for the debt 
 of another, unless by virtue of her own contract in writing and 
 signed by her, is thus complied with. Evidence of the real 
 and actual consideration of the mortgage may always be given by 
 parol. Either party is always at liberty to show for any purpose, 
 except to prevent its operation as a valid deed or mortgage, that 
 the consideration was different from that named in the instru- 
 strument. {Murray v. Smith, 1 Duer, 412, and cases cited.) 
 This principle is not affected because one of the parties to the in- 
 strument is a surety for some third person. Thus, in this case, 
 it seems to me plain that parol evidence is admissable to show 
 that the consideration for the execution of this written security 
 for the payment of ten thousand dollars was the indebtedness 
 then existing or subsequently to be incurred of Mr. Hard, the 
 husband of the mortgagor, to Mr. Bork, or to any firm of which he 
 was a member. The mortgagor must be privy to such consider- 
 ation. The evidence of the real consideration does not change 
 the liability of the party signing the mortgage. It shows the 
 reasons for assuming the obligation and the character thereof. 
 While the instrument might show a pecuniary consideration for 
 its execution, parol evidence is admissible to show that the con. 
 sideration was other than pecuniary. And this has been held 
 not to violate the general rule that parol evidence is not admiss- 
 ible to contradict a writing. (Case above cited.) The same 
 principle applies to the case of a surety. The consideration, 
 while open to explanation, cannot be enlarged so as to enlarge 
 the liability beyond that which the party has entered into in writ- 
 ing. The amount of the indebtedness of her husband for which 
 Mrs. Hard's property described in the mortgage could be held 
 liable, cannot in any event exceed ten thousand dollars and in. 
 terest properly cast. She has only ofEered her land as security 
 to that extent and she cannot be held beyond it by virtue of any 
 
X. Right of a Witness to Explain. 689 
 
 Chesebrough v. Conover, 13 N. Y. Supp., 374. 
 
 parol agreement. She agreed to hold her land liable to secure 
 the payment of ten thousand dollars in sums and at the times 
 mentioned in the mortgage, and her land is not liable? to secure 
 the payment of any greater sum or at any other times than as 
 she promised. Any indebtedness therefore which her land could 
 secure must have been incurred and have become due not later 
 than the times indicated for the payment of the moneys set out 
 in the mortgage. Within the principle permitting parol evi- 
 dence as to the consideration for which a written instrument was 
 executed, it is entirely competent to show that the consideration 
 upon which the defendant, Mrs. Hard, executed the mortgage 
 to secure the payment of ten thousand dollars was the indebted- 
 ness of her husband then existing or thereafter to be incurred in 
 favor of Mr. Bork or in favor of any firm of which he was a 
 member. The agreement by which Mrs. Hard answers for the 
 debt. of a third person is the written mortgage signed by her. 
 The consideration for the written agreement may be proved by 
 oral evidence. This consideration will be a matter for proof 
 upon the new trial which must be had, and we will not anticipate 
 further the questions which may possibly be raised on such new 
 trial. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 CHESEBKOUGH v. CONOVEE. 
 
 New York Supreme Court, 1891. 
 
 [Reported in 13 N. Y. Stipp. 374.] 
 
 A witness has a right to explain his testimony. If counsel prevents the 
 exercise of this right, the failure to allow the explanation to go to the 
 jury, may be ground for granting the other partj' a new trial. 
 
 The material facts appear in the opinion. 
 
 At Special Term, plaintiff recovered. 
 
 The Sv/preme Court at General Term., reversed the judgment : 
 Beadt, J., saying : It appears from the record that this action 
 
690 Abbott's Select Cases on Examining "Witnesses. 
 
 Chesebrough v. Conover, 13 N. Y- Supp., 874. 
 
 was brought to recover for services rendered to the defendant at 
 Ms request. His answer was a denial. The issue thus made was 
 brought to trial in June, 1890, when the plaintiff testified to the 
 rendition of the services at the plaintiff's request, and the defend- 
 ant contradicted the statement thereto directly. The scale was thus 
 apparently evenly balanced, and the only evidence given to turn 
 it was that of Edward P. Phelps, who was sworn on behalf of 
 the plaintiff. He was a material witness, it is said in the affi- 
 davit of the defendant, and his manner on the stand evidently 
 impressed the jury. The whole of what he testified to we are 
 not shown by the record, but it appears that upon cross-examin- 
 ation he was asked whether he had sent a telegram, which was 
 exhibited to him, and answered : " I may have sent it." He was 
 then asked : " Have you any doubt about it ? " He said " I 
 don't know whether 1 have any doubt about it or not." And 
 again, " What is your best recollection ? " And the answer was, 
 " Y es, coming through M r. Conover's hands, I have a doubt 
 about it." " Have you any reasonable doubt that you sent it ? " 
 " Yes," was the answer, " coming through his hands, I have. He 
 would forge a man's name as soon as he would do anything else. 
 May be he may have been at Albany and sent it." He was then 
 asked a series of questions, but the object was to show that the 
 answer in reference to Mr. Conover's readiness to forge a name 
 was not responsive to any question asked him, and was a state- 
 ment volunteered by him, both of which propositions he ad- 
 mitted. The trial lasted three days, and on the third day a 
 verdict was rendered against the defendant and a judgment en- 
 tered for $18,102.1T. It also appears that within a few days 
 thereafter, to-wit, on the 23d of June, 1890, Phelps, without 
 the solicitation and to the surprise of the defendant, sent a letter 
 to the latter (a copy of which is set out in the record), and in 
 which he admits that in the evidence he gave in reference to the 
 defendant, he wrongfully charged him with a willingness to com- 
 mit a heinous offense, and which charge he said : " 1 now 
 wholly retract, as I had not reason then to believe, and do not 
 now believe, you [meaning defendant] would do anything of 
 the kind." He also stated that while under the influence of 
 great excitement, caused by the savage attack of the defendant's 
 
X. Bight of a Witness to Explain. 691 
 
 Chesebrough v. Conover, 13 N. Y. Supp., 374. 
 
 lawyer upon him and his character, he said then what he had 
 deeply regretted since it was uttered ; and still further that he 
 did not fully realize the nature and scope of his statement until 
 he read it as reported in the following morning papers, and went 
 at once to the court, and before the trial was concluded, to have 
 the complaint withdrawn and the offense corrected accordingly, 
 but that Mr. Saunders, the plaintiff's lawyer, would not let him do 
 it, and therefore decided on writing directly to the defendant to 
 make some reparation for the wrong he had made. The response 
 made to this state of facts by the plaintiff is in an affidavit made 
 by -him, the purport of which is that Mr. Phelps, on the day suc- 
 ceeding that on which he gave the offense, was told that he was 
 liable to be arrested and be sent to prison for what he said about 
 the defendant, and that three or four days afterwards a 
 Mr. Cozans had said to Phelps that the defendant had been 
 to see him, and said that he was going to have Phelps ar- 
 rested, but that he had received letters from various people, 
 asking him not to have it done, and that under fear and threat 
 of arrest Phelps and his son had drafted a letter. to the defend- 
 ant, which was submitted by Phelps to Cozans and left with him 
 for revision, which was made, and that Phelps informed the 
 plaintiff of all these facts. There is no denial, however, by Mr. 
 Saunders of the statement of Mr. Phelps that he had refused to 
 permit the latter, while the trial was in progress, to make the 
 correction which he contemplated, and which he went to the 
 court for the express purpose of making, and the fact that he did 
 go to court for the purpose mentioned, is wholly inconsistent 
 with the statement made in the plaintiff's affidavit that three or 
 four days afterwards Mr. Cozans communicated to the defend- 
 ant his intention to have Phelps arrested, and that under that 
 fear and threat Phelps had drafted the letter, to which reference 
 had been made. This is so, for the reason, as we have seen, that 
 Phelps appeared at the opening of the court on the day succeed- 
 ing the day on which he gave his testimony, determined to 
 withdraw the charge then in reference to the defendant's 
 readiness to commit forgery, and in the proper way. There can 
 be no doubt that in a closely contested case, as this appears to 
 have been, Phelps' statement as originally made would have an 
 
692 Abbott's Select Cases on Examining Witnesses. 
 
 Chesebrough «. Conover, 13 N. Y. Supp., 374. 
 
 effect upon the jury, an effect, indeed, undoubtedly prejudicial 
 to his credibility ; and there is no doubt either that when the 
 application was made to Mr. Saunders for the opportunity to 
 make the correction, Mr. Phelps felt bound conscientiously to 
 do, he should have been permitted to do so, and the jury thus 
 advised of the circumstances and the feeling which induced him 
 to make the accusation. 
 
 It is not necessary to resort to precedents to show that the 
 right of explanation is one of grave importance, duly respected 
 by the courts and always allowed. It is well recognized in the 
 ordinary proceedings of a trial. It is done ex debito justitia, 
 and in many cases in which I have presided, and in which 
 witnesses have sought to explain their testimony, it has never 
 been refused. It is true that in the case of People v. McGuire, 
 2 Hun, 269, an affidavit made by a person who was a witness on 
 the trial, and in which he admitted having committed perjury, 
 was disregarded, but for the reasons that when his affidavit was 
 made it was quite evident no latitude of indulgence would 
 justify the belief that he was then truthful ; that he might have 
 been so on the trial, but when his affidavit was made he certainly 
 was not so. And more particularly for the reason that his 
 evidence in the case was substantially the same as that given by 
 another witness, who, at the time of the occurrences testified to, 
 was similarly employed, and of whose truthfulness no reason 
 appeared for doubt. But that case was entirely different from 
 this. There was no application there to correct the evidence 
 given made during the trial. Aside from that, the testimony of 
 the witness in that case went to the main issue. Here the charge 
 against the plaintiff was collateral, was not responsive to any 
 question asked, and was expressed under great excitement, 
 caused by what the vsdtness considered to be a savage attask upon 
 him and his character; and what he said was an opinion seriously 
 affecting the defendant's intergrity, springing from the feeling of 
 resentment or indignation, and therefore impulsive and wrong. It 
 may be that if the application which was made to vacate the judg- 
 ment and for a new trial did not present the impressive fact that 
 the witness sought the counsel of the plaintiff on the day follow- 
 ing the utterance of the testimony to correct his error, the applica- 
 
X. night of a Witness to Explain. 693 
 
 Meakim v. Anderson, 11 Barb., 215. 
 
 tion might, iu the exercise of a sound discretion, have been 
 denied, but with that fact uncontradicted the administration of 
 justice seems to demand a new trial. It is clearly the duty of 
 counsel to develop the truth in all controversies so far as may 
 be, and undoubtedly to give the witnesses called on behalf of 
 their clients an opportunity during a trial to correct any state- 
 ment made while under examination as a witness. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 MEAKIM V. ANDEESON. 
 
 New York Supreme Court, 1851. 
 
 [Reported in 11 Barb., 215.] 
 
 It is in the discretion of the trial judge whether or not to allow a witness 
 to be recalled for the purpose of explaining his testimony, after his 
 examination has been fully concluded, and he has left the stand and 
 had a conference with the attorney who asks to have him recalled to 
 explain. 
 
 Motion to set aside verdict and for new trial. 
 
 King, J. [on this point said] : The third exception was to the 
 judge's refusal to recall, upon application by .the plaintiff, a wit- 
 ness originally introduced by the defence, to explain part of his 
 testimony on the ground that it had been misunderstood. The 
 witness had been examined and cross-examined, and permitted to 
 leave the stand ; and had subsequently conversed with the plaint- 
 iff's counsel. The judge stated that the witness had, both in his 
 original and cross-examination, made the statement which he de- 
 sired to explain, and that he did not think proper to permit such 
 explanation, when there was no doubt as to what the witness 
 stated, and after a conference with the plaintiff's counsel. It was 
 in the discretion of the judge to permit, or refuse the re-exam- 
 ination ; the discretion seems to have been properly exercised, 
 and the exception should be overruled on that score, even if 
 we could now review the exercise of his discretion. (People v. 
 Eector, 19 Wend., 5Y8 ; Law v. Merrills, 6 id., 281.) 
 
XI. Impugning Testimony of One's Own Witness. 695 
 Becker v. Koch, 104 N. Y., 394. 
 
 BECKEE V. KOCH. 
 
 J^ew YorTi Court of Appeals, 1887. 
 
 [Reported in 104 N. Y., 394.] 
 
 The rule against a party impeaching his own witness only prohibits it in 
 three cases ; (1) The calling of witnesses to impeach the general char- 
 acter of the witness ; (2) the proof of prior contradictory statements 
 by him ; and (8) a contradiction of the witness by another where the 
 only effect is to impeach, and not to give any material evidence upon 
 any issue in the case. 
 
 The rules applicable to the examination of other witnesses do not in their 
 strictness apply to an adverse witness ; who may be cross-examined 
 and have leading questions put to him by the party calling him for 
 the reason that he is adverse, and the danger arising from such a mode 
 of examination by the party calling a friendly or unbiased witness 
 does not exist. 
 
 Eeplevin to recover possession of goods ; whicli defendant 
 justified taking as sheriff under process against one Exstein, who 
 had assigned the property in question, -with other assets, to the 
 plaintiff, for benefit of creditors. 
 
 At Trial Term, the judge directed a verdict for plaintiff, and 
 ordered exceptions to be heard at General Term. 
 
 The Court at General Term directed judgment for the 
 plaintiff. 
 
 The Court of Appeals reversed the judgment. 
 
 Peckham, J. [after passing on another question'] : The court 
 directed a verdict for the plaintiffs, and if, therefore, there was 
 evidence enough to authorize a submission of the question of 
 fraud to the jury the judgment must be reversed. We think 
 there was, and had it not been for the rule of law adopted by 
 the court below, we suppose that court would have been of the 
 same opinion. That rule was that as the defendant called a wit- 
 ness by whom he attempted to prove the fraud, and as that wit- 
 ness denied it, the defendant was bound by that denial, in the 
 
696 Abbott's Select Oases on Examining Witnesses. 
 Becker v. Koch, 104 N. Y., 894. 
 
 absence of contradiction by some other witness, even though the 
 jury might think some parts of the evidence of the witness 
 clearly showed its existence. 
 
 To show exactly how the question arose and what was decided, 
 by the court, some reference must be made to the testimony, 
 although it will be unnecessary to allude to it all. 
 
 The assignor, Exstein, was a merchant engaged in a large 
 business in Buffalo. He kept regular books of account in his 
 business, which were produced upon the trial, and he was called 
 as a witness for the defendant and gave evidence in relation to 
 the books and upon other matters. 
 
 His assignment was made on the seventeenth of October, and 
 on the sixteenth of that month he made entries in several 
 accounts which he kept, crediting quite large sums of money to 
 the different persons named in such accounts, the result of which 
 entries was to cause it to appear by the books, that the assignor 
 was in debt to a somewhat large amount, while, if the entries as 
 of the sixteenth of October were stricken out, it would then 
 appear that the parties instead of being creditors were in reality 
 debtors of the assignor. When on the stand he substantially 
 stated that if those entries were stricken out, the state of affairs, 
 between himself and those persons would be as represented in 
 the books, or in other words, that excluding those entries and 
 the circumstances upon which they rested, some of these persons, 
 would be his debtors. He also said that these entries did not, in 
 fact, represent any actual transaction occurring at the time when 
 they were made, that no valuable or other consideration passed 
 between him and those parties at such time. Stopping with 
 these facts, it would appear, then, that credits were given these^ 
 persons the day before the assignment, upon which some of them 
 drew out moneys from him, and upon the basis of which one- 
 was made a preferred creditor in the assignment, and yet such 
 entries represented no actual, present transactions happening at, 
 the time when they were made. 
 
 Unexplained, it would appear that, as a result, Exstein had 
 provided for the payment of large sums of money, or had 
 already, and in view of his assignment, paid such sums to persons 
 whom he did not owe, or, in other words, he had paid and also. 
 
XI. Impugning Testimony of Oneh Own Witness. 697 
 
 Becker v. Koch, 104 N. Y., 394. 
 
 made provision in his assignment for the payment of fictitious 
 debts. 
 
 The defendant, however, proceeded vs^ith his examination of 
 this witness, and asked for an explanation of these entries and 
 the facts or circumstances upon which they were based, and the 
 witness proceeded to give it. The explanation was, if true, 
 sufficient in law and showed that he did owe the persons the 
 amounts he claimed to, with the possible exception of one or 
 two cases in which the defendant claims that even on the basis 
 of the general truth of the explanation, the witness had charged 
 himself in reality with more than he owed. The defendant then 
 rested, and the plaintiffs, with the evidence in this state, asked 
 for a verdict in their favor by the direction of the court, and 
 obtained it. 
 
 The court held, in substance, that the books of the witness 
 Exstein showed a, priina facie case of an indebtedness of the 
 witness in the amounts therein appearing, and to the persons 
 therein mentioned, and the witness said they were correct. He 
 then stated what has already been alluded to as to those entries 
 made on the sixteenth of October, and continued by explaining 
 the facts upon which they were based. This explanation, the 
 court said, was totally uncontradicted by any other witness, and 
 defendant was therefore bound by what Exstein said on that 
 subject, for the reason that he could not discredit or impeach 
 him, and must take what he said as, under the circumstances of 
 the case, true. 
 
 If that were the true rule, the court was correct in directing 
 a verdict. The General Term, it must be presumed, also took 
 the same view of the case in directing judgment for the plaint- 
 iffs without delivering any written opinion. 
 
 The general rule prohibiting the impeachment or discrediting 
 of a witness by the party calling him was extended too far in 
 this case. Here was an issue of fraud in the making of an as- 
 signment by the assignor, and the defendant, in order to prove 
 its existence, called the very man as a witness whom he alleged 
 was guilty of the fraud. He might well be regarded therefore 
 as an adverse witness, whom the party by the exigencies of his 
 case was obliged to call. 
 
698 Abbott's Select Oases on Examining "Witnesses. 
 Becker v. Koch, 104 N. Y., 394. 
 
 "With regard to such witnesses it is well settled that all the 
 rules applicable to the examination of other witnesses do not in 
 their strictness apply. An adverse witness may be cross-exam- 
 ined, and leading questions may be put to him by the party call- 
 ing him for the very sensible and sufficient reason that he is 
 adverse, and that the danger arising from such a mode of exami- 
 nation by the party calling a friendly or unbiased witness does 
 not exist. 
 
 "What favorable facts the party calling him obtained from such 
 a witness may be justly regarded as wrung from a reluctant and 
 unwilling man, while those which are unfavorable may be treated 
 by the jury with just that degree of belief which they may think 
 is deserved, considering their nature and the other circumstances 
 of the case. 
 
 Starkie, one of the ablest and most philosophical of English 
 writers on this branch of the law, in speaking of a reluctant or 
 adverse witness, uses almost the precise language above stated, 
 and which has been substantially quoted from him. (Starkie on 
 Ev. [9th ed.], m. p. 248.) Sometimes rather loose language has 
 been indulged in to the general effect that a party cannot im- 
 peach his own witness, but when an examination is made as to 
 the limits of the rule the result will be found to be that it only 
 prohibits this impeachment in three cases, viz.: (1) the calling of 
 witnesses to impeach the general character of the witness ; 
 
 (2) the proof of prior contradictory statements by him, and 
 
 (3) a contradiction of the witness by another where the only 
 effect is to impeach and not to give any material evidence upon 
 any issue in the case. (Lawrence v. Barker, 5 "Wend., 301-305 ; 
 People V. Safford, 5 Den., 112; Thompson v. Blanchard, 4 N. 
 Y., 303 -311 ; Coulter v. Express Co., 56 N. Y., 585 ; 2 Starkie 
 on Ev. [9 Am. ed.], m. p. 244-250 ; 2 Phil, on Ev. [0. and H. 
 and Ed. notes], m. p. 981, 982, 983 and note 602 ; 1 Green on 
 Ev., § 442.) In regard to the first class the rule has been stated 
 to rest upon the theory that when a party calls a witness he pre- 
 sents him to the jury as worthy of belief, and to allow him to 
 call witnesses thereafter to impeach his general character as a 
 man, would be to permit an experiment to be made upon the 
 jury by producing a person as worthy of belief (whom he knows 
 
XI. Imjmgning Testimony of One's Own Witness. 699 
 
 Becker v. Koch, 104 N. Y., 394. 
 
 and has witnesses to prove to be the contrary), and if his evi- 
 dence be favorable, to get the benefit of it, and if the reverse, to 
 overwhehn it by the impeaching witnesses. 
 
 In such a case as this, however, there is no deception. The 
 defendant calls the very man he accuses of the fraud as a wit- 
 ness to prove it and says, in effect, to the jury, that such evidence 
 as the witness gives, which tends to show the perpetration of the 
 fraud alleged, is forced from him by the exigencies of the case 
 and the surrounding facts, which cannot be denied, while that 
 which he gives that looks towards an explanation of the fraud 
 the jury shall give such faith to as under all the facts in the case 
 they may think it entitled to. 
 
 As to the second class in which an impeachment is forbidden, 
 the authorities in England were in conflict, many of the judges 
 thinking it allowable to prove prior contradictory statements by 
 a witness, but the weight of authority was against it, thereby 
 creating the occasion for an interference by the legislature with 
 the law of evidence, which passed an act permitting' just such 
 evidence under certain restrictions. (See C. L. Pro. act of 1854, 
 17 and 18 Vic, chap. 125, § 22). The non-admissibility of such 
 evidence in the courts of this state is, of course, not open to dis- 
 cussion. It is alluded to only to show the opinion of the Eng- 
 lish Parliameut (in matters of this nature almost exclusively 
 guided by lawyers) upon this question of impeaching one's own 
 witness, and the readiness of that body to alter the law of evi- 
 dence in the direction of what seemed to it greater opportunity 
 of ascertaining and administering that for which all courts are 
 instituted, viz. , truth and justice. 
 
 The third of above classes, where no impeachment is allowed, 
 is plainly set forth in several of the cases and text books above 
 cited. 
 
 It is not admissible, even in the case of a witness called by the 
 other side, to impeach him by proof of prior contradictory state- 
 ments on immaterial or collateral issues, and there is not much 
 difference in the two cases, and, therefore, no reason why it 
 should be allowed with reference to one's own witness. But all 
 the cases concur in the right of a party to contradict his own 
 witness by calling witnesses to prove a fact (material to the issue) 
 
700 Abbott's Select Cases on Examining "Witnesses. 
 
 Becker v. Koch, 104 N. Y., 394. 
 
 to be otherwise than as sworn to by him even when the neces- 
 sary effect is to impeach him. 
 
 Why should not the right exist to show that a portion of 
 the evidence of your own witness is untrue, by comparing it 
 with another portion of the evidence of the same witness and 
 with the other facts in the case. 
 
 The courts below say in effect, that although a portion of 
 Exstein's evidence shows that he provided for payment in his 
 assignment for fictitious debts, yet the other portion of his evi- 
 dence (if believed) shows that such debts were not fictitious, and 
 although the defendant was at liberty to call other witnesses to 
 prove that the explanation was false, yet as he did not do so, the 
 explanation must stand as matter of law, and he cannot be heard 
 to contend that it is proved false by its own absolute and inherent 
 improbability. We do not believe, at least in such a case as 
 this, that the rule goes to any such length. 
 
 The plaintiffs cite the case of Branch v. Levy (46 Sup'r Ct. 
 Rep., 428) as upholding the rule laid down by the trial court. 
 The plaintiffs there brought an action to recover damages from 
 defendants for the non-delivery of coupons bought from defend- 
 ants' agent, as plaintiffs claimed, but defendants denied the 
 agency and alleged they had sold the coupons to the person 
 whom plaintiffs alleged was their agent, and had no liability for 
 his subsequent acts. On the trial plaintiffs sustained their claim 
 prima facie by certain letters and circumstances, which, as the 
 court said, in the absence of explanation by defendants, made a 
 question for the jury. The plaintiffs then, for some inexplicable 
 reason, called one of the defendants, who swore that the person 
 eslling the bonds to the plaintiffs was not the agent of the 
 defendants but that they had sunply sold him the bonds. The 
 court held the plaintiffs concluded by this evidence and that they 
 must take it as wholly credible; that credibility could not be 
 divided, and that it was attached to the moral character. 
 
 That case comes very near the one under discussion, and it is 
 hard to see why the plaintiffs should not have been allowed to 
 go to the jury upon the whole of their case, letters, documents 
 and explanation, ard why they should not have been allowed to 
 ask the jury to believe the documents and letters and reject the 
 
XI. Impugning Testimony of One's Own Witness. 701 
 
 Notes of Recent Cases on Impugning- One's Own Witness. 
 
 explanation as in their judgment untrue. To say tliat credibility 
 is a part of the moral character and indivisible, is to run counter 
 to the well established rule as to adverse witnesses above referred 
 to, whose testinTOny you may ask a jury to believe in part and to 
 disbelieve the residue. The case ought not to be followed. 
 
 It is a good general rule that the credibility of a witness is 
 matter for the jury, and the fewer technical obstructions there 
 are to the practical operation of that rule the better. We think 
 that the whole evidence of Exstein in this case should have been 
 submitted to the jury for them to pass upon its credibility, and 
 that they were at liberty to believe that portion which tended to 
 show the debts to be iictitious and to disbelieve the explanation, 
 or that they might regard it as sufficient, just as in their judg- 
 ment, intelligently and honestly exercised,, they might determine. 
 
 Of course we do not mean by this decision to give any intima- 
 tion as to which view should be taken by the jury ; we only 
 decide that it was a question for them and not the court. 
 
 The judgment should be reversed and a new trial granted, 
 costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 NOTES OF RECENT CASES ON IMPUGNING ONE'S 
 OWN WITNESS. 
 
 I. Statements contradictory to his present testimony. 
 
 Alabama: Griffiths. State, 90 Ala., 583; s. o. 8 Southern Rep., 813 (it 
 was held not error to allow the prosecuting attorney upon a trial for 
 murder to ask a witness for the State, whether she had not stated the facts 
 differently in a previous interview with him). California: People v. 
 Mitchell, 94 Cal., 550; s. c. 29 Pacific Rep., 1106 (if a witness merely fails 
 to testify as expected, it does not authorize the party calling him to prove 
 that the witness elsewhere had made the desired statement). Georgia: 
 Dixon V. State, 86 Ga., 754; s. c. 13 Southeast. Rep., 754 (it is error to per- 
 mit the state in a criminal prosecution to ask a witness called by it as to 
 whether he had not made certain specified statements, and then to call 
 other witness to contradict him, where there is nothing to show that the 
 State was misled or entrapped by such witness). Illinois: National Syrup 
 Co. V. Carlson, 43 111. App., 178 (if a party has been surprised by the testi- 
 mony of his own witness, and the witness on being questioned denies hav- 
 
T02 Abbott's Select Cases on ExAMinriiirG Witnesses. 
 
 Notes of Recent Cases on Impugning One's Own Witness. 
 
 ing made previous contradictory statements, it is competent to prove that 
 he did make such statements by other witnesses). Indiana: Miller v. 
 Cook, 137 Ind., 339; s. c. 26 Northeast. Bep., 1073 (the right of a party 
 producing a witness to show that he made statements different from his 
 present testimony upon the ground of surprise under Ind*. B. S., 1881, § 507, 
 is a matter of discretion for the trial court). Iowa: Hall v. Chicago, etc., 
 B. Co., 84 la., 811 ; s. c. 51 Northwest. Bep., 150 (though it is permissible to 
 allow a party who has been surprised by the testimony of his own wit- 
 ness, to examine such witness concerning previous contradictory oral or 
 written statements, it is error to allow other witnesses to testify as to his. 
 statement, or to allow his written statements to be put in evidence). 
 Massachusetts: Batchelder v. Batchelder, 139 Mass., 1 ; s. c. 39 Northeast. 
 Bep., 61 (a party cannot, under Mass. Bub. Stat., c. 169, § 23, contradict 
 his own witness by showing that he has at other times made statements 
 inconsistent with his testimony if the circumstance of the supposed state- 
 ment sufficient to designate the particular occasion are not first mentioned 
 to the witness, or if the testimony is not material to the issue). Missis- 
 sippi: Chism V. State, 70 Miss., 743; s. c. 12 Southern Bep., 853 (where a 
 witness called by state on a mm'der trial denies knowledge of the homi- 
 cide, it is error to allow the state to show that the witness testified favor- 
 ably to it before the grand jury, since such witness did not testify adversely 
 to the state by merely denying knowledge). Oregon: Langford v. Jones, 
 18 Oreg., 307 ; s. c. 32 Bacific Bep., 1064 (a party whose witness gives un- 
 satisfactory evidence cannot prove the witness' statements at another 
 time which were favorable to the party's case). Pennsylvania: McNerney 
 V. City of Beading, 150 Ba. St., 711; s. c. 25 Atlantic Rep., 57 (where a 
 witness proves unwilling and gives evidence which is a surprise to the 
 party by whom he is called, it is within the discretion of the court to per- 
 mit the party calling the witness to cross-examine him as to statements 
 and conduct contradictory to his testimony). Fisher v. Hart, 149 Ba. St., 
 232; s. c. 24 Atlantic Bep., 335 (where a witness to an inquiry as to an 
 event answered that he did not remember, and to the succeeding 
 question, "Did you not tell me so yesterday?" also answered, "I do 
 not remember." No further effort was made to refresh the witness' 
 memory. Held, that the party calling the witness was erroneously 
 allowed to treat him as adverse). Oregon: Langford v. Jones, 18 Oreg., 
 307 ; s. c. 33 Bacific Bep., 1064 (a party whose witness gives unsatisfactory 
 evidence cannot prove the witness' statements at another time, which 
 were favorable to the party's case). Rhode Island: Hildreth r. Aldrich, 
 15 B. I., 163 ; s. c. 1 Atlantic Bep., loS (though a party disappointed by the 
 testimony of his own witness may refresh the witness' recollection by 
 asking him if he has not made contradictory statements, it is error to allow 
 the party to prove such statements by other witnesses). Texas: Self v. 
 State, 28 Tex. App., 398 ; s. c. 13 Southwest. Rep., 603 (it is not error upon a 
 criminal prosecution to permit the state to prove that one of its witnesses 
 liad previously made statements contradictory to his testimony; it is 
 permissible under Tex. Code Crim. Bro., Art. 735, for the state to attack 
 
XI. Impugning Testimony of Onis Own Witness. 'TOS 
 
 Notes of Recent Cases on Impugning One's Owq Wilness. 
 
 its witnesses in any manner except by proving their bad character). Scott 
 V. State, Tex. Crim. App. 93, 30 id., 549 (a party who knows beforehand 
 that a witness called by him is hostile and what he will probably swear to 
 will not be allowed to impeach the witness by showing contradictory 
 statements, since the party has not been unexpectedly injured by his 
 testimony). Vermont: Hurlburt v. Hurlburt, 63 Vt., 667 ; s. c. 23 Atlantic 
 Eep., 850 (where trial court ruled that the testimony of a witness was ad- 
 verse within the meaning of the statute relating to the impeaching of 
 adverse witnesses, held that it was a sufficient finding that the witness 
 himself was adverse, and not his testimony merely). Good v. Knox, 64 
 Vt., 97 ; s. c. 23 Atlantic Eep., 530 (though under Vt. R. L., 1089, a party to 
 a civil action may compel the adverse party to testify in his behalf, and 
 the party so called may be examined under the rules applicable to cross, 
 examination, yet if a party call his adversary for the purpose of fixing the 
 liabiUty not on the witness himself but on a co-defendant, it is not error 
 to exclude inquiries as to witness' previous contradictory statements). 
 
 II. Foundation for evidence of contradictory statements. 
 
 In jurisdictions where evidence of previous conflicting statements is 
 admissible to impeach a party's own witness who has proved hostile, it is 
 required that a foundation therefor shall be fli-st laid by sufficiently 
 calling the attention of the witness sought to be impeached to the state- 
 ments proposed to be proved ; see, Diffenderfer v. Scott, Ind. App., 1893, 
 33 Northeast. Rep., 87; Bennet v. State, Tex., 1890, 13 Southwest. Rep., 
 1005 ; Watson v. St. Paul City Ry. Co., Minn., 1889, 48 Northwest. Rep., 
 904. 
 
 III. Contradicting one^s own witness hy other evidence. 
 
 The rule— that a party is not bound by the testimony of his own 
 witness as to a material fact, but may contradict him by other evidence, 
 though such evidence may incidentally discredit the witness— is supported 
 by the following cases : 
 
 Colorado: Moffat v. Tenney, 17 Colo., 189; s. o. 30 Pacific Rep., 348. 
 Illinois : McFarland v. Ford, 83 111. App., 173. Indiana : Crocker v. Agen- 
 brood, 122 Ind., 585; s. c. 34 Northeast. Rep., 169. Iowa: Thomas v. 
 McDaneld, 1893, 55 Northwest. Rep., 499; Smith v. Utesch, 1892, 53 id., 343. 
 Michigan: Webber v. Jackson, 79 Mich.. 175; s. c. 44 Northwest. Rep., 
 591. Minnesota: Schmidt i;. Darnham, 50 Minn., 96; 53 Northwest. Rep., 
 377. Missouri: Edwards v. Crenshaw, 30 Mo. App., 510. North Caro- 
 lina: Chester v. Wilhelm, 111 N. C, 314; s. o. 16 Southeast. Rep., 329. 
 United States: Graves v. Davenport, Dist. Ct., 1892, 50 Fed. Eep., 881. 
 
 IV. £ias of one^s own witness. 
 
 In Mellen's Estate, 56 Hun, 553; s. c, 9 N. Y., Supp., 929, it was held 
 error to allow a party producing and examining a witness to afterwards 
 impeach him by evidence showing his bias or interest in favor of the 
 adverse party. 
 
XII. Impeachment. (1) Of Credit : (a) Evidence of Criirie. 705 
 Gertz V. Fitchburg- R. R. Co., 137 Mass., 77. 
 
 GERTZ V. FITCHBURG R.R. CO. 
 
 Supreme Court of Massachusetts, 1881f.. 
 
 [Reported in 137 Mass., 77.] 
 
 Alter it lias been sought to discredit a witness by evidence of his conviction 
 of crime, the party who called him has a right to give evidence of his 
 present good reputation for veracity. 
 
 Exceptions taken on the trial. 
 
 The Supreme Court set aside the judgment. 
 
 Holmes, J. In this case, the plaintiff having testified as a 
 vsritness, the defendant put in evidence the record of his convic- 
 tion in 1876, in the United States District Court, of the crime of 
 falsely personating a United States revenue officer. The plaintiff 
 then offered evidence of his character and present reputation for 
 veracity, vphich was excluded, subject to his exception. 
 
 We think that the evidence of his reputation for truth should 
 have been admitted, and that the exception must be sustained. 
 There is a clear distinction between this case and those in which 
 such evidence has been held admissible, for instance, to rebut 
 evidence of contradictory statements ; Russell v. Coffin, 8 Pick., 
 143 ; Brown v. Mooers, 6 Gray, 451 ; or where the witness is 
 directly contradicted as to the principal fact by other witnesses. 
 Atwood V. Dearborn, 1 Allen, 483. 
 
 In such cases, it is true that the result sought to be reached is 
 the same as in the present, to induce the jury to disbelieve the 
 witness. But the mode of reaching the result is different. For 
 while contradiction or proof of contradictory statements may 
 very well have the incidental effect of impeaching the character 
 for truth of the contradicted witness in the minds of the jury, 
 the proof is not directed to that point. The purpose and only 
 direct effect of the evidence are to show that the witness is not 
 to be believed in thi? instance. But the reason why he is not 
 to be believed is left untouched. That may be found in forget- 
 fulnesson the part of the witness, or in his having been deceived. 
 
706 •ABBon''s Select Oases on Examining Witnesses. 
 
 Gertz V. Fitchburg- R. R. Co., 137 Mass., 77. 
 
 or in any other possible cause. The disbelief sought to be 
 produced is perfectly consistent with an admission of his general 
 good character for truth as well as for other virtues ; and until 
 the character of a witness is assailed, it cannot be fortified by 
 evidence. On the other hand, when it is proved that a witness 
 has been convicted of a crime, the only ground for disbelieving 
 him which such proof affords is the general readiness to do evil 
 which the conviction may be supposed to show. It is from the 
 general disposition alone that the jury is asked to infer a 
 readiness to lie in the particular case, and thence that he has lied 
 in fact. The evidence has no tendency to prove that he was 
 mistaken, but only that he has perjured himself, and it reaches 
 that conclusion solely through the general proposition that he is 
 of bad character and unworthy of credit. 1 Gilb. Ex. (6th 
 ed.), 126. 
 
 The conviction in the United States District Oourt was for a 
 felony punishable with imprisonment (U. S. St. of March 2, 1867, 
 §28) ; and, assuming that it stands on the same footing as a 
 conviction in another state, it would Jiave been admissible, 
 according to the dicta in our cases, independently of statute, 
 not to exclude the witness, but to impeach his credit. Oommon- 
 wealth V. Green, 17 Mass., 515, 541. Oommonwealth v. Knapp, 
 6 Pick., 496, 511. Utley v. Merrick, 11 Met, 302. See Rev. 
 Sts., c. 94, §56. And when a conviction is admitted for that 
 purpose, it always may be rebutted by evidence of good character 
 for truth. Oommonwealth v. Green, uhi supra. Eussell v. 
 Coffin, 8 Pick., 143, 154. Eex v. Olark, 2 Stark., 241. Webb 
 V. State, 2 Ohio St., 351. 
 
 It is true that a doubt is thrown upon this doctrine in Harring- 
 ton V. Lincoln, 4 Gray, 563, 568 ; but that case was decided on 
 the ground that the cross-examination which showed that the 
 witness had been charged with a crime also showed that he had 
 been acquitted, and cannot be regarded as authority against our 
 decision, whether the ratio deaidendi adopted be ■ reconcilable 
 vidth later cases or not. Oommonwealth v. Ingraham, 7 Gray, 46. 
 
 The appKcability of the foregoing reasoning is made clear by 
 the language of our statutes. By tlie Pub. Sts., c. 169, §19, the 
 only purpose for which conviction of a crime may be shown, in 
 
XII. Impeachment. (]) Of Credit: (a) Evidence of Crime. TOT 
 
 Note on Impeachment of Credit. 
 
 any case, is to affect credibility. Even if the conviction proved 
 here would have excluded the vs^itness but for the statute 
 cutting down its effect, it could not be maintained that evidence 
 of reputation for truth remained inadmissible because it would 
 have been so when the witness was excluded. That statute puts 
 all convictions of crime on the same footing — those which 
 formerly excluded, those which always have gone only to 
 credibility, and, it would seem, those which formerly would not 
 have been admissible at all. (We assume that the words "a 
 crime" in the Pub. Sts., c. 169, §19, means the same as " any 
 crime " in the St. of 1870, c. 393, §3, Gen. Sts., c. 131, §13. Sts. 
 1852. c. 312, §60 ; 1851, c. 233, §97. Commonwealth v. Hall, 4 
 Allen, 305.) And, therefore, any evidence which was admissible 
 to rebut a conviction that only discredited before the statute, 
 must now be admissible to rebut all convictions that may be put in 
 evidence. Whether any different rule would apply when the fact 
 is only brought out on ci-oss-examination we need not consider. 
 
 The exceptions to the exclusion of evidence that the witness 
 was innocent of the offense of which he was convicted, and 
 explaining why he was convicted, is not much pressed, and is 
 overruled. Commonwealth v. Gallagher, 126 Mass., 54.* 
 
 Exceptions sustained. 
 
 NOTES OF KECENT CASES ON IMPEACHING 
 ADVEKSAKY'S WITNESS. 
 
 (a) By evidence of crime. 
 
 Connecticut: Card v. Foot, 57 Conn., 437; s. c. 18 Atlantic Rep., 713 
 (under Conn. Gen. Stat., §1098, a witness cannot be impeached by showing 
 that he was convicted of a petty offense, but only his conviction of some 
 infamous crime which disqualified a witness at common law can be 
 shown). Georgia: Ford v. State, 1893, 17 Southeast. Rep., 667 (a wit- 
 ness' conviction of a crime involving moral turpitude maj' be shown to 
 impeach him). Michigan: Cole v. Lake Shore, etc., R. Co., 95 Mich., 77; 
 
 * On this point the New York cases are to the contrary. Sisson v. Yost, 12 N. Y. Supp., 373, 
 holds, that it is error to exclude questions tending to show the promptitude of the granting of 
 pardon and the reason therefor, after the record of the witness's conviction for perjury had 
 heen admitted. 
 
 In Sims v. Sims, 75 N. Y., 466, held, that a judgment of conviction in a criminal case is not 
 conclusive in a civil case, and error to refuse to allow the witness to answer whether he was 
 guilty or not. 
 
T08 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Impeachment of Credit, 
 
 s. c. 54 Northwest. Rep., 638 (though evidence of the arrest and conviction 
 of a witness for a crime is admissible as affecting his credibility, it is not 
 competent to show what he testified on his trial in regard to the charge 
 made against him). Minnesota: State v. Bauer, 43 Minn., 258; s. c. 44 
 Northwest Rep., 115 (under Mich. Pen. Code, § 53, providing that the con- 
 viction of " any crime " may be shown as affecting a witness' credibility, 
 a witness' conviction for a misdemeanor as well as his conviction for a 
 felony may be shown). Mississippi: Helm v. State, 67 Miss., 562 ; .s. c. 7 
 Southern Rep., 487 (the record of a witness' conviction for a misdemeanor 
 is admissible in evidence to impeach him). Rhode Island : State v. Mc- 
 Guire, 15 R. I., 23 (a defendant in a criminal case who testifies in his own 
 behalf may be impeached like any other witness by showing his convic- 
 tion for a felony). 
 
 In Helwig v. Laschowski, 83 Mich., 619 ; s. c. 46 Northwest. Rep., 1033, 
 it is held that a witness' conviction for a crime which could formerly be 
 shown to disqualify him can now be shown as affecting his ' credibility ; 
 and as formerly the objecting party was not bound to accept the state- 
 ment of a witness as to his conviction for a crime but might prove it 
 against his denial, so now a party who desires to show a like fact to dis- 
 credit a witness should not be bound by his answer. 
 
 (b) Bi/ showing had character. 
 
 Alabama: Rivers v. State, 1893, 13 Southern Rep., 434 (upon a criminal 
 trial it is error to exclude defendant's evidence to show that a witness tor 
 the state was a professional witness in gaming cases and had been hired 
 by third persons to work up and prosecute such cases). Mclnerney v. 
 Irvin, 90 Ala., 275 ; s. c. 7 Southern Rep., 841 (a female witness cannot be 
 impeached by showing her bad character for chastity) ; s. p. Birmingham. 
 Union Ry. Co. v. Hale, 90 Ala., 8 ; s. c. 8 Southern Rep., 143. Califor- 
 nia : People v. Sherman, 1892, 32 Pacific Rep., 879 (that improper relations 
 existed between two witnesses, a man and a woman, called by the same 
 party cannot be proved to impeach the woman's testimony). Indiana : 
 Sage V. State, 127 Ind., 15 ; s. c. 26 Northeast. Rep., 667 (a witness cannot 
 be impeached by showing his reputation in a community in which he had 
 not resided by reason of imprisonment for seven years previous to the 
 trial). Iowa:, Winter v. Central Iowa Ry. Co., 80 la., 448 ; s. c. 45 North- 
 west. Rep., 737 (an instruction to the jury, that before a witness can be 
 regai-ded as impeached on account of his bad reputation for truth and 
 morality, it must be shown that his bad reputation is general in the com- 
 munity in which he lives, is proper. Kansas : Coates v. Sulau, 46 Kan., 
 341 ; s. c. 36 Pacific Rep., 720 (where the witness sought to be impeached 
 changed his residence within a few months before the trial, it is not error 
 to allow another witness who knew him a long time at his former resi- 
 dence to testify as to his reputation for truth). Louisiana: State v. 
 Christian, 44 La. Ann., 950; s. c. 11 Southern Rep., 589 (a witness as to the 
 character of a witness sought to be impeached maybe asked whether, from 
 his general knowledge of the latter's character for truth and veracity, he 
 
XII. Impeachment. (1) Of Crime : (a) Evidence of Crime. 709 
 
 Note on Impeachment of Credit. 
 
 would believe him undei- oath). State v. Johnson, 41 La. Ann., 574; 7 
 Southern Rep., 670 (a question as to a witness' reputation for trutli and 
 veracity will be excluded if it does not call for his g'eneral reputation in 
 the neighborhood in which he lived). State v. Jackson, 44 La. Ann., 675, 
 s. u. 10 Southern Rep., 600 (a witness as to bad character of another wit- 
 ness was aisked whether the latter did not live and associate with criminal 
 people and whether his associates were not lewd and abandoned women. 
 Meld, that such inquiry was pi'operly excluded ; investigation as to a 
 witness' character must extend to the witness' whole conduct and char- 
 acter so as to establish such moral depravity that no one would be justified 
 in believing his sworn statement if uncorroborated). Michigan : People v. 
 Mills, 94 Mich. 630 ; s. c. 54 Northwest. Rep., 488 (lack of chastity cannot 
 be shown to impeach the credibility of a female witness). Missouri: State 
 V. Raven, 1803, 23 Southwest. Rep., 76 (in discrediting a witness the inquiry 
 is not limited to his general reputation for truth and veracity but may be 
 extended to his general moral character). State v. Rogers, 108 Mo., 
 202; s. c. 18 Southwest. Rep., 976 (evidence of a specific and independent 
 immoral act is inadmissible to impeach a witness). State v. Shrayer, 104 
 Mo., 441 ; s. c. 16 Southwest. Rep., 286 (a male witness's reputation as to 
 chastity may be shown to impeach him ; there is no distinction in this 
 respect between a male and a female witness) ; Contra : .State v. Olawson, 
 30 Mo. App., 139. New York: National Bank v. Scrivner, 63 Hun., 375; 
 s. c. 18 N. Y. Supp., 277 ; 44 State Rep., 331 (a witness may testify from 
 his personal knowledge of another witness whether he would believe him 
 under oath, though he Itnows nothing of such person's reputation among 
 others for truth and veracity). North Carolina: State v. Hawn, 107 N. C, 
 810; s. c. 12 Southeast. Rep., 455 (a witness cannot be impeached by evi- 
 dence that by general report he was guilty of a particular offense). Texas: 
 Browderi). State, 30 Tex. App., 614; 18 Southwest. Rep., 197 (the trial 
 court should not unreasonably limit the number of witnesses by which a 
 party seeks to impeach the character of a witness for the adverse party ; 
 the testimony of additional witnesses as to character should not be 
 excluded merely because their testimony is cumulative). Virginia: Briggs 
 V. Commonwealth, 82 Va., 554 (it is not competent to impeach a witness by 
 evidence that '• he was given to rows and to putting them off on others)." 
 
 (c.) As to particular crimes, wrongful acts, etc. 
 
 California: People v. Rodrigo, 69 Cal., 601 ; s. c. 11 Pacific Rep., 481 
 (a party seeking to impeach witness may ask him on cross-examination 
 whether a judgment and sentence had not been pronounced against him 
 for a felony, without producing the record of conviction). Jones v. 
 Duchow, Cal., 1890, 23 Pacific Rep., 371, under Cal. Code Civ. Pro., §3051 
 (providing that a witness cannot be impeached by evidence of particular 
 wrongful acts, it is error to allow a witness to be asked on cross-examina- 
 tion whether he was not the person who was arrested for beating a woman 
 of the town, and who appeared, pleaded guilty and paid a fine therefor). 
 People V. Fong Ching, 78 Cal., 169 ; s. c. 20 Pacific Rep., 396 (where de- 
 
710 Abbott's Select Oases on Examining Witnesses. 
 
 Note on Impeachment of Credit. 
 
 fendant as witness had testified in chief as to his birth, parentage, educa- 
 tion, etc., it was lield not error to allow him to be asked on cross-examina- 
 tion as to whether he had ever been arrested). People v. Carolan, 71 
 Cal., 195 ; s. c. 13 Pacific Eep., 52 (it is not error not to permit a witness 
 to be cross-examined as to whether he had been convicted of a misde- 
 meanor). Barkly v. Copeland, 86 Cal., 483 ; s. c. 35 Pacific Eep., 1 (it is 
 proper to allow a witness to be asked on cross-examination to discredit 
 him whether he had not made an argument with a third person for a con- 
 sideration to suppress the evidence which he had given on the trial, though 
 a witness cannot be impeached by showing particular wrongful acts not 
 bearing on the issue). Indiana: Pennsylvania Co. v. Bray, 135 Ind., 339 ; 
 s. c. 25 Northeast. Rep., 439 (objections sustained to questions on cross- 
 examination as to whether the witness had not been impeached in another 
 case and if a suit for damages was not pending against him for such 
 false swearing). Massachusetts: Commonwealth v. Sullivan, 150 Mass., 
 315 ; s. c. 33 Northeast. Eep., 47 (in an indictment for illegal sale of liquor 
 the state may cross-examine the defendant, who has offered herself as a 
 witness, as to her identity with a person named in a record of a conviction 
 for a similar offense and offer the record in evidence). Michigan: People 
 V. Harrison, 98 Mich., 594; s. c. 53 Northwest. Eep., 725 (it is not error to 
 refuse to allow a further cross-examination as to a female witness' char- 
 acter for chastity, which had been shown to be bad). Clink v. Gunn, 90 
 Mich., 135 ; s. c. 51 Northwest. Eep., 193 (it is error to permit a witness on 
 cross-examination to be asked as to what he had sworn on a -previous 
 trial and as to whether the court had rendered a decree in opposition to 
 what he had testified). Minnesota: State v. Adamson, 43 Minn., 196; 
 s. c. 45 Northwest. Eep., 153 (a former conviction of witness for a crime 
 may be shown by cross-examination). Missouri: State ?;. Muller, 100 
 Mo., 606 ; s. c. 13 Southwest. Eep., 833 (a witness may be asked as to 
 whether he had been in the penitentiarj' ; it is not necessary to produce 
 the record of conviction). State v. Houx, Mo., 1892 ; 19 Southwest. Eep., 
 35 (cross-examination of a female witness as to immoralities committed 
 more than twenty years before properly excluded). New York : Spiegel 
 V. Hays, 118 N. Y., 660; s. c. 32 Northeast. Eep., 1105 (under Penal Code, 
 § 714, a witness' conviction for a crime may be proved by cross-examina- 
 tion in relation thereto without producing the record of conviction). Van 
 Bokkelein v. Berdell, 130 N. Y., 141 ; s. c. 29 Northeast. Eep., 354 (it is 
 error to allow a witness to be asked on cross-examination, if he has been 
 merely indicted) ; s. p. Sullivan v. Newman, 43 State Eep., 893; s. c. 17 N. Y. 
 Supp., 424 ; Walkofl v. Teflt, 12 N. Y. Supp., 464 (where a witness on cross- 
 examination admitted that he had been convicted of a crime, it was held 
 error not to allow him on redirect to testify as to his innocence thereof, 
 though the record of his conviction was given in evidence). Palmer v 
 Manhattan Ey. Co., 133 N. Y., 261 ; s. c. 30 Northeast. Eep., 1001 (upon 
 cross-examination of plaintiff, inquiries to show that she was an habitual 
 litigant were excluded, held no error). 
 
XII. Impeaehment. (1) Of Credit : (b) Evidence of Bias. 711 
 People V. Brooks, 131 N. Y., 331. 
 
 PEOPLE V. BKOOKS. 
 
 New York Court of Ajppeals, 1892. 
 
 [Eeported in 131 N. Y., 331.] 
 
 Bias of a witness may be proved by the adverse party by calling out testi- 
 mony thereto from, other witnesses, without having first laid founda- 
 tion by calling the attention of the witness impugned thereby to time 
 and place of the acts or declarations relied on as showing- bias. 
 
 But the extent to which such testimony to show bias may be allowed to 
 go is within the discretion of the trial judge. 
 
 Upon the trial of Eacliel Brooks on an indictment for arson, 
 the principal evidence for the prosecution was the testimony of 
 Charlotte, the prisoner's stepdaughter, wlio testified to various 
 -declarations of the prisoner, in the nature of admissions of the 
 ctarge. 
 
 After the prosecution rested, the defendant was called as a 
 witness in her own behalf and was interrogated as to whether 
 there were not frequent difficulties between fierself and her step- 
 daughter, the object of the counsel being to show bias against 
 her on the part of the stepdaughter. The objection and the 
 ruling of the court appear in the opinion. 
 
 The Supreme Court at General Term were of opiaion that 
 the ruling was proper and that foundation must be laid by 
 examining the witness charged with bias in reference to the 
 existence of ill feeling before he can be contradicted (citing 
 .Starkie on Ev., 213 ; Wharton on Ev., 566 ; Stephen's Dig. of 
 Ev., 186 ; Taylor on Ev., § 1440 et seq.; Greenl. on Ev., § 450). 
 The court added, however : We see no good reason why a party 
 .should not be permitted to show the hostility and ill feeling of a 
 witness, by such proof as he may have, and, if the witness desires 
 to explain, why he should not do so on the examination of the 
 j)arty calHng him, rather than on the examination of the party to 
 whom he is adverse. 
 
 The Court of Appeals aflnrmed the judgment. 
 Eael, Ch. J. [on this point said]: The defendant was called as 
 a witness on her own behalf and these questions were put to her 
 
712 Abbott's Select Cases on Examining Witnesses. 
 
 People V. Brooks, 131 N. Y., 331. 
 
 by her counsel : " Now state whether or not Charlotte was friend- 
 ly to yon or unfriendly? Did you and Charlotte have frequent 
 difficulties during that time ? (^meaning the time previous to the 
 fire). Did Charlotte assault you on other occasions previous to 
 the fire ? " All these questions were objected to, on the part of 
 the prosecution, as incompetent, because Charlotte had not been 
 examined as to the particular matters inquired of on behalf of 
 the defendant. 
 
 The trial judge sustained the objection and excluded the 
 evidence because Charlotte had not been examined as to the same 
 matters, and her attention had not been called to the particular 
 matters inquired of. In making the ruling the trial judge said : 
 " You had the witness here and can ask anything you wish of 
 her that she has not testified to, and if you think she has not 
 told the truth you can ask the witness about it, and I think that 
 is as far as you can go. I think the rule is this : That a witness 
 may be cross-examined as to his or her attitude of mind in regard 
 to the defendant, and his attention must be called to each and 
 all the transactions upon which the counsel for the defendant de- 
 sires to give evidence. 
 
 If the witness admits the acts and declarations that the defend- 
 ant claims were made and done, that is the end of it. If the 
 witness denies, then 1 think it is competent to call other witnesses 
 to contradict those matters ; but to let a witness go off the stand, 
 not having questioned the witness as to the particulars, and then 
 calling third parties to prove independent transactions showing 
 the attitude of the mind of the witness toward the party, I think 
 is not the rule. So I have allowed and do allow this witness 
 to testify as to any transaction bearing upon that point in 
 regard to which the witness Charlotte was examined." And 
 the judge said further : " I should say that the witness referred 
 to is in court now, so that there is no loss to the defendant by the 
 application of the rule as I understand it." But the counsel in- 
 sisted upon his right to examine the defendant for the purpose 
 of proving Charlotte's hostility towards her, without first examin- 
 ing Charlotte in reference to the same matter. 
 
 We think the rule of law laid down by the trial judge was 
 erroneous. The hostility of a witness towards a party against 
 
XII. Impeachment. (1 ) Of Credit : (b) Evidence of Jjias. Y13 
 
 People V. Brooks, 131 N. Y., 321. 
 
 ■whom lie is called may be proved by any competent evidence. 
 It may be sliown by cross-examination of the witness, or witnesses 
 may be called who can swear to facts showing it. 
 
 There can be no reason for holding that the witness must first 
 be examined as to his hostility, and that then, and not till then, 
 witnesses may be called to contradict him, because it is not a case 
 where the party against whom the witness is called is seeking to 
 discredit him by contradicting him. 
 
 He is simply seeking to discredit him by showing his hostility 
 and malice ; and as that may be proved by any competent evi- 
 dence we see no reason for holding that he must first be examined 
 as to his hostility. And such, we think, is the drift ©f the deci- 
 sions in this state and elsewhere. 
 
 (Hotchkiss V. Germania Ins. Co., 5 Hun, 90 ; Starr v. Cragin, 
 2i id., 177 ; People v. Moore, 15 Wend., 419 ; People v. Thomp- 
 son, 41 N. Y., 6 ; Schultz v. Third Ave. K. E. Co., 89 id., 242 ; 
 Ware v. Ware, 8 Maine, 42, 56 ; Tucker v. Welsh, 17 Mass., 160 ; 
 Day V. Stickney, 14 Allen, 255 ; Martin v. Barnes, 7 Wis., 239 ; 
 Eobinson v. Hutchinson, 31 Vt., 443 ; New Portland v. King- 
 field, 55 Me., 172 ; Hedge v. Clapp, 22 Conn. 262 ; Cookw. Brown, 
 34 E". H., 460.) So we think the trial judge laid down an erro- 
 neous rule of law. 
 
 But we are still of opinion that no harm was done to the 
 defendant. The extent to which an examination may go for the 
 purpose of proving the hostility of a witness must be, to some 
 extent, at least, within the discretion of the trial judge. 
 
 We said about it in Schultz v. Third Av. E.K. Co. {supra), 
 that " the evidence to show the hostile feeling of a witness when 
 it is alleged to exist should be direct and positive, and not very 
 remote and uncertain, for the reason that the trial of the main 
 issue in the. case cannot be properly suspended to make out the 
 case of hostile feeling by mere circumstantial evidence from 
 which such hostility or malice may or may not be inferred." 
 
 Before these questions were excluded the defendant's counsel, 
 on the examination of Charlotte, proved by her that she and the 
 defendant had had frequent altercations; that the defendant 
 " used to whip her lots of times ; " that on a certain occasion, 
 when she was impudent to the defendant, not long .before the 
 
714 Abbott's Select Cases on ExAiiiNrNG Witnesses. 
 
 People V. Brooks, 131 N. Y., 331. 
 
 fire, the defendant threw her down, and, on that occasion, the 
 defendant assaulted her and hit her, and pushed and knocked 
 her down on the floor, and, when she got up, she said to the 
 defendant : " You will be sorry ; what did I do to you ? my 
 mother would not knock me down ; " and that her troubles with 
 her stepmother were frequent ; that they had trouble on every 
 rainy day ; that " she was disagreeable to her on rainy days." 
 And the defendant, before these questions were excluded, testified 
 that a few days before the fire she and Charlotte had an alterca- 
 tion, and that Charlotte got mad and pulled her down and 
 slapped her in the face, and pounded her on the back," so that 
 she fell down and came near fainting away. We think there 
 was ample evidence to show the state of feeling between the 
 defendant and Charlotte, and if the examination of the defend- 
 ant upon that subject had been much further prolonged, it could 
 not have added any weight to the evidence already given on that 
 subject. Sufiicient evidence for every purpose of the trial had 
 been given to show difficulties and hostilities between the defend- 
 ant and Charlotte, and, therefore, it is clear that the defendant 
 was not harmed by the exclusion of further evidence on that 
 subject. 
 
 Besides, the jiiry utterly disregarded the defendant's evidence. 
 She denied under oath all the evidence tending to implicate her 
 in the crime, and explicitly denied that she had stated to Char- 
 lotte her intention to burn the goods in the building, and gave 
 some evidence tending to cast suspicion upon Charlotte as the 
 author of the crime. This is, therefore, a case where the rule 
 laid down in Section 542 of the Code of Criminal Procedure 
 should be applied. That section provides as follows : " After 
 hearing the appeal the court must give judgment, without re- 
 gard to technical errors or defects, or to exceptions which do not 
 affect the substantial rights of the parties. 
 
 [The learned Chief Judge then disposed of other questions.] 
 
 All the judges concurred. 
 Judgment afiirmed. 
 
XII. Impeachment. (1) Of Credit : (b) Evidence of Bias. Y15 
 Note on Recent Cases on Evidence of Bias. 
 
 NOTE OE RECEXT CASES ON EVIDENCE OF BIAS. 
 
 Arl:ansas : Hollingsworth i\ State, 53 Ark., 387 ; s. c. 14 Soutliwest. 
 Rep., 41 (it is error not to allow defendant in a criminal case to prove that 
 a material witness for the state had said that he was working- for a reward 
 offered for the conviction of the person who committed the offense). 
 Georgia: AUgood v. State, 87 Ga., 668; s. c. 13 Southeast. Rep., 668 
 (upon a trial for forgery it is not admissible to discredit prosecutrix as a 
 witness by showing that someone else had induced her to commence the 
 prosecution). Illinois: Bevon v. Atlanta Nat. Bk., 1893, 31 Northeast. 
 Rep., 679 (in an action on a note where the defence was forgery a w'itness 
 for the plaintiff cannot be impeached by showing that he held similar 
 notes). Wischstadt v. Wischstadt, 47 Minn., 358; s. c. 50 Northwest. 
 Rep., 325 (to disprove a witness' denial of hostile feeling, some act or 
 declaration indicating that he entertamed such a feeling must be shown ; 
 it is not enough to prove merely that the witness might have reason for 
 such a feeling ; e. g., that the adverse party had brought an action 
 against the witness for slander). Minnesota: Holston v. Boyle, 46 Minn., 
 433; s. c. 49 Northwest. Rep., 303 (where a witness was called to prove 
 the bad character of another witness, it is not competent to show that the 
 impeaching witness belonged to an opposing village faction to that which 
 the person concerning whose character he testified belonged ; such evi- 
 dence is too vague and remote). Mississippi: Cheatham v. State, 67 
 Miss., 335 ; s. c. 7 Southern, ilep., 204 (the mere offer of a bribe to a wit- 
 ness, not accepted by him, cannot be proved to discredit the witness). 
 
 People V. Gardner, Cal. 33 Pacific Rep., 880 (upon the trial of one 
 charged with an attempted rape where the prosecutrix testified as a wit- 
 ness, it is competent to prove her declaration that she intended to get 
 money out of the defendant if a proper foundation has been laid therefor). 
 
 Bates V. Halladay, 81 Mo. App., 163 (evidence tending to show that 
 the adverse party had tampered with a witness is admissible to impeach 
 testimony of such party, but it is error to admit such evidence if no founda- 
 tion has been laid therefor by first asking the party whether he had made 
 such attempt and giving him an opportunity to explain. Following 
 Queens Case, 3 Brad & Bing., 313). 
 
 People V. Brooks, 131 N. Y., 331; s. c. 30 Northeast. Rep., 189 (the 
 hostility of a witness towards a party against whom he is called may be 
 proved by any competent testimony; and it is not necessary that the 
 witness should first be examined as to his hostility before calling another 
 witness to prove it). 
 
 The rule that cross-examination as to a witness' bias, interest, or 
 hostility is not cross-examination as to collateral matter, and may be 
 proved by other evidence if the witness denies it, is supported by the 
 following recent cases : 
 
 Alabama: England v. Slate, 89 Ala., 76; s. c. 7 Southern Rep., 146. 
 
716 Abbott's Select Cases on Examining Witnesses. 
 
 Note on Recent Cases on Evidence of Bias. 
 
 Arkansass: Crumpton v. State, 53 Ark., 373; s. c. 13 Southwest. Rep., 
 563. California : People v. Murray, 85 Cal., 350 ; s. c. 24 Pacific Rep., 
 666. Illinois: John Morris Co. v. Burgess, 44 111. App., 27. Maryland : 
 Wise V. Ackerman, 74 Md., 375; s. c. 35 Atlantic Rep., 424. Michigan : 
 Tolbert v. Burke, 89 Mich., 182 ; Langworthy v. Township of Green, 95 
 Mich., 93; s. c. 54 Northwest. Rep., 697. Missouri: State w. Jones, 106 
 Mo., 302 ; s. c. 17 Southwest. Rep., 366. Neiv York : Matter of Snelling, 
 136 N. Y., 515; s. c. 33 Northeast. Rep., 1006; People v. Fleming, 14 N. 
 Y. Supp. 200; s. c. 37 State Rep., 65; Effray v. Masson, 28 Abb. N. C, 
 307; s. c. 8 N. Y. Supp., 353; Hamilton v. Manhattan Ry. Co., 9 N. Y. 
 Supp., 313. Texas: Texas, etc., Ry. Co. v. Brown, 78 Tex., 397; s. c. 
 14 Southwest. Rep., 1034. 
 
 In Mitchell v. State, 94 Ala., 68; s. c. 10 Southern. Rep., 518, it is 
 held that where on the cross-examination of a witness for the state it is 
 shown that he was indicted with defendant, it is competent for the state 
 in rebuttal to show that no promise had been given the witness to induce 
 him to testify. 
 
XII. Impeachment. (2) Contradiction Drawn Out on Cross. 717 
 
 Sitterly v. Gregg, 90 N. Y., 686. 
 
 SITTEELY V. GEEGG. 
 
 New York Court of Appeals, 1882. 
 [Reported in 90 N. Y., 686.1 
 
 The credibility of a witness may be assailed by a contradiction of testi- 
 mony drawn out from him on cross-examination as to a material 
 point. 
 
 Where a witness on cross-examination had denied that the party on whose 
 behalf he was called was present at a transaction, his presence at 
 which would have tended to show acquiescence in or admission of a 
 material fact, held, that the cross-examining party was not bound by 
 the answer, but could give evidence to the contrary. 
 
 The plaintiff sued on notes, one of whicli was thirteen years 
 old, and defendant contended that they had been paid. There 
 had been other loans and notes between the parties. 
 
 The contention on the merits was as to whether a note of 
 §300 was paid before the time of an interview had by plaintiff 
 with defendant Andrew and his brothers, James and John. 
 [Eeported in 22 Hun, 258.J 
 
 James was called as a witness for defendant, and testified that 
 the note in question had been paid some ten years ago ; but was 
 not surrendered, plaintiff saying she could not then find it. He 
 also testified that at an interview for the purpose of accounting, 
 at a time long after the alleged payment, he, James, cast the in- 
 terest on the note in question with the others. On cross-exami- 
 nation he testified that Andrew, the defendant, was not present 
 at that interview. 
 
 The main question on appeal was whether Andrew's presence 
 was a collateral fact, as to which the cross-examining party was 
 bound by the answer, or whether it was material and could be 
 contradicted. 
 
 Finch, J. [on this point said] : The plaintiff, in her recital of 
 the interview and accounting at her mother's, stated that his 
 (defendant's) brothers, James and John, were present, and that 
 James did the figuring at her request. He was called as a 
 witness for the defendant, and testified that the $300 note was 
 actually paid within three or four years after it was given by 
 the defendant, and the note was not at the time surrendered, 
 
718 Abbott's Select Cases on Examining Witnesses. 
 
 Sitterly v. Gregg, 90 N. Y., 686. 
 
 because the plaintiff said she could not find it. On cross-examin- 
 ation his attention was drawn to the occurrence at his mother's, 
 the day after the meeting at O'Neill's. 
 
 If the plaintiff's version of that transaction was true, it tended 
 to contradict strongly the story of the witness, that he saw An- 
 d'rew previously pay the note, for it is inconceivable, if such 
 payment was in reality made, that James would cast the interest 
 on all three notes in the presence of Andrew, the latter taking 
 part in the transaction, and all parties tacitly conceding, and no one 
 disputing the validity of the $300 note as an outstanding debt 
 and element of the computation. Under the cross-examination, 
 directed to this occurrence, James admitted that he met the 
 plaintiff at his mother's on the day specified ; that the note of 
 $300 was referred to, and he figured the interest on it at plaint- 
 iff's request ; and that he figured on several amounts for her. 
 So far he corroborated her statement, and would have completed 
 a substantial contradiction of his own evidence in chief but for a 
 denial which followed. He said that the defendant was not 
 present on that occasion. He was then asked if he had not said 
 that Andrew was so present to O'Neill, and answered in the neg- 
 ative. O'lSTeill was subsequently called and permitted to testify 
 that the witness did so state, under the defendant's objection that 
 the fact inquired about was collateral, and the evidence incompe- 
 tent. "We think the fact inquired about was not a collateral fact 
 within the rule, but one material to the issue of payment, and, if 
 true, tended, when taken in connection with the admissions of the 
 witness, to contradict his evidence in chief, for it is impossible to 
 believe, if James and Andrew both knew the note to have been 
 paid, that the former would have figured the interest on it, and the 
 latter taken part in the transaction, but neither uttering protest 
 or dissent. All this would have followed and been unanswerable, 
 if Andrew was admitted to have been present, unless some fur- 
 ther modifying proof was given. While the latter also denied 
 being present, he confesses that the appointment was made the 
 day before at his request. The collision, therefore, was upon an 
 important and material point, and the fact sought to be drawn 
 from James bore directly upon the issue of payment, and tended 
 to contradict him upon a material matter, and where that is the 
 
XII. Impeachment. (2) Contradiction Drawn Out on Cross. Y19 
 
 Matter of Will of Snelling, 136 N. Y., 515. 
 
 case the credibility of tlie witness may be assailed by showing a 
 contrary statement made elsewhere. (Carpenter v. Ward, 30 IST. 
 Y., 2i3 ; Schell v. Plumb, 55 id., 592 ; Patchin v. Astor Mut. 
 Ins. Co., 13 id., 268.) The cross-examination of the witness was 
 not as to immaterial matter. It was upon an occurrence vital to 
 the issue of payment, and to the testimony upon that issue which 
 the witness had given on his direct examination. We think, 
 therefore, the evidence of O'lSTeill was competent, and no error 
 was committed in its admission. 
 
 All the judges concurred, except Teacy, J., absent. 
 
 Judgment affirmed. 
 
 Note.— In Badger v. Badger, 88 N. Y., 546 ; rev'g 13 Weekly Dig., 35, 
 an action for dower, the issue being as to the marriage of plaintiff and 
 decedent, sought to be proved by evidence of cohabitation and repute, in 
 opposition to proof that during the same period, the decedent was known 
 among his friends and relatives as a bachelor, a witness for plaintiff testi- 
 fied to a conversation with decedent at the house of a sister of the latter 
 where he said he was a married man, but it would not do to let the women 
 know it. Upon cross-examination the witness denied that at another 
 time, the decedent, in presence of his sister, said he was a bachelor. The 
 defendant afterward called the sister. Held, that as against a general 
 objection, it was proper to allow her to testify to the latter statement of 
 the deceased, it being expressly received for the purpose of contradicting 
 the plaintiff's witness, and not as a declaration of deceased. 
 
 The declaration was not immaterial within the rule that an answer on 
 such matter is conclusive (Dist'g Van Tuyl v. Van Tuyl, 57 Barb., 341; 
 Matter of Taylor, 9 Paige, 614). 
 
 MATTER OF WILL OF SNELLING. 
 
 New York Court of Appeals, 1893. 
 [Reported in 136 N. Y., 515.] 
 
 If an objection is so stated that it may fairly be assumed that the precise 
 ground was understood, though indirectly or obscurely expressed, it 
 may be held on appeal sufficient in form. 
 
 Bias of a witness is material ; and counsel cross-examining a witness as to 
 statements or acts showing bias is not concluded by the answers of 
 the witness, but after foundation laid* may contradict the testimony 
 by other witnesses. 
 
 Application for the probate of the will of Mary Snelling, 
 
 * That there is no necessity of laying foundation, see People v. Brooks, p. Til of this vol. 
 
72() Abbott's Select Cases ojst Examining Witnesses. 
 
 Matter of Will of Snelling, 136 N. Y., 515. 
 
 contested by her nephews and nieces on the ground of incapacity 
 and undue influence. On the hearing, two witnesses were pro- 
 duced by the contestants for the purpose of sustaining the ob- 
 jections made to the probate of the will, who testified at great 
 length to various acts, conversations and transactions of the tes- 
 tatrix, tending to establish undue influence and incapacity. This 
 testimony extended over some years prior to the execution of the 
 will, and much of it had no bearing upon the issues, as may well 
 be inferred from the fact that it covers over fifty printed pages 
 in the record. The proponents then called two physicians, who 
 both testified that they had read the whole of the testimony of the 
 two witnesses referred to above, giving the names of these wit- 
 nesses, and to each of them in succession the following question 
 was propounded : " Assuming their testimony to be true, and 
 basing your opinion upon such testimony, what would you say 
 as to the mental condition of Mary Snelling, say in June, 1890 ?" 
 
 Objected to as irrelevant and immaterial, and that the witness 
 is debarred from answering the question as laid down by the 
 Court of Appeals in the case of People v. McElvaine.* Objec- 
 tion overruled and exception taken. 
 
 •A. " I should say she was perfectly sane." 
 
 The Surrogate of Suffolk admitted the will to probate. 
 
 The Supreme Court at General Term affirmed the decree with- 
 out opinion on this point. 
 
 The Court of Appeals reversed the judgment. 
 
 O'Beien, J. [after stating facts.^ This question [the one 
 above given] was objected to by the counsel for the contestants; 
 and while the form in which the objection was made is quite inar- 
 tistic, there can be no doubt as to what was intended, and we think 
 was sufficient to challenge the competency of the testimony sought 
 to be elicited. The surrogate overruled the objection, and an ex- 
 ception was taken. The witness in each case then answered : 
 " I should say she was perfectly sane." It is needless to enter 
 upon any reasoning or discussion to show that this question was 
 
 * Reported in 121 N. Y., 250. The ruling there was against an hypotheti- 
 cal question referring to evidence as heard by the witness. 
 
XII. Impeachment. (?) Contradiction Drawn Out on Cross. 721 
 
 Matter of Will of Snelling, 136 N. Y., 515. 
 
 improper, as this conrt has more than once condemned this 
 method of eliciting opinions from experts. (Reynolds v. Robin- 
 son, 64 ]Sr. Y. 589, 595 ; People v. McElvaine, 121 id. 250 ; 
 Link V. Sheldon, 136 N. Y. 1.) And it would be difficult to 
 imagine a plainer breach of the rule than is presented by the 
 question propounded to the witness in this case. The principle 
 is not changed by the circumstance that all the testimony em- 
 braced within the sweeping terms of the question was before the 
 court, or by the fact that the mass of testimony upon which the 
 opinion was based came from witnesses of the opposite party. 
 The necessity of a specific question, at the time of the examina- 
 tion of the witnesses, covering all the facts, or assumed facts, 
 upon which the opinion of the expert is required, is as apparent 
 in such a case as in any other. 
 
 One of the subscribing witnesses to the execution of the will 
 was a neighbor of the persons, husband and wife, in whose favor 
 the will was made, and she attended at the time the will was 
 executed, at the request of the wife, who was one of the bene- 
 ficiaries under the will. About the time of the hearing upon 
 the contest before the surrogate this subscribing witness was 
 visited by a woman who, under an assumed name and without 
 disclosing her real purpose, had- been procured by the contest- 
 ants or their counsel to elicit admissions from her for use upon 
 the trial. The subscribing witness, after having testified to 
 what took place at the execution of the will, and that the testa- 
 trix was at the time apparently rational, was subjected to a long 
 cross-examination with reference to the interview with the visi- 
 tor above referred to, for the purpose of laying a foundation for 
 impeaching her testimony. Many of the questions put to the 
 witness in the course of this exceedingly prolix and discursive 
 examination were properly excluded by the surrogate. She was 
 asked, however, in substance, if Mrs. Cook, who was one of the 
 beneficiaries under the will and interested in its probate, and 
 who had procured her to attend as a witness to the will, had not 
 promised her money or some reward in the case, and she an- 
 swered the question in the negative. Subsequently the woman 
 who sought the interview in the interest of the contestants, was 
 called as an impeaching witness, and in various forms was asked 
 
723 Abbott's Select Cases on Examining "Witnesses. 
 
 Van Tassel v. N. Y., L. E., etc., R.R. Co., 20 N. Y. Supp., 708. 
 
 if the subscribing witness had not so stated in the interview, and 
 other questions tending to impeach her, which were excluded 
 under exception. . 
 
 The interest which a witness has in the subject of the contro- 
 versy is a material inquiry, as it bears upon the question of credi- 
 bility, and where a witness has received or has been promised 
 any reward for giving testimony in a case, the fact may be 
 shown upon cross-examination, and if denied, admissions or 
 declarations out of court to that effect may be proved. The 
 relations which the witness bears to the case are so far relevant 
 to the issue as to admit proof of contradictory statements by 
 way of impeachment when the proper foundation is laid. (1 
 Green, on Ev. § 450 ; IS'ewton v. Harris, 6 1!:^. Y. 345 ; Stark v. 
 People, 5 Denio, 106.) 
 
 Many of the questions propounded to the impeaching witness 
 were so framed that their purpose or meaning was not quite 
 clear, or they were so intermingled with other matters that they 
 M-ere properly excluded, but with respect to the interest which 
 the subscribing witness had in the establishment of the will, the 
 contestants were not permitted to make such inquiry as they were 
 entitled to. The very questionable methods used to procure the 
 impeaching testimony might well affect its credibility with the 
 surrogate, but could not affect its competency. An error in ad- 
 mitting or excluding evidence in such a case is not sufficient to 
 reverse the decree of the surrogate, unless it appears that the 
 party against whom the ruling was made was necessarily preju- 
 diced thereby. (Code, § 2545.) 
 
 The rulings referred to related to important testimony in the 
 case, and, at least in some degree, must have been prejudicial to 
 the contestants. For these reasons, the judgment of the general 
 Term and the decree of the surrogate should be reversed and a 
 new trial granted, costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 NOTB.— In Van Tassel v. New York, Lake Erie & W. R.R. Co., 30 N. Y. 
 Supp., 708, it was held that the use of an alleged book of entries, which a 
 witness testifies were regularly made according to their dates in the 
 course of his professional service, which he produces and testifies to in 
 
XII. Impeachment. (2) Contradiction Drawn Out on Cross. T23 
 
 Note of Cases against Contradicting Collateral Matters drawn out on Cross. 
 
 support of his testimony to facts which he swears were observed by him 
 and of which an entry appears in the book, is not collateral matter ; but 
 the testimony of the witness given on cross-examination, in respect to the 
 entries of other consultations there entered, may be contradicted and the 
 book of entries impeached by testimony of an expert that all the entries 
 were made at one time. 
 
 IfOTE OF EECEE^T CASES AGAINST CONTEADICT- 
 
 IISTG COLLATEKAL MATTEKS DKAWN OUT 
 
 ON CEOSS EXAMINATION. 
 
 The rule, that a party cross-examining a witness as to collateral mat- 
 ters is concluded by the witness' answer, and cannot contradict him by 
 other evidence, is supported by the following- cases : 
 
 California: People ®. Tiley, 84 CaL, 651 ; s. c. 34 PaciBc Eep., 290; 
 People «. Webb, 70 Cal.. 120; 11 PaciBc Rep., 509 ; Barkley v. Copeland, 
 86 CaL, 483 ; 25 Pacific Eep., 1. Georgia : Futch v. State, 90 Ga., 473 ; 
 16 Southeast. Rep., 102. Illinois : Lake Erie, etc., R. Co. v. Morain, 140 
 111., 117; s. c. 29 Northeast. Rep., 869: Lochnitt v. Stocken, 31 111. App., 
 217. Kentucky : Commonwealth v. Hourigan, 89 Kentucky, 805 ; s. c. 12 
 Southwest. Rep., 550. Louisiana . State v. Donelson, 1893, 12 Southern 
 Rep., 933. Massachusetts: Commonwealth v. Jones, 155 Mass., 170; s. c. 
 29 Northeast. Eep., 467. Michigan : People v. Hillhouse, 80 Mich., 580; 
 s. c. 45 Northwest. Eep., 484. Nebraska : Carter v. State, 1893, 54 North- 
 west. Eep., 853. New York : Surdam v. Ingraham, 12 N. Y. Supp., 798; 
 Hill V. Froeleok, 14 id., 610 ; s. c. 38 State Eep., 616 ; Van Tassel v. N. Y., 
 Lake Erie, etc., R. Co., 30 N. Y. Supp., 708; s. c. 48 State Rep., 767; 1 
 Misc. R., 399. United States : Union Pac. E. Co. v. Eeese, 56 Fed. Eep., 
 288. 
 
724 Abbott's Select Cases on Examining Witnesses. 
 Fisher v. Monroe, 2 Misc., 326. 
 
 FISHEE V. MONROE. 
 
 ]Vew York Court of Common Pleas, 1893. 
 [Reported in 2 Misc. (Delehanty), 326.] 
 
 The rule that foundation must be laid by calling the attention of the wit- 
 ness on cross-examination, to time, place, etc., before proving pre- 
 vious statements, inconsistent with present testimony, does not apply 
 to statements of a party to the action. 
 
 An exception to the refusal to allow such statements of a party to be 
 proved until the party has been recalled and foundation laid, is not 
 waived by yielding and recalling and cross-examining the party for 
 that purpose. 
 
 Action by an actress for breach of contract of employment. 
 
 The chief question litigated was whether she had sufficient 
 excuse for non-attendimce at a rehearsal. 
 
 In aid of their contention, the defendant's counsel offered 
 plaintiff's cross-examination on a previous trial in evidence, to 
 prove admissions by her as to whether or not she was ill or 
 merely tired out, and also to prove her admissions as to her 
 duties as an actress upon rehearsals. 
 
 The court excluded the evidence unless the attention of the 
 witness was first called to what she had testified to on the former 
 trial. The defendant's counsel thereupon stated to the court 
 that it was not for the purpose of impeaching the witness, but 
 to prove admissions made by her. Still the court would not 
 allow him to do so, and defendant's counsel excepted. 
 
 Plaintiff recovered a verdict. 
 
 The Court of Common Pleas reversed the judgment. 
 
 BooKSTAVEE, J. [after stating facts'] : It is well settled that 
 an admission made at one stage of an action, binds the parties at 
 all subsequent stages as primary evidence. Larrison v. Payne, 
 23 N. Y. St. Eepr., 438 ; Scofield^j. Spaulding, id., 108 ; 54 Hun' 
 523 ; Tooker v. Gormer, 2 Hilt., 71. The rule which makes it 
 incumbent upon the cross-examining counsel first to direct the 
 witness' attention with reasonable precision to, and interrogate 
 him respecting, an alleged contradictory statement before the 
 
XII. lriij)eachment. (3) Previous Inconsistent Statements. 725 
 Fisher v. Monroe, 2 Misc., 836. 
 
 latter may be given in evidence (Crane v. Hardman, 4 E. D. 
 Smith, 448; Everson v. Carpenter, 17 Wend., 419; Eoot v. 
 Brown, 4 Hun, 797), does not apply to parties to the action 
 (Kennedy v. Wood, h'A Hun, 46, 22 N. Y. St. Eepr., 132; 
 Boehm v. Miller, 45 id., 281) ; and as to them the alleged con- 
 tradictory statement is admissible as a declaration as against in- 
 terest. Cook V. Barr, 44 N. Y., 156 ; Williams v. Sergeant, 46 
 id., ,481. 
 
 And in Meyer v. Campbell, 1 Misc. Kep., 283, we held that 
 though the statement be a part of a pleading which has been 
 superseded by the service of an amended one, it could still be 
 given in evidence. In the same case we held that the defend- 
 ant had the right to offer, and it was error to exclude, plaintiff's 
 deposition taken de hene 'esse, which was at variance with the 
 allegations of the amended complaint, although that deposition 
 was not competent in plaintiff's favor, since he was present at 
 the trial, but on the ground that it was a declaration against his 
 interest. 
 
 It was, therefore, error to exclude the cross-examination of 
 the plaintiff on the former trial, as far as that related to the 
 questions at issue on this trial. 
 
 jSTor was this error cured by afterwards admitting portions of 
 it in rebuttal in order to impeach the witness, as it must be ap- 
 parent that the force of the evidence was greatly weakened by 
 the cross-examination imposed on defendants as a preliminary, 
 and the jury might well have been misled as to its weight and 
 effect in consequence ; for such a course is very likely to preju- 
 dice the minds of a jury, especially in the case of a lady on ac- 
 count of the necessarily unpleasant position in which the party 
 is placed thereby, and the apparent harshness of such a course. 
 Besides, the admission was not as broad as the former offer of 
 the defendants. 
 
 Judgment reversed. 
 
726 AsBOTT'ti Select Cases on Examining Witnesses. 
 Rockwell V. Brown, 36 N. Y., 307. 
 
 EOCKWELL V. BEOWN. 
 
 JVew York Court of Appeals, 1867. 
 
 [Reported in 36 N. Y., 307.] 
 
 To lay the foundation for proN^ing statements previously made by the 
 witness, inconsistent with his present testimony it. is enoug-h if his 
 attention is directed with reasonable certainty to the occasion of the 
 imputed conversation : to call his attention to the time, place and 
 person, or to person and time, is enough. 
 
 An action for slander. 
 
 The complaint alleged that defendant, in the presence of 
 divers good and worthy citizens, stated that plaintiff stole his 
 cow. 
 
 The answer set up the facts and circumstances under which the 
 cow was taken by the plaintiff, in bar of the action and also in 
 mitigation of damages. 
 
 Upon the trial Josiah Hopkins, a witness for the defendant, on 
 his cross-examination, was asked : " Did you tell him (plaintifE's 
 father, Peter Eoekwell), at his house, last July, that Brown told 
 you that plaintiff stole his cow ? " The witness answered : " I 
 did not tell him so ; I know what I did tell him." 
 
 The plaintiff then called Peter Rockwell, who testified that he 
 knew Josiah Hopkins, " he was at my house in July last." He 
 was then asked this question : " Did Josiah Hopkins tell you' in 
 July last that defendant told him that plaintiff stole defendant's 
 cow?" 
 
 The defendant objected on the grounds : 1. That the question 
 does not confine the witness to any place of the alleged conversa- 
 tion. 2. It does not refer to the time when Hopkins had the 
 conversation with Brown at Underwood's, testified to. 3. That 
 it is immaterial. 
 
 Plaintiff recovered. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 The Court of Appeals atfirmed the judgment. 
 Davies, Ch. J . \_said on this point, after stating facts'] : 
 Neither of these grounds are tenable. Preliminary to the ques- 
 
XII. Impeachment. (3) Previous Inconsistent Statements. Y2T 
 
 Rockwell V. Brown, 86 N. Y., 307. 
 
 tion, the witness had testiiied that he knew Hopkins, and that 
 Hopkins was at his house in July last. The question was then 
 put in the form above quoted. I think there was a sufficient in- 
 dication of the place at which the conversation was had, and the 
 whole answer of the witness points unerringly to the conversa- 
 tion at his house, of which Hopkins had been inquired about. 
 The ruling of the referee falls within the doctrine laid down by 
 this court in Pendleton v. Empire Stone Dressing Company (19 
 N. Y., 13, 18). The witness Hopkins had his attention called 
 with reasonable certainty to the conversation with Eockwell, and 
 it is manifest that the latter witness referred, in his testimony, 
 to the same conversation of which Hopkins had been inquired 
 about. 
 
 The judgment appealed from should be affirmed, with costs. 
 
 BocKES, J. [sa'id on this jaoint'] : The question put to the 
 witness, Kockwell, with a view to affect the credibility of Hop- 
 kins, who had been examined on defendant's behalf, was, I 
 think, admissible. Hopkins had denied telling Rockwell in July 
 that the defendant said the plaintiff stole the cow. Eockwell 
 was then called and asked if Hopkins did so tell him in July, 
 and answered that he did. The subject-matter to which Hop- 
 kins had testified, and in regard to which it was proposed to con- 
 tradict him, was relevant to the issue. The only qiiestion is, 
 whether his attention was sufficiently directed to the conversa- 
 tion, in which he made the statement imputed to him. It has 
 been long settled that it is not sufficient to inquire generally of 
 a witness, with a view to affect his credibility by contradicting 
 him, whether he ever made the specific statement, without nam- 
 ing person, time or place. His attention should be called to the 
 occasion to enable him to explain, or exculpate himself in regard 
 to the imputed contradiction. How specific the cross-examina- 
 tion should be in such case was considered by Judge Denio in 
 Pendleton v. Empire Stone Dressing Co. (19 N. Y., 13) where 
 it was held that the occasion of the supposed conversation should 
 be pointed out to the witness with reasonable certainty, as by 
 indicating the place, the purpose of the interview or other cir- 
 cumstance likely to call it to the mind of the witness. As a 
 
"728 Abbott's Select Cases on Examining Witnesses. 
 
 Pendleton v. Empire Stone Dressing Co., 19 N. Y., IS. 
 
 general and safe rule of examination, the time and place as well 
 as the person should be named ; but it seems that each and all 
 of these are not absolutely essential, when the occasion is clearly 
 indicated by other circumstances. In this case Hopkins was 
 asked whether he told Eockwell at his house, in July, that the 
 defendant said the plaintiff stole the cow. He answered : " I did 
 not tell him so." He also stated that he did not tell him that 
 last July. Here his attention was called to person, time and 
 place in one instance, and to person and time in the other. The 
 occasions were, therefore, suiBciently specified to admit of con- 
 tradiction as to either statement within the rule laid down in 
 Pendleton v. Empire Stone Dressing Co., above cited. 
 
 The judgment should be affirmed. 
 
 All the judges concurred. 
 
 Note.— In Pendleton v. Empire Stone Dressing Co., 19 N. Y., 13, 
 Denio, J., said : Tiie question then is, whether it is sufficient to inquire of 
 a witness whether he has not made specific statements, contradictory to 
 the testimony he has given, to an individual named, without mentioning 
 time, place or other circumstance, in order to lay the foundation for 
 giving in evidence such contradictory statements. The reason for requir- 
 ing that a'witness, whose credit it is intended to attack by the proof of 
 contradictory statements, should be first examined respecting them, is 
 according to the unanimous opinion of the judges in the Queen's case, that 
 he may be enabled to give such reason, explanation or exculpation as the 
 circumstances of the transaction may happen to furnish. (3 Broad. & 
 Bing., 313.) It did not fall within the purpose of the judges to declare how 
 specific the cross-examination for such a purpose ought to be, the question 
 being whether he should be required to be examined as to the fact whether 
 he had ever made such declarations. In Angus v. Smith (1 Mood. & Malk., 
 473), the witness attempted to be contradicted, denied, on cross-examina- 
 tion, that he had ever said what was imputed to him, but no name of any 
 person had been suggested to him as the party to whom he had made the 
 supposed statement. It was then proposed to prove a statement made to 
 a particular person ; but the court held that a sufficient foundation had 
 not been laid. The Chief Justice said : " I understand the rule to be that, 
 before you can contradict a witness by showing that he has, at some other 
 time, said something inconsistent with the present evidence, you must ask 
 him as to the time, place and person involved in the supposed contradic- 
 tion." In a note by the reporter, it is stated that the general practice 
 since the Queen's case has been in conformity with the rule as above 
 stated by Chief Justice Tindal. That rule was referred to as the one 
 which should govern in such cases in the late Supreme Court, in Davis v 
 Kimball (19 Wend., 437). The general rule that the attention of the witness 
 
XII. Imjpeachment. (3) Previous Inconsistent Statements. 729 
 
 Romertze v. East River Nat. Bank, 49 N. Y. , 577. 
 
 to the impeached must be in some sufficient manner called to his alleged 
 conflicting' declarations, has been frequently stated and affirmed in this 
 court, though it has not become necessary to state the extent to which the 
 cross-examination must be carried. (Patcheu v. The Astor Mut. Ins. Co., 3 
 Kern., 268 ; Stacy v. Graham, 4 id., 492.) The rule, as laid down by Chief 
 Justice Tindal, is generally referred to as the true one by writers on the law 
 of evidence. (Cow. & Hill's Notes, 774; 1 Green!., 463.) I am not aware 
 that any case has been presented to the courts where the name of the 
 person to whom the declaration supposed to have been made, and nothing 
 more, has been stated in the cross-examination of the principal witness, 
 though tiie dicta of judges and of writers, as we have seen, tends strongly 
 to the conclusion that this alone would not be considered sufficient. I 
 conceive, therefore, that we are at liberty to lay down the rule which 
 ought to be observed in such cases, and I am of the opinion that the occa- 
 sion of the supposed conversation ought to be pointed out with reasonable 
 certainty on the cross-examination of the witness whose credit is to be 
 attacked by the proof of the contradictory statements. It cannot of 
 course, be necessary that the precise date should be indicated, as that 
 must often be difficult to ascertain, and if ascertained, would not be hkely, 
 of itself, to recall the circumstance to the witness ; but the place could 
 easily be indicated and the occurrence identified by a statement of the 
 purpose of the interview or other circumstances, which would recall it to 
 the mind of the witness, if the conversation inquired of actually took 
 place. It is obvious that the cross-examination, in this instance, did not 
 come within the reason of the rule as thus defined, and that the judge was 
 justified in excluding the declaration offered. 
 
 ROMERTZE v. EAST RIYER NAT. BANK. 
 
 New York Court of Appeals, 1872. 
 
 [Reported in 49 N. Y., 577.] 
 
 To lay the foundation for proving written statements previously made by 
 the witness, inconsistent with his present testimony, it is enough that 
 while under cross-examination he is shown the paper and admits that 
 he wrote or signed it and knows its contents. 
 
 The proper mode of proving its contents is to read the paper in evidence. 
 It is not competent to read particular paiis to the witness and ask him 
 if he so stated. 
 
 It is not necessary to put the paper in evidence at the time of cross-exam- 
 ination ; but the cross-examining counsel may reserve it and put it in 
 evidence afterward, and this is the more orderly course. 
 
 Nor is it necessary to call his attention while under cross-examination to 
 the particular parts which are deemed contradictory. 
 
730 Abbott's Select Cases on Examining Witnesses. 
 
 Eomertze v. East River Nat. Bank, 40 N. Y., 577. 
 
 The witness or the party calling him has not a legal right to enter into 
 any explanation of the contents of the paper until after it has been 
 introduced in evidence. 
 
 Upon the trial of this cause Zenos E. Newell, cashier of the de- 
 fendant bank (whose evidence in this case had been taken de 
 bene esae), was present in court, and was called and examined as a 
 witness for defendant. 
 
 On cross-examination he testified, " I believe I was sworn be- 
 fore as a witness in this case. [Deposition shown him. J That 
 is my signature. The deposition was read over to me before I 
 signed it." 
 
 After defendant's counsel rested, plaintiff's counsel offered to 
 read in evidence the testimony of Newell, taken de hene esse in 
 this action, for the purpose of showing that he made statements 
 therein inconsistent with his testimony on the stand in court on 
 this trial. Objected to on the ground that the proper founda- 
 tion had not been laid for reading the deposition ; and on the 
 further ground that tlie witness was then present in court, and 
 had already been examined orally as a witness in court on this 
 trial, and on the further ground that the proper foundation had 
 not been laid for reading the deposition for the purpose of con- 
 tradicting the witness. 
 
 Objection sustained. Exception taken. 
 
 At the trial term defendant recovered. 
 
 T/ie Superior Court at Gtneral Term affirmed the judgment, 
 saying that the witness had not been examined in respect to it, 
 the deposition, further than to prove his signature. It had not 
 been read to him, nor was he in any manner apprized of the 
 purpose for which it was proved, or the use it was intended to 
 make of it. He had, therefore, no opportunity to enter into ex- 
 planations, or correct mistakes, if there were any. If the rule 
 which requires as a preliminary to impeachment, that the atten- 
 tion of the witness should be called to the subject matter, means 
 anything, and is designed to protect the witness from surprise or 
 misunderstanding, then enough was not done in this case to make 
 the evidence admissible. A.t least the parts of the deposition, 
 
XII. Impeachment. (3) Previous Inconsistent Statements. Y31 
 
 Eomertze v. East River Nat. Bank, 49 N. Y., 577. 
 
 claimed to be contractions of his evidence on tlie stand, should 
 have been read or pointed out to him. [Citing 1 Phil., ev., 27 ; 
 Clapp V. Wilson, 5 Den., 285; Hubbard v. Briggs, 31 N. Y., 
 518 ; Stephen v. People, 19 N. T., 549 ; Newcomb v. Griswold, 
 24 N. Y., 298.] 
 
 Tlie Court of Appeals reversed the judgment. 
 
 Church, Ch. J. [on this point said] ; The only question of 
 law which seems to deserve attention relates to the attempt to 
 prove that the vritness, Newell, called by the defendant, had 
 made statements on another occasion inconsistent with those tes- 
 tified to by him on the trial. This evidence had been taken de 
 lene esse in the same action, and on cross-examination the de- 
 position was shovni to him, and he stated that he signed it, and 
 that it was read over to him before he signed it. 
 
 After the defendant rested, the plaintiff's counsel proposed to 
 read the deposition, "for the purpose of showing that he made 
 statements therein is inconsistent with his testimony given on 
 the stand in court on his trial." The court excluded it, 
 on the ground, as we must presume from the objection, and what 
 took place subsequently, that a proper foundation had not been 
 laid for the purpose of reading the deposition to contradict the 
 witness. We think the court erred in rejecting the deposition. 
 The paper was shown to the witness ; he verified the signature 
 and stated that it was read over to him before he signed it. 
 It is to be presumed that he understood it. What more should 
 have been done? It was not competent to repeat partic- 
 ular sentences and ask if he testified to them, because the 
 paper was the best evidence of what it contained. It was not 
 incumbent upon the plaintiflE's counsel to ask for explanations, 
 nor to introduce the paper in evidence at that time. If he desired 
 to ask the witness questions with reference to it, the court might, 
 in its discretion, permit its introduction at that time, but the 
 regular course was to wait until his turn came to put in evidence, 
 and this he did. 
 
 It is said that the letter should have been introduced in evi- 
 dence at the time, so that the witness might either explain his 
 evidence or the statements contained in the paper. Without 
 
732 Abbott's Select Cases on Examining Witnesses. 
 
 Romertze v. Bast River Nat. Bank, 49 N. Y., 577. 
 
 determining wliether the court might, in its discretion, permit 
 that course, the orderly way was to withhold the paper until the 
 party had the right to produce evidence on his part. It was his 
 evidence, and strictly he had no right to produce it until the 
 other party rested, and he took the case. The witness could then 
 be recalled and make any explanation he might have. Neither 
 his rights nor that of the party would have been interfered with 
 by this course. In the case of oral declarations out of court, the 
 contradicting witnesses are never called until the party proposing 
 to introduce them has the right to produce evidence on his part, 
 and the explanations of the witness sought to be impeached are 
 usually given after that, although the court may sometimes vary 
 the order of evidence as a matter of discretion. The rule is 
 substanti3,lly the same in both cases, except as it is necessarily 
 varied by the nature of the impeaching evidence. As to oral 
 declarations, the attention of the witness must be called to the 
 time and place, and particular language used, in order that he may 
 recall the circumstances and make an intelligent answer ; but, as 
 to written statements, this is unnecessary, when the witness is 
 shown the paper itself, and admits that he wrote or signed it and 
 knows its contents. The rule indicated preserves the orderly 
 course of the trial, and does no injustice to the witness or either 
 party, and such, I understand, to be the rule sanctioned by 
 authority. In 2 Greenleaf on Ev., §463, it is said that if the 
 witness " admits the letter to be his writing, he cannot be asked 
 whether statements, such as the counsel may. suggest, are con- 
 tained in it, but the whole letter must be read as the only 
 competent evidence of that fact. According to the ordinary 
 rule of ])roceeding in such cases, the letter is to be read as the 
 evidence of the cross-examining counsel in his turn, when he 
 shall have opened the case." 
 
 The same rule is laid down in 2 Phillips on Ev., 807. In 
 Clapp V. Wilson, 5 Denio, 288, the court said : This being a 
 sworn statement in writing, it was not necessary to call the 
 attention of the witness in the first instance to the statements in 
 it, which were intended to be relied on with a view to explana- 
 nation. 
 
 This is only necessary when naked, contradictory statements 
 
XII. Impeachment. (3) Previous Inconsistent Statements. Y33 
 
 Komertze v. East River Nat. Bank, 49 N. Y., 577. 
 
 are referred to for the purpose of impairing tlie confidence in 
 the ^vitness." In that case the paper had been shown to the 
 witness, and the signature admitted, and it was objected on the 
 argument that it had not been read in evidence on the trial. 
 The court assumed that it had ; and held that it was unnecessary 
 to call the attention of the witness, in the first instance, to par- 
 ticular passages contained in it for the purpose of explanation, 
 and, we think, held correctly, although, from the language 
 used, without reference to the facts, it might be inferred that it 
 was unnecessary to call the attention of the witness to the paper 
 at all. The learned judge who delivered the opinion of the 
 court below claims that these authorities have been overruled, 
 and the rule changed by this court. With great respect, I can- 
 not agree with him. He refers, to establish this, to Hubbard v. 
 Briggs (31 N. T., 518) ; Stephens v. The People (19 id., 549) ; 
 Newcomb v Griswold (24 id., 298). In the first case (Hubbard 
 V. Briggs) the testimony of a deceased witness was read by 
 stipulation ; and it was then proposed to read a deposition made 
 by him in another action to contradict his testimony. This court 
 held this to be incompetent, because the attention of the witness 
 had not been called to the statements proposed to be read. The 
 manifest distinction between that case and this is, that in this 
 case the attention of the witness was called to the deposition pro- 
 posed to be read ; he knew its contents, and had, or would have, 
 every opportunity for explanation, while, in that case, the atten- 
 tion of the witness was not called to the paper at all, and no 
 opportunity was or could be afforded him for explanation. The 
 point determined here was not up in that case. The proper 
 time for explanation is after the paper has been read ; and that, 
 as we have seen, is when the party proposing to offer it can intro- 
 duce evidence on his part, and the attention of the witness is sufll- 
 ciently called to it in the first instance by showing it to him, and 
 giving him an opportunity to know what it is, and his admitting or 
 denying its authenticity. These points were not in the case, nor 
 discussed. In Stephens «. The People (19 IST. Y., 549) the court 
 below had permitted such parts of the deposition taken before 
 the coroner of two witnesses to be read as had been called to 
 their attention during their examination, and rejected the other 
 
734 Abbott's Select Cases on Examining Witnesses. 
 
 Romertze v. East River Nat. Bank, 49 N.Y., 577. 
 
 parts. The court held that this was not error ; but, if it was, it 
 was cured by the subsequent introduction of the whole deposi- 
 tion ; and it was also held that the introduction of the deposition 
 of another witness was not error, as there was no objection made 
 that the attention of the witness was not called to it. 
 
 It cannot be claimed that the court intended to decide that the 
 attention of the witness would not be sufficiently called to the 
 paper by what took place in this case. No such point was pre- 
 sented, and the language of the court must be referred to the 
 facts of the case. In ISTewcomb r. Griswold it was merely held 
 that a witness is not bound to answer as to matters reduced 
 to writing by himself or another, and subscribed by him, until 
 after the writing has been produced and read or shown to him. 
 The supposed conflict between the authorities is attributable more 
 to the apparent difference of expression than to a deliberate 
 intent to change the rule. In neither case does the court discuss 
 the rule above alluded to, or cite any authorities, or intimate an 
 intention to change or modify the rule laid down in the 
 elementary books. The result of all the authorities is that'it is 
 sufficient for a party, proposing to impeach a witness- by proving 
 inconsistent written statements, to show him or read to him the 
 paper; and if its genuineness is admitted, to 'introduce it, when 
 he has a right to put in evidence ; and that it is not the legal right of 
 the other party or the witness to enter into any explanation of 
 the contents of the paper until after it has been introduced in 
 evidence. The court may doubtless permit the explanation, in 
 the first instance, and may vary the order of proof in this as in 
 many other cases for the purpose of eliciting truth and prevent- 
 ing injustice. Many questions of this character are within the 
 discretion of the court ; but here the plaintiff pursued the usual 
 and legal course. The witness admitted the genuineness of the 
 paper and knew its contents. His attention was sufficiently 
 called to it. ISfeither he nor the defendant asked the privilege 
 of explanation, nor demanded the reading of the paper. The 
 plaintiff offered the paper at the right time, and it was error to 
 reject it. The court not only refused to permit the introduction 
 of the paper on the ground that no foundation had been laid, 
 but after the plaintiff had recalled the witness for the purpose of 
 
XII. hnpeachment. (3) Previous Inconsistent Statements. 735 
 
 Matter of Hesdra, 119 N. Y., 615. 
 
 laying the foundation, refused to permit the necessary questions 
 to be put to him, on the ground that it was discretionary with 
 the court to allow a witness to be recalled. Whether such an 
 exercise of discretionary power against a party is not legal error 
 it is not requisite to determine, as the recall of the witness was 
 unnecessary. 
 
 The deposition offered in evidence is not before us, and we 
 cannot, therefore, say that the plaintiff might not have been 
 prejudiced by its rejection. The result may have been the 
 same, but there is no legal rule by which we can so de- 
 termine. For the eror in rejecting it, the judgment must be 
 reversed and a new trial ordered, costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 MATTEE OF HESDRA. 
 
 New York Court of Appeals, 1890. 
 
 [Reported in 119 N. Y., 615.] 
 
 It seems that after an attested instrument has been sought to be proved 
 by evidence of the handwriting of a deceased subscribing witness, the 
 adverse party may prove declarations of the alleged subscribing' wit- 
 ness, inconsistent witli the attestation, by way of impeachment 
 thereof. 
 
 A will may be proved by other evidence, notwithstanding- the subscribing 
 witnesses testify that it was not regularly executed. 
 
 Proof of circumstances, with a regular attestation clause, are enough if 
 the tribunal is thereby satisfied of the factum. 
 
 When an effort has been made to impeach the testimony of a witness by 
 evidence tliat he has made statements inconsistent therewith, which 
 are attributed to a wrongful motive, or suggested to be fabrications of 
 a later date than the fact, it is competent to corroborate his testimony 
 by showing that he made declarations to the same effect as his testi- 
 mony, when he was not under any such motive, or before the time of 
 the suggested fabi'ication. 
 
 The same rule allows such corroboration of the attestation of a subscrib- 
 ing witness, where his statements contradictory of the attestation 
 have been given in evidence. 
 
 Probate of the will of Edward D. Hesdra was contested by 
 Mrs. Tordoff (claiming to be a niece of testator), and also by the 
 
736 Abbott's Select Cases on Examining "Witnesses. 
 
 Matter of Hesdra, 119 N. Y., 615.. 
 
 state, claiming that slie was not a niece and that the estate of 
 testator has escheated, it being conceded that unless Mrs. Tordoff 
 is such niece, the testator died without heirs. 
 
 Tlie contest turned principally upon the question of the 
 genuineness of the signatures of " E. D. Hesdra " and " Thomas 
 Frotheringham " to the will. 
 
 Facts appear in the opinion. 
 
 The Surrogate decided in favor of their genuineness and ad- 
 mitted the will to probate. 
 
 The Supreme Court at General l^erm affirmed the decree. 
 
 Baenard, p. J., said : The admission of evidence of declarations 
 of John V. Onderdonk to the effect that the testator had made a 
 will, in reply to such admissions that he had not, if erroneous, 
 have no sufficient effect in the case to reverse the judgment for 
 that reason. 
 
 The Court of Appeals affirmed the decree. 
 
 Eugee, Ch. J. \said on this suhjeof] : Some question has been 
 made by the respondent as to the competency of the declaration 
 of a subscribing witness to impeach the execution of a will, but 
 the case of Losee v. Losee (2 Hill, 612), seems to be an author- 
 ity for the admissibility of such evidence. It is there said that 
 " proof of the signature of a deceased subscribing witness is 
 presumptive evidence of the truth of everything appearing 
 upon the face of the instrument relating to its execution, as it is 
 presumed the witness would not have subscribed his name in at- 
 testation of that which did not take place. But this presump- 
 tion may be rebutted, and hence the propriety and even neces- 
 sity of permitting him to be impeached in the usual mode, as if 
 he were living and had testified at the trial to what his signature 
 imports. The reason for admitting such evidence in a case like 
 the present was stated by Bayley, J., in Doe v. Eidgway 
 (4 Barn. & Aid., 52), thus : He (the attesting witness to a bond) 
 must have been called, if he had been alive, and it would then 
 have been competent to prove by cross-examination his declara- 
 tions as to the forgery of the bond. ISTow the party ought not, 
 
XII. Impeachment. (3) Previous Inconsistent Statements. T37 
 
 Matter of Hesdra, 119 N. Y., 615. 
 
 by the death of the witness, to be deprived of obtaining the ad- 
 vantage of such evidence." 
 
 The competency of this evidence is supported by an able note 
 to the case from the learned reporter of the court, who was 
 peculiarly qualified to discuss questions relating to rules of evi- 
 dence. 
 
 Assuming, therefore, for the purpose of this decision that all 
 the evidence produced by the appellant was competent, and that 
 the declarations of a subscribing witness are competent to im- 
 peach its execution, a question which we do not decide, as the 
 decision being in favor of the appellant it becomes unnecessary 
 to do so, we proceed with the examination of the case. The 
 declarations of the subscribing witness Onderdonk, tending to 
 show the forgery of the various signatures thereto, affected the 
 credibility of the witness alone, and had no other effect than to 
 impair the force of his signature as evidence of the perform- 
 ance of the conditions stated in the attesting clause, and still 
 left the question of fact, whether the will was properly exe- 
 cuted, to be determined by the trial court upon all the evidence 
 of the case. Assuming as we must, under the findings of the 
 court, that all of the signatures to the will were genuine, it re- 
 mained for the trial court to determine whether the contradic- 
 tory declarations made by one of the witnesses thereto, subse- 
 quent to its execution, were of such a chai'acter as required the 
 surrogate to refuse probate to the will. Such declarations could 
 have no greater effect than the positive evidence of the witness 
 upon the stand to the same effect, and yet, even under such cir- 
 cumstances, wills have frequently been admitted to probate 
 upon corroborating evidence derived from circumstances. (Mat- 
 ter of Cottrell, supra, and cases there cited.) 
 
 The code expressly provides that the proof of a will may be 
 established when a subscribing witness has forgotten the occur- 
 rence of its execution, or testifies against it, upon proof of the 
 handwriting of the testator and the subscribing witnesses, and 
 of such other circumstances as would be sufficient to prove the 
 will upon the trial of an action. (§ 2620.) This section re- 
 ceived a practical construction in Brown v. Clark (77 IST. Y.), 
 369; Matter of Pepoon (91 id., 255), and Matter of Cottrell 
 
738 Abbott's Select Cases on Examining Witnesses. 
 
 Matter of Hosdra, 119 N. Y., 615. 
 
 (95 id., 329), and was held to mean, in accordance with prior 
 decisions cited, that the proof of circumstances bearing upon 
 the question of the authenticity of the will in connection with a 
 regular attestation clause, duly executed, were, if sufficient to 
 satisfy the court of its genuineness, all that was required to sustain 
 the probate of a will. In the Cottrell Case the probate was sus- 
 tained where both of the subscribing witnesses denied the gen- 
 uineness of their signatures to the attestation clause, as well as 
 the performance of conditions required by the statute. [The 
 learned Chief Judge here reviewed the condition, situation and 
 relation of the parties, the disposition of property made by the 
 will, and the other circumstances bearing upon the probabilities 
 of the case, saying also] : 
 
 By the consent of the parties upon the argument, the court 
 were furnished with the original will and the exhibits of hand- 
 writing used upon the trial of the case. The will had the ap- 
 pearance of a genuine instrument. * * * [After saying 
 that the court were satisfied that there was sufficient corrobora- 
 tive evidence to establish the authenticity of the will, the learned 
 Chief Judge continued thus] : 
 
 It is claimed by the contestant that the surrogate erred in per- 
 mitting the proponents to show confirmatory declarations by 
 John Y. Onderdonk, made prior to the death of Hesdra, to sup- 
 port the authenticity of the will. It is undoubtedly the general 
 rule that when a witness has been proved to have made contra- 
 dictory statements, his evidence cannot be supported by proving 
 that at other times he had made statements in harmony with his 
 evidence. There are, however, well settled exceptions to the ' 
 rule, and we think this case comes within them. (Robb v. 
 Hackley, 23 Wend., 50.) 
 
 The head note to that case reads that " where the witness is 
 charged with giving his testimony under the influence of some 
 motive prompting him to make a false or colored statement, it 
 may be shown that he made similar declarations at a time when 
 the imputed motive did not exist. So in contradiction of evi- 
 dence tending to show that the account of the transaction given 
 by the witness is a fabrication of late date, it may be shown that 
 the same account was given by him before its ultimate operation 
 
XII. ImpeacJiinent. (3) Previous Inconsistent Statements. 739 
 
 Plyer v. Gemian American Ins. Co., 131 N. Y., 689. 
 
 and effect arising from a change of circumstances could liave 
 been foreseen." This case has been frequently cited in the text 
 writers and followed with approval by the courts of this state. 
 (Greenl. on Ev., § 469 ; Whart. on Ev., § 5T0 ; Dudley v. 
 Bolles, 24 Wend., 471 ; Gilbert v. Sage, 57 N. Y., 639 ; liotch- 
 kiss V. Germania Fire Ins. Co., 5 Hun., 90.) 
 
 In Gilbert v. Sage it is said that " as the aim of the cross- 
 examination was to establish that so much of the conversation as 
 was not detailed to defendant's counsel was an after thought and 
 subsequent invention of the witness, it was proper to show in 
 answer that the witness had previously told the same story. In 
 Hotchkiss V. Germania Fire Insurance Co. it was said by Mul- 
 len, J., that " statements made by a witness corroborating his 
 evidence on the trial, made soon after the transaction to which it 
 relates, or when he was not under the influence of any motive 
 to relate the transaction untruthfully, are competent where it is 
 shown that he had given a different relation of the occurrence, or 
 th^at he had testified under the influence of a motive calculated 
 to induce him to testify falsely." 
 
 In Herrick v. Smith (13 Hun, 446), the same doctrine was 
 laid down, and evidence to show corroborative statements made 
 by the witness at a time when tlie alleged motive to testify 
 falsely did not exist were allowed. 
 
 The case of Kobb v. Hackley was also approved by Judge 
 Miller in the case of Eailway Passenger Assurance Company 
 V. Warner (62 ¥. Y., 651). And see also Wray v. Fedderke (11 
 J. & S.,335). 
 
 The contestant's evidence tended to show that Onderdonk de- 
 clared, after Hesdra's death, that he intended to fabricate a will 
 for Hesdra. We think it was competent within the authorities 
 to rebvit this evidence by proof of his declarations during Hes- 
 dra's lifetime, that Hesdra had made a will. 
 
 All the judges concurred Ge.4.y, J., in result. 
 
 Judgment affirmed. 
 
 Note.— In Plyer v. German American Ins. Co.. 121 N. Y., 689, it was 
 held that statements of a witness (not a party) inconsistent with his testi- 
 mony, and proved for the purpose of discrediting- his testimony, have no 
 effect as evidence of the facts mentioned in such statements. 
 
740 Abbott's Select Cases on Examining Witnesses. 
 
 Notes of Recent Cases on Showing Previous Statements, etc. 
 
 After a fire, the representative of an insurance company took the state- 
 ments of men who were present at the fire, and had them reduced to 
 writing and signed ; and by these statements it appeared that there was 
 not a watchman Irept. The company then caused their testimony to be 
 talien de bene essa, whereupon they testified that there was a watchman 
 and he was on the premises ; and this evidence was given on tlie trial. 
 To discredit the witnesses defendant proved their first statements in writ- 
 ing, but gave no other evidence of the neglect to provide a watchman. 
 — Held, that the contradictory statements thus proved did not avail as 
 evidence to go to the jury that there was no watchman. 
 
 NOTES OF RECENT CASES ON SHOWING PREVIOUS 
 
 STATEMENTS OR OTHER FACTS INCONSISTENT 
 
 WITH PRESENT TESTIMONY. 
 
 Arkansas: Little Eock, etc., R. Co. v. Voss, 1893 ; 18 Southwest. Rep., 
 173 (where in an action for personal injuries defendant's witness on cross- 
 examination testified that he did not make a certain statement to a third 
 person on the morning of the accident, it is not error to allow plaintiff to 
 contradict him by showing that he did make such statement, though the 
 statement was not a part of the res gestae). Florida: Wood v. Sta,te> 
 1893; 12 Southern Kep., 539 (it is not error to refuse to permit a party, 
 calling a witness to prove the contradictory statements of another witness, 
 to lead such witness by reciting in the question the statement which he 
 desires to prove). Illinois: Consolidated Ice Machine Co., v. Keifer, 134 
 111., 481 ; s. c. 35 Northeast. Rep., 799 (a witness may be impeached by 
 showing that he testified differently in another proceeding, where a proper 
 foundation has been laid therefor). Indiana: Huber v. State, 126 Ind., 
 185 ; s. c. 36 Northeast. Rep., 904 (where a witness in a prosecution for 
 rape testified as to the cheerful manner with which the prosecutrix and 
 accused went to the place where the offense was committed, the witness 
 cannot be impeached by showing that she made statements derogatory 
 to the character of the accused since such statements if made would not 
 tend to contradict her testimony). Iowa: Hibbard v. Zenor, 83 Iowa, 505 ; 
 s. 0. 49 Northwest. Rep., 63 (where a witness' attention has been called to' 
 his own testimony on a former trial, the transcript of the shorthand notes 
 of such testimony, which have been duly filed, are admissible in evidence 
 to impeach fiim). Massachusetts: Commonwealth v. Harrington, 152 
 Mass., 488 ; s. c. 25 Northeast. Rep., 835 (where in a prosecution for lar- 
 ceny the defendant as a witness in his own behalf endeavored to explain 
 the various suspicious circumstances attending his actions, it was held not 
 error to allow the commonwealth to show that shortly after the commis- 
 sion of the crime, defendant testified in his own behalf in the district court 
 and gave no such explanation as he had given on the trial). Minnesota ■ 
 Bennet -y. Syndicate Ins. Co., 43 Minn., 45; s. c. 44 Northwest Rep 794 
 (where a proper foundation has been laid, a witness' testimony on a 
 
XII. Im-peacliment. (3) Previous Inconsistent Statements. 741 
 
 Note of Recent Cases oa Showing Previous Statements, etc. 
 
 lormer trial is admissible in evidence to impeach him). Missouri: Spolim. 
 V. Mo. Pac. Ej'. Co., 101 Mo., 417 ; s. c. 14 Southwest. Rep., 880 (a witness 
 •contradictory statements may be proved where a sufficient foundation has 
 been laid); s. p. Hamilton v. Rich Hill Coal Min. Co., 108 Mo., 364 ; s. c. 
 18 Southwest. Rep., 977. New York: Morris v. Atlantic Ave. E. E. Co., 
 116 N. Y.. 553; s. c. 22 Northeast. Rep., 1097 (although a witness' testi- 
 mony in a previous proceeding may, where the statements contained 
 therein are inconsistent with his present testimony, and a proper founda- 
 tion has been laid tlierefor, be introduced in evidence for the purpose of 
 affecting his credibility, yet where a witness on cross-examination admits 
 that he made a statement referred to, it is error to permit another witness 
 to contradict him in that respect by showing that he did not make the 
 statement ; the evidence being collateral matter broug-ht out on cross-ex- 
 .amination the party is concluded by the witness' answer). Pennsylvania: 
 Wilson V. Wilson, 137 Pa. St., 369 ; 30 Atlantic Eep., 644 (it is error to ex- 
 clude evidence of a witness' contradictory statement, where a proper 
 foundation has been laid). South Carolina: Sherard v. Eichmond, etc. R. 
 Co., 1893; 14 Southeast. Rep., 953 (a witness' former contradictory state- 
 ments are admissible to impeach him). Texas: Cross v. McKinney, 81 
 Tex. 333 ; s. c. 16 Southwest. Rep., 1038 (a witness' written statement con- 
 tradicting his testimony is admissible in evidence to impeach him where 
 his attention has been first called to it). United States: Chicago, etc. R. 
 Co. V. Artery, 137 TJ. S., 507; s. c. 11 Supm. Ct., 129 (a. witness' contra- 
 dictory statements to impeach him are not required to be proved by the 
 person to whom they were made ; and where they have been reduced to 
 writing and signed by the witness sought to be impeached, the writing 
 may be introduced in evidence where a proper foundation has been laid 
 therefor"). Delaware, etc. R. Co. v. Converse, 139 U. S., 469; s. c. 11 
 Supm. Ct., 569 (a witness may be impeached by proving that he made 
 .statements out of court inconsistent with his testimony). Wisconsin: 
 Waterman v. Chicago, etc., R. Co. 83 Wis., 613 ; s. c. 53 Northwest. Rep., 
 247 (where a witness denied that he gave contradictory testimony on a 
 former trial, the stenographer who took down the witness' testimony on 
 the former trial may be called to show what the witness testified). 
 
 Alabama : Holmes v. State, 88 Ala., 36 ; s. c. 7 Southern Rep., 193 
 (where a witness testified on direct-examination that he never heard any- 
 thing against defendant, he may be asked on cross-examination if he had 
 not heard that the defendant " wore stripes " while working on the streets). 
 California: People v. Ah Lee Doon, 97 Cal., 171 ; s. c. 31 Pacific Rep., 933 
 (it is proper upon cross-examination of a witness called to prove defend- 
 ant's good disposition, to ask him if he had not heard of defendant's prior 
 conviction for murder, and of his having drawn a pistol on different per- 
 sons). People V. Samonset, 97 Cal., 448 ; s. c. 32 Pacific Rep., 520 (a wit- 
 ness' affidavit on a- previous occasion, which tends to contradict his evi- 
 dence in chief may be read on cross-examination). Colorado: Cravans v. 
 Bennett, 17 Colo., 419 ; s. c. 30 Pacific Rep., 61 (a party who testifies in his 
 own behalf is subject to cross-examination as to previous statements con- 
 
7J:2 Abbott's. Select Cases on Examining Witnesses. 
 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 trary to his testimony the same as any other witness, though such declara- 
 tions might have been introduced by the cross-examining pai-ty as a' part 
 of his own case). Indiana: Eandall v. State, 132 Ind., 539 ; s. c. 33 North- 
 east. Rep., 305 (it is not abuse of discretion to permit a witness who has 
 testified as to defendant's good character, to be cross-examined as to 
 whether he had heard of certain previous acts of misconduct by defend- 
 ant). Michigan: People v. Gaboon, 88 Mich., 456 (defendant's wife, as a 
 witness, on cross-examination was asked whether she was present at all 
 when the offense, concerning which she had testified, was committed, 
 whether her husband had not written out her testimony for her and con- 
 cocted the whole story. — Held, that such cross-examination was improper 
 as merely tending to discredit the witness by inuendo). Minnesota: 
 Haye v. Chicago, etc., R. Co., 46 Minn., 269; s. c. 48 Northwest. Rep., 1117 
 (a witness may be cross-examined as to his pi'evious statements conflicting 
 with his present testimony). Oregon: Krewson ii.Purdon, 13 Greg., 563; 
 s. c. 11 Pacific Rep., 281 (it is competent on cross-examination to ask a 
 witness whether at a particular time and place he had not made certain 
 specified statements in order to lay a foundation to impeach him). Penn- 
 sylvania: Commonwealth v. Hosier, 135 Pa. St., 221 ; s. c. 19 Atlantic 
 Rep., 943 (upon a criminal prosecution for adultery, defendant as a wit- 
 ness testiried that he had never committed adultery with the wcSmen 
 named in the indictment.— Held, that it was proper to ask such witness 
 on cross-examination whether he had not pleaded guilty to the commission 
 of such an offense with her in another state). 
 
 I. Foundation for contradictory oral statements. 
 
 Arkansas: Billings v. State. 53 Ark., 303 ; s. c. 12 Southwest. Rep., 374 
 (a witness' contradictory statements may be proved to discredit him, 
 though on cross-examination on being asked whether he had made the 
 statement he did not deny it but stated that he did not remember). Cali- 
 fornia: Young V. Brady, 94 Gal., 138 ; s. c. 39 Pacific Rep., 489 (a witness 
 cannot be impeached by proof of his contradictory statements where no 
 foundation has been laid therefor) ; s. p. Salle v. Mayer, 91 Cal., 165 ; s. c. 37 
 Pacific Rep., 513). Colorado: Rose v. Otis, 18 Colo., 59; s. c. Sl'pacific 
 Rep., 498 (where witness is a party his statements contradicting his testi- 
 mony are competent as substantive evidence as well as for impeaching his 
 testimony, and it is not necessary that he should first be examined in 
 reference to such statements, since in rebuttal ho. will have full opportunity 
 to testify in regard to them). Georgia: • (A defendant in a criminal case 
 who testifies m his own behalf may be impeached by proof of contradictory 
 statements without having been first examined in reference thereto ) 
 Christian v. Columbus, etc. R. Co., 70 Ga., 134 ; s. c. 15 Southeast. Rep", 
 701 (where on cross-examination a witness does not deny that he has made 
 statements contradictory to his testimony, but professes only to remember 
 a part of what he said, his statements may be shown by another witness) 
 Illinois: Aneals v. People, 184 111., 401 ; s. c. 35 Northeast. Rep , 1032 icon 
 
XII. Impeachment. (3) Previous Inconsistent Statements. ^43 
 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 tradictory statements cannot be proved to impeacli a witness, where the 
 witness has not been first examined in respect to them). Reid v. Foster, 
 37 111., App., 76 (it is not reversible error to allow a witness to be im- 
 peached by proof of his contradictory statements without having first laid 
 a foundation therefor, where the witness sought to be impeached was sub- 
 sequently recalled in rebuttal and gave his version of what was said). 
 Quincy Horse Ry, etc., Co. v. Gnuse, 187 111., 264 ; s. c. 27 Northeast. Rep., 
 190 (where witness on cross-examination was asked whether he had made 
 certain contradictory statements shortly after a former trial, it was held 
 error to allow it to be shown that he made such statements shortly before 
 said trial). Indiana: Jackson r. Swope, 1893,. 33 Northeast. Rep., 909 
 (where the foundation for the impeachment of a witness not a party is 
 limited as to statements made at a certam time it is not competent to 
 prove statements made at any other time). Louisiana : State v. Jones, 
 44 La. Ann., 960; s. c. 11 Southern Rep., 596 (where a witness on cross- 
 examination denied having had a conversation with a specified person at 
 a specified time and place.— ifeM, that his denial was traversible by proof 
 that he did have such conversation, but it could not be made the basis for 
 evidence as to witness' particular declarations to which his attention had 
 not been called). Massachusetts : Furlaenson v. Bemis, 153 Mass., 280; 
 s. c. 26 Northeast. Rep., 854 (where on cross-examination a witness was 
 asked whether he made a specified statement it was held a harmless error 
 to permit the mipeaching witness to be asked generally what conversation 
 he had had with the first witness, where the answer was confined to the 
 matter referred to on the cross-examination). Michigan : Koehler v. Buhl, 
 94 Mich.. 496; s. c. 54 Northwest. Rep., 157 (where a witness on cross- 
 examination on being asked if he had made a certain statement to a speci- 
 fied person denied it, but the time and place when and where such state- 
 ment was made was not called to his attention,— /jeZd that the testimony of 
 the person to whom the alleged statement was made that such statement 
 had been made was properly excluded). Minnesota : Granning v. Swen- 
 son, 49 Minn., 381 ; s. c. 53 Northwest. Rep., 30 (a witness cannot be im- 
 peached by proving his contradictory statements unless his attention has 
 been first called to them). Mississippi; Bonnelli v. Bowen, 70 Miss., 
 143; s. c. 11 Southern Rep., 791 (the impeaching witness should not 
 be permitted to state generally all that occurred ; his testimony should 
 be confined to such matters as were called to the attention of the 
 witness sought to be impeached). Missouri: Mahaney v. St. Louis, 
 etc., R. Co.. 108 Mo., 191; s. c. 18 Southwest. Rep., 895 (in laying 
 the foundation for the impeachment of a witness, he was asked as to his 
 statements to Henry W., but whose real name was Harry W.—Held, that 
 the variation in the name was immaterial, as the witness knew who was 
 intended, and it was error to exclude evidence as to the statements made 
 to the person designated). Nebraska: Hanscom v. Burmood, 35 Neb., 504 ; 
 s. c. 53 Northwest. Rep., 371 (contradictory statements cannot be proved 
 to impeach a witness where his attention has not been first called thereto); 
 S. P. Bartlett v. Cheesebrough, 82 Neb., 339 ; s. c. 49 Northwest. Rep., 360 ; 
 
744 Abbott's Select Cases on Examining Witnesses. 
 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 Wood Elver Bank v. Kelley, 39 Neb., 590 ; s. c, 46 Northwest. Eep., 86 (on 
 calling a witness' attention to his contradictory statements, the time 
 when he made them should be designated within a few days or weeks ; an 
 offer to prove declarations of the witness made some time during the 
 summer of a specified year is too indefinite). New York: McCullochi'. 
 Dobbson, 133 N. Y., 114 (a witness may not be impeached by proof of 
 declarations made out of court without his having been first examined in 
 relation thereto). Meyer v. Campbell, 20 N. Y. Supp., 705 ; s. C.-48 State 
 Eep., 662; 1 Misc. E., 283 (the rule requiring the laying of a foundation 
 for the introduction of evidence of contradictory statements to impeach 
 -a witness, has no application where the witness is a party to the action ; 
 his contradictory declarations are admissible as declarations against 
 interest). Texas: Levy v. State, 28 Tex. App., 203 ; s. c. 12 Southwest. 
 Rep., 596 (a witness who testifies on cross-examination that he has no 
 recollection of having made contradictoi-y statements, may be impeached 
 by proof that he did make such statements); s. p. Fuller v. State, 30 Tex. 
 App., 559 ; s. c. 17 Southwest. Eep.. 559 ; Edwards v. Osmou, 1892, 19 id., 
 868; Smith t). State, Tex. App. 1893, 20 id., 554. Wisconsin: Heddles v. 
 Chicago, etc., R. Co., 77 Wis., 228 , s. c. 46 Northwest. Rep., 115 (where a 
 witness testifies on cross-examination that he does not recollect having 
 made contradictory statements, they may be shown by other evidence). 
 Perkins v. State, 1891, 47 Northwest. Rep., 827 (a witness may be recalled 
 for further cross-examination as to contradictory statements made out of 
 court to lay a foundation for his impeachment ; and the party so calling 
 him should not be obliged to make the witness his own and thus be 
 deprived of his right to impeach him). Hunter v. Gibbs, 1891, 48 id., 257 
 {the admissions of a party against interest may be shown without first 
 laying a foundation as for impeachment). 
 
 II. Foundation for contradictory written statements 
 
 Alabama: Cooper r. State, 90 Ala., 641 ; 8 Southern Rep., 821 (a note 
 written by a witness is not admissible to impeach him unless his attention 
 is first called to it). Georgia: Georgia R., etc. Co. v. Smith, 85 Ga., 530 ; 
 s. c. ]1 Southeast. Rep., 859 (a written "brief" of a witness' evidence on 
 a former trial is inadmissible for the purpose of contradicting him where 
 no foundation has been laid therefor ; such writing is not made by witness 
 and is not within the provision of the Ga. Code dispensing with" the pre- 
 liminary examination of the witness sought to be impeached where his 
 statements are in writing>. Illinois: Western, etc., Ins. Co. vs. Brough- 
 ton, 136111., 317; s. c. 36 Northeast. Rep., 591 (a letter which witness 
 acknowledged on cross-examination to be in his handwriting, was held 
 admissible in rebuttal to impeach him). Perishable Freight Trans. Co. v. 
 O'Neill, 41 111. App., 423 (where a witness was not asked whether he had 
 written a letter purporting to have been signed by him, it was held inad- 
 missible in evidence for the purpose of discrediting his testimony). 
 Louisiana: State v. Callegari, 41 L. Ann., 578 ; s. c. 7 Southern Rep. 130 
 
XII. ImpeacJiment. (3) Previous Inconsistent Statements. 745 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 (on cross-examination a witness was asked as to what he had testified on 
 the preliminary examination of the accused, which had been reduced to 
 writing, but the writing was not shown or read to the witness. — Held, that 
 it was not error to exclude it when offered in evidence to impeach the 
 witness). Minnesota : Hammond v. Dike, 42 Minn., 273; s. c. 44 North- 
 west. Rep., 61 (where it is sought to impeach a witness by proof of his 
 written contradictory statements a foundation should be laid therefor by 
 first directing the witness' attention to such statements and giving him 
 an opportunity to explain). New York : Doud v. Donnelly, 12 N. Y. Supp., 
 396 ; s. c. 35 State Rep., 834 (the rule that a witness' attention must be 
 first called to contradictoi'y statements before they can be proved to im- 
 peach him has no application where the statements sought to be proved 
 are written) ; s. p. Root v. Borst, 20 N. Y. Supp., 189 ; Oderkirk v. Fargo, 
 61 Hun, 418 ; s. c. 16 N. Y. Supp., 220 (on the trial of an action on appeal 
 from a justice's court a witness may be asked on cross-examination 
 whether he will swear that he did not testify before the justice contrary 
 to his present testimony in chief, without producing and reading the 
 minutes of the justice's court or examining the witness from them). Texas : 
 Dooley v. Miller, Civ. App., 1893, 21 Southwest. Rep., 157 (where a witness 
 on cross-examination first denied that he wrote a letter contradicting his 
 testimony, but subsequently, on being shown the letter, admitted that he 
 wrote it,— held, that the letter might be received in evidence to impeach 
 him). United States: Chicago, etc., R. Co. v. Artery, 137 U. S., 507 ; s. c. 
 11 Supm. Ct., 139 (a foundation should be laid for written as well as oral 
 contradictory statements of a witness ; and where a writing containing 
 such statements, which purports to be signed by the witness is handed to 
 him so that he may read it if he chooses and he admits the signature, and 
 the party calling him does not request to have the writing read, it is error 
 not to allow the witness to be examined as to its contents for the purpose 
 of laying a foundation for its introduction in evidence to impeach him and 
 to subsequently exclude it when offered for such pui'pose). Toplitz v. 
 Hedden, 146 U. S., S52 (a witness may be examined as to what he testified 
 to in another suit for the purpose of impeaching him without producing 
 the record). 
 
 III. Absent witness. 
 
 Alabama: Pruitt v. State, 1891, 9 Southern Rep., 406 (where the testi- 
 mony of an absent witness on a former trial has been introduced in evi- 
 dence it is not competent to prove that the absent witness made statements 
 contradicting what he testified to on the former trial ; the witness not 
 having been interrogated as to them). Illinois: North Chicago St. Ry. 
 Co. V. Cottingham, 44 111. App., 46 (where to avoid a continuance a party 
 admits what an absent witness would testify to, it is error to admit a 
 letter of the absent witness for the purpose of impeaching his testimony). 
 Indiana: Eppert v. Hall, 133 Ind., 417; s. c. 31 Northeast. Rep., 74 
 (where a deposition is read in evidence the deponent cannot be impeached 
 
T46 Abbott's Select Cases on Exajmining Witnesses. 
 
 Note of Eecent Cases on Showing Previous Statements, etc. 
 
 by introducing a former deposition by the same witness unless a proper 
 foundation has been laid therefor; the death of the witness does not alter 
 the rule). Pennsylvania: Patterson v. Dushane, 137 Pa. St., 33; s. c. 30 
 Atlantic Eep., 538 (where a deposition of a deceased person has been read 
 in evidence it is competent for the purpose of effecting his credibility to 
 show that he had declared after the deposition was taken that he was 
 mistaken in his testimony, though if he was living, he must have been 
 first called and asked whether he made such declaration). United States: 
 Avers v. Watson, 183 U. S., 394; s. c. 10 Supm. Ct, 116 (where the 
 record of the testimony on a former trial of a witness since deceased is 
 introduced in evidence, the former declarations of such witness whether 
 by deposition or otherwise contradicting his testimony are inadmissible to 
 impeach him). 
 
 IV. Contradicting as to want of memory. 
 
 In Elmer v. Fessenden, 154 Mass., 437; s. c. 38 Northeast. Kep., 399, it 
 was held, in an action for slander, where a witness testified that a certain 
 act occurred after the slander, but she could not remember the date when 
 the slanderous words were spoken, that it was competent to contradict the 
 witness by showing that on a former trial the witness testified that the act 
 occurred after the slander. The court say • If the former testimony had 
 been given the day before, under circumstances of great solemnity, no one 
 would doubt that it tended to contradict her [the witness'] denial of 
 recollection a day later. On the other hand, as suggested by the counsel 
 for defendant, the fact that a person recited a date at school hardly tends 
 to contradict his statement in middle life that he does not remember. 
 "Where the line should be drawn must depend upon circumstances and 
 must be left largely to the discretion of the presiding judge. 
 
 V. Sustaining witness impeached ly evidence of previous 
 inconsistent statement. 
 
 Alabama: Phoenix Ins. Co. v. Copeland, 86 Ala., 551; s. c. 6 Southern 
 Rep., 143 (a witness may deny contradictory statements or acts which 
 have been shown to impeach him, though the matter be immaterial or 
 collateral, but the testimony of other witnesses to sustain him as to such 
 collateral matters should not be received). California: Mason v. Vestal, 
 88 Cal., 396; s. o. 36 Pacific Rep., 313 (where a witness has been impeached 
 by showing his bad character for truth and his statements inconsistent 
 with his testimony, the party calling the witness cannot sustain him by 
 proof that he made statements consistent with his testimony at a time so 
 far remote as to preclude the idea of fabrication). Colorado: Conner v. 
 People, 1893, 33 Pacific Rep., 159 (where a witness' testimony has been 
 impeached by showing contradictory statements before trial, it cannot be 
 sustained by showing that at other times the witness made corroborating 
 statements); s. p. Davis v. Graham, 1893, 39 id., 1007. Indiana: Hobbs v. 
 
XII. hnpeachment. (4) Previous Inconsistent Statements. 747 
 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 State, 133 Ind., 404; s. c. 33 Northeast. Rep., 1019 (where a witness has 
 been impeached by testimony that he made statements contrary to his 
 evidence, the party who called him may prove in rebuttal by the witness 
 himself, or by other witnesses, that tlie witness on other occasions had 
 related the facts as he gave them in evidence); s. p. Ramey v. State, 127 
 Ind., 343; s. c. 36 Northeast. Rep., 81.8. Iowa: Hoover «. Gary, 1893, 53 
 Northwest. Rep., 415 (where evidence is introduced to contradict a witness' 
 denial on cross-examination that he made certain statements, the witness 
 may be recalled to give his version of the conversation in which the 
 statements are alleged to have been made). Louisiana: State v. Claire, 
 41 La. Ann., 1067; s. c. 6 Southern Rep., 806 (a witness who has been 
 sought to be impeached by proof of contradictory statements may testify 
 in rebuttal as to the new matter brought out in the attempt to impeach 
 him, where he has not testified on the subject when examined in chief). 
 Maryland: Mallonee v. Duff, 73 Md., 383; s. c. 19 Atlantic Rep., 708 (where 
 a witness has been contradicted, his declarations corroborating his testi- 
 mony are admissible to support his credibility). Massachusetts: Hewitt 
 V. Corey, 150 Mass., 445; s. c. 38 Northeast. Rep., 333 (in an action by a 
 married woman for the conversion of a horse attached as her husband's 
 property, the husband testified that he did not own the horse. On cross- 
 examination he admitted that the horse was included in a chattel mort- 
 gage made by him, but added, without objection, that he did not know the 
 horse had been included at the time he signed the mortgage, and that he 
 subsequently told the mortgagee that the horse was not his and ought not 
 to be in the mortgage. The mortgagee was allowed to testify in cor- 
 roboration that the husband had told him so. —Held that the latter testi- 
 mony was competent). Loomis v. N. Y., New Haven, etc., R. Co., 1893, 
 34 Northeast. Rep., 83 (an affidavit made by a witness as to the same 
 matter concerning which he testified is not admissible to corroborate his 
 testimony). Mississippi: Archer v. Helm, 70 Miss., 874; s. c. 13 Southern 
 Rep., 703 (where defendant, as a witness, makes certain denials and, after 
 plaintiff's evidence contradicting him is closed, defendant is again called, 
 not to explain or distinguish his denial, but to merely repeat it, it is not 
 error to reject his further testimony). Missouri: State v. Whelehon, 103 
 Mo., 17; s. c. 14 Southwest. Rep., 730 (it seems that a party whose witness 
 has been impeached by proof of contradictory statements may corroborate 
 him by giving evidence of other declarations of the witness consistent 
 with his testimony). State v. Reed, 89 Mo., 168; s. c. 1 Southwest. Rep., 
 335 (where a witness has been impeached by proof of his contradictory 
 statements, upon rebuttal he may be recalled to give his version of the 
 conversation in which the alleged contradictory statements were made). 
 North Carolina: State v. Jacobs, 107 N. C, 873; s. c. 13 Southeast. Rep., 
 348 (a witness whose credibility has been assailed by proof of contradictory 
 statements may be corroborated by evidence of prior consistent declara- 
 tions) ; s. p. State v. Morton, 107 N. C, 890; s. c. 13 'Southeast. Rep., 113 ; 
 State V. McKinney, 111 N. C, 683 ; s. c. 16 Southeast. Rep., 335. Texas : 
 Bellu. State, Tex. Ct. App., 1893, 30 Southwest. Rep., 363 (where upon 
 
748 Abbott's Select Cases on Examining Witnesses. 
 
 Note of Recent Cases on Showing Previous Statements, etc. 
 
 the trial of an indictment for robbery the prosecuting witness was 
 impeached by proof that he had stated out of court that he did not know 
 who robbed, held that it was competent for the state to give evidence 
 that the witness made such statement in tlie defendant's presence, and 
 after the defendant had gone the witness had said that he was done up by 
 defendant). Gibbs v. State, Tex. Crim. App., 1892, 20 id., 919 (where a 
 witness has been impeached by proof of his contradictory statements 
 made while testifying on a former trial, the judge who presided at the 
 trial may be called to show that the witness, because of his unfamiliarity 
 with the English language, found it difficult to understand some of the 
 questions put to him). 
 
XII. ImjpeaGliment. (4) Of Character for Truth and Veracity. 749 
 Dollner v. Lintz, 84 N. Y., 669. 
 
 DOLLKER V. LINTZ. 
 
 New York Court of Appeals, 1881. 
 
 [Eeported in 84 N. Y., 669.] 
 
 Proof of bad reputation for truth and veracity need not be confined to the 
 precise point of time ; but testimony to present bad reputation, may, in 
 the discretion of the trial judge, be received to impeach veracity at the 
 time of making: a deposition previously. 
 
 William Lintz was sued as the maker of a promissory note of 
 which the plaintiffs were the holders, and in his answer, he de- 
 nied that the note was ever made by him. 
 
 It appears that the defendant had for several years lent notes 
 to one Eneas, for his accommodation, and that on or about October 
 21, 1876, defendant made and lent to Eneas, for his accommoda- 
 tion, a note for $2,210, which fell due on February 23d, 1877. 
 
 Eneas absconded before the note fell due, and defendant, just 
 before and immediately after such absconding, discovered that 
 Eneas had committed numerous forgeries. 
 
 Upon the trial, in February, 1879, the plaintiffs sought to 
 prove what Eneas, the payee of the note, said to the plaintiffs 
 when he transferred the note to them, and for this purpose his 
 testimony, taken upon commission in September, 1877, was read 
 in evidence. 
 
 The defendants, to impeach Eneas, called several witnesses, 
 among them, one Henderson, who was asked : " Do you know 
 what his reputation is for truth and veracity ? " 
 
 Objected to on the ground that the question is directed to the 
 reputation of Eneas for truth and veracity at the present time, 
 and not to his reputation at the time he testified under the com- 
 mission in September, 1877. 
 
 Objection overruled and exception taken. 
 
 A. " He is a person, who seldom, if ever, kept his engage- 
 ments. In my knowledge, his reputation was bad. It was bad 
 during the year 1877 ; his general reputation was bad ever since 
 I have known him, and that is for the last fifteen years. From 
 what I know of his reputation for truth and veracity, I would not 
 believe him under oath." 
 
 Defendant recovered. 
 
T60 Abbott's Select Cases on Examining "Witnesses. 
 
 Conley v. Meeker, 85 N. Y., 618. 
 
 The Court of Common Pleas at General Term affirmed the 
 judgment, saying : If there were any rule that a witness could 
 be impeached only by showing his character to be bad at the 
 moment he is testifying, still the question would have been per- 
 fectly competent. Eneas became a witness in the cause, not when 
 his deposition was taken, but when it was read upon the trial. If, 
 at the time of the trial, or at any previous time, the witness' char- 
 acter has been pronounced bad by his neighbors, the fact may be 
 proved. Graham v. Chrystal, 2 Abb. Ct. App. Dec, 263 ; 
 Sleeper v. Van Middlesworth, 4 Denio, 431. 
 
 But the character of Eneas in 187T was fully proven by the 
 witnesses, and the plaintiffs have nothing to complain of on that 
 score. 
 
 The Court of Ajppeals affirmed the judgment. 
 
 Andeews, J. [on this point, said] : The exception is not 
 tenable for several reasons : First. General reputation is not 
 usually the growth of a day or month, but results in most cases 
 from a course of life or conduct for a period of time. Proof that 
 the reputation of a witness is now bad, might justify the jury, in 
 the absence of countervailing evidence, in inferring, within reas- 
 onable limits as to time, that it was bad before the day of the trial- 
 The trial judge may control the range of the inquiry, and it 
 would be for the jury to determine, upon all the circumstances, 
 as to the weight of the evidence. Second. But another con- 
 clusive answer to the exception is, that the witness Henderson, in 
 reply to the question, referred to the reputation of Eneas at and 
 before the time of his examination on commission, and said that 
 his reputation was bad ever since he had known him. 
 
 CONLEY V. MEEKEE. 
 
 JSfew York Court of A;ppeals, 1881. 
 
 [Reported in 85 N. Y., 618.] 
 
 For impeaching the character of a witness, specific acts cannot be proven 
 against him by other witnesses. 
 
 An action for six months use of a barge, owmed by plaintiff 
 and one Johnson. 
 
XII. Impeachment. (4) Of Character for Truth and. Veracity. 751 
 Conley v. Meeker, 85 N. Y., 618. 
 
 Upon the trial Johnson was called as a witness for plaintiff and 
 gave material testimony to sustain plaintiff's case, and on cross- 
 examination, he said : " I did not serve three years in the State 
 Prison ; I served one term ; I was first convicted in 1857. 
 
 Q. [By Defendant's Counsel] That was for the larceny of a 
 set of false teeth from a woman ? A. It was grand larceny. 
 
 Q. Was this the indictment under which you were con- 
 victed (offering to read) ? 
 
 Objected to. Objection sustained and exception taken. 
 
 A. I was also convicted in March, 1860. It was the second 
 conviction. That was for passing counterfeit money. I served 
 my term under that conviction. 
 
 Re-examined : 
 
 I was pardoned under the first conviction. I was in State 
 Prison nearly twelve months, before I received a pardon. I was 
 restored to citizenship on both occasions. I am, and have been 
 a member of the Baptist Church for several years. I am in my 
 forty-third year. 
 
 Q. You have been carrying on, for the last seventeen years, 
 a legitimate business ? A. Ever since the 14:th of May, 1864, 
 I have been as .honest a man as ever the sun shone upon. 
 
 Defendant then called Captain Abner Kowley as a witness and 
 he testified that he had known Johnson a good while ; he was 
 then asked : Did you ever see him gamble ? 
 
 Objected to by plaintiff's counsel. 
 
 Defendant's Counsel : We offer to show that he has been 
 connected with gambling-houses, running them as professional 
 gambling-houses, during the time he professes to have been a 
 reformed man. 
 
 Objection sustained and exception taken." 
 
 Plaintiff recovered a verdict. 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 GiLBEET, J., saying : The questions whether the witness John- 
 son had been connected with gambling-houses, and whether he 
 had acted like a Christian man, were wholly irrelevant to the 
 issue. Nor were they rendered admissible by the statement of 
 
152 Abbott's Select Cases on Examining Witnesses. 
 
 Commonwealth v. Ingraham, 7 Gray, 46. 
 
 the witness, which was given without objection, that he was, and 
 for several years had been, a member of the Baptist church, or 
 his other statement, not responsive to the question put, that he 
 had been since May 14, 1864, as honest a man as the sun ever 
 shone upon. No objection was taken to the latter question or 
 the answer thereto. The trial of a case cannot be controlled by 
 the improper conduct of witnesses, or by improper answers 
 volunteered by them. 
 
 The Court of Appeals affirmed the judgment, holding, on this 
 point, that for impeaching the character of a witness, specific 
 acts cannot be proven against him by other witnesses. 
 
 • COMMONWEALTH v. INGKAHAM. 
 
 Massaohv setts Supreme Court, 1856. 
 
 [Reported in 7 Gray, 46.] 
 
 If any inquiries are made of witness as to the truth and veracity of a 
 witness of the other party, even though the answers are favorable 
 rather than unfavorable, that party may call witnesses to prove the 
 good character of his witness for truth and veracity. 
 
 Dewet, J. \after disposing of another point] : The fur- 
 ther question is as to the competency of the evidence introduced 
 by the government to sustain Hiram Whitney's character for 
 truth and veracity. 
 
 It is well settled that such evidence is not competent where 
 there has been no attempt by the opposing party to impeach the 
 character of the witness in this respect. In the absence of such 
 attempted impeachment, the witness is to have the benefit of the 
 ordinary presumption in that respect, and to rest there. But if 
 his general reputation has been impeached by evidence on the 
 part of the opposite party, it is then competent to introduce evi- 
 dence in support of the character of the witness. This is not 
 controverted by the defendants, but it is insisted that there had 
 been no such impeachment of the character of the witness as 
 would justify calling witnesses to sustain the same. 
 
 It is found, in this case, that the defendants had propounded 
 
XII. ImpeaGhment. (4) Of Character for Truth and Veracity. 753 
 
 Commonwealth v. Ingraham, 7 Gray, 46. 
 
 several questions to a witness on the stand, as to the general 
 character of Hiram Whitney for truth and veracity, and that 
 the witness had answered such inquiries. The answers, it is 
 true, were apparently favorable to the reputation of Whitney, 
 and it is upon this ground that the defendants now insist that it 
 was not competent for the government in reply to call witnesses 
 to sustain his character. 
 
 In the present case, it may be that the language of the wit- 
 ness was so unequivocal as to leave but one inference to be 
 drawn from the answer, and that entirely favorable. But it is 
 to be borne in mind that the interrogatory and the answer are 
 matters occurring before the jury, and that in the manner in 
 which the answer is given, though in language apparently favor- 
 able to the witness, yet there might be conveyed the impression 
 of doubt and uncertainty as to his reputation. To give effect 
 to the view now urged by the defendants would necessarily de- 
 volve upon the court in each case to judge of the effect of any 
 particular testimony put into the case by the party attempting 
 an impeachment, and whether it was successful or otherwise, in- 
 asmuch as in the latter case it would be the duty of the court 
 to exclude all evidence offered by the party calling him to sus- 
 tain his good character. Great practical difficulties would result 
 from this course, as will be readily perceived. 
 
 In the view we take of this matter, any inquiries of witnesses 
 by one party, as to the general reputation for truth and veracity 
 of a witness introduced by the other party, are to be considered 
 as an impeachment of the general character of the witness, so 
 far as to open that subject to the introduction of evidence to 
 sustain his good character. The attempt thus made to impeach 
 may prove wholly abortive, as it often does, upon evidence ap- 
 parently more unfavorable. But if the party against whom the 
 witness is called is not content to leave the credit of the witness 
 to be judged of by his appearance on the stand, the testimony he 
 gives, and the contradictory testimony that may be offered, but 
 opens another ground of impeachment, and voluntarily enters 
 upon the same before the jury by inquiries pertinent to that 
 issue, he cannot, because he finds that he has been unsuccessful, 
 limit the inquiry to the witnesses to whom he has propounded 
 
. 754 Abbott's Select Cases on Examining "Witnesses. 
 
 Note of Recent Cases to Prove Character. 
 
 interrogatories. It is open to the other party in such case to 
 sustain the reputation of his witness in the usual form of calling 
 witnesses to testify to his good character as a man of truth and 
 veracity. 
 
 Exceptions overruled. 
 
 NOTE OF KEOENT CASES TO PRO YE CHARACTEE. 
 
 Arkansas: Hollingsworth v. State, 53 Ark., 387; s. c. 14 Southwest. 
 Rep., 41 (proof of witness' general bad reputation cannot be rebutted by- 
 showing that such reputation was not deserved). Florida: Saussy v. 
 South Florida R. Co., 23 Fla., 327 (the mere contradiction of a witness 
 furnishes no ground for admitting evidence of oharaccer to sustain him). 
 Georgia; Travelers' Ins. Co. v. Sheppard, 85 Ga., 751 ; s. c. 13 Southeast. 
 Rep., 18 (evidence of a witness' good character is inadmissible where her 
 character has not been impeached). Surles v. State. 89 Ga., 167 ; s. c. 15 
 Southeast. Rep., 38 (where a witness as to another witness' general bad 
 character stated that he based his opinion on a certain transaction of the 
 impeached witness, the latter cannot be sustained by evidence explaining 
 the transaction). Illinois: Chicago, etc. R. Co. v. Fisher, 81 El. App., 36 
 (where a witness has been merely contradicted, evidence of his general 
 character is inadmissible to sustain him). Magee v. People, 139 111., 138 ; 
 28 Northeast Rep., 1077 (defendant in a criminal case testified as a witness 
 and the state gave evidence of his bad reputation ; defendant then called 
 witnesses, who testified that they knew him and never heard anything 
 against him.— Held, that defendant's evidence did not tend to rebut the 
 state's evidence, and that the court did not err in refusing to instruct the 
 jury to take it into consideration). Indiana: Diflfenderfer v. Scott, 5 Ind. 
 App., 243; s. c. 33 Northeast. Rep., 87 (a witness who is contradicted by 
 other evidence upon a direct issue in the case cannot be supported by 
 proof of good character, even though the contradiction imputes moral 
 turpitude or the commission of a crime. Kentucky: Carter v. Common- 
 wealth, 1890, 13 Southwest. Rep., 921 (where on cross-examination the 
 witness is shown to have been a prostitute, the party calling her may 
 show her reformation). Louisiana: State v. Fruge, 44 La. Ann., 165 ; s. c. 
 10 Southern Rep., 621 (the state may offer evidence of the good reputation 
 for truthfulness of its own witness where his veracity is attacked by 
 defendant on cross-examination). Texas: Tipton v. State, 30 Tex. App., 
 530; s. c, 17 Southwest. Rep., 1097 (where a witness has been impeached 
 by proof of his contradictory statements it is permissible to support him 
 by proof of general good character for veracity). Vermont: Stevenson v. 
 Gunning, 64 Vt., 601 ; s. c. 25 Atlantic Rep., 697 (where a witness' 
 testimony has only been contradicted by other testimony, evidence of the 
 witness' good reputation for truth is inadmissible); 
 
TABLE OF CASES REPORTED IN THIS COLLECTION. 
 
 [See Analytical Arrangement of the Cases at the beginning of the volume.] 
 
 Page 
 
 Acerro t. Petroni 393 
 
 Aetna Life Ins. Co., Bdington v 109 
 
 Aldrich, Paine v ." 386 
 
 Allen, Arnold v 646 
 
 Allen, Pope v I94 
 
 American Mut. Life Ir.F.C'o., Eawls v 273 
 
 Anderson, Dillon t 347 
 
 Anderson, Meakim v 693 
 
 Armes, District of Columbia V 36 
 
 Arnold, Cheeney v 235 
 
 Arnold v. Allen 646 
 
 Amoux, Livingston v 462 
 
 Artery, Chicago, Milwaukee and St. PaulB. 
 
 Co. V 637 
 
 Baker, People v 349 
 
 JBank of the Commonwealth v. Mudgett 521 
 
 Barker v. N. T. Central B. K. Co 400 
 
 Beal V. Finch 20 
 
 Becker v. Koch 695 
 
 Betjmann v. Brooks ,338 
 
 Bigelow V. Hall 410 
 
 Blake v. People 267 
 
 Bowe, Carter V 398 
 
 Brand, Banx v 413 
 
 Brennan v Hall 460 
 
 Bronner v. Loomis 470 
 
 Brooks, Betjmann V 388 
 
 Brooks, Jackson v 477 
 
 Brooke, People v 711 
 
 Brown, Rockwell v 726 
 
 Burden v. Pratt 592 
 
 Burton v. Drigge 548 
 
 Callaghan, Peckv 481 
 
 Carll, Ocean National Bk. v 444 
 
 Carpenter v. Soule 156 
 
 Carter v. Bowe 398 
 
 Casey v. N. Y. Central, etc., E. Co 276 
 
 Cheeney v. Arnold 235 
 
 Chesebrough v. Conover 689 
 
 Chicago, Milwaukee and St. Paul K. Co. v. 
 
 Artery 637 
 
 Churchman v. Lewis 453 
 
 Clum, Eisenlord v 164 
 
 Coley, Lansing v 242 
 
 Collins V. N. Y. Central, etc., E. Co 256 
 
 Commonwealth v. Ingraham 753 
 
 Commonwealth v. Lynes 30 
 
 Conlcy V. Meeker 750 
 
 Connecticut Life Ins. Co. v. Union Trust Co. 99 
 
 Connelly v. O'Connor 160 
 
 Conover, Chesebrough v 689 
 
 Cornell, Davidson v 570 
 
 Craig, Bobinson Consolidated Mining Co. v. 474 
 
 Curley, Nay v 218 
 
 Davidson v. Cornell 570 
 
 Davis V. Gallagher 141 
 
 Dennin, Eenihan v 118 
 
 De Wolf, State V 44 
 
 Dillon V. Anderson 347 
 
 DiUon, O'Hagan v 391 
 
 District of Columbia v. Armes 36 
 
 DoUner V. Lintz 749 
 
 Dresler v. Hard 506 
 
 Driggs, Burton v 548 
 
 Druse, People y 389 
 
 Dohring, People of the State of New York v. 56 
 
 Doyle V. Bye and Ear Infirmary 403 
 
 East Eiver Nat. Bank, Eomertze v 729 
 
 Eastwood, People v 289 
 
 Edington v. Aetna Life Ins. Co 109 
 
 Edington v. Mutual Life Ins. Co 103 
 
 Eisenlord y. Clum 164 
 
 EUithorp, Sanford V 162 
 
 Ely V. Padden 335 
 
 Engell, Seeley v 10 
 
 Eye and Ear Infirmary, Doyle v 
 
 Bysaman, Matter of 
 
 Ferguson v. Hubbell 
 
 Ferris v. Hard 
 
 Fiehtner, Gregory v ". 
 
 Pinch, Beal V '.'..' 
 
 Fisher v. Monroe 
 
 Fitchburg B. E. Co., Gertz v 
 
 French v. Hall 
 
 Friess v. N. Y. Central, etc., E. B. Co 
 
 Gallagher, Davis v 
 
 Gertz V. Fitchburg B. E. Co 
 
 Ghio, Eivara v 
 
 Gonrlay v. Hamilton 
 
 Grattan v. Metropolitan Life Ins. Co 
 
 Great Western Turnpike Co. v. Loomis 
 
 Gregg, Sitterly v 
 
 Gregory v. Fiehtner 
 
 Guy V. Mead 
 
 Hall, Bigelow v 
 
 Hall, Brennan v 
 
 Hall, French y 
 
 Hall V. Van Vranken , 
 
 Hallahan v. N.Y., Lake Erie & W. E.E. Co. 
 
 Halsey y. Sinsebaugh 
 
 Hamilton, Gourlaj v 
 
 Hammond V. Varian 
 
 Hard, Dresler v 
 
 Hard, Ferris v 
 
 Hayes, People v 
 
 Hays, Spiegel v 
 
 - - - ;fe. 
 
 Page 
 
 Heft V. Ogle 
 Hesdra, Matter of, 
 
 HUl, Loveridge v 
 
 Hobart v. Hobart 
 
 Holcomb V. Holcomb 
 
 Holcomb V. Holcomb 
 
 Houstine v. O'Donnell 
 
 Howard v. McDonough 
 
 Hubbell, Ferguson v! 
 
 Hurlburt v. Hurlburt 
 
 Hynes v. McDermott. 
 
 Ingraham, Commonwealth v 
 
 Jackson v. Brooks 
 
 Johnson, Morgan v , 
 
 Kearney v. Mayor, etc., of N. Y 
 
 Keller, Turner v 
 
 Kelly, Starin v 
 
 King V. Worthington 
 
 Kocn, Becker v 
 
 Kosmak v. Mayor, etc., of N. Y 
 
 Kowing V. Manly 
 
 Lake, Peck v 
 
 Langiey v. Wadsworth 
 
 Lansing v. Coley 
 
 Latham, Winchell v 
 
 Lathrop, Winner v 
 
 Lawyer v. Loomis. . .• 
 
 Lewis, Churchman v 
 
 Lintz, DoUner v 
 
 Livingston v. Arnoux 
 
 Logan V. United States 
 
 Loomis, Bronner v 
 
 Loomis, Great Western Turnpike Co. v 
 
 Loomis, Lawyer v 
 
 Loomis, Miles v 
 
 Loveridge v. Hill 
 
 Lynes, Commonwealth v 
 
 McCarragher v. Eogers 
 
 McCoUom V. Seward 
 
 McDermott, Hynes v 
 
 McDonald, Eichmondville Union Semi- 
 nary v 
 
 McDonough, Howard v 
 
 McElvaine, People v 
 
 403 
 
 20 
 724 
 705 
 78 
 675 
 141 
 705 
 42 
 143 
 115 
 662 
 717 
 361 
 436 
 410 
 460 
 
 78 
 484 
 260 
 428 
 143 
 473 
 506 
 683 
 
 67 
 671 
 178 
 735 
 
 15 
 157 
 202 
 279 
 397 
 415 
 368 
 
 84 
 513 
 752 
 477 
 153 
 551 
 333 
 351 
 
 18 
 695 
 642 
 510 
 404 
 685 
 242 
 629 
 589 
 344 
 463 
 749 
 462 
 
 47 
 470 
 
 495 
 16 
 30 
 
 513 
 
 415 
 381 
 
r56 
 
 TABLE OF CASES EEPOKTBD IN THIS COLLECTION. 
 
 Page 
 
 McGoldrick v. Traphagen 540 
 
 M'Kee v. Nelson 365 
 
 Madden, National Ulster County Bank v. . . 4S3 
 
 Manly, Kowing y 510 
 
 Mathei-, People v 237 
 
 Mathews, Morehouse y 249 
 
 Matter of Bysaman 208 
 
 Matter of Hesdra , 785 
 
 Matter of Will of Snelling 719 
 
 Matter of Will of WUson 184 
 
 Maxwell v. Wilkinson 439 
 
 Mayer, Potts v 384 
 
 Mayor, etc., of N. T., Kearney v 551 
 
 Mayor, etc., of N. T., Kosmak v 642 
 
 Mayor, etc., of N. Y. v. Second Ave. R. E. 
 
 Co 448 
 
 Meadj Gny v 435 
 
 Meakim v. Anderson 693 
 
 Meeker, Conley v 750 
 
 Metropolitan Life Ins. Co., Grattan v 115 
 
 Miles V. Loomis 495 
 
 Miller v. Montgomery 145 
 
 Monroe, Fisher v 734 
 
 Montana E'y Co. v. Warren 308 
 
 Montgomery, Miller v 145 
 
 Moody V. Eowell 233 
 
 Morehouse v. Mathews 249 
 
 Morgan v. Johnson 153 
 
 Mudgett, Bank of the Commonwealth v — 531 
 
 Murphy, People v 125 
 
 Murphy, People v 534 
 
 Mutual Life Ins. Co., Bdington v 103 
 
 Mutual Life Ins. Co. v. Suiter 489 
 
 National Ulster County Bank v. Madden. . . 423 
 
 Nay V. Curley 818 
 
 Neilv. Thorn 600 
 
 Nelson, M'Kee t 265 
 
 N. T. Central E. E. Co., Barker t 400 
 
 N. Y. Central, etc., E. Co., Casey t 376 
 
 N. Y. Central, etc., E. Co., Collins v 256 
 
 N. Y. Central, etc., E. E. Co., Priess v 675 
 
 N. Y. Central, etc., E. E. Co., Waldele v. . . 557 
 
 N. Y. Elevated E. E. Co., Eoberts v 311 
 
 N. Y., Lake Erie & W. E. E. Co., Hallahan v. 260 
 N. Y., Lake Erie, etc., E. E. Co., Strohm v. 377 
 
 Nicolay v. Unger 262 
 
 O'Brien v. Weiler 188 
 
 Ocean National Bank v. Carll 444 
 
 O'Connor, Connelly v 160 
 
 O'Donnell, Houstine v 397 
 
 Ogle, Heft V 178 
 
 O'Hagan v. Dillon 891 
 
 Orient Mut. Ins. Co., Slocovich v 359 
 
 Orth, Pinney v 287 
 
 Oyer and Terminer, People' ex rel. Phelps v. 605 
 
 Padden, Ely v 335 
 
 Paine v. Aldrich 285 
 
 Peck V. Callaghan 481 
 
 Peck V. Lake 404 
 
 Peck V. Valentine 438 
 
 Pennock v. White 612 
 
 People, Pierson v 122 
 
 People V. Baker 349 
 
 People, Blake v 267 
 
 People V. Brooks 711 
 
 People of the State of New York v. i)ohring. 56 
 
 People V. Druse 389 
 
 People V. Eastwood 289 
 
 People V. Hayes 67 
 
 People V. McElvaine 381 
 
 People V. Mather 237 
 
 People V. Murphy 125 
 
 People V. Murphy 524 
 
 People ex rel. Phelps v. Oyer and Terminer. 605 
 
 People V. Smith 574 
 
 People V. Severance 502 
 
 People V. Severance 594 
 
 People V. Tice 24 
 
 People V. Webster 651 
 
 People T. Williams 293 
 
 People of the State of New Yorkv.Wood.. 68 
 
 Peters v. Peters I93 
 
 Petroni, Acen-o v " 393 
 
 Page 
 
 Pierson v. People 128 
 
 Pinney v. Orth 327 
 
 Platner v. Platner 617 
 
 Pope V. Allen 194 
 
 Potts V. Mayer 224 
 
 Pratt, Burden v 592 
 
 Press Publishing Company, Warner v 65 
 
 Eaux V. Brand 413 
 
 Eawls V. American Mut. Life Ins. Co 278 
 
 Eenihan v. Dennin 118 
 
 Eentz, Smith V 546 
 
 Elchmondville Union Sem. v. McDonald . . 333 
 
 Eivara v. Ghio 43 
 
 Eoberts v. N. Y. Elevated E. E. Co 311 
 
 Eobinson Consolidated Mining Co. v. Craig. 474 
 
 Eock Island, Euch v 395 
 
 Eockwell V. Brown 726 
 
 Eogers, McCarragher v 299 
 
 Eomertze v. East Eiver Nat. Bank 729 
 
 Eoot v. Wright 80 
 
 Eowell, Moody v 288 
 
 Eoy V. Targee 241 
 
 Euch V. Kock Island 395 
 
 Eugg V. Eugg 534 
 
 Salomon, Yerkes v 846 
 
 Sanford v. Ellithorp 162 
 
 Schwartz y. Wood 296 
 
 Second Avenue E. E. Co., Mayor, etc., of 
 
 N. Y. V 448 
 
 Seeley v. Engell 10 
 
 Severance, People v 502 
 
 Severance, People v 594 
 
 Seward, McCoUom v 329 
 
 Sinsebaugh, Halsey v ' 428 
 
 Sitterly V. Gregg 717 
 
 Slocovich V. Orient Mut. Ins. Co 359 
 
 Smith, People v 574 
 
 Smith V. Eentz 546 
 
 Snelling, Matter of Will of 719 
 
 Spiegel V. Hays 671 
 
 Soule, Carpenter v 156 
 
 Starin v. Kelly 351 
 
 State T. De Wolf 44 
 
 Storm V. United States 633 
 
 Straus, Wallace v 150 
 
 Strohm v. N. Y., Lake Erie, etc., E. E. Co. . 877 
 
 Sudlow V. Warshing 505 
 
 Suiter, Mutual Life Ins. Co. v 489 
 
 Sweet V. Tiittle 336 
 
 Targee, Eoyv 241 
 
 Tice, People V 34 
 
 Thorn, Neil v 600 
 
 Traphagen, McGoldrick v 540 
 
 Turner v. Keller 332 
 
 Tuttle, Sweet v 386 
 
 Unger, Nicolay v 252 
 
 Union Trust Co., Connecticut Life Ins. Co. v. 99 
 
 United States, Logan v 47 
 
 United States, Storm v 682 
 
 Valentine, Peck v 483 
 
 Van Vranken, Hall v 484 
 
 Varian, Hammond v 472 
 
 Wadsworth, Langley v 585 
 
 Waldele v. N. Y. Central, etc., E. E. Co. . . . 557 
 
 Wallace v. Straus 150 
 
 Warner v. Press Publishing Company 65 
 
 Warren, Montana Eailway Co. v 808 
 
 Warshing, Sudlow v 505 
 
 Webster, People v 651 
 
 Weiler, O'Brien v 182 
 
 White, Pennock v 612 
 
 Wilkinson, Maxwell v 439 
 
 Will of Snelling, Matter of 719 
 
 Will of Wilson, Matter of 184 
 
 Williams, People v 293 
 
 Wilson, Matter of Will of 184 
 
 Winchell v. Latham 629 
 
 Winner v. Lathrop ' . . . 589 
 
 Wood. People of the State of New York v . . 63 
 
 Wood, Schwartz v 296 
 
 Worthington, King v 18 
 
 Wright, Boot v [,',,', go 
 
 Yerkes v. Salomon ' 346 
 
IDSTDEX. 
 
 [The references are to pages. In many cases the page mentioned is but the beginning of a 
 senes of cases on the subject.] 
 
 Page 
 ABILITY, of person to help himself a 
 
 pi-oper question 273 
 
 requiring assistance may be testified to. .839n 
 to pay one's debts, when a proper ques- 
 tion .^40, 341 
 
 ACCIDENT, what is the res gesta of . . . .557, 570 
 ACCOMPLICE, rule as to necessity of cor- 
 roboration 293 
 
 ACCOUNTS, getting inspection by notice 
 to produce does not make them com- 
 petent 546 
 
 explaining as to whom credit was given 
 
 to 338, 646 
 
 proper form of interrogating witness 
 
 upon 341n 
 
 state of, proved by witness 549 
 
 summaries received on testimony of ex- 
 pert 548 
 
 testified to by aid of memorandum 404-43^ 
 
 as mem. made in course of duty 448-459 
 
 witness testifying to correctness 697 
 
 mle as to shop books used in party's own 
 
 favor 638-548 
 
 ACCUSED IN CKIMINAL CASE, com- 
 petent 23, 34 
 
 cross-examined on motives 267 
 
 when protected by privilege of patient.132, 125 
 ACKNOWLEDGMENT, after suit brought. 533 
 ADJOURNMENT, to obtain cross-examma- 
 
 tion 694 
 
 ADMINISTEATION, contest as to, is a 
 "proceeding" within N. Y. Code Civ. 
 
 Pro., § 839 140 
 
 ADMINISTRATORS, protected against in- 
 terested testimony 137-233 
 
 ADMISSIONS, general rules as to mode of 
 
 proof 306 
 
 of agent receivable before proof of agency. 617 
 
 unsatisfactory evidence 165 
 
 AGE, as affecting competency 30 
 
 opinion of witness as to 255 
 
 AGENCY, direct testimony to, as a fact or 
 
 conclusion 342 
 
 course of dealing, evidence of 617 
 
 for whom, a proper question 341 
 
 AGREEMENT, direct testimony to, as a 
 
 fact or conclusion 342 
 
 AIDING WITNESS by questions 389-394 
 
 by memoranda 395-422 
 
 ALTERNATIVE QUESTION, may yet be 
 
 "leading" 238 
 
 ANCIENT WRITING 477 
 
 ANO-NYMOUS LETTER, how brought 
 
 home 524 
 
 ANSWERS of witnesB, not responsive, and 
 
 objection thereto 242 
 
 APPEAL, sufficiency of foundation for sec- 
 ondary evidence not reviewed 551 
 
 ASSIGNEE, possession as assignee a con- 
 clusion 304 
 
 of patient's cause of action protected by 
 
 privilege 103 
 
 of decedent, etc., protected against inter- 
 ested testimony 138-232 
 
 ASSIGNEE IN BANKRUPTCY, rule of 
 
 competencyof interested witness against. 19n 
 ASSIGNMENT, as removing incompetency 
 
 by interest, 178, but compare 136 
 
 of cause of action to enable original claim- 
 ant to be a witness 301n 
 
 by decedent, next of kin when incompe- 
 tent to testify in order to set aside 203 
 
 ASSUMING QUESTION, not allowable.... 238 
 ATTACHMENT, sincere, a fact to which 
 
 observer may testify 265 
 
 ATTESTING WITNESS, common law rule. 533 
 testimony against execution not conclu- 
 sive 534 
 
 testifying to mental condition 37'9, etc. 
 
 inconsistent declarations of, 1 35 
 
 ATTORNEY, acting on the trial not there- 
 fore incompetent 78 
 
 register as evidence 459, 464 
 
 competency of attorney and client 78, etc. 
 
 privilege of communications between . .80, etc. 
 
 proper form of objection 96 
 
 waiver 97 
 
 contract relation necessary to raise privi- 
 lege 118 
 
 objection to testimony as privileged 195n 
 
 AUTHORITY, course of dealing evidence 
 
 of 617 
 
 " Did you authorize," etc., a proper ques- 
 tion 469 
 
 BALANCE SHEET, received on testimony 
 
 of expert 548 
 
 BANK ENTRIES, evidence after writer's 
 
 death, etc 444, etc. 
 
 BELIEF, religious, asked on cross-examina- 
 tion 9 
 
 inference, understanding, impression, 
 opinion, conjecture, supposition, etc., 
 distinguished 245, etc. 
 
 of party relying on representations 335 
 
 BELL, could have been heard, if rung a76 
 
 BEST AND SECONDARY, general rule 
 stated 551 
 
 rule applies, though law did not require a 
 writing 551 
 
 applies for instance to an order to publish. 551 
 
 oral allowed on the voir dire 10 
 
 or on collateral question lOn 
 
 of contents of communications with deaf 
 mute 44 
 
 of divorce, to show either spouse compe- 
 tent 82 
 
 memorandum of forgotten fact not prov- 
 able by secondary evidence 432 
 
 writer's own testimony not necessary as 
 best evidence of handwriting 469 
 
 rule illustrated in case of photographic 
 copies of signatures 513, 519n 
 
 direct testimony to partnership and 
 names 612 
 
 foundation for letting in secondary, a 
 question for the judge 551 
 
 objection to oral must "be specific 637 
 
758 
 
 INDEX. 
 
 Page 
 to show loss person last known to be in 
 possession must be produced or ac- 
 counted for 551 
 
 all sources of information must be ex- 
 
 " BB8T OP iiT KNOWLEDGE," a proper 
 
 answer 367 
 
 BIAS, evidence of, to impeach witness 711 
 
 BLIND WITNESS, refreshing memory . . .235-7 
 BOOK, inspection of, does not give right to 
 
 have it m evidence 547 
 
 of account evidence in his own favor as to 
 
 services and goods sold 538 
 
 see, also, ACCOUNTS. 
 BtTEDEN, upon objector to show incom- 
 petency 109 
 
 to show qualification of expert if objec- 
 tion is promptly made 362 
 
 if not until after direct 367n 
 
 BUSINESS ENTRIES, as evidence after 
 
 writer's death, etc 444, etc. 
 
 see, also, ACCOUNTS. 
 BUST, likeness of 296 
 
 "CALLS" AND "PUTS," how proved 
 
 illegal 346 
 
 CAPACITY, in which one took possession 
 
 a conclusion 304 
 
 CAEE, direct testimony to 299 
 
 lack of, a conclusion 299 
 
 proper time to set a fire 368 
 
 CAKBLBSSNESS, a conclusion 299 
 
 CASHIBE, may testify to result of ex- 
 amination of, books of account 548 
 
 CAUSE AND EFFECT, direct testimony 
 
 to, see 301 
 
 CERTIFICATE of sheriff's sale, as evidence 464 
 CHAEACTBE of witness for truth and 
 
 veracity 749 
 
 CHATTELS, value how proved 327 
 
 CHECKS, when provable by stub 423 
 
 CHILD, using as witness against parent 
 
 rebuked 35n 
 
 see, also, INFANT. 
 CLERGYMAN, when not to disclose con- 
 fidential communications 136 
 
 CLERK, mere book-keeper is not within 
 
 meaning of rule as to shop books 540 
 
 CLIENT, communications with attorney, 
 see ATTORNEY AND CLIENT. 
 
 COLLATERAL FACT not in issue lOn 
 
 COMMISSIONS, expectant right to, not 
 
 necessarily an " interest " 184 
 
 COMMITTEE of lunatic, etc., protected 
 
 against interested testimony 138-232 
 
 COMMUNICATION, bow far entire may be 
 
 called out on cross or redirect 218 
 
 direct testimony as to fact does not let in 
 
 cross as to nature 629 
 
 what are "communications" or transac- 
 tions 202-217 
 
 COMPARISON, when may witness testify 
 to resulting impression or judgment, 256 
 
 and see 255 
 
 of amounts of surface water 380n 
 
 of amount of sparks 256 
 
 of hands, to prove handwriting 499 
 
 COMPETENCY, ■voir dire 10, etc. 
 
 what law governs it 17 
 
 entire or partial 20 
 
 parties not incompetent 24, etc. 
 
 mterest as a ground of incompetency 29 
 
 as affected by infancy 30 
 
 as affected by mental incapacity .36, etc. 
 
 deaf mute 44 
 
 felon [[ 47 
 
 judge or juror 66 
 
 husband and wife 62, etc. 
 
 attorney and client 78, etc! 
 
 physician and patient 99, etc! 
 
 Page 
 
 pastor and parishioner 136 
 
 of parties and interested witnesses as 
 against estates of decedents, or lunatics, 
 
 etc 137, etc. 
 
 in what proceedings 140 
 
 as witness /or whom 141, 156, 192 
 
 Who disqualified 141-191 
 
 party not 141 
 
 party in default 149n 
 
 fraudulent purchaser taking title in 
 
 another's name, not 143 
 
 surety is 145 
 
 principal debtor.- 150 
 
 executor 184 
 
 trustee 153 
 
 distributee 182 
 
 legatee 156, 178 
 
 co-heir 157 
 
 mother 160, 164 
 
 widow 162, 164 
 
 as witness against whom. Near or re- 
 mote decedent 194 
 
 release of interest or liabUity 200, etc. 
 
 concerning what transactions or commu- 
 nications 202-217 
 
 opening the door, by examining the execu- 
 tor, etc 218-232 
 
 competency of expert 359 
 
 must be shown before allowing to state 
 
 opinion 362 
 
 CONCLUSIONS, see FACTS. 
 CONDITION, physical, direct testimony to 
 
 estimate of 273 
 
 mental, direct testimony to estimate of .279,etc. 
 CONDUCT, direct testimony to estimate of 
 
 its significance 265 
 
 care or carelessness of 299 
 
 significant of feeling 267 
 
 CONFIDENTIAL COMMUNICATIONS, 
 between attorney and client — see AT- 
 TORNEY AND CLIENT 78-99 
 
 between husband and wife— see HUS- 
 BAND and WIFE 63-77 
 
 see also COMPETENCY (13) and (14). 
 CONJECTURE, inference, opinion, belief, 
 knowledge, etc., distinguished ....- .245, etc. 
 
 CONSULTING PHYSICIAN 118 
 
 CONTINUANCE, instance of presumption 
 
 of as to insanity 192 
 
 of partnership 612 
 
 CONTEADICTION, rendered competent by 
 adversary's evidence, notwithstanding 
 
 Code Civ. Pro. §829 21b-232 
 
 of testimony drawn out on cross exami- 
 nation 717 
 
 CONTEACT, direct testimony to, as a fact 
 
 or conclusion 342 
 
 intent when competent 346-347 
 
 CONVEYANCEE, professional communi- 
 cations with, privileged . 80 
 
 CONVEESATION, how far entire conver- 
 sation may be called out on cross or 
 
 redirect aig 
 
 cross-examination as to fact of, does not 
 
 open door for redirect as to nature 629 
 
 CONVEESION, requisites of evidence of, 
 
 illustrated 351 
 
 use of memoranda to aid witness in de- 
 tails 415 
 
 CONVICTION, as a disqualification! ! ! ! ! !47-S4 
 in another state may not disqualify . . 47 
 
 CORPORATION, belief or cSnfidence of, 
 
 in reliance on subscription 333 
 
 CORROBORATION, not generally allowed 
 
 till after impeachment 891 
 
 of testimony by business entry 400 
 
 of witness who has made inconsistent 
 
 statements 735 
 
 COULD you have heard ? . . ! ! ! ! ! ! . ! . ! ! \ \ \ ' 276 
 he have heard _\' '277n 
 
INDEX. 
 
 759 
 
 Page 
 COUNSEL, acting on the trial, not therefore 
 
 incompetent 78 
 
 remiiied to say what he proposes to prove 20 
 right to see memorandum used by wit- 
 ness 404, 410n, 433 
 
 COUBSE OF DEALING, competent to 
 
 shciw agency 617 
 
 CREDIBILITY, as affected by mental con- 
 dition 41, 42 
 
 CREDIT, asking upon whose the act was 
 
 done 382, etc. 
 
 shown by oral evidence explaining ac- 
 count 646 
 
 CRIME, evidence of, to impeach witness. . . 705 
 specific acts not provable to affect reputa- 
 tion 750 
 
 CROSS-EXAMINATION, relevant to issue 
 
 is matter of right ; 585 
 
 of accused who has testified in his own 
 
 behalf 24 
 
 as to matters collateral and immaterial, 
 
 notallowed 585 
 
 on thing exhibited to jury 589 
 
 non-appearance of witness 593-604 
 
 to ascertain as to competency of witness. . 15 
 as to qualification of witness may inter- 
 rapt direct 307n 
 
 one seeking to bring out the residue of con- 
 versation has burden of showing imme- 
 diate connection or simultaneousness. . 307 
 
 as to religious belief 9 
 
 as to credibility of witness is subject to 
 
 judge's discretion 585 
 
 to test witness by similar matters not in 
 
 issue : 521 
 
 rule against cross-examining own witness 
 does not forbid inquiries to aid his 
 
 memory 391 
 
 may call for motives 267 
 
 to test the witness does not make him the 
 
 cross-examiner's witness 387 
 
 on memorandum consulted by witness.. . 
 
 404, 422n, 433 
 
 as to handwriting 521 
 
 witness testifying to his own handwriting 
 
 may be asked to write in court 470 
 
 of expert by hypothetical questions on 
 
 points not in issue 387 
 
 to discover names of desired witnesses. 632,etc. 
 
 limits of strict cross 602 640 
 
 door opened by direct 612-640 
 
 leading questions allowable beyond the 
 
 limits of strict cross 233 
 
 of adverse witness 698 
 
 assuming question not allowable 238 
 
 at large at same time as strict cross-ex- 
 amination 34 
 
 contradicting what is drawn out on 717 
 
 use of previous statements to contra- 
 dict 637, etc. 
 
 rule that answer on an immaterial point 
 
 is conclusive, applied to handwriting . . 524 
 cross-examinerwhen not bound by answer. 717 
 CRT, significance of, whether matter of ob- 
 servation or opinion 269n, 270 
 
 DAMAGES, amount of, not proper question 
 
 to witness 249, 313, 380 
 
 probable consequences not always compe- 
 tent 377 
 
 what present value would have been if 
 elevated road had not been built, not 
 
 competent 311 
 
 DANGER, direct testimony to 299 
 
 DATE, proved by entry of public officer 463 
 
 DEAF MUTE, competency of 44 
 
 DEATH, cause of, when not provable by 
 
 physician 99-109 
 
 DEBTOR and creditor, state of account, 
 how shown, see ACCOUNTS. 
 
 Page 
 DECEIT, did yon intend to give anything 
 
 more than opinion? 345n 
 
 DECEDENTS' ESTATES.protected against 
 
 interested testimony 137-232 
 
 DECLARATIONS, general rules as to mode 
 
 of proof 306 
 
 rule allowing proof of the entire statement. 618 
 
 as evidence of mai'riage 165 
 
 when part of the res gestae of a casualty.657,570 
 of agent receivable before proof of agency .617 
 ante mortem, see DYING DECLARA- 
 TIONS 295 • 
 
 DECLARATION OP TRUST, by person 
 
 since deceased .' 460 
 
 DEDUCTION, distinguished from observa- 
 tion, knowledge, etc 346, etc. 
 
 DEFENDANT, competent for or against 
 
 co-defendant 20 
 
 DEFENDANT'S CASE, not matter of right 
 
 on cross-examination 600 
 
 DELIVERY, a fact to which witness may 
 
 testify directly 304 
 
 whether a sale, is a conclusion 253 
 
 DEMONSTRATIVE evidence 589 
 
 DEPORTMENT, observation of its char- 
 ter or significance 265, etc. 
 
 DEPOSITION, reservation of " all legal 
 
 objections" 67 
 
 remedy for irresponsive answer 243n 
 
 previously made, used to contradict pres- 
 ent testimony 642, etc. 
 
 may be impeached by showing bad repu- 
 tation of^ deponent 749 
 
 DEMAND AND REFUSAL, sufliciency of 
 
 evidence illustrated 361 
 
 DIRECT EXAMINATION, impugning 
 
 one's own witness 393n 
 
 DISCLOSURE of what it is proposed to 
 
 prove 241 
 
 DISCOUNT, proved by bank books 444 
 
 DISCOVERY of names of desired witnesses 
 
 by cross-examination 632 
 
 in surrogate's court, is a " proceeding " 
 
 within N. Y. Code Civ. Pro., §829 140 
 
 DISCREDITING one's own witness 698 
 
 DISTRIBUTEE, when "interested". . .178-184 
 DOCUMENT, what now require subscribing 
 
 witness 533 
 
 communication to deaf mute 44 
 
 rule as to shop books 538 
 
 use to impeach witness 637 
 
 proper mode of using to contradict wit- 
 ness 729 
 
 contents provable by oral testimony on 
 
 the voir dire 10 
 
 see also ACCOUNTS; BEST and SEC- 
 ONDARY; HANDWRITING; LET- 
 TERS; MEMORANDA; REGISTER; 
 TIME BOOK; TRAIN SHEET. 
 DOUBT, does not necessarily render state- 
 ment incompetent 267 
 
 DYING DECLARATIONS, general rule 
 as to, 
 
 illustrated 2e5n 
 
 preliminary question 574 
 
 proved by signs 306 (5) 
 
 not competent in a civil case 557 
 
 EMBEZZLEMENT, see FRAUD. 
 EMPLOYEE, not incompetent to give evi- 
 dence of correctness-of shop books 540 
 
 EMPLOYER, " who was ?" a proper ques- 
 tion 336, 339, 341 
 
 ENTIRE CONVERSATION, called out on 
 
 cross or re-direct 218 
 
 ENTRIES, in shop books of the party. .538, 546 
 in corporation books, evidence after writ- 
 er's death, etc 444 
 
 against pecuniary interest 460 
 
 see, also, MEMORANDA. 
 
Y60 
 
 INDEX. 
 
 Page 
 BEEOE, cured by subsequent reception of 
 
 excluded evidence 600 
 
 ESTATES, protection of, against interested 
 
 testimony 137-232 
 
 EVIDENCE ADDEBSSED TO THE 
 
 SENSES 589 
 
 EXAMINATION of adverse party as to his 
 
 own fraud 699 
 
 EXCEPTION, not waived by yielding 726 
 
 EXCLUSION for wrong reason may be error. 78 
 BXECUTOE, not thereby " interested.". . . 184 
 
 not incompetent to testify on probate 534 
 
 propounding will not be deemed a patty. . 184 
 [The better ground is that at p. 141.] 
 EXBCUTOES AND ADMINISTKATOES, 
 plaintiff, in conversion, may testify to 
 
 value 861 
 
 protection against interested testimony. 137-282 
 rules of competency in actions by and 
 
 against 137-232 
 
 in federal court 18 
 
 what is personal communication or trans- 
 action 488n 
 
 EXPEETS , qualification 859 
 
 not to testify to merits against objection 
 
 before qualification has been shown 362 
 
 on what subjects competent 368 
 
 allowed to inspect injured limb 589 
 
 may testify to result of examination of 
 
 voluminous records 548 
 
 testimony as to handwriting 495-512 
 
 form of question 381 
 
 see, also, OPINION. 
 EXPLANATION BY WITNESS 683, etc 
 
 FACT, presumption of continuance 612 
 
 forgotten proved by memorandum attest- 
 ed by writer 432-443 
 
 FACTS, not conclusions, must be called 
 
 for 245 358 
 
 distinction between facts and conclusions, 
 
 belief, inference, etc., etc 245 
 
 opinions on judgment as to ordinary 
 
 affairs 246n 
 
 general rule 249-255 
 
 hearing, seeing, and inability to hear or 
 
 see 276, etc 
 
 significance of cry 269 n, 270 i 
 
 mental condition 279, etc i 
 
 feeling of affection 265 
 
 feeling as friendly or hostile 267 
 
 physical condition 273 
 
 §lace or position 260 
 istance 263 
 
 quantity 256 
 
 motives 267 
 
 intoxication 289, etc 
 
 identity, likeness, etc 293, etc 
 
 care, danger, etc., direct testimony to, . . . 299 
 direct testimony to ownership, possession, 
 
 etc 304 
 
 admissions and declarations, how proved. 306 
 
 what proper for experts 368 
 
 direct testimony to value of real property. 308 
 
 of personal property 327 
 
 of services 329 
 
 direct testimony as to whom was given 
 
 credit 832, etc 
 
 contract, agency, partnership, etc 342 
 
 direct testimony to partnership and names 612 
 FALSE PEETBNCBS, accused may testify 
 
 he did not intend to defraud 349 
 
 FEDEEAL LAW, how far governs ques- . 
 
 tions of evidence in Federal court 18 
 
 FEELING, direct testimony to estimate 265 
 
 FELON, competency of 47 
 
 FOEGOTTEN FACT, proved by memoran- 
 dum attested by testimony of writer.432-459 
 memorandum need not be in course of 
 business 435, but see 448, 459 
 
 Page 
 must be original or contemporaneous. 439, 459 
 FOEGEET, see HANDWEITING. 
 
 FOUNDATION for proving bias 711 
 
 for proving previous inconsistent state- 
 ments 724 
 
 FEAUD, accused may deny intent 349 
 
 debtor, etc., may deny intent 351 
 
 FRAUDULENT GEANTOE has no " legal 
 
 interest." 143 
 
 FEIENDLY or unfriendly grasp, witness 
 
 may state his impression as to 267 
 
 " FUTUEE " in stocks how proved illegal. 346 
 
 GOODS SOLD, demand for how far proved 
 by creditor's own shop books 538 
 
 GUAEDIAN, when may not testify to trans- 
 actions, etc., with ward 139 
 
 HANDWEITING, direct testimony of 
 
 writer 469 
 
 signature made in court 470 
 
 opinion of non-expert 470-480 
 
 standards of comparison 481-494 
 
 expert testimony 495, 512 
 
 effect of carrying a burden 585 
 
 photographic copies 513-520 
 
 cross-examination on other writings 521 
 
 recognition of similar documents as genu- 
 ine 472 
 
 HEALTH, direct testimony to state of 273 
 
 HBAEING, direct testimony to estimate. . . 276 
 HEAESAY, declarations not made compe- 
 tent by corroboration 570 
 
 striking out 612 
 
 HBIE, when deemed interested in action 
 
 affecting co-heir 157 
 
 HUSBAND AND WIPE, competency for 
 
 or against each other 62, etc 
 
 claim of privilege 63 
 
 waiver of privilege 67 
 
 husband charged by oral evidence, on ac- 
 count in name of wife 646 
 
 HYPOTHETICAL QUESTIONS, the 
 
 proper foundation and form 387 
 
 must not be based on mere reference to 
 
 whole evidence heard 381 
 
 see, also, QUESTION. 
 
 IDENTITY, direct testimony to 293 
 
 competency of impression as to 293, 295n 
 
 ILLEGALITY, in wager contract, how 
 
 proved 846 
 
 ILLNESS, direct testimony to 274 
 
 IMBECILITY as affecting credibility. . .41 n, 42 
 
 see, also, MENTAL CONDITION. . .279, etc 
 
 " IMMATEEIAL," not aspecific objection. 646 
 
 IMMEDIATE evidence fi89 
 
 IMPEACHMENT of adverse witness by at- 
 tacking credit 705 
 
 evidence of crime 705 
 
 evidence of bias 711 
 
 contradiction drawn out on cross-exami- 
 nation 717 
 
 previous inconsistent statements 724 
 
 character for truth and veracity 749 
 
 by evidence of mental impairment 42 
 
 of one's own witness 698 
 
 use of previous inconsistent statements of 
 
 the witness 687, etc 
 
 IMPEESSION, knowledge, inference, opin- 
 ion, judgment, understanding, etc., dis- 
 tinguished 245 etc. 
 
 IMPUTING, does not call for mere infer- 
 ence 255 
 
 INCOMPETENCY, may be shown by in- 
 terposing other testimony 10 
 
 see also COMPETENCY. 
 INDUCEMENT, to give credit may be asked 840 
 
 INFANCY, as affectmg competency 30, etc. 
 
 see also AGE. 
 
tNDEX. 
 
 T61 
 
 Page 
 INFERENCE, underatanding, impreseion, 
 opinion, judgment, conjecture, etc., 
 
 dietinguislied 246, etc. 
 
 "INPOEHATION" meaning of., . 108, 115, 118 
 
 INSANE PERSON, may be competent 36 
 
 INSANITY, instance of presumption of 
 
 continuance at ti'ial 192 
 
 see also MENTAL CONDITION. . . . 279, etc. 
 
 INSOLYENCT, see ACCOUNTS 548, 549 
 
 INSPECTION of book does not give right 
 
 to liave it in evidence 540 
 
 of injured member in court 589 
 
 INTENT, charge in account against wife.. 646 
 
 testimony to one's own intent 344 
 
 as to giving credit 332-339 
 
 INTEREST, as a ground of incompetency.. 29 
 remote, contingent and uncertain does not 
 
 disqualify 160 
 
 common law exception from necessity — 137 
 what is in the rules of disqualification — 143 
 in question, as distinguished from 
 
 eveit 157, 164 
 
 testimony of party in his own favor not 
 
 conclusive 551 
 
 shown by document, when provable by 
 
 oral evidence • 10 
 
 memoranda of fact against writer's inter- 
 est 460-467 
 
 of distributee 178 184 
 
 as a disqualification to testify to personal 
 
 transaction, etc., with deceased, etc 137 
 
 wlw disqualified 141-191 
 
 party not 141-191 
 
 fraudulent purchaser taking title m 
 
 another's name 143 
 
 surety 146 
 
 principal debtor 150 
 
 executor 184 
 
 trustee 153 
 
 legatee 156, 178 
 
 distributee 183 
 
 co-heir 157 
 
 mother 160, 164 
 
 widow ■• 162,164 
 
 as witness against whom. 
 
 near or remote decedent 194 
 
 as a disqualification against estates. , 
 
 as witness for whom 141, 156, 192 
 
 as a disqualification against estates. 
 concerning wliat transactions or commu- 
 nications '^^^'^1 
 
 in what proceedings 140 
 
 opening the door hy examining the execu- 
 tor, etc 218-232 
 
 release of interest or liability 200, etc. 
 
 assignor of cause of action deemed "in- 
 terested." 138, 201n 
 
 legatee when not ■' interested " 178 
 
 executor, is not 184 
 
 expectant right to commission8.doeB not 
 
 make 184 
 
 fraudulent grant or when deemed interested 143 
 next of kin, in suit to set aside deced- 
 ent's act 202 
 
 party not necessarily 141 
 
 surety when deemed 1^ 
 
 of witness to show bias 719 
 
 INTERPRETER, qualification of 46n 
 
 his version 306 (4) 
 
 INTOXICATION, as incomijetency 41 
 
 ordinary observer may testify to 289 
 
 IRRATIONALITY, see mental condi- 
 tion 279, etc. 
 
 IRRELEVANT ANSWER to proper ques- 
 tion 618 
 
 JUDGE, competency as a witness 56 
 
 questions by 270 
 
 JUDGMENT, opinion, impression, infer- 
 ence, etc., distinguished ■• 245 
 
 Page 
 " I should judge " a proper form of answer. 260 
 
 test of interest under 149n, 160, 164 
 
 as a ground of interest and incompetency. 29 
 not competent against one not a party. ... 164 
 of divorce competent evidence to remove 
 
 supposed disqualification of spouse 62 
 
 JURISDICTION, not lost by judge testify- 
 ing as witness 56 
 
 JUROR, competency as a witness 56 
 
 KNOWLEDGE, belief, inference, under- 
 standing, impression, etc., distin- 
 guished 245, etc. 
 
 direct testimony to estimate 270 
 
 of handwriting 472-477 
 
 LAND, value how proved 308 
 
 LANGUAGE, substance of, 305, and see. . . 306n 
 
 LAW, what governs competency 17 
 
 of federal or state court 19 
 
 of place as to competency 17 
 
 LEADING QUESTIONS, what are lead- 
 ing 237-270 
 
 on direct examination 235, 237, 241 
 
 on cross 23:1 
 
 rule does not prohibit calling attention to 
 
 particulars 389 
 
 where witness does not remember a name. 393 
 
 objection should be specific 334 
 
 to adverse witnesy 698 
 
 LEGATEE, when deemed " interested." 156 
 
 residuary does not take by release of gen- 
 eral legatee 184 
 
 LETTER, anonymous how brought home. . 524 
 separate objection necessary if some are 
 
 competent 67 
 
 as to genuineness, see HANDWRITING. 
 
 LETTERS TESTAMENTARY, etc., contest 
 
 for is a " proceeding " within N. Y. 
 
 Code Civ. Pro., §839 140 
 
 LIFE INSURANCE, see PHYSICIAN AND 
 PATIENT. 
 
 LIKENESS, direct testimony to 293 
 
 LUNACY, see MENTAL CONDITION 279, etc. 
 
 LUNATIC, may be competent 36 
 
 estate of, protected from interested wit- 
 ness 138-192 
 
 MALICE, " did you act without malice ? ".. 344 
 
 disproving 600 
 
 MALICIOTJS PROSECUTION, proving 
 
 original complaint 600 
 
 MANNER, direct testimony to opinion of, 
 
 its significance 270 
 
 see DEMEANOR, CONDUCT, etc. 
 MARRIAGE, competency of husband or 
 
 wife 62, etc. 
 
 MARRIED WOMAN, competency of... .62, etc. 
 MEMORANDA, various grounds of possible 
 
 competency 453 
 
 to refresh memory 395-422 
 
 when may be read to jury 433-431 
 
 when deemed evidence 423 
 
 of forgotten fact attested by writer 432-443 
 
 in course of duty received after writer's 
 
 death 444-459 
 
 of fact against writer's interest 460-467 
 
 MEMORY OF WITNESS refreshed by 
 
 questions 889-394 
 
 by memoranda 395 
 
 MENTAL condition, direct testimony to 
 
 estimate 279, etc. 
 
 incapacity as affecting competency. . .36, etc. 
 MONEY LENT OR PAID, not proved by 
 
 shop books 546 
 
 MOTHER, not deemed " interested " in sup- 
 port of child 160 
 
 not "interested" in litigation between 
 others questioning the marriage 164 
 
762 
 
 INDEX. 
 
 Page 
 MOTION, to direct verdict, must state 
 
 OTOund 585 
 
 MOTIVE, testimony to one's own intent. . . 844 
 cross-examining accused on 267 
 
 NAMES, reading list to enable witness to 
 identify 89i 
 
 " NECESSARY " INFORMATION for 
 physicianjWhat is 109 
 
 NEQATIVB FACT, proven by unsuccess- 
 ful search 549 
 
 NEGLIGENCE, care or carelessness a con- 
 clusion 399 
 
 declarations of the sufferer, when part of 
 res gestae 557-570 
 
 NEXT 'OF KIN, incompetency by interest.. 203 
 
 NOTICE TO PRODUCE, compliance does 
 not give right to read in evidence 546 
 
 NUMBifiR, witness who has not made actual 
 count, may yet state 8S7n 
 
 OATH, form, and mode of taking 9 
 
 instructing infant as to 30, .34 
 
 of juror who becomes a witness 56 
 
 OBJECTIONS, meaning of "all legal objec- 
 tions " 67 
 
 function is to preclude answer 618 
 
 to question must be made before answer. . 612 
 how taken to witness competent as to 
 some things and incompetent as to 
 
 others 20 
 
 as " immaterial " when too general 646 
 
 distinction between incompetency and 
 
 offer too late 78 
 
 to series of documents, bad, if some are 
 
 competent 67 
 
 to several witnesses together, bad, if one 
 
 is competent 103 
 
 that whole writing should be read, must 
 
 be speciflc 637 
 
 to leading question should be speciflc 334 
 
 must specify ground, unless ground could 
 
 not be obviated 524 
 
 may be sufficient though obscurely ex- 
 
 OTessed 719 
 
 OBSERVATION, inference, impression, 
 opinion, judgment, understandmg, etc., 
 
 distinguished 246, etc. 
 
 OFFER, counsel making, may be required 
 
 to state object 20, 241 
 
 of several' witnesses may be good though 
 
 one is incompetent 103 
 
 OFFICER, entry by competent, after his 
 
 death 462 
 
 OPENING THE DOOR, common law rule. 218 
 
 under § 829 219-232 
 
 by direct examination for cross 612, etc. 
 
 OPINION, judgment, understanding, im- 
 pression, conjecture, etc., distinguished 
 
 245, etc. 
 as to ordinary affairs, not competent.. 245, etc. 
 
 as to value, qualiflcation of witness 308 
 
 of non-expert as to mental condition. ..279-288 
 of handwriting, knowledge of, to qualify 
 
 witness to identify ». 472-477 
 
 evidence to jjrove standard of comparison 
 
 of handwriting 481 
 
 founded on narrative of patient not com- 
 petent 125 
 
 see, also, EXPERTS. 
 ORAL EVIDENCE, of contents of writing 
 
 on the roir dire 10 
 
 that credit was given to another than the 
 
 one charged in account 646 
 
 ORDER, judicial, proved by entry in attor- 
 ney's register 459 
 
 ORDER OP PROOF, discretionary, with 
 
 judge 617, 628 
 
 as to preliminary question 574 
 
 Page 
 ORIGINAL ENTRIES, in shop books. .538, 546 
 OWNERSHIP, direct testimony to 304 
 
 PAIN, involuntary exclamations 570 
 
 PARDON, when restores competency 47 
 
 PARTNERSHIP, direct testimony as to ex- 
 istence and who were partners 612 
 
 who were members 393 
 
 given names as well as surnames, if alleged, 
 
 should be proved 393 
 
 cross-examination as to dissolution 612 
 
 " PARTY," who is 19n 
 
 competency in civil case 24 
 
 as to criminal case, see ACCUSED, 
 not necessarily disqualifled, as against an 
 estate, under § 829 of N. Y. Code of Civ. 
 
 Pro 141 
 
 otherwise under U. S. R. S 739 
 
 who has failed to .plead may still be "in- 
 terested " 149 
 
 testimony of, in his own favor not con- 
 clusive 551 
 
 previous inconsistent statements provable 
 
 against 724 
 
 see, also, ACCUSED; and DEFENDANT. 
 
 PASS BOOKS as evidence 539 
 
 PASTOR and parishioner, confldential com- 
 munications between 136 
 
 PATIENT, communications with physician 
 
 99-135 
 PAYMENT, as removing incompetency of 
 
 interest 178 
 
 of note, some evidence of genuineness 473 
 
 PERSONAL PROPERTY, value how proved 327 
 PERSONAL TRANSACTION or communi- 
 cation, possession and handwriting not 
 
 deemed 488n 
 
 or communication "what is " 202-217 
 
 PEDIGREE, hearsay as evidence of 165 
 
 PHOTOGRAPH, whether a good likeness.296-7 
 
 of handwriting 613 
 
 PHYSICAL COlSTDITION, direct testimony 
 
 to estimate of 273 
 
 PHYSICIAN, not to state opinion founded 
 
 on undisclosed narrative of patient 387 
 
 patient's narrative to physician is hearsay 570 
 
 burden on objector 109 
 
 competency 99etc. 
 
 what law applies in federal court 99 
 
 statute liberally construed 103 
 
 protects assignee 103 
 
 applies to probate 118 
 
 when applies in criminal case 122-125 
 
 existence of relation 118, 125, 129n 
 
 " information " what is 108, 115,118,130 
 
 what is " necessary " information 109 
 
 mode of objecting 132 
 
 waiver of privilege 115, 183 
 
 PLAINTIFF'S CASE, defendant's right to 
 
 cross-examine 600, etc. 
 
 PORTRAIT, best likeness of 296 
 
 POSSESSION, direct testimony to 304 
 
 POSSIBILITY, "It could not be" a 
 
 proper form of answer 260 
 
 no human force could etc., proper 268n 
 
 PREAPPOINTED witnesses, general rule. 633 
 testimony against execution of wiU not 
 
 conclusive 534 
 
 testifying as to mental condition '279, etc. 
 
 PRELIMINARY QUESTION, distinguish- 
 ed from evidence for the jury 574 
 
 foundation for secondary evidence is. 551 
 genuineness of standard of comparison ' 
 
 of handwriting is 484 
 
 competency of- shop books is ... . . . '. '. . '. '. ". 539 
 
 testimony of party in his own favor not 
 
 conclusive on the judge 551 
 
 PREPARATION for trial 633 
 
 PRIEST, privileged communication with.. 136 
 
IJSDEX. 
 
 T63 
 
 Page 
 PRINCIPAL, debtor not necessarily " in- 
 terested" in action against guai-antor.. 150 
 PRIVILEGE of communications with phy- 
 sicians to he liberally sustained 103 
 
 of confidential communication waived by 
 husband or wife who makes it public . . 67 
 
 putting witness to claim it 63 
 
 PROBABLE consequences of injury 377 
 
 PROBATE, necessary evidence 735 
 
 executor not incompetent 534 
 
 rule of privilege as to professional com- 
 munication applies to 118 
 
 Section 829 of N. Y. Code Civ. Pro., 
 
 applies to 140, 208 
 
 " PHOCEEDINGS," what are within N. Y. 
 
 Code Civ. Pro., §829 140 
 
 PROFESSIONAL COMMUNICATIONS, 
 see ATTORNEY AND CLIENT, PHY- 
 SICIAN AND PATIENT, PASTOR 
 AND PARISHIONER. 
 PROOF by enbscribing witness made and 
 
 certified after suit brought 533 
 
 PROPERTY, whose was It, a proper ques- 
 tion 304n 
 
 value how proved 308-328 
 
 "PUTS" AND "CALLS," how proved 
 
 illegal 346 
 
 QUANTITY, direct testimony to estimate. 266 
 
 relative of surface water 380n 
 
 QUESTION, introductory 237 
 
 leading 235, 241 
 
 in alternative objectionable as "leading". 238 
 rule against leading allows attention to be 
 
 called to particulars 389 
 
 assuming fact not in evidence 238 
 
 general rules as to' form 233 
 
 to refresh memory 389 
 
 form of to expert 381 
 
 proper foundation and form of hypothet- 
 ical question 387 
 
 hypothetical question must not be based 
 on mere reference to" whole evidence 
 
 heard 381 
 
 hypothetical as to value, based on testi- 
 mony heard 329 
 
 violating privilege of witness 65 
 
 judge may frame 270 
 
 QUESTION FOR JUDGE, see PRELIM- 
 INARY QUESTION. 
 
 RATIFICATION OP SIGNATURE, when 
 
 competent on question of forgery ' 472 
 
 RATIONALITY, see MENTAL CONDI- 
 TION 279, etc. 
 
 REAL EVIDENCE 589 
 
 REAL PROPERTY, value how proved . . 308 
 RECEIPTOR, protected against interested 
 
 testimony 192 
 
 RECOLLECTION, distinguished from im- 
 pression or inference 248, etc. 
 
 REDIRECT EXAMINATION, door opened 
 
 by cross 629 
 
 as to witness^ means of knowledge .521 
 
 REFRESHING MEMORY, by questions389-394 
 
 by memoranda 395-122 
 
 REGISTER of attorney or counsel, as evi- 
 dence 459, 464 
 
 REINSTATING character of witness 752 
 
 " RELEVANT," meaning of 617 
 
 RELEASE, as removing Incompetency by 
 
 interest 178,182,184 
 
 of interest, effect at common law 200 
 
 of legacy to remove interest 184 
 
 constructive delivery not enough to remove 
 
 interest 201n 
 
 RELIANCE of a corporation on a subscrip- 
 tion proved by testimony of officer 333 
 
 RELIGIOUS BELIEF 9 
 
 REPUTATION, for truth and veracity.. 705-749 
 
 Page 
 
 RESEMBLANCE, direct testimony to 293 
 
 RES GESTAE, the general principle. . . .557-672 
 
 mental impression as part of 245 
 
 confusion among passengers at casualty. . 260 
 of a casualty does not include subsequent 
 
 declarations describing it 557, 570 
 
 when memorandum of act may be part of. 423 
 entry which purports to be a subsequent 
 
 record is not part of 466 
 
 of marriage and cohabitation 165 
 
 when include facts stated to medical 
 
 adviser 125 
 
 RESPONSIBILITY of third person, when a 
 proper question .- 340n, 341 
 
 SALE, a conclusion not to be testified to 
 
 directly if directly in issue 252 
 
 use of memoranda to prove delivery ,etc.404,etc. 
 how far proved by creditor's own shop 
 
 books 638 
 
 SANITY, see MENTAL CONDITION. .279, etc. 
 SCHEDULE may be used to prove result of 
 
 voluminous records 548 
 
 SECTION 829 of the N. Y. Code of Civil 
 
 Procedure • 137 
 
 SEEING, direct testimony to estimate 256 
 
 SENTENCE, distinguished from conviction. 47n 
 SERVICES, how far proved by creditor's 
 
 own shop books 638 
 
 proving by time books and auxiliary testi- 
 mony 448 
 
 on whose behalf rendered, a proper ques- 
 tion 336-339 
 
 value how proved 329 
 
 SHOP BOOK RULE, does not apply to 
 
 charge for money items 546 
 
 SICK OR WELL, whether a proper question 
 
 to ordinary witness 273 
 
 SIGNATURE made in court to test hand- 
 writing 470 
 
 SIZE, direct testimony to estimate 263 
 
 SKILL, statement of witness as to 301 
 
 SPECIAL QUESTIONS, trial of is a " trial". 140 
 STANDARDS OP COMPARISON of hand- 
 writing 481, etc. 
 
 writing in court 470, 471n 
 
 STATE LAW, how far governs in federal 
 
 court 18 
 
 in case of privileged communications 99 
 
 does not in criminal trial 47 
 
 STIPULATION for reading testimony taken 
 
 on a former trial 67 
 
 STOCK FUTURE, how proved 346 
 
 STRIKING OUT testimony after incompe- 
 tency is discovered 10, 15, 145 
 
 testimony afterward shown to be hearsay. 612 
 
 irresponsive matter added by witness 618 
 
 proper answer to improper question 612 
 
 direct for loss of cross 592-600 
 
 testimony when memorandum which aided 
 
 it is not disclosed 404 
 
 when rests in discretion of court 617, 628 
 
 SUBSCRIBING WITNESS, common law 
 
 rule 533 
 
 testimony against esecution not conclu- 
 sive 534 
 
 testifying to mental condition 279, etc. 
 
 inconsistent declarations of 735 
 
 SUBSCRIPTION PAPER, proving that 
 debts were contracted "on the faith of 
 it " 333 
 
 SUGGE stive' QUESTIONS, 'see LEAD- 
 ING QUESTIONS. 
 SUMMARY, admissible to prove result of 
 
 voluminous facts 648 
 
 of account received on testimony of expert. 548 
 SUPPOSITION, what witness supposed, 
 
 competent on question of notice 332 
 
 SURETY on administration bond, " inter- 
 ested " in event of accounting 145 
 
764 
 
 INDEX. 
 
 Page 
 
 SURGEON, communications witli patient . . 99 
 
 see also PHYSICIAN. 
 SURVIVOR of decedent protected against 
 interested testimony 188-233 
 
 TELEPHONE message 306 
 
 TESTAMENTARY CAPACITY, exclusion 
 of physician's testimony to that of his 
 
 patient 118 
 
 see, also, MENTAL CONDITION. . . .279, etc. 
 TESTIMONY given on former trial, how 
 
 proved 395 
 
 proved by attorney, attesting correctness 
 
 of his notes 428 
 
 may open door for interested witness 224 
 
 of party in his own favor not conclusive. . 551 
 THINK, witness does not etc., a proper 
 
 answer 367 
 
 TIME of train, how proved 400 
 
 proper for burning a fallow 368 
 
 to jump, a proper question 263n 
 
 what proportion of, etc., a proper ques- 
 tion '. 330u 
 
 TIME BOOKS made evidence by auxiliary ■ 
 
 testimony 448 
 
 TIME TABLES, competency of 400 
 
 TITLE, direct testimony to 304 
 
 what is deriving, within Section 829 of N. 
 
 Y. CodeCiv. Pro 192-194 
 
 TRADESMEN'S BOOKS, see SHOP 
 
 BOOKS 638-546 
 
 TRAIN SHEET, competent 400 
 
 TRANSACTION, similar though not in 
 
 issue may be competent 382 
 
 "TRANSACTIONS OR COMMUNICA- 
 TIONS," what are 202-217 
 
 contents of box delivered to decedent 362 
 
 possession and handwriting not deemed 
 
 to be 488n 
 
 " TRIAL," what is within N. Y. Code Civ. 
 
 Pro., §829 140 
 
 TRUST, declaration of by person since 
 
 deceased 460 
 
 TRUSTEE deemed "interested" in action 
 by beneficiaries 153 
 
 UNDERSTANDING, impression, belief 
 
 knowledge, etc., distinguished 245, etc. 
 
 " Did you understand from," etc., not 
 competent 99 
 
 VALUE, degree of knowledge to qualify as 
 
 to 308 
 
 of personalty 327 
 
 of property converted by decedent proved 
 
 by plaintiff notwithstanding §889 361 
 
 of real property, how proved 308 
 
 Page 
 
 of services • 329 
 
 use of memoranda to aid witness to state 
 
 details ■• 415 
 
 witness, though owner, not therefore quali- 
 fied to testify to 862 
 
 a question for jury not foreclosed by 
 
 opinion evidence 330n 
 
 VERDICT, motion to direct must state 
 
 ground 585 
 
 VOICE, significance of tone 269, 270n 
 
 VOIR DIRE 10 
 
 VOLUMINOUS PACTS, proved by sum- 
 mary 548 
 
 WAGER CONTRACT, how shown void ... 846 
 WAIVER of privilege of hudband or wife 
 against disclosure of confidential com- 
 munication 67 
 
 of privilege as to physician and patient. . . 115 
 of ground of objection by failing to specify 
 
 it 524 
 
 WEATHER, as compared with other sea- 
 sons 255, but see 256 
 
 WIDOW " interested " in creditor's action. 162 
 WIPE, competency for or against husband. 
 
 62, etc. 
 see, also, HUSBAND AND WIPE. 
 
 WILL, order of events in execution 534 
 
 mode of proof 735 
 
 execution andattestation,a single transac- 
 tion 208 
 
 execution provable against testimony of 
 
 subscribing witnesses 534 
 
 WITNESS called as to matters to which he 
 is competent, not thereby made compe- 
 tent as to others 145 
 
 hired agent, incompetent expert 513 
 
 preappointed, subscribing or atte6ting.633,etc. 
 
 testifying to mental condition 279, etc. 
 
 testifying to correctness of account 697 
 
 testimony to own handwriting 469 
 
 to value, must be shown c( mpetent before 
 
 allowed to state it 362 
 
 use of memoranda to refresh 395-422 
 
 reading from memoranda 423-431 
 
 non-appearance for cross-examination.592-604 
 
 impeachment in various ways 705-754 
 
 re- instating after impeachment 752 
 
 examination to discover other witnesses. . 633 
 disclosing his own crime may be given 
 
 into custody 67 
 
 WOULD HAVE BEEN, what present value. 311 
 
 WOULD YOU HAVE SEEN ? 277n 
 
 WOULD YOU TAKE IT? not a proper 
 
 question 521 
 
 WRITING, obscure, deciphered by expert. . 606 
 
 of witness used to contradict him 637, etc. 
 
 in court as a test of handwriting 470