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CASES 
 
 ON THE 
 
 LAW OF EVIDENCE 
 
 SELECTED BY^^ 
 
 Prof. R L^\ViLGUS 
 
 Of the Law Department of the University of Michigan 
 
 ST. PAUL, MINN. 
 
 WEST PUBLISHING CJ). 
 
 1896- 
 
WEST PUBLISHING COMPANY. 
 
TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 Sec. 1. 
 Courts must decide upon such informa- 
 tion as is regularly brought 
 before them. 
 
 Wood River Bank v. Dodge Case 1 
 
 (Jury to decide on evidence before them. Verdict 
 set aside where it appears to be wrong.) 
 
 Sec. 2. 
 
 Relevancy (see Case 43, also). 
 
 Nickerson v. Gould Case 2 
 
 (Itelevanpy. Collateral facts. Facts showing for- 
 gery.) 
 
 Function of Judge (see Cases 15, 133, 140, and 
 141). 
 
 Commonwealth v. Robinson . . .• Case 3 
 
 (Function of judge. Facts showing plan, scheme, 
 preparation, etc.) 
 
 Part I. RELEVANCY. 
 
 RULES OF ADMISSION. 
 Sec. 3. 
 
 What facts are in issue (see Cases 5 and 
 122). 
 
 Buddrcss v. Schafer Case 4 
 
 (Facts in issue. Prior suit between same par- 
 ties. ) 
 
 Robinson Consolidated Min. Co. v. John- 
 son Case 5 
 
 (Facts in issue. Variance between pleading and 
 proof.) 
 
 Sec. 4. 
 
 Direct and indirect evidence. 
 
 Carlton v. People Case 6 
 
 (Circumstantial evidence. Hearsay. Kes gestae. 
 Reasonable doubt. Burden of proof.) 
 
 Sees. 5-6. 
 
 Facts tending to prove facts in issue. 
 Collateral facts (see Cases 2, 8, Itil). 
 
 Ferrari v. Murray Case 7 
 
 (Collateral facts.) 
 
 Pindlay Brewing Co. v. Bauer Case 8 
 
 (Collateral facts.) 
 
 Sec. 7. 
 Res gestae (see, also, Cases C5, 10-12, 137). 
 
 Pinney v. Jones Case 9 
 
 (Res gestae. Self-serving declarations.) 
 
 Vicksburg & M. R. Co. v. O'Brien. . .Case 10 
 (Res gestae.) 
 
 Ohio & M. Ry. Co. v. Stein Case 11 
 
 (Res gestae. Effectof impeaching testimony. Ad- 
 mitting incompetent evidence." Declarations of 
 agent must be made whileagency exists, to bind 
 principal.) 
 
 Lake Shore & M. S. Ry. Co. v. Herrick. . 
 
 Case 12 
 (Res gestee. Declarations of plaintiff: also, of 
 strangers.) 
 
 Conspiracy (See, also. Case 17). 
 
 Seville v. State Case 13 
 
 (Conspirac.v. Expert testimony.) 
 
 Sec. 8. 
 
 Facts showing probable cause (see Ca.ses 
 3, 15, 17, 18, 57). 
 
 (commonwealth v. Bradford Case 14 
 
 (Intent. Confessions befoi'e inquest admissible.) 
 
 Commonwealth v. Tref ethen Case 15 
 
 (State of mind. Declarations showing state of 
 mind. Discretion of judge. Admissions by fail- 
 ure to den.v statements. False statements of 
 facts by witness.) 
 
 Sec. 9. 
 
 Ordinary course of business (see Casts 19, 
 59, 60, 02). 
 
 Jensen v. McCorkell Cn.se 16 
 
 (Course of business. Prima facie evidence. De- 
 positing letter in post office.) 
 
 Sec. lO. 
 
 Similar occurrences shelving intention, 
 
 animus, etc. (see, also. Cases 2, 3, 14, 
 
 15, 18, 19. 23, 57, 77). 
 
 State V. Minton Case 17 
 
 (Facts of same kind to show forger.v. Conspir- 
 ac.v. Handwriting.) 
 
 Commonwealth v. Russell Case 18 
 
 (Other checks on person to show forgery. Con- 
 fessions, inducement to.) 
 
 Continental Ins. Co. of City of New York 
 v. Insurance Co. of Pennsylvania. . . Case 19 
 (Similar facts showing fraud. Course of business. 
 Perjury. Corroboration.) 
 
 Sec. 11. 
 
 Explanatory facts. 
 
 Wallace v. Kennelly Case 20 
 
 (Explanatory facts.) 
 
 Bell V. Brewster Case 21 
 
 (Explanator.y facts. Person identified by hand- 
 writing. iLxperts. Ancient documents.) 
 
 RULES OF EXCLUSION. 
 
 Sec. 12. 
 
 Res inter alios (see Case 113, also). 
 
 In re Thompson Case 22 
 
 (Evidence of value of adjoining property, in ques- 
 tions of damages.) 
 
 Sec. 13. 
 
 Facts possibly connected as cause and ef- 
 fect not always relevant. 
 
 Columbia & P. S. R. Co. v. Hawthorne. . 
 
 Case 23 
 (Repair of machiner.v after accident, not admissi- 
 ble to show negligence.) 
 
 Sec. 15. 
 
 Character, evidence of, not generally ad- 
 missible, unless In issue (see. also. 
 Cases 25, 162, 166, 168, 169, 170). 
 
 Southern Kansas Ry. Co. v. Robbins. .Case 24 
 (General reputation. Opinions of experts. Depo- 
 sitions.) , 
 
 Norfolk & W. R. Co. v. Hoover Case 25 
 
 (General reputation of servant admissibleto-show 
 master's negligence.) 
 
 WILGUS.BV. 
 
 (iii) 
 
IV 
 
 TABLE OF CONTENTS. 
 
 Sec. 17. 
 Hearsay generally excluded (see Cases C, 
 27, and 36, also). 
 
 Anderson v. Fetzer Case 26 
 
 (Written hearsay.) 
 Oskamp v. Gadsden Case 27 
 
 (Telephone communications not hearflay.) 
 
 Sees. 20-23. 
 
 Admissions (see Cases 12, 15, 29-3.5, 45, 90, 
 91, 163). 
 
 Proctor T. Old Colony R. Co Case 28 
 
 (Admissions by agents. Failure to deny state- 
 ments. Admissions by attorneys.) 
 
 McLeod T. Swain .' Case 29 
 
 (.admissions of deceased owner in possession. 
 JDvidence for or against Ktran;j;-er8.) 
 
 Hills T. Ludwig Case 30 
 
 (Admission by one not in possession. Evidence 
 in rebuttal.) 
 
 Smith T. Boyer Case 31 
 
 (Declarations in eases of fraud.) 
 
 Idaho Forwarding Co. t. Fireman's Fund 
 
 Ins. Co Case 32 
 
 (Admissions by apent. ) 
 
 Over T. Schiffling Case 33 
 
 (Admissions by referee. Intention, declarations 
 
 concernmg 
 stated.) 
 
 Grounds of exception must be 
 
 Smith T. Satterlee Case 34 
 
 (Offer of eoinpromise.) 
 
 Akers t. Kirk Case 35 
 
 (Admissions by agents.) 
 
 Sees. 25-29. 
 
 Confessions (see Cases 14, IS, 37, 39, 40, 168). 
 
 Hopt V. People of the Territory of Utah. . 
 
 Case 36 
 (Confessions. Heuraay.) 
 
 Bubster v. State Case 37 
 
 (Confessions, Inducement.) 
 
 Lowe T. State Case 38 
 
 (Facts obtained through confes^-ions. Reason- 
 able doubt.) 
 
 State T. Clifford Case 39 
 
 (Confessions before grand jury,) 
 
 People V, Chapleau Case 40 
 
 (Confessions must be voluntary.) 
 
 Sees. 30-31. 
 
 Reeitals in statutes, official reports, pub- 
 lic records, etc. (see Case 54, also). 
 
 Downing v. Diaz Case 41 
 
 (Town charter as evidence of rights of inhabit- 
 ants. Surveys, Documents collected by au- 
 thority. Archives, .\ncient copies. Judgments,) 
 
 Sec. 32. 
 
 Matters of history, maps, life tables, etc. 
 
 (&4e Cases 41, 43, and 86). 
 
 Steinbrunuer v. Pittsburg & W. R. Co.... 
 
 Case 42 
 (Life fables.) 
 
 Kansas City. JI, & B. B. Co. v. Smith. . Case 43 
 (Photographs, Maps, Diagrams, Relevancy,) 
 
 Sec. 33. 
 
 Corporation books (see Case 45, also). 
 
 Glenn v. Orr Case 44 
 
 (Books of corporations. Evidence against stock- 
 holder. Entries iu stock books.) 
 
 Howard t, Glenn Case 45 
 
 (Books of corporations asevidence. Admissions.) 
 
 Sees. 34-38. 
 Judgments (see Cases 4, 47-53, 55, 80, 11.3). 
 
 Commonwealth v, O'Brien Case 40 
 
 (Oral evidence to show court not in session,) 
 
 Nesbit V. Independent District of Riverside 
 
 Case 47 
 (Judgment between same parties on same cause 
 of action. Evidence in former suit.) 
 
 Franklin County v. German Sav, Bank ... 
 
 Case 48 
 (Judgment, Collateral proceedings between same 
 parties.) 
 
 Gilmer v. Morris Case 49 
 
 (Judgment on demurrer.) 
 
 Freeman v. Alderson Case 50 
 
 (Judgment in personam and in rem.) 
 
 Cross V. Armstrong Case 51 
 
 (Judgment in rem.) 
 
 Carlisle v. Killebrew Case 52 
 
 (Judgment in ejectment and in criminal proceed- 
 ings.) 
 
 Needham v, Thayer Case 53 
 
 (Judgment in personam.) 
 
 Sec. 41. 
 
 General reputation (see Cases 24, 25, 55, 
 162, and 166). 
 
 O'Brien v, Frasier Case 54 
 
 (Reputation in issue. Form of question.) 
 
 Backdahl v. Grand Lodge A. O. XJ. W 
 
 Case 55 
 (Recognition iu family. Decree of distribution 
 as evidence of heirship,) 
 
 Sec. 43. 
 
 Evidence given in former proceedings. 
 
 Sullivan v. State Case 56 
 
 (Evidence of deceased or absent witness,) 
 
 Sec. 44. 
 
 Dying declarations (see Cases 58, 134). 
 
 State V. Reed Case 57 
 
 (Dying declarations. Motive. Another offense. 
 (Conduct, Failure to produce paper. Cross-ex- 
 amination,) 
 
 State V, Kindle Case 58 
 
 (Dying declarations, written,) 
 
 Sec. 45. 
 
 Declarations in course of business, book 
 accounts, etc. (see Cases 16, 19, 
 44, 45, 60-62). 
 
 City of New York v. Second Ave, R. Co. . . 
 
 Case 59 
 (Time book. Entries inbook of materialsnsed.) 
 
 Smith V, Rentz Case 60 
 
 (Books of tradesmen as evidence. Notice for 
 production.) 
 
 Cormac v. Western White Bronze Co. . Case 61 
 (Books of account. Introduction against per- 
 sons making entry,) 
 
 Pratt v. White Case 62 
 
 ( Books of account of Intestate. Evidence for ad- 
 ministrator. 
 
 Sec. 46. 
 
 Declarations against interest (see Case 
 140, also). 
 
 Ellis V. Harris Case 63 
 
 Sec. 47. 
 Declarations of testator as to lost will. 
 Pickens v. Davis Case 64 
 
 Sec. 48. 
 
 Declarations as to public or general 
 rights, etc. 
 
 Young V. Kansas City, Ft, S. & M, R. Co. 
 
 Case 65 
 Sec. 49. 
 
 Fedig^ree (see Cases 55 and 67). 
 
 Sitler V. Gehr.. Case 66 
 
 Fulkerson v. Holmes Case 67 
 
TABLE OF CONTENTS. 
 
 Sees. 50-51. 
 Opinions (see Gases 24, 69-73). 
 Wight Fire-Proofing Co. v. Poczekai..Case 68 
 (Opinions. Vaiiance. Time to object.) 
 
 McKillop T. Duluth St. Ry. Co Case 69 
 
 (Opinion a8 to Intoxication.) 
 
 Connecticut Mut. Life Ins. Co. v. Lathrop 
 
 Case 70 
 (Opinion as to insanity.) 
 
 Williams v. Spencer Case 71 
 
 (Opinion of witness to a. will.) 
 
 See. 52. 
 
 Experts (see Cases 13, 24, 73-75, and 156). 
 
 Louisville, N. A. & C. R. Co. v. Wood.. 
 
 Case 72 
 (Opinions of experts. Hypothetical question. 
 Opinion of nonexpert. .Statementsro physician. 
 Inspection of injured limb. Cross-examination.) 
 
 City of Bloomington v. Shrock Case 73 
 
 (Statements in medical and scientiflo books.) 
 
 Slocovich T. Orient Mut. Ins. Co Case 74 
 
 (Experts, qualification, and subjects. Judicial 
 notice.) 
 
 People V. McBlvaine Case 75 
 
 (Experts. Form of question.) 
 
 Sec. 53. 
 
 Handwriting (see Cases 17, 77, 89). 
 
 Wilson V. Van Leer Case 76 
 
 (Handwriting. Judicial notice. Almanac.) 
 
 Bevan T. Atlanta Nat. Bank Case 77 
 
 (Handwriting. Comparison. Similar notes in 
 possession. Cross-examination.) 
 
 Part II. PROOF. 
 
 See. 54. 
 Best evidence. 
 
 Canfield v. Johnson Case 78 
 
 Sec. 55. 
 
 Judicial notice (see Cases 74, 76, 79-89, 97). 
 
 Gady v. State Case 79 
 
 (United States Money.) 
 
 Hanley v. Donoghue Case 80 
 
 ■ (Judicial notice of law of another state. Judg- 
 ment in one state enforceable in another.) 
 
 Lloyd V. Matthews Case 81 
 
 ( I^aws of state to be proved in appellate proceed- 
 ings.) 
 
 State V. Boyd Case 82 
 
 (Judicial notice. ChauA^es in executive office.) 
 
 Commonwealth t. Dunlop Case 83 
 
 ( Jud cial notice. Seal and signature. Burden of 
 proof.) 
 
 Pierce v. Indseth Case 84 
 
 (Judicial notice. Notary seal.) 
 
 People V. AVood Case 85 
 
 (Judicial notice.) 
 
 Commonwealth v. King ; . . . . Case 86 
 
 {Judicml notice of character of river. Map pub- 
 lished by authorily.) 
 
 Carey v. Reeves Case 87 
 
 (Judiciiil notice. Location of Pike's Peak.) 
 
 Wetzler v. Kelly Case 88 
 
 (Judicial notice. Time of planting cotton.) 
 
 Swales V. Grubbs Case 89 
 
 (Judicial notice. Coincidence of dayw of week and 
 month. Handwriting. Comparison.) 
 
 Sec. 57. 
 
 Admissions in pleadings. 
 
 Ferris v. Hard Case 90 
 
 (.Admissions in pleadings.) 
 
 Johnson v. Russell Case 91 
 
 (Admissions in pleadings.) 
 
 Sec. 59. 
 
 Presumptions in general (see Cases 16, 93- 
 96, 105). 
 
 Ulrich V. Ulrich Case 92 
 
 iPresnmptions in general.) 
 Hilton V. Bender Case 93 
 
 (Presumptions of fact in general.) 
 
 United States v. Ross Case 94 
 
 (Presumptions of duty.) 
 
 Fletcher v. Fuller Case 95 
 
 (Presumptions, coTiclusive.) 
 
 Nashua & L. R. Corp. v. Boston & L. R. 
 
 Corp Case 96 
 
 (Conclusivepresumptionof uitizenshlp of corpora- 
 tion. ) 
 
 Sees. 60-61. 
 
 Oral evidence in connection ivitli Tvrit- 
 ten documents (see Cases 46, 98-100). 
 
 Miller v. City of Indianapolis Case 97 
 
 (Certified copies of record.s. Plat books. Judi- 
 cial notice.) 
 
 Burton v. Tuite Case 98 
 
 (Kight of inspection. Public records.) 
 
 Contents to he proved by document only. 
 
 Blalock V. Miland Case 99 
 
 (Declarations contrary to deed.) 
 
 Weaver v. Shipley Case 100 
 
 (Duplicate writings.) 
 
 Sec. 62. 
 
 Attested documents to be proved by -wit- 
 ness (see Cases 102 and 103). 
 
 Richmond & D. R. Co. v. Jones Case 101 
 
 (Practice in proving writings.) > 
 
 Stebbins v. Duncan Case 102 
 
 (Practice when attesting witness dead. Destruc- 
 tion of deed. Copy. Depositions.) 
 
 Garrett v. Hanshue Case 103 
 
 Sec. 63. 
 
 Ancient deeds, documents, etc. (see Case 
 41, also). 
 
 Applegate v. Lexington & Carter Counties 
 Min. Co Case 104 
 
 Sec. 64. 
 
 Public documents proved by certified 
 copies (see Cases 41, 106, 107, and 109). 
 
 Nitche V. Barle Case 105 
 
 (Certified copies. Custody of records. Presump- 
 tion that officer does his duty.) 
 
 United States v. Bell Case 106 
 
 (Ceitifled copies. Treasury department.) 
 
 Alexander v. Pennsylvania Co Case 107 
 
 (Proof of laws of another state.) 
 
 Sec. 65. 
 
 Secondary evidence admitted in certain 
 
 cases (see Cases 109-113). 
 
 Wiseman v. Northern Pac. R. Co ... . Case 108 
 (When secondary evidence admitted. Writing 
 out of state. Diligence in producing. 
 
 Isley V. Boon Case 109 
 
 (Secondary evidence. When records are de- 
 stroyed.) 
 
 Sec. 67. 
 
 Degrees of secondary evidence (see Cases 
 
 111-113). 
 
 Goodrich v. Weston Case 110 
 
 (Copy of a press copy.) 
 
 Ford V. Cunningham .Case 111 
 
 (Secondary evidence. Press copies.) 
 
VI 
 
 TABLE OF CONTENTS. 
 
 Cornett v. Williams Case 112 
 
 (DesTees of secondary evidence. Presumption of 
 regularity.) 
 
 Sec. 68. 
 
 Result of collection of documents or ex- 
 amination of accounts. 
 
 Leeser v. Boekhoff Case 113 
 
 (Result of examination of accounts. Res inter 
 alios. Evidence contHined in bill of exceptions. 
 Failure to accept. Judgr-ient.) 
 
 Sees. 69-72. 
 
 Oral evidence to vary or explain written 
 
 agreements, etc. (see Cases 46, 97-100, 
 
 114-121). 
 
 Barnes v. Packwood Case 114 
 
 (Parol evidence to vary contract in writing. Mis- 
 take.) 
 
 Thomas v. Seutt Case 115 
 
 (Parol evidence to complete an agTeement.) 
 
 Cummings v. Case Case 116 
 
 (Parol evidence in cases of fraud.) 
 
 Durkiu v. Cobleigh Case 117 
 
 (Independent collateral agreement.) 
 
 Gilbert v. McGinuis Case 118 
 
 (Evidence of custom or usage to explain a eon- 
 tract.) 
 
 Coonrod v. Madden Case 119 
 
 (Parol evidence of contents of writing collateral 
 to issue.) 
 
 Whitcomb v. Rodman Case 120 
 
 (Parol evidence to remove ambiguity in a will.) 
 
 Goode V. Riley Case 121 
 
 (Parol evidence to reform a deed.) 
 
 Part III. PRODUCTION AND 
 EFFECT OF EVIDENCE. 
 
 Sees. 70-75. 
 
 Burden of proof (see, also, Cases 6, 83, 123- 
 127, and 157). 
 
 Farmers' Loan & Trust Co. v. Siefke..Case 122 
 (Burden of proof. Facts in is,4ue. Depositions.) 
 
 People V. Downs Case 123 
 
 (Burden of proof in criminal case.) 
 
 Colorado Coal & Iron Co. v. United States 
 
 Case 124 
 (Burden o'f proof. Proving negative.) 
 
 Sees. 76-77. 
 
 Right to open and close (see Cases 126 and 
 li!7). 
 
 Lake Ontario Nat. Bank v. Judson. .Case 125 
 (Right to beiiin. Test. Burden of proof. Effect 
 of admission of fact.) 
 
 St. Louis, I. M. & S. Ry. Co. v. Taylor. . . 
 
 Case 126 
 (Right to begin. Burden of proof.) 
 
 Crabtree v. Atchison Case 127 
 
 (Eight to begin. Kstoppel. Burden of proof.) 
 
 Sees. 79-83. 
 
 Competency of witnesses (see Cases 129- 
 134). 
 
 District of Columbia v. Arms Case 128 
 
 (Insane witness. Similar aixidente to show dan- 
 gerous conditions and knowledge.) 
 
 Hughes V. Detroit, G. H. & M. Ry. Co. . . . 
 
 Case 129 
 (Children as witnesses.) 
 
 Stephens t. Bernays Case 130 
 
 (Competency in United States courts. Conflict 
 between state and federal laws.) 
 
 Sutherland v. Ross Case 131 
 
 (Competency of husband and wife.) 
 
 Bassett v. United States Case 132 
 
 (Competenc.v of wife to testify against husband. 
 Authentication of bill of exceptions.) 
 
 Rogers t. State Case 133 
 
 (Evidence of judge in trial before him. Improper 
 statements of witnesses.) 
 
 Mattox V. United States Case 134 
 
 (Jurors as witnesses, .affidavits. Dying declara- 
 tions.) 
 
 Sees. 84-85. 
 
 Privileged communications. Communi- 
 cations to public ofi&cers, state se- 
 crets, etc. (see Case 136). 
 
 Vogel T. Gruaz Case 135 
 
 (Communication to state's attorney.) 
 
 Appeal of Hartranft Case 136 
 
 (Privilege of governor to retain state secrets.) 
 
 Sees. 86-87. 
 
 Communications to attorneys (see Cases 
 138-140). 
 
 Alexander v. United States Case 137 
 
 (Statements to attorney about a critiie. ^'oting 
 exceptions. Resgestte.) 
 
 Swaim v. Humphreys Case 138 
 
 (Attorneys not compelled or allowed to testify to 
 conlidential statements. Others atements.) 
 
 In re Coleman's AVill Case 139 
 
 (Waiver by calling attorney as witness.) 
 
 Hurlburt V. Hurlburt Case 140 
 
 (Communication by attorney to two or more cli- 
 ents. Declarations against interest. Expres- 
 sion of opinion on the evidence by a judge. Ex- 
 ceptions, how made. ) 
 
 Sec. 88. 
 
 Facts tending to criminate (see Cases 142 
 and 143). 
 
 Minter v. People Case 141 
 
 (Witness not bound to criminate himself. Who 
 to determine.) 
 
 Mahanke v. Cleland Case 142 
 
 (Witness not bound to testitv to matters self- 
 criminating.) 
 
 Counselmau v. Hitchcock Case 143 
 
 (Witness not compe led to criminate himself. Re- 
 lease on habeas corpus.) 
 
 Sees. 90-95. 
 
 Corroborative evidence (see Cases 19, 145— 
 147). 
 
 State T. Peters Case 144 
 
 (Perjury.) 
 
 Deimel v. Brown Case 145 
 
 (Answer in equity, evidence of, and evidence to 
 impeach.) 
 
 Robinson v. United States Case 146 
 
 (Usage or custom. Number of witnesses.) 
 
 Whiskey Cases Case 147 
 
 (Evidence of accomplices. Contract for turning 
 state's evidence.) 
 
 Sec. 96. 
 
 Oath. 
 
 Hroneck t. People ;Case 148 
 
 Sees. 97-98. 
 Depositions (see Cases 24, 102, 122, and 150). 
 
 Blakeslee v. Dye Case 149 
 
 (Depositions.) 
 Chase v. Garretson Case 150 
 
 (Depositions.) 
 
 Sees. 99-100. 
 
 Examination of witnesses in chief (see 
 Cases 152-154). 
 
 City of Sandwich v. Dolan Case 151 
 
 (General method of conducting trial. Evidence 
 in rebuttal, etc.) 
 
TAJ3LE or CONTENTS. 
 
 Robertson v. Graver Case 152 
 
 (General method of examinin'^' witness,) 
 
 Commonwealth v. Chaney Case 153 
 
 (Leading questions lo unwillluf? witnesa.) 
 
 Oxirtis v. BracJley Case 154 
 
 Sees. 101-103. 
 
 Cross-examination (see Cases 57, 72, 77, 
 150-161, 107). 
 
 Bolian T. Borough of Avoca Case 155 
 
 (Cross-examination, range of. Evidence of acts 
 of a municipal corporation.) 
 
 Phillips T. Town of Marblehead Case 156 
 
 (Cross-examination. Qunliflcations of expert. • 
 
 Testimony to sllow value of property.) 
 
 Home Benefit Ass'u v. Sargent Case 157 
 
 (Cross-examination. Burden of proof.) 
 
 Anheuser-Busch Brewing Co. v. Hut- 
 
 macher Case 158 
 
 (Ooss-examination. Telegrams, whatis original. 
 Method of excepting.) 
 
 Chicago, M. & St. P. Ky. Co. v. Artery. . 
 
 Case 159 
 (Cross-examination to impeach. Written state- 
 ments.) 
 
 In re Snelling's Will Case 160 
 
 {Cross-examination. Expfrt. method of examin- 
 ing.) 
 
 Welch V. State Case 161 
 
 (Cross-examination. Collateral matters. Im- 
 peachment.) 
 
 See. 105. 
 Ite-esaminatiou (see Cases 30 and 163). 
 
 Aneals v. People Case 162 
 
 (Re-examination. Impeachment, foundation for. 
 Previous character. Credibility.) 
 
 Ayers v. Watson Case 163 
 
 (Re-examination, Impeachment, Former decla- 
 rations. Death of witness,) 
 
 Sees. 106-107. 
 
 Impeachment (see Cases 11, 159, 161-163, 
 165, 168-170). 
 
 Becker v, Koch Case 164 
 
 (Impeachment of one's own witness,) 
 
 Selover v. Bryant Case lUo 
 
 (Impeachment of one's own witness,) 
 
 Gertz V. Fitchburg R. Co Case 160 
 
 (Character to rebut evidence of crime,) 
 
 People V. Brooks Case 167 
 
 (Hostile witness. Cross-examination.) 
 
 Sec. 108. 
 
 Character for veracity (see Cases 169, 170). 
 
 Davis y. Commonwealth Case 168 
 
 (livideuce of character for veracity. Confession 
 of another person.) 
 
 Nelson v. State Case 169 
 
 (Impeachment. Character, how proved.) 
 
 Griflin v. State Case 170 
 
 (Impeachment. Character of witness, how prov- 
 ed.) 
 
 Sees. 109-113. 
 
 Compulsory production of evidence (see 
 Cases 172 and 173). 
 
 McQuigan v. Delaware, L. & W, R, Co. . . 
 
 Case 171 
 (Compulsory examination of person. Discovery,) 
 
 Arnold v. Pawtuxet Val. Water Co. .Case 172 
 (Production of documents. What is a docu- 
 ment. Corporation books.) 
 
 Johnson Steel Street-Rail Co. v. North 
 
 Branch Steel Co Case 173 
 
 (Subpcena duces tecum. Disclosures as to private 
 business. ) 
 
CASES REPORTED. 
 
 Pago 
 Akers v. Kirk (18 S. E. 366, 91 Ga. 
 
 590) Case 35 
 
 Alexander t. Pennsylvania Co. (30 N. E. 
 
 69, 48 Ohio St. 623) Case lOT 
 
 Alexander v. United States (11 Sup. Ct. 
 
 350, 138 U. S. 353) Case 137 
 
 Anderson t. Fetzer (44 N. W. 838, 75 Wis. 
 
 562) Case 26 
 
 Aneals v. People (25 N. E. 1022, 134 111. 
 
 401) Case 162 
 
 Anheuser-Busch Brewing Co. v. Hutmacher 
 
 (21 N. E. 626, 127 III. 652) Case 158 
 
 Applegate v. Lexington & Carter Counties 
 
 Min. Co. (G Sup. Ct. 742, 117 tJ. S. 
 
 255) Case 104 
 
 Arnold v. Pawtuxet Val. Water Co. (26 
 
 Atl. 55) Case 172 
 
 Ayers v. Watson (10 Sup. Ct. 116, 132 U. 
 
 S. 394) Case 163 
 
 Backdahl v. Grand Lodge A. O. U. ^Y. (48 
 
 N. W. 454, 46 Minn. 61) Case 55 
 
 Barnes v. Paekwood (38 Pac. 857, 10 Wash. 
 
 50) Case 114 
 
 Bassett v. United States (11 Sup. Ct. 165, 
 
 137 U. S. 496) Case 132 
 
 Becker v. Koch (10 N. E. 701, 104 N. Y. 
 
 894) Case 164 
 
 .Bell V. Brewster (10 N. E. 679, 44 Ohio St. 
 
 690) Case 21 
 
 Bevau v. Atlanta Nat. Bank (31 N. E. 679, 
 
 142 111. 302) Case 77 
 
 Blakeslee v. Dye (27 Pac. 881, 1 Colo. 
 
 App. 118) Case 149 
 
 Blaloek v. Miland (13 S. E. 551, 87 
 
 Ga. 573) Case 99 
 
 Bohan v. Borough of Ayoca (26 Atl. 604, 
 
 154 Pa. St. 404) Case 155 
 
 Bubster v. State (50 N. W. 953, 33 Neb. 
 
 66:3) Case 37 
 
 Buddress t. Schafer (41 Pac. 43) Case 4 
 
 Burton v. Tuite (45 N. W. 88, 80 Mich. 
 
 218) Case 98 
 
 Butler, In re (28 N. E. 389, 127 N. Y. 
 
 463) Case 22 
 
 Canfield v. Johnson (22 Atl. 974, 144 Pa. 
 
 St. 61) Case 78 
 
 Carey v. Reeves (26 Pac. 951, 46 Kan. 
 
 .571) Case 87 
 
 Carlisle v. Killebrew (6 South. 756, 89 Ala. 
 
 329) Case 52 
 
 Carlton v. People (37 N. E. 244, 150 111. 
 
 • 181) Case 6 
 
 Chase v. Garretson (23 Atl. 353, 54 N. .1. 
 
 Law, 42) Case 150 
 
 Chicago, M. & St. P. Ry. Co. v. Artery fll 
 
 Sup. Ot. 129, 137 U. S. 507) Case 159 
 
 City of Bloomington v. Shrock (110 111. 
 
 219) Case 73 
 
 City of New York v. Second Ave. R. Co. 
 
 (7 N. E. 905, 102 N. Y. 572) Case 59 
 
 City of Sandwich v. Dolan (42 111. App. 
 
 53) Case 151 
 
 Coleman's Will, In re (19 N. B. 71, 111 N. 
 
 Y. 220) Case 139 
 
 Colorado Coal & Iron Co. v. United States 
 
 (8 Sup. Ct. 131. 123 U. S. 317)... Case 124 
 Columbia & P. S. R. Co. v. Hawthorne (12 
 
 Sup. Ct. 591, 144 U. S. 202) Case 23 
 
 Commonwealth v. Bradford (126 Mass. 
 
 42) Case 14 
 
 Commonwealth v. Chauey (18 N. E. 572, 
 
 148 Mass. 8) Case 153 
 
 WILGUS.BV. (ix) 
 
 Paga 
 
 83 
 
 86 
 
 46 
 
 3 
 
 Commonwealth v. Dunlop (16 S. E. 273, 89 
 
 Va. 431) Case 
 
 Commonwealth v. King (22 N. E. 905, 150 
 
 Mass. 221) Case 
 
 Commonwealth v. O'Brien (25 N. E. 8'Ai, 
 
 152 Mass. 495) Case 
 
 Commonwealth v. Robinson (16 N. E. 452, 
 
 146 Mass. 571) Case 
 
 Commonwealth v. Russell (30 N. E. 763, 
 
 156 Mass. 196) Case 18 
 
 Commonwealth v. Trefethen (31 N. E. 961, 
 
 157 Blass. 180) Case 15 
 
 Connecticut Mut. Life Ins. Co. v. Lathrop 
 
 (4 Sup. Ct. 533, 111 U. S. 612) Case 70 
 
 Continental Ins. Co. of City of New York 
 V. Insurance Co. of Pennsylvania (2 C. C. 
 
 A. 535, 51 Fed. 884) Case 19 
 
 Coourod V. Madden (25 N. E. 1102, 126 
 
 Ind. 197) Case 119 
 
 Cormac v. Western White Bronze Co. (41 
 
 N. W. 480, 77 Iowa, 32) Case 61 
 
 Cornett v. Williams (20 AVall. 226) . . . Case 112 
 'Counselman v. Hitchcock (12 Sup. Ct. 195, 
 
 142 U. S. 547) Case 143 
 
 Crabtree v. Atchison (20 S. W. 260, 93 Ky. 
 
 338) Case 127 
 
 Cross V. Armstrong (10 N. E. 160, 44 Ohio 
 
 St. 613) Case 51 
 
 Cummings v. Case (18 Atl. 972, 52 N. J. 
 
 Law, 77) Case 116 
 
 Curtis V. Bradley (31 Atl. 591, 65 Conn. 
 
 99) Case 154 
 
 Davis V. Commonwealth (23 S. W. 585, 95 
 
 Ky. 19) Case 168 
 
 Deimel v. Brown (27 N. E. 44, 136 111. 
 
 586) Case 145 
 
 District of Columbia v. Armes (2 Sup. Ct. 
 
 840, 107 U. S. 519) Case 12S 
 
 Downing v. Diaz (16 S. W. 49, 80 Tex. 
 
 430) Case 41 
 
 Durkiu v. Cobleigh (30 N. B. 474, 156 
 
 Mass. 108) Case 117 
 
 Ellis v. Harris (11 S. E. 248, 106 N. C. 
 395) Case 63 
 
 Farmers' Loan & Trust Co. v. Siefke (39 N. 
 
 B. 358, 144 N. Y. a54) Case 122 
 
 Ferrari v. Murray (25 N. E. 970, 152 Mass. 
 
 496) Case T 
 
 Ferris v. Hard (32 N. E. 129. 135 N. Y. 
 
 354) Case 90 
 
 Findlay Brewing Co. v. Bauer (35 N. E. 55, 
 
 50 Ohio St. 560) Case S 
 
 Fletcher v. Fuller (7 Sup. Ct. 667, 120 U. 
 
 S. 534) Case 95 
 
 Ford V. Cunningham (25 Pac. 403, 87 Cal. 
 
 209) Case 111 
 
 Franklin County v. German Sav. Bank (12 
 
 Sup. Ct. 147, 142 U. S. 93) Case 48 
 
 Freeman v. Alderson (7 Sup. Ct. 165, 119 
 
 ■ U. S. 185) Case 50 
 
 Pulkerson v. Holmes (6 Sup. Ct. 780, 117 U. 
 
 S. 389) Case 67 
 
 Gady v. State (3 South. 429, 83 Ala. 
 
 51) (Jase 79 
 
 Garrett v. Hanshue (42 N. E. 256) Case 103 
 
 Gertz T. Fitchburg R. Co. (137 Mass. 
 
 77) Case 166 
 
 Gilbert v. McGinnis (28 N. E. 382, 114 111. 
 
 28) Case 118 
 
 Gilmer v. Morris (46 Fed. 333) Case 49^ 
 
CASES REPORTED. 
 
 Glenn v. Orr (2 S. E. 538, 96 N. 0. 
 
 413) Case 44 
 
 Gooili. T. Rilev (2S N. E. 22S, l.;,3 Mass. 
 
 •"iS.-,) Case 121 
 
 Goodrich v. Weston (102 Mass. 362). ..Case 110 
 Griffin v. State (9 S. W. 459, 26 tex. App. 
 
 157) Case 170 
 
 Hanley t. Donoghue (6 Sup. Ct. 242, 116 
 
 V. S. 1) Case 80 
 
 Hartranft, Appeal of (Sr, Pa. St. 433).. Case 136 
 Hills V. Lndwig (24 X. E. 596. 46 Ohio 
 
 St. 373) Case 30 
 
 Hilton T. Bender (6f) X. Y. 75) Case 93 
 
 Home Benefit Ass'n v. Sargent (12 Sup. 
 
 Ct. 332, 142 V. S. 691) Case 157 
 
 Hopt T. People of tbe Territory of Utah (4 
 
 Sup. Ct. 202, 110 U. S. 574) Case 36 
 
 Howard v. Glenn (11 S. E. 610) Case 45 
 
 Hroneck v. People (24 N. E. 861, 134 111. 
 
 139) Case 148 
 
 Hughes T. Detroit, G. H. & M. Ry. Co. (31 
 
 N. W. 603. 65 Mich. 10) Case 129 
 
 Hurlburt y. Hurlburt (28 N. E. 651, 12S N. 
 
 Y. 420) Case 140 
 
 Idaho Forwarding Co. y. Fireman's Fund 
 Ins. Co. (29 Pao. 821;, 8 Utah, 41) . . .Case 32 
 
 Isley y. Boon (13 S. E. 795, 109 N. C. 
 555) Case 109 
 
 Jensen y. McCorkell (20 Atl. 366, 154 Pa. 
 
 St. 323) Case 16 
 
 Johnson y. Russell (11 N. E. 670, 144 Mass. 
 
 409) Case 91 
 
 Johnson Steel Street-Kail Co. y. North 
 
 Branch Steel Co. (48 Fed. 191) Case 173 
 
 Kansas City, M. & B. R. Co. y. Smith (8 
 South. 43, 90 Ala. 2.-|) Case 43 
 
 Lalce Ontario Nat. Bank y. Judson (25 N. 
 
 E. 367. 122 N. Y. 278) Case 125 
 
 Lake Shore & M. S. Ry. Co. v. Herrick (29 
 
 N. E. 1052, 49 Ohio St. 25) Case 12 
 
 Leeser y. Boekhoff (38 Mo. App. 445)..Case 113 
 Lloyd y. Matthews (15 Sup. Ct. 70, 155 
 
 U. S. 222) :Case 81 
 
 Loirisyille. N. A. & C. R. Co. v. Wood (14 
 
 N. E. 572. 113 lud. 544) Case 72 
 
 Lo^^•e v. State (7 South. 97, 88 Ala. 8) . .Case 38 
 
 McKillop T. Duluth St. Ry. Co. (55 N. W. 
 
 739, 63 Jlinn. 532) Case 69 
 
 McLeod y. Swain (13 S. E. 315, 87 Ga. 
 
 156) Case 29 
 
 McQuigan y. Delaware, L. & W. R. Co. (29 
 
 N. E. 235, 129 N. Y. 50) Case 171 
 
 Mahauke y. Cleland (41 N. W. 53, 76 Iowa, 
 
 401) Case 142 
 
 Mattox y. United States (13 Sup. Ct. 50, 
 
 146 V. S. 140) Case 134 
 
 Miller v. City of Indianapolis (24 N. E. 22S. 
 
 123 Ind. 196) Case 97 
 
 Minter t. People (29 N. E. 45, 139 111. 
 
 363) : Case 141 
 
 Nashua & L. R. Corp. y. Boston & L. R. 
 
 Corp. (10 Sup. Ct. 1004, 136 U. S. 
 
 356) Catu- 96 
 
 Needham r. Thayer (18 N. E. 42!), 147 
 
 Mass. 536) Case 53 
 
 Nelson v. State (13 South. 361, 32 Fla. 
 
 244) Case 169 
 
 Neshit y. Independent District of Riverside 
 
 (12 Sup. Ct. 746, 144 U. S. 610) Case 47 
 
 New England Monument Co. y. Johnson (22 
 
 Atl. 974, 144 Pa. St. 61) Case 78 
 
 Nickerson y. Gould (20 At!. 86, 82 Me. 
 
 512) Case 2 
 
 Xitclie y. Earle (19 X. B. 749, 117 Ind. 
 
 270) Case 105 
 
 Xoifolk & W. R. Co. v. Hooyer (20 Atl. 994, 
 
 79 Md. 2.-,3) Case 25 
 
 O'Brien v. Frasier (1 Atl. 4(j."3, 47 X. J. 
 Law, 349) Case 54 
 
 Ohio & M. Ry. Co. T. Stein (31 N. E. 180, 
 32 N. E. 8:il, 133 Ind. 243) Case 
 
 Oskamp y. Gadsden (52 X. W. 718, 35 Neb. 
 7) Case 
 
 Oyer y. Schiffling (26 N. E. 91, 102 Ind. 
 191) Case 
 
 People y. Brooks (30 N. E. 189, 131 N. 
 
 Y. 321) Case 
 
 People T. Chapleau (24 N. E. 469, 121 N. 
 
 Y. 266) Case 
 
 People v. Downs (25 N. E. 988, 123 X. Y. 
 
 5.58) Case 
 
 People y. McElyaine (24 X. E. 465, 121 X. 
 
 Y. 2.50) Case 
 
 People T. Wood (30 N. E. 243, 131 X. Y. 
 
 017) C:ise 
 
 Phillips V. Town of :\Iarblehead (19 X. E. 
 
 •547, 148 Mass. 320) ( 'ase 
 
 Pickens y. Dayis (134 Mass. 2-52 ).... Case 
 Pierce y. Indseth (1 Sup. Ct. 418, 106 U. 
 
 S. .-i46) Case 
 
 Pinnev v. Jones (30 Atl. 762, 64 Conn. 
 
 Pags 
 11 
 27 
 33 
 
 167 
 
 40 
 
 123 
 
 545) 
 
 . Ca se 
 
 Pratt y. White (1.32 Mass. 477) Case 
 
 Proctor y. Old Colony li. Co. (28 X. E. 1.".. 
 154 Mass. 251) Ca.se 
 
 Richmond & D. R. Co. y. Jones (9 South. 
 
 276, 92 Ala. 218) Case 
 
 Robertson v. Crayer (55 N. W. 492, 88 
 
 Iowa, 381) Case 
 
 Robinson y. United States (13 Wall. 
 
 363) '. Case 
 
 Robinson Consolidated Min. Co. y. Johnson 
 
 (22 Pac. 4.59, 13 Colo. 25S) Case 
 
 Rogers y. State (29 S. W. 894, 60 Ark. 
 
 76) Case 
 
 St. Louis, I. M. & S. Ry. Co. y. Taylor (20 
 
 S. W. 1083, 57 Ark. "ISO Case 
 
 Seloyer y. Bryant (56 N. W. 58, 54 Minn. 
 
 434) Case 
 
 Seville y. State (30 X. E. 021, 49 Ohio St. 
 
 117) Case 
 
 Sitler V. Gehr (105 Pa. St. 577) Case 
 
 Slocovich y. Orient Mut. Ins. Co. (14 N. E. 
 
 80-2. 108 N. Y. .50) Case 
 
 Smith y. Boyer (45 N. "\A'. 265, 29 Neb. 
 
 : 7(i) Case 
 
 i Snrth V. Rentz (30 X. E. 54, 131 N. Y. 
 
 169) Case 
 
 Smith v. Satterlee (29 X. E. 225, 130 X. 
 
 Y. 677) Case 
 
 Snelling's Will, In re (32 N. E. 1006, 136 
 
 N. Y. 515) Case 
 
 Southern Kan. Ry. Co. v. Robbins (23 Pac. 
 
 113, 43 Kau. 14.5) Case 
 
 State y. Boyd (51 N. W. 964, 34 Neb, 
 
 43"" 
 
 1.50 
 64 
 
 84 
 
 9 
 62 
 
 28 
 
 101 
 152 
 146 
 5 
 133 
 
 126 
 
 165 
 
 13 
 66 
 
 74 
 
 31 
 
 60 
 
 34 
 
 160 
 
 24 
 
 5) 
 
 Case 82 
 
 State V. Clifford (53 N. W. 299, 86 Iowa. 
 
 550) Casr 
 
 State V. Kindle (24 N. E. 485, 47 Ohio St. 
 
 358) Case 
 
 State V. Minton (22 S. W. 808, 116 Mo. 
 
 605) C;ise 
 
 State y. Peters (12 S. E. 74, 107 X. C, 
 
 876) Case 
 
 State V. Reed (37 Pac. 174, 53 Kan. 
 
 'i'Oi) Case 
 
 Stebbins y. Duncan (2 Sup. Ct. 313, 108 
 
 U. S. 32) :case 
 
 Steinbrunner y. Pittsburg ife AV. R. Co. (23 
 
 Atl. 239, 146 Pa. St. 504) Case 
 
 Stephens y. Bernays (42 Fed. 488). .. .Case 
 Sullivan v. State (6 Tex. App. 319) . . . Case 
 Sutherland v. Ross (21 Atl. 354, 140 Pa. St. 
 
 37f" 
 
 39 
 58 
 17 
 
 144 
 57 
 
 102 
 
 42 
 
 130 
 
 56 
 
 79) 
 
 .C: 
 
 Swaim y. Humphreys (42 111. App. 370). .Case 
 Swales y. Grubbs (25 N. E. 877, 126 Ind. 
 106) Case 
 
 Thomas y. Scutt (27 N. E. 961, 127 N. Y. 
 
 133) Case 
 
 Thompson, In re ('28 X. E. 38;), 127 N. 
 
 Y. 463) Case 
 
 131 
 
 138 
 
 89 
 
 115 
 
CASES REPORTED. 
 
 Page 
 Ulrich V. Ulrich (32 N. B. 606, 136 N. Y. 
 
 120) Case 92 
 
 United States v. Bell (4 Sup. Ct. 498, 111 
 
 U. S. 477) Case lOG 
 
 United States v. Fifty Barrels of Dislilli'd 
 
 Spirits (09 "U. S. 594) ' Oiso 147 
 
 United States v. Ford (!»9 U. S. 594). .Clasp 147 
 United States v. Four Hundred Barrels of 
 
 Distilled Spirits (99 U. S. 594) Case 147 
 
 United Sta,tes v. Four Hvmdred Packages 
 
 of Distilled Spirits (99 U. S. 594).. Case 147 
 United States v. One Hundred and li'ifty 
 
 Barrels of Whisky (99 U. S. 594). .Case 147 
 United States v. One Still (99 U. S. 
 
 594) Case 147 
 
 United States v. Ross (92 U. S. 281). .Case 94 
 United States v. Three Hundred and Nine- 
 teen Barrels of Whisky (99 U. S. 
 
 594) f Case 147 
 
 Vieksburg & M. R. Co. v. O'Brien (7 Sup. 
 
 Ct. 118, 119 U. S. 99) Case 10 
 
 Vogel T. Gruaz (4 Sup. Ct. 12, 110 U. S. 
 
 311) Case 135 
 
 Page 
 Wallace v. Kennelly (4T N. J. Law, 
 
 242) Case 20 
 
 Weaver v. Shipley (27 X. E. 146, 127 Ind. 
 
 526) Case 100 
 
 Welch y. State (3 Jv. 10. 850, 104 Ind. 
 
 :!47) Case 161 
 
 Wetzler v. Kelly (3 South. 747, 83 Ala. 
 
 440) i';,s„ 88 
 
 WliisUv Cases (99 U. S. r,'M) Cise 147 
 
 Whitcomb t. Rodman (4ll X. E. .'i5:!, 1.56 
 
 111. 116) Case 120 
 
 Wight Fire-Proofing Co. v. I'oczekai (22 N. 
 
 E. 54;;, 13U 111. 139) Case 68 
 
 Williams v, Spencer (23 N. B. 105, 150 
 
 Mass. 346) Case 71 
 
 Wilson V. Van Leer (17 Atl. 1097, 127 Pa. 
 
 St. 371) Case 76 
 
 Wiseman v. Northern Pac. It. Co. (20 Pac. 
 
 272, 20'Or. 425) '. . .Case 108 
 
 Wood River Bank v. Dodge (55 N. W. 234, 
 
 36 Neb. 708) Case 1 
 
 Young V. Kansas City, Ft. S. & M. R. Co. 
 (39 Mo. App. 52) Case 65 
 
 t 
 
ILLUSTRATIVE CASES 
 
 ON THE 
 
 LAW OF EVIDENCE. 
 
 (D* 
 
DECISIONS TO BE BASED ON EVIDENCE. 
 
 [Case No. 1 
 
 WOOD RIVER BANK v. DODGE et al. 
 
 (55 N. W. 234, 36 Neb. 708.) 
 Supreme Court of Nebraska. April 26, 1893. 
 
 Error to district court, HaU county; Harri- 
 son, Judge. 
 
 Action by tlie Wood River Bank againsi 
 Freeman C. Dodge and George F. Dodge. 
 Defendants had judgment, and plaintiff 
 brings error. Reversed. 
 
 James H. WooUey and Thompson Bros., 
 for plaintifC in error. Thummel & Piatt, lor 
 defendants in error. 
 
 MAXWELL, O. J. The plaintiff brought 
 an action against the defendants to recover 
 the sum of $1,884.25, with interest. To the 
 petition the defendants filed an answer, as 
 follows: "Comes now the above defendants, 
 and for answer to the petition of plaintiff 
 say that they formed a limited partnership 
 in the transaction of purchasing and selling 
 hogs, and conducted said business in the 
 name of Dodge Bros.; that they kept the 
 account with the said plaintiff in all the 
 transactions done, and banked with this 
 plaintiff as Dodge Bros, for this business; 
 that Freeman 0. Dodge had a personal ac- 
 count with said bank, so did the said George 
 F. iJodge, for their own personal transac- 
 tion of business which had no connection 
 whatever with the said Dodge Bros, busi- 
 ness; that these defendants made all de- 
 posits done under the business in the name 
 of Dodge Bros., and drew on the said plain- 
 tiff all the checks on the said plaintiff bank 
 in the name of Dodge Bros, and none other; 
 that George F. Dodge did all the business 
 transactions for the said firm, and deposited 
 all the funds for the sale of the property, 
 and drew all the checks and money from 
 the plaintiff in the name of Dodge Bros., 
 and none other; that these defendants admit 
 they drew from the said plaintiff the said 
 sum of $21,993.21, and no more; they also 
 admit they deposited the sum of $20,108.20 
 as credited to them in the petition, and also 
 claim the fact to be that they paid or depos- 
 ited the additional sum of $7,832.47 to the 
 said plaintiff , which the said plaintiff has neg- 
 lected and refused to give them credit for 
 as follows: On or about Jime 30, 1887, the 
 United States National Bank deposited or 
 paid to the plaintiff, to be placed to the 
 credit of Dodge Bros., the sum of $5,812.89; 
 that on the 18th day of July, 1887, the said 
 Dodge Bros, deposited or paid into plaintiff 
 bank, to be credited to the said Dodge 
 Bros., the sum of $0)00; on September 5th, 
 $789.23; and September 9th, $629.65; that 
 the said defendants are not indebted to said 
 plaintiff in any sum whatever, but that the 
 plaintiff was Indebted at the commencement 
 of this action on the said account the sum of 
 $5,812.89, which sum the defendants claim 
 justly due and wholly unpaid. Therefore 
 pray judgment against said plaintiff in the 
 • said sum of $5,812.89, over and above all 
 claims so as aforesaid mentioned in plain- 
 
 tiff's petition, with Interest thereon at 7 
 per cent, per annum from the 18th day of 
 January, 1888, and costs." The plaintiff filed 
 the following reply: "Now comes the above- 
 naraetl plaintiff, and for reply states: That 
 it denies that the said defendants or either 
 of them are entitled to the credit of $7,012.89, 
 the same being the $5,812.89 and $1,200 men- 
 tioned in said defendants' answer, or any 
 otlier or different amount than as mentioned 
 in the said plaintiff's petition, or that the saiil 
 plaintiff received the said amounts, or cither 
 of them, except in said petition mentioned 
 and herein stated; and as further reply 
 states that the $5,812.89 was received by 
 the said plaintiff in draft In favor of said 
 Dodge Bros, at the time in said answer men- 
 tioned, but that the same was claimed by 
 the said Freeman C. Dodge to be his prop- 
 erty, or mostly so, and the said Freeman C. 
 Dodge then and there ordered the same 
 placed to his credit on his individual ac- 
 count with the said bank, which the Said bank 
 then and thei-e did; that the same was done 
 by and with the knowledge and consent of 
 the said George F. Dodge, and was after- 
 wards by Mm ratified and adopted with the 
 full knowledge of all of the foregoing facts; 
 that the plaintiff has since the said time 
 made and effected a settlement with the 
 said Freeman C. Dodge, and by and with 
 the consent of the said George F. Dodge 
 allowed and given the said Freeman C. Dodge 
 entire and full credit for the said sum of 
 $5,812.89, and that neither of said defendants 
 are entitled to tho siiid credit of the said 
 amoimt ou the account sued on in this case; 
 that as to the fact as to whether or not the 
 said defendants are partners, or were at the 
 time the said account was made and busi- 
 ness transacted, this plaintiff has neither 
 knowledge nor Information sufficient to form 
 a beUef, and therefore denies the same, and 
 puts said defendants upon their proof. 
 AVherefore the said plaintiff demands judg- 
 ment against the said defendants as in its 
 petition prayed." On the trial of the cause 
 the juiy returned a verdict for the defend- 
 ants for the sum of $4,719.71, upon which 
 judgment was rendered. 
 
 Two errors are relied upon for a reversal 
 of the judgment— First, that the verdict is 
 against the weight of evidence; and, sec- 
 ond, misconduct of certain jurors. 
 
 The testimony is imdisputed that about the 
 first of July, 1887, a large number of hogs 
 were shipped in the name of Dodge Bros, 
 to South Omaha; that the amount realized 
 from these hogs was $5,812.89, which was 
 placed to tlie credit of the Wood River 
 Bank in the United States National Bank of 
 Omaha. Up to tliis point there is no dispute. 
 It is claimed on behalf of plaintiff that the 
 hpgs in question were the property of FxTe- 
 n;an C. Dodge, and paid for by him out of 
 money obtained from the plaintiff, and that 
 he directed the plaintiff' to place the same to 
 ihe credit of his individual account, wliich 
 was done. This is denied by the defend- 
 
 3 
 
Case No. 1] 
 
 DECISIONS TO BE BASED OX EVIDENCE. 
 
 ants. Botli of the defendants testify tliat 
 the money was deposited to the credit of 
 Bodge Bros., and not to the credit of Free- 
 man. All the offlcoi's of the banlv, some of 
 whom appear to be disinterested, testify that 
 the credit was given to Freeman. We also find 
 that in the bank book of George Dodge with 
 the plaintiff, which is here in the record, 
 these hogs were not credited to Dodge Bros. 
 The officers of the bank testify that this 
 book was delivered to George Dodge a few 
 weeks after the transaction; that he re- 
 turned, and stated that he and his wife had 
 looked over it, and found it correct, except 
 an item of $20. George denies receiving the 
 book until about the month of January after 
 the transaction. He, in effect, admits the 
 $20 mistake. The mode of doing business 
 with the bank seems to have been as fol- 
 lows: When a shipment of hogs was about 
 to be made, the defendants would receive 
 credit for the supposed value of the hogs, 
 and were permitted to check the same out. 
 It appears that about the 5th of September 
 of that year Dodge Bros, made or were 
 about to make a shipment of hogs to South 
 Omaha, and received credit at the bank 
 for $600, a dupUcate deposit slip being 
 made. It is claimed by the plaintiff that on 
 the same day a second dupUcate deposit for 
 $600 was made. The defendant George 
 Dodge testifies, in effect, that this was a 
 second deposit, and that it was received 
 from a second shipment of hogs. On the 
 other hand, the cashier testifies that original 
 credit was given in the morning, and the 
 duplicate sUp given to the defendant; 
 that in the afternoon he came into the bank, 
 and stated that he had not received a dupli- 
 cate in the morning, and that thereupon the 
 cashier issued a second duplicate shp for 
 $600, and wrote the abbreviated word 
 "dupl." instead of "triplicate" on it. The 
 agent of the railway company at Wood 
 River was called, and stated in substance 
 that a record was kept in his office of all 
 shipments made from there, and but one 
 tar of hogs was shipped by Dodge Bros, at 
 the time stated, and he ui effect corrobo- 
 rates the testimony of the cashier. It Is 
 very evident, therefore, that Dodge is mis- 
 taken in his testimony, and that the cashier's 
 testimonj' on that point is correct, and the 
 verdict is against the weight of evidence. 
 
 2. The affidavit of one of the jurors was 
 filed in support of one of the grounds of the 
 motion for a new trial for the misconduct 
 of certain jurors. It is as follows: "P. F. 
 JlcCullough, being first duly sworn, deposes 
 and says that he was a member of the jury 
 to whom the above case was tried on Febr. 
 15th, 1890; that during the discussion of the 
 case in the jury room the question came up 
 us to whetlier Freeman C. Dodge did autlior- 
 ize the Wood River Bank to place the said 
 $5,812.89 to his own individual credit, when 
 Jlr. HoUister and Hockenberger both 
 swore he did so authorize, and F. 0. Dodge 
 swore he was not in Wood River, Neb., on 
 
 July 2nd, 1887, the date of said credit, but 
 was m Omaha, Neb.: that many of the ju- 
 ry were in doubt as to who was mistaken on 
 this point, and so expressed themselves; that 
 thereupon one C. C. Robinson, a member of 
 said juiy, stated that he knew Mr. Hollister 
 and Mr. Hockenberger were mistaken as to 
 that point, for he was in Omaha, Neb., and 
 saw the said Freeman G. Dodge there himself 
 on July 2, 1887, and he could not have been 
 present in Wood River, Neb., on that day 
 and ordered said credit; that many of said 
 jury, and especially this affiant, having con- 
 fidence in and relying upon the statement 
 of said 0. C. Robinson, became satisfied that 
 said HoUister and Hockenberger were mis- 
 taken on this point, and so may be mistaken 
 on other points, and thereupon he changed tiis 
 vote from the plaintiff's favor to and for a 
 verdict for this defendant." There is also 
 an affidavit of W. H. Thompson to the same 
 effect. There is also an affidavit of J. H. 
 WooUey that the jury were sent out Satur- 
 day evening; that a number of them resid- 
 ed in the western part of the county, and 
 were very anxious to return home; that they 
 inquired of the baiUff the time when the 
 last train would be due going west, and 
 having ascertained the time the verdict was 
 returned before that hour, and presumably 
 without proper deliberation. The counter 
 affidavit of Robinson is in the record as fol- 
 lows: "Chan C. Robinson, being sworn, de- 
 poses and says that he was one of the panel 
 
 : in the case of the Wood River Bank of Ne- 
 braska against Freeman Q. Dodge and 
 George F. Dodge, which case was tried and 
 submitted to the jury on the 15th day ol 
 February, 1890; that affiant has heard read 
 the affidavit of P. F. McCuUough filed in and 
 attached to the motion in this case for a 
 new trial; that the matter in said affidavit,, 
 wherein said McCuUough swore that this 
 affiant said in the jury room while deliber- 
 ating on their verdict that he. Freeman 0. 
 Dodge, could not have been at Wood River 
 on the 2d day of JiUy, as he, Chan Robin- 
 son, saw liim in Omaha on that day, is whol- 
 
 i ly without foundation, and untrue; that tiiis 
 
 ; affiant did not say he saw said Dodge on the 
 2d day of July as aforesaid la Omalia; all 
 affiant did say on this subject in the delib- 
 eration of said jury was whoUy in regard ta 
 the evidence introduced on the trial. Affiant 
 further says that the jury and each of them, 
 
 , so far as he knows and was informed, tried 
 all honest means to impress others diffiTiiig 
 with them as to their views in the evidence 
 and the instructions of the court; that aft- 
 er deliberating several hours on the matter 
 they finally agreed upon their verdict 
 brought into court and affiant did not in 
 .-y way attempt .(except by argument) to 
 convince others differing with him as to 
 wliat he thought was right on the evidence 
 ill the case." It will be observed that Mr. 
 Robinson does not make a full, unequivocal 
 denial of the charge against him. The affi- 
 davit, la fact, is a skillful evasion of the 
 
 (f 
 
DECISIONS TO BE BASED ON EVIDENCE. 
 
 [Case No. 1 
 
 matter in Issue. His statement that what 
 he said was wholly in relation to the evi-l 
 dence in the case, and that he did not in any 
 way attempt, except hy ai-gument, to convince 
 otlxers differing from him, falls far short of a 
 denial of the charges. In Eichards t. State, 
 (Neb.) 53 N. W. Kep. 1028, it was held that 
 a juror wUl not be permitted to state to his 
 fellow jurors, while they are conssidc^i-mg 
 their verdict, facts in the case withlu Jiia 
 own personal knowledge. He should maka 
 the same known during the trial, and testi- 
 
 fy as a witness in the case. It is for the 
 court to say what evidence is admissible in 
 a case, and the adverse party may desire 
 to cross-examine him. In any event, It is 
 his duty to be governed by the evidence in- 
 troduced on the trial, and the instructions 
 of the court Otherwise, in case of an er- 
 roneous verdict, it would be impossible to 
 review the same. The judgment of the dis- 
 trict court is reversed, and the cause re- 
 manded for fm-ther proceedings. The othet 
 judges concur. 
 
 6 
 
Case No. 2] 
 
 RELEVAKCT. 
 
 NICKBRSON T. GOULD. 
 
 (20 Atl. 86, 82 Me. 512.) 
 
 Supreme Judicial Court of Maine. April 3, 
 1890. 
 
 Exceptions from supreme judicial court, 
 Somerset county. 
 
 Walton & Walton, for plaintiff. D. D. 
 Stewart, for defendant. 
 
 FOSTER, J. Action to recover upon a 
 promissory note for $500, dated February 
 9, 187(5, payable on demand to E. B. Nick- 
 erson or bearer. 
 
 Tbe defense was that the note was a 
 forgery; that the defendant never signed 
 it, and never had any dealings with the 
 alleged payee out of which this note grew 
 or could grow ; that he never received any 
 money or any property of any kind from 
 him, except possibly a harness, and that 
 was allowed on rent due the defendant. 
 
 The plaintiff, son of E. B. Nickerson, tes- 
 tified that he acquired title to the note in 
 the fall of 1887. 
 
 The exceptions show that much evidence 
 was introduced by both parties tending 
 to show the transactions and the nature 
 of them between E. B. Nickerson and the 
 defendant in the years 187.^ and 1876, as 
 bearing upon the probability or improb- 
 ability of the defendant having given the 
 note in suit. 
 
 It was claimed on the part of the plain- 
 tiff that the note in suit was given to take 
 up a $300 note and interest, and a balance 
 in cash at the time sufficient to make up 
 the sum for which the note was given; 
 and that the .$300 note was made up of 
 $40 loaned defendant to pay for a mowing- 
 machine, $.50 cash loaned at another time, 
 and a sufficient amount at the time the 
 note was given to make up the $300. 
 
 It appeared in evidence that in thelatter 
 part of May, 1888, in response to a letter, 
 E. B. Nickerson went to the defendant's 
 house, and there he and the defendant 
 talked over the matter of the note; that 
 at that interview, as the defendant and 
 his wife testified, the defendant said he did 
 not remember of ever having a dollar of 
 him in his lite; that Nickerson then asked 
 the defendant if he did not remember of 
 his paying him a note of $200 at the Rus- 
 sell House, to which the defendant replied 
 that he never did ; that Nickerson then 
 said to the defendant: "Don't you re- 
 member my paying Henry Sawyer fifteen 
 dollars for you ? " And to this the defend- 
 ant replied: "No, sir; I don't remember it, 
 and you never did. " 
 
 The defendant then called the said Henry 
 Sawyer as a witness, and asked him if 
 Nickerson at any time paid to him $15 for 
 the defendant. This item did not consti- 
 tute any part of the consideration of the 
 note in controversy. 
 
 To this imiuiry, and the answer thereto, 
 the plaintiff's counsel objected, and the 
 court excluded the answer. 
 
 The defendant then offered to show by 
 the same witness that Nickerson never 
 paid him the .fl5 for the defendant, and, 
 objection being interposed by the counsel 
 forthe plaintiff, the court excluded the evi- 
 dence. 
 6 
 
 To this ruling, excluding the answer and 
 the evidence offered, the defendant duly 
 
 GXCGt)tGd. 
 
 After the evidence had been offered and 
 excluded, the plaintiff called E. B. Nicker- 
 son, and he testified in relation to the in- 
 terview at the defendant's house substan- 
 tially as related by the defendant and his 
 wife; but the defendant did not thereafter 
 recall the witness Sawyer, nor again offer 
 his testimony. 
 
 If the only bearing of the evidence offered 
 was to prove a collateral fact, it was not 
 relevant, and was properly excluded. The 
 question is whether it \Yas relevant or not. 
 Collateral facts are not admis.sible. The 
 evidence must be relevant to the issue; 
 that is, to the facts put in controversy by 
 the pleadings. This rule prohibits thetrial 
 of collateral issues,— of facts not put in is- 
 sue by the pleadings,— and excludes evi- 
 dence of such as are incapable of affording 
 any reasonable presumption or inference 
 as to the principal fact or matter in dis- 
 pute. It is oftentimes difficult to decide 
 what is and what is not relevant. It de- 
 pends somewhat upon the nature of the 
 issue involved. The relevancy of evidence 
 of other facts, as bearing upon the prob- 
 ability or non-probability of the main fact 
 in issue, has been one of the most trouble- 
 some questions for the courts to decide. 
 
 "Relevancy, "as defined by the text-writ- 
 ers upon evidence, "is that which conduces 
 to the proof of a pertinent hypothesis; a 
 pertinent hypothesis being one which, if, 
 sustained, would logically influence the is- 
 sue. * * » If the h.vpothesis set upfor the 
 defense is forgery, then all facts which are 
 conditions of forgery are relevant. A 
 party, for instance, sued on a bill sets up 
 forgery. To meet this hypothesis, it is 
 admissible for the plaintiff to prove that 
 the defendant, at the time of the making 
 of the bill, was trying to borrow money. 
 * * * Hence it is relevant to put in evi- 
 dence any circumstance which tends 'to 
 make the proposition at issue either more 
 or less improbable," (1 Whart. Ev, §§20, 
 21 ;1 and in accordance with this principle 
 it was held by this court, in Trull v. True, 
 33 Me. 367, that " testimony cannot be ex- 
 cluded as irrelevant which would have a 
 tendency, however remote, to establish 
 the probability or improbability of the 
 fact in controversy. " Tucker v. Peaslee, 
 36 N. H. 167, 168. So in Huntsman v. Nich- 
 ols, 116 Mass 521, where it was held that, 
 although the authenticity of tlie note in 
 suit was the only issue, yet the business 
 transactions between theparties hadsome 
 bearing upon the probability of the in- 
 dorsement having actually been made by 
 the defendant, and were therefore admissi- 
 ble in evidence. This same principle is es- 
 tablished in Eaton v. Telegraph Co., 6S 
 Me. 63, 67 ; State v. McAllister, 24 Me. 139; 
 State V. Witham, 72 Me. 581, 537; Marcy v. 
 Barnes, 16 Gray, 161. Accordingly, where 
 the issue is whether a certain contract was 
 made between the parties, and the evi- 
 dence is conflicting as to what the con- 
 tract was, it has been held competent for 
 the defendant to show the value or char- 
 acter of the property which he was to re- 
 ceive, as compared with that in the con- 
 tract claimed by the plaintiff, as tending 
 to show the improbability of the defend- 
 
RELEVANCY. 
 
 [Case No. 2 
 
 ant having made the contract as alleged 
 by the plaintiff. Upton v. "Winchester, 106 
 Mass. 330 ; Norria v. Spofford, 127 Mass. 
 85; Bradbury v. Dwight, 3 Mete. 31; Par- 
 ker V. Coburn, 10 Allen, 82. 
 
 Moreover, in cases where knowledge or 
 intent of the party was a material fact, 
 evidence of other facte happening before 
 or after the transactions in issue has 
 been received in evidence, although they 
 had no direct or apparent connection with 
 it. Such facts, if they tend to establish 
 knowledge or intent, when that is mate- 
 rial, although apparently collateral and 
 foreign to the main issue, nevertheless 
 have a direct bearing, and are admissible. 
 Thus in Cook v. Moore, 11 Cush. 213, 216, 
 BiGEi.ow, .!., says : " Whenever the intent 
 of a party forms part of the matter in is- 
 sue upon the pleadings, evidence may be 
 given of other acts not in issue, provided 
 they tend to establish the intent of the 
 party in doing the acts in question. " And 
 see Nichols v. Baker, 75 Me. 334; Jordan v. 
 Osgood, 109 Mass. 457; 1 Greenl. Ev. § 53; 
 1 Whart. Ev. §§ 30-33. 
 
 Applying these principles to the question 
 before us, we think the evidence offered 
 was admissible. 
 
 The pleadings denied the genuineness of 
 the note, and all dealings with the alleged 
 payee out of which the note could grow, 
 or the receipt of any money from him. 
 True, the central point of the issue was 
 whether or not the note was a forgery. 
 Around this revolved other facts, intro- 
 duced by both parties, bearing on the 
 probability or improbability of the defend- 
 ant having signed the note in suit. 
 
 Such evidencewas admissible as tending 
 
 to lead the mind of the jury to a correct 
 conclusion upon the real issue presented. 
 The dealings of the parties, both prior and 
 subsequent to the date of the note, be- 
 came a proper subject of inquiry in this 
 connection. The defendant denied that he 
 ever signed the note, or had any dealings 
 whatever with the alleged payee out of 
 which the note originated. He gives an 
 interview with Nickersou, and states what 
 he claims was said at that interview by 
 Nickerson. At the interview Nickerson vir- 
 tually asserted a fact, although in an In- 
 terrogatory form, that he had paid one 
 Henry Sawyer $15 for the defendant. He 
 asserted it as a transaction with the de- 
 fendant. This, the defendant claims, was 
 a fraudulent assertion to obtain an admis- 
 sion from him of what was not true in or- 
 der to affect the main issue before the jury. 
 It was. In effect, the assertion of a fact to 
 the defendant bearing on the issue of the 
 genuineness of the note, and was not col- 
 lateral. Either party had a right to prove 
 the truth or falsehood of the-assertion. If 
 it was not true, thedefendant had aright to 
 show that the statement made to him was 
 false ; and, in support of his own testi- 
 mony in denial of its truth, he had a right to 
 call the man as a witness to whom Nicker- 
 son claimed he made the payment. Its 
 tendency in establishing the probability or 
 improbability of the main fact in contro- 
 versy may have been remote, but it was 
 nevertheless admissible. Its weight was 
 for the jury. 
 Exceptions sustained. 
 
 PETERS, C. J., and WALTON, VIRGIN, 
 EMERY, and HASKELL, J J., concurred. 
 
Case No. 3] 
 
 RELEVANCY. 
 
 COMMONWEALTH v. ROBINSON. 
 
 (le N. E. 452, 146 Mass. 571.) 
 
 Supreme Judicial Court of Massachusetts. 
 Middlesex. May 3, 1888. 
 
 Exceptions from supreme judicial court, 
 Middlesex county; Field and Knowlton, 
 Judges. 
 
 Indictment against Sarah J. Robinson for 
 the murder of her brother-in-law, Prince 
 Arthur Freeman, by poisoning. Trial in 
 the supreme judicial court, where the de- 
 fendant was found guilty, and she alleged 
 exceptions. 
 
 Andrew J. Waterman, Atty. Gen., for the 
 Commonwealth. J. B. Goodrich and D. F. 
 Crane, for defendant. 
 
 C. ALLEN, J. We haye given to this case 
 a degree of attention commensurate with its 
 importance, and have come to the conclusion 
 that there was no error in the conduct of 
 the trial. While it is well settled in this 
 commonwealth that, on the trial of an in- 
 dictment, the government cannot be allowed 
 to prove other independent crimes, for the 
 purpose of showing that the defendant Is 
 wicked enough to commit the crime on trial, 
 this rule does not extend so far as to ex- 
 clude evidence of acts or crimes which are 
 shown to have been committed as part of or 
 in pursuance of the same common purpose. 
 Com. V. Jackson, 132 Mass. 16, 18; Com. v. 
 Blood, 141 Mass. 575, 6 N. E. 769. In such 
 cases there is a distinct and significant pro- 
 bative effect resulting from the continuance 
 of the same plan or scheme, and from the 
 doing of other acts in pursuance thereof. 
 It is somewhat of the nature of the acts 
 or declarations of intention, but more espe- 
 cially of preparations for the commission 
 of the crime which is the subject of the in- 
 dictment. If, for example, it could be shown 
 that a defendant had formed a settled pur- 
 pose to obtain certain property, which could 
 only be got by doing several preliminary 
 things, the last of which in the order of 
 time was criminal, the government might 
 show, on his trial for the commission of 
 that last, criminal act, that he had formed 
 the purpose to accomplish the result of ob- 
 taining the property, and that he had done 
 all of the preliminary things which were 
 necessary to that end. This would be quite 
 plain if the evidence of the purpose were 
 dii-ect and clear; as if a letter in the de- 
 fendant's handwriting should be discovered, 
 stating in terms to a confederate his pur- 
 pose to obtain the property by the doing of 
 the several successive acts, the last of which 
 was the criminal act on trial. In such case 
 no one would question that proof might be 
 offered that the defendant had done all the 
 preliminary acts referred to, which were 
 necessary steps In the accomplishment of 
 
 8 
 
 his purpose. But such purpose may also be 
 shown by circumstantial evidence. It is, 
 indeed, usually the case that Intentions, 
 plans, purposes, can only be shown in this 
 way. Express declarations of intention, or 
 confessions, are comparatively rare; and 
 therefore all the circumstances of the de- 
 fendant's situation, conduct, speech, silence, 
 motives, may be considered. The plan it- 
 self, and the acts done in pursuance of it, 
 may all be proved by circumstantial evi- 
 dence if they are of themselves relevant and 
 material to the case on trial. And in such a 
 case it makes no difference whether the pre- 
 liminary acts are criminal or not. Other- 
 wise the greater the criminal the greater his 
 immunity. Such preliminary acts are not 
 competent because they are criminal, but 
 because they are relevant to the issue on 
 trial; and the fact that they are criminal 
 does not render them irrelevant. Suppose, 
 for further example, one is charged with 
 breaking a bank, and there is evidence that 
 he had made preliminary examinations from 
 a neighboring room; the fact that his occu- 
 pation of such room was accomplished by a 
 criminal breaking and entering would not 
 render the evidence incompetent. It is 
 sometimes said that such evidence may be 
 introduced where the several crimes form 
 part of one entire transaction; but it is per- 
 haps better to say, where they have some 
 connection with each other, as a part of the 
 same plan, or induced by the same motive. 
 \Precedent acts which render the commis- 
 Ision of the crime charged more easy, more 
 /safe, more certain, more effective, to pro- 
 duce the ultimate result which formed the 
 general motive and inducement, if done with 
 that intention and purpose, have such a 
 connection with the crime charged as to be 
 admissible, though they are also of them- 
 selves criminal. We do not understand that 
 this general view, stated thus, is distinctly 
 controverted by the counsel for the prisoner; 
 and it Is supported by a great number of 
 decisions, only a few of which are here 
 cited. Com. v. Scott, 123 Mass. 222; Com. 
 V. Choate, 105 Mass. 451; Swan v. Com., 
 104 Pa. St. 220; Goerson v. Com., 99 Pa. St. 
 388; Shaffner v. Com., 72 Pa. St. 60; Mayer 
 V. People, 80 N. Y. 364, 375. See, also, Jor- 
 dan V. Osgood, 109 Mass. -457. For cases 
 where such connection was not shown, but 
 where the principle was recognized, see 
 Com. V. Jackson, 132 Mass. 16; State v. 
 Lapage, 57 N. H. 245, 295; People v. Sharp, 
 14 N. B. 319, (opinion by Peckham, J.) The 
 ruling at the trial, therefore, was correct, 
 that if evidence should be offered and ad- 
 mitted tending to show that the prisoner 
 knew, before her sister's death, of the ex- 
 istence of the insurance, and that it could 
 be transferred on the death of her sister to 
 herself, and made payable to herself on the 
 death of Freeman, and that, before her sis- 
 ter's death, she had formed a plan or inten- 
 
RELEVANCY. 
 
 [Case No. 3 
 
 tion to obtain this insurance for her own 
 benefit, and this plan or intention continued 
 to exist or be operative up to the time of 
 Freeman's death, then that evidence might 
 be offered to show that her sister died of 
 poison, and that the prisoner administered 
 it, as a part of the method employed by her 
 to carry this plan or intention Into effect, in 
 connection with evidence that she adminis- 
 tered poison to Freeman, as another part of 
 the same plan and with the same general 
 intention. 
 
 The court therefore properly held that evi- 
 dence of this knowledge and plan or inten- 
 tion on the part of the prisoner should first 
 be offered, that the court might judge wheth- 
 er It was sufficient to warrant the introduc- 
 tion of evidence that the sister died of poison 
 administered by the prisoner. This claim and 
 offer of proof on the part of the government, 
 and the arguments of counsel, and the said 
 ruling of the court thereon, were all made in 
 open court, in the prisoner's presence, but in 
 the absence of the jury. The government ac- 
 ■cordlngly proceeded to introduce, with its 
 other evidence to the jury, certain testimony 
 in support of said alleged scheme or inten- 
 tion on the part of the prisoner, which is 
 Etated in the bill of exceptions; and, after 
 «aid testimony had been received, it offered 
 evidence tending to prove the death of the 
 prisoner's sister by arsenic knowingly admin- 
 istered by the prisoner. This evidence was 
 objected to, on the ground that no sufficient 
 evidence had been offered in proof of said al- 
 leged scheme or intention, and on other 
 grounds; but the court overruled the objec- 
 tion, and admitted the evidence, subject to 
 the prisoner's exception. In seeking a new 
 trial on account of the admission of this tes- 
 timony, the argument of the prisoner's coun- 
 sel, briefly stated, is as follows: Preliminary 
 ■evidence must be given to show that the 
 acts offered to be proved were done in pur- 
 suance and as a part of some plan or scheme 
 to accomplish the particular result. It is the 
 exclusive province of the court to determine 
 if such evidence is sufficient. The decision 
 of the court, admitting the evidence, is sub- 
 ject to revision in the present case; the tes- 
 timony upon which that decision was found- 
 ■e<l having been reported for the purpose. It 
 is not enough that there was some evidence, 
 but the preliminary evidence must amount to 
 proof. The ruling of the court did not ex- 
 pressly affirm the necessity of such proof; 
 that is, as we understand the argument, the 
 necessity of such amount or degree of proof. 
 And, finally, this court, upon a revision of 
 the preliminary evidence reported, should now 
 hold that it was not sufficient to warrant the 
 introduction of evidence to show that the 
 prisoner poisoned her sister, Mrs. Freeman. 
 The last three of these propositions are the 
 only ones which need any further attention. 
 A consideration of the nature of the question 
 •which is presented to the court when it is 
 
 called upon to decide upon a preliminai-y ques- 
 tion of fact, in order to determine whether of- 
 fered evidence shall be received, will show 
 that its determination reaches no further than 
 merely to decide whether the evidence may 
 or may not go to the jury. The decision upon 
 this particular question, of the admissibility 
 of the evidence, is ordinarily conclusive, un- 
 less the judge sees fit to reserve or report 
 the question for future revision. Dole v. 
 Thurlow, 12 Mete. (Mass.) 157; Gorton v. 
 Hadsell, 9 Cush. 508, 511; O'Connor v. Hal- 
 linan, 103 Mass. 547; Walker v. Curtis, 116 
 Mass. 98. And in this respect the rule is the 
 same in criminal cases. Com. v. Hills, 10 
 Cush. 530; Com. v. Mullins, 2 Allen, 295; 
 Com. V. Morrell, 99 Mass. 542; Com. v. Cul- 
 ver, 126 Mass. 404; Com. v. Gray, 129 Mass. 
 474. But where, in a case like the present, 
 the admissibility of testimony depends upon 
 the determination of some prior fact by the 
 court, there is no rule of law that, in order 
 to render the testimony admissible, such prior 
 fact must be established by a weight of evi- 
 dence which will amount to a demonstration, 
 and shut out all doubt or question of its ex- 
 istence. It is only necessary that there 
 should be so much evidence as to make it 
 proper to submit the whole evidence to the 
 jury. The fact of the admission of the evi- 
 dence by the judge does not in a legal sense 
 give it any greater weight with the jury. It 
 does not affect the burden of proof, or change 
 the duty of the jury in weighing the whole 
 evidence. They must still be satisfied, in a 
 criminal case, upon the whole evidence, be- 
 yond a reasonable doubt. Ordinarily, ques- 
 tions of fact are exclusively for the jury, and 
 questions of law for the court. But when, 
 in order to pass upon the admissibility of evi- 
 dence, the determination of a preliminary 
 question of fact is necessai-y, the court, in the 
 due and orderly course of the trial, must 
 necessarily determine it, as far as is neces- 
 sary for that purpose, and usually without 
 the assistance, at that stage, of the jury. If, 
 under such circumstances, testimony is ad- 
 mitted against a party's objection, it may 
 often happen that he may still ask the jury 
 to disregard it. 
 
 Numerous illustrations of the foregoing 
 view might be given, but a few must suf- 
 fice us. In an indictment for murder, where 
 the question was as to the admissibility of 
 certain statements in the nature of confes- 
 sions, which were objected to as having been 
 obtained by means of inducements, it was 
 held by this court as follows: "When a con- 
 fession is offered in a criminal case, and the 
 defendant objects that he was induced to 
 make it by threats or promises, it necessarily 
 devolves upon the court to determine the pre- 
 liminary question whether such inducements 
 are shown. * * * if the presiding judge 
 is satisfied that there were such inducements, 
 the confession is to be rejected; if he is not 
 satisfied, the evidence is admitted. But, if 
 
 9 
 
Case No. 3] 
 
 RELEVANCY, 
 
 there is any conflict of testimony or room for 
 doubt, the court will sutomit the question to 
 the Juiy, with instructions that, if they are 
 satisfied that there were such inducements, 
 they shall disregard and re.1ect the confes- 
 sion." Com. V. Piper, 120 Mass. 190. Simi- 
 lar questions arise when it is objected that a 
 witness is not of sufflcient capacity to testify 
 intelligently; or that a third person, whose 
 declarations or acts are offered in evidence 
 against a party, was not a partner, agent, or 
 co-conspirator, and did not stand in such a 
 relation as to make his declarations or acts 
 admissible; and in other cases. In Com. v. 
 Brown, 14 Gray, 419, which was an indict- 
 ment for causing the death of a woman by 
 means of an attempt to procure a miscar- 
 riage, the judge at the trial decided, as matter 
 of fact, on the preliminary question, that 
 there was prima facie evidence that the de- 
 fendant and two other persons were jointly 
 acting in combination and concert, and aid- 
 ing and assisting each other in carrying out 
 a common enterprise of procuring an abor- 
 tion, so as to make the acts and declarations 
 of those two persons competent, and admitted 
 the evidence, and then left the question to be 
 determined by the jui-y whether they were 
 acting in concert with the defendant or not, 
 with instructions that, if so, the acts and 
 declarations might be considered by them; 
 otherwise not. This course was held by this 
 court to be correct, (pages 425, 426, 432;) the 
 court saying: "The conspiracy of the parties 
 was first satisfactorily made to appear to the 
 court." In Com. v. Crowninshield, 10 Pick. 
 497, a similar doctrine was held. In all such 
 cases, the court, in deciding to admit the of- 
 fered testimony, does no more than to hold 
 that enough has been shown to make it prop- 
 er to submit the testimony to the jury, leav- 
 ing its weight and credit for their determina- 
 tion. The decision of the judge does not re- 
 lieve the party offering the testimony from 
 the necessity of establishing every material 
 fact to the satisfaction of the jury. See, al- 
 so. Com. V. Scott, 123 Mass. 235; Com. v. 
 Waterman, 122 Mass. 43, 59; Com. v. Preece, 
 140 Mass. 276, 5 N. E. 494; Ormsby v. People, 
 53 N. Y. 472; Swan v. Com., 104 Pa. St. 218; 
 1 Greenl. Ev. §§ 49, 111; Steph. Dig. Ev. 
 (Chase's Ed.) art. 4. In this view of the law, 
 it was not necessary that the court should 
 find that the preliminary evidence amounted 
 to full proof, beyond a reasonable doubt, that 
 the prisoner poisoned her sister, in pursu- 
 ance of a general plan or scheme in which 
 the poisoning of Mr. Freeman was a later 
 step. 
 
 We are further of the opinion that the pre- 
 liminary evidence which was before the court 
 was sufflcient to warrant the introduction of 
 evidence to show that the prisoner poisoned 
 her sister, Mrs. Freeman. Certain facts were 
 not in dispute. Prince Arthur Freeman, the 
 person whom the prisoner was charged in the 
 indictment with having poisoned, held a cer- 
 
 10 
 
 tificate of membership in a society, which 
 provided for the payment of .$2,000 upon his 
 death to the beneficiary named therein, with 
 a power of substitution. His wife, who was 
 the prisoner's sister, was named as bene- 
 ficiary. She died February 26, 1885, after an 
 illness of about three weeks. The prisoner 
 called at Freeman's house, ih South Boston, 
 on February 20th, and on February 23d went 
 there to take care of Mrs. Freeman, and stay- 
 ed till her death. Immediately after Mrs. 
 Freeman's death, Mr. Freeman, with his two 
 children, went to live with the prisoner at her 
 house in Cambridge. One of the children died 
 in April. On or about May 1.3th, Mr. Free- 
 man appointed the prisoner as beneflciary un- 
 der the certiflcate of membership. He died 
 June 27th, after an illness of about six days, 
 from arsenic. The prisoner on September 23, 
 1885, received :f2,000 from the society upon 
 said certiflcate. I^rior to 1885 the prisoner 
 was owing several hundred dollars, which 
 she was unable to pay, and for which she was 
 hard pressed by her creditors, and which she 
 paid out of the .$2,000 so received by her. As 
 tending to prove the plan or scheme on her 
 part to obtain this life insurance money 
 through the murder of Mrs. Freeman and 
 then of Mr. Freeman, there was evidence to 
 the effect that, before Mrs. Freeman's death, 
 the prisoner knew of the certificate of mem- 
 bership insuring Mr. Freeman for his wife's 
 benefit; that, during Mrs. Freeman's illness, 
 the prisoner expressed the opinion that her 
 sister would never recover, and said that she 
 (the prisoner) had had a terrible dream, and, 
 whenever she had a dream like that, one of 
 the family always died; that, before as well 
 as after Mrs. Freeman's death, the prisoner 
 expressed the wish to have Mr. Freeman, 
 with his children, come and live with her, 
 and asked different persons to urge him to do 
 so; that, on the day of Mrs. Freeman's fu- 
 neral, the prisoner said that Mr. Freeman's 
 sister, Mrs. Melvin, was very anxious to have- 
 him live with her, and that all Mrs. Melvin 
 wanted was to get the insurance made over 
 to her, but the prisoner said she (herself) had 
 the best right to it, and it was her sister's 
 request that it should be made over to her, 
 and she wanted it; that on the same day she- 
 talked with Mr. Freeman about the insurance, 
 wanted to know if it was made over to her, 
 and he said it was not, but should be; that 
 quite frequently afterwards she said she was 
 afraid he would not make it over to her; that 
 on June 22d, the same day when he was taken 
 sick, (which was after it had been made over 
 to her,) she sent to the society to see if the- 
 papers were right, in case anything happen- 
 ed to Mr. Freeman, and whether she would 
 get the insurance, and to see that all assess- 
 ments were paid up; that the appointment 
 for the money to be payable to her was re- 
 corded in the books of the society not earlier 
 than June 23d; that she also sent over to see 
 about the insurance once or twice afterwards 
 
KELEVANCr. 
 
 [Case Ko. 8 
 
 before his death, and had an Interview with 
 the secretary of the society upon the same 
 subject in Mr. Freeman's presence, the day 
 before his death, and was told that the pa- 
 pers were all right, and afterwards, when not 
 in his presence, requested the secretary not 
 
 to tell Mr. Freeman's sister about the insur- 
 ance. This evidence certainly tended to show 
 a scheme and plan, entered into before Mrs. 
 Freeman's death, to have the insurance mon- 
 ey made payable to the prisoner. 
 Exceptions overruled. 
 
 11 
 
-Case No. 4] 
 
 RELEVANCY. 
 
 BUDDRESS V. SCHAFER et al. 
 
 (41 Pac. 43.) 
 
 Supreme Court of "Washington. July 15, 1895. 
 
 Appeal from superior court. King county; 
 R. Osborn, Judge. 
 
 Action by A. W. Buddress against John 
 Schafer and another. There was a judg- 
 ment for plaintiff, and defendants appeal. 
 AtRrmed. 
 
 J. C. Whitlock and Million & Houser, for 
 appellants. A. W. Buddress, Metealf & Ju- 
 rey, and Geo. H. Jones, for respondent 
 
 GORDON, J. This action was brought by 
 respondent to recover the sum of $5H0 for 
 services as an attorney and counselor at law 
 in "prosecuting and conducting certain caus- 
 es in the superior court of the state of Wash- 
 ington for the county of Island, in which 
 said causes said defendants (.appellants) were 
 plaintiffs and Henry Alexander and Kitty 
 Alexander were respondents." Respondent 
 also claims the sum of $50 by way of ex- 
 penses, costs, and disbursements necessarily 
 incurred in the prosecution of said suit. In 
 his complaint it is alleged "that said serv- 
 ices were reasonably worth the sum of $500, 
 and that said defendants (appellants) prem- 
 ised and agreed to pay what the same were 
 reasonably worth." The answer of the ap- 
 pellants merely denied that the "services 
 were worth the sum of $500, or any sum 
 whatever," and for an affirmative defense 
 set up that the matter had been adjudicated 
 in a trial between the same parties on fhe 
 same subject-matter. There was a verdict 
 for respondent in the sum of $225, and from 
 Judgment entered thereupon, and an ordei' 
 denying a new trial, this appeal has been 
 taken. 
 
 Upon the trial appellants offered to show 
 that they had employed other attorneys to 
 prepare the pleadings and try the identical 
 causes refeiTed to in respondent's complaint. 
 The proof was excluded, and this ruling is 
 assigned as error. The apparent object of 
 this testimony was to dispute the amount 
 and extent of plaintiff's services. The re- 
 spondent contended, and the court below 
 held, that appellants could not, under their 
 answer, deny that the services were rendered 
 by respondent, and that appellants should be 
 t'onflned to the question of the value of the 
 services so rendered; and we think the rul- 
 ing was correct. It was the right of appel- 
 lants to have demanded a bill of particulars, 
 or to have required a more definite state- 
 ment, if the character and extent of the 
 services were indefinitelj- set forth in the 
 complaint; but under a mere denial of the 
 value of the services they were not entitled 
 to show that the services were not rendered. 
 Tan Dyke v. Maguire, 57 N. Y. 429. The 
 <:uurt committed no error in allowing re- 
 
 12 
 
 ispondent to testify as to the amount expend- 
 ed by him for hotel and traveling expenses, 
 nor in limiting the cross-examination of the 
 witnesses Scott and Coleman, nor in the in- 
 struction given the juiy concerning' the ef- 
 fect to be given the testimony upon the sub- 
 ject of the value of professional services. We 
 do not think that the language of the insirac- 
 tion was calculated to mislead the jury, and 
 it is manifest from the verdict that such 
 could not have been its effect. 
 
 Coming now to the question of former ad- 
 judication of the matters involved in this 
 controversy, it appears from the record that 
 respondent had instituted a prior suit to re- 
 cover the sum of $500 as attorney's fees. 
 That action was founded upon an express 
 contract to pay said sum for said services. 
 No other question was litigated therein. 
 The question of the reasonable value of re- 
 spondent's services, or of respondent's right 
 to recover such reasonable value, was with- 
 held from the consideration of the jury in the 
 trial of that case. Referring to this prior 
 suit, which was relied upon as a bar to re- 
 spondent's right to recover in this action, the 
 learned counsel for appellants upon the trial 
 of this cause below admitted that no evi- 
 dence was offered in the former trial to 
 prove what the services were worth, but that 
 the only question submitted for determina- 
 tion was upon respondent's theory of an ex- 
 press contract. We think the law is well 
 settled that a judgment in a former suit on 
 an express contract is not a bar to the sec- 
 ond suit on a quantum meruit for the same 
 services, and to determine whether a former 
 judgment is a bar to a subsequent action it 
 is necessary to inquire whether the same evi- 
 dence would have maintained both of such 
 actions. 1 Froem. Judgm. § 259; Kirkpat- 
 rick v. McElroy (N. J. Err. & App.) 7 Atl. 
 647. In Taylor v. Castle, 42 Cal. 372, the 
 court say: "The cause of action is said to 
 be the same where the same evidence will 
 support both actions; or, rather, the Judg- 
 ment in the former action will be a bar, pro- 
 vided the evidence necessary to sustain a 
 judgment for the plaintiff in the present ac- 
 tion would have authorized a judgment for 
 the plaintiff in the former." In 2 Black, 
 Judgm. § 720, the learned author says: "For 
 the purpose of ascertaining the identity of 
 the causes of action, the authorities gener- 
 ally agi'ee in accepting the following test as 
 sufficient: Would the same evidence support 
 and establish both the present and the for- 
 mer cause of action? If so, the former re- 
 covei-y is a bar; if otherwise, it does not 
 stand in the way of the second action." We 
 have examined the error assigned by appel- 
 lants in permitting respondent to explain the 
 record of the former trial, but think that no 
 error was committed. If, however, we were 
 constrained to the opposite view, the same re- 
 sult would follow, in view of the admissions 
 
WHAT FACTS ARE IN ISSUE. 
 
 [Case No. 4 
 
 made by appellants' counsel upon the trial of 
 this case in the court below as to the pro- 
 ceedings occurring upon the trial of the for- 
 mer action, which resulted in a judgment 
 for defendants. No substantial error ap- 
 
 pearing in the record, the Judgment will be 
 affirmed. 
 
 ANDERS and DUNBAR, JJ., concur. 
 HOYT, 0. J., dissents. 
 
Case No. 5] 
 
 RELEVANCY. 
 
 ROBINSON CONSOLIDATED MIN. CO. v. 
 JOHNSON. 
 
 (22 Pac. 459, 13 Colo. 258.) 
 
 Supreme Court of Colorado. Oct. 11, 1889. 
 
 Appeal from district court, Lake county. 
 
 The allegations of the complaint in this 
 action, so far as they are necessary to a cor- 
 rect understanding of the matters involved 
 in this appeal, are to the follov^ring effect : 
 That in 1882, William H. Johnson, appellee 
 herein, plaintiff below, entered into a ver- 
 bal contract with the Robinson Consoli- 
 dated Mining Company, defendant, a cor- 
 poration duly organized, to furnish, sell, 
 and deliver to defendant at its" smelting 
 works, in the town of Robinson, Summit 
 county, Colo., 240,000 bushels of charcoal 
 at the stipulated price of 13 cents per bush- 
 el ; that in pursuance of said contract plain- 
 tiff commenced and continued to fui-nish, 
 sell, and deliver said charcoal in divers lots 
 and quantities until he had so sold and de- 
 livered 32,000 bushels thereof to defendant, 
 all of which was received and accepted by 
 defendant at its said smelting works ; that 
 plaintiff was ready and willing, and offered, 
 to deliver the balance of said charcoal ac- 
 cording to the terms of said contract, but 
 that defendant absolutely refused to receive, 
 accept, or pay for the same. The plaintiff, 
 by reason of defendant's refusal to accept 
 the residue of the charcoal contracted for, 
 was compelled to sell the same for 11 cents 
 perbushel, which was the best price he could 
 obtain therefor. There were other ele- 
 ments of damage alleged which need not be 
 here stated, inasm uch as they were substan- 
 tially stricken out of the case before the 
 trial, and do not appear to have been re- 
 lied on. Defendant demurred to the com- 
 plaint on several grounds, among other-s, 
 that the complaintdoes notstate facts suf- 
 ficientto constitute a cause of action. The 
 demurrer was overruled. The defendant 
 then answered, denying specifically the al- 
 legations of the complaint; and the case, 
 being tried to the court without a jury, re- 
 sulted in a finding and judgment in favor 
 of the plaintiff for the sum of $4,000. The 
 defendant appeals. 
 
 Teller & OraAood, for appellant. Patter- 
 son & Thomas, for appellee. 
 
 ELLIOTT, J., (after stating the facts as 
 above.) This wns an action by a vendor 
 against a vendee of goods for refusal to ac- 
 cept and pay for the same. The complaint 
 alleges that the plantiff entered into a con- 
 tract with defendant to furni.sh, sell, and 
 deliver to defendant a certain quantity of 
 charcoal at a certain stipulated price. But 
 i t is nowhere alleged that defendant bought, 
 purchased, or agreed to accept or pay for 
 the same, or any part thereof. For this 
 reasonitiscontended by appellant that the 
 contract as stated is unilateral; and that 
 the complaint is defective in substance. It 
 is certain that the usual form of declaring 
 in cases of this kind was not observed . The 
 nature of the action requiresthat the plead- 
 ing should be special. 2 Chit. PI. 264; Pu- 
 ter. PI. 130; 1 Estee, PI. & Pr. § 1375; Beni. 
 Sales, §§ 758-765. 
 
 Notwithstanding forms of actions have 
 been abolished in this state, the substan- 
 tial requisites of pleadings have not been 
 
 14 
 
 changed. Useless fictions, antique phrase- 
 ology, technical commencements and con- 
 clusions, have been swept away, but the le- 
 gal rights and liabilities of parties remam 
 the same ; and the facts upon which these 
 rights and liabilities depend are required to 
 be stated in "ordinary and concise lan- 
 guage." While particular forms of plead- 
 ing are no longer essential, yet experience 
 teaches that it is well to adhere to the 'or- 
 dinary and concise language" of approved 
 forms in stating causes of action as well as 
 grounds of defense, lest, in departing too 
 far from the form, we fail to state the sub- 
 
 CI"J"Q TlPf* 
 
 It is contended by plaintiff 's counsel that 
 defendant cannot now be heard to object 
 to the complaint on the ground that it does 
 not state facts sufficient to constitute a 
 cause of action, tor the reason that he 
 pleaded over and went to trial. We are 
 aware it has been held, where an answer by 
 its terms supplies the defects of a complaint 
 otherwise obnoxious to a general demur- 
 rer, that the defective complaint is thereby 
 cured. This is what Mr. Chitty calls "ex- 
 press aider!" The case of Slack v. Lyon, 9 
 Pick. 62. is not in point. In that case, the 
 defendant pleaded over without demurrer, 
 and in his answer alleged the very facts the 
 omission of which made the complaint de- 
 tective, and, upon recovery being had in 
 favor of the complainant, the defendant 
 moved in arrest of judgment, which was 
 denied. In this case, defendant demurred 
 in the first instance, and his answer there- 
 after filed consists of specific denials only. 
 In Slack v. Lyon, supra, a very old case is 
 referred to, (Drake v. Corderoy, Cro. Car. 
 288,) where the complaint was defective in 
 substance, and the court remarked : " Had 
 the defendant pleaded the general issue, the 
 plaintiff could not have had judgment." 
 Bliss, Code PI. § 438. 
 
 The terms of the contract, as set out in 
 the complaint, show no pi-ouiise, undertak- 
 ing, agreement, or obligation on the part 
 of defendant to accept or pay for any por- 
 tion of the charcoal, except that the law 
 implies a promise on his part to pay for 
 thatwhichhe actually received. Astosuch 
 portion, there is no claim that he did not 
 pay for it ; so the case does not fall under 
 that class of unilateral contracts, in which 
 a party not bound by the terms thereof 
 whileit remains executory may nevertheless 
 become bound to the extent he accepts the 
 benefits thereof. Gordon v. Darnell, 5 Colo. 
 302 ; Stiles v. McClellan, 6 Colo. 89 ; Lester v. 
 Jewett, 12 Barb. 502 ; Railway Co. v. Mitch- 
 ell, 38 Tex. 85; McKinley v. Watkins. 13 111. 
 140; Richardson v. Hard wick, 106 U. S. 252,1 
 Sup. Ct. Rep. 213; 1 Pars. Cont. 448, note z; 
 Sykes v. Dixon, 9 Adol. & E. 693; Bean v. 
 Burbank, 16 Me. 458. It is contended that 
 the allegation that plaintiff was to furnish, 
 sell, and deli verto defendant a certain quan- 
 tity of charcoal, at a certain stipulated 
 price, implies that defendant agreed to re- 
 ceive and pay for such quantity at the price 
 stated. It is true the law implies a prom- 
 ise to pay on the part of one who actually 
 receives goods at a price for which the 
 other party has engaged to deliver; be- 
 cause it would be unconscionable that the 
 receiver should accept goods for which he 
 knew the other party expected payment, 
 and not render the consideration therefor, 
 
WHAT FACTS AEE IX ISSUE. 
 
 [Case No. 5 
 
 But there maybe an engagement to deliver 
 •without the correspondng engagement to 
 receive. A promise Is a good consideration 
 for a promise; but the law does not imply 
 because one partymakesapromisethatthe 
 promisee makes a promise in return. Par- 
 ties are at liberty to make such contracts 
 as they please. Options may be reserved 
 by either party to a contract which may 
 renderthe Kame unilateral and incapable ol 
 enforcement, except so far as the same may 
 have been voluntarily carried into effect. 
 
 It is stronsly urged that the words "en- 
 tered into a contract with defendant ' ' show 
 that there was mutuality in the contract 
 between the parties, and that both are 
 bound. Thesepreliminary words doubtless 
 indicate that two parties made the con- 
 tract, such as it was; and they may induce 
 expectation of mutualityinthetermsorob- 
 ligation of the contract thereafter to be 
 stated. But it does notfoUow because two 
 parties have made a contractthat therefore 
 each or either are bound thereby. If mu- 
 tuality of obligation necessarily resulted 
 from a joint making, then therecould be no 
 such thing as a unilateral contract, since 
 a con tract or agreement is always the prod- 
 uct of two or more minds. In this connec- 
 tion counsel for appellee in theirprinted ar- 
 gument make use of the following quota- 
 tion : "A contract is an agreement between 
 two or more persons to do or not to do a 
 particular thing. The obligation of a con- 
 tract is found in the terms of the agree- 
 ment." This language is ascribed to Chief 
 Justice Taney, who delivered the opinion 
 of the court in Charles River Bridge v. War- 
 ren Bridge, 11 Pet. 420, when, in fact, the 
 words occur in the dissenting opinion of 
 Mr. Justice McLean. This was doubtless 
 an inadvertence, as the same mistake occurs 
 in Bouvier's Law Dictionary. But as the 
 decision of the case does not turn upon the 
 correctness of the abstract definitions thus 
 announced, they may be accepted as cor- 
 rect. Having made this quotation, counsel 
 argue that the statement that a contract 
 was entered into is a conclusion arising 
 from facts under the law, and is a mode of 
 pleading not prohibited by any system ; 
 that the obligations of the charcoal con- 
 tract are to be found in its terms, and its 
 terms aretobefound from the evidence, and 
 the evidence is a statement of the facts from 
 which the conclusion that a contractexists 
 has been drawn. Hanna v. Barker, 6 Colo. 
 312, and Orman v. City of Pueblo, 8 Colo. 
 292, 6 Pac. Rep. 931, are relied on to sustain 
 this course of reasoning. The former case 
 sustains the proposition that an averment 
 that certain parties — named — entered into 
 an agreement in writing with certain other 
 parties— named— is a sufficient averment of 
 the delivery of the agreement between the 
 parties; but neither of these cases warrant 
 the Inference that it is not necessary to aver 
 in the complaint the terms of the contract 
 sued on so as to show tbe obligation rest- 
 ing on the defendant as a condition to hold- 
 ing him liable for the breach thereof. On 
 the contrary, in the former case the con- 
 tract was set out in hseo verba, in the com- 
 plaint, while in the latter the complaint was 
 not defective in substance, and the objection 
 referred to in the oinnion could have been 
 cured by a bill of particulars. 
 
 It is assigned for error that the contract 
 
 attempted to be proven at the trial M-as not 
 the contract stated in the complaint. The 
 contract stated in the complaint was for the 
 sale and delivery of 240,000 bushels of char- 
 coal at defendant's smelling works. No 
 time being specified for the delivery of the 
 coal, the law implies that it was to be deliv- 
 ered within a reasonable time, which time, 
 in case of controversy, must be determined 
 by the court from the facts and circum- 
 stances of the case. 2 Pars. Cont. 535. The 
 contract which the evidence tended to estab- 
 lish was a contract for the delivery of good 
 merchantable kiln pine coal, 2,500 inches 
 to the bushel, 20,000 bushels per month for 
 12 months. It may be, in attempting to 
 prove the performance of a contract to de- 
 liver 240,000 bushels of charcoal, where no 
 time for the delivery is specified, that it 
 would be competent to show that a deliv- 
 ery at the rate of 20,000 bushels per month 
 would be a delivery within a reasonable 
 time. But this was not what was under- 
 taken to be shown. No evidence as to what 
 would be a reasonable time was elicited or 
 offered. The evidence tended to prove an 
 express contract to deliver 20,000 bushels 
 a month, no more, no less, without refer- 
 ence to the circumstances or difficulties 
 of the delivery bearing upon the ques- 
 tion of reasonable time. This evidence 
 was objected to as incompetent under 
 the statements of the complaint, and as 
 variantfrom its allegations. The variance 
 is apparent. As a rule, where there is ' 
 an express contract, parties cannot at)an- 
 donitand resort to an implied one; but the 
 contract as made must be the measure of 
 their respective rights and liabilities. The 
 defendant had a right to be advised by. the 
 pleadings in advance of the trial of the sub- 
 stantial terms and conditions of the con- 
 tract under which its liability to a judgment 
 was sought to be enforged. Hence the va- 
 riance was material, and the issueunderthe 
 evidence should have been found against the 
 plaintiff for that reason. Steph. PI. 118; 1 
 Chit. PI. 318,319; Bliss, Code PI. §438etseq. ; 
 Cheney v. Barber, 1 Colo. 73. 
 
 We have carefully considered whether or 
 not under section 78of the Code, relating to 
 defective pleadings and variances, the er- 
 rors discussed in this opinion might be prop- 
 erly disregarded. The provisions of the 
 Code are liberal in allowing, upon proper 
 application and terms, the correction of 
 mistakes in the pleadings and proceedings 
 incivil actions. We should notbedisposed 
 to allow parties to take advantage of or- 
 dinary defects for the first time in the appel- 
 late court. But when a party makes objec- 
 tion on account of a material or substan- 
 tial defect, in a proper manner, and in apt 
 time, and the oppositeparty, instead of ap- 
 plying for leave to amend, succeeds in pro- 
 curing a ruling in his favor by the trial 
 court, he does so at his peril. 
 
 In view of the foregoing conclusions, we 
 do not deem it necessary to discuss at 
 length the other assignments of error. If 
 there was a contract for the delivery of the 
 coal within 12 months, and the buyer ac- 
 tually received and accepted a part thereof 
 within that period, the claim that the con- 
 tract was void under the statute of frauds 
 would seem to be unfounded. The judgment 
 of the district court is reversed, and the 
 cause remanded. 
 
 15 
 
Case No. 6] 
 
 RELEVANCY. 
 
 CARLTON V. PEOPLE. 
 
 (37 N. E. 244, 150 111. 181.) 
 
 Supreme Court of Illinois. May 5, 1894. 
 
 Error to circuit court, Johnson county; 
 A. K. Vickers, Judge. 
 
 Indictment of Jonathan Carlton for arson. 
 Defendant was convicted, and he brings er- 
 ror. Affirmed. 
 
 Morris, Moore & Vankirk, for plaintiff in 
 error. Maurice T. Moloney, Atty. Gen., T. J. 
 Scofield, M. L.. Newell, and Geo. G. Gillespie, 
 for the People. 
 
 MAGRUDER, J. This is an indictment 
 against the plaintiff in error for arson. The 
 indictment charges him, in the usual form, 
 with setting fire to and burning the barn of 
 one Rob Roy Ridenhour. The jury found 
 him guilty, and fixed his punishment at im- 
 prisonment in the penitentiary for a term 
 of four years. Motions for new trial and in 
 arrest of judgment were made and overruled. 
 Judgment was rendered, and sentence pro- 
 nounced, in accordance with the verdict. 
 
 On the afternoon of Saturday, April 9, 
 1892, plaintiff in error was arrested for a 
 violation of a town ordinance at Vienna, in 
 Johnson county, by the town marshal, as- 
 sisted by one of the deputy sheriffs, and also 
 by the said Ridenhour. He was taken to 
 the county jail in an intoxicated condition, 
 having a knife in his hand and a revolver 
 in his pocket. He and Ridenhour each lived 
 in the country, about four and a half miles 
 from Vienna, and had ridden into town to- 
 gether on the morning of that day. His ar- 
 rest was made with difficulty, and after a 
 scuffle. By direction of Ridenhour his knife 
 and revolver were taken away from him. 
 While he was lying upon his back in the 
 hallway of the jail, his arms and feet being 
 held by those who arrested him, he said: 
 "Oh, yes. Bob Ridenhour. you live in the 
 country, and you will think of this, God 
 damn you, when your barn is on ilre." He 
 repeated the remark several times, varying 
 the expression, saying, according to one wit- 
 ness: "You will think of this when you 
 see your bam in flames;" according to an- 
 other: "You will think of this when your 
 barn is bm'ned. Your barn is on a high hiU. 
 It will look well when it is burning." He 
 was released from jail between 10 and 11 
 o'clock on the night of that same day, and 
 left town about 11 o'clock, in company with 
 Thomas Verhines and Edward Hogg, ench 
 of the three riding on horseback. The plain- 
 tiff in error stopped on the way at the house 
 of a Mrs. Bridges, and obtained some match- 
 es. They rode together about a mile, when 
 they separated, Verhines going east, and 
 Carlton and Hogg going south. Plaintiff in 
 error and Hogg continued to ride together 
 about a mile further, where they separated, 
 the fonner going southeast, and the latter 
 going southwest. The home of Carlton was 
 about 2 miles, and that of Hogg about 
 IG 
 
 21/2 miles, from the point where they sep- 
 arated. In going to his home from this 
 point, plaintiff in error would pass in sight 
 of Ridenhour's house. Ridenhoui-'s barns 
 were burned that night. He says that he 
 went to bed between 10 and 11 o'clock, and 
 that it was after midnight when he first saw 
 the Are. On the next day— Sunday, April 
 10th— an examination was made of the 
 premises. Tracks were found south of the 
 barn, in a path leading to the highway, 
 which ran in the general direction of iii(- 
 house of plaintiff in error. Mud was found 
 upon the fence at the corner of the field, 
 indicating that someone had climbed over 
 the fence. The oats in the field had not 
 come up. An examination of the tracks 
 showed that one foot had made a deeper 
 impression than the other. Carlton was ar- 
 rested on that Sunday afternoon. A meas- 
 urement of the tracks showed that they 
 corresponded in length with tracks madr 
 by Carlton in the road on that day. andl 
 with the shoes worn by him on that after- 
 noon. It was proven that he was lame, ^nd 
 walked with "a kind of hop." One of the 
 witnesses says: "The foot he limped on 
 corresponded to the irregular tracks in the 
 field." Two barns were bm-ned, contain- 
 ing corn, hay, mules, and horses. The horses 
 escaped, but one of the mules was burned to 
 death, and the corn and hay were destroyed. 
 Hogg says that he saw no fire when he 
 passed with Carlton. 
 
 The only evidence introduced on the de- 
 fense seems to have had for its object the 
 proof of an alibi. The testimony tends to 
 show that the barns were on fire afterl mid- 
 night, and somewhere about 1 o'clock, 
 though one of the witnesses says he saw the 
 fire at 4 o'clock in the morning, and, when 
 he saw it, went to it from his house, a half 
 mile distant, and found the barns "pretty 
 well all burned down." The evidence does 
 not certainly fix the hour when the plaintiff 
 in error reached his home on the night of the 
 fire. His mother swore that "it was about 
 twelve o'clock, or near that." One of his 
 sisters swore tliat she heard the clock strike 
 12, and another that she heard it strike 1, 
 after his arrival. 
 
 Counsel for plaintiff in error make the gen- 
 eral objections that there is an absence of 
 evidence relative to the corpus delicti, and 
 that the evidence is purely circumstantial. 
 "The proof of the charge in criminal causes 
 Involves the proof of two distinct proposi- 
 tions: First, that the act itself was done; 
 and, secondly, that it was done by the 
 charged, and by none other,— in other words, 
 proof of tlve corpus delicti and of the iden- 
 tity of the prisoner." 3 Greeul. Ev. § 30. 
 Here the act done, which was to be proven, 
 was the burning of tlie barn. It was also 
 required to be proven that the barn was 
 burned by the plaintiff in error, and that 
 such burning was done with felonious intent, 
 or, in the language of the statute, "willfully 
 and maliciously." 1 Starr & C. Ann. SL p. 
 
DIRECT AND INDIRECT EVIDENCE. 
 
 [Case No. 6 
 
 759; 3 Greenl. Ev. §§ 55, 56. It has been 
 said that in arson the corpus dolioti consists 
 not only of a fact that a building has been 
 burned, but also the fact that It has been 
 willfully fired by some responsible person. 
 Winslow V. State, T\> Ala. 42. The main 
 fact, however, -which is to be proven in the 
 first place. Is the burning of the buildluK. 
 AVhen that fact is established, then it is nec- 
 essary to show hovr the act was done, and 
 li.v whom. We tliink that, in the picscut 
 case, the fact that the barns were burned 
 was clearly and satisfactorily proven; and 
 the circumstances were such as to exclude 
 accident or natm-al causes as the origin of 
 the fire. When the general fact is thus 
 proved, a foundation is laid for tlie inti-oduc- 
 tion of any legal and sufficient evidence that 
 the act was committed by the accused, and 
 that it was done with criminal intent. Sam 
 V. State, 33 Miss. 347; Phillips v. State, 29 
 Ga. 105. Such evidence need not be direct 
 and positive, but may be circumstantial, in 
 Its character. Winslow v. State, supra. In 
 both criminal and civil cases "a verdict 
 may well be founded on circumstances alone; 
 and these often lead to a conclusion far more 
 satisfactory than direct evidence can pro- 
 duce." 1 Greenl. Ev. § 13a. After a care- 
 ful examination of the evidence in this case 
 we are not prepared to say that the jm-.v 
 were not warranted in finding the verdict 
 retm'ned by tliem. Among the circumstances 
 which may be judicially considered as lead- 
 ing to Important and well-grounded pre- 
 sumptions are "motives to crimes, declara- 
 tions or acts indicative of guilty conscious- 
 ness or intention, [and] preparations for the 
 commission of crime." ^MUs. Circ. Ev. p, 
 39. It appears from the facts above recited 
 that there was evidence here which tended 
 to show the existence of .lust such circum- 
 stances as are thus indicated,— revenge for 
 arrest and imprisonment, tlu'eats that the 
 barns would be burned, and halting on the 
 way to obtain matches. The evidence of the 
 footprints and their correspondence with the 
 defendant's feet was competent, and, thougli 
 "not by Itself of any independent strength 
 is admissible with other proof as tending ti 
 make out a case." Whart. Cr. Ev. (8th Ed.i 
 § 796. In Winslow v. State, supra, when 
 the indictment was for arson, and "ther( 
 was evidence tending to show a fresh tracl-: 
 in the lane leading from tbe road to the 
 house; [and! that this track and the track o1 
 the defendant corresponded," it was said : 
 "The previous threats of the defendant, ami 
 his declarations in the nature of threats, 
 were, on the same principle, properly ad- 
 mitted. While they are not of themselves 
 convincing of guilt, from them. In connec- 
 tion with the other circumstances, if believed 
 by the jury, guilt may be a logical sequence." 
 Whart. Cr. Ev. (8th Ed.) § 756. 
 
 As to the defense of an alibi, the burden 
 of making it out was upon the plaintiff in 
 error (Ackerson v. People, 124 111. 563, Hi 
 N. E. 847>- and, in order to maintain It, he 
 
 WILGUS.EV. — 3 
 
 was bound to eslablish in its support such 
 facts and circumstances as were sutBcient, 
 when considered in connection with all the 
 other evidence in the case, to create in the 
 minds of the jury a reasonable doubt of the 
 truth of the charge against him. Garrity v. 
 People, 107 111. 162; iXuUins v. People, 110 
 111. 42. It cannot be said that the defense 
 was made out so clearly and satisfactorily 
 as to be availing against the case made by 
 the state. 
 
 It is assigned as error that the court re- 
 fused to permit the defendant to prove by 
 two witnesses that they had heard Thomas 
 Verhines make threats that he would bm'n 
 up everything Ridenhonr had. We do not 
 regard this ruling as erroneous. Threats of 
 a third person, other than the prisoner 
 on trial, against the victim of the crime 
 charged, are mere hearsay, and are inad- 
 missible. Evidence of this character tends 
 to draw away the minds of the jury from 
 the point in issue, which is the guilt or in- 
 nocence of the prisoner, and to excite their 
 prejudices and mislead them. 1 Greenl. Ev. 
 §§ 51, .j2; Walker v. State, 6 Tex. App. 576; 
 State V. Duncan, 6 Ired. 236. Such threats 
 of a third person are inter alios acta; they 
 are too remote from the inquiry before the 
 jury to be received, and have no legal tend- 
 ency to establish the innocence of the pris- 
 oner. Alston V. State, 63 Ala. 178; State v. 
 Davis, 77 N. C. 483. It is competent for the 
 defendant to show by any legal evidence 
 that another committed the crime with 
 which he is charged, and that he is inno- 
 cent of any participation In it, but this can- 
 not be shown by the admissions or confes- 
 sions of a third person not under oath, 
 which are only hearsay. The proof must 
 connect such third person with the fact, — 
 that is, with the perpetration of some deed 
 entering into the crime itself. There must 
 be proof of such a train of facts and cir- 
 cumstances as tend clearly to point to him, 
 rather than to the prisoner, as the guilty 
 party. "Extrajudicial statements of third 
 persons cannot be proved by hearsay, imless 
 such statements were part of the res gestae." 
 Whart. Cr. Ev. (8th Ed.) § 225; Smith v. 
 State, 9 Ala. 990; State v. Davis, supra; 
 Greenfield v. People, So N. Y. 75; Thomas 
 V. People, 67 N. Y. 218; Owensby v. State, 
 82 Ala. 63, 2 South. 764; State v. Haynes, 
 71 N. C. 79; Rhea v. State, 10 Yerg. 258; 
 Com. V. Ohabbock, 1 Mass. 143; State v. 
 Johnson, 30 La. Ann. 921; People v. Jlur- 
 phy, 45 Cal. 137; State v. Smith, 35 Kan. 
 618, 11 Pac. 908; State v. May, 4 Dev. 328; 
 A\'right V. State, 9 Yerg. 342. 
 
 It is assigned as error that the com-t in- 
 structed the jiiry that "the reasonable doubt 
 the jury are permitted to entertain must be 
 as to the guilt of the accused on the whole 
 of the evidence, and not as to any particu- 
 lar fact in the case." We do not regard the 
 doctrine of the instruction as erroneous. It 
 is in accordance with the rule which we 
 have laid down in a number of eases. Mul- 
 
 IT 
 
Case No. 6] 
 
 BELEVANCT. 
 
 lins V. People, supra; Davis v. People, 114 
 lU. 80, 29 N. E. 192; Leigh v. People, 113 111. 
 372; Bressler v. People, 117 111. 422, 8 N. E. 
 62; Hoge v. People, 117 111. .",.", 6 N. E. 796. 
 There was no error in refusing the defend- 
 ant's third refused instruction, because in- 
 structions given for the state and for the 
 accused required the jury to believe from 
 the evidence, beyond a reasonable doubt, 
 that the defendant willfully and malicioiisly 
 burned the barn of Ridenhour. 
 
 Complaint is mudc that the court refused 
 to instruct the jury as follows: "If the jury 
 entertain any reasonable doubt as to wheth- 
 er or not the defendant was at his own 
 home or at the scene of the alleged offense 
 at the time such offense was committed, 
 then it is your duty, under the law, to acquit 
 him." Such an instruction was held to be 
 incorrect in MuUins v. People, supra. The 
 reasonable doubt of guilt which will acquit 
 the prisoner when his defense is an alibi 
 is the doubt which arises from a considera- 
 tion by the jury of aU the evidence, "as well 
 that touching the question of the alibi as 
 the criminating evidence introduced by the 
 prosecution." MuUins v. People, supra. In 
 the case at bar, 14 instructions were given 
 for the state, and 18 for the defendant. The 
 jury was instructed in regard to the subject 
 of reasonable doubt in accordance with the 
 principles laid down by this court in Miller v. 
 People, 39 111. 457; May v. People, 60 111. 119; 
 Connaghan v. People, 88 111. 400; Spies v. 
 People, 122 111. 1, 12 N. E. 865, and 17 N. E. 
 898. We see no reason for departing from 
 the views expressed in these cases. 
 
 Counsel for plaintiff in error claim that 
 the trial court erred in refusing to give their 
 refused instruction No. 17, which is as fol- 
 lows: "The jury are instructed, as a mat- 
 ter of law, that, when a conviction for a 
 criminal offense is sought on circumstantial 
 evidence alone, the people must not only 
 show, by a preponderance of evidence that 
 the alleged facts and circumstances are true, 
 but they must be such facts and circum- 
 stances as are absolutely inconsistent, upon 
 any reasonable hypothesis, with the inno- 
 cence of the accused, and incapable of ex- 
 planation upon any other theory than that 
 of the guilt of the accused; and in this case, 
 if all the facts and circumstances relied on 
 by the people to secure a conviction can be 
 reasonably accounted for upon any theory 
 consistent with the innocence of the defend- 
 ant, they should acquit him." In instruc- 
 tion No. 13 given for the people, the court 
 told the jury that circumstantial evidence 
 should be of such a character as to exclude 
 every reasonable hypothesis other than that 
 the defendant is guilty." In instruction Xo. 
 1 given for the defendant, the court instruct- 
 ed the jury that "the defendant is presumed 
 to be innocent until the contrary appeared 
 by the evidence, and such evidence must be 
 so strong and convincing as to remove every 
 reasonable doubt of his guilt, to the exclu- 
 sion of every reasonable hypothesis of his 
 18 
 
 innocence." Irrespective of the question 
 whether refused instruction No. 17 was right 
 or wrong, the defendant could not have been 
 injured by its refusal, in view of the giving 
 of plaintiff's insti-uction No. 13, and defend- 
 ant's instruction No. 1, as above quoted, 
 whether the two last-named instructions 
 were correct or not. A defendant cannot 
 complain of the refusal of an instruction if 
 its substance is embodied in instructions 
 which are given, and, in so holding, this court 
 does not necessarily hold such given instruc- 
 tions to be correct. In addition, however, to 
 this consideration, said instruction No. 17 
 was properly refused, because it is so broad 
 and sweeping in its terms that, if it were 
 given in every criminal case dependent upon 
 circumstantial evidence, it would have a 
 tendency to prevent, in many instances, the 
 conviction of guilty parties. Gannon v. Peo- 
 ple, 127 111. 507, 21 N. E. 525; Whart. Cr. 
 Ev. (8th Ed.) § 10. "What circumstances 
 amount to proof can never be matter of gen- 
 eral definition. The legal test is the suffi- 
 ciency of the evidence to satisfy the under- 
 standing and conscience of the jury. On the 
 one hand, absolute metaphysical and demon- 
 strative certainty is not essential to proof by 
 circumstances. It is sufficient if they pro- 
 duce moral certainty, to the exclusion of 
 every reasonable doubt." Starkie, Ev. § 79; 
 Otmer v. People, 70 111. 149. The circum- 
 stances must be such as to produce a moral 
 certainty of guilt, and to exclude any other 
 reasonable hypothesis. Com. v. Goodwin, 14 
 Gray, 55; 1 Greenl. Ev. § 13a. The jury 
 should be satisfied of the defendant's guilt 
 beyond a reasonable doubt, and if there 
 be no probable hypothesis of guilt consistent, 
 beyond reasonable doubt, with the facts of 
 the case, the defendaht must be acquitted. 
 Com. V. Costley; 118 Mass. 1; Whart. Cr. 
 Ev. (8th Ed.) § '21. In order to warrant a 
 conviction of crime on circvimstantial evi- 
 dence, the circumstances, taken together, 
 should be of a conclusive nature and tend- 
 ency, leading, on the whole, to a satisfac- 
 tory conclusion, and producing, in effect, a 
 reasonable and moral certainty that the ac- 
 cused, and no one else, committed the offense 
 charged. Com. v. Goodwin, supra. It is 
 difficult to define accm-ately what is a rea- 
 sonable doubt, but all the autliorities agree 
 that such a doubt must be actual and sub- 
 stantial, as contradistinguished from a mere 
 vague apprehension, and must arise out of 
 the evidence introduced. 3 Greenl. Ev. (15th 
 Ed.) § 29, note a; Earl v. People, 73 111. 329. 
 The jury may be said to entertain a reason- 
 able doubt when, after the entire compari- 
 son and consideration of all the evidence, 
 they cannot say that they feel an abiding 
 conviction to a moral certainty, of the truth 
 of the charge. Com. v. ^^'(■bster, 5 Cush. 320. 
 Proof "beyond a reasonable doubt" is such 
 proof as precludes every reasonable hypoth- 
 esis except that which it tends to support. 
 It is proof "to a moral certainty," as distin- 
 guished from an absolute certainty. The 
 
DIUECT AND INDIHECT EVIDENCE. 
 
 [Case No. 6 
 
 two phrases— "proof beyond a reasonable 
 doubt," and proof "to a moral certainty"— 
 are synonymous and equivalent. "Bach sig- 
 nifies such proof as satisfies the judgment 
 and conscience of the jury as reasonable men, 
 and applying their reason to the evidence be- 
 
 fore them, that the crime charged has been 
 committed by the defendant, and so satisfipd 
 them as to leave no other reasonable conclii 
 sion possible." Com. v. Costley, supra. Th; 
 judgment of the circuit court is affirmed. Af 
 firmed. 
 
 39 
 
Case No. 7] 
 
 HELEVANCY. 
 
 FEUKARI et al. v. JUliUAY. 
 
 (25 N. B. 970, 152 Mass. 496.) 
 
 Supreme .Tndicial ("durt of Massachusetts. 
 Suffolk. Nov. 2li. 1811(1. 
 
 Exceptions from superior court, Suffolk 
 couuty; James M. Barker, .Tudse. 
 
 Action by Annibali Ferrari and others 
 against Henry Murray for a balance alleged 
 to be dtie to plaintiffs on a written contract 
 for the making by tlieni for defendant of a 
 granite monument. Defendant alleged ex- 
 ceptions. 
 
 J. L. Kldridge, for plaintiffs. S. Z. Bow- 
 man and W. F. Prime, for defendant. 
 20 
 
 ^^^ ALLION, .I. The defense ^vas a broach 
 of warranty that the monument should be 
 free from all imperfections. The question 
 put by the defendant to the plaintiffs on 
 cross-examination, whether they knew of a 
 particular process described to him of mend- 
 ing and concealing cracks in granite, was 
 immaterial. The plaintiffs' knowledge of a 
 process by which cracks could be concealed 
 had no tendency to prove that cracks exist- 
 ed, and if cracks did exist it was immaterial 
 whether the plaintiffs did or did not know 
 of them or attempt to conceal them. A ma- 
 jority of the court are of opinion that the 
 entry should be, exceptions overruled. 
 
TACTS TJiXDlNU TO PKOVE FACTS IN ISSUE. 
 
 [Case No. 8 
 
 FINDLAY BREWING CO. v. BAUER. 
 
 (35 N. E. 55, 50 Ohio St. ."iliO.) 
 Supreme Court of Ohio. Oct. .'Jl, 1803. 
 Error to circuit court, Lucas county. 
 Action for personal injuries by one Bauer 
 against the Findlay Brewing Company. 
 riaintifC had Judgment, and defendant 
 brings error. Attirmed. 
 
 Waite & Snider, for plaintiff in error, 
 .fames E. Pilliod and Ashton H. Coldham, 
 for defendant in error. 
 
 MlNSllALL, J. The action below was by 
 an employe oC the dol'eudant, to recover dam- 
 ages for a personal injury caused, as claim- 
 ed, by the negligence of the defendant in 
 furnishing an unsafe appliance with which 
 to do the work in which he was employed. 
 The averments are, in substance, that while 
 operating, by the direction of the suijerin- 
 tendent of the company, a lift, used for the 
 Ijurpose of elevating barrels and similar 
 packages from a lower to an upper floor, he 
 was injured, without fault on his part, by 
 one of these packages falling back upon him; 
 and that it resulted from the negligent and 
 defective construction of the appliance, of 
 which the defendant had notice, but of 
 which he had no knowledge, and could not 
 have had, in the exercise of ordinary care on 
 his part. Issues were joined upon the aver- 
 ments of the petition as to the defective char- 
 acter of the lift, the negligence of the de- 
 fendant, and the averment that it happened 
 without fault on the part of the plaintiff. It 
 appeared that the lift or elevator consisted 
 of a broad, heavy, rubber belt, with certain 
 ~ lateral supports and guides of timber, run- 
 ning nearly perpendicular against a board 
 the full width of the belt, and over a pulley 
 just above the upper floor, and around an- 
 other just below the wash-room floor. To 
 the face of this band were attached two sets 
 of iron hooks or arms, which, as the band 
 revolved, caught the barrels on the under 
 side, and carried them up through an open- 
 ing in the floor; and as they turned on the 
 upper pulley the barrels fell away by their 
 own weight to the floor above, and left the 
 hooks free to continue their downward move- 
 ment. The barrels to be elevated were 
 placed upon a skid raised above the lower 
 floor, and inclined towards this revolving- 
 band, and the man tending the elevator roll- 
 ed them, one at a time, against the band, 
 ready for the hooks coming around and up- 
 ward from the lower pulley to carry them 
 over the pulley above; and, as one barrel 
 was freeing Itself from the hooks above, the 
 other set of hooks were about ready to re- 
 ceive the next barrel. While the plaintiff was 
 engaged In so placing the Ijairels ready to be 
 taken up by the hooks, one of them, a half 
 barrel, after being carried part way up, fell 
 from the hooks, and, striking his hand, then 
 resting on the barrel next to go up, caused 
 
 the injury complained of. It was claimed 
 that these hooks or arms were too short, and 
 that in any irregular motion of the belt the 
 barrel or package being lifted would drop 
 out and fall back, and that this was not an 
 infrequent occurrence when, as sometimes 
 happened, the belt became too loose. Dur- 
 ing the progress of the trial a witness was 
 called by the plaintiff, and stated, in answer 
 to a yuestiou, that, some time before he had 
 been employed by the defendant to do the 
 same work, and that, while so employed, a 
 barrel fell back and injured him. The coun- 
 sel for the plaintiff stated that this was of- 
 fered for the sole purpose of showing the 
 dangerous character of the machine, and the 
 defendant's knowledge of that fact, and for 
 no other purpose. The court thou stated 
 that it would be received for these purposes, 
 and no other, and so instructed the jui-y at 
 the time. Similar evidence as to the falling 
 back of barrels while the lift was being oper- 
 ated was given by other witnesses, to which 
 the defendant excepted at the time. The 
 jury rendered a verdict in favor of the plain- 
 tiff, on which the coui't, after overi-uling a 
 motion for a new trial, rendered judgment. 
 The judgment having been affirmed by the 
 circuit court, this proceeding is prosecuted 
 to obtain a reversal of both judgments so 
 rendered. 
 
 The only question in the case is as to the 
 admissibility of the evidence offered to show 
 that on former occasions, when the elevator 
 was being operated, barrels and jiackages 
 fell back, and injured the persons operating 
 it, as in this case. It is claimed to be incom- 
 petent on the ground that it raises collateral 
 issues tending to mislead the jury and to 
 surprise the opposite party, by the intro- 
 duction of evidence for which he could not 
 have been prepared by the nature of the is- 
 sue. The rule relied on is thus stated by 
 Greenleaf: "The evidence ottered must cor- 
 respond with the allegations, and be con- 
 flned to the point in issue." Greenl. Ev. § 
 51. And he adds, in the following section: 
 "This rule excludes all evidence of collateral 
 facts, or those which n'c imapable of afford- 
 ing any reasonable presumption or inference 
 as to the principal matter of fact in dis- 
 pute." The authorities on the question ai-e 
 conflicting. The courts of Massachusetts 
 and some of the other states hold that such 
 evidence is not within the issue, but collat- 
 ei'al to it, and should be rejected. Collins v. 
 Dorchester, (5 Cush. 396; Aldrich v. Pelham, 
 1 Gray, 510; Phillips v. Town of Willow, 70 
 Wis. 6, 34 N. W. 731. But reason and the 
 weight of authority are the other way. The 
 rule, as stated by Greenleaf, excludes only 
 those facts "which are incapable of affording 
 any reasonable presumption or inference as 
 to the principal matter or fact in dispute." 
 So that a fact cannot be said to be collateral 
 to the issue if, when established, it tends to 
 prove or disprove the principal fact in dis- 
 
 21 
 
Case No. 8] 
 
 KELEVAXCY. 
 
 pute. lu this case a number of princiijal 
 facts were in dispute. Among these were 
 the defectiveness of the machine, and the de- 
 fendant's Ivnowledge of that fact, as well as 
 his negligence in the premises. If the evi- 
 dence objected to tended to prove either of 
 these facts, there was no error in its admis- 
 sion. There is no rule of evidence which re- 
 quires that what is offered should be rele- 
 vant to every issue in the case; it may be 
 relevant to one, and irrelevant to another. 
 No party can, as a rule, prove his case uno 
 flatu. He is compelled, in the nature of 
 things, to proceed step by step; and it not 
 infrequently happens that what is competent 
 for one purpose is not for another. The 
 mixed character of the evidence does not, 
 however, render it wholly incompetent. The 
 evidence in' such case is admitted with a di- 
 ro:;'tion from the court to the jury as to how 
 it is to be applied, on what issues it is to be 
 considered, and on what not, as was done in 
 this case. 
 
 On reason, it seems plain that evidence 
 as to how this lift or elevator behaved on 
 former occasions — that at other times, when 
 being operated by other persons, barrels 
 being lifted had fallen, and injured those 
 operating it, or had simply fallen back, the 
 conditions rejmaining substantially the same 
 — tended to prove some vice in its con- 
 struction that rendered its operation dan- 
 gerous, and that the company knew or 
 should have known the fact. Inspection it- 
 self may indicate some defect in a machine, 
 affecting its safety or usefulness; but, as is 
 most usually the case, its defective character, 
 whatever it may be, is more clearly observ- 
 ed in its operation. Experiment is the final 
 and most conclusive test of its safety, as 
 well as of its usefulness; and the fact that 
 the carefulness of the party operating the 
 machine may be involved in each instance 
 may affect the weight of the evidence, but 
 not its admissibility, as such a limitation 
 would exclude the result of every experiment 
 offered in evidence, which would amount to a 
 reductio ad absurdum. The defectiveness 
 of the lift, and the company's knowledge of 
 it, would not, however, alone constitute 
 actionable negligence. The character of the 
 machine and the employer's knowledge be- 
 ing established, it still remains a question 
 of fact whether, under all the circumstan- 
 ces, a case of actionable negligence has been 
 made out. That which caused the danger 
 may have been irremediable, and it is no 
 violation of duty by an employer to put one 
 in his employ at the operation of a danger- 
 ous machine, if the employ? is fully inform- 
 ed as to its character, and voluntarily ac- 
 cepts the employment. Whenever force is 
 applied to machinery there is more or less 
 danger to those operating it; so that the 
 duty of the employer towards his employe is 
 not to furnish a perfectly safe machine, 
 but one as safe as can be provided in the 
 exercise of ordinary care and prudence. 
 
 22 
 
 Whether the employer is negligent in this 
 regard does not depend solely upon the fact 
 that the machine is known by him to be a 
 dangerous appliance, but whether, with such 
 knowledge, he neglected to do what a per- 
 son of ordinary care could and would have 
 done under such circumstances. It was, 
 however, incumbent on the plaintiff, in mak- 
 ing out his case, to show the dangerous 
 character of the machine and the com- 
 pany's knowledge, as well as its negligence: 
 and, while the evidence was not competent 
 to prove negligence, it did tend, as we have 
 shown, to prove the other facts, and was 
 therefore admissible. As said by the judge 
 delivering the opinion in Darling v. West- 
 moreland, 52 N. H. 403: "The evidence to 
 prove several independent propositions or 
 distinct facts may be of different kinds, and 
 drawn from different sources." If evidence 
 offered be relevant to any issue in the case, 
 it is admissible, however incompetent it 
 may be upon other issues. Commenting on 
 the rule that confines the evidence to facts 
 put in issue by the pleadings, and excludes 
 collateral issues. Doe, J., in the case just 
 cited, says: "This rule merely requires the 
 evidence to be relevant. It merely excludes 
 what is irrelevant. It is a rule of reason, 
 and not an arbitrary or technical one, and 
 it does not exclude all experimental knowl- 
 edge." And it was there held that, on the 
 question whether a pile of lumber was 
 likely to frighten horses, evidence is ad- 
 missible to show that horses passing it were 
 or were not frightened by it. In McCar- 
 ragher v. Rogers, 120 N. Y. 526, 24 N. E. 
 812, an action to recover damages for an 
 injury sustained by the plaintiff while 
 working at a machine in the employ of the 
 defendant, a person who had previously 
 been injured while working the machine in 
 the capacity of the plaintiff was asked, 
 "How did the injury occur to youV" and he 
 answered, "It jumiied out of the socket in 
 the same way." The evidence was held 
 to be relevant and competent as bearing 
 upon the question of the condition of the 
 machinery; and the court said that, while 
 the decisions are not in entire harmony on 
 the question, such is the rale recognized in 
 that state. And so in Morse v. Railway 
 Co., 30 Minn. 465, 471, 16 N. W. 358, which 
 was an action by an employe of defendant 
 to recover for an injui-y caused by its negli- 
 gence in permitting its tracks to be and 
 remain out of order, such evidence was 
 held competent. The court said: "It is, of 
 course, not competent for the purpose of 
 showing independent acts of negligence, but 
 we think on principle it is clearly admis- 
 sible when it tends to show the common 
 cause of these accidents is a dangerous or 
 unsafe thing. It would be certainly com- 
 petent to prove by an expert that, at a time, 
 either before or after the accident, when 
 the instrument claimed to have caused it 
 was in the same condition as when the ac- 
 
■FACTS TENDING TO PROVE FACTS IN ISSUE. [Case No. 8 
 
 cident complained of occurred, lie examlucd 
 and experimented with it, and found it 
 capable of producing like results. Hence 
 there seems no reason for excluding ordi- 
 nary exijerience, when confined within the 
 same limits and for the same purpose. 
 These facts are in the nature of experi- 
 ments to show the actual condition of the 
 instrument. Upon any issue as to the con- 
 dition or safety of any woi-k of human con- 
 struction designed for practical use. evi- 
 dence showing how it has served when put 
 to the use for which it was designed would 
 seem to bear directly upon the issue. It is 
 sometimes objected that this presents new 
 and collateral issues of which a defendant 
 has no notice. In a cei-tain sense every 
 item of evidence material to the main issue 
 introduces a new issue; that is, it calls for 
 a reply. In no other sense does it make a 
 new issue. Its only importance is that it 
 bears on the main issue, and, if it does, it 
 is competent." We have quoted thus fully 
 from the opinion in this case because it 
 seems to set forth clearly and fully the 
 reasons for the admission of such evidence, 
 and to answer eveiy objection that can be 
 made. The reasoning in the Massachusetts 
 cases cited above, and relied on by the plain- 
 tiff in error, has generally been regarded as 
 unsound; and, for this reason, the decisions 
 have not generally been followed as prec- 
 
 edents by the courts of the other states. 
 Osbo. lie V. City of Detroit, 3:2 Fed. 36, where 
 it is said, refeiTing to the Massachusetts 
 cases, the weight of authority is decidedly 
 the other way. City of Chicago v. Powei's, 
 42 111. 169, 173; Moore v. City of Burling- 
 ton, 4!J Iowa, 13B; \\'iilkcr v. \\estfleld, 30 
 Vt. L'4ti, 2.->l. It is here said that '"a fact 
 that illustrates, as l)y an experiment, the 
 condition of the subject-matter of the issue 
 in controversy, is not collateral to that is- 
 sue, but is direct evidence bearing upon it." 
 City of Aurora v. Brown, 12 111. App. 122; 
 Darling v. \Ve.stmoreland, 52 N. H. 401. 
 Here the Massachusetts cases are consider- 
 ed and declared unsound. City of Delphi v. 
 Lowery, 74 Ind. .">2iJ, contains an elaborate 
 review of the cases. Cook v. New Dur- 
 ham (N. H.) 13 Atl. e.W; Kent v. Town of 
 Lincoln, 32 Yt. 591; Piggot v. Railway Co., 
 3 C. B. 229. As the evidence objected to 
 tended to prove that the lift had in it a 
 vice, making it dangerous to operate, and 
 that the company had notice of this from 
 its previous behavior, thei-e was no error in 
 admitting the evidence, with a direction to 
 the jury that it was to be confined to these 
 purposes, and could not be cfiusidered on 
 the question of the defendant's negligence 
 in the premises. Judgment affirmed. 
 
 SPEAR and BUEKBT, JJ., dissent. 
 
 23 
 
Case No. 9] 
 
 15ELEVANCY. 
 
 PINXEt V. JONES. 
 
 (30 Atl. 762, 64 Conn. 545.) 
 
 Supreme Court of Errors of Connecticut. ,Tuly 
 9, 1«'.)4. 
 
 Appeal from superior court, New Haven 
 county; Prentice, Judge. 
 
 Action by Maria W. Pinney, executrix of 
 the estate of Charles H. Pinney, deceased, 
 against Emily Jones to foreclose a mortgage. 
 From a decree for plaintiff, entered on the 
 report of the state referee, defendant appeals. 
 Affirmed. 
 
 V. Munger, for appellant. William H. AVil- 
 liams, for appellee. 
 
 TORRANCE, J. This is an action brought 
 to foreclose a mortgage made to secure a note 
 for sixteen hundi-ed dollars by the defendant, 
 Emily Jones, to Charles H. Pinney, now de- 
 ceased. The defendant claimed to have paid 
 upon said note to Pinney, during his life- 
 time, the sum of $1,500, and whether this was 
 true or not was the main fact in dispute be- 
 tween the parties. The case was tried be- 
 fore the Honorable Elisha Carpenter, as state 
 referee. For the purpose of showing her abil- 
 ity to make such payment, the defendant of- 
 fered evidence to prove, and claimed she had 
 proved, that at the time when she bought 
 the mortgaged premises, in March, 1892, she 
 had in her possession the sum of $1,500, in 
 addition to the sum of $500 whiclj she had 
 paid on account of said purchase; that this 
 sum of $1,500 was in a package in her house; 
 that she moved into the house upon the mort- 
 gaged premises in April, 1892, and two or 
 three weeks thereafter, in the presence of her 
 daughter Cora, who was produced as a wit- 
 ness, she counted said $1,500, and, after 
 counting the same, deducted $15 therefrom, 
 and placed the remainder in a tin box, and 
 placed the box, with the money in it, in a 
 jar, and sealed up the jar with putty; and 
 that, after leaving the jar upon a shelf to 
 dry for two or three days, she and her hus- 
 band, who was produced as a witness, buried 
 this jar in the cellar near the bottom of the 
 stairs, covered it over, and placed a paint 
 barrel over the spot where the jar was 
 buried. While Mrs. Jones was upon the wit- 
 ness stand, her counsel offered to prove by 
 her that, some time within two months after 
 the money had been counted as aforesaid, 
 Mrs. Jones requested her daughter Cora to 
 go with her to the said place where the 
 money was then buried, and that thereupon 
 Cora and she went to the spot from the sit- 
 ting room above; that Mrs. Jones then and 
 there removed the paint barrel, and told 
 Cora that the money was in a pot in the 
 ground, and that she wanted her. to know 
 where it was, "for if she should die she 
 wanted her to know about it." The finding 
 states: "It was not claimed that the earth 
 was removed from over the jar in which the 
 money was claimed to have been placed, or 
 that the jar or other thing, in which it is now 
 24 
 
 claimed the money then was. was so exposed 
 or attempted to be exposed to view. The 
 plaintiff's counsel objected to the admission 
 in evidence of the conversation betwe.'ii the 
 said Emily Jones and her daughter Cora up- 
 on this occasion, and it was excluded; to 
 which ruling the defendant duly excepted." 
 Mrs. Jones thereafter upon this point testi- 
 fied, without objection, as follows: "Cora 
 went with me down cellar; went down the 
 cellar steps to tlie left hand of the stairs, 
 just as you go down. I showed her the 
 money. I took the paint barrel, and moved 
 it around like this [illustrating], and pointed 
 out to her where the money was concealed. 
 Then I set the barrel back on the same spot 
 I had removed it from. Then we- went up- 
 stairs. That she, Cora, was the only person, 
 .so far as she knew, besides her husband, 
 that ever knew or was shown where the 
 money was." The daughter Cora also tesii- 
 fied, without objection, to her going down in 
 the cellar with her mother, and being shown 
 where the money was concealed, substantial- 
 ly as her mother had done. The referee 
 found that said Claimed payment of $1,500 
 had not been made. To the report made by 
 the referee the defendant filed a remon- 
 strance, setting up as the ground of it the ac- 
 tion of the referee in excluding the conver- 
 sation aforesaid between Cora and her 
 mother. He further set up therein that the 
 plaintiff claimed that Mrs. Jones did not have 
 said sum of $1,500 at any time after 1891, and 
 that her entire story with reference to the 
 possession of said sum was false. The plain- 
 tiff demurred to the remonstrance, the court 
 sustained the demurrer, judgment was ren- 
 dered for the plaintiff, and the defendant 
 appealed. 
 
 This appeal presents but a single question, 
 and that is whether the statement made by 
 Jlrs. Jones to her daughter was admissible. 
 It is apparent that the defendant obtained 
 the benefit of everything else claimed by her 
 except this statement. She was allowed to 
 testify fully to her acts and conduct in going 
 into the cellar, and pointing out the place 
 where she claimed the money was concealed, 
 and from all this Cora understood that tJie 
 money was there buried. She says, indeed, 
 that she there showed Cora the money; but 
 from her own testimony, and from other 
 parts of the record, it is clear that all she 
 meant by this was that she showed her the 
 place where the money was concealed. Es- 
 sentially then, in this view of the matter, 
 all that was excluded was her statement of 
 her reason for having Cora know where the 
 money was concealed; and it Is perhaps 
 questionable whether, even on the defend- 
 ant's view of the case, the exclusion of that 
 was error (Russell v. Prisbie, 19 Conn. 205- 
 211).; and, if it was, the case might perhaps 
 be disposed of on the ground that the eiTor 
 did not harm the defendant. But, as we 
 think the evidence was rightly excluded, we 
 prefer to rest the decision upon that ground, 
 
KES GEST^. 
 
 [Case No. 9 
 
 rather than upon the one su?:,>;psted. As we ' 
 have said, what was done ni the cellar was, 
 ■without objection, fully testified to by both 
 Mrs. Jones and Cora. ^A'liat was said was 
 excluded; and that was, in substance, a 
 statement by Jlrs. Jones that the mouey wa.'* 
 turied there in a jar, and that she wanted 
 to have Cora know, for a reason then stated, 
 where it lay. The defendant strenuously 
 insisted that this statement characterized the 
 act of JXrs. Jones in going to the cellar, .and 
 doing what she did there, and was admis- 
 sible in corroboration of her claim to the 
 possession of the money, and as part of the 
 res gestae ; and in support of these claims she 
 relies mainly upon the case of Card v. Foot 
 ,5C Conn. 3(!9, 15 Atl. 371. The general rule 
 is that a party cannot give in evidence his 
 own declarations in his own favor, made in 
 the absence of the other party; but there 
 is one well-recognized exception to this rule, 
 where such declaration is part of what, for 
 want of a better name, is called the "res 
 gestae." Kilburn v. Bennett, 3 Mete. (Mass.) 
 199; Stirling v. Buckingham, 46 Conn. 401. 
 The nature and limits of this exception are 
 tolerably well defined, although the applica- 
 tion of the rule embodied in the exception, 
 in particular cases, is sometimes attended 
 with difficulty. That rule is thus stated in 
 Starkie on Evidence (10th Ed., 466-687): "In 
 the first place, an entry or declaration ac- 
 companying an act seems, on principles al- 
 ready announced, to be admissible evidence 
 in all cases where a question arises as to the 
 nature or quality of that act. Indeed, when- 
 ever an entry or declaration reflects light 
 upon, or qualifies, an act which is relevant 
 to the matter in issue, and is evidence in it- 
 self, it becomes admissible as part of the 
 res gestae, if it be contemporaneous with the 
 act." According to this writer, before a 
 written declaration made by a party in his 
 own favor can be admissible as part of the 
 res gestae, the act which it characterizes, 
 and of which it forms a part, must be itself 
 admissible in evidence in the case; and so 
 are the authorities. "Where an act done is 
 evidence per se, a declaration accompanying 
 that act may well be evidence, If it reflects 
 light upon or qualifies the act. But I am 
 not aware of any case where the act done is, 
 in its own nature, iri-olevant to the Issue, 
 and where the declaration per se is inadmis- 
 sible, in which it has been held that the 
 union of the two has rendered them admissi- 
 ble." Coltman, J., In Wright v. Tatham, 7 
 Adol. & E. 301; Hotel Co. v Manning, 1 Ir. 
 R. Com. Law, 125. "Res gestae are the cir- 
 cumstances, facts, and declarations which 
 grow out of the main fact, are contemporane- 
 ous with it, and serve to illustrate its char- 
 acter." Stirling v. Buckingham, 46 Conn. 
 401. "When the act of a party may be given 
 in evidence, his declarations, made at the 
 time, and calculated to elucidate and explain 
 the character and quality of the act, and so 
 connected with it as to constitute one trans- 
 
 action, and so as to derive credit from the 
 act itself, are admissible in evidence. There 
 must be a main or principal fact or transac- 
 tion, and only such declarations are admissi- 
 ble as grow out of the principal transaction, 
 illustrate its character, are contemporary 
 with it, and derive some degree of credit 
 from it." Lund v. Tyngsborough, 9 Cush. 36. 
 It follows that if the act of Mrs. Jones irre- 
 spective of the accompanying statement, was 
 not in itself admissible in evidence, then the 
 statement was inadmissible; and the fact that 
 the act was admitted without objection does 
 not make the accompanying statement legal 
 evidence. The question, then, is whether what 
 Mrs. Jones did upon the occasion in question 
 was per se admissible as evidence in the 
 case, and we afe clearly of the opinion that 
 it was not. It was offered and received as 
 an act tending to show that she then had 
 this money in her possession; but, rightly 
 considered, it was not in any proper sense, 
 within the meaning of the rule in question, 
 an act or transaction at all. It is true there 
 were the physical acts of going downstairs, 
 and over to where it was supposed the 
 money was buried, and the moving of the 
 paint barrel, and the pointing to or other- 
 wise indicating a certain spot of earth, but 
 that was all. There is nothing in all this 
 tending in the least to show that the money, 
 or the receptacle v.liich had contained it, 
 was then in the spot pointed out. For aught 
 that appears, all that Mrs. Jones could then 
 know or say about the money was, not that 
 it was then there, but that she had put it 
 there some time before, and believed it was 
 there then; and neither she nor Cora then 
 knew, or could know, that the money was 
 then in the possession of Mrs. Jones, or even 
 in existence at all. Nothing whatever was 
 done by either of them with, or with refer- 
 ence to, the money or the jar; they were 
 not seen, handled, nor dealt with in any 
 manner whatsoever. Essentially, the so- 
 called "act" or "acts" of Mrs. Jones are but 
 statements or declarations that she had 
 buried the money there some time before, 
 and believed it was there then. 
 
 Suppose Mrs. Jones and her daughter- had 
 remained up-stairs, and Mrs. Jones had said 
 to Cora: "I put the money you saw me count 
 the other day into a tin box, and the box 
 into a jar, and buried the jar in the cellar to 
 the left hand of the stairs, just as you go 
 down, and put a paint barrel over the spot 
 where they now are. I tell you this, so that 
 in case of my death you will know where to 
 find the money," — could any one successfully 
 contend that such a statement was admissi- 
 ble? Clearly not. It would be a mere nak- 
 ed statement or declaration of a past trans- 
 action in tlie party's own favor, and would 
 clearly fall within the general rule of exclu- 
 sion. But the supposed case does not differ 
 essentiallj' from the real case. — for in the 
 one Jlrs. Jones indicates and describes the 
 place where she buried the money by words, 
 
 25 
 
Case Xo. 9] 
 
 KELEVANCT. 
 
 and in the other she indicates and describes 
 it by acts; and the result of both Is but a 
 statement or declaration to Cora that the 
 money had been buried there, and that Mrs. 
 Jones believed it was there at that time. 
 That in the one case this information is con- 
 veyed to Cora by words, and in the other by 
 acts, can make no difference; in both the re- 
 sult is only and solely Information conveyed. 
 The difference between an act of the kind 
 here claimed and the acts done in Russell v. 
 Frisbie, 19 Conn. 205, and Card v. Foot, 56 
 Conn. 309, 15 Atl. 371, is quite obvious. In 
 the former case tlie defendant was allowed 
 to prove what he said to one Hempstead, 
 when he handed to him for safe-keeping the 
 ship's papers, which defendant had taken 
 from a vessel of his in order to revoke the 
 authority of her captain; in the latter, the 
 plaintiff was allowed to prove what she said 
 to Miss Lyon when she delivered to her for 
 safe-keeping the package containing the 
 plaintiff's bonds. In both of these cases the 
 declarations allowed, accompanied, grew out 
 of, formed part of, and of course qualified 
 and characterized, acts which themselves 
 were clearly admissible to prove the then 
 possession and disposition of the ship's pa- 
 pers in the one case, and the bonds in the 
 other. The acts were not in effect mere dec- 
 26 
 
 larations, but acts of possession and disposi- 
 tion in a real and true sense. In the case 
 at bar this is not so. There the so-called 
 "act" is itself, in effect, but a statement or 
 declaration. Nothing was transacted, noth- 
 ing was done, nothing was transpiring, evi- 
 dent to any witness, which could confirm the 
 declarations excluded, or by which, upon 
 cross-examination or otherwise, the truth of 
 those declarations could be tested. "Declara- 
 tions accompanying acts are a wide field of 
 evidence, and to be carefully watched," said 
 Williams, J., in Queen v. Bliss, 7 Adol. & E. 
 556, a good many years ago; and we think 
 this "field" should still be carefully watched. 
 The exceptions to the general rule excluding 
 statements made by one in his. own favor 
 ought to be strictly limited; certainly the 
 scojie of the exception In question ought not 
 to be extended to a case like the one at bar. 
 For the reasons given, the claimed act or acts 
 of Mrs. Jones were not admissible, and 
 should, and on objection probably would, 
 have been excluded. They were, however, ad- 
 mitted, and of this the defendant does not, 
 and cannot justly, complain; but on objec- 
 tion, the statement accompanying the claimed 
 act was excluded, and we think was right- 
 fully excluded. There is no error. The oth- 
 er judges concurred. 
 
UES GESTAE 
 
 [Case No. 10 
 
 VICKSBURG & M. li. CO. t. OBHIEN et al.i 
 
 (7 Sup. Ct. UK 11 n U. S. 99.1 
 
 Supreme Court of the United States. Nov. 1, 
 1886. 
 
 In error to the circuit court of the United 
 States for the Southern district of Missis- 
 sippi. 
 
 Wm. L. Nugent, E. M. .Tohnson, Geo. Hoad- 
 ley, and Edw. Coeston, for plaintiff in error. 
 T. C. Catehlngs, for defendants in error. 
 
 HARLAN, J. This action was brought by 
 Mary E. O'Brien and her husband, John J. 
 O'Brien, to recover damages sustained in 
 consequence of personal injuries received by 
 the wife in September, 1881, while a pas- 
 senger upon the Viclisburg & Meridian Rail- 
 road. The declaration alleges that the com- 
 pany "so carelessly, negligently, and unskill- 
 fuUy constructed and maintained its railroad 
 track, engine, and cars, and so carelessly, 
 negligently, and unskillfuUy conducted itself 
 in the management, control, and running of 
 the same," that the car in which Jlrs. O'Brien 
 was seated as a passenger was thrown from 
 the railroad track and overturned, whereby 
 she was seriously injured. There was a ver- 
 dict and judgment for $9,000 in favor of the 
 plaintifCs. 
 
 1. At the trial the plaintiffs ofCered to read 
 to the jury the deposition of a physician, 
 and did read the first, second, and third inter- 
 rogatories propounded to him, and the an- 
 swers thereto. Responding to the first and 
 second inteiTogatories, he stated, among 
 other things, that his attendance upon Mrs. 
 O'Brien commenced on the sixteenth of Sep- 
 tember, 1881; that he found her suffering 
 extreme pain, and in a very nervous condi- 
 tion, resulting a few hours before from a 
 railroad accident on defendant's road; that 
 such was the cause of her injuries he knew 
 from her own answers, from the statement 
 of her brother-in-law, and from attending 
 others who were on the train with her. The 
 third interrogatory and answer were as fol- 
 lows: "(3) Look on the accompanying state- 
 ment, dated November 26, 1881, and state if 
 it was written by you at the date it i>ears, 
 for what purpose it was written, and to 
 whom it was delivered. Does the statement 
 represent, substantially and correctly, Mrs. 
 O'Brien's condition as it appeared when you 
 first saw her, and as it continued up to No- 
 vembei' 26, 1881? Answer. I have looked uiJ- 
 on the statement referred to, which was writ- 
 ten by myself, at Mr. O'Brien's request, at 
 the date mentioned, when he was about to 
 take his wife away from here to his home in 
 New Orleans, and was intended to convey an 
 idea of how she was when I was called to see 
 her, and what her condition was when she 
 
 1 Dissenting opinion of Mr. Justice Field omit- 
 ted. 
 
 left my charge; and, in my opinion, I correct- 
 ly stated her condition at times referred to." 
 
 The written statement referred to In the in- 
 terrogatoi-y was signed by the witness, and 
 attached to his deposition as an exhibit. It 
 was addressed to Mr. O'Brien, and sets forth, 
 with much detail, the nature of the injuries 
 received by the wife, and their effect upon her 
 bodily and mental condition. It also embodied 
 an expression of the witness' opinion as to 
 the probable length of time within which she 
 might recover from her injuries. ■ Theplaintiff, 
 before reading the remaining interrogatories 
 and answers, offered to read this statement to 
 tlie jury as evidence. The company objected 
 upon these grounds: That it was not made 
 by the witness under oath, and in defendant's 
 presence, or with its knowledge and consent; 
 that it was hearsay evidence, and therefore 
 wholly incompetent; and that. In any event, 
 it could only be referred to by the witness to 
 refresh his recollection. The court overruled 
 the objection, and permitted the statement to 
 be read in evidence, the defendant taking an 
 exception thereto, which was allowed. The 
 remainder of the deposition was then read to 
 the jury. 
 
 We are of opinion that this ruling cannot 
 be sustained upon any principle recognized in 
 the law of evidence. The authorities are uni- 
 form in holding that a witness is at liberty to 
 examine a memorandum prepared by him, un- 
 der the circumstances in which this one was, 
 for the purpose of refreshing or assisting his 
 recollection as to the facts stated in it. But 
 there are adjudged cases which declare that 
 unless prepared in the discharge of some 
 public duty, or of some duty arising out of the 
 business relations of the witness with others, 
 or in the regular course of his own business, 
 or with the knowledge and concurrence of the 
 party to be charged, and for the purpose of 
 charging him, such a memorandum cannot, 
 under any circumstances, be admitted as an 
 instrument of evidence. There are, however, 
 other cases to the effect that, where the wit- 
 ness states, under oath, that the memoran- 
 dum was made by him presently after the 
 transaction to which it relates, for the pur- 
 pose of perpetuating his recollection of the 
 facts, and that he knows it was correct when 
 prepared, although after reading it he cannot 
 recall the circumstances so as to state them 
 alone from memory, tlie paper may be re- 
 ceived as the best evidence of which the case 
 admits. 
 
 The present case does not require us to en- 
 ter upon an examination of the numerous 
 authorities upon this general subject; for it 
 does not appear here but that at the time the 
 witness testified he had, without even looking 
 at his written statement, a clear, distinct 
 recollection of every essential fact stated in 
 it. If he had such present recollection, there 
 was no necessity whatever for reading that 
 paper to the jury. Applying, then, to the case 
 the most liberal rule announced in any of the 
 authorities, the ruling by which the plaintiffs 
 
 27 
 
Case No. 10] 
 
 liELEVANCY. 
 
 wfire allowed to read the physician's written 
 statement to the jury as evidence, in itself, 
 of the facts therein recited, was erroneous. 
 
 It is, however, claimed, in behalf of the 
 plaintiffs that in his answers to other inter- 
 rogatories tlip physician testified, apart from 
 the certilioate, to the material facts embodied 
 in it, and that, therefore, the readiiis of it to 
 the jury could not have prejudiced the rights 
 of the defendant, and, for that reason, should 
 not be a ground of reversal. We are unable 
 to say that the defendant was not injuriously 
 affected by the reading of the physician's cer- 
 tificate in evidence. It is not easy to deter- 
 mine what weight was given to it by the jury. 
 In estimating the damages to be awarded, in 
 view of the extent and character of the in- 
 juries received, the jury, for aught that the 
 court can know, may have been largely con- 
 trolled by its statements. The practice of ad- 
 mitting the unsworn statements of witnesses, 
 prepared, in advance of trial, at the i-equest 
 of one party, and without the knowledge of 
 the other party, should not be encouraged by 
 further departures from the established rules 
 of evidence. While this court will not dis- 
 tui'b a judgment for an erroi- that did not 
 operate to the substantial injury of the party 
 against whom it was committed, it is well 
 settled that a reversal will be directed unless 
 it appears, beyond doubt, tliat the error com- 
 plained of did not and could not have prej- 
 udiced the rights of the party. Smiths v. 
 Shoemaker, 17 Wall. 630, 639; Deery v. Cray, 
 5 Wall. 795; Moores v. National Bank, lOJt 
 U. S. 630; Gilmer v. Higley, 110 U. S. 50, 3 
 Sup. Ct. 471. 
 
 2. At the trial below plaintiffs intro<luced 
 one Roach as a witness, who, during his ex- 
 amination, was asked whether he did not, 
 shortly after the accident, have a conversa- 
 tion with the engineer having charge of de- 
 fendant's train at the time of the accident 
 about the rate of speed at which the train 
 was moving at the time. To that question 
 the defendant objected, but its objection was 
 overi-uled, and the witness permitted to an- 
 swer. The witness had previously stated 
 that, on examination of the track after the 
 accident, he found a cross-tie or cross-ties 
 under the broken rail in a decayed condition. 
 His answer to the above question was: "Be- 
 tween ten and thirty minutes after the acci- 
 dent occurred I had such a conversation with 
 Morgan Herbert, the engineer having charge 
 of the locomotive attached to the train at the 
 time of the accident, and he told me that the 
 train was moving at the rate of eighteen 
 miles an hour." The defendant renewed its 
 objection to this testimony by a motion to 
 exclude it from the jury. This motion was 
 denied, and an exception taken. As bearing 
 upon the point here raised it may be stated 
 that, under the evidence, it became material 
 — apart from the issue as to the conditi(ju of 
 the track— to Inquire whether, at the time cf 
 the accident, (which occuiTed at a place on 
 the line where the rails in the track were, 
 
 28 
 
 according to some of the proof, materially 
 defective,) the train was being run at a speed 
 exceeding lo miles an hour. In this vie^v. 
 the declaration of the engineer may have 
 had a decisive influence upon the result of 
 the trial. 
 
 There can be no dispute as to the general 
 rules governing the admissibility of the dec- 
 larations of an agent to affect the principal. 
 The acts of an agent, within the scope of the 
 authority delegated to him, are deemed the 
 acts of the principal. Whatever he does in 
 the lawful exercise of that authority is im- 
 putable to the principal, and may be proven 
 without calling the agent as a witness. So, 
 in consequence of the relation between him 
 and the principal, his statement or declara- 
 tion is, under some circumstances, regarded 
 as of the nature of oi-iginal evidence; "being," 
 says Phillips, "the ultimate fact to be proved, 
 and not an admission of some other fact." 
 1 Phil. Ev. 381. "But it must be remember- 
 ed," says Gicenleaf, "that the admission of 
 tlie agent cannot always be assimilated to the 
 admission of the principal. The party's own 
 admission, whenever made, may be given in 
 evidence against him; but the admission or 
 declai-aliou of his agent binds him only when 
 it is made during tlie continuance of the 
 agency, in regard to a transaction then de- 
 pending et dum ferret opus. It is because 
 it is a verbal act, and part of the res gestse, 
 that it is admissible at all; and therefore it 
 is not necessary to call the agent to prove It; 
 but wherever what he did is admissible in 
 evidence, there it is competent to prove what 
 he said about the act while he was doing it." 
 1 Greenl. Ev. § 113. This court had occasion 
 in Packet Co. v. Clough, 20 Wall. 540, to 
 consider this question. Referring to the rule 
 as stated by Mr. Justice Story in his treatise 
 on Agency (section 134), that "where the acts 
 of the agent will bind the principal, there his 
 representations, declarations, and admissions 
 respecting the subject-matter will also bind 
 him, if made at the same time, and con- 
 stituting part of tlie res gestse," the court, 
 speaking by Mr. Justice Story, said: "A clone 
 attention to this rule, which is of universal 
 acceptance, will solve almost every difti- 
 culty. But an act done by an agent cannot 
 be va%ied. qualified, or explained, either by 
 his declarations, which amount to n» more 
 than a mere narrative of a past occuiTence, 
 or by an isolated conversation held, or an iso- 
 lated act done, at a later period. The reason 
 is that the agent to do the act is not author- 
 ized to narrate what he had done, or how he 
 had done it, and his declaration is no part of 
 tlie res gestte." 
 
 We are of opinion that the declaration of 
 the engineer. Herbert, to the witness Roa<'h 
 was not competent against the defendant for 
 the purpose of proving the rate of speed at 
 which the train was moving at the time of 
 the accident. It is true that, in view of the 
 engineer's experience and position, his state- 
 ments under oath, as a witness, in respect to 
 
ItEs GESTAE 
 
 [Case No. 10 
 
 tliat matter, if creditetl, woiiltl have influeiioe 
 with the jury. Althousli the speed of the 
 train Avas, in some tlesree, subject to his con- 
 trol, still his authorily, in tliat respect, fli'cl 
 not carry with it authority to make declara- 
 tions or admissions at a subsequent time, as 
 to the manner in which, on any particular 
 trip, or at any designated point in his ron^e, 
 lie liad performed his duty, j-lis <l('claratioa, 
 after the accident had become a completed 
 fact, and when he was not performing the 
 duties of engineer, that the train, at the mo- 
 ment the plaintiff Avas injured, was being 
 run at the rate of 18 miles an hour, was not 
 exiilanatory of anything in wliich he was 
 then engaged. It did not accompany the act 
 from which the injuries in question arose. It 
 was, in its essence, the mere nan-ation of a 
 past occurrence, not a part of the res gestn.-, 
 —simply an assertion or representation, in the 
 course of conversation, as to a matter not 
 then pending, and in respect to which his au- 
 thority as engineer had been fully exerted. 
 It is not to be deemed part of the res gestae 
 simply because of the brief period inter- 
 vemng between the accident and the making 
 of the declaration. The fact remains that the 
 occurrence had ended when the declai'ation in 
 question was made, and the engineer was not 
 in the act of doing anything that could pos- 
 0bly affect it If his declaration had been 
 made the next day after the accident, it 
 would scarcely be claimed that it was ad- 
 
 missible (■\ideuce against the company. And 
 yet the circumstance that it was made be- 
 tween 10 and 30 minutes — an appreciable pe- 
 riod of time— after the accident, cannot, upon 
 principle, make this case an exception to the 
 general rule. If the contrary view sliould be 
 maintained, it will follow that the de<-lara- 
 tions of Ihe engineer, if favorable to the com- 
 pany, would have been admissil)le in its be- 
 half as part of the res gestae, without calling 
 liim as a witness,— a i)ri)]i()Sition that will find 
 no support in the law of evidence. The cases 
 have gone far enough in the admission of 
 the subsequent declarations of agents as evi- 
 dence against their principals. These views 
 are fully sustained by adjudications in the 
 highest courts of the states. 
 
 We deem it unnecessary to notice other ex- 
 ceptions taken to the action of the court be- 
 1( > w. 
 
 This case was decided at the last term of 
 this court, and Mr. .lustice Woods concurred 
 in the order of reversal upon the grounds 
 herein stated. 
 
 For the errors indicated the judgment is 
 reversed, and the cause is remanded for a 
 new trial, and for further proceedings con- 
 sistent with this opinion. 
 
 Mr. Chief Jus^tice WAITB, Mr. Justice 
 FIELD, Mr. Justice MILLBK, and Mr. Jus- 
 tice BLATCHFORD, dissent. 
 
 2» 
 
Case No. 11] 
 
 KELE7A2SrCY. 
 
 OHIO & il. RY. CO. V. STEIN. 
 (31 N. E. 180, 32 N. E. 831, laS Ind. 243.) 
 Supreme Oourt of Indiana. May 14, 1892. 
 
 Appeal from circuit court, Jefferson coun- 
 ty; W. T. Friedly, .Tudge. 
 
 Action by William Stein against the Ohio 
 & Mississippi Railway Company to recover 
 for personal injuries. Verdict and judg- 
 ment for plaintift'. Defendant appeals. Re- 
 versed. 
 
 Mcilullen, Johnston & McMuUen, Ramsey, 
 Maxwell & Ramsey, and John McGregor, 
 (Edward Barton, of counsel,) for appellant. 
 Ivorbly & Ford, A. G. Smith, and Lincoln 
 Dixon, for appellee. 
 
 ELLIOTT, C. J. The appellee seeks to re- 
 cover damages against his employer, the ap- 
 pellant, for Injuries alleged to have resulted 
 to him from the negligence of the employer 
 in failing to furnish liim with safe applian- 
 ces for use in the performance of the duty 
 required of him by the service in which lie 
 ■was employed. The Injury resulted from 
 the collision of the car upon which the ap- 
 pellee was performing the duties of a brake- 
 man with another part of the same train, 
 which had been detached for the purpose of 
 making what is commonly called "a running 
 switch." Tlie car upon which the appellee 
 was a brakeman was a platform car, laden 
 with large and heavy blocks of stone, and 
 the appellee was at the front end of the car, 
 endeavoring to check it by using the bralve. 
 Discovering that he was unable to do so, 
 and that a collision was inevitable, he at- 
 tempted to make his way to the rear of the 
 car, but his feet were cauglit between two 
 lieavy stones and erusliod. In the first par- 
 agraph of the complaint it is alleged that 
 the accident was caused by the negligence 
 of the appellant in failing to repair a cyl- 
 inder cock of the engine, which had been 
 blown out some time before the accident, 
 and that the failure to replace the cylinder 
 cock rendered it impossible for the engineer 
 to get that part of the train which the car 
 on which the appellee was standing was fol- 
 lowing out of the way, and this brought on 
 the collision. The second paragraph of the 
 complaint charges that the brake on the car 
 ^^as aefi'dive. and substantially repeats the 
 allegations of the first as to appellant's neg- 
 ligence in failing to replace or repair the 
 <'ylinder cock of the engine. The tliird par- 
 agrapli is based upon the negligence of the 
 appellant in regard to the brake, but it also 
 alleges that there was some defect in the 
 engine, which was unknoM'n to the appellee. 
 As no question is made upon tlie complaint, 
 we have given only a general outline of its 
 allegations, which are full and explicit. 
 
 The question to which the appellant's 
 counsel devote the principal part of their 
 argument arises on the ruling of the trial 
 
 30 
 
 court in permitting the appellee to give m 
 evidence the declarations of the engineer in 
 charge of the locomotive which was draw- 
 ing the train on which the appellee was act- 
 ing as a brakeman. The appellee's counsel 
 argue with earnestness that even if there 
 was error in admitting the evidence, It was 
 harmless. This contention makes it neces- 
 sary to dispose of the question as to the ef- 
 fect of the evidence before considering its 
 competency, for, if it was harmless, the 
 judgment cannot be reversed for admitting 
 it, although it was incompetent. We arc 
 satisfied that, if the evidence be conceded to 
 be incompetent, the error in admitting it 
 was not harmless. The appellee's counsel 
 assume that the error was a harmless one, 
 even if the incompetency of the evidence be 
 conceded, for the reason that the declara- 
 tions of the engineer were proved by wit- 
 nesses called to prove that he had made 
 statements out of court contradicting those 
 made by him on the witness stand. This 
 position is untenable. The witnesses by 
 wiiom the engineer was contradicted were 
 impeaching witnesses, and their testimony 
 went to his credibility; but it did not prove, 
 nor tend to prove, the principal fact. Im- 
 peaching testimony goes only to the credibil- 
 ity of a witness, and it cannot be given any 
 force as evidence in proof or disproof of 'A 
 disputed fact, except in so far as it beara 
 upon the credibility of the witness it tends ' 
 to impeach. In Seller v. Jenkins, 97 Ind. 
 430-436, it was said of impeaching evidenc^ 
 that "such evidence does not tend to estal)- 
 lish the truth of the matters embraced in 
 the contradictory evidence; it simiily goes 
 to the credibility of the witness." Other 
 cases assert a similar doctrine. David v. 
 Hardy, 76 Ind. 272; Hicks v. Stone, 13 Minn. 
 434, (Gil. 398.) 
 
 The position assumed by appellee's coun- 
 sel, that, as the facts wliich the declara- 
 tions of the engineer tended to prove were 
 established by other testimony, the ruling 
 in admitting evidence of such declarations, 
 even if erroneous, was liarmless, cannot be 
 maintained. There may be cases where the 
 facts are so fully and conclusively iiroven 
 by other testimony that the appellate tri- 
 bunal will not reverse the judgment because 
 incompetent evidence to the same facts is 
 admitted; but this is not such a case, for 
 liere the evidence was as to a material point, 
 and it cannot be justly said that the facts 
 wliicli the declarations tended to prove were 
 estal>lislied by uncontradicted evidence. 
 
 We cannot, it is evident from what we 
 have said, avoid a decision of the principal 
 question upon the ground that, if the evi- 
 dence was incompetent, it was not prejudi- 
 cial. We are required to decide whether the 
 ev^uence was competent, because its mate- 
 rial character creates the presumption tliat 
 it was probably prejudicial. The rule is 
 well settled that, where evidence of an in- 
 fluential character Is erroneously allowed 
 
KES GESr^ 
 
 [Case No. 11 
 
 to go to the jury, it will be presumed to 
 have prejudiced the objectiuR party, and, 
 unless this presumption is rebutted, the 
 judgment must be reversed. See authori- 
 ties cited in Elliott's Appellate Procedure, § 
 594, note 2. It is an elementary rule that 
 the declarations of an agent are not admis- 
 sible against the principal unless liiey were 
 made vchile the agent vcas conducting some 
 transaction for the principal, or in a matter 
 where the agent's act is part of the res ges- 
 tae. If the declarations of the appellant's 
 engineer were not part of the res gestae, 
 there was judicial error in permitting them 
 to be given in evidence. It can hardly be 
 affirmed that there is a general rule which 
 will fit all cases, for each case is dependent 
 upon particular facts. It is, perhaps, safe 
 to declare that, where the declarations of 
 the iigent are made to the person whose in- 
 terests are directly involved, at a place 
 where the transaction or occurrence hap- 
 pened, so near the occurrence or transaction 
 in point of time as to be justly and reason- 
 ably regai-aed as part of it, refer directly to 
 the transaction or occurrence, and are not 
 narratives of the past, they are ordinarily 
 to be regarded as part of the res gestaj. If 
 the declarations are made at a different 
 ^lace, and are separated from the occur- 
 K'nce or transaction by such an interval of 
 ^^e as requires the inference or conclusion 
 that they were not part of the act, transac- 
 tion, or occurrence, then, under all the well- 
 reasoned cases, they are not part of the res 
 gesta-. and cannot be given in evidence 
 ' against the principal. There is wide diver- 
 sity of opinion and stubborn conflict as to 
 how great an interval of time must elapse 
 between the occurrence and the declarations 
 in order to deprive a party of the right to 
 give them in evidence, but we think our gen- 
 eral statement is supported by the weight 
 t)f authority. The difficulty, as we have in- 
 dicated, is not so much in tormulating gen- 
 eral statements as in determining under 
 what phase or branch of a general rule the 
 particular case falls. That is here the dif- 
 ficulty, for, while we are satisfied that our 
 general statement is correct, we have found 
 it no easy task to determine under what 
 branch or phase of it this case belongs. The 
 question as to the competency of the decla- 
 rations of the engineer has two branches, 
 for there is one branch founded on specific 
 objections interposed to the testimony, and 
 another upon a motion to strike out part of 
 the testimony. It will conduce to clearness 
 to consider each branch separately, al- 
 though both depend upon the effect and ap- 
 plication of the rule relating to the compe- 
 tency of evidence as part of the res gestaj. 
 The appellee testified as a witness in his 
 own LiL-iialf, and, after giving an accoiTut of 
 the collision, and the manner in which he 
 was injured, he said: "In the mean time I 
 was getting up. I went to walk. I went 
 to step, and when I stepped on this foot I 
 
 fell. That was the first time I knew I was 
 hurt. I reached down in the dark, and felt 
 that my foot was all cut. I crawled over 
 to the car and sat down. About that time 
 Mr. Brumley, the engineer, came to me with 
 his torch. I was going on like I suppose 
 anybody would when he was hurt. He 
 says, 'That is too bad. Bill.' 1 said, 'Yes.' 
 He said: 'What was the matter. Bill? 
 Didn't you understand the signal, or c(ml<ln't 
 you get out of the road?" At this point 
 an objection was stated, and then follow- 
 ed questions and answers. Some of the 
 questions, as indicated by the stenographer's 
 report, were interposed by Mr. McMullen, 
 counsel for the appellant. The statements 
 elicited by the statements addressed to the 
 witnesses are, in substance, these: Prom 
 the time the collision occurred until the en- 
 gineer came to the appellee was "not over 
 a minute or two." The engineer left his 
 engine, and walked back to the car whei'e 
 the appellee was. The engine had "gone 
 down the track" between two and three 
 hundred feet ahead of the car on which the 
 appellee was at work, but when the en- 
 gineer left the engine it was about a car's 
 length from the car on which the appellee 
 was injured, and, as the witness expressed 
 it. "the engine was stopped, and the colli- 
 sion was all over," when the engineer reach- 
 ed the appellee, who had at that time crawl- 
 ed from the end of the car to the center, 
 and was holding his foot, and moaning. It 
 appears from this evidence that the direct 
 collision was over and the injury done at 
 the time the engineer reached the appellee, 
 but that the car on which the appellee was 
 sitting was still at the place where the in- 
 jviry was received. It also appears that 
 there was an interval of time, although a 
 very brief one, in which the engineer walk- 
 ed from his engine to the a])pellee after the 
 engine had been stopped. The appellee, as 
 we have seen, estimates the time at not 
 more than one or two minutes, so that, 
 while there was an interval of time between 
 the actual Injury and the declarations, it 
 was a brief one; but, brief as it was, it was 
 sufficient to allow the engine to traverse a 
 short distance— a car's length— from the 
 place where the engine was stopped to the 
 place where the car on which the appellee 
 was sitting was standing. The statement 
 of the witness that the engine had "gone 
 down the track two or three hundred feet 
 from where it was when the collision took 
 place" does not mean that the engine was 
 that far from the appellee's car when it was 
 stopped, but what it means is, as the record 
 shows, that the engine and the car on which 
 the appellee was stationed, although de- 
 tached, contmued in motion for that dis- 
 tance after the collision took place, so that 
 the engineer did not walk that distance; on 
 the contrary, he walked only the distance 
 between the car and the engine, and that, 
 as the witness says, was a car's length, '\^'e 
 
 31 
 
Case No. 1 1 J 
 
 BELEVANCY. 
 
 have, therefore, a case where there was a 
 very brief interval between the collision and 
 the declarations, and one in which the en- 
 gineer walked only a few feet after he stop- 
 ped — he had checked — his engine, back to 
 the car on which the injured person was sit- 
 ting, moaning in pain. 
 
 We have no disposition to extend the rule 
 respecting the competency of declarations of 
 an agent upon the ground that they consti- 
 tute a part of the res gestte, for we are sat- 
 isfied that an enlargement of the rule would 
 very likely make it an instrument of evil. 
 But. on the other hand, an undue limitation 
 of the rule might often prevent a pai-ty from 
 availing himself of evidence to which he 
 was entitled, and which would aid in estab- 
 lishing the truth. If we can ascertain the 
 rule as our decisions declare it, we shall 
 deem it our duty to apply it without ex- 
 tending or narrowing it. It is necessai-y to 
 examine the decided cases in order to ob- 
 tain the means of solving the vexed ques- 
 tion which faces us, and we begin this work 
 by a reference to the cases which declare 
 the general doctrine. One of the earliest of 
 our cases is that of Bland v. State, 2 Ind. 
 608, wherein it was said: "It has been de- 
 cided that it is not competent for a prisoner 
 indicted for murder to give in evidence his 
 own account of the transaction, related im- 
 mediately after it occurred, though no third 
 person was present when the homicide was 
 committed." The case from which we have 
 quoted cites as authority for the conclusion 
 which it declares the case of State v. Tilly, 
 
 3 Ired. 424, wherein it was said: "Unless 
 the declarations form a part of the transac- 
 tion, they are not receivable in evidence." 
 The case of Bland v. State, supra, has often 
 been cited and approved, so that the doc- 
 trine of that case, in so far as it asserts that 
 the declarations must be part of the occur- 
 rence, act, or transaction, is to be accepted 
 as the law of this transaction. The doctrine 
 of that case, as we have stated it, is the 
 prevailing one, for it is sanctioned by many 
 able courts, state and federal. Railroad Co. 
 V. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118; Dur- 
 kee V. Railroad Co., 09 Cal. .533-.^35, 11 Pac. 
 130; State v. Ponieroy. 2."> Kan. ;!49; Rail- 
 road Co. V. Coleman, 28 Jlich. 440-446; 
 Mnycs V. State, 64 Miss. 329, 1 South. 733; 
 !-outherland v. Railroad Co., (N. C.) 11 S. 
 E. 189; Martin v. Railroad Co., 103 N. Y. 
 626, 9 N. B. 505; AYaldele v. Railroad Co., 
 95 N. Y. 274; Lane v. Bryant. 9 (Jray. 245; 
 Luby V. Railroad Co., 17 X. Y. 131; Wil- 
 liamson V. Railroad Co.. 144 Mass. 148, 10 
 N. E. 790; Railroad Co. v. Becker, 128 III. 
 545, 21 N. E. 524; Railroad Co. v. Mara. 2(1 
 (Jhlo St. 185; Adams v. Railroad Co., 74 .Mo. 
 553; Railroad Co. v. Womack, 84 .Via. 149, 
 
 4 South. 618. The general doctrine that the 
 declarations must be part of the act or oc- 
 currence is asserted without substantial di- 
 versity of opinion by the text writers. Ab- 
 bott, Tr. Ev. 51; Woods, Pr. Ev. 469; 1 
 
 32 
 
 te |f' 
 
 Whart. Ev. (3d Ed.) § 259; Taylor, Ev. (8th. 
 Bug. Ed.) § 602; 1 Rice, Ev. 375. 
 
 We assume, therefore, that the declarations 
 of an agent or servant are not competent 
 unless they are part of the principal act, oc- 
 currence, or transaction. But in ascertain- 
 ing the general doctrine we do not complete 
 our work, for we have still to ascertain and 
 decide whether the declarations of the en- 
 gineer can be deemed part of the occurrence 
 in which the appellee was injured, and, in 
 order to reach a correct conclusion, it is nec- 
 essary to examine the authorities with some- 
 care; not, however, for the pui'pose of as- 
 certaining the general mle, but for the pur- 
 pose of ascertaining what the cases declare- 
 to be part of the res gestse. In Binns v. 
 State, 57 Ind. 46, the doctrine of Bland v. 
 State was held to govern a case where the 
 \\itness reached the woman who had been 
 shot after he had run a distance of two or 
 three hundred yards, and arrived at the 
 place where the shooting was done a min- 
 ute and a half after she had been wounded, 
 and the judgment of the court was that her 
 declarations were not part of the res gestae. 
 A very similar application of the rule was- 
 made in Dukes v. State, 11 Ind. 564. The 
 question arose in the case of Railroad Co. 
 V. Hunter, 33 Ind. 335, upon this state 
 facts: The body of the man who had be 
 killed was on the train. It had been ^ 
 ried to the town of Lanesville, some rnTles 
 distant from the place where the accident 
 occurred, and the fireman of the engine 
 which ran over the deceased made state- 
 ments while the body was being removed 
 from the train. These statements were held 
 to have been erroneously admitted, the court 
 citing, as authority for its conclusion, Luby 
 V. Railroad Co., supra; Moore v. Meaeham, 
 10 N. Y. 207; Lane v. Bryant, 9 Gray, 245. 
 The case of Railroad Co. v. Theobald, 51 Ind. 
 246, asserts the general doctrine that dec- 
 larations of trainmen are Incompetent un- 
 less made at the time of the occun-euce; but 
 it does not assert what shall be deemed part 
 of the occurrence, nor does the opinion show 
 how much time had elapsed between the 
 performance of the agent's act and the time 
 of making the declarations. The statements 
 of the agent which were held rightly exclud- 
 ed in Railroad Co. v. Wright, 80 Ind. 182, 
 were made at a place different from where 
 the injury was received, and 30 minutes or 
 more after the occurrence which caused it. 
 In Stephenson v. State, 110 Ind. 358-372, 11 
 N. B. 3(i0, the declarations excluded were 
 made after the deceased had left the place- 
 where he was wounded, after the accused 
 had left the sjiot, and after the deceased had 
 gone into a saloon and remained for some 
 time, so that a very considerable interval of 
 time had elapsed. The court held In Jones 
 V. State, 71 Ind. 68-81, that statements made 
 by the deceased after he was shot, naming 
 the person who shot him, and narrating a 
 past occurrence, were not competent. So in, 
 
BBS GEST^. 
 
 [Case No. 11 
 
 Doles V. State, 97 Ind. 555, the evidence was 
 held to be properly excluded, because, as the 
 court said, "it was merely a narrative of a 
 past transaction, and not part of the res 
 gestae." None of the cases we have cited 
 precisely fits the one before us as to the 
 point under immediate discussion. In the 
 class represented by sucli cases as Binus v. 
 State one of tlie actors in the occurrence was 
 absent, so that the declarations could not have 
 been made part of the res gestfe. We sup- 
 pose it clear that, where one of the princi- 
 pal actors in a transaction goes from the 
 place where the transaction took place, what 
 subse'quently occurs cannot ordinarily be re- 
 garded as part of the res gestae. In the class 
 of cases of which Railroad C^o. v. Hunter is 
 a type, the declarations were made at a 
 place and at a time different from that at 
 wliich the transaction took place. The case 
 at our bar differs from those cited in essen- 
 tial particulars, for here the declai-ations 
 were made at the time and place where the 
 collision occurred, and they referred to and 
 illustrated the event, and tliey were made 
 while all who participated in it were pres- 
 ent. We may tlierefore well adjudge that 
 there was no error in overruling the appel- 
 lant's objections without denying the doc- 
 trines asserted in our cases. 
 .•-;^The latest decision of our court upon the 
 qijestion before us is that given in the case 
 of' Railroad Co. v. Buck, 116 Ind. 566, 19 
 N. B. 453. In that case the conductor of the 
 train on which the intestate of the plaintiff 
 was employed as a brakeman was on the 
 "caboose" when he received notice that the 
 deceased had been injured while coupling 
 cars; that he immediately ran forward, and 
 found the deceased under the rear end of the 
 second car from the engine. The conductor, 
 when he took the deceased from under the 
 car, asked, "How did this happen?" and the 
 deceased fully described the cause of the ac- 
 cident. The court held that this testimony 
 was competent, and cited many cases in sup- 
 port of its conclusion. We think the doctrine 
 declared in that case decides the point here 
 under direct consideration against the ap- 
 pellant. Counsel argue with plausibility that 
 the doctrine of the case cited does not apply 
 to the case before us. One of the i-easons as- 
 signed in support of their position is that 
 the declarations admitted in that case were 
 those of the injured person, while the dec- 
 larations admitted in this instance were 
 those of the agent or servant. A complete 
 and effective answer to this argument is 
 that, if the declarations were, as the case re- 
 ferred to adjudges, part of the res gestse, 
 they were competent, no matter by whom 
 they were made. Baker v. Gausin, 76 Ind. 
 317; 1 Whart. Ev. (3d Ed.) §§ 259-261. Our 
 conclusion receives support from the fa- 
 miliar rule that, where part of a conversa- 
 tion is competent, the whole is admissible, 
 unless some part of it is excluded by other 
 rules of law. In the case before us the in- 
 
 WILGUS.ET. — 3 
 
 toi-val of time that elapsed between the ac- 
 tual injury and the time of nmkiug the dec- 
 larations is not so great as it was in Rail- 
 road Co. V. Buck, supra. Here, as there, the 
 declarations were made while the injured 
 man was at the place where he was hurt, 
 and the declarations were made to him by 
 one who had taken part in the thing done. 
 Here there is even a clearer and stronger 
 line of causal connection between the direct 
 injurj' and the declarations of the agent or 
 servant than there was in the case of Rail- 
 road Co. V. Buck. In Stephenson v. State, 
 supra, it was said "the time is not always 
 so essential," and so we say here. The brief 
 time that elapsed after the engineer stopped 
 his engine and reached the car where the 
 appellee was sitting was not so essential as 
 to break the line of connection that binds 
 the acts together. We are strongly inclined 
 to the opinion that, where an employs is in- 
 jured in a collision, all that is done towards 
 stopping the train and relieving the injured 
 employs from a dangerous position forms 
 part of one occurrence, but, without author- 
 itatively affirming this, we do affirm that, 
 where there is such a continuous chain of 
 acts and events as there was in this case, 
 all are part of the res gestse. It is true, as 
 Jlr. ^^'hal•ton says, that "immediateness is 
 tested by closeness, not of time, but of caviM- 
 al relation." 1 Whart. Ev. (3d Ed.) § 262. 
 This conclusion we regard as involved in the 
 principle thus stated in the case of Railroad 
 Co. V. Buck: "It is not always easy to de- 
 termine when declarations having reference 
 to any act or transaction should be received 
 as part of the res gestte, and much difficulty 
 has been experienced in the effort to for- 
 mulate general rules applicable to the sub- 
 ject. This much may. ho^>'ever, be safely 
 said, that declarations which are the nat- 
 ural emanations or outgrowths of the act 
 or occurrence in litigation, although not pre- 
 cisely concurrent in point of time, if they 
 wore yet voluntarily and spontaneously 
 made, so nearly contemporaneous as to be 
 in the presence of the transaction which they 
 illustrate and explain, and were made un- 
 der such circumstances as necessarily to ex- 
 clude the idea of design or deliberation, 
 must, upon the closest principles of justice, 
 be admissible as part of the act or transac- 
 tion itself." Our conclusion is that there 
 was no error in admitting declarations of the 
 engineer that did not refer to acts done or 
 matters which happened prior to the colli- 
 sion which caused injury to the appellee. 
 
 The other branch of the general question 
 of the competency of the declarations of the 
 engineer— that resting on the motion of the 
 appellant to strike out— requires only very 
 brief mention. The motion asked the court 
 to strike out the statement of the appellee 
 that the engineer said: "If that man last 
 night would have fixed that cylinder cock, 
 as I told him, you would never have been' 
 hurt." This declaration related to the past, 
 
 sa 
 
Case No. 11] 
 
 RELEVANCY. 
 
 and was a narrative of what had been done 
 at an entirely different time and place. It 
 was, indeed, a combination of an opinion and 
 a narrative of tlie things tliat liad passed, 
 for it was a statement of tlie engineer's opin- 
 ion that if, on the night before, something 
 had been done which he liad then directed, 
 the collision could not have taken place. It 
 is too well settled to excuse the reference to 
 autliorities that neither narratives (if past 
 occurrences nor matter of opinion can be 
 placed before a jury by proving the decla- 
 rations of an agent or servant. For the er- 
 ror in overruling the motion to strike out the 
 objectionable testimony the judgment must 
 be reversed, and, although many other ques- 
 tions are discussed by counsel, we do not 
 deem it necessary to consider or decide them, 
 as they may not arise on another trial. 
 
 On Rehearing. 
 (Dec. 17, 1892.) 
 OLDS, J. Counsel for appellee have filed 
 a petition for rehearing in this cause, and 
 by a learned and able argument insist that 
 a reliearing should be granted. The cause 
 had due consideration and the questions in- 
 volved were fully considered in the original 
 opinion, and we deem it necessary to con- 
 sider but one question only presented bj- the 
 petition for rehearing. It is contended by 
 counsel for appellee that the question de- 
 cided adversely to the appellee, and for which 
 the judgment was reversed, was not proper- 
 ly presented to this court for decision; that 
 the competency of that portion of the testi- 
 mony of the plaintiff as a witness, stating 
 that the engineer, Brumley, told him that, 
 "if that man last night had fixed the cylinder 
 cock as I told him, you would not have been 
 hurt," was only raised by a motion to strike 
 out; that such statement was made in an- 
 swer to a competent question, which elicited 
 other competent testimony in connection 
 with such incompetent testimony. After 
 the answer was given by the witness to the 
 question, counsel for appellant made a mo- 
 tion to strike out the incompetent part of 
 the answer, stating his reasons, and the 
 court overruled the motion, and the appel- 
 lant excepted. The reason for new trial re- 
 lating to this evidence alleges "that the 
 court erred in permitting the plaintiff, while 
 testifying as a witness in his own behalf, to 
 testify to the following, to wit: That after 
 the accident resulting in the injuries com- 
 plained of, and after plaintiff had received 
 said injuries, he (plaintiff) asked the engi- 
 neer, Brumley, how this happened, [refer- 
 ring to the accident,] and that said Brumley 
 told the plaintiff, in answer to said inquiry, 
 that he, Brumley, could not throw the re- 
 verse lever forward, and that 'if that fellow 
 had fixed the cylinder cock as I told him to, 
 ,this thing would not have happened.' " And 
 there was no reason assigned for new trial 
 based on the error of the court In over- 
 
 34 
 
 ruling the motion to strike out. It appears 
 by the record that a proper motion was 
 made to strike out this latter statement of 
 the witness, which was in the original opin- 
 ion held to »e erroneous, and an exception to 
 the ruling was reserved. It would seem that 
 as a matter of fact the trial court's attention 
 was called directly to the question which 
 was passed upon, and decided by this court. 
 A motion for new trial was made, in which 
 one of the reasons assigned was error in 
 admitting this statement, together with the 
 statement that the engineer said he could 
 not throw the reverse lever forward. On 
 appeal in this court the question as to wheth- 
 er or not these particular statements were 
 both or either of them competent was dis- 
 cussed by counsel, and the question as to 
 whether the latter statement of the witness 
 was competent or not was treated as being 
 properly presented by the record. It would 
 seem quite evident from the fact that a sep- 
 arate motion to strike out the particular 
 part of the statement of the witness which 
 was held by this court to be incompetent, 
 and from the motion for new trial and the 
 discussion in this court by briefs and orally, 
 that the question was treated as in the rec- 
 ord, and the trial court passed upon the 
 question reviewed by this court in passing 
 upon the motion for new trial; and, if the 
 question is not properly before this court, 
 it is on account of a technical defect in the 
 form of the motion for new trial. It is not 
 the practice, and it is not incumbent on a 
 party in a motion for new trial, to set out in 
 detail a verbatim copy of the evidence ad- 
 mitted over objection or offered and refused, 
 or a verbatim statement of the objections 
 made to its introduction. It is sufficient if 
 the evidence be refen'ed to with such cer- 
 tainty as to call the attention of the court to 
 it, and to the ruling in relation thereto, so 
 that the judge covild not mistake the matter 
 and the ruling alluded to and complained of 
 by the paily filing the motion. Clark v. 
 Bond, 29 Ind. 5.->(i; Ball v. Balfe, 41 Ind. 
 222; Meyer v. Bohlfing, 44 Ind. 241. 
 
 The motion for new trial bases the error 
 in permitting the plaintiff, while testifying 
 as a witness, to testify to the statements. 
 This is in a cei-tain sense true. The error 
 was in permitting the witness to testify to 
 the erroneous statement, but being coupled, 
 as it was, in an answer to a pi'oper question, 
 with a statement that was competent, the 
 proper way to save the error in allowing It 
 to go to the jury was by a motion to strike 
 out the objectionable statement. The mo- 
 tion for new trial does not point out the par- 
 ticular erroneous i-uling as clearly as it 
 might, and possibly not as clearly as it 
 should, but it is not necessary to decide as to 
 the technical sufficiency of the mtition, for 
 under the rules of this court the question 
 was properly decided. Rule 26 of this court 
 provides, among other things, that "if a 
 statement of fact is made by counsel, and 
 
EES GE8T^. 
 
 [Case No. 11 
 
 not questioned or explained by opposing 
 counsel, it will be deemed by the court to 
 be accurate." Counsel for the appellant, in 
 his original brief in this case, after discuss- 
 ing the admissibility of all the statements of 
 the witness in answer to the question, con- 
 tinued by making the following statement 
 in relation to this particular question: "We 
 submit there was error in refusing to strike 
 out the last sentence of Stein's evidence of 
 Brumley's statement. It was specifically re- 
 ferred to in the motion for a new trial, and 
 is shown on page 76, lines 9 to 11. He said: 
 "If that man last night would have fixed 
 tliat cylinder cock as I told him, you would 
 not have been hurt.' This statement was 
 not questioned or explained by counsel for 
 the appellee, but, on the contrary, coun- 
 sel for appellee said in his brief: 'It fol- 
 lows, it seems to us, from the weight of au- 
 thority and upon principle, that the court 
 below was right in admitting Brumley's 
 statement as evidence, without invoking its 
 discretionary power over the matter.' And 
 the whole of Brumley's statement, including 
 the last sentence, 'If that man last night 
 would have fixed that cylinder cock as I told 
 him, you would never have been hurt,' was 
 competent evidence. TwO' objections were 
 made to this sentence: (1) That it was ut- 
 tered in the absence of any agent of the de- 
 fendant, 'and the testimony thereof is hear- 
 say.' (2) Not a part of the res gestae, be- 
 cause made wholly after the accident and 
 injuiT complained of. We have shown that 
 
 it was part of the res gestae, and therefore 
 that It was uttered in the absence of de- 
 fendant's agent is a worthless objection. We 
 need say nothing more on the question of 
 res gestae. Was it hearsay?"— and proceed- 
 ed to discuss the question. After a ques- 
 tion has been treated in this manner by coun- 
 sel, and considered and decided by the court, 
 we cannot permit parties to come into court 
 on a petition for rehearing, and successfully 
 urge as a gi'ound for the granting of a re- 
 hearing that the reason assigned in the mo- 
 tion for new trial is too informal, and fails 
 to point out with suflicient certainty the par- 
 ticular ruling which was erroneous. Such 
 a practice would lead to endless confusion 
 and uncertainty, and we can see no reason 
 why there should be a departure from the 
 general rale in this case. There is nothing 
 in the record or brief of counsel for appel- 
 lant to excuse counsel for appellee from an 
 examination of the record, and controverting 
 the fact as to whether the question decided 
 was properly presented. The rule, even in 
 cases where new trials are granted, is that 
 it is too late, after a new trial has been 
 granted, to object that the motion was not 
 reasonably made. Kloster v. Elliott, 123 Ind. 
 176, 177, 24 N. E. 99. Parties must be dil- 
 igent, and make their objection at a reason- 
 able time; and after they have joined in a 
 discussion, and obtained a decision, they can- 
 not te heard to say that the question was 
 not properly raised. The petition for re- 
 hearing is overruled. 
 
 33 
 
Case No. 12] 
 
 liELEVANCY. 
 
 LAKE SHORE & M. g. R¥. CO. v. HER- 
 RICK. 
 
 (29 N. B. 1052, 49 Ohio St. 25.) 
 
 Supreme Court of Ohio. Jan. 19, 1892. 
 
 Error to circuit court, Huron county. 
 
 Action by Herricli against the Lake Shore 
 & Michigan Southern Railway Company to 
 recover damages for personal injuries. From 
 a judgment of the circuit court reversing a 
 judgment of the common pleas, defendant 
 brings error. Affirmed. 
 
 John M. Lemon, for plaintiff in error. S. 
 A. Wildman and G. T. Stewart, for defend- 
 ant in error. 
 
 BRADBURY, J. The defendant in error, 
 in his petition in the court of common pleas, 
 averred, among other matters, that he had 
 bought of the railway company a ticliet en- 
 titling him to travel on its railroad from Nor- 
 walk to Collins, the station next east from 
 Norwalk, and return; that on his way to the 
 passenger-train to take passage it was neces- 
 sary to cross a tracli of defendant on which 
 a west-bound passenger-train was due; that 
 the railway company had caused notice to 
 be posted on Its bulletin-board there, that 
 this latter train was 15 minutes late, and 
 that defendant in error, relying on said no- 
 tice, was lawfully crossing said track when 
 said latter train, hidden from his view by 
 obstructions, came into the station on tim«, 
 or nearly so, and at a reckless and negligent 
 rate of speed, without signal by bell, whistle, 
 or otherwise, whereby he was injured with- 
 out fault on his part by being violently 
 struck and run upon by said train. The rail- 
 way company by answer put in issue all 
 these averments of the petition, except that 
 the defendant in error was struck and in- 
 jured by the train. It also answered that 
 "the plaintiff was well acquainted with the 
 movements of trains, and the tracks and 
 premises where he was injured, and on said 
 December 8, 1881, without necessity or ex- 
 cuse therefor, went upon defendant's rail- 
 road track, and by his own negligence and 
 want of ordinary care directly contributed 
 to his injury;" which last defense was de- 
 nied by the reply. The issues thus made up 
 between the parties required the plaintiff in 
 the court of common pleas to prove that he 
 was at the station in the character of a pas- 
 senger. It was also material for him to 
 show that he was misled and his vigilance 
 lulled by the statements on the bulletin- 
 board of the railway company that the train 
 was late. He complained in the circuit 
 court, among other things, that the court of 
 common pleas had, on the trial in the latter 
 court, excluded from the jury certain evi- 
 dence that was admissible to establish his 
 contention in these particulars, and that in- 
 competent evidence had been admitted by 
 that court over his objection. The circuit 
 
 36 
 
 court stated upon its journal that the ground 
 of its action in reversing the judgment of the 
 court of common pleas was the rulings of 
 the latter court in admitting and rejecting 
 evidence, and that in other respects it found 
 no error in the proceedings of that court 
 This entry on the journal of the circuit court 
 excludes any inference that the judgment 
 was reversed because the verdict was 
 against the weight of the evidence, and 
 therefore the judgment of the circuit court 
 may be reviewed by this court. The bill of 
 exceptions does not purport to contain all 
 the evidence, nor even any considerable part 
 of it, but is limited to that which was offer- 
 ed and rejected or immediately connected 
 with and explanatory of it, and that which 
 plaintiff below contends was improperly ad- 
 mitted. The item of evidence first excluded 
 from the jury, as shown by the bill of excep- 
 tions, was in the deposition of Vinton F. 
 Sheldon, who testified to a declaration of the 
 porter at the hotel, of which it appears the 
 plaintiff below was proprietor. The witness 
 was asked if he was present, and if so, what 
 he saw of it, etc. He answered: "I was 
 there. It was in the morning of the 8th of 
 December; I was waiting to take a train to 
 Wakeman. Mr. Herrick sent a porter over 
 to see about the train, as I was stopping at 
 Herrick's hotel and wished to take the train. 
 The porter reported the train lifteen minutes 
 late." The last sentence, "The porter report- 
 ed the train fifteen minutes late," was on 
 motion of the railway company excluded 
 from the jury, to which ruling the plaintiff 
 below excepted. This evidence, we think, 
 was competent, and should have been admit- 
 ted; it was not offered in proof of the fact 
 that the train was 15 minutes late, or even 
 late at all. The plaintiff below did not con- 
 tend tliat the train was late; it was not his 
 theory of the accident; on the contrary, he 
 insisted that it came in on time, or nearly 
 so. That, in his view, was the immediate 
 cause of his injury; he acted on the suppo- 
 sition that the train was late, and crossed 
 the railroad track to enter as a passenger a 
 car of another train of the same company 
 going in another direction, because he be- 
 lieved it to be late. The state of his belief 
 in this respect' becomes important upon the 
 question of his own contributory negligence; 
 his vigilance had been disarmed, as he con- 
 tended, by information that he had no cause 
 to suspect was false. This it was material 
 that he should establish, and whatever evi- 
 dence tended to that end was competent. 
 The report of his own messenger, whether 
 true or false, certainly tended to show that 
 he believed the train to be late. Acting up- 
 on such information, one might well attempt 
 to cross a railway track without being charge- 
 able with negligence, whereas if he acted 
 heedlessly, without inquiry, the act would 
 be properly characterized as negligent, or 
 even reckless. Nor was this evidence less 
 competent because he had afterwards seen 
 
EES GESTAE. 
 
 [.Case No. 12 
 
 the notice upon the bulletin-board himself. 
 Error committed in the rejection of compe- 
 tent evidence is not cured because there was 
 other and even stronger evidence to establisli 
 the same fact introduced to and considered 
 by the jury. 
 
 On the trial in the court of common pleas 
 the defendant in error read in evidence to 
 the jui-y the deposition of George E. Miller, 
 who was a clerli at tlie Herricli House, an 
 hotel of which the defendant in error was 
 proprietor. In response to a question put to 
 him this witness answered: "In the morn- 
 ing Mr. Herricli was injured he started out, 
 and said he was going to Collins. I aslied 
 him if he had his ticliet, as he had one in 
 the money-drawer, and I loolied to see if he 
 had it." Upon the motion of the railroad 
 company the words "said he was going to 
 Collins" were ruled out, to which ruling de- 
 fendant in error excepted. The defendant 
 in error had averred in his petition "that he 
 had bought and procured of the defendant a 
 ticlcet as a passenger on its trains to and 
 from Collins, the station on said railroad 
 next east of said Norwalk, and at the time of 
 the occurrences hereinafter stated was cross- 
 ing said track nearest to said platform for 
 the purpose of taking passage on said east- 
 ward-bound train for said Collins." The rail- 
 road company ha-d not only denied this, but 
 had also averred as a sepai-ate ground of de- 
 fense that the defendant in error, "without 
 necessity or excuse therefor, went upon de- 
 fendant's railroad track, and by his own 
 negligence and want of ordinai-y care direct- 
 ly contributed to said injury." It therefore 
 became material for defendant in error to 
 show that he was injured while on his way 
 to the train that ran to Collins, for the pur- 
 pose of getting on as a passenger to be cai'- 
 ried to that place. Was his declaration that 
 he "was going to Collins" competent evi- 
 dence of that fact? That depends on wheth- 
 er the declaration was contemporaneous 
 with, and explanatory of, the act of de- 
 parture. One departing from liome may 
 have in view any conceivable place, or any 
 conceivable purpose, as his destination or ob- 
 ject. The act of departure is thus in itself 
 of the most ambiguous character; it does 
 not afford the slightest clue to the object of 
 the journey; it is natural and usual, accord- 
 ing to the common experience of mankind, 
 that the party should say something respect- 
 ing his departure, of an explanatory charac- 
 ter. Declarations thus made are a part ofj 
 the act itself. Starkie in his treatise upon] 
 Evidence lays down the rule as follows: "In 
 the first place, an entry or declaration ac- 
 companying an act seems, on principles al- 
 ready announced, to be admissible evidence 
 in all cases where a question arises as to the 
 nature or quality of that act. » * * Such 
 evidence is also admissible on the same 
 principle. to show the intention with which 
 an act is done, where the intention is mate- 
 rial. Thus, on questions of bankruptcy, dec- 
 
 larations made by a trader, contemporary 
 with, or during the act of, absenting himself 
 from his place of residence or business, ai'e 
 constantly admitted in proof of the real na- 
 ture and quality of the act. Indeed, wher- 
 ever an entry or declaration reflects light up- 
 on or qualifies an act which is relevant to 
 tlie matter in issue, and is evidence in itself, 
 it becomes admissible as part of the res ges- 
 tae, if it be contemporaneous with the act. 
 * * *" (10th Ed.) 466, 467. This doc- 
 trine has received the sanction of this court 
 in a number of cases. "Where an act of a 
 party is admissible in evidence, his declara- 
 tions at the time, explanatory of that act, 
 are also admissible as part of the res gestae." 
 Whetmore v. Mell, 1 Ohio St. 26. See, also, 
 Insurance Co. v. Tobin, 32 Ohio St. 78; Leg- 
 gett V. State, 15 Ohio, 283; Moore v. State, 
 2 Ohio St. 500; Dickson v. State, 39 Ohio St. 
 73. This doctrine is discussed and main- 
 tained by the text-writers, (Whart. Ev. 262, 
 1102; Greenl. Ev. 108;) as well as illustrated 
 by almost innumerable adjudicated cases, 
 only a small number of which need be re- 
 feiTed to, (Milne v. Leisler, 7 Hurl. & N. 
 786; Blake v. Damon, 103 Mass. 199; Ahern 
 V. Goodspeed, 72 N. Y. 108; Louden v. 
 Blythe, 16 Pa. St. 532; Scott v. Shelor, 28 
 Grat. 891; Stephens v. McCly, 36 Iowa, 659; 
 Colquitt V. State, 34 Tex. 550). As every in- 
 tendment favorable to the ruling of the 
 court of common pleas should have been in- 
 dulged by the circuit court, and should be by 
 this court also, the question arises whether 
 the record discloses with sufficient certainty 
 that the declaration excluded was made by 
 the defendant in error at the time he depart- 
 ed to take the train rather than upon some 
 other occasion when he may liave left the 
 hotel. The bill of exceptions is meager; it 
 does not purport to set forth all the evidence, 
 or all the other proceedings had at the trial. 
 All that it discloses on this subject is as fol- 
 lows: "Plaintiff then read in evidence to the 
 jury the deposition of George E. Miller, who 
 testified that he was clerk of the plaintiff at 
 his hotel, the Herrick House, when the said 
 injury to the plaintiff occurred, and, in reply 
 to the question of wluit lie then saw, the wit- 
 ness said: 'In the morning Mr. Herrick was 
 injured he started out, and said he was go- 
 ing to Collins. I asked him if he had his 
 ticket, as he had one in the money-drawer, 
 and I looked to see if he had it.' To which 
 words, 'said he was going to Collins,' the de- 
 fendant objected." This witness stated, as 
 disclosed in another part of the bill of ex- 
 ceptions, that the ticket was gone when he 
 looked to see if Herrick had it. So, take the 
 entire bill of exceptions, it shows that the 
 defendant in error had procured a ticket to 
 Collins, and had it in the money-drawer of 
 his hotel; that he had taken it out of the 
 drawer, and was leaving the hotel when he 
 made the declaration respecting his destina- 
 tion. From these circumstances we think it 
 fair to infer that he was at the time depart- 
 
 37 
 
Case No. 12] 
 
 RELEVANCY. 
 
 iug on his proposed journey; but whether he 
 was or not, as there are other grounds upon 
 which the judgment of reversal should be 
 affirmed, it is quite proper at this time to de- 
 clai'e the true rule respecting this evidence, 
 as the death of the defendant in error in all 
 probability makes this declaration the only 
 evidence now attainable of the intent with 
 which he left the hotel on the morning of the 
 accident. 
 
 The defendant in error also read in evi- 
 dence the deposition of W. O. Foldger, who 
 testified as follows: "I was walking towards 
 the west end of the depot, my back to the 
 engine, to cross the track diagonally, when I 
 heard the call, and turned my head; then en- 
 gine was then right behind me;" being the 
 same bj- which the plaintiff was then and 
 there injured. And the plaintiff's attorney 
 tlien asked the witness in said deposition, 
 "State whether or not you saw other persons 
 who were in danger of being run over by 
 it;" to which the witness answered, "There 
 were people crossing till the engine was 
 right there, and some one hallooed. I saw 
 no one hit except the plaintiff;" to which 
 question and answer the defendant objected, 
 and the court sustained the objection, and 
 ruled out said question and answer from the 
 deposition, and the same were not read in 
 evidence to the jury, to which ruling of the 
 court the plaintiff then and there excepted. 
 The condition of the crossing at the time of 
 the accident was material. Was it thronged 
 with people or otherwise? The train might 
 not have been chargeable with carelessness, 
 even though it came into the station at a 
 high rate of speed, if the defendant in error, 
 alone or with only a few others, was there, 
 while it might be careless, or even reckless, 
 to dash in at the same rate among a crowd 
 of people, who might jostle against and im- 
 pede each cither in their struggles to escape. 
 The question was subject to the criticism 
 that it called for an opinion of the witness 
 as to whether there were "other persons who 
 were in danger of being run over by it," but 
 the answer was free from that objection; it 
 was limited to matter of fact. "There were 
 people crossing till the engiae was right 
 there, and some one hallooed. I saw no one 
 hit except the plaintiff." This answer was 
 , competent evidence, and should have gone to 
 I the jury; it not only tended to establish neg- 
 ligence in the running and management of 
 the train, but also had some tendency to re- 
 fute the charge of contributory negligence, 
 by establishing the existence of conditions 
 at the time likely to create panic and confu- 
 sion, if, as claimed, the rapidly moving train 
 came suddenly and unexpectedly upon the 
 crowd of people at the crossing, thereby 
 causing the choice of means of escape more 
 difficult and prvplexing. The other testi- 
 mony excluded from the jury is not of suffi- 
 cient importance to require special notice; 
 
 38 
 
 most, if not all, of it was immaterial, or 
 came within, the well-settled rules of the 
 books that exclude hearsay evidence. If 
 there was any that did not in its own nature 
 fall within either of these two classes, the 
 bill of exceptions is too meagre to disclose 
 its materiality, and its exclusion therefore 
 was not erroneous. 
 
 The only remaining question relates to the 
 admissibility of the ordinance of the village 
 of Norwalk prescribing the maximum rate 
 of speed at which trains may be run through 
 the village. The railway company was not 
 charged with running its train at this time 
 at a greater rate of speed than the ordinance 
 permitted; no issue of the kind was made 
 up; there was not a word in any of the 
 pleadings to indicate, even, that the village 
 of Norwalk had ever adopted an ordinance, 
 on this subject. In what manner, therefore, 
 the ordinance could enlighten the jury re- 
 specting the issues on trial before them is 
 not shown by an examination of the plead- 
 ings alone. Surely the plaintiff in error 
 could not justify dashing its train, regard-. 
 less of consequences,— if it did so,— into a 
 crowd of people crossing its track, because 
 its rate of speed at the time was within the 
 limits prescribed by ordinance. If such use 
 of the evidence can be supposed to havf been 
 attemijted, we must presume that the court 
 properly limited its operation in the charge 
 given to the jury, or would have done so up- 
 on request of the other party if made at the 
 proper time. It was not error, however, to 
 admit the ordinance iu evidence if it was 
 competent for any iDiu'pose. The pleadings, 
 as before stated, do not mention it, and the 
 bill of exceptions is very meager, yet enough 
 can be gathered from it to disclose that a 
 controversy arose during the trial as to the 
 rate of speed at which the train, before it 
 reached the station, passed through the vil- 
 lage of Norwalk, though nothing appears to 
 show the distance it ran within the corporate, 
 limits; the plaintiff in the common pleas 
 court contending that the train ran through 
 the village at a rate exceeding 15 miles an 
 hour, the defendant, on the contrary, claim- 
 ing that the rate of speed was less than that. 
 In this connection it is at least conceivable, 
 if not apparent, that it might have been ma- 
 terial for the railway company to show that 
 in passing through the village, and before it 
 approached the station near enough to ena- 
 ble its employes to see the condition of the 
 crossing, the train did not move at an unlaw- 
 ful rate of speed, which would render its 
 management and control more difficult when 
 the danger at the crossing was discovered. 
 We cannot say, therefore, that the court 
 erred in admitting the ordinance in evidence. 
 
 Judgment affirmed. 
 
 DICKMAN and SPEAR, JJ., dissent from 
 the judgment of affirmance. 
 
KES GESTiE. 
 
 [Case No. lo 
 
 SE^'ILLE T. STATE. 
 
 (30 N. E. 621, 49 Ohio St. 117.) 
 
 Supreme Court of Ohio. March 2, 1892. 
 
 Error to circuit court, Athens county. 
 
 David Seville was convicted of engaging 
 
 in a prize-fight, and brings error. Affirmed. 
 
 E. A. Guthrie and L. M. Jewett, for plain- 
 tiff in error. J. P. Wood, Pros. Atty., and 
 C. H. Grosvenor, for the State. 
 
 WILLIAMS, J. The plalutifC in error, Da- 
 vid Seville, Vfa.s indicted for a violation of 
 section 6888 of the Revised Statutes, which 
 provides that "whoever, engages as princi- 
 pal in any prize-fight shall be imprisoned in 
 the penitentiary not moi-e than ten years 
 nor less than one year." The indictment 
 charges that on the 25th day of February, 
 A D. 1891, at the county of Athens, he "did 
 unlawfully engage as principal in an unlaw- 
 ful and premeditated fight and contention, 
 commonly called a 'prize-fight,' with one 
 Arthur Majesty, and in said fight the said 
 David Seville and Arthur Majesty did each 
 the other unlawfully strike and bruise, and 
 attempt to strike and bruise, for and in con- 
 sideration of prize and reward." The trial 
 resulted in a conviction, which was followed 
 by the sentence of the court, and one of the 
 grounds upon which a reversal is sought Is 
 that the indictment fs defective. The spe- 
 cific objections made to the indictment are 
 that it fails to allege the fight was in public; 
 that it does not negative the existence of the 
 facts mentioned in the proviso of section 
 6890 of the Revised Statutes; and that it 
 contains no direct averment that the ac- 
 cused engaged in a prize-fight. 
 
 1. In support of the first of these objec- 
 tions, the case of Sullivan v. State, 67 Miss. 
 346, 7 South. 275, is relied on, where it was 
 held that an indictment drawn under the 
 Mississippi statute of March 7, 1882, making 
 It "unlawful for any person to engage in 
 prize-fighting," in that state, was insuffi- 
 cient, because it did not aver that the fight- 
 ing took place in public; the court holding 
 that the statute was intended to prohibit 
 prize-fighting of a public character only. 
 We are not inclined to follow that decision. 
 While, no doubt, it was one of the purposes 
 of our statute to prohibit public exliibitions 
 of prize-fighting, because they tend to incite 
 quarrels and breaches of the peace, it was, 
 we think, none the less its purpose to sup- 
 press all prize-fighting, on account of its 
 brutality, and consequent danger to human 
 life, and its demoralizing tendencies, and 
 pernicious effects on the peace and good 
 order of society; and hence we hold it is 
 not an essential ingredient of the crime of 
 engaging in a prize-fight, in this state, that 
 it take place in public. The term "pri^- 
 fight" has no technical legal meaning. The 
 Century Dictionary defines it as "a pugilis- 
 tic encounter or boxing match for prize or 
 
 wager," and other lexicographers who do- 
 fine it give it substantially the same defini- 
 tion. It is used in the statute in its ordi- 
 nary signification of a fight for a prize or 
 reward, and includes all fights of that char- 
 acter, however conducted, and whether wit- 
 nessed by many or by few people. 
 
 2. Section G890 of the Revised Statutes 
 makes it an offense, called an "affray," for 
 any two persons to agree and willfully fight 
 or box at fisticuffs, or engage in any public 
 sparring or boxing exhibition, with or with- 
 out gloves; for which the penalty is fine or 
 imprisonment, or both. The section con- 
 tains a proviso that it shall not apply to the 
 exercises in any public gynma.sium or ath- 
 letic club, if written permission therefor 
 shall have been obtained from the sheriff 
 of the county or mayor of the municipality 
 in which the exercises are held; and the 
 second objection to the indictment is that it 
 should, by proper averments, negative the 
 existence of tile matters contained in this 
 proviso. This objection is not well taken. 
 It is the well-settled rule of criminal plead- 
 ing that it is not necessary, in an indict- 
 ment, to negative the existence of facts to 
 which an exceijtion or proviso in a statute 
 relates, unless the matter of the exception 
 or ]5roviso is descriptive of the offense, or 
 qualifies the language creating it. Hirn v. 
 State, 1 Ohio St. 16. lOugagiug in a prize- 
 fight, in violation of section (lisfss. is a sepa- 
 rate and distinct offense from that defined 
 and punished by section 0890, and the pro- 
 viso qualifies the previous clauses of the lat- 
 ter section, but has no application to for- 
 mer sections. 
 
 3. Nor do we think the indictment lacks 
 a direct averment that the accused engaged 
 as principal in a prize-fight. The averment 
 that he engaged as principal, with another, 
 in an unlawful and premeditated fight, com- 
 monly called a "prize-fight," for a prize and 
 reward, is suftieient to apprise the accused 
 of the nature of the accusjition, in this re- 
 spect. The indictment meets the require- 
 ments of the rules of criminal pleading, and 
 appears to be drawn in accordance with the 
 forms long in use, and approved by well- 
 known authors. War. Grim. Law, 241; AVil- 
 son's Ohio Cr. Code (3d Ed.) 105; Maxw. 
 Cr. Proc. 230. 
 
 4. On the trial, the state gave evidence 
 tending to prove that Douglas Nelson and 
 Emil Rosser, two citizens of Nelsonville, 
 about the 1st of February, 1891, made an ar- 
 rangement with Seville, by which the latter 
 agreed to engage in a fight at Nelsonville, 
 at a future day tp be named, with a person 
 not exceeding a specified weight, to be 
 chosen by them, for a prize of $200, to be 
 paid to the winner. The arrangement with 
 Seville was communicated to Majesty, who 
 at once agreed to engage in the fight against 
 Seville, which, it was arranged, should take 
 place at Nelsonville on the night of Febru- 
 
 39 
 
Case No. 13] 
 
 RELEVANCY. 
 
 ary 24, 1891. When the agreement was 
 made with Seville, he did not know the 
 . name of his adversary, nor did he learn it, 
 vmtil the day set for the fight. Soon after 
 the details of the engagement were com- 
 pleted, iXajesty, who resided in Toledo, went 
 to Nelsonville with his trainer, and pnt him- 
 self in training for the conflict. "While 
 there, he wrote two letters to his friend 
 Alfred Stephens, which were directed and 
 mailed to him at Newark, Ohio, and which 
 were received by Stephens in due course of 
 mail. These letters were admitted in evi- 
 dence against the objection of tlie defendant, 
 and their admission, it is claimed, was error 
 for which the judgment should be reversed. 
 The letters are as follows: 
 
 "Nelsonville, O., Feb'y 15, 1891. Friend 
 Alfred: Would like to have you come to 
 Nelsonville, O., where I am matched to tight 
 Seville, of Columbus, for a purse of .$200.00, 
 to a finish, with 2-oz. gloves. You can call 
 on Keere Bros., in the saloon business; they 
 will be down here. Do not tell them who I 
 am or that you know me, as I go under the 
 name of A. B. Tracy. Our protection is 
 good, as we have a license. Come if you 
 possibly can. We flght on Feb. 24th, in the 
 evening. ^A'ill see you all right. Am in 
 training here. If you come this way, stop 
 and see me. Yours, truly, Arthur JIajesty. 
 Address A. B. Tracy." 
 
 "Nelsonville, O., Feb'y 20th, 1891. Friend 
 Alfred: The man I meet is Seville, of Co- 
 lumbus, and we fight at 120 pounds for a 
 purse of $200.00, all to go to the winner. 
 Nelson and Kosser of this place are hand- 
 ling me. I don't anticipate any trouble in 
 disposing of him. John Hall, of Toledo, is 
 with me. You have met him before. Tick- 
 ets are $3.00 per head, but I will place you 
 all right; but do not let those people of your 
 town know of it. If you can, induce them 
 to come and see the fight. It is to a finish, 
 with two-ounce gloves, in a large hall, with 
 a seating capacity of 800 on elevated seats 
 around the ring, same as all first-rate clubs. 
 Yours, truly, Arthur, alias A. B. TVacy." 
 
 An agreement to engage in a prize-fight is 
 a conspiracy to commit a crime; and the 
 declarations of either of the parties, written 
 or verbal, with reference to the common ob- 
 ject, or in furtherance of the criminal de- 
 sign, while in its prosecution, are competent 
 evidence against the other, although the 
 agreement was made through and by back- 
 ers or other representatives of the princi- 
 pals, and the latter were unknown to each 
 other. The letters referred to contained 
 declarations of this character; their purpose 
 being to procure the presence of friends and 
 others at the flght, and thus encourage and 
 contribute to the success of the unlawful 
 enterprise. The court in its charge careful- 
 ly limited the effect of this evidence by in- 
 structing the jury that, before it could af- 
 fect the accused, the jury must find, beyond 
 a reasonable doubt, that when the letters 
 
 40 
 
 were written he and JIajesty had entered 
 into an agreement, either personally or 
 through their agents, to engage in a prize- 
 fight, and that they were written while 
 Majesty was engaged in preparations for 
 the flght, and were in furtherance of it. 
 
 5. The defendant offered to prove in his 
 defense that there was an athletic club at 
 Nelsonville, where the pugilistic contest was 
 held, and that a license authorizing it had 
 been issued by the mayor of the village; 
 and for that purpose the articles of the as- 
 sociation of the club and license of the 
 mayor were offered in evidence, but ex- 
 cluded. The articles, which bear the date of 
 February 23, 1891, state that "the under- 
 signed citizens of Nelsonville intend to es- 
 tablish an athletic club for the purpose of 
 training in wrestling, boxing, and other ath- 
 letic exercise;" they prescribe the terms of 
 membership, and designate the otHcers to be 
 chosen. The only evidence of the execu- 
 tion of the paper was that of a witness who 
 testified that he drew it up, but there was 
 no proof of the signatures to it, or of any 
 organization under the articles. The license 
 offered in evidence is dated February 23, 
 1891, and purports to grant permission to 
 the Nelsonville Athletic Club to exhibit a 
 glove contest "for one day only, February 
 24, 1891." If the defendant had been in- 
 dicted for a violation of section 6890, the 
 evidence ofCered would have been competent 
 and material. But such a license, to a club 
 of the kind mentioned, is no defense to an 
 indictment under section 6888. If the de- 
 fendant engaged in a prize-fight, it was im- 
 material whether a license had been issued 
 to an athletic club for that purpose, or for 
 the purpose of giving a boxing exhibition, 
 or not. If he did not, but simply engaged in 
 a sparring or boxing exhibition, he must be 
 acquitted though no license was obtained. 
 Neither the articles of the club nor license 
 of the mayor was competent evidence tend- 
 ing to prove that what actually occurred 
 constituted a sparring or boxing exhibition. 
 At most, they tended to show that the 
 mayor only intended to license a boxing ex- 
 hibition, and that the club was authorized 
 to give such exhibition; neither of which 
 facts was material in determining whether 
 what actually occurred was or was not a 
 prize-fight. 
 
 6. The defendant called a witness who tes- 
 tified that he had been engaged in 52 prize- 
 fights and boxing matches altogether, and 
 had spent 6 years in acquiring the art of 
 boxing. He was then asked by counsel for 
 the defendant to state what "are the rules 
 that apply to a glove contest and also to a 
 prize-fight." An objection to the question 
 was sustained. The purpose of the question, 
 as stated by counsel, was to prove that by 
 the rules governing prize-flghts there is no 
 limit as to the time of the rounds, the com- 
 batants are permitted to wrestle and throw 
 each other, the fight is to a finish, the fight 
 
KES GESTiB. 
 
 [Case No. 13 
 
 Is without gloves, and spikes are worn in 
 tlie slioes; wliile the rules governinjr glove 
 ^•ontests require the parties to wear gloves, 
 spikes In the shoes are not allowed, the 
 ■contest ends at the conclusion of a specified 
 round, and each round is limited in point of 
 time to tliree minutes. The witness further 
 testified that he saw the combat between 
 the defendant and Majesty, and was then 
 asked by defendant's counsel whether it 
 was conducted according to the rules of a 
 glove contest or those of a prize-fight. This 
 question was objected to, and the objection 
 sustained. The counsel stated they expect- 
 ed the witness to answer that it was con- 
 -ducted according to the rules of a glove con- 
 test. Thereupon the witness was handed a 
 couple of papers, one of wliich he said con- 
 tained the Queensberiy rules, and the other 
 the London prize ring rules. Tliese ijapers 
 were then offered in evidence by defendant's 
 counsel, but they were held to be incompe- 
 tent. These several rulings of the court are 
 assigned for error. 
 
 The question to be determined by the 
 jury was whether what took place between 
 the defendant and Majesty, at the time and 
 place charged in the indictment, was a 
 prize-fight. The witnesses for the state, and 
 •for the defense, testified in detail to what 
 occurred on that occasion, and there was 
 but little, if any, substantial conflict in tlie 
 testimony. It showed, beyond any doubt, 
 that the combatants met in the ring pre- 
 pared for the purpose, in pursuance of the 
 agreement previously made, and fought vi- 
 ■ciously to a finish. They fought 17 rounds, 
 and on the eighteenth Majesty was knocked 
 reeling to the ropes, and carried away in a 
 dazed and unconscious condition, and in a 
 few hours afterwards died from the effect 
 ■of the blows received. The post mortem 
 •examination disclosed that his vital organs 
 
 were in a healthy and sound condition. His 
 skull was fractured by one of the blows, and 
 an artery of the brain ruptured, which caus- 
 ed his death. His head, neck, one arm, and 
 his body showed the severity of the blows 
 he liad received. One eye was blacked, his 
 nose cut, his mouth and lips bruised and 
 swollen, and the physicians say that his 
 neck, arm, and body were black and blue 
 from bruises produced by blows. Witnesses 
 describe the blows struck him as bitter 
 blows; and yet, up to the last round, they 
 say .Seville's punishment was even greater 
 than that administered to Majesty. When 
 Majesty was carried, disabled and dying, 
 from the scene of the conflict, the prize 
 money was paid over to Seville, who de- 
 parted by the first train. 
 
 The question for the jury to decide, was 
 whether this combat was, a prize-fight, not 
 wliat the Queensberry rules or any other 
 rules called it, nor what name those accus- 
 tomed to such combats have given it. What 
 was it, in plain English? And this question 
 of fact, under a proper instruction from the 
 court as to what constitutes a prize-fight, 
 the jury was as competent to decide as the 
 most experienced boxer or prize-fighter. 
 The question was not one of skill or science, 
 to be decided upon the opinions of those 
 experienced in such practices, or by rules 
 adopted for the government of associations 
 of such persons; but one within the com- 
 prehension of the common understanding, 
 and the range of common knowledge, which 
 the jury could decide upon the facts proven, 
 as well as a professional pugilist. Some 
 other questions are made in the record, but 
 they are not of sufficient importance to call 
 for a report. We have carefully examined 
 the whole record, and find no error for 
 which the judgment should be reversed. 
 Judgment affirmed. 
 
 41 
 
Case No. 14] 
 
 BELEVANCY. 
 
 COM.M0XWEALTH v BRADFORD. 
 
 (12t> Jlass. 42.) 
 
 Supremo Judicial Coiii't of Massachusetts. 
 Hampshire. Nov. 18, 1878. 
 
 Exceptions from supei-ior court, Hampshire 
 county; Gardner, Judge. 
 
 C. R. Train, Atty. Gen., for the Common- 
 wealth. C. Delano, for defendant. 
 
 COLT, J. The defendant was indicted for 
 willfully and maliciously burning a building 
 belonging to his two sons. The second count 
 in the indictment charges an intent thereby 
 to defraud the insurer. At the trial evidence 
 was admitted in support of the indictment, 
 against the defendant's objection, tending to 
 prove that the defendant set fire to the same 
 mill a few nights before, and that the fire 
 was then discovered and extinguished by a 
 neighbor. 
 
 The evidence was competent on the ques- 
 tion of the intent with which the defendant 
 subsequently burned the building, and com- 
 mitted the offense for which he was then 
 tried. It was carefully limited to the sin- 
 gle purpose for which it was competent. The 
 unsuccessful attempt to do the same thing, a 
 few days before, was evidence that the burn- 
 ing was willful and intentional, and not the 
 result of accident or negligence on the part 
 of the defendant. It was sufflciently near 
 to the time of the commission of the offense 
 charged to justify the Inference that the de- 
 fendant then had a settled purpose in regard 
 to it. It is a rule of criminal law that evi- 
 dence tending to prove a similar but distinct 
 offense, for the purpose of raising an infer- 
 ence or presumption that the accused com- 
 mitted the particular act with which he is 
 charged, is not admissible. But there was 
 no invasion of this rule in the admission of 
 this evidence. The intent and disposition 
 with which one does a particular act must be 
 ascertained from his acts and declarations be- 
 fore and at the time; and when a previous act 
 indicates an existing purpose, which, from 
 linown rules of human conduct, may fairly be 
 presumed to continue and control the defend- 
 ant in the doing of the act in question, it is 
 admissible in evidence. In many cases it is 
 the only way in which criminal intent can be 
 proved; and the evidence is not to be reject- 
 ed because it might also prove another crime 
 
 42 
 
 against the defendant. The practical limit 
 to its admission is that it must be sufficiently 
 significant in character, and sufficiently near 
 in point of time, to afford a presumption that 
 the' element sought to be established existed 
 at the time of the commission of the offense- 
 charged. The limit is largely in the discre- 
 tion of the judge, and no error in law is here 
 apparent. 
 
 The case at bar is not distinguishable up- 
 on this point from Com. v. McCarthy. 119 
 Mass. 354, where, on the question of intent,, 
 the government was permitted to show that 
 the defendant a few days before set fire lo 
 a shed, ten feet distant from the building 
 burned, and connected therewith by a flight 
 of steps. The defendant in that case was- 
 the owner of the building burned, while in 
 this case the defendant had conveyed the 
 property to his sons, subject to his mortgage, 
 which was paid in part from the avails of the- 
 insurauce upon it. It is sufficient that under 
 the second count the jury in this case must 
 have found that the defendant wilhCully burn- 
 ed the building with intent to injure the in- 
 surer, and this is enough, whether he owned 
 the building or not; and besides, the evi- 
 dence was admissibfe without reference to 
 the alleged intent to injure the insurer. See, 
 also, Thayer v. Thayer, 101 Mass. 111. 
 
 The testimony of the defendant taken at the- 
 fire inquest was clearly admissible. It is ob- 
 jected "that a judicial oath administered 
 when the mind is agitated and disturbed by 
 a criminal charge, or by suspicion of crime,, 
 may prevent free and voluntary mental ac- 
 tion." But this objection, if there is any- 
 thing in it, is not sustained as a matter of 
 fact, for there is nothing in the case to show 
 that he was, at the time his testimony was- 
 given, proceeded against criminally, or was 
 then under suspicion of crime. The testi- 
 mony was given voluntarily, and its weight 
 must depend upon the circumstances under- 
 which it was given. Com. v. King, 8 Gray, 
 501; Com. v. Reynolds, 122 Mass. 454. 
 
 The defendant's conversation with the In- 
 surance broker in January, in which he sug- 
 gested that there should be an increase of 
 insurance, taken in connection with his lia- 
 bility on the mortgage note which the sons 
 had agreed to assume, tended to show that 
 he had a pecuniary interest in the insurance,, 
 and a motive to commit the offense charged. 
 Com. V. Hudson, 97 Mass. 565. 
 Exceptions overruled. 
 
FACTS SHOWING PROBABLE CAUSE. 
 
 [Case No. 15 
 
 C()MMOXWKA^/rH T. TEEFETHEX it al. 
 
 (31 X. E. 9U1, ir.7 Mass. 180.) 
 
 Supreme .ludicial Court of Massachusetts. 
 Middlesex. Oct. 20, 1892. 
 
 Exceptioii.s from' superior court, Middlesex 
 county. 
 
 Indictment against James Albert Trefe- 
 then and William H. Smith for the murder 
 of Deltena H. Davis by drowning. Ttiere 
 was a verdict of guilty as to Trefethen and 
 not guilty as to Smith. Defendant Trefe- 
 then excepted, and asked that the case be 
 reported to this court for detei-miuation. 
 Verdict against Trefethen set aside. 
 
 A. E. Pillsbury, Atty. Geu.. for the Com- 
 monwealth. John D. Long and Wm. Scho- 
 field, for defendants. 
 
 FIELD, C. J. The principal exception is 
 to the i-efusal of the court to admit the testi- 
 mony of Sarah L. Hubert. The exceptions 
 recite that: ".Sarah L. Hubert, a witness 
 called in behalf of the defendant, testified 
 that her business, which she advertised in 
 the newspapers, was that of a trance medi- 
 um; that on December 22, 18',)1. in the fore- 
 noon, after 10 o'clock, a young woman called 
 at her plape of business in Boston for con- 
 sultation. There was sufflcient evidence to 
 go to the jury of her identification as Del- 
 tena J. Davis. Upon objection being made 
 to the testimony of this witness, counsel for 
 the defendants stated to the court, aside 
 from the jury, that they offered to prove 
 by this witness that at the interview on 
 December 22d, the young woman aforesaid 
 stated to the witness that she was five 
 months pregnant with child, and had come 
 to consult as to what to do, and added later 
 in the interview that she was going to 
 drown herself. The court refused to ad- 
 mit the testimony, and the defendants duly 
 excepted." The exceptions also recite that 
 "the evidence offered in behalf of the com- 
 monwealth was wholly circumstantial, and 
 tended to show that on December 23, 1891, 
 Deltena J. Davis left her home in Everett 
 at about 7 o'clock in the evening, and was 
 last seen on the corner of Ferry street and 
 Broadway, which is near her home in said 
 Everett, at about 25 minutes of 8, the same 
 evening. On the 10th day of January, 1892, 
 her dead body was found in the Mystic 
 river, a short distance below the Welling- 
 ton bridge, about three miles from her 
 home. There were no marks of violence 
 on the body when found, nor was there any 
 evidence that poison had been administered, 
 nor did her clothing show any signs of 
 violence. * * * The physicians called in 
 behalf of the commonwealth testified that 
 the cause of death was drowning, and that, 
 from the stage which digestion had reached, 
 death occurred between two and one-half 
 and three and one-half hours after the de- 
 ceased had eaten her last meal. There 
 was evidence that the deceased ate her sup- 
 
 per about 5 o'clock on the evening of De- 
 cember 23d, and that the partly digested 
 food found in her stomach corresponded 
 with that which it was testified she ate at 
 that meal. The deceased was unmarried, 
 and at the time of her death was pregnant 
 with a male child, and was about five 
 months advanced in the state of pregnancy. 
 The defendants contended and argued, with- 
 out objection, that all the evidence introdu- 
 ced in behalf of the commonwealth was 
 reasonably consistent with the theory that 
 the deceased came to her death by suicide. 
 There was evidence in the case tending to 
 negative the circumstances relied upon by 
 the commonwealth, and to support the 
 theory of suicide." 
 
 At the argument in this court the attor- 
 ney general asked that if the kind and 
 amount of evidence tending to support the 
 theory of suicide should be thouglit by the 
 court to be important, the exceptions might 
 be amended so as to show exactly what 
 this evidence was; and he intimated that, 
 in his opinion, this evidence was so slight as 
 to be unworthy of serious consideration. 
 We understand that by "evidence" the at- 
 torney general meant direct evidence tend- 
 ing to prove suicide. Without considering 
 what remedy, if any, is open to the attor- 
 ney general in a criminal case where there 
 is a reason to suppose that the exceptions 
 taken by the defendant and allowed by the 
 court are not sutHciently full, we ai'e of 
 opinion that in the present case the facts 
 are such that suicide would naturallj' sug- 
 gest itself as a possible explanation of the 
 cause of death, and that, if it be true that 
 the direct evidence tending to prove suicide 
 is inconsiderable, yet the circumstances af- 
 forded evidence in support of the theory of 
 suicide which must be considered by the 
 jury. The amendment, therefore, if it were 
 made, and were of the character suggested, 
 would afford no aid to the court in determin- 
 ing the questions of law raised by the ex- 
 ceptions. 
 
 A few minor suggestions of the attorney 
 general may be briefly disposed of. There 
 was evidence on the part of the common- 
 wealth that the deceased did not leave her 
 home on the 22d of December until 3 o'clock 
 in the afterno'on, and that she returned 
 home between 8 and 9 o'clock, and the at- 
 torney general argues that "this furnishes 
 suflBcient reason for the exclusion of the 
 evidence" offered "in the discretion of the 
 court." But the jury might have disbe- 
 lieved this evidence of the commonwealth, 
 or, if they believed it, might also have be- 
 lieved that the deceased had the interview 
 with Sarah L. Hubert in the afternoon, 
 rather than in the forenoon, of December 
 22d. The attorney general also argues 
 "that the statement was so remote in point 
 of time from the disappearance and death 
 of Tena Davis that it was xwithin the dis- 
 cretion of the court to exclude it for this 
 
 43 
 
Case No. 15] 
 
 EELE7ANCY. 
 
 reason." When evidence of declarations of 
 any person is ofCei-ed for the purpose of 
 showing the state of mind or intention of 
 that person at the time the declarations 
 were made, the declarations undoubtedly 
 "may be so remote in point of time, or so 
 altered in import by subsequent change in 
 the circumstances of the maker, as to be 
 wholly immaterial, and wisely to be reject- 
 ed by the judge." It has been many times 
 said that "some limit must, of course, be 
 had in applying practically the rules which 
 govern the admission of this evidence." 
 This subject is considered in Com. v. Ab- 
 bott, 130 Mass. 472, and in the cases there 
 cited. There is undoubtedly a discretion to 
 be exercised by the judge or judges presid- 
 ing at the trial in the admission or rejection 
 of this kind of evidence; but it is not an 
 absolute discretion, and the exercise of it, 
 when th'e facts appear, may be reversed by 
 this court. If the declaration, evidence of 
 which was offered in the present case, had 
 been made by the deceased two or three 
 years before her death, when she was not 
 pregnant with child, and did not know the 
 defendant, it might well have been held by 
 the presiding judges to have been of no 
 significance in the case. 
 
 In the case at bar the evidence offered 
 was that the declaration of the deceased 
 was made the day before her death, and 
 was made in a conversation concerning her 
 pregnancy, which continued until her death. 
 The declaration, therefore, was not made 
 at a time remote from the time of her 
 death, and there had been no change of 
 circumstauci^s which made it inapplicable 
 to the condition of the deceased at the time 
 of her death. It was clearly competent for 
 the jury to find from the evidence recited 
 in the exceptions that, if Deltena J. Davis 
 had an intention to commit suicide on De- 
 cember 22d, she continued to have the same 
 intention on December 23d. If the evidence, 
 in its nature, was admissible, the court, on 
 the facts stated, could not exclude it on the 
 ground that from the lapse of time or 
 change of circumstance it had ceased to be 
 material. It ought to be said that there Is 
 nothing in the exceptions Indicating that the 
 presiding judges refused to admit the evi- 
 dence on the ground that it was in their 
 discretion to admit or reject it. They prob- 
 ably considered the question presented as 
 settled by the decision of this court in Com. 
 V. Felch, 132 Mass. 22. 
 
 The main argument of the attorney general 
 is: First, that it is immaterial whether the 
 deceased, at or before the time of her death, 
 had or had not an intention to commit sui- 
 cide; and, secondly, that, if she had such an 
 intention, it could not be proved by evidence 
 of her declarations that she was going to 
 drown herself. The burden was on the com- 
 monwealth to prove beyond a reasonable 
 doubt that the defendant killed the deceased, 
 and to do this the jury must be satisfied be- 
 
 44 
 
 youd a reasonable doubt that she did not kill 
 herself. The nature of the case proved by 
 the commonwealth was such that it was not 
 impossible that she had committed suicide. 
 If it could be shown that she actually had 
 an intention to commit suicide, it would be 
 more probable that she did in fact commit it 
 than if she had had no such intention. If it 
 could be shown that during the week before 
 her death she had actually attempted to 
 drown herself, and had been prevented fro}u 
 doing it, it seems manifest that this fact, ac- 
 cording to the general experience of mankind, 
 would have some tendency to show that she 
 might have made a second attempt, and ac- 
 complished her purpose. It may be true that 
 an unmarried woman, pregnant with child, 
 may some time say that she will commit sui- 
 cide when she has no serious intention of do- 
 ing it; or, if she has such an intention, she 
 may not carry it into effect, although she 
 may have an opportunity; but it is impos- 
 sible to say that the actual existence of sucti 
 an intention does not tend to throw some 
 light upon the cause of death of such a 
 woman when found dead under circumstan- 
 ces not inconsistent with the theory of sui- 
 cide. It is a question of more difficulty 
 whether evidence of the declarations of the 
 deceased can be admitted to show such an 
 intention. The argument, in short, is that 
 such evidence is hearsay. It is argued that 
 such declarations are not made under the 
 sanction of an oath, and that there is no op- 
 portunity to examine and cross-examine the 
 person making them, so as to test his sin- 
 cerity and truthfulness, or the accuracy and 
 completeness with which the declarations de- 
 scribe his intention or state of mind; and 
 that, even if such declarations would have 
 some moral weight in the deteraiination of 
 the issue before the cohrt, they are not with- 
 in any of the exceptions, to the exclusion of 
 hearsay, which the common law recognizes, 
 
 The counsel for the defendant concede 
 that the declaration in this case is not, un- 
 der our decisions, admissible as a part of 
 what has been called the "res gestae," al- 
 though they contend that some courts have 
 admitted similar declarations on that ground. 
 They concede that to make a declaration ad- 
 missible on that ground it must accompany 
 an act which, directly or indirectly, is rele- 
 vant to the issue, to be tried, and must in 
 some way qualify, explain, or characterize 
 that act, and be, in a legal sense, a part of 
 it. They concede that if this declaration is 
 a part of the act of visiting Sarah L. Hubert, 
 and tends to show the nature or purpose of 
 that visit, the fact of the visit is not rele- 
 vant to the issue. It does not tend to show, 
 directly or indirectly, that the defendant kill- 
 ed the deceased, or that she killed herself. 
 They concede that if the evidence of this dec- 
 laration is admissible, it is on account of the 
 nature of the declaration, and not because 
 it was made at this interview; and that, If 
 made to anybody else under the same cir- 
 
FACTS SHOWING PROBABLE CAUSE. 
 
 [Case No. 15 
 
 cumstances, it would have the same signifi- 
 cance. They contend that the declaration is 
 some evidence of the state of mind or inten- 
 tion of the deceased at the time she made it, 
 and tliat the intention which it tends to prove 
 is a material fact, which, in connection with 
 other facts proved, tends to support the the- 
 ory of suicide. They contend that the state 
 of mind or intention in the mind of a per- 
 son, when material, can be proved by evi- 
 dence of his declarations as well as of hia 
 acts, particularly when that person has de- 
 ceased, and cannot be called as witness, and 
 the declarations were made before the con- 
 troversy arose which is the subject of the 
 trial. 
 
 The evidence that declarations were made 
 must, of course, be of the same character as 
 the evidence that the acts were done; that is, 
 both must be proved by the testimony of 
 witnesses under oath, and subject to cross- 
 examination, and in either case the examina- 
 tion may extend to all the circumstances 
 which tend to show the significance of the 
 declarations or of the acts as indications of 
 the existing state of mind or intention of the 
 speaker or actor. The fundamental proposi- 
 tion is that an intention in the mind of a per- 
 son can only be shown by some external man- 
 ifestation, which must be some look or ap- 
 pearance of the face or body, or some act or 
 speech; and that proof of either or all of 
 these, for the sole pui-pose of showing the 
 existing state of mind or intention, may be 
 inferred. For example, the exceptions recite 
 that on the day when the deceased disappear- 
 ed Trefethen called at the house of her moth- 
 er "about 10 in the forenoon, and was there 
 some time with Tena, and that Tena that 
 day appeared bright and cheerful, and "full 
 of smiles,' but at times during the month 
 prior thereto had been depressed in spirits." 
 The only apparent object of this testimony 
 was to show that on the day she disappeared 
 she was happy, and, therefore, could not have 
 contemplated suicide. Her bright and cheer- 
 ful appearance might have been real or feign- 
 ed, but this was for the jury. If the deceas- 
 ed at the same interview had said, "I was 
 never so happy in my life as I am to-day," 
 it is contended that this declaration might be 
 as significant of her state of mind as her 
 cheerful appearance, and that speaking, as 
 an indication of what is in the mind of the 
 speaker, is as much an act as smiling or con- 
 duct generally. ,The only obvious distinction 
 between speech and conduct is that speech is 
 often not only an indication of the existing 
 state of mind of the speaker, but a state- 
 ment of a fact external to the mind, and as 
 evidence of that it is clearly hearsay. There 
 is, of course, dauger that a jury may not al- 
 ways observe this distinction, but that has 
 not availed to exclude testimony which is ad- 
 missible for one purpose and not admissible 
 for another, to which there is danger the jury 
 may apply it. A common instance of this is 
 when it is a material fact in the case whether 
 
 a pQi'Son at a certain time said a certain 
 thing. The testimony of a witness who 
 heard him say it is always admitted, al- 
 though this is not evidence that what that 
 person said was true. The present case dis- 
 closes another instance. Many witnesses tes- 
 tified to conversations with the defendant 
 about the disappearance of Tena Davis, and 
 his connection with it. What they said tu 
 him, and his silence or his replies, were only 
 admissible so far as his failure to make, re- 
 ply, or his replies to what was said to him, 
 under the circumstances, tended to show 
 that he was guilty; but the testimony of 
 what was said to him was not, In and of it- 
 self, evidimce that the statements made to 
 him were true. Suppose that at the inter- 
 view between the deceased and the witness 
 Hubert, if there was such an interview, the 
 deceased had said that Trefethen was the 
 father of her child; evidence that the de- 
 ceased said this is clearly hearsay, and is not 
 admissible to prove that he was the father. 
 But suijpose that it had been denied at the 
 trial that the deceased knew that she was 
 pregnant, testimony that she had said that 
 she was pregnant would be some evidence 
 that she knew it. If, the day before her 
 death, she had written a note, addi-essed to 
 her mother, stating her condition, and declar- 
 ing her intention to drown herself, and had 
 left it in her desk when she went from home 
 the following day, the admissibility of such 
 a letter in evidence, after proof that she had 
 written it, depends upon the same considera- 
 tions as the admissibility of evidence of 
 similar oral declarations. Such a wiitten dec- 
 laration differs from an oral declaration only 
 In this: that writing is often a more de- 
 liberate act than speaking; but this affects 
 only the weight of the evidence. It may also 
 be thought that speech is a less trustworthy 
 Indication of what is really In the mind of 
 the speaker than acts or appearance, but this, 
 if It be so, also affects the weight of the evi- 
 dence. Certainly, to confine the evidence to 
 acts, appearance, or speech which Is wholly 
 involuntary, would be Impracticable and un- 
 reasonable, for almost every expression of 
 thought or feeling can be simulated; and, al- 
 though evidence of the conscious declarations 
 of a person as indications of his state of 
 mind has in it some of the elements of hear- 
 say, yet it closely resembles evidence of the 
 natural expressions of feeling, which has al- 
 ways been regarded in the law not as hear- 
 say, but as original evidence, — 1 Greenl. Ev. 
 § 102, (5th Ed.;) and when the person mak- 
 ing the declarations Is dead, such evidence Is ' 
 often not only the best, but the only, evldeuc-e 
 of what was In his mind at the time. On 
 principle, therefore, we think it clear that 
 when evidence of the declarations of a per- 
 son Is Introduced solely for the purpose of 
 showing what the state of mind or intention 
 of that person was at the time the declara- 
 tions were made, the declarations are to be 
 regarded as acts from which the state of 
 
 45 
 
Case No. 15] 
 
 EELEVANCY. 
 
 mind or intention may be inferred in. the 
 same manner as from the appearance of the 
 person, or his behavior, or his actions gener- 
 ally. In the present case the declaration, 
 evidence of which was offered, contained 
 nothing in the nature of narrative, and was 
 significant only as showing the state of mind 
 or intention of the deceaseri 
 
 But it is argued that this is not the law, 
 and that it is not competent for this court 
 to change the esrablished rules of evidence. 
 We have been shown no case exactly like 
 the present, but there are decisions closely 
 analogous, and, while they are not uniform, 
 yet we think the weight of modern authority 
 is in favor of admitting evidence like that 
 offered in the present case for the purpose 
 stated. The latest decision on the subject is 
 Hillmon v. Insurance Co., 145 U. S. 28.5, 12 
 Sup. Ct. 909, and many of the cases are 
 cited in the opinion. See, also, Furyear v. 
 Com., 1 S. E. 512; Blackburn v. State, 
 23 Ohio St. 146; Boyd v. State, 14 Lea, 162; 
 Goersen t. Com., 99 Pa. St. 388; .Tumpertz 
 V. People, 21 111. .375: Reg. v. Jessop. 1(1 Cox. 
 Cr. Gas. 204; Com. v. Fenuo, 134 Mass. 
 217. It is argued that the decision of the 
 supreme court of the United Sfcites in In- 
 surance Co. V. Mosley, 8 Wall. 397. shows 
 that that court is somewhat more liberal 
 than our decisions warrant in admitting dec- 
 larations as a part of the res gestae, and that, 
 therefore, this court will not follow the de- 
 cision in Hillmon v. Insurance Co., ubi su- 
 pra. But, without considering whether we 
 should follow Insurance Co. v. Mosley on 
 the subject of res gestae, we are aware of no 
 difference in the decisions of the two courts 
 on the admission of declarations to show the 
 existing condition of the mind of the declar- 
 ant, if we except our decision in Com. v. 
 Felch, ubi supra, which we will consider 
 hereafter. , This court admits exclamations 
 and declarations as evidence of existing pain 
 in case of injuries. In the case of wills, 
 upon the issue of sanity or undue influence, 
 this court has always admitted evidence of 
 declarations which tend to show the con- 
 dition of the mind of the testator, and his in- 
 tention with regard to the disposition of his 
 property, or his fear of the person alleged to 
 have exercised undue influence. Shailer v. 
 B 'mstead, 99 Mass. 112; Lewis v. Mason, 
 109 Mass. 1G9; May v. Bradlee, 127 Mass. 
 414; Potter v. Baldwin, 133 Mass. 427; Wood- 
 v,ard V. Sullivan, 152 Mass. 470, 25 N. E. 
 837; Pickens v. Davis, 134 Mass. 252. Upon 
 an issue whether there was an intentional 
 gift or gift causa mortis the same rule pre- 
 vails. Whitney v. Wheeler, 116 Mass. 490; 
 Whitwell V. Winslow, 1.32 Mass. 307; Lane 
 V. Moore, 151 Mass. 87, 23 N. B. 828. In 
 Lane v. Moore this court say: "Where the 
 mental condition of a person at a particular 
 time is in issue, his appearance, conduct, 
 acts, and declarations, after as well as be- 
 fore the time in question, have been held 
 admissible in evidence if sufficiently near in 
 
 46 
 
 point of time, and if they appear to have any 
 tendency to show what that mental condition 
 was. The question has usually arisen in 
 cases involving the validity of wills, but the 
 principle is the same where the validity of a 
 gift is questioned, and where responsibility 
 for crime is to be determined." See also, 
 Howe V. Howe, 99 Mass. 88. It is to be no- 
 ticed that in all these cases the person, evi- 
 dence of whoste declarations was admitted, 
 was dead at the time of the trial. In ac- 
 tions by the husband for seducing his wife 
 and alienating her affections from him the 
 declarations and statements of the wife, made 
 before the alleged seduction, indicating the 
 state of her affections towards her husband, 
 have uniformly been admitted upon the ques- 
 tion of damages. Palmer v. Crook, 7 Gray, 
 418; Jacobs v. Whitcomb, 10 Cush. 255. In 
 the last case the court say: "Whenever the 
 mental feelings of an individual are to be 
 proved, the usual exi>ressions of such feel- 
 ings are original evidence, and often the only 
 proof of them which can be had." At com- 
 mon law the wife could not be a witness in 
 such a case. In Com. v. Abbott, ubi supra, 
 the defendant, who was not the husband, 
 being on trial for the murder of a married 
 woman, for the purpose of showing "the ex- 
 istence of motive on the part of the husband 
 of the deceased to commit the crime," offered 
 evidence that the husband and wife quarrel- 
 ed some years before the homicide: that 
 about six years before the homicide the hus- 
 band was seen entering his own house with 
 an axe in his hand, and that he then uttered 
 threats against his wife and a man not 
 named; and also offered to show the ill- 
 feeling of the husband towards the wife, by 
 statements not in the nature of threats, made 
 by the husband to a witness. The evidence 
 offered was confined to acts done or state- 
 ments made on or before the year 1877. The 
 homicide was in January, 1880. The repu- 
 tation of the wife for chastity between the 
 years 1873 and 1877 had been bad. There 
 was uncontroverted evidence that from May, 
 1879, the reputation of the deceased was not 
 questioned, and that the husband and wife 
 continued to live together until her death. 
 The justices trying the case excluded the 
 evidence, and the defendant excepted. In 
 that case this court say: "The existence of a 
 criminal motive is an element which it is 
 often necessary to establish in order to give 
 character to the acts and conduct of a party 
 charged with or suspected of crime. In such 
 case the conduct or declarations of a party, 
 both before and after the principal fact in 
 issue, are admissible, provided they are suf- 
 ficiently near in point of time, and sufficient- 
 ly significant of the motive or intent to be 
 proved. The rules which govei-n human con- 
 duct are to be reasonably applied in these 
 cases, as in all other investigations of fact. 
 They ai-e to be so applied in all cases where 
 the inquiry is as to the mental or moral con- 
 dition of a person at the time a particular act 
 
FACTS SHOWING PUOBABLE CAUSE. 
 
 [Case No. 15 
 
 was done. The intent or disposition, wlien 
 it constitutes an element of crime, can only 
 be ascertained, as all moral qualities are, 
 from the acts and declarations of the party." 
 This court, after saying that a certain dis- 
 cretion must be left to the justices trying the 
 case, held that it did not appear that the 
 court erred in excluding the evidence offered 
 because of its remoteness, and of a subse- 
 quent change in the relations of the husband 
 and wife. The court also say, what has been 
 said many times in criminal eases where it 
 was contended tliat some other person tliau 
 the defendant committed the crime, that "the 
 existence of ill feeling as a motive for the 
 commission of crime will not alone justify 
 submitting to a jury the question of the 
 guilt of a person entertaining such feeling. 
 It becomes material only when offered in 
 connection with other evidence propt'r to be 
 submitted, showing that the person charged 
 with such ill feeling was in fact implicated 
 in the commission of the crime." There is 
 no intimation anywhere in the opinion that 
 if the evidence had related to a time very 
 near the homicide, and if there had been evi- 
 dence implicating the husband in the com- 
 mission of the crime, evidence of his threats 
 against the wife, and of his statements show- 
 ing ill feeling towards her, would not have 
 been admitted; and the language of the 
 opinion implies that they would have been. 
 The admission of evidence of declarations in 
 Elmer v. Fessenden, 151 Mass. 3."9, '24 N. E. 
 208, and in actions involving the qui'stiuii of 
 domicile, — Kilburn v. Bennett, 3 Mete. (Muss.) 
 199, — and in bankruptcy cases, — Batemau v. 
 Bailey, 5 Term R. 512, ^may perhaps be sup- 
 ported on the ground that the declarations 
 were a part of the res gestae ; but, if these 
 cases were not decided on this ground, they 
 must be considered as applicable to the 
 present case. 
 
 It is also argued that the deceased, with 
 reference to the indictment, is not a party; 
 and the question whether her declarations 
 should be received as evidence is the same 
 as if they were the declarations of any other 
 person than the defendant, and that evidence 
 of a confession by a third person that he 
 Itilled the deceased, or threats to injure the 
 deceased, made by him, cannot be received. 
 The decisions appear to be uniform that con- 
 fessions of third persons cannot be received 
 as evidence that they committed the crime, 
 and that the defendant did not; and this for 
 the plain reason that they are hearsay. They 
 are strictly narratives of past transactions, 
 not made under oath, and are only competent 
 as admissions against the persons making 
 them. The decisions are not uniform wheth- 
 er evidence of threats made by third persons 
 to injure the deceased should be admitted or 
 not as evidence for the defendant. In most 
 of the cases where the evidence of such 
 threats by third persons has been rejected 
 in trials for murder, the threats were made 
 too long before the homicide to be significant. 
 
 or they were made under very different cir- 
 cumstances than those existing when the de- 
 ceased was killed, or there was no other evi- 
 dence tending to implicate these persons in 
 the commission of the crime, and the evi- 
 dence was rejected on one or all of thesfi 
 grounds. Evidence of threats of the deceased 
 against the defendant has been admitted 
 when the question was whether the defend- 
 ant or the deceased made the first assault, 
 and whether the defendant acted in self-de- 
 fense. "Wiggins V. People, 'j:i U. S. 4(w. If, 
 on a trial for murder, the defendant proved 
 that another person had ill will towards the 
 deceased, and had an oppoi-tunity to commit 
 the murder, and was found on the day when 
 the murder was committed near the place of 
 the murder, under suspicious circumstances, 
 with a weapon which might have been the 
 instrument with which the deceased was kill- 
 ed, and that the conduct of tuis person after 
 the murder was such as to indicate that he 
 had committed it, it would seem that evi- 
 dence tliat this person, on the day before the 
 murder, had threatened to kill the deceased 
 if he could find him, and said that he was 
 searching for him that he might kill him, 
 would be significant of an intent to kill him, 
 and ought to be admitted; and we find no 
 well-considered case where, on this state of 
 facts, such evidence has been rejected. See 
 State V. Beaudet, 53 Conn. 536, 4 Atl. 2:^7, 
 and cases cited; Holt v. State, 9 Tex. App. 
 571; Cluverius v. Com., 81 Va. 787, 820; Walk- 
 er V. State, i;3 Ala. 105; Howard v. State, 23 
 Tex. App. 206, ."i S. AV. sn; Puryear v. Com., 
 ubi supra; Worth v. Railroad Co., 51 Fed. 
 171. In Com. v. Felch, ubi supra, the de- 
 fendant was charged with attempting to pro- 
 cure the miscarriage of Mary Ann Finley on 
 July 2, 1881, by the use of some instrument 
 to the jurors unknown, in consequence of 
 which she died on the same day. He con- 
 tended at the trial "that the operation was 
 performed by Mary on herself; and there 
 was evidence tending to show that it would 
 have been possible for her to perform the 
 operation on herself, considered as an opera- 
 tion, using for the purpose an ordinary lead 
 pencil." He offered to prove by one Hughes 
 "that in the month of June next preceding 
 the time of the alleged offense Mary told her 
 that she was pregnant by one Edward Tit- 
 comb, and that if Titcomb did not perform 
 an operation to procure a miscarriage, or get 
 some one to do so, she should perform the 
 operation on herself with a lead pencil. It ap- 
 peared that said declarations neither accom- 
 panied nor were explanatory of any act then 
 done by her." The evidence was excluded, 
 and the defendant excepted. This court, in 
 the opinion, treat the evidence as hearsay, 
 and say: "Such evidence is generally inad- 
 missible. There are, however, several excep- 
 tions to this rule, and it is contended by the 
 defendant that this evidence may properly 
 be brought within some one of them. The on- 
 ly exception particularly designated is that re- 
 
 47 
 
Case No, 15] 
 
 RELEVANCY. 
 
 lating to pedigree. This is, Indeed, one of the 
 well-recognized exceptions to the general rule. 
 That which is technically hearsay evidence 
 is competent evidence upon a question of 
 pedigree." An examination of the original 
 papers shows that one of the contentions of 
 the defendant was that the evidence that 
 JIary said that Titcomb was the father of the 
 child was some evidence in the case that he 
 was the father, on the ground that it was a 
 declaration in relation to the pedigree of the 
 child; and the argument wns that, if Tit- 
 comb was the father, and the defendant was 
 not, it was improbable that the defendant 
 would attempt to procure a mi.scurriage. The 
 decision of the court that no question of pedi- 
 gree was involved in the case, and that for 
 the purpose of proving that Titcomb was the 
 father of the child the evidence was hearsay, 
 and inadmissible, is undoubtedly correct. 
 But the counsel for the defendant in that 
 case also contended that evidence of this 
 declaration was admissible to show an inten- 
 tion in the mind of the deceased to perfoim 
 the operation, in connection with the evi- 
 dence that the operation was one which she 
 might have performed. There are some pas- 
 sages in the latter part of the opinion which 
 perhaps tend to show that this argument did 
 not wholly escape the mind of the justice 
 who wrote it, but this particular aspect of the 
 evidence is certainly not considered, and no 
 cases are cited, and the whole discussion in 
 the opinion is that this point in the considera- 
 tion of the case might not have received the 
 attention it deserved. Upon a re-examination 
 of the question, we are of opinion that under 
 the circumstances shown in Com. v. Felch 
 a part of the evidence should have been ad- 
 mitted for the puiTpose of showing the inten- 
 tion in the mind of the deceased, and that to 
 this extent that decision must be overruled. 
 It is not necessary, in the present case, to de- 
 termine what limitations, if any, in practice 
 must be put upon the admission of this kind 
 of evidence, because all the limitations exist 
 which have ever been suggested as neces- 
 sary. The person making the declaration, if 
 one was made, is dead. She had an oppor- 
 tunity to commit suicide, and it was com- 
 petent for the jury to find that she had a 
 motive to commit it; and the declaration, if 
 made, was made under circumstances which 
 exclude any suspicion of an intention to make 
 evidence to be used at the trial. AVc cannot 
 know whether the jury would or would not 
 have found that the deceased was the person 
 who> had the interview with the witness, or 
 whether they would have believed the wit- 
 ness, or whether, if they did believe her, they 
 would have found that the deceased had real- 
 ly the intention which the declaration indi- 
 cated, or whether the testimony, in view of 
 all the evidence, would have atfected the 
 minds of the jury. We can only say that on 
 the facts recited in the exceptions the evi- 
 dence cannot be considered as immaterial or 
 unimportant. We are of opinion that the pre- 
 
 4S 
 
 siding judges erred in refusing to receive this 
 evidence, and that, for this reason, the ver- 
 dict against Trefethen must be set aside. 
 
 The remaining exceptions may be noticed, 
 although it is not absolutely necessary to 
 decide them. The first exception is to the 
 refusal of the court to permit the counsel 
 for the defendant to ask Charles E. Ray, 
 one of the jurors, who was under examina- 
 tion by the court upon the voir dire, "to 
 what extent he had read about the case in 
 the new.spapers." Ray was sworn as a ju- 
 ror, and sat as a juror at the trial. The 
 court read to all the jurors summoned Pub. 
 St. c. 170, § S5, and chapter 214, § 7, and then 
 read a portion of what was said by Sh&.w, 
 C. J., speaking for the full court in Com. 
 V. Webster, .j Cush. 295, 297, 298, viz. : "The 
 statute intends to exclude any person who 
 has made up his mind or formed a judg- 
 ment in advance in favor of either side. Yet 
 the opinion or judgment mubt be something 
 more than a vague impression, formed from 
 casual conversations with others, or from 
 reading imperfect, abbreviated, newspaper 
 reports. It must be such an opinion upon the 
 merits of the question as would be likely t» 
 bias or prevent a candid judgment upon a 
 full hearing of the evidence." The court al- 
 so read the statement made by Chapman,^ 
 C. J., speaking for the full court, in the trial 
 of Samuel M. Andrews. Report of Trial of 
 Andrews, by Charles G. Davis, p. 8. In the 
 present case, the court, having put to the 
 juror Ray all the statutory questions, which 
 he had answered to its satisfaction, refused 
 to permit the counsel for the defendant to 
 put the question we have quoted above. The 
 statutes we have cited, as also St. 1887, c. 
 140. undoubtedly contemplate that other 
 questions besides the still atory questions 
 may be put to jurors by the court, or liy the 
 parties or their attorneys under the direc- 
 tion of the court. Pub. St. c. 170, § 35, also 
 provides that "the party objecting to the 
 juror may introduce any other competent ev- 
 idence in support of the objection." To de- 
 termine whether a juror has such bias or 
 prejudice that he does not stand indifferent 
 in the cause is often a matter of a good deal 
 of delicacy and difficulty, because persons 
 most affected with bias or prejudice are 
 sometimes the least sensible of it; but the 
 extent to which the examination of the ju- 
 ror should be carried after the statutory 
 questions have been answered has been said 
 to be within the sound judgment and judi- 
 cial discretion of the trial judge or judges. 
 Com. V. Burroughs, 145 Mass. 242, 13 X. E. 
 884. It is plainly impossible to exclude every 
 juror who has read in the newspapers some 
 statement of the case, because this might 
 exclude c^'ery intelligent man in the coun- 
 try. It is Avell known, however, that then>- 
 is a growing tendency in certain newspapers 
 to publish not only the evidence given in any 
 preliminary hearing on a charge of crime, 
 but all sorts of unverified rumors and of 
 
FACTS SHOWING PKOBABLE CAUSE. 
 
 [Case No. 15 
 
 crude opinions concerning tlie probable guilt 
 or innocence of suspected persons. Tliis re\>- 
 reliensible practice in a case wbicli excites 
 great popular interest may sometimes re- 
 quire extraordinary care on the part of the 
 coui-t in the selection of jurors, If the ac- 
 cused is to have an impartial trial. If the 
 discretion of the coiirt trying the case in the 
 matter of the examination of jurors, after 
 the statutory questions have been put and 
 satisfactorily answered, is absolute, we can- 
 not revise it; if it is not, we cannot say, as 
 matter of law, on the some\\liat meager 
 statement contained in the exceptions, and 
 in tlie absence of anything indicating what 
 the counsel of the defendant had any rea- 
 sonable exception in proving that the court 
 erred in excluding the question. 
 
 The mother of the deceased,' Mrs. Davis, 
 testified to a conversation with the defend- 
 ant on the morning of December 24th, a 
 part of which is as follows: "I asked him 
 where Tena was. He said he hadn't seen 
 her. * * * Says I, 'Don't lie. She went 
 out to meet you last night on the corner of 
 Perry street, and you have carried her off.' 
 He said he had not. Said I, 'You have.' " 
 The counsel for the defendant asked that 
 this be stricken out, and objected to its ad- 
 mission. The court overruled the request, 
 and admitted the testimony, and the defend- 
 ant excepted. There are other examples of 
 the admission of similar tei^timony against 
 the objection of the defendant. It does not 
 appear that the defendant testified as a wit- 
 ness in his own behalf, and no question aris- 
 es of the admissibility of evidence to affect 
 his credit as a witness. The exceptions re- 
 cite that, "after Mrs. Davis had testified, the 
 commonwealth Introduced a large amount of 
 testimony relating to the conduct of Tref e- 
 then after the disappearance of Tena, includ- 
 ing statements, declarations, conversations, 
 and conduct of Trefethen with Mrs. Davis" 
 and other persons named, the general char- 
 acter of which is set out in the exceptions; 
 and "that at the interview with Mrs. Davis 
 on the morning of December 24th, when ac- 
 cused by her of Tena's disappearance, he 
 [Trefethen] shed tears, and was greatly ex- 
 cited; and also * * * that at various 
 times in these intei-views, during the period 
 between December 23d and January 10th, he 
 met the statements quoted In this bill, made 
 to Mrs. Davis by Tena, and repeated to him 
 by Mrs. Davis or the ofiicers, in various 
 ways, sometimes by explicit denial, some- 
 times by silence, and sometimes by equivo- 
 cal expressions, such as 'it must be a mis- 
 take,' 'it is all a mistake,' 'it must be some 
 other party;' from all which evidence \he 
 commonwealth claimed and argued, without 
 objection, that these denials of his relations 
 with Tena, of her seduction, of the appoint- 
 ment with her for the evening of Decembei* 
 23d, and his connection with her disappear- 
 ance and death, were false, and were made 
 to protect himself against the charge of mur- 
 
 WILGUS.EV.— 4 
 
 der." If a defendant is charged with crime, 
 and uue(]uivo<-ally denies it, and this is the 
 whole conversation, it cannot be introduced 
 in evidence against him as an admission. 
 Fitzgerald v. Williams, 148 Jlass. 4(32, 20 N. 
 B. 100. If any part of a conversation with 
 the defendant put in evidence tends to show, 
 directly or indirectly, that he is guilty of 
 the crime charged, the defendant has the 
 right to have put in evidence all that was 
 said to and by him at the same time and 
 relating to the same subject, although it is 
 in his favor. Com. v. Keyes, 11 Gray, 323. 
 When a statement is made in the presence 
 and hearing of a defendant, which, if true, 
 tends to show that he is guilty, and he re- 
 mains silent, or makes an equivocal reply, 
 the rule of law has been stated to be as fol- 
 lows: "The rule is that a statement made 
 in the presence of the defendant, to which 
 no reply is made, is not admissible against 
 him, unless it appears that he was at liberty 
 to make a reply, and that the statement was 
 made by such person, and under such cir- 
 cumstances, as naturally to call for a reply, 
 unless he intends to admit it. But if he 
 makes a reply wholly or partially admitting 
 the truth of the facts stated, both the state- 
 ment and the reply are competent evidence. 
 Com. V. Kenney, 12 Mete. (Mass.) 235; Com. 
 v. Galavan, 9 Allen, 271." Com. v. Brown, 
 121 Mass. (39, 80. See Com. v. Densmore, 12 
 Allen, ,>3o. Com. v. Brown was an indict- 
 ment for procuring the miscarriage of one 
 Ann Powers, otherwise called Emma L. 
 Smith, and one Frances Ordway, otherwise 
 called Frances A. Chase. In that case one 
 George, a police officer, testified that he 
 "took the defendant into the presence of 
 Emma L. Smith and Frances A. Chase, and 
 asked them in the defendant's hearing and 
 presence if they knew him. Both said that 
 they kne'rt' him. One knew him as Dr. King, 
 the other knew him as Dr. Brown. I asked 
 them if he performed an operation on them. 
 They said he did. The defendant asked if 
 they had been operated on previously by any 
 other person. They said, 'Xo,' " etc. This 
 testimony was admitted against the objec- 
 tion of the defendant. The full court say: 
 "In this case, when Emma L. Smith and 
 Frances A. Chase stated that the defend- 
 ant had performed an operation on them, he 
 did not remain silent, but asked them in re- 
 ply if they had been prcjviously operated up- 
 on by another person. The juiy might infer 
 from this an admission by him of the truth 
 of their statements." It is obvious that when 
 the reply of a defendant to a statement made 
 to him, which, if true, tends directly or in- 
 directly to prove that he is guilty of the 
 crime charged, is not an une'quivocal affirma- 
 tion or denial of the truth of the statement, 
 difficult questions must often arise in de- 
 termining whether the reply is of such a 
 character that It has any tendency to show 
 a consciousness of guilt which will warrant 
 its admission as evidence against him. Per- 
 
 49 
 
Case No. 15] 
 
 BELEVANCY. 
 
 haps a certain discretion must be left to the 
 presiding judge or judges, in view of all the 
 circumstances of the case. The same is true 
 when the conduct and declarations of the 
 defendant are put in evidence for the pur- 
 pose of showing a consciousness of guilt on 
 liis part. See Com. v. Piper, 120 Mass. 185, 
 189. 
 
 The exceptions in tlie present case do not 
 set out verbatim the whole conversation be- 
 tween Mrs. Davis and the defendant on the 
 morning of December 24th, and of that set 
 out we cannot say, as matter of law, that 
 some of the replies, were not such as to war- 
 rant their admission as evidence against the 
 defendant. If these were admitted, the de- 
 fendant had the right to have the whole con- 
 versation on that subject put in evidence. 
 The logical effect of an une'quivocal denial 
 of guilt, if it have any effect, is in favor of 
 the defendant; and the admission of the 
 denials of the defendant, if the jury prop- 
 erly considered the evidence, was in favor of 
 the defendant. This is shown in the at- 
 tempt, often made by a defendant when the 
 government has introduced evidence of a 
 confession made on one occasion, to intro- 
 duce evidence that on other occasions he has 
 denied that he was guilty. While evidence 
 that the defendant has made false state- 
 ments in regard to many facts which are rel- 
 evant to the issue is admitted against him 
 as tending to show his guilt, it is not com- 
 petent for the government to contend that a 
 denial of guilt is of itself evidence against 
 the defendant. To argue that by the other 
 evidence the defendant is shown to be prob- 
 ably guilty, and that therefore his denial of 
 guilt is false, and is additional evidence 
 against him, ought not to be permitted. 
 When a defendant in a criminal case is 
 shown to have made certain false statements 
 of facts, and these facts are relevant to the 
 issue, the fact that the defendant has know- 
 ingly made the false statements may have 
 some tendency to show that he Is guilty; 
 but the jury must first be satisfied beyond 
 
 50 
 
 a reasonable doubt that the defendant made 
 the statements, and that they were false, 
 and that the defendant knew that they were 
 false, before any weight can be given to 
 this evidence, unless the statements of them- 
 selves have some tendency to show his guilt. 
 But when the defendant denies generally 
 that he is guilty, this statement cannot be 
 shown to be false, except by proving that 
 he is guilty beyond a reasonable doubt; and 
 then it is unnecessary. If there is a rea- 
 sonable doubt of his guilt on all the other 
 evidence, the fact that he unequivocally de- 
 nied his guilt is not, of itself, evidence 
 against him; and the denial cannot be as- 
 sumed to be false because it has not been 
 proved to be false by suflicient evidence. 
 Some of the denials of the defendant in the 
 present ease were denials of facts which 
 were relevant to the issue, and not a gen- 
 eral denial of guilt, and we do not know 
 whether the evidence was not such as to 
 satisfy the jury beyond a reasonable doubt 
 that these denials were knowingly false. 
 Some of the evidence recited was competent 
 on the ground that the conduct or replies of 
 the defendant, in view of the statements 
 made to him, had some tendency to show 
 guilt on his part. If in one conversation 
 some of the replies of the defendant had 
 some tendency to show guilt, and some were 
 explicit denials of guilt, we cannot say that 
 the defendant has been prejudiced by the 
 admission in evidence of all that was said 
 at that interview directly or indirectly re- 
 lating to his guilt or innocence if the jury 
 were properly instructed upon the applica- 
 tion to be made of this evidence. We cannot 
 presume that the court did not take pains 
 properly to instruct the jury uiion the legiti- 
 mate use to be made of the evidence admit- 
 ted, and warn the jury that the statements 
 made to the defendant were not to be consid- 
 ered, in and of themselves, as any evidence 
 of the facts stated. On this part of the case 
 the exceptions disclose no error of law. 
 Verdict against Trefethen set aside. 
 
OKDJNARY COUKSE OF HUSINESiS. 
 
 [Cas© No. 16 
 
 JENSEN T. McCORKELL. 
 
 (26 Atl. 366, 134 Pa. St. 323.) 
 
 Supreme Court of Pennsylvania. April 17, 
 1893. 
 
 Appeal from court of common pleas, Phil- 
 adelphia county. 
 
 Assumpsit by Anna M. Jensen against 
 John G. R. McCorkell. From a judgment 
 for plaintiff, defendant appeals. Affirmed. 
 
 AVilliam Gorman, for appellant. Ernest L. 
 Tustin, for appellee. 
 
 STERRETT, 0. J. This suit is on a note 
 at 90 days from March 28, 1890, made by 
 Rodger Convery to the order of P. C. Con- 
 very, indorsed by him and by the defendant, 
 etc. It is conceded the note was duly pre- 
 sented to the maker at maturity and protest- 
 ed for nonpayment. The only question was 
 whether defendant was legally notified of 
 the dishonor of the note. Alonzo R. Ruther- 
 ford, the notary by whom it was protested, 
 testified in substance, that on the day named 
 he inclosed notice of protest In an envelope 
 addressed to defendant, "Philadelphia Driv- 
 ing Park, Philadelphia," his then place of 
 residence in said city, and mailed the same 
 on tliat day in the Philadelphia post office. 
 He further testified that on the envelope in 
 which he sent the notice the words "Return 
 to Alonzo R. Rutherford if not delivered," 
 etc., were stamped, and that said letter' was 
 never returned to him. It was also in evi- 
 dence that the then United States carrier 
 delivery service did not cover "Philadelphia 
 Driving Park," but those who resided there, 
 Including defendant, received their mail mat- 
 ter regularly at the sub post office or station 
 located in that section of the city near de- 
 fendant's residence. The defendant denied 
 having received the notice of protest; and 
 his man of business, who was accustomed 
 to call at the sub post office daily, once, 
 twice, and occasionall.v thrice, for his em- 
 ployer's mail, and sometimes, in his absence, 
 opening the same, testified that he knew 
 nothing of the receipt of said notice. No 
 points for charge were submitted to the 
 court by either party. After referring to 
 plaintiff's evidence, tending to show that the 
 notice of protest was duly mailed to and re- 
 ceived by defendant, and also to defendant's 
 rebutting testimony, the learned judge in- 
 structed the jury to find, from all the evi- 
 dence before them, whether or not the no- 
 tice was sent and reached defendant's place 
 of business, and, among other things, said: 
 "If it came to either of them, it was a suf- 
 ficient notice, within the requirements of the 
 law, if it came within a reasonable time:" 
 and that "the date, July 12th, which has been 
 mentioned in the course of the case, would 
 be too late." 
 
 , Considering the two specifications in their 
 Inverse order, we think defendant unjustly 
 complains of the court for not charging the 
 
 jury that, "under all the evidence in the 
 case, their verdict should be for the defend- 
 ant." The learned judge was not requested 
 to thus instruct the jury, and thereby with- 
 draw the case from their consideration. If 
 such instruction had been asked, in view of 
 the evidence referred to, it would have been 
 error to have given it. 
 
 The only other specification is the follow- 
 ing excerpt from the learned judge's charge: 
 "The United States government has taken 
 hold of the distribution of the mails, and, in 
 the city of Philadelphia, letters deposited in 
 the mail are delivered daily; and, where there 
 is upon the back of an envelope a stamp of 
 the name of the person who sends letters, 
 the letters are returned if they are not de- 
 livered." "Under this condition of things, I 
 instruct you there is a presumption, when 
 the letter is mailed to the proper address 
 within the city, that it is delivered in ac- 
 cordance with the direction." The plaintiff's 
 evidence, as we have seen, was to the effect 
 that, (ju the day the note was disnonored, a 
 notice of protest, properly addressed to de- 
 fendant, was deposited in the Philadelphia 
 post office. In due course of mail the letter 
 thus deposited by the notary would be prop- 
 erly transmitted to the sub post office, in the 
 vicinity of defendant's residence, where he 
 was accustomed to regularly receive his let- 
 ters and other mail matter. The plaintiff's 
 evidence on that subject was sutticient tn 
 warrant the jury in finding the fact on which 
 their verdict is necessarily predicated, viz. 
 thfit the letter reacheil its destination — de- 
 fendant's place of business or residence — by 
 due course of mail, etc. As we said in AVhit- 
 more v. Insurance Co., 148 Pa. St. 405, 23 
 Atl. Rep. 1131, It is well settled that the fact 
 of depositing in the post office a properly ad- 
 dressed, prepaid letter raises a natural pre- 
 sumption, founded in common experience, 
 that it reached its destination by due course 
 of mail; in other words, it is prima facie 
 evidence that it was received by the person 
 to whom it was addressed; but that prima 
 facie proof may be rebutted by evidence 
 showing it was not received. The question 
 is one of fact solely for the determination of 
 the jury under all the evidence. Folsom v. 
 Cook, 115 Pa. St. 549, 9 Atl. Rep. 93; Susque- 
 hanna M. P. Ins. Co. V. Tunkhannock Toy 
 Co., 97 Pa. St. 424; Huntley v. AVhittier, 105 
 Mass. 391; Briggs v. Hervey, 130 Mass. 188. 
 In the case at bar that presumption is 
 strengthened by the undisputed evidence that 
 the name and addiess of the notary were 
 stamped on the envelope covering the notice 
 of protest. So greatly, indeed, does that 
 fact strengthen the presumption, that it be- 
 comes well-nigh conclusive. At least it would 
 be entitled to considerable weight in con- 
 nection with other facts and circumstances 
 in the case. In view of the evidence, and 
 submission of the questions arising there- 
 on to the jury, their verdict, in favor of plain- 
 tiff, by necessary implication establishes the 
 
Case No. 16] 
 
 RELEVANCY. 
 
 facts that the notice of protest, properly 
 addresser! and mailed to defendant, was 
 promptly transmitted to the sub post office 
 in the vicinity of his well-known residence 
 at "Philadelphia Driving Park," and was 
 52 
 
 there receivetl by him or some one author- 
 ized to receive the same from that office. 
 That is sufficient to fix his liability as in- 
 dorser. 
 Judgment affirmed. 
 
SIMILAR OCCUliREXCES SHOWING INTEXTIOX. ETC. [Case No. 17 
 
 STATE T. MINTON et al. 
 
 (22 S. W. 808, 116 Mo. 605.) 
 
 Supreme Court of Missouri. Division No. 2. 
 June 13. 1893. 
 
 Appeal from circuit court, Clintou county; 
 James M. Sandusky, Judge. 
 
 William E. Minton and George W. Sea- 
 sholts were convicted of forging a deed in 
 the name of a fictitious person, and tliey 
 appeal. Reversed. 
 
 Huston & Parrisli, for appellams. K. F. 
 Wallser, Atty. Gen., for the State. 
 
 BURGiOSS. J. At the March term, 1891, 
 of the criminal court of Buelianan county, 
 Robert F. Zooli, William B. Minton, and 
 George W. Seasholts were indicted for mak- 
 ing and forging a false and forged deed pur- 
 porting to he the act of one Youngberger, a 
 fictitious person, to convey certain land in 
 Stone county, Mo., to one Rachel Cross. 
 The indictment is in two counts. On a trial, 
 Zook was acquitted. Afterwards a change 
 of venue was awarded tlie defendants Min- 
 ton and Seasliolts, to the circuit court of 
 Clinton county, where on trial had at the 
 January term, 1892, of said circuit court of 
 Clinton county, defendants were acquitted 
 on the second count, and found guilty on the 
 first count, in the indictment, and the pun- 
 ishment of each one fixed at 10 years' im- 
 prisonment In the penitentiaiy. The count 
 of the indictment under which defendants 
 were convicted, leaving out the formal 
 parts, is as follows: "* * * did unlawful- 
 ly and feloniously and falsely make and 
 forge a certain false and forged deed, pur- 
 porting to be the act of one William T. 
 Youngberger, a fictitious person, by which 
 a right and interest in certain real property, 
 which in said deed purports to lie and be sit- 
 uate in the county of Stone, state of Mis- 
 souri, and which in said deed was described 
 as follows, to wit, all the east one-lialf of 
 the northeast quarter of section number 
 eighteen, township number twenty-three, 
 range number twenty-four, containing eighty 
 acres, more or less, purported to be convey- 
 ed and transferred to one Rachel Cross, 
 with intent then and there and thereby to 
 defraud, contrary to the form of the statute 
 in such cases made and provided, and 
 against the peace and dignity of the state 
 of Missouri." After conviction, defendants 
 tiled their "motion for new trial, and in ar- 
 rest, which being overruled, they appealed 
 to this court. 
 
 Tlie first contention on part of defendants 
 is that there is no evidence to support the 
 verdict. This court has so often decided 
 that it will not interfere witli a verdict un- 
 less it is evident that it is the result of pas- 
 sion, prejudice, or partiality on the part of 
 the jurors that it is scarcely necessary to 
 cite authorities on that point. State v. Nel- 
 son. 98 Mo. 414, 11 S. AV. 997, and authori- 
 ties cited; State v. Howell, 100 Mo. 628, 14 
 
 S. W. 4; State v. Glahn, 97 Mo. 679, 11 S. 
 W. 260. We are not prepared to say that 
 there is a total failure of evidence, or that 
 it is so weak as to justify the inference that 
 the verdict is the result of passion, preju- 
 dice, or partiality. In fact the evidence 
 leaves room for little doubt, if any, of their 
 guilt. 
 
 The action of the trial court in admitting 
 evidence as to other transactions with other 
 parties, and in admitting in evidence other 
 deeds than the one described in the indict- 
 ment, and in admitting proof of the declara- 
 tions of the defendants with reference 
 thereto, is assigned for error. There was sui.- 
 ficient foundation laid to justify the admis- 
 sion and statements of the defendants, as 
 against either or both, while their relations 
 existed as partners in dealing in real estate, 
 and tlie sale of lands, and the execution of 
 deeds therefor, as charged in the indict- 
 ment. The evidence tends strongly to show 
 that they were engaged in one common en- 
 terprise, selling and trading lands in the 
 county of Stone, in the name of i^oungberg- 
 er, enjoying the proceeds and profits aris- 
 ing from such transactions, and that while 
 thus engaged they entered into a conspiracy 
 to defraud, by selling lands to which tney 
 nor Y'oungberger, in whose name the con- 
 veyances were made, so far as the evidence 
 tends to show, had any right or title. Alon- 
 zo Cross, a witness for the state, testified 
 that he made the trade for the land describ- 
 ed in the indictment with the defendant 
 Seasholts, and that Seasholts told him that 
 the title thereto was good, that Youngberg- 
 er lived near Plattsburg, and that he traded 
 a good deal in lands. Dillard, also a witness 
 for the state, stated that the defendants told 
 him that Youngberger lived in Stone coun- 
 ty. Mo., and that he went from St. Joe to 
 Kansas; that he traded with defendants for 
 a tract of land, also in Stone county; and 
 that the deed was signed by Youngberger, 
 and delivered to him by defendant Sea- 
 sholts. Charles T. Miller, another witness 
 for the state, testified that he made a trade 
 wuh defendant Minton for a tract of land 
 in Stone county, whicli Minton caused to be 
 deeded to him (witness) by William T. 
 Youngberger, and tliat he got the impression 
 from what Minton said that Youngberger 
 was a traveling man, and was at that time 
 connected with the coal business in the city. 
 John Howard, also a witness for the state, 
 testified that he had. another and still differ- 
 ent deal for a tract of land in Stone county, 
 with defendant Minton, and that he stated 
 to witness that he would give him a good 
 warranty deed, a clear title, and a good ab- 
 stract; that this conversation occurred late 
 in the evening; that Minton said Youngberg- 
 er was not there then, but he would make 
 his deed out, and that he (witness) could 
 come in the morning and get it, which he 
 did. It also purported to have been execut- 
 ed by Youngberger. George Howard, also 
 
 53 
 
. Case No. 17] 
 
 RELEVANCY. 
 
 a witness, testified on behalf of tlie state 
 that he had a similar transaction with de- 
 fendant Minton for land in Stone county; 
 that Minton caused deeds to be executed to 
 him in the name of Youngberger, and stat- 
 ed to him that Youngberger was a banker in 
 Atciiison, Kan. Similar statements were 
 mai^e by defendants to other persons who 
 wore witnesses, on different occasions, which 
 were contradictory, and, when taken in con- 
 nection with the other facts and circumstan- 
 ces in proof, show conclusively that there 
 was a conspiracy existing between the de- 
 fendants to defraud, and justified the admis- 
 sion of proof of the statements of the one 
 again.st the other, as long as such conspira- 
 cy existed. State v. Melrose, 98 Mo. 594, 
 12 S. W. 250. 
 
 There was no error in admitting in evi- 
 dence deeds other than the one described in 
 the indictment. While such deeds had a 
 tendency to show that defendants were 
 guilty of other ci-imes thau the one with 
 which they stand charged, and were upon 
 trial, they were not for that reason, alone, 
 inadmissible, but they were admissible for 
 the purpose of showing the Intent with 
 which the act was done, being as they were 
 of similar character, executed, not only in 
 the same place, but purported to be signed 
 and acknowledged by the same party, 
 (Youngberger,) and several of them purport- 
 ed to have been acknowledged before the 
 same notary. This subject underwent an 
 exuaustive review by this court in the case 
 of State V. Myers, 82 Mo. 558, and under the 
 ruling in that case the deeds were clearly 
 admissible for the purpose of showing guilty 
 knowledge on the part of defendants. State 
 V. Bayue, 88 ilo. 604. 
 
 The court, over the objections of the de- 
 fendants, allowed the jury, at the sugges- 
 tion of the prosecuting attorney, to compare 
 the signature of William T. Youngberger, 
 as it appeared on the deed from him to 
 George Seasholts, and the two deeds from 
 him to Howard, with the signature of 
 Youngberger to the deed described in the in- 
 dictment. They were no ]iart of the record 
 in the case, not admitted to be in the hand- 
 writing of either one of the defendants, and 
 clearly inadmissible for the purpose of com- 
 parison. "When there are other wJ^itings in 
 the case, conceded to be genuine, they may 
 be used as standards of comparison, and the 
 comparison may be made by the jury, with 
 or without the aid of experts. 1 Greenl. Ev. 
 § 578; State v. Scott, 45 Mo. 302; State v. 
 Tompkins, 71 Mo. 614. But, with us, such 
 papers can only be used when no collateral 
 issue can be raised concerning them. 1 
 Greenl. Ev. § 581; State v. Clinton, 67 Mo. 
 380." The signatures on the deeds, other 
 than the one described in the indictment, 
 did present collateral issues; and the jury 
 should not have been permitted to compare 
 the signature of Youngberger, on them, with 
 the one described in the indictment. Rose 
 54 
 
 V. Bank (Mo. Sup.) 3 S. W. 876, and authori- 
 ties cited. It is only when the writing of- 
 fered in evidence is connected with the case 
 on trial, or is admitted to be genuine, that 
 it is the subject of comparison with the 
 writing in controversy, or, as in this case, 
 that which the defendants are charged with 
 having signed the name of some fictitious 
 person thereto, unlawfully. 
 
 There was no error in permitting the wit- 
 ness Eugene Spratt to testify that the name 
 of William T. Younguerger, signed to the , 
 deed described in the indictment, was in the 
 handwriting of the defendant Seasholts. I 
 He had already testified that he was ac- 
 quainted- with the handwriting of Seasholts, 
 and that was all that was necessary in or- 
 der to qualify him to testify in the case, and 
 to give his opinion as to whether or not the 
 name signed to the deed was in the hand- 
 writing of defendant Seasholts. Fash v. 
 Blake, 38 111. 3(;3; Clark v. Freeman, 25 Pa. 
 St. 133; Watson v. Brewster, 1 Pa. St. 381; 
 Garrells v. Alexander, 4 Esp. 37. 
 
 Nothing, however, that was said by either 
 of the defendants after the conspiracy end- 1 
 ed, and not in the presence of the other, was' 
 admissible in evidence against the one not 
 making the statements or admissions. State 
 V. Melrose. 9S Mo. 594, 12 S. W. 250; State 
 V. Hilderbrand, 105 Mo. 318, 16 S. W. 948; 
 State V. McGraw. 87 Mo. 161. 
 
 The admission of the postal card purport- 
 ing to have been written by L. H. Smith, 
 recorder, and addressed to L. L. Martin, St. 
 Joseph, Mo., dated Galena, Mo., October 1, ': 
 1890, was immaterial, hearsay, and inadmis- 
 sible for any purpose. Its effect could only 
 have been injurious to the defendants, and 
 should have been excluded. 
 
 While the Instructions, or some of them, 
 at least, are subject to verbal criticism, tak- 
 en as a whole, they presented the case very 
 fairly to the jury, and as favorably to the 
 defendants as they could expect. There is 
 no objection to them, when taken altogeth- 
 er, that would justify a reversal. 
 
 We come now to the consideration of the 
 sufficiency of the indictment. Section 3653, 
 Rev. St.. 1889, under which it is drawn, is 
 as follows: "The false making, forging, or 
 couuterfeiting any instrument or writing, 
 being or purporting to be the act of anoth- 
 er, by which any pecuniary demand or ob- 
 ligation, or any right. Interest, or claim to 
 money, right in action, or property, shall be, 
 or purport to be, or intended to be, convey- 
 ed, transferred, created, increased, dischar- 
 ged, diminished, or in any manner affected, 
 to which shall be affixed a fictitious name, 
 or the name of any person, or pretended sig- 
 nature of any person, not in existence, shall 
 be deemed a forgery, in the same degree and 
 In the same manner as if the name so affix- 
 ed was the name of a person in being, or 
 purporting to be the signature of a person in 
 existence." The indictment is manifestly 
 bad, and charges no offense against the de- 
 
SIMILAR OCCUKUENCES SHOWING INTENTION", ETC. [Case No. 17 
 
 fendants. It does not allege that a fictitious 
 name or pretended signature of any person 
 not in existence was affixed to the deed de- 
 scribed in tlie indictment. This is absolute- 
 ly necessary, under the statute, unless the 
 deed is set forth according to its tenor, 
 showing the fact to be that the name oi the 
 lictitious person was affixed to the deed. 
 "And when the tenor is exact and complete, 
 and sufficiently gives the purport, then the 
 purporting clause may be reje<tod :is sur- 
 plusage." 1 Whart. Cr. Law, § 737. The 
 purport of the instrument necessarily iip- 
 pears when the instrument is set forth ac- 
 cordiixg to the tenor. 2 Russ. Crimes, (9th 
 lOd.) 80.5; 3 Chit. Cr. Law, 1(141; State v. 
 Yerger, 86 Mo. 33. While the indictment in 
 
 this case does allege that the defendants did 
 unlawfully and feloniously make and forge 
 a certain false and forged deed, purporting 
 to be the act of one William T. Youngberg- 
 er, a fictitious person, it does not allege that 
 a fictitious name, or the name of any per- 
 son not in existence, was affixed thereto, nor 
 does it set out the deed in full. We must, 
 therefore, for these considerations, hold that 
 it does not charge the defendants with any 
 criminal offense. The judgment is revers- 
 ed, and arrested, and cause remanded, with 
 directions that the indictment be quashed, 
 and def enuants held to answer a new indict- 
 ment to be preferred against them by the 
 grand jury of Buchanan county. All con- 
 cur. 
 
 65 
 
Case No. 18] 
 
 RELEVANCY. 
 
 COJIMONWEALTH v. RUSSELL. 
 
 (30 N. E. 7G3, 156 Mass. 196.) 
 
 Supreme Judicial Court of Massachusetts. 
 Sufeolk. April 25, 1892. 
 
 Exceptions from superior court, Suflolli 
 county; Daniel W. Bond, Judge. 
 
 Charles H. Russell was convicted of for- 
 gery, and excepts. Exceptions overruled. 
 
 Geo. 0. Travis, for the Commonwealth. 
 Pranls M. Davis and Chas. F. Spear, for 
 defendant. 
 
 BARKER, J. It is an established excep- 
 tion to the rule forbidding proof of collat- 
 eral facts that in prosecutions for forgery 
 and for uttering forged paper proof is ad- 
 missible, in order to show an intent to de- 
 fraud by the forgery, and also to show 
 knowledge on the part of the accused with 
 reference to the particular document which 
 he is charged with uttering, that at or near 
 the time of committing the alleged offense 
 he had passed or had in his possession other 
 similar forged documents. Com. v. Miller, 
 3 Oush. 243, 250; Com. v. Stone, 4 Mete. 
 (Mass.) 43, 47; Rex v. Ball, Russ. & R. 132; 
 Rex V. Wylie, 1 Bos. & P. (X. R.) 92; Rex 
 V. Smith, 2 Car. & P. 633; Sunderland's 
 Case, and other cases, 1 Lewin, Or. Cas. 
 102-104; Rex v. Whiley, 2 Leach, 983; Com. 
 V. White, 145 Mass. 392, 395, 14 X. E, 611. 
 The admission of such evidence is necessary, 
 because guilty knowledge is a fact not sus- 
 ceptible of proof by direct evidence, and can 
 rarely be shown by explicit admissions, but 
 only by acts and conduct. Intent to de- 
 fraud often sufficiently appears from the 
 circumstances of the transaction, where its 
 immediate and necessary effect is to de- 
 fraud; but there are many cases of the false 
 making of instruments which have no such 
 necessary effect, and in which the fraudu- 
 lent intention must be proved by other and 
 collateral circumstances. Although the in- 
 troduction of such evidence compels the de- 
 fendant to meet acts not charged, and may 
 lead the jury to convict of one crime upon 
 proof of another, it is admitted when the 
 occasion arises. Com. v. Stone, ubi supra; 
 Com. V. Tuckerman, 10 Gray, 173, 206. This 
 doctrine is a branch of a more general ex- 
 ception, which, when knowledge or intent 
 must be proved, allows evidence of acts 
 not in issue, but which tend to show such 
 knowledge or intent,— as in the trial of 
 indictments for passing counterfeit money, 
 (Com. V. Price, 10 Gray, 472, 476; Com. v. 
 Hall, 4 Allen, 302;) for obtainiUK goods up- 
 on false pretenses, (Com. v. Stone, ubi 
 supra;) for embezzlement, (Com. v. East- 
 man, 1 Cush. 216; Com. v. Miller, 3 Cush. 
 250; Com. v. Tuckerman, ubi supra; Com. 
 V. Shepard. 1 Allen, 575;) and for adultery, 
 (Com. V. Merriam, 14 Pick. 519, 520.) As 
 said by Bigelow, C. J., in Com. v. Shep- 
 ard, ubi supra, "it is essential to the rights 
 
 56 
 
 of the accused that when such evidence is 
 admitted it should be carefully limited and 
 guarded by instructions to the jury, so that 
 its operation and efifect may be confined to 
 the single legitimate purpose for which it is 
 competent." In the case at bar the defend- 
 ant was tried upon an indictment charging 
 him with the forgery of a check upon a 
 bank, purporting to be drawn to his order 
 by one Andrews, and, in a second count, 
 with uttering the same check, knowing it to 
 have been forged. It was shown that when 
 arrested he had three other checks upon the 
 same bank, payable to his own order, one of 
 which purported to be drawn by Andrews; 
 and evidence, consisting in part of his own 
 alleged confessions, was admitted, subject 
 to his exception, tending to show that the 
 checks found upon him, and also two otheis 
 passed by him about the same time as tho 
 one set out in the indictment, were for- 
 geries. Under the principle above stated, all 
 the evidence excepted to was competent, 
 both to show his knowledge that the check 
 set out in the indictment was forged, and 
 that his pun)ose in the forgery and the 
 uttering was to defraud. It is to be pre- 
 sumed that correct and appropriate instiiic- 
 tions, to enable the jury to make a proper 
 application of the evidence, were given. 
 Com. V. Shepard, 1 Allen, 575, 582; Adams 
 V. Nantucket, 11 Allen, 203, 205. 
 
 Reserving for the present the questions 
 raised as to the alleged confessions, these 
 considerations require us to overrule the 
 other exceptions to th« admission of evi- 
 dence, and also to that portion of the charge 
 which allowed the jury, on the question of 
 the defendant's intention to defraud by the 
 forgery, to consider the fact that he had in 
 his possession at the time of his arrest other 
 forged checks. 
 
 2. The defendant excepted to the admis- 
 sion of evidence of his alleged confessions. 
 Before such evidence was received, the wit- 
 nesses were examined by the defendant's 
 counsel with reference to any inducements 
 or statements made to him by the officers, 
 and the bill of exceptions states that It 
 appeared that no inducements were held 
 out. When the examinntion disclosed that 
 his statements related in part to the other 
 checks above mentioned, the defendant's 
 counsel objected to the admission of any 
 statement or confession about checks other 
 than the one mentioned in the indictment, 
 and excepted to all evidence of his state- 
 ments as to the other checks; but. as all 
 the statements were pertinent to the ques- 
 tion whether the checks were forgeries, and 
 as that question was in law pertinent to 
 the issue, the evidence was competent. Dur- 
 ing the charge the court instructed the jury 
 that, if the testimony of the officers showed 
 that any inducement or hope of reward 
 was held out to the defendant, they were 
 to disregard any confession that might have 
 been testified to. At the close of the charge 
 
SIMILAR OCCUBBENCES SHOWING INTENTION, ETC. [Case No. 18 
 
 the defendant requested tlie court to further 
 instruct the jury "that if they believed, 
 ttiking all the circumstances of the case 
 into consideration, that the officers held out 
 any inducement or hope of reward to de- 
 fendant if he would confess, their testimony 
 as to any confession or admissions which 
 might have been made by the defendant 
 must be disregarded." As there was no 
 evidence bearing upon this question, except 
 the testimony of the officers, tlie instruction 
 given and that requested were the same, 
 in substance, and that requested was proper- 
 ly refused. 
 
 3. There was no evidence that Andrews 
 evei- had an account with the bank on 
 which the check purported to be drawn, 
 •or Any right to draw upon the bank. The 
 <;ourt refused to rale that for this reason 
 
 there was no evidence to warrant a convic- 
 tion, or that there was a variance between 
 the allegation and the proof, in that the 
 words "order for money" in the indictment 
 implied a mandatory power in the maker of 
 the check, while upon the proof it did not 
 appear that Andrews had any right to 
 command the bank to pay the check, or 
 any check. These requests were properly 
 refused. The indictment alleges the mak- 
 ing and uttering of a false order for money 
 of a certain tenor. Whether, if the false 
 order had been genuine, it would have been 
 a document which the bank on which it 
 purported to have been drawn would have 
 been bornd to honor, or even whether or 
 not there was such a bank, was not alleged 
 in the indictment, and was immaterial. 
 Exceptions overruled. 
 
 57 
 
Case No. 19] 
 
 RELEVANCY. 
 
 CONTINENTAL INS. CO. OF CITY OF 
 
 NEW YORK V. INSX'KANCE CO. 
 
 OF PENNSYLVANIA. 
 
 (2 C. C. A. 535, 51 Fed. 884.) 
 
 Circuit Court of Appeals, Second Circuit. 
 March 1.5, 1892. 
 
 Error to tUe circuit court of the United 
 States for the Southern district of New York. 
 
 At Law. Action by the Insurance Com- 
 pany of the State of Pennsylvania against 
 the Continental Insurance Company of the 
 VAty of New York to recover $33,lU.j, with 
 interest. Defendant in its answer, by way 
 of counterclaim, demanded .iudgment against 
 plaintife for ,$5,252.88, with interest. Verdict 
 tor plaintiff in the sum of $16,420.73, and mo- 
 tion for new trial denied. Judgment for said 
 amount, and for interest thereon, the whole 
 amounting to $18,732.20. Defendant brings 
 error. Affirmed. 
 
 Butler, Stillman & Hubbard (Thomas H. 
 Hubbard and John Notman, of counsel), for 
 plaintiff in error. Bvarts, Choate «& Beaman 
 (Treadwell Cleveland, of counsel), for defend- 
 ant in error. 
 
 Before WALLACE and LACOMBE, Cir- 
 cuit Judges. 
 
 PER CURIAM. This is a writ of error by 
 the defendant in the suit below to review a 
 judgment of the circuit court for the plaintiff 
 entered upon the verdict of a jury. The as- 
 signments of eiTor impugn the rulings of the 
 trial Judge in admitting evidence, and in re- 
 fusing to Instruct the juiy to find a verdict 
 for the defendant as to all, and especially as 
 to several, of the causes of action in contro- 
 versy. Error is also assigned of some of the 
 instructions given to the jury. 
 
 The complaint contains 23 counts, each of 
 which sets forth a different and distinct cause 
 of action. Each of them charges that, by the 
 fraudulent acts of an agent employed by both 
 the plaintiff and defendant, the plaintiff was 
 made to pay to a third party a sum of money 
 which should have been paid by the defend- 
 ant. The averments general to all are, in 
 substance, that in the years 1882 and 1883 
 one Lorenzo Dimick was the general agent 
 at Buft'alo of the plaintiff, the defendant, and 
 also of the two other insurance companies 
 having local agents in other places, who ac- 
 cepted applications and issued certificates for 
 marine insurance; that the general agent con- 
 ducted at Buffalo the whole business of in- 
 land marine Insurance for the several com- 
 panies, and, in the usual course of his busi- 
 ness, issued policies of insurance and effected 
 reinsurances in behalf of the several com- 
 panies for risks accepted by him, or by the 
 local agents, and adjusted all losses arising in 
 the business by drawing drafts on the com- 
 pany insuring, or paying them, and charging 
 the amount against its moneys in his hands. 
 Seventeen of the counts set forth causes of 
 
 58 
 
 action of a similar- character, and, in effect^ 
 allege that, after Dimick had iccpived in- 
 formation of a marine peril affecting a partic- 
 ular risk which had been insured by the de- 
 fendant, he fraudulently shifted the risk, or 
 some part of it, upon the plaintiff, by rein- 
 suring it in the name of the plaintiff, and, 
 when loss ensued which the defendant was 
 in fact liable to pay, he caused the plaintiff" 
 to pay it as a reinsurance upon the risk; that 
 each of the payments so made was received 
 by the defendant, and was obtained through 
 the fraudulent acts of Dimick, done with the 
 intention of cheating and defrauding the 
 plaintiff for the benefit of the defendant. 
 These 17 causes of action relate to different 
 risks, and involve different voyages, dates, 
 and amounts. The fifteenth and nineteenth 
 counts contain similar averments, except that 
 the risks were first insured by the defendant, 
 and, after information of peril or disaster was 
 received, Dimick substituted the plaintiff as 
 the original insurer. Four of the other 
 counts, the twentieth to the twenty-third, in- 
 clusive, are for similar causes of action, ex- 
 cept that they allege that risks were original- 
 ly insured by the plaintiff, and had been 
 reinsured by the defendant, but, after news 
 of peril or disaster, the reinsurance was con- 
 cealed so as to relieve the defendant from the 
 whole or part of its obligation. It appeared 
 upon the trial that separate books were kept 
 by Dimick for each company, in which the 
 particulars of the insurances and reinsur- 
 ances were entered; that the local agents 
 who accepted applications and issued certifi- 
 cates for insurance transmitted reports, call- 
 ed "daily reports." to Dimick, specifying the 
 particulars of the risks taken by them; that 
 the particulars of these risks were entered in 
 the books kept at Buffalo; that twice in each 
 week Dimick reinsured risks which had been 
 taken by the local agents, distributing the 
 amount of reinsurance between the several 
 companies as he saw fit; and that reports 
 were forwarded by him, showing the particu- 
 lars of risks insured or reinsured, daily to the 
 defendant, and twice in each week to the 
 other companies. According to his course of 
 business with the plaintiff' and the defendant, 
 he was to remit to each on the 20th of every 
 month all moneys in his hands oelouging to 
 it, and render to each a full abstract of his 
 business with it, including a statement of 
 losses paid and the proofs relating to the 
 same. The evidence authorized the jury tO' 
 find that in many cases, after a risk had been 
 Insured by a local agent with the defendant, 
 or by Dimick himself, he received news of 
 peril, by telegram or otherwise, and would re- 
 insure the risk with one or more of the other 
 companies, by causing appropriate entries ta 
 be made in the books, and, iu some cases, 
 would cancel the original insumnee, and sub- 
 stitute one or more of the other companies 
 in the place of defendant, and, if the risk 
 had been originally insured with the plaintiff, 
 or either of the companies other than the de- 
 
SIMILAK OCCUKKENCES SHOWING INTP:NTI0N, ETC. [Case No. 19 
 
 fendant, and reinsured in part witb tlie de- 
 fendant, would cancel the reinsurance with 
 the defendant, and transfer it to one or more 
 of the other companies; that in these cases 
 the reports transmitted by him to the several 
 companies would not give any information of 
 the real transaction, but only of the sub- 
 stituted Insurance; that when a loss was in- 
 curred in any of these cases, he would ad- 
 just it on the basis of the fraudulent insur- 
 ance or reinsurance, and obtain payment 
 thereof from the company or companies ap- 
 parently liable therefor, by drawing drafts, 
 or by charging the amount figainst funds in 
 his hands, thus exonerating the defendant to 
 the extent to which he had fraudulently I'e- 
 lieved it of its original obligation; and that 
 all this was done by means of fraudulent in- 
 structions by Dimick to his clerks, by fraud- 
 ulent entries in his books and papers, and 
 by fraudulent statements in his reports and 
 accounts rendered. Evidence was given by 
 the plaintiff upon the trial tending to prove 
 the particular frauds in suit, and also tend- 
 ing to prove similar frauds by Dimick, com- 
 mitted in some instances as part of the same 
 transaction, and in others in a different trans- 
 action, about the same time, by which he 
 shifted losses of the defendant upon one or 
 both of the other two companies. The theory 
 of the case for the plaintiff was that these 
 frauds were part of a deliberate system de- 
 vised by Dimick to defraud the plaintiff for 
 the benefit of the defendant, from motives of 
 personal interest on his part. The evidence 
 did not show that defendant had any knowl- 
 edge of the fraudulent acts of Dimick. 
 
 In considering the assignments of error, 
 those only will be noticed whieli have been 
 relied upon at the bar, and in the brief of 
 the counsel for the plaintiff in error. As to 
 those which relate to the admission of evi- 
 dence, a few general considerations are per- 
 tinent. In actions founded upon fraud, 
 where intent is a necessary ingredient, the 
 largest latitude is allowed in the introduc- 
 tion of evidence, circumstantial as well as 
 direct, to disclose the motive and prove the 
 fraud; and any evidence having a tendency 
 to prove the offense, though it may be slight, 
 is not incompetent. Such actions necessa- 
 rily give rise to a wide range of investiga- 
 tion, for the reason that the motive of the 
 defendant is involved in the issue. When- 
 ever the necessity arises for a resort to cir- 
 cumstantial evidence, either from the nature 
 of the inquiry, or the failure of direct proof, 
 objections to testimony on the ground of ir- 
 relevancy are not favored, for the reason 
 that the force and effect of circumstantial 
 facts usually and almost necessarily depend 
 upon their connection with each other, and 
 circumstances altogether inconclusive, if 
 separately considered, may, by their number 
 and joint operation, especially ^vhen cor- 
 roborated by moral coincidences, be suffi- 
 cient to constitute conclusive proof. Castle 
 V. BuUard, 23 How. 172, 187; Hubbard v. 
 
 Briggs, 31 N. Y. 518, 5.38; Beardsley v. 
 Duntley, 69 N. Y. 577, 581. 
 
 The case of fraud is one of the few ex- 
 ceptions to the general rule that other of- 
 fenses of the accused are not relevant .to 
 establish the main charge; and it is the set- 
 tled rule that, to establish fraud in a given 
 transaction, evidence is admissible to show 
 the commission of similar frauds in similar 
 transactions had with other persons about 
 the same time. Lincoln v. Claflin, 7 Wall. 
 132; Butler v. Watkins, 13 Wall. 456; In- 
 surance Co. V. Armstrong, 117 U. S. 591, 6 
 Sup. Ct. 877. It was entirely competent for 
 the plaintiff to show that, during the period 
 covered by the frauds in suit, Dimick was 
 eomniitting other and a series of similar 
 frauds upon the other insurance companies 
 for the benefit of the defendant. All the 
 entries made in Dirnick's books or papers by 
 his clerks, pursuant to his directions, were 
 the acts of Dimick, and the entries them- 
 selves, as well as his instructions, general 
 or special, to the clerks, were verbal acts, 
 and, as such, a part of the res gestae of the 
 transactions which were sought to be 
 shown. The evidence was therefore prop- 
 erly admitted, which tended to show that, 
 in shifting any one of the particular losses 
 in suit from the defendant to the plaintiff', 
 Dimick did so by reinsuring it in part with 
 the plaintiff', and in part with the other two 
 companies for which he was an agent; or 
 which tended to show that, in independent 
 transactions occurring about the same time, 
 he committed similar frauds, or attempted 
 to, upon one or both of the other two com- 
 panies; and the books and papers contain- 
 ing the entries by means of which these 
 frauds were in part effected, as well as tes- 
 timony of the general and special instruc- 
 tions of Dimick to his clerks, were compe- 
 tent evidence. It is of no consequence 
 wliether the evidence consisting of such 
 entries was introduced and admitted upon 
 a different theory of its competency; it was 
 competent for the reason stated, and, if It 
 also tended to corroborate witnesses whose 
 credibility was doubtful, that circumstance 
 did not impair its competency. 
 
 We proceed to notice more particularly 
 some of the rulings in admitting testimony 
 which are complained of. The pages from 
 the insurance registers kept by Dimick con- 
 tained, it is true, entries as to many risks 
 which were in no wise concerned with this 
 case, but no specific objection was taken on 
 that ground. The pages were offered and 
 marked as exhibits, properly so, even if for 
 identification only, and the plaintiff' proved 
 and read the entries upon them relating to 
 insurances of risks taken on vessels which 
 were the subject of the action. To these ob- 
 jection was taken as immaterial and irrele- 
 vant, and in the light of that objection only 
 is the action of the trial judge to be re- 
 viewed. He cannot be held to have erred 
 in allowing the jury to see the entries as 
 
 59 
 
Case Xo. 19] 
 
 RELEVANcr. 
 
 they stood on the pages, in the absence of a 
 specific request that the other entries on the 
 page should in some way be liept from them, 
 »ind, in the absence of anything to tliat ef- 
 fect on the record, we cannot assunie that 
 he allowed entries which so plainly had 
 nothing to do with the case to be read to 
 the jury. People v. Dimick, 107 N. Y. 13, 
 2'j, 14 N. E. 178. The entries which were 
 read to the jury against the defendant's ob- 
 jection were in each instance indisputably 
 parts of the transaction in question, which 
 was as much a reinsurance of the defendant 
 as it was au insurance in the plaintiff. The 
 proposition to be established was that rein- 
 surances 'of the defendant's risks were ef- 
 fected with the plaintiff, after notice of 
 disaster, to save it from loss. Dimick's re- 
 lations with the three reinsuring companies 
 were such that he was able to effect rein- 
 surances in all of them without exciting 
 suspicion. The single fact that, in the case 
 of the Ackley, tor instance, where the de- 
 fendant had .f;'>s,90() at risk, only the com- 
 paratively small sum of !f2,r)()(l was rein- 
 sured in the plaintiff, might indicate the 
 mere exercise of ordinary discretion; but 
 simultaneous reinsurance of all the amount 
 at risk, (except $5,000,) in the other com- 
 panies, might well be persuasive to the in- 
 ference that he did so after the receipt of 
 information that led him to believe the ves- 
 sel was a loss, other evidence tending to 
 show that whenever there was no loss there 
 was no reinsurance. If the transaction, as 
 plaintiff claimed, was au effort to shift the 
 burden of a known loss from the defend- 
 ant's shoidders, it was not completed till all 
 that was done by Dimick to effect that ob- 
 ject had been accomplished. 
 
 Whether the various entries testified to by 
 the witnesses whose former perjury was 
 conceded did or did not corroborate their 
 evidence on this trial is not material on the 
 question of their admissibility. They were 
 offered, not as independent evidence, or re- 
 ceived as such, but were a part of the testi- 
 mony of the witness himself, memoranda 
 made by him at the time, sworn to by him- 
 self to have been true statements when 
 made, and minuting a multitude of dates, 
 names, figures, and values, the details of 
 which no witness could be expected to re- 
 tain in his unaided memory. As such they 
 were admissible in connection with his tes- 
 timony. Insurance Co. v. Weides, 14 Wall. 
 375. They were not "unproved copies of un- 
 proved accounts," as in Jlining Co. v. 
 Fraser, l.'JO U. S. 611, 619, 9 Sup. Ct. 665. 
 
 To tlie refusal of the trial judge to strike 
 out evidence as to instructions given by Dim- 
 ick to deduct certain percentages from premi- 
 ums, no exception was taken, and it cannot 
 be considered here. The testimony as to the 
 .Tames AA'ade and the Gleniffer, not included 
 in this action, was offered to show knowledge 
 on the part of defendant's manager in New 
 York of Dimick's practice of protecting de- 
 
 60 
 
 fendaut by reinsurance when he heard of loss 
 or peril to the propei'ty insured. It tended to 
 prove this if supplemented by further proof. 
 Plaintiff failed to so supplement it, and the 
 court expressly charged that no knowledge 
 was proved on the part of the defendant, 
 whit-h is all that was required, (Pennsylvania 
 Co. V. Roy, 102 U. S. 451,) certainly, in the 
 absence of a motion to strike out, or to in- 
 struct the jury that all evidence as to these 
 two vessels was to be disregarded. 
 
 The testimony as to entries touching the 
 Coyne, Jennie Matthews, Potomac, and Cali- 
 fornia, vessels not in this action, was offered 
 to prove dates of reinsurances which were 
 the subject of suit. TTie dates when rein- 
 surance was effected nowhere appeared, and 
 it was not to be expected that any witness, 
 even if he remembered the fact of reinsur- 
 ances, could carry all the dates in his un- 
 aided memory. It was only by the position 
 (if the entries in the l)ooks, relatively to oth- 
 er entries where dates were minuted, (such 
 as acceptance of original risk, reports to tlje 
 companies, etc.,) that the witness who made 
 the entries was able to testify that the effect- 
 ing of the reinsurance in issue was on, before, 
 or after some calendar date. To an extent 
 sutfieient to enable him to fix such date, it 
 was proper for the witness to testify from 
 the entries he had himself made, and we can- 
 not find that the testimony exceeded that 
 limit. If competent to prove the dates, as we 
 are satisfied it was, it was admissible, al- 
 though it also disclosed other fraudulent rein- 
 surances. Dutchess Co. v. Harding, 49 N. Y. 
 321, 325. 
 
 The defendant's protection against infer- 
 ences from the other frauds, thus incidentally 
 shown, lay in a request to direct the jury to 
 disregard them. But, as we have before 
 shown, it was entitled to no such direction. 
 The evidence was proper for the jury to con- 
 sider as showing fraudulent acts similar to 
 those which were the subject of complaint, 
 and performed at the same time. The evi- 
 dence showing the lines of insurance and re- 
 insurance which the defendant had carried 
 during the year in question was relevant and 
 material. Showing, as it did, a general sys- 
 tem or course of business, the result of which 
 was that the Continental was found to be re- ■ 
 insured when there was a loss to be paid, 
 and not to be reinsured, however large its 
 risks, when there was none, it was a fact 
 from which, taken in connection with others, 
 it might be fairly inferred that these results 
 were secured, not by the exorcise of sound 
 judgment, nor by rare good chance, but by 
 fraudulent practices of the kind testified to 
 by Dimick's accomplices. 
 
 The assignment of error based upon the re- 
 fusal of the trial judge to direct a verdict for 
 the defendant rests upon the proposition that 
 it did not appear by the evidence that the 
 defendant had received the fruits of any of 
 the frauds committed by Dimick upon the 
 plaintiff. It was proved that in each case of 
 
SIMILAR OCCURLIENUISS SHOWi.NG INTENTION, ETC. [C.ise ISTo. 19 
 
 a loss upon a risk insured by the defendant, 
 part ol' wlueh had been ostensibly reinsured 
 by the plaintiff, Dimick adjusted the loss, 
 and paid it to the assured out of funds of the 
 defendant in his hands, charged the whole 
 amount to the defendant in his account with 
 it, drew a draft on tlie plaintiff for its pro- 
 portion as a reinsurer, credited the proceeds 
 of the draft to the defendant in his account, 
 and sent the ijlaintiff a receipt, signed by 
 him as agent tor the defendant, acknowledg- 
 ing payment of the amount received. When- 
 ever a loss was settled he informed the de- 
 fendant that the transaction was closed, and 
 of its net loss after deducting the reinsur- 
 ance, by sending to it the "loss pocket;" and 
 in each monthly statement he informed the 
 defendant that out of its funds in his hands 
 he had paid its whole loss by appropriating 
 therefrom only the amount of the net loss. 
 
 The moneys thus received and applied by 
 Dimick to pay the defendant's losses were 
 received by the defendant as completely, for 
 all practical purposes, as they would have 
 been if he had transmitted them to the de- 
 fendant, and the defendant had paid them 
 over to the assured in settlement of the loss. 
 Pratt V. Poote, 9 N. Y. 4G3. The law looks at 
 the substance of the transaction, and is quite 
 unconcerned about its form. The defendant 
 got the benefit of these moneys because they 
 were applied to extinguish its debts to the as- 
 sured, and because they increased its funds 
 in the hands of its own agent. It is quite im- 
 material that the moneys were not physically 
 transferred by Dimick to the defendant, or 
 that, after Dimick received them, and had 
 used them to extinguish the debt of the de- 
 fendant, he subsequently became and remain- 
 ed indebted to the defendant in an amount 
 larger than the aggregate of these moneys. 
 Dimick not only assumed to act in obtaining 
 them as agent for the defendant, but he ap- 
 propriated them to discharge the debts of the 
 defendant. The case is one for the applica- 
 tion of the rule that he who seeks to avail 
 himself of the advantages of the act of an- 
 other, after knowledge of its fraudulent char- 
 acter, must be held to adopt the fraud, al- 
 though at the time of the act he was igno- 
 
 rant of it. The doctrine is elementar.v, and 
 prevails at law as well as in equity, that a 
 person, though innocent himself, cannot re- 
 tain an advantage obtained by the fraud of 
 another, in the absence of some considera- 
 tion moving from himself. 
 
 The assignment of error founded upon the 
 refusal of the judge to direct the jury to find 
 for the defendant as to the cause of action 
 for the loss of the cargo of the Jlanistee pro- 
 ceeds upon the theory that the jury were not 
 authorized to find for the plaintiff upon the 
 uncorroborated testimony of the witness 
 Richard Dimick, who concededly had testi- 
 fied falsely in respect to the same facts upon 
 a previous occasion. There is modern au- 
 thority to the effect that the question of the 
 credibility of such a witness is entirely one 
 for the jury, when submitted to them under 
 prudential instructions. Dunn v. People, 2& 
 N. Y. 523, 529; People v. O'Neil, 109 N. Y. 
 251, 16 N. E. (i8. But this assignment of er- 
 ror is invalid because of the testimony of the 
 witness Neff, a witness whose (n-edibility was 
 not impeached to the same purport as that of 
 Richard Dimick. 
 
 The assignment of en-or, because the judge 
 refused to direct the jury to find a verdict for 
 the defendant as to the cause of action for the 
 loss of the cargo of the Nyack, proceeds upon 
 the ground that there was no evidence that 
 the plaintiff paid any part of the loss. It was 
 not shown that Dimick had drawn any draft 
 on the plaintiff for the amount of its rein- 
 surance upon this loss, or that the plaintiff 
 had remitted the amount to him; but it did 
 appear that he charged it with the amount, 
 and credited the defendant with a like 
 amount in his cash book. As Dimick was 
 the common agent of both parties, this was 
 sufficient prima facie evidence that he had 
 paid the reinsurance for the plaintiff. If he 
 had paid it, the case was as though the plain- 
 tiff had paid it. Unless he or the plaintiff 
 had paid it, the defendant would not have 
 been entitled to be credited, as it was, for the 
 amount. The assignments of eri-or thus con- 
 sidered are the only ones which seem to re- 
 quire discussion. 
 
 The judgment is affirmed. 
 
 61 
 
Case No. 20] 
 
 RELEVAXCY 
 
 WALLACE v. KENNELLY. 
 
 (4T N. J. Law, 242.) 
 
 Supreme Court of New Jersey. June Term, 
 1885. 
 
 Certiorari to court of common pleas, Hud- 
 son county. 
 
 Action by James Wallace against John 
 Kennelly for two months' rent for October 
 and November, 1883, at |35 a month, under 
 a lease for the term of two years and ten 
 months from July 1, 1883. By assignment 
 defendant transferred the lease to Joseph 
 Kennelly. Judgment for defendant. 
 
 Argued February term, 1885, before DB- 
 PUE, VAN SYCKEL, and SCUDDER, JJ. 
 
 W. B. Gilmore, for plaintiff. J. Flemming, 
 for defendant. 
 
 SCUDDER, J. By section 174 of the dis- 
 trict court act (Revision, p. 1330), from the 
 order, determination, or decision of the court 
 of common pleas an appeal may be removed 
 into this court by writ of certiorari, and the 
 writ shall remove said order or determina- 
 tion and the case agreed upon or settled as 
 therein mentioned. What the state of the 
 case must contain is indicated in Benedict 
 V. Howell, 39 N. J. Law, 221. In brief, it 
 must contain only enough of the facts to 
 enable the court on appeal to determine the 
 legality of the rulings in the court below. 
 By section 170 of the act the determination 
 of the judge (or in cases where there is a 
 jury, the verdict of a jury and any judg- 
 ment thereupon), shall be final and conclu- 
 sive between the parties upon questions of 
 fact, except as therein provided. The facts 
 most favorable to the plaiu tiff's or defend- 
 ant's case, which are essential to support 
 the judgment, shall be taken as found, and 
 will not be weighed in this court against op- 
 posing evidence. Here the facts as' shown 
 by the state of the case must, after verdict, 
 be most liberally construed in favor of the 
 defendant. 
 
 The first objection urged is that the dis- 
 trict judge, instead of deciding on the evi- 
 dence that, as there was no surrender in ! 
 writing of the lease signed by the lessor, j 
 or by act and operation of law, under the 
 statute of frauds, permitted the evidence to 
 go to the jury, and charged: "That if a ten- 
 ant and landlord verbally agree that the 
 lease shall end, and tlie leased premises are 
 by such agreement given up by the tenant, 
 and his possession of them ends, and the 
 landlord agrees with and accepts another 
 person its his tenant, who, as such tenant, 
 occupies the loremises, and pays tlie rents 
 to the landlord, this will, in law, operate as 
 a surrender by the first tenant." 
 
 The judge also charged: "That if the land- 
 lord or the agent assented to an assignment 
 and agreed that the lease should be assign- 
 ed by John Kennelly to Joseph Kennelly, 
 and if it was actually assigned in writing, 
 pursuant to such assent, the assignmeut 
 62 
 
 would not be an ending of the lease or 
 term." 
 
 The substance of the charge in the words 
 used by the court was, as I understand it, 
 that an assignment of the lease with the 
 verbal consent of the landlord, and the sub- 
 sequent acceptance of rent by- him, would 
 not be a surrender of the lease in writing or 
 by act and operation of law, but that other 
 facts in the case, if found by the jury, might 
 effect a surrender by act and operation of 
 law. 
 
 On demurrer to a plea in Hunt v. Gard- 
 ner, 39 N. J. Law, 530. it was held that 
 where the facts set out in the plea are that 
 the lessee assigned away his Interest in the 
 lease, and that the lessor received the rent 
 from the assignee, and accepted him as his 
 tenant under the lease, these constitute no 
 bar to an action of covenant for rent on 
 the lease against the original tenant. 
 
 The utmost effect of these averments is 
 that the privity of estate is ended, but not 
 the privity of contract. There must be the 
 further averment that such assignee was sub- 
 stituted in the place of the original lessee, 
 with the intent on the part of the parties 
 to the demise to annul its obligations. If 
 this be established by competent proof, in 
 writing or by parol, then there are no more 
 contract relations between the pailies re- 
 maining upon which either an action of cove- 
 nant or debt can be maintained. See cases 
 collected in notes, Woodf. Landl. & Ten. 496. 
 Here there is evidence that there was an oral 
 agreement between the lessor, James Wal- 
 lace, and John Kennelly, the lessee; that by 
 it not only was there a consent to the as- 
 signment of the lease by John to .Toseph 
 Kennelly, but it was also agreed that a 
 lease should be drawn and executed by the 
 lessor to Joseph, and that he should be sub- 
 stituted as tenant, and that, although no \ 
 lease was drawn, Joseph was in fact substi- 
 tuted for John, and thereupon took posses- 
 sion of the premises, and paid rent for two 
 successive months thereafter, which was ac- 
 cepted by the landlord, and receipts given to 
 him as tenant. These facts, if believed by 
 the jury, are a sufficient surrender to deter- 
 mine the former tenancy. Woodf. Landl. & 
 Ten. § 498; Nickells v. Atherstone. 10 Q. B. 
 944; Murray v. Shave, 2 Duer, 182; Ran- 
 dall V. Rich, 11 Mass. 494 i Dodd v. Acklom, 
 6 Man. & G. 672; Grimman v. Legge, 8 Bai-n. 
 & C. 324. A fact corroborative of such sub- 
 stituted tenancy is found in the second re- 
 ceipt given by the landlord, James Wallace, 
 dated September 1, 1883, for rent up to Oc- 
 tober 1st. The last sentence in this receipt 
 reads, "Let for one month only." This is not 
 according to the term in the lease to John 
 Kennelly, but the receipt, being given to 
 Joseph Kennelly for rent paid by him, must 
 indicate that the term of his tenancy was 
 monthly, and under a new letting to him. 
 
 There was no error in leaving this question 
 to the jury on the disputed question of facts. 
 
EXPLANATORY PACTS. 
 
 [Case No. 20 
 
 and the defeadant's testimony, if believed, 
 was sufficient to establish a surrender by 
 operation of law. The effect of such subse- 
 <iuent letting, as stated by Lord Denman in 
 Nickells v. Atherstone, Is: "As far as the 
 plaintifC, the landlord, is concerned, he has 
 ■created an estate in the new tenant which 
 he is estopped from disputing with him, and 
 which is inconsistent with the continuance 
 ■of the defendant's term." 
 
 The other reason assigned is that the judge 
 admitted illegal evidence in defense of the 
 action. There was a clause in the lease that 
 ^'this lease is upon condition that no ales or 
 porter shall be sold by the tenant on said 
 premises excepting that manufactured and 
 bought from the landlord, James Wallace." 
 This was a condition subsecjuent, and the 
 breach of it would not defeat the lease. A 
 breach might svibject the lessee to damages. 
 The judge admitted this evidence, and said 
 he would control it afterwards. It was clear- 
 ly irrelevant to show that the landlord de- 
 livered bad ale, which, on notice, he took 
 back, and sent other ale, which was no bet- 
 ter. If the ale was unfit for use, the ten- 
 ant might defend for that cause, if sued for 
 not taking it, or if he bought from otliers, 
 and sold it on the premises. For such cause 
 it might be a defense in an action for breach 
 of the covenant, but it was no defense to 
 the landlord's action for rent. If admitted, 
 therefore, as matter of direct defense, the 
 error would not be cured by a subsequent 
 charge directing the jury to disregard it. 
 
 But there is a view in which this testimony 
 is relevant and admissible. There was a 
 dispute about the quality of the ale between 
 the landlord and tenant. The defendant tes- 
 tifies: "I notified the plaintiff the ale was 
 bad, and told him to send for it. He sent 
 for it, and took it back, and said he would 
 send a sample package. He did so, and what 
 
 he then sent went flat. I could not sell any 
 of the ale. No one would drink it about 
 thcie. I told plaintiff the place would not 
 piiy, and I would give up the lease. That 
 the ale would not sell there. Plaintiff asked 
 me if I had anybody to take the place. I 
 told him, 'yes,' and asked him if he was 
 satisfied to do so." He says he sent over 
 his brother, and the arrangement was made 
 with him as above stated. Stephen's Digest 
 of the Law of Evidence (part 1, c. 2, art. 8) 
 says: "Facts necessary to be known to ex- 
 plain or introduce a fact in issue or relevant 
 fact, or which support or rebut an infer- 
 ence suggested by a fact in issue or rele- 
 vant fact, etc., are relevant in so far as they 
 are necessary for these purposes re.spectlve- 
 ly." The dealings of these parties in the 
 ale being the cause of complaint, and wish 
 to be released from the lease on one side, 
 and the motive for the alleged consent and 
 willingness of the other to the substitution 
 of another tenant, brings the evidence witliin 
 the rule above stated. It tends to show how 
 the parties came together, and why they 
 acted as it is claimed they did, for it ap- 
 pears to be the immediate and only cause 
 assigned for the change in tlie tenancy, and 
 ending the privity of contract, which is the 
 fact in i.'jsue. The judge said to the jury, 
 in his charge: "The delivery of bad ale, or 
 ale that spoiled, would not in this case end 
 the lease, or be a defense. What the facts 
 are as to the quality of any ale the plain- 
 tiff furnished to defendant, you are to use 
 only to throw light upon or help you to 
 conclude what the parties said in New York, 
 and agreed upon at the inters'iew between 
 them about the premises." There was no 
 error in admitting the evidence and limiting 
 it to the purpose for which it was alone 
 relevant to the issue. 
 The judgment will be affirmed. 
 
 63 
 
Case No. 21] 
 
 RELEVANCY. 
 
 BELL et al. v. BREWSTER et al. 
 
 (10 N. B. 679, 44 Ohio St. 690.) 
 
 Supreme Onirt of Ohio. March 1, 1887. 
 
 Error to district court, Union county. 
 
 The original action was a suit by the plain- 
 tiffs below to quiet their title to certain lands 
 situated in Union county, and which they 
 claimed as the heirs at law of the person 
 last seized. He died in that county on Sep- 
 tember 11, 1873, and was then known by the 
 name of Robson L. Broome. The plaintiffs, 
 however, claimed that his right name was 
 Levi Brewster; that he was a son of Sea- 
 bury Brewster, late of Norwich, Connecticut; 
 that he intermarried with Lucy Waterman 
 on Jlarch 13, 1820, by whom he had two 
 sons, Richard Brewster, a plaintiff, and Sher- 
 man Brewster, deceased, whose widow and 
 children were the other plaintiffs; that he 
 afterwards abandoned his family, assumed 
 the name of Robson L. Broome, removed to 
 Union county, and there resided to the time 
 of his death, and was possessed of a large 
 amount of real and personal property, the 
 subject of controversy. A number of rival 
 claims were set up to that of the plaintiffs, — 
 in one that his right name was Elisha Case; 
 and in another that It was Geoi'ge Washing- 
 ton Broome; and the heirs of these persons 
 were made parties defendant. An appeal 
 was taken from the judgment of the common 
 pleas court to the district court of the coun- 
 ty, where judgment was rendered in favor 
 of the plaintiffs below. 
 
 W. B. Loomis and C. H. , Grosvenor, for 
 plaintiffs in error. J. W. Robinson, for de- 
 fendants in error. 
 
 MINSHALL, J. The principal issue of 
 fact in the case was whether Levi Brewster, 
 the ancestor of the plaintiffs, was the same 
 person who was known in Union county by 
 the name if Robson L. Broome, and died 
 possessed of the property in controversy. As 
 tending to support the issue on their part, the 
 plaintiffs introduced (1) a letter purporting 
 to have been written by Levi Brewster in 
 the year 1810, from an academy in Connecti- 
 cut, addressed to Elisha Brewster as his 
 brother. No other evidence was introduced 
 that it had been so written than that It had 
 been obtained from the family papers of 
 Elisha Brewster, then deceased, who was 
 the brother of Levi. Also (2) a pay-roll of 
 Company 7, Regiment 20, in the war of 1812, 
 on which one Levi Brewster appears as re- 
 ceipting for pay as a private in said com- 
 pany, with evidence tending to show that he 
 had been a private in the same; but no evi- 
 dence was introduced to show that he in fact 
 signed the roll, other than that it was pro- 
 duced from the archives of the government 
 in the war department at Washington city. 
 As standards of comparison, they also intro- 
 duced (3) certain books and writings, admit- 
 ted or duly proven to be in the genuine hand- 
 
 64 
 
 writing of the decedent, written by him 
 while living at Marysville, in Union county.. 
 under the name of Robson L. Broome. Ex- 
 perts were then called, who, upon a compari- 
 son of the writings, testified that in their 
 opinions the letter and the signature to the 
 pay-roll were in the same handwriting as 
 were the books and writings that had been 
 introduced as standards of comparison. 
 
 T\v(i objections are made to the admissi- 
 bility of this evidence: (1) That it is not 
 shown that the letter was written, nor that 
 the pay-roll was signed, by the Levi Brew- 
 ster whom the plaintiffs claim to have been 
 their ancestor; (2) that proof of handwriting 
 by comparison of hands is not competent for 
 the purpose of proving the identity of a per- 
 son. 
 
 1. We do not understand, from the bill of 
 exceptions, that there was any serious con- 
 troversy in the case as to the name of the- 
 ancestor of the plaintiff's, or as to who were- 
 his relatives. These facts, we may assume, 
 were reduced to reasonable, if not absolute, 
 certainty; so that this objection must be un- 
 derstood as applying to the introduction of 
 the letter and pay-roll for comparison with 
 the admitted writings of Broome, without 
 other evidence that the letter had been writ- 
 ten, or the pay-roll signed, by Levi Brewster, 
 the ancestor of the plaintiffs, than as before 
 stated. It is true there was no direct 
 evidence as to who wrote the letter, or as 
 to who signed the pay-roll. The letter was 
 written in 1810, and the pay-roll was signed 
 in 1814. It would have been difficult, if not 
 impossible, to show the fact by direct testi- 
 mony, after such a lapse of time. But more 
 or less credit has always been attached to 
 ancient documents, without other proof of 
 their authenticity than that of their produc- 
 tion from proper depositories. Where any 
 document purporting or proved to be 30 
 years old is produced from its proper cus- 
 tody, it is presumed that the signature, and 
 every other part of such document which 
 purports to be in the handwriting of any 
 particular person, Is in that person's hand- 
 writing. Steph. Dig. Ev. 156; Whart. Ev. 
 § 194 et seq.; Id. § 702. 
 
 This exception to the general rules of evi- 
 dence rests upon a conceded necessity (Tayl. 
 Ev. § 1874), and applies, not only to such in- 
 struments as are of a formal character, such 
 as wills, bonds, and other deeds, but also to 
 receipts, letters, entries, and all other an- 
 cient writings. 2 Phil. Ev. (10th Eng. and 
 4th Am. Ed.) 481. 
 
 Thus, in Bere v. Ward, on the trial of an is- 
 sue as to the legitimacy of a particular per- 
 son, a very old letter, purporting to bear the 
 signature of the head of the family, and 
 brought from among the title deeds kept at 
 the family seat, was admitted as genaine, 
 without further proof of handwriting, by 
 Dallas, C. J., and also by Lord Tenterden on 
 a second trial. 2 Phil. Ev., supra, note 4. 
 
EXPLANATORY FACTS. 
 
 [Case No. 21 
 
 This ruling was followetl in Doe v. Bey- 
 uon, 12 Adol. & B. 431, wliore certain old let- 
 ters Avere admitted in evidence upon the is- 
 sue in the case whether the person claiming as 
 devisee of the writer was the person intend- 
 ed. They were admitted without proof of 
 handwriting, or other proof of their genuine- 
 ness than that they found among the pa- 
 pers of the person to whom they liad been 
 addressed at the time of her death. 
 
 In Bertie v. Beaumont, 2 Price, 308, an old 
 receipt, produced by the defendant, was ad- 
 mitted as evidence tending to prove a modus, 
 without proof of handwriting. There was 
 some question made as to the custody of it 
 having been given to a person other than the 
 one who produced it. Upon this the cliief 
 baron observed: "It was not given to this 
 Mr. Beaumont, but to anotlier person of the 
 same name, and who, of cour.se, occupied 
 lands in Buckland, for none but an occupier 
 could have acquired such a receipt. That 
 person being of the same name with the 
 present defendant, there is a reasonable in- 
 ference that they were so connected as to 
 make this the proper custody; and reasonable 
 evidence of proper custody is all that can be 
 required, and is sufficient." 
 
 In Penwick v. Reed, G Madd. 7, it was rul- 
 ed "that a letter, appearing upon the face of 
 it to be written by the defendant's attorney, 
 upon the subject of the suit, and coming out 
 of the custody of the representative of his 
 attorney, and dated in 1748, was admissible 
 without proof of handwriting; the contents 
 of a letter, like the contents of a deed, afford- 
 ing Intrinsic evidence In its favor." The 
 case was determined in 1821. And in Wynne 
 v. Tyrwhitt, 4 Barn. & Aid. 370, it was said 
 by the court: "The rule is not confined to 
 deeds or wills, but extends to letters and oth- 
 er written documents coming from the prop- 
 er custody. It is founded on the antiquity 
 of the instrument, and the great difficulty, 
 nay, impossibility, of proving the handwrit- 
 ing of a party after such lapse of time." 
 
 It is true that the admission of written in- 
 struments, without other proof of their genu- 
 ineness than that which arises from their age 
 and custody, opens the door to error and 
 -fraud; but this is no more so when they are 
 introduced for the purpose of establishing 
 the Identity of a person by a comparison of 
 hands than when introduced for any other 
 purpose. In commenting on the possibility 
 of error and fraud attending the admission of 
 ancient documents as evidence. Prof. AMiar- 
 ton says: "No doubt, ancient documents, as 
 well as modern, may be forged." To this he 
 makes two replies: "In the first place, while 
 documents attested by witnesses, since de- 
 ceased, have been forged, the fact that there 
 is a possibility of such falsification is an ob- 
 jection to credibility, but not to competency. 
 In the second place, by requiring that the 
 document should be taken from the proper 
 depository, the probability of falsification is 
 
 WILGUS.BV. — 5 
 
 greatly diminished." 1 Whart. Bv. § 194. 
 This has been regarded as an adequate 
 ground for the admission of such documents 
 in evidence, without further proof of their 
 authenticity, by most writers on evidence. 2 
 I'hil. Ev. (10th B.ng. and 4th Am. Ed.) 480. 
 
 No evidence is entirely free from infirmi- 
 ties of some kind. An honest witness may 
 err in his recollection in what he has seen or 
 heard, or his own senses may have been de- 
 ceived in what passed under his observation, 
 or, on the other hand, the witness may be 
 dishonest, and not tell the truth. But the 
 possibility of error is not a ground for the 
 rejection of evidence in any case. It goes 
 to its weight, and is to be considered by the 
 jury or the court trying the case. 
 
 2. It is a well-settled rule in this state that, 
 where the genuineness of handwriting is in- 
 volved, well-attested standards of the hand 
 of the person whose writing is in question 
 may be introduced for the purpose of com- 
 parison with that which is disputed; and that 
 this comparison may be made, not only by 
 persons who have seen the party write, or 
 have acquired a knowledge of his hand by 
 corresponding or transacting business with 
 him, but also by persons skilled in hand- 
 writing, such as are usually called "experts." 
 Bragg V. Oolwell, 19 Ohio St. 407; Pavey v. 
 Pavey. 30 Ohio .St. 600; Calkins v. State, 14 
 Ohio St. 222. 
 
 While this is not controverted, it is argued 
 that the letter and pay-roll sliould not have 
 been admitted for the purpose of comparison 
 with the admitted writings of Broome upon 
 any evidence less certain than that required 
 in the case of standards. This is illogieal. 
 The fallacy consists in assuming that the let- 
 ter and pay-roll are the standards, or else that 
 the writing in dispute shall be ascertained 
 with as much certainty as that with which It 
 is compared before the comparison is made. 
 But neither assumption is true. The matter 
 to be determined by comparison of hands was 
 whether the deceased, Broome, had written 
 the letter or not, and so as to the pay-roll; 
 and to require the same certainty as to who 
 wrote the letter or signed the pay-roll as is 
 required as to the standards of the party's 
 hand in question would in no way aid the 
 imiuiry, as neither could, under such a rule, 
 be introduced until such conditions had been 
 complied with as would render the introduc- 
 tion of either wholly unnecessary. This is 
 inconsistent with the principle upon which 
 such evidence is introduced, which is to de- 
 termine the authorship of that which is un- 
 known and disputed by a comparison with 
 that which is known and undisputed. Here 
 the known factors in the case, as pre;-eut- 
 ed by the bill of exceptions, were the writ- 
 ings of the deceased, Broome, Introduced 
 as standards. "\A'hether he had writtini 
 the letter or signed the pay-roll was a fact 
 to be proved; and a comparison of hands 
 would tend, at least, to solve the question, 
 
 65. 
 
Case ITo. 21] 
 
 KELEVANCY. 
 
 and might reduce it to reasonable certainty; 
 for it is self-evident that proof that two writ- 
 ings are in the same hand is evidence that 
 they were written by the same person. 
 
 The uncertainty that may have arisen upon 
 a mere comparison of hands, as to whether 
 Broome wrote the letter or signed the pay- 
 roll, is not, on the competency of the evidence, 
 to be confused with the uncertainty there 
 may have existed as to whether the one had 
 been written and the other signed by the an- 
 cestor of the ijlaiutifCs. It is true that, on a 
 question of proof ,— that is to say, the weight 
 of evidence,— the one is connected with and 
 depends upon the other; but on a question of 
 competency each is independent and separate. 
 The admissibility of the letter and pay-roll 
 rest upon their antiquity, and the custody 
 from which each was produced; the com- 
 parison of hands, upon the evidence which is 
 in general attached to such evidence. We are 
 not now considering the weight of the evi- 
 dence. The only question presented by the 
 record is the admissibility of that which was 
 received and objected to, as shown by the 
 bill of exceptions. 
 
 The spirit of the law of evidence permits 
 a resort to every reasonable source of infor- 
 mation upon a disputed question of fact aris- 
 ing in a case. Unless excluded by some 
 positive exception, everything relative to the 
 issue is regardec as admissible; and this is 
 extended to every hypothesis pertinent to the 
 issue. 1 Whart. Ev. § 20. Here the hypothe- 
 sis proposed by the plaintiffs below was that 
 the letter written from the academy by a 
 Levi Brewster, and the signature of a person 
 of the same name to the pay-roll, were in the 
 same handwriting as were the writings in- 
 troduced as standards, and admitted to be in 
 that of the decedent. The pertinency of this 
 hypothesis is apparent. If the fact were es- 
 tablished, it would only remain to the plain- 
 tiffs, in order to make out their case, to show 
 that the Levi Brewster who wrote the letter 
 or signed the pay-roll was their ancestor. 
 Hence, upon principle, the competency of the 
 evidence seems very plain. 
 
 But it is argued that no instance of a case 
 can be produced where a comparison of hands 
 was resorted to for the purpose of proving 
 the identity of a person, except in what is 
 claimed to be a very questionable one, — 
 the Tiehborue Case. In the first place, the 
 case just referred to is not regarded as one 
 of questionable authority by writers on the 
 law of evidence. 1 Whart. Ev. § 9 et seq. 
 In the next place, many instances may be 
 produced, other than that of Queen v. Ca- 
 tor, 4 Esp. 117, in which a comparison of 
 hands has been resorted to for this purpose. 
 In Com. V. Webster, 5 Cush. 20.j, such evi- 
 dence was introduced for the purpose of 
 showing that certain anonymous letters, writ- 
 ten in a disguised hand, addressed to the city 
 marshal of Boston, between the disappear- 
 ance of the deceased and the arrest of the de- 
 
 66 
 
 fendant, containing various suggestions cal- 
 culated to mislead the officers of the law, had 
 been written by the defendant. The object 
 was to incriminate the accused by identifying 
 him with the person who wrote the anony- 
 mous letters. Such evidence has been receiv- 
 ed as competent for the purpose of identify- 
 ing the defendant in prosecutions for sending 
 threatening letters, and in arson; also, for a 
 lilie purpose, in suits for libel. Com. v. Web- 
 ster, supra, 301; 2 Greenl. Ev. § 416. Among 
 the various circumstances relied on as tend- 
 ing to show that Sir Phillip Francis was the 
 author of Junius, were, as enumerated by 
 Prof. Wharton, that his handwriting had cer- 
 tain marked peculiarities. 1 Whart. Ev. § 
 23. This, however, could only be determined 
 by a comparison instituted between the writ- 
 ings of the supposed, and the manuscript of 
 the real, author. 
 
 Again it is resorted to in a large class of 
 cases where there is a question as to whether 
 the party sued is the person who signed the 
 instrument on which suit is brought. 1 
 Greenl. Ev. § 57.5. In all such cases, it will 
 be observed, the question is not as to the 
 genuineness of the paper, but as to the iden- 
 tity of the party sued with the person who 
 signed and is liable upon it. The object of 
 offering such evidence may arise in a variety 
 of forms. A writing may be in a disguised 
 hand, as in the Webster Case, 5 Cush. 295; 
 or it may have been intended as an imitation 
 of that of some third person, as in the case 
 of a forgery; or it may be neither disguised 
 nor imitated, as is assumed in this case. 
 Now, it is evident that in either of the first 
 two instances the liability to error In form- 
 ing an opinion, even by experts, will be great- 
 er than in the last one; because in both of 
 the first two instances the writing is execut- 
 ed for the express purpose of deceiving, 
 while in the latter there has been neither dis- 
 simulation nor forgery, and one specimen of 
 genuine writing is simply compared with an- 
 other; so that, on principle, there is less 
 room for questioning the propriety of a re- 
 sort to a comparison of hands in the latter 
 than in either of the two former instances. 
 
 The value of such evidence on a question of 
 personal Identity is strikingly illustrated in 
 the case above referred to as that of Tich- 
 borne. A comparison of the writings intro- 
 duced in the case wo\ild convince any intel- 
 ligent person that there was no truth what- 
 ever in the claim of the defendant. It dis- 
 proves his identity with the real Sir Robert 
 Tichborne. What was true in that case must 
 be true, to a greater or less extent, in every 
 instance where a case of personal identity is 
 involved. Judicial proof is not a matter of 
 mere arbitrary rules. Its principles are 
 di-awn from the experience and observation 
 of men, and should be applied as they are by 
 men in general. Every lawyer and judge of 
 experience will confirm what is said by Mr. 
 Phillips in his work on Evidence: "It may 
 
EXPLAJJATOUr FACTS. 
 
 [Case No. 21 
 
 be laid down as a first principle tliat ex- 
 clusion is generally an evil, and admission 
 generally safe and wise;" to which he adds: 
 "It is certain the administration of justice in 
 
 our courts has suffered, not from too free 
 admission of evidence, but from too rigid ex- 
 clusion." 2 Phil. Ev. (Edward's Ed.) S28. 
 Judgment affirmed. 
 
 67 
 
Case No. 22] 
 
 RELEVANCY. 
 
 In re THO-^II'SON, Commissioner of Public 
 Works. 
 
 In re BUTLER.. 
 
 (28 N. E. ;>S9, 127 N. Y. 46.3.) 
 
 Court of Appeals of New York, Second Divi- 
 sion. Oct. 6, 1891. 
 
 Appeal from supreme court, general 
 term, second department. 
 
 Application of Hnliert O. Thompson, 
 commissioner of public works, etc., to ex- 
 tingnisli certain water-rights for the use 
 of the city of New York. The award of 
 commissioners appointed to assess dam- 
 ages was affirmed by the special term, and 
 again by the general term. Claimant, 
 Butler, appeals. Affirmed. 
 
 William Allen Butler and Willard Parker 
 Butler, for appellant. Arthur H. Manton, 
 for respondent. 
 
 PAEKEK, J. This proceeding was 
 brought pursuant to the powers conferred 
 on the commissioner of public works of ths 
 city of New York by chapter 445 of the Laws 
 of 1877, and the various acts amendatory 
 thereof, to acquire the right to divert and 
 keep diverted from the Bronx river all the 
 ■n'ater of the river north of and above cue 
 dam at Kensico. The commissioners 
 awarded to the claimant, wlio was the 
 owner of a large and valuable farm 
 through which the river ran, damages ,in 
 the sum of !|p7,270. p-rom the order con- 
 firming such report and award successive 
 appeals have been taken by the claimant 
 to this court, the latter appeal being es- 
 pecially authorized by the act of 1877. But 
 the fact that an appeal to this court is 
 permitted does not bring up for review a 
 question of fact arising unon conflicting 
 evidence, and this court has no jurisdic- 
 tion to review the decision of the general 
 terra, unless errorof law in tlie proceedings 
 be found. In re Thompson, 121 N. Y. 277, 
 24 N. E. Rep. 472.1 That case had its ori- 
 gin in proceedings taken under chapter 490, 
 Laws 1S83, but the provision permitting 
 an appeal to the court of appeals is the 
 same as in the act authorizing the pro- 
 ceedings before us, and the decision cited 
 is therefoi'e applicable and controlling. 
 Unless, then, some error of law requires a 
 reversal, the decision of tlie general term 
 must stand. 
 
 The onl.v exaeption to which our atten- 
 tion is called relates to an effort on the 
 part of the owner to provewhat had been 
 paid by the petitioner for water-rights ap- 
 purtenant to a neighboring parcel on the 
 same river. At folio 74(j7 the counsel for 
 the owner offered to prove that the city 
 of New York purchased from Robert White 
 the right to divert the waters from one- 
 half of the water-shed of the Bronx river, 
 and paid him the sum of J«21,991.66 for 
 such rights, and his privileges in conuec- 
 
 1 This case was decided under the authority of 
 Code Civil Proc. N. Y. § ]:«7, which pro^rides 
 that a question of fact arising upon conflicting- 
 evidence cannot be determined upon an appeal to 
 the court of appeals from a final judgment, or 
 from an order granting or refusing a new trial, 
 unless where special provision for the determi- 
 nation thereof is made by law. 
 
 68 
 
 tion with a certain mill upon what is 
 known as the "Powder-Mill Property" at 
 Scarsdale. The commission declined to 
 rule on the offer, at the same time, by its 
 chairman, saying, in effect, that a ruling- 
 would be made as the evidence should be 
 presented. In that connection no other 
 evidence was offered, and the exception 
 then taken is, of course, not available. 
 But, in view of the stipulation making the 
 evidence as to all parcels applicable to any 
 other, it is clainipd that this appellant is 
 entitled to the benefit of any exception 
 taken to the rejection of evidence bearing 
 on the question of the value of his water- 
 power. We shall assume, without decid- 
 ing, that this claim is well founded. Rob- 
 ert White was vested in fee with the ripa- 
 rian ownership in such premises at the time 
 of the commencement of the proceedings 
 to acquire title by the city. Pending the 
 proceedings he died. Subsequently, pur- 
 suant to an agreement with his heirs, a 
 conveyance was made to the city. Re- 
 specting the manner in which the proof 
 was sought to be made, the owner offered 
 in evidence the deed, which expressed a 
 consideration. But, for the purpose of 
 proving the price paid, it was not compe- 
 tent. Mayor, etc., v. McCarthy, 102 N. Y. 
 630, 8 N. E. Rep. 85. One or more witnesses 
 were asked to state the sum paid, and, a» 
 the objection went solely to the compe- 
 tency of the evidence for any purpose. It 
 must be assumed that the witnesses were 
 competent to answer the question. And 
 the question, then, is, was the rejection of 
 the evidence as to the amount paid by the 
 city for the White water-power error for 
 which a reversal should be had? 
 
 This question has been presented to the 
 courts of last resort in several of the states, 
 but not with the same result. In Massa- 
 chusetts, New Hampshire, Illinois, Iowa, 
 and Wisconsin it is held that actual sales 
 of other similar land in the vicinity, made 
 near the time at which the value of the 
 land taken is to be determined, are admis- 
 sible as evidence for the purpose of arriv- 
 ing attheamountofconipensation. Gard- 
 ner V. Brookline, 127 Mass. 358; Packing, 
 etc., Co. V. City of Chicago, 111 111. 651; 
 Town of Chei'okee v. Land Co., 52 Iowa, 279, 
 3 N. W. Rep. 42; Railroad Co. v. Greely, 23 
 N. H. 242; Washburn v. Railroad Co., 59 
 Wis. .364, 18 N. W. Rep. 328. While in some 
 of the other jurisdictions, notably Pennsyl- 
 vania, New Jersey, Georgia, and Califor- 
 nia, it is held that sales of similar prop- 
 erty are not admissible for the purpose of 
 proving the value of property about to be 
 taken. Railroad Co. v. Hiester, 40 Pa. St. 
 53; Railroad, etc., Co. v. Bunnell. 81 Pa. St. 
 414; Railroad Co. v. Ziemer, 124 Pa. St., 560, 
 17 Atl. Rpp. 187; Railroad Co. v. Benson, 36 
 N. J. Law, .n57; Railroad Co. v. Pearson, 
 35 C a 1. 247-262; Railroad Co. v. Keith, 53 
 Ga. 178. The reasons assigned for the con- 
 clusion reached in the cases last cited are, 
 in the main, that the test in legal proceed- 
 ings is, what is the present market value 
 of the property which is thesubjectof con- 
 troversy? It may be shown by the testi- 
 mony of competent witnesses, and on 
 cross-examination, for the purpose of test- 
 ing their knowledge respecting the market 
 value of land in that vicinity, they may be 
 asked to name such sales of property, and 
 
RES INTER ALIO : 
 
 [Case No. 22 
 
 the prices paid therefor, as have come to 
 their attention. But a party may not es- 
 tablish the value of his land by showing 
 what was paid for another parcel similar- 
 ly situated, because it operates to give to 
 the agreement of the grantor and grantee 
 the effect of evidence by them that the con- 
 sideration for the conveyance was the 
 market value, without giving to the op- 
 posite party the benefit of cross-examina- 
 tion to show that one or both were mis- 
 taken. If some evidence of value, then 
 prima facie a case maybe made out, so 
 far as the question of damages is con- 
 cerned, by proof of a single sale, and thus 
 the agreement of the parties which may 
 have been the result of necessity or cap- 
 rice would be evidence of the market value 
 of land similarly situated, and become a 
 standard by which to measure the value 
 of land in controversy. This would lead 
 to an attempt by the opposing party to 
 show — First, the dissimilarity of the two 
 parcels of land; and, second, the circum- 
 stances surrounding the parties which in- 
 duced the conveyance,— such as a sale by 
 one in danger of insolvency, in order to 
 realize money to support his business, or 
 a sale in any other emergency which for- 
 bids a grantor to wait a reasonable time 
 -for the r ublic to be informed of the fact 
 that his property is in the market; or, on 
 the other hand, that the price paid was 
 excessive, and occasioned by the fact that 
 the grantee was not a resident of the lo- 
 cality, nor acquainted with real values, and 
 was thus readily induced to pay a sum 
 far exceeding the market value. Thus 
 each transaction in real estate claimed to 
 be similarly situated might present two 
 side issues, which could be made the sub- 
 ject of as vigorous contention as the main 
 issue, and, if the transactions were nu- 
 merous, it would result in unduly prolong- 
 ing the trial, and unnecessarily confusing 
 the issues, with the added disadvantage 
 of rendering preparation for trial difficult. 
 Our attention has not been called to a 
 casein this court where the question has 
 been passed upon in the manner here pre- 
 sented, but there are a number of decisions 
 indicating the tendency of the court to be 
 against proving value by evidence of the 
 selling price of similarproperty. In Hunt- 
 ington V. Attrill, lis N. Y. ;it>5, 23 N. E. 
 Rep. 544, the defendants attempted to 
 prove the value of certain sea-side prop- 
 erty by showing the value of other prop- 
 erty of the same general character situated 
 in different places, and .Judge Bradley, 
 speaking for the court, said: "It may be 
 that such evidence would have furnished 
 some guide for estimate of the value of the 
 property, but might not. Such evidence 
 would present collateral issues, which 
 might, and very likely would, involve a 
 variety of considerations having relation 
 to similarity or difference, and to advan- 
 tages and disadvantages of the different 
 properties in numerous respects, as com- 
 pared with that in question. It is quite 
 well settled that evidence of that charac- 
 ter is not admissible upon the question of 
 the value of property in controversy." 
 The question was not necessarily before 
 the court in Mayor, etc., V. Mcrarthy,102N. 
 y.(i:jO-63S, 8 JS. E. Rep. 85; but Chief Justice 
 RUGER, referring to the question whether 
 
 the price paid on sales of real estate be- 
 tween individuals is admissible as evidence 
 of value, said : "We think it quite clear, 
 however, that such price is not, in any 
 view, competent evidence of value." In 
 Blanchard v. Hteem-Boat Co., 59 N. Y. 292, 
 the defendant attempted to show the 
 value of a sunken steam-boat by proving 
 the value of other steam-boats with which 
 she could he compared, and it was held 
 that the evidence was not competent. In 
 Langdon v. City of New York, (Sup.Ct.) 13 
 N. Y. Supp. 864, the objection was that 
 other evidence should be produced to es- 
 tablish the fact sought to be proven, (page 
 860,) so that the question of the relevancy 
 of the .evidence was not before the court. 
 Wo are of the opinion that the value of 
 property which depends upon the pres- 
 ence or absence of inherent qualities not 
 necessarily present or absent in other and 
 similar property cannot be proved by 
 showing the price paid for such other and 
 similar property. The value of property 
 having a recognized market value, such 
 as No. 1 wheat and corn, may, of course, 
 be proven by showing the market prices; 
 but the value of property which is depend- 
 ent upon locality, adaptability for a par- 
 ticular use, as well as the use made of 
 property immediately adjoining, may not 
 be shown by evidence of the price paid for 
 similar property. Even under the Massa- 
 chusetts rule, a reversal would not be jus- 
 tified because of the extent of the discre- 
 tion vested in the judge or officer presid- 
 ing at the trial to determine whether such 
 evidenceisadmissible, depending, of course, 
 on various elements, such as the nearness 
 or remoteness of the time of sale; whether 
 the premises are far separated ; the con- 
 dition of the property about the parcel 
 sold, and the use made of it, which may 
 have operated to enhance or diminish its 
 selling value; the similarity of the prop- 
 erty, not only as to description, but as to 
 its availability for use. Chandler v. Ja- 
 maica Pond Aqueduct Corp., 122 Mass. 305; 
 Gardner v. Brookline, 127 Mass. 858-363, 
 and cases cited. 
 
 In point of time, the White sale was a 
 year and one-half prior to the date when 
 the offer was made to prove it. The White 
 water-power was in actual use in the op- 
 eration of a mill, while the water-power 
 of Mr. Butler had not been utilized in any 
 degree whatevei'. True, as much water 
 will be diverted from the Butler property 
 as the White property, but it does not 
 follow that the respective water-powers 
 are of equal value. The value of a water- 
 power depends on its availability for use; 
 and, as a matter of common observation, 
 that at certain points along a stream the 
 water-power can be more readily and 
 cheaply made available for industrial pur- 
 poses than at others. So, if appellant's 
 contention as to the admissibility of evi- 
 dence of tliat character could be allowed, 
 we should necessarily reach the conclusion 
 that the nature of the evidence offered as 
 to .similarity was not of such a character 
 as to authorize a court to hold, as a mat- 
 ter of law, that the commission improp- 
 erly exercised their discretion in refusing 
 to admit proof <it the price paid for the 
 White parcel. 
 
 The appellant asserts that the eomni!^- 
 
 69 
 
Case No. 22] 
 
 KELEVANCY. 
 
 Riou refused to award damages for the in- 
 jury to the claimant's water-power, and 
 InsistH that in so doing they committed 
 an error in principle which may be re- 
 viewed in this court. After a thorough 
 examination of the record, and a careful 
 consideration of the argument in behalf of 
 appellant, the conclusion is reached that 
 this court is not warranted in determin- 
 ing that an award was not made for such 
 damages as, in the judgment of the com- 
 mission, the claimant will sustain because 
 of injury to his water-power. The claim- 
 ant owned about 358 acres of land, cover- 
 ing 4,238 feet on the cast bank of the 
 Bronx river, and about 4,636 feet upon the 
 west bank ; and for the reduction in the 
 volume of water which naturally flows 
 over this course, occasioned by the diver- 
 sion on the part of the city, the commis- 
 sion awarded to him $7,270. This award 
 was made in gross, no items being given, 
 and it is therefore impossible to determine 
 what portion of it was allowed for in- 
 jury to the tract because of the lessenine 
 of the flow of the stream, or what part of 
 it was an award for damages to the wa- 
 ter-power. Neither in the report nor in 
 the conduct of the trial is there any indi- 
 cation that it was determined that the 
 water-power was of no value. On the 
 contrary, the commission received a large 
 amount of expert testimony offered by the 
 claimant, tending to show that the water- 
 70 
 
 power was of considerable value. No evi- 
 dence in that direction was rejected, save 
 that which tended to prove the price paid 
 by the city for the White water-power; 
 and it should be assumed that they gave 
 to this evidence such weight as it was en- 
 titled to. Claimant's experts, it is true, 
 testified that the water-power alone was 
 of far greater value than the entire 
 amount of the award, but, on the other 
 hand, the evidence on the part of the city 
 tended to show that it had little or no 
 value. In making their appraisal they 
 were nut required to adopt the estimate 
 of claimant's experts, but were manifest- 
 ly called upon to base their award upon 
 all the information obtained, "not only 
 from the evidence produced before them, 
 but from their view of the real estate. " 
 In re Thompson, 121 N. Y. 277, 24 N. E. 
 Kep. 472. This we are bound to assume, 
 in the light afforded by the record, was 
 done. Our atteotion is called to the ex- 
 pressions of opinion, lioth at special and 
 general term, to the effect that the water- 
 powerhas no apparent value. But it does 
 not follow that such was the determina- 
 tion of the commissioners; nor can it be 
 assumed, because of the opinion of the 
 judges sitting in review, that the commis- 
 sion entertained the same view. There 
 are no other questions requiring consid- 
 eration. The order should be affirmed. 
 All concur. 
 
FACTS POSSIBLY CONNECTED AS CAUSE AND EFFECT. [Case No. 23 
 
 COLUMBIA & P. S. R. CO. v. HAW- 
 THORNE. 
 
 (12 Sup. Ct. 591, 144 U. S. 202.) 
 
 Supreme Court of the United States. April 4, 
 1892. 
 
 In error to the supreme court of the ter- 
 ritory of Washington. 
 
 Action by Wlllard C. Hawthorne against 
 the Columbia & Puget Sound Railroad Com- 
 pany for damages for a personal injury. 
 Verdict and Judgment for plaintiit, which 
 Vi-as affirmed in the supreme court of the ter- 
 ritory. Defendant brings error. Reversed. 
 
 Statement by llr. Ju.stice (iRAY: 
 
 This was an action brought in a district 
 court of the territory of Washington against 
 a corporation owning a saw-mill, by a man 
 employed in operating a machine therein, 
 called a "trimmer," to recover damages for 
 the defendant's negligence in providing an 
 unsafe and defective machine, whereby one 
 of the pulleys, over which ran tlie belt trans- 
 mitting power to the saw, fell upon and in- 
 jured the plaintiff. The defendant denied 
 any negligence on its part, and averred neg- 
 ligence on the part of the plaintiff. 
 
 At the trial, the plaintiff introduced evi- 
 dence tending to show that the pulley, 
 weighing about 50 pounds, revolved around 
 a stationary shaft made of gas-pipe, with 
 nothing to hold the puUej- on but a common 
 cap or nut screwed on the efld of the pipe, 
 and its thread running in the same v.-ay as 
 the pulley, and liable to be unscrewed by 
 the working of the pulley: that the nut be- 
 came unscrewed, and came off, so that the 
 pulley fell upon and greatly injured the 
 plaintiff; and that if the nut had been prop- 
 erly put on, with a bolt through the shaft, 
 the accident could not have happened. 
 
 The plaintiff's counsel asked a witness 
 whether there had been any change in the 
 machinery since the accident. Thereupon 
 the following colloquy took place: 
 
 Defendant's counsel: "We object to that. 
 The rule is well understood, and as your hon- 
 or has already given it in other cases, that a 
 person is not bound to furnish the best 
 known machinery, but to furnish machinery 
 reasonably safe. It is not a question as to 
 what we have done with the machinery In 
 the last few years or months since the ac- 
 cident occurred, but what was the condition 
 then." 
 
 The Court: "The rule Is quite well settled, 
 I think, that where an accident occurs 
 through defective machinery or defective fix- 
 tures or the machine itself, if that is shown 
 to be true, then a change, repair, or substitu- 
 tion of something else for the defective ma- 
 chinery is admissible as showing or tending 
 to show the fact. I think that is quite well 
 settled." 
 
 Defendant's counsel: "I thoroughly concur 
 with the court as to the rtile." 
 
 Plaintiff's counsel: "We propose to show 
 changes." 
 
 The Court: "I think it is admissible." 
 Defendant's counsel: "We will save an ex- 
 ception." 
 The Court: "Exception allowed." 
 The witness then answered that there had 
 been changes since the accident, and that 
 they consisted in putting a rod through the 
 shaft, and gammon nuts on the end of the 
 rod to keep the pulleys on, and in putting up 
 some planks underneath the pulleys to keep 
 them from falling down. To the admission 
 of the evidence of each of these changes an 
 exception was taken by the defendant and 
 allowed by the judge. 
 
 At the close of all the evidence for the 
 plaintiff (which it is unnecessary to state) 
 the defendant moved "for a judgment of 
 nonsuit, on the ground that the plaintiff 
 had failed to prove a sufficient cause for the 
 jury;" and an exception to the overruling 
 of this motion was taken by the defendant 
 and allowed by the court. 
 
 The defendant then introduced evidence, 
 and the case was argued by counsel, and 
 submitted by the court to the jury, who re- 
 turned a verdict of $10,000 for the plaintiff, 
 upon which judgment was rendered. The 
 defendant appealed to the supreme court of 
 the territory, which affirmed the judgment. 
 3 Wash. T. 353, 19 Pac. 2:,. The defendant 
 sued out this writ of error. 
 
 A. H. Holmes, for plaintiff in erroi-. John 
 B. Allen, for defendant in eiTor. 
 
 Mr. Justice GRAY, after stating the facts 
 in the foregoing language, delivered the opin- 
 ion of the court. 
 
 The question of the sufficiency of the evi- 
 dence for the plaintiff to support his action 
 cannot be considered by this court. It has 
 repeatedly been decided that a request for a 
 ruling that upon the evidence introduced the 
 plaintiff is not entitled to recover cannot be 
 made by the defendant as a matter of right, 
 unless at the close of the whole evidence; 
 and that if the defendant, at the close of the 
 plaintiff's evidence, and without resting his 
 own case, requests and is refused such a rul- 
 ing, the refusal cannot be assigned for error. 
 Railway Co. v. Cummings, 10(3 U. S. 700, 1 
 Sup. Ct. 498; Insurance Co. v. Crandal, 120 
 U. S. 527, 7 Sup. Ct. 685; Railroad Co. v. 
 Mares, 123 U. S. 710, 8 Sup. Ct. .321; Rob- 
 ertson V. Perkins, 129 U. S. 233, 9 Sup. Ct. 
 279. 
 
 The only other exception argued is to the 
 admission of evidence of changes in the ma- 
 chinery after the accident. 
 
 It was argued for the plaintiff that this ex- 
 ception was not open to the defendant, be- 
 cause it had been waived by his counsel say- 
 ing, after the first ruling of the court on the 
 subject, "I thoroughly concur with the court 
 as to the rule." Assuming these words to 
 be accurately reported, it is not wholly clear 
 whether they refer to the rule as to evidence 
 of subsequent changes, or to the rule, men- 
 
 71 
 
Case Xo. 23] 
 
 JJELEVANCr. 
 
 tionerl just bef&i-e, as to the degree of care 
 required of tlie defendant. Tliat they were 
 not undirstood, either by the counsel or by 
 the court, as \vaiviiiR the objection to evi- j 
 dence of subsequent changes, is sliowu by 
 the plaintiff's louusel thereupon saying, "We 
 propose to show changes," and by the court 
 ruling them to be admissible, and allowing 
 an exception to this ruling, and immediately 
 afterwards all()\\'ing two other exceptions to 
 evidence on the same subject. And the 
 question of the admissibility of this testimo- 
 ny was considered and decided by the su- 
 preme court of the territory. 3 Wash. T. 
 3.58. 364, 19 Pac. 25. 
 
 This writ of error, therefore, directly pre- 
 sents for th4 decision of this court the (jues- 
 I tion whether, in an action for injuries caused 
 by a machine alleged to be negligently con- 
 Istructed, a subsequent alteration or repair 
 'of the machine by the defendant is compe- 
 tent evidence of negligence in its original 
 construction. 
 
 Upon this question there has been some 
 difference of opinion in the courts of thi' sev- 
 eral states; but it is now lettled. iipou much 
 consideration, by the decisions of the highest 
 courts of most of the states in which the 
 question has arisen, that the evidence is in- 
 competent, because the taking of such pre- 
 cautions against the future is not to be con- 
 strued as an admission of responsil)ility far 
 the past, has no legitimate tendency to prove 
 that the defendant had been negligent be- 
 fore the accident hapjjened, and is calculated 
 to distract the minds of the juiy from the 
 real issue, and to create a prejudice against 
 the (defendant. Morse v. Railway Co., 30 
 Jlinu. 465, 16 N. W. 358; Corcoran v. Peeks- 
 kill, 108 N. Y. 151, 15 N. E. 309; Xalley v. 
 Carpet Co., 51 Conn. 524; Ely v. Railway 
 Co., 77 Mo. 34; Railway Co. v. Hennessey. 
 7.". Tex. 155, 12 S. W. 608; Railroad Co. v. 
 Clem, 123 Ind. 15, 23 N. E. 965; Hodges v. 
 Percival, 132 111. 53, 23 N. E. 42::!; Tjombard 
 v. Village of Bast Tawas, 86 Mich. 14, 48 N. 
 W. 947; Shinners v. Proprietors, 154 JIass. 
 168, 28 N. B. 10. 
 
 As was pointed out by the court in the 
 last case, the decision in Readman v. Con- 
 -\yay, 126 Mass. 374, 377, cited by this ijlain- 
 tifif, has no bearing upon this question, but 
 simply held that in an action for injuries 
 from a defect in a platform, brought against 
 the owners of the land, who defended on 
 the ground that the duty of keeping the plat- 
 form in repair belonged to their tenants, and 
 not to themselves, the defendants' acts in 
 making general repairs of the platform after 
 the accident "were in the nature of admis- 
 sions that it was their duty to keep the 
 platform in repair, and were therefore com- 
 petent." 
 72 
 
 The only states, so far as we are informed, 
 in which subsequent changes are held to be 
 evidence of prior negligence, are Pennsylva- 
 nia and Kansas, the decisions in which are 
 supported by no satisfactory reasons. Mc- 
 Kee V. Bidwell, 74 Pa. St. 218, 225, and cases 
 cited; Railway Co. v. Weaver, 35 Kan. 412, 
 11 Pac. 408. 
 
 The true rule and the reasons for it wei-e 
 well expressed in Morse v. Railway Co., 
 above cited. In which Mr. .lustice Mitchell, 
 delivering the unanimous opinion of the su- 
 preme court of Minnesota, after referring to 
 earlier opinions of the sajne court the other 
 wa:\-, said: "But, on mature reflection, w;e 
 have concluded that evidence of this kind 
 ought not to be admitted under any circum- 
 stances, and that the rule heretofore adopted 
 by tliis court is on principle wrong; not for 
 the reason given by some courts, that the 
 acts of the employes in making such repairs 
 are not admissible against their principals, 
 but upon the broader ground that such acts 
 afford no legitimate basis for construing 
 such an act as an admission of previous neg- 
 lect of duty. A person may -have exercised 
 all the care which the law required, and 
 yet, in the light of his new experience, after 
 an unexpected accident has occurred, and as 
 a measure of extreme caution, he may adopt 
 additional safeguards. The more careful a 
 person is, the more regard he has for the 
 lives of others, the more likely he would be 
 to do so; and it would seem unjust that he 
 could not do so without being liable to have 
 such acts construed as an admission of prior 
 negligence. We think such a rule puts an 
 unfair interpretation upon human conduct, 
 and virtually holds out an inducement for 
 continued negligence." 30 Minn. 405, 468. 
 
 The same rule appears to be well settled in 
 England. In a case in which it was aflirm- 
 ed by the court of exchequer. Baron Bram- 
 well said: "People do not furnish evidence 
 against themselves simply by adopting a 
 new plan in order to prevent the recurrence 
 of an accident. I think that a proposition to 
 the contrary would be barbarous. It would 
 be, as I have often had occasion to tell ju- 
 ries, to hold that, because the world gets 
 wiser as it gets older, therefore It was fool- 
 ish before." Hart v. Railway, 21 Law T. 
 (N. S.) 261. 263. 
 
 As the incompetent evidence admitted 
 against the defendant's exception bore up- 
 on one of the principal issues on trial, and 
 tended to prejudice the jtirj' against the de- 
 fendant, and it cannot be known how much 
 the jury were influenced by it, its admission 
 requires that the judgment be reversed, and 
 the case remanded to the supreme court of 
 the state of Washington, with directions to 
 set aside the verdict and to order a new trial. 
 
EVIDENCE OP'' CHAHACTER— WHEN ADMISSIBLE. Case Xo. 24 
 
 ■SOUTHERN KAN. EY. CO. v. ROBBIXS. 
 
 (23 Pac. 113, 43 Kau. 14.-..) 
 
 Supreme Court of Kaiis;i.'<. Feb. 8, 1890. 
 
 Error from district court, Franklin coun- 
 ty; A. W. Benson, Judge. 
 
 George R. Peck, A. A. Hurd, and liohert 
 Z>'«?!7aju, for plaintiff in error. H. P. Welsh 
 <ind Juhri W. Deford, for defendant in error. 
 
 JOHNSTON, J. On June 30, 1886, John 
 E. Patterson was employed in the service of 
 the Southern Kansas Kailway Company, as a 
 passenger conductor. At that time' a Sun- 
 day-School assembly was in session at Otta- 
 wa, and' the railway company were running 
 excursion trains from several points in the 
 state to that place. On the morning of the 
 day mentioned Patterson went from Ottawa 
 to Lawrence in charge of a passenger train, 
 where it was loaded with excursionists bound 
 for the assembly at Ottawa. On the return 
 •trip he stopped at Baldwin City, where there 
 were a number of people intending to join 
 the excursion to Ottawa, and, being short of 
 passenger cars to accomuiodate thein, the 
 company liad placed two cabooses and a box- 
 car, temporarily arranged for passengers, on 
 a side track, and directed Patterson to at- 
 tach them to the rear of his train, for the 
 use of passengers. There is testimony to the 
 €lfect that Patterson was directed to place 
 the car.s in his train in the same order that 
 they were standing, — tirst a caboose, then 
 the box-car, and tlien aiiotlier caboose; and 
 this was the order in which, they were at- 
 tached to the train. After the train left 
 Baldwin City, Patterson proceeded to collect 
 ■fares, beginning at the front, and passing 
 towards the rear, of the train. When he had 
 -completed taking fares in the first caboose, 
 he passed out of the rear door, and proceeded 
 to climb over the box-car, in an effort to 
 i~each the other caboose, in which there were 
 passengers. There were no doors in the 
 «nds of the car, nor any, platforms on the 
 ends of the same, and the only way to get 
 over the car was to climb up a ladder on the 
 side and near the corner of the car, made of 
 iron rods, called "hand-holds" or "rungs," 
 which were screwed to the side and top of 
 the car. Tliese rods were about a foot 
 -apart, and extended out from the side of the 
 oar about three inches. While he was in the 
 act of ascending this ladder, the train was 
 running at a rapid rate, and just as it passed 
 over a bridge he in some way fell from the 
 car, and was fatally injured. The witnesses 
 who saw the occurrence state that he had 
 nearly reached the top of the car, when he 
 appeai-ed to grasp with one hand for a rung 
 which should have been upon the top of the 
 car, but probably was not, and at the same 
 time let go his hold upon the top rung on the 
 side of the car with tiie other liand, when he 
 reeled back, and fell from the train. He was 
 found lying in the angle of two braces of the 
 bridge, his skull fractured, and his left leg 
 broken. He was unconscious when found, 
 
 and remained so until his death, which oc- 
 curred tlie day of the accident. This action 
 is brought by the representative of the de- 
 ceased, to recover damages for the benefit of 
 the widow and child, it being alleged that 
 his life was lost in consequence of the negli- 
 gence of tlie railway company. The compa- 
 ny alleged and contended that Patterson was 
 guilty of negligence contributing to the ac- 
 cident. The plaintiil prevailed, and recov- 
 ered a judgment for $5,500. 
 
 Errors are assigned here upon the rulings 
 of the court in admitting evidence. The dep- 
 osition of a witness was received that was 
 not taken in the exact place stated in the no- 
 tice. The notice named the office of Win- 
 slow P. Hyatt, Colorado street, Pasadena, 
 Los Angeles county, Cal., as the placts,of tak- 
 ing the deposition; but, as he had moved 
 about a block away on another street, the no- 
 tary met the plaintiff's attorney at that place 
 at the proper time, and adjourned the taking 
 of the deposition to another office, on anoth- 
 er street in Pasadena, and there the deposi- 
 tion was continued, completed, sealed up, 
 and properly addressed. In the afternoon of 
 that day, the attorney for the defendant was 
 found, and informed what had been done, 
 and, by consent, the deposition was then 
 opened, and the witness was recalled and 
 cross-examined by defendant's attorney. The 
 court properly refused to suppress the depo- 
 sition. The taking of a deposition at an- 
 otlier place than that stated in the notice, in 
 the absence of the opposing party, is a sufli- 
 cient objection to the deposition; but the ir- 
 regularity was cured by the voluntary ap- 
 pearance of the defendant's counsel at tlie 
 place where the deposition was taken, and 
 his participation in tlie proceeding. It is 
 important that the deposition should be taken 
 at the place mentioned in the notice; but the 
 notice is only given to furnish the opposing 
 party an opportunity to appear, and therefore 
 the appearance waives a defect in the notice or 
 the irregularity of a change in the place of 
 taking the deposition. None of the objec- 
 tions to the deposition can be sustained. 
 
 A witness was asked, and over objec- 
 tion was permitted to state, whether the de- 
 ceased was a careful and skillful railroad 
 man. This was clearly erroneous. The 
 question whether Patterson exercised due 
 care in this particular instance was an im- 
 portant issue. It was alleged that he was 
 guilty of negligence, and it was contended 
 that the absence of the hand-hold on the top 
 of the car was an obvious danger, and appar- 
 ent to any one, and that to ascend a perpen- 
 dicular ladder in the manner in which he did, 
 by letting go his liold of the rung on the side 
 of the car befwe laying hold of the rung on 
 the top of the car, was negligence. The is- 
 sue of his want of ordinary care was before 
 the jury, and there was much testimony sub- 
 mitted concerning his conduct at the time of 
 the injury. There were eye-witnesses pres- 
 ent who at the trial described the manner in 
 which he ascended the ladder, and the care 
 
 73 
 
Case No. 24] 
 
 RELEVANCY. 
 
 which he exercised at the time the accident 
 occurred; ami lience there was no necessity 
 nor propriety in adnrittiiig the opinion of an 
 expi^rt as to whether he was generally a care- 
 ful and sltillful man. The determination of 
 whether he was exercising due care when he 
 fell from the car does not depend upon the 
 care exeioised by him at other times, or 
 whether he was usually careful in the per- 
 formance of his duties as a railroad man, but 
 does depend upon his conduct at the time of 
 the accident. The witness wlio gave the tes- 
 timony was a conductor on the same railroad, 
 had been acquainted with him fora year, and 
 claimed to have the means of knowing as to 
 whether he was a careful railroad man, and 
 his testimony may have had much weight 
 with the jury in determining that the deceased 
 was in the exercise of due care. With the 
 evidence before them as to the care he used 
 at the time, the jury could determine better 
 than any expert whether or not he was neg- 
 ligent; and the fact that he was generally 
 careful would be unavailing if the testimony 
 showed that his negligence in this instance 
 contributed to the injury. Testimony of this 
 character is no more admissible than an offer 
 by the railroad company to show his want of 
 care at the time of Ihe accident by proving 
 that he was negligent at other times, or gen- 
 erally careless. Exceptions are made in some 
 cases where there are no eye-witnesses of 
 the accident, and better evidence cannot be 
 obtained as to whether the injured person 
 exercised due care; but all the authorities 
 hold such testimony to be inadmissible where 
 the testimony of persons who witnessed the 
 accident is available. Bryant v. Railroad 
 Co., 56 Vt. 710; Dunham v. Rackliff,71 Me. 
 345; Hays v. Millar, 77 Pa. St. 238; Tenney 
 V. Tuttle, 1 Allen, 185; McDonald v. Savoy, 
 110 Mass. 49; Chase v. Railroad Co., 19 
 Amer. & Eng. R. Cas. 356; Morris v. Town 
 of East Haven, 41 Conn. 252; Baldwin v. 
 Railroad Co., 4 Gray, 338; Railroad Co. v. 
 Roach, 64 Ga. 635; Railroad Co. v. Clark, 
 108 111. 113; Elliot v. Railroad Co., 41 N. W. 
 Rep. 758; I Greenl. Ev. § 84. Neither was 
 ( the testimony introduced in regard to how 
 railroad men should and do ascend the ladder 
 of a box-car relevant nor competent. The 
 practice followed by others throws no light 
 on the care used by Patteison in this case. 
 It is not claimed that the opinions of experts 
 74 
 
 are necessary in the case, and to allow testi- 
 mony as to how others climbed the ladder 
 would be to create collateral issues as to the 
 prudence of their conduct, and to unneces- 
 sarily protract the trial. The question of 
 whether Patterson was guilty of such negli- 
 gence as would preclude a recovery was an^ 
 issue before the jury, and the practice or 
 usage of others would not tend to prove care 
 on liis part, and such testimony should not 
 have been received. Railroad Co. v. Clark, 
 supra; Lawrence v. Hudson, 12 Heisk. 671;. 
 Railroad Co. v. Moranda, 108 111. 576; Rail- 
 way Co. V. Evansich, 61 Tex. 8; Bryant v. 
 Raflroad Co., supra; Bailey v. Northampton 
 Co., 107 Mass. 496; Koons v. Railroad Co., 65- 
 Mo. 592; Crocker v. Schureman, 7 Mo. App. 
 358; Cleveland v. Steam-Boat Co., 5 Hun,. 
 523; Lawson, Usages & Cust. 328. 
 
 To account for the fall, a witness, who was 
 not present at the time, gave the following 
 testimony: " Question. I'ou say you have 
 passed over this road a great many times? 
 Answer. I have. Q. And over this bridge? 
 A. Yes, sir. Q. Now, can you state to the 
 jury, under the circumstances which sur- 
 rounded Mr. Patterson there, whether or 
 not there was any cause why he should have 
 ascended that car with great speed and haste, 
 and, it so, what that cause was? Explain to- 
 the jury. A. Well, the way that man started 
 in to go up the side of the car, he couldn't see 
 the bridge when he started ; and at the speed 
 the train was running, and him climbing up- 
 the side of the car, by the time the engine 
 struck the bridge, he would be towards the 
 top, and, when he heard the thundering noise- 
 that the engine makes when it strikes a 
 bridge, he hurried to get on top of the car." 
 This testimony was given over the objection 
 of the plaintiff in error. The witness was the- 
 conductor of another train, who was far 
 away when Patterson fell from the box-car. 
 He did not know and could not state whether 
 Patterson could seethe bridge when he start- 
 ed to ascend the ladder, nor how far he had 
 ascended when the bridge was reached; nei- 
 ther was he competent to state what causes 
 operated on the mind of Patterson that led 
 him to ascend the ladder with great speed 
 and haste. The admission of the incompe- 
 tent testimony was error, for which the judg- 
 ment will be reversed, and the cause remand- 
 ed for a new trial; all the justices concurring,. 
 
EVIDENCE OF CHAIJACTER— WHEN ADMISSIBLE. [Case No. 2,5 
 
 NORFOLK & W. R. CO. v. HOOVER. 
 
 (29 Atl. 994, 79 Md. 253.) 
 
 Court of Appeals of Maryland. .Tune 1!), 1894. 
 
 Appeal from circuit court, AVashlnjjton 
 county. 
 
 Action by William Hoover against tlie Nor- 
 folk & Western Railroad Company for per- 
 sonal injuries. Judgment for plaintiff, and 
 defendant appeals. Reversed. 
 
 Ai'gued before ROBINSON, C. J., and BRY- 
 AN, BRISCOE, McSHERRY, FOWLER, 
 ROBERTS, PAGE, and BOYD, JJ. 
 
 Hy. Kyd. Douglass, for appellant. M. L. 
 Keedy and W. C. Griffith, for appellee. 
 
 McSHERRY, .T. This is an action brought 
 to recover damages for personal injuries re- 
 ceived by the appellee, an employ^ of the 
 Norfolk & Western Railroad Company, as the 
 result of alleged negligence on the part of his 
 fellow servant. The verdict and judgment 
 were in his favor, and the company has ap- 
 pealed. In the record there are three bills of 
 exception, upon which the questions to be 
 considered arise. Two of these exceptions 
 were reversed by the appellant, and one by 
 the appellee. 
 
 It appears that in May, 1891, an extra 
 train of loaded freight cars was started from 
 Shenandoah, Va., about 11:30 p. m., to run 
 through to Hagerstown, Md. The crew con- 
 sisted of a conductor, an engineman, a fire- 
 man, a flagman, and two brakemen. Hoo- 
 ver, the appellee, was the engint'man. As the 
 train proceeded northward, it descended some 
 heavy grades, and the engineman noticed 
 that its speed was not kept under proper 
 control by the brakemen. At Luray the 
 train laid over for an hour, and the engine- 
 man requested the brakemen not to let him 
 down the hills so rapidly, as the night was 
 quite foggy. After leaving Luray, they as- 
 cended the grade to Vaughn's Summit, turn- 
 ing the point at a speed of about 10 miles an 
 hour. Immediately upon passing the sum- 
 mit the appellee shut off the steam, so that 
 the train might descend by gi-avity alone, 
 without aid from the engine. When about a 
 train's length over the hill, he discovered that 
 the train was increasing its speed, and he ap- 
 plied the tank brake; but, this producing no 
 effect, he blew for brakes, turned on the 
 driver brakes, and applied sand to the track. 
 This not checking the train, he again blew 
 for brakes, and reversed his engine. He i-e- 
 peated his signals for brakes at least once, 
 and probably twice, afterwards, but they 
 seem not to have been heeded by the brake- 
 men, for the ti-ain moved rapidly onward 
 down the grade. The packing blew out of 
 the cylinder, and this caused the train to 
 plunge forward, throwing the appellee back 
 into the tender. At this junctm-e they were 
 rapidly approaching, and were only some 10 
 or 12 car lengths distant from. Possum Hol- 
 low, which is crossed upon a trestle 75 or 80 
 
 feet high. The appellee saw that a collision 
 with another freight train standing, or mov- 
 ing very slowly northward, on the trestle, 
 was imminent and unavoidable, and, to save 
 himself, Jumped from his engine, and re- 
 ceived the injuries for which he has brought 
 the pending suit. There was evidence of- 
 fered tending to prove that Huyett, one of 
 the brakemen, had bc-en drinking that night 
 before the accident happened; and, within 30 
 minutes prior to the collision, his breath gave 
 unmistakable evidence of it. In this state of 
 the proof, a witness was asked whether he 
 knew the general reputation of Huyett and 
 Reese, the two brakemen, for sobriety for one 
 or two years before the accident and follow- 
 ing that, and, if so, to state what that repu- 
 tation was. To this question and the evi- 
 dence sought to be elicited thereby, the ap- 
 pellant objected, bijt the court permitted the 
 question to be asked and answered, and this 
 ruling forms the subject of the first excep- 
 tion. 
 
 It has been repeatedly held by this court, 
 and is the settled and established doctrine of 
 Maryland, that in actions of this character, 
 where a servant sues his master for injuries 
 resulting from the negligence of a fellow 
 servant, the plaintiff, to succeed, must prove 
 not only that some negligence of the fellow 
 servant caused the injury, but also that the 
 master had himself been guilty of negligence, 
 either in the selection of the negligent fellow 
 servant in the first instance, or in retaining 
 him in his service afterwards. Mere negli- 
 gence on the part of a fellow servant, though 
 resulting in injury, will not suffice to support 
 the action, because the master does not in- 
 sure one employe against the carelessness of 
 another; but he owes to each of his servants 
 the duty of using reasonable care and cau- 
 tion in the selection of competent fellow serv- 
 ants, and in the retention in his service of 
 none but those who are. If he does not per- 
 form this duty, and an injury is occasioned 
 by the negligence of an incompetent or care- 
 less servant, the master is responsible to the 
 injured employ^, not for the mere negligent 
 act or omission of the incompetent or care- 
 less servant, but for his own negligence in 
 not discharging his own duty towards the in- 
 jured servant. As this negligence of the mas- 
 ter must be proved. It may be proved like any 
 other fact, — either by direct evidence, or by 
 the proof of circumstances from which its 
 existence may, as a conclusion of fact, be 
 fairly and reasonably Inferred. That drunk- 
 eness on the part of a railroad employe ren- 
 ders him an incompetent servant will scarce- 
 ly be disputed; nor can it be questioned that 
 a master who knowingly employs such a 
 servant, or who, knowing his habits, retains 
 him in his service, would be guilty of a reck- 
 less and wanton breach of duty, not only to 
 the public, but to every employe in his serv- 
 ice. There Is no evidence in the record, nor 
 has there been a suggestion, that either the 
 conductor, fireman, or flagman of the train 
 
 75 
 
■Case No. 25] 
 
 RELEV^ANCY. 
 
 was neglisent or incompetent. The negli- 
 gence wliich directly caused the accident is 
 attributed solely to the brakemen; and the 
 appellant's negligence, which, as it is claim- 
 ed, fixes its liability, lies in its employment 
 of, or continuing to retain in its service, these 
 dissipated or intemperate' brakemen. But, 
 as we have stated, it was necessary tor the 
 ...aintiff to show, not only their employment, 
 liut that the company had not used due and 
 ordinary care in selecting them. There was 
 no direct evidence adduced to show the ab- 
 sence of such care; but the question except- 
 ed to, and the evidence elicited in response 
 to It, were designed to show by indirect or 
 circumstantial evidence tliat the company had 
 not used the degree of care and caution in 
 tlie selection of these brakemen that its duty 
 imperatively required it to use. So the ques- 
 tion is, can you fix upon Jhe master a failure 
 to use due care in selecting careful servants 
 by showing such notorious or general reputa- 
 tion respecting the servant's unfitness or in- 
 competency as that the master could not, 
 without negligence on his part, have been ig- 
 norant of it when he employed the servant? 
 About this there ought to be no difficulty. If 
 the servant's general reputation before em- 
 idoyment is so notorious as to unfitness as 
 that it must have been known to the master 
 l)ut for his (the master's) neglisence in not 
 informing himself,— if he could have been 
 ignorant of it only because he failed to make 
 investigation, — then it is obvious that he had 
 not used the care and caution which the law 
 demands of him in selecting his employees. 
 I Hence "the servant's general reputation for 
 1 unfitness may be sufficient to overcome the 
 Ijresumption that the master used due care 
 in his selection, even though actual knowl- 
 edge of such reputation for unfitness on the 
 master's part is not shown." Wood, Mast. 
 & Serv. . § 420. In* Davis v. Eaih?oad Co., 
 20 Mich. 112, Cooley, J., speaking for the 
 com-t, adopts the case of Gilman v. Railroad 
 Co., 13 Allen, 433, which puts upon the em- 
 ployer the responsibility of negligently em- 
 ploying an unfit person, generally known and 
 reputed to be such, notwithstanding the em- 
 ployer may in fact have been ignorant of 
 such unfitness. Continuing, he said: "The 
 ignorance itself is negligence in a case in 
 Avhich any proper inquiry would have ob- 
 tained the necessary information, and where 
 the duty to inquire was plainly imperative." 
 So, in Hilts v. Railway, .'>"> Mich. 437, 21 N. 
 W. 878, where a track hand was killed by an 
 engine backing rapidly along a switch, and 
 the engiueman was drunk, the court said: 
 "When, however, as in this case, it is shown 
 that the accident occurred through the negli- 
 gent act of the servant, who was in an intoxi- 
 cated condition, and when it is shown, fur- 
 ther, that he was in the habit of drinking in- 
 toxicating liquors to excess, and such habit 
 had extcndiMl over a period of nine months 
 while in defendant's employ, and no actual 
 Icuowledge or notice ever reached any supe- 
 
 76 
 
 rior officer of the engineer, we think the jury 
 may be justified in concluding from such evi- 
 dence that the defendant was negligent in 
 faiUng to learn such habit, and in retaining 
 the engineer in its employment." S€e, also, 
 Gilman v. Railroad Co., 13 Allen, 433; Wright 
 V. Railroad Co.. 25 N. Y. 566; Railroad Co. v. 
 "Sullivan, G3 111. 293; Chapman v. Railway 
 Co., 55 N Y. 579. The evidence offered and 
 admitted had no relation to specific or iso- 
 lated acts of negligence. These, unless 
 brought home to the knowledge of the mas- 
 ter, would not have been admissible as i-e- 
 flecting on the question of the master's care. 
 Elevator Co. v. Xeal, (15 Md, 438, 5 Atl. 338. 
 yVe think, for the reasons we have given and 
 upon the authorities we have cited, there was 
 no error committed in alldwiug the question 
 excepted to in the first bill of exceptions to 
 be put and answered. 
 
 Under the ruling, quite a number of wit- 
 nesses testified to Huyett's general reputa- 
 tion lor intemperance, extending from a 
 period long anterior to his employment by the 
 appellant, up to and after the accident. One 
 witness, Byler, gave evidence as to Reese's 
 general reputation. With respect to Huyett, 
 the evidence, if credited by the Jury, showed 
 a general reputation, covering many years, 
 uninterruptedly, and of such a notorious 
 character that a ,1ury might well have in- 
 ferred it was known to the master when 
 Huyett was employed, or else that the master 
 failed to know it only because of neglecting 
 to make proper inquiry. There was conse- 
 quently evidence legally sufficient to go to 
 the jury upon the subject of the company's 
 negligence; and therefore there was no error 
 in rejecting the appellant's first and fifth 
 prayers, which sought to take the case from 
 the consideration of the jury, nor in rejecting 
 its fourth prayer, which sought to exclude 
 this evidence from the case. 
 
 There was error in rejecting the second 
 prayer of the appellant. It asked the court 
 to say to the jury that, if the injury to the 
 plaintiff was caused by the intoxication or 
 negligence of the brakemen, or either of 
 them; that the brakemen were employed by 
 Shull, the train dispatcher, and were sent out 
 by him on the train in question; and, further, 
 that Shull was guilty of negligence in sending 
 out these brakemen, or either of them, on 
 the train,— "yet the jury are further instruct- 
 ed that Shull and tlie plaintiff were coem- 
 ploygs of the defendant in the sending out 
 of said brakemen, and the defendant is not 
 responsible to the plaintiff for the neglect or 
 want of care of the said Shull, unless they 
 shall further find that there was negligence 
 on the part of the defendant in the employ- 
 ment of SMill; and there is no legally sufficient 
 evidence in the cause from which the jury 
 can so find." Now, whether Shull was a 
 deputy master, or vice principal, or only a 
 fellow servant of the plaintiff, is a question of 
 law to be determined by the court, if the 
 facts be undisputed or conceded. Yates v. 
 
EVIDENCE OF CHAR ACTER— WHEN AD.AHSSIBLE. [Case No. 25 
 
 Iron Co., G9 Md. 382, 16 Atl. 2S(). Sliull was 
 a mere dispatcher of trains, witla power to 
 employ and discharge flagmen and brakemen, 
 and having general charge of the trainmen of 
 the first division of the road, and tlie move- 
 ment of trains thereon. He was emplo.^ed 
 by the division superintendent, wlio had the 
 general managcmuut of the division. The en- 
 ginemen ana tiremeii are also under tlie in- 
 structions of the division superintendent. 
 This is all the evidence (and it is entirely un- 
 disputed) to show that ShuU vcas a vice prin- 
 cipal, and not a fellow servant. In Wonder's 
 Case, 32 Md. 418, the general rule was laid 
 down that all who serve the same master, 
 work imder tlie same control, derive au- 
 thority and compensation from the same 
 source, and are engaged in the same general 
 business, though it may be in different grades 
 and departments of it, are fellow servants, 
 each taking the risk of tlie other's negligence. 
 In that case, a brakeman, who was injured 
 while using a defective brake, was held to 
 be a fellow servant with the mechanics in the 
 shops, the inspector of machinery and rolling 
 stock, and the superintendent of the move- 
 ment of trains. And so in State v. Malster, 
 57 Md. 287, It was held that a superintendent 
 or manager is a fellow servant, within the 
 rule which exonerates the master. In Ele- 
 vator Co. V. Neal, 65 Md. 438, 5 Atl. 338, the 
 captain of a steam tug owned by the com- 
 pany was held to be a fellow servant of a 
 laborer who was injured in the company's 
 service. This court said in that case: "Nor 
 is the liability of the master enlarged or made 
 different by the fact that the servant who has 
 suffered the injury occupied a grade in .the 
 common service inferior to that of the serv- 
 ant whose misconduct caused the injury com- 
 plained of." And in Yates v. Iron Co., 69 
 Md. 370, 16 Atl. 280, the authorities were all 
 reviewed, and it was held that the chief man- 
 ager of the carbon works, who hired and dis- 
 charged the hands, kept their time, etc., was 
 oul.v a fellow servant of a laborer who was 
 injured while operating the machinery. May- 
 or, etc., V. AVar, 77 Md. 593, 27 Atl. 85. In 
 the face of these decisions, it is impossible 
 to treat Shull as anything more than a fel- 
 low servant. The management of the di- 
 vision upon which he was train dispatcher 
 was not committed to him. He was a sub- 
 ordinate, appointed by the superintendent; 
 and though he had charge of the trainmen 
 and of the movement of trains on his di- 
 vision, and could employ and discharge flag- 
 men and brakemen, it is far from being 
 shown that tlie master had relinquished all 
 supervision of the work on that division, and 
 intrusted its direction, as well as the procur- 
 ing of materials and machinery and other in- 
 strumentalities necessary for the service, to 
 his judgment and discretion. The engineman 
 and fireman were not employed by him, but 
 by the division superintendent; and, if the 
 grade of his position was superior to that of 
 the engineman, that fact did not make him 
 
 a vice principal as respects the latter. The.v 
 were both engaged in the same common 
 work, employed by the same agent of the 
 common master, and were performing duties 
 pertaining to the same general business; and, 
 unless the whole current of the Maryland de- 
 cisions is to be reversed, they were fellow 
 servants of the railroad company, upon the 
 evidence now before us. If this be so, then. 
 eA-cu if SliuU luid been negligent in sending 
 out these brakemen, and if that negligence 
 caused the injury sued for, still the plaintiff 
 could not recover, unless the company had 
 not used due care in the selection of Shull, 
 and of this there was not a particle of evi- 
 dence offered. 
 
 The appellant's sixth prayer was properl.\- 
 rejected. There was no iiecessit:\' to prove 
 that the company had been incorporated. 
 That fact was averred in the declaration, and 
 was not denied by the pleas, and under sec- 
 tion 108, art. 75, of the Code, must be taken to 
 be admitted. 
 
 This brings us to the prayers presented by 
 the appellee. Under a local law of WasliiU' ■- 
 ton county (sections 69, 70, art. 22, Code Pub. 
 Loc»! Laws), we are required to consider the 
 rejected prayers of the plaintilf, if he has 
 excepted; and this he has done. By the de- 
 fendant's exception, the plaintiff's gi'anted 
 prayers and the defendant's rejected prayers 
 are brought before us. By the plaintiff's 
 exception, his rejected prayers, as well as the 
 defendant's granted ones, are presented for 
 review. The court granted the plaintiff; 
 first, seventh, and eighth prayers. We do not 
 understand that the seventh and eighth arc 
 seriously questioned. Without discussing 
 them, we need only say they are not open 
 to substantial objection. 
 
 The appellee's first prayer, however, ought 
 not to have been gi-anted. It was objected 
 in the argument that there was no evidence 
 to support some of the hypotheses it contain- 
 ed, but as no special exception based upon 
 that objection, and signed and sealed by the 
 judge, appears in the record, we are not at 
 liberty to consider it. Albert v. State, 66 
 Md. 33-1, 7 Atl. 697. The prayer, after set- 
 ting forth the facts, proceeds: "Then, if the 
 said injury to the plaintiff was caused by the 
 want of ci-dinaiy skill and experience or oth- 
 er unfitness on the part of the other hands, 
 or any of them, in charge of said train, to 
 manage and conduct the same, by reason of 
 the intemperate state or condition of either 
 of them," the plaintiff using due diligence, 
 "the plaintiff is entitled to recover, provided 
 the jury further find fro-m the evidence that 
 the defendant did not use reasonable care 
 in the selection and employment of the 
 brakemen or other hands or employes enga- 
 ged with the plaintiff in condueting said cars;'' 
 that is to say, if the injury resulted from 
 negligence caused by the intemperance of 
 any of the train hands, the defendant would 
 be liable, if it had failed to use due care in 
 the selectien of either of the employes on 
 
 IT 
 
Case No. 25] 
 
 RELEVANCY. 
 
 that train, even though that particular em- 
 ploye, thus carelessly selected, had been guil- 
 ty of no negligence, and had in no way occa- 
 sioned the accident. Consequently, if the 
 jury thought the injury was caused by the 
 drunkenness of the brakemen, and that the 
 company had not used due care in the selec- 
 tion of the fireman, the company would be 
 liable, notwithstanding the fact that the fire- 
 man had been guilty of no negligence, and 
 had in no way produced or helped to produce 
 the injury. Thus, the negligence of one serv- 
 ant, and the independent negligence of the 
 master in employing some other servant, who 
 had no connection with the accident, estab- 
 lished, under this instruction, the plaintiff's 
 right to recover. This is not the law. On 
 the contrary, it is the negligence of a fellow 
 servant, and the additional negligence of the 
 master in employing that servant, whose neg- 
 ligence actually caused the injury, which 
 must concur before a plaintiff can recover in 
 a case of this character. The instruction 
 therefore announced an obviously erroneous 
 proposition, and was calculated to mislead 
 the jury, because there was evidence before 
 them from which they might have inferred 
 that due care had not been used in the selec- 
 tion of the fireman, though there was no evi- 
 dence from which they could have found 
 that the fireman was responsible for the ac- 
 cident. The instruction should have clearly 
 restricted the negligence of the defendant in 
 selecting the plaintiff's fellow servants to the 
 selection of such of them as by their incompe- 
 tency, growing out of their intemperance, ac- 
 tually caused the injury. 
 
 The appellee's second, third, fourth, and 
 fifth prayers were properly rejected. There 
 was no legally suflicient evidence adduced to 
 support them, or the several hypotheses iis- 
 sumed in them; and, if they had been free 
 from other objections, this one was suflicient 
 to justify the court In refusing to grant them. 
 
 There remains the appellant's third prayer, 
 which the court granted, but we think erro- 
 
 78 
 
 neously grar.red. It told the jury, in sub- 
 stance, that unless the brakeman Huyett 
 was drunk at the time of the accident, and 
 his negligence, by reason of such drunken- 
 ness, produced or contributed to the accident, 
 the evidence of general reputation as to his 
 intemperance was not relevant, and could 
 not be considered by the jury, "unless sucli 
 reputation was brought home to the knowl- 
 edge of the defendant before the acc'dent;" 
 and there is no such evidence of such kno^vl- 
 edge. Had the prayer omitted the words 
 italicized, it would have been correct, but 
 those words superadded a condition which 
 is manifestly inaccurate. Now, it is obvious 
 that if Huyett was not di-unk and was not 
 negligent when the accident happened, and 
 therefore did not cause or contribute to it, 
 the evidence of his general reputation for in- 
 temperance was wholly irrelevant, even 
 though that reputation nad been brought 
 home to the knowledge of the appellant be- 
 fore the accident, because, if he did not occa- 
 sion the injury by his negligence, the fact 
 that the master had knowledge of his bad 
 reputation would in no way have made the 
 master liable for an injury not caused by 
 Huyett at all. In other wards, the master's 
 knowledge of Huyett's bad reputation had 
 nothing whatever to do with the case if Huy- 
 ett did not cause or contribute to the acci- 
 dent; and if Huyett did, by his intemper- 
 ance, cause the accident, then it was imma- 
 terial whether the master had knowledge of 
 his bad reputation or not, because, as already 
 stated, the master was negligent in not know- 
 ing it. So, in either view of the question, the 
 prayer was wrong, beca\ise of the addition of 
 the words indicated. 
 
 For the enror in granting the appellee's 
 first instruction and the appellant's third, and 
 for the error in rejecting the appellant's sec- 
 ond prayer, the judgment must be reversed, 
 and a new trial be ordered. Judgment re- 
 versed, with costs above and below, and new 
 trial awarded. 
 
HEARSAY GENEUALLY EXCLUDED. 
 
 [Case No. 26 
 
 ANDERSON v. FBTZER et al. 
 
 (44 N. W. 838, 7.-> Wis. 562.) 
 
 Supreme (Nmi-t of Wistousiii. Jan. 28, 1890. 
 
 Appeal from circuit court. Door county; 
 t^AMUEL D. Hastings, Jr., Judge. 
 
 This action is to recover 1411.02, being 
 the proceeds ol 6,603 cedar posts sold by 
 the defendants on commission for the 
 plaintiff. The defendants counter-claimed, 
 and alleged, in effect, that January 27, 1S87, 
 the plaintiff entered into a contract in 
 writing with the defendants as follows: 
 "Received of Youngs & Fetzerfive hundred 
 ■dollars on account of ties now on hand on 
 Harris dock, at Bay View, Door county. 
 Said Youngs & Fetzer is to advance E. N. 
 Anderson at the rate of 18 cents on each 
 good cedar tie bought by him, said ties to 
 be owned by said Youngs & Fetzer; and 
 when shipped all profits on said ties to be 
 equally divided between Youngs & Fetzer 
 and said E N. Anderson, said Youngs & 
 Fetzer to furnish above amount on each 
 good tie, and said Anderson to do all nec- 
 essary labor in buying, shipping, etc., to 
 offset the use of money furnished by said 
 Youngs & Fetzer. There is up to date 3.625 
 cedar ties on above dock. E. N. Ander- 
 son. Bay View, January 27th, 1887. Ac- 
 cepted. Youngs & Fetzer. " That under 
 said contract the defendants advanced 
 moneys to the plaintiff on said ties, as 
 therein mentioned, and also on said posts 
 indiscriminately, to the amount of $1,800. 
 The plaintiff replied to the counterclaim, 
 and denied each and every allegation there- 
 of. A jury being waived by the parties, the 
 cause was tried by the court, and at the 
 conclusion the court found, as matters of 
 fact: (1) That, during the year 1887, the 
 defendants were copartners, doing busi- 
 ness in Door county. Wis. ; (2) that Janu- 
 ary 27, 1887, the plaintiff and defendants 
 entered into the written contract of which 
 a copy is given above: (3) that prior to 
 March 18, 1887, the defendants had ad- 
 vanced to the plaintiff under said contract 
 the sum of $900, and said plaintiff had 
 bought for said defendants about 6,000 
 ties, including culls; (4) that March 18, 
 1887, said plaintiff had on hand, belonging 
 to himself, about 6,000 cedar posts; (5) 
 that on March 18, 1887, the plaintiff was in 
 great need of funds to meet an obligation 
 to a third party then pressing him, and 
 obtained from the defendants a further ad- 
 vanceof $700, to be repaid in good ties, un- 
 der said contract, and posts at an advance 
 of one-half centeach over the price paid for 
 them by the plaintiff; (6) thatpursuant to 
 said agreement the plaintiff delivered to the 
 defendant 6,603 cedar posts of four different 
 elzes and jirices, and which, at the prices 
 agreed upon for them, amounted to 
 $411.04; (7) that the plaintiff purchased 
 and delivered to the defendants, under 
 said written contract, 7,.568 good ties, 
 amounting, at the contract price of .$.18 
 each, to $1,362.24; (8) that no profits were 
 realized on the sale of said ties ; (9) that 
 the plaintiff paid the sum of $33 for dock- 
 age on said cedar posts, but it does not 
 appear that he was authorized or request- 
 ed to do so by said defendants. As con- 
 clusions of law^ the court finds ■ (1) That 
 
 the plaintiff is entitled to judgment against 
 the defendants for the sum of $411.04 for 
 posts, and said sum of .$1,. 362.24 for ties, 
 less the sum of $1,600, advanced as afore- 
 said, to-wit: for the sum of $173.27, with 
 interest from February 11, 1883, amounting 
 in the whole to $180,48, with costs, and 
 judgment was ordered to be entered there- 
 on accordingly. From the judgment so 
 entered the defendants bring this appeal. 
 
 Hamilton & Bachns, {Turner <& Timlin, 
 of counsel,) for appellants. O. E. & Y. V. 
 Dreiitzer, for respondent. 
 
 CASSODAY, J., (after stating thefaets as 
 above.) It is claimed that the trial court 
 found a balance due the plaintiff on the 
 counter-claim of the defendants, and not 
 upon the plaintiff's cause of action. The 
 com paint was for the proceeds of cedar 
 posts, as stated. The counter-claims were 
 tor advances and payments made on ac- 
 count of the ties and fence posts indiscrim- 
 inately. The trial court found, in effect, 
 that the $900 was advanced upon the ties, 
 and the $700 on ties and posts, and that 
 the proceeds of the ties and posts received 
 by the defendants from the plaintiff amount- 
 ed, in the aggregate, to $1,773.28, or$l73.28 
 in excess of the moneys so advanced. We 
 cannot hold that the mere form of the is- 
 sues precluded the plaintiff from recover- 
 ing the true balance in his favor on ac- 
 count of both ties and posts, since it was 
 considerably less than the amount claimed 
 in thecomplaint. 
 
 The principal contention of the defend- 
 ants is that the evidence fails to support 
 the seventh finding of fact, as to the num- 
 ber of "good ties" purchased by the plain- 
 tiff, and delivered to the defendants, under 
 the written contract set forth . It is claimed 
 that a large per cent, of the ties therein 
 mentioned were culls, or rejected, and did 
 not pass inspection in Chicago, wliere it 
 was understood they were to be sold, and 
 were in fact sold by Wm. Ripley & Sons, 
 as agents for and on account of the de- 
 fendants. 
 
 The evidence principally relied upon by 
 the defendants to prove that a large per 
 cent, of the ties thus delivered were not 
 "good cedar ties, " within the meaning of 
 the contract, is a written statement, made 
 by Wm. Ripley & Sons, of a cargo of such 
 ties therein said to have arrived in Chicago 
 April 18, 1887, by the vessel Thomas H. 
 Smith, on account of the defendants, and an- 
 other such statement made by them of ties 
 therein said to have arrived July 15, 1837, 
 by the vessel Eliza Day, on account of the 
 defendants. Neither of these statements 
 were sworn to, nor verified In any w«ay. 
 Neither of the firm of Wm. Ripley & Sons, 
 nor any one in their employ, nor any oth- 
 er person, testified to the facts contained 
 in either of those statements. The written / 
 contract contains nothing which could / 
 make such statements evidence. Such I 
 statements made by agents of the defend- ^ 
 ants were no more admissible in their be- 
 half than their own statements. They 
 were mere hearsay, and hence were prop- 
 erly rejected. The defendants admitted 
 that there was no standard for good ties 
 in Oiicago ; that whether a given quanti- 
 ty of ties passed inspection there or not 
 
 79 
 
Case No. 26] 
 
 KELEVANCY. 
 
 depentlecl very much upon the supiily and 
 demanrl ; that at times perfectly good ties 
 wereclassed as inferiorinthatiiiarl<et, and 
 at other times the reverse; that a good 
 tie in Door county meant a tie of certain 
 dimensions and sound. Their proofs fail 
 to show that the ties delivered fell below 
 that standard. They were not kept sepa- 
 rately in Chicago, but piled in with others. 
 The written contract states tliat there 
 were 3,625 on the dock dt the time it was 
 made. The defendants saw them at the 
 SO 
 
 time. There is evidence to the effect that 
 when the advances were made, March 18, 
 1SS7, there were some 6,000 ties on the- 
 dock, open to the inspection of the defend- 
 ants; that all the bad ties were thrown 
 out before shipment; and that the plain- 
 tiff delivered thenumberof good tiesfound 
 by the court. Upon the evidence in the 
 record, we would not be iustified in dis- 
 turbing- the seventh, nor any, of the find- 
 ings of the trial court. The judgment of 
 the circuit court is affirmed. 
 
HEARSAY GENERALLY EXCLUDED. 
 
 [Case No. 27 
 
 OSKAMP et al. v. GADSDEN. 
 
 (52 N. W. 718, 35 Neb. 7.) 
 
 Supreme Court of Nebraska. June 11, 1892. 
 
 Error to district coui't, Douglas county; 
 Clarkson, Judge. 
 
 Action by Clemens Oskamp and others 
 against James Gadsden for damages for the 
 alleged breach of a contract to deliver a 
 quantity of hay. Verdict and judgment for 
 defendant. Plaintiffs bring error. Affirmed. 
 
 Isaac Adams, for plaintiffs in error. Rich- 
 mond & Legge, for defendant in error. 
 
 NORVAL, J. PlaintifEs in error brought 
 suit in the court below to recover damages 
 for the alleged breach of contract by the 
 defendant in his refusing to deliver a quan- 
 tity of hay claimed to have been purchased 
 by them from him. The jury returned a 
 verdict for defendant, upon which judgment 
 was entered. 
 
 In 1888 plaintiffs were engaged in the city 
 of Omaha in the flour, feed, grain, and hay 
 business. Defendant resided at Schuyler, 
 and had about 150 tons of hay which he de- 
 sired to sell. Prior to the middle of April 
 of that year plaintiffs and defendant had 
 some correspondence about the purchase and 
 sale of this hay, but no contract was en- 
 tered into at that time. On May 1, 1888, de- 
 fendant sent the following letter to plain- 
 tiffs: "Osliamp, Haines &: Co., Omaha, Ne- 
 braska — Gentlemen: Wliat is your ijrice for 
 pressed hay now? Mine is still for sale, if I 
 can get as much as others are getting. I 
 would rather close out the entire amount at 
 once if I can find a customer, and will give 
 the use of my barn till July 14th, if buyer 
 wants to speculate. There is scarcely any 
 hay left here. Some on the prairie will not 
 be hauled this season on account of bottoms 
 being covered with water. Yours, truly, 
 James (jadsden." In answer to the above, 
 plaintiffs wrote defendant as follows: 
 "Omaha, May 2d, 18S8. Mr. James Gadsden, 
 Schuyler, Neb. — Dear Sir: Answering yours 
 of the 1st, the market seems to be glutted 
 now with hay. Have bought some at $7.75 
 on track since we bought that of yours. If 
 you want to sell now, and mean business, 
 we will give you .?8.25 per ton on track here, 
 if it is all like the cars we had; but we do 
 not leave this offer open longer than Satur- 
 day, but we prefer acceptance by wire, as 
 we are figuring upon 800 tons at a trifle bet- 
 ter price, sample car now coming, and, if 
 we get that all, have got to crowd the mar- 
 ket here. Have about 140 tons bought now, 
 and would not want yours at any price with 
 that large lot. We would not take the risks 
 of your barn an hour, and you could ship it 
 all as fast as you please, having storage for 
 500 tons. Our full storage capacity here is 
 1,000 tons. Now, about weights, you can 
 have any one weigh it here after testing our 
 track scale, or we will pay you by the bale. 
 Oskamp & Haines." On May 7th defendant 
 
 WILGUS.BV. — 6 
 
 called at the telephone oflice in Schuyler, 
 and requested the operator to call up plain- 
 tiffs, as he desired to talk to them. Plain- 
 tiffs have a telephone in their oflice, and 
 Mr. Haines, one of the firm, answered the 
 call, but, owing to the condition of the at- 
 mosphere, the line was not working well, so 
 that the parties were unable to communicate 
 directly with each other. The telephone 
 
 I operator at Fremont, an intermediate sta- 
 tion between Omaha and Schuyler, proposed 
 to and did transmit defendant's message to 
 plaintiffs, and repeated their answer to the 
 defendant. The entire conversation was 
 carried on through the assistance of the 
 operator at Fremont, she repeating the mes- 
 
 I sage of each party. It is agreed that a con- 
 
 ' tract was entered into at that time by tele- 
 phone, but there is a conflict in the evidence 
 as to its terms. The plaintiffs introduced 
 testimony tending to show that defendant 
 sold his entire lot of hay at .f8.2o per ton on 
 track in Omaha, to be shipped two car 
 loads per day. On the other hand, the testi- 
 mony of the defendant goes to show that 
 plaintiffs' proposition contained in their let- 
 ter of May 2d was not accepted by defend- 
 ant, but that the contract was for only two 
 car loads. Two car loads of hay only were 
 shipped to and received by plaintiffs. Sub- 
 sequently defendant brought an action 
 against plaintiffs to recover for said two car 
 loads of hay, in which Gadsden recovered 
 the full amount claimed, which judgment 
 
 I plaintiffs in error have paid. 
 
 The burden was upon the plaintiffs to es- 
 tablish the contract and breach of the same 
 substantially as alleged by them. The Jury 
 passed upon the conflicting testimony, and 
 by the verdict found that the terms of the 
 contract respecting the quantity of the hay 
 sold were as claimed by the defendant. We 
 are satisfied that there is not such a pre- 
 
 I ponderance of the evidence in the plaintiffs' 
 favor as to justify us in disturbing the find- 
 ing. 
 
 Error is assigned because th" court admit- 
 ted the testimony of the defendant as to the 
 conversation over the teleijhone between the 
 witness and Mr. Haines, one of the plain- 
 tiffs, as repeated over the wire by Mrs. 
 (Uimmings, the telephone operator at Fre- 
 mont. It is contended that the testimony of 
 the witness of what the operator repeated 
 to him as the conversation progressed as 
 being said by Mr. Haines is irrelevant and 
 hearsay. The question thus presented is a 
 new one to this court, and there are but few 
 decided cases which aid us in our investiga- 
 tion. But upon principle it seems to us that 
 tlie testimony is competent, and its admis- 
 sion violated no rule of evidence. It was 
 admissible on the ground of agency. The 
 operator at Fremont was the agent of de- 
 fendant in communicating defendant's mes- 
 sage to Haines, and she was also the latter's 
 agent in transmitting or reporting his an- 
 swer thereto to defendant The books on 
 
 81 
 
Case No. 27] 
 
 RELEVANCY. 
 
 J 
 
 evidence, as well as the adjudicated cases, 
 lay dowu the rule that the statements of an 
 agent \^'ithin the line of his authority are ad- 
 missible in evidence asainst his lorincipal. 
 Likewise, it has been licld tliat, where a 
 conversation is carried on between persons 
 of different nationalities through an inter- 
 preter, the statement made by the latter at 
 the time the conversation occurred as to 
 what was then said by the parties is com- 
 petent evidence, and may be proven by call- 
 ing persons who were present and heard it. 
 This is too well settled to require the cita- 
 tion of authorities. There are certainly 
 stronger '-easons for holding the statement 
 made by the operator and testified to by de- 
 fendant is admissible than in the case of an 
 interpreter. Both Haines and defendant 
 heard and understood the operator at Fre- 
 mont, and knew what she was saying, or at 
 least could have done so. Each knew 
 whether his message was being correctly 
 repeated to the other by the operator. Not 
 so where persons converse through an in- 
 terpreter. If the testimony objected to was 
 Incompetent, and liearsay, then the testi- 
 mony of Haines, relating to the same con- 
 versation, should, for the same reason, have 
 been excluded. He did not hear what de- 
 fendant said, but testified to what the oper- 
 ator reported as having been said. The 
 operator at Fremont was not the agent of 
 the defendant alone, but she was plaintiffs' 
 agent in repeating their answer to defend- 
 ant's message. That conversations held 
 through the medium of telephone are admis- 
 sible as evidence in proper cases cannot be 
 doubted. Such have been the holdings of 
 the courts in cases where the question has 
 been before them. In a criminal case— Peo- 
 ple V. AVard, 3 N. Y. Cr. R. 483— it was held 
 that, where a witness testifies that he con- 
 versed with a particular person over the 
 telephone, and recognized his voice, it was 
 competent for him to state the communica- 
 tion which he made. In Wolfe v. Railway 
 Co., 97 Mo. 473, 11 S. W. 49, it was ruled 
 that if the voice is not Identified or recog- 
 nized, but the conversation is held through 
 a telephone kept in a business house or of- 
 
 82 
 
 fice, it is admissible; the effect or weight 
 of such evidence, when admitted, to be de- 
 termined by the jury. See Printing Co. v. 
 Stahl, 23 Mo. App. 451. 
 
 A case quite analogous to the one at bar 
 is Sullivan v. Kuykendall, 82 Ky. 483. In 
 that case the parties did not have conversa- 
 tion directly with each other over the tele- 
 phone, but conversation was conducted by 
 an operator in charge of a public telephone 
 station at one end of the line. It was held 
 that the conversation was admissible in evi- 
 dence, and that it was competent for the 
 person receiving the message to state what 
 the operator at the time reported as being 
 said by tlie sender. The court .in the opin- 
 ion say: "When one is using the telephone, 
 if he knows that he is talking to the opera- 
 tor, he also knows that he is making him an 
 agent to repeat what he is saying to an- 
 other party; and in such a case certainly 
 the statements of the operator are compe- 
 tent, being the declarations of the agent, 
 and made during the progress of the trans- 
 action. If he is ignorant whether he is 
 talking to the person with whom he wishes 
 to communicate or with the operator, or 
 even any third party, yet he does it with the 
 expectation and intention on his part that, 
 in case he is not talking with the one for 
 whom the information is intended, it will be 
 communicated to that person; and he there- 
 by makes the person receiving it his agent 
 to communicate what he may have said. 
 This should certainly be the rule as to an 
 operator, because a person using a telephone 
 knows that there is one at each station, 
 whose business it is to so act; and we think 
 that the necessities of a growing business 
 require this rule, and that it is sanctioned 
 by the known rules of evidence." Our con- 
 clusion is that the court did not err in ad- 
 mitting the testimony of the defendant. 
 
 It is claimed tliat the court erred in re- 
 fusing certain instructions requested by 
 plaintiff, but, as they raise the same ques- 
 tion we have been considering, the objec- 
 tions will be overruled without further com- 
 ment. The judgment below is affirmed. 
 The other judges concur. 
 
ADMISSIONS. 
 
 [Case No. 28 
 
 PROCTOR V. OLD COLONT R. CO. 
 
 (28 N. B. 13, 154 Mass. 251.) 
 
 Supreme Judicial Court of Massacliusetts. 
 Barnstable. June 29, 1891. 
 
 Exceptions Ironi superior court, Barn- 
 stable conntj-; Robert C. Pitman, Judge. 
 
 Action by Joseph L. Proctor against 
 the Old Colony Railroad Company for 
 damages for setting baeli fresh water up- 
 on his premises. The evidence tentled to 
 show that when the road was built the 
 waters of a creek were discharged from 
 the premises by a stone culvert. After- 
 wards the culvert was filled, and a drum 
 substituted. Defendant oflered evidence 
 tending to show that the change had been 
 made at the request of plaintiff's grantor. 
 The plaintiff testified that he had had 
 numerous conversations with the officers 
 of the company as to his damages. He 
 was then asked the following questions: 
 "(1) Whether or not, at any time, any 
 denial of liability has been made by de- 
 fendant or any of its officers. (2) Whether 
 or not, in these interviews, tlie officers 
 ever referred to any agreement by you or 
 your grantor about handling the water 
 througha drum. (3) When did you first 
 hear, if at all, that the company denied 
 liability? (4) Whether or not the com- 
 pany or its officers ever denied your right 
 to have a culvert at this point." The 
 court excluded these questions on the 
 ground that the conversations, and not 
 the inferences or understanding of plain- 
 tiff, were admissible. Plaintiff also offered 
 to prove that when he called on the pres- 
 ident of the company about his claim he 
 was referred to Judge Harriman, the 
 president saying, " We want to leave it to 
 our attorney. Judge Harriman," and that 
 after examining plaintiff's books and evi- 
 dence Judge Harriman stated that a cer- 
 tain sum of money was due plaintiff. 
 The court refused this offer. Afterwards 
 the defendant's superintendent testified 
 that the company and plaintiff had agreeri 
 to refer the claim to Judge Harriman; 
 and after the testimony was closed plain- 
 tiff formally offered to show this agree- 
 ment, which consisted of letters, but the 
 court excluded it as not rebutting. There 
 was a verdict and judgment for defejjd- 
 ant, and plaintiff brings exceptions. 
 
 Charles F. Chnmberhiyne, for plaintiff. 
 J. H. Benton, Jr., and G. F. Choate, Jr., 
 for defendant. 
 
 C. ALLEN, J. The plaintiff testified that 
 he had numerous interviews with the 
 president, general manager, and division 
 superintendent of the defendant company 
 concerning his damages caused by the 
 setting back of the waters of Bridge creek 
 upon his premises, and then sought to 
 show that in the discussions which took 
 place between him and them they did not 
 deny the defendant's liabilityfordamages. 
 The^-e was no objection on the ground 
 that these officers were not authorized to 
 speak for the defendant upon the subject, 
 but the court excluded the questions on 
 the ground that the conversations, and 
 not the inferences or understanding of the 
 plaintiff, were admissible. It seems to us 
 that this was too narrow a view of the 
 
 matter. If, in point of fact, the defend- 
 ant's officers, in discussing the plaintiff's 
 claim for damages with him, did not deny j 
 the defendant's liability for damages, the I 
 omission to make such denial might be 
 considered by the jury. It would be in 
 the nature of an admission, subject, of 
 course, to be explained, but competent 
 and proper to bo laid before the jury. 
 This is not like cases where a party is so 
 situated that no inference can be drawn 
 from his silence, when a statement is 
 made in his presence. Com. v. Kenney, V2 
 Mete. (Mass.) 235; Com. v. Harvey, 1 Gray, 
 487. If a party is so situated that he is 
 not called upon to say anything, and does 
 not say anything, his silence, under such 
 circumstances, is not to betaken as fur- 
 nishing any ground for an inference that he 
 thereby made any admission. But in the 
 case at bar there was evidence tending to 
 show that the plaintiff had presented to 
 the defendant's officers a claim for dam- 
 ages, and that the matter was under dis- 
 cussion at different interviews. If, under 
 these circumstances, they made no denial 
 of the defendant's liability while discuss- 
 ing the subject, the fact of such omission 
 might properly be considered by the jury. 
 It does not amount To an estoppel, but it 
 is evidence as bearing upon the question 
 to be determined. It is conduct which is 
 in the nature of an admission, if in such 
 discussion the defeiidant's officers made 
 no pretense that the defendant was not 
 liable. Parsons v. Martin, 11 Grav, 111; 
 Pi-ay V. Stebbins,*141 Mass. 219, 224, 225, 4 
 N. E. Rep. 824; Hayes v. Kelley, 116 Mass. 
 300. It is somewhat like an omission to 
 tegtify, or to produce books, or to furnish 
 explanations, when called on to do so. 
 Whitney v. Bayley, 4 Allen, 173; Cheney 
 V. Gleason, 125 Mass. 166, 176; Huntsman 
 V. .Nichols, 116 Mass, 521; McDonough v. 
 O'Niel, 113 Mass. 92; Eldridge v. Hawley, 
 115 Mass. 410. The presiding justice ap- 
 I)ears to have excluded the questions on 
 the ground that the conversations them- 
 selves, when testified to, would show 
 v.'hether or not tlie defendant's officers de- 
 nied that the defendant was liable. This 
 would be so if there were a single brief 
 conversation, the whole of which could be 
 given. But, where there have been nu- 
 merous interviews with different officers, it 
 is not to be supposed that the whole of 
 every conversation can be given ; and in 
 such case the plaintiff ought to be al- 
 lowed to testify, once for all, that never i 
 at any time was there a denial of liability. | 
 The practical question is, how shall the 
 result be reached of getting before the 
 jury the fact that no such denial was 
 made? It seems to us, under the circum- 
 stances presented by the bill of exceptions, 
 the plaintiff ought to have been allowed 
 to answer the first, second, or fourth 
 questions which were put to him by his 
 counsel, so as to be able to present to the 
 jury distinctly his claim that there never 
 liad been any denial of liability. It was 
 of course entirely proper to call for the 
 whole of all the conversations; but, since 
 it is not to be supposed that every word 
 can be repeated, the plaintiff should have 
 been allowed to ask the general question 
 which was excluded. The third question 
 ] is only significant as supporting the same 
 
 83 
 
Case No, 28] 
 
 RELEVANCY. 
 
 view, and of itself alone would properly 
 be excluded. 
 
 The plaintiff, in putting; in his case in 
 chief, offered to show certain statements 
 by Judge Harriman as the result of an ex- 
 amination of the premises made by him. 
 This evidence was properly excluded. It 
 would not follow from the plaintiff's offer 
 of proof that Judge Harriman was re- 
 st 
 
 ferred to in such a way as to constitute 
 him an agent for the defendant, with 
 authority to make admissions or prom- 
 ises to the plaintiff. Rosenbury v. Angell, 
 G Mich. 508. The subsequent more formal 
 offer after the close of the defendant's case 
 might properly be excluded, in the discre- 
 tion of the court, as too late. Exceptions 
 sustained. 
 
ADMISSIONS. 
 
 [Case No. 29 
 
 McLEOD et al. v. SWAIN. 
 
 (13 S. B. 315, 87 Ga. 156.) ' 
 
 Supreme CJourt of Georgia. April 20, 1891. 
 
 Error from superior court, Eraanue) 
 county; James K. Hines, Judge. 
 
 Williams & Brannen, SaffoUl & Warren; 
 and Rogers & Potter, for plaintiffs in er- 
 ror. Twiggs & Verdery and H. R. Daniel, 
 for defendant in error. 
 
 LUMPKliX, J. Mrs. Swain brought an 
 action of ejectment against McLeud et al. 
 for the recovery of a tract of land in 
 Emanuel count.y. The evidence was (;on- 
 flicting, and sufficient to sustain a verdict 
 (oi- either side. 'I'he jury fo;inJ for the 
 plaintiff. After Mrs. 8\yaiu had proved 
 by her own testimony tliat a certain Mrs. 
 Wiggins, who at one time was in posses- 
 sion of the land and remained in posses- 
 sion for many years, until lier death, was 
 her tenant, the court, over defendants' ob- 
 jection, admitted proof of declarations 
 made by Mrs. Wiggins, while in possession 
 of the land, to the effect that she held it as 
 the tenant of plaintiff, and that it was 
 the land of plaintiff. The onlj' question 
 of law presented in this case for our deter- 
 mination is whether or not this testimony 
 was properly admitted. Section 3776 of the 
 Code declares that "the declarations and 
 entries of a person, since deceased, against 
 his interest, and not made with a view to 
 pending litigation, are admissible in evi- 
 dence in any case. " It was contended in 
 the argument that such declarations 
 should be received only against the de- 
 clarant, and those in privity' with or 
 claiming under him ; but this view does 
 notseeui tobe sustained by theauthorities. 
 It was held in the case of Peaceable v. 
 Watson, 4 Taunt. 16, that "the declara- 
 tions of a deceased occupier of land of 
 whom he held the land are evidence of the 
 seisin of that person;" and in Davies v. 
 Pierce, 2 Term R. 53, that "declarations 
 by tenants are admissible evidence after 
 
 their death to show that a certain piece of 
 land is parcel of the estate which they oc- 
 cupied." In both these cases tlie declara- 
 tions admitted were made by persons not 
 in pri vity with any of the partiijs to the 
 record, nor did any of such parties in any 
 way claim title through or under the de- 
 clarants. Again: "Statements of a de- 
 ceased occupier touching his title are ad- 
 missible in evidence generally, without ref- 
 erence to the particidar effect they may 
 produce in the cause. " Came v. Nicoll, 27 
 E. C. L. 707. See, also, Barry v. Bebhinp- 
 ton, 4 Term R. 514. We find the following 
 In 1 Taylor, Ev. § 684: "Under the head of 
 declarations against proprietary interest 
 may be classed the statements made by 
 persons while in possession of land, ex- 
 planatory of the character of their posses- 
 sion ; and it is now well settled that such 
 declaratiions, if made in disparagement of 
 the declarant's title, are receivable, not 
 onii' as original admissions against him- 
 self and all persons who claim title' 
 through him, but also as evidence for or 
 against strangers. Whether in this latter 
 event they are admissible in the life-time 
 of the declarant, or only in cases where 
 his death can be proved, is a point which 
 does not appear to have been distinctly 
 decided. In most of the cases where the 
 evid>»nce has been received, the declarant 
 was dead ; but on two occasions, at least, 
 the evidence was admitted, though the de- 
 clarant was living." Wharton also lays 
 down the rule that such evidence is ad- 
 missible, not only against privies, but 
 strangers. "The reason for this conclu- 
 sion is that possession implies, prima facie, 
 an absolute interest, and any statement 
 which would tend to limit it to a less in- 
 terest is self-disserving. " 2 Whart. Ev. 
 § 1156. The same principle is stated in 1 
 Greenl. Ev. § 109, and the same reason 
 for the admissibility of such declarations 
 is there given. These authorities abun- 
 dantly sustain the correctness of the rul- 
 ing made by the court below, and its 
 judgment is therefore affirmed. Judgment 
 affirmed. 
 
 85 
 
Case No. 30] 
 
 KELEVANGY. 
 
 HILLS v. LUDWIG. 
 
 (24 N. B. 596, 46 Ohio St. 373.) 
 
 Supreme Court of Ohio. March 26, 1889. , 
 
 Error to circuit court, Crawford county. 
 
 Ejectment by Solomon Ludwig against 
 Jedediah Hills for a strip of land bounding 
 plaintiff's tract on the east. Besides a 
 general denial, the answer set up the 21- 
 year statute of limitations, and alleged 
 additional defenses, as follows: "(3) That 
 in 18ti0, thelocation of the true lines between 
 the lands of plaintiff and the adjoining 
 tracts not being ascertained, a survey was 
 had by agreement between plaintiff and 
 defendant's grantors, and a dividing line 
 established, which has ever since been recog- 
 nized by the owners of the lands ; (4) that 
 defendant owns lands both on the east 
 and on the west sides of plaintiff's lands; 
 that the lines on both sides of plaintiff's 
 Jand were established as stated in the third 
 defense; and that the quantity of land cut 
 off by the new line from the east side of 
 plaintiff's land was compensated by the 
 strip thus added on the west side, where- 
 by i)laintiff received as much land as his 
 deed called for." The judgment of the 
 court of common pleas in favor of plaintiff 
 was attiiuied by tlio circuit court, and de- 
 fendaut brings ei i-'U-. 
 
 S. It. Harris rnd li. B Ink ford, for plain- 
 tiff in error. Fiu.i'.v, fin tun Jt- Bennett and 
 W. Z. f)uvis, for defendant in error. 
 
 BRADBDRY, J. The lands otLudwip lie 
 west, and those of Hills east, of the dis- 
 puted line; and this line was originall.v 
 identical with that between sections 5 and 
 «, in i^'hich the lands lie. This section line 
 had been the subject of dispute between 
 adjoining proprietors for many years prior 
 to 1860. Early in that year, an agreement 
 was made between a number of land-own- 
 ers in those sections for a survey of this 
 line, which survey, pursuant thereto, was 
 made in March, 1860, by Horace Martin, 
 the then county surveyor. At the same 
 time, and as part of the same plan, the 
 north and south middle line of section 6 
 was survej'ed. By this survey both lines 
 were located further west than they were 
 before, so that Ludwig gained thereby on 
 the west substantially the quantity of 
 land he lost on the east. Soon thereafter 
 Ludwig, Hills' grantor, and some other 
 adjoining owners began to occupy and 
 improve their lands according to the new 
 line, which was called the " Martin Line, " 
 though with considerable dissatisfactioii 
 and some litigation between certain of the 
 adjoining projjrietors respecting it. Soon 
 after this line was established. Hills pur- 
 chased lands lying east of and adjoining 
 those of Ludwig, and also a tract adjoin- 
 ing Ludwig on the west; both of which 
 he has continued to occupy and improve 
 ever since, up to the Martin line. Twenty 
 years and 10 months elapsed from the time 
 Ludwig went out of possession of the 
 lands in dispute until this action was be- 
 gun, and more than 22 years elapsed be- 
 fore the amended petition was filed. The 
 trial resulted in a verdict and judgment 
 for Ludwig for the recovery of all the 
 lands described in his amended petition. 
 
 86 
 
 Hills took a bill ot exceptions, wnich ex- 
 hibits, among others, the fact above 
 stated. It also discloses certain excep- 
 tions taken bv Hills to the rulings of the 
 trial court in admitting and rejecting evi- 
 dence, and in charging and refusing to 
 charge the jury certain propositions of 
 law. The judgment was affirmed by the 
 circuit court, whereupon the defeated 
 party brought the case here for review. 
 
 Some of the interesting questions ar- 
 gued by counsel for plaintiff in error are 
 not presented by the record in a way to 
 enable this court to review them upon their 
 merits. This is notably the case with re- 
 Bpect to two important questions, al- 
 luded to by counsel for plaintiff, in his 
 brief,— that of estoppel, and that relating 
 to the rejection of the evidence of Milliron, 
 respecting the acts and admissions of the 
 plaintiff IJelow, Ludwig. 
 
 The question of estoppel is raised by the 
 fourth defense. That defense, plaintiff in 
 error claims, sets forth facts which estop 
 Ludwig from asserting his title to the 
 lands in dispute; or, at least, that he 
 ought not to be permitted to do so, even 
 if he was honestly mistaken in supposing 
 the Ma>-tin line to be the true one, until he 
 first offered to yield up to Hills the equiv- 
 alent therefor, which he still holds on the 
 west side of his farm ; and there is evi- 
 dence tending to establish this defense. It 
 isagf-avn question whether Ludwig can 
 be permitted to repudiate the Martin line 
 on one side of his land, where it cuts a 
 strip from his farm, and cling to it on the 
 other side, where it gives him a strip of 
 land that otherwise would belong to Hills. 
 The court said nothing to the jury on this 
 question that is applicable to the facts as 
 Hillsclaimsthem tobe, and there is nothing 
 in the record to show whether it was con- 
 sidered by the jury or not. This omi>ision, 
 standing alone, does not constitute error 
 for which the judgment will be reversed 
 bv this court. Taft v. Wilduiau, 1.") Ohio, 
 123: Jones v. Ohio, 20 OhioSt..34; Schryver 
 V. Hawkes, 22 Ohio, 308; Smith v. Railway 
 Co., 23 Ohio St. 10. The defendant below, 
 however, did request instructions on this 
 point which the court refused to give to 
 the jury; but these instructions, while 
 fairly applicable to a state of facts testi- 
 fied to by Hills, were not, at least, fully 
 applicable to the facts pleaded by Hills in 
 his fourth defense, and for that reason the 
 refusal was not error. In addition to this, 
 Hills, when he requested the charge on 
 this point, also requested the court to give 
 to the jury eight other propositions of 
 law, some of which, being unsound, were 
 properly refused; while others, containing 
 sound legal propositions, should have 
 been given to the jury if presented by them- 
 selves. All. however, were refused; but 
 the exception thereto being general, it 
 failed to point out to the court the error 
 of which complaint is now made, and for 
 that reason error cannot be predicated on 
 this action of the trial court. Railway v. 
 Probst, 30 Ohio St. 104 ; Everett v. Sumner, 
 32 Ohio St. 562; Powers v. Railway Co., 33 
 Ohio St. 42i). It remains apparent, how- 
 ever, that the court did not instruct the jury 
 on this point, notwithstanding its atten- 
 tion wascalledtothematter. Thoughdone 
 through the medium of an instruciiou, it 
 
ADMISSIONS. 
 
 [Case No. 30 
 
 was not error to refuse to give it to tlie jury ; 
 and it may be said that the record rHises 
 the questirjn whether it is error for the 
 court to fail to give Instructions on a 
 question involved in the trial, when, by 
 any means, its attention is directed to it. 
 The record, however, does not disclose 
 that this question was made to the trial 
 court on the motion for a new trial, or to 
 the circuit court on error; and there is 
 nothing in this case that calls for us to 
 disregard the general rule that eri'ors not 
 assigned inthecourt below will notbecon- 
 sidered here. Levi v. Daniels, 22 Ohio St., 
 38. The rule applies with special emphasis 
 to the case at bar, for the additional rea- 
 son that that omission is not especially 
 assigned in this court of error, but is in- 
 sisted on in argument only, as an error 
 appearing on the face of the record. We 
 therefore hold that the question is not 
 properly before us for review. 
 
 Kespecting the evidence of the witness 
 Milliron, it may be said that while, as a 
 general proposition of law, the pertinent 
 acts and admissions of a party are com- 
 petent evidence against him, yet, unless 
 they are offered at the proper time, it is 
 within the discretion of thecourt to admit 
 or reject them, and, unless the record dis- 
 closes an abuse of discretion, its action 
 will not be reviewed on error. Webb v. 
 State, 29 Ohio St., 3.ol. If, on the trial, Mil- 
 liron's evidence was competent at all, it 
 was evidence in chief for the defendant, 
 Hills. He did not offer it then, and, with- 
 out explaining the omission, offered it in 
 rebuttal. Under these circumstances, the 
 action ot the trial court in rejecting the 
 evidence does not appear to be erroneous. 
 
 Thetrialcourtadmitted inevidence, over 
 the objection of Hills, the record ot an ac- 
 tion broiight in 1865 by Kufus Page against 
 the plaintiff below, Ludwig. This action 
 related to the north and south line, before 
 referred to, that divided section 6 into half 
 sections, and which was run and estab- 
 lished at the same time, and was part of 
 the scheme ot the Martin survey. If that 
 line had been placed too far west by the 
 Martin survey, then the line in dispute had 
 been also placed the same distance too 
 far west. This record shows that Page, 
 under whom Hills claimed title, alleged 
 that the middle line of section 6 was too 
 far west, and that be prevailed in the ac- 
 tion. Now this allegation and adjudica- 
 tion coming to the ears of the jury could 
 not be otherwise than prejudicial to Hills; 
 and, it incompetent evidence, is error to 
 his prejudice. It is not merely an admis- 
 sion, but a sworn .statement, made by one 
 under whom Hills claims title, that the 
 line is not where Hills claims it to be. 
 Now, if it had been made while Page owned 
 the land, especially if it related to the line 
 of the land Hills afterwards bought, it 
 would have been admissible against Hills. 
 But this was not the case; it related to 
 other lands, and was made after Hills had 
 acquired his title. Page, at the time, had 
 no interest in this land of Hills, and could 
 not, by any act, admission, or statement, 
 make evidence against Hills. It was 
 therefore error to admit the record in evi- 
 dence. For the same reasons, the agree- 
 ment between Page and Liudwig, and the 
 
 record of the action between Ladwig and 
 Frey, were incompetent evidence, and 
 their admission erroneous. 
 
 The defendant below specially excepted 
 to certain propositions contained in the 
 charge of the court. These charges are 
 properly before us for review, and will now 
 be considered. Hills excepted to the rule 
 laid down by the court respecting the 
 method of retracing the line between sec- 
 tions 5 and 6. This was an important ques- 
 tion in the trial court, and might have 
 been decisive, in view of the evidence then 
 adduced; but we have no assurance that 
 the evidence at the next trial will be the 
 same that it was at the last in this respect. 
 This is a species ot evidence peculiarly lia- 
 ble to change. A new line, run even by 
 the same surveyor, upon the same prin- 
 ciple, may vary considerably from the 
 former line run bj' him, according to the 
 method approved by the court below. 
 New corners may be found, or new lines 
 run, or new facts discovered, that would 
 render the view this court might tako 
 wholly inapplicable; and, besides, the oth- 
 er principles laid down by the court are 
 Ikely to be decisive of the rights ot these 
 parties. The court charged the jury that 
 the contract or agreement by which a 
 boundary line could be established must 
 be one "that would transfer the title or 
 right of possession to defendant. Hills. " 
 The second clause of the syllabus in Bobo 
 V. Richmond, 25 Ohio St., 115, reads: "The 
 fixing of a boundary line by parol is not 
 within the operation of the statute of 
 frauds. No estate is thereby created ; but 
 where the boundary line is fixed by the 
 parties, they hold up to it by virtue of 
 their title-deeds, and not by virtue of the 
 parol transfer. " The language of the 
 charge is calculated to impress the jury 
 with the belief that an agreement to ad- 
 just and settle the boundary line must be 
 one sufficient to transfer title or right of 
 possession by its inherent force, independ- 
 ent of the acts of the parties pursuant 
 thereto. This is contrary to the syllabus 
 above quoted. Hills did not rest his de- 
 fense upon the agreement alone, but upon 
 it and the acts of the adjoining owners, 
 done pursuant thereto; and the charge 
 ought to have been as broad asthedefense 
 in this particular. 
 
 The court also charged the jury that, 
 "when the line between owners of land 
 cannot with certainty be ascei-tained, and 
 said owners, in the view of this, agree upcm 
 and establish a line, such an agreement 
 settles the line." It is claimed in argu- 
 ment that the defendant below was not 
 prejudiced by this charge, even if it is in- 
 correct, because no evidence was givn on 
 trial which tended to prove any nuch 
 agreement. To this claim it may be said 
 that what the parties t' this survey said 
 and did was before the jury, and it was 
 competent for them to determine what 
 their object was in causing it to be made. 
 Ludwig claimed their purpose was to as- 
 certain the true line; that he supposed 
 that they had done so; that he knew no 
 better for many years thereafter; and 
 that when he discovered the mistake he 
 endeavored to correct it. Hills, on the 
 other hand, claimed the purpose of the 
 
 87 
 
Case No. 30] 
 
 RELEVANCY. 
 
 survey was not to find the true line, but 
 to adjust and settle one which had long 
 been the subject of contention, and about 
 which there was then a dispute. This be- 
 ing the issue, the court, we think, placed 
 the right of adjoining proprietors to ad- 
 just and settle disputed boundaries on too 
 narrow a basis. It is not essential that 
 the disputed boundary line be Incapable 
 of ascertainment ; but if it has been the 
 subject of dispute and contention, and 
 the parties, with the view to settle the 
 dispute, agree upon and settle a line be- 
 tween their land, it Is a finality, and can- 
 not be distu)-bed, though they afterwards 
 learn that the true line could have been 
 found. Averj''s Lessee v. Baum's Heirs, 
 Wright, ,576; Walker v. Lessee of Devlin, 2 
 Ohio St., ,593. Thisview is entirely consist- 
 ent with the principle that where adjoining 
 proprietors, in attempting to find the true 
 line between them, by mistake fix upon an 
 incorrect one, they may repudiate the 
 88 
 
 spurious line at any time before the stat- 
 ute oJ limitation has run. 
 
 The court further charged the jury that 
 "this action was commenced on January 
 11, 1881. It is conceded that was 20 years 
 and 10 months after the plaintiff went out 
 of the possession of the premises ; there- 
 fore the statute of limitations does not ap- 
 ply." This stntement ignores the fact 
 that part of the lands sought to be recov- 
 ered were not described in the original 
 petition. Over 22 years had in tact elapsed 
 from the time plaintiff below ^vent out of 
 possession before he filed his amended per 
 tition, so that, as to the land then for the 
 first time included, the statute of limita- 
 tions had attached, and defendant's title 
 made perfect by lapse of time, unless the 
 amendment had a retroactive operation, 
 and went back, by relation, to the orig- 
 inal petition. This proposition, we think, 
 is not supported by either reason or au- 
 thority. Judgment reversed. 
 
ADMISSIONS. 
 
 [Case No. 31 
 
 SMITH et al. v. BOYER ot al. 
 
 (45 N. W. 265, 29 Ni-b. 76.) 
 
 Supreme Court of Nebraska. March 11, 1890. 
 
 Error to district court, Red Willow 
 ■county; CocHKAN, Judge. 
 
 R. M. Snavely and E. M. Bartlett, for 
 plaintiffs in error. G.M.Lambertsoii, Eit- 
 tenlioune & Marr, and H. W. Keyes, ior vle- 
 I'endants in error. 
 
 MAXWELL, J. On the 24tli of Septfiin- 
 lier, 1H87, the defendnnt8 executed and de- 
 livered to the First National Bauli of Indi- 
 anola and L. J . Holland a cha ttel mortgapre 
 tipon " all our general stock of merchandise, 
 cunsiKtins of dry goods, groceries, boots 
 and shoes, hats & caps, crockery, clothing, 
 notions, jewelry, safe, and show-cases, fixt- 
 ures, and all our other goods and mer- 
 •ehandise contained in the brick building, 
 store-houses, and basement, situate on lot 
 •6, block 38, in the town of Indianola, Ne- 
 braska. Also our books and book-ac- 
 -counts held and owing to us, the said firm 
 of Boyer & Davidson, on account of our 
 business in said store above named," — to 
 secure the payment of $5,336.46, of which 
 sum .f 2,000 is alleged to have been due the 
 bank, and the remainder to Holland. Tlie 
 exact value ot the property mortgaged 
 does not appear, but there is testimony 
 that the goods were ot the value ol about 
 ^12,000, while the amount due on the ac- 
 counts is not shown. On the 26th day of 
 September, 1887, the plaintiffs commenced 
 an action by attachment against the de- 
 fendants ; the grounds theretor, as stated 
 in the atfidavit tor an attachment, being 
 ■"that the defendants have sold, assigned, 
 and disposed of their property with the 
 fraudulent intent to cheat and defraud 
 their creditors, and hinder and delay them 
 in the collection of their debts, and are 
 about to sell, assign, and dispose of their 
 property with the fraudulent intent to 
 •cheat and defraud their creditors, and 
 hinder and delay them in the collection ot 
 their debts, and that they are about to 
 •convert their property into money for the 
 ipurpose of placing it beyond the reach ot 
 their creditors, and are about to sell, as- 
 sign, and dispose of a part of their proper- 
 ty with intent to defraud their creditors, 
 and have sold, assigned, and disposed of a 
 I)art of their property with the intent to 
 defraud t^eir creditors." Upon this affl- 
 <lavit being filed, and a like affidavit for 
 •garnishment, and an order of the court 
 ■obtained, part of the debt not then being 
 ■due, a writ of attachment was issued and 
 •delivered to the sheriff at 8 o'clock p. m. 
 •of said day, and returned, "not being able 
 to come at the property of Boyer and Da- 
 vidson, or James J. Boyer or Charles B. 
 Davidson, members ot said firm, claimed to 
 toe in the possession of L. J. Holland, J. W. 
 Dolan, the First Nat'l Bank," etc. No- 
 tice was served upon the persons gar- 
 nished, naming them, and requiring them 
 to appear and answer, etc. The defend- 
 ants tiled a motion, supported by affida- 
 vits, to dissolve the attachment upon sub- 
 stantially two grounds, viz., irregularity 
 in procuring the same, and because the 
 grounds upon which the attachment was 
 granted were untrue. Affidavits in oppo- 
 
 sition to and in support of the attachment 
 were thereupon filed, and on the final hear- 
 ing the attachment was discharged, and 
 the garnishees released. The dissolution 
 of the attachment is now assigned for er- 
 ror. 
 
 It seems to be conceded by the attorneys 
 for the plaintiff that the claim ot the na- 
 tional bank is bona fide, and probably 
 that of Holland. The chattel mortgage 
 seems to have been procured through the 
 instrumentality ot the latter. A debtor in 
 tailing circumstances may pay (me or more 
 of his creditors, provided he deliver him 
 no more than sufficient to pay the debt. 
 In Elvvood v. May, 24 Neb. 375, 38 N. W. 
 Rep. 793, it is said: "A creditor may ob- 
 tain from a failing debtor payment in full 
 of his claim, aiid he will not be chargea- 
 ble, upon that ground alone, of seeking 
 to defraud other creditors. Neither will 
 the fact that the claim is paid in got)ds ot 
 no greater value than the amount ot the 
 claim ot itself establish the fraudulent 
 character of the transaction. So far as 
 the testimony discloses, the defendants in 
 error were paid in goods of value not ex- 
 ceeding theamoirat ot their claims against 
 Cramer. " To the same effect, Rothell v. 
 Grimes, 22 Neb. 526, 35 N. W.Rep. 392; Lef- 
 fel v. Schermerhorn, 13 Neb. .342, 14 N. W. 
 Rep. 418; Shelly v. Heater, 17 Neb. 505, 23 
 N. W. Rep. .521. The case of Grimes v. 
 Farrington, 19 Neb. 49, 26 N. W. Rep. 618, 
 is not in conflict with these decisions, the 
 exact value of the goods .mortgaged not 
 being shown. The highest estimate in 
 that case was about $14,000, while the 
 debts secured exceeded lij9,000. It did not 
 appear that the property would sell for 
 more than the amount of the debts. 
 While a bona fide creditor has a right to 
 secure his claim, yet he has no right to tie 
 up all the property ot his debtor, where 
 all of such property greatly exceeds in value 
 the amount ot the debt secured ; in other 
 words, while he may take adequate secu- 
 rity tor his own claim , he cannot hinder and 
 delay, if not defraud, other creditors in 
 the collection of their claims by placing 
 the debtor's property beyond their reach. 
 If he do so, he violates the law prohibiting 
 fraudulent conveyances. The fact that the 
 is a creditor does not give him a license to 
 tie up property of the debtor not necessary 
 for his own security, and prevent its ap- 
 plication to the payment of other debts 
 owing by the debtor; and, if the debtor 
 assign him all his property to secure a 
 grossly inadequate debt, other creditors 
 have good cause to complain that the 
 transfer is fraudulent as to them. In the 
 case at bar the defendants had conveyed 
 'ill their property to the mortgagees. 
 Such property is shown to have been 
 greatly in excess of adequate security tor 
 the debts, and prima tucie this was sufn- 
 cient to justify an attachment upon the 
 grounds specified in the affidavit theretor. 
 Fiaud can rarely be proved by direct evi- 
 dence, and in most cases necessarily must 
 be shown by tacts and circumstances; and 
 amongthosewhichmay be proved against 
 himself are the declarations and acts of 
 the debtor while claiming an interest in 
 the proi)erty which he asserts he has con- 
 veyed. Thus in Campbell v. Holland, 22 
 Neb. 596, 3u N. W. Kep. 871, the court, by 
 
Case No. 31] 
 
 BELEVANCY. 
 
 Cobb, C. J., (|iioting from Carney v. Car- 
 ney, 7 Baxt. 284, says : " As a general rule, 
 the declarations ol a party made after he 
 has parted with his interest in the subject- 
 matter of litigation cannot be received to 
 disparage the title or right of a party ac- 
 quired in good faith previous to the time 
 of making such declarations. But this 
 very just and reasonable principle must be 
 taken as inapplicable to cases of fraudu- 
 lent sales of property. If, for example, a 
 conveyance is made absolute on its face, 
 and the vendor continues to retain pos- 
 session of the property as before, this be- 
 ing prima facie evidence of fraud, a cred- 
 itor impeaching such conveyance on the 
 ground of fraud may be admitted to prove 
 the declarations of the vendor, thus re- 
 taining the possession in relation to the 
 ownership, or the character of his posses- 
 sion of the property. " 
 A number of statements madeby Boycr, 
 / and acts done by him, shortly "after the 
 ' attachment vyas levied, and while he still 
 claimed an interest in the property, that 
 tend to support the charge that the trans- 
 fer was made to defeat certain of his cred- 
 itors, are shown by the record, while the 
 sheriff in an affidavit states "that on the 
 19th day of October, 1887, 1 had subpoenas 
 put into my hands by J. H. Berge, of In- 
 dianola, a notary public, in the above-en- 
 titled cases, and also in behalf of Nave & 
 McCord in their claim against Boyer & 
 Davidson, to subpa?.na said James J. Boyer 
 in allof said cases, and Chas. B. Davidson 
 and Matilda Davidson and others in said 
 above-entitled cai3es,to appear before said 
 notary public, and give their depositions 
 in said cases, respectively, on the 21st and 
 22d (lays of October, 1887, as shown by 
 my returns on said subprenas, and that 
 said subpoenas were received on the 19th 
 of October, 1887. That about the time 
 said subpoenas were received, said James 
 J. Boyer was here in town, but I made 
 diligent search for him, and could not find 
 him anywhere. His wife had already gone 
 away. I went to his house on the 19th 
 and on the 20th and on the 21st of October, 
 1887, and knocked at the door, and it was 
 loclted. After some talking of some per- 
 sons in the house, and after some little 
 time, L. J. Holland came to the door, and, 
 on being asked where Boyer way, said lie 
 vs^as not there, and did ncjt know where 
 he was, and that L.J. Holland was the only 
 one to be seen in the house, although affi- 
 ant did not search the house. I searched 
 diligently in the country and in this town 
 for said James J. Boyer, but could not 
 find him. I learned that he had been seen 
 90 
 
 riding his trotting horse across into Kan- 
 sas Since I received said subpoenas. I have 
 good reasons to believe that the said 
 James J. Boyer knew that said subpoena.^ 
 wrere in my hands before he left, and that 
 he secreted lilmself, and hid away from me, 
 and absconded into thestate of Kansas, ta 
 avoid the service of said subpoenas, and to- 
 avoidgiving his testimony in the above-en- 
 titled and above-mentioned cases. That 
 said Matilda Davidson left on the train on 
 the very sameday that said subpoenas were 
 placed in my hands to take her deposi- 
 tions, and as I am informed went to Den- 
 ver. The said James J. Boyer said to me, 
 about the time 1 was serving the execu- 
 tion on said oats liei'etofore mentioned, 
 that 1 would not get his horse, referring 
 to the trotting- horse which I had had or- 
 ders to serve execution against; that I 
 thought I was pretty sharp, but I would 
 not get the horse. He knew where it was,, 
 but I would not get it, and he would not 
 tell me where it was. I was told that 
 some one was seen driving that horse that 
 evening, out west of town. ^\'ent out ta 
 Steve Lyons' place, but, not finding the 
 horse there, came back. Mot said James 
 J Boyer in the road about a mile out of 
 town, and he skulked off in the weeds t(v 
 keep nie from knowiog who he was. I 
 searched diligently for the horse, but could 
 not find him. 1 verily believe, and have 
 good reasons to believe, that he was hid- 
 ing away, secreting, and concealing said 
 horse to prevent me from serving the ex- 
 ecution against it, and to prevent his cred- 
 itors from apv)ropriating it to the pay- 
 ment of their demands, and that he has 
 removed said animal out of this state with 
 intent to keep me from serving said execu- 
 tion at that time in my hands. " These 
 statements are not denied by Boyer. 
 
 In the affidavits of the defendants for 
 the dissolution of the" attachment they 
 swear to the honesty of their intentions. 
 This statement would have had much 
 greater weight if they had come into court, 
 and made a full and detailed statement of 
 their business, and the assets still in their 
 hands, if any. 
 
 Had they done so, perhaps it would 
 have been unnecessary to swear to a mere 
 conclusion, and the latter is entitled to 
 but little weight. The evidence fully sus- 
 tains the grounds for the attachment, and 
 the court eri-ed in discharging it. 
 
 The judgment of the district court is re- 
 versed, the attachment reinstated, and 
 the cause remanded for further proceed- 
 ings. Reversed and remanded. The other 
 judges concur. 
 
ADMISSIONS. 
 
 [Case No. 32 
 
 IDAHO FORWARDING CO v. FIREMAN'S 
 FUND INS. CO. 
 
 (29 Pac. 820, 8 Utah, 41.) 
 Supremo Court of Utah. April 1, 1892. 
 Appeal from district court, Weber county; 
 James A. Miner, .Justice. 
 
 Action by the Idaho For\^ardinK Company 
 against the Fireman's Fvmd Insurance (,'om- 
 panjf on an alleged contract of fire insur- 
 ance, .rudgnient for plaintiff. Delendant 
 appeals. Reversed. 
 
 Bennett, Marshall & Bradley, for appel- 
 lant. A. R. Heywood, for respondent. 
 
 ZANE, C. J. The respondent alleged in 
 its complaint that on the 1st day of Febru- 
 ary, 1889, in consideration of ?i46.20 paid as 
 premium, its stock of goods at Hailey, Idaho, 
 was insured in the sum of |2,000 by appel- 
 lant, for one year from the 13th day of the 
 same month, and that on the 2d day of the 
 following July the goods were destroyed 
 by fire. The plaintiff relies upon a con- 
 tract in prsesenti, not a contract to there- 
 after insure. Albert Kiesel, who had an 
 interest in plaintiff's business, and was man- 
 ager thereof, testified that B. M. Mallory, the 
 agent of both parties, said to him about the 
 last of January or the first of February, 
 1889, that ,$5,000 of the insurance would ex- 
 pire; that witness told him to renew the 
 insurance, and that he said he would; that 
 the policies of the North British & Mercan- 
 tile and Fireman's Fund and Commercial 
 Union were about to expire; that Mallory 
 said he would reinsure him in the Fireman's 
 Fund for $2,000, in tlie North British .t 
 Mercantile for $1,000, and in the Commercial 
 Union for $2,000. Witness also said that the 
 insurance was to be for one year, and that 
 the premium was to be $2.20 per $100. B. 
 M. JIallory, the agent of both plaintiff and 
 defendant, testified that, soon after his em- 
 ployment as bookkeeper, Albert Kiesel, man- 
 ager of the plaintiff, instructed him to re- 
 new all policies upon expiration, and to keep 
 the amount of insurance to $14,.50O, and to 
 pay premiums 60 days after issuance of 
 policies; that he was under the impression 
 that the lapsed policies had been renewed; 
 that his intention was to renew them, but 
 he negligently had allowed them to lapse; 
 that, as cashier of the plaintiff, he was au- 
 thorized to use its funds to pay premiums, 
 and was directed by plaintiffs manager to 
 do so, and to keep the insurance to $14,500. 
 The premium was not paid, but was tender- 
 ed six days after the stock of goods had been 
 consumed by fire. 
 
 The proof is that Mallory, who was 
 cashier of the plaintiff, and who was au- 
 thorized and instructed by its manager to 
 have its stock of goods insured, and who 
 was also the agent of the defendant, and 
 authorized by it to make contracts of in- 
 surance and to issue policies, neglected to 
 do as he was instructed, and what he promis- 
 
 ed plaintiff's manager he would do. He had 
 an impression, as he said, that the prop- 
 ei'ty was insured, and neglected to issue the 
 policy. He was authorized to appropriate 
 plaintiff's money, in his hands as its cashier, 
 to the payment of the premium, but neglect- 
 ed to do that. If he had done so, he would 
 have acted as plaintiff's agent in so doing. 
 At the time of the conversation, about the 
 1st of February, relied upon to establish 
 the contract declared on, insurance then on 
 the projjerty to be renewed had not expired. 
 It did not expire until the l.'ith day of that 
 month. It was the duty of ilallory, un- 
 der the instructions of plaintiff's manager, 
 to continue the risk after the old policy ex- 
 pired by reinsuring, but the evidence siiows 
 that he neglected to do this. For the fail- 
 ure to follow plaintiff's orders the defend- 
 ant cannot be held responsible. It is ap- 
 parent that Mallory failed to mal-ce the con- 
 tract that he was authorized and instruct- 
 ed by plaintiff to make. An agreement to 
 make a contract at a future day is not the 
 equivalent of the one to be made, or of a 
 present contract, though all the terms to 
 be put in the latter are agreed upon. If 
 one of the parties to the first agreement 
 refuses to bind himself when the time 
 comes, the court may compel a specific per- 
 formance of it, if from the facts it would 
 be equitable to do so; and if performance 
 is decreed a .judgment may be entered in 
 the Kami' case for the amount found to be 
 due the plaintiff on the contract, if any 
 amount is then due the plaintiff' l)y its terms, 
 or an action uiiiy be instituti'd on it if either 
 party refuses to comply with it. By the 
 language used on the 1st of Febi-uarj' the 
 defendant did not assume the risk the plain- 
 tiff" contends that he did. That language 
 had reference to insurance thereafter to be 
 made. 
 
 The plaintiff has set iip in his complaint 
 a contract in prsesenti. This action is not 
 for specific performance. Taylor v. Insur- 
 ance Co., 47 Wis. oiJU, 2 N. W. 55!l, and ."> 
 N. W. 584; Sargent v. Insurance Co., 8(i 
 N. Y. 620; Dinning v. Insurance Co., 68 111. 
 414; Markey v. Insurance C'o., 118 Mass. 
 178; Jlyers v. Insurance Co., 121 Mass. 338; 
 O'Keilly v. Corporation, 101 N. Y. 575, 5 
 N. E. 5lS. Conmiercial National Marine Ins. 
 Co. V. Union Mut. Ins. Co., 19 How. 31S, 
 cited by counsel for respondent, was an 
 equity cause to complete the specific per- 
 formance of a contract to make reinsurance. 
 The court in that case held that the bill 
 for the specific performance of the contract 
 should be maintained, and it Iraving been 
 admitted that defendants would be liable 
 as for a total loss on the policy if issued in 
 conformity with the contract, and that the 
 amount was then payable, and that no fur- 
 ther question remained to be tried, and it 
 was proper to decree the payment of the 
 money which would have been payable on 
 the policy if it had been issued. In San- 
 
 91 
 
Case No. 32] 
 
 liELEVANCY. 
 
 born V. Insui-ance Co., 16 Gray, 44S. aiul 
 Putnam v. Insurance Co., 123 ilass. 321, 
 relied upon by respondent's counsel, it was 
 lield that the evidence tended to sho^v that 
 the risk was to commence at the time the 
 <-ontracts sued on were made. The facts of 
 these cases are not analogous to the case in 
 hand. In tliem the insui-ers assiinied the 
 risk by the contracts sued on. 
 
 After the witness Albert Klesel had nar- 
 I'ated the conversation between himself and 
 ^Mallory on the 1st day of February, plain- 
 tifC's counsel propounded this questiun: 
 "Now, if you know, how long was the in- 
 surance to be?" To which counsel for de- 
 fendant objected on the ground that the 
 conclusion of the witness was called for, 
 and not the language used, or the substance 
 of it. The objection was overruled by the 
 court, and defendant excepted. This rul- 
 ing is assigned as error. The intentions of 
 the parties to contracts must be ascertained 
 from the language used in them, or in mak- 
 ing them, in the light of the surrounding 
 circumstances, and this rule applies to the 
 interpretation of verbal contracts as well as 
 . to written ones. It was improper to call 
 > for the conclusion of the witness as to the 
 term of the insurance, or as to the premium 
 to be paid. Those facts should have been 
 found from the language used by the con- 
 tractors. They could not be ascertained 
 from the inferences and conclusions of the 
 witness. 
 
 Witnesses were permitted, over the ob- 
 jections of defendant's counsel, to testify 
 to admissions of the agent, Mallory, made 
 long after the alleged contract was made, 
 to the efCect that the property was insured. 
 To the ruling of the court in overruling such 
 objections the counsel for the defendant ex- 
 cepted, and assigns the same as error. A 
 witness may testify to the language of an 
 agent in making an oral contract, bc< ause 
 such language is within the agent's author- 
 ity. Being authorized to make tlie contract, 
 his language in making it is authorized by 
 the principal. But authority to make a 
 
 92 
 
 contract does not empower the agent at a 
 subsequent time to admit away his piin- 
 cipal's rights. Tlie admissions of an agent 
 are admissible so far as the principal has 
 authorized them to be made, and no fui-- 
 ther. Greenleaf says: "But it must be re- 
 membered that the admission of the agent 
 cannot always be assimilated to the ad- 
 mission of the principal. The party's own 
 admission, whenever made, may be given 
 in evidence against him; but the admission 
 or declaration of his agent binds him only 
 when it is made during the continuance of 
 tlie agency in regard to a transaction then 
 depending, et dum fervet opus. It is be- 
 cause it is a verbal act, and part of the res 
 gestue, that it is admissible at all; and there- 
 fore it is not necessary to call the agent 
 himself to prove it." 1 (ireenl. Ev. § 113. 
 The court said in the case of Railroad Co. 
 V. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118: "Re- 
 ferring to the rule as stated by Mr. Justice 
 Story in his treatise on Agency, (section 
 134,^ that, 'where the acts of the agent will 
 bind the principal, there his representations, 
 declarations, and admissions respecting the 
 subject-matter will also bind him, if made 
 at the same time, and constituting a part of 
 the res gestic' The court, speaking by Mr. 
 Justice Strong, said: 'A close attention to 
 this rule, which is of universal acceptance, 
 will solve almost every difficulty. But an 
 act done by an agent cannot be varied, 
 qualified, or explained either by his declara- 
 tions, which amount to no more than a mere 
 narrative of a past occurrence, or by an 
 isolated conversation held, or an isolated act 
 done, at a later period. The reason is that 
 the agent to do the act is not authorized to 
 narrate what he had done, or how he had 
 done it, and bis declaration is no part of the 
 res gestae.' " For the reasons above indicat- 
 ed the court is of the opinion that the judg- 
 ment of the court below should be reversed, 
 and that a new trial should be gi-anted. 
 
 ANDERSON and BLACKBURN, JJ., con- 
 cur. 
 
ADMISSIONS. 
 
 [Case No. 3;i 
 
 OVER T. SCHIFFLING. 
 
 (26 N. B. 91, 102 Ind. 191.) 
 
 Supreme Court of Indiana. April 24. 188"). 
 
 Appeal from circuit court, Marion coun- 
 ty. 
 
 H. Bailey and G. W. Winpeuny, for ap- 
 pellant. S. Claypool, W. A. Ketcliam, and 
 B. F. Watts, for appellee. 
 
 ELLIOTT, J. The complaint of the ap- 
 pellee alleges that the ai)pellant malicioui?- 
 ly publisherl a libel; that thelibelous mat- 
 ter was contained in a letter written by 
 the latter to a corporation called the" En- 
 caustic Tile Company," by whom the ap- 
 pellee was then emiiloyed. The letter, 
 omitting the date, address, signature, and 
 formal part, is as follows : " Mr. Schiffling 
 owes me on work done on your dies, etc., 
 .$33. If you would consent to retain such 
 amount out of any money dnu him from 
 you, letmeknowby return mail. Ityou will 
 not consent to do so, 1 shall have to file a 
 mechanic's lien on the goods. He got them 
 of me by lying. First he said lie would 
 bring an order li"om you. Then, he would 
 pay cash for them before he took them 
 away. He then watched his chances, and 
 t(>ok them when the foreman was not in, 
 and now refusfs payment." It is also al- 
 leged that the appellee was dismissed 
 from the service of the corporation to 
 whom the letter was addressed, and he 
 demanded special and general damages. 
 
 The language of the letter charges the 
 appellee with having obtained property 
 by corrupt and dishonest means. It is 
 not necessary, in ordc to constitute even 
 verbal slander, much less libel, that the 
 charge that a corrupt or criminal act was 
 committed should be made indirect terms. 
 The qupstlon in such cases Is, what mean- 
 ing did the language employed convey to 
 the mind of the person to whom It was 
 addressed? Sailer v. .lenkins, 97 Ind. 430. 
 Words put in writing will often constitute 
 a libel, which, if spoken, would not con- 
 stitute actionable slander. AVe think It 
 very clear that the corporate officers who 
 received and read the letter must have un- 
 derstood that the writer charged the ap- 
 pellee with having obtained the property 
 by fraudulent means, and, thus under- 
 stood, the language was undoubtedly libel- 
 ous. Hake v. Brames, 95 Ind. 161. 
 
 The letter was not a privileged communi- 
 cation. The information it professes to 
 contain was volunteered, and the pur- 
 pose for which it was conveyed to the ap- 
 pellee's employer was solely for the benefit 
 of the writer, and was not Intended to 
 benefit the emi)loyer bj' giving him, in 
 good faith and for a just purpose, infor- 
 mation necessary for his protection against 
 a knavish servant. 
 
 . The appellant introduced Samuel Shue, 
 and after he had been examined in chief, 
 and had been cross-examined at great 
 length, and at the close of the redirect ex- 
 amination, he was asked this question : 
 "State whether or not you reported these 
 facts in reference to this matter to Mr. 
 Over." Upon objection being made, the 
 counsel made this statement: "We offer 
 ' to show that this witness communicated 
 all these facts to Mr. Over before the 15th 
 
 day of .lune, the day the letter was writ- 
 ten." In our opinion the offer was too 
 general, for we do not believe it was the 
 duty of the trial court to examine the 
 mass of testimony to determine what 
 facts were competent. On the contrary, 
 we think it was counsel's duty to specific- 
 ally state the facts which they expected 
 to show that the witness communicated C 
 to their client. There were some facts 
 stated in the testimcjny of the witness 
 that it would not have been proper to 
 communicate to the appellant, and the 
 court was not bound to analyze the testi- 
 mony, and sift out the competent from 
 tiie incompetent, 'fhis should have been 
 done by the question and offer of the coun- 
 sel. 
 
 The appellee testified that he was direct- 
 ed by the appellant to his foreman, Mr. 
 Cox, and thereupon the court permitted 
 the appellee to testify what was said to 
 him by the foreman. In this there was no 
 error. Wherea party directs another to a , 
 third person for information or direc- I 
 tions, he is bound by the statements of 
 such third person. 
 
 Our cases decide that, where the intent 
 with which an act is done becomes mate- 
 rial, it is proper to ask what it was. City 
 of Columbus v. Dahn, 36 Ind. 330; Greer v. 
 State, 53 Ind. 420; White v. State, 53 Ind. 
 595, (ride page 596;) Shockey v. Mills, 71 
 Ind. 28S; Parrish v. Thurston, 87 Ind. 437, 
 (v/depage 440.) We think that the ques- 
 tion asked the appellee, and objected to by 
 the appellant, is fairly within the princi- 
 ple declared in these cases. It is compe- 
 tent in many cases, such as cases of fraud 
 and the like, to ask a party a direct ques- I 
 tion, and we think this is an analogous 
 case. So, too, where a negative is to be 
 proved, it is often competent to ask a di- 
 rect question. The reason for this is that, 
 by proving affirmative facts to establish a 
 negative conclusion, too much ground 
 would be gone over, and too much time 
 consumed. Another reason is that there 
 are some cases where it is practically im- 
 possible to exclude every hypothesis by 
 a course of affirmative questions, and, aa 
 the law is a practical science, it some- 
 times permits a direct question and an- 
 swer upon a negative proposition. If it 
 were conceded that the court erred in 
 permitting the appellee to inquire as to 
 the aggregate amount in value of dies 
 that had been made by the Encaustic Tile 
 Company, within a designated period, no 
 available error was committed, for the 
 reason that the grounds of objection 
 were not specifically stated. But we 
 think no error was committed, for the 
 reason that the testimony tended to show I 
 the amount of the special damages sus-' 
 tained by the appellee. 
 
 The court refused to give the first in- 
 struction asked by the appellant, which 
 reads thus: "The defendant in this cause, 
 by his answer, admits that he wrote the 
 letter which is alleged to be libelous, but 
 says that the statements therein are true. 
 By tills answer the defendant only admits 
 he wrote the letter; he does nJt admit 
 that plaintiff was damaged thereby, or 
 that he was in the employ of the Encaus- 
 tic Tile Company. But the burden is on 
 the plaintiff to show that he was in the 
 
 9t 
 
Case No. 33] 
 
 RELEVANCY. 
 
 employ of the Encaustic Tile Company; 
 and that he lost said employment by rea- 
 son of said letter, and that he has been 
 damaged." It is settled by many cases 
 that, unless the instruction as prayed is 
 correct in terms, the court is not bound 
 to amend or modify it, but may rightfully 
 refuse it. Goodwin v. State, 96 Ind. 550, 
 and authorities cited. This instruction 
 was not correct in terms, for the answer, 
 by not directly controverting the allega- 
 tiim of the complaint, that the appellee 
 was employed by the Encaustic Tile Com- 
 pany, admitted It, for the failure to deny 
 is an admission of the truth of a material 
 allegation. The general scope and tenor 
 of the answer filed by the appellant is 
 that of a plea of justification, and it is by 
 its general scope and tenor that it must 
 be judged, and not by fragmentary state- 
 ments cast into it. Kimble v. Christie, 55 
 Ind. 140; Neidefer v. Chastain, 71 Ind. 363; 
 Mescall v. Tully, 91 Ind. 96; Telegraph 
 Co. V. Reed, 96 Ind. 195, (vide authorities 
 cited page 198;) Cottrell v. Insurance Co., 
 97 Ind. ;^11; City of Logansport v- Uhl, 99 
 Ind. .531. A plea of justification proceeds, 
 and can only rightfully proceed, on the 
 theory that all the material averments of 
 the complaint are admitted, and this is 
 the theory of the answer before us, and it 
 would therefore have been error to in- 
 struct the jury that it controverted caie of 
 the substantive and material averments of 
 the complaint. What we have said 
 proves that the court below did not err in 
 instructing that the answer admitted 
 that the appellee was in the employment 
 of the Encaustic Tile Company, and that 
 he was discharged from it. It is true that 
 mere allegations of value are not admit- 
 ted by a failure to controvert them, but 
 allegations of material facts are. and the 
 employment and dischai-ge of the appellee 
 were material facts. 
 
 The third instruction given by the court 
 reads thus: 'The answer, among other 
 things, charges and says that the plaintiff 
 went into the shop where the dies were 
 while the defendant's foreman was absent 
 from the shop, and, without the knowl- 
 edge or consent of the defendant, or his 
 foreman, took and carried said dies away 
 from the shop and custody of the defend- 
 ant. On this point, I instruct you that 
 if the plaintiff called or sent for the dies, 
 and if he or the pers(m whom he sent 
 found at the defendant's shop any one 
 there in charge of the shop who delivered 
 the goods or dies to the plaintiff, or to 
 any one sent by him for the dies, the law 
 will presume that, as between the public 
 and the defendant, the person so deliver- 
 ing the dies had authority to deliver the 
 dies, whether as between him and the de- 
 fendant he had authority or not; and if 
 the plaintiff simply went for or sent after 
 the dies, and got them from a person so in 
 chai-ge of the defendant's shop, the plain- 
 tiff did not get the dies away without the 
 knowledge of the defendant, within the 
 meaning of the law, even though both the 
 defendant and his regular foreman were 
 absent from the shop at the time the dies 
 were taken away. But if the plaintiff 
 watched his chances and availed himself of 
 an opportunity to go for or send after the 
 dies while the foreman was absent, for Uw 
 
 94 
 
 purpose of getting possession without first 
 paying for the dies, then that portion of 
 the letter is proved true. On the other 
 hand, if the plaintiff did not so watch his 
 chances to get the dies away, but took 
 the dies away with the consent of anyone 
 in charge of the shop, then in such case the 
 defendant has failed to prove his letter 
 true in that particular, even though the 
 regular foreman was absent at the time 
 the dies were taken away." We perceive 
 no substantial error in this instruction, 
 although it is not very well drawn. 
 
 If the principal holds out an agent or 
 servant as possessing authority to control 
 a shop or place of business, and a third 
 person acts upon the faith of the appear- 
 ances so created, the principal may, in 
 such a case as this, be bound by the acts 
 of the apparent agent within the scope of 
 his ostensible authority, although, as be- 
 tween the agent and his employer, no such 
 authority in fact existed. It would, it is 
 very clear, be unjust to impute sinister 
 motives to a third person who had ob- 
 tained an article from a person in charge 
 of a shop without deceiving such person 
 by false staten)ents. We think it was 
 proper to instruct the jury that it could 
 not ba inferred from the fact that appel- 
 lee got the dies from the agent in charge 
 of the appellant's shop that he "had 
 watched his chances," in the sense con- 
 veyed by that phrase as used in appel- 
 lant's letter. Counsel are in error in as- 
 serting that the instruction assumes to in- 
 form the jury who appellant's agent or 
 foreman was. It does not assert that any 
 particular person was or was not his 
 agent or foreman, but simply asserts the 
 general principle that placing a person in 
 charge of a shop constituted such a per- 
 son, as to third persons, an agent for the 
 performance of such duties as pertained to 
 the authority of one who in fact was 
 rightfully in charge of the shop. It left it 
 to the jury to decide whether the person 
 from whom the dies were obtained was or 
 was not the one in whose charge the shop 
 was at the time they were obtained. It 
 the appellant had desired specific direc- 
 tions given to the jury upon the subject of 
 the effect of knowledge of private instruc- 
 tions given by the principal to the agent, 
 he should have asked the court to specific- 
 ally Instruct upon that subject. We think 
 the instruction before us is good as far 
 as ir assumes to go, and, under long-set- 
 tled and often-declared rules, it must be 
 sustained. Insurance Co. v. Buchanan, 
 100 Ind. 63. Counsel assume that the plea 
 of justification was, so far as that branch 
 of it is concerned, made out by evidence 
 that appell?esecured the dies from one who 
 had no authority to deliver them, and 
 this we regard as an undue assumption. 
 The question is not whether the appellee 
 got the dies from a person having no au- 
 thority to deliver them, nor whether he 
 got them without paying for them, for 
 the language of the letter clearly imputes 
 to him a corrupt and dishonest pumose, 
 anditdevolved upon theappellantto prove 
 that this was the appellee's purpose. 
 Odger, Sland. & L. 169. A written instru- 
 ment is to be construed by the court, and 
 not by the jury. It was for the court to 
 instruct the jury as to whether the letter 
 
ABMISSIOKS. 
 
 [Case No. 3S 
 
 was or was not libelous. Gabe v. MeGin- 
 iiis, 68 Ind. 538; Young v. Clesg-, 93 Ind. 
 :J71, authorities cited page 374. It would 
 therefore have been proper for the court 
 to have even more explicitly instructed 
 the jury than it did as to what was neces- 
 sary for the appellant to prove in orderto 
 constitute a justification. 
 
 The second instruction asked by appel- 
 lant is not correct, for it asks the court 
 to say to the jury that it was their ex- 
 
 clusive province to determine from '.he 
 evidence who, if any one, was authorized to 
 deliver thediestothe plaintiff. As we have 
 seen, the question of authority involred 
 an element of law, and it would have been 
 error to leave the whole question to tlip 
 jury. It is evident that to give such an 
 instruction would mislead the jury, and 
 induce in their minds the belief that they 
 were to decide the whole question. Judj^- 
 ment afiirmed. 
 
 95 
 
Case No. 34] 
 
 RELEVANCY. 
 
 S-MITH V. SATTBRLEE et al. 
 
 (20 N. E. 225, 130 N. Y. 677.) 
 
 Court of Appeals of New York. Second Divi- 
 sion. Dec. 23, 1891. 
 
 Appeal from supreme court, general term, 
 third department. 
 
 Action by John H. Smith against John 
 Satterlee and others to recover on an as- 
 signment of a claim for services rendered. 
 Judgment for plaintiff. Defendants appeal. 
 Reversed. For former reports,' see 43 Hun, 
 C3S, uiem.; 415 Hun, 681, mem. 
 
 T. C. Cronin, for appellants. FranK Cu- 
 mesky, for resijondent. 
 
 PARKER, J. The complaint alleged an 
 indebtedness on the part of the defendant 
 to one Lutz for services rendered, and his 
 assignment of the demand to the plaintiff. 
 The answer denied any indebtedness to 
 Lutz, and averred that prior to the assign- 
 ment of Lutz's alleged claim to the plaintiff 
 he became indebted to the defendants in a 
 sum exceeding the amount for which the 
 plaintiff demanded judgment. It was not 
 disputed on the trial that Lutz rendered the 
 services for which plaintiff sought to recov- 
 er, nor their value. But the defendant at- 
 tempted to prove that Lutz was intrusted 
 with a sum of money due one Minshull, then 
 an engineer on Lutz's division; that Lutz 
 converted the money to his own use, and 
 thereafter the defendants were compelled to 
 pay Minshull such amount, ^^'hether Lutz 
 did or did not receive and retain the money 
 intended for Minshull was the only question 
 in the ease. The defendants' evidence tend- 
 ed to show a request by Lutz of the pay- 
 master for MinshuU's money; that it was 
 properly counted, put in an envelope, and 
 placed on the desk with the other pay envel- 
 opes, which were taken by Lutz to the em- 
 ployes on his division. Lutz denied having 
 
 96 
 
 received or asked for it. The defendant Sat- 
 terlee testified that Lutz admitted to hint 
 that he had received the money, but had lost 
 it, as he supposed, out of his overcoat pock- 
 et. And in further support of defendants' 
 contention it was proven that Minshull did- 
 not receive his money at the time the other 
 employes on the division received theirs, but 
 that it was paid to him by the defendants 
 about eight days later, and by check. The 
 plaintiff, against defendants' objection and. 
 exception, put in evidence a letter written 
 over a year after this action was commen- 
 ced, of which the following is a copy: "63- 
 broadway, New York, April 16th, l.'S,S4. .J. 
 H. Smith, Esq.— Dear Sir: Yours of the- 
 14th inst. is at hand, and contents noted. 
 To save cost, and stop further litigation, we 
 are willing to send you our check for fifty 
 ($50) dollars in full liquidation of your 
 claim. Please let us hear from you. Yours,, 
 etc., John Satterlee & Co." The defendants^ 
 then moved that it be stricken out, but the- 
 motiou was denied, and the exceiitions thus 
 taken are assigned for error on this review, 
 and must be sustained, because the letter 
 does not contain an admission of a fact, but 
 rather an offer of compromise, made for the 
 purpose of procuring a settlement of a pend- 
 ing controversy. Lawrence v. Hopkins, 13- 
 .Johns. 288; Marvin v. Richmond, 3 Denio, 
 58; Draper v. Hatfield, 124 Mass. 53. We 
 cannot agree with the learne<l judge at gen- 
 eral term that the judgment should not be 
 reversed because the admission of the let- 
 ter could not have affected the result. It is 
 not seen how this court can determine what 
 effect it had on the mind of the referee, who 
 admitted it as evidence, and then refused to- 
 strike it from the record. Presumably it 
 was considered in connection with the oth- 
 er evidence, which induced a finding favor- 
 able to the plaintiff'. The judgment should 
 be reversed. All concur. 
 
ADMISSIONS. 
 
 [Case No. 35 
 
 AKERS V. KIRK et al. 
 
 (18 S. B. 366, 91 Ga. 590.) 
 
 Supreme Court of Georgia. April 24, 1893. 
 
 Principal and Agent — IScope op Arexcy— Evi- 
 dence — Admissions — Harmless Error. 
 
 1. It was competent for the plaintiff to tes- 
 tify why it was that in the first instance he 
 charged the account sued upon to the defend- 
 ant's husband. 
 
 2. An agency to borrow money for the pur- 
 pose of clearing ofE liens from defendant's prop- 
 erty does not comprehend an agency to confer 
 with the holder or claimant of one of the liens, 
 and make to him declarations touching the 
 agency, the payment of the debt, the agent's 
 hopes or arrangements as to borrowing money, 
 or the purpose for which it was wanted, no ap- 
 plication for any loan being made to such hold- 
 er or claimant. 
 
 3. A conversation between the parties short- 
 ly before the trial, in which the defendant made 
 certain admissions, was not rendered inadmis- 
 sible as evidence by being brought about by 
 the plaintiff through a proposition of settlement, 
 it not appearing that the defendant's admissions 
 were made with any view to a compromise, nor 
 that any terms of settlement were mentioned 
 or discussed. 
 
 4. There being evidence tending to show 
 that the defendant's father had authority from 
 her to borrow money for the discharge of the 
 debt sued for in this action, his declarations to 
 persons to whom he applied for loans, as to the 
 purpose for which the money was wanted, were 
 admissible in evidence, the purpose so declared 
 being within the scope and object of the author- 
 ity, so far as the debt now in controversy is 
 concerned. 
 
 5. There being no contest as to the owner- 
 ship of the premises, it was immaterial who fur- 
 nished the money to pay for them. 
 
 6. Recovery may be had upon evidence that 
 the party sought to be charged was the conceal- 
 ed principal of a person who acted in his own 
 name without disclosing his agency, though this 
 fact be not alleged in the pleadings. If the ob- 
 jection was a good one to the evidence, it should 
 have been presented and insisted upon when the 
 evidence was offered, so that the declnration 
 "ould be amended and made specific as to the 
 mode in which the contract between the plain- 
 tiff and the defendant was created. 
 
 7. Where the verdict undoubtedly repre- 
 sents the natural equity and sound justice of 
 the case, and there is enough legal evidence to 
 support it, the admission of some illega,l evi- 
 dence in behalf of the prevailing party will not 
 render a new trial indispensable. Both the trial 
 court and the reviewing court being satisfied, 
 the verdict must stand. 
 
 (Syllabus by the Court.1 
 
 Error from superior court, Fulton county; 
 M. J. Clarke, Judge. 
 
 Action by Thomas Kirk & Co. against 
 Ella Akers. There was a verdict for plain- 
 tiffs, and a new trial denied. Defendant 
 brings error. Affirmed. 
 
 The following is the official report: 
 
 Kirk iSc Co. sued ilrs. Akers upon an 
 account, and also to foreclose a lien as con- 
 tractors and material men for work done 
 on. and material furnished for the repairing 
 and building of a certain house belonging 
 to Mrs. Akers. The petition alleged that the 
 lien was filed within 30 days after the work 
 was completed and the material furnished; 
 and that the suit was brouglit within less than 
 12 months from the time the work was done 
 and material furnished, and also within 12 
 months from the time the debt became 
 ■wiLeus.BV.— 7 
 
 due. The account attached to the declara- 
 tion ran from July TM to November 10th, 
 but the year was not stated. The lien was 
 recorded December 28, 1880. Defendant 
 pleaded "not indebted;" that she made no 
 contract with plaintiffs; that they did not 
 file their lien within the time allowed by 
 law and alleged in the declaration; and that 
 they took personal secm-ity for their debt. 
 Plaintiffs obtained a verdict, and defend 
 ant's motion for a new trial was overruled, 
 to which she excepts. Her motion contained 
 the general grounds that the verdict was 
 contrary to law, evidence, etc.; also that the 
 court refused to nonsuit plaintiffs on mo- 
 tion of defendant; that no case was made 
 out against her, bxit against her husband, 
 G. W. Akers, for which she was not shown 
 to be responsible, which refusal to nonsuit 
 was error. Error in allowing plaintiff, over 
 defendant's objection, to testify: "We 
 charged the account to G. W. Akers, because 
 we supposed he owned the house, and the 
 house was good for it." Defendant objected, 
 because the lot was not responsible for the 
 improvements, unless the owner procured 
 the improvements, or subsequently ratified 
 them. Because the court permitted plaintiff 
 to testify: "I have had a conversation with 
 her (llrs. Akers') father since the work was 
 doni', in reference to Mrs. Akers paying 
 the debt." Defendant objected on grounds 
 of irrelevancy, and that her father could 
 not bind her. Also because the court per- 
 mitted plaintiff to testify: "Her fathrr, as 
 near as I can remember, came into my store 
 a month or two after the lien was filed, 
 and he stated to me that he hpped to settle 
 this account in a very short time. He was 
 making arrangements, I think, with Mrs. 
 Healy to borrow money; and he hoped it 
 would be aU satisfactory, and in a very short 
 time he would pay the account." Defendant 
 obje;'ted because the court permittc^d plaintiff 
 to testify: "He LT. J. Shepherd, defendant's 
 father] wanted it [the money he was ti'ying to 
 borrow] to pay us for the work done on 
 the house." Defendant objected on the 
 ground that the testimony was irrelevant, 
 and, further, that the promise, if any, on 
 Mrs. Akers' part to pay G. W. Akers' debt 
 should be in writing. Because on cross- 
 examination of plaintiff he testified: "This 
 morning Mrs. Akers and her father were 
 sitting together, and he went out, and 1 
 went in and took a seat by her, and said 
 'could not this in some way be settled,— this 
 case be settled,— and then this other con- 
 versation occurred,' meaning her admission 
 testified to previously by plaintiffs, to wit, 
 'Mrs. Akers said that her father was trymg 
 to borrow the money to pay the debt off.' " 
 ■\^'hen plaintiff so testified, defendant moved 
 to exclude the conversation aU'eady testi- 
 fied to by plaintiff, and set out above, on 
 the ground that whatever occurred or was 
 admitted in said conversation could not be 
 received against defendant on this ti-ial as 
 
 97 
 
Case No. 35] 
 
 KELEVANCY. 
 
 It (tho conversation) was looking to a com- 
 promise. Because the com't admitted tlie 
 recorded lien. Defendant objected on the 
 grounds tliat the lien offered was recorded 
 about CO days after the last item sued on, 
 and the petition set up that tho I'eu claimed 
 was recorded within 30 daj-s of the last 
 item, and that the allegata and probata did 
 not agree; that the substantial part of the 
 material sued for, to wit, the blUs of August 
 13th and July 23d, was furnished over 90 
 days prior to the record of the lien ofCeved; 
 and that no connection was shown between 
 the items of August 13th and July 23(1, and 
 the remaining material or items. Because 
 the court permitted a witness, J. A. Scott, 
 to testify: "I think he [T. J. Shepherd] 
 wanted to pay certain debts with it. He 
 wanted to borrow it for his daughter." De- 
 fendant objected on the grounds that there 
 was nothing binding on Mrs. Akers in this 
 testimony and that it was irrelevant. Be- 
 cause the court permitted Scott to testify: 
 ■"Mr. Shepherd stated that he wanted to 
 remove the liens that were on the property; 
 that was what he wanted with the money." 
 Defendant objected on the grounds that no 
 connection was shown with Mrs. Akers, and 
 that it was irrelevant. Because the court 
 refused to permit defendant to show who 
 furnished the consideration for the lot 
 sought to be subjected to the lien of plain- 
 tiffs. As plaintiffs set up that Mrs. Akers 
 and Mr. Akers were concealing an agency, 
 this evidence was proper. Because the court 
 permitted plaintiffs, in rebuttal, to prove by 
 a number of witnesses the length of time 
 Mrs. Akers was around the improvements, 
 and the extent to which she exercised super- 
 vision. The error alleged was that plaintiffs 
 had gone into all this kind of evidence la 
 making out their case, and It was not legally 
 or properly in rebuttal. Because petitioner 
 alleged a contract and debt with Mrs. Akers, 
 but the evidence only tended to establish a 
 concealed principal, which was not alleged. 
 Because the allegations of the petition and 
 the evidence introduced thereunder do not 
 agree. 
 
 So far as material, the evidence for plain- | 
 tiff was: The materials mentioned in the \ 
 account went into the house, which belonged 
 to Mrs. Akers. At the time plaintiffs were ; 
 making the improvements they thought the \ 
 house belonged to Akers. Akers came to , 
 them, and ,?ot them to do the work, and they ; 
 charged the account to him, because they 
 supposed he owned the house, and the house 
 was good for it. They completed the job, 
 and have never been paid for it. Since the 
 work was done, plaintiff Kirk had a conver- 
 sation with Mrs. Akers' father, Sheplierd, 
 in reference to Mr.s. Akers piiying the debt. 
 1'nis was a month or so after tho lien was 
 tiled. Her father came into the store, and 
 •Stated that he hoped to settle the account? 
 in a very short time. He was making ar- 
 rangements, Kirk thought, with Mrs. Healy 
 
 98 
 
 to borrow money, and hoped it would be all 
 satisfactory, and hi a very short time he 
 would pay the account. Kirk did not think 
 he stated whom he was trying to borrow the 
 n\oney fur, onlj' that he wanted to pay off 
 the debt. Dirt not think he mentioned his 
 daughter's name. He said he wanted it to 
 pay plaintiffs for the work done on the 
 house. Kirk had a conversation with Mrs. 
 Akers in reference to that conversation with 
 her father, and she said that her father was 
 trying to borrow the money for her to pay 
 off what she owed plaintiffs. When the 
 goods were sold, Akers belonged to a firm 
 which stood well, and plaintiffs were per- 
 fectly willing to sell goods to Alters, and 
 never asked Jlrs. Akers whether he owned 
 the lot or not, nor inquired of any person 
 in whom was the title to the lot, supposing, 
 of com-se, that the house would be good 
 for the improvements. They gave the credit 
 to Akers and the lot and house combined, 
 supposing he owned the house, and that the 
 house was good for it. Did not see Mrs. 
 Akers at all in the transaction. There are 
 one or two articles in the account charged 
 to Mrs. Alcers,— part of a gas fixture, one 
 or two of the small articles she might have 
 pm-chased. Tlie goods were not sold on the 
 credit of ISIrs. Akers, and she did not enter 
 into the computation at all. Plaintiffs after- 
 wards claimed the money from her, because 
 they found out she owned the lot and house. 
 The last item of the account went on the 
 house. The morning of the trial IMrs. xVkers 
 and her father were sitting together, and 
 he went out, and Kirk took a seat by her, 
 and said in some way this case can be set- 
 tled, and then the conversation with her 
 occurred. Kirk thought if the.y could ar- 
 range it without going to a trial he preferred 
 to do so,— meant it should not go to trial if 
 she coidd pay up, and not have a trial. He 
 did not know, of coiu'se, whether she would 
 or not. Had no idea of compromise at all. 
 She told him that her father had been try- 
 ing to borrow the money to pay this debt, 
 but she did not know why he did not suc- 
 ceed. There was no written contract to tni- 
 nish the material, nor was there a contract 
 with anybody, except a verbal one of Akers. 
 Mr. Akers came and made the trade to get 
 a stove from plaintiffs, and Mrs. Akers 
 paid for it the following .Tune. Akers left 
 Georgia some time in December, ISS'J, or 
 January, 1890. Kirk thought he saw Mrs. 
 Akers down at the house, and that she might 
 have been down in the store, but was not 
 certain that she was in the store.^ Scott tes- 
 tiflod that Shepherd wanted to borrow some 
 money on the property from Healy for 
 Shepherd's daughter to pay certain debts' 
 with it, saj-ing he wanted to remove the 
 liens that were on the property; and Shep- 
 herd put into Scott's hands deeds to the lot 
 in question for examination. Shepherd also 
 tried to borrow of Wellhouse money on the 
 property, to pay off the balance due on it. 
 
ADMISSIONS. 
 
 [Case No. 35 
 
 and left a deed at WoUhouse's. Sliepherd 
 stated to WoUliouse tlmt he wanted to bor- 
 row the money for his daughter. The rtiinKli- 
 ter herself never appUed to Wellhouse for a 
 loan. There was evidence also that Mrs. 
 Aliers was at the house during part of the 
 time that the work was being done; saw it 
 done, and directed some changes to be made. 
 For the defendant there was testimony 
 that she was absent from Atlanta during the 
 time the improvements \vere being made, 
 and when she retmmcd it was all complete, 
 and she directed no changes. She did not 
 iigree witli anybody to iiialce tlie iniiirove- 
 m(>nts, and linew notliing about them. She 
 did not make anybody her agent.s to have 
 the improvements made. Her husband was 
 not her agent, and she never had any con- 
 versation with him in which he said he was 
 going to act as her agent, or anything of that 
 kind. She had no notice of any purchases 
 to be made, knew nothing about build- 
 ing liousos, did not employ any workmen 
 to assist in the work, and bought no mate- 
 rial. First saw Kirk the morning of the 
 ti'ial, and did not remember ever purchasing 
 anything from him. Did not buy the stove, 
 but did pay for it; but never gave any prom- 
 ise to pay for any other part of the debt. 
 In the conversation with Kirk the morning 
 of the trial he asked her if there was any 
 way the matter could be settled. She told 
 him she did not know, as she knew nothing 
 of it in any way, having been absent from 
 the city. She could not teU an.v thing 
 about It. She told him she believed she 
 had heard something of it, but did not 
 know anything about it, and could not tell 
 him anything more. She did not say any- 
 thing about her father. His name was not 
 mentioned. Her father was never appoint- 
 ed by her as her agent in any capacity, and 
 she had no knowledge of any transactions 
 he may have had. She has one or two 
 gentlemen in Atlanta who attend to the 
 rents of the place. Her father looks after ' 
 the business sometimes. Work had .just : 
 begun on the house before she went away. | 
 She did not know they were going to re- ! 
 build the house and enlarge it. She had \ 
 not talked it over with her husband. Some j 
 time afterwards, — a good while,— «he heard 
 him speak of it, but did not know for cer- 
 tain it was going to be done. Did not 
 know they were going to improve the house. 
 Knew they had commenced it before she 
 left, but did not know it was going to be 
 done. Did not talk to her husband in ref- 
 erence to what was going to be done to the 
 house. Asked no questions as to what was 
 going to be done. Has had her deed to the 
 land in her hands a long time,— longer than 
 six months. Does not remember when she 
 gave it to her father, nor how long it was 
 after the suit was brought. Her father at- 
 tended to some of that business of borrowilig 
 money for her. He was in Atlanta, looking 
 after her business for her. "In this mat- 
 
 ter, sometimes,— I suppose so— As I was 
 not here, I don't know anything about it. 
 I don't remember whether I turned over 
 my deed to my father, and told him to do 
 the best he could with it, or not." Defend- 
 ant is using the property since the improve- 
 ments have been put upon it, and her hus- 
 band has notliing to do with it, having left 
 Georgia some time ago. "I don't know 
 what I gave father the deed for. I guess 
 he— Nothing." "Don't know whether I let 
 him have it to come to Atlanta and negoti- 
 ate a loan to pay offl this indebtedness on 
 my property or not. Father sorter over- 
 sees my property sometimes. Since my 
 Imsband loft, some of the time father has 
 been in charge of my affairs, and I sup- 
 pose he is here now looking after this suit." 
 "There has been several thousand dollars of 
 improvements put upon the house, and I 
 have not paid one dollar for it." Shepherd 
 testified that Akers, in a letter, told him 
 he (Akers) owed some parties for material 
 furnished and labor done in repairing or 
 remodeling the house, and would like to 
 have Shepherd assist Mrs. Akers in trying to 
 get some money to pay off the indebted- 
 ness, suggesting that he thought Shepherd 
 could get some money from Healy, Well- 
 house, or others; that he thought, with 
 Shepherd's assistance, he could borrow the 
 money. Shepherd came to Atlanta for that 
 purijose, and saw several parties with a 
 view of getting the money, but was informed 
 that the claims against the propert.v amount- 
 ed to so much that "we" abandoned the 
 idea. Mrs. Akers did not do anything. Wit- 
 ness talked with her, advised with her. She 
 did not want to incumber the property with 
 a mortgage, and no agreement was ever 
 reached from her to mortgage, that witness 
 ever Icnew of. They were considering the 
 propriety of the thing when witness went 
 to try to get the money to relieve the house 
 of a debt which he believed Akers owed. 
 ^^'itness did not recognize that Mrs. Akers 
 owed anything. The debts were against 
 Alcers. Mrs. Akers never constituted wit- 
 ness as her agent to negotiate. They ad- 
 vised together in reference to borrowing 
 this money, and witness attempted to bor- 
 row it,— was attempting to borrow it upon 
 her property; that is what they were con- 
 sidering. The ob.1ect was to take the liens 
 off the property. Witness does not know 
 what facts constitute an agency. Mrs. Akers 
 wanted the parties paid for the work done 
 on the building, but is not herself able to 
 do it. She owns the property, with a 27- 
 room house upon it, etc. 
 
 Mayson & Hill, for plaintiff in error. W. 
 J. Albert, for defendants in error. 
 
 BLECKLEY, C. J. The headnotes, to- 
 gether with the official report of the facts, 
 will render the rulings made in this case 
 sufficiently intelligible. There can be no 
 doubt that the verdict of the jiu-y repre- 
 
Case No. 35] 
 
 UELEVANCY. 
 
 sonts the natural equity and sound justice 
 of the case. The legal ground on whuh the 
 ■verdict rests is that .Mrs. Aker.-; was the 
 concealed principal ot her husband; and 
 that, although the credit was originally given 
 to the latter by Kirk & Co., this was done 
 in ignorance of the agency and of the true 
 ownership of the property. There was 
 enough legal evidence that such was the 
 real truth of the case to upliold the verdict. 
 That some illegal evidenre was arlmitted 
 does not render a new trial indi.-iiiensable. 
 To every lover of .justice the verdict al- 
 ready found is more sali-sfactory than would 
 be one o( an opposite nature. It is impos- 
 sible not to feel that, as Mrs. Akers, not 
 her husband, obtained the benefit, she or 
 her property ought to answer for it, rather 
 100 
 
 than Kirk & Co. should luse their money. 
 Where all the consideration of a debt reaches 
 a wife as an accession to her separate estate, 
 and she retains and en.ioys it, only slight evi- 
 dence of the husband's agenc;v in contracting 
 the debt is required to charge her. We have 
 examined many ad.iurtirations upon some- 
 what similar cases, but it is needless to cite 
 them; for, while some of them v,<iuld make 
 for us, they are balanced by others of an op- 
 posite tendency. We jirefer to rest the 
 case on principle and its own facts. Both 
 the trial court and the reviewing court are 
 content with the verdict. This being so, 
 we decline to order a new trial for sli.ght 
 errors immaterial to the result on the actual 
 merits of the controversy. Judgment af- 
 firmed. 
 
 ^ 
 
CONFESSIONS, 
 
 [Case No. 3G 
 
 HOPT T. PEOPLE OF THE TERRITORY 
 OF UTAH. 
 
 (4 Sup. Ct. 202, 110 U. S. 574.) 
 
 Supreme Court of the United States. March 3. 
 1884. 
 
 In error to the supreme court of the terri- 
 tory of Utah. 
 
 Thos. J. Marshall, for plaintiff in error. 
 Asst. Atty. Gen. Maury, for defendant in er- 
 ror. 
 
 HARLAN, J. The plaintiff in error and 
 one Emerson were jointly indicted in a court 
 of Utah for the murder, in the first degree, 
 of John F. Turner. Each defendant demand- 
 ed a separate trial, and pU^adetl not guilty. 
 Hi'pt, beint,' found guilty, was sentenced to 
 suffer death. The judgment was affirmed by 
 the supreme court of the territory. But, upon 
 writ of error in this court, that judgment 
 was reversed, and the case remanded, with 
 instructions to order a new trial. 104 U. S. 
 631. Upon the next trial, the defendant be- 
 ing found guilty, was again sentenced to 
 .suffer death. That judgment was affirmed 
 \>y the supreme court of the territory. We 
 are now !-e<iuired to determine whether the 
 court of oi'iginal jurisdiction in its conduct 
 of the last trial committed any error to the 
 prejudice of the substantial rights of the de- 
 fendant. 
 
 1. The validity of the judgment is question- 
 ed upon the ground that a part of the pro- 
 ceedings in the trial court were conducted in 
 the absence of the defendant. The Criminal 
 • Jode of Procedure of Utah, § 218, provides 
 that "if the indictment is for a felony the 
 defendant must be personally present at the 
 trial; but if for a misdemeanor the trial may 
 be had in the absence of the defendant; if, 
 however, his presence is necessary for the 
 purpose of identification, the court may, upon 
 application of the prosecuting attorney, by 
 an order or warrant, require the personal 
 attendance of the defendant at the trial." 
 The same Code provides that a juror may be 
 challenged by either party for actual bias; 
 that is, "for the existence of a state of mind 
 which leads to a just inference in reference 
 to the case that he will not act with entire 
 impartiality." Sections 239, 241. Such a 
 challenge, if the facts be denied, must be 
 tried by three impartial triers, not on the 
 juiy panel, and appointed by the court. Sec- 
 tion 246. The juror so challenged "may be 
 examined as a witness to prove or disprove 
 the challenge, and must answer every ques- 
 tion pertinent to the inquiry." Section 249. 
 •'Other witnesses may also be examined on 
 either side, and the rules of evidence ap- 
 plicable to the trial of other issues govern 
 the admission or exclusion of evidence on 
 the trial of the challenge." Section 250. "On 
 the trial of the challenge for actual bias, 
 when the evidence is concluded, the court 
 must instruct the triers that it is their duty 
 
 to find the challenge true, if in their opinion 
 the evidence waiTants the conclusion that the 
 juror has such a bias against the party chal- 
 lenging him as to render him not Impartial, 
 and that if from the evidence they believe 
 him free from such bias they must find the 
 challenge not true; that a hypothetical opin- 
 ion on hearsay or information supposed to be 
 true Is of itself no evidence of bias suffi- 
 cient to disqualify a juror. The court can 
 give no other instruction." Section 2.j2. 
 "The triei-s must thereupon find the challenge 
 either true or not true, and their decision is 
 final. If they find it tnie the juror must be 
 excluded." Section 253. 
 
 It appears that six jurors were separately 
 challenged by the defendant for actual bias. 
 The grounds of challenge in each case were 
 denied by the district attorney. For each ju- 
 ror triers were appointed, who, being duly 
 sworn, were, "before proceeding to try the 
 challenge," instructed as required by section 
 252 of the Criminal Code; after which, in 
 each case, the triers took the juror from the 
 court-room into a different room and tried 
 the grounds of challenge out of the presence 
 as well of the court as of the defendant and 
 his counsel. Their findings were returned 
 into court, and the challenge, being found 
 not true, th6 jurors so challenged resumed 
 their seats among those summoned to try 
 the case. Of the six challenged for actual 
 bias, four wei-e subsequently challenged by 
 the defendant peremptorily. The other two 
 were sworn as trial jurors, one of them, how- 
 ever, after the defendant had exhausted all 
 his peremptory challenges. No objection was 
 made to the triers leaving the court-room, 
 nor was any exception taken thereto during 
 the trial. The jurors proposed were exam- 
 ined by the triers, without any testimony be- 
 ing offered or produced, either by the prose- 
 cution or the defense. 
 
 It is insisted, in behalf of the defendant, 
 that the action of the court in permitting the 
 trial in his absence of these challenges of 
 jurors was so irregular as to vitiate all the 
 subsequent proceedings. This point is well • 
 taken. The Criminal Code of Utah does not 
 authorize the ti'ial by friers of grounds of 
 challenges to be had apart from the court, 
 and in the absence of the defendant. The 
 specific provision made for the examination 
 of witnesses "on either side," subject to the 
 rules of evidence applicable to the trial of 
 other issues, shows that the prosecuting at- 
 torney and the defendant were entitled of 
 right to be present during the examination 
 by the triers. It certainly was not contem- 
 plated that witnesses should be sent or 
 brought before the triers without the party 
 producing them having the privilege, under 
 the supervision of the court, of propounding 
 such questions as would elicit the necessary 
 facts, or without an opportunity to the op- 
 posite side for cross-examination. These 
 views find some support in the further pro- 
 vision making it the duty of the court "when 
 
 101 
 
Case No. 36] 
 
 RELEVANCY. 
 
 the evidence is concluded," and before the 
 triers make a finding, to instruct tliem as to 
 their duties. In the case before us tlie in- 
 structions to the triers were given before the 
 latter proceeded vs^ith the trial of the chal- 
 lenges. But all doubt upon the subject is re- 
 moved by the express requironient, not that 
 the defendant may, but, where the indict- 
 ment is for a felony, must be, "personally 
 present at the trial." The argument in be- 
 half of the government is that the trial of 
 the indictment began after, and not before, 
 the jury was sworn; consequently that the 
 defendant's personal presence was not re- 
 quired at an earlier stage of the proceedings. 
 Some wari'ant, it is supposed by counsel, is 
 found for this position in decisions constru- 
 ing particular statutes in which the Avord 
 "trial" is used. Without stopping to distin- 
 guish those cases from the one before us, or 
 to examine the grounds upon which they are 
 placed, it is sufficient to say that the pur- 
 pose of the foregoing provisions of the Utah 
 Criminal Code is, in prosecutions for felonies, 
 to ijrevent any steps being taken in the ab- 
 sence of the accused, and after the case is 
 called for trial, which involves his substan- 
 tial rights. The requirement is not that he 
 must be personally present at the trial by 
 the jury, but "at the trial." The Code, we 
 have seen, prescribes grounds for challenge 
 by either party of jurors proposed. And pro- 
 vision is expressly made for the "trial" of 
 such challenges, some by the court, others by 
 triers. The prisoner is entitled to an impar- 
 tial jury composed of persons not disqualified 
 by statute, and his life or liberty may depend 
 upon the aid which, by his personal presence, 
 he may give to counsel and to the court and 
 triers, in the selection of jurors. The neces- 
 sities of the defense may not be met by the 
 presence of his counsel only. For every pur- 
 pose, therefore, involved in the requirement 
 that the defendant shall be personally pres 
 ent at the trial, where the indictment is for 
 a felony, the trial commences at least from 
 tjie time when the work of impaneling the 
 Jury begins. 
 
 But it is said that the right of the accused 
 to be present before the triers was waived 
 by his failure to object to their retirement 
 from the court-room, or to their trial of the 
 several challenges in his absence. "We are 
 of opinion that it was not within the power 
 of the accused or his counsel to dispense 
 with statutory requirements as to his per- 
 sonal presence at the trial. The argument to 
 the contrary necessarily proceeds upon the 
 ground that he alone is concerned as to the 
 mode by which he may be deprived of his life 
 or liberty, and that the chief object of the 
 prosecution is to punish him for the crime 
 charged. But this is a mistaken view as well of 
 the relations which the accused holds to the 
 public as of the end of human punishment. 
 The natural life, says Blackstone, "cannot 
 legally be disposed of or destroyed by any 
 individual, neither by the person himself, 
 102 
 
 nor by any other of his fellow creatures mere- 
 ly upon their own authority." 1 Bl. Comm. 
 133. The public has an interest in his life 
 and liberty. Neither can be lawfully taken 
 except in the mode prescribed by law. That 
 which the law makes essential in proceedings 
 involving the deprivation of life or liberty 
 cannot be dispensed with, or affected by the 
 consent of the accused, much less by his 
 mere failure, when on trial and in custody, 
 to object to unauthorized methods. The great 
 end of punishment is not the expiation or 
 iitonement of the offense committed, but the 
 prevention of future offenses of the same 
 kind. 4 Bl. Comm. 11. Such being the rela- 
 tion which the citizen holds to the public, 
 and the object of punishment for public 
 wrongs, the legislature has deemed it essen- 
 tial to the protection of one whose liie or lib- 
 erty is involved in a prosecution for felony 
 that he shall be personally present at the 
 trial; that is, at every stage of the trial when 
 his substantial rights may be affected by the 
 proceedings against him. If he be deprived 
 of his life or liberty without being so present, 
 such deijrivation would be without that due 
 process of law required by the constitution. 
 For these reasons we are of opinion that it 
 was error, which vitiated the verdict and 
 judgment, to permit the trial of the chal- 
 lenges to take place in the absence of the ac- 
 cused. 
 
 2. Another assignment of error relates to 
 I the action of the court in permitting the sur- 
 geon — who had made a post mortem exam- 
 ination of the body of a corpse which was 
 claimed by the prosecution to be that of John 
 F. Turner — to state that one Fowler identi- 
 fied the body to him. The surgeon testified 
 that the body examined by him was on the 
 platform at the railroad depot in Salt Lake 
 City, in a wooden case and coffin. The father 
 of the deceased testified that he did not com- 
 municate personally with the surgeon, nor 
 see that his sou's body was delivered to him; 
 that he left it at the railroad depot in Salt 
 Lake City, in a wooden coffin, inclosed in a 
 box; and the fact that the body of the de- 
 ceased was originally placed in such a cof- 
 fin was proved by a witness who put it in 
 the coffin. And yet there was testimony 
 showing that there was a body in the same 
 depot, at or about the time referred to by the 
 surgeon, which, having been placed in a me- 
 tallic case covered by a wooden box, had 
 been shipped from Echo, by rail to Salt Lake 
 City; also that it showed injuries "generally 
 similar" to those described by the surgeon. 
 Were there two bodies of deceased persons, 
 at the same depot, about the same time, one 
 "in a wood coffin inclosed in a box," and the 
 other, "in a metallic case covei'ed by a wooden 
 box?" There would be some ground to so 
 contend did not the bill of exceptions, in its 
 reference to the body shipped from Echo in 
 a metallic case, imply that there was testi- 
 mony showing it to be the one that "had been 
 identified as the body of the deceased, John 
 
CONFESSIONS. 
 
 [Case No. 36 
 
 F. Turner." Tlie confusion npon the sub- 
 ject, arises from tbe failure to state tliat the 
 body which the father of the deoeased left at 
 the railroad depot was the same as that ship 
 ed from Echo to Salt Lake City. It was, 
 perhaps, to this part of the case the court re- 
 ferred when, in the charge to the jury, it 
 said that the prosecution "has introduced a 
 vast amount of circumstantial evidence." Be 
 this as it may, it was a material auestiou be- 
 fore the jury whether the body examined by 
 the surseon was the same one that the father 
 of the de<-easo(l had left at the depot, and 
 therefore the body of the person for whose 
 murder the defendant and Hmerson were in- 
 dicted. If it was not, then all that he said 
 was inmiaterial. If it was, (the evidence oth- 
 erwise connecting defendant with the death 
 of John F. Turner,) the statements of that 
 witness as to the condition of the corpse, the 
 nature of the injuries— whether necessarily 
 fatal or not— observable upon the body ex- 
 amined by him, and how the blows, apparent 
 upon inspection of it, were probably intlicted, 
 became of great consequence in their bearing 
 upon the guilt or innocence of the defendant 
 of the crime of murder. 
 
 No proper foundation was laid for the ques- 
 tion propounded to the surgeon as to who 
 pointed out and identified to him the body he 
 examined as that of .lohn F. Turner. il(> had 
 previously stated that he did not personally 
 know the deceased, and did not recognize the 
 body to be his; he did not know that it was 
 the body which the father of deceased de- 
 sired him to examine; consequently his an- 
 swer could only place before the jury the 
 statement of some one not under oath, and 
 who, being absent, could not be subjected to 
 the ordeal of a cross-examination. The ques- 
 tion plainly called for hearsay evidence, 
 which, In its legal sense, "denotes that kind 
 of evidence which does not derive its value 
 solely from the credit to be given to the wit- 
 ness himself, but 'rests, also, in part, on the 
 veracity and competency of some other per- 
 son." 1 Greenl. Ev. § 99; 1 Phil. Ev. 169. 
 The general rule, subject to certain well-es- 
 tablished exceptions as old as the rule itself, 
 — applicable in civil cases, and therefore to be 
 rigidly enforced where life or liberty are at 
 stake,— was stated in Mima Queen v. Hep- 
 burn, 7 Cranch, 295, to be, "that hearsay 
 evidence is incompetent to establish any spe- 
 cific fact, which fact is in its nature suscep- 
 tible of being proved by witnesses who speak 
 from their own knowledge." "That this 
 species of testimony," the court further said, 
 speaking by Chief Justice Marshall, "sup- 
 posed some better testimony which might be 
 adduced in the particular case is not the sole 
 ground of its exclusion. Its intrinsic weak- 
 ness, its incompetency to satisfy the mind of 
 the existence of the fact, and the frauds 
 which might be practiced under its cover, com- 
 bine to support the rule that hearsay evidence 
 is inadmissible." The specific fact to be estab- 
 lished by proof of what some one else said 
 
 to the surgeon as to the Identity of the body 
 submitted to his examination was that it was 
 th(' body of John F. Turner. What Fowler— 
 who was not even shown to have been placed 
 in charge of the body, nor commissioned to 
 deliver it to the surgeon, nor to be acquainted 
 with the deceased— said, in the absence of; 
 the prisoner, as to the identity of the body,! 
 was plainly hearsay evidence, within the rulel 
 recognized in all the adjudged cases. As such> 
 it should, upon the showing made, have been 
 excluded. 
 
 3. The next assignment of error relates tO' 
 that portion of the charge which represents 
 the court as saying: "That an atrocious and 
 dastardly murder has been committed by 
 .some person is apparent, but in your delibera- 
 tions you should be careful not to be influ- 
 enced by any feeling." By the statutes of 
 Utah, "murder perpetrated by poison, lying 
 in wait, or any other kind of willful, deliber- 
 ate, malicious, or premeditated killing, or 
 committed in the perpetration of or attempt 
 to perpetrate, any arson, rape, burglary, or 
 robbery, or perpetrated from a premeditated 
 design unlawfully and maliciously to effect 
 the death of any other human being other 
 than him who is killed, or perpetrated by any 
 act greatly dangerous to the lives of others 
 and evidencing a depraved mind regardless 
 of human life, is murder in the first degree; 
 and any other homicide committed under 
 such circumstances as would have constitut- 
 ed murder at common law, is murder in the 
 second degree." Comp. Laws Utah 1873, p. 
 .58.5. The punishment of murder in the first 
 degree is death, or, upon the recommendation 
 of the jury, imprisonment at hard labor in 
 the penitentiary at the discretion of the court, 
 while the punishment for murder in the sec- 
 ond degree is imprisonment at hard labor in 
 the penitentiary for not less than five nor 
 more than fifteen years. Id. 580. In view of 
 these statutory provisions, to which the at- 
 tention of the jury was called, it is clear that 
 the observation by the court, that "an atro- 
 cious and dastardly murder has been com- 
 mitted by some person," was naturally re- 
 garded by them as an instruction that the of- 
 fense, by whomsoever committed, was mur- 
 der in the first decree; whereas it was for 
 the jury, having been informed as to what 
 was murder by the laws of Utah, to say 
 whether the facts made a case of murder in 
 the first degree or murder in the second de- 
 gree. It was competent for the judge, under 
 the statutes of Utah, to state to the jury "all 
 matters of law necessary for their informa- 
 tion," and, consequently, to Inform them what 
 those statutes defined as murder in the first 
 degree and murder in the second degree. 
 Laws Utah 1878, p. 120; Code Cr. Proc. §§ 
 283, 284. But it is expressly declared by the 
 Code of Criminal Procedure that while he 
 may "state the testimony and declare the 
 law" he "must not charge the jury in respect 
 to matters of fact." Section 257. The error 
 
 committed was not cured by the previous ob- 
 
 103 
 
Case Xo. 36] 
 
 RELEVANCY. 
 
 seryation of the judge, that by the laws of 
 Utah the jury are "the sole judges of the 
 credibility of the witnesses and of the weight 
 fif the evidence and of the facts." It is rath- 
 er more correct to say that the effect of that 
 observation was destroyed by the statement 
 at the conclusion of the charge that the mur- 
 der, by whomsoever committed, was an atro- 
 cious and dastardly one, and therefore, as the 
 jury might infer, in view of the language of 
 the statute, was murder in the first degree. 
 The prisoner had the right to the judgment 
 of the jury upon the facts, uninfluenced by 
 any direc-tion from the court as to the weight 
 of evidence. For the reasons stated the judg- 
 ment of the supreme court of the territory 
 must be reversed, and the case remanded, 
 with directions that the verdict and judg- 
 ment lie set aside and a new trial ordered. 
 
 The assignments of error, however, present 
 other questions of impurtancc which, as they 
 are likeb' to arise upon another trial, we 
 deem proper to examine. 
 
 4. The first of these questions relates to the 
 action of the court in permitting Carr — called 
 as a witness for the defense— to give in evi- 
 dence a confession of the prisoner. That con- 
 fession tended to implicate the accused in the 
 crime charged. The admissibility of such 
 evidence so largely depends upon the special 
 circumstances connected with the confession 
 tliat it Is difficult, if not Impossible, to formu- 
 late a rule that will comjirehend all cases. 
 As the question is necessarily addressed. In 
 the first Instance, to the judge, and since his 
 discretion must be controlled by all the at- 
 tendant circumstances, the courts have wise- 
 ly forborne to mark with absolute precision 
 the limits of admission and exclusion. It is 
 unnecessary in this case that we should lay 
 down any general rule on the subject; for 
 we are satisfied that the action of the trial 
 court can be sustained upon grounds which, 
 according to the weight of authority, are suf- 
 ficient to admit confessions made by the ac- 
 cused to one in authority. It appears that 
 the defendant was arrested at the railroad 
 depot in Cheyenne, Wyoming, by the witness 
 Carr, who is a detective, on the charge made 
 in the indictment. The father of the deceas- 
 ed, present at the time, was much excited, 
 and may have made a motion to draw a re- 
 volver on the defendant, but of that fact the 
 witness did not speak positively. The wit- 
 ness may have prevented him from drawing 
 a weapon, and thinks he told liim to do noth- 
 ing rash. At the arrest a large crowd gath- 
 ered around the defendant; Carr hurried him 
 off to jail, sending with him a policeman, 
 while he remained behind, out of the hearing 
 of the policeman and the defendant. In two 
 or three minutes he joined them, and imme- 
 diately the accused commenced making a con- 
 fession. What conversation, if any, occuiTed 
 between the latter and the policeman during 
 the brief period of two or three minutes pre- 
 ceding the confession was not known to the 
 witness. So far as witness knew, the bill of 
 
 104 
 
 exceptions states "the confession was volun- 
 tary and uuinfiuenced by hopes of reward or 
 fear of punishment; he held out no induce- 
 ment, and did not know of any inducement 
 being held out to defendant to confess." This 
 was all the evidence showing or tending to 
 show that the confession was voluntary or 
 uuinfiuenced by hope of reward or fear of 
 punishment. 
 
 AVhile some of the adjudged cases Indicate 
 distrust of confessions which are not judicial, 
 it is certain, as observed by Baron Parke in 
 Regina v. Baldry, 2 Denison, 430, 44.j, that 
 the rule against then admissibility has been 
 sometimes carried too far, and in Its applica- 
 tion justice and common sense have too fre- 
 quently been sacrificed at the shrine of mer- 
 cy. A confession, if freely and voluntarily 
 made, is evidence of the most satisfactory 
 cliaraeter. Such a confession, said Eyi-e, C. 
 B., in King v. Warickshall. 1 Leach, 2G3, "is 
 desi'rviug of the highest credit, because it is 
 Ijresumed to flow from the strongest sense of 
 guilt, and therefore It is admitted as proof of 
 the crime to which It refers." Elementary 
 writers of authority concur in saying that, 
 while from the very nature of such evidence 
 it must be subjected to careful scrutiny and 
 received with great caution, a deliberate, vol- 
 untary confession of guilt is among the most 
 effectual proofs in the law, and constitutes 
 the strongest evidence against the party mak- 
 ing It that cgn be given of the facts stated 
 in such confession. 1 Greenl. Ev. § 215; 1 
 Archb. Or. PI. 125; 1 Phil. Bv. 533, 534; Starkie, 
 Ev. 73. But the presumption upon which 
 weight is given to such evidence, namely, that 
 one who is innocent will not imperil his safe- 
 ty or prejudice his interests by an untrue 
 statement, ceases when the confession ap- 
 pears to have been made either in conse- 
 quence of inducements of a temporal nature, 
 held out by one in authority, touching the 
 charge preferred or because of a threat or 
 promise by or in the i^resence of such pereon, 
 which, operating upon the fears or hopes of 
 the accused, in reference to the charge, der 
 prive him of that freedom of will or self-con- 
 trol essential to make his coul'ession volun- 
 tary within the meaning of the law. Test- 
 ed by these conditions, there seems to have 
 been no reason to exclude the confession of 
 the accused; for the existence of any such 
 inducements, threats, or promises seems to 
 have been negatived by the statement of the 
 circumstances under which It was made. 
 
 But it Is contended that the court erred in 
 not excluding this proof until the prosecu-' 
 tion produced the policeman and proved that 
 nothing was said or done by him, in the 
 absence of Carr, which unduly influenced 
 the mating of the confession. The argu- 
 ment is that, possibly, the policeman offered 
 such inducements, or made such threats or 
 pi'omises, that the prisoner, when joined by 
 Carr, was not in a condition of mind to 
 make a confession which the law would 
 deem voluntary. This position, although 
 
coNrjissiONS. 
 
 [Case No. 36 
 
 plausible, is not sustained by authority, nor 
 consistent with sound reason. The circumstan- 
 I'e.s narrated by the witness proved tlie con- 
 fession to be voluntary, so far as anything 
 was said or done by him on the ininiediato 
 occasion. There was nothing disclosed 
 which made it the duty of the court to re- 
 quire, as a condition precedent to the ad- 
 mission of the evidence, that the prosecution 
 .should call the policeman and show that he 
 had not, when alone witli tlie accused, un- 
 <luly influenced him to malie a confession. 
 
 In Rex V. Clewes, 4 Car. & P. 221; 3 Russ. 
 Cr. (Sharsw. Ed.) 431, 432, the prosecution 
 proposed to give in evidence a confession 
 made by the accused before the coroner. It 
 Jippearing that a magistrate had previously 
 an interview with the prisoner, it was sug- 
 gested that, as he may have been told by 
 that officer that it was better to confess, the 
 l)rosecution should call him. Bvit the court 
 siild that while it would be fair in the pros- 
 ecutors to call the magistrate, it would not 
 compel them to do so; but if they did not, 
 Ihe ijrisoner might do so if he chose. 
 
 In Rex V. Williams, Roscoe, Cr. Ev. (7th 
 Am. Ed.) 54, 3 Russ. Cr. (Sharsw. Ed.) 432, 
 it appeared that a prisoner, being m the cus- 
 tody of two constables on a charge of arson, 
 ii third person went into the room. The 
 prisoner immediately asked him to go into 
 another i-oom, as he wished to speak to him. 
 They went into that room, and the prisoner 
 made a statement to that person. It was 
 contended that the constables ought to be 
 •called to prove that they had done nothing 
 to induce the prisoner to confess. But 
 Taunton, .T., after consulting with Littledale, 
 J., said: "We do not think, according to the 
 usual practice, that we ought to exclude the 
 evidence, because a constable may have iu- 
 •duced the prisoner to make the statement; 
 otherwise he must in all cases call the mag- 
 istrates or constables before whom or in 
 whose custody the prisoner has been." 
 
 In Rex V. Warner, 3 Rtiss. Cr. (Sharsw. 
 Ed.) 432, the prisoner, when before the com- 
 mitting magistrate, having been duly cau- 
 tioned, made a confession, in which he al- 
 luded to one previously made to a constable. 
 It was remarked by the court that, although 
 it was not deemed necessary that a consta- 
 ble, in whose custody a prisoner had been, 
 should be called in every case, yet, in view 
 of the reference to him, he should be called. 
 The constable being called, provi>d that he 
 did not use any undue means to obtmin a 
 confession, but he disclosed the fact that he 
 had received the prisoner from another con- 
 stable, to whom the prisoner had made some 
 statements. As it did not appear that any 
 confession was made to the hitter, and only 
 appeared Ihat a statement was made that 
 might either be a confession, a denial, or an 
 exculpation, the court would not require him 
 to be called. S. C. Roscoe, Cr. Ev. (7th Am. 
 Ka.) 54, 55. 
 
 Roscoe (page 554) states the rule to be that 
 
 "in order to induce the court to call another 
 officer, in whose custody tlie pi-isoner has 
 beju, it must appear either that some in- 
 ducement has been used by, or some express 
 reference made to, such officer." Russell 
 says: "Foi- the purpose of Introducing a con- 
 fession in evidence, it is unnecessary, in gen- 
 eral, to do more tlian negative any promise 
 or inducement held out by the person to 
 whom the confession was made." Vol. 3, p. 
 431. 
 
 A^'hile a confession made to one authority 
 should not go to the jury unless it appears 
 to the court to have been voluntary, yet, as 
 the plaintiff in error chose to let its admis- 
 sibility rest upon the case made by the de- 
 tective, without any intimation that it would 
 be different if the policeman was examined, 
 and since there was nothmg in the circum- 
 stances suggesting collusion between the of- 
 ficers, we do not think the court was bound 
 to exclude the confession upon the sole 
 ground that the policeman was not intro- 
 duced. 
 
 5. The last question relates to the action I 
 of the court in admitting, as a witness in be- 
 half of tlie prosecution, Emerson, then serv- 
 ing out a sentence of confinement in the 
 penitentiary for the crime of murder, and 
 the judgment against whom had never been 
 reversed. His testimony tended to impli- 
 cate the defendant in the crime charged 
 against him. Objection was made to his 
 competency as a witness, but the objection 
 was overruled. At the time the homicide 
 was committed, and when the indictment 
 was returned, it was provided by the crim- 
 inal procedure act of Utah of 1878 that "the 
 rules for determining the competency of 
 witnesses in civil actions are applicable also 
 to criminal actions and proceedings, except 
 as othenvise provided in this act." And the 
 civil practice act of that territory provided 
 (section 374) that "all persons, without ex- 
 ception, otherwise than as specified in this 
 chapter, may be witnesses in any action or 
 proceeding. Facts which, by the common 
 law, would cause the exclusion of witnesses, 
 may still be shown for the purpose of af- 
 fecting their credibility." Comp. Laws Utah, 
 505. Further, (section 378,) that "persons 
 against whom judgment has been rendered 
 upon a conviction for felony, unless pardon- 
 ed by the governor, or such judgment has 
 been reversed on appeal, shall not be wit- 
 nesses." On the ninth day of March, 1882, 
 after the date of the alleged homicide, but 
 prior to the trial of the case, an act was ' 
 passed which repealed the section of tiie 
 civil practice act last quoted. It is contend- 
 ed that such repeal, by which convicted fel- 
 ons were made competent witnesses in civil 
 cases, did not make them competent in crim- 
 inal cases; in other words, for such is the 
 effect of the argument, those who were ex- 
 cluded as witnesses, under the civil practice 
 act, at the time the criminal procedure act 
 of 1878 was adopted, remained incompetent 
 
 105 
 
Case Xo. :36] 
 
 RELEVANCY. 
 
 iu criuuual cases, unless their incompetency, 
 in siK'li cases, was I'emovcd by some modi- 
 tication of the civil practice act expressly de- 
 clared to have i-eference to criminal prosecu- 
 tions. In this view we do not concur. It 
 was, we tliink, intended by the criminal pro- 
 c-edure act of 187S to make the competency 
 of witnesses in criminal actions and pro- 
 ceedings depend upon the inquiry whether 
 they Mere, when, called to testify, excluded 
 by the rules determining their competency 
 iu civil actions. If competent in civil ac- 
 tions, when called, they were, for that rea- 
 son, competent in criminal proceedings. 
 The purpose was to have one rule ou the 
 subject applicable alike in civil and criminal 
 proceeding.-!. 
 
 But it is insisted that the act of 1882, so 
 construed, would, as to this case, be an ex 
 post facto law, within the meaning of the 
 constitution of the United States, in that it 
 permitted the crime charged to be estab- 
 lished by witnesses whom the law, at the ! 
 time the homicide was committed, made in- 
 competent to testify in any case whatever. 
 The provision of the constitution which pro- 
 hibits the states from passing ex post facto 
 laws was examined in Kring v. Missouri, 
 107 U. S. 221, 2 .Sup. Ct. 443. The whole 
 subject was there fully and carefully consid- 
 ered. The court, in view of the adjudged 
 cases, as well as upon principle, held that a 
 provision of the constitution of Missouri de- 
 nying to the prisoner charged with murder 
 in the first degree the benefit of the law as 
 it was at the commission of the offense, — 
 under which a conviction of murder in the 
 sec(jnd degree was an acquittal of mur- 
 der in the llrst degree, even though such 
 judgment of conviction was subsequently 
 reversed, — was in eontliet with the constitu- 
 tion of the United States. That decision pro- 
 ceeded upon the ground that the state con- 
 stitution deprived the accused of a substan- 
 tial right which the law gave him when the 
 offense was committed, and therefore, in its 
 application to that offense and its conser 
 quences, altered the situation of the party to 
 his disadvantage. By the law as establish- 
 ed when the offense was committed, Kring 
 could not have been punished with death 
 after his conviction of murder in the second 
 degree, whereas, by the abrogation of that 
 law by the constitutional provision subse- 
 quently adopted, he could thereafter be tried 
 106 
 
 and convicted of murder in the first degree, 
 and subjected to the punishment of death. 
 Thus the judgment of conviction of murder 
 in tne second degree was deprived of all 
 force as evidence to establish his ausolute 
 immunity thereafter from punishment for 
 murder in the first degree. This was held 
 to be the deprivation of a substantial right 
 which the accused had at the time the al- 
 leged offense was committed. But there are 
 no such features in the case before us. 
 Statutes which simply enlarge the class of 
 liersons who may be competent to testify in 
 criminal cases are not ex post facto in their 
 application to isrosecutions for crimes com- 
 mitted prior to their passage; for they do 
 not attach criminality to any act previously 
 done, and which was innocent when done, 
 nor aggravate any crime theretofore com- 
 mitted, nor provide a greater punishment 
 therefor than was prescribed at the time of 
 its commission, nor do they alter the degree, 
 or lessen the amount or measure, of the- 
 proof which was made necessary to convic- 
 tion when the crime was committed. The 
 crime for which the present defendant was 
 indicted, the punishment prescribed there- 
 for, and the quantity or the degree of proof 
 necessary to establish his guilt, all remained 
 unaffected by the subsequent statute. Any 
 statutory alteration of the legal rules of ev- 
 idence which would authorize conviction up- 
 on less proof, in amount or degree, than was 
 required when the offense was committed, 
 might, in respect of that offense, be obnox- 
 ious to the constitutional inhibition upon ex 
 post facto laws. But alterations which do 
 not increase the punishment, nor change the 
 ingredients of the offense or the ultimate 
 facts necessary to establish guilt, but— leav- 
 ing untouched the nature of the crime and 
 the amount or degree of proof essential to- 
 conviction— only removes existing restric- 
 tions upon the competency of certain classes 
 of persons as witnesses, relate to modes of 
 procedure only, in which no one can be said 
 to have a vested right, and which the state, 
 upon grounds of public policy, may regulate 
 at pleasure. Such regulations of the mode- 
 iu which the facts constituting guilt may be- 
 placed before the jury can be made applica- 
 ble to prosecutions or trials thereafter had, 
 without reference to the date of the com- 
 mission of the offense charged. 
 Judgment reversed. 
 
CONPESSIONS. 
 
 [Case Xo 
 
 BUBSTBR V. STATE. 
 
 (50 N. W. 953, 33 Neb. 663.) 
 
 Supreme Court of Nebraska. Jan, 4, 1892. 
 
 Error to district court, Douglas county; 
 Olarlison, Judge. 
 
 Prosecution against Herman Bubster for 
 larceny. Verdict of guilty, and judgment 
 thereon. Defendant brings error. Reversed. 
 
 John P. Davis and Davis & Stevens, for 
 plaintiff «n error. Geo. H. Hastings, Atty. 
 Gen., for the State. 
 
 MAXWELL, J. The plaintiff in error was 
 informed against in the district court of 
 Douglas county for the larceny of a buggy 
 of the value of $75, and on the trial found 
 guilty, and sentenced to imprisonment in the 
 penitentiary for one year. The sole question 
 in this court is the sufficiency of the evidence 
 to svistain the verdict. The buggy, it seems, 
 was found at a paint-shop in the city of 
 Omaha, and it is claimed the plaintiff in er- 
 ror tooli: the buggy there to be painted, and 
 that it had been taken feloniously without 
 the owner's consent. There are two serious 
 objections to this verdict: First. The owner 
 of the buggy, although apparently within 
 reach of the process of the court, was not 
 
 called as a witness. Her son-in-law, who 
 resides with her, testifies that he did not 
 give his consent, and very freely testifies 
 that his mother-in-law did not. She was 
 within reach of the process of the court, and 
 should have been called as a witness to 
 prove her non-consent. The rule is very 
 clearly stated in note 183, 1 Phil. Ev. (4th 
 Am. Ed.) A conviction of larceny ought not 
 to be permitted or sustained unless it ap- 
 pears that the property was taken without 
 the consent of the owner; and the owner 
 himself should be called, particularly in a 
 case like that under consideration, when the 
 acts complained of may be consistent with 
 the utmost good faith. There Is a failure of 
 proof, therefore, on this point. Second. The 
 chief of police of the city of Omaha was 
 called as a witness, and on his direct exam- 
 ination he testifies lu substance that the 
 plaintiff in error confessed to him, and that 
 he offered no Inducements to secure such 
 confession. On cross-examination, however, 
 he in effect admits that he did hold out such 
 inducements, and his testimony is clearly In- 
 admissible, as also that of Mr. Cuslck, the 
 policeman. There is not sufficient evidence 
 to support the verdict, and the judgment Is 
 reversed, and a new trial awarded. Judg- 
 ment accordingly. The other judges concur. 
 
 107 
 
€ase No. 38] 
 
 KELEVANCY. 
 
 LOWE V. STATE. 
 
 (7 South. 97, 88 Ala. 8.) 
 
 Supreme Court of Alabama. Jan. 7, 1890. 
 
 Appeal from criminal court, Jefferson 
 •county; S. E. Geeexe, Judge. 
 
 Gilbert Lowe ■was indicted for the mur- 
 der of John W. Meadows, and found guilty, 
 and appeals. 
 
 S. M. & W. C. Meek, for appellant. W. 
 L. Martin, Atty. Gen., for the State. 
 
 CLOPTON, J. The first matter com- 
 [ilaiiieil of is the refusal of the court to ex- 
 clude the entire confession of defendant on 
 the ground that itw^as not shown to have 
 been freely and voluntarily made. The 
 necessities of the case do not call for a de- 
 cision of the question whether or not the 
 confession was voluntary. In his confes- 
 sion defendant described the kind of clothing 
 which the deceased wore when killed, and 
 the place where he was killed, and stated 
 that the body was left In a sink covered 
 with leaves, and also some keys, a watch- 
 chain, a broken-handled knife, and a 
 brown, soft hat. The court excluded all of 
 the confession, except the statements de- 
 scribing the dress of deceased, the place 
 where the killing occurred, and the man- 
 ner in which the body was left. 
 
 A modification of the rule which excludes 
 a confession not shown to be voluntary is, 
 if information derived therefrom leads to 
 the discovery of material facts, which go 
 to prove the commission of the crime, so 
 much of the confession as strictly relates 
 to the facts disco vei-ed, and the facts them- 
 selves, Avill be received in testimony, though 
 the confession may not be shown to have 
 been voluntary, for the reason that the dis- 
 co ver.A' of the facts corroborates the truth 
 of the confession to that extent. Banks v. 
 State, 84 Ala. 430, 4 South. Rep. 382; Mur- 
 phy V. State, 63 Ala. L There is evidence, 
 showing that the body of the deceased was 
 found at the place where accused stated it 
 was left, partially covered with leaves, as 
 were also a brokeu-handled knife, watch- 
 chain, keys, and a brown, soft hat, near 
 the body. The record does not affirma- 
 tively disclose whether the body and other 
 articles were discovered before the confes- 
 sion was made or afterwards, as a sequence 
 of the information derived from the ac- 
 cused. But the bill of exceptions does not 
 purport to set out all the evidence. In 
 this state of the record, we must presume, 
 if necessary to sustain the ruling of the 
 criminal court, that they were discovered 
 after the confession. It is true that the 
 clothing which the defendant stated de- 
 ceased wore was not discovered. He was 
 stripped of apparel, except the underwear. 
 The only identifying testimony as to the 
 clothing is that the deceased wore such the 
 last time he was seen before the killing. It 
 may be that the statement of defendant as 
 to the coat, vest, pantaloons and shoes of 
 deceased do not come within the rule of ad- 
 missibility. This question we do not de- 
 cide. The motion was to exclude, and the 
 
 108 
 
 exception goes to the refusal of the court 
 toexclude,theentireconfession. When gen- 
 eral exceptions are made to evidence part- 
 ly admissible and partly inadmissible, the 
 court is not bound to separate the legal 
 and illegal parts. The criminal court 
 could have properly overruled the entire 
 motion, a portion of the statements of de- 
 fendant being admissible. No objection 
 having been made separately and specially 
 to the portion of the statement describing 
 the dress of deceased, which may be of 
 doubtful admissibility, and as -^lie court 
 could have properly, on the motion to ex- 
 clude the entire confession; retained the 
 whole of it in evidence, defendant cannot 
 complain that thecourt failed to nicely sep- 
 arate the legal and illegal parts. 
 
 The court, having charged the jury, at 
 the instance of defendant, that before they 
 can convict of murder they must be sati.s- 
 fied that he has been proven guilty of the 
 offense, "fully, clearly, conclusively, satLs- 
 factorily, and that to a moral certainty, 
 and beyond all reasonable doubt, " the 
 prosecuting solicitor requested the court 
 to instruct the jury that the terms used in 
 the foregoing charge meant the same as 
 that they must be convinced of his guilt 
 "beyond a reasonable doubt. " Thecharge 
 given at the instance of the defendant was 
 probably calculated, by the conjunctive 
 use of cumulative words and expressions, 
 to create upon the mind of the average 
 juror the erroneous Impression that a high- 
 er degree of proof is essential to conviction 
 for murder than is ,raeant by the phrase 
 "beyond a reasonable doubt." The ex- 
 planatory charge was proper, to prevent 
 the juiy from being misled. McKIeroy v. 
 State, 77 Ala. 95. 
 
 There is no error in the refusal of the 
 court to charge the jury that if a witness 
 has willfully testified falsely to any materi- 
 al fact the jury should disregard his evi- 
 dence altogether. Of the weight and cred- 
 ibility of all oral jjroof , whether given for 
 or against the accused, the jurors are the 
 sole judges. They may disregard alto- 
 gether the evidence of a witness who has 
 willfully sworn falsely, or they may credit 
 portions of his testimony, especially if cor- 
 roborated by other witnesses, or by cir- 
 cumstances clearly proved. Thecourt can- 
 not, as matter of law, instruct them to 
 disregard altogether the testimony of any 
 witness. The charge would have invaded 
 the province of the jury. Moore v. State, 
 68 Ala. 360; Jordan v. State, 81 Ala. 20, 1 
 South. Hep. 577. 
 
 It cannot be said that the trite expres- 
 sion, "it is better that ninety-nine guilty 
 men should escape than that one innocent 
 man should be punished, "is an established 
 maxim of the law. The law recognizes no 
 such comparison of numbers. Its sole ob- 
 ject is to punish the guilty, and that the 
 innocent be acquitted. The tendency of 
 such a charge, unexplained, is to mislead. 
 We ha.ve heretofore ruled in several cases 
 that it is not en-or to refuse similnr charges. 
 Ward V. State, TS Ala. 441; Canlen v. State, 
 84 Ala. 417, 4 South. Hep. 823. 
 
 Afflrnied. 
 
COXrESSlONS. 
 
 [Oiise No. 8& 
 
 STATE V. CLIFFORD. 
 
 (53 ^^ W. 299, 86 Iowa, :C>0.) 
 
 Supreme Court of Iowa. Oct. 22, 1892. 
 
 Appeal from district court, Shelby county; 
 Wiilter I. Smitli, Judge. 
 
 Defendant was indicted for the crime of 
 larceny from a building in the nighttime, 
 and was convicted of simple larceny. He 
 appeals. 
 
 Byers & I.ockwood, for ai^pellant. John 
 Y. Stone, Atty. Gen., and Thos. A. Cheshire, 
 for the State. 
 
 ICINNE, J. 1. The defendant and one Fill- 
 more were indicted for stealing from the 
 barn of Axline & Smith, in the nighttime, 
 26 bushels of clover seed, of the value of 
 .fl25. The court permitted a witness named 
 Ouppy to testify in rebuttal on part of the 
 state as to statements made by the defend- 
 ant in his examination before the grand juiy. 
 It apijears that while the defendant was 
 under arrest and in the county jail, charged 
 with the commission of the very crime for 
 which he was afterwards indicted and tried, 
 the foreman of the grand jury, then in ses- 
 sion, had the sheriff of the county bring de- 
 fendant before said body, where he was 
 examined under oath as to his supposed con- 
 nection with the alleged larceny. It does 
 not appear that the defendant was informed 
 as to his rights, or of the effect of the an- 
 swers he might give, or as to the fact as 
 to whether or not such answers could aft- 
 erwards be used against him. No minutes of 
 his testimony were taken by the grand jury. 
 We may properly assume that he testitied 
 under oath, without being informed as to 
 liis rights, or the effect of his testimony, or 
 the possibility of its use against him there- 
 after. It is contended that his statements 
 so made before the grand jury were not 
 voluntary, and hence inadmissible against 
 liim upon the trial. The course of procedure 
 pursued by the grand jury with reference 
 to the examination of this witness was un- 
 precedented, and, to our minds, wholly un- 
 justifiable from any point of view. They 
 liad no right to compel the defendant, then 
 in custody, and charged with the commission 
 of the crime inquired about, to give testi- 
 mony before them. To put him under oath, 
 under such circumstances, without advising 
 him of his rights, was attempting to take 
 :iu unfair advantage of his situation, to his 
 prejudice. A statement so procured could 
 in no proper sense be said to be voluntarily 
 made. A confession or statement, to have 
 been voluntarily made, must proceed "from 
 the spontaneous suggestion of the party's 
 own mind, free from the influence of any 
 extraneous disturbing cause." "If made un- 
 der oath by the party charged, upon a ju- 
 dicial inquiry as to the crime, it [the con- 
 fession] is rejected, as not being voluntary." 
 People V. McMahou, 1." N. Y. 39r>. The law 
 
 is well settled that when a person is com- 
 pelled to answer questions under oath, put 
 to him by a committing magistrate, touch- 
 ing his supposed connection with the crime 
 then being investigated, and of which ho 
 stands aciused, his statements are not ad- 
 missible against him. 3 Am. & Eng. Enc. 
 Law, p. ^SS; Wliart. Cr. Ev. §§ 668, 669: 
 State V. Matliews, (i(j N. C. 106; People v. 
 JIcMahon, 1.3 X. Y. 384; I'eople v. Mondon, 
 luy N. Y. 211, 8 N. E. 496. And it is said 
 tliiit, unless the defendant comprehended hi& 
 rights fully, and is informed by the court 
 or examining body that his refusal to an- 
 swer the questions propounded to him could 
 not prejudice liis case, or be construed as an 
 evidence of his guilt, any responsive confes- 
 sions implicating him in the crime chai-ged 
 must be regarded as involuntary, and hence 
 inadmissible. Whart. Cr. Ev. §§ 668, 669; 
 State V. Rorie, 74 N. C. 148; 1 Greenl. Ev. 
 §§ 225, 226, and notes. The same rule would 
 apply as to examinations had, as in this case, 
 before a grand jury. Some of the states by 
 statute require magistrates conducting such 
 examinations to admonish the prisoner as to^ 
 the effect of his answer and his right to 
 refuse to answer, but it is believed that the 
 general rule of law is as above stated, even 
 in the absence of such a statute. 
 
 Counsel for the state contend that the 
 evidence was admissible, and cite Code, § 
 4285; State v. Hayden, 45 Iowa, 11; State 
 V. Row, 81 Iowa, 138, 46 N. W. 872; and 
 some Indiana cases. The statute referred to 
 1 provides that a member of the grand jury 
 ■ may be compelled to disclose the testimony 
 of a wilness examined before such jury, to 
 ascertain if it be consistent with that given 
 by him before the court. It cannot be said 
 that this statute had the effect of making 
 the testimony given before the grand jury, 
 under oath and involuntarily, by one at the 
 time charged with the very crime then be- 
 ing inquired about, and who, when so exam- 
 ined, was under arrest therefor, competent 
 on a trial of the party under indictment for 
 such crime. Counsel have cited no case so 
 holding, and we find none. We see no rea- 
 son for holding that the legislature, in enact- 
 ing the statute referred to, intended to ab- 
 rogate the universal rule of law that invol- 
 untary admissions in confession of a defend- 
 ant charged with a crime are inadmissible 
 against him on a trial for such crime. The 
 statute was, we think, not intended to cover 
 such a case, and thereby permit a grand ju- 
 ror to give evidence of such involuntary con- 
 fession, which no other person is permitted 
 to testify to. If the defendant, when ex- 
 amined before the grand juiy, had been ad- 
 vised as to his rights, and then given evi- 
 dence, the rule might l)e different. In State 
 V. Briggs, (IS Iowa, 424, 27 N. W. 358, it 
 was held that a plea of guilty, entered by a 
 defendant to a preliminary information, he 
 not being Informed as to his legal rights, 
 was a voluntary admission of his guilt, and 
 
 109 
 
Case No. 39] 
 
 RELEVANCY. 
 
 admissible against him. No authorities are 
 cited in support of tliis holding. In the case 
 at bar the defendant was put under oath, 
 lie Avas taken before the grand jury, not of 
 lus own volition, but by tlie direction of the 
 examining body, for the pui"pose of being in- 
 terrogated as to his supposed connection with 
 the crime with which he was accused. In 
 the Briggs C:ise tlie magistrate afforded him 
 an opportunity to ])l('iul guilty or not guilty. 
 In the case at bar tlie proceedings as to de- 
 fendant's being sworn and examined were 
 of a compulsory character, no election being 
 afforded him. For these and other reasons 
 the holding in State v. Briggs does not apply. 
 See, also, State v. Carroll (lowaj 51 N. W. 
 1159. 
 
 2. It is claimed that the evidence does not 
 warrant a verdict of guilty. In substance, 
 the evidence shows that Axline & Smith, in 
 January, 1892, had 13 sacks of clover seed 
 .stored in their barn; that about Januai-y 20, 
 1892, said seed was stolen by some one; that 
 it was of the value of $125; that one Clouser 
 had worked for Axline & Smith, and, among 
 others, knew where the seed was stored; 
 that he visited Fillmore (who was jointly in- 
 dicted with defendant) before the seed was 
 taken; that the sacks which had contained 
 the seed were found, after it^ad been stolen, 
 at Hancock, Iowa; that about the time the 
 seed was taken Fillmore liauled to Council 
 Bluffs, and sold there, about 26 bushels of 
 clover seed; that Cliiford went with him to 
 Council Blutls, and ou the way he ascer- 
 tained from Fillmore that he had clover seed 
 in the sacks in the wagon, and saw him hide 
 the sacks under a culvert in the wagon road, 
 where they were afterwards found. It ap- 
 pears also that defendant accompanied Fill- 
 more back from Council Bluffs to Avoca. 
 The reasons defendant gave for going to 
 Council Bluffs with Fillmore were in part, 
 at least, unsatisfactory. Bvit there was no 
 direct evidence in any way connecting de- 
 fendant with the crime charged. So far as 
 apijears, he received no part of the money 
 liaid Fillmore for the seed. It does not ap- 
 pear that he was seen at or near the barn 
 where the seed ^^■as stored There is no 
 showing that he in any manner exercised any 
 control over the seed or the team and wagon 
 
 110 
 
 by means of which It was conveyed to Coun- 
 cil Bluffs. Defendant seems to have been a 
 passenger with Fillmore to Council Bluffs 
 under suspicious circumstances, which, how- 
 ever, are explainable consistent with his in- 
 nocence of the crime charged. The testimo- 
 ny does not point with reasonable certainty, 
 even, to defendant's guilt. Stated most 
 strongly against the defendant, it is a case of 
 suspicion, not of guilt established. We are 
 at a loss to understand on what the jury 
 based a verdict of guilty, unless It was that 
 defendant, in a few of his answers, evinced 
 a disposition to be what is usually called a 
 "smart" witness. The verdict is without 
 foundation to support it, and cannot stand. 
 
 3. It clearly appears from this record that 
 the trial court had grave doubts as to de- 
 fendant's guilt. When the court came to im- 
 pose sentence on the defendant he said to 
 him: "Mr. Clifford, it is contrary to my 
 usual practice to make any comments when 
 passing judgment in cases of this kind, but 
 in this case I am constrained to say to you 
 that you have been found guilty of the crime 
 of larceny upon very slight evidence. I firm- 
 ly believe that, if you had conducted your- 
 self upon the witness stand as you should 
 have done, no jury could have been found that 
 would have returned a verdict of guilty up- 
 on such slight and trivial evidence." The 
 conduct which the court speaks of was the 
 manner of defendant on the stand, especially 
 in his answers to certain questions relating 
 to his reasons for going to Council Bluffs. 
 These answers, which we need not set out 
 hei'e, indicated a want of moral character 
 and rectitude in other directions. We think 
 this was clearly a case where the trial court 
 should have exercised its right to set aside 
 the verdict. If a man is to be committed to 
 the penitentiary for a crime, his guilt of 
 which is established, if at all, by circumstan- 
 tial evidence, such evidence should not only 
 ixilnt him out as guilty, but be inconsistent 
 with any reasonable theory as to his inno- 
 cence. This the testimony in this case fell 
 far short of doing. It will not do to let a 
 verdict stand which deprives a ms.n of his 
 liberty, when it is based upon mere suspi- 
 cion. The judgment of the district court is 
 reversed. 
 
CONFESSIONS. 
 
 [Case No. 40 
 
 PEOPLE V. CHAPLEAU. 
 
 (24 N. E. 469, 121 N. Y. 266.) 
 
 Court of Appeals of New York. April 29, 1890. 
 
 Appeal Irom court ol oyer and terminer, 
 Clinton county. 
 
 James A verill, for appellant. Samuel L, 
 Wheeler, Dist. Atty., lor respondent. 
 
 GRAY, J. The delendant was indicted 
 lor the crime of murder in the first degree 
 lor the killing of Irwin E. Tabor, and he 
 was tried at a court of oyer and terminer 
 held in and for Clinton county. The jury 
 rendered a verdict in accordance with the 
 charge in the indictment, and sentence ol 
 death was passed. From the judgment of 
 conviction the defendant has appealed to 
 this court, and his counsel assigns as 
 grounds lor sustaining his appeal the ad- 
 mission of improper and incompetent evi- 
 dence, and the insufficiency of the evidence 
 to convict for murder in the first degree. 
 We have carefully read and considered the 
 proofs in this record relied on to establish 
 the defendant's guilt. We are satisfied that 
 no injustice has been committed against 
 him in the trial upon the indictment, and 
 that the verdict could not have been other- 
 wise rendered by sensible men. The occur- 
 rence of the killing was in this wise, as It 
 is made to appear from the whole record: 
 The defendant lived near the village ol 
 Plattsburgh, and was employed In the 
 hauling olwood. About 4 o'clock on Mon- 
 day alternoon, January 28, 1889, he and 
 two other teamsters were returning home 
 ■with their sleds, when, at a point in the 
 road, they met the deceased driving him- 
 sell In a sleigh. He turned out with a nod 
 of recognition, and passed the three 
 teams, of which the defendant's led. Aft- 
 er passing, defendant attacked the de- 
 ceased, struck him upon the head with a 
 wooden stake, and knocked him out of his 
 sleigh upon the road, wliere he shortly aft- 
 er expired from his injuries. This attack 
 was testified to by one of the teamsters. 
 Nelson Brown; the other one having died 
 since the occurrence. Brovv'n's attention 
 was attracted by hearing the defendant 
 address the deceased with loud and violent 
 language. He looked behind, and saw the 
 deceased stricken down from his seat, and 
 fall upon the i-oad. Of other witnesses, 
 evidence was had of his loud and abusive 
 exclamations; of his hastening from the 
 rear of the teams where the body lay, with 
 a stake in his hand, to catch up with his 
 team, which had gone on ahead ; and of 
 the finding ol the body upon the road, 
 with the head battered almost beyond rec- 
 ognition, with the blanket and buHalo 
 robe still wrapped about his person, and 
 with a piece ol the driving reins tigh tly 
 grasped in his miltened hands. Evidence 
 w^as also adduced ol the defendant's say- 
 ing to the officer who had arrested him the 
 same evening, and was conducting him to 
 Plattsburgh, "I do not think that Mr. Ta- 
 bor will poison any more cows." This 
 remark had relerenee to the prisoner's pre- 
 vious statements, testified toby witnesses, 
 that the deceased had poisoned his cow. 
 "The utterance of threats by the defendant 
 against the lite of the deceased was also 
 proved. One neighbor testified tliatthede- 
 
 lendant had threatened to sTioot Tabor, 
 remarking that he had injured his cow. 
 Another testified that the nf|gbt before, 
 when the defendant was at his house, he 
 had narrated a conversation had with 
 Tabor on the road. He told witness that 
 he had called Tabor "cow doctor, Ver- 
 monter;" and Tabor had told him to 
 "shut up his head ;" and he had answered 
 back, "I will not shut up my head, but I 
 am going to shut up your head tor you, 
 and when I shut it up it will stay shut. " 
 When the wife of the witness, hearing this, 
 said, " If you was to do that to Mr. Tabor, 
 you would be apt to get a rope around 
 your neck, "he replied : " Mrs. Brown, peo- 
 ple will be so glad to get that long body 
 destroyed, people will not hurt me much. 
 Anj' way, they do not hang any more. 11 
 I was going to be killed, I would be killed 
 that new vs'ay." The next day after the 
 occurrence, when the coroner held his in- 
 quest, the foreman of his jury, who was 
 also the sheriff, stated that Chapleau, the 
 prisoner, wanted to come before the jury 
 and make a statement. He was brought 
 in, and what he then said was reduced to 
 writing by the coroner. That official, be- 
 ing examined as a witness upon the trial, 
 gave in evidence the statements of the de- 
 fendant as taken down by him at the time 
 of the inquest. He testified, from his min- 
 utes, that he informed the prisoner, before 
 the jury, as to his right to depose or not, 
 as he thought fit, and that the deposition 
 might be used against him thereafter; that 
 the prisoner elected of his own free will to 
 be sworn, and asked to be allowed to tes- 
 tify. The prisonei''s story was then given 
 as thus stated, in which he represented the 
 occurrence as provoked by deceasS'd. He 
 stated that the deceased referred to his re- 
 marks about poisoning cows, and jumped 
 from his cutter upon the sled, with some- 
 thing in his hand; whereupon he (the pris- 
 oner) hit him with the stake. He also 
 stated that the deceased had threatened 
 to shoot him, and that they had had dis- 
 putes concerning this alleged poisoning 
 ol his cows by thp deceased. As against 
 the people's evidence the prisoner adduced 
 some evidence of his good character. The 
 charge of the trial judge was very fair, and 
 was not excepted to ; nor was it really 
 exceptionable in its instructions to the ju- 
 ry. But the appellant's counsel relies and 
 insists upon certain features of the case, 
 as it was developed upon the trial, as ex- 
 hibiting a lack of creditable evidence upon 
 which to ccmvict; the incompetency of the 
 coroner's evidence of the statements of the 
 accused ; and the inadmissibility of the evi- 
 dence of what the prisoner had said 
 while under arrest, immediately after the 
 occurrence. These points we will consider. 
 Three elements enter into the puoof con- 
 victing the defendant of the crime charged 
 in the indictment. They are: The testi- 
 mony ol an eye-witness of the occurrence; 
 the admissions and statements of the pris- 
 oner, and corroborating circumstances in 
 the evidence, of previous threats by the 
 prisoner; and of what transpired about 
 the time of the killing, according to the ev- 
 idence of persons who, while not seeing 
 the actual killing, saw the prisoner and 
 the deceased on the road. They had ob- 
 served his actions, and saw the condition 
 
 111 
 
Case. No. 40] 
 
 RELEVANCY. 
 
 in which the body of the deceased was 
 found. Before considering the points of 
 tlie appellant's counsel, we may here say 
 that the prisoner's statements of what oc- 
 curred between him and the deceased are 
 absolutely negatived by the facts. The 
 position in which the body of the deceased 
 was found made it impossil)le that he 
 should have jumped from his cutter upon 
 the defendant's sled to attack him, or that 
 any attack could have been made by the 
 deceased. The body was found upon the 
 road, with the hands clenched in front, 
 and still holding tlie broken rein. The 
 blanket was around his legs, and the buf- 
 falo robe i)artly under and up under his 
 right arm. Such circumstantial evidence 
 made it clear that the deceased was strick- 
 en down while on his seat in the sleigh, 
 and engaged in driving his horses. The 
 accused, after making this deposition be- 
 fore the coroner and jury, refused, upon 
 the subsequent day, to sign it, and denied 
 making it. This subsequent action of the 
 accused may have been predicated upon 
 one of two mental conditions : Either that 
 he was unwilling to sign a false statement, 
 or else that subsequent reflection made 
 him regret having made any statement at 
 all. But the defendant's counsel argues 
 that the statement before the coroner was 
 inadmissible in evidence upon the trial ; and 
 he places the objection on the ground that 
 the prisoner was then confined in jail upon 
 the charge of murder, and that it was not 
 a voluntary statement. These were not 
 tlie grounds of the objection taken at the 
 trial. At that time they were that the 
 statements were not signed by the party. 
 But, overlooking the absence of other ob- 
 jections, we will c(msider if any injustice 
 was done, or any legal error committed in 
 the reception of the coroner's evidence. 
 
 The object of the law has always been 
 the accomplishment of justice by eliciting 
 the truth about an occurrence in such a 
 mode as to minimize the cliances of error 
 and mistake, and to charge the accused 
 with guilt by the most direct jiroofs; and 
 the aim of statutes of criminal procedure 
 is to secure the punishment of a person, in- 
 dicted for a crime, only by methods con- 
 sistent with the maintenance of every safe- 
 guard against error and self-crimination. 
 The design of the state is always to pre- 
 serve intact for the benefit of the accused 
 the presumption of his innocence, in the 
 l)roceedings for his conviction, and courts 
 should endeavor to scrupulously guard 
 liis privileges in that respect, and rather 
 to err on the side of a tender regard for 
 his rights; for the penalty is death. Sec- 
 tion 190 of the Code of Criminal Procedure 
 provides that, where a party is examined 
 before a magistrate, he shall be informed 
 as to his rights and privileges with respect 
 to making any statements. Section 200 
 provides that the statement must be re- 
 duced to writing, and, if defendant refuses 
 to sign it, his reason therefor must be 
 stated, and jt must be signed and certified 
 by the magistrate. These conditions were 
 met in the present case. Section 393 has 
 provided that the confession of a defend- 
 ant, whethcu' in the course of judicial pro- 
 ceedings or to a private person, can be 
 given in evidence against him, unless made 
 under the influence of fear produced by 
 
 112 
 
 threats, or upon a stipulation of the dis- 
 trict attorney that he shall not be i)rose- 
 cuted therefor. The question, then, is, 
 was the statement of the prisoner made 
 before the coroner and jury admissible to 
 prove the homicide? Clearly it was, un- 
 der the provisions of section 395. It was 
 made at his own election and request, and 
 without the operation of the influe.ices of 
 fear, produced by threats, or of hope, un- 
 der a stipulation that he would not be 
 prosecuted. It was admissible even before 
 the enactment of the Code provision ; for 
 it was voluntary, because it was made at 
 the prisoner's own suggestion. 
 
 The case of People v. McMahon, 15 N. Y. 
 884, cited by the counsel for the appellant, 
 is not against the principle of its admissi- 
 bility. In that case the prisoner was ar- 
 rested as the probable murderer; taken 
 before thecoroner, then holding an inquest 
 over the body of the deceased ; and was 
 sworn and examined as a witness. Upon 
 the trial his evidence so taken was read 
 against him. This was held to be an er- 
 ror; but the ground taken by the court 
 was that the testimony before the coroner 
 was in its nature unreliable evidence, and 
 that the reason of the rule of law which 
 demanded its exclusion was in that con- 
 sideration. It could not be said that the 
 statements proceeded from the internal 
 and spontaneous impulses of the prisoner 
 alone, or were uninfluenced by any extra- 
 neous cause of sufficient force to prevent 
 free and voluntary mental action ; and 
 that a judicial oath, administered when the 
 mind was agitated by a criminal charge, 
 might have thateffect. Judge Si;ldk.\' de- 
 livered the opinion in that case, and he 
 discussed the meaning of the term " volun- 
 tarjs " in reference to confessions. He 
 thought there was an obvious principle 
 underlying the rule which excluded the 
 statements of a prisoner, where not made 
 free from outside influences of a nature dis- 
 turbing to the mind. He stated it to be 
 that "we cannot safely judge of the rela- 
 tions between the motives and the declara- 
 tions of the accused, when to the natural 
 agitation consequent upon being chai'ged 
 with crime is superadded the disturbance 
 produced by hopes or fears artificially ex- 
 cited;" and he defined a voluntary confes- 
 sion as one " proceeding from the spon- 
 taneous suggestion of the party's own 
 mind, free from the influence of any ex- 
 traneous disturbing cause." In the case of 
 Teachout v. People, 41 N. "X. 7, the state- 
 ments of the prisoner before the coroner, 
 being voluntarily made, and after he had 
 been informed that he was under no obliga- 
 tion to testify, were held properly admitted 
 upon the trial. The People v. Mondon, 103 
 N. Y. 21],S N. E. Rep. 49H. was a recent 
 case, decided since the passage of theC^ode. 
 There the examination before the coroner 
 was excluded, not because of anyprinciple 
 of inadmissibility inherent in the evidence 
 generally, but because it had not, and 
 could not have been in the nature of 
 things, a voluntary confession. There, the 
 prisoner, upon being arrested, was brought 
 before the coroner as a witness and ex- 
 amined. He was an ignorant man, was 
 unattended by connsel, and was not in- 
 formed of his rights or privileges as to 
 testifying'. Judge Rapallo reviewed this 
 
CONFESSIONS. 
 
 [Case No. 40 
 
 question of the admissibility of the exam- 
 ination of persons under oath before a 
 masistrate or coroner. He held that they 
 must be excluded upon the subsequent trial 
 for the offense, under circumstances where 
 the prisoner, having been arrested as a 
 suspected. murderer, was taken before the 
 coroner's Inquest or examining magis- 
 trate, and there examined on oath as to 
 circumstances tending to connect him 
 with the crime. His opinion was given 
 with reference to the facts of the case be- 
 fore him, which showed that therewas no 
 confession, but an exainination before a 
 magistrate. He expressl.y held that sec- 
 tion 39.5 of the Code was intended to apply 
 only to voluntary confessions, and not to 
 change the statutory rules relating to the 
 examination of prisoners charged with 
 crime. It is thus perfectly clear that both 
 before and since the enactment of the Code 
 provisions the test of admissibilit.y of the 
 statements of a party accused of the com- 
 mission of a crime, whether made In the 
 course of judicial proceedings or not. Is 
 whether they were voluntary ; and that 
 can be determined by their nature, and the 
 circumstances under which made. If In 
 all respects, and however viewed, they 
 could only have been the voluntary and 
 uninfluenced statements of the Individual, 
 no principle of law warrants their exclu- 
 sion ; and the Code expressly authorizes 
 their being given in evidence upon the 
 trial. 
 
 The appellant's counsel argues that it 
 was error to admit the testimony of a 
 witness as to what the defendant said to 
 the officer shortly afterthe arrest. No ob- 
 jection was taken at the trial; and, as the 
 defendant's statements were voluntary 
 ones, no objection would be tenable. It 
 is no ground for the exclusion of ad- 
 missions that they were made while the 
 party was under arrest. If shown to have 
 been made voluntarily, and free from In- 
 fluences of pnjmises or threats. Balbo v. 
 People, 80 N. Y. 484. 
 
 Another ground of error presented is 
 that thejury should not have been allowed 
 to consider the testimony of Nelson and 
 Peter Brown. The appellant's counsel ar- 
 gues that they were perjured witnesses, 
 on their own showing. If this were true, 
 it would be no reason for any such in- 
 struction b.y the court to the jury. But it 
 is not a correct conclusion from the facts 
 respecting these witnesses. They were ev- 
 idently men of low Intellectual order, and 
 dull of comprehension, and frightened at 
 being drawn into the case. Nelson Brown 
 was the eye-witness of the occurrence; 
 and Peter Brown was the person at whose 
 house, the evening before, the defendant 
 had repeated his threats made to the de- 
 ceased. Nelson Brown at first denied 
 knowledge of the facts to which he on a 
 subsequent day of the holding of the in- 
 quest did testify. Peter Brown did not 
 state upon his examination before the 
 coroner the facts of the conversation. It 
 does not appear that they had iinymotives 
 for this conduct, or were influenced other- 
 wise than by fright or some kindred emo- 
 tion. That was most probably the truth 
 of the matter as to both ; and possibly, in 
 the case of Nelson Brown, there may have 
 been superadded the motive to shield a | 
 
 WILGDS.EV. — 8 
 
 friend. At any rate, upon the trial tliey 
 avowed tlieir fright as the cause and ex- 
 planation. They wore not otherwise im- 
 peached as witnesses, and the judge com- 
 mented in his charge upon the testimony 
 of these witnesses, and said it was open 
 to the criticism of counsel for the defend- 
 ant, and he instructed the jury that they 
 must be satisfied of its truthfulness. We 
 think that it was for the jury to pass up- 
 on the question of the credibility of these 
 witnesses. It was formerly held to be the 
 rule that where a witness was shown to 
 have willfully sworn falsely in a f(jrmer 
 proceeding in the case, or upon the trial, 
 or, as in the case of People v. Evans, 40 N. 
 Y. 1, where the false swearing was insti- 
 gated by the prisoner, and the witness 
 had been promised a i-eward for so swear- 
 ing, that the jury should be instructed to 
 disregard the testimony of such witness. 
 Dunlop y. Patterson, .5 Cow. 248, is an ear- 
 ly and leading case on that subject. The 
 doctrine as to the treatment of testimony 
 which is affected by contradictions and in- 
 consistencies; or by evidence making its 
 falsity nanifest, and establishing a con- 
 sciousness in the witness of its falsity, has 
 been much considered in the books. Opin- 
 ions have not always been in accord; but 
 the weight of authority was in favor of 
 the general rule that the question of credi- 
 bility of a witness was one for the jury, 
 and that the only exception to the rule 
 was in cases where the discrepancies in the 
 testimony were the result of deliberate 
 faksehood. The Sautissima Trinidad, 7 
 Wheat. .S39; Conrad v. Williams, 6 Hill, 
 446; People v. Evans, supra; Wilkins v. 
 Earle. 44 N. Y. 172; Pease v. Smith, 61 N. 
 Y. 477; Place v. Minster, 65 N. Y. 89; Peo- 
 ple V. Petmecky, 99 N. Y. 415, 2 N. E. Eep. 
 145. But since the enactment of section 714 
 of the Penal Code, and section 832 of the 
 Code of Civil Procedure, we must hold that 
 a new rule obtains, and that the rule and 
 policy of the law are to allow all testimo- 
 ny to go to. and be weighed by, the jury. 
 By those sections a person convicted of 
 any crime is, notwitlistanding, a compe- 
 tent witness in any cause or proceeding, 
 civil or criminal; but proof of his con- 
 viction is allowed for the purpose of af- 
 fecting the weight of his testimony. In 
 People V. O'Neil, 109 N. Y. 266, 16 N. E. 
 Rep. 6S, the court had refused to charge 
 that if the jury should find that certain 
 witnesses had, in their previous testimony 
 in respect to the same matters, committed 
 willful perjury, the jury should wholly 
 ilisregard their testimony given on the 
 trial. This was held not to be error; and 
 Andrews, J., said, in reference to the force 
 of section 714 of the Penal Code; "It 
 would be manifestly absurd, in the light 
 of this statute, now to hold that an un- 
 convicted perjurer was an incompetent 
 witness, whose evidence could not be con- 
 sidered by the jury, when, under the stat- 
 ute, if he had been convicted his evidence 
 must be received and weighed by the 
 jury." Here the witnesses, in testifying 
 to facts of which upon the preliminary 
 examination they had denied knowledge, 
 or which they had suppressed, may have 
 been moved and deterred, as they swore 
 they were, by motives of fright; and they 
 appear to have been perfectly free from 
 
 113 
 
Case No. 40] 
 
 UELEVANCY. 
 
 improijer instigations ormotives to swear 
 falsely. At any rate, it was for the jury to 
 decide whether they were to be believed 
 or not. There was other evidence of a cir- 
 cumstantial nature clearly pointing to the 
 
 defendant as the perpetrator of the crime, 
 and which the jury could consider in con- 
 nection with the evidence assailed. The 
 judgment of conviction should be affirmed. 
 All concur. 
 
KECITALS IN STATUTES. 
 
 [Case No. 41 
 
 DOWNING et al. v. DIAZ et al. 
 
 (16 S. W. 49, 80 Tex. 436.) 
 
 Supreme Court of Texas. March 27, 1891. 
 
 Appeal from district court, Webb county. 
 
 H' Shnwalter and J. O. Nicttolson. for 
 appellants. McCuznpbells & H'e/c/j, for ap- 
 pellees. 
 
 STAYTON, C. J. This is an action of 
 trespass to try title, brought by appel- 
 lees, who are shown to be entitled to take 
 by inheritance from Joaquin Cuellar. 
 They allege that the land in controversy, 
 known as " Porcion No. 36," was sranted 
 to Jacinto Cuellar by the Spanish gov- 
 ernment in the year 1767, and that he 
 gave It in exchange to Joaquin Cuellar 
 for porcion No. 35, which was originally 
 granted to the latter at the same time tlie 
 land In controversy was granted to Ja- 
 cinto. Jacinto and Joaquin Cuellar were 
 brothers, and both died leaving descend- 
 ants. Appellants claim through patents 
 dated 9th and 20th of August, 1884, cover- 
 ing the same land embraced in porcioa No. 
 36,"^ and located by virtue of land certifi- 
 cates that issued since the adoption of the 
 present constitution of this state. The 
 cause was tried without a jury, and the 
 court found the following facts: "(1) 
 Plaintiffs, and those whose estate they suc- 
 ceed to, have been in actual, continuous pos- 
 session, with improvements, of theporcion 
 of land described in the petition ; and 
 within the knowledge of living and credi- 
 ble witnesses, who have testified herein, 
 for at least 75 years prior to the institu- 
 tion of this suit, and claiming and hold- 
 ing under well-defined boundaries. (2) 
 Said plaintiffs have so claimed and pos- 
 sessed the said porcion of land by virtue 
 of and under what is termed 'An Act of 
 General Visit of 1767,' archived under the 
 Spanish government in that year, and 
 recognized by it for over 50 years, and re- 
 spected and acquiesced in by the Mexi- 
 can government for 22 years, copy of 
 which act was filed in the general land- 
 office of Texas about 1871 by virtue of an 
 act of the legislature of Texas, entitled : 
 ' An act to provide for the obtaining and 
 transcribing of the several acts or char- 
 ters founding the towns of Reynosa, 
 Camargo, Mier, and Guerrero, in the repub- 
 lic of Mexico, and of Laredo in Texas, and 
 making an appropriation for that pur- 
 pose. Approved April 24, 1871, and same 
 constitutes now an archive of said gener- 
 al land-office under title 7, art. 57, subd. 5, 
 Rev. St. Tex. (3) Under said act poreion 
 35 was originally adjudicated to Joaquin 
 Cuellar and porcion 36 was originally ad- 
 judicated to Jacinto Cuellar; but I find 
 from a jjreponderance of evidence that for 
 at least 75 years the heirs and lineal de- 
 scendants of Joaquin Cuellar have been in 
 peaceable, adverse, and undisturbed pos- 
 session of porcion 36, and the heirs and 
 assignees of Jacinto Cuellar have been in 
 adverse, peaceable, and undisturbed pos- 
 session of porcion 35, and these porcions 
 are contiguou'f. (4) Plaintiffs are the 
 lineal descendants of Joaquin Cuellar, and 
 inh-irit all his right, title, and interest in 
 and to said porcion No. 36. (5) I find that 
 
 at the time of the location, surveys, and 
 patenting of the lands claimed by defend- 
 ants herein, porcion INo. 36, upon which 
 their said locations were made, and i)at- 
 ents subsequently obtained, waseguilably 
 owned by plaintiffs under color of title 
 from the sovereignty of the state, and the 
 evidence of said appropriation was in tne 
 general land-oflice, and also evidenced by 
 the occupation of the owners of said por- 
 cion, who were and are the plaintiffs here- 
 in. Ifind that thedelendant James Down- 
 ing had actual notice of same, as a tenant 
 of plaintiffs at the time he made his loca 
 tions. (6) The lands claimed by defend- 
 ants are within and upon porcion num- 
 bered 36, owned and possessed by plain- 
 tiffs as shown by the survey in evidence. 
 (7) I find that the defendants herein, re- 
 pectively,are the patentees of the land de- 
 scribed in the answer and numbered, re- 
 spectively, 91 and 92, in the name of James 
 Downing, and 410 in the name of VV. Von 
 Rosenberg, and same from the certificates 
 recited therein were patented and the lo- 
 cations thereunder made since tlie consti- 
 tution of 1S76 went into effect." Ah con- 
 clusions of law the court found : "(1) Un- 
 der the first, second, and fourth conclu- 
 sions of fact I find that plaintiffs have a 
 good and perfect title to porcion of land 
 numbered 36, and they are entitled to de- 
 cree quieting them in their title and pos- 
 session, and defendants must be enjoined 
 from claiming any part of the same, or 
 further asserting title by virtue of their 
 patents, which are null and void, and nmst 
 be delivered up for cancellation. (2) Un- 
 der the third conclusion of fact an ex- 
 change of porcions 35 and 36, between J oa- 
 quin Cuellar and Jacinto Cuellar, is pre- 
 sumed. (3) Under the fifth conclusion of 
 fact defendants cannot recover herein in 
 the nature of plea reconvention possession 
 of the lands described in their patents, as 
 said patents are null and void." On these 
 findings a judgment was rendered for tlie 
 plaintiffs. The questions raised relate to 
 the admission and rejection of evidence 
 and to the sufficiency of the evidence to 
 sustain the presumptions indulged by the 
 court. 
 
 The land in controversy was formerly 
 within the jurisdiction of thetown of Guer- 
 rero, once known as " Revilla." A paper 
 was offered in evidence which was a certi- 
 fied copy from the general land-office of a 
 paper therein filed by J. L. Haynes in pur- 
 suance of the act of April 24, 1871, (Pasch. 
 Dig. art. 5826.) Thatpaperwas by Haynes, 
 in pursuance of theactreferred to, <ibtained 
 from the archives of thetown of Guerrero, 
 and purports to be a copy of the proceed- 
 ings of a sub de legntion composed of the 
 saiae persons, acting under the same au- 
 thority and for the same purpose, as 
 shown in the case of Railwav Co. v. Jar- 
 vis, 69 Tex. 527, 7 S. W. Rep. 210. In that 
 case the law under which Haynes was 
 acting when he obtained and filed in the 
 general laud-office the paper from which 
 the copy used in this was taken, as well 
 a statement of the official character of the 
 persons whose acts it purports to evi-- 
 dence. and the purpose of the visit of the 
 sub de legsition will be found, as well as 
 a statement of the general course of pro- 
 cedure. The paper offered in evidence in 
 
 115 
 
Case No. 41] 
 
 KELEVANCT. 
 
 tliis case bears the same relation to the 
 town of Guerrero, its inhabitants and 
 property rights, as diO the paper offered 
 in evidence in the case before referred to, 
 to the town of Laredo, its inhabitants 
 and property rights. It is in effect the 
 cliarter of the town, and at the same 
 time the evidence of the right of the town 
 to lands set apart for public use, as well 
 as the evidence of the right of each settler 
 to the land then designated and granted 
 to him. Both towns embraced lands on 
 each side of the Rio Grande. The locality 
 of the several porcions granted to individ- 
 uals may be definitely ascertained from 
 the instrument as well as the relation of 
 land granted to one to that granted to 
 another. The recitals in reference to por- 
 C70Z3S 35, 36, and 37 are as follows: "(35) 
 On the same course and river bank they 
 measured thirty-four cords, which make 
 seventeen hundred Mexican varas, which, 
 with as many more on the opposite head 
 and twenty thousand on the sides, ad- 
 just a porcion. They identified it, and, 
 being applied for by Don .Joaquin Cuellar, 
 it was left to hira. (36) They measured 
 an equal number of cords on the same 
 course, which makes seventeen hundred 
 Mexican varas, and with as many more 
 on the opposite head and twenty thous- 
 and on the sides, a porcion which they 
 marked out complete, and, being applied 
 for by Don Jacinto de Cuellar, it was left 
 to him like the preceding one. (37) On the 
 same course and river bank they meas- 
 ured the same cords, which complete sev- 
 enteen hundred Mexican varas, with as 
 many more on the opposite head and 
 twenty thousand on the sides, a porc/on 
 which they marked out, and, being ap- 
 plied for by Bartolimi Cuellar, it was left 
 to him," — and in this manner proceeded 
 the designation of porcions until all the 
 settlers received lands. There is evidence 
 of much detail In the whole transaction 
 from its inception to the close, with strict 
 conforuiity with the laws then in force. 
 After the several allotments were made, 
 the fijib cle les;ates made the foUowingdec- 
 laration: "We hold, as adjudicated, the 
 sixty-nine porcions of la"d partitioned to 
 the residents and settlers of this town 
 and its jurisdiction, as the surveyors de- 
 clare they have done with the assistance 
 at the time of surveying them of some in- 
 terested parties. * * * For the full exe- 
 cution of their contents a ' testiinoriio' 
 thereof shall be left to the captain or jus- 
 tice to be archived for the protection of 
 the parties so soon as he shall effect the 
 taking of possession, when he shall estab- 
 lish conspicuous and lasting monuments 
 in every porciun and sitio assigned in or- 
 dei' that the r>ossession thereof may pre- 
 vent all damage and injury to third par- 
 ties." Christibal Benz Benavides, "cap- 
 tain or justice," was required to place 
 persons to whom lands had been allotted 
 in possession, and after having done so to 
 attach the original evidencing his acts to 
 the testiinouio left by the .s;;/) t/e /e^'.vfe, 
 and the same to archive for his piotec- 
 tion of all persons interested, and also to 
 forward to the sub de leg'ntps a testimonio 
 of his proceedings. In pursuance with the 
 jrder Benavides placed the settlers in pos- 
 session of the lands that had been allotted 
 116 
 
 to them, but possession seems not to have 
 been given in the order in which allot- 
 nents were made; and in some instances 
 exchanges made between persons after al- 
 lotment, but before judicial possession 
 was given were recognized as valid in the 
 fict of possession. In the proceedings by 
 him the following appears: "(29) Next 
 they proceeded to the place called 'Las 
 Animas,' under which patronage three 
 /t/icioDs of land are contained. The first 
 bplongs to Don Jacinto de Cuellar; (30) 
 the second to Don Joaquin Cuellar; (31) 
 and the third to Don Bartolomi de Cuel- 
 lar. When making the proper demonstra- 
 tions, as beforethe said Jacinto ai)peared, 
 personally representing the persons of his 
 father and brother, adjoining his own 
 tract, possession was delivered to him in 
 the name of all, and he received it in prop- 
 er conformity as the former ones upon the 
 stated conditions, the said witnesses being 
 present." Possession preceding and fol- 
 lowing this was given to the same per- 
 sons to whom the allotments preceding 
 and following were made. He also gave 
 possession of lands to the mission and 
 lots in the town to settlers, as provided 
 in the orders of the suh de legates, and 
 closed the record of his acts by a declara- 
 tion that the instrument then executed 
 was such a record made for their perpetu- 
 ation of which he ordered a testimonio 
 "be made item by item, literally, which, 
 being- done, shall be forwarded to his 
 Lordship Brigadier Don J. Fernando Pala- 
 cia, governor and vice captain general of 
 this colony, in obedience of orders, and 
 that his original be attached to the tes- 
 timonio of partition." 
 
 To give a full statement of the contents 
 of the paper offered in evidence as a copy 
 of that known as the "General Visit" 
 would consume more time and space than 
 can now be given to that purpose, but we 
 may say that it throughout, from day to 
 day, was executed with all the formalities 
 required at that time, and bears evidence 
 that the protocol from which taken was a 
 true and faithful record of what occurred 
 at the time the town of Guerrero was es- 
 tablished as a Spanish municipality. The 
 proceedings thus evidenced began early 
 in July, 1767, and ended on August 20th of 
 that year. Following the papers before 
 referred to in the transcript filed in the 
 general land-office by Haj-nes, from vs^hich 
 all the copies offered in evidence wer& 
 taken, are many papers, some of which 
 appear to have been taken from protocols, 
 executed in all respects as the laws then in 
 force required dui-ing the latter part of the 
 last century, and early in the present, 
 which refer to the paper known as the 
 "General Visit, " and recognize particular 
 appropriations of land as thereby made. 
 One of these was an application made by 
 Jose Miguel de Cuellar, of date February 
 20, 1801, directed to the governor of the 
 province, in which he made known to the 
 governor that he had succeeded to the 
 right of his father, Bartolomi Cuellar, to 
 the potcion of land set apart in the "Gen- 
 eral Visit," which vi&s porcion No. 37, and 
 complaining that his brother Joacjuin 
 Cuellar had shut him off from the view on 
 the south by an inclosure, and thereby 
 prevented his stock from getting wateiv 
 
RECITALS IN STATUTES. 
 
 [Case No. 41 
 
 ana prayiiiK that the governor appoint 
 some competent person " who shall, in ac- 
 corrlance with the said acts of the 'Gen- 
 eral Visit,' run the line, as it appears that 
 saif] porcion was given and bounded, and 
 that it be surveyed and run in accordance 
 with the tenor of said act, fronting on the 
 river, and with its depth on the estab- 
 lished courses as they appear in the pro- 
 ceedings of partition of lands, in order 
 that with surety I may obtain a watering 
 place on my property." In reply to this 
 petition the governor made the following 
 order. "I confer commission upon Don 
 Fraco. Corduite, who will, as is asked by 
 this party, conform himself to the ' Gen- 
 eral Visit,' with citation of adjoiningown- 
 ers, and declare the boundaries of thepor- 
 cioiis of land referred to, and cause mortar 
 and stone monuments to be erected there- 
 on. " On March 9th of same year Corduite 
 caused the order to be sent to the cu.s- 
 todian of the writings known as the"Gen- 
 eral Visit," requiring them to be sent to 
 him, in order that lie might duly discharge 
 his commission, which embraced other 
 land matters besides that already referred 
 to, and in pursuance of this order it ap- 
 pears that they were sent, and that (Cor- 
 duite then re-established the lines and cor- 
 ners of these porcions as were they at first, 
 in which all interested parties concurred; 
 and on the 14th of the same month the 
 papers were remitted to the. governor, 
 who, on November 18, 1801, finding the 
 work correct, approved it; but it does not 
 appear when the papers known as the 
 "General Visit," properly archived in Guer- 
 rero, but delivered to Corduite were re- 
 turned to their proper archive. The act 
 precedingthepaper which purports to be a 
 record of the proceeding of the sub de le- 
 gates and of Benavides, who was empow- 
 ered to establish lines and corners of por- 
 oions and to give possession in 1767, is as 
 follows: "In the city of Guerrero, in the 
 free state of Tamaulipas, on the third day 
 of the month of March, eighteen hundred 
 and thirty-one, I, Santiago Vela, constitu- 
 tional alcalde, acting with assisting wit- 
 nesses in default of a notary, there being 
 none in terms of law. In view of tlie reso- 
 lution of his excellency the governor of the 
 state, agreeably to his counsel, dated the 
 15th of October, in the year of 1830, last 
 past, upon the restoration of the proceed- 
 ings or acts of visit of this city, I order 
 that it takes effect in all its parts, copy- 
 ing in the form of testimonio the said doc- 
 uments, in order that, being protocoled, 
 they may perpetuate the evidence of pos- 
 session of the first settlers of this city. 
 This I have determined by this decree. 
 Signed by me. with my assisting witnesses 
 in the prescribed form, which I certify. 
 [Signed] Santiago Vei.a. Assisting wit- 
 nesses: Jose Ma Flores. Fi^okencio 
 Villa liEAL. " Then follow the entire pro- 
 ceedings of the sub de legation and other 
 papers referred to. which were properly 
 authenticated and delivered to the state's 
 agent on September 9, 1871, by whom they 
 were filed in the general land-oftice, and 
 certified copies therefrom were used on the 
 trial of this cause. Haynes, with the 
 papers before referred to, and embraced in 
 the transcript certified by the proper au- 
 thorities at Gueri-ero, also filed a statement 
 
 which purported to have been. made on 
 February 4, 1831, but by what authority 
 is not shown, showing to whom lands 
 were granted by the "General Visit," who 
 owned them at time statement was made, 
 what lands were granted in 1784, and 
 what lands were denounced in the year 
 1810, or under the colonization law, and 
 on this it appeared that porcion -35 was 
 granted to Jacinto (\iellar, 30 to Joaquin 
 Cnellar, and 37 to Bartolomi Cuellar, which 
 were stated to be owned by the heirs of 
 these persons, except No. 35, which was 
 held by a person named as a purchaser/ 
 The paper last named was objected to oaf 
 the ground that it did not appear that it| 
 wasan archiveatGuerreroorin thegeneral 
 land-ofRce, audit was furtherclaimed that 
 the original would not be admissible if pro- 
 duced. It sufficiently appears from thecer- 
 tiflcate authenticating the transcript filed 
 by Haynes that the paper was an ai'chive 
 at Guerrero; anditit appeared thatit was - 
 such a paper as Haynes was authorized, 
 by the act under which he was appointed, 
 to preserve a copy of them, the copy filed 
 by him in the general land-olflce would be 
 an archive of that office; but as presented 
 we are of opinion that it should have been 
 excluded on proper objection. We are of 
 opinion that the act under which Haynes 
 was appointed did not authoilze him to / 
 procure and file it in th;- general land- 
 office; for the original was neither an 
 "act, charter, or grant affecting the lands 
 on the east side of the RioGrande," but 
 merely a statement, it may be, of some 
 official of the town of Guerrero as to his 
 opinion as to the matters of which the 
 paper speaks. In this case, if it was not 
 properlj' an archive in the general land- 
 ofllce, the certified copy offered was not 
 admissible. 
 
 The objection to papers before referred 
 to. other than those which are termed the 
 "General Visit," made on the trial, was 
 as follows. "Because all that portion of 
 said document beginning on page 04, at 
 the said words, 'In the town of Revilla,' 
 and all thecontinuing portions thereof, ap- 
 Xjear to be made up of recitals of persons 
 regarding matters and things not relevant 
 to the issues of this cause, and not admis- 
 sible in the form offered, and instruments 
 and documents which do not purport to 
 be archives in any office in Mexico, and 
 none of which are inMtledtobe archived 
 in the general land olfice of Texas. " The 
 papers here referred to are not mere recit- 
 als, not relevant to the issues in this case, 
 but evidence the acts of the officers of the 
 Spanish government in making grants of 
 land, in the adjustment of boundaries of 
 land granted, ascertainment of unappro- 
 priated lands, and like matters. Some of 
 them had bearing on the question of right 
 of Joaquin Cuellar to the land in contro- 
 ver.sy, and as to its boundaries, and all in 
 some manner affected lands on the east 
 side of the Rio Grande, and threw more 
 or less light on the very matters in refer- 
 ence to which information was sought 
 through the act of April 24, 1871. Such 
 being their character, and it being clear 
 that they were properly archived at Guer 
 rero, tlie copies filed by the state's agent 
 in the general land-office became archives 
 of that office, as held in Railway Co. v. 
 
 117 
 
Case Xo. 41] 
 
 RELEVANCT. 
 
 Jarvis, 69 Tex. 527, 7 S. W. Kep. 210. There 
 ■were many objections made to the intro- 
 duction of the certified copy of the iiaper 
 known as the "General Visit," which con- 
 sists solely of the writings evidencing the 
 acts of the .sub de legates Palacio and Os- 
 erio, and of persons acting under their in- 
 structions, which were authenticated by 
 tliemselves with the necessary witnesses, 
 and by Benavides. who was auth(jrized by 
 them to place inhabitants in possession 
 of lands allotted at time surveys were 
 made. The paper takes its designation 
 from the fact that it evidences the acts of 
 the sub de lpp:ates who came to the Rio 
 Grande frontier, at time named, to or- 
 ganize the frontier towns, and to desig- 
 nate the lands that should pertain to 
 each for several public purposes, as -weli 
 as to allot lands to the settlers of such 
 towns, and to give evidence of the rights 
 conferred. The many objections nrged to 
 the admission of the certified copy from 
 the land-office may and will be grouped. 
 
 1. It was claimed that the paper 
 offered in evidence was neither a copy of 
 an archive in the landoflBce, nor of a 
 paper that could legally become an ar- 
 chive. As held in Railway Co. v. Jarvis, 69 
 Tex. 52?; 7 S. W. Rep. 210, it rests with the 
 legislature to determine wliatshall become 
 an archive; and under the statutes re- 
 ferred to in that case it must be held that 
 the paper in the general land-office from 
 which the co|)y offered in evidence was 
 taken was an archive, but its effect as evi- 
 dence is a matter for consideration here- 
 after. 
 
 2. It was objected that the loss of the 
 original was not proved, nor its absence 
 accounted for; and this objection em- 
 braces both the protocol and original tes- 
 f/mony'o evidencing the proceedings known 
 as the "General Visit. " From the record 
 before us it appears that both the papers 
 referred to, properly become archives in 
 two places in a foreign country; and from 
 the nature of the proceedingsevidenced b.y 
 them, did it not so appear in the record, 
 this court would take judicial knowledge 
 that they should so have become, and 
 could not be legally w^ithdrawn for pro- 
 duction here. The record of the proceed- 
 ings was, in effect, the chai-tor of the town 
 of Revilla, now known as "Gueri'ero," 
 as well as evidence of the town's right to 
 all lands set apart for public use, and, at 
 the same time, the evidence of Individuals' 
 riglits to the tracts of land allotted to 
 persons in whose favor no separate evi- 
 dence of right was given. The protocol, 
 unless otherwise directed by competent 
 authority, was required to be placed in 
 the proper archive of the government, 
 while the original remained with the in- 
 terested parties as the evidence of their 
 right; and affecting, as it did, the town 
 in its municipal character and ownership, 
 the archive of the town was the proper 
 place of deposit. The paper evidences the 
 fact that neither the protocol nor original 
 could he legally suri'endered by their cus- 
 todians to individuals to be taken to an- 
 other country, or for any other purpose; 
 and the objections now considered were 
 properly overruled. 
 
 3. It was urged that the paper fr(nn 
 which that filed in the general land-oftice 
 
 lis 
 
 was copied was not an archive in the 
 town of Guerrero, and that this appears 
 from the instrument itself. So far as the 
 contents of the paper show, it was one 
 not only such as it was proper to mane 
 an archive of that town, but one which by 
 competent authority was required to be 
 so made. In reference to such a matter it 
 is peculiarly proper to presume that was 
 done which ought to have been done, and 
 especially so after the lapse of so many 
 years. If the original, authenticated bj' 
 the sub de legates with necessary wit- 
 nesses, and evidencing their acts, and 
 the protocol, properly authenticated, evi- 
 dencing the acts of Benavides under their 
 orders, wei'e found archived at Guerrero, 
 they would be held to make full proof of 
 the facts testified to by them, in the 
 courts of all countries where the laws of 
 Spain are in force, and in all courts gov- 
 er/ied by the rules of the common law- 
 wherein should arise a question as to the 
 faith to be given to such instruments, ex- 
 ecuted when the Spanish laws were in 
 force, and affecting property subject to the 
 d'jminion of that sovereignty. It is not 
 clear from the record, except as before 
 stated, how the papers from which those 
 in the general land-office were copied were 
 authenticated; but it is evident that the 
 copy in that office was not made from 
 the original left by the s»h de legates, and 
 the protocol executed by Benavides with 
 proper witnesses, which was directed to 
 be attached to that original and both to 
 be archived in Guerrero. We have seen 
 not only that the papers last named were 
 directed to be archived at that place, but 
 that thiswas done; and we havealso seen 
 that, under the order of the governor of 
 the province, these papers were directed 
 to be delivered to Corduite, and that they 
 were received by him. These facts appear 
 through papers properly authenticated, 
 and the record clearly manifests that the 
 labors of Corduite were governed by these 
 papers, to which frequent reference is 
 made. Whether the papers archived in 
 Revilla in ITiiT, and removed by order of 
 the governor in IJSOI. were ever returned, 
 cannot be clearly ascertained from the rec- 
 ord before us ; but it is evident that they, 
 or copies of them, were returned with a 
 resolution of the governor of the state of 
 date October 15, 1830. The resolution is 
 not found in the record; but the inference 
 from what does appear is that it accomi- 
 panied the papers removed in 1801, or cop- 
 ies of such papers, and contained an or- 
 der that they should be copied, and placed 
 in such enduring form as would perpetuate 
 the evidence of the rights of the first set- 
 tlers, as well as of the town. From the 
 decree of March 3, 1831, it is evident that 
 what was then done was in obedience to 
 the order or resolution of the governor of 
 October 15, 1N30, and that tliis required 
 whatever papers were restored to be 
 copied "in the form of testimnnio, the 
 said documents, in order that, being pro- 
 tocoled, they may perpetuate the evidence 
 of possession of the first settlers of this 
 city. " What was directed to be done was 
 to perpetuate evidence of rights, which 
 would be impossible if the record to be 
 made would not import verity. The 
 meaning of the language above quoted is, 
 
liEClTALS IN STATUTES. 
 
 [Case No. 41 
 
 not clear; but, in -vievvof thefact that one 
 of the papers constituting the "General 
 Visit" was a testimo/j/o, and the other a 
 matrix or protocol, a copy to be made 
 Irom them would be, not only in form, 
 but in fact, a testirnonio, and the direction 
 that they should be protocoled for perpet- 
 uation carries with it the idea that they 
 should be copied into a book. The Span- 
 ish word "protooolo," when applied to a 
 single paper, means the first draft of an 
 instrument duly executed before a notary, 
 — the matrix,— because it is the source 
 from which must be taken copies to be 
 delivered to interested parties as their evi- 
 dence of right; and it also means a bound 
 book in which the notary places and keeps 
 in their order instruments executed before 
 him, from which copies are taken for use 
 of parties interested. It is evident that in 
 neither of these senses, strictly, was the 
 Spanish word translated "protocoled," 
 used in the order of March 3, 1831 ; but 
 the inference is that by resolution of the 
 governor of date October 15, 1S30, the per- 
 son who made the order of later date, and 
 made the record from which thetranscriijt 
 in the general land-office was taken, was 
 directed to place in a book for preserva- 
 tion,' as are matrices when said to consti- 
 tute a protocol. The copies which the 
 governor intended should be preserved are 
 evidence of rights, public and private, con- 
 ferred by the acts of the sub delegates, 
 and persons acting under their orders; 
 and we maybe permitted hereto say that, 
 after so great a lapse of time, with our re- 
 stricted means of acquiring correct infor- 
 mation, it would not be just to assume 
 that what was deemed sufficient evidence 
 of right by the officers of the former gov- 
 ernment, who must be presumed to have 
 been familiar, not only with the general 
 laws then in force, but with the special 
 laws and usages of the tilne. as well as the 
 facts attending a particular transaction, 
 is now entitled to no consideration. We 
 cannot hold, under the facts presented, 
 that the papers from which the transcript 
 filed in the general land-offlce was made 
 were not archives in the town of Guerrero. 
 
 4. It was urged that the introduction of 
 thecertified copy from the general land-of- 
 fice was forbidden by section 4, art. 1.3, of 
 theconstitution; but It isevident that the 
 section of the constitution has no applica- 
 tion to it. Railway Co. v. Jarvis, 69 Tex. 
 540, 7 S. W. Rep. 210. It was claimed that 
 the paper should have been excluded be- 
 cause it does not show that porcion No. 
 36 was granted to Joaquin Cuellar, and 
 because it does not sufficiently describe the 
 land. It is true that the paper does not 
 show that the porcion was originally 
 granted to Joaquin (Juellar, through whom 
 plaintiffs claim ; but one step in tlieir de- 
 raignment of title was to show that the 
 land was granted to Jacinto Cuellar by 
 the Spanish government, and through him 
 they seek to show title in their ancestor; 
 and, if the paper tended to prove that 
 fact, it was admissible, unless subject to 
 some other objection. Looking to the 
 whole paper, there can be no doubt that 
 the land can be identified by the descrip- 
 tion therein given. 
 
 5. It was urged that the paper did not 
 show more than an inchoate grant, and 
 
 that for this reason It should have been 
 excluded, unless proof of confirmation 
 was made. The paper, upon its face, does 
 not purport to evidence an inchoate right; 
 but, if it did, this would not furnish suffi- 
 cient reason for excluding it as evidence 
 of some right and description of the land; 
 and confirmation ought to be presumed, if 
 necessary, from the long and continuous 
 possession shown under claim based on 
 the proceedings evidenced by the paper. 
 
 6. It was several times urged, in effect, 
 that the record from which thecopy filed in 
 thegeneral land-office was taken would not 
 have been admissible to prove the facts 
 stated in it, or for any other purpose. If 
 that be true, the paper offered should have 
 been excluded ; butif that benot true, then 
 the transcript filed in the general land- 
 office, or a certified copy taken from that, 
 ought to have been received as evidence 
 of the facts which the paper states to be 
 true; for, the transcript in the land-office 
 having become by law an archive, certi- 
 fied copies from it maj be used in evidence 
 in cases in which the record now found in 
 Guerrero could be. The objections now 
 underconsiderationare based on the prop- 
 osition that, the record found in Guerrero 
 is but a copy, and too remote from the 
 protocols to be received in evidence. It 
 must be conceded that the record in Guer- 
 rero now found in the archives of that 
 town was made in the year 1H31 ; and it is 
 proper to hold, from what appears, that 
 it was copied from the papers there filed 
 in 1767, subsequently removed, and not re- 
 turned until some time after October 15, 
 1830. That record, in so far as it contains 
 the proceedings of the sah de If gates, 
 would be what is termed in the Spanish 
 law a "fras/arfo," which is a copy taken 
 by a notarj' from the original, or a subse- 
 quent copy taken from the protocol, and 
 not a copy taken directly from the matrix 
 or protocol ; but, in so far as it contains 
 the proceedings by Benavides, it would be, 
 so far as the record shows, what is the 
 original, because thefirst copy taken from 
 the protocol, orat most a subsequent copy 
 taken from that paper. It may be con- 
 ceded that to entitle a paper of the class 
 last described to entire faith under the 
 Spanish law, it should be given by the 
 officer before whom the protocol was ex- 
 ecuted, or if by another notary on imjuiry 
 after citation to parties adversely inter- 
 ested; and, further, that under the laws 
 in force here the execution of the copy 
 would have to be proven even when the 
 protocol is an archive of the government, 
 unless by reason of its age it was entitled 
 to be introduced as an ancient instru- 
 ment. A paper of the class first named,— 
 a copy taken from an original,— under the 
 Spanish law, was only en titled tofuU faith 
 against the party producing it. unless 
 given after citation to the person adverse- 
 ly interested under judicial sanction; but 
 it seems to be held, when such a copy is 
 given by the notary before whom the pro- 
 tocol was executed, and by whom the 
 original was extended, that even such 
 copies are entitled to full faith. But, un- 
 der that law, even a truslaOo, if it be an- 
 cient, is entitled to full faith, although 
 given by a notary other than the one be- 
 fore whom the protocol or original were 
 
 U9 
 
Case No. 41] 
 
 EELEVANCY. 
 
 anthenticated. and without citation and 
 jndiL'ial Manction, in cases in which the 
 property passed by it is possewsed under 
 the right conferred by it for the period of 
 30 years. These rules of the Spanish law, 
 however, have no force here, further than 
 that we may look to them to ascertain the 
 character of evidence one claiming; a grant 
 of land from theSpanish ia;overnment ought 
 to produce. .Assuming, then, that thecopy 
 offeied in evidence is an archive in the gen- 
 eral land-office, and thtit its remoteness 
 from the protocols is as stated, then, in 
 view of the facts shown by other instru- 
 ments, to which the objection now under 
 consideration does not apply ,and of thefur- 
 therfactthat plaintiffs, and those through 
 whom they claim, have had continuous 
 possession of theland described in tho.sein- 
 «truments,and claiming through them, for 
 a period of 75 years, can It beheld that the 
 certified copy was not admissible under 
 the rules of the common ]a^v to show the 
 boundaries of their claim, and thegrounds 
 on which this has been so long asserted. If 
 for no other purpose? We think not, and 
 it is unnecessary for us now to determine 
 whether it would be admissible and suffi- 
 cient to show title if uncorroborated by 
 otlior facts. In State v. Cuellar, 47 Tex. 
 295, extracts from the papers we have re- 
 ferred to were considered, and properly 
 held not to be admissible in an action for 
 3oi]flruiation of title; but the transcript 
 before us shows all the matters which the 
 court was then unable to understand 
 from the brief extracts used in that case; 
 and,besides,sincethatcaae was decided the 
 3opy now in the land-office has been made 
 by law an archive. Many of the ques- 
 tions relating to the admission of the pa- 
 pers in question were considered In Rail- 
 way Co. V. Jarvis, 69 Tex. 530,7 S. W. Rep. 
 210, which involved a similar question, 
 which may be looked to, on matters now 
 not fully discussed, for the reasons on 
 which some rulings are made. It is urged 
 that the court erred in finding that plain- 
 tiffs, and those through whom they claim, 
 before the institution of this action had 
 possessed the land continuously for at 
 least 75 years, claiming it under well-de- 
 fined boundaries; but the evidence fully 
 sustains the findings, and there is evidence 
 tending to show that their ancestor was 
 in actual possession of the land at the be- 
 ginning of thin century, when the bound- 
 ary between it and poroion No. 37 was for 
 the second time established by the govern- 
 ment. The same facts tend to show the 
 exchange between Jacinto and .loaquin 
 Cuellar, and justified the court's finding 
 in this respect; and the recogniti(m of the 
 right of plaintiffs and their ancestors to 
 the land by former governments and by 
 this, until the patents relied on by the de- 
 fendants issued, is to be inferred from the 
 fact that their claim was asserted by pos- 
 session, recognized by the vicinage as well 
 as by papers in the archives of the former 
 government, and their right was never 
 questioned by any government or individ- 
 ual until appellants concluded that the 
 land was vacant. 
 
 It Is urged that the court erred in find- 
 ing that the land was equitably owned by 
 plaintiffs under color of title from the sov- 
 ereignty of the soil at the time appellants 
 
 120 
 
 made their locations ; but, if we disregard 
 all the evidence contained in the certified 
 copy of the "General Visit" issued from 
 the general land-office, no other conclu- 
 sion ought to have been reached from the 
 other evidence in the case, looking to the 
 laws of which the court should have tak- 
 en judicial notice. At the opening of this 
 century the father of Joaquin Cuellar, to 
 whom was granted porcion No. 37, made 
 known to the authorities that his son 
 was in possession of the land in contro- 
 versy, which was contiguous to his, and 
 that by inclosure made by the son on the 
 south he was excluded from water. By 
 the act of February 10, 1S52, porcion No. 
 37 was confirmed to the father, and por- 
 cion No. 35 to Joaquin Cuellar, and be 
 tween those is porcion 3H, the land in 
 controvers,y, of which plaintiffs and an- 
 cestors had continuous possession for 75 
 years before the trial of this cause, claim- 
 ing tlie land as their own. These facts 
 alone would have justified a finding that 
 plaintiffs were not only theequitableown- 
 ers, but that they held it under title from 
 the sovereignty of the soil. The findings 
 of fact required the findings of law; and, 
 while it Is not necessary to rely upon the 
 certified copy of the " General Visit " to sho w 
 the title of the plaintiffs, we desire to note 
 the fact that by the act oJ February 10, 
 1852, (Pasch.Dig. art. 4461,) noless than 20 
 porcions of land within the jurisdiction of 
 Guerrero were confirmed b.y numbers, as 
 given in that instrument, to the persona 
 to whom that showed these several por- 
 cions were granted in 1767; and, had appli- 
 cation been made for confirmation of por- 
 cion No. 36, it doubtless would have been 
 made at the same time as was done in re^ 
 gard to those above and below and con- 
 tiguous to it. 
 
 This action \vas brought by 16 persons 
 all of whom clairn by Inheritance from oi 
 through Joaquin Cuellar, except som* 
 who were husbands of persons thus claim- 
 ing, and joined pro forma, and among: 
 those so claiming is Francisco Cuellar. In 
 bar of this action, defendants pleaded a 
 judgment of the district court for Travi?. 
 county in favor of the state, renderea 
 against Francisco Cuellar, in an actioB 
 brought by him as an heir of Jacinto 
 Cuellar, in which he assumed to sue for 
 himself and co-heirs, who werenot named, 
 for confirmation of title to theporcjon o1 
 land in controversy. That action waw 
 brought early in the year 1871. On th'; 
 trial of this cause defendants offered ta 
 read in evidence copies of the pleadings, 
 judgments, and statement of facts in thai 
 case; but the court excluded the state- 
 ment of facts on objection, and admitted 
 the pleadings and judgments. It is urged 
 that the court erred in excluding the state- 
 ment of facts, but this ruling was evident- 
 ly correct. It is also urged that the court 
 erred In excluding what is termed the 
 "Judgment Voll," but this is not sus- 
 tained by the record, for it was admitted 
 under defendants' plea of not guilty, as 
 shown in the statement of facts. 
 
 It is claimed that the court erred in not 
 rendering judgment in favor of appellants 
 on their plea of res adjudicata, but there 
 was no error in this ruling for several 
 reasons. That action was by Francisco 
 
BECITALS IN STATUTES. 
 
 [Case NO. 41 
 
 ■Cuellar alone, and a judgment therein 
 could not bar the right of the other plain- 
 tiffs in this case, even if it would bar an 
 action by him ; but that action was pros- 
 ecuted by him as an heir of .Jacinto Cuel- 
 lar, and it would be no bar to this, even 
 as to him, for he now sues in a different 
 right. Thompson v. Cragg, 24 Tex. 5S2, 
 Canith V. Grigsby, 57 Tex. 2R6. If, how- 
 ever, that judgment could operate as a 
 bar to him, this would not better the con- 
 dition of appellants; for, the land being 
 
 equitably owned, titled, and occupied by 
 plaintiffs at the time defendants' locations 
 were made, under the provisions of the 
 constitution they could acquire no inter- 
 est in it, (Const, art. 14, § 2.) and the oth- 
 er plaintiffs would be entitled to recover. 
 Although the court below erred in the 
 matter noticed, that furnishes no reason 
 for reversing the judgment; for, on the 
 evidence, no other judgment than tlie one 
 entered could have been rendered, and it 
 will therefore be affirmed. It is so ordered. 
 
 121 
 
Case No. 42] 
 
 RELEVANCY. 
 
 STEINBR.UNNER v. PITTSBURG & W. K. 
 CO. 
 
 (23 Atl. 239, 146 Pa. St. 504.) 
 
 Supreme Court of Pennsylvania. Jan 4, 1892. 
 
 Appeal fi'om court of common pleas, Alle- 
 gheny county. 
 
 Action by Barbara Steinbrunner against 
 the Pittsburg & Western Railroad Company 
 for damages for the death of plaintiff's 
 husband, alleged to have been caused by de- 
 fendant's negligence. Judgment for plain- 
 tiff, and defendant appeals. Reversed. 
 
 John JlcCleave, for appellant. Marcus A. 
 Wood^vurd, for appellee. 
 
 PAXSON, C. J. Upon the trial in the court 
 below, it became a vital question of fact 
 whether the deceased, Xavier Steinbrunner, 
 stopped, looked, and listened just before he 
 crossed the railroad track. One witness for 
 the plaintiff, Miss Margaret Martin, testified 
 distinctly that he did stop on the sidewalk 
 crossing of Cherry street. There was posi- 
 tive evidence, however, the other way. 
 Charles Rentz, a witness for the defense, 
 testified that the deceased did not stop. "He 
 didn't look either way; never looked either 
 way; just came straight through." Wil- 
 liam Cernuska testified that he saw the de- 
 ceased from the time he started down the 
 hill until he was struck by the train; that 
 he did not stop, nor look either way; that he 
 had a bag in his hand, and was looking at it. 
 William F. Crooks, another witness, says: 
 "I noticed Mr. Steinbrunner just coming out 
 of the foot of Cherry street, a:nd he come on 
 down, and when he got along-side of the side 
 track, about three feet this side of the first 
 track, the wheel kind of scotched. He stop- 
 ped just about a second, and then he went 
 ahead, and when the horse was about half- 
 way over the main track the train struck 
 him. * * * He made no other stop. 
 * * * Didn't see him look up or down. He 
 had his head down, kind of this way, [illus- 
 trating.] It seems to me he was counting- 
 some money or something. I know that he 
 didn't look up or down. When his wagon 
 checked for that short time, I thought he 
 was going to wait till the train passed on." 
 Under these circumstances we think it was 
 error for the learned judge below to say to 
 the jury: "The fact is uncontradicted that 
 he did stop at the crossing on Cherry street 
 just as he crossed over and came on River 
 avenue, but did he stop for the purpose of 
 looking out for trains?" It may be the 
 learned judge used this language inadvert- 
 ently. This is probable from the fact that 
 it is inconsistent with the portion of his 
 charge which immediately preceded it. But 
 as it stands it appears to be an erroneous 
 statement of the evidence upon the pivotal 
 fact in the case. W^ cannot say what in- 
 fluence it had with the jury. Where a judge 
 states the evidence in two ways, one in favor 
 
 122 
 
 of a corporation and the other against it, a 
 jury may be depended upon to adopt the- 
 latter. 
 
 The sixth specification alleges that the- 
 court erred in answer to the plaintiff's sec- 
 ond point. The point involved the measure 
 of damages, and in most respects was corT 
 rectly answered. But when the learned 
 judge told the jury that they should look at 
 this question "from a broad and sensible 
 point of view, and liberal, because it is not 
 a case to cut off corners too closely," we- 
 think the expression was unwise, to say the 
 least. Juries do not need encouragement 
 froiii the court to give large verdicts against 
 corporations, especially railroad corpora- 
 tions. Courts and juries should be just tO' 
 both corporations and individuals, but no 
 one has a right to be "liberal" with the mon- 
 ey of other persons. While we are not pre- 
 pared to say we would reverse for this rea- 
 son alone, we have considered the matter of 
 sutficient importance to call attention to it. 
 
 The only remaining specification of error 
 which we think it necessary to refer to is 
 the ninth, which alleges that the court erred 
 in admitting certain evidence of the de- 
 ceased's expectation of life, based upon th& 
 Carlisle tables. The question asked the wit- 
 ness was, "Will you state to the jui"y what 
 the expectation of life Is of a man in good 
 health, 46 years of age?" and the answer 
 was: "The Carlisle table would make it 
 23.81 years; the American table, 23.8 years." 
 Neither of the tables appears to have been 
 offered in evidence, but, as the answer of the 
 witness was based upon evidence obtained 
 from them, their effect may well be consid- 
 ered in connection with this specification;- 
 and, as the American table depends upon the 
 same principle as the Carlisle table, we will 
 discuss the question more jjarticularly in ref- 
 erence to the latter. In estimating the dam- 
 ages for the death of the deceased, his ex- 
 pectation of life became an element of im- 
 portance. His earning power being fixed by 
 the evidence, the next question to be settled 
 by the jury would naturally be, how many 
 years will he probably live to exercise this- 
 power? This can never be decided accurate- 
 ly in single cases. The most a jury or any 
 one else can do is to aijproxlmate it. A 
 man may die in a day, or he may live to earn 
 wages for 20 years. It follows that there 
 must always be an element of uncertainty in 
 every such case. But there are some rules 
 to be observed which aid to some extent in 
 such investigations. Thus, if a man is in 
 poor health, especially if he is suffering from 
 some organic disease which necessarily tends 
 to shorten life, his expectancy is much less 
 than that of a man in robust health. Again, 
 the age of the person and his habits are 
 among the important matters for considera- 
 tion. It needs no argument to show that 
 the expectation of life is much greater at 21 
 years of age than at 50. The value of th& 
 
MATTERS OF HISTORY, MAPS, LIFE TABLES, ETC. [Case No. 42 
 
 Carlisle tables as bearing upon this question 
 depends in a measure upon the manner in 
 which they were made up. If based upon 
 selected lives, that is to say, only upon lives 
 which are insurable, they would be of value 
 only for life-insurance purposes, and utterly 
 useless to apply to unselected lives or lives 
 generally. The evidence in this case is not 
 very clear as to the mode in which these ta- 
 bles were composed. I have therefore con- 
 sulted the Encyclopaedia Britannica, a very 
 liigh authority" (volume 18, p. 169,) from 
 which I extract the following: "Tlie Carlisle 
 table was constructed by Mr. Joshua Milne 
 from materials furnished by the labors of 
 Doctor John Heycham. These materials 
 comprised two enumerations of the popula- 
 tion of the parishes of St. Mary and St. 
 Cuthbert, Carlisle, (England,) in 1780 and 
 1787, (the number of the former year having 
 been 7,677, and in the latter 8,677,) and the 
 abridged bills of mortality of those two par- 
 ishes for the nine years, 1779 to 1787, during 
 which period the total number of deaths was 
 1,8-10. These were very limited data upon 
 which to found a mortality table, but they 
 were manipulated with great care and fidel- 
 ity. The close agreement of the Carlisle ta- 
 ble with other observations, especially its 
 agreement, in a general sense, with the expe- 
 rience of assurance companies, won for it a 
 large degree of favor. No other mortality 
 table has been so extensively employed in 
 the construction of auxiliary tables of all 
 kinds for computing the value of benefits de- 
 pending upon human life. Besides those fur- 
 nished by Mr. Milne, elaborate and useful 
 tables based upon the Carlisle data have 
 been constructed by David Jones, W. T. 
 Thomson, Christopher Sang, and others. 
 The graduation of the Carlisle table is, how- 
 ever, very faulty, and anomalous results ap- 
 pear in the death rate at certain ages." It 
 appears, therefore, that the Carlisle table is 
 based upon general population, and not upon 
 selected or insurable lives. In Shippen's 
 Appeal, 80 Pa. St. 391, it was held that the 
 Carlisle table was not authoritative in deter- 
 mining the value of a life-estate, and the 
 
 common-law rule of one-third the capital 
 sum was adopted as the measure of the life- 
 interest. It was said in the opinion of the 
 court: "As to the measure of the life estats 
 of Slayton T. Piatt, we may add that the 
 Carlisle tables are not authoritative. They 
 answer well their proper purpose, to ascer- 
 tain the average duration of life, so as to 
 protect life insurers against ultimate loss 
 upon a large number of policies, and thereby 
 to make a profit to the shareholders. But ar 
 individual case depends on its own circum- 
 stances, and the relative rights of the life 
 tenant and the remainder-man are to be as- 
 certained accordingly. A consumptive oi' 
 diseased man does not stand on the same 
 plane as one of the same age In vigorous 
 health. Their expectations of life differ In 
 point of fact." We can understand that in 
 a contest between a life-tenant and the re- 
 mainder-man the Carlisle tables would not 
 serve as an authoritative guide. In such 
 instance the question must be decided upon 
 its own facts. But in a case like the one in 
 hand, where the expectation of life of the 
 deceased Avas a question of fact for the jury, 
 we are unable to see why the tables referred 
 to were not competent evidence. Being in- 
 tended for general use, and based upon aver- 
 age results, they cannot be conclusive in a 
 given case. That is not the question here. 
 It is whether they are not some evidence, 
 competent to be considered by a jury. Their 
 value, where applied to a particular case, 
 will depend very much upon other matters, 
 such as ths state of health of the person, his 
 habits of life, his social surroundings, and 
 other circumstances which might be men- 
 tioned. While we are unable to see how 
 such evidence is to be excluded, I must be 
 allowed to express the fear that it may 
 prove a dangerous element in this class of 
 cases, unless the attention of juries is point- 
 edly called to the other questions which af- 
 fect it. Upon the whole, we are of opinion 
 the evidence referred to was properly receiv- 
 ed, and this specification is not sustained. 
 The judgment is reversed, and a venire 
 facias de novo awarded. 
 
 ' 123 
 
Case No. 43] 
 
 RELEVANCY. 
 
 KANSAS CITY, M. & B. R. CO. v. SMITH. 
 
 (8 South. 43, 90 Ala. 25.) 
 Supreme Court of Alabama. June 11, 1890. 
 
 Appeal from city court of Birmingham : 
 H. A. Sliarpe, Judge. 
 
 This action was brbnght to recover 
 damages for personal injuries sustained 
 by plaintift on acconnt of a wreck alleged 
 to have been caused by tbe negligence of 
 defendant. The complaint contained two 
 counts, on which issue was joined, viz., 
 the first and third In the first of these, 
 the plaintiff sought to recover for the al- 
 leged negligence of the defendant in using 
 in the train and transportation an old, 
 weak, and defective car, which by being 
 overloaded, gave way on a trestle and 
 caused the wreck, whereby the plaintiff 
 was injured; and in the third count the 
 plaintiff based his recovery upon the al- 
 leged negligence of the defendant by rea- 
 son of defects in the condition of the 
 ways, works, and machinery used by the 
 defendaut, whereby the accident occurred. 
 Issue was joined on these counts by the 
 defendant pleading the general issue, and 
 contributory negligence. Upon the trial, 
 as shown by the bill of exceptions, the 
 plaintiff introduced evidence tending to 
 show that the car which gave way, and 
 thereby caused the accident, was an old 
 car, and the timbers thereof were rotten, 
 and insecure; that it was loaded with 
 some kind of fertilizer or guano, and was 
 overloaded ; and that, while on a trestle, 
 this car by reason of being old, rotten, 
 and insecure, and because of being over- 
 loaded, gave way, and fell through the 
 trestle, thereby causing the wreck wherein 
 the plaintift was injured. The evidence 
 introduced by the defendant was in direct 
 conflict with the evidence of the plaintiff, 
 and tended to show that the cars used in 
 said train, its machinery, and its road-way 
 were in good condition, and that the said 
 car was not ovei-loaded, and that the ac- 
 cident did not occur from any negligence 
 on its part. During the trial, after the 
 examination of Mary A. Hughes, a wit- 
 ness for the plaintiff, who testified that 
 she took a photograph of thewreck about 
 two hours after it occurred, and on being 
 shown the photograph testified that that 
 was the one, and that it was a correct 
 picture of the wreck and its surroundings, 
 the plaintiff offered to introduce the pho- 
 tograph in evidence. The defendant ob- 
 jected, but the court overruled its objec- 
 tion, allowed the photograph to be intro- 
 duced in evidence, and the defendant 
 thereupon duly excepted. During the ex- 
 amination of one Slaton, as a witness for 
 the plaintiff, he was asked, "How long, 
 how wide, and how thick is a sack of gua- 
 no that weighs from 167 to 200 pounds?" 
 The defendant objected to this question, 
 but the court overruled its objection, and 
 allowed the witness to answer against 
 the exception of tlie defendant as follows: 
 "A 200-pound sack is about 24 inches long, 
 about 38 inches wide, and, when it is 
 down, it is about 9 inches thick, lying 
 down as it lays in a car. " Before the trial 
 was entered into, the defendant (demanded 
 a struck jury for the trial of this cause. 
 At the time this demand was made, there 
 
 124 
 
 were only 23 regular jurors in attendance 
 upon the court. The court thereupon in- 
 structed the sheriff to "summon one K. 
 E. Seelye as such juror, and he was sworn 
 as such and placed upon the jury." Upon 
 being furnished with this list of jurors, as 
 thus completed, the defendaut objected to 
 the list of jurors ; but the court overruled 
 its objection, and the defendant duly ex- 
 cepted. There was judgment for plaintiff, 
 and defendant appeals. 
 
 Hewitt, Walker & Porter, for appellant. 
 Bowman & Harsh, for appellee. 
 
 SOMERVILLE.J. I. The photograph of 
 the trestle and of the wrecked train of 
 cars was shown to have been taken about 
 two honrsafter the accident occurred, and 
 was verified by the testimony of the pho- 
 tographer as being a correct representa- 
 tion of the locality and scene. It was 
 clearly admissible in evidence to aid the 
 jury in properly understanding the case. 
 It is a well-understood rule, applied in 
 every-day practice in the courts, that dia- 
 grams and maps illustrating the scene of 
 a transaction, and the relative location of 
 objects, if proved to be correct, are admis- 
 sible in evidence in order to enable the 
 jury to understand and apply the proved 
 facts to the particular case. 3 Brick. Dig. 
 p.431,§ 306. Apian, picture, or other repre- 
 sentation produced by the art of photog- 
 raphj-, is admissible on like principles, if 
 verified as a true and accurate represen- 
 tation. It is, in fact, but a scientific re- 
 production of a fac simile of the original 
 object in nature, by a mechanical art 
 which is every day advancing towards 
 perfection. The competency of such evi- 
 dence was settled in Luke v. Calhoun 
 Co., 52 Ala. 115, approving alike ruling 
 in the case of Udderzook v. Com., 76 Pa. 
 St. 340, where a photograph of a per- 
 son in life, shown to be a correct picture, 
 was admitted in evidence for the purpose 
 of aiding in the identification of a de- 
 ceased iicrson alleged to have been mur- 
 dered. The case of Ruloff v. People, 45 N. 
 Y. 213, supports the same principle. In 
 the case of Blair v. Pelham, US Mass. 420, 
 which was an action against a town to 
 recover damages for injuries caused by a 
 defect in a highway, the defendant was 
 permitted to put in evidence a photograph 
 of the place of the accident, on its verifica- 
 tion by the photographer as a true repre- 
 sentation. So in Church v. City of Mil- 
 waukee, 31 Wis. 512, an action for dam- 
 ages resulting to a lot-owner from a 
 change in the grade of a street, a photo- 
 graph of the premises shown to be correct 
 was admitted "to aid the jury in arriving 
 at a clear and accurate idea of the situa- 
 tion of the premises, and enable them to 
 better understand how they were affected 
 by the change in the grade. " And Cozisons 
 v. Higgins, 33 How. Pr. 436, decided by 
 the New York court of appeals, is to tho 
 same effect. In an action of trespass 
 against an adjoining proprietor, for tho 
 wrongful act of opening holes in the walU 
 of the plaintiff's cellar, so as to render it 
 untenable, by projecting into it heavy 
 beams, a "photographic view" oftheeellar 
 was admitted in evidence as "an appro- 
 priate aid to the jury in applying the evi- 
 dence." The case of Dyson v. Railroad Co., 
 
MATTERS OF HISTORY, MAPS, LIFE TABLES, ETC. [Case No. 4S 
 
 57 Conn. 10, 17 Atl. Rep. 137, is another au- 
 thority directly in point, whoiv, in an ac- 
 tion tor dainasi'S against? a railroad coiii- 
 panj', a photographic view of thH locun in 
 quo of the accident was held to be admis- 
 sible in evidence. The same ruling preoi.se- 
 ly was made in the case of Archer v. Kail- 
 road Co., 13 N. E. Rep. 318, (decided in 
 1887, by the New York court of appeals.) 
 We entertain no doubt as to the sound- 
 ness of these rulings, and they fully sup- 
 port tlie action of the court in admitting 
 in evidence the photograph of the wrecked 
 train and surrounding locality in this case. 
 1 Whart. Ev. (3d Ed.) § 67(5; Eborn v. Zim- 
 pelman, 26 Amer. Rep. 319-321, note; Mar- 
 cy V. Barnes, 16 Gray, 161 ; Locke v Rail- 
 road C'o., 46 Iowa, 109. 
 
 2, 3. The question propounded to the 
 witness Slaton, and his answer to it, 
 tended to throw some light on the plain- 
 tiff's contention that the car containing 
 the fertilizer was too heavily loaded ; 
 which was one of the grounds o£ negli- 
 
 gence imputed to the defendant as the 
 proximate cause of the injury suffered by 
 the plaintiff. This evidence was therefore 
 relevant, and its admission free from er- 
 ror. The objection interposed, moreover, 
 was general and undetiued, failing to par- 
 ticularize any specified ground, and for 
 this reason there was no error in disre- 
 garding it. Di'yer v. Lewis, 57 Ala. 551 ; 
 3 Brick. Dig. p. 443, § 567. 
 
 4. The evidence tended to sustain the 
 allegations of each of the counts in the 
 complaint (the first and the third) upon 
 which the meilts of the case were tried be- 
 fore the jury. And, under the circumstan- 
 ces, we are of opinion that the questions 
 of negligence by the defendant, and of 
 contriloutory negligence by the plaintiff, 
 were both properly left to the jury Rail- 
 road Co. V. Perry, 87 Ala. 392, 6 South. 
 Eep. 40. The objection take to the panel 
 of jurors was clearly without merit. We 
 discover no error in the record, and the 
 judgment must be aflHrmed. 
 
 125 
 
Case No. 44] 
 
 KELEVANCr. 
 
 GLENN V. ORR. 
 
 (2 S. E. 538, 96 N. O. 413.) 
 
 Supreme Court of North Carolina. May 27, 
 1887. 
 
 Appeal from superior court, Mecklenburgh 
 county. 
 
 Action by John Glenn, trustee of the Na- 
 tional Express & Transportation Company, 
 against M. M. Orr, alleged to be shareholder 
 of said company, to recover the sum of $300, 
 being the amount of a call or assessment 
 upon the stock held by the defendant. The 
 court having refused to admit the evidence 
 referred to in the opinion, the plaintiff suffer- 
 ed a nonsuit and appealed. 
 
 D. G. Powle, A. Jones, and W. Fleming, 
 for plaintiff. W. P. Bynum, for defendant. 
 
 MBRRIMON, J. It became mjtei-ial on 
 the trial to prove the organization of the 
 National Express & Transportation Compa- 
 ny, and the appellant offered in evidence, 
 for this and other purposes, "the records, 
 books, and minutes' of that company, em- 
 bracing vchat purported to be the proceed- 
 ings in the organization of it under and in 
 pursuance of its charter. The appellee ob- 
 jecting, the court held that these records 
 were not evidence for such purpose, and the 
 appellant assigns this ruling as error. It 
 likewise became material to prove that the 
 appellee was a subscriber for 10 shares of 
 the capital stock of the company named, 
 charged and credited to his account as a 
 stockholder thereof, and the appellant of- 
 fered In evidence for this purpose the same 
 records, which purported to show that the 
 appellee did subscribe and was a subscriber 
 for the number of shares of stock mentioned; 
 that he had paid $50 on account of the same, 
 and the balance of the money due therefor 
 had not been paid; and that he was a stock- 
 holder of the company. The appellee ob- 
 jecting, the court declined to allow the rec- 
 ords so offered to be put in evidence for such 
 purpose, and the appellant assigns this re- 
 jection of the records as error. In view of 
 these adverse rulings, the appellant suffered 
 a judgment of nonsuit, and appealed to this 
 court. 
 
 It was admitted on the trial that the books 
 and records offered in evidence were those 
 pf the National Express & Transportation 
 Company, and it must be taken, from such 
 admission, as there is no suggestion to the 
 contrary, that the proceedings entered in 
 them, and the orders and statements therein 
 made, are regular, and made by the proper 
 clerk, secretary, or agent of the company, 
 or some person authorized to make them. 
 It must so appear before such records and 
 books can be received as evidence for any 
 purpose. The records and books, thus iden- 
 tified, were evidence — certainly prima facie 
 evidence — of the organization and existence 
 
 126 
 
 of the company. They purport to set forth 
 the proceedings of the organization, a list 
 of the names of the stockholders, the num- 
 ber of shares of stock owned by each, when 
 he subscribed for the same, the sum of mon- 
 ey paid by each for his stock, and the sums 
 due therefor remaining unpaid, and an ac- 
 count of its business transactions. 
 
 In Turnpike Co. v. McCarson, 1 Dev. & 
 B. 306, Chief Justice Ruffin said: "The 
 case does not state the contents of the sub- 
 scription and corporation books that were 
 produced, and therefore we cannot say pos- 
 itively of what they were evidence. We 
 suppose them to be entries of such acts as 
 the charter prescribes, as no deviation is 
 specified. If so, these documents, when iden- 
 tified, were not only evidence, but complete 
 evidence, of the organization and existence 
 of the corporation." The rule is so stated 
 in Angell & Ames on Corporations, §§ 513, 
 514, 679; and so, also. Turnpike Co. v. Mc- 
 Kean, 10 Johns. 154; Grays v. Turnpike Co., 
 4 Rand. (Va.) 578; Owingsv. Speed, 5 Wheat. 
 420. 
 
 The books of the corporation offered in evi- 
 dence, including the stock book, purported 
 to contain, as we have seen, a list of all its 
 stockholders, the number of shares of stock 
 owned by each, the sum of money paid, and 
 the balance still due from each on account 
 of his stock; and the name of the appellee 
 appears as a stockholder, and his account is 
 stated showing a balance due from him for 
 his stock. .These books were competent evi- 
 dence to prove that the appellee was a stock- 
 holder, and the state of his account as such 
 m respect to his stock. It was so decided in 
 the very similar case of TurnbuU v. Payson, 
 95 U. S. 418, in which the court say: "Where 
 thenameof an individualappears in the stock 
 book of a corporation as a stockholder, the 
 prima facie presumption is that he is the own- 
 er of the stock in a case where there is nothing 
 to rebut that presumption; and, in an action 
 against him as stockholder, the burden of 
 proving that he Is not a stockholder, or of 
 rebutting that presumption, is cast upon the 
 defendant." Hamilton Plank-Road Co. v. 
 Rice, 7 Barb. 157; Coffin v. Collins,. 17 Me. 
 440; Whitman v. Granite Church, 24 Me. 
 236; Wood v. Railroad, 32 Ga. 273; Hoag- 
 land V. Bell, 36 Barb. 57; Mor. Corp. § 270. 
 The rule of evidence underlying this and sim- 
 ilar decisions seems to be founded in con- 
 venience, and to rest upon the further ground 
 that corporations in this country are the 
 creatures of statute, with prescribed rights 
 and powers, subject, to an Important extent, 
 to public control and supervision, and are 
 therefore to exercise their powers as allow- ' 
 ed and required by law, and to keep their 
 records accordingly and truly. Such pre- 
 sumption may, of course, be rebutted by any 
 competent evidence. This rule might, in pos- 
 sible cases, work injury to a party, but this 
 is not probable, and, thus objected to, it has 
 
CORPORATION BOOKS. 
 
 [Case No. 44 
 
 the less weight, as generally every litigant 
 has the right to testify in his own behalf. 
 Turnpike Co. v. McKean, supra; Owings v. 
 Speed, supra. 
 
 There is error, and the appellant is enti- 
 tled to have a new trial. To that end let this 
 opinion be certified to the superior court ac- 
 cording to law. It is so ordered. 
 
 127 
 
Case No. i5] 
 
 RELEVANCY. 
 
 HOWARD V. GLENN. 
 
 (11 S. E. 610.) 
 
 Supreme Court of Georgia. April 21, 1890. 
 
 Error from superior court, Richmond 
 county; Roney, .Judge. 
 
 F. H. Miller, Jor plaintiff in error. Cal- 
 houn. King- <(j Spalding; and C. H. Cohen, 
 for defendant in error. 
 
 BLA NDFORD, J. At the appearance term 
 the defendiin L filed a motion to dismiss 
 the plaintiff's declaration on the ground 
 that he failed to annex a copy of the writ- 
 ten terms of subscrijrtion, and copies of 
 the proceedings referred to in his declara- 
 tion, with a copy of the call tor the en- 
 forcement of which this action was 
 brought. Subject to this motion, defend- 
 ant pleaded: (1) That the National Ex- 
 press & Transportation Comijany was not 
 on the 14th day of December, 1S80, a body 
 politic and corporate, as alleged in the 
 plaintiff's declaration; (2) that the plain- 
 tiff is not a legally appointed trustee, and 
 authorized to institute this action by vir- 
 tue of his appointment; (3) that, if the de- 
 fendant ever subscribed to stock, it was 
 to the National Express Company, whose 
 charter was amended without the knowl- 
 edge or sanction of this defendant, (4,5, 
 6) the statute of limitations. When this 
 case came on to be tried, the court ordered 
 these pleas stricken, and overruled the 
 motion to dismiss the plaintiff's declara- 
 tion. 
 
 1. In our opinion, the plaintiff's declara- 
 tion set forth a cause of action against the 
 defendant. The declaration substantially 
 alleged that Howard was a subscriber to 
 the National Express & Transportation 
 Company for 15 shares of its capital stock, 
 amounting to the sum of $1,50(); that this 
 company, having become insolvent, made 
 an assignment to certain persons as trus- 
 tees; that certain, creditors of this com- 
 pany filed a bill in the city court of Rich- 
 mond, upon which there was a decree ren- 
 dered, praying that the defendant in error, 
 Glenn, should be appointed a trustee with 
 authority to sue and collect from the cor- 
 porators of the National Express &Trans- 
 portation Company a certain assessment 
 and call made upon them by the decree of 
 that court. The officers or persons repre- 
 senting the National Express & Transpor- 
 tation Company wereniade parties defend- 
 ant to that bill. We think, so far as How- 
 ard had any interest in this company, that 
 he was represented by the corporation In 
 that case, and that he was bound by the 
 decree rendered in the same, (it being ren- 
 dered by a court of competent jurisdic- 
 tion.) notwithstanding that Howard may 
 at the time have been a citizen of Georgia, 
 and may not have been served with any 
 process in that case. So we think the 
 court did right to overrule the demurrer 
 of defendant to the plaintiff's declaration. 
 We think, also, that the pleas first, sec- 
 ond, and third and fourth, fifth, and sixth 
 were jjroperly dismissed on demurrer by 
 the court. We think that Glenn was duly 
 appointed a trustee, and as such had a 
 right to bring this suit ; and that if the 
 defendant subscribed to stock in the Na- 
 tional Express Company, although the 
 
 128 
 
 charter may have been amended without 
 his knowledge or sanction, so as to make 
 it the National Express & Transportation 
 Company, this did not relieve the defend- 
 ant from any liability to pay up his un- 
 paid stock, this not being such a material 
 alteration of the charter as would relieve 
 the defendant, Howard ; and this court 
 held in 81 Ga. 383, 8 S. E. Rep. 636. in this 
 same ease, that the statute of limitations 
 did not apply to the same. 
 
 2. We think there was no error of the 
 court in holding that the first plea of the- 
 defendant in this case was insufficient, in 
 that it alleged that the action brought by 
 the plaintiff did not set forth the outstand- 
 ing creditors for whose benefit the same- 
 was instituted, the decree of the court in. 
 Virginia having set forth such creditors; 
 and we hold that that decree was binding 
 on the defendant, Howard, as to all mat- 
 ters therein contained, if he was a cor- 
 porator in the National Express & Trans- 
 portation Company. 
 
 3. It is alleged as error that the court 
 erred in striking the second plea of de- 
 fendant; that the decree of the chancery 
 court of the city of Richmond of December 
 14, 1880, set forth in the petition, was not 
 such a contract of record as was binding 
 upon him personally for any purpose, in 
 that the court was without jurisdiction 
 over him as a resident citizen of the estate 
 of Georgia, who was never served with 
 process therein, who never appeared, or 
 had notice thereof, until the institution of 
 this suit. We think that when thecorpora- 
 tion was sued at the instance of creditors, 
 and was duly served. Howard was bound 
 as acorporator by any proceedings in that 
 case, and there was no error in striking 
 the second plea. 
 
 4. Wo think the third plea was also prop- 
 erly stricken by the court, inasmuch as we 
 think that whatever fraud may have been 
 committed by the corporation would not 
 operate to defeat an action by the cred- 
 itors of the corporation, however it might 
 be as between the corporation and a cor- 
 porator. Persons who gave credit to this 
 3orporation would not be bound by any 
 fraud between the corporation and the 
 corporators. As between the corporation 
 and a corporator, such defense may or 
 may not have been good ; but, as between 
 a trustee appointed by a court to bring 
 suit and collect the unpaid subsci-iptions 
 of a corporator, no such defense could be 
 made. 
 
 5. We think the fourth plea was prop- 
 erly stricken oh demurrer, in this: that 
 while it alleged the decree of the court in 
 this case in Virginia, to the effect that if 
 the stockholders should pay a certain per 
 cent, upon their subscriptions within a 
 certain time, this would be sufficient to 
 pay off the indebtedness of the company, 
 the plea did not allege that there was any 
 tender or offer on the part of defendant to 
 pay under that decree, within the time 
 therein prescribed, the amount prescribed 
 to be paid. To avail himself of that de- 
 cree, the defendant should have paid, or 
 have offered to pay, the amount specified 
 in the decree. No such allegation appears 
 in this plea, and therefore it was properly 
 stricken. 
 
CORPORATJON BOOKS. 
 
 [Case No. 45 
 
 ■ 6. It is complained that the court erred 
 in striking the fifth plea, or so much there- 
 of as alleged that the subscription was in- 
 duced by fraud, and is void for false and 
 fraudulent representations made, and for 
 the fraudulent suppression of material 
 facts concerning said company, the court 
 allowing tlie words to stand in said plea; 
 that defendant at no time became a 
 subscriber to the National Express & 
 Transportation Company; that he did 
 sign a paper subscribing to the National 
 Express Company for 15 sliares of the cap- 
 ital stock. Whetlier Howard became a 
 stockholder In this company by subscrip- 
 tion which was induced by fraud practiced 
 upon him or not, if he did become a stock- 
 holder in said company, he is liable to the 
 creditors of the company for so much of 
 his unpaid stock as might be necessarj' to 
 pay the company's debts, taken in connec- 
 tion with tlie other corporators of the 
 company; and whether fraud was prac- 
 ticed upon him or not would make no dif- 
 ference as to the creditors. It would be a 
 question between him andthecorporation, 
 with wliich the creditors had nothing 
 to do. So we think the court committed 
 no error in striking that i)ortion of the 
 fifth plea complained of. We think the 
 sixth plea was properly stricken, for the 
 reasons stated in justification of the court 
 in striking a portion of the fifth plea. 
 
 7. In the seventh plea, which was also 
 stricken by the court, it is alleged that the 
 plaintiff had settled with and released 
 from liability several stockholders under 
 said decree, and defendant contends that 
 this is equivalent to a release of himself. 
 We think the court properly struck this 
 plea. The defendant is bound to the cred- 
 itors upon his subscription to the capital 
 stock of this company, and whether other 
 stockholders were released or not is a 
 matter with which he has no concern, un- 
 less this action on the part of the creditors 
 or their agent increased his liability. 
 
 8. For the same reason we think the 
 court was right in striking the eighth plea, 
 which is complained of, and also the ninth 
 plea. When the plaintiff below showed 
 that he had been duly appointed a trustee 
 by a court having competent jurisdic- 
 tion, to recover of the stockh(jlders of this 
 companj' their unpaid subscriptions, for 
 the purpose of paying off the creditors of 
 the corporation, and when the plaintiff 
 showed that defendant was a stockholder 
 and had subscribed so many shares to the 
 capital stock of this company, and that 
 the court had made an assessment upon 
 the stockholders for a certain per cent, up- 
 on the stock subscribed, and authorized 
 him to sue and collect the same, we think 
 he made out a case which entitled him to 
 recover, notwithstanding anyfraud which 
 might have been practiced upon the stock- 
 holder to procure his subscription to the 
 capital stock of this company by the cor- 
 poration or Its agents. Fraud thus prac- 
 ticed upon the subscriber was a matter 
 which did not affect the creditors of the 
 coi'poration. The great question in this 
 case is whether the defendant, Howard, 
 who is now the plaintiff in error, was a 
 corporator and a subscriber to the capital 
 stock of this company. He admits by his 
 
 ■WILQUS.EV. — 9 
 
 plea that he did subscribe to 15 shares of 
 the capital stock of the National Express 
 Company; and it was shown by the evi- 
 dence introduced by the plaintiff in the 
 court below that the National Express 
 Company and the National Express & 
 Transportation Company were one and 
 the same. A mere change in the name of 
 a corporation we do not think makes any 
 material difference; clearly not such a dif- 
 ference as would relieve a sub.scriber from 
 liability to pay for stock subscribed by 
 him. 
 
 9. It is insisted that the court erred in 
 allowing the books of the corporation to 
 be put in evidence for the purpose of show- 
 ing that the defendant did subscribe to 15 
 shares of stock, and to show, also, certain 
 other things therein contained. When it 
 was shown that the defendant was a 
 stockholder in the company, then the 
 books of the company were admissible in 
 evidence against him. But, when this fact 
 is not shown, we are of the opinion that 
 the iiooks of the company would not be. 
 admissible in evidence against him. In 
 this case, however, it was admitted by 
 the plaintiff in error that he did sub- 
 scribeto so many shares of stock in the Na- 
 tional Express Company ; so, when it was 
 proven that the National Express Company 
 and the National Express & Transporta- 
 tion Company were one and the same cor- 
 poration, we think the books were ad- 
 missible in evidence, not only to show 
 that Howard was a stockholder, the num- 
 ber of shares and the value thereof he sub- 
 scribed for, but to show any other trans- 
 action that had taken place between him 
 and this company. We are aware that it 
 has been held that the books of a corpora- 
 tion are admissible to show prima facie 
 that the defendant was a subscriber to 
 the stock of the company, and was a 
 stockholder therein; but while we do not 
 think this ruling is correct, upon an.y rea- 
 son or principle known to us, yet, under 
 the facts of this case, we think the books 
 were properly admitted in evidence. We 
 know of no decision, however, which 
 shows upon principle that such Iiooks are 
 admissible without some special circum- 
 stance. We do not think that the case of 
 Turnbull v. Payson, 9.3 U. S. 418,— a decis- 
 ion by Judge Cliffohd to the effect that 
 the books of a corporation are admissible 
 in evidence to show that a person is a 
 stockholder, — is correct. No reason is as- 
 signed in that decision, and none has been 
 assigned in any decision which we have 
 been able to find in either North Carolina 
 or Alabama. But we think, under the 
 facts of this case, where the defendant ad- 
 mitted that he was a subscriber to the 
 stock of the National Express Company, 
 and where it was shown thatthe National 
 Express Company and the National Ex- 
 press & Transportation Company were 
 one and the same thing, that the books 
 were properly admitted. We think, fur- 
 thermore, that when the subscription list 
 was tendered, and admitted in evidence 
 by the court below, the plaintiff in error 
 had a right to show that he did not 
 subscribe to this list, and therefore think 
 the court committed error in refusing to 
 allow him to make such proof; yet we 
 
 129 
 
Case No. 45] 
 
 EELEVANCY. 
 
 do not think this is reversible error, inas- 
 much as it appears from the record, with- 
 out more, that the plaintiff had a right to 
 re>;over in this case. So, upon consider- 
 ing this case, we are of the opinion that 
 tlierewas no material eri-or committed by 
 the court below, and that the finding of 
 the jury was right, under the facts in 
 proof. 
 
 10. It is contended by the plaintiff in er- 
 ror that the admission in tlie fifth plea, to 
 the effect Ihat he had never snbscril)ed to 
 the National Express & Transportation 
 Company, but that he did subscribe 15 
 shares to the National Express Company, 
 could not be used as an admission against 
 him upon the trial of any other plea than 
 that; and the case of Glenn v. Sumner, 132 
 U. S. 156, 10 Sup. Ct. Rep. 41,1s cited as au- 
 thority to sustain this position. In the 
 present case the main issue was whether 
 the plaintiff in error was a subscriber to 
 thestock of theNational Express & Trans- 
 portation Company. It was affirmatively 
 alleged in the declaration that he was; 
 and, if he was such subscriber, his liability 
 under the facts ot the case was clear and 
 unmistakable. We think this allegation in 
 the plaintiff's declaration that he was 
 such subscriber called forth from him a 
 clear and explicit denial of the same b.v a 
 plea of Don est factum, as was strongly 
 hinted at by the supreme court of this 
 state in the case of Thornton v. Lane, 11 
 
 130 
 
 Ga. 489. This was the main issue in the 
 case, and, without a determination of the 
 same against the plaintiff, the plaintiff 
 was entitled to judgment. So we think 
 that a plea which denies that the defend- 
 ant was a subscriber to this company, but 
 which at the same time admits that he 
 was a subscriber to another company, 
 (which two companies were one and the 
 same,) was evidence against the defend- 
 ant, (now plaintiff in error,) and might be 
 so used as an admission. While we admit 
 that, under the laws of this state, a de- 
 fendant may file as many contradictory 
 pleas as he thinks proper, yet, If one of 
 those pleas bears on the main issue in the 
 case, and there be an admission in the 
 same by the defendant which is calculated 
 to damage his cause, that admission ma.y 
 be used in evidence against him. In fact, 
 the only issue to be determined by the 
 jury in this case was whether Howard be- 
 came a subscriber and stockholder in this 
 company, and any plea which bore upon 
 that issue, and which contained admis- 
 sions by the defendant, could be used 
 against him. So we think that in the case 
 of Glenn v. Sumner, supra, what was 
 said by the judge in delivering the opinion 
 therein, to the effect that statements made 
 for the purpose of presenting the issue to 
 wliich they relate are not evidence upon 
 any other issue in the same record, does 
 not apply to this case. Judgment affirmed. 
 
JUDGMENTS. 
 
 [Case No. 46 
 
 COMMONWEALTH v. O'BRIEN (two 
 cases). 
 
 (25 N. B. 834, 152 Mass. 495.) 
 
 Supreme Judicial Court of Massachusotts. Es- 
 sex. Nov. 25, 1890. 
 
 Exceptions from superior court, Essex 
 county; Edgar J. Sherman, .Judge. 
 
 Th3se were complaints against defend- 
 ant, Eichard O'Brien, for the illegal keep- 
 ing of intoxicating liquors on the 2d day 
 of June, 1890. Appealed from the police 
 court of Haverhill. A motion to dismiss 
 was filed in the superior court before a jury 
 was sworn to try the case, on the ground 
 that the complaint and warrant were not 
 sworn to or certified or Issued according 
 to law. At the trial, defendant not hav- 
 ing waived his said motion, or the objec- 
 tions therein set forth, offered, in support 
 of said motion and objections, the testi- 
 mony of Edward B. George, clerk of the 
 police court of Haverhill, to explain the 
 record, to rebut the presumption that the 
 
 receiving of the complaint, swearing to 
 the same, and issuing of the warrant, 
 were done in court, or when the court 
 was in session, and to show that when 
 the complaint was received and sworn to 
 and the warrant issued the court was not 
 in session. The court refused to admit 
 the evidence and overruled the motion, 
 and defendant excepted. After trial on 
 the merits, the jury returned a verdict of 
 guilty. 
 
 A. J. Wiitermaii, Atty. Gen., for the 
 Commonwealth. Horace I. Bartlett, for 
 defendant. 
 
 KNOWLTON, J. In each of these cases, 
 the complaint purported to have been 
 properly received and sworn to before the 
 police court of Haverhill, and the war- 
 rant to have been properly issued by the 
 court. The motion to dismiss was right- 
 ly overruled. The oral evidence offered to 
 impeach the record was Incompetent. 
 Com. v. Intoxicating Liquors, 135 Mass. 
 519; Kelley v. Dresser, 11 Allen, 31. Ex- 
 ceptions overruled. 
 
 131 
 
Case No. 47] 
 
 RELEVANCY. 
 
 NBSBIT v. INDEPENDENT DISTRICT OF 
 RIVERSIDE. 
 
 (12 Sup. Ot. 746, 144 U. S. 610.) 
 
 Supreme Court of the United States. April 18, 
 1892. 
 
 In error to the circuit court of the United 
 States for the Northern district of Iowa. 
 
 Action by Eleanor Nesbit against the inde- 
 pendent district of Riverside to recover on 
 certain bonds issued by the district. Judg- 
 ment for defendant. Plaintiff brings error. 
 Affirmed. 
 
 Statement by Mr. .Justise BREWER: 
 
 This vi^as an action on five bonds purport- 
 ing to have been Issued by the school dis- 
 trict defendant. The case was tried by the 
 court without a jury. Special findings of 
 facts were made, of which the following are 
 tlie only ones material to the questions pre- 
 sented: 
 
 "(2) The value of the taxable property 
 within the boundaries of the independent 
 district, as shown by the state and county 
 tax lists, was for the year 1872 forty-one 
 thousand four hundred and twenty-six dol- 
 lars, and for the year 1873 sixty-eight thou- 
 sand three hundred and seven dollars. 
 
 "(3) That on the 26th and 27th days of 
 March, 1873, the indebtedness of said inde- 
 pendent district, exclusive of the bonds de- 
 clared on in this action, exceeded the sum of 
 thirty-five hundred dollars. 
 
 "(4) That the bonds sued on in this action 
 bear date March 27, 1873, maturing ten years 
 thereafter, are five in number, for five hun- 
 dred dollars each, or $2,500.00 in the aggre- 
 gate, exclusive of interest, are numbered 14, 
 15, 16, 17, and 18, and that the signatures 
 thereon are the genuine signatures of the of- 
 ficers of the district purjiorting to sign the 
 same, and that said bonds, with the accrued 
 interest, now amount to the sum of five thou- 
 sand six hundred and ninety-five dollars, 
 which bonds and interest coupons were pro- 
 duced in evidence by plaintiff. The said 
 bonds and interest coupons are in all respects 
 alike except as to number, and each coupon 
 refers to the number of the bond to which it 
 belongs and to said act under which it was 
 issued. All of said bonds contain the follow- 
 ing provision in the body thereof: This bond 
 is issued by the board of directors of said in- 
 dependent school district under the provisions 
 of chapter 98 of the Acts of the Twelfth Gen- 
 eral Assembly of the state of Iowa, and in 
 conformity with a resolution of said board 
 dated the 26th day of March, 1873. A copy 
 of the act referred to is printed on the back 
 of the bonds. The exhibits attached to plain- 
 tiff's petition are correct copies of said bonds 
 and coupons. 
 
 "(4%) That all of said five bonds and the 
 coupons attached belong to the same series, 
 and were issued at the same time, under the 
 same circumstances, and part of the same 
 transaction, 
 
 132 
 
 ''(5) That the plaintiff, who is a citizen of 
 Great Britain, bought these bonds, and all 
 the interest coupons belonging thereto, as an 
 investment from one Henry Hutchinson on 
 the 20th day of December, 1877, paying him 
 therefor the sum of two thousand dollars; 
 that said plaintiff, when she made such pur- 
 chase, had no other knowledge concerning 
 the bonds, or of the facts connected with 
 their issuance, than she was chargeable with 
 from the bonds themselves, and from the pro- 
 visions of the constitution and laws of the 
 state of Iowa. 
 
 "(6) That said bonds were issued without 
 consideration. 
 
 "(7) That plaintiff brought suit in the Unit- 
 ed States circuit court at Des Moines, Iowa, 
 against the said independent district of Riv- 
 erside upon certain of the interest coupons 
 belonging to the bonds Nos. 14 and 15, be- 
 ing two of the bonds included in the present 
 action, and in the petition in that cause filed 
 the plaintiff averred that she was the owner 
 of the two bonds Nos. 14 and 15, and the cou- 
 pons thereto attached, and asked judgment 
 upon the six coupons then due and unpaid. 
 To this petition the defendant answered that 
 at the time the bonds were issued the indebt- 
 edness of the district exceeded five per cent, 
 of the taxable property of the district, as 
 shown by the state and county tax lists, and 
 that the bonds were therefore void, under the 
 provision of the constitution of the state of 
 Iowa; that no legal or proper election upon 
 the question of issuing the bonds was held;, 
 that the bonds were issued under the pre- 
 tense of building a schoolhouse with the pro- 
 ceeds thereof, but the same has not been 
 built, nor was it intended that it should be 
 built; that the district received no considera- 
 tion for the bonds, and that the same are 
 fraudulent and void; that plaintiff is not a 
 bona fide holder of said bonds. 
 
 "The case was tried to the court, and judg- 
 ment was rendered in favor of plaintiff for 
 the full amount of the six coupons declared 
 on in that cause. It is shown by evidence- 
 aliunde that the five bonds bought by plain- 
 tiff were in possession of plaintiff's counsel 
 at the trial of the action at Des Mpines, and 
 that bonds Nos. 14 and 15 were actually pro- 
 duced and exhibited to the court at such trial, 
 and offered in evidence. It is not shown that 
 at such trial the fact that plaintiff had 
 bought and was the owner of bonds Nos. 16, 
 17, and 18 was made known to the court. 
 The judgment entry in said cause shows that 
 on that trial it appeared from the evidence 
 that when said bonds Nos. 14 and 15 were is- 
 sued the indebtedness of the district, exclu- 
 sive of these bonds, exceeded the constitu- 
 tional limitation of five per cent.; that the 
 judges trying said cause were divided in 
 opinion upon the question whether the re- 
 citals in the bond estopped the defendant 
 from showing this fact against plaintiff, and 
 certified a division of opinion on this ques- 
 tion, judgment being rendered in favor of 
 
JUDGMENTS. 
 
 [Case STo. 47 
 
 plaintiff. It does not appear that the cause 
 was taken to the supreme court upon the 
 question certified. 
 
 "(8) Under the statutes of Iowa, in force in 
 1872 and 1873, regulating the assessment of 
 property for the purpose of state and county 
 taxation, the lists thereof could not he com- 
 puted before the month of August, and in 
 March, 1873, when these bonds were Issued, 
 the last computed tax list was for the year 
 IS72." 
 
 Upon these facts judgment was entered in 
 favor of the defendant, (25 Fed. 635,) to re- 
 verse which judgment this writ of error was 
 sued out. 
 
 W. Willoughby, for plaintiff in error. 
 
 Mr. Justice BREWER, after stating the 
 facts in the foregoing language, delivered the 
 opinion of the court, 
 
 Article 11, § 3, of the constitution of Iowa 
 of 1857, ordains that "no county, or other 
 political or municipal corporation, shall be 
 allowed to become indebted in any manner, 
 or for any purpose, to an amount in the ag- 
 gregate exceeding five per centum on the 
 value of the taxable property within sucli 
 county or corporation, to be ascertained by 
 tlie last state and county tax lists previous to 
 the incurring of such indebtedness." Under 
 that section, the limit of indebtedness which 
 the district could incur at the date of the 
 issue of these bonds was $2,071.30. It was 
 already indebted in a sum exceeding $3,500, 
 and the five bonds of themselves aggregated 
 $2,500, or nearly $500 more than the amount 
 of "debt the district could lawfully create._ 
 Aside, therefore, from the fact that they were 
 issued without consideration, they were in- 
 valid by reason of the constitutional pro- 
 Vision, and created no obligation against the 
 district. They were issued at the same time, 
 and as one transaction, and were purchased 
 by plaintiff together and in one purchase. If 
 not' cbarged with knowledge of the prior in- 
 debtedness, she was with the fact that, in- 
 dependeht of such indebtediiess, these bonds 
 alone were an overissue, and beyond the pow- 
 er of the district; for she was bound to take 
 notice of theValue of taxable property with- 
 in the district, as shown by the tax list. 
 Buchanan v. Litchfield, 102 U. S. 278; Bank 
 V. Porter Tp., 110 U. S. 608, 4 Sup. Ct. 254; 
 Dixon Co. V. Field, 111 U. S. 83, 4 Sup. Ct. 
 315. In the first of those cases, on page 289, 
 it is said that "the purchaser of the bonds 
 was certainly bound to take notice, not only 
 of the constitutional limitation upon munici- 
 pal Indebtedness, but of such facts as the au- 
 thorized ofiicial assessments disclosed con- 
 cerning the valuation of taxable property 
 within the city for the year 1873;" and in the 
 last, on page 95, that "the amount of the 
 bonds issued was known. Tt is stated in the 
 recital itself. It was $87,000. The holder of 
 each bond was apprised of that fact. The 
 amount of the assessed value of the taxable 
 
 property in the county is not stated; but, ex 
 vi termini, it was ascertainable in one way 
 only, and that was by reference to the as- 
 sessment Itself, a public record equally ac- 
 cessible to all intending purchasers of bonds, 
 as well as to the county officers." So when 
 the plaintiff purchased these bonds she knew, 
 or at least was chargeable with knowledge of 
 the fact, that they were unlawfully issued, 
 and created no obligation against the dis- 
 trict. She could not, therefore, claim to be a 
 bona fide purchaser, no matter what recitals 
 appeared on the face of the instrument. 
 
 But the question which is most earnestly 
 pressed upon our attention is the estoppel 
 which is alleged to have been created by the 
 judgment against the district in the United 
 States circuit court at Des Moines, upon cou- 
 pons detached from the two bonds numbered 
 14 and 15. Is this a case of estoppel by judg-' 
 ment? The law in respect to such estoppel 
 was fully considered and determined by this' 
 court in the case of Cromwell v. County of 
 Sac, 94 U. S. 351. It was there decided that 
 when the second suit is upon the same cause 
 of action, and between the same parties as 
 the first, the judgment in the former is con- 
 clusive in the latter as to every question 
 which was or might have been presented and 
 determined in the first action; but when the 
 second suit is upon a different cause of ac- 
 tion, though between the same parties, the 
 judgment in the former action operates as an 
 estoijpel only as to the point or question ac- 
 tually litigated and determined, and not as to 
 other matters which might have been litigat- 
 ed and determined. 
 
 Now, the present suit is on causes of ac- 
 tion different from those presented in the 
 suit at Des Moines. Bonds 16, 17, and 18 
 were not presented or known in that suit; 
 and while bonds 14 and 15 were presented, 
 alleged to be the property of plaintiff, and' 
 judgment asked upon six coupons attached' 
 thereto, yet the cause of action on the six' 
 coupons is distinct and separate from that 
 upon the bonds or the other coupons. Bach' 
 matured coupon is a sepai-able promise, and 
 gives rise to a separate cause of action. It 
 may be detached fioiu the bond and sold by 
 itself. Indeed, the title to several matured 
 coupons of the same bond may be in as many! 
 different persons, and upon each a distinct 
 and separate action be maintained. So, while 
 the promises of the bond and of the coupons 
 in the first instance are upon the same pa- 
 per, and the coupons are for interest due up- 
 on the bond, yet the promise to pay the cou- 
 pon is as distinct from that to pay the bond 
 as though the two promises were placed in 
 different instruments, upon different paper. 
 
 By the rule laid down in Cromwell v. Coun- 
 ty of Sac, the judgment in the suit at Des 
 Moines is conclusive in this case only as to 
 the matters actually litigated and determin- 
 ed. What were they? The defense pleaded 
 was this: That at the time the bonds were 
 issued the indebtedness exceeded 5 per cent., 
 
 133 
 
Case No. 47J 
 
 KELEVANCY. 
 
 and the bonds were therefore void; that the 
 district received no consideration; and that 
 the plaintiff was not a bona fide holder. The 
 judgment entry shows that it appeared from 
 the evidence that the indebtedness at the 
 time tlie bonds wore issued exceeded the con- 
 stitutional limitation of 5 per cent.; but that 
 it was adjudged that the recitals in the 
 bonds estopped the defendant from showing 
 this fact against the plaintiff. In other 
 ■words, that which was determined was the 
 effect of the recitals. But this case does iiot 
 turn upon that question at all, and nothing 
 was determined here antagonistic to the ad- 
 judication there. An additional fact, that of 
 notice from the amount of the bonds pur- 
 chased, was proved. 
 
 The effect of recitals in municipal bonds is 
 like that given to words of negotiability in 
 a promissory note. They simply relieve the 
 paper in the hands of a bona fide holder from 
 the burden of defenses other than the lack 
 of power, growing out of the original issue of 
 the paper, and available as against the im- 
 mediate payee. Suppose two negotiable 
 promissory notes, issued at the same time, 
 and as a part of the same transaction. In a 
 suit on the first, brought by a purchaser be- 
 fore maturity, the maker proves facts con- 
 stituting a defense as against the payee, but 
 fails to bring home notice of these facts to 
 the holder before his purchase. The judg- 
 ment must go in favor of the holder, for the 
 words of negotiability in the note preclude 
 the maker from such a defense as against 
 him. In a suit on the second of such notes, 
 may not the maker couple proof of notice to 
 the holder with that of the original invalid- 
 ity of the note, and thus establish a complete 
 defen.se against the holder? Is he precluded 
 by the first judgment, and his failure in that 
 to prove notice to the holder? That is pre- 
 cisely this case. In the suit at Des Moines 
 no notice to the holder was shown. The re- 
 citals cut off the defense pleaded of original 
 invalidity. In this action notice is proved, 
 and an additional fact Is put into the case, 
 which makes a new question. The effect of 
 recital is one thing; that of recitals coupled 
 with notice is another. The one question was 
 litigated and determined in the Des Moines 
 134 
 
 suit; the other is presented here. Surely an 
 adjudication as to the effect of one fact alone 
 does not preclude in the second suit an in- 
 quiry and determination as to the effect of 
 that fact in conjunction with others. In- 
 fancy is pleaded in an action on a contract, 
 and an adjudication is made establishing it 
 as a defense. In a second suit between the 
 same parties on a different cause of action, 
 though created at the same time, may not 
 the plaintiff prove ratification after majority? 
 Many reasons may induce or prevent the in- 
 troduction into the first case of all the facts. 
 It was well said in Cromwell v. County of 
 Sac (page S'lG) that: "Various considerations, 
 other than the actual merits, may govern a 
 party in bringing forward grounds of recov- 
 ery or defense in one action, which may not 
 exist in another action upon a different de- 
 mand, such as the smallness of the amount, 
 or the value of the property in controversy, 
 the difficulty of obtaining the necessary evi- 
 dence, the expense of the litigation, and his 
 own situation at the time. A party acting 
 upon considerations like these ought not to 
 be precluded from contesting, in a subsequent 
 action, other demands arising out of the same 
 transaction." 
 
 This case may be looked at in another light. 
 The defense pleaded in the Des Moines suit 
 was that at the time of the issue of the two 
 bonds then disclosed there was a prior indebt- 
 edness of the district exceeding the consti- 
 tutional limitation, and that defense was the 
 one adjudged to be precluded by the recitals. 
 Here an additional defense is that the five 
 bonds in suit themselves created an overis- 
 sue. That question was not presented in the 
 Des Moines suit, and could not have been ad- 
 judicated. It is presented for the first time 
 in this case. It is of itself a valid defense, 
 Irrespective of prior indebtedness. So we 
 have in this case a new question not pre- 
 sented in the Des Moines suit, the existence 
 of facts never called to the attention of the 
 court in that case, which of themselves create 
 a perfect defense. 
 
 We see no error In the judgment, and it is 
 affirmed. 
 
 Mr. Justice HARLAN dissents. 
 
JUDGMENTS. 
 
 [Case No. 48 
 
 FRANKLIN COUNTY v. GEKJtAN SAY. 
 BANK. 
 
 (12 Sup. Ct. 147, 142 U. S. 93.) 
 
 Supreme Court of the United States. Dec. 14, 
 1891. 
 
 In error to the circuit court of the United 
 States for the Southern district of IlUnois. 
 
 Action by the German Savings Banlc 
 against the county of Franlvlin, 111., on the 
 coupons of certain railroad aid bonds. Jury 
 waived, and trial by the court. Judgment 
 for plaintiff. Defendant brings error. Af- 
 firmed. 
 
 Tfie facts of the case fully appear in the 
 following statement by Mr. Justice BROWN: 
 
 This was an action by the German Sav- 
 ings Bank of Davenport, Iowa, upon 128 
 coupons cut from bonds issued by the coun- 
 ty of Franklin in payment of its subscrip- 
 tion to the capital stock of the Belleville & 
 Eldorado Railroad Company. The allega- 
 tion of the declaration was that such bonds 
 had been issued on the 10th day of Novem- 
 ber, 1877, by the said defendant, "being 
 thereunto duly authorized by an affirmative 
 vote of the legal voters of said county, as 
 required by law." There was a further 
 averment that plaintiff became the owner of 
 20 of these bonds, whose numbers were 
 given, from which the coupons in suit had 
 been cut. To this declaration a plea of non 
 assumpsit, and a replication thereto, were 
 filed. A Jury being waived, the cause was 
 tried by the court, which found in favor of 
 the plaintiff, and a judgment was rendered 
 on February 4, 1891, in its favor, for the 
 sum of $5,120, damages and costs. The 
 bonds purported on their face to have been 
 "issued under the provisions of an act of the 
 general assembly of the state of Illinois en- 
 titled, 'An act to incorporate the Belleville 
 and Eldorado Railroad Company,' approved 
 February 22nd, 1861, authorizing subscrip- 
 tions to the capital stock of said railroad, 
 and in accordance with the majority of 
 votes cast at an election held in said coun- 
 ty on the 11th day of September, 1869, in 
 conformity with the provisions of said act." 
 
 Upon the trial of the case, the plaintiff 
 bank, after presenting the bonds and cou- 
 pons set forth in the declaration, put in evi- 
 dence the record of a suit in equity, begun 
 in the same court, and carried to a final de- 
 cree on July 3, 1883. The bill was originally 
 filed by the county of Franklin In the cir- 
 cuit court of Franklin county, 111., on the 
 4th day of August, 1880, against the Belle- 
 ville & Eldorado Railroad Company, the 
 clerk, sheriff, and collector of said county, 
 the auditor of public accounts of the state 
 of Illinois, the state treasurer of Illinois, 
 several private individuals, and the un- 
 known holders of bonds issued by the said 
 Franklin county in aid of the said railroad 
 company. The bill alleged the issuing by 
 the county of $150,000 of its bonds, dated 
 November 13, 1877, to the Belleville & Eldo- 
 
 rado Railroad Company; $100,000 of which 
 were subscribed and issued under the act 
 of the general assembly of Illinois entitled, 
 "An act to incorporate the Belleville and 
 Eldorado Railroad Company," approved 
 February 22, 1861, authorizing a subscrip- 
 tion to the capital stock of said company, 
 and $50,000 of which wore subscribed and 
 issued under an act of the general assembly 
 entitled, "An act to authorize cities and 
 counties to subscribe stock to railroads," 
 approved November 6, 1849. The bill al- 
 leged that both classes of bonds were sub- 
 scribed and issued in pursuance of the vote 
 of the people of the county at an election 
 held the 11th day of September, 1809, and 
 that the order of the covinty court submit- 
 ting the proposal to the voters named cer- 
 tain conditions to be complied with before 
 the bonds should be issued, one of which 
 was that the railroad should be commenced 
 in the county of , Franklin within nine 
 months from the date of the election, and 
 completed through the county by the 1st 
 day of June, 1872. The bill further alleged 
 that the orders submitting the question to 
 the voters were never complied with, and 
 particularly that the road was not completed 
 within the time provided; that all of the 
 orders and resolutions of the county court 
 and the board of supervisors subscribing 
 and attempting to subscribe, stock to said 
 railroad company, were in conflict with the 
 constitution of the state, and were void; 
 that the state auditor had no right to levy 
 taxes for the purpose of paying the princi- 
 pal or interest of said bonds; that the state 
 treasurer had no right to receive or pay out 
 the same; and that the act to provide for 
 paying railroad debts by counties, approved 
 April 16, 1809, was unconstitutional, con- 
 trary to public policy, and void. The bill 
 prayed an injunction restraining the officers 
 of the state from collecting or paying out 
 taxes in liquidation of said bonds, and that 
 the individual defendants and unknown 
 holders of the bonds be enjoined from suing 
 the county upon any of the coupons attach- 
 ed to such bonds. 
 
 A temporary writ of injunction was Is- 
 sued as prayed. Service by publication was 
 made upon the unknown holders of the 
 bonds. Upon the 27th day of October, 1880, 
 a decree was taken by default. At the Oc- 
 tober term, 1881, the German Savings Bank 
 appeared in the cause, had the decree open- 
 ed, and removed the case to the circuit court 
 of the United States for the Southern dis- 
 trict of Illinois, to which it was submitted 
 upon proofs taken, and upon a stipulation 
 that the defendant was the bona fide holder 
 of the bonds set up in its answer, and pur- 
 chased the same, for value, without notice 
 of any defense. The answer of the bank, 
 which was also adopted by other defend- 
 ants intervening for their 6wn interests, put 
 in issue every material averment of the biU, 
 and prayed that, as to the bonds and cou- 
 
 135 
 
Case No. 48] 
 
 EELEVANCY. 
 
 pons held by it, the bill might be dismissed 
 for want of equity, and the injunction dis- 
 solved. On July 3, 1883, a deovee was en- 
 tered, declaring that all bonds involved in 
 the case, and purporting on their face to 
 have been Issued under the provisions of 
 the railroad act of November 6, 1849, were 
 issued without authority of law, and were 
 therefore void, and decreeing that as to the 
 holders of such bonds the injunction be 
 made perpetual. The decree further pro- 
 vided that, as to the specific bonds desig- 
 nated by their numbers, and among others 
 the bonds belonging to the German Savings 
 Bank, "purporting on their face to be of the 
 series issued under the charter of the said 
 Belleville «fe Eldorado Railroad Company, 
 approved Februaiy 22, 1861, the court doth 
 decree in favor of said defendants, the said 
 several respective holders thereof, and that 
 the said several bonds, and the coupons 
 thex'eof, are valid an,d legal obligations 
 against the county of Franklin; and as to 
 said last-mentioned series of said bonds and 
 coupons thereunto attached, as held as afore- 
 said, the court doth decree that the injunc- 
 tion issued in this cause be dissolved, and 
 the complainant's bill be dismissed for want 
 of equity." 
 
 The German Savings Bank in June, 188o, 
 appealed from so much of this decree as ad- 
 judged that nine bonds, which had been is- 
 sued imdei- the act of 1849, and were held 
 by the bank, were void, and upon such ap- 
 peal this court affirmed the decree of the cir- 
 cuit court. German Sav. Bank v. Franklin 
 Co., 128 U. S. 526, 9 Sup. Ct. 159. The coun- 
 ty of Franklin, however, did not appeal from 
 the decree establishing the validity of the 
 bonds issued under the act of 18G1. 
 
 After the plaintiff had put in the said rec- 
 ord, decree, and mandate of this court in 
 the equity case, it introduced in evidence 
 the eighteen bonds which, with the coupons 
 thereof, had been decreed to be valid and 
 legal obligations against tlie county, and also 
 put in evidence coupons cut from two other 
 bonds which had also been adjudged to be 
 —valid. The defendant introduced no evi- 
 dence, but claimed that the evidence con- 
 tained in the record introduced by the plain- 
 tiff showed that the bonds and coupons 
 therefrom, upon which this action was 
 brought, were invalid. The plaintiff con- 
 tended that the validity of said bonds and 
 coupons had been established in the said 
 equity case, and that the question was res 
 adjudicata; and the court so decidecl. To 
 reverse the judgment of the circuit court in 
 this behalf, this writ of error was sued out. 
 
 D. M. Browning, for plaintiff in error. E. 
 E. Cook and S. P. Wheeler, for defendant in 
 eiTor. 
 
 Mr. Justice BROWN, after stating the 
 facts as above, delivered the opinion of the 
 court. 
 136 
 
 As both parties claim an estoppel by vir- 
 tue of the decree in the equity suit between 
 the parties to this suit, it only becomes nec- 
 essary to consider the effect of this decree. 
 It contains two separate and distinct find- 
 ings: First. So far as the nine bonds held 
 by the German Savings Bank, and issued 
 under the act of November 6, 1849, were con- 
 cerned, the decree pronounced them to be 
 void; and as to them the injunction was 
 made perpetual. From this part of the decree 
 the bank appealed to this court, by which 
 the decree was affirmed. 128 U. S. 526, 9 
 Sup. Ct. 159. Second. As to the eighteen 
 bonds issued under the act of 1801, and the 
 coupons cut from two other bonds issued 
 under the same act, also held by the Ger- 
 man Savings Bank, and purporting on their 
 face to be of the series- issued under the 
 charter of said Belleville & Eldorado Rail- 
 road Company, approved February 22, 1861, 
 the decree adjudged in favor of the defend- 
 ant bank, and that the said several bonds, 
 and the coupons thereof, were legal and 
 valid obligations against the county of 
 Franklin; and as to this series the injunc- 
 tion was dissolved and the complainant's 
 bill dismissed. No appeal was taken from 
 this part of the decree by the county of 
 Franklin, but it now insists that these bonds 
 are void for the same reasons that the 
 bonds issued under the act of November 6, 
 1849, were adjudged to be void, namely, be- 
 cause both series were issued pursuant to 
 the same vote, and subject to the same con- 
 ditions. 
 
 The record of the equity suit does not 
 show clearly the ground upon which the 
 court based its distinction between the two 
 classes of bonds; nor is it necessary to be 
 ascertained here. It is sufficient for the 
 purposes of this suit to know that the valid- 
 ity of these bonds was dii'ectly put in issue 
 by the pleadings, and determined adversely 
 to the county. The plaintiff alleged in its 
 bill that these bonds were invalid b.y reason 
 of the non-compliance of the road with cer- 
 tain conditions precedent upon which they 
 were issued, setting up with great particu- 
 larity all the proceedings prior to the issue 
 of the bonds; reciting the laws under which 
 they were claimed to have been authorized; 
 and demanding their cancellation and sur- 
 render upon the ground that the acts of the 
 county officers were unauthorized and void, 
 and the laws under which they were issued 
 unconstitutional. The entire question of 
 their validity was presented and tried upon 
 the merits, and the court could not have dis- 
 missed the bill as to these bonds without 
 holding that they were valid, and the fur- 
 ther finding that the several bonds and cou- 
 pons thereof "are valid and legal obliga- 
 tions" added nothing to the force of the 
 decree dismissing the bill. 
 
 The defendant's position in this connec- 
 tion is that as the entire record, taken to- 
 gether, shows that these bonds were void, 
 
JUDGMENTS. 
 
 [Case No. 48 
 
 i;liis court ought not to treat the decree of 
 the court below, adjudging them to be valid, 
 
 as res adjudicata. It is true that there are 
 
 ■certain authorities to the effect that in the 
 case of deeds, if the truth plainly appears 
 on the face of the deed, there is, generally 
 spealiing, no estoppel, meaning simply, as 
 stated by Mr. Bigelow (Bigelow, Estop. 351,) 
 "that all parts of the deed are to be con- 
 strued together, and that if an allegation in 
 the deed which alone would work an es- 
 toppel upon the parties is explained in an- 
 other part of the deed, or perhaps another 
 deed to which reference is made for the pur- 
 
 , pose, there is ordinarily no estoppel." Lord 
 <Joke also states certain exceptions to the 
 conclusive effect of records, one of these 
 being, "where the truth appears in the same 
 record, as wherew the defendant is sued by 
 the wrong name, and enters into a bail- 
 bond prout the writ, as he must, and then 
 put in bail by his right name, he who was 
 arrested is not estopped from pleading in 
 abatement; or where the record shows that 
 the judgment relied on as an estoppel has 
 been reversed in error." But we know of 
 no case which goes to the extent of holding 
 that, where a court having complete juris- 
 diction of the case has pronounced a decree 
 upon a certain issue, such issue may be re- 
 tried in a collateral action, even although 
 the evidence upon which the case is heard is 
 sent up with the record. If this were possible, 
 then in ey<;ry such case where a judgraent 
 or decree is pleaded by way of estoppel, and 
 the record shows the evidence upon which 
 it was rendered, the court in which the es- 
 toppel was pleaded would have the power to 
 retry the case, and determine whether a dif- 
 ferent judgment ought not to have been ren- 
 dered. The case of Brownsville v. League, 
 129 U. S. 493, 9 Sup. Ct. 327, has perhaps 
 gone as far in the direction indicated by the 
 defendant as any case reported in the books; 
 but it is far from being an authority for the 
 position assumed here. That was a petition 
 for a mandamus to enforce the collection of 
 judgments of a circuit court upon certain 
 
 bonds which this court had held to be in- 
 valid. The court denied the application of 
 the relator upon the ground that, in his 
 pleadings, he did not rely exclusively upon 
 the judgments, but opened the facts which 
 attended the judgments for the purpcse of 
 counting upon a certain act of the legisla- 
 ture as furnishing the remedy which he 
 souglit, and that by so doing he, in effect, 
 asked the court to order the levy of a tax to 
 pay the coupons, and relied upon the judg- 
 ments principally as creating an estoppel of 
 a denial of the power to do so. "Thus in- 
 vited," said the chief justice, "to look 
 through the judgments to the alleged con- 
 tracts on which they are founded, and find- 
 ing them invalid for want of power, must 
 we nevertheless concede to the judgments 
 themselves such effect, by way of estoppel, 
 as to entitle the plaintiff ex debito justitias, 
 to a writ commanding the levy of taxes un- 
 der a statute which was not in existence 
 when these bonds were issued? * * * 
 But where application is made to collect 
 judgments by process not contained in them- 
 selves, and requiring, to be sustained, refer- 
 ence to the alleged cause of action upon 
 which they are founded, the aid of the court 
 should not be granted when upon the face 
 of the record it appears, not that mere error 
 supervened in the rendition of such judg- 
 ments, but that they rest upon no cause of 
 action whatever." This, however, does not 
 touclj the question of the binding effect of 
 judgments when offered in evidence in a 
 distinct and collateral action. We know of 
 no case holding their probative effect to be 
 anything else than conclusive. Had the 
 plaintiff county desired further to test the 
 validity of these bonds, it was its duty to 
 have appealed from this decree, as did the 
 bank with respect to the bonds which that 
 court held to be invalid, when the question 
 of the validity of both issues could have 
 been heard and determined by this court. 
 
 There was no error in the finding oif the 
 court below, and its judgment must be af- 
 firmed. 
 
 137 
 
Case Xo. 49] 
 
 KELEVANCT. 
 
 CILMBR T. MORRIS et al. 
 (40 Fed. 333.) 
 Circuit Court, M. D. Alabama. May, 1891. 
 In equity. 
 
 W. A. Gunter, H. C. Semple, and R. C. 
 Brickell, for complainant. Tompkins & 
 Troy, for respondents. 
 
 BRUCE, J. The facts appear in the opin- 
 ion of the court. There was a previous bill 
 between the same parties, which was dis- 
 missed by the supreme court of the United 
 States upon a question of jurisdiction, as 
 will be seen in case of Morris v. Gilmer, 
 129 U. S. 31.J, 9 Sup. Ct. 289. A new bill 
 was tiled, and we have for consideration the 
 sufficiency of the plea of res adjudicata, 
 which was considered and determined in 
 the former case, reported In 30 Fed. 476. 
 The bill in this case and the plea are the 
 same as in the former case, and the ques- 
 tion has been again heard upon argument 
 and brief of counsel on both sides. It is 
 conceded that the original suit in the state 
 court was brought to recover the same 
 shares of stock for which this suit was 
 brought; that it was by the same complain- 
 ant against the same defendants; and, as 
 the bill was dismissed absolutely and the 
 decree affirmed on appeal, the defendants 
 insist that the cause of action set up in the 
 suit was adjudicated between the parties in 
 the suit in the state court, and th%t the 
 facts set up in the plea constitute a bar 
 to the present suit. It will be observed 
 from the record in the state court set up 
 in the plea that the original bill after amend- 
 ment, and as it stood when the trial was 
 had, stated a pledge of 120 shares of stock 
 in 1871 for $6,000, the original cost of the 
 same, and that this sum on the 30th day of 
 March, 1871, was paid by a sale of one-half 
 of the stock, and the remainder, 60 shares, 
 was left to secure the balance of interest 
 due to Morris. The bill did not allege acts 
 of recognition on the part of Morris from 
 that time to the filing of the bill in the state 
 court, on the 7th day of July, 1884. The 
 answer of the defendants admitted certain 
 facts, but denied, by way of conclusion, the 
 ownership of the stock by the complainant, 
 and coupled with the answer as a part there- 
 of, under the state practice, five different 
 grounds of demuiTer, viz.: (1) The facts 
 alleged show that the demand is stale; (2) 
 that it is barred by the statute of limita- 
 tions; (3) the claimant has an adequate 
 remedy at law; (4) the bill as amended 
 makes an entirely different case from that 
 made by the original bill; (5) there is no 
 tender alleged in the bill of the amount ad- 
 mitted to be due, and said amount is not 
 brought into court. Testimony was taken, 
 and the case was submitted upon the plead- 
 ings and evidence without a previous ruling 
 upon the demurrers, and the chancellor, in 
 vacation, rendered a decree dismissing the 
 
 138 
 
 bill absolutely, which decree was on appeal 
 affirmed by the supreme court of the state- 
 80 Ala. 78. The present bill states the- 
 original transaction of 1871 by way of in- 
 ducement, and goes on to state a new and 
 different pledge in 1875 of the same stock 
 for other debts and for future advances 
 which were from time to time made; and 
 the question is, can the res adjudicata in 
 the state court be held to apply to the case 
 now made by the bill in this court? 
 
 If a new pledge of the same stock was 
 made in 1875, and if by that it (the stock) 
 was to be held as security for advances ta 
 be made, and which were afterwards made, 
 then what is there in the record of the suit 
 in the state court that operates as a bar- 
 to this suit? The opinion of the chancellor 
 in the state court in the former suit shows 
 that he rested his decision on the statute 
 of limitations. His language is: "The stat- 
 ute of limitations is therefore a bar to the 
 rights of the complainant in this cause." 
 That was a point in the demurrer, and clear- 
 ly the point decided was that the case made 
 by the bill was barred by the statute of 
 limitations. The issue was not whether 
 there were acknowledgments that took the- 
 case out of the operation of the statute, or 
 whether anything of that sort was proved 
 or not, but only this: whether a case with- 
 out such acknowledgment was made by the- 
 bill; and the question of a new and differ- 
 ent pledge in 1875 was not before the court 
 by any averment in the bill, and the judg- 
 ment of the court was not invoked upon ther 
 case as it is now made in this court. The 
 sustaining of the demurrer to the bill in 
 the state court put the complainant out of 
 court, and the suggestion of the counsel for 
 the defendants is that he could have sought 
 leave to amend his bill, and state the matter 
 which he now claims took the case out of 
 the operation of the statute of limitations. 
 Conceding now that he might have done so, 
 yet was he obliged to do so, and did he- 
 not have the option to confess the demurrer, 
 and state new matter by way of amendment, 
 or bring a new suit, and state new matter 
 which would avoid the demurrer? The al- 
 lowance of amendments In pleading was 
 certainly not intended to prevent a party 
 from filing a new suit, if he deems that the- 
 better course. Wells, Res. Adj. § 440; 
 Shields v. Barrow, 17 How. 144; Marsh t.. 
 Masterton, 101 N. Y. 40(j, 5 N. E. 59. 
 
 The very idea of amendment has in it 
 that of other and new matter, and the es- 
 toppel of the judgment of a court can oper- 
 ate only upon the case made and presented 
 for the judgment of the court. If a party 
 fails to state a case in his bill of complaint, 
 and goes out of court on demurrer, the rule 
 of res adjudicata operates as to the case 
 made by his bill, and only as to that case. 
 Gould V. Railroad Co., 91 U. S. 533; Bigelow, 
 Estop, pp. 152-1-55. The question, then, is 
 whether a defendant who has been defeated 
 
JUDGMENTS. 
 
 [Case Xo. 4i) 
 
 on (lemuiTer, because he has not made a 
 case by the allegations in his bill, can bring 
 a new suit to recover the same pioperty 
 from the same party, upon supplying the 
 defects in his first bill. 
 
 The statement of the proposition would 
 seem to carry its own answer, for how can 
 the merits of a different cause, as set up in 
 a bill in a second suit, be heard and decided 
 on a different bill in a former suit, even 
 when it is between the same parties and for 
 the same property, or how, in such case, can 
 the estoppel of a judgment in a former case 
 operate as an estoppel in the second case? 
 The judgment rendered in a cause must be 
 held to the issues made by the pleadings, 
 and the estoppel will operate only as to the 
 issue, and whatever was necessarily involved 
 in that issue. Presumption will never be in- 
 dulged in favor of an estoppel beyond what 
 is necessary to sustain the judgment ren- 
 dered. Russell V. Place, 94 U. S. 606; Bige- 
 low. Estop, pp. 152-155; Barnes v. Rail- 
 road Co., 122 U. S. 14, 7 Sup. Ct. 1043; 
 Black, Judgm. § 242. In Aurora City v. 
 West, 7 Wall. 82, it is said: The essential 
 conditions under which the exception of res 
 adjudicata becomes applicable are "the iden- 
 tity of the thing demanded, the identity of 
 the cause of the demand, and of the parties 
 in the character in which they are litigants." 
 Can it be maintained that the cause of the 
 demand in the case in this court is the iden- 
 tical cause of demand in the state court in 
 the former suit? The theory of the bill in 
 the state coui;t seems to be a claim to the 
 property upon an acknowledged pledge and 
 trust relation subsisting between the parties 
 in 1871. The theory of the bill in this case 
 is that of another pledge at a subsequent 
 
 time, and with different conditions, not only 
 for indebtedness then existing, but to ex- 
 ist,— that is, a continuing pledge, which in 
 its nature was Inconsistent with the run- 
 ning of the statute of limitations; and that 
 in fact there was no act of repudiation of 
 the pledge on the part of Morris prior to 
 June, 1884. It is claimed, however, that 
 the question is not simply what point was 
 decided in the former suit, but what was 
 necessarily involved in the issue in the for- 
 mer suit, and that, as the right to the stock 
 in question was in issue, the matter now 
 sought to be litigated is res adjudicata in 
 the former suit. True, the same property 
 is claimed here that was claimed in the 
 former suit, but on a diiferent ground, as 
 we have seen; and as the judgment in the 
 former suit was on demurrer to the bill and 
 did not necessarily involve the question of 
 property except as there stated, and as an 
 estoppel must be certain to every intent, 
 and cannot be extended, in the case of judg- 
 ments, by implication, beyond matters es- 
 sential to uphold them, the former judgment 
 in this case cannot be held to conclude the 
 right of property to the stock in question, 
 which is involved alike in both cases. Bige- 
 low. Estop, pp. 80, 81, 152, 154; Moss v. 
 Anglo-Egyptian, etc., Co., L. R. 1 Ch. 113- 
 116. 
 
 The questions in this case have already 
 been considered, and although upon a re- 
 argumeut some views have been presemed 
 and some authorities cited in addition to 
 what was presented in the former ease, yet 
 the conclusions reached do not differ from 
 those expressed in former opinion, reported 
 30 Fed. 476, and it is not deemed necessary 
 to go over the same ground again. 
 
 139 
 
Case No. 50] 
 
 KELKVANCY. 
 
 FREEilAX et al. v. ALDEIISON et al. 
 (7 Sup. Ct. 165, 119 U. S. 185.) 
 
 Supreme Court of the United States. Nov. 29, 
 1886. 
 
 Error to the circuit court of the United 
 States for the Northern district of Texas. 
 
 This was an action of trespass to try the 
 title to certain land in Texas. It is the 
 form in use to recover possession of real 
 property in that state. 
 
 The plaintiffs claimed the Jand under a 
 deed to their grantor, executed by the sher- 
 iff of McLennan county, in that state, upon 
 a sale under an execution issued on a judg- 
 ment in a state court for costs, rendered 
 against one Henry Alderson, then owner of 
 the property, but now deceased. The de- 
 fendants asserted title to the land as heirs 
 of Alderson, contending that the judgment 
 under which the alleged sale was made, was 
 void, because It was rendered against him 
 without personal service of citation, or his 
 appearance in the action. 
 
 The material facts of the case, as disclos- 
 ed by the record, are, briefly, these: On the 
 sixteenth of July, 18.55, a tract of land com- 
 prising one-third of a league was patented 
 by Texas to Alderson, who had been a sol- 
 dier in its army. One undivided half of 
 this tract was claimed by D. C. Freeman 
 and G. R. Freeman, and they brought an ac- 
 tion against him for their Interest. The 
 pleadings in that action are not set forth in 
 the ti'anscript, but from the record of the 
 judgment therein, which was produced, we 
 are informed that the defendant was a non- 
 re.sideut of the state, and that the citation to 
 him was made by publication. There was 
 no personal service vipon him, nor did he ap- 
 pear in the action. The judgment, which 
 was rendered on the first of October, 1858, 
 was of a threefold character. It first ad- 
 judged that the plaintiffs recover one undi- 
 vided half of the described tract. It then 
 appointed commissioners to partition and di- 
 vide the tract, and set apart, by metes and 
 bounds, one-half thereof, according to quan- 
 tity and quality, to the plaintiffs; and to 
 make their report at the following term of 
 the court. And, finally, it ordered that the 
 plaintiffs have judgment against the defend- 
 ant for all costs in the case, but stayed ex- 
 ecution until the report of the commission- 
 ers should be returned and adopted, and a 
 final decree entered. 
 
 At the following term the commissioners 
 made a report showing that they had divid- 
 ed the tract into two equal parcels. The re- 
 port was confirmed, and on the thirty-first of 
 March, 1859, the court adjudged that the 
 title to one of these parcels was divested 
 from Alderson, and vested in the plaintiffs, 
 the two Freemans, and that they recover all 
 costs in that behalf against him, which were 
 $61.45, and that execution issue therefor. 
 Execution therefor was issued to the sher- 
 iff of McLennan county on the thirtieth of 
 
 140 
 
 May directing him to make the amount out 
 of "the goods, chattels, lands, and tene- 
 ments" of the defendant. It was levied on 
 the other half of the divided tract, which re- 
 mained the defendant's property. On the 
 fifth of July, 1859, this half was soid by the 
 sheriff to one James E. Head for .f60.79, be- 
 ing the costs mentioned, and his fees for the 
 levy and for his deed, which was executed 
 to the purchaser. In September following. 
 Head conveyed the premises to D. C. Free- 
 man for the alleged consideration of $178. 
 Two of the defendants disclaimed having 
 any interest. The other defendants, includ- 
 ing Freeman, so far as their title is disclos- 
 ed by the transcript, claimed under the sher- 
 iff's deed. 
 
 On the trial, the defendants, to show title 
 out of the plaintiffs, offered m evidence the 
 judgment for the costs, the execution issued 
 thereon, and the sheriff's deed; to the in- 
 troduction of which the plaintiffs objected, 
 on the ground that the judgment for costs 
 was a judgment in personam, and not in 
 rem, and was rendered against the defend- 
 ant, who was a non-resident of the state, 
 A\-itliout his appearance in the action, or per- 
 sonal service of citation upon him, but upon 
 a citation by publication only, and therefore 
 constituted no basis of title in the purchas- 
 er under the execution. The court sustained 
 the objection, and excluded the documents 
 from the jury; and the defendants except- 
 ed to the ruling. No other evidence of title 
 being produced by the defendants, a verdict 
 was foand for the plaintiffs, «and judgment 
 in tlieir favor was entered thereon; to re- 
 view which the case is brought to this coui't 
 on a writ of error. 
 
 M. F. Morris, for plaintiffs in error. B. H. 
 Graham and L. W. Goodrich, for defendants 
 in error. 
 
 Mr. Justice FIELD, after stating the case, 
 delivered the opinion of the court as fol- 
 lows: 
 
 Actions in rem, strictly considered, are 
 proceedings against property alone treated 
 as responsible for the claims asserted by the 
 libelants or plaintiffs. The property itself 
 is in such actions the defendant, and, ex- 
 cept in cases arising during war for its hos- 
 tile chai-acter, its forfeiture or sale is sought 
 for the wrong, in the commission of which 
 it has been the instrument, or for debts or 
 obligations for which by operation of law 
 It is liable. The court acquires jurisdiction 
 over the property in such cases by its sei- 
 zure, and of the subsequent proceedings by 
 public citation to the world, of which the 
 owner is at liberty to avail himself by ap- 
 pearing as a claimant in the case. 
 
 There is, however, a large class of cases 
 which are not strictly actions in rem, but 
 are frequently spoken of as actions quasi in 
 rem, because, though brought against per- 
 sons, they only seek to subject certain prop- 
 
JUDGMENTS. 
 
 [Case No. 50' 
 
 erty of those persons to the diseliarge of the 
 claims asserted. Such are actions in which 
 property of non-i-esideuts is attaclied and 
 held for the discharge of debts due by them 
 to citizens of the state, and actions for the 
 enforcement of mortgages and other liens. 
 Indeed, all proceedings having for their sole 
 object the sale or other disposition of the 
 property of the defendant to satisfy the de- 
 mands of the plaintiff are in a general way 
 tuus designated. But they differ, among 
 other things, from actions which are strict- 
 ly in rem, in that the interest of the defend- 
 ant is alone sought to be affected, that cita- 
 tion to him is required, and that judgment 
 therein is only conclusive between the par- 
 ties. 
 
 The state has jurisdiction over property 
 within its limits owned by non-residents, 
 and may therefore subject it to the payment 
 of demands against them of its own citi- 
 zens. It is only in virtue of its jurisdiction 
 over the property, as we said on a former 
 occasion, that its tribunals can inquire into 
 the non-resident's obligations to its own cit- 
 izens; and the inquiry can then proceed only 
 so far as may be necessary for the disposi- 
 tion of the property. If the non-resident 
 possesses no property in the state, there is 
 nothing upon which its tribunals can act. 
 Pennoyer v. Neff, 95 U. S. 723. They can- 
 not determine the validity of any demand 
 beyond that which is satisfied by the prop- 
 erty. For any further adjudication the de- 
 fendant must be personally served with cita- 
 tion, or voluntarily appear in the actiofl. 
 The laws of the state have no operation out- 
 side of Its territory, except so far as may be 
 allowed by comity; its tribunals cannot send 
 their citation beyond its limits, and require 
 parties there domiciled to respond to pro- 
 ceedings against them; and publication of 
 citation within the state cannot create any 
 greater obligation upon them to appear. 
 Pennoyer v. Neff, 95 U. S. 727. So, neces- 
 sarily, such tribunals can have no jurisdic- 
 tion to pass upon the obligations of non-resi- 
 dents, except to the extent and for the pur- 
 pose mentioned. 
 
 This doctrine is clearly stated in Cooper v. 
 Reynolds, 10 Wall. 308, where it became nec- 
 essary to declare the effect of a personal ac- 
 tion against an absent party without the 
 jurisdiction of the court, and not served with 
 process or voluntarily appearing in the ac- 
 tion, and whose property was attached, and 
 sought to be subjected to the payment of the 
 demand of the resident plaiutiff. After stat- 
 ing the general purpose of the action, and 
 the inability to serve process upon the de- 
 fendant, and the provision of law for attach- 
 ing his property in such cases, the coui't, 
 speaking by Mr. Justice Miller, said: "If the 
 defendant appears, the cause becomes main- 
 ly a suit in personam, with the added inci- 
 dent that the property attached remains 
 liable, under the control of the court, to an- 
 swer to any demand which may be estab- 
 
 lished against the defendant by the final 
 judgment of the court. But if there is no- 
 appearance of the defendant, and no serv- 
 ice of process on him, the case becomes, in 
 its essential nature, a proceeding in rem, 
 the only effect of which is to subject the 
 property attached to the payment of the de- 
 mand which the court may find to be due to 
 the plaintiff. That such is the nature of 
 this proceeding in this latter class of cases 
 is clearly evinced by two well-established 
 proiDositions: First. The judgment of the 
 court, though in form a personal judgment 
 against the defendant, has no effect beyond 
 the property attached in that suit. No gen- 
 eral execution can be issued for any balance 
 unpaid after the attached propeiiy is ex- 
 hausted. No suit can be maintained on such 
 a judgment in the same court, or in any oth- 
 er; nor can it be used as evidence in any 
 other proceeding not affecting the att-ached 
 property; nor could the costs in that pro- 
 ceeding be collected of defendant out of any 
 other property than that attached in the 
 suit. Second. The court, in such a suit, can- 
 not proceed unless the officer finds some 
 property of defendant on which to, levy the 
 writ of attachment. A return that none can 
 be found is the end of the case, and deprives 
 the court of further jurisdiction, though the 
 publication may have been duly made and 
 proven in court." 10 Wall. 3] 8. 
 
 To this statement of the law it may be 
 added what, indeed, is a conclusion from the 
 doctrine, that while the costs of an action 
 may properly be satisfied out of the proiser- 
 ty attached, or otherwise brought under the 
 control of the court, no personal liability for 
 them can be created against the absent or 
 non-resident defendant; the power of the 
 court being limited, as we have already said, 
 to the disposition of the property, which is 
 alone within its jurisdiction. 
 
 The pleadings in the case in which judg- 
 ment was rendered for costs against Alder- 
 son are not before us. We have only the 
 formal judgment, from which it should seem 
 that the action was to recover an undivided 
 interest in the property, and then to obtain 
 a partition of it, and have that interest set 
 apart in severalty to the plaintiffs,— a sort 
 of mixed action to try the title of the plain- 
 tiffs to the undivided half of the property, 
 and to obtain a partition of that half. Such 
 action, though dealing entirely with the real- 
 ty, is not an action in rem in the strict sense 
 of the term. It is an action against the par- 
 ties named, and though the recovery and 
 partition of real estate are sought, that does 
 not change its character as a personal ac- 
 tion. The judgment therein binds only the 
 I)arties in their relation to the property. 
 The service of citation by publication may 
 suffice for the exercise of the jurisdiction of 
 the court over the property so far as to try 
 the right to its possession, and to decree its 
 partition; but it could not authorize the cre- 
 ation of any personal demand against de- 
 
 141 
 
Case Xo. 50] 
 
 KELEVANCY. 
 
 fendant, even for costs, which could be sat- 
 isfied out of his other property. 
 
 The judgment is for all the costs in the 
 case, and no order is made that they be sat- 
 isfied out of the property partitioned. Had 
 satisfaction been thus ordered, no execution 
 would have been necessary. The execution, 
 also, is general in its direction, commanding 
 the sheritf to make the. costs out of any 
 property of the defendant. 
 
 The judgment, as far as Lue costs are con- 
 cerned, must therefore be treated as a judg- 
 ment in personam, and, for the reason stat- 
 142 
 
 ed, it was without any binding obligation 
 upon the defendant; and the execution is- 
 sued upon it did not authorize the sale made, 
 and, of course, not the deed of the sheriff. 
 Were the conclusion otherwise, it would fol- 
 low, as indeed it is claimed here, that a joint 
 owner of real property might sue a non-resi- 
 dent co-tenant for partition, and, having had 
 his own interest set apart to himself, pro- 
 ceed to sell out on execution the interest of 
 his co-tenant for all the costs. 
 
 The judgment of the court below must be 
 affirmed; and it is so ordered. 
 
JUUGMENTS. 
 
 [Case No. 51 
 
 CROSS T. AltMSTRONG. 
 
 (10 N. E. 160, 44 Ohio St. B13.) 
 
 Supreme Court of Ohio. Jan. 18, 1887. 
 
 Error to district court, Tuscarawas coun- 
 ty. 
 
 The action below was commenced by the 
 filing in the court of common pleas of a 
 petition which, in substance, alleges that the 
 plaintiff: is the administrator of William 
 Armstrong; that the assets are insufficient 
 to pay the debts; and that the defendant is 
 the widow of the deceased. The intestate, 
 April 26, 1870, effected an insurance upon 
 his life, for the sum of $10,000, in the Provi- 
 dent Life & Trust Company of Philadelphia, 
 Pennsylvania, then doing business in Ohio 
 as an insurance company, and caused the 
 policy to be made payable on its face to his 
 wife, Polly Armstrong, the defendant. By 
 the terms of the policy, the assured, William 
 Armstrong, agreed to pay, and did annually 
 pay, the sum of $594, yearly premium for 
 such Insurance, from the date of the policy 
 until the time of his death, which occurred 
 March, 1879. The intestate, at the time of 
 his death, held the policy in his possession, 
 at his domicile In Ohio. The deceased, the 
 plaintiff, and the defendant were always cit- 
 izens of, and domiciled In, this state. After 
 the death of the assured, the defendant ob- 
 tained possession of the policy, collected of 
 the company the entire amount secured 
 thereby, and surrendered It to the company; 
 and she now holds the sum of $7,475.75 of 
 the $10,000 received by her, for the use of 
 the plaintiff, as the representative of the 
 deceased. To this an answer was filed, which 
 alleges in substance — First. That the Provi- 
 dent Life & Trust Compan.y is a corporation 
 organized under the laws of Pennsylvania; 
 that the insurance contract mentioned in the 
 petition was effected In that state, to be per- 
 formed, and was performed, in that state; 
 and that, by the laws of Pennsylvania, and 
 by virtue of t»e contract, the right vested 
 in the defendant to receive the whole of the 
 Insurance money secured by the policy for 
 her sole use and benefit. Second. That July 
 25, 1879, the defendant Instituted a suit in a 
 common pleas court, of the city of Philadel- 
 phia, upon that policy, against the insur- 
 ance company, to recover the $10,000 named 
 therein; that before plea pleaded the com- 
 pany came into court, and suggested that 
 the administrator of William Armstrong 
 claimed to have seme interest in the Insur- 
 ance fund, and prayed for leave to bring 
 the money into court, and for an interpleader 
 between the said Polly Armstrong and the 
 administrator of her husband, touching their 
 rights, respectively, to the proceeds of such 
 insurance; that such leave was granted, and 
 a rule entered requiring the administrator to 
 show cause why an interpleader should not 
 be awarded between him and Polly Arm- 
 strong to determine their respective rights 
 
 and ownership In the fund agreeably to the 
 laws of Pennsylvania, a copy of which rule, 
 under the seal of the court, was, pursuant 
 to the laws of Pennsylvania and the practice 
 in said court, delivered to said administrator, 
 at the county of Tuscarawas and state of 
 Ohio, together with a letter from the attor- 
 ney of the company, notifying him that, un- 
 der the laws of that state, it was necessary 
 for him to appear. Afterwards, the rule be- 
 ing made absolute, and the money having 
 been paid Into court, a citation was duly 
 Issued under seal, requiring and summoning 
 the administrator to appear in court and In- 
 terplead, and notifying lilm that, in case of 
 default, the moneys would be awarded to 
 said Polly, and he declared estopped and 
 debarred from any further right or claim 
 therein; which citation, pursuant to the laws 
 of Pennsylvania, was duly served on the 
 administrator, by delivering the same to him 
 at said county of Tuscarawas. The admin- 
 istrator not appearing, the court adjudged 
 and decreed that the entire fund be paid to 
 Polly, and that the administrator be estopped 
 and debarred from all claims to any part of 
 said fund or in the policy of insurance. To 
 this answer the plaintiff interposed a general 
 demurrer. The court of common pleas over- 
 ruled the demurrer, and rendered judgment 
 for defendant; which judgment was affirm- 
 ed by the district court. To obtain a reversal 
 of these judgments the petition In error Is 
 filed in this court. 
 
 H. T. Stockwell, for plaintiff in error. J. 
 T. O'Donnell and Alexis Cope, for defendant 
 In error. 
 
 SPEAR, J. The questions arising in the 
 case are presented by the demurrer to the 
 answer. It will be observed that there Is 
 no denial of the allegations that, at the time 
 of the effecting of the Insurance upon the 
 life of William Armstrong, he and the de- 
 fendant were residents of and domiciled in 
 Ohio, and that they continued to so reside 
 until his death, and sne has ever since re- 
 sided within the state; that the premiums, 
 $594 each year, were wholly paid by the 
 husband; that the debts of the estate are 
 over $3,000, while the assets are not more 
 than $700; and that the defendant has re- 
 ceived from the insurance company the en- 
 tire amount of the Insurance money covered 
 by the policy, $10,000. The claim of the 
 plaintiff is based upon the statute of Ohio, 
 section 3268, while the defendant's claim is 
 that the rights of the parties are measured 
 by the laws of Pennsylvania, the place where 
 the contract was made, and was to be en- 
 forced, and that those rights have been ad- 
 judicated upon and determined by the de- 
 cree and judgment of the court of common 
 pleas of Philadelphia, set up in the second 
 defense of the answ er. It is urged that, by 
 the common law, the contract of insurance is 
 to be construed by the law of the place where 
 
 143 
 
Case Ko. 51] 
 
 KELKVANCY. 
 
 made; that the law of that place governs as 
 to the nature, obligation, and interpretation 
 of the contract; that, where the plaintiff 
 would have no right of action hy the law of 
 the state where the contract was made and 
 to be performed, he can have none here; and' 
 that, by the laws of Pennsylvania and by 
 virtue of the contract, the right rested in 
 the defendant to receive for her own ex- 
 clusive use the whole of the money secured 
 by the policy. 
 
 Assuming, without holding, that the law 
 of Pennsylvania is sufhclently pleaded in 
 the answer, and that, unless the question is 
 determined by the statute referred to, the 
 claim made by the defendant as to the effect 
 of the law of Pennsylvania upon the rights 
 of the parties here is conclusive, how, if at 
 all, are those rights affected by section 3628 
 of the Revised Statutes? That section reads 
 as follows: "Any person may effect an in- 
 surance on his life, for any definite period 
 of time, or for the term of his natural life, 
 to inure to the sole benefit of his widow 
 and children, or of either, as he may cause to 
 be appointed and provided in the policy; and 
 the sum or net amount of insurance becom- 
 ing due and payable by the terms of insur- 
 ance shall be payable to his widow or to his 
 children, for their own use, as provided in 
 the policy, exempt from all claims by the 
 representatives and creditors of such per- 
 son; but the amount of premium annually 
 paid on such policy shall not exceed the sum 
 of one hundred and fifty dollars, and, in case 
 of such excess, there shall be paid to the 
 beneficiaries named in the policy such por- 
 tion of the'insurance as the sum of one hun- 
 dred and fifty dollars will bear to the whole 
 annual premium, and the residue to the rep- 
 resentatives of the deceased." 
 
 In obtaining an insurance of this kind, the 
 manifest intent of the husband is to make 
 provision for those dependent upon him, a 
 purpose evei-y way rightful and laudable. 
 It is to be done by applying, fr'om year to 
 year, the money of the husband, obtained 
 from proceeds of his own labor or otherwise, 
 to the future use and benefit of those who 
 stand in such relation to him as to give them 
 a natural claim to his effects, forethought, 
 and bounty. And, up to a certain point as 
 to expenditure, such provision may legally be 
 made. In the same spirit our laws allow to 
 the widow dowerinlands. use of the mansion 
 house one year, a homestead right, a year's 
 support out of the personalty, a given propor- 
 tion of the residuum after debts are paid, and 
 certain specific articles of personal property, 
 if such the deceased possessed. But the 
 same laws recognize others as having rights 
 as regards the property of the deceased. 
 The creditors are not to be wholly ignored, 
 even though there be a needy widow and 
 needy children. As to the section referred 
 to, while it recognizes the right of the hus- 
 band to make provision for those of the fam- 
 ily who may survive, to the extent of $150 
 
 144 
 
 yearly thus invested, It also provides that,. 
 as to insurance effected by payments over 
 that sum, it shall inure to the legal represent- 
 ative. No question is made that, as to con- 
 tracts with Ohio companies, the statute would 
 apply. Should it receive such construction 
 as to confine its operation to that class of 
 contracts? It is not doubted that it is com- 
 petent for the general assembly to enact laws 
 which in effect forbid citizens of the state 
 from resorting to the coui-ts of sister states 
 for the purpose of defeating the operation 
 of laws of Ohio as to questions which affect 
 the rights of other citizens of Ohio. The law 
 which gives to a debtor, the head of a family, 
 and not the owner of a homestead, an exemp- 
 tion as against a claim of a creditor in at- 
 tachment, where the sum due the debtor is 
 shown to be necessary for the support of the 
 family, is a law of that kind, inasmuch as it 
 is held that such creditor may be enjoined 
 from bringing action in courts out of Ohio 
 where such exemption could be permitted. 
 And the law in question, if it applies to 
 policies issued by companies other than those 
 organized in Ohio, is an inhibition against 
 citizens of Ohio placing moneys beyond the 
 reach of creditors, by entering into contracts 
 with insurance companies organized out of 
 this state. It will be noticed that the words 
 of the statute do not limit its application. 
 The language is comprehensive, and in terms 
 it applies to all contracts of insiu'ance obtain- 
 ed by citizens of the state. \Vhy should we 
 assume that the legislature intended that, if 
 the company happens to be a home company, 
 the statute applies, while, if one located in an- 
 other state, it does not apply? Why noc as- 
 sume, rather, that that body intended to cor- 
 rect the mischief which the very enactment 
 of the statute raises the implication then ex- 
 isted? It is but the ordinary rule to give 
 such construction to statutes as will advance 
 the remedy and correct the mischief. Apply- 
 ing the law only to home companies would, 
 in great measure, defeat the very purpose 
 apparent in this legislation. *rhe general as- 
 sembly must be assumed to have at least 
 such general and common knowledge upon 
 subjects of legislation as is possessed by citi- 
 zens at large; and it is matter of common 
 information that the great proportion of pol- 
 icies written upon the lives of citizens of 
 Ohio are issued by companies organized out- 
 side the state, and there is little doubt that 
 this was true in a lar'ger sense even at the 
 time this statute was enacted (1847) than it 
 is now. Statistics, believed to be reliable, 
 show that, in the year 1884, out of about Ifi.- 
 000 policies and certificates written upon th(> 
 lives of citizens of this state, more than 10,- 
 000 were written by foreign companies, and 
 out of $33,000,000 gross amount covered by 
 those policies and certificates nearly $2.^.000,- 
 000 were in policies issued by foreign com- 
 panies. It is probable that, prior to the or- 
 ganization of the various relief and aid asso- 
 ciations now so common, the disproportion 
 
JUDGMENTS. 
 
 [Case No. 51 
 
 was greater than the above figures show. 
 The parties to this litigation are citizens of 
 the state of Ohio, and were when rights un- 
 der this policy accrued. Those rights are be- 
 ing adjudicated in the courts of Ohio. "Why 
 should those courts ignore our own law, or 
 malie it subordinate to the law of another 
 state? We think they should not. To do so 
 would permit a citizen, largely indebted, to 
 invest his capital and earnings to an unlimit- 
 ed amount for the benefit of members of his 
 family in insurance contracts in distant states, 
 thus making a fraud upon deserving cred- 
 itors, by placing such sums beyond their 
 reach, notwithstanding such investments 
 would be in spirit a plain violation of the 
 whole policy of our laws regulating the re- 
 spective rights of debtor and creditor. Very 
 much more might be said in elaboration of 
 this view, but we deem it unnecessary to 
 take further space, as we feel confident that 
 enough has been indicated to make it clear 
 that the demurrer as to the first defense of 
 the answer was well taken, and should have 
 been sustained. 
 
 Does the second defense set up in the an- 
 swer stand in the way of a recovery? The 
 contention on part of defendant is that, by 
 the judgment of the Philadelphia court, the 
 matter in issue here is res adjudicata. and 
 this is so, if that court had jurisdiction of 
 the subject-matter and of the person of the 
 plaintiff. The record shows that the service 
 on the plaintiff was by delivering to him in 
 Ohio a copy of the rule of court requiring 
 him to show cause why the court should not 
 give direction to the company to bring the 
 $10,000, owing by it on the policy, into court, 
 and why he should not interplead with Mr. 
 Armstrong as to conflicting rights to such 
 money, together with a letter from the com- 
 pany's attorney, advising him to appear, and 
 by like service afterwards of a copy of a 
 rule absolute, and of citation to appear and 
 interplead. Is such notice sufHcient to re- 
 quire an Ohio administrator to go to another 
 state to litigate, in the courts of that state, 
 with a citizen of Ohio, questions arising un- 
 der the laws of Ohio affecting tne estate 
 which he represents, or refuse at his peril? 
 It is probable that no injustice would in this 
 case be done if the question were put in this 
 way: Can a resident of Ohio resort to the 
 courts of another state, and there compel an 
 administrator, resident of Ohio, and deriving 
 his authority from the courts of this state, to 
 litigate a dispute existing between them, 
 wherein the rights of the administrator de- 
 pends upon the law of Ohio, for the express 
 purpose of evading the effect of our statute, 
 and of obtaining a judgment which would 
 be contrary to the law of the domicile of 
 both? 
 
 It is urged that when the company asked 
 that an interpleader be awarded, and brought 
 the money owing by it into court, the court 
 then obtained jurisdiction of the fund, and, 
 from that time forward, the proceeding was 
 
 WILGnS.EV. — 10 
 
 one essentially in rem, and the court, having 
 then obtained jurisdiction of the res, and 
 having given notice according to the laws of 
 Pennsylvania, had ample power to hear and 
 determine, and having so heard and deter- 
 mined, the parties are bound by the judg- 
 ment. That such proceeding could be in rem 
 seems a novel doctrine. "In rem" is under- 
 stood to be a technical term, taken from the 
 Roman law, and there used to distinguish 
 an action against the thing from one against 
 tlie person, the terms in rem and in person- 
 am always being the opposite one of the 
 other; an act in personam being one done or 
 directed against a specific person, while an 
 act in rem was one done with reference to 
 no specific person, but against, or with ref- 
 erence to, a specific thing, and so against 
 whom it might concern, or "all the world." 
 A proceeding brought to determine the sta- 
 tus of the thing itself,— the particular thing, 
 —and wliich is confined to the subject-mat- 
 ter in specie, is in rem, the judgment being 
 intended to determine the state or condition, 
 and, pro facto, to render the thing what the 
 judgment declares it to be, while a pro- 
 ceeding which seeks the recovery of a per- 
 sonal judgment, is in personam. In the for- 
 mer, process may be served on the thing 
 itself, and by such service, and making proc- 
 lamation, the court is authorized to decide 
 upon it without other notice to persons, all 
 the world being parties, while, in the latter, 
 in order to give the court power to adjudge, 
 there must be service upon those whose 
 rights are sought to be affected. As regards 
 rights, the terms signify the antithesis of 
 "available against a particular person," and 
 "available against the world at large." Thus, 
 "jura in personam" are rights primarily 
 available "against specific persons; jura in 
 rem, rights only available against the world 
 at large." Beyond this, a judgment or de- 
 cree is in rem. or in the nature of a judg- 
 ment in rem, while it binds third persons, 
 such as the sentence of a court of admiral- 
 ty on a question of prize; or a decree of 
 other courts upon the personal status or re- 
 lation of the party, such as dissolution of 
 marriage contract, bastardy, etc.; a decree 
 in probate court admitting a will to probate 
 and record, granting administrators, etc.; or 
 a decree of a court of a foreign country as 
 to the status of a person domiciled there. 
 We quote from Freem. Judgm. the defini- 
 tion of "judgment In rem" given by that 
 author: "An adjudication against some per- 
 son or thing, or upon the status of some sub- 
 ject-matter, which, whenever and wherever 
 binding upon any person, is equally binding 
 upon all persons." In contract, a judgment 
 in personam is, "in form, as well as sub- 
 stance, between the parties claiming the 
 right; and that it is so inter partes appears 
 by the record itself." Woodruff v. Taylor, 
 20 Vt. 65. From all which it appears that a 
 judgment in rem, at least when against any- 
 thing, may bind the res in the absence of 
 
 145 
 
Case ]S'o. 51] 
 
 RELEVANCY. 
 
 any ijcrsoual notice to the parties Interested; 
 but a juclguu'ut in personam, as we have 
 seen, can have no validity except upon serv- 
 ice on the Interested parties, or what is 
 equivalfut to It. Why was the Philadelphia 
 action, in Its nature, not a proceeding be- 
 tween parties claiming right to money due 
 under the policy, rather than u proceeding to 
 determine the status of such money'.' If it 
 was the former, then the efBcacy of the judg- 
 ment depended upon having the parties be- 
 fore the court so that these conflicting claims 
 could be adjudicated; if the latter, then It 
 would appear to be one wherein the court's 
 judgment would have been effectual and con- 
 clusive without reference to whether the 
 parties were before the court or not; and 
 the rights of both of them could have been 
 as well settled by the filing of a bill by the 
 insurance company, and the bringing of the 
 money into court, and without the presence, 
 by service or appearance, of either of the 
 parties claiming to be Interested in the fund. 
 It was not the status of any particular mon- 
 ey that was to be determined; for any mon- 
 ey which was a legal tender would have ef- 
 fectually satisfied the claim of the party 
 receiving It; nor was there any claim i)iima- 
 rily, by even the widow, much less the ad- 
 ministrator, to any money in specie; nor 
 did either the company or the widow, at any 
 time, claim or admit that the administra- 
 tor had any money or property within the 
 jurisdiction of the court, or valid claim to 
 any subject-matter sought to be affected by 
 the decree to be rendered. The proceeding 
 was clearly one of interpleader, and that 
 only. We do not understand that an action 
 in personam, simply because a debtor brings 
 money, the right to recover which Is in conten- 
 tion, and gives to the custody of the court a 
 sum sufficient to discharge his debt, changes 
 into an action in rem, or that an intei-pleader 
 suit is, in Its nature, a proceeding in rem. 
 In the rhiladelphia case the company could 
 have begun the action by original bill, and 
 obtained a complete standing In court. If, 
 with other iDroper averments, the pleader 
 had alleged a willingness to bring the mon- 
 ey Into court. Manifestly, the action thus 
 begun would not have been In rem. Then, 
 does the mere fact that the company, (the 
 debtor,) being sued, voluntarily delivers mon- 
 ey to the clerk of the court, rather than 
 keep it In Its own safe, or to Its credit in 
 bank, or loaned upon call, change the action 
 from one in personam to one In rem? We 
 think not. 
 
 It will be borne In mind that the Phlla- 
 dephia suit was essentially unlike an at- 
 tempt to reach, by process of attachment, 
 the property of an absent party. It was 
 rather an attempt to estop the administrator 
 from claiming any recovery against the com- 
 pany, to draw the estate of William Arm- 
 strong to a distant state for settlement, and 
 an attempt to compel the administrator to 
 litigate, against his will, In a Pennsylvania 
 
 146 
 
 court, a controversy affecting the estate, and 
 with another resident of Ohio; hence the 
 class of cases which treat proceedings In 
 attachment as substantially proceedings In 
 rem have no application to the case at bar. 
 If the case made In the answer cannot be 
 treated as a suit in rem, it appears clear 
 that the judgment rendered Is void, as 
 against the administrator, for want of ju- 
 risdiction, at least, of his person. No sup- 
 port Is given that judgment by the consti- 
 tutional provision, and the act of congress 
 of 1790 passed pursuant to it, which gives in 
 all states the same faith and credit to a 
 judgment of a state as It has by law or 
 usage in the courts of the state where ren- 
 dered; for, whatsoever strict construction 
 ( was given that provision by the earlier de- 
 ! cisions, it is now well settled that parties 
 I sought to be affected by a judgment ren- 
 dered in another state are not precluded 
 from showing that the court wherein the 
 action was pending had no jurisdiction, ei- 
 ther of subject-matter or of the person; for, 
 in order to entitle a judgment rendered to 
 such full faith and credit, the court must 
 have had jurisdiction as well of parties as of 
 subject-matter. The law on this point Is well 
 stated by Johnson, J., in Pennywit v. Foote, 
 27 Ohio St. 618, as follows: "From a care- 
 ful review of numerous cases, we find the 
 rule now well settled that neither the con- 
 stitutional provision that full faith and cred- 
 it shall be given In each state to the public 
 acts, records, and judicial proceedings of ev- 
 ery other state, nor the act of congress pass- 
 ed in pursuance thereof, prevents an Inquiry 
 Into the jurisdiction of the court In which the 
 judgment offered in evidence was rendered, 
 and such a judgment may be contradicted 
 as to the facts necessary to give the court 
 jurisdiction; and. If it be shown that sucn 
 facts did not exist, record v,ill be a nullity, 
 notwithstanding It may recite that they did 
 exist, and this is true either as to the sub- 
 ject-matter or the person, or in proceedings 
 In rem as to the thing." The state of Penn- 
 sylvania could not extend Its sovereignty In- 
 to the state of Ohio. It could not, In an ac- 
 tion in personam, compel a citizen of this 
 state to respond to the process of Its courts 
 served In this state. "No sovereignty can 
 extend its process beyond its own territorial 
 limits, to subject either person or property 
 to its judicial decisions. Every exertion of 
 authority of this sort beyond this limit is a 
 mere nullity, and incapable of hindering such 
 person or property in any other tribunals." 
 Story, Confl. Laws, § 539. "The jurisdiction 
 of state courts Is limited by state lines, and 
 upon principle it Is difficult to see how an 
 order of court, served upon a party out of 
 the state in which It Is Issued, can have any 
 greater effect than knowledgt brought home 
 to the party in any other way. Mere knowl-' 
 edge of the pendency of a suit In the courts 
 of another state, without service of the pro- 
 cess, or an appearance, is not sufficient, of 
 
JUDGMENTS. 
 
 [Case No. 51 
 
 itself, to compromise the rights of the party 
 in this state." Ewer v. Coffin, 1 Cnsli. 23. 
 
 The conclusion we have reached is strength- 
 ened li.\' a consideration of tlie policy and 
 provisions of our statute, whicli directs in 
 what county an administrator may be sued. 
 Section 5031 of the Revised Statutes pro- 
 vides that actions against an executor, ad- 
 ministrator, guardian, or trustee may be 
 brought in the county wherein he was ap- 
 pointed or resides, in which case summons 
 may issue to any county. When so careful 
 a provision is made as to the situs of suits 
 
 against administrators in this state, and 
 while, uudei- the section referred to, this 
 widow -lAould have been confined to the lim- 
 it above indicated in the bringing of an ac- 
 tion in Ohio, to settle the rights of the par- 
 ties to the amount due on the policy, It would 
 seem strange, indeed, if she could, by choos- 
 ing a court in another state, compel the ad- 
 ministrator to follow her there to defend the 
 claims of the estate he represented. 
 
 We are of opinion that the demurrer to the 
 answer should have been sustained. Judg- 
 ments reversed. 
 
 147 
 
Case No. 52] 
 
 RELEVANCY. 
 
 CARLISLE V. KILLEBREW. 
 
 (6 South. 756, 89 Ala. 329.) 
 
 Supreme Court of Alabama. Nov. 26, 1889. 
 
 Appeal from circuit court, Dale county; J. 
 M. Carmicliael, Judge. 
 
 This was an action of detinue, and was brought 
 by the appellant, R. K. Carlisle, against the ap- 
 pellee, John C. Killebrew, and sought to recov- 
 er certain crops taken from the premises by de- 
 fendant. On the defendant being examined as 
 a witness in his own behalf, he was asked by 
 his counsel to "state whether he was put in pos- 
 session by the sheriff of the lands upon which 
 the crops were raised." The plaintiff objected 
 to this question, the court overruled his objec- 
 tion, allowed the defendant to answer that he 
 was so put in possession, and the plaintiff ex- 
 cepted. The bill of exceptions recites: "The 
 defendant then offered in evidence, for the pur- 
 pose of Identifying fraction 12, [the tract of 
 land on which the crops were alleged to have 
 been raised, and which are in controvery in this 
 suit,] a patent, regular on its face, from the 
 governor of Alabama to Thomas L. Smith, con- 
 veying said fraction 12. * * * Defendant 
 then introduced the deed from T. L. Smith to 
 M. N. Killebrew, conveying fraction 12 as afore- 
 said. Said deed was acknowledged and record- 
 ed as required by law." The plaintiff objected 
 to the introduction of both the patent and the 
 deed, and reserved an exception to each of the 
 court's rulings in admitting them. "The de- 
 fendant then introduced a certified plat of said 
 section 16 [in which said fraction 12 is sit- 
 uated] from the office of the secretary of state, 
 to locate sairl fraction 12 as aforesaid. " The plain- 
 tiff objected to the introduction of this certified 
 plat, the court overruled his objection, and the 
 plaintiff duly excepted. "Defendant then intro- 
 duced Prof. McCartha, who swore he was a prac- 
 tical surveyor, and that he had in his hands an en- 
 larged plat, and which was an exact copy of plat 
 from secretary of state, and witness proposed to 
 use said enlarged plat in locating fraction 12 for the 
 jury." Whereupon the plaintiff objected to the 
 said witness using the said enlarged plat, which 
 objection the court overruled, and the plaintiff ex- 
 cepted. 
 
 Alter the general charge by the court, the plain- 
 tiff requested the court to give the following charge, 
 which was in writing: "If plaintiff was in the act- 
 ual and peaceable possession, at the time the plain- 
 tiff brought this suit, of the lands upon which the 
 crops were raised, and that defendant had entered 
 on said land and removed said crops without per- 
 mission of plaintiff, then the plaintiff must recover 
 in this action. " The court refused to give this 
 charge, and the plaintiff duly excepted. The de- 
 fendant then requested the court to give the fol- 
 lowing charge, in writing, to the jury: "When 
 Carlisle, in the defense of the suit brought by Kil- 
 lebrew for fraction 12, disclaimed being in posses- 
 sion of fraction 12, this disclaimer devolved upon 
 the jury the duty of ascertaining whether or not 
 he was in possession of fraction 13, and if the judg- 
 ment rendered was against Carlisle on the dis- 
 claimer, and in favor of Killebrew for rent, Car- 
 lisle is estopped by the judgment from saying that 
 he was not in possession of fraction 12, or that he 
 was not in possession of the particular piece of 
 land sued for as fraction 13, if it was embraced in 
 his disclaimer. " The court gave this charge, and 
 the plaintiff reserved an exception to such giving by 
 the court. There was judgment for the defendant. 
 The plaintiff now prosecutes this appeal, and as 
 signs the various rulings of the court below as error. 
 
 A. L. Millegan, M. JS. Millegan, and H. 
 L. Martin, for appellant. U. H. Blackman, 
 for appellee. 
 
 SOMERVILLE, J. The defendant, Kille- 
 brew, the appellee in this case, had, prior to 
 the present suit, recovered certain premises 
 
 148 
 
 from the plaintiff, Carlisle, in a real action in 
 the nature of ejectment. He was formally put 
 in possession by the sheriff under a writ of 
 pos.session, and under such claim of right 
 gathered and appropriated the crops of cot- 
 ton, corn, and fodder growing on the land. 
 Carlisle afterwards took possession of the 
 land witliout resort to the courts, and brouglit 
 the present action in detinue to recover the 
 crops taken away by Killebrew. 
 
 1. The general rule of the common law is 
 that one who recovers land in ejectment is 
 entitled to the crops then growing on the prem- 
 ises, they being regarded as part and parcel 
 of the realty. McLenn v. Bovee, 24 Wis- 
 295; Page v. Fowler, 39 CaL 412; Thweat v. 
 Stamps, 67 Ala. 96. In other words, "as be- 
 tween the successful plaintiff in an action of 
 ejectment and the evicted defendant, growing 
 crops are a part of the realty. " Van Alen 
 V. Rogers, 1 Amer. Dec. 113, note, 116. 
 
 The statutes of Alabama modify this prin- 
 ciple only by providing that, if the defend- 
 ant in ejectment has a crop planted or grow- 
 ing on the premises recovered from hira by 
 the plaintiff, he may stay tlie writ of posses- 
 sion until the expiration of the year, by giv- 
 ing bond and sureties to the plaintiff to se- 
 cure the rent to him, which is declared to 
 have the force and effect of a judgment up- 
 on the defendant's failure to pay the rent at 
 jthe expiration of the year. Code 1886, §§ 
 (2712, 2713. No sucli bond having been giv- 
 en in tliis case, this statute can have no bear- 
 in"; on the rights of the parties litig;mt. 
 
 2. The main question in the present suit is 
 wlietliertlie defendant, Killebrew, can be per- 
 mitted to introduce in evidence, in this action 
 for the crops severed from tiie freehold, the 
 judgment of recovery in ejectment, and, if 
 so, what force as evidence this judgment will 
 exert. It is insisted by the appellant that 
 the court below erred in admitting this judg- 
 ment, and the writ of possession issued on 
 it, because the question of title to the land 
 cannot be litigated in a personal action, and 
 for the further reason that, at common law, 
 a prior judgment in ejectment was not ad- 
 missible in a subsequent suit Ijetween the 
 same parties. The former principle, applied 
 to this case, operates to preclude the plain- 
 tiff, Carlisle, from challenging the defend- 
 ant's right of possession and title acquired 
 under his judgment in ejectment. Beatty v. 
 Brown, 76 Ala. 267; Stringtellow v. Curry, 
 Id. 394. TheJatter rule is so stated by some 
 of the old writeis, and is based upon the use 
 of fictitious names in the action of ejectment 
 proper, which is still tolerated in our form of 
 practice. But this is not a second action of 
 ejectment in which it is sought to use as ev- 
 idence a judgment recovered in a former ac- 
 tion. The present is a personal action, and 
 the rule applies, as against the plaintiff him- 
 self, that he cannot collaterally raise the ques- 
 tion of title to the land- by way of showing 
 incidentally his right to the crops severed 
 from the f reeliold. Martin v. Thompson, 120 
 U. S. 376, 7 Sup. Ct. Kep. 586. 
 
JUDGMENTS. 
 
 [Case No. 52 
 
 In our practice, under the statute, it re- 
 quires two verdicts and judgments for the 
 defendant to bar further suit by the phiintifE 
 in ejectment, or the real action in the nature 
 of ejectment. Code 1886, § 2714. But where 
 the question of title arises collaterally, as in 
 an action for mesne profits, or otherwise, the 
 record of a recovery in ejectment is not only 
 admissible in evidence in favor of the party 
 put in possession under it, but is conclusive 
 between the same parties, and their privies, 
 on the same title, as to tlie question of pos- 
 session and title. Shumake v. Nelms, 25 Ala. 
 126; Howard v. Kennedy, 4 Ala. 592; Van 
 Alen v. Rogers, 1 Anier. Dec. 113, note, 116; 
 2 Greenl. Ev. § 333; Camp v. Foirest, 13 Ala. 
 -114; 6 Amer. & Eng. Cyclop. Law, 245^; 
 Cliirac v. Rpinecl?er, 2 Pet. 613, 622; Equa- 
 tor Co. v. Hall. 106 U. S. 86, 1 Sup. Ct. Eep. 
 128; Caperton v. Sclimidt, 85 Amer. Dec. 187, 
 note, 208. The judgment recovered in the 
 ejectment suit involved the title and right 
 of possession of the parties to the present suit 
 to the same lands, upon which the crops in 
 dispute were at the time growing, and was 
 conclusive on collateral attack as to the title 
 of the lands, and therefore of the growing 
 crops which were a part of the freehold at 
 the time of recovery. 
 
 3. The plat of fraction 12 in dispute, pro- 
 posed to be introduced by the plaintiff, was 
 ruled out by the court as inadmissible. This 
 was alleged to be the "original plat" of this 
 land given to the plaintiff as such by the sec- 
 retary of state. No legal proof was made on 
 this point, however, and the paper is not be- 
 fore us for inspection. We cannot say that the 
 trial court erred in excluding it from the jury. 
 
 4. We do not judicially know that the judg- 
 ment of ejectment for the recovery of "frac- 
 tion 12, a part of the S. E. ^ and [of] N. E. 
 
 J sec. 16, T. 4, R. 4, containing 34 75-100 
 acres," was void for uncertainty, on the 
 ground that no such land exists. The record 
 shows that it was surveyed by the county 
 surveyor, and was round ^riwa/acie correct. 
 Moreover, the objection taken to the admis- 
 sion of this judgment, and other parts of the 
 record accompanying it, was so general and 
 undefined in its character that it was compe- 
 tent for the court to ignore it; no ground 
 of objection whatever being particularized. 
 Dryer v. Lewis, 57 Ala. 551; March v. Eng- 
 land, 65 Ala. 275; Steele v. Tutwiler, 57 Ala. 
 113. 
 
 5. The other evidence to which objection 
 was taUen by appellant was admissible to ex- 
 plain the extent of defendant's possession, 
 and to identify the lands on which the crops 
 in dispute were grown. 
 
 6. The court did not err in refusing to admit 
 in evidence the verdict and judgment in the 
 criminal prosecution instituted by Killebrew 
 against the plaintiff, Carlisle, for removing 
 the crops, in which the latter was acquitted 
 by tlie presiding magistrate. A verdict and 
 judgment in a criminal case is not generally 
 evidence of the fact upon which the judg- 
 ment was founded in a civil proceeding. 1 
 Starkie, Ev. (Sharswood) *363-365. 
 
 7. So the judgment of the magistrate show- 
 ing a recovery of damages by Carlisle against 
 Killebrew in the action of malicious prosecu- 
 tion, based on the prosecution last referred 
 to, is not shown to involve the determination 
 of any fact relevant to the present issues. 
 The judgment of acquittal, moreover, in the 
 criminal case, upon which the case of mali- 
 cious prosecution was based, being inadmis- 
 sible as above stated, the latter proceeding 
 must also be excluded. We find no error in 
 the record, and the judgment is affirmed. 
 
 149 
 
Case No. 53] 
 
 RELEVANCY. 
 
 NEEDHAM v. THAYER. 
 
 (18 N. E. 429, 147 Mass. 536.) 
 
 Supreme Judicial Covirt of Massachusetts. 
 Hampshire. Oct. 22, 1888. 
 
 Exceptions from superior court, Hampshire 
 county; Dunliar, Judge. 
 
 Action upon a judgment obtained by plain- 
 tiff in the superior court in 1874. The an- 
 swer alleged, that at the time of the service 
 of the writ in the suit in which the judgment 
 was recovered defendant was au inhabitant 
 of the st.-ite of Connecticut, and had no no- 
 tice of the commencement of the action, or its 
 pendency; and that he was not indebted to 
 plaintlfi: in the amount for which judgment 
 was rendered. The court admitted, against 
 defendant's objection, the record of the for- 
 mer suit, and excluded evidence in support of 
 the allegations of the answer. The court 
 found for plaintiff, and defendant excepted. 
 
 D. W. Bond, for defendant. Maynard & 
 Spellman, for plaintiff. 
 
 MORTON, C. J. The question of the validi- 
 ty of a judgment rendered by a court of this 
 state against a defendant, who was not a 
 resident of the state, and who was not served 
 personally with process within the state, was 
 considered In Eliot v. McCormick, 144 Mass. 
 10, 10 N. E. 705. In that case this court, fol- 
 lowing the decisions in the supreme court of 
 the TJnited States, held that such judgment 
 contravened the fourteenth article of the 
 amendments of the constitution of the Unit- 
 ed States, and was Invalid, and would be re- 
 versed upon a writ of error. The case at bar 
 presents the question whether, in a suit in 
 this state upon such a judgment, the defend- 
 ant may show, by plea and proof, that It is 
 invalid. The recent cases in the supreme 
 court of the United States go upon the ground 
 that a judgment in personam against a per- 
 son who is not a. resident of the state, who 
 
 150 
 
 has not been personally served with process, 
 and who has not appeared, is wholly void, 
 and that no suit can be maintained on it, 
 either in the same or in any other court. Pen- 
 noyer v. Xeff, 95 U. S. 714, 7:^.2; Freeman y. 
 Alderson, 119 U. S. 185, 7 Sup. Ct. 1C5. The 
 court has no jurisdiction, and its judgment 
 has no force, either in the state in which It 
 was rendered, or in any other state. This 
 being so, the judgment cannot be enforced 
 by a suit upon it; and the non-resident de- 
 fendant cannot be deprived of his right to 
 show by ]ilea and pi'oof, if such suit is 
 brought, that the judgment is void, without 
 an abridgement of his privileges and immuni- 
 ties, to protect which was the object of the 
 fourteenth article of amendment. To com- 
 pel him to resort to our courts by a writ of 
 error, In which he must file a bond if he 
 would obtain a stay of the execution, is to 
 impose a burden upon him, and thus to 
 abridge his privileges and immunities. It has 
 been held in many ca.ses that a domestic judg- 
 ment cannot be Impeached by plea and proof 
 in a suit brought upon It, because the proper 
 remedy Is a writ of error. Hendrick v. 
 Whittemore, 105 Mass. 26, and cases cited. 
 But while a state may make laws binding its 
 own citizens, requiring them to resort to a 
 writ of error, it cannot so bind citizens of 
 other states. The case of McCormick v. 
 Flske, 138 Mass. 379, seems opposed to our 
 views. But in that case the question of the 
 effect of the fourteenth article of amendment 
 was not raised or suggested to the court, and 
 therefore is not considered. In the case at 
 bar the effect of that amendment is involved. 
 The defendant's answer sets uij that, at the 
 time when the original suit was brought 
 against him, he was a non-resident, and that 
 no service was made upon him. We are of 
 the opinion that he had the right to impeach 
 the judgment by proof of these facts, and 
 that the ruling rejecting such evidence was 
 erroneous. Exceptions sustained. 
 
GENERAL REPUTATION. 
 
 [Case No. 54 
 
 O'BUIEN V. FRASIKR. 
 
 (1 Atl. 4fi5, 47 N. J. Law, H49.) 
 
 Supremo Court of New Jersey. Nov. o, 1885. 
 
 Writ of error. 
 
 The suit was for a malicious prosecution. 
 The declaration set forth, in the usual form, 
 the good character of the plaintiff, and that 
 the defendant, intending to injure her in her 
 fame and credit without any reasonable 
 cause, made a charge of perjury against her, 
 and so caused her arrest and imprisonment 
 in the county jail until she was discharged 
 on account of no indictment having been 
 found against her by the grand jury; that 
 bj"- means of these facts she was greatly in- 
 jured in her said credit and reputation, and 
 brought into public scandal, infamy, and dis- 
 grace, etc. The plea was the general issue. 
 
 Stevenson & Ryle, for plaintiff in error. 
 A. M. Ward, for defendant in error. 
 
 BEASLEY, C. J. The bills of exceptions 
 sent up with the writ in this case present 
 three jjoints for adjudication. These several 
 propositions will be considered in the order 
 in which they stand in the brief of the coun- 
 sel of this plaintiff in error. The basis of 
 the suit was the arrest and imprisonment of 
 the plaintiff on an affidavit made by the de- 
 fendant containing a charge of perjury, and 
 which charge, it was asserted, had been 
 made falsely, maliciously, and without prob- 
 able cause. The false swearing thus imput- 
 ed to the plaintiff consisted in a statement 
 made by her under oath, in a suit between 
 herself and the defendant, that a certain 
 bank-book which she had turned over to the 
 defendant contained a credit of a certain 
 sum due from the bank to her. Upon the 
 strength of this affidavit a justice issued a 
 warrant, and the plaintiff had been arrested 
 and imprisoned until she was discharged in 
 consequence of the grand jury failing to find 
 an indictment against her. At the trial of 
 the cause it was admitted by the counsel of 
 the defendant that the statements of this 
 affidavit were altogether untrue, and that 
 there had been no probable cause for the 
 arrest and imprisonment of the plaintiff on 
 that particular charge; and the defense was 
 that, although he signed the affidavit upon 
 which the warrant Issued, he did such act by 
 mistake; that the charge which he intended 
 to make was of a different character; that 
 what he meant to depose was that the plain- 
 tiff, on the trial referred to, had sworn false- 
 ly with respect to a certain amount of cash 
 she had given him, and not, as it stood in his 
 affidavit, that she had falsified touching the 
 contents of the bank-book which she had 
 transferred to him. In this aspect the de- 
 fendant was permitted at the trial, when he 
 was on the witness stand, to testify that he 
 did not intend to charge in his affidavit that 
 the plaintiff swore falsely as to the amount 
 
 of money placed to her credit in her bank- 
 book, but that she swore falsely with respect 
 to the amount of cash she had paid to him, 
 and that the magistrate before whom he had 
 laid his complaint, from a misconception of 
 his statement, inserted the former instead of 
 the latter accusation, and that he had igno- 
 rantly taken the oath in that form. This of- 
 fer of proof was rejected by the court, and, 
 in eft'ect, the defendant was not allowed to 
 prove that he believed that the plaintiff had 
 perjured herself in her allegation of the 
 amount of cash she had paid to him, and 
 that his purpose had been to charge her with 
 that offense. 
 
 The circumstances of the case are peculiar; 
 but, upon reflection, I am satisfied that the 
 testimony thus shut out was admissible. It 
 is not regarded as legal, on the ground stated 
 in the brief of counsel, which was that it 
 helped to support the defendant's statement 
 that he had not meant to make the particu- 
 lar accusations contained in his affidavit; 
 for such a collateral issue could not be inter- 
 polated merely by way of confirmation. But 
 it is conceived that it was legitimate evi- 
 dence, as it was an essential part of the de- 
 fense interposed. The case was in this situ- 
 ation: The defendant's affidavit had been 
 produced, and it had been proved that its 
 crimination was without foundation, and 
 without color of foundation. This the de- 
 fendant admitted, and he thereby confessed 
 that he had made a false charge of crime 
 against the plaintiff, resting on no probable 
 cause, and that by reason of such improper 
 action on his part she had been arrested and 
 imprisoned. If the case had been closed at 
 this point, the jury would have been con- 
 strained in right reason to find, not only that 
 the prose6ution had been founded in false- 
 hood to the knowledge of the defendant, but 
 that it was consequently malicious, and thus 
 his liability would have ensued. In this pos- 
 ture of affairs the defendant could not con- 
 trovert the fact that the charge that he had 
 in point of fact sworn to was false and with- 
 out foundation, but it. was still open for him 
 to disprove the inference that would have 
 necessarily resulted from the admitted facts 
 that he had put the law in motion against 
 the plaintiff from a malicious motive. 
 
 The existence of an illegal Intention in 
 this action was as essential to its support 
 as were the falsity of the crimination and 
 the absence of reasonable ground for a be- 
 lief in its truth. In order to manifest a 
 legal motive for his conduct, the offer was 
 made to the effect that the charge that he 
 had meant to make was one touching a 
 different matter, and that such latter In- 
 culpation was true according to his belief. 
 It will be observed that if this had been the 
 true attitude of the defendant, that is, rea- 
 sonably believing that the plaintiff had com- 
 mitted the crime of perjury in the particular 
 sought to be shown, and he had taken steps 
 in behalf of public justice to call her to 
 
 151 
 
Case No. 54] 
 
 KELEVANCY. 
 
 account, and in that course of law a mis- 
 take in the attidavit had supervened, it is 
 clear that, no matter how negligent he had 
 been, his motive had not been illegal. Proof 
 of the naked fact that one charge had been 
 substituted for another would not of itself 
 have been a defense to the action, because 
 it would not have exhibited a legal motive 
 for the defendant's conduct. It would have 
 been consistent with such a state of proof 
 that he had been actuated in the affair either 
 by a legal or illegal inducement to the course 
 taken. In order to test the principle, sup- 
 pose the defendant had proved that he had 
 intended to charge a crime upon the plain- 
 tiff which he knew she had not committed, 
 but that by mistake he had charged a differ- 
 ent offense, and had caused her imprison- 
 ment for it, would such proof have been a 
 defense to this action? Such a contention 
 very plainly would not have availed. The 
 defendant could not escape responsibility by 
 the subterfuge that the unintended and not 
 the intended falsehood had worked the 
 plaintiff injury. On this side of the case 
 the question is whether the defendant's 
 motive was illegal with respect to tlie course 
 of law leading to the arrest of the plaintiff!, 
 rather than to the particular mode of pro- 
 cedure that was adopted. No reason sug- 
 gests itself why the doctrine should be 
 made a part of the legal system that when 
 a person has been subjected to the suffering 
 and ignominy to which the plaintiff was 
 subjected, such person is to be without re- 
 dress if, through the inadvertence or negli- 
 gence of the prosecutor, a mistake has been 
 fallen into with respect to the particular 
 charge which it was intended to make, no 
 matter how improper or vicious the purpose 
 of such prosecutor may have been. As the 
 case stood before the court below, it had 
 appeared that the charge made was false; 
 that there had been no reasonable cause for 
 believing it to be true; and the conclusion 
 is that unless the defendant could show that 
 his motive for putting the prosecution on 
 foot was not malicious, that is, was not 
 such a motive as the law prohibited, the 
 action was sustained. There was error, 
 therefore, in rejecting the testimony in ques- 
 tion. 
 
 The second objection urged against the 
 proceedings at the trial also arises from the 
 exclusion of proofs offered by the defend- 
 ant. The defendant, desirous, apparently, 
 to disparage the general reputation of the 
 plaintiff in point of morals, asked of a wit- 
 ness the following question: "Do you know 
 the reputation of Mrs. Frasier in the city of 
 Paterson?" This interrogatory, in the form 
 stated, was overruled; the court directing 
 the counsel to make the inquiry more spe- 
 cific. The following interrogatories were 
 then propounded, and were successively 
 overruled, to-wit: "Are you acquainted with 
 the general reputation, among her neigh- 
 bors and acquaintances, of the plaintiff? 
 
 152 
 
 Do you know whether the plaintiff has been 
 charged with crime prior to the complaint 
 which Mr. O'Brien made against her? Are 
 you acquainted with the general reputation 
 which the plaintiff had among her friends and 
 neighbors prior to the time that Mr. O'Brien 
 made his charge against her? Do you know 
 whether, prior to the charge that Mr. O'Brien 
 made against her, the defendant had ob- 
 tained, and acquired the good opinion and 
 credit of her neighbors? Are you acquaint- 
 ed with the reputation which Mrs. Frasier 
 had, prior to Mr. O'Brien's charge against 
 her, for virtue?" 
 
 With respect to these inquiries, two topics 
 are discussed in the briefs of counsel: First, 
 whether the general character of the plain- 
 tifC in that action was open to attack; and, 
 second, this being answered in the affirm- 
 ative, whether the inteiTogatories, or any of 
 them, which were addressed to the witness 
 were in due form. 
 
 Touching the first subject, it is conceiv- 
 ed that when a plaintiff in a suit for mali- 
 cious prosecution founds his action in part 
 on an injui-y done to his character by such 
 prosecution, that the legal rule is quite 
 settled that he thereby puts his general 
 character in issue. As long ago as the case 
 of Savile v. Roberts, reported in 1 Ld. Raym: 
 374, Lord Holt, in defining the damages 
 which will support a suit of this character, 
 states, as his first class, those instances 
 where the only injury consists in the "dam- 
 age to a man's fame, as if the matter where- 
 of he is accused be scandalous." It wou!d 
 seem to follow, therefore, that whenever the 
 action is used as a means of reparation for 
 an injury in whole or in part done to his 
 character, the plaintiff in such procedure 
 must stand in precisely the same attitude 
 that the actor in an action for libel or slan- 
 der assumes, and in the latter class of cases 
 it has been adjudged in this court that the 
 general bad character of the plaintiff at the 
 time of the alleged grievance is admissible 
 on the part of the defense in mitigation of 
 damages. The case indicated is that of 
 Sayre v. Sayre, 25 N. J. Law, 235, in which 
 Chief Justice Green reviews the English 
 and American decisions on this subject, and 
 finally declares the class of evidence in ques- 
 tion is admissible in mitigation of damages, 
 on the broad ground "that it cannot be just 
 that a man of infamous character should, 
 for the same libelous matter, be entitled to 
 equal damages with the man of unblemished 
 reputation." It is also to be noted in this 
 connection that in his discussion of this 
 subject the accurate jurist just mentioned 
 evidently considered the action for malicious 
 prosecution based on an injury to character 
 as in pari materia with the action for libel 
 or slander, and refers to both procedures 
 throughout his opinion as resting on the 
 same general principle. And, indeed, it does 
 not seem to be deniable that a malicious 
 prosecution for an indictable and odious 
 
GENEKAL KEPUTATION. 
 
 [Case Xo. -H 
 
 •offense is a libel, to -wbich Is, in some cases, 
 superadded illegal imprisonment and the loss 
 ■of property, so that it would be quite ab- 
 normal for the same court to declare that 
 in the actions for libel the plaintiff's char- 
 -acter is in issue, but in actions for malici- 
 ous prosecutions it is not in issue. And the 
 decision just referred to appears to accord 
 with the great weight of authorities, as 
 will ijlainly appear by reference to any of 
 the leading text-boolvs ■ treating of the sub- 
 ject. 1 Whart. Ev. § 54; Bacon v. Towne, 
 4 Gush. 217; Fitzgibbon v. Brown, 43 .Me. 
 169. Evidence as to the bad moral cliar- 
 jicter of the plaintiff was, it is considered, 
 plainly admissible in mitigation of damages. 
 '\\'hether such testimony would have been 
 proper, if such issue had been presented on 
 the facts, as a circumstance going to make 
 -up a reasonable cause for the conduct of the 
 -defendant is a question not now sub judice. 
 With regard to the other branch of thi> 
 subject, It seems to me that the form of 
 some of the questions put to the witness 
 ,were unobjectionable. It was not merely 
 the bad character of the plaintiff on the 
 point in which it had been vilified that was 
 subject to discussion, but her charactei' gen- 
 ■erally with respect to morals. That the in- 
 quiry lias this scope was fully considered and 
 declared in the case just referred to of 
 Sayre v. Sayre. Consequently the interrog- 
 ^atory thus phrased, "Are you acquainted 
 .with the general reputation which the plain- 
 ififf had among her friends and neiglibors 
 prior to the time that Mr. O'Brien made his 
 charge against her?" would seem to have 
 J)een all that the rules of practice require. 
 According to common usage the phrase re- 
 fers to the general moral character oi the 
 person referred to, and it seems to savor 
 ■of hypercriticism to suggest that a question 
 
 thus framed embraces other than moral 
 traits of character. It would not be easy 
 to put the inquiry in a shape at once suc- 
 cinct and yet comprehensive, so as not to 
 be open to such a subtle objection, for the 
 line that separates what is immoral from 
 what is indecorous is oftentimes exceedingly 
 indefinite and indistinct. It will be found, 
 by referring to the language of the judges 
 as found in the reports, that the expressions 
 "bad character" and "general reputation" 
 are constantly used to signify character and 
 reputation with regard to morals. And if 
 this matter were in doulit, the other ques- 
 tion which was propounded and overniled, 
 in the words, "Are you acquainted with the 
 reputation which Jlrs. Frasier had, prior to 
 Mr. O'Brien's charge against her, for vir- 
 tue?" was sufficiently specific; for the in- 
 quiry necessarily tested the knowledge of 
 the witness with reference to the general 
 moral standing of the plaintiff in public esti- 
 mation. The result is that these two ques- 
 tions were improperly overruled. 
 
 The third and last exception relates to the 
 rejection at the trial of the following ques- 
 tions put by the counsel of the defendant 
 to one of the witnesses, to-wit: "Do you 
 know whether, prior to Mr. O'Brien's charge 
 against this woman, [the plaintiff',] she was 
 
 living in adultery with Mr. ?" It is 
 
 plain that the judicial course on this sub- 
 ject was correct. Pai'ticular criminal acts, 
 as a general rule, cannot be set up either 
 against a party or a witness. If the rule 
 were otherwise, innumerable issues. Incapa- 
 ble of all reasonable trial, would be raised 
 in the progress of the ordinary suits. It is 
 not known that any case warrants the 
 introduction of such a species of testimony. 
 
 Let the judgment be reversed on the 
 grounds above defined. 
 
 153 
 
.Case STo. 55] 
 
 EELEVANCY. 
 
 BACKDAHL et al. v. GRAND LODGE AN- 
 CIENT ORDER OF UNITED 
 WORKMEN. 
 
 (48 N. W. 454, 46 Minn. 61.) 
 
 Supreme Court of Minnesota. April 8, 1891. 
 
 Appeal from district court, Hennepin 
 county; Rea, Judge. 
 
 Merrick & Merrick, for appellants. W. 
 H. Adams and E. Southworth, {Joseph 
 A. Eckstein, of counsel,) for respondent. 
 
 COrXINS, J. Plaintiffs, as the heirs of 
 Alfred Backdahl, deceased, brought thisac- 
 tion to recover the amount of $2,000 upon 
 a beneficiary certificate issued by defend- 
 ant to him. The answer denied that 
 plaintiffs were the heirs, and alleged two 
 defenses,— the first, that Backdahl had 
 been suspended for non-payment of an as- 
 sessment; second, that he had been sus- 
 pended for non-payment of dues. When 
 the trial commenced, plaintiffs moved that 
 defendant be required to elect bet-n^een 
 these two defenses relating to non-pay- 
 ment, on the ground that they were in- 
 consistent. The test of consistency in two 
 defenses is, can the facts pleaded in both 
 be true? If so. then, although either be- 
 ing proved, proof of the other may be un- 
 necessary, they are not inconsistent. As 
 the two suspensions alleged in the answer 
 were at different times, fordifferentcauses, 
 effected in different ways, and having dif- 
 ferent consequences, the last in point of 
 time being more comprehensive than the 
 other, and as, notwithstanding theearlier, 
 the defendant might have made the later 
 suspension, they were n(jt inconsistent. 
 The verdict was for defendant. Each par- 
 ty claims, in effect, to have been entitled 
 to a direction from the court for a verdict. 
 As it is necessary to reverse the order de- 
 nying a new trial, we will not consider in 
 detail the 24 assignments of error, many 
 of them unfounded, but will refer ouly to 
 some general questions, which, in all prob- 
 ability, will arise on a second trial. 
 
 1. To prove that plaintiffs were sole 
 heirs of Backdahl, they offered in evidence 
 the decree of the probate court distribut- 
 ing his estate. This was i)roperly exclud- 
 ed, for while binding, as to the matters 
 adjudicated, upon the parties to the ad- 
 ministration proceedings, it was no evi- 
 dence of the facts on which it was based 
 against a stranger to such proceedings, as 
 was this defendant. To prove they were 
 such heirs, plaintiffs further offered, and 
 the court admitted, the testimony of a 
 witness whose only knowledge in refer- 
 ence to the subject had been derived from 
 his acquaintance with the family and with 
 Backdahl, the witness and the latter re- 
 siding in this country, the plaintiffs in 
 Sweden. Although that sort of evidence 
 is in the nature of hearsay, is based on 
 hearsay, it is admissible from necessity, be- 
 cause many times in no other way could 
 relationship be shown but by proof that 
 relationship in and to a particular family 
 was recognized b,y the members of the 
 family. IGreenl. Ev. §106. When such tes- 
 timony is introduced, it is for the jury to 
 determine, from the extent of the wit- 
 ness' acquaintanceship with the family 
 
 154 
 
 and his opportunities forknowingthat its 
 members recognized the particular person 
 as a member, what weight to give it. In 
 this instance, at least, the testimony of 
 the witness made a prima facie case for 
 the plaintiffs on the question of kinship. 
 
 2. Tliere was n contest on the evidence 
 as to the making and notice to Backdahl 
 of the assessment for non-payment of 
 which the suspension set out as a first de- 
 fense was alleged. It appears from the 
 constitution of defendant that, when a 
 memberentitled to participate in the bene- 
 ficiary fund dies, the subordinate lodge to 
 which he belonged is to notify, by a pre- 
 scrilicd form of death notice, the grand re- 
 corder of defendant lodge, who, on th& 
 first day of the following month, is to no- 
 tify each subordinate lodge. It is then the 
 duty of the latter to forward to the grand 
 recorder the beneficiary fund on hand in 
 such lodge, (the sum being one dollar for 
 each certificate, and such sums as may 
 have been received for certificates re- 
 newed,) and then to make an assessment 
 of one dollar upon each member holding a 
 certificate. An officer of the subordinate 
 lodge, called a "financier, " is to send writ- 
 ten or printed notice of the assessment to 
 each member assessed, and, upon the fail- 
 ure of any member within the specified 
 time to pay his assessment, he forfeits all 
 rights under his certificate. The financier 
 is required to keep a book wherein all a.s- 
 sessments for the beneficiary fund shall be 
 entered against each m<ember holding a 
 valid certificate. He is also required to- 
 furnish the recorderof the loJge the names- 
 of members in arrears upon assessments, 
 and the recorder is to place these names 
 on the minutes of the lodge, and to mark 
 the certificates of such members as sus- 
 pended on the certificate registry book. 
 8o tar as the return in this case shows, no 
 form or mode of making an assessment is 
 prescribed, and no record thereof required 
 to be made, except by the financier in th» 
 book kept by him. To fix a member's 
 duty to pay an assessment, these are the 
 essential things : A death by reason of 
 which an assessment maybemnde; notice 
 of the death to the grand recorder; tlie 
 notice before mentioned to thesubordlnate 
 lodge; an ass(!ssment in fact; and notice 
 thereof by the financier to the member. 
 As the duty to make the assessment is im- 
 perative, and no form or mode of making 
 it is prescribed, and no record of it is re- 
 quired to be kept, except in the financier's 
 book, it is not necessary that such assess- 
 ment be formally made by the lodge, or 
 that it be entered in the lodge minutes, 
 though that would doubtless be the bet- 
 ter way of preserving evidence of the fact. 
 Hence such assessment may be proven by 
 parol, and the evidence of it produced up- 
 on this trial was sufficient to go to the 
 jury. 
 
 3. And so was the testimony as to the 
 sending of notice to Backdahl. The finan- 
 cier, whose duty it is to forward no- 
 tices, could not and would not testify, 
 positively and specifically, that he mailed 
 a notice to Backdahl, but he swore to 
 sending notices of this particular assess- 
 ment to all of the menibei's of the lodge, as 
 he supposed, and as he evidently intended 
 
GENERAL REPUTATION. 
 
 [Case No. 55 
 
 to do, includiiiK notice to Backdahl, "if he 
 was not overlool?ed. " From this the jury 
 might find that notice was sent to Bacli- 
 dahl. Slsilbeck v. Garbecli, 7 Q. B. 84(); 
 Ward V. Londesboroiigh, 12 C. B. 252; 1 
 Greenl. Ev. § 40; 2 Whart. Ev. § 1330. 
 
 4. But there was not sufficient evidence 
 to go to the jury as to the suspension lor 
 non-payment of dues, alleged in the sec- 
 ond defense, and the court erred In refus- 
 ing an instruction requested bj' the plain- 
 tiffs that the second defense had not l)een 
 made out. In Scheufler v. This Defendant, 
 (Minn.) 47 N. W. Rep. 799, we had for con- 
 sideration those provisions of defendant's 
 constitution which provide for suspen- 
 sion for non-payment of assessments and 
 suspension for non-payment of dues. It 
 was held that the former operate ipso fac- 
 to upon default of the member, and with- 
 out any action on the part of the lodge, or 
 of any officer thereof, while the latter re- 
 quire the action and determination of the 
 lodge or an officer thereof. In other 
 words, that a failure- to pay an assess- 
 ment of itself, and without further cere- 
 mony, suspends the member, while a fail- 
 ure to pay dues gave cause for suspension 
 
 only, and, as suspension for non-payment 
 of dues Is in the nature of a forfeiture, the 
 lodge cannot, under its constitution, de- 
 clare it without notice to the meinbei', giv- 
 ing him an opportunity to be heard in op- 
 position. There was no testimony tend- 
 ing to show such notice or opportunity. 
 
 5. It was claimed upon the trial of the 
 case, as well as upon the argument of this 
 appeal, that Backdahl had voluntarily 
 withdrawn, had discontinued his connec- 
 ti(m witl) the subordinate lodge. Theevi- 
 dence produced in support of this claim was 
 abundant, but such a defense was not al- 
 leged In the answer, and there is nothing 
 in the settled case indicating that plaintiffs 
 consented to try such defense, although 
 not pleaded. Howevei*, all of the testimony 
 which was received bearing upon the 
 question was admis.sible and pertinent 
 upon the defense or (suspension for non-pay- 
 ment of the assessment, alleged in the first 
 defense. Order reversed. 
 
 VANDERBURGH, J., absent on account 
 of sickness, took no part. MITCHELL, 
 .1., not being present when this decision 
 was made and filed, did not participate. 
 
 155 > 
 
€ase No. 56] 
 
 RELEVANCY. 
 
 SULLIVAN T. STATE. 
 
 (6 Tex. App. 319.) 
 
 Court of Appeals of Texas. June, 1879. 
 
 Appeal fi-om district court, Gonzales coun- 
 ty; E. I^pwis, Judge. 
 
 Harwood & Winston and Fly & Davidson, 
 for appellant. Thomas Bali, Asst. Atty. Gen., 
 for the State. 
 
 WINKLER, J. This is an appeal from a 
 judgment of conviction of murder in the first 
 degree, imposing the death penalty. The 
 most important and interesting inquiry here 
 presented for consideration may he stated 
 to be substantially as follovrs:— 
 
 The appellant having been accused of the 
 murder of a woman, described in the indict- 
 ment as one "Harriet (a freedwoman, whose 
 name other than Harriet is to these grand 
 jurors unkno^yn)," soon after the homicide 
 was arrested and taken^ before the county 
 judge of Gonzales county for examination, 
 on which examination a witness called Owen 
 E. Dean testified; and on the trial at which 
 the conviction was liad, the witness Dean 
 not being in attendance, counsel for the 
 state proposed to reproduce his testimony 
 taken before the county judge on the pre- 
 liminary examination, and for this purpose 
 placed on the stand as a witness one Ed 
 Titcombe, who qualified himself to testify 
 in the following manner, as set out in the 
 statement of facts: "He was deputy clerk 
 of the county court, and was present at an 
 examining trial held by John S. Conway, 
 county judge of Gonzales county, on the 11th 
 day of July, 1877. The examination was 
 held for the purpose of ascertaining whether 
 or not defendant, Thomas Sullivan, should 
 be committed to jail, he beins charged Avith 
 the killing of the woman Harriet, and the 
 examination being had to ascertain the facts 
 in that case. The defendant, Thomas Sul- 
 livan, was present, and had an opportunity 
 to cross-examine the witnesses. He w;is ask- 
 ed by Judge Conway if he desired to cross- 
 examine the witnesses, and was so asked in 
 relation to each witness. Owen Dean was 
 sworn as a witness In said examining court 
 by me, and testified in the case, after being 
 threatened with punishment by the court for 
 refusing to testify. I took down his testi- 
 mony. It was reduced to writing, and he 
 signed his statement 'Owen E. Dean.' I 
 can state substantially all that said Owen E. 
 Dean testified to on said examination. He 
 (Titcombe) was then presented with the writ- 
 ten statement at said trial, and was going 
 on to state Dean's testimony, when counsel 
 for defendant suggested that he had better 
 read the evidence from the record, which 
 was done, and the witness stated as follows." 
 Here follows what purports to be the state- 
 ment of Dean, as given by him on the ex- 
 amination before the county judge. 
 
 This testimony was admitted over ob- 
 
 156 
 
 jection by defendant's counsel, on the fol- 
 lowing grounds, as set forth in a bill of ex- 
 ceptions, to wit: "(1) Said witness had not 
 been put under the rule with other witnesses 
 for the state, but had been in the court room 
 during the trial. (2) Because it had not been 
 proven that Owen E. Dean was dead. (.3) 
 Because it was not shown that Owen E. 
 Dean was beyond the jurisdiction of the 
 court, or was even residing permanently out 
 of the state. (4) Because it was not proven 
 that the pretended statement of Owen B. 
 Dean was made in an.v court having any 
 manner of jurisdiction over the cause or over 
 the defendant. (5) Because it was not prov- 
 en that the said purported statement of 
 Owen E. Dean was made by said Dean un- 
 der oath, and it was not shown that the pre- 
 tended confessions made by said defendant 
 to s;iid Dean were voluntarily made." All 
 of which objections, the bill of exceptions 
 recites, were overruled by the court. 
 
 It is further shown by the statement of 
 facts and by a bill of exceptions that certain 
 testimony of a witness named Smeed was 
 admitted over objection by defendant. The 
 testimony of the witness Smeed was sub- 
 stantially as follows: The witness knows 
 Owen Dean. Don't know his middle name, 
 or that he had any. He was here for sev- 
 eral months, to set after his brother, who 
 was in jail, charged with murder. He was 
 here from January until August of last year. 
 He went away out of this state. I wrote a 
 letter to the postmaster at Marion, Massa- 
 chusetts, inquiring for Owen Dean. I got 
 a reply, he savs, srying that Deau was at 
 Boston. Massachusetts. . Among his friends 
 and acquaintances it is generally understood 
 that he is at Boston, Massachusetts. He said 
 that Dean came here from Boston, Massa- 
 chusetts. 
 
 The grininds of objection to this testimo- 
 ny, .as set out in the bill of exceptions, were: 
 First. The testimony does not show that the 
 man Owen B. Dean was beyond the jurisdic- 
 tion of the court, or that he was even living 
 beyond the jurisdiction of the state. Sec- 
 ond. That said evidence was hearsay. Third. 
 Tluit the letter of which witness spoke was 
 better evidence tlan witness's statement as 
 j to the contents of said letter. Fourth. The 
 letter referred to by witness was in regard 
 to Owen Dean, and not Owen E. Dean; and 
 because the man known here as Owen B. 
 Dean was not known in Massachusetts by 
 that name. 
 
 Another bill of exceptions recites that the 
 defendant offered a witness to prove that 
 the man called Owen E. Dean was under 
 an assumed name, and not Dean; and also 
 to prove that the man called Owen E. Dean 
 stated to the witness that when the defend- 
 ant made the pretended confession of guilt 
 to him, said Dean, about which witness Tit- 
 combe had testified, that he (defendant) was 
 laboring under delirium tremens, caused by 
 
EVIDENCE GIVEX IN EOHMEll PROCEEDINGS. [Case No. 56 
 
 t'xcesshe drink; which was ruled out, on 
 objection by counsel for the state, and the 
 ruling saved by bill of exceptions. 
 
 We have stated some of the questions pre- 
 sented by these bills of exception with, per- 
 haps, unnecessary particularity, for the rea- 
 son that to state them plainly is to show 
 their insigniiicance with reference to all that 
 is said concerning the name of the man call- 
 ed Dean. We have no concern as to wheth- 
 er he was passing under an assumed name or 
 not, or whether he had a middle initial let- 
 ter in his name or not. The only concern 
 the court and jury could have had was, not 
 with the name, but with the identity of the 
 witness who testified in that name before 
 the examining trial before the county judge, 
 and as to his Identity there seems no room 
 for controversy. As a general rule of law, 
 a middle name is treated as of no conse- 
 quence whatever. 
 
 The first question here presented is this: 
 Was the county judge lawfully authorized 
 and empowered to hold what the law de- 
 nominates an examining court? We do not 
 propose to discuss the question further than 
 it relates to conserving the public peace and 
 the subject of commitment, and release on 
 habeas corpus after arrest, without inquiring 
 into the general subject of jurisdiction, this 
 not being deemed of controlling influence in 
 the present inquiry. 
 
 It will be remembered that from the time 
 Texas first threw off the Mexican yoke and 
 organized civil government under Anglo- 
 American Ideas and auspices, a part of the 
 machinery of government was the organiza- 
 tion of counties, and placing at the head of 
 the judicial autliority of each county a ju- 
 dicial officer. It was provided in the con- 
 stitution of the republic of Texas that "the 
 republic shall be divided into convenient 
 counties," and "there shall be in each coun- 
 ty a county court." Const. Kep. art. 4, §§ 
 10, 11. And by act of December 20, 1830, the 
 office of chief justice was created, and it was 
 declared that the county courts should con- 
 sist of one chief justice. Pasch. Dig. note 
 454. 
 
 Starting from this standpoint, we find, by 
 noticing the several provisions of the several 
 constitutions and legislative enactments, that 
 from that early day, through the various 
 changes, down to the present time, there has 
 ever been, as a part of the judiciary, the dis- 
 tinct feature of a county court, presided over 
 by a magistrate, and which feature has been 
 maintained notwithstanding that the scope 
 and extent of the jurisdiction has not in many 
 respects been uniform, nor the presiding of- 
 ficer called by the same name; and whether 
 the officer has been called by one name or 
 by another, the court has been the same, and 
 has maintained characteristics peculiarly its 
 own. We will also constantly see that when 
 the appellation of "county judge," "chief jus- 
 tice," or of "presiding Justice" is used, it in- 
 variably applies to the presiding officer of 
 
 the county court; and hence we find, fur- 
 ther, that when the legislature, in enacting a 
 statute, refers to the presiding officer of the 
 county court, the appellation in use at th& 
 time is the one employed in speaking of him. 
 Now, when our Codes were enacted, where- 
 reference is made to this official, the appella- 
 tion of "chief justice" is usually employed, 
 because tliat was the name by which he was 
 at the time known; not to indicate any par- 
 ticular functions, for these are otherwise pre- 
 scribed, but simply the presiding officer, the 
 chief of the county court. Bearing these 
 things in mind, we need not be misled by the 
 terms employed by the Code when speaking 
 of this official in connection with officers, 
 peace officers, magistrat(^s, and examining 
 courts, and their authority over the subjects 
 of crime, bail, and the like, and by which ef- 
 fect can be given to the various provisions 
 on these subjects, in harmony with the mani- 
 fest intention of the legislatur'e and with es- 
 tablished rules of applying such legislative 
 enactments. 
 
 Some of the provisions of the Code of Crimi- 
 nal Procedure will be noticed : 
 
 "Art. 2.'i. The provisions of this Code shall 
 be liberally construed, so as to attain the ob- 
 jects intended by the legislature, — the prose- 
 cution, suppression, and punishment of 
 crime." 
 
 "Art. 32. It is the duty of every officer 
 known to this Code as a 'magistrate' to pre- 
 serve the peace within his jurisdiction, by the 
 use of all lawful means; to issue all process 
 intended to aid in preventing and suppressing 
 crime; to cause the arrest of offenders by 
 the use of lawful means, in order that they 
 may be brought to punishment. 
 
 "Art. 33. A chief justice of a county who, 
 when legally applied to, refuses to issue pro- 
 cess, or wlio knowingly and corruptly refuses 
 to discharge a duty imposed upon him by the 
 provisions of this Code, is guilty of an of- 
 fence for which he is subject to removal, up- 
 on trial and conviction." 
 
 "Art. 52. Either of the following officers 
 is a 'magistrate' within the meaning of this 
 Code: The judges of the supreme court, the 
 judges of the district courts, the chief jus- 
 tice of the county," etc. 
 
 "Art. 55. When a magistrate sits for the 
 purpose of inquiring into a criminal accusa- 
 tion against any person, this is called an 'ex- 
 amining court.' " 
 
 "Art. 248. Upon examination of a person 
 accused of a capital offence, no magistrate, 
 other than a judge of the supreme or district 
 court, or chief justice of a county, shall have 
 power to discharge the defendant," etc. 
 
 "Art. 249. WHen it is made to appear, by 
 complaint on oath, to a judge of the supreme 
 or district court, or chief justice of a county, 
 that the bail taken in any case is insufficient 
 in amount, such judge or chief justice shall 
 issue a warrant of arrest, and require of the 
 defendant additional security, according to 
 the nature of the case." 
 
 15T 
 
Case No. 56] 
 
 RELEVANCY. 
 
 Many other articles might be cited where 
 the term "magistrate" Is used, "svhen the 
 term would apply as well to the chief ju- 
 dicial county officer as to a judge of the dis- 
 trict court; but these will be sufficient, not 
 only to show the importance of this magis- 
 trate in a proper enforcement of the provi- 
 sions of the Code, but also the trouble and 
 confusion which would ensue by any other 
 interpretation of these several articles of the 
 Code than the one here intimated, and would 
 render nugatory many of the provisions of 
 the Code, so far as any county officer is con- 
 cerned. 
 
 In support of this application of the term 
 "chief justice," and strengthening our con- 
 clusions that the appellation was intended to 
 apply to the chief judicial officer of the coun- 
 ty, we find, on an examination of the Revised 
 Code adopted at the recent session of the leg- 
 islature, that the term "county judge" is in- 
 serted in the revision wherever the term 
 "chief justice" is employed in the original in 
 cori'esponding articles. So that, when the 
 Revised Code goes into effect, the confusion 
 will disappear, until some future legislature 
 shall change the name of the county judge 
 to some thing else by unguarded enactment. 
 It is further worthy of note that, so far as 
 the articles of the Code which relate to the 
 prevention and suppression of crime are con- 
 cerned, and the definition of the terms "mag- 
 istrate" and "peace officer," we liuow of no 
 material changes until the revision mention- 
 ed, which has not as yet gone into effect. 
 
 Our conclusions, therefore, are that, in so 
 far as the provisions of the Code of Criminal 
 Procedure relating to the subjects above set 
 out are concerned, and which speak of the 
 principal county judicial officer as chief jus- 
 tice, they are intended to apply to the judge 
 who by law presides over the county court, 
 and that it is altogether unimportant what 
 particular name or appellation may be given 
 him; and that, under the provisions of the 
 Code, that county official, whether called 
 "county judge," "chief justice," or "presiding 
 judge" or "Justice," or by whatever name he 
 may be called, to distinguish him from other 
 magistrates, was and is authorized and em- 
 powered to hold an examining court. 
 
 In the present case we are of opinion that 
 the county judge had authority to inquire 
 into the accusation against the appellant, and 
 to either swear the witnesses himself or cause 
 it to be done by the clerk or deputy clerk, 
 and cause the same to be taken down in writ- 
 ing, and subscribed and sworn to by the wit- 
 ness Dean; and that, so far as the question 
 of jurisdiction is concerned, the court did 
 not err In admitting the testimony. 
 
 The next important inquiry Is, was it com- 
 petent for the state to prove, imder the cir- 
 cumstances disclosed by the record, what the 
 witness Dean had testified to before the ex- 
 amining court? 
 
 The constitution (article 1, § 10, Bill of 
 Riglits) declares that "in aU criminal prose- 
 
 l.jS 
 
 cutions" the accused "shall be confronted 
 with the witness against him." The Code of 
 Criminal Procedure (article 24) provides that 
 "the defendant upon a trial shall be confront- 
 ed with the witnesses, except in certain cases, 
 provided for in this Code, when depositions 
 have been taken." In treating of constitu- 
 tional provisions similar to the one above set 
 out, and found in all the constitutions of the 
 several states and in that of the United States, 
 Mr. Cooley lays down as the correct rule, de- 
 ducible from the authorities, and which we 
 adopt as correct, the following: 
 
 "The testimony for the people in criminal 
 cases can only, as a general rule, be given 
 by witnesses who are present in court. The 
 defendant is entitled to be confronted with 
 the witnesses against him; and if any of 
 them be absent from the commonwealth, so 
 that their attendance cannot be compelled, 
 or if they be dead, or have become incapac- 
 itated to give evidence, there is no mode by 
 which their statements against the prisoner 
 can be used for his conviction. The excep- 
 tions to this rule are of cases which are ex- 
 cluded from its reasons by their peculiar 
 circumstances; but they are far from nu- 
 merous. If the witness was sworn before 
 an examining magistrate, or before a coro- 
 ner, and the accused had an opportunity 
 then to examine him; or if there were a 
 formal trial, on which he was sworn. It 
 seems allowable to make use of his deposi- 
 tion, or of the minutes of his examination, 
 if the witness has since deceased, or is in- 
 sane, or sick and unable to testify, or has 
 been summoned, but appears to have been 
 kept away by the opposite party." Cooley, 
 Const. Lim. pp. 363, 364. 
 
 Agreeably to Mr. Greenleaf, "upon the 
 question whether this kind of evidence is 
 admissible in any other contingency except 
 the death of the witness, there is some dis- 
 crepancy among American authorities." 1 
 Greenl. Bv. § 163, note. The rule in the text 
 appears to be that: "When the testimony was 
 given under oath, in a judicial proceeding in 
 which the adverse litigant was a party, and 
 where he had the power to cross-examine, 
 and was legally called upon so to do, the 
 great and ordinary test of truth being no 
 longer wanting, the testimoiif so given is ad- 
 mitted, after the decease of the witness, in 
 any suit between the same parties. It is 
 also received if the witness, though not dead, 
 Js out of the jurisdiction, or cannot be found 
 lafter diligent search, or is insane, or sick 
 land unable to testify, or has been summoned, 
 but appears to have been kept away by the 
 adverse party. But testimony thus ofCered is 
 open to all the objections which might be 
 taken if the witness were personally pres- 
 ent." 
 
 There has also been controversy as to 
 whether these rules apply to other than civil 
 causes, and the position that they do not 
 apply to criminal cases has been strenuously 
 and ably maintained; but it seems now to 
 
EVIDENCE GIVEN IX FORMER PROCEEDINGS. [Case No. 56 
 
 be settled that these rules apply to civil 
 and criminal cases alike, so far as reprodu-/ 
 cing the testimony of a deceased witness is 
 concerned. Wliart. Cr. Law, § 067, note c, 
 and authorities there cited. "The testimony 
 of a deceased witness given at a former trial 
 or examination may be pro'v.jd at a subse- 
 quent trial by a person who lieard him tes- 
 tify." Id. § 067. To this extent the question 
 is not an open one in this court. In Blaeli 
 V. .State, 1 Tex. A pp. 368, it was held that, 
 lit a second or subsequent trial of a criminal 
 charge, it is competent for the prosecution 
 to put in evidence testimony given at a pre- 
 vious trial by a witness who has since died; 
 and such testimony may be proved by a wit- 
 ness who heard it given in, and who can 
 qualify himself to state the substance of it. 
 In Johnson v. State, 1 Tex. App. 333, it was, 
 iifter mature consideration, held that the 
 rules and practice of the common law have 
 been substantially adopted by our Code in 
 respect to admitting as evidence for the pros- 
 ecution the deposition of a deceased witness, 
 duly talsen on a former trial of the accused 
 by a court or an examining magistrate, and 
 that the act of 1866 (Pasch. Dig. art. 6605), 
 which expressly secures to the accused the 
 right to use such evidence, does not abrogate 
 or impair that of the state to use such tes- 
 timony. 
 
 But the question here is, not as to the 
 right to reproduce the testimony of a de- 
 ceased witness taien at a former trial, but 
 the right here claimed and exercised by the 
 state is to prove the former testimony of 
 a living witness; or, at least, one who is not 
 shown or claimed to be dead, but who, it is 
 claimed, is not within the jurisdiction of the 
 court or its process. It is not perceived that 
 the reason of the rule which admits proof 
 of what a deceased witness had on some 
 former occasion, between the same parties, 
 on an examination into the same criminal 
 charge, on a former trial, testified to, as ad- 
 missible on a subsequent trial of the same 
 case, does not apply with equal force to one 
 who, though not dead, is beyond the reach of 
 the process of the court. The testimony of 
 the deceased witness is admitted on the idea 
 that the deceased had been confronted with 
 the witness on the former trial,— had met him 
 face to face,— and that the witness had tes- 
 tified before a competent tribunal, under the 
 sanction of an oath, and an opportunity af- 
 forded for cross-examination. 
 
 The inaccessible witness has been subject- 
 ed to the same ordeal, the only difference be- 
 ing that the one is dead and the other out 
 of reach. Each has confronted the accused, 
 testified under the sanction of an oath, duly 
 administered; and as to each, an opportunity 
 for cross-examination has been afforded. Ac- 
 cording to Mr. Bishop, the principle on which 
 these depositions are — under statutes lilie 
 those which prevailed in England down to 
 a recent period— admissible is that, being 
 regularly taken under provision of law, the 
 
 common law accepts them when it is impos- 
 sible the personal presence of the witni^ss 
 can be had. 1 Bish. Cr. Proc. § 1090. It is, 
 however, plain, in matter of judicial rea- 
 son, that this right to introduce the deposi- 
 tion grows out of the great doctrine of ne- 
 cessity. * * * And in practice it was nev- 
 er known that the sort of depositions thus 
 mentioned were received when the living 
 presence of the witness could be had. Id. 
 §§ 1098. 1099. 
 
 The principle applies, not only to these 
 formal depositions, but likewise to evidence 
 of what a witness testified orally at a pre- 
 vious trial. It, moreover, prevails not only in 
 civil causes, but in criminal; and, in gen- 
 eral, in the United States as well as in Eng- 
 land. There are with us, perhaps, some ju- 
 dicial localities in which this doctrine is not 
 received. * * * But the admission of the 
 evidence is limited, or nearly so, to the case 
 in which the witness is deceased; and in 
 this case it is the general American doctrine 
 to receive equally the depositions taken as 
 before mentioned, and evidence of the for- 
 mer, or oral, testimony. If the witness is 
 absent by the procurement of the defend- 
 ant, it is, perhaps, the American doctrine, 
 the same as it is the English, that the dep- 
 osition, or evidence of his former testimony, 
 may be received against him. But when the 
 witness is without this element, merely in 
 another state, or otherwise beyond the pow- 
 er of the court, this is not sufficient. 1 Bish. 
 Cr. Proc. § 1098. 
 
 These and similar rules— deduced, as they 
 are, from adjudications in other states and 
 countries — are of necessity based upon, and 
 influenced more or less by, statutory regula- 
 tions, and liable to be modified and control- 
 led thereby, and with us must be held in 
 subordination to whatever local statute, if 
 any, we have on the subject. Here we have 
 a statute which provides that "the rules of 
 evidence known to the common law of Eng- 
 land, both in civil and criminal cases, shall 
 govern in the trial of criminal actions in this 
 state, except when they are in conflict with 
 the provisions of this Code or some stat- 
 ute of this state." Code Cr. Proc. art 638. 
 "The rules of evidence prescribed by the 
 statute law of this state in civil suits shall, 
 so far as applicable, govern also in criminal 
 actions, when not in conflict with the pro- 
 visions of this Code or of the Penal Code." 
 Id. art. 639. "In proceedings before an ex- 
 amining court, the testimony of all the wit- 
 nesses shall be reduced to writing, signed 
 by them with their names or marks, and all 
 the testimony thus taken shall be certified to 
 by the magistrate." Id. art. 238. "The ex- 
 amination of witnesses shall be In the pres- 
 ence of the accused." Id. art. 240. "Should 
 no counsel appear either for the state or 
 the defendant, the magistrate may examine 
 the witnesses, and the accused has the same 
 right." Id. art. 247. 
 
 "In all criminal prosecutions, when the tes- 
 
 159 
 
Case No. 55] 
 
 KELEVANCY. 
 
 timoiiy of a witness La's been reduced to 
 writing, signed, and sworn to before an ex- 
 amining magistrate, or before any court, and 
 tbe witness has died since giving his testi- 
 mony, the testimony so taken and reduced 
 to writing may be read in evidence by such 
 defendant, as proof of the facts therein stat- 
 ed, upon any subsequent trial for the same 
 offence: provided, however, that in all other 
 respects the testimony of such deceased wit- 
 ness shall be subject to the established rules 
 of evidence in criminal cases. In every case, 
 the death of the witness must be established 
 to the satisfaction of the court." Pasch. 
 Dig. art. 6605. Whilst this seems to be a 
 privilege granted to the accused, yet, as we 
 have seen in Johnson v. State, 1 Tex. App. 
 333, by the rules of practice the prosecution 
 virtually has the same privilege. And whilst 
 the provisions of this article, as well as the 
 ruling in .Johnson's Case, have reference to 
 the testimony of a deceased witness, as we 
 have already seen, the reason for the rule 
 applies as well to a witness whose personal 
 presence cannot be had, and that the testi- 
 mony of a witness who had been spirited 
 away after having testified ought to be re- 
 ceived. 
 
 Yet, inasmuch as this species of testimony 
 is admitted as a sort of judicial necessity, 
 the proof of the facts which constitute the 
 necessity for the departure from general 
 rules ought to be clearly established before 
 the testimony is admitted; as that the wit- 
 ness is dead, that diligent inquiry has been 
 made for him where it is most likely he 
 would be found, or that the defendant had 
 caused his absence. The proof on this sub- 
 ject should be complete and satisfactory, as 
 the question of the sufBciency of this proof 
 would necessarily be confided largely to the 
 discretion of the judge, and not be revisable 
 on appeal when properly exercised. 
 
 On the whole, we are of opinion the au- 
 thorities warrant the following conclusions: 
 /First. That a county judge is a magistrate 
 authorized to hold an examining court. Sec- 
 1 ond. That when a witness has testified be- 
 Ifore an examining court on the investiga- 
 tion of a criminal charge against any person, 
 the testimony taken before such examining 
 court, in the manner prescribed by law, may 
 be used as testimony on the trial, upon satis- 
 factory proof being first made that the wit- 
 ness whose testimony is offered has either 
 died since testifying, or been prevented from 
 I attending by the opposite party, or that he 
 I cannot, after diligent inquiry, be found, or 
 his whereabouts ascertained; and that the 
 testimony so taken and reduced to writing 
 before an examining magistrate may be used 
 either by the prosecution or by the accused. 
 Third. That when a witness has testified on 
 a former trial of the case, it is competent for 
 either party to prove what the witness, if he 
 has since died, testified on the former trial. 
 And, fourth, that, in either case the bare 
 fact that the witness was out of the state at 
 
 160 
 
 the time of the second trial would not, of it- 
 ■self, be sufficient ground for admitting proof 
 lof his former testimony in a criminal prose- 
 cution, unless admitted by consent. 
 
 Applying these rules to the case at bar, wfr 
 are of opinion the prosecution had a right to- 
 read as evidence on the trial the testimony 
 of the witness Dean, given in the examining 
 court before the county judge, and that the 
 better evidence as to what he testified would 
 have been the production of the written tes- 
 timony so taken; and on this account we see 
 no error, as it appears that the witness Tit- 
 combe read from the written statement of 
 the witness Dean, taken on the preliminary 
 examinUtion before the county judge. 
 
 Yet we are of opinion that the absence of 
 flthe witness Dean was not sufficiently ac- 
 jlpounted for at the trial to allow the intro- 
 duction of his testimony taken before the 
 examining court. The evidence upon which 
 Dean's testimony was admitted was that of 
 the witness Smeed, hereinbefore, set out, 
 which need not be repeated, and which is 
 mentioned in the second bill of exceptions 
 taken to the admission of Smeed's testimony. 
 To our mind, the tangible defect in this tes- 
 timony is the want of any showing of prop- 
 er effort to ascertain the fact as to whether 
 the witness Dean could be produced on the 
 trial, or not; whereas it should have been 
 shown that it was not in the power of the 
 state to produce the witness in person, be- 
 fore admitting his former testimony. One 
 main ground of the statement of the wit- 
 ness Smeed appears to have been based part- 
 ly upon a letter, which was not even pro- 
 duced on the trial. We are of opinion the 
 showing, taken as a whole, did not show ei- 
 ther that any projDer effort had been made to 
 learn the whereabouts of the witness Dean, 
 or to show the inability of the prosecution to 
 produce him in person on the trial. This 
 was a matter of great moment to the accus- 
 ed. He did not stand by in silence and per- 
 mit the error to be committed without objec- 
 tion; on the contrary, he objected to the pro- 
 ceeding at the time, and also followed it up 
 by bill of exceptions, and in his motion for 
 a new trial, and in his assignment of errors, 
 substantially; and for this error, which is 
 the turning-point in the case, the judgment 
 must be reversed. 
 
 It is shown by bill of exceptions that the 
 defendant offered to prove by a witness 
 (Parker) that the witness Dean was passing 
 under an assumed name. There was no er- 
 ror in excluding this testimony; it was but 
 hearsay. 
 1 We are of opinion the objections to the 
 ! charge of the court are not well taken. In 
 ; the main, the charge correctly informed the 
 1 jury on the law of the case as made by the 
 ; evidence, and there was no important omis- 
 I sion. Whether this would be a proper 
 j charge on another trial or not depends upon 
 \ the case and the testimony as the same shall 
 be developed. If the charge should need 
 
EVIDENCE GIVEN IN FORMER PROCEEDINGS. [Case No. 56 
 
 modification or enlargement, tliese will read- 
 ily suggest themselves wlaen the occasion 
 arises. There is nothing further suggested 
 by the record requiring any special ruling. 
 
 WILQUS.EV.— 11 
 
 For the single error above set out, the 
 judgment must be reversed, and the cause re- 
 manded. 
 
 Reversed and remanded. 
 
 161 
 
Case No. 57] 
 
 RELEVANCY. 
 
 STATE V. REED. 
 (37 Pac. 174, 53 Kan. 767.) 
 Supreme Court of Kansas. July 6, 1894. 
 Appeal from district court, Cowley county; 
 A. M. Jackson, Judge. 
 
 Isaac G. Reed was convicted of murder in 
 the second degree, and appeals. Reversed. 
 
 Chas. E. Elliott, C. J. Peckbam, and Isaac 
 Reed, for appellant. John T. Little, Atty. 
 Gen., C. J. Garver, and W. W. Schwiun, for 
 the State. 
 
 JOHNSTON, J. Isaac G. Reed was char- 
 ged in an information filed in the district 
 court of Sumner county with shooting and 
 killing Isaac Hopper, in Sumner county, in 
 such a manner and with such an intent as 
 to constitute murder in the first degree. The 
 information was filed on August 31, 1892, 
 and on October 10, 1892, upon application 
 of the defendant, a change of venue was 
 granted, and the cause transferred to the 
 district court of Cowley county for trial. 
 The trial was begun in the latter court on 
 January 10, 1893, and, after the impaneling 
 of the jtuy. the production of the evidence 
 for the state and for the defendant, the 
 charging of the .iury, after the opening argu- 
 ment in behalf of the state and the argument 
 in favor of the defendant, and before the 
 closing argument for the state had been 
 completed, on January 20th, one of the jur- 
 ors became sick, and was unable to attend 
 at the trial. The cause was continued from 
 time to time for five days, and on January 
 26th, after an examination, and without the 
 consent of the defendant, the court deter- 
 mined that it was impossible for that jury 
 to conclude the trial, and thereupon it dis- 
 charged the jiu-y. At the next term of the 
 court the plea of former jeopardy was inter- 
 posed, and attached to it was the evidence 
 taken by the court when the first jury was 
 discharged; but the court sustained a de- 
 murrer, and ruled that, the discharge of the 
 jury having been made necessary by the sick- 
 ness of a juror, it did not operate as a bar 
 to a further tiial. The trial then proceeded, 
 and the defendant was convicted of murder 
 in the second degree, from which conviction 
 he appeals to this court, alleging numerous 
 grounds of error. We will only notice those 
 which seem to be material or require atten- 
 tion at this time. 
 
 The first contention is that the discharge 
 of the jury first impaneled is equivalent to a 
 verdict of acquittal. It is true that the 
 jeopardy of the defendant began when the 
 jury were impaneled and sworn and the re- 
 ception of evidence was commenced; and it 
 is also true that the discharge of the jury 
 without the consent of the defendant, and 
 without sufficient reason, will ordinarily bar 
 a further trial. The statute prescribes the 
 grounds which will warrant the court in 
 discharging a jury before the completion of 
 a trial. It reads as follows: "The jui-y 
 
 162 
 
 may be discharged by the court on account 
 of the sickness of a juror, or other accident 
 or calamity requiring their discharge, or by 
 consent of both parties, or after they have 
 been kept together until it satisfactorily ap- 
 pears that there is no probability of their 
 agi-eeing." Civ. Code, § 281; Cr. Code, § 208. 
 In this case the sickness of a juror was the 
 cause for discharge, and whether that sick- 
 ness was of such a character as to make a 
 discharge absolutely necessary was the sub- 
 ject of Inquiry and decision by the com;t. A 
 court cannot arbitrarily determine such a 
 question, but the incapacity of the juror, 
 and the necessity for discharge, are to be 
 heard and determined by judicial methods. 
 State V. Smith, 44 Kan. 75, 24 Pac. 84. That 
 course was pursued in the present case, and 
 the finding made by the court that such a 
 necessity existed was based on the testimony 
 of a physician and other evidence, some of 
 which is not preserved. In the absence of that 
 evidence, we cannot say that there was not 
 good cause for the discharge. From what 
 appears, we think that the court did not act 
 capriciously, nor without a due regard for the 
 rights of the defendant. After the illness of 
 the jui'or was reported, the court postponed 
 the trial from day to day in the expectation 
 that the juror would recover sufficiently to 
 complete the trial. Several Inquiries were 
 made as to his condition, and the prospect 
 of recovery. At the end of five days he was 
 still seriously sick, and his recovery was a 
 matter of great uncertainty. It is said that 
 the near approach of the end of the term 
 influenced the court to some extent in reach- 
 ing the conclusion which it did. Of itself, 
 this might not be sufficient to justify a dis- 
 charge, but, as the real inquiiy was whether 
 the sickness of the juror required the jtu-y 
 to be discharged, the finding of the com't 
 made upon this inquiry is necessarily binding 
 upon us. As the testimony taken at the 
 time of the discharge was made a part of the 
 plea, and a demurrer thereto sustained, the 
 question raised upon the reply to the plea 
 is not deemed material. ♦ 
 
 Upon leave of the court, obtained without 
 notice to the defendant, the state was per- 
 mitted, at the time of the trial, to indorse 
 upon the information the names of eight 
 witnesses who gave material testimony in the 
 case. This indorsement was made just be- 
 fore the trial, on April 5th, and it is contend- 
 ed that, as the testimony given by these 
 witnesses was important, the action of the 
 com't in permitting the indorsement was an 
 abuse of discretion, which resulted in prej- 
 udicing the rights of the defendant. It ap- 
 pears that on the 3d day of February a mo- 
 tion was made to indorse the names of the 
 new witnesses, which motion was sustained 
 by the court. A f terwards the names of these 
 witnesses so indorsed were stricken from the 
 information, and it was said that it was 
 done upon the gi-ound that the order for in- 
 dorsing the names of witnesses was made in 
 
DYING DECLARATIONS. 
 
 [Case No. 57 
 
 the absence of the defendant. It thus ap- 
 pears that the attention of the defendant 
 and his attorneys was called to these wit- 
 nesses; and, fui'ther, that inquiry had been 
 made of them as to what their testimony 
 would be. Under the circumstances it can- 
 not be said that the court exercised its discre- 
 tion without due regard for the rights of the 
 defendant, or that he was prejudiced by the 
 ruling. 
 
 Three jurors were challenged on the 
 ground that they did not possess the requi- 
 site qualifications of jurors. The objection 
 urged is that their names did not appear on 
 the tax rolls of the county, and hence that 
 they should have been excluded from the 
 panel upon the objection of the defendant. 
 The showing made upon this point is not 
 satisfactory. While it appeared that these 
 jurors did not pay any personal taxes for 
 the preceding year, it was not shown that 
 they did not pay taxes on real estate, nor 
 that their names did not appear on the as- 
 sessment rolls of their respective townships. 
 It appears that two of them were listed for 
 personal taxes, but that the value of the 
 personal property which each had for taxa- 
 tion did not equal the exemiition allowed to 
 him; and, in the case of the third, he stated 
 that he had made a return for a stock com- 
 pany as its manager and agent, but that he 
 had not been assessed for personal taxes. 
 Whether he was upon the tax roll is uut 
 shown. No inquiry was made as to whether 
 they had real estate listed in their names in 
 the respective townships in which they lived, 
 and nothing to -show that they did not pay 
 taxes on real estate for the preceding year. 
 The statute provides for listing both person- 
 al and real estate in the name of the owner. 
 Gen. St. 1889, pars. 6889, 6911. It is further 
 provided that in mailing a list of persons to 
 serve as jurors the jury commissioners shall 
 select from those assessed on the assessment 
 rolls of the several townsihips and cities of 
 the preceding yeai-. Id. pars. 3567, 3601. 
 The evident purpose is to obtain the service 
 of jurors who are substantial citizens and 
 the owners of property, and the assessment 
 rolls referred to in the jury law are evident- 
 ly those made in the listing of both real 
 and personal property. As it does not appear 
 that they were not upon the personal prop- 
 erty assessment rolls, nor that they did not 
 own and pay taxes on real estate, this ob- 
 jection must be overruled. State ex rel. 
 Kellogg V. Commissioners, 44 Kan. 528, 24 
 Pac. 955. Other objections were made with 
 reference to the jury, but an examination 
 discloses that they are not material. 
 
 The next complaint relates to the ruling of 
 the court in admitting what was received as 
 the dying declaration of the deceased. Hop- 
 yier was shot by Keed about 5 o'clock on the 
 evening of May 21, 1892, and soon after- 
 wards was carried to his home, where an ex- 
 amination of his wound was made by phy- 
 sicians and surgeons, who informed him that 
 
 his injury was fatal, arid admonished him 
 that, if he had any business matters which 
 required attention, he should attend to 
 them, as he could not live long. He repeat- 
 edly expressed the opinion that he was 
 about to die. A minister of the gospel was 
 called in. He requested a neighbor to act 
 as guardian for his children, gave informa- 
 tion about insurance on his life, and direct- 
 ed how it and his property should be ap- 
 plied. He suffered intense pain, and at times 
 cried out, "I am dying now." A stenogra- 
 pher was sent for, and a dying statement 
 as to the shooting, and the cause of it, was 
 taken down, which was afterwards intro- 
 duced in evidence. Some time after the 
 statement was given he rallied some, and 
 used language which indicated that he 
 was then not without hope of recovery; but 
 soon afterwards he expired. It is claimed 
 that under the circumstances the state- 
 ment should not have been received in evi- 
 dence. It is clear that the statement was 
 made in the belief of impending death, and 
 the fact that there was an interval of sev- 
 eral hours between the time the statement 
 was made and his death does not make it 
 inadmissible. Xor will the fact that at times 
 after the statement was made he entertained 
 or expressed a hope that he might get well 
 render his declarations incompetent. The 
 controlling question is whether the declara- 
 tions were uttered under a sense of impend- 
 ing dissolution; and the fact that death did 
 not immediately ensue, or that a hope of re- 
 covery was subsequently entertained, will 
 not affect their admissibility. 6 Am. & Eng. 
 Enc. Law, 117. 
 
 The admission of testimony showing the 
 relations existing between the defendant 
 and the wife of the deceased, and which 
 tended to show a criminal intimacy between 
 them, is assigned as error. The defendant 
 admits that proof of a criminal intimacy 
 between the defendant and the wife of the 
 deceased is admissible to show the existence 
 of a motive for the killing, at least in cases 
 where the killing has to be established by 
 circumstantial evidence; and he insists that, 
 as the killing was admitted, the motive of 
 the defendant could be shown in a general 
 way, but that a detailed inquiry would cre- 
 ate new issues, and tend to divert the minds 
 of the jury from the consideration of the 
 principal issue; the theory of the prosecution 
 being that the homicide was comm'.tted by 
 the defendant because of the passion which 
 he entertained for the wife of the deceased, 
 of which the deceased had knowledge, and 
 that, as he stood in the way of defendant 
 carrying out his desires and purposes, testi- 
 mony of the relations which existed between 
 Uiem was competent upon the quesLion of 
 motive. Counsel for the state say that it has 
 been "universally conceded, since David 
 wrote to Joab, 'Set ye Uriah in the forefront 
 of the hottest battle, and retire ye from him, 
 that he may be smitten and die,' that the 
 
 163 
 
Case No. 57] 
 
 llELEVANCY. 
 
 man who coveted his neighbor's wife had a 
 motive for desiring the death of hisneighbor." 
 The evidence is not only competent as tending 
 to show the motive which induced the crime, 
 but it is important also in determining the 
 degree or grade of the crime that has been 
 committed. As a general rule, testimony 
 tending to show the commission of another 
 offense is not admissible, but, where such 
 offense is intimately connected with the one 
 charged, important proof to establish the lat- 
 ter cannot be excluded because it may tend 
 to prove that the defendant is guilty of an- 
 other offense. State v. Folwell, 14 Kan. 105. 
 There may be some cause for complaint at 
 the very extended inquiry that was made as 
 to the relations between the defendant and 
 Mrs. Hopper. A detailed inquiry was made, 
 and a large volume of testimony was taken. 
 It may be said, however, that this was due 
 to a large extent to the fact that an undue 
 intimacy between these parties was denied 
 by the defendant. The testimony of the illic- 
 it relation, however, if it existed, was re- 
 ceivable in evidence as tending to show the 
 motive of the defendant In liilling the de 
 ceased. Johnson v. State (Fla.) 4 South. 535; 
 Pierson v. People, 79 N. Y. 424; Com. v. 
 Merriam, 14 Picli. 518; State v. Lawlor, 28 
 Minn. 216, 9 N. W. 698; State v. Hinlile, 6 
 Iowa, 380; 9 Am. & Eng. Enc. Law, 714; 15 
 Am. & Eng. Enc. Law, 936. 
 
 A more serious objection is made to in- 
 terviews and conversations held with the 
 deceased some time prior to the shooting, 
 (When the defendant was not present, and 
 f which he had no knowledge. A witness 
 was permitted to detail at length a meeting 
 between himself and Hopper on the day be- 
 fore the shooting; the taking of a long drive 
 with the deceased, during which he related 
 to the witness his troubles at Wellington, 
 and his plans for leaving that place and go- 
 ing to Missouri. He was allowed to testify 
 what the mood and manner of the deceased 
 were on that day, and to relate the reason 
 given by the deceased for leaving Welling- 
 ton. The reason stated was the interfer- 
 ence in his family, and the trouble made by 
 the defendant. Another witness, over objec- 
 tion, related that he had met the deceased 
 on the next day, and had a conversation with 
 him, in the absence of the defendant, in 
 which the deceased informed him, among 
 other things, that he had determined to 
 go to Missom'i, and the reason given was 
 "that if he could get his wife away from 
 where Judge Reed was, they could get along 
 all right together." The acts and conduct 
 of the deceased previous to the fatal en- 
 counter which formed a part of the res 
 gestae, or which tended to throw light upon 
 tlie question of motive or malice, might be 
 admitted in evidence; but the acts or con- 
 duct of the deceased which are not a part 
 of the res gestae, and which could not have 
 influenced the defendant in the commission 
 of the homicide, cannot be shown. The 
 
 164 
 
 manner and conduct of the deceased on the 
 day previous to the killing 'was not known 
 to the defendant, and was not connected 
 with the homicide, and therefore the de- 
 fendant could not be affected thereby. Any- 
 thing that would throw light on the homi- 
 cide, and everything that would operate on 
 the mind of the defendant, can be shown; 
 but evidence of the acts or manner of the 
 deceased which never came to the knowl- 
 edge of the defendant, could not be proved. 
 
 There was inti'oduced in evidence a paper, 
 identified by Mrs. Hopper, in which the de- 
 ceased declared that he believed his wife to 
 be a woman of honor, integi'ity, and high 
 moral character, and that any accusations 
 to the contrary were false. To meet the 
 introduction of this evidence by the defend- 
 ant the state was permitted to offer a wit- 
 ness who related an occurrence between him- 
 self and the deceased on May 1st, — the day 
 mpon which the other paper was executed, 
 |— in which the deceased presented to him a 
 (paper which he said was prepared by Mrsl 
 /Hopper. He then gives a conversation be- 
 tween the deceased and himself with ref- 
 erence to the paper and its contents. After 
 reading it over, the witness told the deceased 
 that he would be a fool to sign it; that the 
 paper was not prepared by Mrs. Hopper, 
 but was prepared for the purpose of getting 
 a divorce from him. A long conversation 
 ensued, in which it was intimated or would 
 bear the constmction that a ti'ap was being 
 laid by the defendant and the wife of the 
 deceased, so that, if trouble occurred, or a 
 divorce was asked for, the mouth of the de- 
 ceased would be closed; and much of the 
 contents of the paper was disclosed in the 
 conversation. This testimony was wholly in- 
 competent, and the objection of the defend- 
 ant should have been sustained, and the mo- 
 tion to strike It out should have been al- 
 lowed. If the testimony had been compe- 
 tent as an explanation of why the paper 
 signed by the deceased came to be executed 
 and delivered to his wife, it was still sec- 
 ondary evidence, and. If competent at all, 
 the letter itself should have been produced, 
 or its nonproduction accounted for. The pa- 
 per itself, howevei", if in existence, was not 
 competent proof, and the introduction of its 
 contents was prejudicial error. 
 
 There is just ground for the complaint 
 made by the defendant in permitting the 
 state to cross-examine the defendant in re- 
 gard to his early life. A great part of the 
 testimony In the case was devoted to the 
 question of whether the defendant sustained 
 adulterous relations with the wife of the 
 deceased, and on cross-examination he was 
 required to relate the marital relations be- 
 tween liim and his lirKt wife, having been 
 married in ]868; that he was divorced from 
 her in the spring of 1877; and to state the 
 grounds upon which the divorce was grant- 
 ed. The inquiry was pressed so far that he 
 was required to state that cruelty and adul- 
 
DYING BECLA.KATIOXS. 
 
 [Case No. 57 
 
 tery were cliarged against him, and an ef- 
 fort was made to sliow tliat his present wife 
 was the co-respondent in that divorce suit 
 with whom adultery was charged, and that 
 he was engaged to his present wife prior 
 to the granting of the divorce from his first 
 wife. Some of these direct questions were 
 not required to be answered, but the in- 
 quiry was pushed sufficiently far to leave 
 the inference with the juiy that the de- 
 fendant had been guilty of another adul- 
 teiy with a person other than the wife of 
 the deceased 15 years before the occurrence 
 ■of the homicide with which he was charged. 
 A full cross-examination should be allowed 
 upon anything connected with the homicide, 
 or which would affect the credibility of the 
 defendant as a witness; but it is not compe- 
 tent to prove previous acts of adultery , 
 which have no connection with the offense 
 cliarged; nor can evidence of improper con- 
 duct with other parties than those charged 
 in the information, which happened in hix 
 early life, be given in evidence to sustain 
 the present charge. We thinly there was an 
 abuse of discretion in this extended cross- 
 examination of the defendant. 
 
 Another ground of complaint is the in- 
 struction given by the court with ri'ference 
 to the effect of the dying declaration which 
 was admitted in evidence. The court char- 
 ged that: "Such declaration, when made in 
 the belief that death was imminent, and the 
 deceased had abandoned all hope of recov- 
 ery, is admissible; and in this case, if you 
 should find from the evidence that the de- 
 ceased made a declaration as to the encoun- 
 ter with defendant before his death, then 
 the court instructs you as a matter of law 
 that such declaration was made when the 
 deceased thought death was imminent, and 
 he had abandoned all hope of recoveiy." 
 The court further advised the jury that the 
 weight to be given to the declaration and 
 the credibility of the witness making it, 
 ought to be governed by the ordinary rules 
 of evidence, and to determine the weight 
 and credit to be given to the same tlie jury 
 can consider all the circumstances under 
 which the declaration was made. The ob- 
 jection is that the court withdrew from the 
 jury all considerations as to whether the 
 declaration was made when the deceased 
 thought death was Imminent, and after he 
 had abandoned all hope of recovery. The 
 court must decide, as a preliminary ques- 
 tion, whether the declaration was made un- 
 der a sense of impending dissolution, and 
 the admissibility of the same is exclusively 
 for the consideration of the court; "but, 
 after the evidence is admitted, its credibili-. 
 ty is entirely, within the province of the jury,\ 
 who, of course, are at Uberty to weigh all | 
 the circumstances under which the declara- 1 
 tions were made, including those already 
 proved to the judge, and to give the testi- 
 mony only such credit as, upon the whole. 
 
 they might think it deserves." 1 Greenl. Ev. 
 § ICO. While the court instructed the jury 
 that they might take into consideration the 
 circumstances under which the declaration 
 was made, in another part of the charge 
 the question of whether the deceased made 
 the statement under the apprehension of 
 speedy death was, in effect, excluded from 
 their consideration. In passing upon the 
 credibility of the statement the jury are en- 
 titled to consider whether, as a matter of 
 fact, the deceased had lost all hope of re- 
 covery, and the instruction should have been 
 modified in accordance wi^h this view. 
 Starkey v. People, 17 111. 17; North v. I'eo- 
 pie, 139 111. 102, 28 N. E. 966; State v. Cam- 
 eron, 2 Pin. 490; Varnedoe v. State, 75 Ga. 
 181; State v. Banister (S. C.) 14 S. E. 678; 
 Lambeth v. State, 23 Miss. 3.55; Nelms v. 
 State, 13 Smedes & M. 506; People v. Green, 
 1 Parker, Cr. R. 11; Walker v. State, 37 
 Tex. 366; Jones v. State, 71 Ind. 66; State 
 V. Nash, 7 Iowa, 347, 384. 
 
 Another complaint is with reference to an 
 instruction given upon the subject of self- 
 defense, in which the court told the jury 
 that, if one is unlawfully attacked by an- 
 other, he may stand his ground, and use 
 such force as reasonably appears necessary 
 to repel the attack and protect himself. 
 The criticism is that the instruction given 
 leaves the jury to infer that the appearances 
 were to be judged by them, and not by the 
 defendant. "A party assailed Is justified in 
 acting upon the facts as they appear to him, 
 and is not to be judged by the facts as they 
 are." . State v. Howard, 14 Kan. 175. While 
 the instruction is not as explicit as it should 
 have been, it is evident from other portions 
 of the charge that the court meant that he 
 might use such force "as at the time reason- 
 ably appeared to him to be necessary." Al- 
 though the instruction is defective, we would 
 hardly think that the error of itself was 
 sufficient to require a reversal. In any fu- 
 ture trial of the cause this omission can be 
 corrected. 
 
 There is a further complaint that the 
 court failed to . submit an Instruction upon 
 manslaughter in the second degree. As the 
 instruction comxjlained of related to a de- 
 gree of crime inferior to that of which the 
 defendant is convicted, this, objection be- 
 comes immaterial. State v. Dickson, 6 Kan. 
 209; State v. Potter, 15 Kan. 302; State v. 
 lUiea, 2.'5 Kan. 576; State v. Yarborough, 39 
 Kan. 588, 18 Pac. 474. Further than that, 
 liowever, we think the testimony was not 
 such as to justify the court in submitting 
 an instruction as to that grade of offense. 
 
 Other criticisms are made upon the charge 
 of the court, but in them we find no error, 
 nor anything which requires further com- 
 ment. For the errors referred to, the judg- 
 ment will be reversed, and the cause re- 
 manded for another trial. All the justices 
 concurring. 
 
 165 
 
Case No. 58] 
 
 RELEVANCY. 
 
 STATE T. KINDLE. 
 
 (24 N. E. 485, 47 Ohio St. 358.) 
 
 Supreme Court of Ohio. May 20, 1890. 
 
 At the Octdber terra, 1889, of the court 
 of (common pleas of Brown county, George 
 W. Kindle was tried upon an indictment 
 cliargins him with the murder of one 
 Thomas Butt. On the trial, to maintain 
 the issue on thepart of the state, the pros- 
 ecuting attorney offered in evidence a 
 written statement purporting to be sijrned 
 by Thomas Butt, purporting to contain 
 a dying declaration by him of the circum- 
 stances immediately attending the crime, 
 and relating to the identity of the per- 
 petrator. Before offering the paper, the 
 state called witnesses wlio testified to the 
 satisfaction of the court that the said 
 Butt, at the time the paper was written, 
 and when it was signed by him, was un- 
 der a sense of impending death, and had 
 no hope of recovery, and that the" paper 
 was read over to him before he sij;ned it. 
 The statement was then, against the ob- 
 jection and exception of the defendant, ad- 
 mitted in evidence, and read to the jury. 
 A verdict finding the defendant guilty of 
 manslaughter having been rendered, the 
 defendant tiled a motion for a new trial on 
 the ground, among others, that the court 
 erred in admitting in evidence the written 
 statement of Butt. On tliis ground alone 
 the court sustained the motion. To this 
 ruling the prosecuting attorney duly took 
 a bill of exceptions, which upon leave was 
 filed in this court "for its decision upon 
 the points presented. " 
 
 D. V. Pearson, Pros. Atty., for the Slate. 
 C. A. White and W. W. Young, contra. 
 
 SPEAR, J., (after stating the facts as 
 above.) The que.stion presented by the 
 bill of exceptions is, did the court err in 
 the admission as evidence of the written 
 statement purporting to be a dying decla- 
 ration? While some of the statements of 
 the bill respecting the preliminary proof 
 are not couched in the clearest and most 
 positive language, yet It is fairly to be un- 
 derstood that the testimony of the wit- 
 nesses satisfied the judge that the state- 
 ment was prepared by one of the witness- 
 es called, under the direction of the de- 
 ceased ; that it was by one of the wit- 
 nesses read over to him, and was actual- 
 ly sigrned by him ; and that at the time he 
 was under a sense of impending death, and 
 Jiad no hope of recovery. The paper itself 
 shows that it is a recital of the circum- 
 stances Immediately attending the assault 
 which resulted in Butt's death. It is not 
 questioned that the words used by the de- 
 fendant, or the substance of them, might 
 have been testified to orally by those who 
 heard them, if they were able to recall 
 them; but it is insisted by counsel that 
 to admit the written statement of the de- 
 ceased ii to make him a witness in the 
 case, and is a violation of thai clause of 
 theconstitution of theUnited States which 
 provides that every person on trial, charg- 
 ed wiih crime, shall have the right "to 
 be confronted with the witnesses against 
 him," and of the like clause in our own 
 166 
 
 constitution which provides that in any 
 such trial the party accused shall be al- 
 lowed "to meet the witnesses face to face." 
 It being conceded that what the deceased 
 said is the substantive matter to be given 
 to the jury, the only question is as to the 
 proper mode of communicating from the 
 declarant to the jury. 
 
 Dying declarations have been received 
 in evidence on the ground of necessity, 
 there often being no other evidence of the 
 facts attainable, and sometimes on the 
 further ground that the solemn circum- 
 stances surrounding the wounded person, 
 in view of impending death, will create an 
 obligation to utter the truth equal, In its 
 influence, to the obligation of an oath, 
 tliough it is difficult to see why, if the lat- 
 ter is a substantive ground, the declara- 
 tions should be limited to the facts im- 
 mediately connected with the killing. Mr. 
 lioscoe, in his worli on Criminal Evidence, 
 observes that the concurrence of both 
 these reasons led to the admission of this 
 species of evidence. Page 33. Such decla- 
 rations are in the nature of hearsay, and 
 their admission is an exception to the gen- 
 eral rule of evidence. It follows from this 
 that the person making them is not, but 
 the person by whom they are proven Is, 
 the witness. Hence the witness by whom 
 the accused has theright to beconfronted, 
 is the one called to lay the foundation for 
 proof of the declaration, and by whom 
 the making of the declaration is estab- 
 lished. The object is to give the accused 
 the opportunity to see and hear the wit- 
 ness, and for cross-examination. If these 
 objects are secured, the guaranty of the 
 constitution is maintained. Applying these 
 conclusions to the case at bar, how can it 
 be said that the accused was deprived of 
 any right? In order to intelligently pre- 
 pare the paper signed by the declarant, it 
 was necessary for the witness to first talk 
 with him, or at least hear his verbal state- 
 ment. Then, having reduced the state- 
 ment to writing, heread it to the declarant, 
 and it was then signed by him. All this 
 must have been shown by the witness be- 
 fore the court could have been satisfied of 
 the necessary facts preliminary to the ad- 
 mission of the paper. Being thus testified 
 to, the whole transaction, and every de 
 tail, was the subject of cross-examination. 
 The accused could inquire as to just what 
 the declarant actually said, just how much 
 care was talcen in writing out the state- 
 ment, how carefully and distinctly the pa- 
 per was read to the declarant, and, in 
 short, as to all that was said and done, 
 the order of it, and the manner of it. 
 Whether the accused availed himself of 
 this opportunity or not, the opportunity 
 was present. It is clear that in this case 
 the constitutional requirement was com- 
 plied with, and every constitutional right 
 was preserved to the accused. Where tbis 
 appears, the only iiuestion is, which is 
 the preferable evidence of the actual decla- 
 rations, — the memory of witnesses, and 
 their ability to reproduce the words used, 
 or the substance of them, or the paper, re- 
 duced to writing at the time, and signed 
 by the party making the statement? Or, 
 to present the exact question in this case, 
 
DYING DECLAEATIONS. 
 
 [Case No. 5» 
 
 Is there such preference to be given the 
 former method as to render the latter im- 
 proper? We think not. The common 
 judgment of mankind, formed upon ob- 
 servation and experience, is that the at- 
 tempt to repeat the language of others is 
 always attended with uncertainty. It is 
 in recognition of this fact tliat the custom 
 has obtained at trials for the judge to 
 caution the jaryin weighing and consider- 
 ing testimony of this kind. The witness 
 may not have fully understood the declar- 
 ant. He may not recollect accuratelj' the 
 words or their substance; or, having un- 
 derstood and remembering, he ma.y not 
 be able to fully and clearly express himself 
 in their reproduction. At least the writ- 
 ten statement, approved and signed by 
 the declarant, is not, ordinarily, open to 
 these objections. Nor can it be said that 
 the paper so prepared and verified has not 
 a legitimate tendenc,y to prove the facts 
 sought to be proven; that is, to show 
 ■what the dying man said. 
 
 But, If we had doubts as to this conclu- 
 sion, on principle, we would be impelled 
 to the same result upon authority. The 
 admissibility of dying declarations in cases 
 of homicide has been recognized by the 
 courts for more than a century, and the 
 question of the form in which such decla- 
 rations shall be given to the jury has oft- 
 en been under consideration. In King v. 
 Elv, tried before Chief Justice King at Old 
 Bailey, in 1720, (12 Vin. Abr. 118,) it was 
 held that, "in the case of murder, what the 
 deceased declared, after the wound given, 
 may be given in evidence; " and in Trow- 
 ter's Case, Id. 119, "the court would not 
 admit the declaration of the deceased, 
 which had been reduced into writing, to 
 be given in evidence without producing 
 the writing." To like elt'ect is Hex v. 
 "Woodcock, 1 Leach, 500, (decided in 1789.) 
 In Rex V, Gay, 7 Car. & P. 230, it was de- 
 clared that if a declaration in articulo 
 mortis be taken down in writing, and 
 signed by the party making it, the judge 
 will neither receive a copy of the paper in 
 evidence, nor will he receive parol evi- 
 dence of the " declaration ; " and Colekidgb, 
 J., refused to receive the parol evidence of- 
 fered. Under the head of " Form of Decla- 
 ration," Mr. Phillips, in his work on Evi- 
 dence, (volume 1, p. 240,) uses the follow- 
 ing language: " With regard to the man- 
 ner in which a dying declaration may be- 
 come the subject of legal evidence. It may 
 be observed that an examination taken on 
 oath by a magistrate, and signed by the 
 deceased and by the magistrate, has been 
 received in evidence as of thesame effect in 
 point of admissibility as declarations not 
 made with the same solemnit.y." And in a 
 note to page 241 occurs this: "Where the 
 statement of the deceased is taken down 
 in writing, it is of course more reliable, 
 more accurate, than the memory of most 
 men ; but it is of no higher grade than un- 
 written testimony." Prof. Greenleaf in 
 his work on Evidence (section 161) gives 
 the rule that, "if the statement of the de- 
 ceased was committed to writing, and 
 signed by him, at the time it was made, it 
 has been held essential that the writing 
 should bo produced, if existing." Mr. 
 Wharton, in his work on Criminal Evi- 
 
 dence, (section 295,) thus states the rule: 
 " If the declaration of the deceased, at the 
 time of his making it, be reduced into 
 writing, and then read and approved by 
 him as giving his deliberate view, the writ- 
 ten document becomes primary evidence. " 
 It was held by the supreme court of Iowa 
 in State v. Tweedy, 11 Iowa, 350, that 
 "when declarations in extremis are re- 
 duced to writing and signed by the person 
 making them, the writing, if in existence, 
 must be produced as evidence of such dec- 
 larations." The admissibility of compe- 
 tent declarations, so evidenced, has been 
 directly sustained in California, (People v. 
 Glenn, lOCal. 32;) in Texas, (Krebs v. State, 
 8 Tex., App. 1;) in Arkansas, (Collier v. 
 State, 20 Ark. 36 ;j in Mississippi, (Merrill 
 V. State, 58 Miss. 65;) in Alabama, (Kelly 
 V. State, 52 Ala. 361;) in South Carolina, 
 (State V. Ferguson, 2 Hill, 619;) in Ken- 
 tucky, (Mocliabee v. Com., 78 Ky. 380;) in 
 Indiana, (Binns v. State, 46 Ind. 311 ;) and 
 in Wisconsin, (State v. Martin, 30 Wis. 
 216.) And,inferentially, in Tennessee, (Ep- 
 person V. State, 5 Lea, 291;) and in Mas- 
 sachusetts, (Com. V. Haney. 127 Mass. 
 455.) That such written statements are 
 not admissible as depositions has been 
 several times held, as in the last-named 
 case, but, if there are any holdings against 
 their admissibility under the general head 
 of dying declarations, our attention has 
 not been called to them, nor have we 
 found such in an extended search of au- 
 thorities. At all events, there is, beyond 
 doubt, a marked agreement in favor of 
 their admissibility. 
 
 It is insisted that the written statement 
 was a deposition, and that, as there has 
 been no statutory provision, and under 
 our constitution could not lawfully be 
 such provision, for the taking of deposi- 
 tions for the state, the paper, on that 
 ground, was inadmissible. But is it a 
 deposition? In a certain general sense, 
 any written statement, signed by a per- 
 son, containing assertions of fact, may be 
 treated as his deposition, and the term has 
 been sometimes used in this sense by law- 
 writers and judges. In law, however, Its 
 accepted meaning is limited to the written 
 testimony of a witness reduced to writing 
 in due form, by virtue of a commission or 
 other authority of a competent tribunal, 
 upon notice, or according to the provis- 
 ions of some statute law. Besides, the 
 scope and subject-matter of a deposition 
 and a dying declaration may widely differ. 
 A paper competent to be received in evi- 
 dence as a deposition may be received in 
 any case in which it is taken, and may 
 contain statements as to any facts to 
 which the witness, if on the stand in court, 
 could have testified. A papei competent 
 to be received as a dying declaration is re- 
 ceivable only in a case where the death of 
 the deceased is the subject of the charge, 
 and is limited in its statements to declara- 
 tions respecting the immediate cause of the 
 death. Again, a deposition, duly taken, 
 proves Itself ; a paper containing a dying 
 declaration must be identified and estab- 
 lished by oral proof. This paper does not 
 purport to be a deposition. It was not 
 offered as a deposition. It has nowhere in 
 these proceedings been treated as a depo- 
 
 167 
 
Case No. 58] 
 
 RELEVANCY. 
 
 sition. We think it cannot be now regard- 
 ed as such. 
 
 Again, it Is urged againstthe admissibil- 
 ity of this statement that, "as our expe- 
 rience teaches, there are many men who in 
 the hour of death do not have the fear of 
 God before their eyes, are filled with mal- 
 ice, hatred, and anger, which go out only 
 with their lives, and are buried with them 
 in their graves, and with whom a con- 
 sciousness of impending death moves to a 
 desire for revenge; and that such declara- 
 tions, in a majority of cases, are prompted 
 by such desire." But against his objection 
 may be quoted the observation of Chief 
 Baron Eyre, in Woodcock's (,'ase, supra, 
 to the effect that these "declarationn are 
 made in extremity, when the party is at 
 the point of death, and when every hope 
 of this world is gone ; when every motive 
 to falsehood is silenced, and the mind is in- 
 duced, by the most powerful consideration, 
 to speak the truth. A situation so solemn 
 and so awful is considered by the law as 
 creating an obligation equal to that which 
 is imposed by a positive oath administered 
 in a court of justice. " However, it is man- 
 ifest that, whatever force there may be in 
 168 
 
 the objection, it goes to the weight of the 
 testimony, and not to its competency, and 
 would be just as forcible, if not more so, 
 against the admission of declarations 
 proven by word of mouth. We are of 
 opinion that in cases of homicide a state- 
 ment of the injured person, made in ex- 
 tremis, while conscious of his condition, 
 and under a sense of impending dissolu- 
 tion, reduced to writing by a competent 
 person, at the instance of the declarant, 
 or with his consent, approved and signed 
 by him, containing statements of the cir- 
 cumstances of the unlawful act which re- 
 sults in death, after proper preliminary 
 liroof has been introduced, is admissible in 
 evidence. Whether or not such paper is 
 primary evidence in the sense that parol 
 evidence of the declarations will not he re- 
 ceived until the absence of the paper is ac- 
 counted for, we are not called upon to de- 
 termine. It follows thatthecourt of com- 
 mon pleas did not err in admitting the 
 written statement of Thomas Butt in evi- 
 flence, and that that court did err in sus- 
 taining the motion for a new trial by rea- 
 son of the introduction of ths written 
 statement. Exceptions sustained. 
 
DECLARATIONS IN" COURSE OF BUSINESS. 
 
 [Case No. 59 
 
 MAYOR, ETC., OF CITY OF NEW YORK 
 V. SECOND AVE. R. CO. 
 
 (7 N. E. 905, 102 N. Y. 572.) 
 
 ■Court of Appeals of New York. June 22, 1886. 
 
 Appe.al from a judgment of the general term 
 supreme court, First department, atflrming 
 verdict for plaintifC at circuit. 
 
 Austen G. Pox, for appellant. Second Ave. 
 R. Co. D. J. Dean, for respondent, Mayor, 
 -etc., of the City of New York. 
 
 ANDREWS, J. The construction of the 
 •covenant of the defendant, the Second Ave- 
 nue Railroad Company, contained in the in- 
 strument of December 15, 18.j2, to pave the 
 streets "in and about the rails," in a perma- 
 nent manner, and to "keep the same in re- 
 pair to the satisfaction of the street com- 
 missioners," was considered in the Case of 
 ilcMahon, 75 N. Y. 23r., and it was held that 
 the covenant bound the company to pave and 
 keep in repair so much of the space between 
 the tracks as was disturbed in the original 
 construction of the road. Upon this consti'uc- 
 ilon of the covenant the defendant was bound 
 to keep in repair the whole space between 
 the tracks of its road on Second avenue, be- 
 tween Houston and Forty-second streets, as 
 it was shown that, while the laying of the 
 road originally would only require the actual 
 •displacement of the pavement for a distance 
 "of about 18 inches on the side of each rail, 
 nevertheless it would so disturb the belt of 
 intermediate pavement as to require it to be 
 relaid. The trial judge therefore correctly 
 ruled that the covenant extended to the en- 
 tire space between the tracks. 
 
 It is insisted, however, that, conceding this 
 to be the true construction of the covenant, 
 the court erred in directing a verdict for tlie 
 «um expended by the city, and for the value 
 ■of the new materials used, as proved by the 
 account kept by the city. The objection is 
 twofold: First, that the rule of damages for 
 a breach of a covenant to repair, where the 
 covenantor has neglected to perform his 
 covenant, and the repairs have been made 
 by the covenantee, is the reasonable cost of 
 the repairs, and not the sum expended by 
 the covenantee in making them, and that the 
 question of reasonable expense should, under 
 the evidence, have been submitted to the 
 jury; and, second, that improper evidence 
 was admitted to prove the amount of labor 
 and materials used in the work. 
 
 In reference to the first ground, it was 
 shown, on the part of the city, without con- 
 tradiction, that the street was out of repair, 
 and that the defendant, having neglected, 
 after due notice, to put it in repair, as re- 
 quired by its covenant, the city proceeaed to 
 make the repairs at a cost, for labor and 
 materials, of $1,971.72. It employed labor- 
 •ers at the usual wages paid by the city, and 
 purchased materials for the work. It does 
 aot affirmatively appear that the labor and 
 
 materials employed did not exceed the neces- 
 sary amount. But the work appears to have 
 been done in the usual manner, and by the 
 agencies usually employed by the city in the 
 prosecution of street repairs. We think the 
 learned counsel for the defendant is con-ect 
 in the proposition that the measure of dam- 
 ages for the breach of the defendant's cove- 
 nant was the reasonable cost of the work. 
 The city could not proceed in a reckless or 
 extravagant manner, and charge the defend- 
 ant for expenses unnecessarily or unreason- 
 ably incuiTed. State v. Ingram, 5 Ired. 441; 
 Rutland v. Dayton, 60 111. 58. But where a 
 covenantee has made repairs which the cove- 
 nantor was bound, but has neglected, to 
 make, and has proceeded in the usual way, 
 and no fraud is shown, nor any. facts to im- 
 peach the reasonableness of the account, the 
 sum actually expended in the work is, we 
 think, prima facie the sum which he is en- 
 titled to recover. In the absence of proof, 
 neither fraud, recklessness, nor extravagance 
 will be presumed, and this measure of re- 
 covei-y presumptively gives the covenantor ac- 
 tual indemnity only. 
 
 But it is insisted that the facts proved on 
 the part of the defendant tended to show that 
 the cost of the repairs exceeded a reasonable 
 sum, and that the question, therefore, should 
 have been submitted to the jury. We think 
 there was no question for the jury upon this 
 point. The defendant proved, by its track- 
 master, that the cost to the company of pav- 
 ing with cobble-stone was, in respect to the 
 item of labor, much less per square yard than 
 the sum paid by the city for laying the pave- 
 ment in question. But the pavement laid was 
 Belgian pavement, and it was proved on the 
 part of the city, and the proof was uncontra- 
 dicted, that the laying of Belgian pavement 
 involved much more labor and expense than 
 paving with cobble-stones. There was no 
 evidence showing that the charge for labor in 
 the account of the city was excessive, or that 
 more laborers or materials were pi'ovided than 
 were reasonably required. We are of opinion, 
 therefore, that the direction of the verdict 
 for the sum actually expended by the city in 
 making the repairs was not error. 
 
 A more serious question is raised by excep- 
 tions to the admission in evidence of a time- 
 book kept by one John B. Wilt, and of a writ- 
 ten memorandum or account made by him, 
 offered to prove the number of days' work per- 
 formed, and the quantity of materials used. 
 Wilt was a foreman in the employ of the de- 
 partment of public works, and had general 
 charge of the repairs in question. Under 
 him were two gang foremen, or head pavers, 
 Patrick Madden and Charles Coughlan, each 
 having charge of a separate gang of about 10 
 men employed on the work. Wilt kept a 
 time-book, in which was entered the name 
 of each man employed. He visited the work 
 twice a day, — in the morning and afternoon, — 
 remaining from a few minutes to a half an 
 hour each time; and he testified that while 
 
 169 
 
Case No. 59] 
 
 KELEVANCY. 
 
 there he checked on the time-book the time 
 of each man as reported to liim by the gang 
 foreman. He also testified that he marked 
 the men's names as he saw them, and that 
 he knew their faces. The gang foreman did 
 not see the entries made by Wilt, but they 
 testified that they correctly reported to him 
 each day the names of the men who worked, 
 and, if any did not work full time, they re- 
 ported that fact also. Upon this proof the 
 trial judge admitted the time-book in evidence, 
 against the objection of the defendant. 
 
 The trial judge also admitted in evidence, 
 under like objection, a written memorandum 
 or account, in the handwriting of AVilt, of 
 materials used. Wilt testified that the en- 
 tries in the account were made from daily in- 
 formation presented by the gang foremen 
 on the occasions of his visiting the work, and 
 that he correctly entered the amounts as re- 
 ported. It does not appear that he had any 
 personal knowledge of the matters to which 
 the entries related. The gang foremen were 
 called as witnesses in support of the account. 
 Neither of them saw the entries, and on the 
 trial neither claimed to have any present 
 recollection of the specific quantities so re- 
 ported by them. Madden testified that he re- 
 ported the correct amounts to Wilt, and it is 
 Inferable from his evidence that, when the 
 reports were made, he had personal knowl- 
 edge of the facts reported. Coughlau also tes- 
 tified, in general terms, that he reported the 
 items correctly. But on further examination 
 it appeared that his reports to Wilt, of the 
 stone delivered at the work, were made upon 
 information derived by him from the carmen 
 who drew the stone, and who counted them, 
 and who reported the count to Coughlan, who 
 in turn reported to Wilt. Coughlan saw the 
 carmen dump the stone, but he did not verify 
 the count, but appeal's to have assumed its 
 correctness. The carmen who delivered the 
 stone were not called as witnesses. 
 
 The exception to the admission of the 
 time-book presents a question of considera- 
 ble practical importance. The ultimate fact 
 sought to be proved on this branch of the 
 case vsas the number of days' labor per- 
 formed in making the repairs. The time- 
 book was not admissible as a memorandum 
 of facts known to Wilt and verified by him. 
 His observation of the men at work was cas- 
 ual, 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 en- 
 tries made, and could not verify their cor- 
 rectness. Wilt did not make the entries up- 
 on his own knowledge of the facts, but 
 from the reports of the gang foremen. 
 
 170 
 
 Standing upon his testimony alone, the en- 
 tries were mere hearsay. But, combining^ 
 the testimony of Wilt and the gang foremen, 
 there was — First, original evidence that la- 
 borers 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 relat- 
 ed; and, second, evidence by the person who 
 received the reports that he correctly enter- 
 ed them, as reported, in the time-book, — the 
 usual course of his business and duty. It 
 Is objected that this evidence, taken togeth- 
 er. Is incompetent to prove the ultimate tact, 
 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 misi-eported to Wilt, and Wilt may, ei- 
 ther intentionally or unintentionally, have 
 made entries not in accordance with the re- 
 ports of the gang foremen. But the possi- 
 bility of mistake or fraud on the part of wit- 
 nesses exists in all cases, and in respect to 
 any kind of oral evidence. 
 
 The question arises, must a material ulti- 
 mate fact be proved by the evidence of a 
 witness who knew the fact, and can recall 
 it, or who, having no 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 re- 
 cently 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, tJiat 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 forgot- 
 ten them, and supplementing this testimony 
 by that of the person receiving the commun- 
 ication to the efilect that he entered, at the 
 time, the facts communicated, and by the 
 production of the book or memorandum in 
 which the entries were made? 
 
 The admissibility of memoranda of the 
 first class is well settled. They are aumit- 
 ted in connection with and as auxiliary to 
 the oral evidence of the witness; and this, 
 whether the witness, on seeing the entries^ 
 i-ecalls the facts, or can only verify those en- 
 tries 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 N. Y. 462. 
 
 The other branch of txie 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 proved in Payne T» 
 
DECLARATIONS IN COURSE OP BUSINESS. 
 
 [Case No. 59 
 
 Hodge, 71 N. Y. 598. We are of opinion 
 that 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 wlio, in ac- 
 cordance with their duty, reported the time 
 to anotlier subordinate of the same common 
 master, but of a higher grade, who, in time, 
 also in accordance with liis 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 made the entries that he correctly en- 
 tered them, are admissible. It is subsuan- 
 tially by this method of accounts that the 
 transactions of business 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 ac- 
 counts is sanctioned. In a business where 
 many laborers are employed, the accounts 
 must, in most cases, of necessity, be kept by 
 a person not 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 rea- 
 sons it may be inconvenient that he should 
 keep the account. It may be assumed that 
 a system of accounts based upon substan- 
 tially the same methods as the accounts in 
 this case, is in accordance with the usages 
 of business. In admitting an account veri- 
 fied 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, however, that it is a 
 proper qualification of the rule admitting 
 such evidence that the account must have 
 been made in the ordinary course of busi- 
 ness, 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 up- 
 on information derived from another who 
 made the communication casually and vol- 
 untarily, and not under the sanction of duty 
 or other obligation. The case before us is 
 within the qualification suggested. 
 
 In Peck V. Valentine, 94 N. Y. 509, the 
 memorandum there admitted was not an 
 original memorandum, but a copy of a pri- 
 vate memorandum made by an employe of 
 the plaintiff for his own purposes and not 
 in the course of his duty, or in the ordinary 
 course of business. The original memoran- 
 dum was delivered, by the one \\'ho 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 orig- 
 inal memorandum was unable to verify the 
 copy. The court held that the copy was 
 improperly admitted in evidence. The deci- 
 sion in Peck v. Valentine rests upon quite 
 different facts from those in this case. 
 
 In respect to the admission of the account 
 of material, we think that part of the ac- 
 count 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 testi- 
 fied that he knew the facts and properly re- 
 ported them, and Wilt testified that he en- 
 tered 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 car- 
 men, and his reports to Wilt were based up- 
 on ^ne reports of the carmen to him. The 
 carmen were 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 taii.en to 
 the items entered upon the reports of Cough- 
 lan, the objection would, we think, have 
 been valid. But the objection was a gen- 
 eral objection to the whole account. It was 
 clearly admissible as to the items reported 
 by Wilt, and we think the general objec- 
 tion and exception is not available to raise 
 the question as to the admissibility of the 
 items entered on the report of Coughlan, in- 
 dependently of the others. The whole 
 amount of materials embraced in the recov- 
 ery was small, and we think no injustice 
 will be done by affirming the judgment. 
 The judgment is therefore affirmed. 
 
 All concur. 
 
 171 
 
Case No. 60] 
 
 KELEVANCY. 
 
 SMITH V. RENTZ. 
 
 (30 N. B. 54, 131 N. Y. 169.) 
 
 Court of Appeals of New York. Feb. 12, 1892. 
 
 Appeal from supreme court, general term, 
 Fii'st department. 
 
 Action by Eugene Smith, executor of Rich- 
 ard Patrick, deceased, against Fi-edericka 
 Rentz, for moneys paid out and expended by 
 plaintiff's testator at defendant's request. 
 Defendant appeals from a judgment of the 
 general term affirming a judgment for plain- 
 tiff entered upon the report of a referee. 
 Reversed. 
 
 Leopold Leo, for appellant. H. B. Closson, 
 for respondent. 
 
 ANDREWS, J. The action was brought to 
 recover moneys advanced and paid out by 
 the plaintiff's testator for the defendant. 
 The complaint alleges that from 1882 to 188T 
 the testator was the banker and general 
 business agent for the defendant, and that 
 during said years the defendant from time 
 to time deposited moneys with the testator; 
 and the latter, as requested by the defend- 
 ant, from her funds in his hands, and when 
 these were insufficient from his own, paid 
 her different sums in cash, and also paid 
 taxes and tradesmen's bills for which she 
 was liable; and that there was a balance 
 due the testator on account of such payment 
 of $3,744.75, '-which the plaintiff claimed to 
 recover. The answer contained a general 
 denial and interposed special defenses. On 
 the tiial before a referee the jjlaintifC offered 
 in evidence the ledger kept by the testator 
 containing the items of the alleged account. 
 It was admitted against the objection of the 
 defendant. Evidence was given on the part 
 of the plaintiff independently of the ledger, 
 tending to establish many of the items of 
 the account, but a considerable number of 
 the items for which a recovery was had are 
 Supported by the ledger alone. If the ledger 
 was improperly admitted in evidence the 
 judgment must be reversed. It was admit- 
 ted not only to establish the items, of which 
 there was no other proof, but its admission 
 may have influenced the referee in passing 
 upon the items of the account, of which it 
 was not fBH" sole evidence. The referee ad- 
 mitted the ledger on the ground that the de- 
 fendant had under the Code examined the 
 plaintiff before trial, and in that proceeding 
 had given notice to the plaintiff! to produce 
 the books of the testator, and that upon 
 such notice the plaintiff produced certain 
 books of the decedent, among which was the 
 ledger containing his account with the de- 
 fendant, which was inspected by the de- 
 fendant's counsel. The referee held that 
 the ledger was thereby made evidence for 
 the plaintiff. The ledger was not used on 
 the examination, nor were any questions 
 asked founded upon the entries therein. A 
 172 
 
 similar question was before the second divi- 
 sion of this court in Carradine v. Hotchkiss, 
 120 N. Y. 608, 24 N. E. 1020. There the 
 plaintiff, on the request of the defendant's 
 counsel, made on the trial, produced a let- 
 ter, and delivered it to the latter, who read 
 it, but did not offer it in evidence. There- 
 upon, on demand of the plaintiff's counsel, 
 the court directed the defendant's counsel to 
 put it in evidence, and in obedience to such 
 direction, to which the defendant's counsel 
 excepted, the letter was read to the jury. 
 When the case came to this court on ap- 
 peal by the defendant this ruling was chal- 
 lenged as erroneous. The court so decided, 
 Haight, J., saying: "Whatever may have 
 been the ancient rule in England upon the 
 subject, we do not understand that the rul- 
 ing of the court can be sustained under any 
 rule now existing in England or in this 
 state." But the court, being of opinion that 
 the letter did not prejudice the defendant, 
 affirmed the judgment. It is claimed that 
 the decision upon the point of the admissi- 
 j bility of the letter was unnecessary, and 
 ! therefore is not binding. The question wSs 
 i properly raised, and was decided. Its decl- 
 ' sion naturally preceded the decision of the 
 subsequent question, and the declaration of 
 \ the court was not obiter. We think, more- 
 i over, that the decision in the case accords 
 I with the view which has prevailed in the 
 i courts of this state and the practice of the 
 i profession. In Lawrence v. Van Home, 1 
 Gaines, 276, the defendant gave notice to the 
 plaintiff to produce on the trial a certain let- 
 ter, which the plaintiff refused to do unless 
 the defendant would engage to read it in 
 evidence. The defendant claimed the right 
 to inspect the letter before deciding wheth- 
 er he would read it in evidence. The judge 
 ruled that inspection could not be demanded 
 except on the terms which the plaintiff im- 
 posed. On appeal one of the judges was of 
 the opinion that the ruling was right, and 
 that the court could not compel a production 
 of a paper for inspection only. But the 
 point was not decided. In Kenny v. Clark- 
 son, 1 Johns. 385, Spencer, J., said: "I must 
 not be understood as sanctioning the course 
 adopted at the trial in admitting the paper 
 to be read without proof, because notice 
 had been given to produce it, and it had 
 been called for and perused. The case of 
 Lawrence v. Van Home, 1 Caines, 276, set- 
 tles nothing, the then chief justice express- 
 ing no decided opinion on the question, and 
 the rest of the court were equally divided. 
 It appears to me that the notice to pro- 
 duce a paper, and calling for its inspection, 
 ought to be considered as analogous to a 
 bill for discovery, where most certainly the 
 answer is not evidence but for the adverse 
 party. I think it is our duty to adopt such a 
 course as will not needlessly drive parties 
 into equity for discovery." 
 The doctrine announced by Judge Spencer 
 
DECLARATIONS IN COURSE OF BUSINESS. 
 
 [Case No. 60 
 
 has, so far as our Reports show, been ac- 
 quiesced in by the courts and the bar of 
 the state without question until a recent 
 period. The English rule has not been uni- 
 form. Lord Kenyon, in Sayer v. Kitchen, 1 
 Esp. 209, held that production of a paper on 
 notice did not make It evidence. The rule 
 seems to have been held otherwise by Lord 
 Denman in Calvert v. Flower, 7 Car. & P. 
 386, and in two or three other nisi prius 
 cases, but without any special examination. 
 The courts of Pennsylvania and New Hamp- 
 shire held the view that production and in- 
 spection alone do not make the paper evi- 
 dence. Withers v. Gillespy, 7 Serg. & R. 
 10; Austin v. Thomson, 45 N. H. 113. Gib- 
 son, J., In Withers v. Gillespy, referring to 
 the practice on bills of discovery, says: 
 "The reasons drawn from analogy render 
 the argument almost insuperable." The 
 New Hampshire case was decided upon an 
 elaborate examination of the English and 
 American authorities, and contains the most 
 thorough opinion on the question to be 
 found in the books. The courts of Massa- 
 chusetts, Maine, and Delaware seem to have 
 followed the supposed English rule on the 
 subject. It was said in the earliest case in 
 Massachusetts on the subject (Com. v. Da- 
 vidson, 1 Cush. 33) that it was a mooted 
 point whether calling for the books of the 
 opposite party and inspecting them, and 
 doing nothing more, makes the books evi- 
 dence; but in Clark v. Fletcher, 1 Allen, 53, 
 the point was decided. In Maine (Blake v. 
 Russ, 33 Me. 360) the question was decided 
 without assigning any reasons; and the rul- 
 ing in the Delaware case (Randel v. Chesa- 
 peake Co., 1 Har. [Del.] 284) was made on 
 the trial, and, so far as appears, without 
 any examination. The authorities on the 
 question are divided. But we perceive no 
 reason for departing from the rule as un- 
 derstood in this state. The claim that it 
 gives the party calling for a paper an unfair 
 advantage, if he may Inspect it, and then 
 decline to put it in evidence, seems to us 
 rather specious than sound. The same ob- 
 jection would lie in case of bills for discov- 
 ery; but it was the settled rule that an an- 
 swer, though under oath, was evidence only 
 for the party who obtained it. The party 
 who has in his possession books or papers 
 which may be material to the case of his 
 opponent has no moral right to conceal them 
 from his adversary. If, on inspection, the 
 party calling for them finds nothing to his 
 advantage, his omission to put them in evi-i 
 dence does not prevent the party producing 
 them from proving and introducing them in 
 evidence if they are competent against the 
 other party. The party calling for books 
 and papers would be subjected to great 
 hazard if an inspection merely, without 
 more, would make them evidence in the 
 case. That rule tends rather to the sup- 
 pression than the ascertainment of truth, 
 
 and the opposite rule is, as it seems to us, 
 better calculated to promote the ends of 
 justice. The production of books and papers 
 on notice is the voluntary act of the party. 
 If he refuses, it may, as is claimed, author- 
 ize the other party to give secondary evi- 
 dence of their contents, which the party 
 having possession cannot chen answer by 
 producing them. But if they contain facts 
 favorable to the other side, they ouglit to 
 be disclosed; and if production is refused, 
 the party refusing may justly incur the dan- 
 ger of having secondary proof given of their 
 contents. The claim is also made that the 
 books were competent as original evidence 
 of the entries under the rule making books 
 of account in certain cases evidence in favor 
 of the party keeping them. We think there 
 is no foundation for this contention. The 
 rule which prevails in this state (adopted, 
 it is Sfiid, from the law of Holland), that the 
 books of a tradesman or other person en- 
 gaged in business containing items of ac- 
 count, kept in the ordinary course of book- 
 accounts, are admissible in favor of the per- 
 son keeping them, against the party against 
 1 whom the charges are made, after certain 
 i preliminary facts are shown, has no applica- 
 ! tion to the case of books or entries relating 
 to cash items or dealings between the par- 
 ties. This qualification of the rule was rec- 
 ognized in the earliest decisions in this 
 state, and has been maintained by the courts 
 with general uniformity. Vosburgh v. 
 Thayer, 12 Johns. 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 evi- 
 dence. 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 rendi- 
 tion of services. In these cases some protec- 
 tion against fraudulent entries is afforded in 
 the publicity which to a greater or less ex- 
 tent attends the manual transfer of tangible 
 articles of property or the rendition of serv- 
 ices, and the knowledge which third per- 
 sons may have of tlie transactions to which 
 the entries relate. But the same necessity 
 does not exist in respect to cash transac- 
 tions. 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 could 
 be fabricated with much greater safety, and 
 with less chance of the fraud being discov- 
 ered, than entries of goods sold and deliv- 
 ered or of services rendered. It would be 
 unwise to extend the operation of the rule 
 admittfhg a party's books in evidence be- 
 yond 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 resort to books of account is thereby ren- 
 
 173 
 
Case No. 60] 
 
 KELEVANCY. 
 
 dered unnecessary in the majority of cases. 
 We think the ledger was erroneously ad- 
 mitted in evidence, and the judgment below 
 
 174 
 
 should therefore be reversed, and a new trial 
 ordered. All concur, except MAYNARD, J., 
 taking no part. 
 
DECLAKATIONS IN COURSE OF BUSINESS. 
 
 [Case No. 61 
 
 CORMAC T. WESTERN WHITE BRONZE 
 CO. 
 
 (41 N. W. 480, 77 Iowa, 32.) 
 
 Supreme Court of Iowa. Jan. 25, 1889. 
 
 Appeal from district court, Polk county; 
 JosiAii Given, Judge. 
 
 Action to recover an amount alleged to be 
 due to plaintiff on account of salary earned as 
 secretary and manager of defendant. There 
 was a trial by jury, and a verdict and judg- 
 ment for plaintiff. The defendant appeals. 
 
 Parsons & Perry, for appellant. James M. 
 <6 George E. McCaughan, for appellee. 
 
 ROBINSON, J. Plaintiff was the secretary 
 and manngev of defendant during the years 
 1885 and 1886, and for the month of January, 
 1887, and claims a balance due on account of 
 salary of $755.62. Defendant denies the al- 
 leged indebtedness, and seeks to recover of 
 tj(mrfnn(tf(/yt $890.29, on counter-claims for 
 
 money 6!f defendant alleged to have been col 
 lected by plaintiff and converted to his own 
 use, and for unpaid assessments on capital 
 stock of defendant alleged to be owned by 
 plaintiff'. The jury found that defendant 
 owed to plaintiff. the sum of $379.20. 
 
 1. Plaintiff introduced in evidence certain 
 books of account, which belonged to and had 
 been kept for the defendant. Some of them 
 were objected to on the ground that they had 
 been kept by plaintiff while he was acting asl 
 secretary of defendant, and on the further! 
 ground that they were not shown to be booka 
 of original entries. We are of the opinion! 
 that the books were properly retained in evi- 
 dence. After they were introduced it was 
 admitted that they were defendant's books of 
 original entries; that they were kept in the 
 ordinary manner, and in the regular course 
 of business; and that the entries tlierein 
 were made at the time of the transactions 
 which they represented. This made them 
 competent evidence as against defendant. 
 The fact that some of the entries were made 
 by plaintiff was immaterial, under the issnes 
 of the case. He made them, not for himself, 
 but for the defendant, and as its agent; and 
 the books when completed, were the books of 
 defendant, admissible in evidence against it. 
 
 2. One Eakin procured of defendant a cer- 
 tificate for sliares representing $3,000 of its 
 ca|iital stock. He agreed with plaintiff to sell 
 and transfer this to him when he should pay 
 the amount required therefor. A note for 
 $750 was given to Eakin by plaintiff on ac- 
 count of tills stock, and the certiticate was 
 placed in the hands of one Puller, to be de- 
 livered to plaintiff when he should pay the 
 note. The note was not paid, and the stock 
 was not transferred. On the books of the com- 
 pany it stood in the name of Eakin. While 
 the plaintiff had an interest in this stock, he 
 never owned it, and never agreed with de- 
 fendant to pay for it. He was not, there- 
 fore, liable to defendant for unpaid assess- 
 ments made on account of it. See Code, § 
 
 1078; Lumber Co. v. Bank, 71 Iowa, 270, 32 
 N. W. Eep. 336; Hale v Walker, 31 Iowa, 
 344; Pullman v. Upton, 96 U. S. 328, and 
 cases therein cited; Cook, Stocks, § 246. De- 
 fendant's stock subscription book shows that 
 plaintiff subscribed for ,50 shares of stock, 
 but he testifies that the number was changed 
 from 20 to 50 without his knowledge or au- 
 thority, and that he never became a stock- 
 holder. He voted at meetings of the stock- 
 holders on the stock of Eakin, but did so by 
 virtue of a proxy. His note to Eakin was 
 taken by defendant, but not on account of 
 any transaction between it and plaintiff. It 
 may be that plaintiff had intended to take 
 stock in his own name when he subscribed 
 for it, and that he procured Eikin to take the 
 stock in question in fulfillment of his subscrip- 
 tion, but that would not makeany privity be- 
 tween him and defendant on the stock which 
 was actually taken by Eakin. The court ruled 
 correctly in withdrawing from the jury all 
 consideration of assessments on the Eakin 
 stock. Complaint is made in this connection 
 of a remark of the court made in announcing 
 its opinion on the question of plaintiff's lia- 
 bility on the Eakin stock, after argument of 
 counsel on that question. The remark was 
 not designed as an instruction to the jury, 
 and could not have been so understood. It 
 was not addressed to tliem, and was not of 
 a nature to have been considered while they 
 were deliberating upon their verdict, nnle.-s 
 they disregarded the charge of the court, and 
 we cannot presume that thoy did. 
 
 3. The court refused to submit to the jury 
 five special interrogatories asked by defend- 
 ant. The first was as follows: "(1) Diil tlie 
 books of account kept by the plaintiff, while 
 in the management of defendant's business 
 as its agent, show that he received, on ac- 
 count of defendant, more money than he paid 
 out, and, if so, what sum'?" This was not 
 relevant to any issue in the case, and was 
 properly refused. The second interrogatory 
 was as follows: "(2) Did he receive, during 
 the time that he had the management of de- 
 fendant's business, any sums of money which 
 do not appear upon the books kept by him, 
 and for which he has not. accounted to tlie 
 defendant, and, if so, what sum?" Wo are 
 not prepared to say that this might not have 
 been properly submitted, and yet it does not 
 appear to us that prejudice conid liave re- 
 sulted from the refusal to submit it. No 
 answer which could have been given would 
 have controlled the general verdict, in the 
 absence of other special lindings. Dreher v. 
 Railway Co., 59 Iowa, 601, 13 N. W. Rep. 
 754. The third special interro^'atory sought 
 to have the jury state whether pliiintiff was 
 a subscriber to the capital stock of defendant, 
 and if he was to state the amount of calls for 
 paym'nt, if any, made thereon and unpaid. 
 This was not made material by any issue or 
 evidence in tlie case. Defendant does not 
 seek to recover on asubscii tion for stock, l)ut 
 on stock a certihcate for which was issued to 
 
 175 
 
Case No, 61] 
 
 KELEVANCY. 
 
 Eakin. No call was ever made on plaintiff's 
 subscription. The fourth special interroga- 
 tory asked inquired in regard to a settlement 
 of accounts between plaintiff and the board 
 of directors of defendant, and was properly 
 refused, for the reason that there was no ev- 
 idence of such a settlement. The fifth spe- 
 cial interrogatory was to be answered only in 
 the event that the jury answered the fourth, 
 and was therefore properly refused. 
 
 4. Counsel for appellant base some argu- 
 ment upon the weight and effect of the evi- 
 176 
 
 dence. We do not deem it necessary to re- 
 view this at lengtli, nor to notice more par- 
 ticularly other questions raised. The ab- 
 stract does not purport to set out all the evi- 
 dence given on the trial, and some of the 
 questions discussed have no foundation in the 
 record as presented to us. It is sufficient to 
 say that we have examined all questions pre- 
 sented by the record with care, but do not 
 find any error prejudicial to defendant. The 
 judgment of the district court is therefore 
 afiirmed. 
 
DECLAKATIONS IN COUiiSE OF BUSINESS. 
 
 [Case No. 62 
 
 PRATT V. WHITE. 
 
 (132 Mass. 477.) 
 
 Supreme Judicial Court of Massachusetts. 
 Norfolk. March 2, 1882. 
 
 C. Q. Tirrell & N. H. Pratt, for plaintiff. 
 J. Humphrey, for defendant. 
 
 DEVENS, J. The admission of the books 
 of account of a party to prove items of work 
 done and goods delivered, when supported 
 by his own oath, or, if he is deceased, that of 
 his administrator or executor, has long been 
 permitted in this state; and under various 
 restrictions, some created by statute, in all 
 the states of the Union. It has been sanc- 
 tioned as an exception to the general rule of 
 law as it formerly existed that a party should 
 not be a witness in his own case, and from 
 supposed necessity, in order to prevent a 
 failure of justice, that he shall be allowed 
 to produce the record of his daily transac- 
 tions, to many of which, on account of their 
 variety and minuteness, it cannot be ex- 
 pected there will be witnesses. 
 
 It is for the court to decide upon the ad- 
 missibility of the book offered, although the 
 weight to be given to it afterwards must be 
 largely a question for the jury, in connec- 
 tion vrith its appearance, the manner in 
 which it is kept, and the other evidence in 
 the case. It must appear to have been hon- 
 estly, kept, and not intentionally erased or 
 altered, and to have been the record of the 
 daily business of the party, made for the 
 purpose of establishing a charge against an- 
 other. Necessarily, regard is to be had to 
 the education of the party, his methods and 
 knowledge of business, etc., in deciding this 
 question. Cogswell v. DoUiver, 2 Blass. 217; 
 Prince v. Smith, 4 Mass. 454. 
 
 The decision of the court to admit the book 
 is final and conclusive, unless from its char- 
 acter, or from that which was sought to be 
 
 WILGUS.ET. — 13 
 
 proved by it, it could not have been admitted 
 even if it met those tests. Although some- 
 what ireegularly made a part of the excep- 
 tions to be examined by the court, the book 
 has not been produced by the defendant for 
 our inspection. It appears that measure, 
 weight, and quantity were not given in con- 
 nection with the items of goods charged, 
 but for this reason we are not prepared to 
 say that it was inadmissible. If the book 
 contain the record of the party, daily trans- 
 actions made for the purpose of a charge, 
 it may be admitted, even if deficient in many 
 respects. It does not follow that, before a 
 plaintiff can fairly ask a verdict, he may not 
 be compelled to supply deficiencies in the 
 evidence his book affords. This bill of ex- 
 ceptions does not show that other evidence 
 was not introduced. 
 
 A time book which has only the name of 
 the party and marks under particular dates 
 has been admitted. Mathes v. Robinson, 8 
 Mete. (Jlass.) 269. Upon the same principle, 
 marks on a shingle or upon a notched stick 
 have been admitted. Kendall v. Field, 14 
 Me. 30; 1 Greenl. Ev. §§ 118, 119. Yet, with- 
 out additional evidence, these would afford 
 but incomplete proof of a claim. In Hooper 
 V. Taylor, 39 Me. 224, a book similar to the 
 one here in question in omitting the weight 
 and quantity of articles was admitted with 
 but little discussion. 
 
 There would seem to be no reason why a 
 delivery of specific articles might not be 
 shown by a book of accounts, even if more 
 evidence were needed to show the amount 
 which the plaintiff was entitled to recover. 
 It is easy to imagine many facts in connec- 
 tion with which such charges might be very 
 important. We have no reason to suppose 
 more weight was given to them than that 
 to which they were fairly entitled, and we 
 must presume that the book was submitted to 
 the jury under all proper instructions. 
 
 Exceptions overruled. 
 
 177 
 
Case No. 63] 
 
 RELEVANCY. 
 
 '^ ELLIS T. IL\RRIS. 
 
 (11 S. E. 248, 106 N. C. 395.) 
 
 Supreme Court of North Carolina. March 31, 
 1890. 
 
 Appeal from superior court, Franklin 
 county ; Connok, Judge. 
 
 F. 8. Sprnill and Bafclielor & Devereux, 
 for plaintiff. C. M. Cooke, lor defendant. 
 
 AVERY, .J. The plaintiff claimed through 
 a deed from Benuett Gay, administrator 
 of J time,'! Burgess, to William Crowder, 
 dated .January 17, 1859, and immediately 
 under a deed dated June .^, 1869, from E. 
 A. Gupton, sheriff of Franklin county, to 
 the plaintiff, reciting a sale by virtue of ex- 
 ecutions against Willie <;;ro\vder. The de- 
 fendant insisted that i)laintiff's deed did 
 not cover the land in controversy, and, 
 as evidence of title in himself, offered the 
 record of a special proceeding and a deed 
 from \V. H. Spencer, administrator of J. B. 
 Mann, reciting a sale to make assets in ac- 
 cordance with a decree in said special pro- 
 ceeding, and also introduced evidence tend- 
 ing to show that the calls of said deed in- 
 cluded the land in dispute. The plaintiff 
 testified that he was present at the sale of 
 the land of Willie Crowder by the sheriff 
 in the year 1869, and bought the land of 
 said Crowder, including the reversionary 
 interest in the portion occupied as dower 
 by the widow of James Burgess, who re- 
 mained in possession of that portion of 
 the land till her death, in the year 1884, 
 when he took and retained possession of 
 it till the defendant entered by force, and 
 expelled him, in the year 1884. On the 
 cros,s-examiuati(jn of the plaintiff, the de- 
 fendant's counsel were permitted to ask 
 him how many acres of land were con- 
 veyed by the deed of the sheriff, and he an- 
 svvered: "S2S." He then stated, in re- 
 sponse to a question, (plaintiff objecting,) 
 that he gave in for taxatitm 1,100 acres of 
 land after his purchase at sheriff's sale, and 
 before he sold 172 acres off his tract. The 
 plaintiff excepted. At a subsequent stage 
 of the trial, plaintiff was recalled, and ex- 
 plained that he listed the dower land for 
 taxation, first, in 188.J, the widow having 
 paid tax on it previously, and that he had 
 listed for taxation, in 1871, 922 acres, in- 
 cluding 90 acres bought from Spencer, ad- 
 ministrator. 
 
 It is true that in Thornburgh v. Mastin, 
 93 N. C. 258, the court said: "Any one sup- 
 po.sing he has a claim upon the land of an- 
 other may list it, and pay the taxes; but 
 that would be very slight, if any, evidence 
 tending to establish his title." In the 
 case ot^Ruffin v, Overbv, 88 N.C.369,it had 
 been previously held that paying tax on 
 land without actual possession would not 
 perfect a colorable title. But in the case 
 of Austin V. King, 97 N. C. 341, 2 S. E. Rep. 
 C78, Justice Davis, delivering the opinion 
 of the court, settles the question by laying- 
 down the rule that the payment of taxes 
 by a party ante litem niotam is his act as 
 distinguished from his declaration in 
 reference to the land, and is some evidence 
 to be weighed by the jury in passing upon 
 the issue involving title. This principle 
 
 178 
 
 disposes of the first, third, seventh, and 
 ninth exceptions. 
 
 The plaintiff then offered in evidence a 
 deed from N. Patterson to James Burgess, 
 executed in 1845, and a deed from Alfred 
 Burgess to James Burgess, executed in the 
 year 1846, in which the lands conveyed are 
 described by metes and bounds, and as 
 419 acres on Tar river. The plaintiff also 
 introduced the record of the petition of the 
 widow of James Burgess for dower, show- 
 ing a decree making an allotment to her 
 by metes and bounds. W. N. Fuller then 
 testified, on behalf of the plaintiff, that he 
 surveyed the Burgess tract of land, and 
 very nearly located it by the deeds, and 
 that he also had the survey made when 
 the dower was allotted. The plaintiff 
 then "proved, as set forth in the statement, 
 that James Burgess owned this land, and 
 resided on it, from 1845 until his death, 
 and owned no other land in Franklin 
 county, and that Willie Crowder died in 
 1870-71, and was plaintiff's brother-in- 
 law. " This statement comprehends all of 
 the material evidence for plaintiff; and, 
 as instruction was asked predicated upon 
 all of the testimony, it is necessary to 
 know what it was. 'Theland conveyed in 
 the sheriff's deed to plaintiff (executed 18691 
 was described thei-ein as "eight hundred 
 and twenty-seven acres of land adjoining 
 the lands of J. B. Mann, deceased, Mrs. 
 Jane Wilder, Gaston Wilder, and others, 
 containing, by esiimation, eight hundred 
 and twenty-seven acres, more or less. " 
 The descriptive clause in the administra- 
 tor's deed to Crowder, in 18.')i), is as fol- 
 lows, viz. : "All that tract or parcel of land 
 belonging to the estate of James Burgess, 
 deceased, lying on Tar river, adjoining 
 lands of the said Willie Crowder, Dr. Jo- 
 seph B. Mann, and others, and suppoised 
 to contain four hundred and nineteen acres, 
 except the life-estate of Lucy Ann Burgess, 
 the widow of James Burgess, in that por- 
 tion of said land assigned to her as dower, 
 the meaning and intent of this deed being 
 to convey to the said Willie Crowder, ab- 
 solutely, the whole of the said land not 
 covered by the widow's dower, to vest in 
 possession immediately, and to convej' 
 that portion covered by the widow's 
 dower to vest in possession at the death 
 of said widow." The sheriff, Gupton, tes- 
 tified that he levied on and sold Crowder 's 
 land under a description given bj' him in 
 1809, and also referred to the tax-list for 
 description; that he sold all of the inter- 
 est of Crowder in the land described in the 
 deed, but said nothing at the time about 
 dower. Calvin Benton testified for the de- 
 fendant that the dower tract did not adjoin 
 the lands of Mrs. Jane Wilder or Gaston 
 Wilder, nor did it join the Mann land till 
 Mann bought the Burgess land. 
 
 The defendant offered to prove the dec- 
 larations of Crowder while in possession 
 of the land conveyed to him by Gaj^, ad- 
 ministrator of Burgess, characterizing his 
 possession, but stated that he did not 
 know whether it was before or after the 
 sale by the sheriff; that it was after 
 Mann's death, in 1865, (he thought it was 
 in 1870 or 1871,) but that at the time Ellis, 
 the plaintiff, was not living on the land, 
 but was living somewhere else. Thecourt 
 
DECLAEATIONS AGAINST INTEREST. 
 
 [Case No. 63 
 
 then admitted the declaration, and the 
 plaintiff excepted. The witness testified 
 as follows: "Crowder showed me a pine 
 near a hog-pen. I saw the chopped line. 
 He said it ran from a hedge-row in a 
 straight line to the river. The land was 
 worth flve or six dollars per acre. I heard 
 plaintiff, Ellis, say thatheowned all of the 
 interest Willie Crowder had in tlie land 
 that he (Crowder) owned. I have lived in 
 that neighborhood forty-five years. I 
 knew Dr. Mann. I helped to lay off the 
 dower. Mann had possession of all the 
 Burgess land, except the dower, from the 
 time of the sale by Gay, the administrator. 
 Dr. Perry had possession of part after 
 ^lann's death." On cross-examination 
 the witness said : "Dr. Mann was not in 
 possession of the widow's dower. I do 
 not mean that Dr. Mann was in posses- 
 sion of all of it. The large yjart wa.s in 
 possession of Crowder. " It is evident, there- 
 fore, that his honor found that the decla- 
 rations were made by Crowder while he 
 was in jjossession, before the sale by the 
 slieriff, and when it was against his inter- 
 est toadmit that heheld lessland thantha 
 plaintiff now claims under a deed for all ofl 
 his interest. So that, if it be conceded! 
 that, bylocatingthe line, as marlied, froni\ 
 the hedge-row to the river, and adopting 
 the pine as a corner, it would have been 
 against his (Crowder's) interest to surren- 
 dei-.all outside of that line, the testimony 
 was not incompetent. Headen v. Wo- 
 mack, 88 N. C. 468; .l<mes v. Henry, 84 N. 
 C. 320; Clifton v. Fort, 98 N. C. 173, 3 S. E. 
 Rep. 726; Magee v. Blankenship. 95 N. C. 
 563. 
 
 Badger Stallings, a witness for the de- 
 fendant, testified as follows: "I know 
 ^Yillie Crowder, and knew when the land 
 in controversy was sold. Before the sale, 
 I saw Dr. Mann, Willie Crov^'der, and Joe 
 Bridgers, the surveyor, running the line 
 between Crowder and Dr. Mann. Crowder 
 then told me he had a straight line to the 
 road. The line ran through the dower. " 
 The foregoing testimony was also except- 
 ed to. Tlie declaration vvas clearly one 
 made by Crowder in explanation of the 
 character and extent of his possession, 
 and, being against his interest, was un- 
 (juestionably competent. 
 
 The witness was permitted to testify fur- 
 ther, plaintiff objecting, as follows: "I 
 heard John Ellis say that he did not claim 
 any of the dower, except the nineacres, un- 
 til he and Dr. Harris got to arguing about 
 it, when he found by his papers that he had 
 a good title to thewhole of it. " When the 
 plaintiff, Ellis, was cross-examined, he 
 said : "When Widow Burgess died, I made 
 ■ claim to the land." The defendant was 
 then permitted, his counsel objecting, to 
 ask him as to his declarations; and in re- 
 sponse to thequestion he said : "I did not 
 sav that I had no interest in the dower | 
 except the 10 acres. I didnot saysotoMr. 
 Robert Moore, nor to any one. " The tes- 
 timony objected to on both occasions was 
 competent to contradict Ellis, and to show ' 
 that in fact he did not claim the whole of 
 the dower land. 
 
 The exception growing out of the tes- 
 timony of the witness Wilder is governed 
 by the same principle to which we have 
 
 adverted in discussing the exception to the 
 evidence of Calvin Benton and of Badger 
 Stallings, and the authorities already cited 
 sustain the judge in overruling the plain- 
 tiff's objection. 
 
 It was not error in thecourt to refuse to 
 instruct the jury that the plaintiff was en- 
 titled to recover upon the wh(jle of the tes- 
 timony, or any of the different phases of it, 
 suggested by the instructions asked by the 
 plaintiff, which were as follows: "The 
 deeds shown in evidence show that Willie 
 Crowder was the owner of the Burgess 
 tract of land, including the reversion in the 
 dower after the widow's death, and there 
 is no evidence that any other person had 
 any legal title to any part of said tract of 
 laiid. [This instruction was not given, 
 and the plaintiff excepted.] The jury can- 
 not consider the declarations of Crowder 
 orEllisasaffecting the title of either Crowd- 
 er or Ellis to said land, and there is no 
 evidence which can be considered by the 
 jury to show that the said Crowder, up to 
 the sheriff's sale, and Ellis after the sher- 
 iff's sale, did not have the title to said 
 land, including the part in controversy in 
 this action. [This instruction was not 
 given, and the plaintiff excepted.] There 
 is no evidence thatDr. Mann ever had any 
 title to any part of the land in contro- 
 versy, and the deed to the defendant con- 
 veys no title to any part of the land in 
 controversy. [This instruction was not 
 given, and the plaintiff excepted.] If the 
 jury believe the testimony of the witnesses, 
 they will find the first issue in favor of the 
 plaintiff. [This instruction was not given, 
 and the plaintiff excepted.] If the jury be- 
 lieve the evidence of the plaintiff, Ellis, and 
 the witness Gupton, they will find the first 
 issue in favor of the plaintiff. [This in- 
 struction was not given, and the plaintiff 
 excepted.]" The deedssetforththebound- 
 aries of land, but it is the testimony that 
 locates them. In this case, the conflict 
 arising out of contradictory evidence as to 
 the extent of the plaintift''s land, wbether 
 it included the whole of the dower, or the 
 lines should be so run as to exclude 10 
 acres, covering the land on whicli the al- 
 leged trespass wascommitted, could be set- 
 tled only by the jury. If the declarations of 
 Crowder and Ellis were competent, as we 
 have held they were, then the jury could 
 consider the testimony as to what they, 
 or either of them, said in reference to the 
 location of the line, for what they deemed 
 it worth, as tending to show whether the 
 land in controversy was sold by the sher- 
 iff, and was covered by plaintiff's deed 
 from him. The plaintiff could not recover 
 only on the strength of his own title, and, 
 if the land was not embraced within the 
 boundaries of his deed from the sheriff, he 
 could not recover; and in that event it 
 was immaterial whether the administra- 
 tor's deed included the disputed territory 
 or not. It would have been error in the 
 court to predicate its instruction upon the 
 supposed truth of the testimony of one or 
 more witnesses of the plaintiff, as asked, 
 when the testimony of Benton, Stallings, 
 Wilder, and the defendant tended to con- 
 tradict it, and when there was some con- 
 flict between the evidence of the plaintiff 
 and Gupton, the witnesses mentioned. 
 
 179 
 
Case No. 63] 
 
 RELEVANCY. 
 
 We see no error in the charge of the 
 court of which the plaintiff can justly com- 
 plain. A review of the charge will show 
 that it was even more favorable to the 
 plaintiff than was requisite in restricting 
 the jury to the purposes for which they 
 could consider certain testimony men- 
 tioned. The court charged the jury as fol- 
 lows: "The plaintiff contends that the 
 deed made by the sheriff in 1869 conveys 
 the land in controversy, being that part of 
 the Burgess land known as the dower. 
 The defendant denies this averment, and 
 says that the description in the deed does 
 not cover or include the dower. Tourver- 
 dict will depend upon the view which, 
 upon the whole testimony, you may take 
 of this question. As a matter of law, I 
 charge you that all of the interest which 
 Willie Orowder had in the land described 
 in the deed passed to the plaintiff. It is 
 for you to say what land was sold, and is 
 described in the sheriff's deed. [Plaintiff 
 excepted to this part of the charge.] The 
 evidence of the declarations of Willie Cro wd- 
 er in regard to the settlement of a lien, 
 etc., is not admitted for the purpose of 
 showing title, and you should notconsider 
 it for that purpose; but it is proper for 
 your consideration as bearing upon the 
 question as to what land the sheriff sold. 
 The sheriff swears that he obtained a de- 
 scription of the land tor the purpose of 
 making a levy from Willie Crowder; that 
 he also consulted the tax-books. The tes- 
 timony of the witnesses in regard to the 
 possession of the land is admitted for the 
 same purpose. The testimony in regard 
 to the declarations of Ellis after the death 
 of the widow is admitted for the same pur- 
 pose; so the tax-lists, etc. [To this part 
 
 180 
 
 of the charge plaintiff excepted.] The tes- 
 timony of the acts, conduct, and declara- 
 tions of Willie Crowder and John Ellis are 
 not admitted for the purpose of affecting 
 the title of Crowder. but to aid you in de- 
 termining what land was levied upon and 
 sold by the sheriff. In this same connec- 
 tion, you may consider the testimony in 
 regard to the description given by Crowd- 
 er to Gupton, sheriff, tor the purpose of 
 enabling him to make levy. [This part of 
 the charge was excepted to by the plain- 
 tiff.] When the boundaries of a tract of 
 land are established and known, the quan- 
 tity or number of acres called tor by the 
 deed is immaterial, and could not affect 
 the boundaries; but when the boundaries 
 are unknown, not established, and the jury 
 are charged with the duty of locating the 
 land, the number of acres called for may 
 be considered by them, in connection with 
 other testimony, in ascertaining what 
 land is in fact covered by the deed. [The 
 plaintiff excepted to this part of the 
 charge.] " 
 
 Counsel, in the argument, con tended that 
 the plaintiff was entitled to recover be- 
 cause this was an action for possession 
 only, and the plaintiff had testified that 
 defendant expelled him from the land by 
 force in the year 1S84. Upon referring to 
 the record, we find that the pleadings dis- 
 tinctly raise the question of title, and that 
 the court submitted issues involving the 
 ownership, wrongful possession, and dam- 
 age, without objection. It Is needless to 
 add that the testimony tended on the one 
 hand to establish, and on the other to dis- 
 prove, that the title to the land in contro- 
 versy was in plaintiff. There is no error. 
 
 Judgment affirmed. 
 
DECLARATIONS OP TESTATOR AS TO LOST WILL. [Case No. 64 
 
 PICKENS, V. DAVIS. 
 
 (134 Mass. 252.) 
 
 Supreme Judicial Court of Massachusetts. 
 Plymouth. Feb. 3, 1883. 
 
 Appeal from Probate Court, Plymouth coun- 
 ty; Morton, Judge. 
 
 E. Robinson, for appellant. H. Kingman, 
 for appellee. 
 
 C. ALLEN, J. The two questions in this 
 case are: First, whether the cancellation of a 
 will, which was duly executed, and which 
 contained a clause expressly revoking former 
 wills, has the effect, as matter of. law, to 
 revive a former will which has not been 
 destroyed, or whether in each instance it is 
 to be regarded as a question of intention, to 
 be collected from all the circumstances of 
 the case; and, secondly, if it is to be re- 
 garded as a question of Intention, whether 
 subsequent oral declarations of the testator 
 are admissible in evidence for the purpose 
 of showing what his intention was. These 
 are open questions in this commonwealth. 
 In Reid v. Borland, 14 Mass. 208, the second 
 will was invalid, for want of due attestation. 
 In Laughton v. Atkins, 1 Pick. 535, the sec- 
 ond will was adjudged to be null and void, 
 as having been procured through undue in- 
 fluence and fraud; and the whole decision 
 went upon the ground that it was never 
 valid, and could not be. 
 
 The first of these questions has been much 
 discussed, both in England and America; 
 and it has often been said that the courts of 
 common law and the ecclesiastical courts in 
 England are at variance upon It. See 1 Wil- 
 liams, Ex'rs (5th Am. Ed.) 154^156, where 
 the authorities are cited. The doctrine of 
 the ecclesiastical courts was thus stated in 
 1824 in Usticke v. Bawden, 2 Add. Bcc. 116, 
 12.j: "The legal presumption is neither ad- 
 verse to, nor in favor of, the revival of a 
 former uncanceled, upon the cancellation of 
 a later, revocatory, will. Having furnished 
 this principle, the law withdraws altogether; 
 and leaves the question, as one of intention 
 purely, and open to a decision either way, 
 solely according to facts and circumstances." 
 See, also, Moore v. Moore, 1 Phillim. 406; 
 Wilson V. Wilson, 3 Phillim. 543, 554; Hoot- 
 on V. Head, Id. 26; Kirkcudbright v. Kirk- 
 cudbright, 1 Hagg. Ecc. 325; Welch v. Phil- 
 lips, 1 Moore, P. C. 299. In Pow. Dev. (Ed. 
 1827) 527, 528, a distinction is taken between 
 the effect of the cancellation of a second 
 will which contains no express clause re- 
 voking former wills, and of a will which 
 contains such a clause; and in respect to 
 the latter it is said that: "If a prior will 
 be made, and then a subsequent one, ex- 
 pressly revoking the former, in such case, 
 although the first will be left entire, and 
 the second will afterwards canceled, yet 
 the better opinion seems to be that the 
 former is not thereby set up again." Jar- 
 
 man's note questions the soundness of the 
 above doctrine. Page 529, note. While this 
 apparent discrepancy in the respective 
 courts remained not fully reconciled, in 
 1837, the English statute of wills was passed 
 (St. 7 Wm. IV. and 1 Vict. c. 26) section 23 
 of which provided that "no will or codicil, 
 or any part thereof, which shall be in any 
 manner revoked, shall be revived otherwise 
 than by the reexecution thereof, or by a 
 codicil executed in manner hereinbefore re- 
 quired, and showing an intention to revive 
 the same." Since the enactment of this stat- 
 ute, the decisions in all the courts have been 
 uniform that, after the execution of a sub- 
 sequent will which contained an express rev- 
 ocation, or which, by reason of inconsistent 
 provisions, amounted to an implied revoca- 
 tion of a former will, such former will 
 would not be revived by the cancellation or 
 destruction of the later one. Major v. Wil- 
 liams, 3 Curt. Ecc. 432; James v. Cohen, Id. 
 770, 782; Brown v. Brown, 8 El. & Bl. 876; 
 Dickinson v. Swatman, 30 L. J. Prob. & 
 Mat. & Adm. 84; Wood v. Wood, L. R. 1 
 Prob. & Div. 309. In order to have the efCect 
 of revocation, it must, of i;ourse, be made to 
 appear that the later will contained a revo- 
 catory clause, or provisions which were in- 
 consistent with the former will;' and tho 
 mere fact of the execution of a subsequent 
 will, without evidence of its contents, has 
 been considered insufficient to amount to a 
 revocation. Cutto v. Gilbert, 9 Moore, P. C'. 
 131. See, also, Nelson v. McGifCert, 3 Barb. 
 Ch. 158. 
 
 In the United States there is a like dis- 
 crepancy in the decisions in different states, 
 though the clear preponderance appears to be 
 in favor of a doctrine substantially like that 
 established in the ecclesiastical courts. This 
 rule was established in Connecticut in 1821, 
 in James v. Mai-vin, 3 Conn. 576, where it 
 was held that the revocatory clause in the 
 second will proprio vigore operated instan- 
 taneously to efCect a revocation, and that the 
 destruction of the second will did not set up 
 the former one; and the like rule was de- 
 clared to exist in New York by the supreme 
 court of that state, in 1857, in Simmons v. 
 Simmons, 26 Barb. 68. The question was 
 greatly considered in Maryland, in 1863, in 
 Colvtn V. Warford, 20 Md. 357, 391, and the 
 court declared that "a clause in a subse- 
 quent will, which in terms revokes a pre- 
 vious will, is not only an expression of tho 
 purpose to revoke the previous will, but an 
 actual consummation of it, and the revoca- 
 tion is complete and conclusive, without re- 
 gard to the testamentary provisions of tha 
 will containing it." The court further held 
 that the cancellation of a revoking will prima 
 facie is evidence of an intention to revive 
 the previous will, but the presumption may 
 be rebutted by evidence of the attending cir- 
 cumstances and probable motives of the tes- 
 tator. In Harwell v. Lively, 30 Ga. 315, in 
 ISOO, a similar rule was laid down and main- 
 
 181 
 
Case No. 64] 
 
 RELEVAKCY. 
 
 tained with great force of reasoning. The 
 opinion of the court concludes with the fol- 
 lowing pertinent suggestion: "It must be 
 conceded there is much law adverse to the 
 doctrine. * * * Calculated as it is to sub- 
 serve aud enforce the tenor and spirit of our 
 own legislation, and to give to our people 
 the full benefit of the two hundred years' 
 experience of the mother country, as em- 
 bodied in the late act, is it not the dictate 
 of wisdom to begin in this state where they 
 have ended in England? We think so." See, 
 also, Barksdale v. Hopkins, 23 Ga. 332. The 
 courts of Mississippi, in 1S36, and of Michi- 
 gan, in 1881, adopted the same rule. Bo- 
 hanon v. Walcot, 1 How. (Miss.) 336; Scott 
 V. Fink, 45 Mich. 241, 7 N. W. 799. It is to 
 be obsei'ved that some of the foregoing deci- 
 sions are ijut expressly on the ground that 
 the later will contained an express clause 
 of revocation. 45 Mich. 246, 7 N. W. 799; 
 20 Md. 392. An examination of the cases de- 
 cided in Pennsylvania leads us to infer that 
 a similar rule would probably have been 
 adopted in that state, if the question had 
 been directly presented. Lawson v. Morri- 
 son, 2 Dall. 286, 290; Boudinot v. Bradford, 
 2 Yeates, 170; Id., 2 Dall. 266. Flintham v. 
 Bradford, 10 Pa. St. 82, 85, 92. 
 
 On the other hand, in Taylor v. Taylor, 2 
 Xott. & McC. 482, in 1820, it was held in 
 South Carolina that the earlier will revives 
 upon the cancellation of the later one; and 
 the same rule prevails in New Jersey, as is 
 shown by Randall v. Beatty, 31 N. J. Eq. 
 ("43, and cases there cited. 
 
 In various states of the Union statutes 
 have been enacted substantially to the same 
 effect as the English statute above cited, 
 showing that wherever, so far as our ob- 
 servation has extended, the subject has been 
 dealt with by legislation, it has been 
 thought wiser and better to provide that an 
 eai'lier will shall not be revived by the can- 
 cellation of a later one. There are, or have 
 been, such statutes In New York, Ohio, Indi- 
 ana, Missouri, Kentucky, California, Arkan- 
 sas, ani Vii'ginia, and probablj' in other 
 states. Concerning these statutes of New 
 York, it is said in 4 Kent, Comm. 532, that 
 they "have essentially changed the law on 
 the subject of these constructive revoca- 
 tions, and rescued it from the hard opera- 
 tion of those tecnnical rules of which we 
 have complained, and placed it on juster and 
 more rational grounds." 
 
 On the whole, the question being an open 
 one in this state, a majority of the court has 
 come to the conclusion that the destruction 
 of the second will in the present case would 
 not have the elfect to revive the first, in the 
 absence of evidence to show that such was 
 the intention of the testator. The clause of 
 revocation is not necessarily testamentary in 
 its character. It might as well be executed 
 as a separate instrument. The fact that it 
 is inserted in a will does not necessarily 
 show that the testator intended that it 
 
 182 
 
 should be dependent on the continuance in 
 force of all the other provisions by which 
 his property is disposed of. It is more rea- 
 sonaole and natural to assume that suoh 
 revocatory clause shows emphatically and 
 conclusively that he has abandoned his 
 former intentions, and substituted therefor 
 a new disposition of his property, which for 
 the present, and unless again modified, shall 
 stand as representing his wishes upon the 
 subject. But when the new plan is in its 
 turn abandoned, and such abandonment is 
 shown by a cancellation of the later will, it 
 by no means follows that his mind reverts 
 to the original scheme. In point of fact, we 
 believe that this would comparatively sel- 
 dom be found to be true. It is only by au 
 ai-tiflcial presumption, created originally for 
 the purpose of preventing intestacy, that 
 such a rule of law has ever been held. It 
 does not correctly represent the actual oper- 
 ation of the minds of testators in the ma- 
 jority of instances. The wisdom which has 
 come from experience in England and in 
 this country seems to point the other way. 
 In the absence of any statutory provision 
 to the contrary, we ai-e inclined to the opin- 
 ion that such intention, if proved to have ex- 
 isted at the time of canceling the second will, 
 would give to the act of such cancellation 
 the effect of reviving the former will; and 
 that it would be open to prove such Inten- 
 tion by parol evidence. Under the statute 
 of England, and of Virginia, and perhaps of 
 other states, such revival cannot be proved 
 in this manner. Major v. Williams, and 
 Dickinson v. Swatman, above cited; Rudisill 
 V. Rodes, 29 Grat. 147. But this results 
 from the express provision of the statute. 
 
 In the present case there was no evidence 
 tending to show that the testatrix intended 
 to revive the first will, unless the bare fact 
 tnat the first will had not been destroyed 
 amounted to such evidence. Under the cir- 
 cumstances stated in the I'eport little weight 
 should be given to that fact. The will was 
 not in the custody of the testatrix, and the 
 evidence tended strongly to show that sue 
 supposed it to have been destroyed. 
 
 The question, therefore, is not very impor- 
 tant, in this case, whether the subsequent 
 declarations of the testatrix were admissi- 
 ble in evidence for the purpose of showing 
 that she did not intend by her cancellation 
 of the second will to revive the first, be- 
 cause, in the absence of any affirmative ev- 
 idence to prove the existence of such inten- 
 tion, the first will could not be admitted to 
 .probate. Nevertheless, we have considered 
 Ithe question, and are of opinion that such 
 declarations were admissible for the pnr- 
 ,pose of showing the intent with which the 
 act was done. The act itself was consistent 
 with an intention to revive or not to revive 
 the earlier will. Whether it had the one 
 effect or the other depended upon what was 
 in the mind of the testatrix. It would in 
 many instances be more satisfactory to have 
 
DECLARATIONS OF TESTATOR AS TO LOST WILL. [Case No. 64 
 
 some decisive declaration made at the very 
 time, and showing clearly the character of 
 the act. Evidence of declarations made at 
 other times is to he ' received with caution. 
 They may have been made for the very pur- 
 pose of misleading the hearer as to the dis- 
 position which the spealier meant to malie of 
 his property. On the other hand, they may 
 have been made under such circumstances 
 as to furnish an entirely satisfactory proof 
 of his real purpose. It is trae that it may 
 not be proper to prove the direct act of can- 
 cellation, destruction, or revocation in this 
 manner. But when there is other evidence 
 of an act of revocation, and when the ques- 
 tion of the revival of an earlier will depends 
 upon tne intention of tue testator, which is 
 to be gathered from facts and circumstan- 
 ces, his declarations, showing such inten- 
 tion, whether prior, contemporaneous, or 
 subsequent, may be proved in evidence. 
 
 In the great case of Sugden v. St. Leon- 
 ards, 1 Prob. Div. 154, the question under- 
 went full discussion, in 187G, whether writ- 
 ten and oral declarations made by a testa- 
 tor, both before and after the execution of 
 his will, are, in the event of its loss, admis- 
 sible as secondary evidence of its contents; 
 and it was decided in the affirmative. It 
 was admitted in the argument at one stage 
 of the discussion that such subsequent dec- 
 
 larations would be admissible to febut a pre- 
 sumption of revocation of the will; but, 
 this being afterwards questioned, it was d-e- 
 clared and held, on the greatest considera- 
 tion, not only that these, but also that dec- 
 larations as to the contents of the will, were 
 admissible. See pages 174, 198, 2(J0, 214, 
 215, 219, 220, 225, 227, 228, 240, 241. 'j.ae 
 case of Keen v. Keen, L. R. 3 Prob. & Div. 
 105, is to the same effect. See, also, Gould 
 v. Lakes, Prob. Div. 1; Doe v. Allen, 12 
 Adol. & E. 451; Usticlie v. Bawden, 2 Add. 
 Ecc. 123; Welch v. Phillips, 1 Moore, P. 
 0. 209; Whiteley v. King, 10 Jur. (N. S.) 
 1079; In re .Johnson's Will, 40 Conn. 587; 
 Lawyer v. Smith, 8 Mich. 411; Patterson v. 
 Hickey, 32 Ga. 156; 1 .larm. Wills (5th Am. 
 Ed. by Bigelow) 130, 133, 134, 142, and notes. 
 The question was also discussed, and many 
 cases were cited, in Collagan v. Burns, 57 
 Me. 4r±0, but the court was equally divided 
 in opinion. Many, though not all, of the 
 cases, which at first sight may appear to 
 hold the contrary, will be found on examina- 
 Lion to hold merely that the direct fact of 
 revocation cannot be proved by such decla- 
 rations. 
 
 The result is that, in the opinion of a ma- 
 jority of the court, the will should be disal- 
 lowed, and the decree of the probate court 
 reversed. 
 
 183 
 
Case No. 65] 
 
 KELEVANCY. 
 
 \J YOUNG V. KANSAS CITY, FT. S. & M. R. 
 CO. 
 
 (39 Mo. App. 52.) 
 Court of Appeals of Missouri. Jan. 21, 1890. 
 Appeal from circuit court, Howell county; 
 J. F. Hale, Judge. 
 
 Wallace Pratt and Olden & Green, for ap- 
 pellant. 
 
 ROMBAUER, P. J., delivered the opinion 
 of the court. 
 
 This is an action for double damages, un- 
 der the provisions of section 809 of the Re- 
 vised Statutes of 1879. There was judg- 
 ment for plaintiff below, and the defendant, 
 appealing, assigns for error that the state- 
 ment is jurisdictionally defective, that the 
 court admitted illegal and incompetent evi- 
 dence, and that the evidence is insufficient 
 to support the judgment. 
 
 The statement, the sufficiency of which is 
 thus challenged, is as follows: 
 
 "Before W. W. Tucker, J. P., Hutton Val- 
 ley township, in Howell county, Missouri. 
 George K. Young vs. Kansas City, Ft. Scott 
 & Memphis Railroad Company. Damages. 
 Plaintiff states that the defendant is and 
 was on the seventh day of September, 1888, 
 a corporation organized and existing under 
 the laws of the state of Missouri, and, as 
 such corporation, owned and operated a rail- 
 road passing and running through Dry 
 Creek township, in said county and state 
 aforesaid; that on the seventh day of Sep- 
 tember, 1888, the said defendant, by its 
 agents, servants, and employes, while run- 
 ning a locomotive and train of cars on said 
 road in said Dry Creek township, ran against, 
 struck, and killed a certain mule of plaintiff 
 of the value of one hundred dollars, and one 
 calf of plaintiff of the value of ten dollars, 
 to plaintiff's damage in the sum of one hun- 
 dred and ten dollars; that said mule and 
 calf came upon the track of said railroad in 
 said township where it passes through un- 
 enclosed lands where said railroad company 
 was and is by law required to erect and 
 maintain a good and lawful fence on each 
 Bide of its railroad, and where there was 
 not any crossing of said railroad by a public 
 or private highway; that the defendant on 
 said seventh day of September, 1888, and for 
 a long time prior thereto, failed and neg- 
 lected to keep and maintain a lawful fence 
 on the sides of said road, at a point where 
 said nuile and calf got upon the track and 
 were killed, and that, by reason thereof, said 
 mule and said calf got upon said railroad 
 track and were killed, and the killing of 
 said mule and said calf was occasioned then 
 and there by the neglect and failure of the 
 defendant to erect and maintain lawful fen- 
 ces on the sides of its said railroad afore- 
 said. Plaintiff also states that Hutton Val- 
 ley township is adjoining to said Dry Creek 
 township in said county. Wherefore plain- 
 184 
 
 tiff, by reason of the killing of said mule 
 and said calf, as aforesaid, and by virtue of 
 section 809 of the Revised Statutes of Mis- 
 souri of 1879, demands judgment for double 
 the value of said mule and the said calf in 
 the sum of two hundred and twenty dol- 
 lars." 
 
 No particular defect in the statement Is 
 pointed out by appellant, and we can see none. 
 It states all necessary jurisdictional facts. 
 It expressly states the obligation of the de- 
 fendant to fence its track where the acci- 
 dent occurred, and that the animals came 
 upon the track where it was unfenced, and 
 where the defendant was under legal obli- 
 gation to fence, and that they were killed 
 in consequence. * It further states that this 
 happened in an adjoining township to the 
 one where the suit is brought. That the 
 suit is brought in Hutton Valley township 
 appears by the statement, by the justice's 
 transcript, and by the circuit clerk's certif- 
 icate, which describes the transcript filed in 
 his office as being a transcript from the of- 
 fice of W. W. Tucker, one of the justices of 
 the peace of Hutton Valley township in How- 
 ell county. The first assignment of error 
 is, therefore, clearly untenable. 
 
 Upon the trial the plaintiff gave oral evi- 
 dence to the effect that Dry Creek township, 
 where the accident occurred, and Hutton 
 Valley township, where the suit was insti- 
 tuted, were adjoining townships. This evi- 
 dence was objected to by the defendant, on 
 the ground that such fact was matter of 
 record, which could not be established by 
 oral evidence. The law, as embodied in 
 sections 7426 and 7427 of the Revised Stat- 
 utes of 1879, requires the county court to 
 divide the county into convenient townships, 
 to cause its clerk to enter the description 
 of the townships of record, and, within thir- 
 ty days after establishing a township, to 
 transmit to the secretary of state a descrip- 
 tion of such township and its boundaries. 
 The general rule unquestionably is that oral 
 evidence cannot be substituted for any in- 
 strument which the law requires to be in 
 writing, such as records, public documents, 
 etc. (1 Greenl. Ev. § 86); but we do not un- 
 derstand the rule as excluding evidence of 
 reputation, where the fact sought to be es- 
 tablished is a boundary not of particular 
 but of general public interest. Upon prin- 
 ciple the same rule should, and unquestion- 
 ably does, apply to such boundaries, as ap- 
 plies at common law to ancient boundaries 
 of parishes, manors, and the like, which are 
 of public interest, and touching which oral 
 proof was always admissible. 1 Greenl. Ev. 
 § 145. The boundaries of a township are of 
 public interest to all its inhabitants, as, un- 
 der our laws, questions of taxation for local 
 purposes are determined by such bounda- 
 ries. We must, therefore, conclude that the 
 second assignment of error is likewise un- 
 tenable. 
 
DECLARATIONS AS TO PUBLIC KIGIITS, ETC. [Case No. 65 
 
 The last assignment is likewise untenable. 
 The evidence was sufficient to justify the 
 jury to infer that the animals came upon 
 the track, and were killed, at a point where 
 the railroad company was under legal obliga- 
 tions to fence. Vaughan v. Railroad, 34 Mo. 
 App. 141. The fact that the plaintiff was 
 not shown to be an adjoining owner was im- 
 material, since there was no pretense that 
 
 the animals came upon the track from ad- 
 joining fields which were fenced, as was the 
 case in Ferris v. Railroad, 30 Mo. App. 122, 
 and cases there cited, but it was shov/n that 
 the railroad, at the place where the animals 
 came upon the track and were killed, ran 
 through open and unenclosed lands. 
 
 All the judges concurring, the judgment is 
 affirmed. — 
 
 185 
 
Case Ho. 66] 
 
 KELEVAKCY. 
 
 SITI.ER et al. v. GEHE. 
 
 (105 Pa. St. 577.) 
 
 Supreme Court of PennsylTauia. March 7, 
 1884. 
 
 Eri-or to court of common pleas, Berks 
 county. 
 
 A. G. & H. D. Green (Wharton Morris and 
 ■\^^m. H. Livingood, with them), for plaintiffs 
 in error. Isaac Hiester (Humes & Frey and 
 John F. Smith, with him), for defendant in 
 error. 
 
 PAXSON, J. The first live assignments 
 of error may be considered together. They 
 raise the question of the admissibility of the 
 declarations of Anna Maria Gehr and John 
 Gehr upon a question of pedigree. The isur- 
 pose of offering said declarations was to es- 
 tablish relationship between the plaintiff, 
 and Balser Geehr, of Berks county. The evi- 
 dence was objected to because it was not 
 shown aliunde that the declarants were of 
 the family of the Berks county Balser Geehr. 
 The evidence was admitted and bill sealed 
 for the defendants. 
 
 The rules of evidence applicable to pedigree 
 cases are: (1) That the statements must be 
 made ante litem motam. (2) Declarant must 
 be dead. And (3) But a prior condition to 
 both these is that it should be proved by 
 some source of evidence, independent of the 
 statement itself, that the person making the 
 statement is related to the family about 
 which he speaks. Smith v. Tebbitt, L. R. 1 
 Prob. & Div. 354. 
 
 It was not denied that the first two condi- 
 tions had been fulfilled. Neither was it ques- 
 tioned that the declarants were shown by 
 evidence dehors the declaration to be relat- 
 ed to the family of Joseph Gehr, the ancestor 
 of the plaintiff, but it was contended that 
 the declarants must be shown by evidence 
 aliunde to be related to Balser Geehr, of 
 Berks county; in other words, to the person 
 last seised of the estate, or his particular 
 branch of the family. To state the question 
 in another form: The declarants were Anna 
 Maria Gehr and John Gehr. The plaintiffs' 
 ancestor was Joseph Gehr. The deceased 
 ancestor was Balser Geehr, of Berks county. 
 It was not denied that the declarants were 
 of the family of Joseph Gehr, and it was at- 
 tempted to show by their declarations that 
 the above-named Joseph Gehr and Balser 
 Geehr were related to each. The question 
 was whether sufficient ground had been laid 
 for such declarations. 
 
 The plaintiffs in error contend, not only 
 that the declarants must be shown by evi- 
 dence aliunde to be related to the family as 
 to which the declarations were made, but 
 also that they must also be thus shown to 
 be related to the person who died seised. 
 The first part of this proposition is undoubt- 
 edly true under all the authorities. The lat- 
 ter portion of it Is not so clear. I have care- 
 fully examined all the authorities cited on 
 
 186 
 
 ■both sides upon this point, and many others 
 to which our attention was not called upon 
 the argument; and, although there is some 
 conflict in the cases, the weight of authority 
 seems to be that, while a declarant must be 
 shown by evidence aliunde to belong to the 
 family, it does not appear to be necessary to 
 show that he belongs to the same branch of 
 it. In Vowles v. Young, 13 Ves. 147, it was 
 held that the declarations of a deceased hus- 
 band concerning the descent or pedigree of 
 his wife are admissible. And in Jewell v. 
 Jewell, 1 How. 219, that the declarations of 
 a deceased husband and of one of the plain- 
 tiffs, claiming as heir of her father, that his 
 wife was not married to her father, were ad- 
 mitted. 
 
 It ■n-ould seem, however, that the declara- 
 tions of a husband in regard to his wife's 
 family, or of a wife in regard to her hus- 
 band's, rest upon substantially the same 
 principles as those of a relation by blood, 
 and these cases do not throw much light up- 
 on the question we are considering. 
 
 Doe d. Jenkins v. Davies, 59 B. G. L., 314, 
 cited by plaintiff in error, was an action of 
 ejectment, and the vital question in the case 
 was, whether Elizabeth Jenkins was legiti- 
 mate. If she was, it was admitted the ver- 
 dict must be for defendant. After the plain- 
 tiff had offered evidence to show that E. J. 
 was not legitimate, an attorney produced a 
 certificate of the marriage of Eleanor Diller 
 to John Davies, the father of E. J., and stat- 
 ed that he had received it from E. J. when 
 he was inquiring into the pedigree. He was 
 then asked whether E. J. made any state- 
 ment regarding her mother's maiTiage. The 
 question was objected to upon various 
 grounds: "(1) That she was not yet con- 
 clusively proved to be a member of the fam- 
 ily; aiid (2) that the question whether E. J. 
 was a member of the family was in fact the 
 issue for the jury, and, if she was decided to 
 be legitimate, her declarations to prove her 
 legitimacy were superfluous." It was held 
 by Lord Denman, in regard to the first ob- 
 jection, that it was the duty of the judge to 
 decide whether it was proved to him, and h6 
 decided that it was; and as to the second ob- 
 jection, he answered it by saying: "Neither 
 the admissibility nor the effect of the evi- 
 dence is altered by the accident that the fact 
 which is for the judge as a condition preced- 
 ent is the same fact which is for the jury 
 in the issue." Here the declarant was not 
 shown aliunde to be a member of the family. 
 Her declaration tended to make her so. 
 
 Blackburn v. Crawfords, 3 Wall. 185, also 
 cited by plaintiffs in error, does not sustain 
 their contention. In this case the question 
 was whether Dr. Crawford had been mar- 
 ried to Elizabeth Taylor. The plaintiffs 
 claimed to be his nieces and nephews. To 
 prove this relationship, they offered the dec- 
 laration of one Sarah Evans, who was a sis- 
 ter of Elizabeth Taylor. The evidence was 
 held Incompetent, because she did not belong 
 
PEDIGKEE. 
 
 [Case No. 6i> 
 
 to the family. The question was, who were 
 Dr. Crawford's heirs? It was said by Mr. 
 .Tustiee Swayne, in delivering the opinion of 
 the court: "If it had been proved by inde- 
 pendent testimony that Sarah Evans was re- 
 lated by blood to any branch of the family 
 of David Crawford, and her declaration had 
 been offered to prove the relationship of an- 
 other person claiming or claimed to belong 
 also to that family, this case— Monkton v. 
 Attorney General, 2 Russ. & M. 157— would 
 have been in point. But this declaration of 
 Sarah Evans, offered to prove that her sis- 
 ter was connected by marriage with a mem- 
 ber of that family, was neither within the 
 principle nor the language of that authority." 
 
 Monkton v. Attorney General, referi'ed to 
 by Justice Swayne, will be commented upon 
 later in this opinion. 
 
 Attorney General v. Kohler, 9 H. L. Gas. 
 053, w6 regard as authority against the posi- 
 tion assumed by the plaintiffs. There the 
 issue was the right of succession to the es- 
 tate of one George Keylor, an officer of ar- 
 tillery, who died intestate. The claims of 
 the respondents depended upon their estab- 
 lishing the identity of the intestate with one 
 George Frederick Koehler, which they offer- 
 ed to do by the declarations of Johann Ja- 
 cob Koehler, an uncle of George Frederick 
 Koehler. It having been established that 
 the declarant was the uncle of George Fred- 
 erick Koehler, his declarations were admit- 
 ted as to the pedigree of George Frederick 
 Koehler and the events of his early life, 
 tracing him into the artillery service, and 
 identifying him with George Keylor, the in- 
 testate. It will be noticed in this case that 
 there was no evidence aliunde to show that 
 Johann Jacob Koehler, the declarant, was 
 related to George Keylor, the artilleryman. 
 It was shown, however, that he belonged to 
 a branch of the family. 
 
 In Chapman v. Chapman, 2 Conn. 347, the 
 witness did not name the person whose dec- 
 laration he had sworn to, nor did it ever ap- 
 pear that the declarant was dead. It was 
 properly held that the evidence was inadmis- 
 sible. 
 
 In Davies v. Morgan, 1 Cromp. & J. 587, it 
 was ruled that declarations of deceased cor- 
 porators were evidence of a custom to ex- 
 clude foreigners. But it was not shown that 
 the declarant was a member of the corpora- 
 tion. In Doe V. Kandall, 2 Moore & P. 20, 
 it was held that declarations of a party con- 
 nected by marriage are admissible. Casey 
 V. O'Shaunessy, 7 Jur. 1140, was an attempt 
 to prove declarations of a Catholic priest as 
 to the legitimacy of the parties. It was not 
 contended that he was related to any of the 
 parties, and his declarations were only to 
 the effect that the parties had always been 
 ]-eputed to be husband and wife in his par- 
 ish. In Johnson v. Lawson, 2 Bing. 80, 
 it was held that declarations of servants 
 and intimate acquaintances are not admis- 
 .sible evidence in questions of pedigree. 
 
 Crease v. Barrett, 1 Cromp. M. & R. 910, 
 involved a question of custom, in which it- 
 was held that "declarations of a deceased 
 lord of the manor as to the extent of his- 
 rights over the wastes of a manor are not 
 admissible; aliter if spoken of the extent of 
 the waste only." In .Jackson v. Browner, 18 
 Johns. 37, the witnesses were not connected 
 with the family, and had no personal knowl- 
 edge of the fact of which they spoke, and 
 did not derive their information from per- 
 sons connected with the family. AValdrou v. 
 Tuttle, 4 N. H. 371, merely confines the rule 
 to declarations of deceased persons who had 
 no interest and who were relatives. Gregory 
 V. Baugh, 4 Rand. Oil, is principally a re- 
 view of all the laws concerning Indian slav- 
 ery in the state of Virginia, and it was held 
 that in questions of freedom, evidence that 
 there had been a belief in the neighborhood, 
 more than fifty or sixty years before, that 
 the female ancestor of the plaintiff was en- 
 titled to her freedom, was not admissible. 
 Whitelocke v. Baker, 13 Ves. 514, was a case 
 of partition, and it was merely ruled that the^ 
 tradition must be from persons having such 
 a connection with the party to whom it re- 
 lates that it is natural and likely from their 
 domestic habits and connections that they 
 are sijeaking the truth, and that they could 
 not be mistaken. 
 
 Many of the above authorities were not 
 cited by the plaintiffs in error, ilost of them 
 are, however, referred to in the authorities 
 they rely upon, and I have gone over them, 
 at the risk of being tedious, in order to as- 
 certain Just what they decide. It will be 
 seen that those of them which bear upon this 
 question at all do not go beyond the admit- 
 ted principle that, before declarations of de- 
 ceased persons can be received in questions 
 of pedigree, the declarant must be shown 
 aliunde to be related to some branch of the- 
 family as to which the declarations are of- 
 fered. The whole question is thus summed 
 up by Mr. AVharton in his work on Evidence 
 (page 210): "Declarations as to a family, in 
 order to be received, must emanate from de- 
 ceased persons connected with such family 
 bj' blood or marriage." The same rule is 
 laid down in most of the approved text-books. 
 See Phil. Ev. § 275; Taylor,* Ev. 570. Thfr 
 last case to which I shall refer is that of 
 Monkton v. Attorney General, 2 Russ. & M. 
 157, where it was said by Lord Brougham: 
 "I entirely agree that, in order to admit hear- 
 say evidence in pedigree, you must by evi- 
 dence dehors the declarations connect the^ 
 person making them with the family. But I 
 cannot go the length of holding that you. 
 must prove him to be connected with both 
 the branches of the family, touching which 
 his declaration is tendered. That he is con- 
 nected with the family is sufficient; and that 
 connection once proved, his declarations are 
 then let in upon questions touching that fam- 
 ily; not declarations of details which would 
 not be evidence, but declarations of the na- 
 
 187 
 
Case No. 66] 
 
 liELEVANCY. 
 
 tui-e of pedigree,— that is to say, of wbo was 
 related to wJiom, by wliat linlis tlie relation- 
 ship was made out, whether it was a rela- 
 tionship of consanguinity or of afflinity only, 
 when the parties died, or whether they are 
 actually dead; everything, in short, which 
 is, strictly speaking, matter of pedigree, — 
 may be proved as matter relating to the con- 
 dition of the family, by the declarations of 
 deceased persons, who, by evidence dehors 
 those declarations have been previously con- 
 nected with the family respecting which 
 their declarations are tendered. To say that 
 jou cannot receive in evidence the declara- 
 tions of A., who is proved to be a relation by 
 blood of B., touching the relationship of B. 
 with C., unless you have first connected him 
 also by evidence dehors his declaration with 
 C, is a proposition which has no warrant ei- 
 ther upon the principle upon which hearsay 
 is let in, or in the decided cases; and it 
 plainly involves this absurdity: that if, in 
 order to connect B. with C, I am first to 
 prove that A. is connected with B., and then 
 to superadd the proof that he is connected 
 with C, I do a thing which is vain and su- 
 perfluous, for then the declaration is used to 
 prove the very fact which I have already es- 
 tablished; inasmuch as it is not more true 
 that things which are equal to the same 
 thing ai-e equal to one another, than that 
 persons related by blood to the same individ- 
 ual are more or less related by blood to each 
 other. It is clear, both upon principle and 
 from total want of any contrary authority in 
 adjudged cases, or in the dicta of Judges or 
 text writers, that the argument fails en- 
 tirely, which would limit the rule respecting 
 evidence of that description to a greater ex- 
 tent than by requiring you to connect with 
 the family, by matter dehors the declaration 
 itself, the party whose declaration you re- 
 ceive." 
 
 This case was much relied upon by the 
 defendant in error, and the facts certainly 
 are strikingly similar to those of the case in 
 hand. The decedent, Samuel Troutback, 
 died at Madras in 1785. After reciting in 
 his will that he had no relation or kindred 
 alive to his knowledge or belief, having 
 outlived them all, he gave "unto Mr. John 
 Troutbeck, surgeon, late of the ship Speke, 
 in the English East India Company's serv- 
 ice, the sum of five gold star pagodas * * * 
 as a person nearly of the same name with 
 Troutback, though I solemnly believe and 
 declare that the said .Tohn Troutbeck is not 
 in any way related to me, or of the same 
 family or kindred with me, and I disclaim all 
 relationship with him or to him." The tes- 
 tator then proceeded to dispose of his prop- 
 ei'ty by charitable bequests which were void. 
 On the appeal the main question was how 
 far the vice chancellor was right in reject- 
 ing from his consideration, as evidence of 
 the relationship between the testator and 
 the claimants, certain documents purporting 
 to be a genealogical narrative and pedigree 
 
 188 
 
 of the Troutbeck family. These papers were 
 in the handwriting of John Troutbeck (the 
 surgeon mentioned as legatee in the will), 
 and were found among his papers at the 
 time of his death, which occurred in 1792. 
 The result of the narrative and pedigree 
 was that George, the narrator's father, and 
 Samuel, the testator, who died at Madras, 
 were descended from the same grandfather, 
 and were therefore first cousins. There was 
 no difficulty in connecting the claimants and 
 the narrator with George of Riding; and 
 the testator was distinctly shown to be the 
 son of Samuel Troutback of Wapping. The 
 difficulty lay in connecting George with 
 Samuel, and this was fully made out by 
 the narrative or pedigree referred to, which 
 was held to be admissible for that purpose. 
 It was to these facts that Lord Brougham 
 applied the language I have cited from his 
 opinion, and the case shows very satisfac- 
 torily that while a declarant must be con- 
 nected with the family— that is, with some 
 branch of it— yet, when that connection is 
 proved, the relationship between different 
 members of the family may be shown by his 
 declarations, or, as is stated in the syllabus 
 to that case: "Where in a pedigree case the 
 object is to connect A. with C, after prov- 
 ing that B., a deceased person, was re- 
 lated to A., it is competent to give in evi- 
 dence declarations by B., in which he claim- 
 ed relationship with C." 
 
 We now return to the question of the 
 competency of the declarations in this case. 
 We have already seen that the declarants 
 were related to the plaintiff's ancestor. 
 They were therefore of his family. The 
 plaintifll's name was Baltzer Gehr, and the 
 question was whether he was related to the 
 Balser Geehr of Berks county. The depo- 
 sition of the plaintiff, taken after he was 
 one hundred years old, was read upon the 
 trial below, and he testified 'that he was 
 named after Balser Geehr of Berks county, 
 and that the said Balser Geehr was his 
 uncle, a brother of his father. It is true 
 that his knowledge of this relationship was 
 derived from his mother. He said: "About 
 his being my uncle, my mother told me that, 
 she always called him my uncle; that's 
 what made me know." AVas this sufficient 
 to Justify the learned judge in admitting 
 the declarations? 
 
 It is to be observed, in the first place, the 
 evidence was to the court, not to the Jury. 
 It is the province of the court to decide 
 whether a sufficient connection had been es- 
 tablished to permit the declaration to go to the 
 Jury. As was said in Doe d. Jenkins v. Davies, 
 supra, in a similar case: "It was the duty 
 of the Judge to decide whether it was proved 
 to him. There are conditions precedent 
 which are reqiiired to be fulfilled before evi- 
 dence is admissible for the jury. Thus, an 
 oath or its equivalent, and competency, are 
 conditions precedent to admitting viva voce 
 evidence; and apprehension of Immediate 
 
PEDIGEEE. 
 
 [Case No. 66 
 
 death to admitting evidence of dying decla- 
 rations; and search to secondary evidence 
 of lost writings; and so is consanguinity or 
 affinity in tlie declarant to declarations of 
 deceased relatives. The Judge alone has to 
 decide whether the condition has been ful- 
 filled. If proof is by witnesses, he must de- 
 cide upon their credibility. If counter evi- 
 dence is offered, he must receive it before 
 he decides, and he has no right to ask the 
 opinion of the jury on the fact as a condi- 
 tion precedent." See Bartlett v. Smith, 11 
 Mees. & W. 483. 
 
 The learned judge below was satisfied and 
 received the evidence. We cannot say he 
 was wrong. The plaintiff was a competent 
 witness, made so by law, and his testimony, 
 as to his relationship with Balser Geehr, of 
 Berks county, was properly received. It is 
 true his information was derived from his 
 mother, and was to that extent hearsay. 
 But a large proportion of the knowledge 
 which every intelligent man has is derived 
 from hearsay. Indeed, we scarcely realize 
 how little we actually know from our own 
 observation and investigation. We learn the 
 truths of history, the secrets of science and 
 our knowledge of the world generally, from 
 what we have read, or from what others 
 have told us. What does a man know of his 
 deceased ancestors but what he has learned 
 from his immediate relatives? How was the 
 plaintiff, who had never seen Balser Geehr, 
 of Berks county, to know that the latter 
 was his uncle, except from his mother? It 
 is in just such cases that the strict rules of 
 evidence are relaxed as regards hearsay. If 
 it were otherwise, pedigree could not be 
 Ijroved at all in many cases, and in one 
 sense it is primary, not secondary, evidence. 
 The law upon this point is clearly stated in 
 1 Whart. Ev. § 201: "Pedigree, from the na- 
 ture of things, is open to proof by hearsay 
 in respect to all family incidents as to 
 which . no living witness can be found. If 
 what has been handed down in families can- 
 not be in this way proved, pedigree could 
 not, in most cases, be proved at all. Nor is 
 such tradition, in its best sense, open to the 
 objections applicable to hearsay. A., called 
 as a witness to pedigree, may indeed say, 
 'B. told me this.' But pedigree testimony 
 usually takes another shape. It is not, 'B. 
 told this,' but 'Such was the understanding 
 of the family.' The constitution of a family 
 may become a matter of immediate percep- 
 tion. A., B., C, and D., are brought up as 
 brothers in the same household. If any one 
 says to A., 'B. is your brother,' A. would not 
 regard such an announcement as any more 
 disclosing a fact to him than would the an- 
 nouncement to him that he is a human 
 being. That B. is his brother is one of the 
 conditions of his family existence. He fits 
 into a family of which B. is a member in 
 the same way that one stone fits into an 
 arch of which another stone is part. The 
 position of one presupposes the position of 
 
 the other. As to remote relations, the same 
 reasoning applies, though with diminished 
 force. The recognition of such relations 
 forms part of a family atmosphere. The 
 existence of such relationship constitutes the 
 family. A family, in this sense, Is an object 
 of immediate instead of mediate perception. 
 To say that A. is a brother, or a cousin, or 
 an uncle, or an aunt, is not hearsay, but 
 primary evidence. But recognition of pedi- 
 gree is not limited to such conditions. Even 
 where there is no family consensus to be 
 appealed to, what is said by one member of 
 the family to another as to pedigree may be 
 received to prove such pedigree. Hence it is 
 admissible for A. to prove, with the limita- 
 tions hereafter expressed, what was told 
 him by deceased relatives as to family rela- 
 tions." 
 
 We cannot say, therefore, that the plaintiff 
 was an incompetent witness to prove his re- 
 lationship to the Balser Geehr of Berks coun- 
 ty, nor that his testimony was incompetent 
 from the fact that his knowledge upon that 
 subject was derived from his deceased moth- 
 er. She always told him that Balser Geehr 
 was his uncle. It was a part of their fam- 
 ily history; one of their family traditions, 
 furnished by one who had the means of 
 knowledge, and no possible motive to falsify, 
 so far as appears in the case. Wheu the 
 plaintiff testified that Balser Geehr, of Berks 
 county was his uncle, he testified to a fact. 
 The evidence was primary, not secondary. 
 This puts at rest all question of the declara- 
 tions of Anna Maria Gehr and John Gehr. 
 They are shown to belong to a branch of the 
 Gehr family and from their position as such 
 likely to have had accurate information of 
 the matters to which their declarations re- 
 ferred. The learned judge below thought the 
 connection between the families sufficiently 
 established to admit the evidence, and in this 
 we see no error. 
 
 The sixth assignment of error does not re- 
 quire an extended discussion. The evidence 
 rejected does not come within any recognized 
 rule in regard to pedigree. No declarations 
 of any deceased person were offered. It was 
 simply a conversation between two living 
 persons in regard to the Gehr family. Even 
 the conversation was not offered, but merely 
 the conclusion which they drew from it. The 
 offer was properly rejected. 
 
 The seventh and eighth assignments relate 
 to the rejection by the court of "the original 
 record of the Kutztown Evangelical Lu- 
 theran Church, commencing in 1810, for the 
 purpose of showing the burial record of Han- 
 nah Bast, and the names of her parents, 
 place of birth, dates of birth and death, 
 which was the usual way of keeping the rec- 
 ord." Objection was made to this because 
 it was not a church record, but merely a pri- 
 vate book kept by the pastor, Rev. John 
 Knoske, claimed by him as his private prop- 
 erty, and containing a minute of his acts out- 
 side as well as inside of the church. 
 
 189 
 
■Case No. 66] 
 
 KELEVANCY. 
 
 The further objection was made that the 
 record was not evidence of any thing except 
 the deatli and hiirial of the jjerson mentioned 
 and tlie time and place thereof. 
 
 The learned judge held that the book in 
 question was a church registry for mar- 
 riages, deaths, and burials; that it was in- 
 tended to be kept, and possibly was kept, ac- 
 cording to the requirements of the act of 
 1800; that it would be evidence to show tlie 
 deaths of Jlarj- Kva Zimmerman and Han- 
 nah Bast, but that for the other purposes 
 offered it was incompetent. Without discuss- 
 ing the eliaracter of the book, we are of opin- 
 ion it was pi'operlj' rejected. It was not al- 
 leged that the time of the death of these 
 ladies was material to the issue; on the con- 
 trary, the manifest object of the offer was to 
 prove that Hannah Bast was the daughter 
 of Conrad Geehr and Anna Maria, his wife, 
 and to show when and where she was born. 
 This burial list was competent to show the 
 death and burial of these ladies, but what 
 the pastor put down in the book as to their 
 parentage, and the time and islace of their 
 birth, was incompetent, for the plain reason 
 that it was no part of his duty to make such 
 ■entries. Such registers are not, in general, 
 evidence of any fact not required to be re- 
 corded in them, and which did not occur in 
 the presence of the registering officer. 2 Phil. 
 Ev. *280. It was held in Clark v. Trinity 
 Church, 5 Watts & S. 266, that "an entry in 
 1811, in the handwriting of the pastor of a 
 church, in a book kept in the church as a 
 registry of baptisms and births, the object 
 of which entry was to register the baptism of 
 A person, and not his birth; and in which 
 the time of the birth is introduced merely by 
 way of description, is not evidence cf the 
 date of the birth." 
 
 The rule is thus stated by ilr. Greenleaf 
 in liis work on Evidence (volume 1, § 493): 
 "A parish register is evidence only of the 
 time of the marriage, and of its celebration 
 de facto; for these are the only facts neces- 
 sarily within the knowledge of the peraon 
 making the entry. So a register of baptism, 
 taken by itself, is evidence only of that fact, 
 though, if tlie child were proved aliunde to 
 have been then very young, it might afford 
 Ijresumptive evidence that it was born in the 
 same parish. Neither is the mention of the 
 child's age in the register of christenings any 
 evidence of the day of his birth, to support 
 a plea of infancy. In all these and similar 
 cases, the register is no proof of the identity 
 of the parties there named, with the parties 
 in controversy, but the fact of identity must 
 be established by other evidence. It is also 
 necessary in all these cases that the register 
 be one which the law requires should be 
 ke]il, and that It be kept in the manner re- 
 quired by law." This principle is recognized 
 in most of the leading text-books and numer- 
 ous decisions in England and in this country. 
 It is sufficient to refer to Rex v. Clapham, 
 4 Car. & P. 29; Burghart v. Angerstein, 6 
 
 190 
 
 Car.' & P. 690; Williams v. Lloyd, 39 E. C. L. 
 595; Whitcher v. JlcLaughlin, 115 Mass. 168; 
 Blackburn v. Crawfords, :i Wall. 189. 
 
 "\\'e are unable to see any error in the re- 
 jection of the mortgage referred to in the 
 ninth assignment. The object of this otter 
 was to show that the Conrad Geehr mention- 
 ed by the defendants' witnesses as the father 
 of the Geehrs of Berks county resided in 
 Philadelphia as early as 1739, and that the 
 family of Geehr in Berks county were entire- 
 ly different from the Lancaster 'county fam- 
 ily of the same name, from whom the plain- 
 tiff was descended. The obvious objection to 
 this evidence was that none of the defend- 
 ants' witnesses speak of any Conrad Geehr 
 residing at Germantown, and the recital in 
 the mortgage in no way connected the Con- 
 rad Geehr, who was the mortgagor, with the 
 Conrad Geehr mentioned by the witnesses. 
 The bare fact that a Conrad Geehr lived in 
 Germantown, that he borrowed money and 
 gave a mortgage to some one in Oley town- 
 ship in 1713, many years before Balser Geehr 
 is heard of in that township, would not of 
 Itself connect that Conrad with this Balser 
 Geehr. Mere identity of name must be ac- 
 companied with some circumstances of time 
 or place before we can attach any value to 
 it. as affecting rights of property. 
 
 It is true there are some authorities which 
 hold that identity of name is prima facie 
 evidence of identity of person. So much was 
 said by Justice Sharswood in McConeghy v. 
 Kirk, 18 P. F. Smith, 203. That this is the 
 ordinary rule may be conceded. But it does 
 not apply where the transaction is remote. 
 The true rule is believed to be that laid 
 down by Chief .Justice Gibson in Sailor v. 
 Hertzogg, 2 Pa. St. 182, where he says: 
 "Identity of name is ordinarily, but not al- 
 ways, prima facie evidence of personal iden- 
 tity. The authorities on the subject may be 
 consulted in Sewell v. Evans, 4 Adol. & E. 
 020, from which Lord Denham and other 
 judges of the queen's bench, concluded that 
 identity of name is something from which 
 an inference may be drawn, unless the name 
 were a very common one or the transaction 
 remote; and the reason given for casting the 
 onus on the party who denies is that dis- 
 l^roof can be readily had by calling the per- 
 son whose identity is denied into court. The 
 name in this instance is not a very common 
 one; but, after more than a quarter of a 
 century, there ought certainly to be some 
 preliminary evidence, however small." The 
 soundness of this rule cannot be success- 
 fully questioned. It would work great in- 
 justice if rights of property, after a great 
 length of time, were allowed to depend upon 
 mere identity of name. A prima facie case 
 thus submitted to a jury might be extreme- 
 ly difficult, if not imiiossible, to disprove. I 
 know of no case in which mere Identity of 
 name has been held sufficient after the great 
 lapse of time which exists here. 
 
 The assignments from the tenth to the 
 
PEDIGREE, 
 
 [Case No. 66 
 
 fourteenth inclusive allege error in the ex- 
 clusion of a series of voluminous documents 
 from the public records of Lancaster coun- 
 ty. To go over these papers in detail would 
 extend this opinion to an inconvenient length, 
 and would serve no good purpose. The ob- 
 ject of the offers, as I understand them, was 
 to show the pedigree of the plaintiff's fam- 
 ily, and that he was not connected with the 
 Oeehr family of Berks county. They show 
 recitals in wills, deeds, mortgages, etc. There 
 are also copies of assessments and other pa- 
 pers. They are, perhaps, the equivalent of 
 the declarations of deceased persons, but 
 there is nothing to connect them, or either of 
 them, with the Baltz'er Gehr who is the plain- 
 tiff In this suit, or with the Berks county 
 family of Geehr. Hence the objections made 
 hy the defendants to the admission of the 
 declarations of Anna Maria Gehr and John 
 Gehr, and which have already been consid- 
 ered, apply with far greater force to these 
 papers. Regarding them as declarations, ilie 
 declarants are not shown aliunde to belong 
 to either branch of the family. We 'are of 
 opinion that these records were properly ex- 
 cluded. 
 
 There remain but the fifteenth and six- 
 teenth assignments, in which eiTor is as- 
 signed to the charge of the court in some 
 brief comments made by the learned judge 
 upon the evidence. If not entirely accurate, 
 they disclose no such eiTor as would justify 
 a reversal. 
 
 Judgment affirmed. 
 
 (May 16, 1SS4). 
 
 PAXSON, J. A motion has been made for 
 a reargument in the above case, based up- 
 on our ruling in regard to the exclusion of 
 the Lancaster county records by the court. 
 The Impression appears to prevail that be- 
 cause we dismissed the assignments of er- 
 ror relating to this question without an ex- 
 tended discussion we had not examined it 
 with care, or were misled upon the facts. 
 The first assumption is certainly incorrect. 
 I examined this branch of the case with all 
 the more care from the fact that we were 
 not aided by an extended oral argument. 
 The paper books, however, supplied us with 
 a very careful piinted argument, so that the 
 loss of an oral argument was not so im- 
 portant as it may seem to the learned coun- 
 sel for the plaintiff in error. That the point 
 was not more fully discussed in the opinion 
 was owing to the fact that it had already 
 been extended to what I feared was an un- 
 reasonable length in discussing the more im- 
 portant questions of the cause. 
 
 A careful re-examination and study of the 
 case has failed to satisfy us that we were 
 misled either upon the facts or the law. 
 
 The records referred to were offered to 
 rebut the testimony of the plaintiff and to 
 establish the pedigree of his family in Lan- 
 caster county. The plaintiff in his deposi- 
 tion had stated that when he was six years 
 
 old (1788), his father, with his family, mov- 
 ed from Cocalico township, Lancaster coun- 
 ty, where he had lived on his brother Paul's 
 land; second, that his father's name was 
 Joseph, and that he was the youngest of 
 the family; and third, that his father had 
 three brothers, Paul, Andrew, and John, who 
 lived in the same neighborhood in Lancaster 
 county. The plaintiff did not know nls 
 grandfather's name; he never saw him. And 
 then stated that Balser Geehr, of Berks coun- 
 ty, was his uncle, upon information derived 
 from his mother. 
 
 The defendants attempted to show by the 
 excluded records that Joseph Gehr, the plain- 
 tiff's father, and Paul, Andrew, and John 
 Gehr, mentioned in the records of Lancas- 
 ter county, were brothers; that they were 
 the sons of John Gehr, senior, and hence 
 could not have been the sons of Conrad 
 Geehr, a brother of the Balser Geehr, of 
 Berks county. 
 
 The difficulty in the way of the defendants 
 is that there is nothing but identity of name 
 to connect the Gehrs named in the records 
 with the family of the plaintiff. This will 
 not do as to people who died a hundred 
 years ago. The reason and the authority for 
 this position were given in the opinion al- 
 ready filed, and need not be repeated. Not 
 only is there no proof aliunde to connect 
 them, but there is evidence as to Paul and 
 Andrew, at least, which makes their identity 
 more than doubtful. Indeed, it seems hard- 
 ly possible that they are the Paul and An- 
 drew referred to by the plaintiff. To show 
 the competency of the evidence, the argu- 
 ment was made that the plaintiff had spo- 
 ken of his father living on his brother Paul's 
 land in Cocalico township, Lancaster coun- 
 ty. But we must remember that the plain- 
 tiff was born in 1782; he left Lancaster 
 county in 1788, when about six years old, 
 and the records show that the Paul Gehr 
 named therein died in 1773, which was five 
 years before the plaintiff was born. And as 
 to Andrew Gehr the case was still stronger, 
 for the plaintiff testified to having seen his 
 father's brother Andrew, while the Andrew 
 Gehr of the records must have died prior 
 to 1772, according to the records themselves. 
 It is not coiTect, therefore, to say, that there 
 was proof aliunde to connect these Gehrs 
 with the plaintiff, and that the plaintiff's own 
 deposition furnishes such proof. There is 
 really nothing but identity of name, and 
 even if this were some evidence it would be 
 too weak and inconclusive to base a ver- 
 dict upon. Unless the plaintiff's case is a 
 fabrication, and the testimony false as to 
 the declarations of the deceased members of 
 his family, his relationship to Balser Geehr, 
 of Berks countj-, was established. There is. 
 nothing in the case to indicate such a fab- 
 rication, and if the evidence rejected had 
 been admitted, it would not be sufficient to 
 justify a jury in coming to such a conclu- 
 sion. 
 
 191 
 
Case No. 66] 
 
 KELEVAKCY. 
 
 The rejected recorcls do not contradict the- 
 plaintiff's testimony. As a pedigree of his 
 family, it rests upon a number of circum- 
 stances, each dependent upon the other. 
 With the essential links relating to Paul and 
 
 192 
 
 Andrew Gehr broken, the whole superstruc- 
 ture cnimbles. 
 
 We see no sufficient reason to order a re- 
 argument, and the motion therefore is re- 
 fused. 
 
PEDIGHEE. 
 
 [Case No. 67 
 
 rULKERSON et al. v. HOLMES et al. 
 
 (G Sup. Ct. 780, 117 U. S. 389.) 
 
 Supreme Court of the United States. March 
 22, 1886. 
 
 In error to the circuit court of the United 
 States for the Western district of Virginia. 
 
 This was an action of ejectment. Tlie de- 
 fendants in error were the plaintiffs in the 
 circuit court, and were the heirs at law of 
 John Holmes, deceased. They brought the ac- 
 tion in August, 1871, to recover a tract of 3,000 
 acres of land in Lee county, in the state of 
 Virginia. The defendants pleaded the gen- 
 eral issue. The case was tried by a jury, 
 and there was a verdict for the plaintiffs, on 
 which the court rendered judgment, and the 
 defendants sued out this writ of error. 
 
 It appeared from the bill of exceptions that 
 the plaintiffs, to sustain the issue on their 
 part, offered in evidence a patent from the 
 commonwealth of Virginia to Samuel Young, 
 dated May 7, 1787, for the premises in con- 
 troversy, which was admitted without objec- 
 tion. They next offered a deed for the same 
 premises from Samuel 0. Young to John 
 Holmes, dated July 12, 1819. This deed re- 
 cited the grant by the commonwealth of Vir- 
 ginia to Samuel Young of the premises in 
 controversy; that Samuel Young, the pat- 
 entee, had died intestate; that Samuel C. 
 Young, the grantor, was his only child and 
 heir;, and that the title to said lands had 
 vested in him. Appended to the deed was a 
 certificate of acknowledgment dated July 15, 
 1819, at the Eastern district of Pennsylvania, 
 purporting to have been taken by Richard 
 Peters, United States judge for the district 
 of Pennsylvania, and signed by him. The 
 deed appeared also to have been witnessed 
 by John Shaw and John Craige. Immedi- 
 ately after the certificate of acknowledgment 
 appeared what purported to be the receipt of 
 Samuel 0. Young for the consideration mon- 
 ey mentioned in the deed, which was $10,400, 
 signed by him and witnessed by John Craige. 
 The plaintiffs proved the handwriting of 
 Judge Peters to the certificate, and the death 
 of John Shaw, one of the witnesses, which 
 took place m.ore than 50 years before the 
 trial. AjSipended to the deed was the follow- 
 ing certificate of registration: 
 
 "Virginia. At a court begun and held for 
 Lee county, at the court-house thereof, on 
 the fifteenth day of January, 1838, this in- 
 denture of bargain and sale for land between 
 Samuel C. Young of the one part, and John 
 Holmes of the other part, was admitted to 
 record upon the certificate of Richard Peters, 
 judge of the Pennsylvania district of the 
 United States. J. W. S. Morrison, D. C." 
 
 The deed bore the following indorsement: 
 
 "Recorded in the clerk's oflSce of the coun- 
 ty court of Lee, in book No. 7, page 401. 
 Teste: J. W. S. Morrison, D. C." 
 
 The plaintiffs also introduced evidence 
 tending to show that the patent to Samuel 
 Young, and the deed from Samuel C. Young 
 
 WILGUS,EV. — 13 
 
 to John Holmes, were found among the pa- 
 pers of the latter after his death, in 18.34. 
 They also offered the testimony of John 
 Holmes, a son-in-law of John Holmes, the 
 grantee of the land, who testified that ne 
 knew that said grantee owned a tract of 
 3,000 acres of land in Lee county, Virginia, 
 and that the deed for the land was in the 
 possession of John Holmes, the elder, at the 
 time of his death; that at the request of one 
 of the executors of John Holmes, the elder, 
 and of the family, the witness, in the year 
 183G, went to Virginia, to examine the lands; 
 that he took with him a map and plan and 
 two deeds, one being the patent above men- 
 tioned for the lands in controversy, the oth- 
 er the deed from Samuel 0. Young to John 
 Holmes for the same lauds; and that these 
 papers had been in his possession or under 
 his control for a period of 37 or 38 years. On 
 his said visit the witness went upon the 
 lands with Peter Fulkerson, who lived in 
 sight of them, and who, as well as Frederick 
 D. Fulkerson and Mr. Ewing, brother-in-law 
 of the latter, recognized him as representing 
 the owners of the land. It was at that time 
 called the "Holmes Plantation." There were 
 no intruders upon the land, and no one in 
 actual possession. In 1840, Frederick D. 
 Fulkerson treated by letter with the witness 
 for the purchase of the land, and, in 1846, 
 James Fulkerson wrote the witness to learn 
 the least he would take for the land, and re- 
 peated his inquiry in the year 1847. It may 
 be here stated that the defendants claimed 
 possession under patents issued, one to the 
 Peter Fulkerson above mentioned, dated Oc- 
 tober 30, 1838, and another to said Frederick 
 D. Fulkerson and .Tames Fulkerson and Eliz- 
 abeth Fulkerson, dated Octoljer 31, 1846, and 
 by subsequent conveyances from said pat- 
 entees. Having introduced this evidence the 
 plaintiffs rested. 
 
 One of the defenses set up to the action by 
 the defendants was that under the laws of 
 Virginia the lands in controversy had been 
 forfeited to the state, and the title by reason 
 thereof had, ipso facto, reverted to the state, 
 and was therefore out of the plaintiffs. The 
 acts of the state of Virginia appUcable to the 
 present ease, providing for the forfeitiwe of 
 lands delinquent for the non-payment of 
 taxes, were as follows: The second section 
 of the act of February 27, 183."), after recit- 
 ing, by way of preamble, that whereas, it 
 was "known to the general assembly that 
 many large tracts of land lying west of the 
 Alleghany mountains which were granted by 
 the commonwealth before the first day of 
 April, 1831, never were, or have not been for 
 many years last past, entered on the books 
 of the commissioner of the revenue where 
 they respectively lie,- * * *" declared that 
 every owner of any such tract of land should, 
 on or before the first day of July, 1836, en- 
 ter, or cause to be entered, on the books of 
 the commissioner of revenue for the county 
 in which the lands lay, any land owned by 
 
 193 
 
Case No. 67] 
 
 RELEVANCY. 
 
 him the title of which came through grants 
 by the commonwealtli, and have the same 
 charged with ail taxes and damages in ar- 
 rears properly chargeable thereon, and pay 
 all such taxes and damages which had not 
 been relinquished and exonerated by the sec- 
 ond section of the act concerning delinquent 
 and forfeited lands, passed March 10, 1832; 
 and upon failure to do so such lands, not 
 in the actual possession of said owner, should 
 become forfeited to the commonwealth after 
 the first of July, 183C. Laws Ya. 1834, 1835, 
 c. 13, p. 12. The second section of the act of 
 March 10, 1832, referred to in the statute 
 just recited, provided that all taxes and dam- 
 ages due and chargeable on lands lying west 
 of the Alleghany mountains, returned delin- 
 quent for the year 1831 or any previous year, 
 and which had not been redeemed, or 'Ex- 
 onerated by former laws, should be dis- 
 charged, and. the lien of the commonwealth 
 therefor relinquished, provided said taxes 
 and damages did not exceed $10. See Laws 
 Va. 1832, c. 73, p. 67. By successive acts of 
 tlie legislature of Virginia — act of March 23, 
 183G, (chapter 3, p. 7; Acts 1835-36;) act of 
 ilarch 30, 1837, (chapter 8, p. 9, Acts 1836- 
 37;) act of JLarch 15, 1838, (chapter 8, pp. 
 10, 17, Acts 1838,)— the time for entering 
 lands upon the books of the commissioners 
 of revenue, and paying the taxes and dam- 
 ages cliarged thereon, and thereby saving 
 them from forfeiture, was extended to the 
 first day of July, 1838. 
 
 In order to prove the forfeiture of the land 
 in controversy to the state of Virginia the 
 defendants introduced "a table of tracts of 
 land in Lee county assessed with taxes," cer- 
 tified on September 5, 1876, by the auditor of 
 public accounts of the state of Virginia. 
 This table showed that three tracts of land, 
 containing in the aggregate 6,300 acres, had 
 been listed for taxation against Samuel 
 Young, of Philadelphia, for the years from 
 1827 to 1832, Inclusive. The taxes on the 
 three tracts for the five years from 1827 to 
 1831, inclusive, were, according to the table, 
 unpaid, and amounted in all to 38 cents. The 
 taxes for 1832 were marked paid. The audi- 
 tor of public accounts certified that the books 
 of Lee county prior to 1827 were missing; 
 that the records showed that the taxes on 
 said three tracts of Samuel Young had been 
 paid up to and including the year 1822; that 
 the taxes were released to 1831, Inclusive; 
 and that said lands were returned among the 
 unascertainable lands in 1832, and subse- 
 quently dropped from the commissioners' 
 books of Lee county. 
 
 To rebut this testimony introduced by the 
 defendants the plaintiffs put in evidence the 
 certificate of the deputy-sheriff of Lee coun- 
 ty, dated December 14, 1837, to the efEect that 
 he had placed a tract of land in the name 
 of Samuel Young for 3,000 acres, which was 
 returned in the year 1834 not ascertainable, 
 on the commissioners' books of said county 
 of Lee, and taxed the damages thereon. 
 
 194 
 
 They also introduced "an extract," certified 
 September 5, 1875, by the auditor of public 
 accounts, "from the land-bcoks of the com- 
 missioners of the revenue for the county of 
 Lee, for the years 1838 to 1875, both Inclu- 
 sive, * * *" of lands assessed successively 
 to John Holmes, .John Holmes, Jr., and John 
 Holmes' estate, for each of said years. The 
 extract showed that a tract of 3,000 acres of 
 land, conveyed by Samuel C. Young, was list- 
 ed for taxation to John Holmes and John 
 Holmes, Jr., of Philadelphia, and to the es- 
 tate of John Holmes, for the years above 
 mentioned. The taxes down to 1874, except- 
 ing one year, appeared to have been paid or 
 released by law. 
 
 John A. Buchanan, for plaintiffs in error. 
 Wm. Pinkney Whyte, Patrick Hagan, and 
 John A. Campbell, for defendants in error. 
 
 "WOODS, J. It is first assigned for error 
 that the circuit court "allowed the deed from 
 Samuel C. Young to John Holmes to be read 
 in evidence without instructing the jury that 
 the recitals therein in respect to the death of 
 Samuel Young and the heirship of Samuel C. 
 Young were not evidence against the defend- 
 ants, even if it were admissible at all, with- 
 out proof of its execution or possession ac- 
 companying and held under it." The deed 
 of Samuel 0. Young to John Holmes was 
 rightfully admitted in evidence as an an- 
 cient deed, without proof by tlie subscribing 
 witnesses, or of possession by the plaintiffs or 
 those under whom they claimed. When of- 
 fered it was more than 60 years old. It was 
 produced from the custody of the heirs of 
 John Holmes, the grantee, who claimed the 
 lands described therein. It, as well as the 
 patent for the same land from the common- 
 wealth of Virginia to Samuel Young, was 
 shown to have been found among the papers 
 of John Holmes. The lands described there- 
 in were shown to have been listed for taxation 
 to John Holmes, or to his heirs, for a period 
 beginning with the year 1838 down to and 
 including tlie year 1875, which was after- the 
 bringing of this suit; and it appeared that 
 during that time they had paid the taxes as- 
 sessed on said lands, or the same had been 
 released to them by law. It was further 
 shown that the judge before whom the ac- 
 knowledgment of the deed had been made 
 was dead; that his signature to the certifi- 
 cate of acknowledgment was genuine; that 
 the deed had been recorded in the county 
 where the lands lay for more than 42 years 
 before it was offered In evidence; and that 
 before and after the deed was put upon rec- 
 ord the lands described therein were re- 
 ported to be the lands of John Holmes, the 
 grantee, and his heire, and were known and 
 designated in the neighborhood where they 
 lay as the "Holmes Plantation." This state 
 of facts amply justified the admission of the 
 deed in evidence as an ancient document, 
 without other proof. Caruthers v. Eldridge, 
 12 Grat. 670; Applegate v. Mining Co., 6 
 
PEDIGREE. 
 
 [Case No. 67 
 
 Sup. Ot. 742 (deeided at the preseBt term), 
 and cases there cited. 
 
 The question is therefore fairly presented 
 whether the recitals made in the deed of 
 Samul C. Young to John Holmes, to the ef- 
 fect that Samuel Young, the patentee, had 
 died intestate, leaving one child only, namely, 
 the said Samuel C. Young, the grantor, were 
 admissible in evidence against the defend- 
 ants, who did not claim title under the deed. 
 The fact to be established is one of pedigree 
 The proof to show pedigree forms a well- 
 settled exception to the rule which excludes 
 iiearsay evidence. This exception has been 
 recognized on the ground of necessity; for as 
 in inquiries respecting relationship or de- 
 scent facts must often be proved which oc- 
 curred many years before the trial, and were 
 known to but few persons, it is obvious that 
 the strict enforcement in such cases of the 
 rules against hearsay evidence would fre- 
 quently occasion a failure of justice. Tayl. 
 Bv. § 635. Traditional evidence is therefore 
 Admissible. J&ckson v. Cooley, 8 Johns. 99; 
 Jackson v. Browner, 18 Johns. 37; Jackson 
 V. King, 5 Cow. 237; Davis v. Wood, 1 
 Wheat. 6. The rule is that declarations of 
 deceased persons who were de jure related 
 Tjy blood or marriage to the family in ques- 
 tion may be given in evidence in matters of 
 pedigree. Jewell v. Jewell, 1 How. 219; 
 Blackburn v. Crawfords, 3 Wall. 175; John- 
 sou V. Lawson, 2 Bing. 86; Vowles v. Young, 
 13 Ves. 147; Monkton v. Attorney General, 
 2 Kuss. & M. 159; White v. Strother, 11 Ala. 
 720. A qualification of the rule is tliat be- 
 fore a declaration can be admitted in evi- 
 dence the relationship of the declarant with 
 the family must be established by some 
 proof independent of the declaration itself. 
 Monkton v. Attorney General, 2 Russ. & M. 
 156; Attorney General v. Kohler, 9 H. L. 
 Cas. 660; Kex v. All Saints, 7 Barn. & C. 
 789. But it is evident that but slight proof 
 of the relationship will be required, since the 
 relationship of the declarant with the family 
 might be as diflicult to prove as the very fact 
 in controversy. 
 
 Applying these rales, we are of opinion that 
 the recital in the deed of Samuel C. , Young 
 to John Holmes, supported as it was by the 
 circumstances of the case shown by the evi- 
 dence, was admissible, as tending to prove 
 the facts recited, namely, that Samuel Young, 
 the patentee, was dead, and Samuel C. 
 Young, the grantor, was his only child and 
 heir. 
 
 As the deed in which the i-ecital was made 
 was entitled to be admitted in evidence, it 
 stands upon the same footing as if its exe- 
 cution had been proved in the ordinary way. 
 The fact, therefore, that on the twelfth day 
 of July, 1810, the date of the deed, in the 
 ■city of Philadelphia, before Richard Peters, 
 United States judge, and two other persons 
 as witnesses, Samuel C. Young, the grantor 
 in the deed mentioned, made the declarations 
 in question, may be taken as established. 
 
 It is not disputed that when, upon the trial 
 of the case in the circuit court in October, 
 1880, the deed containing the recitals was 
 offered in evidence, the declarant, Samuel C. 
 Young, was dead. It only .remained, there- 
 fore, to offer some evidence that the declar- 
 ant, Samuel C. Young, was i-elated to the 
 family of Samuel Young. One circumstance 
 relied on to show his relationship was the 
 similarity of names. This, after the lapse of 
 so great a time, was entitled to weight. An- 
 other fact was that the patent to Samuel 
 Young for the land in controversy was found 
 with the deed of Samuel C. Young to John 
 Holmes among the papers of the latter after 
 his death. The well-known practices and 
 habits of men in the transfer of title make 
 it clear that the patent was delivered to 
 Holmes by Samuel 0. Young when the latter 
 delivered his own deed to Holmes for the 
 premises conveyed by the patent. There was 
 therefore persuasive proof that on January 
 12, 1819, Samuel C. Young had in his posses- 
 sion, claiming it as a muniment of his title, 
 the patent issued by the commonwealth of 
 Virginia to Samuel Y'oung, and the presump- 
 tion is that his possession of the patent was 
 rightful. The fact that Samuel C. Yotmg, 
 representing himself to be the son and heir 
 of Samuel Young, had in his rightful posses- 
 sion the title papers of the latter to a valu- 
 able estate, is a fact tending to prove the 
 truth of his asserted relationship. Another 
 circumstance of weight is that Samuel C. 
 Young, having assumed, as the son and sole 
 heir of Samuel Young, to convey the landed 
 estate of the latter, and his grantees having 
 for more than 60 years claimed title under 
 his conveyance, the right of Samuel C. Young 
 to make the conveyance has never, so far as 
 appears, been questioned or challenged by 
 any other person claiming under Samuel 
 Young. After a lapse of 61 years we think 
 these circumstances were sufficient to prove 
 that Samuel C. Young was of the family of 
 Samuel Young, and that the declaration of 
 the former, deliberately made in an ancient 
 writing, signed, sealed, witnessed, acknowl- 
 edged, and recorded, to the effect that the 
 declarant was the only child and heir of Sam- 
 uel Young, and that the latter was dead, 
 was of right admitted in evidence as tending 
 to prove the facts so recited. This conclu- 
 sion is sustained by the case of Deery v. 
 Cray, 5 Wall. 795, which is directly in point. 
 See, also. Carver v. Astor, 4 Pet. 1; Crane 
 V. Astor, 6 Pet. 598; Garwood v. Dennis, 4 
 Bin. 314; Stokes v. Dawes, 4 Mason, 268; 
 Jackson v. Cooley, 8 Johns. 90. In view, 
 therefore, of the circumstances of the case, 
 there was no error in the refusal of the court 
 to instruct the jury that said recital was not 
 evidence against the defendants. 
 
 The next and only other ground ' of error 
 alleged by the defendants is that the court 
 refused to charge the jury on the question of 
 forfeiture. We think there was no error 
 here. The forfeiture of the lands in contro- 
 
 195 
 
Case No. 67] 
 
 RELEVANCY. 
 
 versy is alleged to have occurred hy virtue 
 of the provisions of the second section of the 
 act of February 27, 1835. Two classes of 
 lands were declared subject to forfeiture by 
 this act. The first was lands which had 
 never been entered upon the books of the 
 commissioners of revenue for the county in 
 which the lands lay. There is a failure to 
 show that the lands in question had never 
 been listed for taxation upon the books of 
 the commissioners of Lee county, within 
 whose limits they were included. It is true 
 the certificate of the auditor of public ac- 
 counts, introduced by the defendants, states 
 that the records of Lee county prior to 1827 
 are missing; but it can hardly be maintain- 
 ed that when a party shows his inability to 
 prove an essential fact, the fact may be in- 
 ferred from his inability to prove it. But 
 the same certificate shows that the lands of 
 Samuel Young were placed on the books of 
 the commissioners of Lee county for six 
 years, namely, from 1827 to 1832, inclusive, 
 and that the taxes on the same lands had 
 been paid up to and including the year 1822. 
 Upon the showing of the defendants them- 
 selves, it appears that the lands in question 
 do not belong to the class which had never 
 been entered upon the books of the commis- 
 sioners of revenue. 
 
 Nor are the defendants any more successful 
 in showing that the lands in controversy fell 
 within the second class liable to forfeiture, 
 namely, those which for many years previous 
 to February 27, 1835, the date of the act 
 declaring the forfeiture, had not been entered 
 upon the books of the commissioners of reve- 
 nue. For, referring to the second section of 
 the act of March 10, 1832 (Laws Va. 1832, c. 
 73, p. 67), it appears that only those tracts 
 of land on which the unpaid taxes exceeded 
 $100 were liable to forfeiture under the act 
 of February 27, 1835. There is no proof that 
 the taxes and damages on the lands in ques- 
 tion exceeded that amount. On the contrary, 
 
 196 
 
 if the table of lands showing the taxes there- 
 on for the years 1827 to 1832, inclusive, certi- 
 fied by the auditor of public accounts, in- 
 cludes the lands in controversy, as the de- 
 fendants contend, the taxes thereon for all 
 the years stated amounted to only 38 cents, 
 and the taxes were therefore released and 
 relinquished by the second section of the act 
 of March 10, 1832; and if this table did not 
 include the lands in controversy, then there 
 is an entire failure to show what the taxes 
 were. The defendants, therefore, have fail- 
 ed to prove that the lands in controversy 
 were liable to forfeiture under the act of 
 February 27, 1835. 
 
 But there is affirmative proof that no for- 
 feiture could have occurred, for the time for 
 entering the lands on the commissioners' 
 books for taxation, and for paying the taxes, 
 and thereby preventing forfeiture, was ex- 
 tended, as has been stated, to the first day 
 of July, 1838; and it was shown by the cer- 
 tificate of Crabtree, the deputy-sheriff, that 
 as early as December 14, 1837, the lands in 
 controversy were placed upon the tax-books, 
 and the damages thereon taxed; and it was 
 further shown that the state of Virginia 
 never claimed the lands as forfeited, but, 
 from the year 18.38 down to the beginning of 
 this suit, a period of more than 33 years, had 
 assessed and collected taxes therefor from 
 the plaintiffs and those under whom they 
 claim. It follows that the failure to show a 
 forfeiture of the lands under the act of Feb- 
 ruary 27, 1835, was complete. It would, 
 therefore, have been the duty of the court, 
 if it gave any instruction upon this branch of 
 the defense, to say to the jury that the de- 
 fendants had failed to maintain it. It can 
 hardly be urged by them, as a ground for the 
 reversal of the judgment, that the court did 
 not so charge. Brobst v. Brock, 10 Wall. 
 519; Phillips Const. Co. v. Seymour, 91 U. 
 S. 646. 
 
 Judgment affirmed. 
 
OPINIONS. 
 
 [Case No, 68 
 
 WIGHT FIRE-PROOFING CO. v. POC- 
 ZEKAI. 
 
 (22 N. E. 543, 130 111. 139.) 
 
 Supreme Court of Illinois. Oct. 31, 1889. 
 
 Appeal from appellate court, first district. 
 
 Action by Peter Poczekai for the use of 
 James G. Weart against the Wight Tire- 
 Prooling Company. Defendant appeals. 
 
 Win. Eliot Furness, for appellant. Nelson 
 Monroe, for appellee. 
 
 BAKER, J. Appellep recovered judgment 
 in the superior court of Cook county in case 
 for .'$2,000, and on appellant's appeal the 
 judgment was affirmed by the appellate court 
 of the first district. Busse & Sturtevant had 
 the contract for the mason-work on a build- 
 ing which the Phoenix Insurance Company 
 of Brooklyn was erecting on the south-west 
 corner of Clark and Jackson streets, in Chi- 
 cago, and appellee was working for them. 
 On December 6, 1886, the mason-work was 
 finished, and appellee was employed with 
 others in lowering certain planks, which had 
 been used by the masons for scaffolding, from 
 the attic floor of the unfinished building 
 through an elevator way, by means of a rope, 
 to the floor below. In the performance of 
 this duty and at the time he was injured ap- 
 pellee was using due and ordinary care. 
 Over liim, on the frame-work of the roof, 
 some of the servants of the appellant were at 
 work. Appellant had a contract for doing 
 tlie fire-prooling of the building, and its 
 servants on the frame of the roof composed 
 a gang of three or four men who were pre- 
 paring the centerings, so called, necessary to 
 be put in place in order to enable the appel- 
 lant to lay the fire-proof arches between the 
 girders forming the frame of the roof. The 
 centerings were a sort of platform supported 
 from above, built close to and under the> 
 girders, on which the tiles of the arches, flat 
 on the under side, were laid, and rested un- 
 til the mortar with which they were built 
 should harden, and on which the workmen 
 employed in springing the arches stood while 
 working. The appellant had nothing to do 
 with the iron-work of the building, and the 
 girders of the roof had been put in place by 
 a contractor who had done the iron-work. 
 They ran north and south, were some six or 
 seven feet apart, and, as the morning in 
 question was frosty, they were slippery. The 
 centering gang were working over that part 
 of the attic floor where appellee was at work, 
 and Lynch, the foreman of the gang, in step- 
 ping around upon the roof girders, stepped 
 on a short iron girder weighing five or six 
 hundred pounds, and loose at both ends, 
 which was no part of the roof, and which 
 was lying east and west across the north and 
 south girders, which were in that place about 
 as far apart as the short girder was long. 
 Lynch called the attention of Lee, another of 
 appellant's workmen, to the fact of the loose 
 girder. A few moments thereafter he or- 
 
 dered Lee to go below to the attic floor, and 
 tie the timber cro.ss-pieces to a rope, by which 
 he (Lynch) would haul them up. This order 
 was obeyed by Lee, aud when the rope was 
 tied to one of the cross-pieces he notified 
 Lynch to pull up. The latter at this time 
 was standing with the rope on one of the 
 girders this loose girder was resting on, and 
 not more than three or four feet away from 
 it. Lee, who was a witness for appellee, 
 stated in his testimony: "As he [Lynch] • 
 hauled away I looked up after the cross-piece, 
 and as the cross-piece got up I seen this girder 
 turn over on its end and drop." Tills short 
 girder, in falling, struck appellee, and inflict- 
 ed upon him the injuries to recover damages 
 for which the suit was brought. 
 
 Several grounds are urged for the reversal 
 of the judgment. It is claimed there is a 
 variance between the declaration and the evi- 
 dence in respect to the acts of negligence 
 which caused the injury. The variance sug- 
 gested does not seem to be of a very substan- 
 tial character, but, be this as it may, appel- 
 lant cannot now avail himself of it. It does 
 not appear from the record that any claim of 
 variance on the ground now indicated was 
 made in the trial court; and if there made, 
 and deemed essential, it could readily have 
 been obviated by amendment. The failure 
 of appellant to there object on the ground of 
 the variance must be regarded as a waiver of 
 the objection. City of Elgin v. Kimball, 90 
 111. 356; Railroad Co. v. Estes, 96 111.470; 
 Society v. Eietsam, 97 111. 474. 
 
 The main ground of alleged error is that 
 when appellee rested his case the superior 
 court denied the motion of appellant to direct 
 the jury to return a verdict tor the defendant. 
 The gist of the action was the alleged negli- 
 gence of the defendant, through its servants, 
 and that such negligence was the proximate 
 cause of the injury to the plaintiff. There 
 was evidence before the jury tending to 
 prove both of these propositions. The toi-e- 
 man of appellant knew the gilder was 
 loose, and that it rested upon frosty and 
 slippery iron supports; and whether or not 
 it was culpable negligence, under such cir- 
 cumstances, to stand upon the supporting 
 girder, and in such close proximity to the 
 short and loose girder, and pull up timbers 
 from below with a rope, was a proper ques- 
 tion of fact for the determination of the jury. 
 As the cross-piece got up to where Lynch 
 was standing, not more than tliree or four 
 feet from the girder, the girder was seen to 
 turn on its end and fall. We are unable to 
 say, as matter of law, it was not a legitimate 
 inference and conclusion for a jury from this 
 testimony, taken in connection with the other 
 circumstances in proof, that the timber or 
 rope with which it was hauled came in con- 
 tact with the girder, and caused one end of it 
 to slide from its support. There was no error 
 in the action of the court in refusing to take 
 the case from the jury. 
 
 The court sustained objections to two 
 
 19T 
 
Case No. 68] 
 
 EELKVANCY. 
 
 questions asked of the witness Wight, and 
 such refusal is assigned as error. The ques- 
 tions were as follows: "Placing tlie center- 
 ing boards in position, wliat ettect would it 
 have as to any mass of plank resting on top 
 of the beams, with reference to its reaching 
 or falling below?" and, " Wlien the center- 
 ing beams are in position, can anything fall 
 from above down below?" Buch ruling was 
 not erroneous, and for two sufficient reasons. 
 In the first place, the rule is that, as to mat- 
 ters which do not so far partake of the nature 
 of a science as to require a course of previous 
 habit or study in order to an attainment of a 
 knowledge of tliem, theopinionsof witnesses, 
 though experts, are not admissible as evi- 
 dence. Pennsylvania Co. v. Conlan, 101 111. 
 93, and authorities there cited. Besides this, 
 the negligence here in issue was not in the 
 mere act of placing the centering boards in 
 position, but was in the alleged negligent 
 manner in which the servants of appellant 
 proceeded in getting ready tor the perform- 
 ance of such work. 
 
 It is not claimed it was error to refuse the 
 last instruction iu the series asked by ap- 
 pellant, but it is insisted the modification 
 made therein by the court rendered it eno- 
 neous. The modiiicatlon made was the inser- 
 198 
 
 tion of tlie word "sufficient." The conclu- 
 sion of the instruction, as given to the jury, 
 was as fol'ows: "If the fact of nejiligence be 
 doubtful from the evidence, the defendant is 
 entitled to the verdict. The fact of an acci- 
 dent having occurred is not of itself suffi- 
 cient evidence of negligence." It would 
 seem that the fact the girder did fall affords 
 some evidence that it was lying in such 
 condition and position upon the beams as 
 that it was liable to be precipitated below, 
 whfre appellee and others were at work, if a 
 moving body came in contact with it. The 
 servants of appellant knew it was theie, and 
 were fully advised that it was loose, and that 
 the irons which supported it were frosty and 
 slippery, and we see no pood reason why the 
 fact it actually fell should have been wholly 
 excluded from the jury in the consideration of 
 the question of the alleged negligence. The 
 court told the jury, in substance, that the 
 fact it fell did not establish negligence, 
 but, beyond that, left the question of negli- 
 gence to be determined by the jury upon all 
 the evidence before them. We are unable to 
 see that appellant has any cause of complaint 
 in this action of the court. We find no error 
 in ti-.o record, and the judgment of the appel- 
 late court is affirmed. 
 
opii^rioNS. 
 
 [Case Xo. 69 
 
 McKILLOP v. DT'I.UTn ST. RY. CO. 
 
 (55 N. W. 739, 53 Minn. 532.) 
 
 Supreme Court of Minnesota. June 21, 1893. 
 
 Appeal from district court, St. Louis coun- 
 ty; Bnsign, Jud^e- 
 
 Action by Alex-ancler McKillop against the 
 Duluth Street-Eailway Company to recover 
 for per.sonal Injuries received while plaintiff 
 was lying in a public highway on defend- 
 ant's track, in an unconscious condition. 
 Plaintiff had judgment, and defendant ap- 
 peals. Reversed. 
 
 Billson & Congdon, for appellant. Edson 
 & Bdson, for respondent. 
 
 GILFILLAN, C. J. The court b'elow erred 
 in excluding the opinions of the witnesses 
 that plaintiff was intoxicated. It was hard- 
 ly a question for expert testimony, so that — 
 the facts and circumstances, his acts, ap- 
 pearance, and speech, being detailed by other 
 witnesses — a witness might be called to state 
 whether, in his opinion, they indicated in- 
 toxication, for the matter being one of ob- 
 servation, and not of science or skill, the 
 jury can judge, from the details given, as 
 well as any one, to whom they might be 
 stated. . But there are certain conditions, 
 mental or physical, or both together, the in- 
 dications of which it is impossible for any 
 witness to adequately describe, so that the 
 relation of them shall have on the mind of 
 the jury the same effect that witnessing 
 them legitimately had on the mind of the 
 spectator. In such oases, from necessity, so 
 that the matter may be fully laid before the 
 jury, the spectator may state the effects 
 the acts, appearance, and speech had on his 
 mind; that is, may give his opinion as to the 
 condition they indicated. It is so in respect 
 to joy, grief, hope, or despondency, (Tobin v. 
 Shaw, 45 Me. 331;) friendliness or hostility, 
 (Blake v. People, 73 N. Y. 58(5;) fright, 
 (Brownell v. People, 38 Mich. 732; Darling 
 v. Westmoreland, 52 N. H. 401;) jests or 
 earnest, (Ray v. State, 50 Ala. 104;) offensive 
 or insulting manner, (Raisler v. Springer, 38 
 Ala. 703.) So that a person appears to be 
 well or ill, or acts sanely or otherwise. Can- 
 nady v. Lynch, 27 Minn. 435, 8 N. W. Rep. 
 164. So a witness not an expert, who tes- 
 tilies to acts and declarations showing an 
 opportunity to form an opinion, may give 
 his opinion, based on such facts, of mental 
 
 capacity. Woodcock v. Joluison, 3G Minn, 
 217, 30 N. W. Rep. 894. That another cause 
 of plaintiff's demeanor was suggested by the 
 evidence made no difference with tlie propri- 
 ety of allowing tlie witnesses to give their 
 opinions as to his intoxication. It was for 
 the jury to determine what caused such de- 
 meanor,— an injury or intoxication; and it 
 was necessary, in order to do so, that they 
 have all the evidence before them. If intox- 
 ication was the cause of plaintiff's fallin',', 
 and lying in a helpless condition, on defend- 
 ant's track, it was contributory negligence on 
 his part. 
 
 The defendant's offer specilied in the 
 fourth assignment of error was rightly ex- 
 cluded. A municipal CM-poration has, 
 through its council, contTol and charge of the 
 streets, and may regulate ihe laying of 
 street-railway tracks upon them; and if the 
 eouueil directs the railway company to lay 
 the tracks upon a specified level or grade, 
 and so laying them makes the street vmsafe 
 for ordinary travel, the municipal corpora- 
 tion would doubtless be liable for injuries 
 resulting therefrom. But it could hardly be 
 said that so laying them would be an act 
 of negligence on the part ef the railway 
 company. The offer did not propose to show 
 any such direction, or even authority, from 
 the council, but only that, the village engi- 
 neer having indicated by stakes a grade for 
 paving tlie street contemplated and contract- 
 ed for, the railway company, in anticipation 
 of sudh intended paving, laid its tracks In 
 accordance witii the grade thus indicated. 
 That the street was, some time in the fu- 
 ture, to be brought to tliat grade, was no 
 authority to the company to at once lay the 
 tracks according to it, if so doing would 
 render the street unsafe, and thus render- 
 ing it unsafe would be negligence with re- 
 spect to any one injured in consequence. 
 
 The evidence of the witness Labby, ob- 
 jected to, was proper. 
 
 As there must be a new trial, for the error 
 first above specified, it is unnecessary to con- 
 sider the assignments of error based upon 
 the charge of the court, further than to say 
 that in the part of the charge specified in 
 the ninth assignment the rule of care re- 
 quired of defendant, under 'the circum- 
 stances, might be understood by the jury 
 more strongly than, we suspect, the trial 
 court intended. Order reversed. 
 
 190 
 
Case No. 70] 
 
 KELEVANCY. 
 
 COXNECTICUT MUT. LIFE INS. CO. v. 
 LATHROP. 
 
 (4 Sup. Ct. 533, 111 V. S. G12.) 
 
 Supreme Court of the United States. May 5, 
 1884. 
 
 In Error to the Circuit Court of the Unit- 
 ed States for tlie Western District of Mis- 
 souri. 
 
 Jeff. Cliaudler, for plaiutifC in error. 
 Wallace Pratt and Jeff. Brumback, for de- 
 fendant in error. 
 
 HARLAN, J. This is a writ of error from 
 a judgment in favor of Helen Pitkin, the 
 beneficiary in two policies issued by the 
 Connecticut Mutual Life Insurance Company 
 upon the life of her husband,— one, on the 
 tenth day of August, 186G, for the sum of 
 $.j,000; and the other, on the twenty-fourth 
 day of September, 1873, for the sum of $423. 
 The insured, George B. Pitkin, died on the 
 twenty-ninth day of September, 1S78. After 
 the case came here, the beneficiary in the 
 policies died, and there was a revivor against 
 her personal representative. The defense 
 was the same as to each policy. Briefly stat- 
 ed, it is this: That the policy expressly pro- 
 vies that in case the insured shall, after its 
 execution, become so far intemperate as to 
 impair his health, or induce delirium tre- 
 mens, or should die by his own hand, it 
 shall be void and of no effect; that, after 
 its execution and delivery, he did become 
 so far intemperate as to impair his he.nlth, 
 and induce delirium tremens; also, that he 
 died by his own hand, because, with pre- 
 meditation and deliberation, he shot himself 
 through the heart with a bullet discharged 
 by himself from a pistol, by reason whereof 
 he died. Further, that the affirmative an- 
 swer by plaintiff, in her application for in- 
 surance, to the question whether the insured 
 was then and had always been of temperate 
 habits, being false and untrue, the contract 
 was annulled, because, by its terms, the 
 policy was to become void if the statements 
 and representations in the application— con- 
 stituting the basis of the contract between 
 the parties— were not in all respects true and 
 correct. The plaintiff, in her reply, put in 
 issue all the material allegations of the an- 
 swer, except that alleging the self-destruc- 
 tion of her husband; as to which she aver- 
 red that, "at the time he committed said act 
 of self-destruction, and with reference there- 
 to," he "was not in possession of his mental 
 faculties, and was not responsible for said 
 act." 
 
 At the close of the evidence introduced for 
 the plaintiff, the defendant, by counsel, mov- 
 ed the court to instruct the jury that upon 
 the pleadings and evidence the plaintiff could 
 not recover. That motion was denied, and 
 the action of the court— to which the de- 
 fendant at the time excepted— is assigned 
 for error. This instruction, it is claimed, 
 
 200 
 
 should have been given upon the ground 
 that the evidence disclosed no symptom 
 whatever of insanity upon the part of the in- 
 sured. But that position cannot be sustain- 
 ed upon any proper view of the testimony. 
 There certainly was evidence tending to 
 show a material, if not radical, change for 
 the worse in the mental condition of the in- 
 sured immediately preceding his death. In 
 the judgment of several who knew him in- 
 timately, and had personal knowledge of 
 such change, he was not himself at the time 
 of the act of self-destruction. Whether his 
 strange demeanor immediatelj' before his 
 death was the result of a deliberate, con- 
 scious purpose to feign insanity, so as there- 
 by the more readily to defraud the com- 
 pany, was a matter pectiliarly within the 
 province of the jury to determine. If the 
 refusal of the court to sustain the motion 
 would have been error, had there been an 
 entire absence of proof to sustain the plain- 
 tiff's suit, it is sufficient to say that there 
 was evidence of a substantial character tend- 
 ing to show that the insured was insane 
 when he took his life. 
 
 In Insurance Co. v. Rodel, 95 U. S. 238, 
 where the question was made as to the duty 
 of the court, on a motion by the defendant 
 for a peremptory instruction based wholly 
 on plaintiff's evidence, it was said that "if 
 there was any evidence tending to prove 
 that the deceased was insane when he took 
 the poison which caused his death, the judge 
 was not bound to, and, indeed, could not 
 properly, take the evidence from the jury. 
 The weight of the evidence is for them, and 
 not for the judge, to pass upon." 
 
 The case clearly comes within the rule an- 
 nounced in Insurance Co. v. Doster, 106 U. 
 S. 32, 1 Sup. Ct. 18, that "where a cause 
 fairly depends upon the effect or weight of 
 testimony, it is one for the consideration and 
 determination of the jui-y, under proper di- 
 rections as to the principles of law involved. 
 It should never be withdrawn from them 
 unless the testimony be of such a conclu- 
 sive character as to compel the court, in the 
 exercise of a sound legal discretion, to set 
 aside a verdict i-eturned in Opposition to it." 
 
 When the evidence was concluded on both 
 sides the defendant submitted requests for 
 instructions. Some of them were given and 
 some refused, but it does not appear from 
 the record which were given and which re- 
 fused. As the exception which was taken 
 related to the refused instructions, and since 
 it does not appear which of them belonged 
 to that class, none of the series asked by 
 defendant can be noticed. We may, how- 
 ever, remark that the charge of the court, 
 to which no exception was taken, embodied 
 all of defendant's instructions that were ap- 
 plicable to the case, and which could prop- 
 erly have been given. 
 
 This brings us to the consideration of the 
 substantial questions presented by the as- 
 signments of error. They relate to the ad- 
 
OPINIONS. 
 
 [Case No. 70 
 
 mission, against the objections of the de- 
 fendant, of certain evidence touctiing the 
 condition of the mind of the insured at or 
 about the time he destroyed his life. 
 
 Before the introduction of the particular 
 testimony to which the objections related, 
 there was, as we have already said, proof 
 tending to show that Pitkin was not entirely 
 sound in mind. Witnesses well acquainted 
 with him remarked the unusually excited, 
 wild expression of his face. A domestic in 
 his family testified that "he looked very wild 
 and frightened out of his eyes; he looked 
 like some one that was crazy." Withiu a few 
 hours before death he bade one witness, 
 whose store he visited, good-bye, saying that 
 he was "going to a country where there is no 
 return." To another witness, on the same 
 occasion, he appeared to be "out of his head; 
 kind of mad, insane." 
 
 At this stage of the case one Strein was in- 
 troduced as a witness for plaintiff. Pitkin 
 was in his saloon about 11 o'clock of the day 
 on which he took his life, and a few hours 
 only before his death. So much of his ex- 
 amination (omitting the questions) as is nec- 
 essary to a proper understanding of the ob- 
 jections made by plaintift' in error is here 
 given: "Answer. He asked for a glass of 
 wine, and I gave it to him. He said he 
 hadn't had a drink yet that day, or since 
 the one he had last night from me,— that 
 was a glass of wine. He said, 'I may look 
 queer this morning or drunk to other people, 
 but I ain't drunk.' He said, 'Some people 
 may think me drunk, but I am not; I am 
 not drunk in my body, but I am in my 
 mind.' He looked unusual to me. He had 
 on his old clothes, and his neck-tie was out 
 of shape, his face was red, and his eyes 
 staring at me, which made me think he was 
 quite out of his usual way. His appearance 
 and the look was quite different from his 
 usual appearance prior to' that time. He 
 looked, in his face, quite red, and his eyes 
 had quite another expression. He had them 
 open wide, with a look that was wild, and 
 he looked around the room awhile and walk- 
 ed up and down, and seemed very restless. 
 Pie would not stand at one place like he 
 usually did, but walked up and down. I 
 spoke a few words after that, but I did not 
 notice him very much, for I was very busy." 
 The witness being asked to state the impres- 
 sion made upon him by what he saw of 
 Pitkin's condition, the defendant objected 
 to the question as incompetent. But the ob- 
 jection was overruled, and an exceiition was 
 taken. The witness answered: "My im- 
 pression was that he seemed to be quite out 
 of his head that morning. I could not say 
 the reason. I didn't know then anything 
 about his disappointment; I found that out 
 afterwards." 
 
 Another witness, Mr. FeiTy, an attorney at 
 law, was introduced by the plaintiff. He saw 
 Pitkin the morning of the day he killed him- 
 self. What occurred was thus stated by him: 
 
 "I came down Broadway, walking, and Mr. 
 Pratt came down from his residence on Wash- 
 ington street, in a street car, and got out on 
 the corner of Sixth and Broadway, and we 
 went there in front of the office. Mr. Pitkin 
 was standing very near the door, and as we 
 passed up the stairway going to our office 
 we both said, 'Good morning' to him, and Mr. 
 Pratt says, 'Pit., why ain't you at church?' 
 Mr. Pitkin said, 'I am not going to church, 
 I am going to hell;' and we immediately 
 passed on up stairs and into the doorway, but 
 as we started up stairs Pitkin stuck his head 
 into the door and says, 'Do you want to send 
 any word to him"?' Mr. Pratt says, 'To 
 whom?' 'To the devil; I am going to hell,' 
 and he turned immediately and went out of 
 the door." Being asked how Pitkin looked 
 during that conversation7 he said that "he 
 seemed very much agitated and nervous; his 
 face was flushed; the pupil of his eye dilated 
 and bright, and there was no expression in 
 it." Against the objections of defendant he 
 was permitted to testify that the impression 
 left on his mind, from the conduct, actions, 
 manner, expressions, and conversation of Pit- 
 kin, was that "he was crazy, and didn't know 
 what he was doing." 
 
 Exception was also taken to the action of 
 the court In pei-mitting the witness Aldrich 
 to answer a certain question. He saw the de- 
 ceased a few moments before his death, and 
 observed that he "looked strange;" had "a 
 very peculiar look," one that he had never 
 seen before. It was "a wild look." Being 
 asked what impression Pitkin made upon him 
 by his manner and conduct at the time, he 
 answered, — the defendant's objection to the 
 evidence being overruled,— "I thought he was 
 out of his head." 
 
 It is contended, in behalf of plaintiff in er- 
 ror, that the imiDressions and opinions of these 
 non-professional witnesses as to the mental 
 condition of the insured, although accompa- 
 nied by a statement of the grounds upon which 
 they rested, were incompetent as evidence of 
 the fact of insanity. This question was sub- 
 stantially presented in Insurance Co. v. Rodel, 
 ubi supra, which was an action upon a life 
 policy containing a clause of forfeiture in case 
 the Insured died by his own hand. The is- 
 sue was as to his sanity at the time of the 
 act of self-destruction. Witnesses acquainted 
 with him described his conduct and appear- 
 ance at or about, and shortly before, his death. 
 They testified as to how he looked and acted. 
 One said that he "looked like he was insane;" 
 another, that his impression was that the in- 
 sured "was not in his right mind." In that 
 case the court said that "although such testi- 
 mony from ordinary witnesses may not have 
 great weight with experts, yet it was com- 
 petent testimony, and expressed in an in- 
 artificial the impressions which are usually 
 made by insane persons upon people of ordi- 
 nary understanding." The general rule un- 
 doubtedly is that witnesses are restricted to 
 proof of facts within their personal knowl- 
 
 201 
 
Case No. 70] 
 
 RELEVANCY. 
 
 edge, and may not express their opinion or 
 judgment as to matters -whicli the jury or the 
 court are required to determine, or which 
 must constitute elements in such determina- 
 tion. To this rule there is a well-established 
 exception in the case of witnesses having 
 special knowledge or skill in the business, art, 
 or science, the principles of which are involv- 
 ed in the issue to be tried. Thus the opinions 
 of medical men are admissible in evidence as 
 to the sanity or insanity of a person at a par- 
 ticular time, because they are supposed to 
 have become, by study and experience, famil- 
 iar with the symptoms of mental disease, and 
 therefore qualified to assist the court or jury 
 in reaching a, correct conclusion. And such 
 opinions of medical experts may be based as 
 well upon facts within their personal knowl- 
 edge, as upon a hypothetical case disclosed 
 by the testimony of others. But are there no 
 other exceptions to the general rule to which 
 we have referred? 
 
 Counsel for the plaintiff in error contends 
 that witnesses who are not experts in medical 
 science may not, under any circumstances, ex- 
 press their judgment as to tlie sane or insane 
 state of a person's mind. This position, it 
 must be conceded, finds support in some ad- 
 judged cases as well as in some elementary 
 treatises on evidence. But, in our opinion, it 
 cannot be sustained consistently with the 
 weight of authority, nor without closing an 
 important avenue of truth in many, if not in 
 every case, civil and criminal, which involves 
 the question of insanity. Whether an indi- 
 vidual is insane, is not always best solved by 
 abstruse metaphysical speculations, expressed 
 In the technical language of medical science. 
 The common sense, and, we may add, the 
 natural instincts of mankind reject the sup- 
 position that only experts can approximate 
 certaiuty upon such a subject. There are 
 matters of which all men have more or less 
 knowledge, according to their mental capacity 
 and habits of observation, — matters about 
 which they may and do form opinions suf- 
 ficiently satisfactory to constitute the basis 
 of action. While the mere opinion of a non- 
 professional witness, predicated upon facts 
 detailed by others, is incompetent as evidence 
 upon an issue of insanity, his judgment, based 
 upon personal knowledge of the circumstan- 
 ces involved in such an inquiry, certainly is 
 of value; because the natural and ordinary 
 operations of the human intellect, and the ap- 
 pearance and conduct of insane persons, as 
 contrasted with the appearance and conduct 
 of persons of sound mind, are more or less 
 understood and recognized by every one of 
 ordinary intelligence who comes in contact 
 with his species. The extent to which such 
 opinions should influence or control the judg- 
 ment of the court or jury must depend upon 
 the intelligence of the witness, as manifested 
 by his examination, and upon his opportuni- 
 ties to ascertain all the circumstances that 
 should properly affect any conclusion reached. 
 It will also depend, in part, upon the degree 
 
 202 
 
 of the mental unsoundness of the person, 
 whose condition is the subject of inquii-y; for 
 his derangement may be so total and palpable 
 that but slight observation is necessary to 
 enable persons of ordinary undevstanding to- 
 form a i-easonably accurate judgment as to 
 his sanity or insanity; in other cases, the 
 symptoms may be of such an occult character 
 as to require the closest scrutiny and the high- 
 est skill to detect the existence of insanity. 
 
 The truth is, the statement of a non-profes- 
 sional witness as to the sanity or Insanity, 
 at a particular time, of an individual, whose 
 appearance, manner, habits,' and conduct 
 came under his personal observation, is not 
 the expression of mere opinion. In form it is 
 opinion, because it expresses an inference or 
 conclusion based upon observation of the ap- 
 pearance, manner, and motions of another 
 person, of which a correct idea cannot well 
 be communicated in words to others without 
 embodying, more or less, the impressions or 
 judgment of the witness. But in a substan- 
 tial sense, and for eveiy purpose essential to- 
 a safe conclusion, the mental condition of an 
 individual, as sane or insane, is a fact, and the 
 expressed opinion of one who has had ade- 
 quate opportunities to observe his conduct and 
 appearance is but the statement of a fact;, 
 not, indeed, a fact established by direct and 
 positive proof, because in most, if not all 
 cases it is impossible to determine, with abso- 
 lute certainty, the precise mental condition of 
 another; yet, being founded on actual obser- 
 vation, and being consistent with common ex- 
 perience and the ordinary manifestations of 
 the condition of the mind, it is knowledge, 
 so far as the human intellect can acquire 
 knowledge upon such subjects. Insanity "is 
 a disease of the mind which assumes as many 
 and various forms as there are shades of dif- 
 ference in the human character." It is, as has 
 been well said, "a condition which impresses 
 itself as an aggi'egate on the observer," and 
 the opinion of one, personally cognizant of 
 the minute circumstances making up that ag- 
 gregate, and which are detailed in connec- 
 tion with such opinion, is, in its essence, only 
 fact "at short-hand." 1 Whart. & S. Med. Juiv 
 § 257. This species of evidence should be ad- 
 mitted, not only because of its intrinsic value, 
 when the result of observation by persons of 
 intelligence, but from necessity. We say 
 from necessity, because a jury or court, hav- 
 ing had no opportunity for personal observa- 
 tion, would otherwise be deprived of the 
 knowledge which others possess; but, also, 
 because, if the witness may be permitted to 
 state— as, undoubtedly, he would be where 
 his opportunities of observation have been 
 adequate— "that he has known the Individual 
 for many years; has repeatedly conversed 
 with him and heard others converse with 
 him; that the witness had noticed that in 
 these conversations he was incoherent and 
 silly; that in his habits he was occasionally 
 highly pleased and greatly vexed without a 
 cause; and that in his conduct he was wild,. 
 
ormiONS. 
 
 [Case Xo. 70' 
 
 irrational, extravagant, and crazy, — wbat 
 would this be but to declare the judgment or 
 opinion of the witness of what is incoherent 
 or foolish in conversation, what reasonable 
 cause of pleasure or resentment, and what 
 the indicia of sound or disordered intellect? 
 If he may not so testify, but must give the 
 supposed silly and incoherent language, state 
 the degrees and all the accompanying cir- 
 cumstances of highly excited emotion, and 
 specifically set forth the freaks or acts regard- 
 ed as irrational, and thus, without the least 
 intimation of any opinion which he has form- 
 ed of their character, where are such witness- 
 es to be found? Can it be supposed that 
 those, not having a special interest in the 
 subject, shall have so charged their memories 
 with these matters, as distinct, independent 
 facts, as to be able to present them in their 
 entirety and simplicity to the jury? Or, if 
 such a witness be found, can he conceal from 
 the jury the impression which has been made 
 upon his mind; and, when this is collected, 
 can it be doubted but that his judgment has 
 been influenced by manj', very many, circum- 
 stances which he has not communicated, 
 which he cannot communicate, and of which 
 he himself is not aware?" Clary v. Clary, 2 
 Ired. Law, 83. The jury, being informed as 
 to the witness' opportunities to know all the 
 circumstances, and of the reasons upon which 
 he rests his statement as to the ultimate gen- 
 eral fact of sanity or insanity, are able to 
 test the accuracy or soundness of the opinion 
 expressed, and thus, by using the ordinary 
 means for the ascertainment of truth, reach 
 the ends of substantial justice. 
 
 These views are sustained by a very large 
 number of adjudications in the courts of 
 this country, some of which are cited in the 
 margin, i In several of those cited the whole 
 subject was very fully considered in all its 
 aspects. While the cases are, to some ex- 
 tent, in conflict, we are satisfied that tne 
 rule most consistent with sound reason, and 
 sustained by authority, is that indicated in 
 this opinion. 
 
 Counsel for the plaintiff in error calls our 
 attention to the case of Wright v. Tatham, 5 
 Clark & F. 670, as an authority for the broad 
 proposition that non-professional witnesses 
 cannot give their opinions and impressions 
 
 1 Clary v. Clary, 2 Ired. Law, 83; Dunham's 
 Appeal, 27 Conn. 193; Grant v. Thompson, 4 
 Conn. 203; Hardy v. Merrill, 56 N. H. 227, sub- 
 stantially overruling Boardman v. Boardman, 
 47 N. H. 120; State v. Pike, 49 N. H. 399, and 
 State V. Archer, 54 N. H. 468; Hatha way's 
 Adm'r v. Insurance Co., 48 Vt. 350; Morse v. 
 Crawford, 17 Vt 499; Clark v. State, 12 Ohio, 
 483; Gibson v. Gibson, 9 Yerg. 830; Potts v. 
 House, 6 Ga. 324; Vanauken's Case, 10 N. J. 
 Eq. 190; Brooke v. Townshend, 7 Gill, 10; 
 De Witt V. Barly, 17 N. Y. 342, explaining 
 decision in same case in 9 N. Y. 371; Hewlett 
 V. Wood, 55 N. Y. 634; Clapp v. Fullerton, 34 
 N. Y. 190; Rutherford v. Morris, 77 111. 397; 
 Duffield V. Morris' Ex'r, 2 Har. 384; Wilkin- 
 son V. Pearson, 23 Pa. St. 119; Pidcock v. 
 Potter, 68 Pa. , St. 342; Doe v. Reagan, 5 
 Blackf. 218; Dove v. State, 3 Heisk. 348; But- 
 
 concerning the state of a person's mind, 
 even in connection with the facts within 
 their personal knowledge, upon which such 
 opinion is based. On a question of the com- 
 petency of a party to make a will, certain 
 letters, written to that party by thii-d per- 
 sons, who had died before they were offered 
 as evidence, and which letters were found 
 many years after their date among the tes- 
 tator's papers, were held, in that case, not 
 to be admissible without proof that he acted 
 on them. Whether the opinions of non-ex- 
 perts, in connection with a statement, under 
 oath, of the facts, are admissible upon an in- 
 quiry as to the insanity of an individual, 
 was not involved or determined in that case. 
 On the contrary, the observations made by 
 some of the judges, in illustration of their 
 opinions upon the precise point in judgment, 
 would indicate a concurrence in the general 
 views we have expressed. After stating that 
 the letters were offered as, evidence of the 
 opinions of the writers, Baron Alderson said: 
 "The objection of their admissibility is that 
 this opinion is not upon oath, nor is it pos- 
 sible for the opposite pai'ty to test by cross- 
 examination the foundation on which it 
 rests. The object of laying such testimony 
 before the jury is to place the whole life 
 and conduct of the testator, if possible, be- 
 fore them, so that they may judge of his ca- 
 pacity; for this purpose .you call iiersons 
 who have known liim for years, who have 
 seen him frequently, who have conversed 
 with him or corresponded witli him. After 
 having thus ascertained their means of 
 knowledge, the question is put generally as 
 to their opinion of his capacity. I conceive 
 this question really means to involve an In- 
 quiry as to the effect of all the acts which 
 the witnesses have seen the testator do for 
 a long series of years, and the manner in 
 which he was, during that period, treated 
 by those with whom he was living in fa- 
 miliar intercourse. This is not properly 
 opinion, like that of experts; but rather a 
 comijendious mode of putting one instead of 
 a multitude of questions to the witness un- 
 der examination, as to the acts and conduct 
 of the testator." 5 Clark & F. 720. And 
 Baron Parke: "These letters are sufficiently 
 proved to have been written and sent to the 
 house of the deceased by persons now dead, 
 
 ler V. St. Louis Life Ins. Co., 45 Iowa, 93; 
 People V. Sanford, 43 Oal. 29; State v. Khnger, 
 46 Mo. 229; Holcomb v. State, 41 Tex. 125; 
 McClackey v. State, 5 Tex. App. 320; Norton 
 V. Moore, 3 Head, 482; Powell v. State, 2.-| 
 Ala. 28; 1 Bish. Cr. Proc. §§ 536-540; 1 Whart. 
 & S. Med. Jur. S 257; Whart. Ev. § 510 et 
 seq.; 1 Redf. Wills, c. 4, pt. 2, in a recent edi- 
 tion of which (page 145, note 24) it is said, 
 touching the decision in Hardy v. Merrill, ubi. 
 supra: "There will now remain scarcely any 
 dissentients among the elder states; and those 
 of recent origin, whose decisions have been 
 based upon the authority of the earlier decisions 
 of some of the older states, which have since 
 abandoned the ground, may also be expected to 
 change." See, also. May v. Bradlee, 127 Mass 
 414; Com. v. Sturtivant, 117 Mass. 122. 
 
 2oa 
 
Case No. 70] 
 
 RELEVANCY. 
 
 and they indicate the opinion of the writers 
 that the alleged testator was a rational per- 
 son, and capable of doing acts of ordinary 
 business. But it is perfectly clear that, in 
 this ease, an opinion not given upon oath in 
 a judicial inquiry between parties is no ev- 
 idence; for the question is, not what the 
 capacity of the testator was reputed to be, 
 but what it really was in point of fact; and, 
 though the opinion of a witness upon oath 
 as to that fact might be asked, it would be 
 only a compendious mode of ascertaining the 
 result of the actual observation of the wit- 
 ness, from acts done, as to the habits and 
 demeanor of the deceased." Id. 735. 
 
 One other assignment of error remains to 
 be considered. It relates to the admissions 
 of the statements made by two witnesses of 
 what passed between each other on the oc- 
 casion of their seeing and conYer.s;ing with 
 the deceased, within an hour or two before 
 he shot himself. They detailed what pass- 
 ed between them and the deceased, describ- 
 ing the latter's appearance and condition as 
 indicating, in their judgment, that he was 
 not in his right mind. As he left the pres- 
 ence of these witnesses, one of them re- 
 
 204 
 
 marked to the other that "Pitkin is not him- 
 self; George looks kind of crazy." The oth- 
 er, in response, expressed substantially, 
 though in different language, his concur- 
 rence in that opinion. To the admission of 
 this brief conversation between the witness- 
 es, on the occasion referred to, the defend- 
 ant objected, but the objection was over- 
 ruled, and an exception taken. We do not 
 think there was in this any error to the prej- 
 udice of the substantial rights of the compa- 
 ny. The witnesses, when under oath, ex- 
 pressed the same opinion as to the condition 
 of the deceased. What passed between them 
 at the time to which their testimony refer- 
 red was a pai't of what occurred on the oc- 
 casion when they saw the deceased, and 
 may well have been repeated to the jury, 
 as showing that their opinion as to the men- 
 tal condition of the deceased was not then 
 presently formed, but was one formed at tne 
 very moment they saw him, within a very 
 few hours before his death. 
 
 Upon the whole case we perceive no error 
 in the proceedings of which plaintiff in er- 
 ror may complain, and the judgment is af- 
 firmed. 
 
opmiONS. 
 
 [Case No. 71 
 
 WILLIAMS T. SPENCER et al. 
 
 (23 N. B. 105, 150 Mass. 346.) 
 
 Supreme Judicial Court of Massachusetts. 
 Worcester. Jan. 1, 1890. 
 
 Exceptions from supreme judicial court, 
 Worcester county; Charles Devens, 
 Judge. 
 
 An appeal from the decree ol the probate 
 court for Worcester county, admitting to 
 probate the will of Polly Crosby, and ap- 
 pointing petitioner administrator. The 
 will was made on March 25, 1885. An issue 
 was submitted to the jury whether testa- 
 trix was sane when the will was made. Ap- 
 pellants proposed to ask one of the attest- 
 ing witnesses what his present opinion 
 was as to thesoundness of testatrix's mind 
 at the time of the execution of the will. 
 The witness having testified that he formed 
 no opinion on the subject at the time he 
 witnessed the will, but had an opinion at 
 the time of the trial, which liad been 
 formed, in part, from what hehad seen and 
 heard since, and in part from what he saw 
 at the time, the question was excluded, 
 and the appellants excepted. Petitioner 
 called one Upham, at whose house testa- 
 ti'ix visited from April 20, 18S5, till August 
 22, 1885, who testified in chief that he saw 
 testatrix a few times after her husband 
 died, November, 1884, and that while she 
 was at his house he never saw any change 
 In her intelligence, coherence of speech, or 
 memory, and gave accounts of several con- 
 versations and acts tending to show sound- 
 ness of mind. To impeach his evidence ap- 
 pellants offered evidence tending to show 
 that since testatrix's death the witness had 
 declared that he had never seen her, since 
 her husband died, whenshewas fittomake 
 a will. The evidence was excluded, and 
 the appellants excepted. The jury an- 
 swered the issue in favor of the sanity of 
 the testatrix. 
 
 F. P. Goulding and J. M. Cochran, for 
 appellants. W. S. B. Hopkins, for appel- 
 lee. 
 
 KNOWLTON, J. How far the opinion of 
 witnesses as to the mental condition of a 
 testator may be received in evidence in 
 proceedings to establish the validity of a 
 Willis a question about wliich there is a 
 great conflict of authority. In this com- 
 monwealth, and in the courts of common 
 law in England, and in many of the states 
 I of this country, it is held that an ordinary 
 I witness cannot give a mere opinion, what- 
 ever opportunities of observation he may 
 have had. On the other hand, in the eccle- 
 siastical courts of England, and in many 
 courts in the United States, all witnesses 
 have been permitted to give, not only facts 
 upon which an opinion may properly be 
 formed, but their opinions founded on those 
 facts. It is universally held thatan attest- 
 ing witness may give his opinion, formed at 
 the time, as to the sanity or insanity of the 
 testator when the will was executed. In 
 \ those courts where opinions are admitted 
 on the ground that conclusions in regard 
 to the mental condition of another, formed 
 by one who has had an opporttniity of ob- 
 serving him, are in theai-selves valuable 
 and unobjectionable as evidence, there may 
 
 be good reasons for holding that the final 
 opinion of the witness at the time of the 
 trial should be received. But where a dif- 
 ferent doctrine is held the opinions of at- 
 testing witnesses to a will stand upon a 
 peculiar ground. The witnesses areehosen 
 by the testator, and are thereby, under the 
 law, charged witli an important duty In 
 relation to the execution and proof of the 
 will. It maybe presumed that, in the per- 
 formance of that duty, they will observe 
 carefully the appearance of the testator at 
 the time, and form an opinion as to his 
 sanity. That opinion naturally and prop- 
 erly may determine their action in signing 
 or refusing to sign as witnesses. It is re- 
 garded asafactof some significance, which 
 enters into the transaction, and which the 
 court should be permitted to know and 
 consider, like any other fact touching the 
 execution of the instrument. Upon this 
 theory, the opinion of an attesting witness, 
 formed at another time, beforeor after the 
 execution of the will, should stand like 
 that of any other witness. It might be 
 competent, in cross-examination, to affect 
 the value of his testimony as to his conclu- 
 sion at the time of attestation, but it could 
 not be received on account of the value to 
 be attached to it as a mere opinion. In 
 Poole V.Richardson, 3 Mass. -330, the court 
 permitted the witnesses to give "the judg- 
 ment they formed of the soundness of the 
 testator's mind at thetimeof executing the 
 will." In Robinson v. Adams, 62 Me. 369, 
 409, referring to the time of execution of a 
 will, the court say: "It is the opinion! 
 then formed that is admissible." In Clapp) 
 V. Fullerton, 34 N. Y. 190, it is said of the 
 facts testified to by the witnesses, which 
 occurred at the time of attesting, that " it 
 is legitimate to give them such additional 
 weight as may be derived fi'om the con- 
 viction they produced at the time." Jar- 
 man states the rule to be that "subscrib- 
 ing witnes.'^es are permitted to testify as 
 to the opinion they form of the testator's 
 capacity at the time of executing his will." 
 1 Jarm. Wills, 74. Redfield says: "It is 
 admitted in nearly all the cases that the 
 subscribing witnesses to the will are com- 
 petent to express an opinion of the testa- 
 tor's axjparent sanity at the time of execu- 
 tion." 1 Redf. Wills, 140. The only case to 
 which we nave been referred which decides 
 that a subscribing witness may give an 
 opinion formed afterwards is Runyan v. 
 Price, 15 Ohio St. 1; and in Ohio, all wit- 
 nesses who have had anopportunity of ob- 
 serving a testator are permitted to give 
 their opinions, founded on what they have 
 seen. We are of opinion that, under the 
 authorities in this commonwealth, the 
 testimony of the attesting witness was 
 rightly excluded. 
 
 Whether the declaration of the witness 
 Upham, offered to contradict him, should 
 have been received, depends upon whether 
 it was inconsistent with his former testi- 
 mony. If it be assumed that the expres- 
 sion, "fit to make a will," referred to the 
 mental condition of the testatrix, and that 
 it is generally known that a person of full 
 age and sound mind is fit to make a will, 
 and if we disregard the differences of opin- 
 ion that may be presumed to exist as to 
 what constitutes soundness of mind or fit- 
 
 205 
 
Case No. 71] 
 
 RELEV'ANCy. 
 
 ness to make a will, we cannot say that 
 the declaration was contradictorj- to the 
 previous testimony. It may or may not 
 have been, according as the facts not re- 
 ported were of one kind or of another. 
 
 The witness "gave accounts of several 
 ■conversations and acts tending to show 
 .soundness of mind." That certain facts, 
 indicating that thetestatrix was of sound 
 mind, could be shown by his testimony, 
 did not necessarily imply that he believed 
 hertobesane. We do not know the fullsig- 
 niflcance of those acts and conversations, 
 and other facts within his knowledge may 
 have shown that she was insane. Upon 
 this ground the case of Hubbell v. Bissell, 
 2 Allen, 196, is authoi'ity in favor of the rul- 
 ing. Nor uijon the facts reported can we 
 sa.y that histestimonythat "he never saw 
 any change in her intelligence, coherence of 
 
 206 
 
 speech, or memory," while she was at his 
 house, after the death of her husband, 
 proves that he believed her to be fit to 
 make a will. So far as the bill of excep- 
 tions shows, and so far as we have infor- 
 mation from any source, she may have been 
 all her lite of such mental capacity and 
 condition as to make it doubtful whether 
 she was ever of sound mind, and the wit- 
 ness may have always considered her un- 
 fit to make a will. The unreported facts 
 of the case may have been such as to make 
 the evidence competent. If the testimony 
 had been received, and the appellee had ex- 
 cepted, we should have assumed, on this 
 bill of exceptions, that they were. But 
 against the excepting party, who must es- 
 tablish the error on which he relies, we 
 must assume that they were not. Excep- 
 tions overruled. 
 
EXl'EUTS. 
 
 [Case No. 72 
 
 LOUISVILLE. N. A. & C. E. CO. v. WOOD. 
 
 (14 N. E. 572, 113 Ind. 544.) 
 
 Supreme Court of Indiana. Dec. '21, 1887. 
 
 Appeal from circuit court, Wasliington 
 county; T. S. Collins, Judge. 
 
 This was an action brought by Lizzie 
 Wood against the Louisville, New Albany 
 & Chicago Kailroad Company for injuries 
 caused by the negligence of a conductor on 
 one of the company's trains. The plaintiff 
 recovered judgment, and the defendant ap- 
 pealed. 
 
 Geo. W. Easley, Geo. W. Friedley, and T\\ 
 H. Russell, for appellant. Voyles & Morris 
 and John A. Zaring, for appellee. 
 
 ELLIOTT, J. The material facts stated 
 in the appellee's complaint are these: On 
 the twenty-first day of October, 1882, the 
 appellee purchased a ticket, and entered 
 one of the appellant's passenger trains. 
 The ticket entitled her to a passage from 
 Salem to Campbellsburg. At the place of 
 her destination, the appellant failed and 
 refused to stop the train a sufficient length 
 of time to enable her to leave it; but, hav- 
 ing stopped the train, the conductor who 
 had charge thereof, "before the plaintiff! 
 had sufficient time to get safely off the 
 cars, and while the plaintiff was standing 
 on the pl.itform ot the cars, which point 
 she had reached while the train was not in 
 motion, signaled the train so soon as she 
 (the plaintiff) had reached the platform, to 
 move on. The engineer did obey the signal, 
 and did start the train in motion before the 
 plaintiff could get off, and while she was 
 standing on the platform. After the en- 
 gineer had started the ti-ain, the conductor 
 willfully, carelessly, and improperly seized 
 her, and, without any fault or negligence 
 on her part whatever, wrenched her off the 
 steps, and jerked her to the ground," caus- 
 ing her to sustain very great bodily injury. 
 
 We cannot perceive the slightest ground 
 for the contention of counsel that the com- 
 plaint is had. The carrier clearly violated 
 a legal duty in not stopping the train a 
 sufficient length of time to permit the ap- 
 pellee to alight in safety. Railroad Co. v. 
 Buck, 96 Ind. 346, Railroad Co. v. Carper, 
 (May Term) 14 N. E. 3.52. The conductor 
 in jerking the appellee from the train was 
 guilty of a tort while engaged in the line 
 of his duty, and the appellaiit is unques- 
 tionably liable for such a tort. This lia- 
 bility exists even though the tort was a 
 negligent, and not a willful, one. Railroad 
 Co. V. Jackson, 81 Ind. 19; Railroad Co. 
 V. Kelly, 92 Ind. 371; Railway Co. v. Sav- 
 age, 110 Ind. 156, 9 N. E. 85; Railroad Co. 
 V. Carper, supra, and cases cited. Counsel 
 say: "There is no averment that the plain- 
 tiff was invited or directed to alight at the 
 point she did, so as to bring the case with- 
 in Railway Co. v. Farrell, 31 Ind. 408." 
 
 The halting of the train at the station to 
 which the appellant undertook to carry the 
 appijUee was an implied invitation to alight; 
 so that, even if the complaint proceeded on 
 the theory that it is assumed by counsel it 
 does, it would be good. The theory, how- 
 ever, on which it does proceed is that the 
 conductor in charge of the train heedlessly 
 and wrongfully pulled the appellee from it 
 while it was in motion. The cases we have 
 cited show beyond all controversy that the 
 conductor in the management of the train, 
 and in caring for passengers in entering 
 and aUghting from the train. Is the repre- 
 sentative of the company in whose service 
 he is engaged, so that the complaint is good 
 on the theory on which it does proceed. 
 Undoubtedly, there must be, as counsel as- 
 sert, a connection between the negligence 
 and the injury (Pennsylvania Co. v. Hensil, 
 70 Ind. 569; Railway Co. v. Conn, 104 Ind. 
 CA, 3 N. E. 036); but we think it too clear 
 to require discussion that the complaint 
 dC'Cs show that the tort of the conductor 
 caused the appellee's injui-y. 
 
 It is said by counsel: "While the carrier 
 is responsible for negligence willfully or 
 carelessly inflicted ujion passengers by serv- 
 ants employed in the performance of du- 
 ties within the general scope of their em- 
 ployment, the question in such cases is 
 whether the servant, when he inflicted the 
 injury, was acting within the line of his 
 employment; not whether the particular 
 act was authorized or not. Railroad Co. 
 V. Kelly, 'J2 lud. 371." We fully assent to 
 the rule as counsel state it, but we cannot 
 agree that they give it a correct applica- 
 tion. AVe have already shown that the con- 
 ductor's act AA-as within the scope of . his 
 employment, so that the rule which coimsel 
 invoke is decisiv(jly against them. It is 
 also said by counsel that "the case of Rail- 
 road Co. V. Jackson, 81 Ind. 20, in its dic- 
 tum, goes too far;" but counsel are in error, 
 for that case states the mle as counsel con- 
 cade it, !ind Is abundantly supported by au- 
 thority. Railway Co. v. Savage, supra. 
 
 It is further contended that, as the com- 
 plaint does not directly allege that the con- 
 ductor was acting within the scope of his 
 employment, the complaint is bad, and we 
 are referred to the case of Helfrich v. Wil- 
 liams, 84 Ind. 553. The ' plain answer to 
 this is that the facts stated do show that 
 the conductor was acting within the line 
 of his duty when he pulled the passenger 
 from the train, instead of affording her an 
 opportunity to safely alight, as it was his 
 duty to do. 
 
 Ite morning after the injury occurred, 
 Di". Rife was called to give the appellee 
 medical attention, and he testified that she 
 told him "what her trouble was." This 
 testimony was competent. In order to en- 
 able a physician to intelligently prescribe 
 or advise, he must be informed of the pains 
 suffered by his patient, and where they are 
 
 207 
 
Case No. 72] 
 
 UFXEVANCY. 
 
 located. To this effect the authorities uni- 
 formly go. Turnpilie Co. v. Andrews, 102 
 Ind. 138, 1 N. E. 364, and cases cited; Rail- 
 road Co. V. Newell, 104 Ind. 264, 3 N. E. 
 S36, and cases cited; Railway Co. v. Palvey, 
 104 Ind. 409, 3 N. E. 389, and 4 N. E. 908. 
 AH that the appellee testified that she told 
 her physician was what her pains were, 
 and in what part of her body they were 
 located. Counsel are mistaken in asserting 
 that Dr. Rife was not called as a physician, 
 for he was called in that capacity, and In 
 that capacity prescrihed for the appellee. 
 
 The appellee, while on the witness stand 
 giving testimony, was allowed to remove a 
 • shawl from her feet, and exhibit them to the 
 jury. There was no error in permitting this 
 to be done. The text writers and the deci- 
 sions all agree that such an exhibition is not 
 improper. Dr. Wharton says: "Injury to 
 the person may also be proved by inspection. 
 Thus, in an action to recover damages for 
 an injury to a limb, the injured limb may be 
 exhibited on trial." Whart. Cr. Ev. § 312. 
 Mr. Best, speaking of this species of evi- 
 dence, denominates it "real evidence," and 
 says: "Immediate evidence is where the 
 thing which is the source of the evidence 
 is present to the senses of the tribunal. This 
 is of all proof the most satisfactory and con- 
 vincing." 1 Best, Ev. (Morgan's Ed.) 307. 
 The old writers often speak of such evidence, 
 and in Hale, P. C. 633, a notable instance is 
 given of its force. Mr. Taylor collects a 
 number of cases, affirms that the species of 
 evidence here under discussion is always 
 competent, and assigns to it the highest 
 rank. 1 Tayl. Ev. § 512. An American au- 
 thor, discussing the subject, says: "The in- 
 jured member may be exhibited to the jury." 
 Abb. Ti'. Ev. 599. In a recent article by 
 Judge Thompson, entitled "Trial by Inspec- 
 tion," many cases are collected, all holding 
 that exhibitions of persons or things are 
 proper. 25 Cent. Law J. 3. Henry Wade 
 Rogers, in an article entitled "Profert of the 
 Person," also discusses the subject, and col- 
 lects many authorities, all agreeing that ex- 
 hibitions of injuries are not improper. 15 
 Gent. Law J. 2. Cases on the general sub- 
 ject are also collected in Thurman v. Bert- 
 ram, 20 Alb. Law J. 151. In Osborne v. 
 City, 32 Fed. 36, it was held not error for a 
 surgeon to thrust a pin into the side of a 
 person, alleged to be paralyzed, in the pres- 
 ence of the jury. Without further comment, 
 we refer to other cases which are directly 
 in point: Schroeder v. Railroad Co., 47 Iowa, 
 375; Mulhado v. Railroad Co., 30 N. Y. 370, 
 and note; State v. Wieners, 66 Mo. 29. The 
 principle has been asserted in many cases 
 by this court. Car Co. v. Parker, 100 Ind. 
 181; Story v. State, 99 Ind. 413; McDonel 
 V. State, 90 Ind. 320; Short v. State, 63 Ind. 
 376; Beavers v. State, 58 Ind. 530. Counsel 
 for the appellant, although they argue the 
 question at length, cite only a single case, 
 that of Ihinger v. State, S3 Ind. 251; but, as 
 
 208 
 
 shown in Car Co. v. Parker, supra, that case 
 is not In point, for the reason that the only 
 question decided arose upon an instruction. 
 More nearly in point are the cases of Rob- 
 inius V. State, 63 Ind. 235; Swigart v. State, 
 64 Ind. 598; and Bird v. State, 104 Ind. 384, 
 3 N. E. 827,— but these cases form an excep- 
 tion to the general rule. In those cases, the 
 question was whether the personal appear- 
 ance of a party could be considered by a 
 jury in determining a person's age, and it 
 was held that it could not. These cases 
 have been vigorously assailed by many writ- 
 ers and courts; but we do not feel it nec- 
 essary to depart from them, for we think 
 they are distinguishable from our other cases, 
 as well as from the present case. As said 
 of Robinius v. State, in one of our former 
 cases: "There is a distinction between such 
 a case and the present, for, where age is the 
 material question, as it was in the case 
 cited, the decision upon inspection really de- 
 termines the whole question; while, in such 
 a case as the present, the inspection of the 
 vrounded member simply illustrates and 
 makes clear the testimony of the party, and 
 assists in determining the character of one 
 of the facts In the case." Car Co. v. Parker, 
 supra. To what was there said we may 
 add that here the exhibition of the injured 
 member affects only the extent and charac- 
 ter of the injury, which is only a single fact 
 in the case; while, in a case where the de- 
 cision depends upon the age of a party, the 
 opinion of the jury upon inspection conclu- 
 sively settles the whole question, thus ef- 
 fectually depriving the party aggrieved of 
 the benefit of an appeal. But, in a case like 
 this, the inspection of the injured part set- 
 tles nothing more than the extent and char- 
 acter of the injury, if, indeed, it can be 
 justly said to settle so much. At most, then, 
 an inspection of an injured limb does no 
 more than supply evidence upon a single 
 fact, and it does not deprive the party of 
 any substantial right on appeal; for it is 
 conclusively settled that the appellate court 
 will not weigh the evidence in any case 
 where there is a conflict. It is obvious, 
 therefore, that the case under discussion is 
 very different from one in which age de- 
 cisively determines the whole controversy. 
 It is evident that the learned counsel have 
 expended much labor on this point, and, as 
 they cite only the single case we have re- 
 ferred to, we may well infer that there are 
 no others that lend any support to their posi- 
 tion. We have ourselves given the subject 
 very careful study, and our search has not 
 revealed a solitary authority that opposes, 
 directly or indirectly, the doctrine that it is 
 competent to exhibit an injured limb to the 
 jury. It certainly has always been the prac- 
 tice, as Mr. Chitty says, to exhibit models, 
 articles of apparel, or other chattels; and the 
 case before us is the same in principle. 
 
 Miss Drumond testified that she was ac- 
 quainted with the appellee; described her 
 
3 
 
 EXPERTS. 
 
 [Caf5e jS'o. 
 
 personal appearance and physical condition 
 previous to her injury. She also described 
 the appellee's condition immediately after 
 the accident, and for a few days afterwards. 
 After she had testified to these facts, she, 
 stated that she saw the appellee a month 
 afterwards; that she (the appellee) had 
 grown worse, and the witness described her 
 condition as it then existed. If this case 
 was one requiring a non-expert witness to 
 state facts before expressing an opinion, we 
 should have no hesitation in holding that the 
 facts stated were sufficient to entitle the wit-A 
 ness to express an opinion. But we dO' not 
 understand that upon such a question a 
 knowledge of facts is required to be stated 
 in advance, or that the witness must be ah 
 expert. Turnpike Co. v. Andrews, supra. 
 In Hardy v. Merrill, 56 N. H. 227, a very 
 learned opinion was delivered, in which very 
 many decisions of the English and American 
 courts were cited; and it was said, among 
 other things, that "all concede the admissi 
 bility of the opinions of non-professional 
 men upon a great variety of unscientific 
 questions arising every day, and in every] 
 judicial inquiry. There are questions of iden- 
 tity, handwriting, quantity, value, weight, 
 measure, time, distance, velocity, form, size, 
 age, strength, heat, cold, sickness, and 
 health." Dr. Wharton lays down a like 
 rule, and cites many authorities. 1 AVhart. 
 Ev. § 513. Other text writers assert the 
 same rule. Hog. Exp. Test. § 3; Lawson, 
 Exp. Ev. 470. Counsel cite upon this point 
 two cases. The first of these (Com. v. Sturt- 
 ivant, 117 Mass. 122) bears upon the ques- 
 tion here under discussion, inasmuch as it 
 decides that, (1) where the trial court ad- 
 judges that a witness is qualified to give an 
 opinion, the appellate court cannot review 
 the decision; (2) that it is competent for a 
 witness to give an opinion as to the health 
 of a party; and (3) that it is not improper to 
 call upon him to describe specifically the 
 matter of which he speaks. In discussing 
 the second of these propositions, the court, 
 after stating the general rule that non-ex- 
 pert witnesses may express opinions in many 
 cases, says: "It is competent for a witness 
 to testify to the condition of health of a 
 person; that he is ill or disabled, or has a 
 fever, or is destitute, or in need of relief. 
 Parker v. Steamboat Co., 109 Mass. 449; Wil- 
 kinson V. Moseley, 30 Ala. 562; Barker v. 
 Coleman, 35 Ala. 221; Autauga Co. v. Davis, 
 32 Ala. 703." As we read the case cited, it 
 lends counsel no support whatever, but, on 
 the contrary, is strongly against them. The 
 court fully adopts the view expressed in 
 Steamboat v. Logan-, 18 Ohio, 378, that, "it 
 is not true, as a legal proposition, that no 
 one but an expert can give an opinion to a 
 jury." The second of the cases cited (Reid 
 V. Insurance Co., 58 Mo. 425) is not well con- 
 sidered, as there is neither argument nor 
 authority adduced. The witness in that case 
 was asked as to whether the assured was in 
 
 WILGUS,BV. — 14 
 
 good health, and the court simply held that 
 the question was incompetent; saying that 
 "the question involved a mere conclusion, 
 and was objectionable." This is not the law, 
 for every answer of a witness to such a 
 question is necessarily a conclusion, and yet, 
 as we have seen, it is well settled that such 
 a conclusion is competent. Turnpike Co. v, 
 Andrews. It is said, however, that the evi- 
 dence should have been excluded, because it 
 permitted the witness to institute a com- 
 parison. There is no strength in tliis posi- 
 tion. The testimony of the witness was di- 
 rected to the condition of the appellee a 
 ^ month subsequent to her injury, and, after 
 fully describing it, the v/itness said that it 
 was worse than it was immediately after the 
 accident. In determining whether an in- 
 jured person is grov.'ing better or worse, a 
 non-expert witness must necessarily express 
 an opinion, for, as the cases we have cited 
 hold, the fact is one that cannot be described 
 by any other than an expei't witness. Any 
 witness of ordinary intelligence may be able 
 to state that a sick or wounded person has 
 grown worse, or has improved,, without being 
 able to give an accurate description of his 
 condition, and this bi'ings the case fully 
 within the authorities. Undoubtedly, the 
 facts on which the conclusion rests may be \ 
 asked for on cross-examination; but the 
 opinion is not incompetent merely because 
 the witness cannot adequately state the 
 grounds on which it rests, although the fail- 
 ure to do so may, perhaps, weaken its pro- 
 bative force. But in this case the facts 
 were as fully stated as any non-expert could 
 possibly state them; so that, even if we were 
 wrong in relying on the authorities we have 
 cited, the appellant cannot prevail, for the 
 case is fully within the rule that, where a 
 non-expert witness states facts on which his 
 opinion is based, the opinion is competent. 
 
 One of the medical witnesses who had seen 
 and examined the appellee, and who had de- 
 scribed her condition, was asked: "What, 
 in your oiDinion as a medical expert, pro- 
 duced the symptoms you sav,' in her case?" ; 
 There was no error in permitting this ques- 
 tion to be asked and answered. Railway 
 Co. V. Falvey, 104 Ind. 409, 3 X. E. 389, and 
 4 N. E. 908, and authorities cited. Railway 
 Co. V. Savage, supra. If it were conceded 
 that Van Deusen v. Newcomer, 40 Jlich. 120, 
 does decide what the appellant claims, and 
 that it Is sound, it would not avail the ap- 
 pellant, for here the medical expert did detail 
 the facts within his knowledge to the jui'j'. 
 Haggerty v. Brooklyn, 61 N. Y. 624, cited 
 by appellant, simply decides that it was not 
 competent to ask a non-expert v.-itness "if 
 the conductor did all in his power to avoid 
 an accident." 
 
 A long hypothetical question was asked Dr. 
 C. W. Murphy, and it is objected that it did 
 not embrace all the evidence in the case. 
 It is settled beyond controversy that a party 
 who propounds an hypothetical question may 
 
 209 
 
Case No. 72] 
 
 KELEVANCY. 
 
 I assume sucli facts within tlie range of the 
 evidence as lie believes the evidence tends to 
 establish. Raihvaj- Co. v. Falvey. 104 Ind. 
 412, 3 N. E. ;«). and 4 N. E. 908, and au- 
 thorities cited; Goodwin v. State, 90 Ind. 
 5.50, and authorities cited; Elliott v. Russell, 
 92 Ind. 526; Guetig v. State, 66 Ind. 94. Mr. 
 Rogers, in discussing this question, says: 
 "If framed on the assumption of cei-taiu 
 facts, counsel may assume the facts in ac- 
 cordance with his theor.v of them; it not be- 
 ing essential that he should state the facts 
 as they actually exist." Exp. Test. 39. An- 
 other author says: "It is the privilege of 
 counsel in such cases to assume, with the 
 limits of the evidence, any state of facts 
 which he claims the evidence justifies, and 
 have the opinion of the expert upon the 
 facts assumed." Lawson, Exp. Ev. 153. Coun- 
 sel say; "The hj-pothesis should include the 
 substance of all the evidence." In support 
 of this proposition, they refer us to Com. v. 
 Rogers, 7 Mete. (Mass.) 500, and People v. 
 Lake, 12 N. Y. 302. Neither of these cases 
 supports the proposition. The New York 
 cases are fully and strongly against the doc- 
 trine of counsel. Stearns v. Field, 90 N. Y. 
 040; Mercer v. Vose, 07 N. Y. 50; Hamett 
 V. Garvey. OG N. Y. 641. It is evident that 
 the proposition cannot be sound. If it be 
 regarded as correct, then, in every case, the 
 court must determine what facts were or 
 were not proved, and this would be an 
 usurpation of the functions of the .jury. If, 
 as happens in most cases, the evidence is 
 conflicting, then, if counsel are right, the as- 
 sumption must of necessity contain contra- 
 dictory statements. These reasons are in 
 themselves enough to condemn the proposi- 
 tion of counsel, even in the absence of au- 
 thority; but all the authorities are against 
 them, so that the overthrow of their position 
 is decisive and complete. 
 
 Dr. Neal, a medical expert, was permitted 
 to testify that the irritation of the mouth 
 of the urethra produced the contracted con- 
 dition of the appellee's legs. AVhat we have 
 said in considering the testimony of another 
 medical witness disposes of this point. It 
 is, however, said that the question which 
 drew ovit the testimony was leading. If it 
 were granted that the question was leading, 
 it would not entitle the appellant to a re- 
 versal. It is generally held that permitting 
 a leading question to be asked will not be 
 sufficient cause for reversal, although some 
 of the cases hold that, where there is a 
 clear abuse of discretion, the rule is other- 
 wise. We need not decide which line of 
 cases "hath the better reason;" it is enough 
 for us to decide, as we do, that there was no 
 such abuse of discretion as would require a 
 reversal, even if we accepted the latter line 
 of cases as correctly expressing the rule. 
 
 Counsel say: "The twelfth and thirteenth 
 causes assigned in the motion for a new 
 trial were intended to bring before the jury 
 the accepted views of medical writers and 
 
 210 
 
 practitioners as to what was commonly un- 
 derstood by and known to the medical pro- 
 fession, that the condition of the lower 
 limbs of the plaintiff is frequently produced 
 by uterine trouble. If this was the fact, 
 the defendant had a clear right to have it in 
 proof before the jury. If it was an unusual 
 fact, it would have made against the de- 
 fendant; but if it were usual, and was com- 
 monly understood by medical authors and 
 practitioners, it would have much weight in 
 favor of the defendant. There can be no 
 just reason assigned for excluding evidence 
 as to what is commonly understood and 
 known by the medical i^rofession in that re- 
 gard." "SVe have copied all that is said by 
 counsel upon this subject, and we are by no 
 means convinced that the trial court erred. 
 If the question had arisen on cross-examina- 
 tion, a different rule would perhaps obtain; 
 but the witness was introduced by appellant 
 and his opinion elicited. The qualification 
 of the witness was thus asserted, and it 
 was not necessary for the appellant to go 
 further than to show the knowledge and 
 experience of the witness, while, on cross- 
 examination, it would perhaps have been 
 proper to test his knowledge and experience 
 by a proper examination. If a witness 
 l^hould be permitted to state what "is com- 
 /monly understood by the medical profes- 
 sion," a never-ending investigation would be 
 opened, and a collateral matter presented 
 that would, as the evidence before us makes 
 apparent, lead to an almost endless conflict 
 of opinion. There would be, at best, an in- 
 tangible conflict of opinion, without any au- 
 thoritative method of settling it. If the de- 
 fendant were permitted to ask such a ques- 
 tion, then the plaintiff would be entitled to 
 meet it, so that the contest would fall upon 
 the vague and uncertain subject of what 
 professional men "commonly understood." 
 What men commonly understand can be de- 
 termined only by an inquiry into their men- 
 tal processes, and such an inquiry ought not 
 to be allowed upon a purely collateral ques- 
 tion. A matter so \ague and so intangible 
 ought not to be made the subject of in- 
 quiry, unless it is directly in issue, as mo- 
 tive, intention, or the like. 
 
 Appellee's counsel asked on the cross-ex- 
 amination of Dr. Painter, one of the expert 
 witnesses introduced by appellant, this ques- 
 tion: "Suppose she received a shock vipon 
 her feet going a distance of four or five feet 
 outward and some three feet downward, as 
 much as two years and six months ago. how 
 far would such a shock account for her 
 present condition'.'" We have no doubt, al- 
 though the question is somewhat confused, 
 that the ruling of the trial court was right. 
 The witness testified, in his evidence in 
 chief, that he had examined the appellee, 
 described her condition, and gave his opin- 
 ion upon various phases of her case. It 
 was therefore competent for the appellee to 
 ask him for his opinion, not only for the 
 
EXPEKTS. 
 
 [Case Xo. 72 
 
 purpose of testing his ability as an expert, 
 but also for the purpose of placing the opin- 
 ion before the jury as sustaining her theory. 
 Railway Co. v. Falvey, supra, and cases 
 cited; Rog. Exp. Test. 50. It is a mistake 
 to supiiose that when counsel, in the exam- 
 ination in chief, open on a general subject, 
 that the line of examination adopted must 
 be followed by cross-examining counsel; on 
 the contrary, it is well settled that, where 
 the direct examination opens on a general 
 subject, the cross-examination may go into 
 any and all phases of that subject. De 
 Haven v. De Haven, 77 Ind. 23G; Vogel v. 
 Harris (December 8, 1887), 14 N. E. 38.",. 
 On a cross-examination, counsel may direct 
 and separate, or unite and join, the facts 
 involved in the general subject. The only 
 restriction upon the right of cross-examina- 
 tiuu, so far as affects the question as it is 
 here presented, is that it must be contined 
 to the subject-matter of the examination in 
 •chief. As decided in Higham v. Yanosdol, 
 101 Ind. 102, a distinct and independent sub- 
 ject cannot be introduced on cross-examina- 
 tion, but the cross-examination may go to 
 all matters involved in the subject embraced 
 in the examination in chief. 
 
 It is said by counsel that "the eighteenth 
 cause for a new trial raised the question 
 whether Dr. E. P. Easly could answer cer- 
 tain questions from his opinions derived 
 from medical books." We do not think that 
 the record presents the question just as 
 counsel state it. The witness was asked: 
 "What effect would her [the plaintiff] living 
 with a man who was a paralytic have upon 
 her; how and in what way would it affect 
 her?" To this he answered: "I can't say 
 what effect it would have upon her. I 
 could recite the reported cases. We know 
 that persons have become paralytics simply 
 by waiting on a paralytic." We incline to 
 the opinion that it would not, in any event, 
 l>e proper to recite special cases rejjorted in 
 medical books; but, however this may be, 
 no offer of evidence was made, and no ques- 
 tion is ijresented whicli will avail the appel- 
 lant. In this instance, we may observe, the 
 witness was permitted to give his opinion 
 derived from the books, and the only effect 
 of the ruling was to deny the right to give 
 special cases reported in the works of med- 
 ical writers. Lawson, Exp. Ev. 109, and 
 cases cited. 
 
 The only argument made in support of one 
 of the points stated by counsel is this: "The 
 twenty-first, twenty-second, and twenty- 
 third causes assigned for a new trial arc 
 good, under the rulings of the cases of 
 Strohm v. Railroad Co., 90 N. Y. 305, and 
 Curtis V. Railroad Co., 18 N. Y. .541." The 
 questions aslied the medical witnesses were 
 as to the probable results that would follow 
 from an injury described by the witnesses 
 who testified on the trial. We iindei-staud 
 it to be well settled that such questions are 
 proper. Lawson, Exp. Ev. 108-114; Rog. 
 
 Exp. Test. 81-107. The cases cited by coun- 
 sel are directly against them, for they both 
 concede that it is competent to ask an 
 opinion as to probable results, although it is 
 held that merely speculative opinions are 
 not competent. In the last of the cases 
 cited it was said, in speaking of an instruc- 
 tion, that the true rule was, as laid down, 
 that "the plaintiff could only recover dam- 
 ages for such pain and suffering as the evi- 
 dence rendered reasonably certain would 
 necessarily result from the injury." 
 
 One of the attorneys of appellant had 
 made an affidavit in support of an unsuc- 
 cessful motion for a continuance; and this, 
 when offered in evidence, was excluded. 
 Clearly, there was no error in this ruling. 
 
 Appellant offered to prove by the same 
 attorney what the conductor who, as the 
 evidence shows, puUort the appellee from 
 the train, said as to attending the trial. 
 There was no error in this ruling. What the 
 witness proposed to state was mere hearsay, 
 and its exclusion is sustained by one of the 
 plainest rules of evidence. The appellant 
 had a right, either by compulsory process or 
 by deposition, to the testimony of the wit- 
 ness, but it had no right to have his state- 
 ment rehearsed to the jury. We think ap- 
 pellant's counsel are in error in assuming, as 
 they impliedly do, that Dr. Neal did not ex- 
 ' amine the appellee in a professional capae- 
 it.v, for the record shows, not only that he 
 ! visited her in that capacity, but that he did 
 j so under the order of the court. It is well 
 I established by authority that statements 
 - made to a physician in his professional ca- 
 I pacity are competent, when descriptive of 
 i existing symptoms or pains, although they 
 I are not admissible when mere narratives of 
 I past occurrences. Railroad Co. v. Newell, 
 104 Ind. 264, 3 N. E. 83B; Railroad Co. v. 
 '. Falvey, and cases cited; Murphy v. Rail- 
 I road Co., 00 Barb. 12.5; Kent v. Ijincoln, 32 
 Vt. 591-.597; Barber v. Merriam, 11 Allen, 
 322; Looper v. Bell, 1 Head, 373; Hatch v. 
 Fuller, 131 Mass. 574; Railroad Co. v. .Johns, 
 36 Kan. 709, 14 Pac. 237. In the case last 
 cited, the authorities are collected and re- 
 viewed, and it was said: "But the mere 
 fact that the declarations are made after 
 i suit has been commenced, and while it is 
 ' pending, will not be sufficient to exclude the 
 declarations, and they should be allowed to 
 I go to the jury." This is in accordance with 
 our decisions, and with the decided weight 
 of authority. Following Quaife v. Railway 
 ! Co., 48 Wis. 513, 4 N. W. (i.")8, this court said, 
 in siieaking of declarations such as those 
 : here given in evidence: "They are especial- 
 ly competent, and of more weight, when 
 made to a physician for the purpose of re- 
 ceiving treatment, or to a medical expert 
 who makes an examination at the request 
 of the opposite party, or by direction of a 
 court, for the purpose of basing an opinion 
 upon as to the physical situation of the 
 party whose condition is the subject of in- 
 
 211 
 
Case No. 72] 
 
 RELEVANCY. 
 
 quiry." Railroad Co. v. Newell, supra. As 
 suggested In the case from which we have 
 quoted, and in some of the Massachusetts 
 cases, without some information as to the 
 seat and character of pain, and as to the 
 symptoms of the sick or injured person, it 
 is impossible, in many cases, for a physician 
 to form an intelligent opinion; for many of 
 the organs of the human body are concealed 
 from view. Roosa v. Loan Co., 132 Mass. 
 439; Bacon v. Charlton, 7 Cush. 581; Barber 
 V. Merriam, 11 Allen, 322. It results that, 
 as said in Railroad Co. v. Newell, and other 
 cases, the evidence is admitted on the 
 ground of necessity. That this is true is 
 obvious, since its denial would in many 
 cases completely thwart justice. Another 
 well settled legal principle supports the rule, 
 and that is this: Where an act or transac- 
 tion is competent, declarations forming part 
 of the thing done are also competent. 
 
 Dr. Neal was asked "whether the condi- 
 tion of the womb in which you found it day 
 before yesterday will account for the condi- 
 tion of the spine and its tenderness, as well 
 as the drawn limbs, and all the conditions 
 now." The objection to this question is 
 that the witness had not stated the facts 
 to the juiy. We think it only necessary to 
 say, on this point, that counsel's position 
 rests on an erroneous assumption. We think 
 the facts relevant to the opinion were fully 
 in evidence. Indeed, the question itself di- 
 rects the attention of the witness to a fact 
 that must have come under his own ob- 
 servation, and, of necessity, involved in the 
 matter on which his opinion was asked. 
 
 We set out the instnictlons given at the 
 request of the appellee, as they contain the 
 strongest expression of the law against the 
 appellant found in the series. These are tlie 
 instructions: "(1) If the plaintiff was a pas- 
 senger upon defendant's road in one of de- 
 fendant's coaches, as charged in her com- 
 plaint, the defendant's obligation was to car- 
 ry her safely and properly; and, if the de- 
 fendant intrusted this duty to the servants 
 of the company, the law holds the defend- 
 ant responsible for the manner in which they 
 execute it. The carrier is obliged to protect 
 its passengers from improper and unneces- 
 sary violence at the hands of its own serv- 
 ants. And it is the established law that a 
 carrier is responsible for the negligence and 
 wrongful conduct of its servants, suffered 
 or done in the line of their employment 
 whereby a passenger is injured. (2) The du- 
 ty of a can-ier is to safely cari-y passengers. 
 It is true that a carrier of passengers is not 
 an insurer of the safety of those whom it 
 undertakes to carry, against all the risks of 
 travel; but nevertheless there rests upon 
 such carrier this general duty of safely car- 
 rying. (3) A carrier of passengers for pay 
 is responsible for injuries sustained by a pas- 
 senger through the neglect, recklessness, and 
 carelessness of the servants of such can-ier, 
 while such servants are engaged in the gen- 
 
 212 
 
 eral scope of their employment, whether the 
 act was or was not authorized by the mas- 
 ter. (4) A passenger is warranted in obey- 
 ing the direction of the servants and agents 
 of the carrier, when given within the scope 
 of their duty, unless such obedience leads to 
 a known peril which a prudent person would 
 not encounter. (5) If, in this case, the jury 
 believe, from a fair prepondei-ance of the evi- 
 dence, that the plaintiff obeyed the defend- 
 ant's conductor, in charge of the train upon 
 which she was a passenger, in getting off of 
 the train, and if she was not then apprised 
 of any peril that she would encounter there- 
 by, she would not be guilty of contributing 
 to any injuries received by her in thus alight- 
 ing from the train. (6) If the fact be that 
 the defendant's conductor, having charge of 
 the train upon which plaintifl! was a pas- 
 senger, seized hold of her while the train 
 was in motion and was moving on, and 
 pulled her from the platform of the coach 
 by the exercise of physical force, and there- 
 by caused her to strike the ground or other 
 hard substance below, whereby she was in- 
 jured, she would not be guilty of contribut- 
 ing to injuries received thereby. (7) If plain- 
 tiff did not receive the injuries complained 
 of by any contributing act of negligence or 
 fault of her own, but was injured at the- 
 time complained of by the carelessness and 
 negligence or fault of the defendant's serv- 
 ants, or one of them, committed in the gen- 
 eral scope of employment as such servants- 
 or servant, the defendant is liable for such 
 damages as she may have sustained by the 
 injuries thus received. (8) If you find for- 
 the lolaintiff, you are instructed that, in as- 
 sessing plaintiff's damages, you cannot ex- 
 ceed the sum sued for in the complaint, whiciv 
 is twenty-five thousand dollars; and, in as- 
 sessing the damages, it is proper that you 
 consider the injuries received by plaintiff,, 
 their extent, whether of a tempoi-ary or per- 
 manent character, and you may take into- 
 consideration loss of time, expenses incur- 
 red, physical suffering, bodily pain, and per- 
 manent disability, if proved to be direct 
 results of the injuries described in the com- 
 plaint, and you should thereupon assess such 
 compensatory damages as in your opinion 
 the evidence before you warrants. (9) A 
 railroad company carrying passengers for 
 hire has not discharged its duty, or relieved 
 itself from liability, to them, till it stopped 
 at the end of their journey a reasonable- 
 time for them to get off the train in safety." 
 In our judgment, these instructions state 
 the law quite as favorably to the appellant 
 as it had a right to ask. If there is en-or 
 in them it is against the appellee. It is said 
 by counsel that the first and second instruc- 
 tions given for the plaintiff are mere ab- 
 stract propositions. We, however, regard 
 them as correct statements of the law, well 
 applied to the particular case. The fourth 
 and fifth insti-uctions are correct in their 
 statement of legal principles. Railroad Co. 
 
EXPERTS. 
 
 [Case No. 72 
 
 V. Cai-per (this term) 14 N. B. 352; Rail- 
 way Co. V. Pinchin (this term) 13 N. E. 677. 
 We do not, in this holding, controvert the 
 doctrine that a passenger must not ohey the 
 directions of the employes where it will lead 
 to Jinown danger which a prudent person 
 would not encounter. On the contrary, we 
 approve these Instructions, because they as- 
 sert that doctrine. We cannot hold that the 
 instructions are not relevant to the evidence; 
 nor can we hold that they are not within 
 the issue tendered by tlie complaint. The 
 use of the epithet "willful" does not control 
 the other averments. We think it must be 
 regarded as conclusively settled by our ca- 
 ses that the use of the words "willful" or 
 "willful negligence" does not change the 
 character of the pleading. As a matter of 
 pleading, epithets are of no gi-eat foi-ce. 
 Palmer v. Railroad Co. (this term) 14 N. 
 E. 70; Gregory v. Raih-oad Co. (Ind. Sup.)' 
 14 N. E. 228; Railway Co. v. Ader, 110 
 Ind. 376, 11 N. E. 437; Railway Co. v. Bryan, 
 107 Ind. 51, 7 N. E. 807; Railroad Co. v. 
 Mann, 107 Ind. 89, 7 N. E. 898; Railway 
 Co. V. Schmidt, 106 Ind. 73, 5 N. E. 684. 
 It is alleged in the complaint, among other 
 things, that "the plaintiff sustained said in- 
 juries without any fault on her part, and 
 that the same were received by her because 
 of the negligent, careless, willful, heedless, 
 and improvident acts of said conductor." 
 This, taken in connection with other aver- 
 ments, makes the cause of action one of neg- 
 ligence, rather than of intentional and ma- 
 licious wrong. What the conductor did, al- 
 though constituting a tort, did not, upon the 
 theory of the complaint, constitute a willful 
 and intentional ■ assault. It is evident that 
 the theory on which the complaint proceeds 
 is that the wrong was not an intentional or 
 malicious one, for it is alleged that it was 
 heedless and negligent, and that there was 
 no contributory negligence on the part of 
 the plaintiff. The court below construed the 
 complaint as we construe it, and so, also, 
 did the appellant, as appears from the in- 
 structions given at its request; the first of 
 which reads thus: "(1) The jury are in- 
 structed that this is an action on the part 
 of the plaintiff to recover damages against 
 the defendant for injuries alleged to have 
 been sustained by the plaintiff on the night 
 of the twenty-first day of October, 1882, in 
 getting off of the steps of a car of one of 
 defendant's passenger trains at Campbells- 
 burg; the plaintiff alleging that 'the con- 
 diictor of said train negligently, heedlessly, 
 willfully, carelessly, and improperly seized 
 her while said train was in motion, and, 
 without any fault or negligence of the plain- 
 tiff whatever, he wrenched her off of said 
 steps, and jerked her to the ground, where 
 she alighted in a twisted posture,' thereby 
 injuring her feet, legs, and body generally, 
 and causing a concussion of the spine, re- 
 sulting in paralysis of the lower limbs, ren- 
 dering her unable to walk, and that such in- 
 
 juries are permanent. The answer of the 
 defendant is a general denial, which casts 
 upon the plaintiff the burden of proving— 
 First, that she was wrenched ofC of the steps 
 of said car, and jerked to the ground, by the 
 conductor; second, that the injuries alleged 
 by the plaintiff were the direct and imme- 
 diate consequences of the manner in which 
 she was taken off the train; and, third, that 
 the plaintiff did not, by any act or conduct 
 of hers at the time, contribute to the injury, 
 and that she was free from fault or negli- 
 gence on her part." The doctrine in Carver 
 V. Carver, 97 Ind. 497-516, applies here with 
 peculiar force: "When a theory is thus 
 adopted, and acted upon below, with the con- 
 currence of both parties, a judgment ought 
 not to be reversed because the court in- 
 structs the jury in accordance with it." 
 
 The only objection urged against the in- 
 structions given by the court on its own mo- 
 tion, not disposed of by what we have al- 
 ready said, is that they direct the jury to find 
 a general verdict, and thus impliedly instruct- 
 ed them not to return a special verdict. A 
 number of interrogatories were submitted by 
 the parties and the court; and we are In- 
 clined to the opinion that the fair meaning 
 of the instruction on this point is that, in 
 case answers were returned to the interrog- 
 atories, there must also be a general ver- 
 dict. If this be true, there was no error; 
 but if we are wrong in this, still there can 
 be no reversal, for our statute provides that, 
 "in all actions, the jury, unless otherwise 
 directed by the court, may render a special 
 or general verdict." Rev. St. § 546; Work, 
 Pr. § 849. The court has authority to direct 
 a general verdict, and we must presume that 
 the authority was justly exercised; for, un- 
 til the contrary appears, all reasonable in- 
 tendments are indulged in favor of the rul- 
 ings of the trial court. 
 
 Conceding that the fourth instruction ask- 
 ed by the appellant was correct, (a conces- 
 sion not warranted, as we incline to think,) 
 it was substantially embodied in the third 
 instruction given at appellant's request. It 
 is too well settled to require the citation of 
 authorities that a trial court is not bound to 
 repeat its instructions. What we have said 
 of the fourth instruction applies to the sixth, 
 seventh, and eighth instructions asked by the 
 appellant, for, so far as they were correct, 
 they were substantially included in other in- 
 structions given. The tenth instruction does 
 not express the law, and was rightfully re- 
 fused. It is not necessary that the wrong- 
 doer should apprehend the particular conse- 
 quences which may proximately result from 
 his acts, although the act must be of such a 
 nature as to produce some injurious result. 
 To illustrate: A man ill with consumption, 
 who is wrongfully injured in alighting from 
 a train, and so injured as that a hemorrhage 
 results, has a right to recover although the 
 servants of the carrier may not have had rea- 
 son to apprehend such a result. Railroad 
 
 213 
 
Case No. 72] 
 
 RELEVANCY. 
 
 Co. V. Riley, 39 Ind. 508. In no case is It 
 necessary tliat tlie particular result which 
 follows should be anticipated. Certainly, no 
 man who strikes a feeble person and injures 
 him can be heard to say that he did not an- 
 ticipate that it would hurt him more than it 
 would have done a robust man. Where a 
 tort is commiVed from which injury may 
 reasonably be anticipated, the wrong-doer is 
 liable for the pro.ximate results of that in- 
 jury, although the injuiy extends further 
 than it would have done had the injured per- 
 son been in perfect health. It is the general 
 character of the act, and not the particular 
 result, that the law regards. It is true that 
 the act which causes the injury must be a 
 negligent one, and this it cannot be unless 
 the facts show that it was one which ordi- 
 nary care would have enabled the person 
 who does it to foresee and provide against. 
 Railway Co. v. Locke (this term) 14 N. E. 
 391. 'there is a plain difference between the 
 wrongful act and its consequences; for, when 
 a wrongful act is done, the wrong-doer must 
 answer for all proximate consequences, al- 
 though he may not have foreseen or antici- 
 pated the particular form or character of the 
 resulting injury. The doctrine which the au- 
 thorities lay down is thus stated in Hill v. 
 Winsor, 118 Mass. 251: "The accident must 
 be caused by the negligent act of the defend- 
 ants, but it is not necessary that the conse- 
 quences of the negligent act should be fore- 
 seen by the defendants. It is not necessary 
 that either the plaintiff or the defendants 
 should be able to foresee the consequences 
 of the negligence of the defendants, in order 
 to make the defendants liable. It may be a 
 negligent act of mine in leaving something in 
 the highway. It may cause a man to fall 
 and break his leg or arm, and I may not be 
 able to foresee the one or the other." In an- 
 other case it was said: "It is not necessary 
 that injury in the precise form in which it 
 in fact i-esulted should have been foreseen." 
 Lane v. Atlantic Works, 111 Mass. 136. In 
 Newell V. Whitcher, 53 Vt. 589, the court 
 was asked to charge the jury "that, if the 
 defendant's acts and conduct would not have 
 injured a person of ordinary nei-ve and cour- 
 age, then there can be no recovei-y;" and it 
 was held that this instniction was properly 
 refused. But we cannot add to the length of 
 our already very lengthy opinion by com- 
 menting upon the authorities. " AVe refer, 
 without discussion, to some of the many de- 
 cided cases: Railroad Co. v. Riley, supra; 
 Railroad Co. v. Buck, 90 Ind. 340; Railway 
 Co. v. Falvey, supra; Railway Co. v. .Tones, 
 108 Ind. 551, 9 N. E. 470; Railroad Co. v. 
 ritzer, 109 Ind. 179, N. E. 310, 10 N. E. 70, 
 and cases cited page 188, 109 Ind., and pages 
 31(»and 70 of and 10 N. E.; Stewart v. City, 
 38 Wis. .584; Oliver v. Town, 36 Wis. 592; 
 Kellogg V. Railway Co., 26 Wis. 233; Mc- 
 Namara v. Village, 62 AA'is. 207, 22 N. W. 472; 
 Brown v. Railway Co., 54 AVis. 342, 11 N. AV. 
 356; AVilllams v. Vanderbilt, 28 N. Y. 217; 
 
 214 
 
 Ehrgott v. Mayor, 90 X. Y. 204; Beauchanip 
 V. Mining Co., 50 Mich. 163, 15 N. AV. r,5; 
 Barbee v. Reese, 60 Aliss. 90G; Railway Co. 
 V. Kemp, 61 Aid. 74; Fitzpatrick v. Railway 
 Co., 12 U. C. Q. B. 645. "The general rule," 
 says an eminent court, "is that, in actions of 
 tort like the present, the wrong-doer is liable 
 for all the direct injury resulting from his 
 wrongful act; and that, too, although the ex- 
 tent or special nature of the injury could not,. 
 Avith certainty, have been foreseen or con- 
 templated as 'the probable result of the act 
 done." Railway Co. v. Kemp, supra. A late 
 writer collects many cases, and lays down 
 the rule, in very strong terms, as we have 
 declared it. 2 Wood, Ry. Law, 1232. AYe 
 conclude that, both upon principle and au- 
 thority, an injured person may recover com- 
 pensatory damages for injuries sustained, 
 although the wrong-doer did not know, or 
 could not foresee, that the special or particu- 
 lar injury would be greater to the person 
 upon whom the wrong was actually inflicted 
 than to one in full strength and robust 
 health. A person, feeble or strong, young or 
 old, is entitled to recover full compensation 
 for the injury actually sustained by the acts 
 of a wrong-doer. 
 
 In instructions given at the request of the 
 appellant, the court asserted in express 
 terms, and, probably, in stronger language 
 than the law warrants, that the plaintiff 
 could not recover if the injuries resulted from 
 disease, and not from the negligence of the 
 defendant, and it was unnecessary to repeat 
 these instructions. Two of these instructions, 
 read thus: "(7) By direct and immediate 
 cause and proximate cause, as used in all 
 the instructions in this case, is meant such 
 cause or causes as are usually and ordinarily 
 followed by the result attributed to the act 
 or acts, and such as a person of ordinary ex- 
 perience and judgment could reasonably ap- 
 prehend would follow as the direct effect of 
 the act or acts charged as being the cause 
 of the injurj^" "(13) If the juiy believe 
 from the evidence that the plaintiff's injured 
 and diseased condition is due to chronic 
 womb disease, and other ailments existing, 
 prior to the twenty-first of October, 1882, and 
 not the direct and immediate result of the 
 manner in which she was assisted from the 
 car-steps, then the verdict of the jury must 
 be for the defendant." It may be tliat the 
 appellee can justly complain of these instruc- 
 tions, but certainly the appellant cannot. 
 
 The instruction asked after the argument 
 was closed was properly refused. A party 
 has no right to demand an instniction at sO' 
 late a period in the trial. 
 
 Seventy-five interrogatories were submitted 
 by the appellant, and the court refused to 
 send 60 of them to the jury, but did send 15 
 of them, and did also prepare and submit 
 other interrogatories to the jury. AA^o per- 
 ceive no error in the ruling of the court on 
 this subject. All of the rejected interroga- 
 tories, except, perhaps, the sixty-fifth, are 
 
EXPERTS. 
 
 [Ciise No. 72 
 
 open to the objection that they ask for evi- 
 dence, and not facts. There is everywhere In 
 jurisprudence an important difference be- 
 tween evidence and facts, and in no branch 
 of jurisprudence is it more important tlian in 
 that wliich governs tlie verdicts and findings 
 of juries. It would lead to most evil conse- 
 quences to permit a party to compel the jury 
 to rehearse mere items of evidence. But it 
 is needless to discuss the question; our stat- 
 ute and our decisions forbid the practice 
 here defended by the appellant. We cannot 
 examine the interrogatories in detail; it is 
 enough to say that if there was error at all 
 in the ruling of the court, as we think there 
 was, it was in giving some of the interroga- 
 toi-ies submitted by the party who now com- 
 plains. The ly interrogatories submitted in- 
 cluded 15 of those asked by aijpellant, and 
 certainly were as many as it was proper to 
 submit; they were, indeed, more than the 
 case required. 
 
 There is evidence very satisfactorily prov- 
 ing that prior to the accident Mrs. Woods 
 was a strong and healthy woman about 40 
 years of age. It is further shown that her 
 husband was .a paralytic, and that she did 
 the household work of a woman, and the 
 work of a man in managing the business af- 
 fairs of a farm. The evidence also shows 
 that prior to the accident she did a farmer's 
 hard work; such as hauling wood, making 
 hay, and the like. Since the accident she has 
 been physically almost helpless, and is una- 
 ble to do any work. Her injuries are of a 
 permanent nature, and, from the evidence, 
 the fair inference is that she will probably 
 grow worse. She has suffered much, and, it 
 is reasonably certain, will suffer more as the 
 
 years go by. Her vision is affected, her 
 hands and logs are partially, if not totally 
 paralyzed, and there is some curvature of the 
 spine. It is very apparent, therefore, that 
 there is evidence fully warranting the infer- 
 ence that the appellee is a physical wreck, 
 and, indeed, the evidence fairly justifies the 
 inference that her mental powers are seri- 
 ously impaired. We cannot, under the cir- 
 cumstances, declare that the damages are 
 the result of passion, i^rejudice, or corrup- 
 tion, and it is only where this can be justly 
 asserted that a verdict can be set a.side. 
 Hoagland v. Moore, 2 Blackf. 167; Guard v. 
 Risk, 11 Ind. 136; Yater v. Mullen, 2.3 Ind. 
 562; Alexander v. Thomas, 25 Ind. 268; 
 Reeves v. State, 37 Ind. 441; Railway Co. v. 
 Collarn, 73 Ind. 261; Railway Co. v. Fix, 88 
 Ind. 381; Car Co. v. Parker, 100 Ind. 181; 
 Turnpike Co. v. Andrews, 102 Ind. l.'iS, 1 X. 
 E. 364; Railway Co. v. Palvey, supra; Rail- 
 road Go. V. Holland, 18 111. App. 418; Groves 
 v. Rochester, 39 Hun, 5; Osborne v. City, 32 
 Fed. 36. 
 
 It is alleged as a cause for a new trial that 
 some of the jurors were guilty of misconduct. 
 The evidence upon this point very fully and 
 satisfactorily supports the finding of the 
 court, and we cannot interfere. It has long 
 been the rule in this, as in other appellate 
 courts, that, where a question of fact is de- 
 cided by the trial court, it will not be dis- 
 turbed if there is evidence fairly sustaining 
 it. Pedigo V. Grimes (May term) 13 N. E. 
 700, and authorities cited. 
 
 We have thus, with patience and care, ex- 
 amined all the questions properly saved, and, 
 as we are not able to find any error, we must 
 affirm the judgment. 
 
 215 
 
Case Xo. 73] 
 
 RELEVANCY. 
 
 CITY OF BLOOMINGTON v. SHROCK. 
 
 (110 111. 219.) 
 Supreme Court of Illluois. June 11, 1884. 
 Appeal from appellate court, Tliird dis- 
 trict. 
 
 John T. Lillard, for appellant. Pifer & 
 Phillips, for appellee. 
 
 SCHOLFIBLD, J. This was an action on 
 the case for negligence, by appellee against 
 appellant. Appellee, a married woman, was 
 violently thrown down while walking along 
 a sidewalk adjacent to one of appellant's 
 streets, by reason of a defect in the side- 
 walk, and thereby received injuries which 
 she claimed resulted in ca.using her to have 
 an abortion. It was contended by appellant 
 npon the trial that she was guilty of such 
 contributory negligence as to bar her right 
 to recover, in omitting proper care and cau- 
 tion to avoid the aboi'tion; and this was the 
 most "important question upon the trial, al- 
 though there were other questions of minor 
 consideration contested. 
 
 Dr. Luce was called and examined as a 
 witness on behalf of appellant, as an expert, 
 and gave evidence tending to prove that ap- 
 pellee was guilty of negligence in the re- 
 spect contended by appellant. He quoted 
 from and made reference to no book, but 
 upon his cross-examination counsel for ap- 
 pellee inquired of him whether he was ac- 
 quainted with "Flayfair" and ■ "Bedfoi-d" 
 (treatises on midwifery), and, upon his re- 
 sponding in the affirmative, and that they 
 were standard authorities on questions of 
 this character, counsel proceeded to read at 
 length from each of these authors, consec- 
 utively, and then inquired of the witness 
 whether he agreed with the authors as to 
 the parts so read. This was objected to by 
 the counsel for appellant, but allowed by 
 the court, and the witness was required to 
 mnke answer. 
 
 The weight of current authority is decid- 
 edly against the admission of scientific 
 books in evidence before a jury, although 
 In some states they are admissible. 1 
 Greenl. Bv. § 440, and note; Whart. Bv. § 
 6G5; Rog. Exp. Test. §§ 168, 169, et seq., and 
 eases cited in notes. And the weight of 
 current authority is, also, against allowing 
 such treatises to be read from, to contra- 
 dict an expert, generally. See authorities 
 supra, and Com. v. Sturtevant, 117 Mass. 
 122; Davis v. State, 38 Md. 15; State v. 
 O'Brien, 7 R. I. 336. Where, however, an 
 
 21G 
 
 expert assumes to base his opinion upon the 
 work of a particular author, that work may 
 be read In evidence to contradict him. This 
 was, in effect, our ruling in Insurance Co. 
 V. Bills, 89 111. 516; and it was expressly so 
 ruled in Pinney v. Cahill, 48 Mich. 584, 12 x-l. 
 W. 862; City of Bipon v. Bristol, 30 Wis. 
 614; and Huffman v. Click, 77 N. C. 55. 
 See, also, Marshall v. Brown, 50 Mich. 148, 
 15 N. W. 55; Rog. Bxp. Test. § 181. 
 
 But counsel for appellee insist the rul- 
 ing of the court below is in exact conformity 
 with the ruling of this court in Insurance 
 Co. V. Ellis, supra. This is a misapprehen- 
 sion. In that case the witness stated "that 
 he had read text books that he might be 
 able to state why he diagnosed the case as 
 delirium tremens"; and it was held "not un- 
 fair to the witness to call his attention to 
 the definitions given in the books of that 
 particular disease, and asking him whether 
 he concurred in the definitions." And it 
 was said: "That is, in no just sense, read- 
 ing books to the jury as evidence, or for the 
 purpose of contradicting the witness." The 
 source of his professed knowledge was giv- 
 en, and it was allowed to show that he was 
 mistaken, by resorting to that source. In 
 the present case, it has been seen, the course 
 pursued was entirely different. The witness 
 based no opinion which he gave upon the 
 authority of books, and they were only 
 brought in to impair his evidence on cross- 
 examination. 
 
 Where a witness says a thing or a theory 
 is so because a book says so, and the book, 
 on being produced, is discovered to say di- 
 rectly to the contrary, there is a- direct con- 
 tradiction which anybody can understand. 
 But where a witness simply gives his opin- 
 ion as to the proper treatment of a given dis- 
 ease or injury, and a book is produced rec- 
 ommending a different treatment, at most 
 the repugnance is not of fact, but of theory; 
 and any number of additional books ex- 
 pressing different theoi-ies would obviously 
 be quite as competent as the first. But 
 since the books are not admissible as orig- 
 inal evidence in such cases, it must follow 
 that they are not admissible on cross-exam- 
 ination, where their introduction is not for 
 the direct contradiction of something as- 
 serted by the witness, but simply to prove a 
 contrary theory. 
 
 We think the court erred in admitting this 
 evidence, and for that error the judgment 
 is reversed, and the cause remanded. 
 
 Judgment reversed. 
 
EXPEliTS. 
 
 [CiiSK No. 74 
 
 SLOCOVICH et al. v. ORIENT MUT. INS. 
 CO. 
 
 (14 N. E. 802, 108 N. Y. 56.) 
 
 Court of Appeals of New York. Jan. 17, 1888. 
 
 Action by George Slocovicli and others 
 against tli« Orient Mutual Insurance Com- 
 .pany on a policy of marine insurance. Judg- 
 ment was rendered for plaintiffs by the gen- 
 eral term, and the defendant appeals. 
 
 Edward M. Shepard, for appellant. Sidney 
 Chubb, for respondents. 
 
 EARL, J. This action was brought to re- 
 cover on a policy of marine insurance issued 
 by the defendant to insure a "port risk in 
 the port of New York" upon the ship Zorka. 
 The policy was in favor of the plaintiffs, un- 
 der their firm name of Slocovich & Co., "on 
 account of whom it may concern;" loss, if 
 any, to be paid to them or order. The risks 
 which, by the terms of the policy, the de- 
 fendant assumed, were, among others, "per- 
 ils of the seas, fires, and all other perils, 
 losses, and misfortunes that have or shall 
 come to the hurt, detriment, or damage of 
 the said vessel, or any part thereof." The 
 ship was valued in the policy at the sum of 
 $16,000, and was insured for $11,000. It was 
 alleged in the complaint that after the issuing 
 of the policy, and on or about the fifth day 
 of April, 1883, the Zorka, while lying at an- 
 chor in the port of New York, was burned 
 and partially destroyed by the perils insured 
 against. The answer admitted the making 
 of the policy, and that on the day named the 
 ship was burned and partially destroyed by 
 fire, but denied that the plaintiffs had an 
 insurable interest in her to the amount of 
 •$16,000, or, otherwise, that she was destroy- 
 ed by perils insured against in the policy; 
 and alleged by way of counter-claim that 
 the valuation of $16,000 was excessive to the 
 plaintiffs' knowledge-; that the ship was in 
 fact worth not more than $5,000; that she 
 vcas by the plaintiffs valued at $16,000 
 fraudulently, and to defraud and induce the 
 defendant to accept such valuation and ex- 
 ecute the policy, and that the defendant, re- 
 lying on the accuracy of such valuation, 
 made and delivered the policy, and that she 
 was burned and destroyed by fire by and 
 through the act and negligence of the plain- 
 tiffs, and by and with their knowledge, pro- 
 curement, and assent; and judgment was 
 demanded for the defendant that the com- 
 plaint be dismissed, that the policy be ad- 
 judged and decreed void and of no effect, 
 and that the same be delivered to defendant 
 for cancellation. To the counter-claim the 
 plaintiffs served a reply, denying the allega- 
 tions thereof. At the trial the issues of fact 
 litigated were as to the insurable interest 
 of the plaintiffs in the vessel; as to the cause 
 of the fire,— the claim on the part of the 
 ■defendant being that the ship was set on 
 fire by the captain, at the instigation of, and 
 in collusion with, the plaintiffs; and as to 
 
 the value of the ship,— the claim of the de- 
 fendant being that there was a fraudulent 
 overvaluation. Upon these issues of fact 
 there was sufficient evidence for the con- 
 sideration of the jury; and their determina- 
 tion, having been satisfactory to and ap- 
 proved by the general term, concludes us. 
 We deem it important now simply to notice 
 a few of the principal errors relied upon for 
 a reversal of the judgment. 
 
 1. As above stated, there was an issue up- 
 on the trial as to the value of the vessel at 
 the time of her insurance, and of her de- 
 struction 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 call- 
 ed on the part of the defendant was Francis 
 A. Martin, who testified that he was a ma- 
 rine suiTeyor; that he had been engaged in 
 that business altogether 25 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 10 years; that in his regular busi- 
 ness he had been called upon to value ves- 
 sels, principally by adjusters of averages; 
 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 an- 
 swer to a question, that he thought he was 
 able, from his experience and personal knowl- 
 edge, and the personal examination he had 
 made of her, to form an opinion as to her 
 value in 1883. He was then asked this ques- 
 tion: "What, in your judgment, judging 
 from your personal knowledge of the vessel 
 gathered from your personal observation, 
 and your knowledge of the ordinary 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, 1833 /" 
 This question was objected to by the^plain- 
 tiflfs, and excluded by the court, on the 
 ground, as we must assume from the record, 
 that the witness did not have suflicient 
 knowledge of the vessel to testify as to her 
 value at the time she was burned. It will 
 be Qbsei-ved that the witness was asked for 
 his judgment based solely upon his personal 
 knowledge. It was for the trial judgei to | 
 determine, in the first instance, whether the 
 witness was competent as an expert to tes- 
 tify to the value of this vessel. He had not 
 seen her for five or six years, and knew noth- 
 ing about her condition at the time of her 
 destruction. It did not appear what her con- 
 dition was at the time he last saw her; and 
 it appeared that, subsequently to that time, 
 and after the year 1880, the plaintiffs had ex- 
 pended at least $7,000 in repairing her. Un- 
 der such circumstances, we cannot ^y that 
 the judge committed any error in exclud- 
 ing 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 er- 
 
 217 
 
Case No. 74] 
 
 RELEVANCY. 
 
 I'oueous to receive and submit tlie evidence 
 to the juiT for what it was worth, we cannot 
 say, as matter of law, that the judge ex- 
 ceeded the bound.s of a reasonable discre- 
 tion in holding that the witness was not 
 qualllied 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 pre- 
 scribing the qualifications of experts, are 
 matters of law; but whether a witness of- 
 fered as au 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 re- 
 viewable in an appellate court. Sarle v. 
 Arnold, 7 E. I. 582; Dole v, .Johnson, oH N. 
 H. 4.j.j; .Tones v. Tucker, 41 N. H. 546; 
 Wright 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 be 
 held to present an error of law, and on that 
 account be reversed, unless it is against the 
 evidence, or wholly or mainly Avithout sup- 
 port 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. 
 ;!. The plaintiff called one Boyesen as a 
 witness and examined him as an expert as 
 to the value of the vessel. He testified that 
 he had been a ship-broker and a ship-owner 
 in the city of New York for ten years past, 
 and for five years before that in London; 
 that in 1883 he knew the fair market value 
 of ships in the port of New York; that during 
 the last 15 years he had bought and sold over 
 200 ships and steam-boats; that he had seen 
 the Zorka once, and knew her from report, — 
 from the books, the American Lloyds, the 
 Green Book, and the Record Book; that those 
 books were published in reference to the stand- 
 ing of all ships, giving their descriptions, 
 and are used by the underwriters and mer- 
 chants; that he never made any personal 
 examination of the Zorka, but that his knowl- 
 edge of her was substantially confined to 
 the information he got from the general rec- 
 ords used in his business and reports made 
 therein, by which he was always guided in 
 buying and selling ships. He was then' ask- 
 ed this question: "Do you know what would 
 be a fair market value in the port of New 
 York during the months of March and April, 
 1883, of the Zorka?" The defendant object- 
 ed to the question, on the ground that the 
 witness had no personal knowledge of the 
 vessel. The objection was overruled, and 
 the witiiess answered, "Yes, I know." This 
 was a mere preliminary question, and was of 
 itself entirely harmless, and no error was 
 committed by the court, in permitting it to 
 be answered. Thereafter, without any fur- 
 218 
 
 ther objection, and apparently with the con- 
 sent of the defendant, the witness was per- 
 mitted to testify as to the market value of 
 the vessel. But if it should be assumed that 
 all the further evidence was suljoct to the 
 jsame objection, we should still be of opinion 
 'that no error was committed in receiving it. 
 It is true that the witness had no knowledge^ 
 of this vessel, based upon any personal ex- 
 amination, and that, substantially, all his 
 knowledge was derived from the reports, 
 books, and records to which he referred. But 
 there was evidence showing her age, tonnage, 
 condition, and character. There was evidence, 
 also, tending to show that those books and 
 reoords contained a full and accurate descrip- 
 tion of her character, condition, age, ton- 
 nage, and the material of which she was 
 made; and that they were commonly refer- 
 red to by underwriters, merchants, and per- 
 sons buying and selling ships, for the pur- 
 pose of ascertaining the condition and de- 
 scription of the ships; and it is to be infer- 
 red that their standing in the market and 
 among business men depends somewhat, if 
 not largely, upon those records. They were 
 regarded as sufficiently reliable for the guid- 
 ance of underwriters, merchants, and buy- 
 ers and sellers of ships; and they have been 
 so frequently before the courts that we may 
 take judicial notice of the fact that they are 
 referred to by business men for the purpose 
 of ascertaining the condition, capacity, ago, 
 and value of ships. It was not a sutHcient 
 objection to the competency of this witness! 
 that he had no personal knowledge of the \ 
 ship. An expert is qualified to give evidence 
 as to things which he has never seen. He 
 may base an opinion upon facts proved by 
 other witnesses, or upon facts assumed and 
 embraced within the case. Questions may 
 be put to him assuming the facts upon which 
 he is asked to base his judgment and express 
 an opinion. In this case, the question put 
 to the witness might have assumed the age, 
 tonnage, character, condition, and quality of 
 the vessel, and he could have been asked to 
 give an opinion as to her value based upon 
 such facts; or the facts relating to the ves- 
 sel appearing in the books and records which 
 he referred to, and which were also proved 
 upon the trial, might have been assumed in 
 the question put to the witness, and he asked 
 to give an opinion as to her value based upon 
 them. The plaintiff was not asked to pursue 
 this course in putting his question, and there 
 was no oljjection that the witness did not 
 have sufficient facts before him upon which 
 to base his opinion as to the vnlue of f'"' 
 ship. The sole objection was that he did 
 not have personal knowledge of the vesseh 
 It seems to have been assumed that the char- 
 acter, condition, and quality of the v.-ssel 
 were sufficiently proved, and that all the con- 
 ditions existed which would qualify the wit- 
 ness to give an opinion as to value, except 
 that of personal knowledge, and that, as we 
 
EXPEKTS. 
 
 [Case No. 74 
 
 have seen, was not necessary. If the de- 
 fendant had requested that the facts appear- 
 ing in the evidence should be assumed and 
 stated In an hypothetical question, it is fair 
 to assume that his request would have heen 
 complied with. We are therefore of opinion 
 that there was no error In receiving the evi- 
 dence of this witness as to the value of the 
 vessel. 
 
 3. Alfred Ogden, defendant's vice-presi- 
 dent, was called by it as a witness, and ask- 
 ed this question: "According to your under- 
 standing of the use of words in the business 
 of insurance, what do the words 'port risk' 
 mean?" This was objected to on the part of 
 the plaintiff as being no longer an open ques- 
 tion in this state, as the court of appeals had 
 settled what "port risk" means, in Nelson v. 
 Insurance Co., 71 N. Y. 4.53. The court ex- 
 cluded the question, and the defendant ex- 
 cepted to the ruling-. The counsel for the de- 
 fendant gave the court no information as to 
 what he expected to prove by the witness, 
 and in no way indicated the particular pur- 
 pose of the question. The attention of the 
 court was called to the case referred to, 
 where it is stated in the opinion that "port 
 risk in a marine insurance policy means a 
 risk upon a vessel while lying in port, and 
 before she had taken her departure upon 
 another voyage." That decision having been 
 made several years before this policy was is- 
 sued, we think it just to hold that the term 
 must have been used in the policy with the 
 meaning thus given to it by this court. If 
 if was the purpose of the question to show 
 that it did have sucn meaning, then it was 
 wholly unnecessaiy. If it was intended to 
 show that it had any other or different mean- 
 ing, or if there was any other purpose, the 
 intent and purpose should have been dis- 
 closed to the court, so that the proper ruling 
 could have been intelligently made. It is 
 impossible to perceive what the object of the 
 question was, as, at the time of her destruc- 
 tion, the vessel was in the port of New York, 
 and had not yet started upon her voyage. 
 She was not rigged for the voyage, and her 
 crew had not yet been shipped. It is impos- 
 sible to perceive why the destruction of the 
 vessel under such circumstances was not a 
 "port risk in the port of New York;" and the 
 trial judge did not err, in the absence of any 
 further information than was given him, in 
 so holding. But we think that in all policies 
 issued in this state since the opinion in the 
 case referred to was pronounced and pub- 
 lished, these words should have the meaning 
 given them therein, as it is most probable 
 that such would be the meaning attached 
 to them by the parties using them. 
 
 4. The defendant's counsel requested the 
 court to charge the jury as follows: "The 
 burden of proof is on the plaintiffs to estab- 
 lish to your satisfaction that the loss of this 
 vessel took place without any agency or in- 
 strumentality of the plaintiffs, direct or in- 
 
 direct," and that "the plaintiffs must estab- 
 lish this fact, that the loss was without any 
 agency or instrumentality of theirs, by a 
 clear preponderance of credible testimony." 
 The court refused to charge either of these 
 requests, and to the refusals the defendant 
 excepted; and it is now claimed that in this 
 the court erred. Tlie rule contended for by 
 the defendant would be quite unfair and im- 
 practicable in the trial of insurance cases. 
 ■\Vhere there is an insurance against a loss 
 by fire, and it is proved or admitted that the- 
 property insured has been destroyed by fire, 
 the loss is brought literally and exactly 
 within the terms of the policy. If, in such a 
 case, the insurance company claims to be ex- 
 empt from paying the sum insured, because 
 there has been a breach of some conditioa 
 contained in the policy, or the violation of 
 some obligation or duty imposed upon the 
 insured by the law or contract, the burden 
 rests upon it to establish the facts which it 
 thus relies upon as a defense to the claim 
 under the policy. Every presumption of law- 
 is against the commission of a crime, and in 
 all forms of action, civil and criminal, ev- 
 ery person is presumed to be innocent until 
 his guilt has been established by at least a 
 preponderance of evidence. These humane 
 rules of law would be violated if a person 
 suing upon a policy insuring his property 
 against fire was bound to assume the burden 
 of showing that he was not guilty of the 
 crime of burning his own property. The de- 
 fendant making that allegation against him 
 must bear the burden of establishing it. Tid- 
 marsh v. Insurance Co., 4 Mason, 439, Fed. 
 Cas. No. 14,024; Fiske v. Insurance Co., 1.5 
 Pick. 310; Murray v. Insurance Co., 8.5 N. 
 Y. 236; HeUman v. Lazarus, 90 N. Y. (572; 
 1 Greenl. Ev. § 35; Roscoe, Ev. 52. The bur- 
 den in such a case to prove the crime of in- 
 cendiarism should rest upon him who alleges 
 it, just as the burden of proving insanity 
 rests upon him who assails a will, deed, or 
 other instrument upon that ground. 1 Wil- 
 liams, Ex'rs (6th Am. Ed.) 24; 1 Redf. Wills, 
 c. 3, § 4; Schouler, AVills, §§ 147, 173. In 
 1 Greenl. Ev. (Redf. Ed.) § 80, the learned 
 author says: "Where the negative allegation 
 involves a criminal neglect of duty, whether 
 official or otherwise, or fraud, or the wrong- 
 ful violation of actual lawful possession of 
 property, the party making the allegation 
 must prove it; for in these cases the pre- 
 sumption of law, which is always in favor 
 of innocence and of quiet possession, is in 
 favor of the party charged." Here the burn- 
 ing and de^ruction of the vessel are admit- 
 ted in the answer, and the defendant makes 
 the allegation and tenders the issue that the 
 fire was caused by the insured; and in such 
 a case it is a just rule to hold that the de- 
 fendant, by the issue it has thus made, has 
 assumed the burden of maintaining its al- 
 legations. 
 We have carefully considered the other al- 
 
 21» 
 
Ciise No. 74] 
 
 HELEVANCY. 
 
 legations of error to whioh our attention has 
 l)een called, and are satisfied that they are 
 not well founded. They are sufficiently 
 treated in the opinion below, and need no 
 
 220 
 
 further attention here. The judgment should 
 be affirmed, with costs. 
 
 AU concur, except ANDREWS and PECK- 
 HAM, JJ., dissenting. 
 
EXPEl.Ti. 
 
 [Case No 75 
 
 PEOPLE v. McELVAINE. 
 
 (24 N. E. 465, 121 N. Y. 250.) 
 
 Court of Appeals of New York. April 29, 1890. 
 
 Appeal from court of oyer and terminer, 
 Kings county. 
 
 George M. Curtis, for appellant. James 
 W. Ridgway, Dist. Atty., for respondent. 
 
 KDGEE, C.J. The defendant upon trial 
 was convicted of tlie crime of murder in 
 the first degree, for having killed oneLuca 
 in his own house, in Brooklyn, about 3 
 o'clock in the morning of the 23d day of 
 August, 1S8&. The evidence showed that 
 the defendant entered the house through 
 a window in the second floor, by means of 
 a ladder, which he found on the premises, 
 and that such entrance was effected by 
 forcibly removing a wire screen from the 
 window. Access to this window was ob- 
 tained from a back yard. Into which an 
 unlocked gate opened from the street. 
 The deceased was killed by stabs with a 
 knife inflicted upon him while endeavoring 
 to forciblj' prevent the escape of the ac- 
 cused from the room which he first en- 
 tered. Twelve stabs were given, of which 
 four were described to have been mortal. 
 The defendant was positively identified by 
 two persons who saw him in the act of 
 inflicting the wounds, and wasimmediate- 
 \y arrested by the police officers in the 
 street near the gate, within 100 feet of the 
 premises, with a bloody knife in his pos- 
 session. Independent of the confessions 
 subsequently made by the defendant to 
 the police officers and others, no doubt 
 could possibly be entertained, on the evi- 
 dence, as to the identification of the ac- 
 cused as the person who committed the 
 homicide. No effort was therefore made 
 on the trial to show that he was not the 
 person who caused the death of Luca. 
 The sole defense attempted was the alleged 
 insanity of the accused. Considerable evi- 
 dence was given on the trial in his behalf, 
 tending to show that he possessed a de- 
 fective mental organization, and was sub- 
 ject to delusions and hallucinations, wliich 
 were claimed to be evidence of his insani- 
 ty. Two witnesses were called on his be- 
 half, as experts, who respectively gave evi- 
 dence tending to show a belief that he 
 was, to a certain degree, insane. Two ex- 
 pert witnesses were als(j called on behalf 
 of the prosecution, to give opinions upon 
 the question of the defendant'ssanity.and 
 each testified thathewas.in their opinion, 
 sane. Itcannotbe questlonedbut thatthe 
 evidence of these witnesses was material, 
 and had weight with the jury, upon the 
 question of the defendant's mental C(mdi- 
 tiou. If these opinions were based upon an 
 erroneous hypothesis, and were founded 
 in any material i-espect upon indefinite or 
 unascertainahle conditions, or upon con- 
 siderations which were not the proper sub- 
 ject of expert evidence, they must be re- 
 garded as having been erroneously admit- 
 ted. 
 
 The only serious objection to the con- 
 viction arises upon an exception to the 
 ruling of the court permitting Dr. Gray, 
 a witness for tlie prosecution, and an ex- 
 pert of high reputation and character, to 
 
 answer, against objection, a hypothetical > 
 question as to the defendant's sanity. 
 The question put by the district attorney, V 
 and the proceedings accompanying the 
 question, were as follows: "Question. 
 Now, are you able to say whether, in your 
 judgment, based upon all the testimony, 
 the acts of the defendant on the night of 
 this homicide, the testimony as to his past 
 life given by the witnesses 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. Whynot? Mr. 
 Curtis. It is too vague and indefinite. In 
 order to put an hypothetical question prop- 
 erly, 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. 'TheCourt. 
 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, concentrat- 
 ed oral proof, — what the learned counseL 
 relies on to prove the defendant is sane. 
 The ('ourt. 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 defendunt 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 At- 
 torney. Pass the whole testimony of the 
 prosecution and the defen.^e, including 
 the hypothetical question put by .Judge 
 Curtis, and everything that you heard 
 sworn to here, — now will you answer the 
 question? (The defense excepts.) A. 1 have 
 formed an opinion. Q. State it. (Thede- 
 fense excepts.) A. I believe the defendant 
 is sane. Q. What do you believe he waa 
 at tlie time of the commission of the of- 
 fense? 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 
 BO much of it as he could recollect, deter- 
 mine for himself the credibility of the wit- 
 nesses, the probability or improbability of 
 their statements, and, drawing therefrom 
 such inferences as, in his judgment, were 
 warranted by it, pronounce upon the sani- 
 ty or insanity of the defendant. It can- 
 not be questioned but that the witness 
 was by the quesrion put in the place of the 
 jury, and was allowed to determine, upon 
 his own judgment, what their verdict j 
 ought to be in the case. 
 
 It hardly needs discussion or authority 
 to show the Impropriety of this question, 
 and, indeed, the learned trial judge, at a 
 subsequent stage of the proceedings, em- 
 phatically protested against the implica- 
 tion that he had permitted such a question 
 to be put to the witness. A reference to 
 
 221 
 
Case No. 75] 
 
 RELEVANCY. 
 
 tlie i-ecorr], however, shows that thecourt 
 must then have been laboring under some 
 misconeeption as to what had really tak- 
 •(T-n place. This might reasonably have hap- 
 pened to any judge from the prejudice ex- 
 cited by the exasperating mode In which 
 the defense was conducted by the prison- 
 er's counsel. The rule as to the condi- 
 tions governing the formation of hypo- 
 thetical questions to experts has frequent- 
 ly been discussed and illustrated in the re- 
 ported cases in this court. It was said by 
 Judge Andrews, In the case of People v. 
 Jiarber, 115 N. Y. 491, 22 N. E. Eep. 182, 
 that "the opinion of medical experts, as 
 to the sanity or insanity of the defendant, 
 based upon the testimony in the case, as- 
 sumed for the purpose of the examination 
 to be true, was undoubtedly competent. 
 So, In connection with their opinion, they 
 could he permitted to state the reason 
 upon which it was founded. * * * But 
 inferences from facts proved are to be 
 drawn and found by the jury, and cannot 
 he proved as facts by the opinion of wit- 
 nesses." In Reynolds v. Robinson, 64 N. Y. 
 59.5, Judge Eahl, in spealiing of evidence 
 attempted to be given under an hypothet- 
 ical question, says: "In such a case It is 
 not the province of the witness to recon- 
 cile and draw inferences from the evidence 
 of other witnesses, and to take in such 
 facts as he thinks their evidence has estab- 
 lished, or as he can recollect and carry in 
 his mind, and thus form and express an 
 oi)inion. His opinion may be obtained by 
 stating to him a hypothetical case, taking 
 in some or all of the facts stated by wit- 
 nesses, and claimed bycounsel putting the 
 question to be established by their evi- 
 dence, and when the question is thus stat- 
 ed 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 
 • ludge Mii.LicEinGuiterman v. Steam-Ship 
 Co., H'i'jN. Y. y.")!^, thatitisnot theprovinceof 
 an exi)ert witness "to draw Inferences, or 
 I to take in such facts as he can recollect, 
 and thus form an opinion. " In Gregory 
 V. Railroad Co., reported in 28N. Y. St. Rep. 
 726, S X. Y. Supp. .525, the court hold • "An 
 expert witness cannot be asked to give an 
 ojjinion based upon what he has heard 
 other witnesses testif j\ Such opinion must 
 be based on an h.vpothetical question con- 
 taining facts which are assumed to have 
 been proven. " Thecase of People v. Lake, 
 12 N. y. ;!5S, is not an authority for appel- 
 la,nt on the question under discussion. 
 The court in that case did not concur in 
 the opinion written, but placed theirdeeis- 
 ion uijon two propositions: one of which 
 only hears upon the question here, and 
 that was that "the court of oyer and ter- 
 miner erred in permitting physicians, who 
 did not hear all the evidence relating to 
 the mental condition of the inisoner, to 
 give opinions as to his sanity, founded (m 
 the portion heard by them." The ques- 
 ti(m was not mooted or decided whethei, 
 in case they had heard all of the evidence, 
 tiiey could give opinions based thereon: 
 but it passed off solely upon the question 
 whether a person, who had heard only a 
 l)art of the evidence upon a trial, could 
 give an opinion based upon the portion of 
 the evidence so heard by hliu. It is true 
 222 
 
 that an implication may be drawn from 
 the decision that, if the witness had heard 
 the whole evidence, he might properly 
 have given his opinion: but that question 
 was not in the case, and it falls far short 
 of being an authority on the point. 
 
 The case of Sanchez v. People, 22 N. Y. 
 150, is to a similar effect. Two opinions 
 were delivered in that case, but neither ol 
 them secured the concurrence of the court. 
 The decision was placed upon the decision 
 in the Hartung Case, (Id. 95,) and had no 
 reference to the question under considera- 
 tionhere. Thecase of Peoplev. Thurston, 2 
 Parker Crim. R. 49, was in the supreme 
 court, and failed to secure the concurrence 
 of the court in the grounds upon which it 
 was decided. No rule was therefore le- 
 gally 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 unnec- 
 essary to discuss or consider the rules jjre- 
 vailing in other countries, 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 answer- 
 ing the question he assumed the truth of 
 the evidence given by the defendant's wit 
 nesses: but we think this did not remove 
 the vice inherent in the question. Even 
 as thus affected, it left the uncertainty of 
 his memory as to all 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 case, to predicate 
 an hypothetical question to an expert up- 
 on all of the evidence in the case, whether 
 'he has heard it all or not, upon the as- 
 sumption that he then recollects it; for it 
 would then be impossibie for the jury to 
 determine the facts upon which the wit- 
 ness bases his opinion, and whether such 
 facts were proved or not. Suppose the 
 jury conclude that certain facts are not 
 proved, hovs' are they, in such an event, 
 to determine whether the opinion is not, 
 to a great degree, based upon such facts? 
 When specific facts, either prcjved or as- 
 sumed to have been proved, are embraced 
 in the question, the jui-y are enabled to 
 determine whether the answer to such 
 question is based upon facts which have 
 IJeen proved in the case ornot, and wheth- 
 er other facts bearing up(jn 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 i.s found in a case which 
 was otherwise tried by the learned 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 cap- 
 ital cases to avoid even the possibility of 
 injustice to the accused, we think the er- 
 ror referred to requires a new trial. All 
 concur. 
 
HANDWBITING. 
 
 [Case No. 76 
 
 WILSON ot al. V. VAX TJCER et ux. 
 
 (17 Atl. 1007, 127 Pa. St. 371.) 
 
 Supreme Court of Pennsylvania. June 28, 
 1889. 
 
 Error to court of common pleas, Lancaster 
 county; D. W. Patterson, Judge. 
 
 Issue decisavit oel non. Neeilliam Wil- 
 son died September 22, 1872, in Lancaster 
 county. His last will and testament, of 
 which the plaintiffs, in error were executors, 
 having been duly executed on March 2, 1865, 
 was admitted to probate on September 28, 
 1872. On August 18, 1877, suit was brought 
 by Caroline Van Leer, formerly Carman, 
 upon the following instrument of writing: 
 "August 13th, 1865. I give these flew lines 
 to Caroline Carman to show that I want her 
 to have the sum of twelve hundred dolars 
 at my death she livd witli mee A number of 
 years And got verry little for it so i tliought 
 it rite to leave her This little sum to be paid 
 to her out of my home property from Nked- 
 iiAM Wilson." At that time it was con- 
 tended for Caroline Van Leer that the paper 
 was a promissory note, and the coui-t below 
 so held, but this court held it to be of a tes- 
 tamentary character, and that it would not 
 support an action of assumpsit. Wilson v. 
 Van Leer, 103 Pa. St. 600. Subsequently, 
 on June 23, 1883, this paper was offered for 
 probate before the register of Lancaster 
 county as a codicil to the last will and testa- 
 ment of Needham Wilson, and, having been 
 admitted, upon an appeal taken by the plain- 
 tiffs in error, an issue decisavit vd non was 
 directed. There were no subsr-ribing wit- 
 nesses to the execution of the paper. One 
 witness, a sister of Caroline Carman, testified 
 thiit she saw Wilson write and sign the paper, 
 and the only other witness called in support 
 of it was a brother, Cornelius Carman, who 
 undertook to testify to his signature from an 
 acquaintance with his handwriting. This 
 witness testified that he had seen Wilson 
 write once or twice when he, the witness, 
 was a boy 12 years old, 31 years before the 
 trial, and once afterwards, 23 years before 
 the trial, at a tavern in Lancaster. In com- 
 menting upon the testimony of the other 
 witness, who said she saw Wilson write and 
 sign the paper, one of the counsel tor plain- 
 tiffs in error was about to show the jury, by 
 a reference to the almanac for 1865, that Au- 
 gust 13th was Sunday, which was in direct 
 conflict with her testimony. On objection 
 made by counsel, that as the almanac had 
 not been formally offered in evidence no ref- 
 erence could be made to it, tlie court refused 
 to'allow it to be used. 
 
 There was a verdict in favor of plaintiffs, 
 and defendants bring error, assigning, inter 
 a/to, tlie following grounds: "(2) Theconrt 
 erred in its answer to delendants' third point 
 as follows: (3) If the jury do not believe 
 Cornelius Carman is a competent witness 
 to prove the execution of the alleged codicil, 
 the verdict must be in favor of the defend- 
 ants. By the Court, AVe deny that point 
 
 as stated. The belief of the jury as to Cor- 
 nelius Carman being a competent witness 
 has nothing to do with his competency. 
 Competency means the legal fitness of a wit- 
 ness to be heard on the trial of a cause. It 
 is a legal question, and the court is the sole 
 judge of his or her competency. Tlie jury 
 has nothing to do in deciding whether they 
 are competent. If the court think they are 
 so interested, or in a position that they can- 
 not testify, they will rule them out; but if 
 they decide he is a competent witness, then 
 that makes his testimony come before you, 
 like that of any other witness. The court is 
 the sole judge of his or her competency. The 
 court admitted Cornelius Carman as a com- 
 petent witness. His testimony, however, is 
 for the jury, like any other witness. His 
 credibility is for them to determine." "(5) 
 The court erred in refusing to allow counsel 
 for defendants below to refer to the almanac 
 for 1865, in his address to the jury." 
 
 iS. H. Reynolds and /. Hay Brown, for 
 plaintiffs in error. A. Herr Smith and D. 
 Q. Eshleman, for defendants in error. 
 
 MITCHELL, J. The competency of Corne- 
 lius Carman was in the first instance clearly 
 a matter for the court, and, no subsequent 
 evidence having raised any dispute of fact 
 upon it, the learned judge was right in say- 
 ing that the court was the sole judge of com- i 
 petfucy, and refusing to allow the jury to( 
 review the ruling. Had the facts upon winch \ 
 the judge held him prima facie competent 
 been denied or contradicted, it might have 
 been oroper to submit the whole matter to 
 the final decision of the jury, (Lee v. Welsh, 
 1 Wkly. Notes Cas. 453,) but there was no 
 such conflict as made that course necessary. 
 The learned judge was also within the line 
 of authorities in holding that Carman had 
 sufficient knowledge of Wilsun's handwriting 
 to make him competent to testify concerning 
 it. It is said to be sufHcient if the witness / 
 has seen the party write but once, and then 
 only his name, (1 Greenl. Ev. § 577;) and 
 probably no higher standard can be fixed for 
 a definite rule, though, considering the un- 
 trustworthiness of opinions on handwriting 
 in general, (see note of Chief Justice Red- 
 held to his edition of Greenleaf, vol. 1, 
 p 578,) such evidence ought to be regarded 
 with great caution. Nor in the nature of 
 things is it possible to fix any arbitrary limit 
 of time within which the witnes.s must have 
 seen the writing done. That must depend 
 on his intelligence, his habit of observation 
 of such matters, the apparent strength and 
 confidence of Iiis memory, etc., which must 
 l)e passed upon in the first instance by the 
 trial judge. Carman's knowledge seems 
 not only to have been extremely stale, but of 
 the narrowest extent; andif the learned judge 
 had held that it was too remote and unreli- 
 able to qualify liim we should not have been 
 disposed to disagree with him. But the mat- 
 ter was within his discretion, and his conclu- 
 sion was, as already said, within tlie line of 
 
 '223 
 
Case No. 76] 
 
 RELEVANCY. 
 
 the authorities. It was therefore for the 
 jury, and not for us, to determine the weight 
 to which the testimony should be entitled. 
 The assignments of error in relation to Car- 
 man's testimony are therefore not sustained. 
 We are obliged, however, to hold that the 
 court erred in refusing to permit the coun- 
 sel for defendant below to refer to the alma- 
 nac to show, in support of his argument 
 against the testimony of iSlargaret Manahan, 
 that a certain date in 1865 fell upon Sunday. 
 All of the authorities agree that this is one 
 of the matters that do not require to be 
 proved, but are talsen judicial notice of with- 
 out evidence. "jSTeither is it necessary to 
 prove * * * the coincidence of days of 
 t.he week with days of the month." 1 Greenl. 
 Ev. § 5 ; and see Stai'key, E v. pt. 3, § 20, (page 
 738, 10th Amer. Ed.) "Itis * * * wholly 
 immaterial * * * whether the facts of 
 public and general history and their dates are 
 recognized by the court suapte sponte, the 
 books and chronicles or almanacs being used 
 merely to aid the memory; or whether they 
 will remain unnoticed until suggested by 
 the parties, and verified by the books; or 
 wlielher the hooks themselves are adduced 
 by the parties, and admitted by the court as 
 instruments of evidence; * * * the pro- 
 cess and the result being in each case the 
 same. " 3 Greenl. E v. § 269. The mere mode 
 of introducing the almanac seems to vary, 
 as indicated by the last extract from Green- 
 leaf; but, as all the authorities agree that no 
 proof is necessary, it follows that it is not 
 required to be put in evidence at all. "The 
 almanac in such cases is used, like the stat- 
 utes, not strictly as evidence, but for the 
 purpose of refreshing the memory of the 
 court and jury." State v. Morris, 47 Conn. 
 179. "The almanac is part of the law of 
 England." Pollock, C. B., in Tntton v. 
 Darke, 6 Hurl. & N. 649. In Hanson v. 
 Shackelton, 4 Dowl. 48, there was a fule to 
 set aside a writ, on the ground tliat it was 
 dated on Sundav, and the report proceeds: 
 "Coleridge, J. Have you any affidavit show- 
 ing that the day on which this writ is dated 
 was a Sunday? Bayly. The affidavit does 
 not state that the day * * * was a Sun- 
 day, but, * * * the day of the month 
 being given, the court is bound to take ju- 
 dicial notice on what day of the week that 
 diiy fell. * * * Cur. adv. mUt. Cole- 
 ri<l(]e, J. I have consulted the other judges 
 of tlie court, and they are of opinion that I 
 ought to take judicial notice of what the day 
 was on wliich this day of the month fell. 
 * * * Rule absolute." So in Reed v, 
 Wilson, 41 N. J. Law, 29, there was a dec- 
 laration on a note dated August 12th, at 
 four months; and on demurrer assigning, 
 inter alia, that the 7iarr. showed demand and 
 protest on December 14th, one day too soon, 
 the court took judicial notice that December 
 
 224 
 
 15th was Sunday, and therefore that the de- 
 mand was made on the proper day. In 
 Railroad Co. v. Lehman, 56 Md. 226, it was 
 held that "it is the duty of the court to no- 
 tice the days of tlie week on which particular 
 days of the month fall; and hence we know, 
 without other averment, (on demurrer,) that 
 the 28th of July, 1878, was Sundav." And 
 in Mcintosh v. Lee, 57 Iowa, 358, 10 N. W. 
 Rep. 895, it was said by the court: "The 
 petition alleges that the defendant entered 
 into the written lease on March 10, 1878. 
 Courts take judicial notice that tlie 10th day 
 of March, 1878, was Sunday. The petition, 
 therefore, in elfect alleges that the lease was 
 executed on Sunday;" and it was therefore 
 held that, under the pleadings, evidence was 
 not admissible that the lease was executed 
 on Monday. These authorities — and none 
 have been found in opposition to them — 
 show clearly that, however often departed 
 from as a matter of convenience, the rule is 
 that matters of which judicial notice is taken, 
 including tlie dates in the almanac, do not 
 require to be put in evidence at all. 
 
 It is argued for the defendant in error that 
 the fact of August 13th having been Sunday 
 did not necessarily contradict Mrs. Mana- 
 han. and therefore that, even if the court be- 
 low committed an error, it was an immateri- 
 al one, for which tlie judgment should not 
 be reversed. But there was an apparent con- 
 tradiction, which at least required explana- 
 tion, and, in a case where the evidence in 
 support of the plaintiff's case was so mea- 
 ger, it is impossible to say that even a slight 
 doubt thrown on the testimony of the main 
 witness would not have turned the scale in 
 the minds of the jury. 
 
 It is also argued that the almanac, having 
 been brought forward at so late a stage in 
 the case, deprived the plaintitf below of the 
 benefit of an argument upon it by one of her 
 counsel. But in this respect it was like any 
 other argument or illustration which counsel 
 may make towards the end of a case. If it 
 has not been anticipated, it is a surprise, and 
 that is a risk which parties must encounter 
 in every case. If counsel had run the cal- 
 Bulation back himself, so as to show that that 
 Say was Sunday, no one could have ques- 
 tioned his right to do so. His reference to 
 the almanac was no more than a reference to 
 the multiplication table, as a labor-saving 
 mode of refreshing or confirming knowledge 
 legally presumed to be in everybody's mind. 
 This kind of surprise is one of the dangers 
 incident to every contest, and the only relief 
 against it is the discretion of the judge, where 
 the new matter or new view may lead to sub- 
 stantial injustice, and is such as could not 
 reasonably have been foreseen, to allow an 
 opportunity of reply, or subsequently to grant 
 a new trial. Judgment reversed, and venire 
 de novo awarded. 
 
HANDWRITING. 
 
 [Case No. 77 
 
 BEVAN V. ATLANTA NAT. BANK. 
 
 (31 N. E. 679, 142 111. 302.) 
 
 Supreme Court of Illinois. June 17, 1892. 
 
 Appeal from appellate court. Third dis- 
 trict. 
 
 Assumpsit by the Atlanta National Bank 
 against John L. Bevan. administrator of the 
 estate of Alice Williams, deceased, upon a 
 promissory note. Plaintiff obtained judg- 
 ment, which was affirmed by the appellate 
 court. Defendant appeals. Reversed. 
 
 Beach & Hodnett, for appellant. F. L. 
 Capps and Blinn & Hoblit, for appellee. 
 
 PER CURIAM. This is an action of as- 
 sumpsit brought by the Atlanta National 
 Bank against John L. Bevan, administrator 
 of the estate of Alice Williams, deceased, up- 
 on a promissory note for ?1,000, which pur- 
 ported to be executed by C. E. Pratt and 
 Alice Williams. To the declaration the de- 
 fendant pleaded the general issue sworn to, 
 and upon a trial the plaintiff recovered a 
 judgment for the amount due on the note, 
 which judgment was affirmed in the appel- 
 late court. No complaint is made against 
 the decision of the court in instructions, but 
 it is claimed that the court erred in its rul- 
 ings in the admission and exclusion of evi- 
 dence, and upon this ground it is insisted 
 that the judgment is erroneous. The note in 
 controversy bears date May 1, 1888, payable 
 60 days after date, to the order of Atlanta 
 National Bank, signed, "C. E. Pratt, Alice Wil- 
 liams." No question was raised in regard to 
 the execution of the note by Pratt, but, as to 
 the execution of the instrument by Alice 
 Williams, on the one hand it is claimed by 
 plaintiff that the note contains her genuine 
 signature, while on the other hand the 'de- 
 fendant, the administrator of her estate, 
 claims that the signature of Alice Williams 
 to the note Is a forgery. 
 
 Stephen A. Foley, a witness for the plain- 
 tiff, testified, against the objection of the de- 
 fendant, that he had a conversation with 
 Alice Williams at Atlanta in July or August, 
 1888, which was, in substance, as follows: 
 "We were talking about family affairs, and 
 finally we came to Charlie, and I asked her 
 if she thought that she would be likely to 
 lose anything by Charlie. I meant Charles 
 E. Pratt. She said she would not. She did 
 not think she should. Charlie had been vei-y 
 good to her, even better than her own chil- 
 dren. She said to me, 'You know I have 
 assisted Charlie, and I don't think I will 
 ever lose anything by it' " It is claimed that 
 the testimony has no reference to the note, 
 and hence is inadmissible. It is true that the 
 note was not mentioned, but it was proper 
 to show the relation existing between the 
 two parties; also that Mrs. Williams had as- 
 sisted Pi-att, and that she did not anticipate 
 any loss on account of the assistance fen- 
 
 ■WILGUSjEV. — 15 
 
 dered; and it was for the jury to determine 
 whether the assistance she had rendered had 
 reference to the note or to some other trans- 
 action. We do not regard the evidence en- 
 titled to much weight, but, at the same time, 
 we think it wfs competent for the considera- 
 tion of the jury in connection with the other 
 evidence. 
 
 On the trial the plaintiff called as a wit- 
 ness Sylvester Hoblit, who testified that he 
 had seen Alice Williams write, and was ac- 
 quainted with her signatm-e, and, upon being 
 shown the note in controversy, he testified 
 that the signature of Alice Williams was her 
 genuine signature. On cross-examination 
 the following questions were asked the wit- 
 ness: "Question. You may now examine a 
 note dated Atlanta, 111., July 14, 1884, for ^.jO, 
 and state whether or not that is one of the 
 signatures of Alice Williams that you saw 
 her make, and upon which you base your 
 knowledge of her handwriting. (Note shown 
 to witness, marked 'No. 3, L. E. W.') Q. 
 If there is any difference in the signature of 
 Alice Williams upon that note and the signa- 
 ture of Alice Williams on the note in contro- 
 versy, you may state in what that difference 
 consists. Q. You may examine the note 
 shown to you dated October 10, 1884, signed 
 by Alice Williams, and state whether or not 
 that is another of the notes you saw her 
 make, and upon which you base your knowl- 
 edge of her signature. (JIarked 'No. 4, L. 
 E. W.,' for identification by stenographer.) 
 Q. If there is any difference between the sig- 
 nature of Alice Williams upon the note last 
 shown you and the signature to the note in 
 controversy, you may state in what particu- 
 lar it exists. Q. You may examine the note 
 shown to you of date June 1, 1885, with the 
 name of Alice Williams signed to it, and 
 state if that is another of the notes you saw 
 her make, and upon which you base your 
 knowledge of her signature. Q. If there is 
 any difference between the signature of Alice 
 Williams upon that note and her signature 
 upon the note in controversy, you may state 
 what it is. (Note marked 'No. 5, L. E. W.,' 
 by stenographer for identification.) Q. Is it 
 not true in all of the notes you saw her sign, 
 and which have been shown to you, and to 
 which your attention has been called, she 
 wrote her name 'Allie Williams?' Q. Is It 
 not true that there is a difference between 
 the signature of Alice Williams on all of 
 these notes you saw her sign, and to which I 
 have called your attention, and upon which 
 you, in Avhole or in part, base your knowl- 
 edge of her signature, and the signature of 
 Alice Williams on the note in controversy? 
 Q. Is it not true in all the notes you saw her 
 sign, and to which your attention has been 
 called here, and upon which you say you 
 base your knowledge of Alice Williams' 
 handwriting, she spells her name different 
 from the way it is spelt in the note in con- 
 troversy?" The plaintiff objected to the sev- 
 
 225 
 
Case Xo. 77] 
 
 KELEVANCY. 
 
 era! questions, the court sustained tlie ob- 
 jection, and tlie defendant excepted. Simi- 
 lar questions were asked other witnesses, 
 and the court made a like ruling. It was 
 claimed by the defendant that Mrs. Williams, 
 in the execution of notes and papers, signed 
 her name "Allie Williams," while the note 
 involved was signed "Alice Williams." Un- 
 der such circumstances, we are induced to 
 think the rule of cross-examination adopted 
 by the court was too restricted. The several 
 notes which the witnesses had seen Mrs. 
 'SA'illiams execute, upon which they predi- 
 cated their opinion that the signature to the 
 note in question was genuine, were produced 
 and shown the witnesses. Now, if in the 
 execution of all of these notes Mrs. Williams 
 made her given name "Allie" instead of 
 "Alice," no reason is i>erceived why it was 
 not competent to establish such fact on cross- 
 examination, for the purpose of testing thb 
 soundness of the opinion given by the wit- 
 nesses that the signature to the note in ques- 
 tion was genuine. In many cases, In order 
 to ascertain the truth and arrive at a correct 
 result, it is necessary that considerable lati- 
 tude be given in the cross-examination of 
 witnesses in order to test the accuracy of 
 their evidence. The genuineness of the sig- 
 natures to the several notes to which the at- 
 tention of the witness was called was not 
 in controversy, and the purpose was not to 
 prove a signature by comparison, but, as 
 was done in Melvin v. Hodges, 71 111. 425, to 
 test the accuracy of the witness' opinion or 
 judgment which had in the direct examina- 
 tion gone to the jury. If the witnesses call- 
 ed by the plaintiff to prove that the signa- 
 ture of Mrs. Williams in the note in ques- 
 tion predicated their judgment, in whole or 
 in part, upon signatures to notes they saw 
 her sign, and the signatures to these notes 
 differed from the signature in the note in 
 question, it seems plain that the defendant 
 had the right to call out that fact in cross- 
 examination, as it was a fact proper for the 
 consideration of the jury in determining what 
 weight they should give to the opinion of the 
 
 226 
 
 tvitnesses who gave their opinion that the 
 note was genuine. 
 
 The defendant offered in evidence the notes 
 which were exhibited to the several witness- 
 es in cross-examination, but the plaintiff ob- 
 jected, and the court sustained the objection, 
 and this decision of the court is relied upon 
 as error. We perceive no ground upon 
 which the notes were admissible in evidence. 
 The law is well settled in this state that the 
 genuineness of a signature to a note or other 
 instrument in writing cannot be proved or 
 disproved by comparing it with another sig- 
 nature, admitted to be genuine. Kernin v. 
 Hill, 37 111. 209; ilassey v. Bank, 104 111. 
 330. It is true that the evidence was not 
 offered for comparison of hands, but that did 
 not obviate the difficulty. There are cases 
 where certain evidence may be competent for 
 one purijose, but incompetent for another; 
 but here we do not regard the offered evi- 
 dence competent for any purpose, and, had it 
 been admitted, its effect on the jury could 
 not have been other than prejudicial to the 
 rights of the plaintiff. 
 
 Several of the witnesses of the plaintiff 
 were asked, on cross-examination, whether 
 they held notes signed by Pratt and Mrs. 
 Williams, where the genuineness of her sig- 
 nature was disputed, or were interested in 
 any bank which held such notes, and the 
 court excluded the evidence. It is not claim- 
 ed that the holding of such a note, or having 
 an interest in the bank which held such a 
 note, would disqualify the witnesses from 
 testifying in the case; but the claim is that 
 the witnesses were interested, and the evi- 
 dence was competent as affecting their credi- 
 bility. It is always competent to show, on 
 cross-examination, that a witness is inter- 
 ested in the result of the suit; but here the 
 witnesses had no direct interest In the result 
 of the suit; the interest, if any, was so re- 
 mote that we do not regard the ruling of the 
 court regarding the evidence as erroneous. 
 For the error indicated the judgment of the 
 circuit and appellate courts will be reversed, 
 and the cause remanded. 
 
 '/ 
 
BEST EVIDENCE. 
 
 [Case Xo. 78 
 
 CANFIELD V. JOHNSON et al. 
 
 NEW ENGLAND MONUMENT CO. v. 
 JOHNSON et al. 
 
 (22 Atl. 974, 144 Pa. St. 61.) 
 
 Supreme Court of Pennsylvania. Oct. 5, 1891. 
 
 Appeal from court of common pleas, Ti- 
 oga county; Johu I. Mitchell, Judge. 
 
 Action of assumpsit toy C. B. Canfleia, sor- 
 viving partner of C. B. Canfield and G. T. 
 Batterson, doing business as the New Eng- 
 land Monument Company, against F. A. 
 Johnson and A. J. Van Dusen, partners as 
 Johnson & Van Dusen. Judgment fov de- 
 fendants, and plaintifCs appeal. Reversed. 
 
 The evidence tended to show that the 
 George Cook Post, G. A. B., determino'l to 
 erect a monument, and appointed a com- 
 mittee to select a suitable design, and pro- 
 cure estimates of the probable cost. I'lain- 
 tiffs, through their agent, one Douglass, sub- 
 mitted a certain design to the comm (,tee, 
 and it was adopted. Afterwards the cjm- 
 mittee held another meeting for the pU''pose 
 of receiving bids, at which Douglass was 
 also present. Plaintiffs claimed that Doug- 
 lass, as their agent, entered into an agree- 
 ment with defendant Johnson, on behalf of 
 d efendants, by which plaintiffs were to al- 
 low defendants to make the lowest bid~?or 
 the erection of the monument, and then that 
 
 plaintiffs should m ake and ship the n ioru- 
 ment according tcTthe design t'urnlshidby 
 them, and adopted by the committee, and 
 defendants were to lay the foundation and 
 put it up; each party, out of the contract 
 price between defendants and the committee, 
 to receive fair pay for the materials fur- 
 nished and work done by them, respectively, 
 and to divide any surplus. Defendants pur- 
 chased the monument from other persons, 
 having it made after the design furnished 
 by plaintiffs, and this action was brought 
 by plaintiffs to recover one-half of the prof- 
 its made by defendants. 
 
 Stephen P. Wilson, Jerome B. Niles, Aaron 
 R. Niles, and Alfred J. Niles, for appellants. 
 G. W. Merrick, M. P. Elliott, and F. E. Wat- 
 rous, for appellees. 
 
 GREEN, J. The contmct in question be- 
 tween these parties was made with the de- 
 fendants by an agent of the plaintiffs. On 
 the trial, the plaintiffs, having examined the 
 agent who made the contract, and proved by 
 him its terms, as he had made it, proposed 
 to prove that he informed thein of what he 
 had done, and that they thereupon accepted 
 the contract, and undertook to execute it. 
 This offer of proof was rejected by the 
 learned court below. It is difficult to under- 
 stand upon what principle this testimony was 
 rejected. The contract having been made 
 through the intervention of an agent, it was 
 clearly competent to show that the action 
 of the agent was communicated to his prin- 
 cipals, and that they accepted and ratified 
 
 the contract as he had made it, and that 
 they undertook to carry it out. It is only 
 In that way that the assent of both parties 
 to the contract can be shown, and their will- 
 ingness to be bound by Its terms established. 
 The first and second assignments are sus- 
 tained. 
 
 The plaintiffs proved by overwhelming tes- 
 timony that the design (No. 161) for the mon- 
 ument was adopted by the Grand Army 
 post and the committee, and that this design 
 was furnished ,by the plaintiffs. In the 
 course of putting in the testimony on this 
 subject, the plaintiffs offered to prove bv 
 whom the design was pre pared, and tha t no 
 similar design~had been made by others. 
 This offer was rejected, for the singular rea- 
 son that no letters patent or copyright of the 
 design had been taken out by the jolaintiffs, \ 
 and therefore they had no exclusive owner- 
 ship therein. We cannot possibly assent to 
 such a doctrine. Most assuredly, when an 
 architect prepares a design for a building, 
 for one who is about to erect such a struc- 
 ture, he is entitled to be paid for it with- 
 out being obliged to have it patented or 
 copyrighted. He would be entitled to com- 
 pensation for it whether it was accepted or 
 not, unless he had expressly agreed other- 
 wise; but certainly, where his design was 
 accepted and actually used by the party to 
 whom it was furnished, it would be a per- 
 version of justice to deny compensation to 
 the designer because he had no patent or 
 copyright for his design. In this particular 
 case, the proof was also admissible because 
 it tended strongly to corroborate the plain- 
 tiffs' claim to having made the contract in 
 question with the defendants. We therefore 
 sustain the third assignment, and we also 
 sustain the tenth, because the narr. counted 
 as well for compensation for use of the de- 
 sign as upon the entire contract alleged. 
 
 We are quite unable to understand why 
 the offers of testimony covered by the fourth, 
 fifth, sixth, eighth, and ninth assignments 
 of error were rejected. They related to the 
 sub j ect of the cost of building the monu - 
 ment and pedestal upon which it was to 
 stand, the cos t of transporting them to the 
 place where they were to be erected, and 
 the cost of setting them up in place. These 
 were all perfectly legitimate matters of 
 proof; indeed, absolutely essential in order 
 to enable the plaintiffs to recover upon their 
 theory of the case; and the sources of the 
 proof were those from which the best at- k 
 tainable information could be obtained. The , 
 persons who actually built the monument 
 which was in reality erected by the defend- 
 ants, and who shipped the same to the de- 
 fendants, were not allowed to testify to the 
 cost of the shipments, though they named 
 the weight and cost per 100 pounds and the 
 final amount paid; the persons who partic- 
 ipated in the transportation of the monu- 
 ment and pedestal from the place where they 
 were made to the place where they were set 
 
 227 
 
Case No. 78] 
 
 PUOOF. 
 
 up were not allowed to testify to their knowl- 
 edge upon that subject; the origina l freigh t- 
 
 .hi lls, containing _ux)on_ their face the precise 
 amounts of freight paid, were rejected for 
 untenable reasons; and the testimony of an 
 experienced and competent person, having an 
 extensive, and claiming to have an accurate, 
 knowledge of the cost of building such mon- 
 uments and pedestals as the one in question, 
 and of the cost of removing and transport- 
 ing them, and of setting them up in place, 
 was entirely rejected, and the plaintiffs 
 thereby deprived of the opportunity of prov- 
 ing the very essential facts of their case. 
 The objections to these offers were that they 
 were incompetent and irrelevant. Irrelevant 
 they certainly were not, because they re- 
 lated to the very matters in controversy. 
 They tended to prove directly how much 
 profit the defendants had made by violating 
 their alleged contract with the plaintiffs. 
 JSTeither were. iMg-incj2iaD£teilt.-]lg£a.H.S£--the 
 persons and the papers_oltoed_were, thj prig- 
 2nal_j)ersons and papers, from whom and 
 
 } which original and material ^information 
 "could be ' oTstained. We have examined all 
 these offers of testimony, and the objections 
 to them, and we are clearly of opinion that 
 they should have been allowed. The objec- 
 tion which seems to be chiefly urged to their 
 admissibility, and which appears to have con- 
 trolled the court below, is that the offers do 
 \not furnish the precise and exact cost in the 
 actual dollars and cents paid by the defend- 
 ants; and it is argued that the plaintiffs 
 might have called the defendants as witness- 
 es, and proved by them the pi-ecise amounts 
 paid in each instance, and, as this was the 
 best evidence, any other testimony was for 
 that reason incompetent. We cannot avoid 
 an expression of surprise that such an objec- 
 tion should have prevailed. It amounts to 
 this: that where a plaintiff who claims dam- 
 ages for the breach of a parol contract for 
 the division of the profits of a mutual trans- 
 action seeks to establish his claim, he must 
 call the defendants to prove the exact 
 amounts paid by them in the course of the 
 transaction, on penalty of having all other tes- 
 timony on that subject rejected. There is no 
 such rule of evidence. The rule that the best 
 evidence of a fact must be produced, if it 
 can be had, has no such meaning. It re- 
 quires that where two different grades or 
 qualities of proof exist, that which is the 
 best shall be adduced, if practicable; as, for 
 instance, the contents of a writing must be 
 proved by the production of the writing be- 
 fore secondary evidence can be given. But 
 that rule has no application to a choice be- 
 
 I tween witnesses, where both have legitimate 
 knowledge of the subject-matter of the in- 
 quiry. Some may have a ' better knowledge 
 than others, but that will not exclude the 
 knowledge of those who ai'e the less in- 
 formed, if it is otherwise competent. It is 
 for the jury to judge of the sufficiency of the 
 proof. So, also, the proof' offered by the 
 
 228 
 
 expert testimony of Mr. Douglass was en- 
 tirely legitimate, and should have been re- 
 ceived. He had a competent experience to 
 qualify him for proving the probable cost of 
 building and transporting the monument and 
 pedestal, and of setting them up, and there- 
 fore he was a competent witness for that 
 purpose. Even if there were others who 
 had a better knowledge than he, that would 
 not exclude his testimony. Least of all 
 would it be excluded because the defendants 
 knew exactly what they had paid, and there- 
 fore would be the only persons who could 
 testify on that subject. Non constat that 
 they paid more than they should have paid, 
 and thus deprive the plaintiffs of more than 
 their legitimate share of the profits which 
 might have been made had the defendants 
 performed their contract literally. The proof 
 of what the defendants did pay rested with 
 them, and their right to give such proof was 
 not at all impaired by admitting the plain- 
 tiffs' offers. After the evidence was all in, 
 the whole case would be for the decision of 
 the jury. All of these several assignments 
 of error are sustained. 
 
 The seventh assignment is not sustained. 
 The mere opinions of the members of the 
 committee, as to whether there was a con- 
 tract between the plaintiffs and defendants, 
 would not be evidence to prove that fact. 
 
 We do not agree with the learned court 
 below in holding that there could not be 
 a recovery in the action of assumpsit. The 
 allegations and proof of the plaintiffs were 
 that the defendants had not carried out the 
 contract with them. They had not engaged 
 in the execution of a contract of partner- 
 ship, or any contract for their mutual ad- 
 vantage or profit. On the contrary, they had 
 proceeded to have the monument and pedes- 
 tal built and placed exclusively on their owq 
 account, and for their own benefit and ad- 
 vantage, and had thus violated the contract 
 which the plaintiffs claimed and gave evi- 
 dence to prove. In other words, they had 
 broken the contract of partnership or joint 
 interest, and therefore no such contract was 
 performed or executed. In such circumstan- 
 ces, the injury or breach which gives a legal 
 remedy is a violation of the contract of part- 
 nership, and not its execution and conse- 
 quent partnership liability. Hence a part- 
 nership bill which lies between persons who 
 actually are partners, and for the settle- 
 ment of the partnership accounts, is not the 
 proper remedy, simply because, although the 
 defendants agreed to become partners with 
 the nlaintiffs in this transaction, in point of 
 fact they did not, and hence the relation did 
 not exist. The action, therefore, must be re- 
 garded as an action to recover damages for 
 the breach of a contract to become partners, 
 and for that jjurpose the proper remedy 
 would be an action of assumpsit on the un- 
 dertaking. But, of course, while all this i& 
 true, the measure of damages would be in 
 accordance with the terms of the contract. 
 
BEST EVIDKNCE. 
 
 [Case No. 78 
 
 to-wit, one-half of the profits which the de- 
 t'endants did make, or ought to have made, 
 in doing the work in question. Hence it was 
 quite legitimate for the plaintiffs to claim 
 in the narr., and to prove on the trial, that 
 they were entitled to have the one-half of 
 those profits from the defendants, and to 
 give evidence as to what those profits were 
 or should have been. Moreover, as this was 
 a single transaction, without any complicated 
 accounts to adjust, we would incline to hold, 
 were it necessary to do so, that the case 
 came properly within the somewhat numer- 
 ous decisions of this court, in which it is 
 held that, where the transaction is single, 
 without complicated accounts, and there are 
 no debts to be adjusted, a bill in equity is 
 not necessary for the settlement of the ac- 
 counts, but an action of assumpsit wUl lie. 
 Instances of this are to be found in Wright 
 V. Cumpsty, 41 Pa. St. 103; Cleveland v. 
 Fararr, 4 Brewst. 27; Galbreath v. Moore, 
 2 Watts, 86; Meason v. Kaine, 63 Pa. St. 
 336. It is not necessary to rest the decision 
 of the present case upon this principle, how- 
 ever, as we regard the proceeding as an ac- 
 tion to recover damages for the breach of a 
 contract to enter into a partnership or joint 
 relation, and not as a proceeding to settle 
 partnership accounts. The eleventh assign- 
 ment is sustained. 
 
 While it may be that there was not suf- 
 ficient evidence to show what the pi-oflts 
 made by the defendants were, that result 
 was largely due to the rejection by the court 
 of the plaintiffs' offers of testimony, and the 
 plaintiffs could not fairly be held responsible 
 therefor. Technically, therefore, the defend- 
 ants' second point may have been correctly 
 answered, in view of the actual state of the 
 admitted testimony, and for that reason only 
 we do not sustain the twelfth assignment. 
 
 The thirteenth assignment is sustained be- 
 cause we do not agree with the learned court 
 below in holding that there was no evidence 
 that Van Dusen had any knowledge of the 
 contract made by Johnson, and that Johnson 
 had no authority to bind the firm by such 
 
 a contract as is alleged by the plaintiffs. It 
 was a contract fairly in the line of their busi- 
 ness, -and therefore within the authority of 
 a partner. Moreover, Johnson, as a partner, 
 was the authorized agent of the firm for 
 the making of contracts within the scope 
 of the firm's business, and we are of opinion 
 that this contract was within that class. In 
 addition to this, however, the letter of Jan- 
 uary 18, 1886, to Douglass, signed by the 
 firm name, and in direct answer to the one 
 written by Douglass to the defendants on 
 January 13th, just preceding, would be quite 
 suflicient to take this question of Van Du- 
 sen's knowledge to the jury. The letter of 
 the firm to Douglass, of November 28, 1885, 
 is in the same category of testimony. But 
 it would require a most violent presumption, 
 against all the probabilities of the case, 
 to declare that Van Dusen had no knowledge 
 of the contract made by Johnson with the 
 plaintiffs, and we do not consider that the 
 court had any right to make such a presump- 
 tion as a matter of law. It was for the jury 
 at the best, and there were plenty of facts 
 and circumstances In the case to enable the 
 plaintiffs to challenge the correctness of any 
 such presumption by the jury. A matter 
 much discussed by the counsel for the de- 
 fendants was the legality of the contract 
 made, or alleged to have been made, by the 
 plaintiffs with the defendants. It was de- 
 cided against the defendants by the court 
 below, and is not before us. We therefore 
 do not consider it, but that circumstance 
 must not be taken as a concession that there 
 was error in the court's ruling on that sub- 
 ject. While there was perhaps some evi- 
 dence that the defendants had made profit out 
 of their work, it was scarcely specific enough, 
 or complete enough, to leave to the jury, and 
 we therefore do not sustain the fourteenth 
 assignment. The fault, however, was due 
 to the improper rejection of the plaintiffs' 
 offers of proof, and they cannot be regarded 
 as responsible for the insufficiency of the 
 proof. Judgment reversed, and new venire 
 awarded. 
 
 229 
 
Case No. 79] 
 
 PROOF. 
 
 GADY v. STATE. 
 (3 South. 429, 83 Ala. 51.) 
 
 Supreme Court of Alabama. Jan. 6, 1888. 
 
 Appeal from criminal court, Jefflerson coun- 
 ty; S. E. Greene, Judge. 
 
 Indictment for embezzlement. 
 
 The indictment in this case charged, in a 
 single count, that the defendant, Ada Gady, 
 "did embezzle, or fraudulently convert to her 
 own use, or fraudulenly secrete with intent 
 to convert to her own use, eighty dollars in 
 money, consisting of ten-dollar bills and twen- 
 ty-dollar bills, currency of the United States 
 of America, a more particular description of 
 which money is unknown to the grand jury; 
 which said money was deposited with said 
 Ada Gady by Charles Reed, the property of 
 said Charles Reed, of the value of eighty dol- 
 lars, and which the said Ada Gady received 
 as the bailee of said Charles Reed." A trial 
 was had on issue joined on the plea of not 
 guilty, which resulted in a verdict of guilty 
 as charged, the value of the money embez- 
 zled being assessed at $60. A motion in ar- 
 rest of judgment was made, on the ground 
 that the indictment "charges no offense, — is 
 too uncertain in the description of the money 
 alleged to have been embezzled;" which mo- 
 tion was overruled. "On the trial," as the bill 
 of exceptions states, "the testimony for the 
 state tended to prove that, about two months 
 before the finding of the indictment in this 
 case, Charles Reed, the prosecutor in this 
 case, gave to the defendant seventy dollars in 
 money, to be safely kept by her, and to be re- 
 turned to him when demanded; that this 
 occurred in said county of Jefferson; that de- 
 fendant returned but ten dollars of said mon- 
 ey to said Reed, and had never paid the bal- 
 ance, although often demanded by him to 
 do so, but had embezzled the same. Said 
 Reed, the witness, could neither read nor 
 write, did not know what kind of money he 
 had delivered to the defendant, and could not 
 tell the jury whether it was French or Span- 
 ish money, or currency of the United States 
 of America. The solicitor handed the witness 
 a ten-dollar bill, which he stated was a na- 
 tional bank-bill of the United States, and ask- 
 ed the witness if it looked like the money he 
 gave the defendant; and the witness answer- 
 ed that it looked like the money he delivered 
 to the defendant. To this question and an- 
 swer, each, the defendant duly objected and 
 excepted. The defendant, then being exam- 
 ined as a witness, stated that she got sixty 
 dollars in greenbacks from said Reed. This 
 was, substantially all the evidence in the case. 
 The defendant thereupon asked the court to 
 
 230 
 
 charge the jury that they must find a verdict 
 of not guilty, if they believed the evidence." 
 The court refused this charge, and the defend- 
 ant excepted. 
 
 W. J. Callahan, for appellant. Thos. N. Mc- 
 Clellan, Atty. Gen., for the State. 
 
 SOMERVILLE, J. 1. The amended return,, 
 made in response to the certiorari issued from 
 this court, shows that the grand jury was- 
 regularly organized and impaneled in accord- 
 ance with the requirements of the statute. 
 This obviates the objection In this particular- 
 based on the original imperfect record, con- 
 ceding that the objection was well founded. 
 
 2. The judgment of the court sentencing the 
 defendant to hard labor to satisfy the costs 
 was perfectly certain, the number of days of 
 imprisonment being specified, as well as the 
 amount of the costs. In this respect it was 
 more full and definite than the judgment of 
 sentence in Hill v. State, 78 Ala. 1, and other 
 cases there cited. 
 
 3. The indictment was good without aver- 
 ring that the money alleged to have been 
 stolen was of any particular value. It being 
 averred to be "currency of the United States 
 of America," the court judicially knows that 
 the bills, as matter of law, were prima facie- 
 of a commercial value equal to that imported 
 by their face. This obviated the necessity of 
 either allegation or proof of such value.. 
 Sands v. State, 80 Ala. 201; Whart. Cr. PI.. 
 (8th Ed.) §§ 216, 218; Duvall v. State, 63 Ala. 
 12; Grant v. State, 55 Ala. 201. 
 
 4. The evidence tended to show that the 
 money alleged to have been stolen was "green- 
 backs," and this was no variance from the 
 description given in the indictment. Levy v. 
 State, 79 Ala. 259; Duvall v. State, 63 Ala. 
 12. 
 
 5. The testimony of the witness Reed, that 
 the money stolen from him "looked like" the 
 ten-dollar bill exhibited by the solicitor to 
 him, in presence of the jury, was relevant as 
 a mode of identification. As the witness could 
 neither read nor write, he could testify to 
 nothing more satisfactory than mere appear- 
 ance or resemblance. The weight of such 
 testimony was for the jury to determine. 
 This testimony was competent whether the 
 bill exhibited was proved to be United States 
 currency or not. 
 
 6. The evidence tended to prove the de- 
 fendant's guilt, as charged in the indictment, 
 and this fact authorized the refusal of the 
 general charge asked in behalf of the defend- 
 ant. 
 
 The judgment of conviction is affirmed. 
 
JUDICIAL NOTICE. 
 
 [Case No. SO 
 
 HANLEY et al. t. DONOGHUE. 
 
 (6 Sup. Ct. 242, 116 U. S. 1.) 
 
 Supreme Court of the United States. Dec. 14, 
 1885. 
 
 In error to the court of appeals of the 
 state of Maryland. 
 
 F. J. Brown, for plaintiffs in error. E. O. 
 Bichelberger, for defendant in error. 
 
 GRAY, J. This was an action brought 
 by Michael Hanley and William P. Welch 
 against Charles Donoghue in the circui t 
 ^"t ourt for Baltim ore cou nty in the state of 
 j^aryland upon a judgment tor $1^,000 r e- 
 covered by the plaintilfs on June 4, 1877, 
 In a n~actio n of covenant' against ' the _de- 
 l endant, Charles Donoglme. togeSer with 
 one John' iJohoghue, in the court jof c om- 
 iWw-pl'eES- of WashtngtSE "county in the state 
 of I'ennsylva nin. i ^nd there recorded. The 
 declaration contained three counts. The first 
 count set forth the recovery and record of the 
 judgment as aforesaid In said court of com- 
 mon pleas, and alleged that it was still in 
 force and unreversed. The second count con- 
 tained similar allegations, and also alleged 
 that in the former action Charles Donoghue 
 was summoned, and property of John Donog- 
 hue was attached by process of foreign at- 
 tachment, but he was never summoned, and 
 never appeared, and that the proceedings 
 in that action were duly recorded in that 
 court. The third count repeated the al- 
 legations of the second count, and further 
 alleged that "by the law and practice of 
 Pennsylvania the judgment so rendered 
 against the two defendants aforesaid is in 
 that state vaUd and enforceable against 
 Charles Donoghue, and void as against John 
 Donoghue," and that, "by the law of Penn- 
 sylvania, any appeal from the judgment so 
 renJered to the supreme court of Pennsyl- 
 vania (which is the only court having juris- 
 diction of appeals from the said court of 
 common pleas) is required to be made with- 
 in two years of the rendition of the judg- 
 ment; nevertheless no appeal has ever been 
 taken from the judgment so rendered 
 against the said defendants, or either of 
 them." The defendant filed a general de- 
 murrer to each and all of the counts, which 
 was sustained, and a general judgment 
 rendered for him. Upon appeal by the 
 plaintiffs to the court of appeals of the 
 state of Maiyland, the judgment was af- 
 firmed. 59 Md. 239. The plaintiffs there- 
 upon sued out this writ of error on the 
 ground that the decision was against a 
 right and privilege set up and claimed by 
 them under the constitution and laws of 
 the United States. 
 
 The question isresented by this writ of 
 error is whether the judgment of the court 
 of appeals of the state of Maryland has 
 denied to the plaintiffs a right and privi- 
 lege to which they are entitled under the 
 first section of the fourth article of the con- 
 
 stitution of the United States, which de- 
 clares that "full faith and credit shall be 
 given in each state to the public acts, rec- 
 ords, and judicial proceedings of every 
 other state; and the congress may by gen- 
 eral laws prescribe the manner in which 
 such acts, records, and proceedings shall be 
 proved and the effect thereof;" and under 
 section 905 of the Revised Statutes, which 
 re-enacts the act of May 26, 1790, c. 11, (1 
 Stat. 122,) and prescribes the manner in 
 which the records and judicial proceedings 
 of the courts of any state shall be authenti- 
 cated and proved, and enacts that "the said 
 records and judicial proceedings, so authen- 
 ticated, shall have such faith and credit giv- 
 en to them in every court within tlie United 
 States as they have by law or usage in the 
 courts of . the state from which they are 
 talven." 
 
 By the settled construction of these pro- 
 visions of the constitution and statutes of 
 the United States, a judgment of a state 
 court, in a cause within its jurisdiction, and 
 against a defendant lawfully summoned, 
 or against lawfully attached property of 
 an absent defendant, is entitled to as much 
 force and effect against the person sum- 
 moned or the property attached, when the 
 question is presented for decision in a court 
 of another state, as it has In the state in 
 which it was rendered. MaxAvell v. Stew- 
 art, 22 Wall. 77; Insurance Co. v. Harris, 
 97 U. S. 331; Green v. Van Buskirk, 7 Wall. 
 139; Cooper v. Reynolds, 10 Wall. 308. And 
 it is within the power of the legislature of 
 a state to enact that judgments which shall 
 be rendered in its courts in actions against 
 joint defendants, one of whom has not been 
 duly served with process, shall be valid as 
 to those who have been so served, or who 
 have appeared in the action. Mason v. 
 Eldred, 6 Wall. 231; Eldred v. Bank, 17 
 Wall. 54.j; Hall v. Lanning, 91 U. S. 160, 
 168; Sawin v. Kenny, 93 U. S. 289. 
 
 Much of the argument at the bar was de- 
 voted to the discussion of questions which 
 the view that we take of this case ren- 
 ders it unnecessary to consider; such as 
 the proper manner of impeaching or avoid- 
 ing judgments in the state in which they are 
 rendered, for want of due service of process 
 upon one or all of the defendants; or the 
 effect which a judgment rendered in one 
 state against two joint defendants, one of 
 whom has been duly summoned and the oth- 
 er has not, should be allowed against the 
 former in the courts of another state, with- 
 out allegation or proof of the effect which 
 such a judgment has against him by the 
 law of the first state. No court is to be 
 charged .withthe_knowledge^ o f foreign law_s ; 
 but ^ they , are _ .jrell un(lerstoQ3~^to__b e fa"cts 
 w hich mu st, like other fgctSj^ be^grovedjie- 
 f or e they can be received in a court of jua- 
 tice. Talbot v. Seeman, 1 Cranch.,,_l,. 38:. 
 Ch«rch^_v. Hubbart^ _'2 Cra,neh, 187, 236; 
 Strother v. Lucas, 6 Pet. 763^ 76S;'T)ainese 
 
 231 
 
Case No. 80] 
 
 PKOOF. 
 
 V. Hale, 91 U. S. 13, 20. Jt is equally well 
 settled t hat^the several sta^~or'-ffie_ Oai"'^ 
 are to be_ considereS" as fn this respect for- 
 eign to je^aclf of Her, and tfiat the courts of 
 one state are not presumed to know, , .and 
 tTierelqreJiot b6und_ to" take judicial notice 
 j)f, the laws of another state. In Buckner 
 v. Finley, 2 Pet. 586, iu which it was held 
 that bills of exchange drawn iu one of the 
 states on persons living in another were for- 
 eign bills, it was said by Mr. Justice W.nsh- 
 ington, delivering the unanimous opinion of 
 this court: "For all national purposes em- 
 braced by the federal constitution the states 
 and the citizens thereof are one, united un- 
 der the same sovereign authority, and gov- 
 erned by the same laws. In all other re- 
 spects the states are necessarily foreign to 
 and independent of each other; their consti- 
 tutions and forms of government being, al- 
 though republican, altogether different, as 
 are their laws and institutions." 2 Pet. 590. 
 Judgments recovered in one state of the 
 Union, when proved in the courts of anoth- 
 er, differ from judgments recovered in a for- 
 eign country in no other respect than that 
 of not being re-examinable upon the merits, 
 nor impeachable for fraud in obtaining 
 them, if rendered by a court having juris- 
 diction of the cause and of the parties. 
 Buckner v. Finley, 2 Pet. 592; McElmoyle v. 
 Cohen, 13 Pet. 312, 324; D'Arcy v. Ketchum, 
 11 How. IC.j, 176; Christmas v. Russell, 5 
 Wall. 290, 305; Thompson v. Whitman, 18 
 ■S^'all. 457. Congi'ess, in the execution of the 
 power conferred upon it by the constitution, 
 having prescribed the mode of attestation 
 of records of the courts of one state to enti- 
 tle them to be proved in the courts of anoth- 
 er state, and having enacted that records so 
 authenticated shall have such faith and 
 credit in every court within the United 
 States as they have by law or usage in the 
 state from which they are taken, j\ ropnrri | 
 of a. judgment so authenticat ed dou btless 
 proy^sJtsrif_jwiUlcujtilirltl££ evidence; _and 
 i f it appears upon its face to be .jj^asri of. 
 a jxfflEtj)f. general, jurisdiction, ,tl}ejurisdic- 
 ii2fl_2JLUi&JCOurt oy.eEJIiejiause and_the par- 
 ties is to be presumed, unless disproved_by 
 extrinsic evidence, or by ''tlie^l'ecord itself. 
 Snowies V. Gas-Light & Coke Co., 19 Wall. 
 58; Settlemier v. Sullivan, 97 U. S. 444. But 
 congress has not undertaken to prescribe in 
 Avhat manner the effect that such judgments 
 have in the courts of the state in which they 
 are rendered shall be ascertained, and has 
 left that to be regulated by the general I'Ules 
 of pleading and evidence applicable to the 
 subject. 
 
 Upon principle, therefore, and according to 
 the great preponderance of authority (as is 
 shown by the cases collected In the mar- 
 gin 1 ), whenever it becomes necessary for 
 
 1 Scott V. Coleman, 5 Litt. 349; Thomas v. 
 Robinson, 3 Wend. 267; Sheldon v. Hopkifis, 
 7 Wend. 435; A'an Buskirk v. Mulock, 18 N. 
 
 232 
 
 a court of one state, in order to give full 
 faith and credit to a judgment rendered in 
 another state, tq ^ ascerta in the effect which 
 it has in that state, th"e"~raw o f that state 
 must be proved, Jike a5y_J>tber_ matte r__Qf ' 
 fact. The opposing decisions in Ohio v. 
 Hinchman, 27 Pa. St. 479, and Paine v. Sche- 
 nectady Ins. Co., 11 R. I. 411, are based up- 
 on the misapprehension that this court, on 
 a writ of error to review a decision of the 
 highest court of one state upon the faith 
 and credit to be allowed to a judgment ren- 
 dered in another state, always takes notice 
 of the laws of the latter state; and upon the 
 consequent misapplication of the postulate 
 that one rule must prevail in the court of 
 original jurisdiction and in the court of last 
 resort. When exercising an original juris- 
 diction under the constitution and laws of 
 the United States, this court, as well as ev- 
 ery other court of the national government, 
 doubtless takes notice, without proof, of the 
 laws of each of the United States. But in 
 this court, exercising an appellate jurisdic- 
 tion, whatever was matter of law in the 
 court appealed from is matter of law here, 
 and whatever was matter of fact in the 
 court appealed from is matter of fact here. 
 In the exercise of its general appellate juris- 
 diction from a lower court of the United 
 States, this court takes judicial notice of the 
 laws of every state of the Union, because 
 those laws are known to the court below as 
 laws alone, needing no averment or proof. 
 Course v. Stead, 4 Dall. 22, 27, note; Hinde 
 v. Vattier, 5 Pet. 398; O wings v. Hull, 9 
 Pet. 607, 625; U. S. v. Turner, 11 ta.ow. 663, 
 668; Pennington v. Gibson, 16 How. 65; 
 Covington Drawbridge Co. v. Shepherd, 20 
 How. 227, 230; Cheever v. Wilson, 9 Wall. 
 108; Junction R. Co. v. Bank of Ashland, 
 12 Wall. 226, 230; Lamar v. Micou, 114 U. 
 S. 21R, 5 Sup. Ct. 857. But on a writ of er- 
 ror to the highest court of a state, in which 
 the revisory power of this court is limited to 
 determining whether a question of law de- 
 pending upon the constitution, laws, or trea- 
 ties of the United States has been erroneous- 
 ly decided by the state court upon the facts 
 before it, while the law of that state, being 
 known to its courts as law, is of course 
 within the judicial notice of this court at 
 the hearing on error; yet, as in the state 
 court, the laws of another state are but 
 facts, requiring to be proved in order to be 
 considered, this court does not take judicial 
 notice of them, unless made part of the rec- 
 ord sent up, as in Green y. Van Buskirk, 7 
 
 J. Law, 184; Elliott v. Ray, 2 Blackf. 31; 
 Cone V. Cotton, Id. 82; Snyder v. Snvder, 25 
 Ind. 399; Pelton v. Platner, 13 Ohio, 209; Hor- 
 ton V. Critchfiold, 18 111. 133; Rape v. Heaton, 
 9 Wis. 328; Crafts v. Clark, 31 Iowa, 77; 
 Taylor v. Barron, 10 Post. 78, and 35 N. H. 
 484; Knapp v. Abell, 10 Allen, 485; Mowry v. 
 Ohase, 100 Mass. 79; Wright v. Andrews. 130 
 Mass. 149; Bank of U. S. v. Merchants' Bank, 
 7 Gill, 415, 431; Coates t. Mackey, 56 Md. 
 416, 419 
 
JUDICIAL NOTICE. 
 
 [Case No. 80 
 
 Wall. 139. The case comes, in principle, 
 • within the rule laid down long ago by Chief 
 Justice Marshall: "That the laws of a for- 
 eign nation, designed only for the direction 
 of its own affairs, are not to be noticed by 
 the courts of other countries, unless proved 
 as facts, and that this court, with respect to 
 facts, is limited to the -statement made in 
 the court below, cannot be questioned." 
 Talbot V. Seeman, 1 Granch, 1, 38. Where 
 by the local law of a state, as in Tennessee 
 <Hobbs V. Memphis & O. R. Co., 9 Heisk. 
 873), its highest court takes judicial notice 
 of the laws of other states, this court, also, 
 on writ of error, might take judicial notice 
 of them. But such is not the case in Mary- 
 land, where the court of appeals has not 
 only affirmed the general rule that foreign 
 laws are facts which, like other facts, must 
 be proved before they can be received in ev- 
 idence in courts of justice, but has held that 
 the efCect which a judgme^it rendered in an- 
 other state has by the law of that state is a 
 matter of fact, not to be judicially noticed 
 without allegation and proof; and conse- 
 quently that an allegation of the effect 
 which such a judgment has by law in that 
 state is admitted by demurrer. Baptiste v. 
 De Volunbrun, 5 Har. & J. 86, 98; Wernwag 
 
 v. Pawling, 5 Gill & J. 500, 508; Bank of XT. 
 S. V. Merchants' Bank, 7 Gill, 415, 431; 
 Coates V. Mackey, 56 Md. 416, 419. 
 
 From these considerations it follows that 
 the averment In the third count of the dec- 
 laration, that by the law of Pennsylvania- 
 the judgment rpndpred in that sjtate agains t 
 Charles Donoghue and John Donoghue was 
 valid and enforceable against Charles, who 
 had been served with process in that state, 
 and void against John, who had not been so 
 served, must be considered, both in th e 
 courts In Mary land and in this court, on 
 writ of _er.ror to"one of *t!ti9S.e~courT%'an al- 
 legation of fact admitted by the demurrer. 
 Upon the record before us, therefore, the 
 plaintiff appears to be entitled, under the 
 constitution and laws of the United States, 
 to judgment on this count. It having been 
 admitted at the bar that the other counts 
 are for the same cause of action, it is unnec- 
 essary to consider them. The general judg- 
 ment for the defendant is erroneous, and the 
 rights of both parties will be secured by or- 
 dering, in the usual form, that the judgment 
 of the court of appeals of Maryland be re- 
 versed, and the case remanded to that court 
 for further proceedings not inconsistent 
 with this opinion. 
 
 233 
 
Case No. 81] 
 
 PBOOF. 
 
 LLOYD v. MATTHEWS et al. 
 
 (15 Sup. Ct. 70, 155 V. S. 222.) 
 
 Supreme Court of the United States. Dec. 3, 
 1894. 
 
 No. 81. 
 
 In Error to the Court of Appeals of the State 
 of Kentucky. 
 
 Hattie A. Matthews held the denaand note 
 of E. L. Hai-per for $5,000, on which the in- 
 terest had been paid to January 1, 1882. 
 June 21, 1887, Harper was the owner of some 
 shares of stock in the Fidelity Building, Sav- 
 ings & Loan Company of Newport, Ky., 
 worth about $5,000, which he, being insol- 
 vent, transferred on the morning of that day 
 to Miss Matthews in part payment of the 
 debt, by blank indorsement in the building 
 company's book. Afterwards the name of 
 J. H. Often was inserted as a proper person 
 to obtain the money, and for this reason he 
 was made a party to these proceedings, 
 though having no real interest therein. A 
 few hours after the transfer. Harper made 
 an assignment of all his property for the ben- 
 efit of his creditors under the insolvent laws 
 of Ohio, and, the person named as assignee 
 failing to qualify, H. P. Lloyd, the present 
 plaintiff in error, was appointed, by the prop- 
 er court, such assignee. Certain creditors of 
 Harper brought suit in the chancery court of 
 Campbell county, Ky., on their several debts, 
 and attached the stock as the proijerty of 
 Harper. These cases were consolidated, and 
 while tliey were pending, September 16, 1887, 
 Miss Matthews and Otten filed their joint 
 petition to be made parties defendant, which 
 was done. They alleged the ownership by 
 Harper of the stock; the transfer by indorse- 
 ment in the book, which was made an ex- 
 hibit; that Miss Matthews was a creditor of 
 Harper to an amount equal to the face value 
 of the stock; that the transfer of the stock was 
 made some hours before the execution of the 
 deed of assignment by Harper, and was bona 
 fide, and for a valuable consideration, and 
 passed all Hai-per's interest; that Harper 
 was a citizen and resident of the state of 
 Ohio at the time of the assignment and there- 
 tofore; that "by the laws in existence at that 
 time in said state of Ohio, debtors had the 
 right to make preferences in the payment of 
 their creditors, either in the deed of assign- 
 ment or by paying them theretofore, in such 
 a way as they saw proper"; that Lloyd had 
 been made a party as assignee, and was 
 claiming the stock as part of Harper's estate, 
 while the plaintiffs in the consolidated cases 
 asserted their claims under the attachments; 
 and praying that the stock be adjudged to 
 Miss Matthews. January 14, 1888, Mis« Mat- 
 thews and Otten filed a joint amended an- 
 swer, attaching the note as an exhibit, and 
 making this and their former petition a cross 
 petition. On the same day Lloyd, assignee, 
 filed a reply to the answer and answer to the 
 
 234 
 
 cross petition. This pleading contained five 
 paragraphs. The first denied that Harper 
 owed Miss ilatthews anything at the time the 
 stock was assigned; admitted that at the time 
 of the execution of the assignment Harper 
 and Miss Matthews were both citizens and 
 residents of the state of Ohio; denied "that 
 at the time of making said assignment debt- 
 ors had by the laws of the state of Ohio the 
 right to prefer their creditors in the deed of 
 assignment." The second paragraph assert- 
 ed that the transfer and conveyance of the 
 stock to Otten by Harper was made for the 
 purpose and with the intent to defraud the 
 creditors of Harper of their just and lawful 
 debts, and that such transfer and assignment 
 was fraudulent and void under and by virtue 
 of section 4196 of the Revised Statutes of the 
 state of Ohio, which provided as follows, ta 
 wit: 
 
 "Every gift, grant, or conveyance of lands, 
 tenements, hereditaments, rents, goods or 
 chattels, and every bond, judgment or execu- 
 tion made or obtained with intent to defraud 
 creditors of their just and lawful debts or 
 damages, or to defraud or to deceive the per- 
 son or persons purchasing such lands, tene- 
 ments, hereditaments, rents, goods or chat- 
 tels, shall be deemed utterly void and of no 
 effect." 
 
 The third paragraph denied any considera- 
 tion for the transfer. The fourth alleged the 
 transfer to be fraudulent and done with in- 
 tent to hinder and delay Harper's creditors. 
 The fifth averred that the transfer was made 
 by Harper with the intent to prefer Miss Mat- 
 thews, if she was a creditor, which defend- 
 ant denied, over his otlier creditors, and was 
 void under section 6343 of the Revised Stat- 
 utes of the state of Ohio, which reads as fol- 
 lows: 
 
 "All assignments in trust to a trustee or 
 trustees, made in contemplation of insolven- 
 cy, with the intent to prefer one or more cred- 
 itors, shall inure to the equal benefit of all 
 creditors in proportion to the amount of their 
 respective claims, and the trusts arising un- 
 der the same shall be administered in con- 
 formity with the provisions of this chapter." 
 
 On May 18, 1888, Miss Matthews filed reply 
 to the original answer and cross petition of 
 Lloyd, trustee, as follows: 
 
 "The defendant Hattie A. Matthews, for re- 
 ply to answer and cross petition of H. P. 
 Lloyd says she admits B. L. Harper was in- 
 solvent when he assigned the building as- 
 sociation stock to her. 
 
 "She admits that he assigned the stock to 
 her with the intention to prefer her to the 
 exclusion of the creditors, but, as was stated 
 in her original pleadings, this was allowable 
 under the laws of Ohio. 
 
 "She denies that under the provisions of 
 the laws which are set out In said pleading 
 of Lloyd, to which this is a reply, there is 
 anything which Invalidates the transfer of 
 
JUDICIAL NOTICE. 
 
 [Case No. 81 
 
 the stock to this defendant, the same involved 
 in the case. 
 
 "Wherefore the defendant prays as In her 
 original pleadings, and for general relief." 
 
 The chancery court rendered judgment In 
 favor of Lloyd, trustee, for the full value of 
 the stock, amounting as a money demand 
 against the building association to the sum 
 of $4,914.89, and Miss Matthews and Otten 
 appealed to the court of appeals of the state 
 of Kentucky, which reversed the judgment of 
 the chancery court, and remanded the cause, 
 with directions to render judgment in favor 
 of Miss Matthews, in conformity to the opin- 
 ion. Matthews v. Lloyd, 89 Ky. 625, 13 S. 
 W. 106. 
 
 To review this judgment a writ of error 
 from this court was allowed. 
 
 H. P. Lloyd and C. L. Raison, Jr., for 
 plaintiff in error. Chas. H. Fisk and Chas. 
 J. Helm, for defendant in error. 
 
 Mr. Chief Justice FULLER, after stating 
 tlie facts in the foregoing language, delivered 
 the opinion of the court. 
 
 The federal question upon .which plaintiff 
 relies to sustain our jurisdiction is that, under 
 the statutory law of Ohio set out in his plead- 
 ing, the transfer of the stock in question was 
 void, and that the court of appeals of Ken- 
 tucky in rendering judgment did not give 
 that full faith and credit to the public acts, 
 records, and judicial proceedings of the state 
 of Ohio which the constitution and the law of 
 the United States require. Const art. 4, § 1; 
 Rev. St. § 905. 
 
 The first error assigned is as follows : "The 
 com-t of appeals of Kentucky erred in the de- 
 cision rendered in this case below, in falling 
 to give full faith and credit to the laws of 
 the state of Ohio which were presented in the 
 pleadings, in failing to give full faith and 
 credit to the judicial construction of such 
 laws by the highest court of said state, and 
 in failing to give full faith and credit to the 
 judicial proceedings of the probate court of 
 Hamilton county, Ohio, as set forth in the 
 pleadings." 
 
 We do not find that the record contains any 
 judicial proceedings of the probate covu-t of 
 Hamilton county, Ohio, but suppose the refer- 
 ence to be to proceedings in insolvency upon 
 the filing of the deed of assignment by Har- 
 per, under which Lloyd, trustee, claims, and 
 that such Insolvency proceedings could have 
 no greater effect on the question of title than 
 allowed by the laws of Ohio in the matter of 
 the preference of creditors. 
 
 The court of appeals of Kentucky held that, 
 as the parties all resided in Ohio, and the en- 
 tire transaction occurred there, its validity 
 was to be tested by the law in force there; 
 that at common law a debtor had a right to 
 prefer a creditor, either by payment or an 
 express preference in a deed of assignment; 
 that he had a right to pay his debt, and it 
 was only by virtue of statutory law that such 
 
 a payment could be held invalid, and the 
 creditor be compelled to smTcnder his ad- 
 vantage; that in the absence of any showing 
 of the existence of such a statute in another 
 state, it must be presumed that the common 
 law was in force there; that section 6343 of 
 the Revised Statutes of Ohio, set out in the 
 pleadings, did not appear "to embrace a case 
 like this one, but to relate alone to prefer- 
 ences made in deeds of assignment to trustees- 
 for creditors generally"; that this transfer 
 could not properly be held to be a part of the 
 deed of assignment; and that, tested by the 
 rules of the common law, the preference was 
 not invalid. 
 
 Now, in arriving at these conclusions, the 
 court of appeals did not concur with the 
 views of Harper's assignee; but does it there- 
 fore follow that full faith and credit was de- 
 nied to the laws of Ohio and to the con- 
 struction of such laws by the highest court of 
 that state? The courts of the United States, 
 when exercising their original jurisdiction, 
 take notice, without iwoof , of the lawis of the 
 several states; but in the supreme coui-t of 
 the United States, when acting under its ap- 
 pellate jurisdiction, whatever was matter of 
 fact in the state court whose judgment or de- 
 cree is under review is matter of fact there. 
 And whenever a court of one state is required 
 to ascertain what effect a public act of an- 
 other state has in that state, the law of such 
 other state must be proved as a fact. Chi- 
 cago & A. R. Co. V. Wiggins Ferry Co., 119 
 U. S. 615, 7 Sup. Ct 398; Hanley v. Donoghue, 
 116 U. S. 1, 6 Sup. Ct. 242. 
 
 The court of appeals was obliged to deter- 
 mine the case on the record, and plaintiff in 
 error had failfed to plead the construction 
 given the Ohio statutes by the com-ts of Ohio, 
 or to introduce the printed books of cases ad- 
 judged in the state of Ohio, or to prove the 
 common law of that state by the parol evi- 
 dence of persons learned in that law, or to 
 put in evidence the laws of that state as 
 printed under the authority theredf, or a 
 certified copy thereof, as provided by the law 
 of Kentucky. Gen. St Ky. 1888, c. 37, §§ 17, 
 19, pp. 546, 547. 
 
 The com-t of appeals was left, therefore, to 
 construe the parts of the Ohio laws that were 
 pleaded as it would local laws; and it is set- 
 tled that under such circumstances, whei'e 
 the validity of a state law is not drawn in 
 question, but merely its construction, no i 
 federal question arises. As was remarlied in 
 Glenn v. Garth, 147 U. S. 360, 368, 13 Sup. 
 Ct. 350: "If every time the courts of a state 
 put a construction upon the statutes of an- 
 other state, this court may be required to de- 
 termine whether that construction was or 
 was not coiTect, upon the ground that if it 
 were concluded that the construction was in- 
 correct it would follow that the state com-ts 
 had refused to give full faith and credit to 
 the statutes involved, om- jurisdiction would 
 be enlarged in a manner never heretofore be- 
 
 235- 
 
Case No. 81] 
 
 PHOOr. 
 
 lieved to have been contemplated." Banking 
 Co. V. Marshall, 12 How. 10 j; Cook Co. v. 
 Calumet & C. Canal & Dock Co., 138 U. S. 
 635, 11 Sup. Ct. 435. 
 
 This record contains nothing to show as 
 matter of fact that the public acts of Ohio 
 had by law or usage in Ohio any other effect 
 23a 
 
 than was given them by the court of appeals 
 of Kentucky. 
 Writ of error dismissed. 
 
 Mr. Justice HARLAN was of opinion that 
 the writ of error should be retained and the 
 Judgment aflirmed. 
 
JUDICIAL NOTICE. 
 
 [Case No. 82 
 
 STATE ex rel. THAYER v. BOYD. 
 (51 N. W. 964, 34 Neb. 435.) 
 Supreme Court of Nebraska. April 7, 1892. 
 On motion to reinstate. Motion denied. 
 M. B. Reese, Josepli H. Blair, and Cbas. 
 A. Goss, for the motion. J. 0. Oowin, op- 
 posed. 
 
 POST, J. A sufficient statement of the 
 facts in this case will be found in the sev- 
 eral opinions heretofore filed (31 Neb. 682. 
 48 N. W. 739. and 12 Sup. Ot. 375), revers- 
 ing the judgment of ouster against the re- 
 spondent In favor of the relator, and re- 
 manding the case for further proceedings in 
 this court. On the 15th day of March the 
 respondent filed vsfith the clerk of this court 
 the mandate from the supreme court of the 
 United States, and moved for judgment in 
 his favor on the pleadings. The motiou 
 aforesaid came on for hearing the next day, 
 in accordance with the practice of the court, 
 and was sustained, and the action dismissed, 
 the relator making no appearance. The re- 
 lator now, by the motion under consideration, 
 asks to have the judgment of dismissal set 
 aside, and for leave to reply and proceed to 
 trial on the merits of the case. It is claimed 
 by him that his failure to resist the motion 
 for judgment is not attributable to any fault 
 or negligence on his part, but to the fact .that 
 he was at the time in question absent, in a 
 distant part of the state, and had no notice 
 of the respondent's intention to take any ac- 
 tion at that time. This claim, in my judg- 
 ment, is fully sustained by the affidavits ac- 
 companying the motion, which are not con- 
 tradicted. If this were an ordinary proceed- 
 ing, — that is, one in which a cause of action 
 by a competent and proper party is con- 
 ceded, — I would say without hesitation that 
 the present motion should be sustained. It 
 could not, in that case, be denied, without 
 reversing the rule which has prevailed in this 
 court since my first acquaintance with it. 
 The respondent as well as the court acted 
 upon the assumption that due and sufficient 
 notice of his motion had been given. The 
 neglect to give proper notice was occasion- 
 ed by a change of counsel for the relator. It 
 is evident that the parties were acting in 
 good faith, and we have no occasion to im- 
 pute blame to any one for the failure. 
 
 It is insisted by counsel for the relator 
 that the only question detei-mined by the 
 supreme court of the United States is that 
 the naturalization of the respondent's fa- 
 ther is well pleaded in the answer; in other 
 words, that under the allegations thereof re- 
 spondent might prove that his father com- 
 pleted his naturalization during his (respond- 
 ent's) minority; and he accordingly ten- 
 ders a reply in the nature of a general de- 
 nial of that part of the answer. It is not 
 necessary for the purpose of this motion to 
 consider the question of the citizenship of 
 the respondent, or to determine to what ex- 
 
 tent, if at all, the judgment of the supreme 
 court is conclusive on that question, since 
 the motion should be denied on other grounds. 
 Nor is it necessary to determine whether, in 
 case the respondent is not a citizen, and 
 therefore not eligible to the office of governor, 
 the relator or the lieutenant governor would 
 be entitled to the possession and emoluments 
 thereof. Whatever right the relator may 
 have had to institute this action in the first 
 instance, it is clear to my mind that he has 
 now no authority to prosecute it further. It 
 appears from the records in this case that a 
 ^rit of ouster was issued from thi s co urt, by i 
 virtue of which the res£ondent^ was_remov- 
 .e"d froiji_the oBice of _governorj_and _the re- 
 lator installed therein. Itia a fact oFwETch 
 we must take no ti ce thaF the resp ongent is ; 
 now in p ossession~of said office, and dis char - 
 ging the duties thereof. We know, too, from 
 our records, that no order has been allowed 
 or issued for restoration to respondent of the 
 office from which he was ousted. The infer- 
 ence Is, therefore, that the office was volun- 
 tarily surrendered by the relator. It is not 
 necessary, however, to rest our conclusion 
 upon an Inference. That the rela tor._Qn t)i(^ 
 8th day of Februa;grj_1892, _v^jintari.ly, ,aBd 
 on his own motion, sun-endered the offic e 
 in quest ion to the re sponden t, is a fact which j 
 ought to^be^jid Is geMraily known. It Is ; 
 a' part of the political hist6ry~tiT" the sfate, 
 oT'vyhich the cotiTts will take notice without 
 proof. 1 Greenl. Ev. 6; Brown y. Piper, 91 
 U. S. 37, 12 Am. & Bng. Enc. Law, 151. 
 
 It Is a rule well settled in this state that 
 a private person, having no direct interest 
 in the office in controversy, cannot maintain, 
 on his own relation, proceedings by quo war- 
 ranto to test the title of another thereto. 
 State V. Stein, 13 Neb. 530, 14 N. W. 481; 
 State V. Hamilton, 29 Neb. 198, 45 N. W. 
 279. Having voluntar-ily surrendered the of- 
 fice, the relator has no better title thereto, 
 or right to prosecute this action, than any 
 other private citizen of this state. His title 
 is possessory only. His right to hold over In 
 case the respondent Is Ineligible is at most 
 an incident to his prior possession of the of- 
 fice. The distinction should be kept in mind 
 between this case and one in which the state 
 in its sovereign capacity Interposes In the 
 manner prescribed by law for the purpose of 
 testing the title of an incumbent to an of- 
 fice. The statutory authority for this pro- 
 ceeding is found in section 1, c. 71, Comi,.. 
 Laws, as follows: "Section 1. When any cit- 
 izen of this state shall claim any office which 
 is usurped, invaded, or unlawfully held and 
 exercised by another, the person so claim- 
 ing such office shall have the right to file 
 In the district court an information in the 
 nature of a quo warranto, upon his own re- 
 lation, and with or without the consent of 
 the prosecuting attorney, and such person 
 shall have the right to prosecute said in- 
 formation to final judgment: provided, he 
 shall have first applied to the prosecuting at- 
 
 237 
 
Case No. 82] 
 
 PKOOF. 
 
 torney to file the information, and the pros- 
 ecuting attorney shall have refused or neg- 
 lected to file the same." The proceeding con- 
 temiDlated by the section quoted is a contest 
 between two claimants for an otfice. It does 
 not differ materially from any other conten- 
 tion involving private rights. Like other ea- 
 ses in which the plaintilf relies upon prior 
 possession as evidence of title, proof of a 
 voluntary abandonment is a complete de- 
 fense. It is said in Shortt on Informations 
 {Am. Ed.) 183: "He alone is a competent 
 relator who has some interest other than 
 such as belongs to the community at large 
 in the question to be tried by the quo war- 
 ranto, and who has not by any of the meth- 
 ods already adverted to disqualified himself 
 from acting as prosecutor." Among the acts 
 which are referred to above as disqualifying 
 one to act as relator are the following (page 
 177), viz.: Where it is sought to impeach a 
 title conferred by a corporation election, in 
 which the relator has concurred. Where the 
 relator was present and concurred in the 
 election of the respondent as mayor. AVhere 
 it was claimed an election to membership in 
 a board of health was void for the reason 
 that the oflicial ballots were informal, it was 
 hold that the relator was disqualified by rea- 
 son of having voted a similar ballot. This 
 case is clearly within the principle of these 
 authorities. The act of the relator in sur- 
 rendering the office to the respondent, and 
 voluntarily retiring therefrom, disqualifies 
 him to longer act as relator, and is in effect 
 an abandonment of the action. 
 
 It is suggested that the surrender of the 
 oflice to the respondent was the result of 
 a misconception of the effect of the judg- 
 ment of the supreme court of the United 
 States, and of what issues are concluded 
 
 238 
 
 thereby. In his affidavit he says, in sub- 
 stance, that on the 8th day of February he 
 was induced to believe that when the man- 
 date of that court was received it would con- 
 tain an order to this court to enter judg- 
 ment that the respondent had for more than 
 two years last prior to the general election 
 in 1890 been a citizen of the United States. 
 The records of the courts in this country are 
 always accessible to those interested in their 
 judgments and decrees. A mandate is a ju- 
 dicial command, issued by a court or magis- 
 trate, directing the proper officers to enforce 
 a judgment or decree. Bouv. Law Diet. The 
 relator was bound to know, and we must as- 
 sume did know, that the mandate, when is- 
 sued, would be merely a direction to take 
 further proceedings In accordance with the 
 judgment of the supreme court. The judg- 
 ment of that court, if entered, was notice to 
 relator of what issues were concluded there- 
 by. If judgment had not been formally en- 
 tered upon the records of the court, he must 
 have known from the opinions filed to what 
 extent his rights were determined by the 
 court. It is a fact within our knowledge that 
 the substance of the opinions was made pub- 
 lic within a few hours of the time they were 
 filed. It is not enough for relator to an- 
 swer that he was wrongly informed as to the 
 effect of the decision. He was bound at his 
 peril to know the law of the case as declared 
 by the court of last resort. Since it is ap- 
 parent that the relator is without authority 
 to further prosecute, and that this proceed- 
 ing must for that reason result in a judg- 
 ment for the respondent, it is evident that 
 the motion to set aside the judgment already 
 rendered, and for leave to reply, should be 
 denied. Motion denied. 
 The other judges concur. 
 
JUDICIAL NOTICE. 
 
 [Case No. 83 
 
 COMMONWEALTH v. DUNLOP. 
 
 (16 S. E. 273, 89 Va. 431.) 
 
 Supreme Court of Appeals of Virginia. Dec. 1, 
 1892. 
 
 Error to circuit court of city of Peters- 
 turgli. 
 
 These proceedings were instituted by Mr. 
 Dunlop against tlie commouwealtli to estab- 
 lish the genuineness of coupons tendered by 
 liim in payment of taxes, and to recover bacli 
 the money collected from him for such taxes. 
 There was a judgment in plaintiff's favor, 
 and the commonwealth brings error. Af- 
 firmed. 
 
 W. H. Mann and B. Taylor Scott, Atty. 
 ■Gen., for the Commonwealth. Maury & 
 Maury, for the defendant in error. 
 
 LEWIS, P. This was a proceeding under 
 the statute for the verification of coupons 
 previously tendered by the plaintiff in pay- 
 ment of taxes. At the trial the plaintiff 
 proved, as alleged in his petition, that no 
 part of the taxes for which the coupons were 
 tendered were school taxes or liquor license 
 taxes. He also introduced a witness, who 
 ■exhibited for the Inspection of the court and 
 jury the bonds from which the coupons had 
 been cut. The witness then testified, with- 
 out objection, that they were the genuine 
 bonds of the state; that he himself had cut 
 the coupons from them; and that the cou- 
 pons were genuine; and this was all the evi- 
 dence in the case. The bonds, copies of 
 which are exhibited with the record, are reg- 
 ular on their face, purporting to be under the 
 seal of the state, and signed by the treasurer 
 and countersigned by the second auditor of 
 the state. They all purport to have been 
 issued pursuant to the act of March 30. 1871, 
 commonly known as the "B''unding Bill," ex- 
 -cept one which puiiports to be under the act 
 of March 28, 1879, entitled "An act to pro- 
 vide a plan of settlement of the public debt." 
 The commonwealth demurred to the evi- 
 ■dence, but the court overmled the demurrer, 
 and gave judgment for the plaintiff. 
 
 It Is contended for the commonwealth^ 
 First, that, to prove the genuineness of the 
 coupons, it was incumbent on the plaintiff to 
 prove the genuineness of tho bonds; and, sec- 
 ondly, that this he has failed to do, because 
 the witness does not say that the signatures 
 to the bonds are gemiine, or that he is an 
 expert in matters of handwriting, or that the 
 seal aflixed to the bonds is the genuine seal 
 of the state. The circuit court decided that 
 the seal proved itself, and that, in the ab- 
 sence of evidence to prove that the bonds 
 were spurious, the evidence adduced estab- 
 lished the genuineness of the coupons. We 
 are of opinion that this ruling is correct. It 
 is a rule of evidence, univei-sally recognized, 
 that the courts of a state take judicial notice 
 of its seals and of the signatures of the heads 
 of departments; nor will It be supposed, with- 
 
 out proof, that any particular seal Is counter- 
 feit or irregularly Impressed. The law as- 
 sumes that the seal of the state is known to 
 all of her judicial officers, and there is noth- 
 ing in the statute requiring the production of 
 the bonds, in a proceeding like the present, 
 which affects the rule of the common law. 
 The statute now cairied into section 412 of 
 the Code simply provides that upon the de- 
 mand of the party contesting the genuineness 
 of the coupons the bonds from which they 
 were detached shall be produced by the plain- 
 tiff as a condition precedent to his right of 
 recovery. Nothing is said about the burden 
 of proving the genuineness of the bonds being 
 on the plaintiff, or that the seal of the state 
 shall not, as in other cases, prove itself; and, 
 had the legislature intended to alter the rule 
 above mentioned, such intention would surely 
 have been unmistakably expressed. This was 
 virtually decided in Com. v. Hurt, 85 Va. 
 91S, 9 S. E. 148. There the question was 
 whether, upon the production of the bonds b.y 
 the plaintiff, it was competent for the com- 
 monwealth to cross-examine the witnesses as 
 to the genuineness of the signatures to the 
 bonds. The trial court ruled that it was not, 
 unless a plea of non est factum should be 
 first filed. But this court reversed that rul- 
 ing on the ground that the commonwealth 
 was entitled, to show, if she could, without 
 filing such plea, which was not contemplated 
 by the statute, that the bonds were spurious, 
 and thereby to show that the detached cou- 
 pons were not genuine. It was not suggest- 
 ed, either by counsel or by the court in that 
 case, that the statute required anything more 
 than the production of the bonr.i. On the 
 contrary, it was assumed that the burden of 
 proving that the bonds were not genuine was 
 on the commonwealth, and the statute is the 
 same now in this particular as it was when 
 that case was decided. It is also contended 
 for the defendant in eiTor (the plaintiff be- 
 low) that the provision of the statute requir- 
 ing the production of the bonds to prove the 
 genuineness of the coupons Is unconstitu- 
 tional. And McGahey v. Virginia, 135 U. S. 
 602, 10 Sup. Ct. 972, is relied on for this po- 
 sition, That, however, was a suit by the 
 state against the taxpayer, while the present 
 is a suit by the taxpayer against the state; 
 and it is an established principle that, when 
 the sovereign consents to be sued, the terms 
 and conditions upon which such consent is 
 given must be observed. Nor can a party 
 avail himself of the benefit of a statute, and 
 at the same time contest Its validity. Pur- 
 cell V. Conrad, 84 Va. 557, 5 S. E. 545; Dan- 
 iels V. Tearney, 102 U. S. 415. A taxpayer 
 whose tender of coupons is refused may un- 
 doubtedly set up the tender as a defense in 
 any subsequent suit by the state against him 
 for the recovery of the taxes. But if, upon 
 the refusal of the tender, he chooses, as in 
 the present case, to pay in money, and then 
 sues the state to establish the genuineness of 
 the coupons, and to recover back the money 
 
 239 
 
Case No. 83] 
 
 ruooF. 
 
 so paid, he. must conform to the conditions 
 prescribed by the statute, giving him per- 
 mission to sue. For the reasons, however, 
 240 
 
 already stated, and without considering any 
 other question discussed at the bar, the judg- 
 ment must be affirmed. 
 
JUDICIAL NOTICE. 
 
 [Case No. 84 
 
 PIERCE et al. v. INDSETH. 
 
 (1 Sup. Ct. 418. 106 U. S. 546.) 
 
 Supreme Court of the United States. Jan. 8, 
 1883. 
 
 In error to the circuit court of the United 
 States for the district of Minnesota. 
 
 This is an action by the plaintiff in the 
 court below, Ole A. Indseth, against the de- 
 fendants, composing the firm of Pierce, Sim- 
 mons & Co., on a foreign bill of exchange, 
 payable at sight to his order, drawn by them 
 at Red Wing, in Minnesota, on the Chris- 
 tiania Bank, in Norway, which is as follows: 
 
 "Exchange 15,441 50-100 kroner, per stamp 2c. 
 Pierce, Simmons & Co., Bankers. 
 
 "Red Wing, Minnesota, Febi-uaiy 1, 1877. 
 
 "At sight of this original of exchange (du- 
 plicate unpaid) pay to the order of O. A. 
 Indseth 15,441 50-100 kroner, value received, 
 and charge same to account of Sk. P. I. & 
 Co., Chicago, as per advice from them. 
 Pierce, Simmons & Co. 
 
 "To Christiania Bank of Kredit Kasse, 
 Ohristiania, Norway." 
 
 The value of these kroners in our money 
 was $4,469.35. 
 
 Indseth resided at the time near Eidsvold, 
 in Norway, and the bill was purchased by 
 his agent in Minnesota, who forwarded it to 
 him. He received it February 27, 1877, and 
 retained it in his possession until April 12th 
 following, when he presented it to the bank 
 for payment, which was refused. He then 
 caused the bill to be protested by a notary 
 of Norway for non-payment. The drawers 
 were notified of its non-payment by letter 
 from the plaintiff, which they received at 
 Red Wing as early as May 15, 1877, and also 
 by the original certificate of protest of the 
 notary, which, with a translation, was at 
 that time shown to one of them by the agent 
 of the plaintiff, to whom the document was 
 sent for that purpose. 
 
 It appears from the findings of the court 
 below that the drawers had no money to 
 their credit with the Christiania bank when 
 the bill was drawn, but depended for its 
 acceptance and payment upon advices to the 
 bank by Skow, Peterson, Isberg & Co., bank- 
 ers, at Chicago. That firm failed and made 
 an assignment on the twenty-first of March, 
 1877. It had, however, from February 28th 
 to that date, inclusive, to its credit with the 
 bank, money sufficient to pay the bill, but 
 no portion of it had been set apart for that 
 purpose, and it has been since paid to the 
 assignee of the firm. On the fifteenth of 
 February, 1877, the drawers wrote to the 
 payee a letter stating that, fearing their 
 draft might not be paid, they had caused a 
 cable dispatch to be sent to Christiania di- 
 recting payment, but there was no evidence 
 that the bank received such a dispatch, if 
 sent, or gave them any credit on it. 
 
 Eidsvold, at or near which the plaintiff re- 
 sided, is distant about 50 miles from Chris- 
 
 WILGUS, BV— 16 
 
 tiania, the place where the bank was sit- 
 uated, and between them there was daily 
 communication by mail and by railway. 
 
 In proof of the presentment of the bill to 
 the bank and the latter's refusal to pay the 
 same, a copy of the notary's certificate of 
 protest was given in evidence by the plain- 
 tiff, the defendants having stipiilated for the 
 admission of a copy with the like effect as 
 the original, which was needed elsewhere. 
 Subsequently the defendants themselves pro- 
 duced the original for the purpose of show- 
 ing its character, insisting, at the time, that 
 it had no authenticity as the act of the 
 notary, and was not, therefore, competent 
 evidence of the presentation and non-pay- 
 ment of the bill. To meet the objection of 
 unnecessary delay in presenting the bill the 
 plaintiff gave in evidence, against the objec- 
 tion of the defendants, the deposition of a 
 lawyer of Norway as to the law of that 
 country respecting the presentation of bills 
 of exchange for payment. Exception was 
 taken to the ruling of the court in its ad- 
 mission. It appeared, from the deposition, 
 that by the law of Norway, the holder of a 
 foreign bill of exchange, payable at sight, 
 is allowed a year after its date within which 
 to present it to the drawee for payment; and 
 that the drawer is not relieved from liability, 
 if the ijresentation be not made within a 
 year, unless he can prove that owing to the 
 delay he has suffered a loss in his accounts 
 with the drawee. Evidence was offered by 
 the defendants to show that the plaintiff, 
 himself, had admitted his negligence in pre- 
 senting the bill, but on objection of counsel 
 it was excluded, to which ruling an excep- 
 tion was taken. The court found in favor 
 of the plaintiff for the full amount of the 
 bill, and judgment having been entered on 
 the finding, the case was brought to this 
 court for review. 
 
 Chas. E. Plandrau, for plaintiffs in error. 
 E. C. Palmer, for defendant in error. 
 
 Mr. Justice FIELD, after stating the facts 
 in the foregoing language, delivered the opin- 
 ion of the court. 
 
 The certificate of the protest of the bill 
 of exchange by the notary in Norway was 
 properly received in evidence. It is in due 
 form, and bears what purports to be the seal 
 of the notary. The seal, it is true, is im- 
 pressed directly on the paper by a die with 
 which ink was used. This is evident from 
 inspection of the original, which has been 
 transmitted to us from the court below for 
 our personal examination. The use of wax, 
 or some other adhesive substance upon which 
 the seal of a public officer may be impress- 
 ed, has long since ceased to be regarded as 
 important. It is enough, in the absence of 
 positive law prescribing otherwise, that the 
 impress of the seal Is made upon the paper 
 itself in such a manner as to be readily iden- 
 tified upon inspection. 
 
 241 
 
Case No, 84] 
 
 PBOOF. 
 
 The language used in Pillow v. Roberts, re- 
 ported iu 13 How. 472, as the sufficiency of 
 a seal of a court impressed upon paper in- 
 stead of wax or a wafer, is applicable here. 
 Said the court, speaking by Jlr. Justice 
 Grier : 
 
 "Formerly wax was the most convenient 
 and the only material used to receive and 
 retain the impression of a seal. Hence it 
 was said: 'Sigillum est cera impressa; quia 
 cera, sine impressione nou est sigillum.' But 
 this is not an allegation that an impression 
 ■without wax is not a seal, and for this rea- 
 son courts have held that an impression 
 made on wafers or other adhesive substances 
 .capable of receiving an impression, will come 
 within the definition of 'cera impressa.' If, 
 then, wax be construed to be mei'ely a gen- 
 eral term, including within it any substance 
 capable of receiving and retaining the im- 
 pression of a seal, we cannot perceive why 
 pajser, if it have that capacity, should not 
 as well be included in the category. The 
 simple and powerful machine, now used to 
 impress i)ublic seals, does not require any 
 soft or adhesive substance to receive or re- 
 tain their impression. The impression made 
 by such a ijower on paper is as well defined, 
 as durable, and less likely to be destroyed 
 or defaced by vermin, accident, or intention 
 than that made on wax. It is the seal which 
 authenticates, and not the substance on which 
 it is impressed; and where the court can 
 recognize its identity, they should not be 
 called upon to analyze the material which 
 exhibits it." 
 
 Here there is no difficulty in identifying 
 the seal. The impression, which is circular 
 in form, has within its rim the words. "Xo- 
 tarial Seal, Christiania." Besides, the court 
 will take judicial notice of the seals of no- 
 taries public, for they are officers recognized 
 by the commercial law of the world. AVe 
 thus recognize the seal to the document in 
 question as that of the notary in Norway, 
 and as such authenticating the certificate of 
 protest and entitling it to full faith and 
 credit. Greenl. Ev. § 5; Story, Bills, § 277; 
 Townsley v. Sumrall, 2 Pet. 179; Chanoine 
 V. Fowler, 3 Wend. 173; Carter v. Burley, 9 
 N. H. 559, 568; Holliday v. McDougal, 20 
 Wend. 81. The certificate being admitted, 
 proved the presentation of the bill to the 
 bank on the twelfth of April, 1870, and its 
 non-payment. That this presentation was 
 made within the period allowed by the law 
 of Norway apjjears from the deposition of a 
 lawyer of that country, taken under a com- 
 mission from the court. That law allowed a 
 year after the issue of the bill for its presen- 
 tation; and on the question of timely presen- 
 tation the law of the place where a foreign 
 bill of exchange is ijayable governs, and not 
 the law of the place where it is drawn. In 
 giving a bill upon a person in a foreign coun- 
 try, file drawer is deemed to act with refer- 
 ence to the law of that country, and to ac- 
 cept such conditions as it provides with re- 
 
 242 
 
 spect to the presentment of the bill for ac- 
 ceptance and payment. Thus, where days 
 of grace on bills are different in the two 
 countries, the rule of the place of payment 
 must be followed. In England and the Unit- 
 ed States three days of grace are usually 
 allowed; in France there are none, and in 
 some places the number of days varies from 
 three to thirty. Whatever is required by 
 law to be done at the place upon which the 
 bill is drawn, to constitute a sufficient pre- 
 sentment either in time or manner, must be 
 done according to that law; and whatever 
 time is permitted within :which the present- 
 ment may be made by that law, the holder 
 may take without losing his rights upon the 
 drawer, in case the bill Is not paid. So, also, 
 if the bill be dishonored, the protest by the 
 notary must be made according to the laws 
 of the place. It sometimes happens that 
 the several parties to a bill, as drawers of 
 indorsers, reside in different countries, and 
 much embarrassment might arise in such 
 cases if the protest was required to conform 
 to the laws of each of the countries. One 
 protest is sufficient, and that must be in ac- 
 cordance with the laws of the place where 
 the bill is payable. 
 
 In this case, the bill having been protested, 
 the drawers were notified of its dishonor by 
 letter from the payee, received by them on 
 the fifteenth of May following, and also by 
 personal delivery at about the same time of 
 the original certificate of the protest, with a 
 translation of it into English, to one of the 
 drawers by an agent of the payee, to whom 
 they were ti-ansmitted for that purpose. No 
 question is made that this notice was not 
 sufficient to charge the drawers. The testi- 
 mony of the lawyer of Norway as to the law 
 of that country was admissible under the 
 statute of Minnesota, which provides that 
 "the existence and the tenor or effect of all 
 foreign laws may be proved as facts by parol 
 evidence, but if it appears that the law in 
 question is contained in a written statute or 
 code, the court may, in Its discretion, reject 
 any evidence of such law that is not ac- 
 companied by a copy thereof." The general 
 rule as to the proof of foreign laws is that 
 the law which is written, that is, statute law, 
 must be proved by a copy properly authen- 
 ticated; and that the unwritten law must 
 be proved by the testimony of experts, that 
 is, by those acquainted with the law. Ennls 
 V. Smith, 14 How. 426. But this rule may 
 be varied by statute, and that of Minnesota / 
 leaves it to the discretion of the judge to { 
 require the production of a copy of the writ- 
 ten law when the fact appears that the law 
 in question is in writing. The discretion of 
 the judge here was not improperly exercised, 
 even if in such case his action would be the 
 subject of review, as contended by counsel. 
 
 The admission of the payee that he had 
 been negligent in presenting the bill was 
 properly excluded. His negligence in that 
 respect could not have affected his legal 
 
JUDICIAL NOTICE. 
 
 [Case No. 84 
 
 Tights, if in point of fact the bill was pi'e- 
 sented within the time allowed by the laws 
 of Norway. 
 
 We have thus far assumed that the draw- 
 ers were entitled to notice of the presenta- 
 tion and non-payment of the bill. But it 
 may be doubted whether such was the fact. 
 They had no funds with the bank in Norway 
 when the bill was drawn or at any other 
 time, and they relied for its payment upon 
 the advices of third parties. Although such 
 third parties had funds at the bank after the 
 bill had been received by the payee in Nor- 
 
 way, there is no evidence that they ever ad- 
 vised the bank to pay the "bill out of such 
 funds. It is found by the court that the 
 bank never set apart any portion of them to 
 meet the bill. The cable dispatch of the 
 drawers, of which the, letter of February 
 15th speaks, if it ever reached the bank, 
 does not appear to have induced it to give 
 them any credit. In the most favorable 
 view, therefore, which could be taken of the 
 position of the drawers, we see nothing which 
 relieves them from liability. 
 The judgment is, therefore, affirmed. 
 
 243 
 
Case No. 85] 
 
 PKOOF. 
 
 PEOPLE V. WOOD. 
 
 (30 N. E. 243, 131 N. Y. 617.) 
 
 Court of Appeals of New York. March 1, 1892. 
 
 Appeal from court of oyer and terminer, 
 Warren county. 
 
 Indictment against Josepli Wood for mur- 
 der. From a judgment of the court of oyer 
 and terminer, finding the defendant guilty, 
 defendant appeals. Affirmed. For former 
 report, see 27 N. E. 362. 
 
 James M. Whitman, for appellant. Ly- 
 man Jenkins, Dist. Atty. (Charles R. Patter- 
 son, of counsel), for the People. 
 
 FINCH, J. Four unfounded objections, 
 admitting of brief and easy answers, and In 
 no respect justifying the delay of this ap- 
 peal, disclose themselves from a printed case 
 of 1,400 pages prepared at the expense of 
 the county of the trial. The prisoner's coun- 
 sel raises no Question of fact. He concedes 
 explicitly that upon the proof the verdict is 
 not to be assailed, either as against the evi- 
 dence or as unsupported by it, and rests 
 his argument upon what he claims to have 
 been errors of law. Three of these are ex- 
 ceptions to the decision of the court upon a 
 challenge of individual jurors in cases where 
 the challenge was sustained, and the jurors 
 rejected. We have looked at the rulings to 
 see whether any injustice has been done to 
 the prisoner of which we ought to take no- 
 tice. The juror Balcom was rejected be- 
 cause he had an opinion as to the guilt or 
 innocence of the prisoner which he describ- 
 ed as fixed, and of long standing, and which 
 would influence his conduct In the jury-box. 
 Complaint is made that the juror was re- 
 jected without opportunity for cross-exam- 
 
 244 
 
 ination by the prisoner's counsel. It does 
 not at all appear that the right was either 
 asserted or denied, or in any manner sought 
 to be exercised. The jurors Dickinson and 
 Stewart were rejected because they had con- 
 scientious scruples against rendering a ver- 
 dict of guilty in a capital case. They 
 brought themselves fully within the provi- 
 sions of section 377 of the Code of Criminal 
 Procedure. The juror Cooke was rejected 
 on account of a present opinion upon the 
 question of guilt or innocence. Taking his 
 statement as a whole, his rejection appears 
 to have been proper. The fourth objection 
 is that, while the indictment charges the 
 commission of the crime in the town of 
 Stony Creek, in the county of Warren, and 
 while the proof shows the ofCense in the 
 town alleged, it does not show that such 
 town was in the county of Warren. N» 
 such objection was raised at the trial, when 
 the omission could have been obviated. It 
 made its first appearance after the verdict, 
 and on a motion for a new trial on the min- 
 utes. But, if made when it should have 
 been, it is a conclusive answer that the court 
 will take judicial notice of the fact that the 
 town of Stony Creek is in the county of War- 
 ren. People V. Breese, 7 Cow. 429; Vander- 
 werker v. People, 5 Wend. 530; Chapman v. 
 Wilber, 6 Hill, 475. We have examined the 
 testimony sufficiently to be satisfied that the 
 verdict was just. The prisoner admitted the 
 fact of the killing, and his counsel approved 
 and stood upon the admission. The defense 
 of insanity was fairly submitted to the jury, 
 and it was hardly possible that the vei-dict 
 should have been different. The judgment 
 must be affirmed. 
 All concur. 
 
JUDICIAL NOTICE. 
 
 [Case No. 86 
 
 COMMONWEALTH v. KING. 
 
 (22 N. B. 905, 150 Mass. 221.) 
 
 Supreme Judicial Court of Massachusetts. 
 Hampsliire. Not. 30, 1889. 
 
 Exceptions from superior court, Hiimpshire 
 county; Bbigham, Judge. : 
 
 This was an indictment charging the de- 
 fendant with having run a steam-boat for the^ 
 conveyance of passengers on the Connecticut' 
 river at South Hadley, in said county, and 
 landing and receiving said passengers at said 
 South Hadley without having obtained any 
 license from the selectmen of said town of 
 South Hadley, as is required by Pub. St. o. 102, 
 §§ 120-122, which authorize the licensing of 
 persons to run steam-boats on waters not 
 within the maritime jurisdiction of the 
 United States, and punish by fine the run- 
 ning of such boats without first obtaining a 
 license. Before the jury were impaneled the 
 defendant duly moved to quash the indict- 
 ment against him for the following reasons: 
 First, because the Connecticut river is a navi- 
 gable river, and is not a lake, pond, or water, 
 covered by chapter 102, §§ 120-122, Pub. St.; 
 secondly, because said indictment, and each 
 count thereof, is bad for duplicity, inasmuch 
 as two distinct and separate offenses and 
 crimes are charged in each count; thirdly, 
 because it is not alleged in said indictment, 
 or in any count thereof, that said defendant 
 was a common carrier at the time of the 
 commissions of the offenses complained of; 
 fourthly, because it is not alleged in said in- 
 dictment, or in any count thereof, that said 
 defendant carried said passengers as afore- 
 said for hire; fifthly, because no offense or 
 crime known to the laws of the land is fully 
 and plainly, substantially and formally, set 
 out or charged in said indictment, or in any 
 count thereof. The court overruled the mo- 
 tion, and the defendant excepted. 
 
 At the trial there was evidence tending to 
 show that upon the dates alleged in the in- 
 dictment the defendant was in possession of 
 a certain steam-boat, and carried persons 
 from the city of Holyoke, and landed them at 
 a point about one and one-fourth miles above 
 Holyoke dam, on the east side of the river 
 alleged to be within the limits of said town 
 of South Hadley; that the defendant also 
 took persons from said point, and carried 
 them in said steam-boat to said Holyoke; that 
 on June 24, 1888, the defendant collected 
 fares of 25 cents from each person on board 
 said steam-boat, which was for the "round 
 trip," including the right to enter the grove 
 leased by the defendant, and to which grove 
 said persons went from the landing place; 
 that the place of landing was at the water's 
 •edge, several rods from "high- water mark," 
 on the easterly or South Hadley side of said 
 river; that the land on the opposite side of 
 said stream or river from the said place of 
 landing was in the city of Northampton; that, 
 for the purpose of proving that said point at 
 which said boat landed was in said South 
 
 Hadley, the statute incorporating South Had- 
 ley was put in evidence, and also a map of 
 the state of Massachusetts, purporting to be 
 made "by order of the legislature in 1844, 
 Simeon Borden, superintendent," was intro- 
 duced in evidence, subject to the defendant's 
 objection; that several witnesses who had no 
 special knowledge of the boundary line, but 
 who were residents of the vicinity, were 
 asked whetlier they knew in what town the 
 said point of landing on the east side of the 
 river was; each answering in the affirmative, 
 they were asked and permitted to state that the 
 place was in South Hadley, and the defend- 
 ant excepted. It appeared that there were 
 two dams erected between Hartford, in the 
 state of Connecticut, and said Hadley, includ- 
 ing the dam at Holyoke; that before said dam 
 was built, in 1847, boats were accustomed to 
 pass through the canal around the falls at 
 South Hadley, to points further up the stream, 
 to all towns above. It was admitted at the 
 trial that said defendant had not obtained any 
 license from the selectmen of said South Had- 
 ley to run said steam-boat. This was sub- 
 stantially all the evidence in the case. After 
 the evidi^nce was all in, the defendant asked 
 the court to rule and instruct the jury as fol- 
 lows : (1) That the Connecticut river, between 
 Springfield and Hadley, is not a lake, pond, 
 or water, covered by chapter 102, §§ 120-122, 
 Pub. St. (2) That the Connecticut river, be- 
 tween Springfield and Hadley, is within the 
 maritime jurisdiction of the United States. 
 (3) That there is no evidence that the Con- 
 necticut river between Springfield and Had- 
 ley is not within the maritime jurisdiction of 
 the United States. (4) That there is no evi- 
 dence that the defendant ran a steam-boat for 
 the conveyance of passengers. (5) Thatthere 
 is no evidence that the defendant landed or re- 
 ceived passengers within the town of South 
 Hadley. (6) That, on the whole evidence, the 
 defendant cannot be convicted. (7) Thatsaid 
 statute, if it applies to the Connecticut river 
 between Springfield and Hadley, is unconsti- 
 tutional and void. But the court refused so to 
 rule in form or substance, and upon the whole 
 case the court gave full and appropriate in- 
 structions to the jury, to which no exceptions 
 were taken save to the refusals to instruct as 
 above stated. The jury returned a verdict 
 of guilty, and the defendant excepts. 
 
 George M. Stearns and J. B. 0' Donnell, 
 for defendant. A.J. Watermmi, Atty. Gen., 
 and H. A. Wyina'n, Asst. Atty. Gen., for the 
 Commonwealth. 
 
 PIELD, J. The only exceptions argued are 
 the exception to tlie admission of the map in 
 evidence, and the exceptions to the refusal of 
 the court to rule "that there is no evidence 
 that the Connecticut river, between Spring- 
 field and Hadley, is not within the maritime 
 jurisdiction of the United States," and to the 
 refusal of the court to quash the indictment, 
 "because it is not alleged in said indictment, 
 or in any count thereof, that said defendant 
 carried said passengers as aforesaid for hire." 
 
 245 
 
Case No. 86] 
 
 PROOF. 
 
 The other exceptions taken at the trial must 
 be regarded as waived. If there was a map 
 of the towns and counties of the common- 
 wealth published by authoiity of the legis- 
 lature, puisuant to chapter 69 of the Resolves 
 of the year 1844, it was some evidence of the 
 boundaries of the town of South Hadley. See 
 Worcester v. Northborough, 140 Mass. 397, 
 5 N. E. Rep. 270. The objection taken in 
 argument is that the map was allowed to 
 prove itself, and that it was not shown to 
 have been published by legislative authority. 
 AVhether this was a genuine map, published 
 by order of the legislature, as it purported to 
 be, was a preliminary fact, of which, if dis- 
 puted, some evidence must have been exhib- 
 ited to the court before the map could be ad- 
 mitted in evidence; but it does not appear 
 that this fact was disputed, or that the objec- 
 tion to the admission of the map was taken 
 on this ground. If such an objection had 
 been taken, the commonwealth might per- 
 haps have been able to furnish evidence that 
 the map was what it purported to be. The 
 only objection stated in the exceptions is that 
 the map "was introduced in evidence subject 
 to the defendant's objection," and this must 
 be considered, not as an objection that suflS- 
 cientevidencehad not been introduced to show 
 that the map was what it purported to be, 
 but as an objection that a map such as this 
 purported to be was not evidence of the loca- 
 tion of a boundary line of a town of the com- 
 monwealth. 
 
 In The Daniel Ball, 10 Wall. 557, 563. ifc 
 is said in the opinion that "those rivers must) 
 be regarded as public navigable rivers in law 
 which are navigable in fact; and they ar" 
 navigal)le in fact when they are used, or are 
 susceptible of being used, in their ordinary 
 condition, as highways for commerce over 
 which trade and travel are, or may be con- 
 ducted in the customary modes of trade and 
 travel on water. And they constitute navi- 
 gable waters of the United States, within the 
 meaning of the acts of congress, in contra- 
 distinction flora the navigable waters of the 
 states, wlien they form in their ordinary con- 
 dition, by themselves or by uniting with oth- 
 er waters, a continued liighway over which 
 commerce is or may be carried on with other 
 states or foreign countries, in the customary 
 modes in which such commerce is conducted 
 by water." Pub. St. c. 102, §§ 120-122, were 
 first enacted in 1876, (St. 1876, c. 100.) 
 
 246 
 
 Then, as well as now, the statutes of the 
 United States, regulating steam- vessels, were 
 contained in title 52 of the Revised Statutes 
 of the United States. Section 4400 of these 
 statutes provides that "all steam-vessels nav- 
 igating any waters of the United States, 
 which are common highways of commerce, or 
 open to general or competitive navigation, 
 excepting public vessels of the United States, 
 vessels of other countries, and boats propelled 
 in whole or in part by steam for navigating 
 canals, shall be subject to the provisions of 
 this title." See, also, St. U. S. 1882, c. 441;. 
 22 St. at Large, 346. This title contains care- 
 ful provisions for the inspection of steam- 
 vessels, and for regulating the number of 
 passengers which they are permitted to carry. 
 The statutes of Massachusetts were intended 
 to regulate steam-boats used for the convey- 
 ance of passengers which were not subject to 
 tegulation by congress, because they were 
 not used in navigating waters of the United 
 States. We think that tlie superior court 
 might take judicial notice that the Connecti- 
 cut river, above the dam at Holyoke, does 
 not, either by itself or by uniting with other 
 waters, constitute a public highway over 
 which commerce may be carried on with oth- 
 er states or with foreign countries, although, 
 if the court had entertained any doubt on the 
 subject, it might have required evidence to 
 be produced. It is well known that the wa- 
 ters of the Connecticut river, at the place 
 where i t is alleged that the defendant's steam - 
 boat was employed, can be used by vessels 
 only for the transportation of persons and 
 property between different places in Massa- 
 chusetts. They are therefore waters not 
 withinthe maritime jurisdiction of theT'^nited 
 States. Veazie v. Moor, 14 How. 568; The 
 Montello, 11 Wall. 411, 20 Wall. 480; Miller 
 V. Mayor, etc., 109 U. S. 385, 395, 3 Sup. 
 Ct. Rep. 228. 
 
 The objection to the form of the indictment 
 cannot prevail. The indictment follows the 
 words of the statute. The word "passengers" 
 ■'is used in the statute and in the indictment 
 in its ordinary sense, and has the same mean- 
 ing in one as in the other. If, in order to 
 constitute a passenger, a person must be car- 
 ried for hire, — upon which we express i)0 
 opinion, — there was evidence that at least on 
 one occasion, which was described in the in- 
 dictment, the defendant collected fares of the 
 persons carried. Exceptions overruled. 
 
JUDICIAL NOTICE. 
 
 [Oiise No. 87 
 
 CAREY et al. v. REEVES et al. 
 
 (26 Pac. 051, 46 Kan. 571.) 
 
 Supreme Court of Kansas. June 6, 1891. 
 
 Error from supei-ior court, Shawnee 
 county; W. 0. Webb, Judfre. 
 
 Carey antl Bray coraiiipnced on October 
 26, 1883, thiH action to quiet title to a quar- 
 ter section of land in Shawnee county. 
 They alleged ownership and actual pos- 
 sesHion. 
 
 The following are the legal conclusions: 
 "The questions of law in this action are: 
 First. Was the affidavit of Wilson Shan- 
 non, filed in the clerk's office of the disti'ict 
 court January 17, 1S61, described in con- 
 clusion of fact No. 4. in the action com- 
 menced by Reuben H. Farnham against 
 said James McCamman,forthe purpose of 
 reforming and foreclosing the mortgage 
 hereinbefore described, sufficient in law to 
 authorize service by publication in said 
 action against the defendant, James Mc- 
 Camman, under section 79,Ood3 of Proced- 
 ure 1859, (Compiled Laws of 1862, c. 26?) 
 Second. Was tlie affidavit of J. T. Cum- 
 mings, publisher of the newspaper, suffi- 
 cient in law to show that the publication 
 notice was mode 'six consecutive weeks? ' 
 as reciuired by law in such actions? Third. 
 If both these propositions are found in the 
 affirmative, then the plaintiffs must fail in 
 this action. If eitherof these propositions 
 are solved in the negative, then the court 
 did not have jurisdiction to decree a sale 
 of the land in controversy described in 
 plaintiffs' petition, and the plaintiffs are 
 entitled to recover in this action. Fourtli. 
 That the issue of law is against the plain- 
 tiffs and in fivor of the defendants. " To 
 the conclusions of law in favor of the de- 
 fendants and against the plaintiffs the 
 plaintiffs excepted, and bring the case here. 
 G. C. Cleweus, for plaintiffs in error. B. 
 H. Harris, for defendants in error. 
 
 HORTON,C.J. TheUnited States issued 
 a patent to the land in controversy to 
 Jarces McCamman on the 1st day of June, 
 I860, and the findings are to the effect that 
 the plaintiffs are the owners by conveyau- 
 cies from McCamman, unless the judgment 
 of October 9, 1861, of Reuben H. Farnham 
 against James McCamman and thesale of 
 the land thereunder divested McCamman 
 of bis title. When this case was here be- 
 fore, (Carey v. Reeves. 32 Kan. 718, 5 Pac. 
 Rep. 22,) Mr. Justice Valentine, speaking 
 for the court, said : "When this affidavit 
 [for publication service] was filed, is not 
 shown. It is alleged that the action was 
 commenced on January 17, 1861, and the 
 affidavit shows that the petition was filed 
 
 'on the day of January, 1861;' but 
 
 there is nothing to show when the afflda- 
 Tit was in fact filed. If it was filed prior 
 to January 29, 1861, the region of country 
 known as 'Pike's Peak,' or a portion 
 thereof, was in Kansas; hut if the affida- 
 vit was filed after January 29, 1861, then 
 such regi(Ki was not in Kansas, and no 
 part thereof was in Kansas. * * * W'e 
 suppose that when the plaintiffs in this 
 action say that the foreclosure action 
 was commenced on January 17, 1861, they 
 mean that the petition was filed on that 
 
 day. But when the service was made is 
 not shown ; nor is it shown when the 
 judgment was rendered. It may have 
 been in 1861, or in 1862, or in some subse- 
 quent year. We cannot say that the 
 court l)elow erred in deciding against the 
 plaintiffs in this particular. " At the last 
 trial it was shown, and the court express- 
 ly found, that the affidavit for publication 
 was filed on the 17th day of January, 1861. 
 This was while Kansas existed as a terri- 
 tory and before its admission as a state 
 into the Union. It was also shown, and 
 expressly found at the last trial, that on 
 January 17, 1861, and for some time pre- 
 vious thereto, James McCamman resided 
 in Denver, and within the territory of 
 Kansas, and continued to reside there aft- 
 er the 29th of January, 1861, when Kansas 
 was admitted as a state. The former de- 
 cision of this court in this case at its July 
 term, 1884, (32 Kan. 718, 5 Pac. Rep. 22.) is 
 not decisive or controlling, because the 
 facts now presented in the record are ma- 
 terially different from those which we 
 considered at the time the former opinion 
 was handed down. The affidavit for pub- 
 lication stated that the defendant, James 
 McCamman, "has removed from the said 
 county of Shawnee, and now resides in 
 that region of country known as ' Pike's 
 Peak,' and that service of summons can- 
 not be made on him within this terri- 
 tory." At the time that Kansas was or- 
 ganized as a territory its western bound- 
 ary extended "to the eastern boundarj' of 
 the territory of Utah, on the summit of 
 the Rocky mountains. " We must take ju- 
 dicial notice of where "the region of coun- 
 try known as ' Pike's Peak '" existed on 
 the 17th of January, 1861. State v.Teisse- 
 dre, 30 Kan. 476, 2 Pac. Rep. 650; State v. 
 Baldwin, 36 Kan. 1, 12 Pac. Rep. 318; 
 Railroad Co. v. Burge, 40 Kan. 736, 21 
 Pac. Rep. .589. Lip|)incott's Pronouncing 
 Gazetteer of the World, (publislied in 
 1856,) referring to Kansas, said: "It is a 
 territory of the United States of America, 
 formed by an act of congress passed May, 
 1854, lying between 37° and 40° N. Iat.,and 
 between about 94° 30' and 107° W. Ion. 
 About 100 miles of the W. portion lies be- 
 tween 38° and 40° N. lat. It is bounded on 
 the N. by Nebraska Territory; E., by the 
 states of Missouri and Arkansas; S., by 
 Indian Territory and New Mexico; and 
 W., by New Mexico and 'Utah. This ter- 
 ritory is about 630 miles in length from E. 
 to W., and 208 in its widest, and 139 in its 
 W. part, including an area of nearly 114,- 
 798 square miles. The Rocky mountains 
 separate it from Utah, and the Missouri 
 river forms a small part of the N. E. 
 boundary." The New American Cyclo- 
 paedia (volume 10, p. 103, published in 1860) 
 described Kansas asfollows: "Itlsaterri- 
 tory of the United States, lying between 
 lat. 37° and 40° N. and long. 94° 40' and 
 106° 50' W., bounded N. by the territory of 
 Nebraska, E. by the state of Missouri, S. 
 by the Indian Territory and New Mexico, 
 and W. by New Mexico and Utah. With 
 the exception of the N. E. corner of the 
 territory, where the boundary line fol- 
 lows the irregular course of the Missouri 
 river, its shape is that of a parallelogram 
 as far W. as long. 103°. The boundary 
 then follows this meridian N. to lat. 38°, 
 
 247 
 
Case No. 87] 
 
 PEOOF. 
 
 .171(1 runs W. along that parallel to long. 
 1U6° 50'; thence N. to about lat. 39° 20', 
 E. to long. 105° 40', and finally N. again 
 until it K:eets the Npbrai3ka frontier. 
 Length, E. and W., 550 M. ; breadth, E. of 
 long. 103°, 208 M. ; W. of that line. 139 M. ; 
 area, 114,798 Sq. M." The Encyclopaedia 
 Britannica, (volume 23, p. 4796,) in describ- 
 ing the Rocky mountain.^!, says: "Gray's 
 peak (14,841 feet) is the highest point in this 
 range, (the front, or Colorado range.) 
 but, although on the continental divide, 
 it is too far west to be visible from the 
 plains. This divide, which separates the 
 Atlantic water from those of the Pacific, 
 follows the front range as far as Gray's 
 peak, where it is deflected westward for 
 20 miles to the Sawatch range, which it 
 follows for about 75 miles. In this deflex- 
 ion the divide passen between Middle and 
 South parks, the lowest pass in this part 
 being that called the 'Tennessee,' (10,418 
 feet,) which leads from the head of the Ar- 
 kansas to the Grand River branch of the 
 Colorado. The Sawatch range is one of 
 the highest and best marked chains in the 
 Rocky mountains. It lies west of the head 
 of the Arkansas; and its dominating 
 peaks, along the whole range, exceed 14,- 
 000 feet. The most northerly of these, the 
 Mountain of the Holy Cross, (14,176 feet,) 
 was so named on account of the existence 
 on its eastern flaiik of a large snow-field 
 lying in two ravines which intersect each 
 other at right angles, in the form of a 
 cross, and which in summer is conspisu- 
 ously visible from a great distance. The 
 highest point is Mount Harvard, (14,375 
 feet.) and the passes range from 12,000 to 
 13,000 feet. The continental dividefollows 
 the Savi'atch range to its southern end, in 
 lat. 38° 20', and then runs in a south-west- 
 erly direction for about 75 miles, over a 
 high region withoutany distinctly marked 
 range. Here it turns, and, running south- 
 easterly, follows the crest of the San ,Tuan 
 range, which at many points rises above 
 13,000 feet." Not only as a matterof factis 
 the summit of the Rocky mountains (the 
 westei'n boundary of the territory of 
 Kansas) a long distance west of Pike's 
 Peak, but it was so generally mentioned 
 in the gazetteers, geographies, and en- 
 cycloptedias in general use in 1861. 
 
 248 
 
 Therefore " the region of country known 
 as 'Pike's Peak'" on the 17th of January, 
 1861. and until Kansas was admitted into 
 the Union, on January 29, 1861, was within 
 the territory of Kansas, and generally 
 known to be within the territory of Kan- 
 sas. The affidavit for service by i)ublica- 
 tion showed upon its face that James Mc- 
 Camman had removed from the county of 
 Shawnee and resided "in the region of 
 country known as ' Pike's Peak.'"' That 
 region was within, not without, the terri- 
 tory of Kansas at the date of the H'ing of 
 this affidavit; therefore McCamman was 
 not a non-resident of the territory of 
 Kansas at the time the service by publica- 
 tion was made; thereforesuch publication 
 was void, — that is, it was Invalid as a 
 constructive service, because the affidavit 
 for publication affirmatively showed that 
 the defendant resided within the territory 
 of Kansas, and it was not stated that he 
 had departed from the territory or the 
 county of his residence with the intent to 
 delay or defraud his creditors, or to avoid 
 the service of a summons, or to keep him- 
 self concealed. It has already been decid- 
 ed by this court that it cannot be shown 
 in a collateral attack that the affidavit 
 for publication is untrue. Ogden v. Wal- 
 ters, 12 Kan. 282; Rowe v. Palmer, 29 
 Kan. 337: Carey v. Reeves, 32 Kan. 718, 5 
 Pac. Rep. 22. But that is not this case. 
 In this case the affidavit is insufficient up- 
 on its face. It does not state facts to au- 
 thorize any publication service; therefore 
 no personal or constructive service was 
 ever had upon McCamman prior to the 
 rendition of the judgment against him on 
 the9th day of October, 1861. ComiJ.Laws, 
 c. 26, tit. 4, 5, §§ 52, 78, 79. See, also, title 
 11, § 3S,j, same chapter. Upon the findings 
 of fact the judgment must be reversed, 
 and the cause remanded with direction to 
 the district court to render judgment for 
 the plaintiffs and against the defendants. 
 This direction will not prevent the defend- 
 ants from recovering any taxes paid by 
 them, if any have been paid, while the 
 land has been in controversy in any of the 
 courts of this state. Sess. Laws 1876, c. 
 34, § 149, par. 7004, Gen. St. 1889; Wood 
 V. Gruble, 31 Kan. 69, 1 Pac. Rep. 277. All 
 the justices concurring. 
 
JUDICIAL NOTICE. 
 
 [Case No, 88 
 
 WETZLER V. KELLY et al. 
 
 (3 South. 747, 83 Ala. 440.) 
 
 Supreme Court of Alabama. Feb. 21, 1888. 
 
 Appeal from circuit court, Geneva county; 
 J. M. Carmichael, Judge. 
 
 This was a claim suit brought in the magis- 
 trate's court originally. S. A. Wetzler sued 
 one J. L. Wright in the justice of the peace 
 <;ourt on a waive note, and obtained a judg- 
 ment against him, for which an execution is- 
 sued, and was duly levied on the cotton which 
 is now the subject of the present claim suit. 
 Upon the levy being made upon the cotton 
 which was in the possession of the defendant 
 in execution, the claimants, G. W. Kelly &Co., 
 appellees in the present appeal, interposed a 
 claim to the cotton so levied upon. Whaley 
 was shown to be the authorized agent of the 
 claimants, G. W. Kelly & Co. Upon the evi- 
 •dence, which is sufficiently fully set out in 
 the opinion of the court, the plaintiff asked 
 the court to charge the jui-y in writing, "that, 
 if they believed the evidence, they must find 
 for the plaintiff." The court refused to give 
 the said charge, and the ijlaintiff excepted. 
 The claimants asked the court to give the fol- 
 lowing charge, which was in writing: "That, 
 If they believed the evidence, they must find 
 for the claimants." The court gave the 
 •charge, against the objection of the plaintiff, 
 and the plaintiff duly excepted. The giving 
 ■of this charge at the request of the claimants, 
 and the refusal to give the charge requested 
 by the plaintiff, are here assigned as error. 
 
 Marcellus E. Milligan, for appellant. F. J. 
 Milligan and H. L. Martin, for appellees. 
 
 STONE, C. J. It is manifest that the pres- 
 •ent judgment must be reversed, unless the 
 facts which occurred when Whaley visited 
 Wright in September, or the act "to amend 
 section one of an act entitled 'An act to 
 amend section 3341 of the Code,' " works a 
 •change of the rights of the parties. The stat- 
 ute was approved February 28, 1887 (Sess. 
 Acts, 150). Code 18S6, § 3004; Iron- Works 
 Co. V. Eenfro, 71 Ala. 577; Harks v. Robin- 
 son, 82 Ala. 69, 2 South. 292. Wetzler, the 
 appellant, claimed a lien on the cotton in 
 controversy, under an execution issued on a 
 judgment against one Wright, and which was 
 levied on the cotton as Wright's in October, 
 1886. The cotton when levied on was on the 
 land on which it was grown, the home of 
 Wright, the defendant in execution. The cot- 
 ton had been grown by Wright. Kelly & Co. 
 interposed a statutory claim to the property, 
 by affidavit filed that they had a just claim 
 to it. This claim was interposed October 16, 
 1886, after the levy of Wetzler's execution. 
 Kelly & Co. had a mortgage on the crop to 
 be grown by Wright in 1886, which was dat- 
 ed in January of that year. It is common/ 
 knowledge that crops of cotton are not plant-i 
 
 ed in this state until after that time. The 
 crop not being planted when the mortgage 
 was made to Kelly & Co., they were without 
 legal title to it, and could not maintain their 
 claim at law, by mere force of the mortgage 
 itself. Iron- Works Co. v. Renfro, 71 Ala. 577; 
 3 Brick. Dig. 776, §§ 7, 8; Marks v. Robinson, 
 82 Ala. 69, 2 South. 292; Jackson v. Bain, 74 
 Ala. 328. 
 
 The testimony of Whaley neither proved, 
 nor tended to isrove, a delivery of the cotton 
 to him as the agent of the claimants. He 
 did not take possession, nor was it contem- 
 plated that he should do so. The remark of 
 Wright referred alike to the ungathered crop, 
 and to that which had been gathered. He 
 said: "You have a mortgage. All that is 
 yours; you can have it," referring to the 
 crop. Whaley instructed Wright to haul the 
 cotton to the gin, have it ginned, and bring 
 it to Newton; but the cotton never came into 
 the actual possession of Whaley, and was al- 
 lowed to remain in possession of Wright, de- 
 fendant in execution and mortgagor. While 
 so in his possession, the levy of Wetzler's 
 execution was made, out of which the pres- 
 ent contest grew. The remark of Wright had 
 reference alone to the interest the mortgage 
 secured to Kelly & Co., and neither changed 
 the status of the property, nor was it intend- 
 ed to do so. Nor can the statute, enacted aft- 
 er the present claim suit was instituted, af- 
 fect the rights of the parties. Code 1886, § 
 3004. As we have shown, when the claim 
 was interposed by Kelly & Co., October 16, 
 1880, they were without a title which would 
 avail them in this character of suit. We need 
 not inquire whether it was within the pale of 
 legislative power to heal this imperfection by 
 retroactive enactment. Trust Co. v. Boykin, 
 38 Ala. 510; Steamboat Co. v. Barclay, 30 
 Ala. 120. It is sufficient for the wants of this 
 case that in the act approved February 28, 
 1887, (Sess. Acts 150,) no intention is shown 
 to give it a retrospective operation. We feel 
 bound, therefore, to hold that that statute 
 can exert no influence in the decision of this 
 case. 2 Brick. Dig. 462, § 31; Farris v. Hous- 
 ton, 78 Ala. 2.j0; Wai-ten v. Matthews, 80 
 Ala. 429; Security Co. v. Board, etc., 81 Ala. 
 110, 1 South. 30. As a rule, parties can main- 
 tain or defend suits only on the title they 
 have when the suit is commenced. In what 
 we have said, it is not our intention to de- 
 clare that the legislature may not provide a 
 new remedy, which shall apply to existing 
 rights, as well as to those afterwards to ac- 
 crue. Anonymous, 2 Stew. 228; Bartlett v. 
 Lang, 2 Ala. 401; Paschall v. Whitsett, 11 
 Ala. 472; Holman v. Bank, 12 Ala. 309. 
 What we do decide is that when a suit is in- 
 stituted, or a defense interposed, which is at 
 the time unauthorized by the law, a subse- 
 quent statute giving such remedy does not 
 operate on the existing suit, especially when 
 it does not provide it shall so operate. Re- 
 versed and remanded. 
 
 249 
 
Case Xo. 89] 
 
 PBOOF. 
 
 SWALES T. GRUBBS et al. 
 
 (25 X. B. 877, 126 Ind. 106.) 
 
 Supreme Court of Indiana. Nov. 19, 1890. 
 
 Appeal from circuit court, Dearborn 
 county ; W. H. Banbhidge, Judge. 
 
 Hugh D. Mc Mullen and John K. Thomp- 
 son, for appellant. N. S. Givan and Rob- 
 erts & Stapp, for appellees. 
 
 MITCHELL.J. Thin was a suit by Fran- 
 cis Swales against the beirs and personal 
 representatives of James Grubbs, deceased. 
 The purpose of the action was to obtain 
 judgment against the decedent's estate 
 upon certain promissory notes, alleged to 
 have been executed by the latter to the 
 plaintiff in his life-time, and to set aside 
 certain conveyances alleged to have been 
 fraudulently made by the decedent, in his 
 life-time, to his children, who are made de- 
 fendants. It was found that the decedent 
 did not execute the note sued on, and a 
 judgment for the defendants followed, nec- 
 essarily. It is contenled that as only one 
 of the defendants pleaded non est factum, 
 the execution of the notes was admitted, 
 and that the finding to the contrary was 
 therefore outside of the issue. An answer 
 appears in the record which purports to 
 have been filed by all of the defendants ex- 
 cept the administrator, in which the exe- 
 cution of the notes is denied. It is verified 
 by only one of the defendants, and it is 
 now insisted that, as to all the others, 
 the execution of the notes was admitted. 
 The administrator answered, practically 
 admitting all that was alleged in the 
 complaint, and aven-ing that he had al- 
 lowed the claim. It has been held that a 
 joint answer by two defendants, who are 
 joint makers of a promissory note in suit, 
 alleging a material alteration of the in- 
 strument, which is verified by the affida- 
 vit of only one of them, is suflicient only 
 to put the plaintiff upon proof of the exe- 
 cution of the note by the one thus verify- 
 ing the answer; Feeney v. Mazelin, 87 Ind. 
 226. This decision was made in an action 
 where the note was the foundation of the 
 complaint, and where the makers were 
 parties in court. In the present case, the 
 action, so far as it affects the appellees, is 
 not founded on the notes, nor is the maker 
 of the instruments a party . Formerly, the 
 statute read : " Where a writing, purport- 
 ing to have been executed by one of the 
 pai-ties, is the foundation of or referred to 
 in any pleading it may be read in evidence 
 on the trial of the cause against such par- 
 t.y without proving its execution, unless 
 its execution be denied under oath." Un- 
 der this statute it was uniformly held that 
 neither the personal representative nor the 
 heir was within the language or spirit of 
 the statute. Riser v. Snoddy, 7 Ind. 44'J; 
 Mahon v. Sawyer, 18 Ind. 73; Barnett's 
 Adm'x V.Union, 28 Ind. 254; AVells v. Wells, 
 71 Ind. 5U9. In the Revision of 1881, (sec- 
 tion 364,) the language of the statute is 
 more comprehensive, and provides that 
 " where a pleading is founded on a written 
 instrument, or such instrument is therein 
 referred to, * * * such instrument 
 * * * may be read in evidence on the 
 trial of the cause without proving its exe- 
 
 250 
 
 cution unless its execution be denied under 
 oath; * * * but executors, administra- 
 tors, or guardians need not deny the exe- 
 cution of an instrument, " etc. The notes, 
 although referred to in the complaint, are 
 not the foundation of the action; and 
 while, possibly, it may have been neces- 
 sary that the execution of the instruments 
 therein referred to should have been denied 
 under oath, (Belton v. Smith, 4."> Ind. 291 ; 
 Carver v. Carver, 97 Ind. 497-509, 1 it was 
 not necessary that all the heirs should 
 verify the answer denying that their an- 
 cestor and grantor executed the notes re- 
 ferred to in the complaint. AVhere an in- 
 strument is the foundation of or is referred 
 to in a pleading in an action against par- 
 ties other than those who are alleged to 
 be parties to it, joint answprs by all or 
 any number of the defendants, denying its 
 execution, verified by the oath of any one 
 of the defendants, puts the plaintiff upon 
 proof of the execution of the instrument, 
 as against all those who join in the an- 
 swer. Indeed, we can see no substantial 
 reason for requiring all of a number of 
 joint makers of an instrument, who join 
 in a plea of non est factum, to verify the 
 plea; but we decide nothing upon that 
 subject now. The decisions of this court 
 seem to require that all of those who are 
 parties to an instrument which is the 
 foundation of a pleading should verify a 
 plea denying the execution of the instru- 
 ment in order to require proof of its execu- 
 tion. We are not willing to extend this 
 rule to heirs or other persons not parties 
 to the instrument. 
 
 During the progress of the trial, the 
 plaintiff below introduced the original 
 deeds in evidence, copies of which had been 
 filed with the complaint. After the deeds 
 had been thus introduced, the court per- 
 mitted witnes.ses to compare the signa- 
 ture of James Grubbs. as it appeared on 
 theseveral deeds, with his signature on the 
 notes in suit, and, from the comparison 
 thus made, to give their opinion as to the 
 genuineness of the signature on the notes. 
 By introducing the original deeds in evi- 
 dence for the purpose of proving what had 
 been charged in the comi)laint, viz., that 
 James Grubbs had conveyed certain lands 
 in severalty to the defendants, the appel- 
 lant must be held to have admitted the 
 genuineness of the signatures to those in- 
 struments; and the rule is estal)lished by 
 numerous decisions that a comparison 
 may be made between a signature that is 
 admitted by the opposite party to be gen- 
 uine, and is already in evidence for some 
 otherpurpose, and has thus become subject 
 lo examination by the jury, and the signa- 
 ture whose genuineness is iu question. 
 Walker v. Steele, 121 Ind. 436, 22 N. E. Rep. 
 142, 23 N. E. Rep. 271, and cases cited ; 
 Shorb V. Kinzie, 100 Ind. 429-431. The case 
 was one of equitable cognizance, and was 
 so regarded and tried by the court, al- 
 though a jury was called to answer cer- 
 tain questions propounded as advisory to 
 the court. It was a disputed question 
 whether or not thenotessued on had been 
 executed on Sunday. The court charged 
 the jury that certain dates, being the dates 
 fixed iu the notes, each occurred on the 
 first day of the week, commonly called 
 "Sunday." Courts take judicial notice o£ 
 
JUDICIAL XO'IICE. 
 
 [Case Xo 89 
 
 the "days on which fall Sundays and holi- 
 days, "and it was, therefore, proper to 
 charge the 1nry that certain dates fell on 
 Sunday. 1 Whart. , Ev. § 335. The jury 
 were, however, called for the purijose of 
 answering certain questions of fact pro- 
 pounded to them by the court. In chan- 
 cery cases, the province of the jury is to 
 find facts, and not to administer equities 
 in the light of legal rules. This is for the 
 court, when the facts are ascertained. It 
 is enough, therefore, to say that in a case, 
 like the present, of equitable cognizance, 
 general instructions as to the law applica- 
 ble to the facts of the case are not proper, 
 
 and available error cannot be predicated 
 upon the giving or refusal to give instruc- 
 tions of a general nature. In that re- 
 spect, the rules which govern where the 
 jury is required to find a special verdict 
 are controlling. Railwav Co. v. Frawley, 
 110 Ind. 18, 9 N. E. Rep. 594. 
 
 There are some other questions of minor 
 importance that are suggested on the ap- 
 pellant's briefs. We have carefully consid- 
 ered all tlie questions, and find no error 
 which would justify a reversal of the judg- 
 ment. There was evidence which tends to 
 sustain the finding. The judgment is af- 
 firmed, with costs. 
 
 251 
 
 ^ 
 
€ase No. 90] 
 
 PitOOF. 
 
 P'BRRIS V. HARD et al. 
 
 (32 N. E. 129, 135 N. Y. 354.) 
 
 «ourt of Appeals of New York. Oct. 11, 1892. 
 
 Appeal from superior court of Buffalo, 
 general term. 
 
 Action by Peter J. Ferris, as trustee of 
 tlie city of Buffalo, against Samuel B. Hard 
 and Margaret Hard and others, to foreclose 
 a mortgage. From a judgment of the gen- 
 eral term affirming a judgment for plain- 
 tiff, defendants appeal. Reversed. 
 
 Geo. Wadsworth, for appellants. Price 
 A. Matteson, for respondent. 
 
 PECKHAM, J. Tills is an action to fore- 
 close a mortgage executed by defendants 
 Hard upon land owned by tlie defendant 
 Mrs. Hai-d. The amended complaint sets 
 forth the fact of the execution of the bond 
 by defendant Samuel B. Hard to one Jo- 
 seph Bork on the 10th of September, 1874, 
 for the payment of $10,000 in four equal 
 payments of $2,500 on the 10th of Septem- 
 Taer in each of the years 1876, 1877, 1878, and 
 1879, with interest semiannually on all 
 sums remaining from time to time unpaid. 
 To secure such payments the amended com- 
 plaint alleged that defendants Hard execut- 
 ed a mortgage bearing even date with the 
 bond, and whereby they mortgaged the 
 land described in the amended complaint. 
 The mortgage was duly acknowledged and 
 certified, and it was delivered to Bork on 
 Die day of its date. On February 1, 187G, 
 Bork duly assigned the same to plaintiff, 
 -as trustee for the city of Buffalo, and the 
 city is the real party in interest, and the 
 sole and absolute owner of the bond and 
 mortgage. It is then further averred that 
 there is due and remaining unpaid the sura 
 ■of $10,000 and interest thereon from Sep- 
 tember 10, 1874, at 7 per cent. Further ap- 
 propriate and ordinary allegations for the 
 foreclosure of the mortgage were set forth 
 in the pleading. The defendant Margaret 
 Hard put in a seiJarate answer, and set up 
 in the way of an independent allegation 
 that she was seised, on the 10th of Septem- 
 ber, 1874, and po.^sessed in her own right, 
 •of the lands described in the amended com- 
 plaint, and thtit on such day she executed 
 a mortgage of the premises mentioned , in 
 the amended complaint, and delivered it 
 under the circumstances .and upon the con- 
 sideration and for the purpose then set 
 forth in her answer. She also therein al- 
 leged that she was, in September, 1874, in- 
 formed that her husband was indebted to 
 the firm of Lyon, Bork & Co. on account 
 of money loaned by the firm to him, and 
 she was requested to execu,te a mortgage 
 to Joseph Bork, one of the firm, upon her 
 land, for the purpose of securing such firm 
 -against loss by reason of such loans there- 
 tofore made and thereafter to be made to 
 her husband, and she thereupon executed 
 a mortgage upon lands described in the 
 252 
 
 amended complaint, and delivered it for 
 such purpose. She believed the mortgage 
 set forth in the amended complaint to be 
 the same one thus executed and delivered. 
 The answer further stated that the firm 
 had since that time received moneys which 
 should be applied on her husband's in- 
 ctebtedness to the firm, but there had been 
 no accounting, and she denied any knowl- 
 edge, etc., that the sum of $10,000 was due. 
 She then denied any knowledge or infor- 
 mation sufiicient to form a belief as to 
 the truth of the allegations of the amend- 
 ed complaint, "not hereinbefore admitted, 
 qualified, or denied, and therefore she de- 
 nies the same, and each and every of such 
 allegations." No question appears to have 
 been raised as to the form of this denial. 
 The action was referred to a referee for 
 trial, and he reported in favor of the plain- 
 tiff for foreclosure and sale of the premises, 
 to pay the full amount of $10,000 and In- 
 terest at 7 per cent, from the execution of 
 the mortgage. Judgment was accordingly 
 entered, and the same has been affirmed 
 upon appeal at general term of the superior 
 court of the city of Buffalo, and from the 
 judgment of affirmance the defendants 
 Hard have appealea to this court. 
 
 Upun the trial Samuel B. Hard was called 
 as a witness on behalf of the defendants. 
 It appears that his answer to the com- 
 plaint also contained the allegation that 
 the mortgage had been executed in order to 
 secure the firm of Lyon, Bork & Co. for 
 loans of money theretofore made and which 
 might thereafter be made to tlie witness. 
 Upon that trial he testified that nothing was 
 ever said between him and Bork (with 
 ^whom the whole transaction concededly 
 ftook place) that the mortgage should stand 
 for anything he owed, nor that it was giv- 
 en to secure any advances subsequently to 
 be made by either of the firms or by Bork. 
 Hard also testified that he told Bork that he 
 would get his (Hard's) wife to execute a 
 moi'tgage for $10,000 on a part of the creek 
 property, and that he would give Bork his 
 own bond, and that Bork should sell the 
 bond and mortgage. Here was a direct 
 contradiction between the evidence of Mr. 
 Hard and his sworn answer. It would seem 
 that this contradiction was fully under- 
 stood, and its serious character appreciated, 
 by the defendants and their counsel. The 
 record shows that the defendant Mrs. Hard 
 offered to show by her husband, Mr. Hard, 
 the witness then on the stand, that when 
 his and Mrs. Hard's answers were drawn 
 Mr. Hard informed the attorney who drew 
 them that the bond and mortgage in ques- 
 tion were executed and delivered to Bork 
 to be sold by him for the benefit of Mr. 
 Hard, as absolute securities, and not as 
 securities for any amount then owing by 
 him, or for advances thereafter to be made; 
 and the attorney advised him there was no 
 legal difference, — that the mortgagee would 
 
ADMISSIONS liSr PLEADINGS. 
 
 [Case No. 90 
 
 have the right to hold them as such secu- 
 rity, 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 
 ansYs^ered the complaint as shown by their 
 answers herein. The plaintiff objected to 
 this evidence as immaterial, incompetent, 
 and irrelevant, and the court sustained the 
 objection, and the defendants excepted. 
 We think this offer should have been al- 
 I lowed 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 
 believed, to explain such contradiction in a 
 manner consistent with the honesty of the 
 witness, the defendants were entitled to 
 give. If the plaintiif claims that the alle- 
 gation In the answer was an admission of 
 a fact which concluded the defendants so 
 long as it remainea a part of the pleading, 
 one answer to such claim is that It comes 
 too late. The plaintiff had permitted, with- 
 out objection, the evidence to be given 
 which showed the contradiction, and it was 
 then too late to interpose with an objection 
 which should preclude any explanation of 
 the contradiction. This Is upon common 
 principles of fairness. If the plaintiff had 
 a conclusive objection to the proof of any 
 fact wliich would contradict the admission 
 in the answer, he was bound to state It when 
 the evidence in contradiction was offered, and 
 he should not be permitted to acquiesce in 
 its admission without the least objection, 
 and subsequently present the objection when 
 the witoass desires to explain this contra- 
 diction; otherwise the plaintiff obtains tlie 
 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 
 character of the admission in the pleading. 
 This he should not be permitted to do. 
 
 Upon examination of the so-called "ad- 
 mission," 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 allegation of the complaint. 
 That pleading maae no allegation as to the 
 consideration of the bond and mortgage. 
 It alleged the execution of the bond In the 
 psnal sum of $20,000, with the condition for 
 the payment of $10,000, as therein stated, 
 and that the mortgage was executed as se- 
 curity for the bond. The answer of Mrs. 
 Hard set up as an affirmative 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 hus- 
 band, or which might thereafter be made 
 to him, and then stated the further facts 
 necessary to secure an accounting, and de- 
 nied the Indebtedness of $10,000. The only 
 admission that could possibly be hei-e claim- 
 ed might consist in an admission of the 
 execution of a mortgage upon the lands de- 
 
 scribed in the amended complaint. It, la 
 fact, is nothing but an allegation of the exe- 
 cution of a mortgage, coupled with and 
 forming part of the allegation as to its con- 
 sideration. An answer may contain a direct 
 or ImiDlied admission of some fact alleged 
 in a complaint. 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. Either 
 form of admission of an allegation contained 
 in the complaint is conclusive upon a de- 
 fendant so long as it remains in the plead- 
 ing, and the plaintiff can point to it as con- 
 clusive proof of the truth of his allegation, 
 Paige V. Willett, 38 N. Y. 28; Bobbins v. 
 Codman, 4 E. D. Smith, 315, 325. An alle- 
 gation contained in an answer setting up an 
 affirmative defense, which has no reference 
 to and does not admit any allegation of the 
 complaint. Is of an entirely different nature. 
 Such allegation is not an admission con- 
 tained in a pleading, which is conclusive so 
 long as it remains In the record. An ad- 
 mission which so concludes a party admits 
 something already alleged or set forth in 
 the pleading to which the pleading contain- 
 ing the admission Is an answer. In this 
 case the allegation as to the consideration 
 of the mortgage admitted nothing as to that 
 consideration which was set forth in com- 
 plaint, for there was no allegation therein 
 as to the consideration, and consequently 
 the defendant was not concluded from show- 
 ing a fact which was Inconsistent with his 
 allegation of the consideration, on the 
 ground that he had admitted the considera- 
 tion, and could not be heard to prove one 
 inconsistent with such admission. The 
 plaintiff" could avail himself of the allega- 
 tion as a declaration by defendant, and the 
 defendant could explain it by other evidence 
 so far as possible. 
 
 The question whether this evidence of the 
 consideration, as testified to by Mr. Hani, 
 was not objectionable on the ground thaTit 
 changed substantially the defense (Code, §^ 
 723), is not now here. No such question was 
 raised when the evidence was given. Sub- 
 sequent to that time the defendants request- 
 ed the referee to give them leave to amend 
 the answers by striking out the allegations as 
 to the consideration of the mortgage, and by 
 Inserting allegations In conformity to the 
 testimony of defendant Hard. This was ob- 
 jected to by the plaintiff upon the ground 
 that such amendment would change the is- 
 sues, and also because the defendants had 
 been guilty of laches. Tlie 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 
 objection might be regarded by the referee 
 as properly taken upon a question raised by 
 the pleadings, and In order that he should 
 not Ignore the evidence as not material to 
 any issue raised, although coming in without 
 objection. The defendants, of course, desir- 
 
 25S 
 
Case No. 90] 
 
 PROOF. 
 
 ed the benefit of this evidence, if there was 
 any, and therefore naturally sought to have 
 it appear as material evidence offered upou 
 an issue raised by their answers in the ac- 
 tion. As there must be a new trial because 
 of the error in refusing, under the circum- 
 stances already set forth, to allow the de- 
 fendant Hard to explain the apparent contra- 
 diction 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 de- 
 cide the motion upon such terms as to it 
 may appear to be just. The rules for per- 
 mitting 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 defend- 
 ants will be treated with any Injustice in 
 such a matter. 
 
 It would be quite unfortunate for the par- 
 ties 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 execut- 
 ed by the defendant Mrs. Hard as a surety 
 for her husband's liability, and her contract 
 must be judged according to the strictest 
 mles 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 $10,000; and it cannot be 
 enforced as security for the payment of Mr. 
 Hard's debt to Lyon, Bork & Co., or any oth- 
 er 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 personally. He urges that the contract 
 is one to answer for the debt of a third per- 
 son, 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 mortgage 
 was in terms to secure her husband's per- 
 gonal indebtedness to Bork alone, it could 
 not, he argues, be enforced for the firm in- 
 debtedness, because of the want of an agree- 
 ment in writing to that effect. The prin- 
 -ciple claimed by the counsel is 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 hell liable is that of a 
 third person, viz., her husband; but her con- 
 tract in regard to it is in writing, and sign- 
 ed by her. The statute which forbids hold- 
 ing her liable for the debt of another unless 
 by virtue of her own contract in writing, and 
 signed by her, is thus complied with. Evi- 
 dence 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 
 .254 
 
 as a valid deed or mortgage, that the consid- 
 eration was different from that named in 
 the instrument. Murray t. Smith, 1 Duer, 
 412, and cases cited. This principle is not 
 affected because one of the parties to the 
 instrument is a surety for some third per- 
 son. Thus, in this case, it seems to me 
 plain that parol evidence is admissible to 
 show that the consideration for the execu- 
 tion of this written security for the pay- 
 ment of $10,000 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 consideration. The evidence of th3 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 consideration was other than 
 pecuniary; and this has been held not to 
 violate the general rule that parol evidence 
 is not admissible to contradict a writing. 
 Case above cited. The same principle ap- 
 plies to the case of a surety. The considera- 
 tion, while open to exjilanation, 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 de- 
 scribed In the mortgage could be held liable 
 cannot, in any event, exceed $10,000 and in- 
 terest properly cast. She has only offered 
 her land as security to that extent, and she 
 cannot be held beyond it by virtue of any 
 parol agreement. She agreed to hold her 
 land liable to secure the payment of $10,000 
 In sums and at the times mentioned in the 
 mortgage, and her land is not liable to se- 
 cure 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 indicat- 
 ed for the payment of the moneys set out in 
 the mortgage. Within the principle permit- 
 ting parol evidence as to the consideration 
 for which a written instrument was execut- 
 ed, it is entirely competent to show that the 
 consideration upon which the defendant Mrs. 
 Hard executed the mortgage to secure the 
 payment of .^10,000 was the indebtedness of 
 her husband then existing or thereafter to 
 be incurred in favor of Mr. Bork, or in fa- 
 vor of any firm of which he was a member. 
 The agreement by which Jlrs. 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 fur- 
 ther the questions which may possibly be 
 raised on such new trial. 
 One other question will necessarily be 
 
ADMISSIONS IN PLEADINGS. 
 
 [C.ise No. 9U 
 
 passed upon on the new trial, and that is the 
 question of the rate of interest. It arises 
 now, and we thinli we should decide it. The 
 referee gave judgment for the principal sum 
 as set out in the mortgage, with interest at 
 7 per cent, up to the entry of the judgment. 
 The mortgage contained a provision for the 
 payment of $10,000, as stated m the com- 
 mencemeut of this opinion. This is not like 
 the agreement to pay interest on a principal 
 sum at 7 per cent, until the principal sum is 
 paid, such as the case of Taylor v. Wing, 84 
 N. Y. 471, 477. In the present case the 
 amount of principal was stated, and it was 
 agreed to be paid in Installments of $2,500 in 
 four annual payments, and the sums remain- 
 ing from time to time unpaid were to hear 
 interest at 7 per cent. This clearly meant 
 that the interest on the principal sum, which, 
 by the terms of the mortga,ge, was not due, 
 was to be at 7 per cent. Thus the whole 
 
 principal sum of $10,000 was to be at an in- 
 terest of 7 per cent, from the time of the 
 execution of the mortgage until an install- 
 ment became due, and then, when the install- 
 ment was paid, the interest on the balance 
 remaining unpaid, but not yet due, was also 
 to be at the same i-ate. If an installment 
 was not paid when due, the contract was vio- 
 lated, and interest after that upon such in- 
 stallment could only be recovered as dam- 
 ages, and at the rate of interest authorized 
 by law. Bennett v. Bates, 04 N. Y. 354; 
 O'Brien v. Young, 95 N. Y. 428. This leaves 
 the mortgage running at 7 per cent, interest 
 upon all sums unpaid up to the time when 
 the legal rate was reduced to 6 per cent., 
 and from that time on at the reduced rate. 
 For the reasons above given the judgment 
 must be reversed, and there must be a new 
 trial, with costs to abide the event. All con- 
 cur. 
 
 255 
 
Case No. 91] 
 
 PKOOF. 
 
 JOHNSON T. RUSSELL. 
 
 (11 N. E. 670, 144 Mass. 409.) 
 
 Supreme Judicial Court of Massachusetts. 
 SufEollj. May 7, 1887. 
 
 Contract, upon an order drawn upon de- 
 fendant by one John Camphell in favor of 
 the plaintiff, which was as follows: 
 
 "$600. Boston, March 13, 1882. 
 
 "Mr. D. W. Russell— Dear Sir: Please pay 
 to the order of Thomas J. Johnson six hun- 
 dred dollars, and charge the same to my last 
 payment. John Campbell. 
 
 "Dear Sir: This order is for amount due 
 on woi'k done and furnished for your house. 
 "E. A. P. Newcomb." 
 
 When said order was drawn, said Camp- 
 bell was building a house for defendant, and 
 Campbell was indebted to plaintifE for mate- 
 rial used in the construction of said house. 
 Subsequently to the drawing of this order, 
 said Campbell brought suit against said Rus- 
 sell, claiming a balance due him on account 
 of said building. In his answer filed in that 
 suit, with other defenses the answer set up 
 the order above set forth, with othfers drawn 
 by said Campbell, alleging that he had 
 "promised to pay them out of any funds of 
 the plaintifE in his hands," and claimed that 
 "the amount of said orders should be de- 
 ducted from plaintiff's claim." Russell tes- 
 tified that he had never seen the answer, and 
 did not know its contents. 
 
 At the trial in the superior court, without 
 a jury, before Mason, J., the plaintiff offered 
 in evidence the answer of said Russell, above 
 / mentioned, for the purpose of showing a con- 
 ( ditional acceptance of said order. The court 
 4 excluded this evidence, and plaintilf except- 
 ed. Plaintiff also oflfered to show an agree- 
 ment made in open court, at the trial of the 
 said suit of Campbell v. Russell, by the re- 
 , spective attorneys, that the amount of the 
 \ Johnson order, with others, should be do- 
 ducted from any verdict recovered in favor 
 of said Campbell, and judgment entered for 
 the remainder; but it did not appear that 
 Russell knew anything about said agree- 
 ment, this action not having been brought at 
 that time. The court also excluded this evi- 
 dence. The plaintiff then offered in evidence 
 the judgment in said suit of Campbell v. 
 Russell, for the purpose of showing that the 
 \verdict therein against said Russell was sufli- 
 cient in amount to cover this and the other 
 orders before mentioned; that execution is- 
 sue for an amount more than enough to 
 cover the Johnson order, and was returned 
 satisfied in full. ' No other evidence was of- 
 fered by either party as to whether or not 
 anything was due from defendant to Camp- 
 bell. This was also excluded by the court, 
 and defendant excepted. The court found 
 for defendant, and found specially "that 
 there was nothing due from the defendant 
 
 256 
 
 to Campbell," and plaintifE alleged excep- 
 tions. 
 
 John Herbert and George B. Upham, for 
 plaintifE. C. T. Gallagher and J. F. Wheeler, 
 for defendant. 
 
 W. ALLEN, J. Having proved the order, 
 it lay upon the plaintiff to prove the accept- 
 ance of it by the defendant, and that there 
 was something due from him to Campbell. 
 For the purpose of proving the acceptance, 
 he offered in evidence the answer of the de- 
 fendant in a former suit brought agains't him 
 by Campbell to recover the payment, in 
 which the order was set up, and which al- 
 leged that the defendant had promised to 
 pay it out of any funds in his hands, and 
 claimed that the amount of it should be de- 
 ducted from Campbell's claim. This was re- 
 jected by the court, solely for the reason, a.s 
 was assumed at the argument, that it was a 
 statement made in the course of pleading. 
 The rule that the pleadings in a cause are \ 
 not evidence on the trial, but allegations \ 
 only, is limited to the suit in which they are \ 
 pleaded. Outside of that, admissions and 
 declarations of a party in his pleadings are 
 competent against him; but they must ap- 
 pear to be the act of the party, and not mere- 
 ly of his attorney. When it is his personal 
 act, as in an answer in chancery sworn to by 
 him, it is competent. When it is a pleading, 
 by attorney, of formal allegations, whicli 
 may be presumed to have been made with- 
 out special instructions from his client, it Is 
 not competent. But particular and specific 
 allegations of matters of action or defense, 
 which cannot be presumed to have been 
 made under the general authority of the at- 
 torney, but obviously from specific instruc- 
 tions of the party, are competent. Dennie v. 
 Williams, 135 Mass. 28, and cases there cited. 
 The answer offered in evidence can'ies with 
 it the presumption that it was made under 
 the instructions of the defendant; and the 
 testimony of the defendant, that he had nev- 
 er seen the answer, and did not know its con- 
 tents, without denying that he had given in- 
 structions for it, does not overcome the pre- 
 sumption; especially in view of the fact that 
 the cause proceeded to trial and verdict un- 
 der the answer. We think that the evidence 
 should have been admitted. 
 
 It is contended for the defendant that the 
 evidence was immaterial, because the find- 
 ing of the court that there was nothing due 
 from the defendant to Campbell made ac- 
 ceptance of the order immaterial. After the 
 rejection of the evidence, in the course of the 
 trial, the plaintifE offered other evidence 
 which was incompetent, and was properly 
 excluded, for the purpose of proving that 
 there was enough due from the defendant to 
 Campbell to meet the order. There was no 
 other evidence offered by either party upon 
 the question whether anything was due from 
 the defendant to Campbell, and there was no 
 
ADMISSIONS IN PLEADINGS. 
 
 [Case No. 91 
 
 evidence before the court that anything was 
 due. Hence the special finding. Upon this 
 question the evidence of the ansvs^er of the 
 defendant in the former suit was competent, 
 and, if it had been considered by the court, 
 might have led to a different finding; and it 
 would have been before the court but for the 
 erroneous ruling excluding it. If it should 
 be argued that the finding rendered the evi- 
 dence immaterial for the purpose for which 
 it was offered, the answer is that it was mate- 
 rial for that purpose, and competent as evi- 
 dence in the case until the finding was made; 
 and the defendant had the right to have It 
 before the court until then, and to have it 
 considered by the court on the question of 
 the finding. The fact that the evidence was 
 not offered for that particular purpose is not 
 material. It was offered for a puiTJOse for 
 which it was competent, and was excluded 
 for reasons that applied equally to an offer for 
 the other purpose. It was offered to prove 
 an acceptance of the order when the plaintiff 
 was proving that part of his case, and the 
 ruling excluding it was, in effect, a ruling 
 that it was not competent for either purpose. 
 
 WILGUS,EV.— 17 
 
 When the plaintiff reached the other part of 
 his case, and attempted to prove that there 
 was something due from the defendant to 
 Campbell, a renewed offer of the rejected evi- 
 dence for the purpose of proving that fact 
 would have only been asking for a reversal 
 of the former ruling, and, at least, was un- 
 necessary. 
 
 The offer to prove an agreement between 
 the attorney in the former suit seems to have 
 been properly excluded. It is not sufllcient- 
 ly definite and certain to show any admission 
 by the defendant's attorney. It appears to 
 have been an agreement by the plaintiff's 
 attorney to deduct from any verdict in his 
 favor the amount of the orders, and to take 
 judgment only for the balance. It docs not 
 appear that the defendant's attorney did any- 
 thing more than to receive the voluntary 
 promise of the plaintiff's attorney. It is not 
 sufiicient to prove any admission by defend- 
 ant's attorney, much less any by which the 
 defendant himself should be affected. 
 
 The judgment offered was res inter alios, 
 and was properly excluded. Exceptions sus- 
 tained. 
 
Case Sfo. 92] 
 
 PROOF. 
 
 ULRIOH V. ULEICH. 
 
 (32 >f. E. 600, 136 N. Y. 120.) 
 
 Court of Appeals of New York. Nov. 29, 1892. 
 
 Appeal from superior court of New York 
 City, general term. See 17 N. Y. Supp. 721. 
 
 Action by Cliarles Ulrich against Edward 
 Ulrich, as executor of Barbara Ulricla, de- 
 ceased. Reversed. 
 
 Nelson Smith, for appellant. Edward P. 
 OiTell (Edward W. S. Jobnston, of counsel), 
 for respondent. 
 
 GRAY, J. The plaintiff brought this ac- 
 tion against the executor of his mother's 
 will to recover from her estate the value of 
 services, which he alleged had been render- 
 ed by himself and his wife to his mother at 
 her request. A jury rendered a verdict for 
 the defendant, and the only question which 
 demands our consideration, upon the plain- 
 tiff's appeal from a judgment affirming the 
 defendant's recovery, arises upon the excep- 
 tion of the plaintiff to a part of the trial 
 judge's charge. After stating what the 
 action was for, the trial judge said: "As 
 a general rule, children are bound to care 
 for their parents in their old age, and filial 
 affection should prompt children to do so. 
 The consequence is that the presumption of 
 law is against sucli a claim as has been ad- 
 vanced in this action." The plaintiff except- 
 ed to this portion of the charge, and insists 
 that it was an erroneous instruction to the 
 jury. The trial judge, it is true, continued 
 by charging that "if the plaintiff' has over- 
 come the presumption by proof, and has 
 clearly shown that the services sought to be 
 recovered for were rendered by himself and 
 his wife pursuant to his mother's express 
 liromise. * * * the plaintiff is entitled to 
 recover." Under the facts of the case, as 
 they had appeared in tlie evidence, the 
 ■charge relating to the obligations of chil- 
 dren, and as to the legal presumption, was 
 such as possibly to convey to the minds of 
 the jurors an erroneous understanding of the 
 law. It may well be that the trial judge had 
 before his own mind the moral aspect of the 
 case, and did not intend that his observa- 
 tions should have any other weight with the 
 Jury than as moral reflections; but the na- 
 ture of the case, the sequence of the re- 
 raarlis, and the stage of the case, or the cir- 
 cumstances under which uttered, were such 
 as, in my judgment, to require us to grant 
 a new trial. There is no presumption of law 
 against the maintenance of such a claim. If 
 the plaintiff had established to the satis- 
 faction of the jury the existence of an agree- 
 ment between his parent and himself, un- 
 der which he and his wife were to attend 
 upon and to care for her, and she was to 
 pay for such services, he was entitled to 
 their verdict, as much as he would be upon 
 any other valid claim. 
 
 A "presumption" has been defined to be a 
 
 258 
 
 rule of law that courts and judges shall 
 draw a particular inference from particular 
 facts, or from particular evidence, unless and 
 until the truth of the inference is disprov- 
 ed. Steph. Dig. Ev. c. 1, art. 1. No pre- 
 sumption existed here as a presumption of 
 law. The right to draw any presumption as 
 to the fact of an agreement having been 
 made from the other fact of the relationship 
 ' between the parties was within the exclusive 
 province of the jury. Justice v. Lang, 52 N. 
 Y. 323. There is no rule of law which com- 
 pels an inference, from the fact of such a 
 relationship, against the existence of an 
 agreement by the parent to compensate the 
 child for services to be rendered. The law 
 does presume, where there Is no proof of a 
 contract, under which the services were per- 
 formed, that there was no promise or agree- 
 ment to pay for them; that is, that they 
 were gratuitous. That is the general mle. 
 So far as the relation of parent and child is 
 concerned, it is quite as competent for the 
 parent to contract with his adult child for 
 support and care, and a claim for the com- 
 pensation due thereunder is quite as valid, 
 as it would be In any other case between 
 individuals. The liability of a child to sup- 
 port its parents, who are infirm, destitute, or 
 aged, was created in England and here by 
 statute. The statute in that respect created 
 duties unknown to the common law. Reeve, 
 Dom. Rel. 284; 1 Bl. Comm. 448; Edwards 
 V. Davis, 16 Johns. 281. Had the trial judge 
 confined his observations to the suggestion 
 that filial affection should prompt children 
 to take care of their parents in their old age, 
 I should find no reason for criticising the cor- 
 rectness of his charge. But the state of the 
 case was such as that, with the moral sense 
 alert, and naturally quick to respond to im- 
 pressions adverse to the plaintiff's claim, the 
 jury would readily attacli great weight to all 
 expressions of the judge presiding at the 
 trial which cast a doubt upon the validity 
 of the claim. In every case, to determine 
 whetlier the error pointed out has been such 
 as to prejudice the party, the court may con- 
 sider the nature of the case, and how deli- 
 cately the scales were balanced between the 
 parties. Here the plaintiff had shown by the 
 evidence of his wife that, after the death of 
 her husband, the testatrix, who was very 
 aged and feeble, told plaintiff and his wife 
 to stay on with her, and that she would pay 
 them for the work ftiey did; that she gave 
 as a reason her helpless condition; that they 
 remained with her until her death, and dur- 
 ing that time performed many more or less 
 important services iu nursing and caring for 
 her; and that she repeatedly said she would 
 pay them, without mentioning any amount. 
 • Her evidence was more or less con'Oborated 
 by that of witnesses who variously testified 
 to hearing the old woman state tliat she 
 made the plaintiff and his wife stay with and 
 take cai-e of her, and that she would pay 
 them, or tliat she would "make it all right 
 
PRESUMPTIONS IN GENERAL. 
 
 [Case No. 92 
 
 with them." In opposition, the defense gave 
 eyidence to show that plaintiff and wife re- 
 ceived their board and lodging; that the de- 
 ceased was an active woman, and not de- 
 pendent upon others for services, or in need 
 of care; that plaintiff was a shiftless fel- 
 low, and would occasionally drink to excess; 
 and that, under the will of deceased, plain- 
 tiff received an equal interest in her estate 
 with the other children. When the evidence 
 was all in, and the case ready to be sent 
 to the jury for their verdict, while the plain- 
 tiff's evidence of an agreement that they 
 should remain and care for the deceased, 
 and that their services were to be paid for, 
 was uncontradicted by direct evidence, it 
 was seriously attacked by evidence of facts 
 which, if it did not make the agreement ap- 
 pear an improbable one, yet was of such a 
 nature as might justify the jury in discred- 
 iting the evidence for the plaintiff. 
 
 On the one side was positive evidence 
 which, if believed, entitled plaintiff to a ver- 
 dict. According to the evidence given for 
 the plaintiff, there were no rambling expres- 
 sions of a sense of obligation, or of prom- 
 ises to make compensation by testamentary 
 provisions. There was a request to remain, 
 and an agreement to pay for the work to be 
 •done. On the other side, there was circum- 
 stantial evidence negativing, or tending to 
 negative, the making of the alleged agree- 
 ment, which the jury were at liberty to ac- 
 cept, and upon which they could base a ver- 
 dict for the defendant. In {hat condition of 
 things, the just balance of their minds might 
 be disturbed, and their judgment easily led, 
 by any suggestion from the trial jiidge which 
 seemed to militate against the legality of 
 plaintiff's claim, and which would seem to 
 accord with an aversion of the moral sense. 
 It appears from the record that at the con- 
 clusion of the evidence but little time was 
 left, and that the trial judge hastened, as 
 he said, to "finish the case this evening," 
 and he made a very brief charge, in which 
 
 he left it to the jury to say whether the 
 plaintiff had "made out a ease which meets 
 every requirement of the law as he had laid 
 It down." He had in mind, I do not doubt 
 at all, that he had previously merely com- 
 mented upon the obligation from child to 
 parent, as such exists in nature, and not as 
 having led them to believe that any rule of 
 law stood in the way of such a claim in such 
 cases. But I am constrained to the belief 
 that prejudice may have been worked to the 
 plaintiff's case by the obsei'vations of the 
 trial judge. He had observed that it was "a 
 general rule that children are bound to take 
 care of their parents in their old age," and 
 that "the consequence" of that rule, and of 
 the promptings of filial affection, was "that 
 the presumption of law was against such a 
 claim as had been advanced in this action." 
 Both statements were incorrect as legal prop- 
 ositions; for, of course, there is no such gen- 
 eral rule of law, nor such a presumption. 
 Coming from the lips of the judge, from 
 whom they were to take the law applicable 
 to the case, can we, and should we, say that 
 they had no influence upon the minds of the 
 jury, or that, if they did have, the error was 
 cured by the subsequent instruction to the 
 effect that, "if the plaintiff had overcome the 
 presumption by proof," he might recover? 
 I think not. This was essentially a case for 
 decision by a jury upon the evidence be- 
 fore them, as they believed the facts and 
 weighed the probabilities. They might well 
 have understood that' there was a rule of 
 law, which amounted to a presumption, 
 against the validity of such a contract and 
 claim, and the plaintiff should therefore have 
 a new trial, in which a verdict may be reach- 
 ed without the possible Influence of an er- 
 roneous idea leading to its formation. The 
 judgment should be reversed, and a new 
 trial ordered, with costs to the appellant to 
 abide the event. All concur, except AN- 
 DREWS, PINCH, and O'BRIEN, JJ., dis- 
 senting. 
 
 259 
 
Case No. 93] 
 
 PliOOP. 
 
 HILTON T. BENDER. 
 (69 N. Y. 75.) 
 Court of Appeals of New York. March 20, 1877. 
 
 Marcus T. Hun, for appellant. Amasa J. 
 Parker, for respondent. 
 
 CHURCH, 0. J. This is an action of eject- 
 ment to recover an undivided interest in 
 premises in the city of Albany, situated on 
 the corner of South Pearl street and Hudson 
 avenue. The plaintiff claims as devisee un- 
 der the -will of James Hilton, Sr., who died, 
 as I infer, in December, 1S36, by which he 
 devised and bequeathed his residuary estate, 
 real and personal, to Robert Hilton, Jr., a 
 nephew, and Catherine, his wife, and Rich- 
 ard Hilton, the plaintifC, who was also a 
 nephew of the testator. The defendant is a 
 daughter of Robert Hilton, Jr., and Cath- 
 erine, his wife, and by descent and a con- 
 veyance from her brother Is, in any event, 
 entitled to their interest under the will, 
 which interest is either an undivided one- 
 half or two-thirds, depending upon the con- 
 struction of the residuary clause, which will 
 be hereafter noticed. The defendant how- 
 ever claims title to the whole premises un- 
 der a lease for one thousand years, to one 
 John Hilton, by the corporate authorities of 
 the city of Albany, dated in March, 1836, up- 
 on a sale for an assessment, and by him, 
 through another person, to her; and also 
 under a like conveyance from the city au- 
 thorities, 1861, to one Paddock, and by him 
 to her. The plaintifC was nonsuited at the 
 trial, but the record does not state upon 
 what ground the nonsuit was granted. The 
 general term afiBrmed the judgment upon 
 the ground of a title in the defendant to the 
 whole premises by adverse possession under 
 the assessment deed of 1836. This ground 
 is now abandoned by reason of the recent 
 decision of this court in Bedell v. Shaw, 59 
 N. Y. 46, holding that possession, to be ad- 
 verse so as to ripen into a title when long 
 enough continued, must be accompanied by 
 a claim of title in fee, and hence, that a 
 claim under such a lease Is not sufficient, 
 and is not in hostility to the title of the 
 owner. But it is insisted that the defendant 
 has affirmatively and Conclusively, in law, 
 established a title to the whole premises by 
 virtue of the two assessment deeds, and 
 especially by the first one, dated in 1836. 
 
 The deed or lease only from the mayor is 
 produced. No other paper or proceeding 
 was proved on the trial. The authority for 
 making improvements and for levying and 
 collecting assessments therefor in the city 
 was derived from sections 4 and 5, chapter 
 164 of the Laws of 1828, which, in sub- 
 stance, were re-enactments of sections 30 
 and 31 of chapter 185 of the Laws of 1826. 
 By those sections it was made lawful for the 
 mayor, aldermen and commonalty of the 
 city "to order and direct" certain improve- 
 
 200 
 
 ments, including the opening of streets and 
 the making and repairing of sewers, drains, 
 etc., and upon the completion of any such 
 work so ordered, to cause an account of the 
 expense to be made by the city superintend- 
 ent or other person or persons, to be ap- 
 pointed by them, and to apportion the same 
 under oath among the houses and lots in- 
 tended to be benefited in proportion to the 
 advantage which each was deemed to ac- 
 quire, specifying the owner or occupant, 
 which apportionment was to be returned to 
 the mayor, etc., and when returned, they 
 were to cause public notice to be given of 
 such apportionment for thirty days, and if 
 no cause was shown against confirmation, 
 upon its approval it was to be filed in the 
 office of the clerk of the common council, 
 and then it was to be binding and a lien 
 upon the lands assessed. The mayor, etc., 
 were then authorized to sue for and recover 
 such assessment, or in case of refusal to 
 pay, cause a notice of such apportionment 
 and of the amount forming a part thereof 
 to be published for three months, requiring 
 the owners of the respective lots to pay the 
 assessment, and in default, that such lot or 
 lots would be sold at public auction, and 
 they were authorized to sell accordingly. 
 
 I have thus briefly abstracted the require- 
 ments of the law to show that the legisla- 
 ture required official action and record evi- 
 dence of the principal steps preliminary to a 
 sale, so that the property rights of the citi- 
 zen should not be sacrificed, except upon 
 compliance with these public and formal 
 acts. 
 
 It is well settled that every statute au- 
 thority in derogation of the common law to 
 divest the title of one and transfer it to an- 
 other, must be strictly pursued. It is not a 
 case for presuming that public officers have 
 done their duty, but their acts must be 
 shown and the onus lies on the purchaser. 
 The recitals in the deed are not evidence 
 against the owner, but they must be proved 
 true. Sharpe v. Speir, 4 Hill, 86. The stat- 
 ute does not declare that the deed shall be 
 deemed prima facie evidence of the regular- 
 ity of the proceedings or the sale, and hence 
 these proceedings must be proved. The 
 clause that the i^urchaser shall "hold the 
 land against the owner and all persons 
 claiming it," does not obviate the necessity 
 lof such proof. The clause is based upon the 
 presumption that the statutory requirements 
 ttiave been complied with and are merely 
 declaratory in that event of the nature of 
 the interest which the purchaser is entitled 
 to enjoy. 
 
 In tax sales there is a fundamental condi- 
 tion to their validity that there should have 
 been a substantial compliance with the law 
 in all the proceedings of which the sale was 
 the culmination. "This would be the gen- 
 eral rule in all cases in which a man is to 
 be divested of his freehold by adversary 
 
PEESUMPTIONS IN GENERAL. 
 
 [Case No. 93 
 
 proceedings, but special reasons malie it 
 peculiarly applicable to the case of tax 
 sales." Cooley, Tax'n, 324. The proceed- 
 ings are ex parte. The owner Is to be de- 
 prived of his land. The price usually paid 
 is trifling, and hence it is peculiarly appro- 
 priate that strictness in observing the re- 
 quirements of the law should be exacted. 
 Brown v. Veazie, 25 Me. 359. These gefieral 
 rules are now universally applied and do 
 not require elaboration, and if applied in 
 this case they would be plainly fatal to the 
 defense founded upon the assessment deed 
 of 1836. 
 
 It is insisted however by the learned coun- 
 sel for the defendant, that from the lapse of 
 time which has intervened since the deed 
 was given (more than thirty years) and the 
 alleged possession under it, a conclusive 
 [presumption may be indulged that all the 
 / proceedings were regular and in accordance 
 / with the statute. This position cannot be 
 sustained. The general rule laid down by 
 Mr. Greenleaf in his work on Evidence that 
 "when an authority is given by law to ex- 
 ecutors, administrators, guardian^, or other 
 oflicers, to make sales of land upon being 
 duly licensed by the courts, and they are re- 
 quired to advertise the sales in a particular 
 manner and to observe other formalities in 
 their proceedings, the lapse of sufficient time, 
 (which in most cases is fixed at thirty years) 
 raises a conclusive presumption that all the 
 legal formalities of the sale were observed," 
 may be conceded, but this rule does not jus- 
 tify the position insisted upon in this case. 
 .Greenl. Bv. § 20. The rule does not apply 
 I to i-ecords and public documents which are 
 supposed to remain in the custody of the 
 officers charged with their preservation, and 
 which must be proved, or their loss ac- 
 counted for and supplied by secondary evi- 
 dence. 
 
 The foundation of the proceeding in ques- 
 tion was the action of the common council 
 in ordering and directing the improvement, 
 and equally indispensable was the confirma- 
 tion, approval and filing of the apportion- 
 ment which made the assessment "bind- 
 ing" upon the owners. Without these ofii- 
 cial acts the subsequent proceedings includ- 
 ing the deed were a nullity. The acts of the 
 mayor, aldermen and commonalty of the 
 city of Albany were matters of record. 
 , They had a clerk, and the act specifically 
 directs the apportionment to be filed in his 
 office. The presumption is that these rec- 
 ords and documents are in existence, and in 
 the absence of evidence, if they cannot be 
 found or their loss or destruction in some 
 way accounted for or explained, the natural 
 presumption is that they never did exist. 
 
 When the law exacts acts of record, and 
 provides for perpetuating documentary evi- 
 dence, it is unreasonable, because against 
 the usual course of things, to presume with- 
 out proof that they once existed and have 
 
 been lost. A presumption is an inference of 
 a fact not known arising from its necessary 
 or usual connection with others which are 
 known. To infer a record once existing and 
 lost, because not found, where the law re- 
 quires it should be kept, would reverse the 
 rule and create a presumption of one fact 
 from another not usually connected with it. 
 Facts may be shown doubtless from which 
 the existence of the records and their sub- 
 sequent loss or destruction might be infer- 
 red. No such facts were shown in this case. 
 The casual examination made during the 
 trial can scarcely be called a search. There 
 was no evidence, and certainly not sufln- 
 cient, that the records are not in existence, 
 and if not, there were no facts proved to 
 rebut the presumption arising in that event 
 that they never did exist. When a person 
 seeks, by a purchase of valuable property 
 for a trifiing sum at a tax sale, to cut off the 
 title of the owner, it behooves him to see to 
 it that the proceedings have all been in sub- 
 stantial accordance with the requirements 
 of law, and that the proper evidence of the 
 same has been preserved, and there is mani- 
 fest propriety in applying this rule to a pur- 
 chase by one sustaining the relations to the 
 owner which the evidence tends to show 
 that John Hilton did. 
 
 Courts will not aid in supplying funda- 
 mental defects in such a case by presump- 
 tions. Again it appears, by a recital of the 
 deed, that the three months' notice of sale 
 was published in the Albany Argus, a paper 
 then and now published in the city of Al- 
 bany, and no reason was adduced or fact 
 shown why the notice, as published, might 
 not be produced. 
 
 Presumptions of regularity may be in- 
 dulged as to notices and other intermediate 
 steps not matters of record; but even then 
 they are not always conclusive, but often 
 depend upon the circumstances proved. 
 When a purchaser at a tax sale has taken 
 possession under his deed, and continued 
 undisturbed for a long period in the peace- 
 able enjoyment of the property, claiming by 
 virtue thereof, and the owner is in a posi- 
 tion to contest the title, and especially if he 
 is chargeable with knowledge of the claim, 
 the presumption is very strong, and as to 
 some facts after thirty years may be con- 
 clusive in favor of regularity. But if the 
 purchaser should lie by, before taking pos- 
 session, until his deed was very old, he 
 would come with a poor grace into court to 
 ask for a presumption to supply facts which 
 he did not venture to put himself in a posi- 
 tion to establish when it was practicable, if 
 they existed, to prove them. Cooley, Tax'n, 
 330. Between these extreme cases will be 
 found many others partaking more or less 
 of the elements of each. It is impracticable 
 to lay down a rule applicable to all cases. 
 Indeed there is no fixed rule on the subject. 
 It is clear that the age of the deed, while it 
 
 261 
 
Case No. 93] 
 
 PROOF. 
 
 may he important, is not decisive. In this 
 case, as we have seen, it could not be found, 
 as a Question of fact, that the preliminary- 
 steps had been taken, or that the record evi- 
 dence had ever existed, of the facts which 
 were matters of record, and no evidence 
 was given as to other facts from which an 
 inference could be drawn. There was other 
 evidence bearing in a greater or less degree 
 upon the character of the possession of John 
 Hilton and the defendant, which it was 
 proper to be considered. In the first place 
 the plaintiff was in no position to contest 
 the title until the death of Rachel Hilton, the 
 surviving beneficiary under the will. His in- 
 terest was a remainder after two lives. It 
 does not distinctly appear when Rachel Hil- 
 ton died, but I infer from the evidence that 
 it was in the neighborhood of 1860, or later, 
 and the action was commenced in 1871. The 
 plaintifE was then, and is now, a non-resi- 
 dent of the state, and there is no evidence 
 whether he had .any knowledge of the 
 claims now presented or not. There was 
 evidence also tending to show that at the 
 time John Hilton bid ofC the premises at the 
 tax sale and received the lease, he was in 
 possession as a tenant of the owner, and 
 also as an agent to some extent. This oc- 
 curred while the owner was living, in the 
 spring previous to his death. The character 
 of his possession afterward was somewhat 
 equivocal from the evidence. There was 
 evidence that he brought forward his assess- 
 ment deed when the will was read, but 
 when that was does not appear. The tes- 
 tator died in December, 1836, but the will 
 was not proved until 1839. It is quite prob- 
 able that he intended to claim the property 
 by virtue of the tax title, as It was talked of 
 in the family, and it was in evidence that 
 the defendant complained of his treatment 
 of the heirs in this respect, and yet there 
 was evidence tending to show that he after- 
 ward supplied the life beneficiaries with 
 groceries in payment for their interest in 
 the use of the premises. The executors are 
 both dead, and it does not appear that they 
 ever had possession. In 1852, John Hilton 
 made an assignment for the benefit of cred- 
 itors, conveying, under general words, with- 
 out description, all his property, real and 
 personal, and in 1858 his assignees con- 
 veyed the premises to a third person for the 
 nominal consideration of $25, who, for a 
 like consideration, conveyed them to the 
 defendant. It does not appear that the as- 
 signees ever had or claimed possession of 
 this property during the six years interven- 
 ing between the assignment and their deed. 
 There is evidence tending to show that the 
 defendant has received the rents since 1857, 
 which implies that she has been in posses- 
 sion from that time. The deed from the as- 
 signees was not executed until 1858, and, if 
 she was in in 1857, it must have been by 
 virtue of her title under the will as co-ten- 
 ant with the plaintiff, or, if Rachel Hilton 
 
 262 
 
 was then living, possibly under some ar- 
 rangement with her. The inferences to be 
 drawn from these facts, bearing upon legal 
 propositions, involved as to the effect of the 
 purchases by John Hilton and by the de- 
 fendant and as to whether the premises^ 
 were held under the tax title, and have been 
 so held continuously since that period, are 
 to be drawn by the jury. And these facts 
 have some bearing upon the strength of pre- 
 sumptions which may be invoked to supply 
 facts not capable from lapse of time of posi- 
 tive proof. Worthing v. Webster, 45 Me. 
 270; 71 Am. Dec. 543; Cooley, Tax'n, 331, 
 332, and cases cited. 
 
 It is not intended to intimate that the tax 
 sale may not be upheld, but only that there 
 was an entire failure of proof upon the trial, 
 and that it is not a case for the application 
 of a conclusive presumption of regularity. 
 The assessment deed of 1861 to William S. 
 Paddock is void. The commissioners to as- 
 sess the damages and recompense for widen- 
 ing Hamilton street, although appointed ac- 
 cording to the statute then in existence 
 (chapter 86 of the Laws of 1844), were not 
 apijointed in accordance with section 7 of 
 article 1 of the constitution. In this respect 
 the statute is unconstitutional, as this court 
 decided in Menges v. City of Albany, 56 N. 
 ,Y. 374. This defect appeared aflirmatively 
 upon the trial, and as it was a substantial 
 link in the chain of legal requirements nec- 
 essary to bind the lands of the owners sup- 
 posed to be benefited, the defect is fatal to 
 the validity of the entire proceedings. The 
 question in respect to the title of James Hil- 
 ton, Sr., was not insisted upon in this court 
 The evidence would at least justify a find- 
 ing of facts by the jury sufficient to estab- 
 lish a good title. A nonsuit on that ground 
 would have been erroneous. 
 
 As there must be a new trial, it is proper 
 to determine the extent of the interest of the 
 plaintifl: in the premises under the will of 
 James Hilton, Sr. The will, after devising 
 and bequeathing the property of the testa- 
 tor, to the executors in trust to apply the 
 income, rents and profits to the support of 
 the son of the testator, James Hilton, and 
 his wife, Rachel, and the survivor for life, 
 contained this clause: "I give, devise and 
 bequeath the residue and remainder of my 
 real and personal estate, * * * to Robert 
 Hilton, Jr., son of my deceased brother 
 Robert, and Catherine, his wife, and Rich- 
 ard, son of my brother Derrick, as tenants 
 in common, and their heirs forever." There 
 is nothing in the language indicative of an 
 intent to give Robert Hilton, Jr., and his 
 wife a half interest and the plaintiff the oth- 
 er half. The devise to Catherine, the wife, 
 is as specific as to either of the others, and 
 the language applies to her the same as the 
 others, and I can see no reason for any dis- 
 tinction. The devise is to Robert, Catherine 
 and Richard, as tenants in common, and to 
 their heirs and assigns forever. It follows 
 
PKESUMITIONS IN GENERAL. 
 
 [Case No. 93 
 
 t.bat the plaintiff's interest under the will is 
 only an undivided third, instead of one-half 
 as claimed. It is unnecessary to notice the 
 other points. 
 
 The judgment must be reversed and a 
 new trial granted, with costs to abide the 
 event. .Tudgment reversed. 
 
 All concur; RAPALLO, J., absent. 
 
 263 
 
Case No. 94] 
 
 PROOF. 
 
 UNITED STATES T. ROSS. 
 
 (92 U. S. 281.) 
 
 Supreme Court of the United States. Oct., 
 1875. 
 
 Appeal from the court of claims. 
 Edwin B. Smith, Asst. Atty. Gen., for the 
 United States. George Taylor, contra. 
 
 Mr. Justice STRONG delivered the opinion 
 of the court. 
 
 It is incumbent upon a claimant under the 
 captured or abandoned property act to estab- 
 lish by sufficient proof that the property cap- 
 tured or abandoned came into the hands of 
 a treasury agent; that it was sold; that the 
 proceeds of the sale were paid into the treas- 
 ury of the United States; and that he was 
 the owner of the property, and entitled to 
 the proceeds thereof. All this is essential to 
 show that the United States is a trustee for 
 him, holding his money. That there is in the 
 treasury a fund arisen out of the sales of 
 property captured or abandoned, a fund held 
 in trust for somebody, and that the claim- 
 ant's property, after capture or abandon- 
 ment, came into the hands of a quartermas- 
 ter of the army or a treasury agent, is not 
 sufficient. There must be evidence connect- 
 ing the receipt of it by the treasury agent 
 with the payment of the proceeds of sale of 
 that Identical property into the treasury. 
 We do not say that the evidence must be di- 
 rect. It must, however, be such as the law 
 recognizes to be a legitimate medium of 
 I proof; and the burden of proof rests upon 
 / the claimant who asserts the connection. 
 
 In the present case, the court of claims has 
 not found as a fact that the claimant's cot- 
 ton came into the hands of a treasury agent, 
 that it was sold, and that the proceeds of 
 that cotton were paid into the treasury. No 
 connection between the cotton captured and 
 the fund now held by the United States has 
 been established. Certain facts have been 
 found, and from them it was i nferred , as 
 matter of law, that other facts existed; and 
 upon the facts thus inferred the court gave 
 judgment. 
 
 We think that in this there was error. The 
 claimant owned, in May, 1864, thirty-one 
 bales of cotton, then in a warehouse In Rome, 
 Ga. On the 18th of that month, Rome was 
 captured by the United States forces; and 
 shortly afterwards the cotton was removed 
 on government wagons to a warehouse ad- 
 joining the railroad leading from Rome to 
 Kingston, and connecting there with a road 
 leading thence to Chattanooga. Whether it 
 was the only cotton in that warehouse is not 
 found; but it is inferrible from the other 
 facts found that it was not. Subsequently 
 (but how long afterwards does not appear) 
 all of the cotton in that warehouse was ship- 
 ped on the railroad to Kingston, the road 
 being then In the possession of the military 
 authorities. It is next shown that cotton 
 (some cotton) arrived in Kingston from Rome 
 
 2G4 
 
 before Aug. 19, 1864, and was forwarded to 
 Chattanooga; that, on the 19th of August, 
 forty-two bales were received at Chattanooga 
 from the quartermaster at Kingston; that 
 thence they were shipped to Nashville, where 
 they were received as coming from Kingston, 
 turned over to the treasury agent, and sold. 
 The proceeds of sale were paid into the treas- 
 ury, and no title to these forty-two bales has 
 been asserted by third persons. 
 
 Such were the facts found; and from them 
 the court deduced, not as a conclusion of 
 fact, but as a presumption of law, that the ] J 
 thirty-one bales removed on government /' 
 wagons to the warehouse immediately ad- 
 joining the railroad at Rome, shortly after 
 ! May 18, 1864, were a part of the forty-two 
 bales received at Nashville on the 24th of Au- 
 gust, four months afterwards, and there turn- 
 ed over to the treasury agent. It is obvious 
 that this presumption could have been made 
 only by piling inference upon inference, and 
 presumption upon presumption. Because 
 the thirty-one bales of the claimant were 
 taken to the warehouse alongside of the rail- 
 road at Rome in May, 1864, and the cotton 
 in that warehouse afterwards, at some un- 
 known time (whether before or after Aug. 
 19 does not appear), was shipped on the road 
 to Kingston, it is inferred that the claimant's 
 cotton was part of the shipment. Because 
 somebody's cotton (how much or how little 
 Is not shown) arrived at Kingston from Rome 
 at some time not known, and was forwarded 
 to Chattanooga before the 19th of August, 
 1864, it Is inferred that the claimant's thirty- 
 one bales, loresumed to have reached Chat- 
 tanooga, thus arrived, and were forwarded; 
 and, because forty-two bales were received 
 at Chattanooga on that day from the quarter- 
 master at Kingston, it is inferred that the 
 claimant's bales were among them. These 
 seem to us to be nothing more than con- 
 jectures. They are not legitimate inferences, 
 even to establish a fact; much less are they 
 presumptions of law. They are' inferences 
 from inferences; presumijtions resting on 
 the basis of another presumption. Such a 
 mode of arriving at a conclusion of fact is 
 generally, if not universally, inadmissible. 
 Xo inference of fact or of law is reliable 
 drawn from premises which are uncertain. 
 Whenever circumstantial evidence is relied 
 upon to prove a fact, the circumstances must 
 be proved, and not themselves presumed. 
 Starkie, Ev. p. 80, lays down the rule thus: 
 "In the first place, as the very foundation 
 of Indirect evidence is the establishment of 
 one or more facts from which the inference 
 is sought to be made, the law requires that 
 the latter should be established by direct 
 evidence, as If they were the very facts in is- 
 sue." It Is upon this principle that courts 
 are daily called upon to exclude evidence as 
 too remate for the consideration of the jury. 
 The law requires an open, visible connection 
 between the principal and evidentiary facts 
 and the deductions from them, and does not 
 
PKESUMPTIONS IN GENERAL. 
 
 [Case No. 94 
 
 permit a decision to be made on remote infer- 
 ences. Best, Ev. 95. A presumption which 
 the .jury is to malie is not a circumstance in 
 IDroof ; and it is not, therefore, a legitimate 
 foundation for a presumption. There is no 
 open and visible connection between the fact 
 out of which the first presumption arises and 
 the fact sought to be established by the de- 
 pendent presumption. Douglas v. Mitchell, 
 ^5 Pa. St. 440. 
 
 The court of claims thought the facts 
 found by them entitled the claimant to the 
 legal presumption said by this court to exist 
 in Crussell's Case, 14 Wall. 1; and therefore 
 determined, as a conclusion of law, that the 
 cotton taken from the claimant was a part of 
 that transmitted to Nashville, and turned 
 over to the treasury agent and sold. AVe 
 think Crussell's Case does not justify such a 
 conclusion. Because property was captured 
 by a military officer and sent forward by 
 him, and because there is an unclaimed fund 
 in the treasury derived from sales of prop- 
 erty of the same kind as that captured, be- 
 <-ause omnia presumuntur rite esse acta, and 
 officers are presumed to have done their 
 duty, it is not the law that a court can con- 
 clude that the property was delivered by the 
 military officer to a treasury agent, that it 
 was sold by him, and that the proceeds were 
 covered into the treasury. The presumption 
 that public officers have done their duty, like 
 the, presumption of innocence, is undoubtedly 
 a legal presumption; but it does not supply 
 ' proof of a substantive fact. Best, in his 
 treatise on Evidence (section 300), says: "The 
 true principle intended to be asserted by the 
 rule seems to be, that there is a general dis- 
 position in courts of justice to uphold judicial 
 and other acts rather than to render them in- 
 operative; and with this view, where there 
 is general evidence of facts having been le- 
 gally and regularly done, to dispense with 
 proof of circumstances, strictly speaking, es- 
 sential to the validity of those acts, and by 
 
 which they were probably accompanied in 
 most instances, although in others the as- 
 sumption may rest on grounds of public pol- 
 icy." Nowhere is the presumption held to be 
 a substitute for proof of an independent and 
 material fact. The language of the opinion 
 in Crussell's Case would perhaps mislead, 
 were it not read in connection with the find- 
 ing of facts. The question was, whether 
 seventy-three bales of cotton of the plaintiff's 
 had been forwarded, with a much larger 
 amount, to the officer in charge of military 
 transportation at Nashville, and by him turu- 
 ed over to the treasury agent. There was no 
 direct proof that the plaintiff's cotton was in- 
 cluded in the shipment; but there was proof 
 that the treasury agent forwarded the cotton 
 received by him to the supei-vising agent at 
 CincinnaH, where a sale was soon after 
 made, and some of the bales sold were mark- 
 ed with the plaintiff's mark. The question, 
 therefore, whether the military officer who 
 shipped the large quantity had shipped with 
 it the cotton of the plaintiff, was not left to 
 depend upon the presumption that he had 
 done his duty. There was distinct and in- 
 dependent proof of it in the fact that some 
 of the plaintiff's cotton ha3 reached Cincin- 
 nati, and had been sold there. The presump- 
 tion was only confirmatory of what had been 
 proved by evidence, and in confirmation of 
 that proof it might be invoked. This is all 
 that can fairly be deduced from the opinion 
 of the court as delivered by the chief justice. 
 
 No more need be said of the present case. 
 It is not found as a fact that the identical 
 cotton captured from the plaintiff ever came 
 into the hands of a treasury agent, or that it 
 was sold, and that the proceeds were paid 
 into the treasury; and the presumption of 
 law adopted by the court, that the cotton 
 was a part of that transmitted and sold, was 
 unwarranted. 
 
 Judgment reversed, and cause remanded 
 for a new trial. 
 
 26.5 
 
 V 
 
Case No. 9D] 
 
 FEOOF. 
 
 FLETCHER et al. v. FULLER. 
 
 (7 Sup. Ct. 667, 120 U. S. 534.) 
 
 Supreme Court of the United States. March 7, 
 1887. 
 
 In error to the circuit court of the United 
 States for the district of Rhode Island. 
 
 Wm. H. Greene and Jas. Tillinghast, for 
 plaintiffs in error. Livingston Scott and 
 Elisha C. Mowry, for defendant in error. 
 
 FIELD, J. This is an action of ejectment 
 to recover possession of twenty-seven twen- 
 ty-eighths undivided parts of a tract of land, 
 containing about 14 acres, situated in the 
 town of Lincoln, formerly Smithville, in the 
 state of Rhode Island. The plaintiff, a cit- 
 izen of Connecticut, sues the defendants, eic- 
 izens of Rhode Island, in his own right, and 
 as trustee for others. 
 
 The declaration contains several counts, all 
 of which, except two, are withdrawn. In 
 these the plaintiff alleges that on the twen- 
 ty-fifth of October, 1874, he was "seized and 
 possessed in his demesne, as of fee in his 
 own right and as trustee," of twenty-seven 
 twenty-eighths undivided parts of the tract 
 of land which is described, and that the de- 
 fendants on that day and year, with force 
 and arms, entered thereon, and ejected him 
 therefrom, and have ever since withlield the 
 possession, to his damage of $1,000. The 
 two counts differ merely in the description 
 of some of the boundary lines of the tract. 
 The defendants pleaded the general issue 
 and 20 years' possession under the statute 
 of possessions. Upon these pleas issues 
 were joined, and the case was tried; the par- 
 ties stipulating that the plea of the statute 
 should be held to apply to any period or pe- 
 riods of 20 years that could be covered by 
 any other like plea that might have been 
 filed, and that either party might offer any 
 evidence and rely upon any matters that 
 would be admissible under such plea or 
 pleas, and any proper replications or other 
 proceedings thereon. The case was tried 
 three times, resulting the first time in a ver- 
 dict for the defendants, and at the other 
 times in a verdict for the plaintiff. The 
 judgment on the last verdict is brought be- 
 fore us for review by the defendants on a 
 writ of error. Numerous exceptions were 
 talien in the progress of the trial to the rul- 
 ings of the court in the admission and re- 
 jection of evidence, and to the instructions 
 given and refused to the jury; but the con- 
 clusions we have reached with respect to 
 the instructions given and refused, as to the 
 presumption of a deed to the ancestors in ti- 
 tle of the defendants, render It unnecessary 
 to consider the others. 
 
 It appears from the evidence at the trial 
 that the land in controversy was the west- 
 erly part of a tract of 33% acres, belonging, 
 in 1750, to one James Reed, and which, by 
 early conveyances, became divided into 
 three parcels, one containing 22V4 acres, one 
 
 266 
 
 5% acres, and the third 6 acres, as shown by 
 a diagram submitted, by consent of parties, 
 to the jury, of which the following is a re- 
 duced copy. [See opposite page.] 
 
 A turnpike, running through the tract 
 northerly and southerly, was opened in 1816. 
 The 2214-acre parcel was conveyed to Fran- 
 cis Richardson, of Attleboro, Massachusetts, 
 by deed dated April 10, 1750. The land in 
 controversy is a portion of this parcel lying 
 west of the turnpike. The &ve and a half 
 acre parcel was conveyed to Ezekiel Fuller 
 by deed dated November 17, 1750. The six- 
 acre parcel was conveyed to Abigail Fuller, 
 wife of Ezekiel, and daughter of Francis 
 Richardson, by deed dated January 21, 1756. 
 
 The plaintiff claims to derive title under 
 the will of Francis Richardson, dated May 
 26, 1749, and the codicil thereof, dated Au- 
 gust 10, 1750, which were admitted to pro- 
 bate in Massachusetts, Januaiy 19, 1756. A 
 copy of the will and codicil, and of the Mas- 
 sachusetts probate, was produced and given 
 in evidence, together with a certificate of 
 their having been filed and recorded in the 
 probate oiflce in Lincoln on the twenty-sev- 
 enth of August, 1881. 
 
 It does not appear that there was any di- 
 rect evidence that Francis Richardson was 
 seized of the 2214-acre parcel at the time of 
 his death. The presumption, in the absence 
 of any opposing circumstances, is undoubted- 
 ly that, being the owner at the date of the 
 codicil, August 10, 1750, he continued such 
 owner up to the time of his death, which oc- 
 curred some years afterwards. Whether suf- 
 ficient opposing circumstances to rebut this 
 presumption are found in the absence of all 
 claim to the land for three-quarters of a cen- 
 tury by the devisee or her husband, or her 
 heirs, and the continued claim of ownership 
 by the ancestors in title of the defendants 
 during that period, is a question to be here- 
 after considered. 
 
 It is stated in the record that there was 
 evidence tending to show that Abigail Ful- 
 ler, the devisee, and her husband, entered 
 into possession of the property devised under 
 the will and codicil, but what that evidence 
 was does not appear. Abigail died prior to 
 1766, leaving her husband surviving her. 
 He left Smithfleld some time in 1761 "for 
 parts unknown." It appears, also, that in 
 a deed executed by him on the eleventh of 
 April, 1761, of the 20-acre lot designated on 
 the diagram, he recited that such lot was 
 bounded on the north by "his former land." 
 With the exception of the evidence tending 
 to show that the devisee and her husband 
 entered into possession of the property de- 
 vised, and the reference by the husband In 
 his deed to the tract as his former land, there 
 was nothing to show that any claim of right 
 or title to the land had been made by them, 
 or by their heirs, for nearly three-quarters 
 of a century, either by the exercise of acts 
 of ownership over it, such as its occupation 
 or the use of its products, or by leasing or 
 
PKESUMPTIONS IN GENERAL. 
 
 [Case No. 95- 
 
 selling it, or by; the payment of taxes, or in 
 any other way. And, for over 40 years after 
 the lapse of the three-quarters of a century, 
 the only claim of title made by the heirs of 
 the devisee to any portion of the 2214-acre 
 lot consisted in the fact that in 1835 they 
 brought an action against certain persons, 
 with whom the defendants were not in priv- 
 ity of title or ancestry, for the recovery of 
 another portion of the 2214-acre parcel, which 
 action was discontinued in 1838 on account 
 of the poverty and pecuniary inability of the 
 heirs to carry it on; and in the fact that, 
 at varying intervals between 1826 and 1857 
 (not 1858, as stated in one part of the record), 
 they had been in the habit, under such claim, 
 of cutting wood thereon openly for family 
 use, and the manufacture of baskets, in 
 which business some of them were engaged, 
 and carrying it to their homes; and that on 
 three occasions, once in 1840, once in 1845, 
 and once in 1852, some of them in contempla- 
 tion of taking legal proceedings to establish 
 their title, had gone around and upon the 
 land, and pointed out its boundaries. 
 
 When Ezekiel Fuller departed from Smith- 
 field, in 1761, he left two children, Francis 
 and Abigail, without means of support, and, 
 at a meeting of the town council in Septem- 
 ber following, proceedings were taken to 
 provide for them. In a resolution reciting 
 that "Ezekiel is gone, we know not where;" 
 that his children were then and likely to be 
 chargeable to the town; that little or noth- 
 ing of Bzekiel's estate was to be found to 
 support them, but that it was assumed there 
 was some estate belonging to him,— a person 
 was appointed to make proper Inquiry and 
 search for it, "to know what land there is 
 belonging to the family of said Ezekiel, and 
 secure the same foi the support of the chil- 
 dren." It would seem that the person thus 
 appointed, reported that there was a piece 
 of land — a six-acre parcel — which was pos- 
 sessed by Ezekiel in right of his wife; for 
 the town council, at a meeting in March, 
 1776, after reciting that there was nothing 
 of said Fuller's estate left behind to main- 
 tain his children but a small piece of land, 
 and that no provision for their Runnort cr>n}(\ 
 
 ..•sc\-s- 
 
 Wai. Jencks. 
 
 Ezekiel Fuller. 
 5 J Acre Lot. 
 
 Abigail . Fuller. 
 6 Acre Lot, 
 
 26'» 
 
Case No. 95J 
 
 PROOF. 
 
 be had without the favor and authority of 
 the general assembly to sell and give a deed 
 of it, appointed one Edward Mowry to lay 
 the matter before the assembly, and request 
 that it would pass an act to enable some 
 proper person to dispose of the parcel, and 
 clothe him with authority to give a deed 
 thereof. Mowry presented a proper petition 
 to the assembly, which granted the prayer, 
 and empowered the town treasurer, with the 
 consent and advice of the town council, to 
 sell the land, and apply the money received 
 for the purpose stated; that is, the support 
 of the children. A sale of the six-acre lot 
 for £30 was accordingly made by the town 
 treasurer under the authority thus confer- 
 red. 
 
 Abigail, the wife of Bzekiel, left five chil- 
 <lren surviving her, all of whom died before 
 their father except Abigail, Jr., who was one 
 of the two supported by the town. The 
 father, who disappeared from Smithfield in 
 1761, died in the poor-house in Attleboro, 
 Massachusetts, in 1800. Abigail, the daugh- 
 ter, was born December 29, 1757; became of 
 age, December 29, 1778; and was man-ied 
 to Benjamin Fuller, December 1, 1779. He 
 died in 1832, and she died in 1835 intestate. 
 The plaintiff is the grandson of this Abigail, 
 and the parties for whom he is trustee are 
 her other descendants. They all derive 
 whatever title they have from her. 
 
 On the twenty-fourth of May, 1874, a cen- 
 tury and eighteen years after the probate of 
 the will of Francis Richardson, all the heirs 
 of Abigail Fuller, except one, executed a 
 power of attorney to Theodore C. Fuller, also 
 one of said heirs, authorizing him to sell to 
 Nathan Fuller, the plaintiff in this action, 
 all their title and interest in the tract con- 
 veyed by James Reed to Francis Richardson 
 by deed dated April 10, 1750, and devised to 
 EUzabeth Fuller, wife of Ezeliiel, by his last 
 will and testament probated January 19, 
 1756, to hold the same upon trust to pros- 
 ecute to final conclusion legal proceedings 
 necessary to recover possession of the prem- 
 ises, to employ counsel for that purpose, to 
 conduct the proceedings, and tO' make such 
 compromises of the grantors' claims as to 
 him and his counsel might seem best. Tlie 
 same grantors, by their attorney, on the 
 same day, executed a deed of the same tract 
 of land to Nathan Fuller, reciting a consid- 
 eration of $10, upon trusts similar to those 
 contained in the pov,'er of attorney. Both 
 documents were duly acknowledged by the 
 grantors. The delivery of the deed was made 
 by the attorney in this way: He and the 
 grantee went upon the land with three other 
 persons, and while upon it he delivered the 
 deed to the grantee. He also took up some 
 earth in his hands, and passed it to the 
 grantee. This he had been instructed to do 
 by his counsel as the form of delivering pos- 
 session. The parties were about 15 minutes 
 on the land. There was no evidence of any 
 notice to or knowledge by the defendants 
 
 268 
 
 of these acts, and they testified that they had 
 neither. This is the case of the plaintiff, 
 briefly stated. 
 
 The defendants trace their title to the 
 land in question by continuous claim of title 
 from a deed of the 22i/4-acre parcel, made by 
 one Jeremiah Richardson, a grandson of the 
 testator, Francis Richardson, to Stephen 
 Jencks, dated April 8, 1768, containing full 
 covenants of title and warranty, and re- 
 corded in the records of Smithfield on July 
 10th following. Jeremiah Richardson was 
 the son of Francis Richardson, who was a 
 son of the testator, and is named in the will 
 as having died. Jeremiah had a brother also 
 called Francis Richardson, who died prior to 
 March, 1766. Stephen Jencks, by deed 
 dated August 12, 1796, containing full cove- 
 nants of warranty, to secure several notes, 
 amounting to ?3,000, mortgaged the land in 
 controversy, with adjoining lands to wliich 
 he had acquired title, making in all 50 acres; 
 of which the 20-acre lot designated on the 
 diagram was one parcel, which, he had pur- 
 chased in 1763 for £640, and the 6-acre lot, 
 also designated on the diagram, was an- 
 other parcel, which he had purchased in 1768 
 for £45. He died in 1800, leaving a will, by 
 which he devised his real estate in Smith- 
 field and elsewhere to his children. Stephen 
 Jencks, Jr., his son, acquired the interests 
 of the other heirs, and by deed dated May 
 18, 1804, conveyed the whole, including by 
 specific description the land in controversy, 
 to his brother, Jerah-mael Jencks, who was 
 the grandfather and ancestor in title of the 
 defendants. Other portions of the 22i^-acre 
 parcel were conveyed by ancestors in title of 
 the defendants, by deeds to different par- 
 ties, containing full covenants of title and 
 warranty, dated, respectively, April 12, 1841, 
 December 3, 1845, and May 21, 1860, and 
 they entered into possession of the respective 
 parcels, and inclosed and improved them. 
 In May, 1864, the father of the defendants, 
 from whom they derive their title, surveyed 
 and platted into town lots the remaining por- 
 tion of that parcel, being the land in con- 
 troversy. In the partition of the estate of 
 the grandfather, Jerahmael Jencks, between 
 his heirs at law, in 1824, this land had been 
 taken by him as part of his estate, and plat- 
 ted as such in the partition plat. He died in 
 1866. 
 
 The land was not inclosed on the line of the 
 turnpike. In 1838 a fence was put up on the 
 westerly side by an adjoining owner. On the 
 southerly side there was at one time a fence 
 running from the turnpike westerly to the 
 other side of the ledge hereafter mentioned, 
 but it disappeared in 1835. On the northerly 
 line there was only a bnish-fence imtil 1867, 
 when a purchaser of adjoining land erected 
 one. The land has never been put under 
 cultivation. Prior to 1858 it was covered 
 with wood, and every year from 1829 to 1857 
 the ancestors of the defendants cut wood up- 
 on it for family use. In 1857 the father of 
 
PRESUMPTIOIS'S IN GENERAL. 
 
 [Case No. 95 
 
 the defendants cut and applied to his use all 
 tlie wood of value then remaining. The land 
 had an extensive ledge of rock running across 
 its center from north to south, which was 
 opened by defendants' ancestors as early as 
 1835. In 1845 or 18i6 large quantities of 
 stone were quarried and sold by them to 
 railroad companies; and from that time down 
 to the trial, with longer or shorter intervals, 
 never of more than a year or two, the ledge 
 was worked more or less extensively by the 
 defendants or their ancestors in title, or their 
 lessees and tenants, and the stone removed. 
 There is no evidence that any other person 
 had ever worked the ledge, or taken stone 
 off the land, or attempted to do so. The fa- 
 ther of the defendants put up a sign on the 
 land, stating that all persons were forbidden 
 from taking wood or stone from it. In 1860 
 or 18G1 his lessee built a barn and tool-shed 
 on the land near the ledge, for his use in 
 quarrying; these structures being in full view 
 from Broad street, formerly the turnpike. 
 He also dug a well, from which he obtained 
 water for his business. The barn, with lofts 
 for hay, was of sufficient capacity "to accom- 
 modate, and did accommodate, six or eight 
 horses, or more." It remained on the land, 
 with some additions, until some time in 1869, 
 when it was removed by the lessee. The 
 land was assessed for taxes to the ancestors 
 in title of the defendants, and paid by them, 
 for 20 years, between 1770 and 1805. The 
 tax-lists for the other years up to 1805 could 
 not be found. From 1805 to the time of the 
 trial, a period of 77 years, the land was as- 
 sessed to them, and the taxes were paid by 
 them. The statute of Rhode Island respect- 
 ing the assessment of taxes, in force be- 
 tween 1798 and 1825, required the assessors 
 to assess taxes on real estate to persons who 
 held and occupied it, and the one in force 
 between 1825 and 1855 required them to as- 
 sess the taxes to those who held and occupied 
 it, or to the ownei-s thereof, and the one in 
 force after 1855, to the owners thereof. No 
 taxes were ever assessed to the Fullers, or 
 paid by them. Neither plaintiff nor defend- 
 ants, nor their ancestors, ever resided on the 
 premises, and the land was occupied and pos- 
 sessed by the ancestors in title of the defend- 
 ants only in the way mentioned. 
 
 Upon the case thus presented, and we have 
 not omitted, we think, any material circum- 
 stance in the statement, the defendants asked 
 an instiniction to the jury as to the presump- 
 tion they might make of a lost grant to their 
 ancestor in title, which the court refused. 
 Its charge was thus: "Of course, gentlemen, 
 if you find that you can presume a grant, if 
 you find from the testimony that there was 
 a lost deed which passed from Abigail Fuller 
 to Jeremiah Richardson, or to Francis Rich- 
 ardson, and the property was inherited by 
 Jeremiah, so that Jeremiah had a good title 
 to convey to Stephen Jencks, that makes the 
 title of the defendants here complete. * * * 
 But, gentlemen, you are to look into the evi- 
 
 dence upon this question of a grant, and, if 
 the evidence in favor of the presumption is 
 overcome by the evidence against such a 
 grant, then, of course, you will not presume 
 one. It is a question of testimony." 
 
 The defendants requested the court to in- 
 struct the jury "that the presumption they 
 were authorized to make of a lost deed was 
 not necessarily restricted to what may fairly 
 be supposed to have occurred, but rather to 
 what may have occurred and seems requisite 
 to quiet title in the possessor." This instruc- 
 tion the court refused to give, or to modify 
 its charge in conformity with it. The de- 
 fendants now contend that the court thus 
 erred, its charge being, in effect, that, in or- 
 der to presume a lost deed, the jury must be 
 satisfied that such a deed had in fact actually 
 existed. Such seems to us to be the purport 
 of the charge, and therein there was error. 
 
 In such cases, "presumptions," as said by 
 Sir William Grant, "do not always pi'oceed 
 on a belief that the thing presumed has actu- 
 ally taken place. Grants are frequently pre- 
 sumed, as Ivord Mansfield says, merely from 
 a principle, and for the purpose of quieting 
 the possession. There is as much occasion 
 for presuming conveyances of legal estates; 
 as otherwise titles must often be imperfect, 
 and in many cases unavailable, when from 
 length of time it has become impossible to 
 discover in whom tlie legal estate (if outstand- 
 ing) is already vested." Hillary v. Waller, 
 12 Ves. 239, 252; Eldridge v. Knott, Cowp. 
 215. 
 
 The owners of property, especially if It be 
 valuable and available, do not often allow it 
 to remain in the quiet and unquestioned en- 
 joyment of others. Such a course is not in 
 accordance with the ordinary conduct of 
 men. When, therefore, possession and use 
 are long continued, they create a presumption 
 of lawful origin; that is, that they are found- 
 ed upon such instruments and proceedings as 
 in law would pass the right to the possession 
 and use of the property. It may be, in point 
 of fact, that permission to occupy and use 
 was given oraUy, or upon a contract of sale 
 with promise of a future conveyance, which 
 parties have subsequently neglected to obtain, 
 or the conveyance executed may not have 
 been acknowledged so as to be recorded, or 
 may have been mislaid or lost. Many cir- 
 cumstances may prevent the execution of a 
 deed of conveyance to which the occupant of 
 land is entitled, or may lead to its loss after 
 being executed. It is a matter of almost 
 daily experience that reconveyances of prop- 
 erty, transferred by the o\i'ners upon condi- 
 tions or trusts, are often delayed after the 
 conditions are performed or the trusts dis- 
 charged, simply because of the pressure of 
 other engagements, and a conviction that 
 they can be readily obtained at any time. 
 
 The death of parties may leave in the 
 hands of executors or heirs papers constitut- 
 ing muniments of title, of the value of which 
 tlie latter may have no knowledge, and there- 
 
 26& 
 
■Ciise No. 95] 
 
 PROOF. 
 
 fore for the preservation and record of which 
 naay take no action; and thus the documents 
 may be deposited in places exposed to decay 
 and destruction. Should they be lost, wit- 
 nesses of their execution, or of contracts for 
 their execution, may not be readily found, or, 
 if found, time may have so impaired their 
 ]'ecollection of the transactions that they can 
 ■onljr be imperfectly recalled, and of course 
 imperfectly stated. The law, in tenderness 
 to the infirmities of human nature, steps in, 
 .and by reasonable presumptions that acts to 
 protect one's rights which might have been 
 •done, and in the ordinary course of things 
 generally would be done, have been done, in 
 the particular case under consideration, af- 
 fords the necessary protection against possi- 
 ble failure to obtain or preserve the proper 
 muniments of title, and avoids the necessity 
 of relying upon the fallible memory of wit- 
 nesses, when time may have dimmed their 
 recollection of past transactions, and thus 
 gives peace and quiet to long and uninter- 
 rupted possessions. 
 
 The rule of presumption, in such cases, as 
 has been well said, is one of policy, as well 
 as of convenience, and necessary for the peace 
 and security of society. "Where one uses an 
 easement whenever he sees lit, without ask- 
 ing leave and without objection," says the 
 supreme court of Pennsylvania, "his adverse 
 and uninterrupted enjoyment for twenty-one 
 :\'ears is a title which cannot afterwards be 
 disputed. Such enjoyment, without evidence 
 to explain how it began, is presumed to have 
 been in pursuance of a full and unqualified 
 grant." Garrett v. Jackson, 20 Pa. St. 335. 
 The same presumption will arise whether 
 the grant relate to corporeal or incorporeal 
 hereditaments. As said by this court in Ei- 
 <;ard v. Williams, 7 Wheat. 108, speaking by 
 Mr. .Justice Story: "A grant of land may as 
 well be presumed as a grant of a fishery, or 
 of a common, or of a way. Presumptions of 
 this nature are adopted from the general in- 
 firmity of human nature, the dilflculty of 
 preserving muniments of title, and the pub- 
 lic policy of supporting long and uninter- 
 nipted possessions. They are founded upon 
 the consideration that the facts are such as 
 could not, according to the ordinary course 
 of human affairs, occur, unless there was a 
 transmutation of title to, or an admission of 
 an existing adverse title in, the party in pos- 
 session." 
 
 It is not necessary, therefore, in the cases 
 mentioned, for the jury, in order to presume 
 R conveyance, to believe that a conveyance 
 was in point of fact executed. It is suffi- 
 cient if the evidence leads to the conclusion 
 that the conveyance might have been execut- 
 ed, and that its existence would be a solu- 
 tion of the difUculties arising from its non- 
 execution. In Edson v. Munsell, 10 Allen, 
 5.57, which was an action for obstructing the 
 enjoyment of an easement, the doctrine of 
 acquiring such rights by prescription or ad- 
 verse possession is elaborately considered; 
 
 2TO 
 
 and it is there said that "the fiction of pre- 
 suming a grant from twenty years' possession 
 or use was invented by the English courts in 
 the eighteenth century to avoid the absurd- 
 ities of their rule of legar memory, and was 
 derived by analogy from the limitation pre- 
 scribed by the statute of 21 Jac. I. c. 21, for 
 actions of ejectment. It is not founded on a 
 belief that a grant has actually been made 
 in the particular case, but on the general 
 presumption that a man will naturally enjoy 
 what belongs to him, the difficulty of proof 
 after lapse of time, and the policy of not dis- 
 turbing long-continued possessions." 
 
 In Casey's Lessee v. Inloes, 1 Gill, 503, 
 which was an action of ejectment, the court 
 of appeals of Mainland held that, where there 
 had been a continuous possession of land for 
 20 years or upwards, by a party, or persons 
 claiming under him, the court was authorized 
 to instruct the jury, in the absence of a deed 
 to such party, to presume that one had been 
 executed to him. It also approved the refu- 
 sal of the court below to instruct the jury 
 that before they could find a title in the de- 
 fendants, or any one of them, by presump- 
 tion of a grant by the plaintilf or those under 
 whom he claims, they must believe on their 
 consciences, and find as a fact, that such 
 grant was actually made. "The granting of 
 such a prayer," said the court, "would have 
 a tendency to mislead the jury, by inducing 
 them to believe that a presumption of a grant 
 could not be made unless the jury in point of 
 fact believed in the execution of the grant; 
 whereas it is frequently the duty of the jury 
 to find such presumption as an inference of 
 law, although in their consciences they may 
 disbelieve the actual execution of any such 
 grant." 
 
 In Williams v. Donell, 2 Head, 695, 698, 
 which was also an action of ejectment, the 
 supreme court of Tennessee, speaking on the 
 same point, said: "It is not indispensable, 
 in order to lay a proper foundation for the 
 legal presumption of a grant, to establish 
 the probability of the fact that in reality a 
 grant ever issued. It will be a sufficient 
 ground for the presumption to show that by 
 legal possibility a grant might have issued, 
 and, this appearing, it may be assumed, in 
 the absence of circumstances repelling such 
 conclusions, that all that might lawfully 
 have been done to perfect the legal title was 
 in fact done, and in the form prescribed by 
 law." 
 
 In accordance with the doctrine thus ex- 
 plicitly declared, there can be no doubt that 
 the court below should have instructed the 
 jury as requested. It would seem from the 
 instruction given that the deed which the 
 defendants insisted might be presumed was 
 one from Bzekiel and Abigail Fuller, or 
 from Abigail Fuller to .leremiah Ilichard- 
 son. We think, however, that the facts 
 point with equal directness to a conveyance 
 from his grandfather. The codicil to his 
 will, by which he devised the property to his 
 
PKESUMPTIOSrS IN GENERAL. 
 
 [Case No. 95 
 
 married daughter, was dated several years 
 before his death, and there was no evidence 
 that he was seized of it at that time, except 
 the presumption arising from his having once 
 possessed it. It does not appear that either 
 the devisee or her husband ever exercised 
 any acts of ownership in any way, or ever 
 claimed to own it. After he loft Smlthfield, 
 two of his children were supported by the 
 town; and the agent of the town, appointed 
 to search' for any property belonging to the 
 father, from the sale of which the children 
 might be supported, reported tliat there was 
 only the six-acre parcel, which was held by 
 him in the right of his wife. lie afterwards 
 went to the poor-house, where he died in 
 1800. During the 30 years after he left 
 Smithiield, and notwithstanding his having 
 been part of that time iu the poor-house, no 
 word appears to have come from him assert- 
 ing that he had any interest in the property. 
 It is difficult to reconcile his conduct or that 
 of his wife, the devisee, if in truth the testa- 
 tor continued the owner of the property until 
 bis death, and it passed under the codicil 
 to his will. While Ezekiel Fuller was still 
 living, and for several years after he had left 
 Smithfield, Jeremiah Richardson, the tes- 
 tator's grandson, asserted ownership of the 
 tract by its sale to Stephen Jencks by a deed 
 with covenants of title and warranty, which 
 was recorded in the town records. Xo word 
 of opposition to this sale, or to the subse- 
 quent mortgage of the property by the gran- 
 tee, was ever made, so far as the record dis- 
 closes. The fact that Jeremiah Richardson 
 was a minor when his grandfather died does 
 not militate against the presumption of a 
 ■deed to him. Nothing would be more natui-al 
 than a deed of gift from the grandfather to 
 the grandson. It would also seem from the 
 charge of the court that in the deed from 
 Jeremiah to Jencks he recited that the prop- 
 erty had come from his honored grandfather, 
 or words to that effect. 
 
 If, however, the evidence which, as the 
 record says, tended to show that the devisee 
 and her husband entered into the posses- 
 sion of the property devised, and the recital 
 in Kis deed of April 11, 1761, of the 20-aci-e 
 parcel, that it was bounded on the north by 
 his former land, can be considered as re- 
 butting the presumption of such a deed by 
 the testator, then the defendants may fall 
 back on the presumption of a deed to Jere- 
 miah Richardson by Ezekiel and Abigail 
 Puller, the devisee, and her husband. There 
 is nothing In the conduct or language of ei- 
 ther of these parties which in any way re- 
 pels such a presumption. Their silence and 
 non-claim of the property would rather in- 
 dicate that they had parted with their in- 
 terest. The minority of Jeremiah at the time 
 only shows his Inability to purchase the prop- 
 erty; but those under whose charge he was, 
 could have purchased it for him, and had 
 the deed executed to him. His orphanage 
 may have induced such a proceeding. We 
 
 do not, therefore, think that his minority at 
 the time can be urged against the presump- 
 tion of a deed to Mm. 
 
 For the refusal of the court below to give 
 the instruction requested, the case must go 
 back for a new trial. We will add, more- 
 over, that though a presumption of a deed 
 is one that may be rebutted by proof of 
 facts inconsistent with its supposed exist- 
 ence, yet where no such facts are shown, 
 and the things done, and the things omitted, 
 with regard to the property in controversy, 
 by the respective parties, for long periods of 
 time after the execution of the supposed 
 conveyance, can be explained satisfactorily 
 only upon the hypothesis of its existence, 
 then the jury may be instructed that it is 
 their duty to presume such a conveyance, 
 and thus quiet the possession. How long a 
 period must elapse after the date of the sup- 
 posed conveyance before it may be pre- 
 sumed to have existed has not always been 
 a matter of easy determination. "In gener- 
 al," said this court, speaking by Mr. Justice 
 Story, "it is the policy of courts of law to 
 limit the presumption of grants to periods 
 analogous to those of the statute of limita- 
 tions in cases where the statute does not 
 apply. But when the statute applies, it con- 
 stitutes ordinarily a sufficient title or de- 
 fense independently of any presumijtion of 
 a grant, and therefore it is not generally 
 resorted to. But, if the circumstances of the 
 case justify it, a presumption of a grant may 
 as well be made in the one case as in the 
 other; and, when the other circumstances 
 are very cogent and full, there is no absolute 
 bar against the presumption of a grant with- 
 in a period short of the statute of limita- 
 tions." Ricard v. Williams, 7 Wheat. 59, 110. 
 
 The general statement of the doctrine, as 
 we have seen from the authorities cited, is 
 that the presumption of a grant is indulged 
 merely to quiet a long possession which 
 might otherwise be disturbed by reason of 
 the inability of the possessor to produce the 
 muniments of title which were actually giv- 
 en at the time of the acquisition of the prop- 
 erty by him or those under whom he claims, 
 but have been lost, or which he or thej- were 
 entitled to have at that time, but had 
 neglected to obtain, and of which the wit- 
 nesses have passed away, or their recollec- 
 tion of the transaction has become dimmed 
 and imperfect; and hence, as a general rule, 
 it is only where the possession has been 
 actual, open, and exclusive for the period 
 prescribed by the statute of limitations to 
 bar an action for the recovei-y of land, that 
 the presumption of a deed can be invoked. 
 But the reason for attaching such weight to 
 a possession of this character is the notoriety 
 it gives to the claim of the occupant; and, 
 In countries where land is generally occupied 
 or cultivated, it is the most effective mode of 
 asserting ownership. But, as Mr. Justice 
 Story observes in delivering the opinion of 
 this court in Green v. Liter, 8 Cranch, 240: 
 
 271 
 
Case No. 95] 
 
 PBOOF. 
 
 "In the simplicity of ancient times there 
 were no means of ascertaining titles but by 
 the visible seizin, and, indeed, there was no 
 other mode between subjects of passing 
 title but livery of the land itself by the sym- 
 bolical delivery of turf and twig. The mo- 
 ment that a tenant was thus seized he had 
 a perfect investiture, and, if ousted, could 
 maintain his action for the realty, although 
 he had not been long enough in possession 
 even to touch the esplees. The very object 
 of the rule, therefore, was notoriety; to pre- 
 vent frauds upon the land, and upon the 
 other tenants." There may be acts equally 
 notorious, and therefore equally evincive of 
 ownership, which, taken in connection with 
 a long possession, even if that possession has 
 been subject to occasional intrusion, are as 
 fully suggestive of rightful origin as an un- 
 interrupted possession. Where any propri- 
 etary right is exercised for a long period, 
 which, if not founded upon a lawful origin, 
 would in the usual course of things be re- 
 sisted by parties interested, and no such re- 
 sistance is made, a presumption may be in- 
 dulged that the proprietary right had a law- 
 ful origin. The principle is thus stated by 
 Mr. Justice Stephen, of the high court of jus- 
 tice of England, in his Digest of the Law 
 of Evidence, using the term "grant" in a 
 general sense, as indicating a conveyance of 
 real property, whether corporeal or incor- 
 poreal: "When it has been shown that any 
 person has, for a long period of time, ex- 
 ercised any proprietary right which might 
 have had a lawful origin by grant or license 
 from the crown, or from a private person, 
 and the exercise of which might and natural- 
 ly would have been prevented by the persons 
 interested, if it had not had a lawful, origin, 
 there is a presumption that such right had a 
 lawful origin, and that it was created by a 
 proper instrument which has been lost." Ar- 
 ticle 100. 
 
 This presumption may therefore, in some 
 instances, be properly invoked where a pro- 
 prietary right has long been exercised, al- 
 though the exclusive possession of the whole 
 property to which the right is asserted may 
 have been occasionally interrupted during 
 the period necessary to create a title by ad- 
 verse possession, if In addition to the actual 
 possession, there were other open acts of 
 ownership. If the Interruptions did not im- 
 pair the uses to which the possessor sub- 
 jected the property, and for which it was 
 chiefly valuable, they should not necessarily 
 be held to defeat the presumption of the 
 rightful origin of his claim to which the 
 facts would otherwise lead. It is a matter 
 which, under proper instructions, may be 
 left to the jury. 
 
 In the present case, acts of ownership over 
 the property in controversy by the ances- 
 tors in title of the defendants, so far as they 
 could be manifested by written transfers of 
 it, either as conveyances of title or by way 
 of security, were exercised from 1768 for 
 
 272 
 
 more than a century. The first conveyance, 
 from which the defendants trace their title, 
 was duly recorded in the land records of the 
 town soon after its execution in that year. 
 The assessment of taxes on the property to 
 those ancestors, and their payment of the 
 taxes for 20 years between 1770 and 1805, 
 and the assessment of taxes to them or to 
 the defendants for 77 years after 1805, and 
 the payment of the taxes by them, such as- 
 sessment being required to be made, under 
 the laws of the state, to occupants or own- 
 ers of the land, are circumstances of great 
 significance, taken in connection with their 
 constantly asserted ownership. In Ewing 
 V. Burnet this court speaks of the uninter- 
 rupted payment of taxes on a lot for 24 con- 
 secutive years as "powerful evidence of 
 claim of right to the whole lot." 11 Pet. 54. 
 Here, as seen, the taxes were uninterrupted- 
 ly paid by the defendants or their ancestors 
 in title for a much longer period. 
 
 In St. Louis Public Schools v. Risley's 
 Heirs the supreme court of Missouri said: 
 "Payment of taxes has been admitted in 
 questions of adverse possession, and may 
 have an important bearing, as It is not usual 
 for one owning realty to neglect paying tax- 
 es for a period which would be sufficient to 
 constitute a bar under the statute of lim- 
 itations, or for one to pay taxes having- no 
 claim or color of title." 40 Mo. 370. 
 
 In Davis v. Easley, which was an action 
 of ejectment, the supreme court of Illinois 
 held that receipts for taxes paid by the 
 plaintiff were admissible, and said: "The 
 payment of taxes indicated that the plaintiff 
 claimed title to the whole tract. It like- 
 wise tended to explain the character and ex- 
 tent of his possession." 13 111. 201. 
 
 In this case the ancestors of the defend- 
 ants entered upon the land under claim of 
 title, and opened and worked the ledge of 
 rock running through it as early as 1835, 
 and from 1846 they or their tenants or les- 
 sees continued, with occasional intervals, to 
 work that ledge to the time of trial, in 1882, 
 a period of 36 years; and it does not appear 
 that during that time any one ever inter- 
 fered with their work, or complained of it. 
 To constitute an adverse possession, it was 
 not necessai'y that they should have actual- 
 ly occupied or inclosed the land. It was suf- 
 ficient that they subjected it to such uses 
 as it was susceptible of, to the exclusion of 
 others. Ellicott v. Pearl, 10 Pet. 442. That 
 subjection might be shown by the quarry- 
 ing of the ledge and the removal of the 
 stone without disturbance or complaint from 
 any quarter. The exclusive working of the 
 quarry, under claim of title to the whole 
 tract by virtue of conveyances in which it 
 was described, might operate in law to carry 
 the possession over the whole; and the pay- 
 ment of taxes thereon might authorize the 
 jury to infer a continuous possession of tlie 
 whole, notwithstanding any temporary and 
 occasional intrusion by others upon a difCer- 
 
PRESUMPTIONS IJT GENEKAL. 
 
 [Case No. 95 
 
 ent part of the tract, wliicli did not interfere 
 with tlie work. 
 
 The entry of the plaintiff with the attorney 
 of his co-heirs, in 1874, and the delivery of 
 the deed to him with a handful of earth, if 
 weight and consideration are to be given to 
 that proceeding under the circumstances In 
 which it was made, would only reduce the 
 period of undisturbed possession to 28 years. 
 The cutting of wood on a different portion of 
 the land by the Fullers for family use, or 
 the manufacture of baskets, at occasional 
 intervals during a portion of this period, 
 though competent for the consideration of 
 the jury, was not necessarily an interruption 
 to the peaceable occupation of the land, so 
 far as quarrying of the ledge and the remov- 
 al of the stone were concerned, to which 
 uses the defendants and their ancestors in 
 title subjected it, and which appear to have 
 constituted its principal value. Nor did It 
 necessarily change the legal effect of the 
 possession for quarrying the ledge with the 
 attendant claim to the whole tract. 
 
 In Webb v. Richardson, the supreme court 
 of Vermont, in speaking of interruptions in 
 the actual occupancy of real property as af- 
 fecting the claim of continuous possession, 
 said: "To constitute a continuous possession, 
 it is not necessary that the occupant should 
 be actually upon the premises continually. 
 The mere fact that time intervenes between 
 successive acts of occupancy does not nec- 
 essarily destroy the continuity of the pos- 
 session. The kind and frequency of the acts 
 of occupancy necessary to constitute a con- 
 tinuous possession depend somewhat on the 
 condition of the property, and the uses to 
 which it is adapted in reference to the cir- 
 cumstances and situation of the possessor, 
 and partly on his intention. If, in the in- 
 termediate time between the different acts 
 of occupancy, there is no existing intention 
 to continue the possession, or to return to 
 the enjoyment of the premises, the posses- 
 sion, if It has not ripened into a title, ter- 
 minates, and cannot afterwards be connect- 
 
 WILGtrS.BV.— 18 
 
 ed with a subsequent occupation so as to be 
 made available towards gaining title; while 
 such continual intention miglit, and general- 
 ly would, preserve the possession unbroken." 
 42 Vt. 465^73. That was an action of tres- 
 pass for cutting timber on the land of the 
 plaintiff, who was in pos.session at the time, 
 and offered testimony to prove that his pos- 
 session was earlier than the defendant's, 
 and also that he had acquired the land by 15 
 years' adverse possession. The defendant 
 did not show a chain of title back to the 
 original proprietor of the land, but showed 
 that his grantors entered into possession in 
 183.J, aijd cut timber and claimed to own the 
 land; and it was held that the question 
 whether this entry interrupted the plaintiff's 
 possession should have been submitted to 
 the jury under proper instructions, in con- 
 nection with the plaintiff's evidence of con- 
 tinuous possession under those through 
 whom he claimed, and that it was error to 
 refuse to submit it. 
 
 Our conclusion is that the claim to the 
 land in controversy by the defendants and 
 their ancestors in title for over a century, 
 with the payment of taxes thereon, and acts 
 of ownership suited to the condition of the 
 property, and Its actual use for 36 or 28 
 years, it matters not which, would justify a 
 presumption of a deed to the original ances- 
 tor, Jeremiah Richardson, to quiet the pos- 
 session of the defendants claiming under 
 him, and the jury should have been permit- 
 ted to presume such a deed without finding 
 from the testimony that there was in point 
 of fact a deed which was lost. If the exe- 
 cution of a deed was established, nothing 
 further would be required than proof of its 
 contents; there would be no occasion for the 
 exercise of any presumption on the subject. 
 It is only where there is uncertainty on this 
 point that the presumption is indulged to 
 quiet the possession. 
 
 The judgment of the court below must be 
 reversed, and the cause remanded for a new 
 trial. 
 
 273 
 
'■}) 
 
 €ase No. 96] 
 
 PROOF. 
 
 NASHUA & L. R. CORP. v. BOSTON & L. 
 E. CORP. et al. 
 
 (10 Sup. Ct. 1004, 136 U. S. 356.) 
 
 Supreme Court of the United States. May 19, 
 1890. 
 
 ApTical from the clrcuitcourt of the Unit- 
 ed IState.s for the district of Massachusetts. 
 
 Francis A. Brooks and E. J . Phelps, for 
 appellant. J. H. Benton, Jr., for appellees. 
 
 FIELD, J. This is a suit in equity to 
 compel the defendanttheBoslon & Lowell 
 Railroad Corporation to account for va- 
 rious sums of money alleged to have been 
 received by it, and UKed for its benefit, to 
 which the complainant was entitled, and 
 also to charge the defendant Hosford 
 personally with the amount diverted by 
 him to that corijoration. The contro- 
 versy relates to certain transactions 
 growing out of a joint traffic contract be- 
 tween the plaintiff and the defendant cor- 
 poration.s. The plaintiff, the Nashua & 
 Lowell Railroad Corporation, is alleged in 
 the bill to have been duly established as a 
 corporation under the laws of New Hamp- 
 shire, and to bo a citizen of that state. It 
 will be convenient hereafter in this opin- 
 ion to designate it as the "Nashua Corpo- 
 ration. " On the 1st of February, 18.57, it 
 ovi'ned and operated a railroad extending 
 from Nashua, in New Hampshire, to Low- 
 ell, in Massachusetts, a distance of 13 
 miles, of which 5 miles were in New Hamp- 
 shire, and 8 miles in Massachusetts. The 
 suit was brought not only against the 
 Boston & Lowell Railroad Corporation, 
 alleged in thebill to be a corporation duly 
 established by the laws of Massachusetts 
 and a citizen of that state, but against 
 Hocum Hosford, its treasurer, and Charles 
 E. A. Bartlett, of the city of Lowell, also 
 citizens of that state; but as to Bartlett 
 it has been dismissed. On the 1st of Feb- 
 ruary, 18.57, this corporation, which for 
 convenience we shall call the "Lowell 
 Corporation," owned and operated a rail- 
 road extending from Boston to Lowell, 
 Mass., a distance of 26 miles, with a branch 
 to the town of Woburn a mile and a half 
 In length. On the 1st of P'ebruary, 1857, 
 the two corporations entered into a con- 
 tract in writing with each other "for the 
 promotion of their mutual interest 
 through a more efficient and economical 
 joint operation and management of their 
 roads, and for the better security of their 
 respective investments, as well as for the 
 convenience and interest of the public," 
 that their roads, with their branches, 
 should be " v\orked and managed as one 
 road, "under certain conditions and stipu- 
 lations which were stated at length. The 
 contract recited that a large portion of 
 the business of the two roads was joint 
 business passing over the roads and 
 thn^ugh the branches of both parties, 
 making desirable a common policy, and 
 unanimity of management, and that, in 
 the transaction of their business, there 
 was a mutual intei-cst, both as to the 
 mode of transaction, and to the tariff up- 
 on the same, as well as in all other mat- 
 tei'S relating thereto, and that the two 
 corporations, by operating under a com- 
 
 274 
 
 mon management, would thereby be en- 
 abled to do business with greater facility, 
 greater regularity, and at a greater sav- 
 ing oE expense. 
 
 The Nashua Corporation had at this 
 time leases of the Stony Brook Railroad, 
 extending from its line at North Chelms- 
 ford to Groton Junction, about 14 miles 
 in Massachusetts, and of the Wilton Rail- 
 road, extending from Nashua to Wilton, 
 about 13 miles in New Hampshire. The 
 contract was originally for three years, 
 but by a supplemental agreement of Octo- 
 ber 1, 1858, it was extended to 20 years. 
 Among other things it provided that the 
 roads of the parties should be "operated 
 and managed by one agent, to be chosen 
 by the concurrent vote of a majority of 
 the directors of each party, and who 
 might be removed by a like vote, or by 
 the unanimous vote of either board," and 
 that the respective boards of directors 
 should "by such concurrent action exer- 
 cise the same control over the manage- 
 ment as is usual with boards of railroad 
 directors in ordinary cases;" that the cor- 
 porations should each surrender to the 
 joint management thus constituted " the 
 entire control of their respective roads, 
 shops, depots, furniture, machinery, tools, 
 or other property necessary for the proper 
 maintenance and working of the joint 
 roads." reserving only certain specified 
 property neeessarj' for the operation of 
 the roads, consisting principally of real 
 estate; that the contracts of the Nashua 
 Corporation with the Wilton and Stony 
 Brook roads should be assumed by tlie 
 joint management, and carried out, and 
 that the contract with the Wilton road, 
 ■which was to expire on the 1st of April, 
 1858, might be renewed during the contin- 
 uance of the joint management; that the 
 Nashua Corporation should within the 
 year 1857, at its own cost, erect a freight 
 depot, with the necessary approaches and 
 furniture, in the city of Lowell, upon its 
 site at Western avenue, which during the 
 continuance of the agreement might be 
 used for the accommodation of the joint 
 business; that the Lowell Corporation 
 should complete within the year 1857, at 
 its owQ separate cost, the new passenger 
 defiot at Causeway street in Boston, then 
 under construction, together with the 
 tracks, bridges, and all necessary fixtures 
 connected with the extension into that 
 city, and at its separate expense make 
 such alterations in the existing Boston 
 passenger depot as had been designed by 
 the Lowell Corporation for converting it 
 into a freight depot, and also without 
 charge to the Nashua Corporation, com- 
 plete at the earliest practicable time the 
 crossing over the Fitchburg Railroad, and 
 the connection with the Orand Junction 
 Railroad ; that the road-bed, bridges, 
 superstructures, depots, buildings, and 
 fixtures of each road should be kept as 
 near as might be in like relative repair 
 from their then state and condition, and 
 that all casualties and damages to the 
 same, except fire risks on buildings, should 
 be at the common risk, and charged in 
 the current joint account, and, in case of 
 the destruction by fire of any buildings, 
 or injury to the same, that the owners 
 
PRESUMPTIONS IN GENERAL. 
 
 [Case No. 96 
 
 should rebuild or replace them at his own 
 <;ost; that the Income and expense ac- 
 counts of the joint roads should be made 
 up, as nearly as conveniently might be, by 
 estimate to the close of each month, and 
 the net balance should be divided and paid 
 over, on account, to the respective treas- 
 urers of the two corporations,— 31 per 
 cent, to the Nashua Corporation, and 69 
 per cent, to the Lowell Corporation,— sub- 
 ject to a final adjustment at the semi-an- 
 nual closing of accounts, and that on the 
 1st days of April and October in each year 
 the said accounts should be accurately 
 closed and balanced by settlement with 
 each party, covering and adjusting all 
 previous payments on account, — the Na- 
 shua Corporation receiving as its propor- 
 tion 31 per cent, of the said joint net in- 
 come, and the Lowell Corporation receiv- 
 ing as its proportion 69 per cent, thereof; 
 that each corporation might separately, 
 and on its own account, declare such divi- 
 dends upon its own stocli, and payable 
 from its own separate funds, as it might 
 deem expedient; it being distinctly pro- 
 vided that "the interest upon the debts of 
 either party must also be paid out of such 
 separate share, and not from the common 
 fund." As thus seen, the contract pro- 
 vided that the two roads and their 
 branches should be operated as a single 
 road by a common agent to be appointed 
 by the directors of both companies, and 
 removable by them, or by the unanimous 
 action of either; that the roads and prop- 
 ■ei'ty of each party should be kept in a 
 like relative condition and repair as they 
 then were at their joint expense; tha.t the 
 Nashua Corporation should in 1S57 erect 
 at its own expense a freight depot, with 
 necessary approaches, in the city of Low- 
 ell, and the Lowell Corporation, in the 
 same year, at its expense, complete a pas- 
 senger depot, with necessary approaches, 
 in the city of Boston, and alter the existing 
 passenger depot there, also at its own 
 expense, into a freight depot; that the in- 
 terest upon the debts contracted by either 
 party slwiuld be paid out of its own share, 
 and not from the common fund ; and that 
 the net income should be divided in the 
 proportion of 31 per cent, to the plaintiff, 
 the Nashua Corporation, and of 69 per 
 cent, to the uefendant the Lowell Corpo- 
 ration, payments on account of such divis- 
 ion to be made upon monthly estimates, 
 and final settlement and adjustment to be 
 had semi-annually. The contract did not 
 provide that the property of either corpo- 
 ration should be improved, or other prop- 
 erty be acquired by either, at the joint 
 expense of both. 
 
 Under this contract, and during its con- 
 tinuance, the two corporations united 
 their business and conducted it with 
 marked success. By leases from other 
 companies and the acquisition of branch 
 roads a large mileage was added to their 
 lines, and a correspondingly increased busi- 
 ness was transacted by them. In 1S74 the 
 Nashua Corporation reported to its stock- 
 holders that the two corporations then 
 operated under their joint management 
 135 miles,— more than double the mileage 
 at the time the contract was entered into. 
 It is stated that 33 miles of this distance 
 
 were added by the acquisition of theSalem 
 & Lowell and the Lowell & Lawrence 
 roads in 1858, and 16 miles of it by the pur- 
 chase of the Lexington & Arlington road. 
 In 1809. Contracts were made forbusiness 
 with connecting lines to such an extent 
 that the two roads, during the late years 
 of their joint operation, transported an- 
 nually in the neighborhood of 300,000 tons 
 of freight and 200,000 passengers. The net 
 income resulting from this extended busi- 
 ness was satisfactorily apportioned pur- 
 suant to the contract, 31 per cent, going 
 to the Nashua Corporation, and 69 per 
 cent, going to the Lowell Corporation, ex- 
 cept as they were affected by two transac- 
 tions of which the Nashua Corporation 
 complains. One of these transactions was 
 the alleged illegal appropriation by the 
 Lowell Corporation of $181,962 for a pas- 
 senger depot at Boston erected by that 
 corporation foritsown benefit, and which, 
 complainant contends, it was entitled to 
 receive as its share of the net earnings of 
 the joint management. The other trans- 
 action was the alleged illegal appropria- 
 tion of $26,124 for interest on the amount 
 expended by the Lowell Corporation in 
 buying a controlling interest in the stock 
 of two other railroad companies, — the 
 Lowdl & Lawrence Company and the 
 Salem & Lowell Company, — which the 
 complainant contends It was also entitled 
 to receive as its share of the net earnings 
 of the joint management. It is to compel 
 an accounting for these sums, and their 
 payment to the complainant, that the 
 present suit is brought. 
 
 Before passing, however, upon the valid- 
 ity of these claims a question raised as to 
 tlie jurisdiction of the circuit court must 
 be considered. Its j,urisdlction Was as- 
 sumed upon the diverse citizenship of the 
 parties, and, upon the allegations of the 
 bill, rightfully assumed. Although a cor- 
 poration is not a citizen of a state, within 
 the meaning of many provisions of the 
 national constitution, it is settled that, 
 where I'ights of property or of action are 
 sought to be enforced, it will be treated as 
 a citizen of the state where created, within 
 the clause extending the judicial power of 
 the United States to controversies between 
 citizens of different states. The plaintiff 
 was created a corporation by the legisla- 
 ture of New Hampshire In June, 1835. It 
 is, therefore, to be treated as a citizen of 
 that state. Railway Co. v. Whitton, 13 
 "Wall. 270, 283. But it also appears that 
 in April, 1836, the legislature of Massa- 
 chusetts constituted the same persons a 
 corporation of that state, who had been 
 thus incorporated in New Hampshire, giv- 
 ing to them the same name, and authoriz- 
 ing the new corporation to build that 
 portion of the railroad between Nashua, 
 in New Hampshire, and Lowell, in Massa- 
 chusetts, lying within the latter state. It 
 also appears that in April, 1838, the legis- 
 ature of Massachusetts passed an act to 
 unite the two corporations, — the one 
 created by New Hampshire, and the one 
 created by Massachusetts, — the first sec- 
 tion of which was as follows: "The stock- 
 holders of the Nashua & Lowell Railroad 
 Corporation, Incorporated by the legisla- 
 ture of the state of New Hampshire in the 
 
 275 
 
Case No. 96] 
 
 TBOOP. 
 
 year one thousand eigbt Inindred and 
 thirty-live, are hereby constituted stoclc- 
 holders of the Nashua & Lowell Railroad 
 Corporation, incorporated by the legisla- 
 ture of this commonwealth in the year one 
 thousand eight hundred and thirty-six; 
 and the said two corporations are hereby 
 united into one corporation, by the name 
 of the ' Nashua & Lowell Railroad Corpo- 
 ration;' and all the tolls, franchises, 
 rights, powers, privileges, and property 
 granted, or to be granted, acquired or to 
 be acquired, under the authority of the 
 said states, shall be held and enjoyed by 
 all the said stockholders in proportion to 
 their number of shares in either or both 
 of said corporations. " There were other 
 provisions, designed to enable the two 
 corporations to conduct their business as 
 one corporation. The act, however, de- 
 clared that it should not take effect until 
 the legislature of New Hampshire had 
 passed a similar act uniting the said stock- 
 holders Into one corporation, nor until the 
 acts had been accepted by the stockhold- 
 ers at a meeting called for that purpose. 
 In June of the same year, 1838, the legis- 
 lature of New Hampshire passed an act 
 authorizing the two corporations to unite, 
 and providing in such case that "all the 
 toll, franchises, rights, powers, privileges, 
 and property " of the two corporations 
 should be held and enjoyed by the stock- 
 holders in each and both in proportion to 
 their number of shares therein, and that 
 all property owned, acquired, or enjoyed 
 by either of the corporations should be 
 taken and accounted to be the joint prop- 
 erty of the stockholders of the two corpo- 
 rations, and that the two corporations 
 should be one; the act to be in force when 
 accepted by the stockholders of the corpo- 
 rations at a meeting called for that pur- 
 pose. It does not appear, so far as dis- 
 closed by the record, except in the allega- 
 tions of the defendant, that there was any 
 formal acceptance of this act by the stock- 
 holders of the two corporations, but it 
 would seem that th^ corporations acted 
 upon its supposed acceptance; for thp 
 defendants pleaded to the jurisdiction of 
 the court on the ground that, by the legis- 
 lation mentioned, the complainant was 
 not a corporaton of New Hampshire, and 
 consequently a citizen of that state, but 
 was a corporation of Massachusetts, and 
 thus a citizen of that state. 
 
 In the bill as originally filed, the Nashua 
 Corporation was the only complainant. 
 By a subsequent amendment, three per- 
 sons, citizens of New Hampshire, stock- 
 holders of that corporation, were united 
 as complainants. To the bill as thus 
 amended the defendants pleaded as fol- 
 lows : " That this court ought not to take 
 further cognizance of or sustain the said 
 bill of complaint, because they say that 
 they, the said defendants, at the time of 
 tiling said bill, were, and still are, all, 
 each, and every one, citizens of the state 
 of Massachusetts, and that said plaintiffs, 
 at the time of filing said bill, were not, 
 and still are not, all, each, and every one, 
 citizens of another state, but that the said 
 Nashua & Lowell Railroad Coi-poration, 
 one of said plaintiffs, at the time of filing 
 said bill, was, and still is, a corporation 
 27G 
 
 duly established and existing under and 
 by virtue of the laws of the state of Mas- 
 sachusetts, and a citizen of said state of 
 Massachusetts, and at the time of filing 
 said bill was not, and still is not, a corpo- 
 ration established and existing by the 
 laws of the state of New Hampshire, and 
 a citizen of said state of New Hampshire. 
 All of which matters and things these de- 
 fendants do aver to be true, and are ready 
 to verify. Wherefore they plead the same 
 to the whole of said amended bill, and 
 pray the judgment of this honorablecourt 
 whether they should be compelled to make 
 any other or further answer to said bill. " 
 This plea was argued upon an agreement 
 as to the facts. This plea was overruled, 
 the court stating in its opinion that it 
 seemed "that the defendant corporation 
 might go into New Hampshire, and there 
 sue the plaintiff as a New Hampshire cor- 
 poration, in the federal court, although it 
 could not bring such suit in the district of 
 Massachusetts against the New Hamp- 
 shire corporation, because no service upon 
 the New Hampshire corporation as such 
 could be got in this district, if for no other 
 reason;" and adding that "if the defend- 
 ant could sue the plaintiff in the federal 
 court for New Hampshire, notwithstand- 
 ing the fact of the plaintiff being chartered 
 under the laws of both states, there would 
 seem to be no good reason why the plain- 
 tiff, claiming under its New Hampshire 
 charter, should not be allowed to sue the 
 defendant in the federal court for Massa- 
 chusetts, as it would be impossible for the 
 defendant in such case to deny the title of 
 the plaintiff as predicated upon the New 
 Hampshire charter, or to deprive the 
 plaintiff of the benefit of its New Hamp- 
 shire citizenship thus acquired." 8 Fed. 
 Rep. 458. A more satisfactory answer 
 would, perhaps, have been that, what- 
 ever effect may be attributed to the legis- 
 lation of Massachusetts in creating a new 
 corporation by the same name with that 
 of the complainant, or in allowing aunion 
 of its business and property with that of 
 the complainant, it did not change the ex- 
 istence of the complainant as a corpora- 
 tion of New Hampshire, nor its character 
 as a citizen of that state, for the enforce- 
 ment of its rights of action in thenational 
 courts against citizens of other states. In- 
 deed, no other state could by its legisla- 
 ,tion change this character of that corpo- 
 ration, however great the rights and priv- 
 ileges bestowed upon it. The new corpo- 
 ration created by Massachusetts, though 
 bearing the same name, composed of the 
 same stockholders, and designed to ac- 
 complish the same purposes, is not the 
 same corporation with the one in New 
 Hampshire. Identity of the name, powers, 
 and purposes does not create an identity 
 of origin or existence, any more than any 
 other statutes alike in language, passed 
 by different legislative bodies, can properly 
 be said to owe their existence to both. To 
 each statute, and to the corporation cre- 
 ated by it, there can be but one legislative 
 paternity 
 
 But on this point we will hereafter speak 
 more at large. At present it is sufficient 
 to say that the decision of the court over- 
 ruling the plea in abatement upon the 
 
PRESUMPTION'S IN GENEllAL. 
 
 [Case No. 96 
 
 facts agreed upon disposed of the question 
 of jurisdiction in the court below. It is 
 true the defendants, in their answers, sub- 
 sequently filed, also made the same objec- 
 tion. Formerly the objection to the juris- 
 diction, from a denial of the complainant's 
 averment of citizenship, could only be 
 raised by a plea In abatement or by de- 
 murrer, and not by answer. De Sobry v. 
 Nicholson, 3 Wall. 420, 423; Rheppard v. 
 Graves, 14 How. 504, 509; Wickliffe v. Ow- 
 ings, 17 How. 47. This rule is modified by 
 the act of March 3, 1875, determining the 
 jurisdiction of the circuit courts of the 
 United Sta.tes. 18 St. p. 472, § 5. That 
 statute provides that if, in any suit com- 
 menced in one of such courts, "it shall ap- 
 pear to the satisfaction of said circuit 
 court, at anytime after such suit has been 
 brought or removed thereto, that such 
 suit does not really and substantially in- 
 volve a dispute or controversy properly 
 within the jurisdiction of saidcircuitcourt, 
 or that the parties to said suit have been 
 improperly or collusively made or joined, 
 either as plaintiffs or defendants, for the 
 purpose of creating a case cognizable or re- 
 movable under this act, the said circuit 
 court shall proceed no further therein, but 
 shall dismiss the suit, or remand it to the 
 court from which it was removed, as jus- 
 tice may require, and shall make such or- 
 der as to costs as shall be just. " By this 
 statute the time at which such objec- 
 tion may be raised is not thus restricted, 
 but may be taken at any time after suit 
 brought in thecases mentioned. The prin- 
 cipal object of the statute was to relievo 
 the national courts from the necessity of 
 passing upon cases where it was plain 
 that no question was involved within 
 their jurisdiction, and thus free them from 
 a consideration of controversies of a friv- 
 olous and questionable character, and to 
 prevent fraudulent and collusive attempts 
 to Invoke the jurisdiction of those courts, 
 as had frequently been the practice, by col- 
 orable transfers of property or choses in 
 action from a citizen of one state to a citi- 
 zen of another, to enable the latter to go 
 into those courts; the original owner still 
 retaining an interest in the property or 
 choses in action transferred, or taking a 
 contract for a retransfer of the same to 
 himself after the termination of the litiga- 
 tion. In such cases it is undoubtedly the 
 duty of the court below, of its own mo- 
 tion, to deny its jurisdiction, and of this 
 court, on appeal or writ of error, to see 
 that that jurisdiction has in no respect 
 been thus imposed upon. Morris v. Gil- 
 mer, 129 U. S. 315, 326, 9 Sup. Ct. Rep. 289; 
 Farmington v. Pillsbury.lW U. S. 138, 143, 
 5 Sup. Ct. Rep. 807. If the question of 
 jurisdiction could be raised in the answers 
 of the defendants after the decision upon 
 the issue on the plea in abatement, not- 
 withstanding the decisions cited and the 
 thirty-ninth equity rule, of this court, 
 the result in this case, though not perhaps 
 in all cases, would be the same. Replica- 
 tions were duly filed to the answers, the 
 effect of which was to deny the allega- 
 tions respecting the acceptance of the acts 
 having for their object the union of the 
 two corporations, and those allegations 
 were entirely unsupported by the evidence 
 
 or by anything in the record ; and neither 
 in the final decree of the court, nor in its 
 opinion, was any allusion made to the 
 subject. The only evidence bearing upon 
 the question isfoundinthelegislationofthe 
 twostates. New Hampshire and Massachu- 
 setts ; anditis plain, as already stated, that 
 no legislation of Massachusetts could pos- 
 sibly affect the existence of the complain- 
 ant as a corporation of New Hampshire, 
 or its character as a citizen of that state. 
 The act of New Hampshire of 1838, while 
 in terms authorizing the two corporations 
 to unite, did not confer any new franchise 
 or right upon either of them. All that it 
 did was to permit the funding or conver- 
 sion of the separate interests of each stock- 
 holder in each corporation into a common 
 or joint or undivided interest in both, and 
 to declare that, after the two corporations 
 were united, all ijroperty owned by either 
 should be considered the joint property of 
 the stockholders of both. There is nothing 
 in these provisions looking to any aban- 
 donment of its corporate character as a 
 creation of New Hampshire, or its citizen- 
 ship of that state. 
 
 There are many decisions, both of the 
 federal and state courts, which establish 
 the rule that, however closely two coriso- 
 rations of different states may unite their 
 interests, and though even the-stockhold- 
 ers of the one may become the stockhold 
 ers of the other, and their business be con- 
 ducted by the same directors, the separate 
 identity of each as a corporation of the 
 state by which it was created, and as a 
 citizen of that state, is not thereby lost. 
 InVarnuui v. Canal Corp., 1 Sum. 46,i we 
 have an instance of this kind. It there ap- 
 peared that in January, 1823, the legisla- 
 ture of Massachusetts created a corpora- 
 tion by the name of the Blackstone Canal 
 Company for the purpose of constructing 
 a certain canal in that state. It also ap- 
 peared that in June of that year the legis- 
 lature of Rhode Island incorporated a 
 company by the same name,— the Black- 
 stone Canal Company, — and authorized it 
 to construct a certain canal within the 
 limits of that state. In May, 1827, the leg- 
 islature of Rhode Island declared that the 
 stockholders of the Massachusetts compa- 
 ny should be stockholders in the Rhode 
 Island company, as if they had originally 
 subscribed thereto. If both corporations 
 should agree thereto, and that the books 
 and proceedings of the original and asso- 
 ciated stockholders should be deemed the 
 books ot both; and the court held that, 
 though the two corporations were created 
 in adjacent states by the same name, to 
 construct a canal in each of the states, re- 
 spectively, and afterwards, by subsequent 
 acts, were permitted to unite their inter- 
 ests, their separate corporate existence 
 was not merged, and that the legislature 
 only created a unity of stock and interest. 
 In giving its decision the court, by Mr. 
 Justice Story, said: "Although, in virtue 
 of these several acts, the corporations 
 [one of Rhode Island, and one of Massa- 
 chusetts] acquired a unity of interests, it 
 by no means follows that they ceased to 
 
 1 Fed. Gas. No. 4,675. 
 
 277 
 
Case No. 96] 
 
 PKOOF. 
 
 exist as distinct and different corpora- 
 tions. Tlipir powers, their rights, their 
 privileges, their duties, remained distinct 
 and several, as before, according to their 
 respective acts of incorporation. Neither 
 could exercise the rights, powers, or privi- 
 leges conferred on the other. There was 
 no corporate Identity. Neither was 
 merged in the other. If it were otherwise, 
 which became merged? Theacts of incor- 
 poration create no merger, and neither is 
 pointed out as survivor or successor. We 
 must treat the case, then, as one of dis- 
 tinct corporations acting within the 
 sphere of their respective charters for pur- 
 poses of common interest, and not as a 
 case where all the powers of both were 
 concentrated In one. The union was of 
 Interests and stocks, and not a surrender 
 of personal ldentit.y or corporate existence 
 by either corporation." In Muller v. 
 Dows, 94 U. S. 444, the bill averred that, of 
 the three comijlainants, two were citizens 
 and residents of the state of New York, 
 and one a citizen and resident of the state 
 of Missouri. The two original defendants 
 were corporations, namel.y, the Chicago & 
 Southwestern Railway Company, and the 
 Chicago, Rock Island & Pacific Railroad 
 Company; and they were alleged to be 
 citizens of the state of Iowa. It was con- 
 tended that the Chicago & Southwestern 
 Railway Company could not claim to be a 
 corporation created by the laws of Iowa, 
 because it was formed by a consolidation 
 of the Iowa company with another of the 
 same name chartered by the laws of Mis- 
 souri ; the consolidation having been al- 
 lowed by the statutes of each sta1#. 
 Hence it was argued that the corporation 
 was created by the laws of Iowa and of 
 Missouri; and, as one of the plaintiffs was 
 a citizen of Missouri, it was urged that the 
 circuit court had no jurisdiction. But 
 the court replied, speaking by Mr. Justice 
 Stro.n'G : ' We cannot assent to this infer- 
 ence. It is true the provisions of the stat- 
 utes of Iowa respecting railroad consoli- 
 dation of roads within the state with oth- 
 ers outside of the state, were that any 
 railroad company organized under the 
 laws of the state, or that might thus be 
 organized, should have powerto intersect, 
 join, and unite their railroads constructed 
 or to be constructed in the state, or in any 
 adjoining state, at such point on the st4»te 
 line, or atany other point, as might be mut- 
 ually agreed upon by said companies, and 
 such railroads were authorized 'to merge 
 and consolidate the stock of the respective 
 companies, making one joint-stock com- 
 pany of the railroads thus connected.' 
 The Missouri statutes contained similar 
 provisions, and with these laws In force 
 the consolidation of the Chicago and 
 Southwestern Railways was effected. The 
 two companies became one, but in the 
 state of Iowa that one was an Iowa cor- 
 poration, existing under the laws of that 
 state alone. The laws of Missouri had no 
 operation in Iowa. " The case of St. Louis, 
 A. & T.H.R. Co. V.Indianapolis & St. L. R. 
 Co., which was before the circuit court of 
 the United States for the district of Indi- 
 ana, and is reported in 9 Biss. 144,2 and 
 
 2 Fed. Cas. Xo. 12,237. 
 2T8 
 
 which came before this court under the 
 title of Pennsj'lvania R. Co. v. St. Louis, A. 
 & T. H. R. Co., and is reported in 118 U. S. 
 290, 6 Sup. Ct. Rep. 1094, bears a strong re- 
 semblance to the one now before the Ci^urt. 
 In the bill the plaintiff was alleged to be a 
 corporation created under the laws of Illi- 
 nois, and the defendants were alleged to- 
 be corporations created under the laws 
 of Indiana and of Pennsylvania. To the 
 bill a plea was interposed in which it was 
 alleged that, under various acts of the leg- 
 islatures of Illinois and Indiana, two cor- 
 porations were ci-eated, — one the plaintiff, 
 the St. Louis, Alton & Terre Haute Rail- 
 road Company, and the other the same 
 company in name in Indiana; that they 
 had been consolidated by those states, 
 and were so inseparably connected to- 
 gether that the plaintiff was really a cor- 
 poration as well of Indiana as of Illinois; 
 and that, as some of the defendants were 
 corporations of the state of Indiana, the 
 court could not take jurisdiction of the 
 case. But the court held that the fact 
 that the two corporations created by dif- 
 ferent states had been consolidated under 
 the la ws of those states, and that the rail- 
 road was operated by virtue of that con- 
 solidation as one entire line of road, did 
 not prevent one of those corporations 
 from bringing suit in the federal court, as 
 a corporation of the state where it was 
 created, against the corpoi'ation with 
 which it was consolidated, which was cre- 
 ated by the other state. Said the court, 
 speaking by Judge Deummond : "If the de- 
 fendant corporation, though consolidated 
 with another of a different state, can be 
 sued in the federal court in the state of its- 
 creation, as a citizen thereof, (referring to 
 the cases of Railway Co. v. Whitton, IS 
 Wall. 270, and Muller v.Dows,94U. S. 444,) 
 wh.yTan it not sue as a citizen of the state 
 which created it? I can see no difference 
 in principle. It seems to me that when 
 the plaintiff comes into the federal court, 
 if a cori^oration of another state, it i& 
 clothed with all the attributes of citizen- 
 ship which the laws of that state confer, 
 and the shareholders of that corporation 
 must be conclusively regarded as citizens 
 of the state which created the corporation, 
 precisely the same as if it were a defend- 
 ant. So I do not see why, if the plaintiff 
 in this case alleges, as it does, that it is a, 
 corporation created by the laws c>f Illi- 
 nois, it cannot Institute a suit in the cir- 
 cuit court of the United States of Indiana 
 against a corporation of that state. " 
 The case turned upon the point whether 
 the plaintiff corporation of Illinois had 
 become also an Indiana corporation, so 
 as to lose its existence or identity and 
 citizenship as an Illinois corporation. The 
 court held in the negative, that it still re- 
 mained an Illinois corporation, with all 
 its rights of action as such in the United 
 States courts. When the case came to 
 this court the defcision of the court below 
 was attirmed, but it would seem that 
 when it was considered here the plea to 
 the jurisdiction filed in the court below 
 had been withdrawn. The question of ju- 
 risdiction was, however, examined by the 
 court of its own motion. "It does not 
 seem, said the court, "to admit of ques- 
 
PUESUMPTIOXS TN GEXERAL. 
 
 [Case No. 9e 
 
 tion that a corporation of one state, own- 
 ing property and doing biisiiiesR in an- 
 other state by permission of the latter, 
 does not thereby become a citizen of this 
 state also ; and so a corporation of Illi- 
 nois, authorized by its laws to build a 
 railroad across the state from the Missis- 
 sippi river to its eastern boundary, may, 
 by the permission of the state of Indiana, 
 extend its road a tew miles within the lim- 
 its of the latter, or indeed through the en- 
 tire state, and may use and operate the 
 line as one road by the permission of the 
 state, without thereby becoming a cor- 
 poration or a citizen of the state of Indi- 
 ana. Nor does it seem to us that an act 
 of the legislature conferring upon this cor- 
 poration of Illinois, by its Illinois corpo- 
 rate name, such powers to enable it to use 
 and control that part of the road within 
 the state of Indiana as have been copferred 
 on it by the state which created it, consti- 
 tutes it a corporation of Indiana. " And 
 again: "In a case where the corporation 
 already exists, even if adopted by the law 
 of another state, and invested with full 
 corporate powers, it does not thereby be- 
 come such new corporation of another 
 state until it does some act which signifies 
 its acceptance of this legislation, and its 
 purpose to be governed by it. We think 
 what has occurred between the state of 
 Indiana and this Illinois corporation falls 
 short of this. " 
 
 Many cases might be cited from the state 
 courts illustrative and confirmatory of the 
 doctrine of this case. In Racine & M. R. 
 Co. V. Farmers' Loan & Trust C'o., 49 111. 
 331, it appeared that in April, 1852, the leg- 
 islature of Wisconsin incorporated the 
 Racine, Janesville & Mississippi Railroad 
 Company, and that the legislature of Illi- 
 nois, in February, 1853, incorporated the 
 Rockton & Freeport Railroad Company, — 
 both companies authorized to construct 
 ■railways; that in February, ls.54, these 
 two companies entered into an agreement 
 to fully merge and consolidate their capi- 
 tal stock, powers, privileges, immunities, 
 and franchises. In February, 1855, both 
 the legislature of Illinois and the legisla- 
 ture of Wisconsin changed the name of the 
 two companies to that of the Racine & 
 Mississippi Railroad Company. It also 
 appeared th at in 1851 the Sa vannah Bra nch 
 Railroad Company was organized under 
 the general railroad law of Illinois, and 
 that in January, 1856, this company en- 
 tered into articles of agreement wi th the 
 Racine & Mississippi Railroad Company 
 by which its stock was consolidated with 
 that of the lattercompany ; that a major- 
 ity in interest of the stockholders of the 
 Savannah Company ratified the articles; 
 and that in 1857 the legislature of Illinois 
 changed the name of that company to the 
 Racine & Mississippi Railroad Company. 
 Thus the names of three railroad com- 
 panies, created by three different states, 
 were changed to the same name, and were 
 allowed to be consolidated together and 
 act as one company. The supreme court 
 of Illinois held that this consolidation did 
 not convert them into one company in 
 fact. Said the court: "Our view of the 
 effect of the consolidation contract be- 
 tween the Eockton Company [of Illinois] 
 
 and the Wisconsin company, which we 
 hold to have been legally made, is briefly 
 this: While it created a community of 
 stock and of interest between the two 
 companies, it did not convert them into 
 one company in the same way and to the 
 same degree thatmightfollowaconsoliOa- 
 tion of two companies within the same 
 state. Neither Illinois nor Wisconsin, in 
 authorizingtheconsolidation,can have in- 
 tended to abandon all jurisdiction over its 
 own corporation created by itself. In- 
 deed, neither state could take jurisdiction 
 over the property or proceedings of the 
 corporation beyond its own limits; and, 
 as is said by the court in Railroad Co. v. 
 Wheeler, 1 Black, 297, a corporation 'can 
 have no existence beyond the limits of the 
 state or sovereignty which brings it into 
 life, and endows it with its faculties and 
 powers.'" In Bridge Co. v. Adams Co., 
 88 111. 619, the plaintiff was a consoli- 
 dated corporation, so called, created by 
 the laws of Illinois and Missouri for 
 bridging the Mississippi river between 
 those states. TI.e plaintiff, a bridge com- 
 pany, to avoid taxation in Illinois, claimed 
 to be a corporation of both states, and 
 not of either alone. The court in its opin- 
 ion said: "It is said by appellants, this 
 corporation, although it derived some of 
 its powers, and in part its corporate ex- 
 istence, from this state, [Illinois,] derived 
 an equal part from the sovereign state of 
 Missouri, and therefore they are n(jt a cor- 
 poration created under the laws of either 
 state. To this it is answered, and we 
 think satisfactorily, that the legislatures 
 of this state and of Missouri cannot act 
 jointly, nor can any legislation of the last- 
 named state have the least effect in creat- 
 ing a corporation in this state. Hence 
 the corporate existence of appellants, con- 
 sidered as a corporation of this state, 
 must spring from the legislation of the 
 state which by its own vigor performs the 
 act. The states of Illinois and Missouri 
 have no power to unite in passing any 
 legislative act. It is impossible, in the 
 very nature of their organizations, that 
 theycando so. They cannot so fusethem^ 
 selves into a single sovereignty, and as 
 such create a body politic which shall be 
 a corporation of the two states without 
 being a corporation of each state or of 
 either state. " In Railroad Co. v. Auditor 
 General, 53 Jlich. 91,18 N. W. Rep. 586, it 
 appeared that the general railroad law of 
 Michigan made roads that lie partly with- 
 in and partly without the state taxable 
 on so much of their gross receipts as cor- 
 responded to the ratio of their local to their 
 entire length. A local company was con- 
 solidated with a foreign one that con trolled 
 a number of other consolidated roads, 
 and several leased lines besides; and in 
 considering the effect of the consolidation 
 the court said, speaking by Chief Justice 
 CooLKY : "It is familiar law that each 
 corjjoration has its existence and domi- 
 cile, so far as the term can be applica- 
 ble to the artiflcial person, within the 
 territory of the sovereign creating it. 
 * * * It comes into existence there by an 
 exercise of sovereignty will; and, though 
 it may be allowed to exercise corporate 
 functions within another sovereignty, it 
 
 279 
 
Case Js^o. 96] 
 
 PROOF. 
 
 is impossible to conceive of one joint act, 
 performed simultaneously by two sov- 
 i-eign states, which shall bring a single 
 coi-poration into being, except it be by 
 compact or treaty. There may be sepa- 
 rate consent given for the consolidation 
 ol corporations separately created ; but, 
 whenthetwounite,theyseverally bring to 
 the new entity the powers and privileges 
 already possessed, and the consolidated 
 company simply exercises in each jurisdic- 
 tion the powers the corporation there 
 chartered had possessed, and succeeds 
 there to its privileges. " 
 
 It would seem clear, from the decisions 
 we have cited, as well as on general prin- 
 ciples, that the plaintiff in thi.s case must 
 be considered simply in its character as a 
 corporation created by the laws of New 
 Hampshire, and as such a citizen of that 
 state, and so entitled to go into the cir- 
 cuit court of the United States, and bring 
 its bill against a citizen of any otherstate, 
 and that its union or consolidation with 
 another corporation of the same name, 
 organized under the laws of Massachu- 
 setts, did not extinguish or modify its char- 
 acter as a citizen of New Hampshire, or 
 give it any such additional citizenship in 
 Massachusetts as to defeat its right to go 
 into the circuit court of the United States 
 in that district. If the position tal^en by 
 defendants could be maintained, then they 
 could sue in the federal court in New 
 Hampshire the New Hampshire corpora- 
 tion, while that coriioration could not en- 
 force its claims in the federal court of 
 Massachusetts against the Massachusetts 
 corporation. From the cases we have cit- 
 ed, it is evident that by the general law 
 railroad corporations created by two or 
 more states, though joined in their inter- 
 ests, in the operation of their roads, in 
 the issue of their stock, and in the division 
 of their profits, so aS practically to be a 
 single corporation, do not lose their iden- 
 ity, and that each one has its existence 
 and its standing in the courts of the coun- 
 try only by virtue of the legislation of the 
 state by which it is created. The union 
 of name, of officers, of business, and of 
 property does not change their distinctive 
 character as separate corporations 
 
 We turn now to a consideration of the 
 claims put forth by the plaintiff for a res- 
 toration to it of moneys appropriated to 
 the use and for the benefit of the defendant 
 corporation. As seen by the provisions of 
 the joint traffic contract given above, the 
 Lowell Corijoration was to complete the 
 construction of a jjassenger station, with 
 all necessary approaches, in the city of 
 Boston, in iS'iT, at its own expense, and to 
 alter the passenger depot then existing 
 thereinto a freight depot, also at its own 
 expense, and the Nashua Corporation was 
 at its own expense to erect a freight depot 
 at the city of Lowell for the accommoda- 
 tion of the joint business ; and in case of 
 destruction of buildings belongingtoeither 
 party, or damage to them by fire, they 
 were to be rebuilt or replaced by the own- 
 er. As observed by counsel, it would ap- 
 pear that, when entered into, it was not 
 the intent of the contract that either party 
 should be charged for improvements, ad- 
 ditions, or even restorations in the real es- 
 280 
 
 tate or terminal facilities of the other. 
 But, with the increase of business under 
 the joint management, it became evident, 
 if the business was to he retained, that 
 larger terminal facilities at Boston were 
 necessaTy ; and the character and extent 
 of the needed improvements were the sub- 
 ject of frequent consideration among the 
 directors of the two companies. In the 
 mean time the construction of another 
 passenger station there was commenced 
 by the Lowell Company; and, at a meet- 
 ing of the directors of the Nashua Corpo- 
 ration on the 23d of July, 1872, it was 
 voted asfollows: "That the expenditures 
 made and to be made by the Boston & 
 Lowell Railroad Corporation for land and 
 building in Boston for a new station, 
 and the expenditures made and to be 
 made by said corporation for the building 
 and completing tlie Mystic River Railroad, 
 and for the improvements in Winchester 
 for a new station and land for railway 
 purposes, to the amount of $20,000, are to 
 be treated in the management of the busi- 
 ness, under the joint business contract ex- 
 isting between said corporation and the 
 Nashua & Lowell Railroad Corporation, 
 as follows, viz. : The said Boston & Lowell 
 Railroad Corporation are to be paid the 
 interest upon such expenditures made and 
 to be made at the rate of seven per cent. 
 Iier annum, at the end of each six months, 
 out of the receipts of the joint corpora- 
 tions under said contract, and which is to 
 be charged as a part of the expenses of 
 operating said railways under said con- 
 tract ; and the cashier of said two corpo- 
 rations, and treasurer of the Boston & 
 Lowell Railroad Corporation, is hereby 
 directed to make up an interest account 
 upon such expenditures to April 1, 1S72, 
 and pay the amount found due to the 
 Boston & Lowell Railroad Corporation 
 out of the joint receipts of said two cor- 
 porations. " Under the authority of this 
 vote, there was deducted from the net 
 earnings of the joint management tlie in- 
 terest on the expenditures incurred in the 
 construction of the passenger station in 
 the city of Boston at the rate of 7 per 
 cent.; the same being treated as operat- 
 ing expenses of the road. The amount of 
 the net earnings thus diverted from the 
 Nashua Company, being 31 per cent, of 
 the interest on the whole expenditure in- 
 curred, is alleged to have been fl8l,902; 
 and the right to thus appropriate those 
 earnings depends upon the sufficiency of 
 that authority. 
 
 The question thus presented is not free 
 from difficulty. As a genernl rule, we 
 should not hesitate to say that the direct- 
 ors of the Nashua Company could not au- 
 thorize, without the previous approval of 
 its stockholders, the construction of apas- 
 senser station at a city in a state foreign 
 to that in which it was created, and to 
 which its own road did not extend, or the 
 payment of any portion of the cost of the 
 contruction. Such expenditures would not 
 be considered as falling within the ordi- 
 nary scope of their powers. See Railway 
 Co. v. Allerton, 18 Wall. 233; Uavis v. 
 Railroad Co., 131 Mass. 25S, and cases 
 there cited, particularly Colman v. Rail- 
 way Co., 10 Beav. 1, and Bagshaw v. Rail- 
 
PRESUMPTIONS IN GENERAL. 
 
 [Case No. 96 
 
 way Co., 7 Hare, 114. But the fact that 
 the increased facilities provided at Boston 
 were necessary to enable thejoint manage- 
 ment to retain its extended business, in 
 which the Nashua Company was of course 
 directly Interested, changes the position of 
 the directors of that company with refer- 
 ence to such expenditures, and brings 
 them within the general scope of the di- 
 rectors' powers. Such is tne conclusion of 
 a majority of the court, and therefore the 
 ,suit cannot be maintained for the restora- 
 tion to the complainant of moneys thus 
 expended, which otherwise would have 
 gone to it as net earnings of the joint 
 management. But the purchase of the 
 controlling interest in the stocli of the 
 Lowell & Lawrence and of the Salem & 
 Lowell Railroad Companies stands upon 
 a different footing. That was a matter 
 solely for the Lowell Corporation. The 
 purchase was never autliorized by any 
 vote of the directors of the Nashua Com- 
 pany. At the time those roads were un- 
 der lease to the Lowell Corporation, and 
 had been taken into the joint account, and 
 the net earnings divided between the two 
 corporations in the same ratio as were 
 the earnings of their own road.s. This 
 gave to the Nashua Corporation all the 
 benefits that could possibly arise fi-om the 
 ownership by the Lowell Corporation of a 
 controlling interest in their capital stock. 
 The additional burden of the purchase 
 
 could in no way, therefore, be cast upon 
 the Nashua Corporation without the con- 
 sent of its stockholders; and no such con- 
 sent was given either by them, nor, as al- 
 ready said, was any given by its directors. 
 The pretense for the purchase was that 
 the leases were invalid, and that other 
 parties might otherwise obtain control of 
 those roads, and thus injuriously affect 
 the business of the joint management. 
 The charter of the complainant did not 
 extend to the purchase of controlling inter- 
 ests in the railroads of other states under 
 the apprehension that such roads might 
 become business competitors. The com- 
 plainant isthei'eforeentitled to an account- 
 inff by the Lowell Company for the net 
 earnings of the joint management which 
 were appropriated towards the intei'est 
 on the sums expended in the purchase of 
 the stock of those companies, and to the 
 payment of the amount found due to it 
 upon such accounting. 1 he dpcree of the 
 court below will be reversed, and the 
 cause remanded for further proceedings in 
 accordance with this opinion ; and it is so 
 ordered. 
 
 BLATCHFORD, J., did not sit in this 
 case, or take any part in its decision. 
 
 FULLER, C.J. , and GRAY and LaMAR, 
 JJ., dissent on tlie question of jurisdiction. 
 
 281 
 
Case No. 97] 
 
 PROOF. 
 
 MILLER T. CITY OF INDIANAPOLIS et al. 
 
 (24 N. B. 228, 123 lud. 196.) 
 
 Supreme Court of Indiana. April 1, 1890. 
 
 Appeal from circuit court, Hendricks 
 county; John V. Hadley, Judge. 
 
 Action by Catherine A. Miller against 
 tlie city of Indianapolis and another. 
 There was judgment for defendants, and 
 IJlaintiff appeals. 
 
 Wni. Watson Woollen and Wni. E. Nib- 
 lack, for appellant. Win. L. Taylor, Den- 
 ny & Elliott, and .4. L. Mason, for appel- 
 
 COFFEY, J. A controversy arosein this 
 case, in the circuit court, as to whether it 
 was an action to quiet title, or an action 
 to obtain an injunction. Acting upon the 
 theory that it was an action to obtain an 
 injunction, the circuit court refused the 
 request of the appellant for a trial by jury, 
 and also overruled the application of the 
 appellant for anew trial as of right. The 
 complaint in the cause, omitting the cap- 
 tion and the description of theland in con- 
 troversy, is as follows: "Catherine A. Mil- 
 ler, plaintiff, complains of the city of In- 
 dianapolis, Leander A. Fulmer, and George 
 AV. Seibert, defendants, and says that she 
 is the owner of the following described 
 real estate; * * * that said defend- 
 ants have unlawfully, wrongfully, illegal- 
 ly, and forcibly taken possession of the 
 same, and, without having condemned the 
 same, are threatening to do great and ir- 
 reparable damage to the same, in this : 
 that they are threatening to cut down the 
 trees and vines that have been placed 
 thereupon and have been grown thereon 
 by the plaintiff, and are threatening to 
 plow the land and grade the same, and 
 are threatening to make a street over and 
 upon it ; and this she avers they are do- 
 ing without leave or license from her, and 
 with full notice that she is the owner 
 thereof, and under a claim that said real 
 estate is a public street in said city. She 
 therefore prays that, as against said de- 
 fendants, her title be quieted to said real 
 estate, and that said defendants maybe 
 forever enjoined from further trespassing 
 thereon, and damaging the same." 
 
 It is conceded by both parties, in their 
 briefs and in the argument of his cause, 
 that every pleading must proceed upon 
 some single definite theory, which must 
 be determined by its general scope and 
 character, and that the prayer for relief 
 does not determine the character of the 
 pleading, nor assign to it any particular 
 1 heory. Bank v. Root, 107 Ind . 224, 8 N. E. 
 Rep. 105; Houck v. Graham, 106 Ind. 195, 
 6 N. E. Rep. 594. This complaint is desti- 
 tute of some of the allegations found in 
 an ordinary complaint to quiet title. In- 
 deed, there is no pretense that any one or 
 all of the defendants make any claim to 
 the title to the land in controversy. 
 While it is true that cities, by their com- 
 mon councils, have the control oE the 
 streets and alleys within their territorial 
 limits, it cannot becorrectlysaid that they 
 own such streets and alleys. A grant or 
 dedication of a street is a grant or dedica- 
 
 282 
 
 tion to the public, and not to the city. In 
 the case of Conner v. New Albany, 1 Blackf . 
 45, it was said by this court: "That which 
 is granted to New Albany cannot be 'pub- 
 lic,' in the unqualified sense of the word ; 
 nor can that which is granted to the pub- 
 lic be in any sense the exclusive property 
 of New Albany. A grant of a public street 
 of highway, through either town or coun- 
 try, cannot be considered otherwise than 
 as a grant to the public. " See, also, City 
 of Evansville v. Evans, 37 Ind. 229. 
 
 The complaint, however, does contain 
 all the necessary allegations for an injunc- 
 tion in ca.ses of threatened irreparable in- 
 jury. High, Inj. §§ 701, 702. It is to be 
 gathered from the complaint that the city 
 of Indianapolis claims that the strip of 
 ground in controversy is a public street, 
 and that, acting upon that claim, the 
 other defendants in this action were pro- 
 ceeding to cut down the trees and vines 
 growing thereon, plow up and grade the 
 same as a street, to the irreparable injury 
 of the plaintiff. In such case the only ade- 
 quate remedy of the appellant was by in- 
 junction. In no other case would the 
 charge that appellees were about to do the 
 appellant irreparable injury find an ap- 
 propriate place. We are of the opinion 
 that this complaint must be regarded as 
 a complaint to enjoin the appellees from 
 the commission of the threatened injury 
 therein set forth, and that it proceeds up- 
 on the theory that the appellant had no 
 other adequate remedy. It follows that 
 the circuit court did not errin refusing the 
 request of the appellant for a jury trial, 
 as the trial of actions for injunctions be- 
 longs exclusively to the court. Nor did 
 the court err in overruling the application 
 of the appellant for a new trial as of right, 
 as such right does not extend to actions 
 tor injunctive relief. Liggett v. Hinkley, 
 120 Ind. 387, 22 N. E. Rep. 256. The defense 
 relied upon by the appellees was that the 
 strip of ground in controversy had been 
 dedicated to the public as a street, by com- 
 missioners appointed by the Marion coun- 
 ty civil circuit court, in a partition suit 
 pending in that court in the year 1868. A 
 certified copy of the record and proceeding 
 in that cause was read in evidence on the 
 trial of this cause, over the objection of 
 the appellant. 
 
 It is not seriously contended that the 
 court had no power to order the land in- 
 volved in that suit laid off in lots, blocks, 
 streets, a,nd alleys, but, as the pi at prepared 
 by the commissioners to plat the land 
 and make partition of the same is not set 
 out in this record, it is earnestly contended 
 that the decree in partition is void for un- 
 certainty. It appears by the record read 
 in evidence that Susan L. Davidson and 
 the appellantinthiscauseinstituted,in the 
 Marion circuit court in the .year 1868, a 
 partition suit against Noah N. Davidson 
 and others, in which it was alleged that 
 the plaintiffs therein and the said Noah 
 N. Davidson were the owners and tenants 
 in common of a certain described tract of 
 land, including the land in controversy, 
 each of said parties owning an undivided 
 one-third thereof. During the pendency 
 of the action the appellant intermarried 
 with one Miller, which fact was suggested. 
 
ORAL EVIDE^rCE ACCOMPANYING WRITTEN DOCUMENTS. [Case No. 97 
 
 to the court, and the said Miller was made 
 a party plaintiff with his wife, the appel- 
 lant herein. Upon a trial of the cause, 
 and after the court had entered an inter- 
 locutory decree for partition, and had ap- 
 pointed commissioners to make partition, 
 the record recites that "it is further or- 
 dered, with the assent of all the parties, 
 that the commissioners be directed to lay 
 off said premises into lots, blocks, streets, 
 and alleys, to facilitate such partition." 
 At a subsequent davin the term, being the 
 31st day of December, 1SG8, the commis- 
 sioners reported to the court that, after 
 being- duly sworn, and having received a 
 copy of the order of the court, they pro- 
 ceeded, with the assistance of a surveyor, 
 and laid off the land described in the order 
 into lots, blocks, streets, and alleys, and 
 that they had made a plat thereof, which 
 they then reported to the court for ap- 
 proval. Atthe close of this report the fol- 
 lowing record entry was made: "Where- 
 by it appears to the court that the said 
 commissioners have laid off the said prem- 
 ises into lots, blocks, streets, and alleys, 
 and it is now agreed to by the said par- 
 ties that said premises should belaid off 
 into lots, blocks, streets, and alleys, the 
 same is hereby confirmed; and the said 
 plat is ordered to be recorded in the record- 
 er's office of Marion county, Indiana, and 
 thereupon shall have the same validity in 
 law as if made by a legal proprietor of 
 such land of full age." On the same day 
 the said commissioners filed their report of 
 partition, in which they reported that they 
 had set off and partitioned to the said 
 Noah N. Davidson, blocks 3, 4, 7, 19, and 
 20, in Davidson's third addition to the city 
 of Indianapolis; to Catherine A. Miller, 
 (this appellant,) blocks 5, 6, 8, and 15, 
 (homestead,) in the same addition; and 
 to Susan L. Davidson, blocks 10, 11, 12, 13, 
 14, 16, 17, and 18, in Davidson's third addi- 
 tion to the city of Indianapolis. This i-e- 
 port was approved by the court, and a 
 judgment of partition was entered of rec- 
 ord accordingly. The court having juris- 
 diction of the subject-matter, and of the 
 persons of the parties to this suit, it can- 
 not be reasonably contended that its judg- 
 ments and decrees in the premises are void, 
 unless they are so uncertain that it is im- 
 possible to ascertain therefrom what land 
 was set off and partitioned to each of the 
 parties. Doubtless it would have been 
 much better to set out in the record the 
 plat prepared by the commissioners, divid- 
 ing the laud into lots, blocks, streets, and 
 alleys, as that would have relieved the rec- 
 ord'from any uncertainty, and would have 
 rendered the controversy we are now con- 
 sidering impossible; but still, if the record 
 furnishes the means by which it can be^ 
 definitely ascertained what the share as- 
 signed to each of the parties in the partition 
 thus made is, we do not think it is void. 
 Itisnottheoffice of a description to identi- 
 fy property, but its offlce is to furnish the 
 means of identification. Boyd v. Doty, 8 
 Ind. 370; Peck v. Sims, 120 Ind. 345. 22 N. 
 E. Kep. 313. For the means of identifying 
 the property set off to the respective par- 
 ties to this suit, we are referred, by the rec- 
 ord, to the plat prepared by the commis- 
 sioners, under the order of the court to lay 
 
 the land off into lots, blocks, streets, and 
 alleys, and we are to look for that plat in 
 the recorder's office of Marion county, 
 where the same is ordei-ed to be recorded. 
 If, when found and properly identified, the 
 property setoff to each can be ascertained, 
 we know of no reason why it should not 
 be as effectual as if copied into the record / 
 of the partition proceedings. The offlce of / 
 a description has been fulfilled, and the | 
 means of identification are at hand. It 
 is plain, therefore, that the record of the / 
 proceedings in partition now before us is/ 
 to be considered and construed in connec- 
 tion with the plat prepared by the com- 
 missioners, if that plat can be found and 
 Identified, for such plat is, in fact, a plat 
 of the proceedings in that case. 
 
 Over the objection of the appellant, the 
 appellees read in evidence, on the trial of , 
 this cause, what purported to be a certi- / 
 fied copy of therecord of the plat above re-,/ 
 ferred to, as taken and copied from one ofV 
 the plat-books in_ the recorder's offlce of' 
 Marion county, it is contended by the 
 appellant that, as this plat is a part of 
 the proceeding in the partition suit, it 
 should have appeared in the record in that 
 cause, and should have been recorded in 
 the deed record, under the provisions 
 of the act of March 5, 1859, found on 
 page 760, 1 Rev. St. 1876, and that there 
 was no law in force authorizing its record 
 in the plat-book of the recorder's office. 
 When this evidence was offered by the ap- 
 pellees, it was objected to bythe appellant 
 upon the grounds — First, that the record 
 and certificate show that it is a certified 
 copy of the plat-book of Marion county, 
 Ind. ; second, that there is no law in this 
 state which authorizes the recording of a 
 plat in the plat-book; t/jj>i7, that under 
 the law in this state there is no such thing 
 known as a piat-book to be kept by the 
 recorder; fourth, that the statutes of this 
 state require that when a plat is made it 
 shall be recorded Iti the record of deeds of 
 the county, and this does not purport to 
 be from such record ; fifth, that it was im- 
 material, irrelevant, and incomiietent, and 
 that there is no issue in the case under 
 which it is admissible. 
 
 An examination of this plat discloses the 
 fact that it embraces the same land de- 
 scribed in the partition proceeding set out 
 above. It divides the land into lots, 
 blocks, streets, and alleys, and purports 
 to have been signed and acknowledged by 
 the commissioners appointed by the court 
 to divide the same, and make partition. 
 It refers to the partition case by title and. 
 number, and designates it as "Davidson's 
 Third Addition to the City of Indianapo- 
 lis, " and bears date the 81st day of Decem- 
 ber, 1868, the date on which the record in the 
 partition proceeding informs us that it 
 was acknowledged and approved by the 
 court. It was recorded in plat book No. 
 3, in the office of the recorder of Marion 
 county, on the 9th day of January, 1869. 
 There is little room for doubt that the 
 paper before us is a copy of the plat made 
 by the commissioners in tlie partition suit 
 to which the appellant was a party. The 
 serious question is as to whether it comes 
 to us in the shape of legitimate evidence. 
 Our attention has not been called to any 
 
 28» 
 
Case No. 97] 
 
 PEOOF. 
 
 express statutory provision authorizing 
 what Is known as a "plat-hook." While 
 the law not only authorizes, but abso- 
 lutely requires, that plats of towns and 
 cities, and additions thereto, shall be re- 
 corded, it seems to be silent as to the name 
 of records in which they shall be so re- 
 corded. We must take notice, however, of 
 the fact, as part of the current history of 
 thepublic business of the state, that books 
 known as "plat-books" are and have been 
 for many years kept by the county record- 
 I ers in the various counties of the state, in 
 which are recorded the plats of the towns 
 and cities, and the additions thereto, and 
 'that such books are kept as public records. 
 In procuring such records, the count.y re- 
 corders no doubt acted upon the correct 
 presumption that, where the law required 
 that ,1 particular class of insti-uments 
 should berecorded,and madeno provision 
 for any specific book in which they should 
 be so recorded, it was their duty to 
 procure suitable records for that purjaose. 
 Indeed, frequent reference is made to such 
 records ia the statutes of the state, and 
 the.y have frequently been recognized by 
 legislative enactment as legal public rec- 
 ords. With this knowledge before it, the 
 legislature enacted section 3253, Kev. St. 
 iNSl, which provides that " the acknowl- 
 edgments of all plats of towns and cities, 
 and of all additions thereto, heretofore 
 taken and certified by any officer provided 
 for in section 3374, are hereby legalized ; 
 and the recording of such plats and addi- 
 tions as have heretofore been acknowl- 
 edged before and certified by any officer 
 provided for in said section is hereby de- 
 clared to be valid and effectual in law to 
 all intent and purposes. " In view of these 
 facts, and in view of the statute above 
 quoted, we are constrained to hold that 
 the plat-book from which the plat before 
 us was copied is a legal public record, in 
 which the plat prepared by the commis- 
 sioners in the partition suit before us was 
 properly recorded. To hold otherwise 
 would be to adjudge that most, if not all, 
 of the plats prepared in the last 30 or 
 40 years have never been properly re- 
 corded, and would tend to great confusion 
 and much inconvenience. We are of the 
 opinion that the certified copy of the plat 
 before us was properly admitted in evi- 
 dence, provided there was an issue in the 
 cause under which it was admissible. 
 
 The only pleading filed by the appellees 
 was ageneral denial, and whether the plat 
 was admissible in evidence under that 
 plea depends upon what fact it tended to 
 prove. The appellant's right to recover 
 in the action rested upon the assumption 
 that she was the owner of the strip of 
 land in controversy at thetime of the com- 
 mencement of her suit. Whatever tended 
 to ijrove that she was not such owner was 
 admissible under a denial of the allegation 
 that she was the owner. We think the 
 jjlat i-ead in evidence, when taken in con- 
 nection with the other evidence in the 
 cause, tended to show that she was not 
 such owner. Pom. Rem. §§ 666-673. The 
 land in controversy consists of a strip 60 
 feet wide, extending east and westthrough 
 the entire width of the tract of land de- 
 scribed in the partition proceeding above 
 284 
 
 set out. Its length is 1012 feet, and its 
 width is 60 feet. As shown by the plat be- 
 fore us, it is bounded on the north by a tier 
 of blocks, numbered, respectively, 12, 13, 14, 
 and 15, the last being the homestead and 
 one of the blocks assigned to appellant in 
 the partition proceeding. It Is bounded 
 on the south by blocks numbered 5, 6, 7, 8, 
 9, 10, and 11. The first lots above named 
 front south on this strip, and the last 
 named front north on the strip. It is not 
 named on the plat as a street, but it inter- 
 sects Preston street on the west, and is 
 marked Avlth the figures "60" at each end. 
 Upon the trial of the cause the appellant 
 proposed to prove, by competent oral tes- 
 timony, that in laying off this addition to 
 the city of Indianapolis it was not the in- 
 tention of the commissioners who platted 
 the same to dedicate this strip to the pub- 
 lic as a street, to which offered testimony 
 the court sustained an objection, and the 
 appellant excepted. At the time this evi- 
 dence was offered by the appellant it was 
 in proof that all the property abutting on 
 this strip had passed into the hands of 
 third parties, either b.y way of direct con- 
 veyance, or ))y means of mortgages exe- 
 cuted b.y the parties to whom the blocks 
 had been assigued in the partition suit. 
 In these several conveyances and mort- 
 gages the land is described by blocks, as 
 it is described in the plat prepared by the 
 commissioners to plat the same, and as it 
 is described in the report of partition made 
 by said commissioners. The city of Indi- 
 anapolis, actingupon theassumption that 
 this strip had been dedicated to the public 
 as a street, had accepted it as such, and 
 was proceeding to grade and improve it. 
 It is not contended by the appellant 
 that this strip of land is either a lot, block, 
 or alley. It is neither a lot, block, street, 
 nor alley. It is a strip of land left by the 
 commissioners appointed to make parti- 
 tion, wholly undivided. In their report 
 to the court the commissioners reported 
 that they had divided the land intended 
 for partition into lots, blocks, streets, and 
 alleys, and in their report of partition 
 they informed the court that they had as- 
 signed to each of the parties interested in 
 said land his or her share in the same, in sev- 
 eralt.y. No person examining these pro- 
 ceedings would be led to believe that any 
 portion of the land described therein was 
 left undivided, but, on the contrary, when 
 examining the plat in connection with 
 the report of the commissioners in parti- 
 tion, and the judgment of the court there- 
 on, would be led to the belief that the sti'ip 
 in controversy was intended as a 60-foot 
 street, furnishing an outlet for the blocks 
 abutting thereon. If the strip had been 
 designated " Miami Street, " or a street by 
 any other name, it would not be contend- 
 ed that the appellant could not show by 
 parol testimony that it was not intended 
 to dedicate it as a public street. Marking 
 a street upon a plat of an addition to a 
 town or city, and selling lots with refer- 
 ence thereto, constitutes a dedication. 
 Faust V. City of Huntington, 91 Ind. 493; 
 City of Evansville v. Page, 23 Ind. 525; 
 City of Logansport v. Dunn, 8 Ind. 378; 
 City of Indianapolis V.Kingsbury, 101 Ind. 
 200. As to whether a plat contains an ex- 
 
ORAL EVIDENCE ACCOM PAISTTING WRITTEN DOCUMENTS. [Case Ko. 97 
 
 press dedication of a strip of ground to 
 the public, as a street, is a matter of law 
 for the court. Hauson v. Eastman, 21 
 Minn. 509; Yates v. Judd, 18 Wis. 118; 
 vSanborn v. Railway Co., IG Wis. 19. In 
 City of Indianapolis v. Kingsbury, supra, 
 it was said by this court: "But the in- 
 tention to which courts give heed is not 
 an intention hidden in the mind of the 
 land-owner, but an intention manifested 
 by his acts. It is the intention which finds 
 expression in conduct, and not that which 
 is secreted in the heart of the owner, that 
 the law regards. Acts indicate the inten- 
 tloij, and upon the intention, clearly ex- 
 pressed by open acts and visible conduct, 
 the public and individual citizens may 
 act. "' "The question whether a person in- 
 tends to make a dedication of ground to 
 the public for a street or other purpose 
 must be determined from his acts and 
 statements explanatorj' thereof, in connec- 
 tion with all the circumstances that sur- 
 round and throw light upon the subject, 
 and not from what he may subsequently 
 testify as to his real intention in relation 
 to the matter." City of Columbus v. 
 Dahn, 36 Ind. 830; Lamar Co. v. Clements, 
 49 Tex. 347; City of Denver v. Clements, 3 
 Colo. 487. An implied dedication may be 
 rebutted by parol testimony, but where 
 the dedication is express, evidenced by a 
 recorded plat, the intent, as expressed in 
 
 such plat, cannot becontradicted by parol. 
 City of Indianapolis v. Kingsbury, supra, 
 and authorities there cited. When the 
 plat before us is construed in connection 
 with the partition proceedings of which it 
 constitutes a part, as the same is ex- 
 plained by the report of the commission- 
 ers in partition and the judgment of the 
 court thereon, no other reasonable con- 
 clusion can be drawn than that the strip 
 of land in controversy was intended as a 
 60-foot street, for the benefit of the block 
 abutting thereon, and as furnishing a 
 means of ingress and egress to the same. 
 Relying on this dedication, the property 
 adjoining this strip has passed into the 
 hands of third parties, and the city of In- 
 dianapolis, accepting such dedication, is 
 proceeding to improve the strip as a 
 street. To permit the appellant to .say, 
 now, that this strip was left by the com- 
 missioners as undivided land, and was not 
 intended as a street, would be obviously 
 unjust to those who purchased the prop- 
 erty on the faith of the plat and the par- 
 tition proceeding. We do not think the 
 court erred in refusing to admit this of- 
 fered testimony. We find no error in the 
 record for which the judgment should be 
 reversed. Judgment affirmed. 
 
 ELLIOTT, J., took no part in the decis- 
 ion of this cause. 
 
 285 
 
Case Xo. 98] 
 
 PROor. 
 
 BURTON T. Tl'ITE, City Treasurer. 
 
 (45 N. W. 
 
 80 Mich. 218.) 
 
 Supreme Court of Michigan. Appl 18, 1890. 
 
 On ijetition Jor mandamus. 
 
 Act >Iich. 1889. No. 205, provides that the 
 officers having the custody of any county, 
 city, or town records shall furnish proper 
 and reasonable facilities for the inspection 
 and examination of the records and files in 
 their offices, and for making memorauda 
 or transcri])ts therefrom, to all persons 
 having occasion to make examination of 
 them for any lawful purpose. 
 
 Henry A. t'huiiey, for relator. John W. 
 McGrath, for respondent. 
 
 MORSE, J. The respondent is city treas- 
 urer of Detroit. The relator is engaged in 
 the abstract business in said city. We 
 held, upon application of the relator for 
 maadamus, (see Burton v. Tuite, 44 N. AY. 
 Eep. 282,) that certain records in said treas- 
 urer's office were public records, and that 
 relator had arighttoexaminethem,andto 
 make memoranda or transcripts therefrom 
 under Act No. 205, Pub. Acts 18S9, subject 
 to such proper and reasonable regulations 
 as the trea.<urer might make consistent 
 with the public use of such records. Our 
 order in the case, as made and entered in 
 the journal on the 8th day of January, 1890, 
 commanded the said Tuite not only to al- 
 low the relator to inspect and examine the 
 particular records involved in that case, 
 but also to generally furnish to him and 
 his subordinates reasonable and proper fa- 
 cilities for the inspection and examination 
 of the records and flies in his ofHce, and for 
 making memoranda and transcripts there- 
 from in compliance with said above-named 
 act of the legislature. In the opinion, as 
 well as in the order, of this court we meant 
 to so express our views and commands as 
 that there should be no nnstake or misun- 
 derstanding as to the rights and duties of 
 the respective parties to this controversy. 
 But we are now called upon to enforce our 
 order. .January ]3, 1890. a petition was 
 filed in this court by the relator showing 
 the proper service of our writ of peremp- 
 tory mandamus upon respondent, and set- 
 ting forth that, notwithstanding our order 
 and command therein contained, the re- 
 spondent had since said service refused to 
 allow relator to have access to or look at 
 certain other public records in said office 
 of the city treasurer, to-wit: One book 
 containing the record of the certificates of 
 tax-sales that have been canceled ; one 
 book containing a list of such lots as have 
 been sold to the city of Detroit, or to indi- 
 viduals, for special city taxes, and have 
 been from time to time redeemed ; and a 
 hook containing a list of such lots or par- 
 cels of land in the city of Detroit as have 
 been heretofore sold to said city for delin- 
 
 280 
 
 quent city taxes, said sales being after- 
 wards assigned by the city to individuals. 
 Upon this petition, January 15, 1890, we 
 issued an order to the said Thomas P. 
 Tuite, to show cause why he should not 
 be pimished for contemi)t and disobedience 
 of the said writ of mandamus of date Jan- 
 uary 8, 1890. Respondent answered this 
 order on the 28th day of January, 1890, de- 
 nying that the above-named books were 
 public records, or that the relator had any 
 right to examine them under the statute, 
 or our decision and order above stated. 
 The books in question were denominated 
 by the respondent as " Stub Receipt Books, " 
 and it was insisted in said answer that the 
 same were not public records, but mere 
 memoranda for the convenience of the 
 office, and that all the data contained 
 therein is entei-ed in the "Record Books," 
 which are accessible to relator. It was, 
 however, admitted upon the argument 
 that the transferring of the data upon 
 these stub books to the record books 
 might be delayed for days or weeks, at the 
 pleasure of the respondent. After hearing 
 both parties by counsel upon the petition 
 and answer, we directed certain interrog- 
 atories to be served upon the respondent, 
 to be answered by him under oath, and 
 that other proofs be taken touching the 
 truth of the matters involved in the peti- 
 tion and answer, as well as the nature and 
 character and use of said books. The an- 
 swers to said interrogatories and other 
 testimony taken have been returned to us. 
 We do not intend to again go into the dis- 
 cussion of the questions that were settled 
 by us in the first opinion filed in this case. 
 We are satisfied that the books referred to, 
 by whatever name they are called, are pub- 
 lic records in the treasurer's office, in the 
 full sense of the statute, and under the 
 opinion above referred to; that the re- 
 spondent is guilty of contempt and dis- 
 obedience of the order of this court in re- 
 fusing to the relator the privilege of exam- 
 ining them, and making transcripts there- 
 of. We think, however, that this disobe- 
 dience has occurred, not so much from a 
 willful disregard of our command, as from 
 bad advice. Under the circumstances, we 
 are not disposed to impose a heavy penal- 
 ty, but we hope that our orders will here- 
 after be strictly complied with, and with- 
 out delay or attempted evasion, as the fine 
 in this case will not stand as a precedent 
 in any future case of disobedience of the 
 mandates or decrees of this court. An or- 
 der will be entered adjudging the said 
 Thomas P. Tuite guilty of contempt and 
 disobedience of our aforesaid writ of man- 
 dam,js, and that he pay to the people of 
 the state of Michigan a fine of .'§25, with 
 the costs of this proceeding to be taxed by 
 tne clerk of this court; such payment to 
 be made to said clerk within 10 days 
 after a copy of such order shall be served 
 upon him. The other justices concurred. 
 
OKAL EVIDENCE ACCOMPANYING WRITTEN DOCUMENTS. [Case No. 99 
 
 BLALOCK T. MILAND. 
 
 (13 S. E. 551, 87 Ga. 573.) 
 
 Supreme Court of Georgia. July 13, 1891. 
 
 EECORDiNci Deed— Gift— Loss or Deed— Second- 
 ary E%'ir>ExcE — Notice to Pkoduce — Delivery 
 — Declakations op Donor — Instructions. 
 1. A deed saying nothing of delivery in the 
 attestation clause is nevertheless prepared for 
 record i£ attested by two witnesses, one of whom 
 was the clerk of the superior court, who signed 
 the attestation in his official character. 
 
 3. In order for the heir of a deceased donee to 
 set up a deed of gift made to her by her father it is 
 not necessary that it should appear that the donee 
 or her heir ever had possession of the premises, 
 or that either of them ever had actual custody of 
 the deed. 
 
 8. When it appears that an original deed of 
 gift by a father to his daughter was never in the 
 actual custody of the daughter; that the father 
 is dead ; and .that the deed was not among the 
 papers left by him, — the loss of the original is 
 sufficiently accounted for to admit a copy taken 
 from the record. 
 
 4. The donor, after making a deed of gift, 
 having sold and conveyed the premises to other 
 persons, there is no presumption that the deed of 
 gift, which was adverse to their title, ever we at 
 into their possession; and consequently, whether 
 a notice to one of them was properly directed, or 
 a subpoena duces tecum to the other was prop- 
 erly served, is Immaterial, there being no dili- 
 gence to inquire of them incumbent upon the 
 party now claiming under the deed of gift. 
 
 5. Declarations of a vendor, now deceased, 
 made at the time of conveying to his vendee, 
 that a previous deed of gift executed by the ven- 
 dor to his daughter had never been delivered, and 
 that he had destroyed the same, are not admissi- 
 ble in evidence in favor of the vendee against 
 the heir of the daughter claiming under the deed 
 of gift; nor are declarations of a third person, 
 now deceased, that he knew the deed had not 
 been delivered, and that the donor destroyed it. 
 
 6. A written declaration, made by the donor, 
 and recorded in the record of deeds, to the effect 
 that he had not delivered to his daughter the 
 deed of gift, and that he revoked and an- 
 nulled the deed, is not admissible in evidence in 
 favor of his vendee of the premises, the same be- 
 ing made several years after the deed of gift was 
 executed and recorded. 
 
 7. It is not incumbent upon the court to spec- 
 ify in his charge to the jury what facts and cir- 
 cumstances would negative the presumption that 
 a duly recorded deed was delivered, or to go over 
 the various facts and circumstances in the evi- 
 dence tending to negative that presumption, there 
 bei ng no request to do so, and the court referring 
 the jury in general terms to the evidence on the 
 subject. 
 
 8. The evidence warranted the verdict. 
 
 [Syllabus by the Court.) 
 
 Error frum superior coiii't, Pike county ; 
 James S. Boyiiton, Judge. 
 
 S. N. Wooilvi'arr], for plaintiff in error. 
 Claude Worrill and B. F. McLaughlin, for 
 defendant in error. 
 
 PER CURIAM. Judgment affirmed. 
 
 287 
 
Case No. ItIO] 
 
 PEOOr. 
 
 WEAVER V. SHIPLEY et al. 
 
 (27 N. E. 146, 127 Ind. 526.) 
 
 Supreme Court of Indiana. March 31, 1891. 
 
 Appeal from circuit court, Tippecanoe 
 countj'; D. P. Vinton, Judge. 
 
 Jay H. Ad.inis and Caffroth & Stuart, 
 for appellant. Wallace & Buird, for ap- 
 pellees. 
 
 MILLER, J. The appellees commenced 
 this action to enjoin the appellant, Elmore 
 Weaver, and one Bahlah W. Weaver, from 
 interfering with certain premises which it 
 was alleged the appellees and one Under- 
 hill had leased from said Bahlah W. Weav- 
 er. The defendants answered by a general 
 denial. There was a trial by the court, and 
 finding against the appellant, Elmore 
 Weaver, and judgment rendered against 
 him enjoining him from Interfering with 
 theleased premises, and for $100 damages, 
 and in favor of Bahlah W. Weaver for his 
 costs. The appellant, Elmore Weaver, 
 assigns error as follows: (1) Because the 
 court erred in overruling his separate de- 
 murrer to the amended complaint,; (2) be- 
 cause the court erred in its conclusions of 
 law, and each of .them ; (3) because the 
 court erred in overruling his written mo- 
 tion for a new trial ; (4) because the court 
 erred in overrulina: his motion to modify 
 the judgment; (5) because the court erred 
 in overruling his motion in arrest of judg- 
 ment; (6) because the amended complaint 
 does not state facts sufficient to constitute 
 a cause of action against him. 
 
 The material allegations of the com- 
 plaint, omitting descriptions and formal 
 parts, are that on the 1st day of March, 
 18S8, the plaintiffs and defendant Underbill 
 were desirous of procuring ground upon 
 which to erect a tiie-mill for the manufact- 
 ure of tile, and from which to obtain clay 
 to be used in such manufacture; that on 
 that day they applied to the defendant 
 Bahlah W. Weaver, who was the owner of 
 the real estate, to lease the same for that 
 purpose; that on said day the plaintiffs 
 and Underhill, and the defendant Bahlah 
 W. Weaver, entered into an agreement, 
 whereby said Bahlah agreed to and did 
 lease to them for the term of 10 years, for 
 thepurposes aforesaid, three several tracts 
 of real estate lying adjoining and contigu- 
 ous to each other, for which they were to 
 pay him as rent $75 per year, in tile, at the 
 market price; that, at and prior to the 
 maliing of said lease, the plaintiffs and 
 SHid Weaver went upon and over the three 
 tracts of land so leased, and mutually 
 pointed out and agreed upon the location 
 of the same; that It was agreed as a part 
 of the contract that tlie plaintiffs were to 
 have all the c.lay suitable for tile upon the 
 three-cornered tract which they might use 
 during the terms of the lease, and, if thej* 
 needed it, all the clay on all the tracts of 
 land, but they were to use and occupy no 
 more of the land or clay than they needed 
 for use during the term of the lease; that 
 after they had agreed upon the terms of 
 said lease and had pointed out and 
 agreed upon and located by actual view 
 the three tracts of land, they attempted to 
 reduce said contract of lease to writing, 
 and attempted to describe therein the said 
 
 288 
 
 land leased to them, and that they did sign 
 and execute a written agreement of lease 
 in which tliej attempted to describe, and 
 thought thej- had sufficiently described, 
 each of the tracts of land so pointed out, 
 located, agreed upon, and leased as afore- 
 said, which written contract is in the 
 words and figures following, to-wit: 
 "March the first, 1883. Articles of agree ■ 
 ment made and entered into between B. 
 W. Weaver and James Shipley, Allen 
 Shipley, and William Underhill, to-wit: 
 B. W. Weaver agrees to rent to the par- 
 ties of the second part ground to set a 
 tile-mill and shedding and kiln, not to 
 exceed (4) acres of ground, it being in 
 the north-west corner of the north-east 
 quarter of the south-east quarter of sec- 
 tion (27,) town (24,) range (3) west; also 
 a strip of land ten feet wide, on the west 
 side of the east line running north and 
 south, for the purpose of making tile, it 
 being east side of the north-west quarter 
 of the south-east quarter section (27,) 
 town (24,) range (8) west; also a three- 
 cornered piece in the north-east corner of 
 the last-described land ; and to have all 
 the clay they want for tile in the three- 
 cornered piece, keeping south line parallel 
 with the congressional survey of the land; 
 and also one house and stable and garden 
 and smoke-house, the last-described prop- 
 erty in the south-westcorner of the south- 
 east quarter section (27,1 town (24,) range 
 (3) west. This lease is to run ten years 
 from date. The parties of the second part 
 agree to pay the party of the first part 
 seventy-five dollars annually in tile, at 
 the market price of such tile at the kiln as 
 the part.y of the first part may choose. 
 If the parties of the second part, failing to 
 pay the amount, forfeit all rights to the 
 above-named premises, and the parties of 
 the second part want a way out to the 
 east road of the woods pasture, they must 
 hang a good and substantial gate, and 
 keep the same shut. B. W. Weaver. 
 James Shipley. Allen J. Sbipley.' Wm. 
 Underbill." That immediately after the 
 making of said contract, and the execu- 
 tion of said lease, and in pursuance there- 
 of, they entered upon and took possession 
 of all said real estate pointed out, and re- 
 lying upon said contract, and their abili- 
 ty to hold all of said lands for the term 
 agreed upon, they, with the knowledge 
 and consent of said Weaver, proceeded to 
 and did erect various buildings of a per- 
 manent nature, particularly described, 
 and also constructed a barb-wire fence 
 around the tract, costing in the aggregate 
 in the neighborhood of $2,700; that after 
 the erection of said mill and other build- 
 ings, and during the year 1883, the plain- 
 tifls began to make, and ever since have 
 made and sold, large quantities of tile, 
 and with the knowledge and consent of 
 said Bahlah W. Weaver they entered up- 
 on the three-cornered tract, and have ever 
 since continued to take clay therefrom, 
 and use the same in the construction of 
 tile, with the knowledge and consent of 
 Bahlah W. Weaver and Elmore Weaver; 
 that they have only removed the clay 
 from a half acre of said three-cornered 
 piece; that last fall Bahlah W.for the first 
 time intimated that the plaintiffs had no 
 
ORAL. EVIDENCE ACCOMPANYING WKITTEN DOCUMENTS. [Case No, 
 
 100 
 
 right to remove clay from the so-called 
 three-cornered piece ol land, but they con- 
 tinued without molestation to remove 
 clay therefrom until the close of the tile 
 season; that Elmore Weaver claims to 
 have purcliased, in February, 1887, from 
 Bahlah W., twenty acres of land, covering 
 and including the so-called three-cornered 
 tract of land, and since that time he and 
 the defendant Bahlah have forbidden the 
 plaintiffs from removing clay therefrom: 
 that Underbill has sold and assigned his 
 interest in the contract and lease to the 
 plaintiffs; that Elmore Weaver, who is 
 the son of Bahlah W., had full knowl- 
 edge of the making of the contract and 
 lease at the time of the execution thereof, 
 and of the exact location of said three- 
 cornered triJct, and knew where the same 
 was located and agreed upon by the par- 
 ties, and had full knowledge of the im- 
 ljro%'ements, and that they had made the 
 same on the faith of said conti-act and 
 lease, and full knowledge of the fact that 
 it was absolutely necessary for them to 
 have this tract in order to carry on their 
 tile business, at the time he purchased the 
 land; that theplaintifts had no other place 
 from which to obtain clay for their tile- 
 mill, and that they cannot in that neigh- 
 borhood procure any other place from 
 which to obtain the same, and that unless 
 they can obtain said clay tl^feir contract of 
 lease will become wholly valueless, and 
 their tile-mill and improvements will be 
 wholly lost; that their lease has six years 
 to run, and there is an abundance of clay 
 in the three-cornered piece to last during 
 the time it has to run; that the defend- 
 ant Elmore Weaver forbade the plaintiffs 
 from entering on said thr(»e-cornered piece 
 of land, or removing clay therefrom, and 
 tore down the gate and bridge-way 
 which the plaintiflshadconstrnctedforthe 
 purpose of driving to said tract of land, 
 and set fire to the bridge; and that he 
 now threatens that he will, by force and 
 violence, keep theplaintifts awaj^from said 
 tract, and from removing claj' therefrom; 
 and that the defendants Weaver and 
 Weaver are, by force and threats of per- 
 sonal violence, preventing the plaintiffs 
 from entering upon or removing clay from 
 said tract, and will continue to do so un 
 less enjoined by this court, to their irrep- 
 arable damage; that the plaintiffs have 
 fully complied with all the agreements 
 and stipulations on their part, and have 
 promptly and fully paid their rent as 
 stipulated for in said lease, and that they 
 have been damaged in the sum of .$2,0(10. 
 The prayer is for damages and an injunc- 
 tion. 
 
 The objection to the sufficiency of the 
 complaint pointed out by the appellant is 
 that the description of the land leased 
 from Bahlah W. Weaver, as set out in the 
 written lease, is so indefinite and uncer- 
 tain as to render th9 contract void. More 
 fully stated, the position of the appellant 
 is (i) that the lea.se is void because there 
 is no description of the land proposed to 
 be leased, and that this defect cannot be 
 supplied by parol evidence; and in support 
 of their position they cite Dingraan v. 
 Kellv, 7 Ind. 717; Howell v.Zerbee, 26 Ind. 
 214;'Pulse v. Miller, 81 Ind. 191; Baldwin 
 
 WILGUS.BV. — 19 
 
 v. Kerlin,4C Ind. 426; Miller v. Campbell, 
 52 Ind. 12."». And (2) that, the lessee hav- 
 ing taken possession by virtue of the writ- 
 ten agreement, he becomes a tenant by 
 virtue of his acts, and such tenancy is 
 from year to year. Railsback v. Waike, 
 81 Ind. 409; Friedhoff v. Smith, 13 Neb. 
 5, 12 N. W. Rep. 820; Vinz v. Beatty, 61 
 Wis. 645, 21 N. W. Rep. 787. (3) That as 
 to the "three-cornered" tract, the lease be- 
 ing void, the right to take clay was a 
 mere license, not assignable and revocable 
 at pleasure. Armstrong v. Lawson, 73 
 Ind. 498. The authorities cited establish 
 the proposition that a lease or contract 
 for the conveyance of land must, to be en- 
 forced, contain a description of the land; 
 that where the description, so far as it 
 goes, is consistent, but does not appear 
 to be complete, it may be completed by 
 extrinsic parol evidence, i)rovided a new 
 description is not introduced into the 
 body of the contract; but that courts 
 never jjermit parol evidence to be given 
 first to describe the land, and ther to ap- 
 ply the description, nor to contradict the 
 written agreement, but only in aid of it. 
 Baldwin v. Kerlin, supra. Tested by this 
 rule, the description of the "three-cor- 
 nered "tract of land seems to be so defi- 
 cient as to require an entirely new descrip- 
 tion to identify the land, and this cannot 
 be furnished by parol evidence, as it 
 would be substantially the making of a 
 new contract by parol, which is forbidden 
 by the statute of frauds. If this suit was 
 an action to enforce a contract entirely 
 executory in its character, the authorities 
 cited would be conclusive against the ap- 
 pellees. It remains, therefore, to inquire as 
 to the effect of the partial performance 
 set out in the complaint, and proven on 
 the trial. The complaint proceeds upon 
 the theory that the parties made a parol 
 contract for the lease of the lands for tlie 
 period of 10 years ; that the land to be 
 let was identified and pointed out, and 
 'all the terms and stipulations of thfi con- 
 tract fully understood and agreed to, and 
 that afterwards the parties undertook to 
 reduce their agreement to writing, but 
 failed to sufficiently describe the land, and 
 that, therefore, the contract, resting ijart- 
 ly in writing and partly by parol, was in 
 law a parol contract, (Pulse v. Miller, 81 
 Ind. 191; Board v. Shipley, 77 Ind. 553;) 
 and as such parol contract it was taken 
 out of the operation of the statute of 
 frauds by part performance. The right, 
 in a proper case, to enforce such a con- 
 tract, is impliedly admitted in Railsback 
 V. Walke, 81 Ind. 409. In Pom. Spec. Perf. 
 § 101, it is said : "As the statute speaks of 
 lands, or any interest in or concerning 
 them, contracts to lease are both included 
 within its terms, and are capable of being 
 part performed so as to be taken out of the 
 operation of the statute." The rase of 
 Fery v. Pfeiffer, 18 Wis. ,535, is much in 
 point, where an agreement for a lease was 
 taken out of the operation of the statute 
 by partial performance. Also Seaman v. 
 Ascherman, (Wis.) 8 N. W. Rep. 818; Wal- 
 lace v.Scoggin, (Or.) 21Pac.Rep. 558: Mor- 
 rison V. Herrick, 130 111. 631, 22 N. E. Rep. 
 537; Martin v. Patterson, (S. 0.) 2 S. E. 
 Rep. 859. Inthelanguageof Beukshire,.!.. 
 
 289 
 
Case No. 100] 
 
 PEOOP. 
 
 in Swales v. Jackson, 26 N. E. Eep. 62, 
 (this term,) tlie appellees having "entered 
 into possession of the real estate nnder 
 the contract, and havins: made lasting 
 and valuable improvements, it would be 
 inequitable and a fraud to withhold the 
 title." Jul Wood, Landl. & Ten. ij 2UU,it!S 
 said that "a court of equity will" decree a 
 specific performance of such contract^, not- 
 withstanding the statute of frauds, when 
 there has been such a part performance of 
 the agreement that to refuse it would 
 work a fraud upon the party seeking Its 
 specific execution. " 
 
 The only infirmity in the written lease 
 is its failure to sufficiently describe the 
 leased premises. We are informed by tlu- 
 complaint that the premises were pointed 
 out and agreed upon at and prior to the 
 making of the contract, and that soon 
 after the appellees took jjossession of the 
 same, and made lasting and valuable im- 
 provements, such as they would not have 
 made had they not relied upon the agree- 
 ment to hold the same for the full period 
 of 10 years. The agreement as to the 
 boundaries of the leased land, and its oc- 
 cupancy for four years, with the knowl- 
 edge and consent of the landlord, is an im- 
 portant element in the partial perform- 
 ance relied upon: for it furnishes clear and 
 satisfactory evidence in favorof the appel- 
 lees, upon the onl.v propo.sition not estab- 
 lished by the written instrument. The 
 misdescription of the leased propert.y 
 would not have furnished the tenants 
 jvith a defense, if tliey had been sued by 
 the landlord for rent for the time they oc- 
 cupied the property. Whipple v Shewal- 
 ter, 91 Ind. 114. The practical location of 
 the boundaries of the leased premises, 
 coupled with the subsequent i)ossesgion of 
 the same by the tenants, by and with the 
 landlord's knowledge and consent, is a 
 sufficient location of the property. Jack- 
 son v. Perrine, 85 N. J. Law, 137; Lush v. 
 Druse, 4 Wend. 313; Pierce v. Minlurn, 1 
 Cal. 470; Richards v. Snider, 11 Or. 197,3 
 Pac. Kep. 177. \V hile the rules of construc- 
 tion to be applied in identifying bound- 
 aries in a lease are the same as those ap- 
 plicable to grants in fee, it is common, es- 
 pecially in the leasing of farm lands, to use 
 less accuracy in the description of the prem- 
 ises, than in deeds conveying the fee; and 
 where the parties themselves put a prac- 
 tical construction on thecon tract, and the 
 premises are taken possession or and occu- 
 pied under the lease b.y the consent of 
 both parties. It should be sufficient to 
 take the contract out of the operation of 
 the statute, where the only infirmity in 
 
 290 
 
 the contract is the insufficiency of the de- 
 scription of the land. The court did not 
 err in overruling the demurrer to the com- 
 plaint. 
 
 The court made a special finding of the 
 facts and conclusions of law ; but, as the 
 record fails to show that it was at the re- 
 quest of either of the parties, it is to be 
 treated as a general finding, ( Hasselman 
 V.Allen, 42 Ind. 257; 1 Work, Pr. § 804;) 
 and consequently the court did not err in 
 its conclusions of law. 
 
 The only other points urgedin their brief 
 by counsel for the appellant are that the 
 court erred in admitting illegal evidence. 
 The first relates to the action of the court 
 in permitting the appellees to read in evi- 
 dence the exhibit purporting to be a copy 
 of the written lease without first showing 
 the loss of the original. It appears that 
 oriarinally but one copy was executed, but 
 afterwards the parties met, and drew off 
 a cop.v of the original, and all the parties 
 signed it, and the copy so made was de- 
 livered to the appellees, being the one 
 given in evidence. The new paper thus 
 made was, to all Intents and purposes, a 
 duplicate, and was delivered to the appel- 
 lees to subserve the jiurposes of an original 
 instrument. At all events, it was a writ- 
 ten instrument signed b,y Bahlali VV. 
 Weaver, and admissible against him and 
 his privies in ^estate. 
 
 Objection is also made to the action of 
 the court in permitting witnesses to state 
 what tlie parties to the lease said to each 
 other prior to the execution of the written 
 agreement which led to its execution. The 
 portion of the record where these ques- 
 tions and answers are set out has not 
 been pointed out; but, if they had been, 
 we are unable to see how the court could 
 have held the complaint good, and then 
 prevented the plaintiffs from introducing 
 the only class of evidence by which it could 
 be proven. 
 
 Lastly, it is said that evidence should 
 not have been received showing that there 
 was no clay in the neighborhood suitable 
 for making tile, except in one ol the tracts 
 leased. No objection is pointedout, ex- 
 cept that it was immaterial. The evi- 
 dence tended d.i-.cuy Lo e^iaulisli one oi 
 the material allegations of the complaint, 
 and was not only competent, but impor- 
 tant, to show the condition the appellees 
 were left in by the interference of the ap- 
 pellant, and also to fix the damages they 
 were entitled to recover because of the in- 
 terference with their leahcii prumihCK. >ie 
 tind no error in the record. Therefore the 
 judgment is affirmed. 
 
ATTESTED DOCUMENTS TO BE PROVED BY WITNESS, [Case No. 101 
 
 RICHMOND & D. R. CO. v. JONES. 
 
 (9 South. 276, 92 Ala. 218.) 
 
 Supreme Court of Alabama. April 16, 1891. 
 
 Appeal from circuit court, Jefferson 
 count.y ; Jambs B. Hkad, Judge. 
 
 Action by D. W. Jones against the Eich- 
 monj & Danville Railroad Company lor 
 personal injuries allesjed to have been 
 caused by defendant's noglisence. There 
 were three counts in the complaint. Tbe 
 first connt sought to recover on the 
 ground that the injuries were caused by 
 reason of defects in the condition of the 
 ways, works, machinery, or plant con- 
 nectcil with or used in the enipl ^y o' de- 
 fendant. In the second count of the com- 
 plaint the plaintiff based his right of re- 
 covery on the alleged negligence of the em- 
 ployes of the defendant who had charge 
 and control of the train by which plain- 
 tiff was injured, and at the time of the ac- 
 cident. The third count was for failure of 
 the fireman on defendant's engine to 
 transmit plaintiff's signal to the engineer. 
 The defendant pleaded the general issue, 
 and by special plea pleaded a written con- 
 tract of employment entered into between 
 the plaintiff and the defendant on Febru- 
 ary 17, 1890, — not quitetwo months before 
 the accident,— one of the terms of which 
 was in words as follows: "Rule 23. The 
 conditions of employment by the compa- 
 nyare that the regularcompensation paid 
 for the services of employes shall cover all 
 risks incurred and liability to accident from 
 any cause whatever while in the service 
 of this company. If an employe is disa- 
 bled by accident or other cause, tbe right 
 toclaim compensation for injuries will not 
 be recognized. Allowances, when mad" in 
 such cases, will be as a gi-atuity, justified 
 by the circumstances of the case, and pre- 
 vious good conduct of the party. The 
 fact of remaining in the service of the com- 
 pany will be considered acceptance of 
 these conditions. All officers employing 
 men to work for this company will have 
 these conditions distinctly understood and 
 agreed by each employe before he enters 
 the service of the company." A demurrer 
 to the plea was sustained. There was 
 judgment for the plaintiff, and defendant 
 appeals. 
 
 James Weatherly, for appellant. Bow- 
 man & Harsh, for appellee. 
 
 COLEMAN, J. The suit was bronght by 
 appellee to recover damages for personal 
 injury. For defense to the action by way 
 of special plea the defendant set up rule 
 No. 2:i, which will be found in the state- 
 ment of the facts of the case. To this plea 
 a demurrer was sustained. In the case of 
 Railroad Co. v. Orr, (Ala.) 8 South. Rep. 
 360, it is declared that "railroads cannot 
 stipulate for immunity from liability for 
 their own wrongful negligence. A rule 
 which imposes upon an employe to look 
 after and be responsible for his own safety 
 contravenes tlie law itself which fixes the 
 liability of railroads for negligence caus- 
 ing injury or death to their employes." 
 The demurrer was properly sustained. 
 
 It is the duty of railroacls to keep them- 
 selves reasonably abreast with improved 
 methods so as to lessen the danger attend- 
 
 ant on the service, and, while they are not 
 required to adopt every new invention, 
 it is their duty to adopt such as ai'e in or- 
 dinary use by prudently -conducted roads 
 engaged in like business and surrounded 
 by like circumstances. Railway Co v. 
 Propst, 83 Ala. .^18, 3 South. Rep. 704. 
 There have been such advancements in sci- 
 ence for the control of steam, and im- 
 provements in the macliinery and appli- 
 ances used by railroads for tlie better se- 
 curity of life, limb, and pi'operty, it would 
 be inexcusable to continue the use of old 
 methods, machinery, and appliances 
 known to be attended with more or less 
 danger, when the danger could be reason- 
 ably avoided by the adoption of the new- 
 er, and which are in general used by well- 
 regulated railroads. Not that it is re- 
 quired of them to adopt every new inden- 
 tion useful in the business, although it 
 may serve to lessen danger; but it is tlieir 
 duty to discontinue old methods which are 
 insecure, and to adopt such improve- 
 ments and advancements as are in or- 
 dinary use by prudently-conducted roads 
 engaged in like business and surrounded 
 by like circumstances. Railroad Co. v. Al- 
 len, 78 Ala. 494. .'Applying this principle in 
 the case of Railway Co. v. Propst, 83 Ala. 
 526, 3 South. Rep. 764, the court neld that, 
 "if the draw-heads and bumpers used by 
 defendant were such as were employed by 
 many well-conducted roads, this would 
 repel all imputation of negligence founded 
 on their mere structure, although other 
 roads, even a majority of them, adopted 
 a different pattern. Witnesses who have 
 sufficient knowledge of the subject may 
 testify to the general rules of railroads 
 on the subject." The same general princi- 
 ple is declared in the case of Railroad (>o. 
 V. Hall, 87 Ala. 722, 6 South. Rep. 277. Un- 
 der these rules, we think it was proper to 
 inquire whether thedraw-headsused by de- 
 fendant when tbe injury oc(mrred were 
 such as were usually used on well-resulat- 
 ed railroads. The witnesses were shown 
 to be experts, and were competent to give 
 such testimony. It may be laid down 
 generally that objections to evidence, 
 wliich do not particularize or define the 
 grounds of objection, may be overruled. 
 The court is not bound to cast about for 
 the grounds upon which, in the minds of 
 counsel, they are rested. Dryer v. Lewis, 
 57 Ala. 551; Steele v. Tutwiler, Id. 113; 
 Oil Co. V. Perry, 85 Ala. 164, 4 South. Rep. 
 635. The rule is equally well established 
 that a general objection to evidence, a part 
 of which is legal, mav be overruled. Fon- 
 ville V. State, (Ala.) 8 South. Rep. OSS; Gid- 
 dens V. Boiling, (Ala.) 9 South. Re[). 274, 
 (present terra;) Warren v. Wagner, 75 
 Ala. 18''; Chambers v. Ringstaff, 69 Ala. 
 140. Most of the objections to the evi- 
 dence come under one or the other of these 
 principles, and there was no available er- 
 ror in overruling them. 
 
 Defendant's counsel, having the paper, 
 Exhibit A, in his hands, handed it to 
 plaintiff wliile on cross-examination as a 
 witness, and asked him if he signed it. 
 Plaintiff's counsel requested to see the 
 paper, which request defendant's counsel 
 refused, saying he had not offered it in evi- 
 dence. The court stated that it should be 
 
 291 
 
Case No. 101] 
 
 PROOF. 
 
 shown to plaintiff's counsel when the pa- 
 per was offered in evidence. Plaintiff tlien 
 answered that it was hi.'s sijjnature. The 
 defendant afterwards offered the papei' in 
 evidence, to which the plaintiff ohjectPU, 
 on the grounds that there was an attest- 
 ing witness, and the execution of the pa- 
 pei- had not been properly proven. Op- 
 posing counsel have the right to object to 
 lmf>roper questions to witue.sses, and the 
 rules of practice require them to specify 
 the grounds of objection. An.y advantage 
 taken, by which a party is deprived of tlie 
 exercise of th\s right in the trial of a case 
 without neglect or fault on liis part, 
 should not be used to his prejudice. If de- 
 fendant did not purpose to introduce the 
 paper in evidence, the question to the wit- 
 ness was improper. It it was the inten- 
 tion to offer it in evidence, then it should 
 have been submitted to opposing counsel, 
 I so that, if he wished to object, the objec- 
 ' tion fould be made in proper form. The 
 ruling of the court sustaining the objec- 
 tion to the introduction of the paper is 
 supported also on other principles. The 
 case of EUerson v. State, 69 Ala. 3, after 
 stating the general rule that the attest- 
 ing witness should be called to prove the 
 I execution of an instrument, declares that 
 the rule extends to every private writing 
 1 which the parties may have chosen to 
 Icause to be attested. The witness is con- 
 \sidered as the person selected and referred 
 to for the purpose of proving the fact of 
 execution, and the facts and circumstan- 
 ces attending it; citing 1 Greenl. Ev. § .509. 
 So long as the evidence of the subscribing 
 witness can be produced, it is the be.wt — 
 the primary and only— evidence of execu- 
 tion. The admissions or declarations of 
 the parties themselves to the instrument 
 (not made in open court, or in writing, 
 for the purpose of a trial, when they are 
 the parties litigant) are not admissible for 
 this purpoise. Russell v. Walker, 73 Ala. 
 317. It is contended that Exhibit A was 
 not offered in evidence as a contract 
 binding upon plaintiff, but merely to es- 
 tablish the existence of rule 20, and notice 
 to plaintiff, and for this purpose it was 
 admissible. The proposition contended 
 292 
 
 for necessarily must be that, the rule be- 
 ing incorporated in the contract as a part 
 of it, its existence and materiality as evi- 
 dence against the plaintiff may be estab- 
 lished by offering in evidence the contract 
 without legal proof of its execution. The 
 reasoning is not sound. To establish the 
 existence of the rule and notice thereof the 
 defendant was forced to rely upon an un- 
 proven contract. If the contract is ex- 
 cluded because its existence is not proven, 
 it cannot be said that admissions which 
 alone appear in the contract have been 
 proven. If plaintiff had not admitted his 
 signature, the paper would not have been 
 offered in evidence. Thendmissionhaving 
 been improperly obtained, and the execu- 
 tion of the paper not proven, it was not 
 a.dmissible for any purpose. ~^ 
 
 There is evidence that the running- 
 board upon which the evidence tends to 
 show the- plaintiff was standing when in- 
 jured "was put there for the switchmen 
 to ride on. " If this evidence is true, and it 
 was placed there to assist switchmen in 
 the performance of their duties, and they 
 were expected to use it for that purpose, 
 and the plaintiff in the discharge of his 
 duty as switchman was upon the run- 
 ning-board, rule No. 20 could not be in- 
 voked to defeat plaintiff's action, so far as 
 the rule prohibits switchmen from going 
 between the cars to couple or uncouple 
 them. Hissong v. Kailroad Co., (Ala.) 8 
 South. Rep. 776; Railroad Co. v. Walters, 
 (Ala.) Id. 357. 
 
 The evidence tended to show that it was 
 the duty of firemen to receive signals from 
 switchmen, and transmit them to the en- 
 gineer. If the injury to plaintiff was 
 caused by negligence of the fireman in 
 transmitting the signals to the engineer, 
 given to him for that purpose by the 
 plaintiff in the discharge of his duty as a 
 switchman, such injury is clearly within 
 the provision of the employe's act. 
 
 There was no error in the charges given 
 by the court, and those asked for by the 
 defendant, which were refused, were not in 
 accord with the principles of law herein de- 
 clared, and were properly refused. 
 
 Affirined. 
 
ATTESTED DOCUMENTS TO BE TKOVED BY WITNESS. [Case No. 102 
 
 STEBBINS V. DUNCAN et al. 
 
 (2 Sup. Ct. 313, 108 U. S. 32.) 
 
 Supreme Court of the United States. March 5, 
 
 1883. 
 
 In error to the circuit court of the United 
 States for the Northern district of Illinois. 
 
 Geo. O. Ide and .John W. Ross, for plaintiff 
 in error. Thomas Dent, for defendants in er- 
 ror. 
 
 Mr. .lustice WOODS, delivered the opinion 
 of the court. 
 
 This was an action of ejectment, originally 
 brought by William B. Morris, in the circuit 
 court of the United States for the Northern 
 district of Illinois, against Howard Stebbins, 
 the plaintiff in error, for the recovery of a 
 quarter section of land, originally situate in 
 Madison county. 111., but, when the suit was 
 begun, situate in Stark county. Before the 
 final trial of the cause, to-wit, on January 
 22, 1879, the death ot the plaintiff was sug- 
 gested, and the devisees named in the last 
 will were made parties, as apjiears by the fol- 
 \ lowing entry upon the record of the court: 
 ''• "Now couie the parties by their attorneys, 
 and Thomas Dent, Esq., the attorney of tlie 
 plaintiff, suggests to the court the death of 
 William B. Jloriis, and that Maria L. Dun- 
 can, Harriet B. Cooledge, and Helen Cooledge 
 are the devisees of said deceased; and, on mo- 
 tion of the plaintiff's attorney, it is ordered 
 by the court that said devisees, Maria L. 
 Duncan, .Harriet B. Cooledge, and Helen 
 Cooledge, be made plaintiffs herein." 
 
 The defendant pleaded the general issue. 
 The cause was tried by a jury, who returned 
 a verdict for the plaintiffs, upon which judg- 
 ment was rendered in their favor for the 
 lands in controversy. To reverse that judg- 
 ment, the defendant in the circuit court has 
 brought the case here upon writ of error. A 
 bill of exceptions was taken upon the trial, 
 from which the following statement of the 
 case is made: 
 
 Disregarding the order in which the testi- 
 mony was introduced, and arranging it 
 chronologically, the ijlaintiffs below, to prove 
 title in themselves, offered the following evi- 
 dence : 
 
 (1) An exemplification of a patent from the 
 United States to one John J. Dunbar for the 
 lands in controversy; (2) a certified copy of 
 a deed for the same lands from John J. Dun- 
 bar to William Prout, 'dated January 6, 1818, 
 said copy being certilied to have been made 
 February 3, 1875; (3) a certified copy of a 
 deed for the same lands from William Front 
 to Joseph Duncan, dated Jlay 2, 183-1, and 
 recorded in said county October 29, 1838; (4) 
 certified copy of a decree in chancery in the 
 United States circuit court for the district of 
 Illinois, dated June 9, 1846, rendered in a 
 cause wherein the United States were com- 
 plainants and the widow and heirs of Joseph 
 Duncan defendants, and of the proceedings 
 imder said decree by which the premises in 
 
 controversy in this suit were sold to the Unit- 
 ed States; (5) certified copy of the deed to 
 the United States under said decree for the 
 same premises, made by William Thomas, 
 commissioner, dated August 12, 1840, and re- 
 corded January 17, 1848; (6) certified copy 
 of ,a deed for the same premises, dated De- 
 cember 28, 1847, and recorded June 5, 1848, to 
 "S^'illiam W. Corcoran, executed by R. H. Gil- 
 lett, solicitor of the treasury, in behalf of the 
 United States; (7) certified copy of a deed for 
 the same premises, dated December 20, 1867, 
 and recorded March 12, 1868, from William 
 W. Corcoran to ^A'illiam B. Morris; (8) certi- 
 fied copy of the will of William B. Morris and 
 of the probate thereof, from which it appear- 
 ed that Maria L. Duncan, Harriet B. Cool- 
 edge, and Helen L. Cooledge, the plaintiffs, 
 were his residuary legatees. 
 
 To sustain the title, which the plaintiffs 
 contended that they derived through these 
 documents, they offered other evidence, which 
 will be noticed hereafter, but they offered no 
 evidence of the death of AA'illiam B. Mon-is, 
 the original plaintiff, since the certified copy 
 of his will and of the probate thereof, and the 
 letters testamentary issued thereon. 
 
 The defendant Stebbins, to show title in 
 his lessor, offered in evidence the following 
 title papers: 
 
 (1) An exemplification of a patent by the 
 United States to John J. Dunbar, dated Janu- 
 ary (i, 1818, for the lands in controversy; (2) 
 a certified copy from the recorder's otiice in 
 Stark county. 111., in which county the land 
 is situate, of a deed, dated January 6, 1818, 
 from John .T. Dunbar to John Frank, convey- 
 ing said land in fee, and recorded in said 
 county June 18. 1870; (3) other title deeds, 
 by which the title passed from the heirs of 
 John Frank to Benson S. Scott; (4) the stipu- 
 lation of plaintiffs that Stebbins, the defend- 
 ant, was in possession of the land in contro- 
 versy at the commencement of the suit under 
 said Benson S. Scott as his tenant only, and, 
 at no time, under any other claim. 
 
 No exceptions were taken by the plaintiffs 
 to the introduction of these title papers by 
 the defendant. 
 
 The real contest in the case was between 
 the title of the plaintiffs deduced through the 
 deed of Dunbar to Prout, and their subse- 
 quent muniments of title put in evidence, and 
 the title of defendant derived through the 
 deed of Dunbar to Frank, and the subsequent 
 conveyances put in evidence by him. 
 
 The defendant was in possession of the 
 premises sued for. His evidence, which was 
 not excepted to, gave him a prima facie title, 
 and, unless the plaintiffs showed a better title, 
 they should not have recovered the lands 
 in controversy. It is, therefore, only neces- 
 sary to consider the title which the plaintiffs 
 claim to have shown in themselves. The er- 
 rors assigned all relate to the admission by 
 the court below of the evidence offered by the 
 plaintilts to sustain their title, and the charge 
 of the court to the jury upon the effect of 
 
 293 
 
Case Ko. 102] 
 
 PROOF. 
 
 that evidence. These assignments of error 
 we shall now proceed to consider. 
 
 The court admitted as evidence tending to 
 prove the death of William B. Morris, the 
 
 ) original plaintiff, the duly-certified copy of 
 his will, and of the probate thereof in the 
 probate court of the county of SufColk, in the 
 state of Massachusetts, and of the letters tes- 
 tamentary issued thereon, and the court char- 
 ged the jury, in effect, that this evidence, un- 
 contradicted, was sufficient to show the death 
 of Morris. The admission of this evidence 
 and the charge of the court thereon are as- 
 signed for error. 
 
 Whether the evidence objected to was or 
 was not competent and sufficient to prove 
 the death of Morris, it was clearly compe- 
 tent, the death of Morris being proved, to 
 show title in the plaintiffs. The objection 
 to its admissibility must, therefore, fall, if 
 there was other evidence to show prima 
 facie the death of Morris. We think that 
 . the suggestion in the record of the death of 
 Morris, and the order of the court making 
 his devisees parties, was sufficient for this 
 purpose. 
 
 Section 10 of chapter 1 of the Revised Stat- 
 utes of Illinois, p. 94 (Hurd, 1880), provides 
 that "when there is but one plaintiff, peti- 
 tioner, or complainant in an action, proceed- 
 ing, or complaint in law or equity, and he 
 shall die before final judgment or decree, 
 such action, proceeding, or complaint shall 
 not, on that account, abate if the cause of 
 action survive to the heir, devisee, executor, 
 or administrator of such decedent; but any 
 of such to whom the cause of action shall 
 survive may, by suggesting such death upon 
 the record, be substituted as plaintifE, peti- 
 tioner, or complainant, and prosecute the 
 same as in other cases." 
 
 The suggestion of the death of MoitIs, the 
 sole plaintiff, was made in this case, as the 
 record shows, by counsel for the devisees, 
 both parties being present, and the court 
 made the order, without objection, that the 
 devisees be made plaintiffs in the case. We 
 think that this suggestion, made without ob- 
 jection, and the order of the court thereon, 
 settles prima facie, for the purposes of this 
 case, the fact of the death of the original 
 plaintiff. The statute provides upon whose 
 suggestion of the death of a sole party plain- 
 tiff the court shall make his heir or devisee, 
 etc., plaintiff in his stead. It certainly can- 
 not be the fair construction of the statute 
 that a party may stand by and see the sug- 
 gestion of the death of the opposijig party 
 entered of record, and his heir or devisee 
 substituted In his stead, and upon final trial 
 require further proof of the death, at least 
 without some notice of his purpose to raise 
 that particular issue. The death of the 
 plaintiff, after the order of the court, may be 
 considered as settled between the parties for 
 that case, unless some motion is made or is- 
 sue raised on the part of the defendant by 
 which the fact of the death is controverted. 
 
 294 
 
 We have been referred to no decision of the 
 supreme court of Illinois where a different 
 rule has been announced. In the case of 
 Milllken v. Martin, 66 111. 17, cited by coun- 
 sel for defendant, the court merely decided 
 that where a party plaintiff had died and 
 his heirs were substituted in his place, they 
 must prove that the person under whom they 
 claimed was seized of the title and that 
 they were his heirs. But the report of the 
 case clearly shows that the point now under 
 consideration was neither decided nor touch- 
 ed. We think, therefore, that the ruling and 
 charge of the court below did not prejudice 
 the defendant. 
 
 The next assignment of error relates to the 
 admission in evidence by the court of the 
 certified copy of the deed from Dunbar to 
 iProut, and the testimony offered by the 
 [plaintifC to sustain such copy. The deed pur- 
 ported to be a conveyance, with covenants of 
 general warranty, by Dunbar to Prout, of the 
 land in controversy, for the consideration of 
 $80. It recited that Dunbar was the pat- 
 entee thereof, and set out the patent in full. 
 The following is a copy of the in testimonium 
 clause of the deed, of the signatures of the 
 grantor and witnesses, the acknowledgment, 
 affidavit of the grantor of his identity, his 
 receipt for the purchase money, memoran- 
 dum of registration, and certificate of the re- 
 corder of deeds for Madison county, 111.: 
 
 "In witness of all the foregoing I have here- 
 unto affixed my hand and seal, at Washing- 
 ton city, in the county of Washington and 
 District of Columbia, this sixth day of Jan- 
 uary, one thousand eight hundred and eight- 
 een. John J. Dunbar. [Seal.] 
 
 "Signed, sealed, and delivered in the pres- 
 ence of 
 
 "Samuel N. Smallwood. 
 "Joseph Cassin." 
 
 "District of Columbia, County of , ss.: 
 
 "Be it remembered that on this sixth day 
 of January, 1818, the above-named John J. 
 Dunbarr, who has signed, sealed, and deliv- 
 ered the above instrument of writing, per- 
 sonally came and appeared before us, the un- 
 dersigned justices of the peace, and acknowl- 
 edged, in due form of law, the same to be 
 his free act and deed, for the purposes there- 
 in set forth, and also gave his consent that 
 the same should be recorded whenever it 
 might be deemed necessary. In witness of 
 all which the said -^ has hereunto affix- 
 ed his name and has undersigned the same, 
 his 
 "John X J. Dunbarr. 
 mark. 
 "Acknowledged before 
 "Samuel N. Smallwood. 
 "Joseph Cassin." 
 
 "I, John J. Dunbarr, do declare upon oath 
 that I am the same person intended and 
 named in the above deed, dated the sixth 
 day of January, 1818, and more particularly 
 in the patent therein recited at length, and 
 
ATTESXEO DOCUMENTS TO BE PROVED BY WITNESS. [Case No. 102 
 
 further, that I was duly placed iu possession 
 of the patent for the land conveyed in the 
 above deed, by receiving the same from the 
 general land-office. 
 
 his 
 "John X J. Dunbarr. 
 mark. 
 "Swom and subscribed to before me this 
 seventh day of January, 1818. 
 
 "Samuel N. Smallwood." 
 "Received, this sixth day of January, 1818, 
 from William Prour, the sum of $80, being 
 the consideration money exjiressed in the 
 above deed. 
 
 his 
 "John X J. Dunbarr. 
 mark. 
 "Witness: Joseph Cassin. 
 "Recorded June 23, 1818." 
 
 "State of Illinois, Madison County, ss.: 
 
 "I, John D. Heisel, clerk of the circuit 
 court, and ex officio recorder of deeds within 
 and for Madison county, in the state of Il- 
 linois, do hereby certify the above and foi'e- 
 going to be a true, perfect, and complete 
 copy of an instrument of writing or deed of 
 conveyance now appearing of record at my 
 office in book E, pages 1.54, 155, and 156. In 
 witness whereof I have hereunto set my 
 hand and affixed the seal of our said court, 
 at office in the city of Edwardsville, this 
 third day of February, A. D. one thousand 
 eight hundred and seventy-five. 
 "[Seal.] John D. Heisel, Clerk." 
 
 The defendant below objected to the in- 
 troduction of said certified copy in evidence, 
 because the original deed was not so certified 
 and proven as to make a certified copy from 
 the record competent evidence, under the 
 laws of Illinois. 
 
 The court, without passing at that time up- 
 on the objection, and not then admitting said 
 writing in evidence as a certified copy, per- 
 mitted the plaintiffs, at their request, to 
 make the following proofs: 
 
 "And thereupon," as the bill of exceptions 
 states, "the plaintiffs proved, to-wit: 
 
 "(1) By Mr. Dent, one of the plaintiffs' 
 counsel, that said counsel had had in their 
 possession, prior to the great fire of October 
 8 and 9, 1871, in Chicago, an original deed 
 corresponding substantially in contents to 
 the writing offered in evidence, except that 
 there was not attached to it the official cer- 
 tificate, dated February 3, 1875; that he had 
 not compared said offered copy with said orig- 
 inal, but he, believed from recollection that 
 It corresponded with the original, and that 
 he had not made said alleged copy; that said 
 original deed had been sent to said counsel 
 in behalf of Wm. B. Morris, the then plain- 
 tiff, for use in this suit, and had been offered 
 in evidence on the first trial; that said orig- 
 inal deed had been burned up in the Chicago 
 fire of October 8 and 9, 1871; further, that 
 said original deed had been sent to Wash- 
 ington,- and attached as an exhibit to the 
 
 original depositions of E. J. Middleton and 
 George Collard, hereinafter mentioned, and 
 had subsequently been detached therefrom 
 by leave of the court, and returned to Wash- 
 ington for use in taking the depositions of 
 Henrietta Boone. 
 
 "(2) The plaintiffs further offered to read 
 in evidence a copy of tlie original depositions 
 of E. J. Middleton and George Collard, tak- 
 en de bene esse on September 21, 1870, at 
 M'ashington, D. C, to which the defendant 
 below objected. It was admitted that the 
 depositions had been correctly copied by an 
 attorney in the cause from the original dep- 
 ositions on file in the case; that the original 
 depositions, with the other files and records 
 of the court, were burned up in the fire 
 at Chicago of October, 1871; that no order 
 of the court had ever been made authorizing 
 the filing of said copy as a substitute for 
 the original depositions, and that no pro- 
 ceedings under any statute had been had 
 for the purpose of restoring said original, 
 but that after said fire the plaintiffs' coun- 
 sel had procured said copy from the coun- 
 sel of defendant, and, with his consent, had 
 placed it on file in this cause as a copy of 
 the original depositions. 
 
 "The court thereupon overruled each of 
 said objections to the reading of said copy 
 of the depositions, and permitted the con- 
 tents of said copy to be read in evidence, 
 which was done; to which decision of the 
 coui-t the defendant then and there except- 
 ed. 
 
 "The contents of said copy so read were as 
 follows: 'That said Middleton and Collard 
 had carefully examined the signatures of 
 Samuel N. Smallwood on said original deed 
 purporting to be his in three different places, 
 and aver the said signatures to be the gen- 
 uine handwriting of said Samuel N. Small- 
 wood; and that said original deed is an- 
 nexed to their depositions as Exhibit A; that 
 they were personally acquainted with Sam- 
 uel N. Smallwood in his life-time, and knew 
 his handwriting, having often seen him 
 write, and they have no hesitation in declar- 
 ing said signatures to be his genuine signa- 
 tures.' " 
 
 The plaintiffs also offered in evidence the 
 deposition of William W. Corcoran, who tes- 
 tified that in 1847 he purchased the lands in 
 controversy from the United States at public 
 sale and paid the purchase money for them 
 into the treasury of the United States, and 
 that, at the time of the purchase, he had no 
 notice of any adverse claim. 
 
 The plaintiffs further read in evidence a 
 certified copy of a commission from Presi- 
 dent Monroe, attested by Richard Rush, act- 
 ing secretary of state, and the seal of the 
 United States, dated April 30, 1817, appoint- 
 ing Joseph Cassin, justice of the peace in the 
 county of Washington, in the District of Co- 
 lumbia, until the end of the next session of 
 the United States senate, and no longer; 
 also a certified copy of a like commission' 
 
 295 
 
Case No. 102] 
 
 PROOF. 
 
 dated September 1, 1817, appointing Samuel 
 N. Small wood a justice of the peace of said 
 county until tlie end of said session, and no 
 longer. 
 
 The plaintiffs also offered in evidence the 
 deposition of Anthony Hyde, who testified 
 that he was the business agent in Washing- 
 ton City of W. W. Corcoran; that he knew 
 of the purchase of the land in question by 
 said Corcoran in 1847, and of the payment 
 by him of over $22,000 into the treasury of 
 the United States for this and other lands; 
 that from February, 1848, up to the time 
 when his testimony was taken, February 24, 
 1875, he had attended to all matters touch- 
 ing the tract of land in suit, such as the 
 payment of taxes and the appointment of 
 agents, up to the time of tlie conveyance 
 thereof by Corcoran to William B. Morris; 
 that he sent the original deed from Dunbar 
 to Front, attached to the Qjpositions of E. 
 J. Middleton and George Collard, to the coun- 
 sel of plaintiffs below in Chicago, on Octo- 
 ber 11, 1870; ^that said deed was afterwai'ds 
 returned to obtain a deposition of one Mis. 
 H. H. Boone as to Joseph Cassin's signature, 
 and was afterwards foi-warded, attached to 
 a deposition of Mrs. Boone, to the clerk of 
 the United States circuit court at Chicago, 
 on or about January 20, 1871. 
 
 Hyde further testifies that he had paid 
 the taxes on said lands for Mr. Corcoran 
 from 1847 to 1864, mainly through agents 
 ■who lived in Illinoi-s, but that he himself 
 had for a year or two paid the taxes direct- 
 ly to the county officers. 
 
 Assuming, for the present, that the evi- 
 dence offered to support the deed from Dun- 
 bar to Front was competent and properly 
 admitted, the question is presented whether 
 the deed itself, thus supported, was admia- 
 / / slble. We are of the opinion that it was. 
 
 The existence of the original deed and its 
 destruction in the fire at Chicago, in October, 
 1871, was distinctly proved by the testimony 
 of Dent, counsel for plaintiffs. He testified 
 that it had been sent to the counsel in Chi- 
 cago of the original plaintifE in the case; that 
 it had been offered in evidence on the first 
 trial of the case, and had been burned with 
 the other papers and records of the court in 
 the fire mentioned. It was therefore compe- 
 tent for the plaintiffs to prove its contents. 
 Thus, in Riggs v. Taylor, 4 Wheat. 486, this 
 court said: 
 
 "T'he general rule of evidence is, if a par- 
 ty intend to use a deed or any other instru- 
 ment in evidence he ought to produce the 
 original If he has it in his possession, or if 
 the original is lost or destroyed secondary 
 evidence, which Is the best the nature of 
 the case allows, will, in that case, be admit- 
 ted. The party, after proving any of these 
 circumstances to account for the absence of 
 the original, may rend a counteipart, or if 
 there is no counterpart an examined copy, 
 or if there should not be an examined copy 
 he may give parol evidence of its contents." 
 
 296 
 
 In the present case it does not appear that 
 there was in existence any counterpart or 
 examined copy of the destroyed deed. The 
 only resource left to the plaintiffs was to 
 prove the contents of the original by a wit- 
 ness who knew its contents. This was done 
 by the deposition of Dent. He testified that 
 the original deed corresponded substantially 
 in contents to the certified copy offered in 
 evidence, except that there was not attached 
 to it the official certificate of the court, dat- 
 ed February 3, 187.5. This evidence made 
 the copy competent for the purposes of the 
 trial. 
 
 Having thus established the fact of the 
 original deed and its contents, the plaintiffs 
 below were in the same position as if the 
 original deed was in their possession and 
 they had offered it in evidence. It remain- 
 ed for them to prove its execution. 
 
 It has been held by the supreme court of 
 Illinois, that, under the act of February 19, 
 1819, for establishing a recorder's office, and 
 which was substantially the same as the act 
 of 1807, which was in force when the deed 
 from Dunbar to Front was executed, a deed 
 is valid as between the parties to it without 
 being acknowledged. Semple v. Miles, 2 
 Scam. 315. See, also, McConnell v. Reed, Id. 
 371. 
 
 Having established by proof the fact that 
 the deed had existed and had been destroy- 
 ed, and that the copy offered in evidence was 
 a copy of the original, it only remained to 
 prove the signing and sealing of the deed by 
 the grantor. 
 
 As the witnesses to the deed were shown 
 to be dead, the method pointed out by law to 
 establish the execution of the deed was by 
 proof of the handwriting of the witnesses to 
 the deed. Clark v. Courtney, 5 Pet. 319; 
 Cook V. Woodrow, 5 Cranch, 13. And when 
 there was more than one witness, proof of 
 the handwriting of one was sufficient. 1 
 Greenl. Bv. § ."7.">; Adams v. Kerr, 1 Bos. & 
 P. 360; 3 Prest. Abst. Tit. 72, 73. 
 
 By the depositions of iliddleton and Col 
 lard, which the court admitted in evidence, 
 the handwriting of Samuel N. Smallwood, 
 one of the subscribing witnesses of the deed, 
 was fully proven. His signature also to the 
 acknowledgment of the deed as one of the 
 justices of the peace before whom the ac- 
 knowledgment was taken, and his signature 
 to the jurat of an oath of identity indorsed 
 on the deed, subscribed and sworn to be- 
 fore him by Dunbar, were proven by the 
 same testimony. The genuineness of the 
 handwriting of Smallwood as a witness to 
 the deed was placed beyond all doubt by the 
 depositions of these witnesses. If, therefore, 
 the evidence by which this proof was made 
 was competent and admissible, the execu- 
 tion of the deed from Dunbar to Prout was 
 established, and the deed itself was prop- 
 erly admitted in evidence. 
 
 We are next to consider the question 
 whether the copies of the depositions of 
 
ATTESTED DOCUMENTri TO BE PROVED BY WITNESS. [Case No. 102 
 
 Micldleton and CoUard, by wliich the hand- 
 writing of Smallwood was proven, were prop- 
 -erly admitted in evidence. This evidence 
 was objected to by the defendant, and his 
 objection was overruled, to which he ex- 
 cepted. 
 
 The admission of the parties, as appears 
 by the bill of exceptions, showed the exist- 
 ence of the original depositions; that they 
 had been destroyed with the other records 
 •of the court In the fire of October, 1871; that 
 tlie copies were correct copies of the orig- 
 inal depositions, and had been furnished by 
 •counsel for defendant, and with his consent 
 had been placed on file in the cause as cor- 
 rect copies of the original. The objection 
 made to the introduction of the copies was 
 that the death of the witnesses was not 
 shown, nor was it proven that they were in- 
 competent to testify, and that their deposi- 
 tions could not be retaken; therefore proof 
 •of what they had testified in their deposi- 
 tions was not admissible. 
 
 The rule invoked to exclude copies of the 
 •depositions is that in the absence of evi- 
 dence that the witness who Testified in a 
 former trial is dead or incapable of testify- 
 ing, or that his deposition cannot be retaken, 
 it is not competent to show what his testi- 
 mony In the former trial was; and that 
 when the deposition of a witness which was 
 read upon a former trial is lost, its contents 
 •cannot be proved except after proof of the 
 death of the witness whose testimony it con- 
 tained. Stout V. Cook, 47 111. 530; Aulger v. 
 Smith, 34 111. 537. 
 
 But if the witnesses had lived in another 
 «tate, and more than a hundred miles distant 
 from the place of trial, proof of the contents of 
 their deposition would have been admissible. 
 Burton v. Driggs, 20 Wall. 12.5. Therefore, 
 to have made the objection tenable, it should 
 have also been put upon the ground that 
 the witnesses were not shown to reside in 
 :another state and more than a hundred miles 
 from the place of trial. This it did not do. 
 "When a party excepts to the admission of 
 testimony he is bound to state his objection 
 specifically, and in a proceeding for error 
 he is confined to the objection so taken. Bur- 
 ton v. Driggs, ubi supra. The original dep- 
 ositions were taken in the city of Washing- 
 ton. It is, therefore, probable that the wit- 
 nesses resided there. If the cojjy of the 
 ■depositions had been objected to because it 
 was not shown that the witnesses resided 
 ■out of the district, and more than a hun- 
 dred miles from the place where the court 
 was held, the plaintiffs below might have 
 supplied proof of that fact. The objection, 
 as it was made, was not broad enough and 
 specific enough, and was. therefore, properly 
 overruled and the evidence admitted. 
 
 But we think the rule relied on by de- 
 fendant to exclude copies of the deposition 
 does not apply to the case in hand. The 
 plaintiffs did not offer oral evidence of the 
 ■contents of the depositions, but offered copies 
 
 which were admitted by counsel for defend- 
 ant to be true copies. It was, therefore, not 
 necessary to retake the depositions or to 
 prove the death of the witnesses, or their 
 incapacity to testify. The copy of the deposi- 
 tion was, by consent, substituted for the 
 original, which was proven to have been 
 destroyed, and, being admitted to be a true 
 copy, spoke for itself. It was, therefore, 
 properly received in evidence. 
 
 It was further objected to the admission in 
 evidence of the proof relating to the deed 
 of John J. Dunbar to Prout, that as the tes- 
 timony to establish its execution was the 
 proof of the handwriting of subscribing wit- 
 nesses, it was necessary to prove the identity 
 of the grantor in the deed; that is to say, 
 that the .lohn J. Dunbar by whom the deed 
 purported to be executed was the same .John 
 J. Dunbar named in the patent for the lands 
 In controversy. In any case slight proof of 
 identity is sufficient. Nelson v. Whittall, 1 
 Barn. & Aid. 19; Warren v. Anderson, 8 Scott, 
 384; 1 Selw. N. P. (18th Ed.) 538, note 7. But 
 the proof of identity in this case was ample. 
 In tracing titles identity of names Is prima 
 facie evidence of identity of person.s. Brown 
 V. Metz, 33 111. 339; Gates v. Loftus, 3 A. 
 K. Marsh, 202; Gitt v. Watson, 18 Mo. 274; 
 Balbie v. Donaldson, 2 Grant (Pa.) 450; 
 Bogue V. Bigelow, 29 Vt. 179; Chamblee v. 
 Tarbox, 27 Tex. 139. See, also, Sewell v. 
 Evans, 4 Adol. & E. 626; Roden v. Ryde, 
 Id. 629. There was no evidence that more 
 than one John J. Dunbar lived at the date • 
 of the deed in Matthias coimty, Virginia, 
 which the deed recites was the residence of 
 the grantor, nor in the District of Columbia, 
 where the deed was executed, and there was 
 no other proof to rebut the prima facie pre- 
 sumption raised by the identity of names in 
 the patent and deed. But, besides the iden- 
 tity of names, there was other evidence 
 showing the identity of persons. The pat- 
 ent and the deed bore date the same day, 
 and the patent was cited in hajc verba in 
 the deed. These circumstances tend strongly 
 to show that the party by whom the deed 
 was executed must have had possession of 
 the patent. The deed recites that the patent 
 was delivered to the grantor, John J. Dunbar, 
 and the affidavit of John J. Dunbar, sworn 
 to and subscribed on January 7, 1818, before 
 Smallwood, a justice of the peace, and one 
 of the subscribing witnesses to the deed, 
 whose signature to the jurat is shown to be 
 genuine, to the effect that he was the same 
 John J. Dunbar to whom the patent was 
 issued, was indorsed upon the deed. 
 
 After a lapse of 61 years, this evidence is 
 not only admissible to prove the identity of 
 the grantee in the patent with the grantor in 
 the deed, but, uncontradicted, is conclusive. 
 
 We are, therefore, of opinion that the deed 
 from John J. Dunbar to William Prout, 
 which formed a link in the title of the plain- 
 tiffs, was sufficiently proven, and was prop- 
 erly admitted in evidence by the circuit 
 
 297 
 
Case No. 102] 
 
 PliOOF. 
 
 ,court. ) The other muniments of title put in 
 evidence by the plaiutifEs were admitted 
 without objection, and established prima 
 facie their title to the lands in controversy. 
 But it will be remembered that the defend- 
 ant below had also shown a prima facie 
 title to the lands in question; that both par- 
 ties traced title through the patent of the 
 United States issued to Dunbar, and through 
 deeds apparently executed by him on the 
 same day, to-wit, January 6, 1818, — one to 
 William Prout, under which the plaintiffs 
 claimed, and the other to John Frank, under 
 which the defendant claimed. 
 
 The question, therefore, still remains, which 
 is the superior title? According to the juris- 
 pi-udence of Illinois, this must be settled by 
 the fact, which of the two deeds, apparently 
 executed by Dunbar, was first recorded. 
 
 Section 1.5 of the act approved January 31, 
 1827 (Purple, Beal Est. St. 480), provided as 
 follows: 
 
 "All grants, bargains, sales, etc., of or con- 
 cerning any lands, whether executed within 
 or without the state, shall be recorded in the 
 recorder's office in the county where such 
 lands are lying, and being within 12 months 
 after the execution of such writings, and ev- 
 ery such writing that shall, at any time after 
 the publication hereof, remain more than 12 
 months after the making of such writing, 
 and shall not be proved and recorded as 
 aforesaid, shall be adjudged fraudulent and 
 void against any subsequent bona fide pur- 
 •chaser or mortgagee for valuable considera- 
 tion, unless such deed, conveyance, or other 
 writing be recorded as aforesaid, before the 
 proving and recording of the deed, mortgage, 
 or otlier writing under which any subsequent 
 purchaser or mortgagee shall claim." 
 
 This act remains substantially in force. 
 Hurd, Rev. St. p. 271, § 30. 
 
 By an act, approved July 21, 1837 (Purple, 
 Real Est. St. 490. 497), it was provided that 
 the recording of any deed, * * » whether 
 executed within or without the state, by the 
 recorder of the county in which the lands 
 intended to be affected are situated, shall 
 be deemed and taken to be notice to subse- 
 quent ijurchasers and creditors from the date 
 of sucli recording, whether said writings 
 shall have been acknowledged or proven in 
 conformity with the laws of the state or not, 
 and that the provisions of the act shall ap- 
 ply as well to writings heretofore as those 
 hereafter admitted to record. This law is 
 still in force. See Hurd, Rev. St. 1880, p. 
 271, § 31. 
 
 It was held by the supreme court of Illi- 
 nois, in Reed v. Kemp, 16 111. 445, that an in- 
 strument affecting or relating to real estate 
 may be recorded, though not proven or ac- 
 knowledged, and the record will operate as 
 constructive notice to subsequent purchasers 
 and creditors. See, also, Choteau v. Jones, 
 11 111. 320; Martin v. Dr.yden, 1 Oilman, 213. 
 .A.nd in C'abecn v. Breckenridge, 48 111. 94, 
 the court declared that, "as a general i-ule, 
 
 298 
 
 when the same person has executed two 
 deeds for the same land, the first deed re- 
 corded will hold the title." 
 
 The evidence shows tliat the deed of Dun- 
 bar to Frank, under which the defendant 
 claimed title, was not recorded until June 18, 
 1870. The plaintiffs contended that the deed 
 from Dunbar to Prout, under which they 
 claimed, was recorded on June 23, 1818, and 
 it was shown that the deed from Prout to 
 Duncan was recorded October 29, 1838, and 
 the deed of Gillett to Corcoran, June 5, 1848, 
 and the deed of Corcoran to Morris, March 
 12, 1868. If, therefore, the contention of the 
 plaintiffs that the deed of Dunbar to Prout 
 was recorded June 23, 1818, is sustained by 
 competent proof, their title must prevail. 
 
 But it is insisted for defendant that there 
 was no competent proof of the registration 
 of the deed of Dunbar to Prout. The proof 
 relied on was the testimony of Dent, that the 
 certified copy from the records of the county 
 of Madison was a copy of the original deed; 
 the certificate of the recorder that the certi- 
 fied copy was a copy of a deed which appear- 
 ed .of record in his oflice; and the certified 
 copy of a memorandum at the foot of the 
 record of the deed as follows: "Recorded 
 June 23, 1818." Conceding that the certified 
 copy of the deed from the records of Madi- 
 son county would not be proof of the con- 
 tents of the original deed, because such orig- 
 inal deed had not been so acknowledged and 
 certified as to make a certified copy com- 
 petent evidence, yet the fact that such a rec- 
 ord of the deed existed, was, by the law of 
 Illinois, as we have seen, notice to subse- 
 quent purchasers. A certified copy from the 
 record was, therefore, a proof that such a 
 deed and memorandum were of record in the 
 proper office. For it is a settled rule of evi- 
 dence that every document of a public na- 
 ture which there would be an inconvenience 
 in removing, and which the party has the 
 right to inspect, may be proved by a duly- 
 authenticated copy. Saxton v. Nimms, 14 
 Mass. 320; Thayer v. Stearns, 1 Pick. 109; 
 Dunning v. Roome, 6 Wend, (wl; Dudley v. 
 Grayson, 6 T. B. Mon. 2."j9; Bishop v. Cone. 
 3 N. H. 513; 1 Greenl. Ev. § 484. 
 
 The memorandum at the foot of the record 
 was the usual record evidence, competent 
 and conclusive, that the deed had been re- 
 corded at the date mentioned. It was evi- 
 dence of the date of the registration of the 
 deed, because it was the duty of the recorder, 
 by the nature of his office and without spe- 
 cial statutory direction, to note when the 
 record was made. 1 Greenl. Ev. § 483. But 
 we think it may be fairly inferred from sec- 
 tion 10 of the act of September 17, 1807, 
 which was in force when it is claimed that 
 the deed from Dunbar to Prout was record- 
 ed, that it was the duty of the recorder to 
 note the time when deeds left with him for 
 record were recorded. He was specifically 
 required to note the date when the deed was 
 received, and was liable to a penalty of $300 
 
ATTESTED DOCUMENTS TO BE PROVED BY WITNESS. [Case No. 102 
 
 for recording any deed in writing "before an- 
 other first brought into his office to be re- 
 corded." 1 Adams & D. Heal Est. St. 63. 
 The making of a memorandum of the date 
 of record was, therefore, an official act, 
 which naturally fell within the line of his 
 statutory duties, and a certified copy of it 
 would be competent evidence to prove the 
 memorandum and the date of the registra- 
 tion of the deed. 
 
 We are of opinion, therefore, that the fact 
 that the deed of Dunbar to Prout was re- 
 corded on June 23, 1818, was proved by com- 
 petent evidence, and that it therefore fol- 
 lows that the title of the plaintiffs was bet- 
 ter and superior to that of defendants, who 
 claimed under a deed for the same lands not 
 recorded until June 18, 1870, more than 50 
 years after its date, and long after innocent 
 purchasers had bought the lands and paid a 
 valuable consideration for them. 
 
 The plaintiff in error contends that the act 
 
 of 1837, supra, cannot apply in this case, be- 
 cause at its date the lands in question were 
 no longer within the limits of Madison coun- 
 ty, but in the county of Putnam. But the act 
 expressly declares that it shall apply to writ- 
 ings theretofore as well as those thereafter 
 admitted to record. The deed of Dunbar to 
 Prout was recorded under the act of 1807, 
 supra, which required it to be recorded in 
 the county where the lands conveyed were 
 situated. It was so recorded. No law of 
 Illinois since passed has required any other 
 registration of deeds by the parties thereto, 
 or has changed the effect of the original reg- 
 istration. See act of February 27, 1841; 1 
 Adams & D. Real Est. St. 93, 94. 
 
 The view we have talien of the case ren- 
 ders it unnecessary to notice certain ques- 
 tions of local practice argued by counsel. 
 
 We find no error in the record of the cir- 
 cuit court. Its judgment must therefore be 
 affirmed. 
 
 299 
 
<:ase No. 103] 
 
 PllOOP. 
 
 GARRETT v. HANSHtJE et iix. 
 
 (42 N. E. 256.) 
 
 Supreme Court of Ohio. Nov. 20, 1895. 
 
 Error to circuit court, Ricliland county. 
 Action by W. 11. Garrett against W. S. 
 Hanshue and anotlier. Defendants laad Judg- 
 ment, which was affirmed by the circuit court, 
 and plaintiff brings error. Reversed. 
 
 Tlie action in the common pleas was brouglit 
 by W. H. Gan-ett, plaintiff, against W. S. 
 Hanshue and Barbara Hanshue, his wife, de- 
 fendants, to recover damages for breach of 
 covenants of title to certain lands in Iowa, 
 conveyed by them to one Mattie Shephard by 
 deed of general warranty, and by her con- 
 veyed to the plaintiff by like deed. By written 
 assignment on the back of her deed to plain- 
 tiff, Mattie Shephard assigned and transferred 
 to him her right of action against Hanshue 
 I and wife for breach of warranty as to the 
 title of the Iowa lands, and this assignment 
 was set out in the petition. The defendants, 
 among other things, denied the conveyance 
 from Mattie Shephard to plaintiff, and also de- 
 nied the assignment of the cause of action, 
 and failure of title to the Iowa lands. Plain- 
 tiff had an abstract of the title of the lauds in 
 question, and, for the purposes of the trial, 
 the attorneys of record of said defendants 
 placed upon said abstract the following writ- 
 ten agreement: "It is hereby agreed that the 
 within abstract shows the true condition of 
 the title of the lands therein abstracted. Cum- 
 mings & McBride." Upon the trial of the 
 case to a jury, the plaintiff, having proved by 
 Mattie Shephard, the grantor in the deed to 
 plaintiff, that she executed and delivered said 
 deed to him, offered to introduce said deed in 
 evidence, to which defendants, by their coun- 
 sel, objected, upon the ground that, before the 
 deed could be received in evidence, its execu- 
 tion should be proved by at least one of the 
 I subscribing witnesses, unless it should appear 
 I i-uit the evidence of stich witness could not 
 be procured. The court sustained the objec- 
 tion, and plaintiff excepted, and the deed was 
 ruled out. Plaintiff also offered to introduce 
 said abstract in evidence to show the state of 
 the title to said lands, and to prove that de- 
 fendants had no title to the lands at the time 
 of their conveyance to Mattie Shephard. De- 
 fendants, by their counsel, objected to the in- 
 troduction of said abstract as evidence upon 
 the ground that, aside from the said agree- 
 ment of counsel, it was incompetent, and that 
 such agreement did not make it competent 
 when objected to on the trial. The court sus- 
 tained the objection, to which plaintiff except- 
 ed. The court instructed the jury to retui'n a 
 verdict for defendants, which was done. A 
 motion for a new trial was filed, assigning, 
 among other things, the ruling out of said deed 
 and abstract by the court. Said uKjtion was 
 overruled, and judgment entered on the ver- 
 dict, to all of which plaintiff excepted. The 
 cu'cuit court affirmed the judgment of the com- 
 300 
 
 mon pleas, and thereupon plaintiff filed his pe- 
 tition in this court to reverse both judgments 
 below. 
 
 S. 0. Parker and D. Dirlam, for plaintiff in 
 error. Cummings & McBride and Lewis 
 Brucker, for defendants in error. 
 
 BURKET, J. (after stating the facts). As far 
 back as we have been able to trace the mat- 
 ter, both in England and this country, it has 
 been uniformly held that the execution of a 
 deed or other written instrument having one or 
 more attesting witnesses must, as to rights be- 
 tween the parties or their privies, be estab- 
 lished by the testimony of at least one of the 
 subscribing witnesses, and that other proof of 
 execution is incompetent, unless it be fii'st 
 shown that the evidence of such witness can- 
 not be had. Starkie, in his work on Evidence 
 |(page 320), states the rules as follows: "If 
 the deed or instrument produced purports to 
 have been attested by one or more witnesses, 
 whose names are subscribed, the party must 
 call at least one of the witnesses; and, in 
 cases where the instrument labors under any 
 doubt or suspicion, he ought to call them all. 
 The law requires the testimony of the sub- 
 scribing witness, because the parties them- 
 selves, by selecting him as the witness, have 
 mutually agreed to rest upon his testimony in 
 proof of the execution of the instrument, and 
 of the circumstances which then took place, 
 and because he knows those facts which are 
 probably unknown to others. So rigid is this 
 rule that it is not superseded, in the case of a 
 deed, by proof of any admission or acknowl- 
 edgment of the execution by the party himself, 
 whetlier the action be brought against the 
 obligor himself, or against his assignees after 
 his bankruptcy; nor by proof of an admission 
 of the execution, made by the defendant in his 
 answer to a bill in equity. The rule applies, 
 whether the question be between the parties 
 to the deed or strangers, Avhether the deed be 
 the foundation of the action or but collateral, 
 or whetlier it still exist as a deed or has been 
 canceled, and altlmtigh tlie issue be directed 
 by a court of equity to try the date, and not 
 the existence of a deed. Upon an indictment 
 against an apprentice for a fraudulent enlist- 
 ment, it was held that the indentures must be 
 proved in the regular way. And the same 
 rule applies to all written agreements and oth- 
 er iustumients attested by a witness; as, for 
 instance, a notice to quit in ejectment, in 
 Mhich case it was held that proof of service 
 of the notice upon the tenant, and that it was 
 read over to him without his making any ob- 
 jection, was not sufiicient." Greenleaf, in his 
 work on Evidence (section 569), states tlie rule 
 as follows: "Tlie iustrvuiient, being thus pro- 
 duced and freed from suspicion, must be prov- 
 ed by the subscribing witnesses, if there be 
 anj', or at least by one of them. Various I'ja- 
 sons have been assigned for this rule, but that 
 upon which it seems best founded is that a 
 fact may be known to the subscribing witness, 
 not within the knowledge or recollection of the 
 
ATTESTED DOCUMENTTS TO BE PROVED BY WITNESS. [Case No. 103 
 
 obligor, and that lie is entitled to avail himself 
 of all the knowledge of the subscribing wit- 
 ness relative to the transaction. The party 
 to whose execution be is a witin'ss is consid- 
 ered as invoking him, as the person to whom 
 he refers, to prove what passed at the time of 
 attestation." Wharton, in his work on Evi- 
 dence (section 723), states the rule as follows: 
 "By the strict rule of the English common law, 
 when there are subscribing witnesses to an in- 
 strument, such witnesses should be called to 
 prove its execution, or their absence should be 
 duly accounted for. The statutes allowing 
 parties to be witnesses do not of themselves 
 abrogate this rule." This rule was recognized 
 and followed by this court in Zerby v. Wilson, 
 3 Ohio, 43, and also in Warner v. Eailroad 
 Co., 31 Ohio St. 269, and the same rule is found 
 in Swan, Just. p. 154. 
 
 It is said that this rule is founded upon the 
 reason that a fact may be known to the sub- 
 scribing witness not within the knowledge or 
 recollection of the obligor, and that he is en- 
 titled to avail himself of all the knowledge 
 of the subscribing witness relative to the 
 transaction. This is the reason given by Le 
 Blanc, J., in Call v. Dunning, 4 East, 54, and 
 followed by many judges since without ques- 
 tion or investigation as to its soundness. That 
 this reason is unsound is clear from the con- 
 sideration that the competency of evidence 
 does not depend upon the fact of either knowl- 
 edge or recollection of a particular witness. 
 Where two witnesses have equal means of 
 knowledge of a particular fact, both are equal- 
 ly competent as witnesses, although one may 
 have imperfectly comprehended the fact, and 
 but faintly recollects the transaction, while 
 the other may be clear as to the fact, and 
 perfect in his recollection. The want of com- 
 prehension and recollection will go as to the 
 weight, but not as to the competency, of the 
 evidence. Another reason given for the rule 
 is because the parties themselves, by se- 
 lecting the witnesses, have mutually agreed to 
 rest upon their testimony in proof of the 
 execution of the instrument, and of the cir- 
 cumstances which then took place, and be- 
 cause they know those facts which aie proba- 
 bly unknown to others. This supposed mu- 
 tual agreement is a pure fiction, and rarel^r, 
 if ever, exists in fact. If in any case it has 
 a real existence, and can be shown, it may 
 perhaps be enforced; but the mere fiction is 
 entitled to no weight and to no respect. The 
 fact that such witness may know facts which 
 are unknown to others does not go to the com- 
 petency of the evidence of another witness as 
 to facts actually within his knowledge. It is 
 also said that the party to whose execution 
 he is a witness is considered as invoking him, 
 as the person to whom he refers to prove 
 what passed at the time of attestation. This 
 is also a pure fiction, but may have been well 
 enough when parties were debarred from tes- 
 tifying. The execution of written instruments 
 does not involve a sacred ceremony, but a 
 business transaction, and should, like any oth- 
 
 er fact, be proven by the best evidence of 
 whicli it is capable; that is, by evidence 
 which does not presujapose the existence of 
 other evidence of a higher character. As 
 this rule had its origin when parties to ac- 
 tions were not permitted to testify, when 
 deeds were not required to be acknowledged 
 before an officer, and when the execution of 
 such instruments was attempted to be proven 
 by the admissions of the grantors, there was 
 some reason for holding that the direct evi- 
 dence of the subf-cribing witnesses was better 
 and of a higher character than the admissions 
 of the grantor, whether made orally or in a 
 written answer in chancery. The oral ad- 
 missions were evidence only upon the pre- 
 sumption that a man would not admit that 
 which was against his interest; but often the 
 establishment of the instrument was for his 
 interest, and then, of course, he should not 
 be permitted to prove it by his admission. 
 The same was true of an admission in an an- 
 swer in chancery, with this additional objec- 
 tion: that he should not be permitted to prove 
 a fact by an admission in his answer in 
 chancery which he could not be allowed to 
 prove by his evidence in court. He could not 
 by his answer do indirectly that which he 
 could not do directly by his sworn evidence 
 upon the trial. But as parties to actions can 
 now testify, and deeds are required to be ac- 
 knowledged before an officer, this reason of 
 the rule has ceased. True, in Hodnett v. 
 Smith, 2 Sweeney, 401, 10 Abb. Prac. (N. S.) 
 86, and 41 How. Prac. 190, it was held that the 
 statutes allowing parties to be witnesses do 
 not of themselves abrogate this rule. That 
 decision was by the superior court of the 
 city of New York, and the cases there cited 
 and relied upon are decisions of the courts of 
 common pleas of the state of New York, and 
 those courts followed the old rule without 
 question. Not being by a court of last resort, 
 the case is not of controlling weight here. 
 The question was not examined on principle, 
 and, if it had been, a different conclusion 
 should have been reached. While a statute 
 making a party to an action a competent wit- 
 ness does not of itself make that part of his 
 evidence competent which was before incom- 
 petent, yet if the evidence was in its nature 
 competent before the statute, and was made 
 unavailable by reason of the incompetency of 
 the witness, when such incompetency is re- I 
 moved by statute, the evidence thereby be- 
 comes available, and may be introduced 
 through such newly-enfranchised witness. As 
 to the execution of an instrument, it was 
 said that the subscribing witnesses should be 
 first called, because they not only saw, but 
 participated in, the transaction, and had their 
 attention thereby specially called to the sub- 
 ject, while mere bystanders, with equal op- 
 portunity to see and hear, would not so fully 
 understand the matter as those Vho actually 
 took part in the transaction; and although 
 the grantor saw the transaction, and par- 
 ticipated therein, and was in fact the prin- 
 
 301 
 
Case No. 103] 
 
 PROOF. 
 
 cipal actor, and had full information, yet, as 
 lie was an incompetent witness, it was held 
 that the testimony of the subscribing wit- 
 nesses was the best evidence of the fact of 
 execution. On principle, it was not the evi- 
 dence of the grantor that was incompetent, 
 but it was the witness that was incompetent. 
 By removing the incompetency of the wit; 
 ness, his evidence, which in its nature was al- 
 ways competent, became available to prove 
 the fact of execution, and his evidence in such 
 case is as good and of as high a character as 
 that of the subscribing witnesses. True, he 
 may be interested, but that goes only to the 
 weight, and not to the character or compe- 
 tency, of the evidence. By section 310 of the 
 Code, adopted in 1853, parties to actions be- 
 came competent witnesses, but it was pro- 
 vided that their interest might be shown to 
 affect their credibility. Later the credibility 
 part of the section was removed, and ever 
 since that parties to actions are competent 
 witnesses upon an equality with other wit- 
 nesses, the credibility of all alike to be de- 
 termined by the jury in view of all tne cir- 
 cumstances. As the evidence of those who 
 were present and participated in the e.xecu- 
 tion of the instrument was regarded as the 
 best evidence of its execution, and the incom- 
 petency of the grantor as a witness being 
 now removed by statute, it inevitably follows 
 that he is now, equally with the subscribing 
 witnesses, competent to establish the execu- 
 tion of the instrument. 
 
 The rule requiring the execution of a deed 
 to be proven by the subscribing witness 
 would exclude the ofilcer before whom the 
 deed was acknowledged, when we all know 
 that such officer sees and knows all that the 
 witnesses do, and most likely much more. 
 The witnesses are usually hurriedly called 
 in, and give but slight attention to the mat- 
 ter, while the officer usually prepares the 
 deed and acknowledgment, shows the par- 
 ties where to affix their signatures, sees 
 them sign the deed, and hears them ac- 
 knowledge it; and a rule which requires 
 such officer, and the party who signed the in- 
 strument, to stand aside until the testimony 
 of the subscribing witness is first taken as 
 to its execution, cannot be sound in this day, 
 when all persons are equally competent to 
 testify to any fact within their knowledge, 
 imless otherwise provided by statute, as in 
 the case of wills. In Warner v. Railroad 
 Co., 31 Ohio St. 209, the grantor being dead 
 at the time of the trial, it was proposed 
 to establish the execution of the instrument 
 by proving his signature, and his admission 
 that he had executed the instrument, with- 
 out first calling the subscribing witnesses or 
 accounting for their absence. This the court 
 held could not be done. The testimony of 
 the subscribing witnesses, who saw the par- 
 ty sign his- name to the instrument, was 
 better evidence and of a liigher character 
 than the testimony as to his handwriting or 
 admissions. The case was therefore cor- 
 302 
 
 rectly decided, and the rule as to the sub- 
 scribing witness was not necessary to sus- 
 tain the decision. While the rule as to the 
 testimony of the subscribing witnesses was 
 in full force in this state, this court held, 
 in the case of Simmons v. State, 7 Ohio, 116, 
 that the rule did not apply in a prosecution 
 for forgery wherein the signer of the forged 
 Instrument was a competent witness. Wood, 
 J., used the following language: "In a case 
 .arising between the parties to such an in- 
 strument having a subscribing witness, and 
 where the obligor, being interested, is ex- 
 cluded from testifying, the rule is a good 
 one which requires such witness to prove Its 
 execution. * * * when the obligor is 
 competent, he miist be the best witness of 
 which the case will admit, and the subscrib- 
 ing witness, in such case, need not be call- 
 ed." As early as the case of Grey v. Smith- 
 yes, 4 Burrows, 2273, it was held that the 
 rule did not apply to third persons in a col- 
 lateral proceeding having no privity with 
 the grantor in the deed. The same was aft- 
 erwards held in Ayers v. Hewitt, 19 Me. 286. 
 There are some other exceptions to the rule, 
 as is shown by the notes to section 569 of 
 Greenleaf on Evidence. In Maryland the 
 rule was regarded so narrow that it was 
 changed by statute as early as 1825. "We 
 think that the statutes requiring deeds to be 
 acknowledged before an officer, and per- 
 mitting parties to testify, have so enlarged 
 the rules as to the manner of proving the 
 execution of a written instrviment having 
 subscribing witnesses as to abrogate the old 
 rule, and to permit such execution to be 
 proven alike by the grantor, the subscribing 
 witnesses, or the othper before whom the ac- 
 knowledgment was taken. 
 
 Whether or not the court erred in not per- 
 mitting the abstract to be received in evi- 
 dence depends upon the question as to 
 whether the attorney of record has power to 
 bind his client by agreement in writing be- 
 fore the trial, as to a matter of evidence, to 
 facilitate the preparation for trial, or to save 
 expense or shorten the trial, and whether 
 what was written on the abstract made it 
 ccniipetent evidence on tlie trial. Rev. St. 
 § 52!^8, provides that either party may ex- 
 hibit to the other or to his attorney, at any 
 time before the trial, any paper or docu- 
 ment material to the action, and request an 
 
 i admission in writing of its genuineness; 
 and, if the adverse party or his attorney 
 fail to give the admission, such party shall 
 pay the cost of proving the genuineness of 
 
 I such paper or document. This section clear- 
 ly recognizes the authority of the attorney 
 to bind his client in such cases. In practice, 
 it is a daily occurrence for attorne.vs to en- 
 ter into written stipulations as to matters 
 of evidence, and tlie uniform current of au- 
 thorities, both in England and this country, 
 is in favor of the power so to do. In 1 Am. 
 & Eng. Enc. Law, p. 954, we find the follow- 
 ing: "An attorney at law has authority, by 
 
ATTESTED DOCUMENTS TO BE PROVED BY WITNESS. [Case No. 103 
 
 Tirtue of his employment as such, to do on 
 behalf of his client all acts, in or out of 
 court, necessary or incidental to the pros- 
 ecution or management of the Suit, and 
 which affect the remedy only, and not the 
 cause of action. This, includes the right to 
 demand and receive payment in money of 
 the client's debts; and part payments are 
 within his power to receive as well as pay- 
 ments in full. As long as he appears as 
 attorney on record, bona fide payments to 
 him discharge the debt, no matter what pri- 
 vate instructions he may have received from 
 his client. He may also sue out an alias 
 execution. He may receive livery of seisin 
 of land taken under an extent; may waive 
 objections to evidence, and enter into stip- 
 ulations for the admission of facts or con- 
 duct of the trial, and for release of bail; 
 may waive notices, and give extensions of 
 time to file papers, and confess judgment; 
 and may open a default which he has taken 
 (whether improperly or not), and vacate the 
 judgment entirely, even though (it has been 
 held) his client has instructed him to the 
 contrary." The authorities cited in support 
 of the power here in qxiestion fully sustain 
 the text. Among others, the following are 
 cited: Lacoste v. Robert, 11 La. Ann. 33; 
 Steph. Dig. Bv. 46; Moulton v. Bowker, 115 
 Mass. 36; Lewis v. Sumner, 13 Mete. (Mass.) 
 269; Elton v. Larkins, 1 Moody & R. 196; 
 Young V. Wright, 1 Camp. 139. In Ish v. 
 Crane, 13 Ohio St. 574, the case was sub- 
 mitted to the district court upon an agreed 
 statement of facts, signed by the attorneys 
 of record, and the case was reserved to this 
 court; and after such reservation, and be- 
 fore the hearing, counsel for defendant in er- 
 ror attempted to revoke, withdraw, and an- 
 nul the agreed statement of facts, to which 
 the attorney for plaintiff in error objected. 
 This court refused to permit the withdrawal 
 of the agreed statement, and, in deciding the 
 point, used the following language: "It has 
 long been the practice in this state, as well 
 as in the' courts of other states, for counsel 
 to mutually agree upon a state of facts, and 
 to reduce the agreement to writing, and file 
 it in the case, instead of being to the trouble 
 and expense of taking proof by depositions, 
 or otherwise, to show the facts. And when 
 such agreement is reduced to writing, and 
 signed by the parties or their counsel, and 
 filed in the case, I think the general under- 
 standing, both of the bar and court, has 
 been that the same was to be regarded, un- 
 til set aside by the court, as a special ver- 
 dict of a jury, expressing the result of the 
 proof made by both parties, and so belong- 
 ing to both parties that neither party could 
 withdraw the same. It is not doubted that, 
 in case of an agreed statement having been 
 so made and filed by mistake, or misappre- 
 
 hension of the existing state of facts by 
 one of the parties, he might, consistently 
 with fair practice, upon notice to the ad- 
 verse party or his counsel, apply to the 
 court for leave, on the ground of such mis- 
 take or misapprehension, to withdraw from 
 the files such agreed statement, or such part 
 thereof as was, in fact, untrue, and had 
 been so assented to by mistake or misap- 
 prehension; and upon the merits of such 
 motiori being sustained by proof, satisfac- 
 tory to the court, it is not doubted the court 
 might grant such relief as the party should 
 show himself justly entitled to." In view 
 of these authorities, we are of opinion, and 
 so hold, that an attorney of record has am- 
 ple power to do on behalf of his client all 
 acts, in or out of court, necessary or in- 
 cidental to the prosecution, management, or 
 defense of the action, and which afCect only 
 the remedy, and not the right, and that this 
 includes the power to waive objections to 
 evidence, and enter into stipulations for the 
 admission of facts on the trial. In case the 
 court should, on motion, allow such agreeu 
 statement to be withdrawn, amijle time 
 should be given for the preparation of the 
 case on other testimony, so as not to take 
 either party by surprise. The spirit is the 
 same as that of section 5286, Rev. St., which 
 requires exceptions to depositions to be 
 heard and disposed of before the commence- 
 ment of the trial. 
 
 The abstract which was ruled out is found 
 in the bill of exceptions, and seems to sus- 
 tain the contention of the plaintiff. It was 
 therefoi-e material, and, if the agreement 
 was sufficient, it should have been received 
 in evidence. The agreement states that the 
 abstract shows the true condition of the ti- 
 tle of the lands therein described, and it 
 appears that the lands therein described are 
 the lands in question; buj; the agreement 
 fails to state that the abstract may be used 
 as evidence on the trial. But this was not 
 necessary. Whatever is true may, if rele- 
 vant, be received in evidence. The truth of 
 the abstract being admitted, plaintiff had a 
 right to use it as evidence, without the fur- 
 ther agreement of defendant that he might 
 do so. 
 
 It follows that the court of common pleas 
 erred in ruling out the deed and abstract, 
 and in overruling the motion for a new trial, 
 and that the circuit court erred in affirming 
 the judgment of the common pleas. Both 
 judgments are therefore reversed, and the 
 cause remanded to the court of common 
 pleas for a new trial. Reversed and re- 
 manded. 
 
 SPEAR, J., dissents, on the ground that 
 the facts do not warrant the judgment of re- 
 versal on the second ground. 
 
 303 
 
Cuse No. 104] 
 
 PKOOr. 
 
 APPLEGATB et al. t. LEXINGTON & CAR- 
 TER COUNTIES MIN. CO. et al. 
 
 (6 Sup. Ct. 742, 117 U. S. 255.) 
 
 Supreme Court of the United States, ilarch 15, 
 1886. 
 
 In error to the circuit coui't of the United 
 States for the district of Kentucky. 
 
 The suit was in the nature of an action of 
 ejectment to recover possession of a tract 
 of land formerly in JIason county, but now 
 in Greenup, Carter and Boyd counties, in 
 Kentucky. The plaintiffs in error were the 
 plaintiffs in the circuit court. They alleged 
 in their petition that they were the lineal 
 heirs of Carey L. Clark, who died seized of 
 a tract of 8,334 acres, part of a tract of 18,- 
 000 acres granted by patent from the common- 
 wealth of Virginia, dated April 21, 17!i2, to 
 Charles Fleming, from whom their ancestor, 
 Carey L. Clark, derived title by a regular 
 chain of conveyances; that the plaintiffs 
 were the owners and entitled to the posses- 
 sion of the land sued for; and that the de- 
 fendants had unlawfully entered upon and 
 unlawfully withheld possession of the same. 
 The defendants, by their answers, denied 
 these allegations, and averred that they were 
 seized of the premises by paramount title. 
 The answers were traversed by the plain- 
 tiffs' reply. 
 
 There was a jury trial. The plaintiffs, to 
 sustain the issue on their part, offered in evi- 
 dence the following documents as links in 
 their chain of title: (1) A copy, duly cer- 
 tified, from the land-office of the state of 
 Kentucky, of the patent from the state of 
 Virginia to Charles Fleming, for the tract 
 of land of which the land in controversy was 
 originally a part. (2) A copy of the will of 
 Charles Fleming, devising a moiety of said 
 tract of land to William Fleming, John Ber- 
 nard, Jr., and Richard Bernard, as trustees. 
 
 (3) A copy of a deed from Samuel Sackett 
 and wife to Joseph Conkling and others, 
 dated August 29, 1793, for the particular land 
 in controversy in this case, together with cer- 
 tain other tracts that had been patented by 
 the state of Virginia to Charles Fleming. 
 
 (4) A copy of a mortgage from Joseph Conk- 
 ling and others, the grantees above named, to 
 Samuel Sackett, the grantor above named, 
 conveying the same lands as above, and 
 dated August 29, 179."). (5) A copy of a deed 
 from William Fleming and the Bernards, 
 trustees as above uuder the will of Charles 
 Fleming, to John Bryan, conveying to Bryan 
 the lands devised to them by the will of 
 Fleming, and dated December 31, 179G. (6) 
 The original of the deed last named. (7) 
 A copy of a deed from John Bryan and wife 
 to Samuel Sackett, dated January 28, 1797, 
 conveying the same land conveyed to Bryan 
 by deed last above named. (8) The original 
 of the deed last above named. (9) The orig- 
 inal of a deed from Charles Fleming, dated 
 August 8, 1784, to John and William Bryan, 
 
 304 
 
 conveying to them 13,300 acres of the land 
 that had been patented to said Charles Flem- 
 ing, and being part of the 18,000 acre tract, 
 of which tract the land in controversy is 
 also a part.' (10) A certified copy from the 
 Jlason county circuit court of the record In 
 the case of Carey L. Clark v. Joseph Conk- 
 ling and others, in which Clark, as the as- 
 signee of the above-mentioned mortgage of 
 Joseph Conkling and others to Samuel Sack- 
 ett, brought suit to foreclose the same. 
 
 The court admitted in evidence the first 
 four of the documents above mentioned. All 
 the others were rejected, namely, the original 
 and a copy of the deed from William Flem- 
 ing and the Bernards to John Bryan, the 
 original and the copy of the deed from Bi-y- 
 an to Sackett, the original of the deed from 
 Charles Fleming to John and William Bryan, 
 and the copy of the record from the Mason 
 county circuit court in the case of Clark v. 
 Conkling and others. The court having ex- 
 cluded these documents, the plaintiffs were 
 unable to trace title to themselves for the 
 premises in controversy. Thereupon the 
 jury, under the instruction of the court, re- 
 turned a verdict for the defendants, upon 
 which the court rendered judgment, and the 
 plaintiffs sued out this writ of error. 
 
 Mr. Justice WOODS, after stating the facts 
 in the foregoing language, delivered the opin- 
 ion of the court. 
 
 We shall first consider the exclusion of the 
 original deed from Fleming and the Bernards 
 to John Bi-yan, and the original deed from 
 John Bryan to Samuel Sackett. We are of 
 opinion that they should have been admit- 
 ted in evidence. They have been certified 
 to and inspected by this court. Their ap- 
 pearance affords strong evidence of their 
 genuineness and antiquity, and they are free 
 from any badge that would excite suspx-ion 
 of fraud or forgery. In support of their gen- 
 uineness it was shown that a short time be- 
 fore the trial in the circuit court they were 
 discovered by one of the plaintiffs' attorneys 
 in the office of the clerk of the circuit court 
 of Greenup county, Kentucky, among the 
 original iiapers of a suit in that court 
 brought by one James Hughes v. Heirs of 
 Thomas Shore, on July 15, 1816, to quiet his 
 title to IC.OOO acres of land in Greenup coun- 
 ty, part of the lands conveyed by the deed of 
 AVilliam Fleming and the Bernards to John 
 Bryan. The deeds and the original papers in 
 that suit were produced by a clerk of the 
 Greenup circuit court in obedience to a sub- 
 poena duces tecum. The record of this case 
 was admissible against pei-sons, not parties 
 or privies, to prove the collateral fact of the 
 ^antiquity of the original deeds offered in evi- 
 dence and to accotmt for their ctistody. Barr 
 V. Gratz, 4 Wheat. 220. The bill of Hughes 
 averred that he derived titleunder the patent 
 to Charles Fleming, and by virtue of the de- 
 vise in his will to William Fleming and the 
 Bernards, and the deeds of William Fleming 
 
ANCIENT DEEDS, DOCUMENT.^, ETC. 
 
 [Case No. 104 
 
 and the Bernards to John Bryan and ol John 
 Biyan to Samuel Sackett. The complainant 
 Hughes offered by his bill "to produce said 
 patent and deeds showing the deduction of ti- 
 tle in proper time, or whenever the court 
 should require it." The two deeds mentioned in 
 the bill of complaint filed by Hughes correspond 
 with and appear to be the two original deeds, 
 namely, the deed from William Fleming and 
 the Bernards to John Bryan, and the deed 
 from John Bryan to Samuel Sacliett, offered 
 in evidence by the plaintiffs in this case, 
 which were found among the other papers 
 in the case of Hughes v. Heirs of Shore. 
 These deeds were necessary exhibits and 
 evidence in the case to entitle Hughes to the 
 relief prayed for. They were produced from 
 the files of the highest court of the county 
 where the lands were situate, from the cus- 
 tody of an ofiicer cliarged by law with their 
 care and safe-keeping, where they liad been 
 placed for a necessary and proper use, and 
 from which they could not be withdrawn 
 without the order and consent of the court. 
 Their custody was thex-efore accounted for, 
 and was shown to be proper and beyond sus- 
 picion. 
 
 It further appeared that upon the trial of 
 the case of Hughes v. Shore's Heirs, on July 
 8, 1825, the patent to Charles Fleming from 
 the commonwealth of Virginia for 16,191 
 acres of land, the will of Charles Fleming, 
 and the said deed of William Fleming and 
 the Bernards, trustees, to John Bryan, were 
 offered in evidence. The latter was rejected, 
 "because," as the bill of exceptions states, 
 "the certificate and seal of the mayor of 
 Philadelphia" was "not sufficient to author- 
 ize it to be read, and because the same could 
 not be read as a recorded deed, not having 
 been recorded within the time prescribed 
 by law;" and "because, by rejecting this 
 deed, complainants' chain of title was bro- 
 ken, and they could not further progress 
 with their evidence, the court rendered a de- 
 cree dismissing their bill." It is therefore 
 made clear by the evidence offered that at 
 least as early as the j'ear 1825 the deed of 
 William Fleming and the Bernards to John 
 Bx-yan was on file In the circuit court of 
 Greenup county, and it may be safely in- 
 ferred that the other documents mentioned 
 by Hughes as his muniments of title were 
 also on file in the same court at the same 
 time, and that all the deeds remained in 
 the custody of the court down to the time 
 when they were produced by the clerk under 
 the subpoena duces tecum issued in this 
 case, a period of 55 years. 
 
 Another circumstance relied on to show the 
 genuineness of the original deeds was that 
 each bore, indorsed thereon, a certificate ap- 
 parently ancient and genuine, one with the 
 signature of the recording officer, and the 
 other without signature, to the effect that the 
 deeds had been recorded in the year 1816. Iti 
 the case of Stebbins v. Duncan, 108 U. S. 50, 
 S. 0. 2 Sup. Ct. 313, it was held that a cer- 
 
 WILGUB,ET.— 20 
 
 tified copy of a memorandum made at the foot 
 of the record of a deed "recorded June 23, 
 1818," and without signature, was competent 
 and conclusive evidence that the deed had 
 been recorded at the date mentioned. In 
 view, therefore, of the habit of recorders 
 of deeds, which is universal, and matter of 
 common knowledge, to indorse upon the 
 deeds themselves the fact and date of their \ 
 registration, the certificates appearing on the 
 deeds in question were competent and suf- 
 ficient evidence of the fact that the deeds had 
 been put upon record during the year men- 
 tioned in the certificates. We think this evi- 
 dence, supported by an inspection of the 
 deeds, was sufficient to justify their admis- 
 sion as ancient deeds, without direct proof of 
 their execution. T^e rule is that an ancient 
 deed may be admitted in evidence, without 
 direct proof of its execution, if it appears to 
 be of the age of at least 30 jears, when it is 
 found in proper custody, and either posses- 
 sion under it is shown, or some other cor-, 
 roborative evidence of its authenticity freeing 
 it from all just grounds of suspicion. 
 
 Thus, in Barr v. Gratz, 4 Wheat. 220, a 
 deed from Craig to Michael Gratz, dated July 
 16, 1784, was offered in evidence, but was not 
 proved by the subscribing witnesses, nor 
 their absence accounted for. Its admission 
 was alleged as error; but this court said that, 
 as the deed was more than 30 years old, and 
 was proved to have been in the possession of 
 the lessors of the plaintiff, and actually as- 
 serted by them as the ground of their title 
 in a prior chancery suit, it was, in the lan- 
 guage of the books, sufficiently accounted for, 
 and on this ground, as well as because it was 
 a part of the evidence in support of the de- 
 cree in that suit, it was admissible without 
 the regular prcof of its execution. So, in Car- 
 uthers v. Eldridge, 12 Grat. 670, it was con- 
 tended by the plaintiff in error that in no case 
 could a paper be admitted in evidence as an 
 ancient deed, without proof of its execution, 
 until it was first shown that 30 years' quiet 
 and continued possession of the land had 
 been held under the deed. But the court held, 
 in substance, that an ancient deed may be 
 introduced in evidence without proof of its 
 execution, though possession may not have 
 been held for 30 years in accordance there- 
 with, if such account be given of the deed as 
 may be reasonably expected under all the 
 circumstances of the case, and as will afford 
 the presumption that it is genuine. In Har* 
 Ian V. Howard, 79 Ky. 373, the court of ap- 
 peals states the rule in relation to the proof 
 of ancient deeds thus: "The genuineness of 
 such instruments may be shown by other 
 facts as well as that of possession; and when 
 proof of possession cannot be had, it is with- 
 in the very essence of the rule to admit the 
 instrument, when no evidence justifying sus- 
 picion of its genuineness is shown, and it is 
 found in the custody of those legally entitled 
 to it." See, also, Vin. Abr. "Evidence," A, 
 B, 5, "Ancient Deeds," 7; Com. Dig. "Evi- 
 
 305 
 
Case Xo. 104] 
 
 PKOor. 
 
 dence," B, 2; 1 Greenl. Ev. § 144, and note 
 1; Starkie, Ev. 524; PWl. Ev. (Cow. & H. 
 Notes, 3d Ed.) pt. 2, note 197, p. 368 et seq.; 
 Doe V. Passingliam, 13 E. C. L. 309; In re 
 Parkyn's Will, 6 Dow, 202; Winn v. Patter- 
 son, 9 Pet. 663; Jackson v. Laroway, 3 Johns. 
 Cas. 283; , Hewlett v. Cock, 7 Wend. 371. In 
 the case last cited. Judge Nelson, afterwards 
 a justice of this court, said that there was 
 some confusion in the cases In England and 
 New York as to the preliminary proof neces- 
 sary to authorize an ancient deed to be read 
 in evidence; that possession accompanying 
 the deed was always sutficient without other 
 proof, but it was not indispensable. He ap- 
 proved the decision in Jackson v. Laroway, 
 ubi supra, which he said had been recognized 
 as law in Jackson v. Luquere, 5 Cow. 221, 
 and had undoubtedly in its favor the weight 
 of English authority. These authorities sus- 
 tain the rule as we have stated it. 
 
 The deeds in question, when offered in evi- 
 dence, purported to be over 80 years old, and 
 their appearance tended to prove their an- 
 tiquity and their genuineness. Tlie testimony 
 offered in support of them proved their ex- 
 istence as far back as the year 1816, and that 
 in that year they had been placed upon the 
 public record of deeds, where, if properly ac- 
 knowledged, they would have been entitled 
 to registration. In the same year in which 
 they were recorded they were mentioned and 
 referred to in the bill filed by Hughes v. 
 Shore's Heirs as muniments of his title, and 
 he offered to produce them when required. 
 There is no reason to doubt that they remain- 
 ed in the rightful custody of the clerk in 
 whose office they had become file papers, un- 
 til, after a lapse of at least 55 years, they 
 were found, and produced upon the trial of 
 the present case by the officer to whose cus- 
 tody they belonged. 
 
 But the proof of the genuineness of both 
 deeds was greatly strengthened by evidence 
 which applied directly to one only of the two, 
 namely, the original deed from John Bryan 
 to Samuel Sackett, dated January 28, 1797. 
 This consisted of the record of a partition 
 made October 18, 1810, on the application of 
 James Hughes, by commissioners, under au- , 
 thorit.y of a general act of the legislature 
 of Kentucky approved December 19, 1796, 
 Hughes claimed the undivided half of the 18,- 
 0(10 acres conveyed to Charles Fleming by the 
 governor of Virginia, by patent dated April 
 21,1792; and alleged as muniments of his title 
 the said patent, and the deed of John Biyan 
 to Samuel Sackett. On the strength of the 
 title shown by Hughes the commissioners di- 
 vided the 18,000 acres, and set off and con- 
 veyed to him the one-half thereof in several- 
 ty, and, in their deed of conveyance, referred 
 to the patent to Charles Fleming, and the 
 deed of Bryan to Sackett, as links in the title 
 of Hughes. The partition thus luade is shown 
 CO have been recognized by successive con- 
 ve,^'ances of parts of the land set off to 
 Hughes, and by possession held thereunder. 
 
 306 
 
 The testimony therefore shows that as early 
 as the year 1810 the deed of Bryan to Sack- 
 ett was in existence; that it was recognized 
 as a genuine deed by public officers whose 
 duty it was to scrutinize it, and was made 
 by them the basis of their official action; and 
 that possession has been held of a portion of 
 the land described therein by persons who 
 trace title through it to the patent to Charles 
 Fleming. These two deeds under considera- 
 tion are shown by the record to have a com- 
 mon history, and to have been relied on as 
 links in the same chain of title. Testimony, 
 therefore, which is directly applicable to one 
 only tends to support the other. The facts, 
 therefore, which we have just stated in refer- 
 ence to the deed from Bryan to Sackett tend 
 to show also the genuineness of the deed from 
 Fleming and the Bernards to Bryan. We 
 are therefore of opinion that the genuineness 
 of both deeds was proven, and that the court 
 erred in excluding them from the jury. 
 
 The offer in evidence of the original deed 
 from Charles Fleming to John and William 
 Bryan, dated August 8, 1794, stands upon sub- 
 stantially the same ground as the two deeds 
 already considered. The bill of exceptions 
 states that the plaintiffs offered in support of 
 the competency of this deed the same evi- 
 dence as was offered in support of the two 
 last-mentioned deeds; that it was found at 
 the same time and place, and produced from 
 the same custody. In further support thereof 
 the plaintiffs produced the clerk of the Mason 
 county court, having with him Deed Book B, 
 containing deeds recorded in the clerk's office 
 of that court, beginning February 22, 1794, 
 and the two or three years next ensuing, and 
 offered to show that there was recorded in 
 that book a deed identical in terms with the 
 aforesaid original deed. They also offered 
 and read in evidence a copy of the deed, duly 
 certified from the clerk's office of the Mason 
 county circuit court, with a copy of the cer- 
 tificate thereto appended showing that the 
 original deed was recorded in the year 17&4. 
 It follows, from what we have said in rela- 
 tion to the admissibility of the other original 
 deeds, that this one, also, should have been 
 received in evidence, and that the circuit 
 court erred in excluding it. 
 «:— It remains to consider the exclusion by 
 the circuit court of the transcript of the 
 record in the case of Clark v. Conkling. 
 This was a suit brought by Clark in the 
 district court held at AVashington, in Mason 
 county, Kentucky, on June 13, 1798, as the 
 assignee of the mortgage from Conkling to 
 Sackett, to foreclose the same, and the record 
 was ottered only to show the orders and de- 
 crees of the court in respect to the mortgag- 
 ed premises situated within its jurisdiction, 
 and not to pr(>ve au.y personal decree against 
 the defendants. It appears from the record 
 in this case that a subpoena having been is- 
 sued and returned, with the indorsement 
 that the defendants were not inhabitants 
 of the commonwealth, the court made the 
 
ANCIENT DEEDS, DOCUMENTS, ETC. 
 
 [Case No. i04 
 
 following order at its Novemlier term, 179S: 
 "The defeudauts, not having entered their 
 appearance agreeably to «n act of assembly 
 and rules of this court, and it appearing to 
 the satisfaction of the court that they are 
 not Inhabitants of this commonwealth, on 
 the motion of the complainant, by his at- 
 torney, it is ordered that the defendants 
 appear here on the third day of our next 
 term, and answer the complainants' bill; 
 and that a copy of this order be inserted in 
 the Kentucky (Jazette or Herald for two 
 months, successively, another posted at the 
 door of the court-house of Mason county; 
 and that this order be published some Sun- 
 day at the door of the Baptist meeting-house 
 in Washington." In June, 1799, the bill was 
 taken as confessed, and an interlocutory 
 decree made requiring the defendants to 
 pay the money due on the mortgage. The 
 money not having been paid, a . decree of 
 sale was made at the February term, 1800. 
 The commissioners to make the sale report- 
 ed on July 19, 1802, that after public notice 
 they had sold the lands at public sale to 
 Carey L. Clark, the complainant. After- 
 wards a final decree was made, foreclosing 
 the defendants of their equity of redemption 
 in the jpremises. 
 
 The defendants objected to the introduc- 
 tion of the record, and the objection was 
 sustained, and the defendants now insist 
 that the exclusion of the record was right — 
 First, because the court did not have au- 
 thority of law to hear and determine the 
 subject-matter of the suit, nor of suits of 
 the class to which it belonged; and, second, 
 because the record exhibits no proof of the 
 publication or posting of the notice to the 
 defendants, as required by the laws of Ken- 
 tucky. 
 
 We think the first objection is answered 
 by reference to the statute laws of Ken- 
 tucky in force at the time. Section 8 of the 
 act of the general assembly of Kentucky ap- 
 proved December 19, 1795, "to establish 
 district courts in this commonwealth," pro- 
 vided as follows: "The jurisdiction of the 
 said district courts, respectively, shall be 
 over all persons, and in all causes, matters, 
 aqd things at common law or in chancery, 
 arising within their districts," excepting 
 actions of assault and battery, or suits for 
 slander, and subjects of controversy of less 
 than £50 in value. 1 Littell, Laws Ky. 298. 
 Section 4 pf the act approved December 19, 
 179G, directing the method of proceeding 
 in courts of equity against absent debtors 
 and other absent defendants, provides for 
 constructive service by publication "in all 
 cases whatever when a suit is or shall be 
 pending in any court of chanceiy, concern- 
 ing any matter or thing whatever, against 
 any absent defendant or defendants." 1 St. 
 Laws (M. & B.) 93. These provisions of 
 the statute law are ample to confer juris- 
 diction on the court, where the property in 
 controversy Is within its territorial jurisdic- 
 
 tion, and are so clear as to require no dis- 
 cussion of the question; for, as was said in 
 Grignon's Lessee v. Astor, 2 How. 338, "the 
 power to hear and determine a cause is 
 jurisdiction. If the law confers the power 
 to render a judgment or decree, then the 
 court has jurisdiction." 
 
 But it is objected to the record that it does 
 not show publication and posting of notice 
 to the defendants, as required by the order 
 of the court and by law. The law is found 
 in section 2 of the act of December 19, 1796, 
 ubi suijra, and is as follows: "The court 
 shall also appoint some day in the succeed- 
 ing term, for the absent defendant or de- 
 fendants to enter his, her, or their appear- 
 ance to the suit, and give security for per- 
 forming the decree, a copy of which order 
 shall be forthwith published in the Ken- 
 tucky Gazette or Herald, and continued for 
 two months successively, and shall also be 
 published on some Sunday, immediately aft- 
 er divine service, in such church or meet- 
 ing-house as the court shall direct, and 
 another copy shall be posted at the front 
 door of the said court-house." 
 
 The plaintiffs in the present case ofEered 
 evidence outside the record to prove the fact 
 that the order was published in the Ken- 
 tucky Gazette, as required by the statute, 
 by calling the assistant librarian of the pub- 
 lic library at Lexington, "having with him," 
 as the bill of exceptions states, "printed 
 newspapers which appeared to be of great 
 age, and which purported to be the original 
 files of the newspaper called the Kentucky 
 Gazette, published weekly, and plaintiffs 
 showed, in nine successive issues of said 
 newspaper, weekly publications, beginning 
 with December 12, 1798. and ending with 
 February 7, 1799, of" the order of the court 
 above mentioned. But no proof was of- 
 fered to show the publication of the order 
 at the church or meeting-house, or the post- 
 ing of it at the front door of the court- 
 house. After the lapse of more than 80 
 years proof not of record of these facts was 
 clearly impossible. The fact, therefore, that 
 after the lapse of so long a time the plain- 
 tiffs were able to show that the order of 
 the court had been obeyed, by its publication 
 in a newspaper, was persuasive evidence 
 that the other requirements of the order had 
 also been performed. 
 
 But the record contained no proof of the 
 publication and posting of the notice as re- 
 quired by the statute, and it is insisted by 
 the defendants in this case that the record 
 itself must show the publication and posting 
 of the notice as required by law, otherwise 
 the jurisdiction of the court does not ap- 
 pear, and its decree is absolutely void. 
 While it must be conceded that, in order to 
 give the court jurisdiction over the persons 
 of the defendants, all the steps pointed out 
 by the statute to effect constructive service 
 on n(5n-residpnts were necessary, yet it does 
 not follow that the evidence that the steps 
 
 307 
 
Case No. 104] 
 
 PKOOF. 
 
 were taken must appear in the record, un- 
 less, indeed, the statute expressly or by im- 
 plication requires it. The court which made 
 the decree in the case of Clark v. Conkling 
 ^^•as a court of general jurisdiction. There- 
 foi'e every presumption not inconsistent 
 witli the record is to t)e indulged in favor 
 of Its jurisdiction. Kempe's Lessee v. Ken- 
 nedy, 5 Cranch, 173; Voorhees v. Bank of 
 U. S., 10 Pet. 449; Grignon v. Astor, 2 Uow. 
 319; Harvey v. Tyler, 2 Wall. 32S. It i-? 
 to he presumed that the court, before mak- 
 ing its decree, took care to see that its order 
 for constructive service, on which its right 
 to make the decree depended, had been obey- 
 ed. That this presumption is authorized 
 will appear by the following cases: 
 
 In Harvey v. Tyler, ubi supra, the court, 
 speaking by Mr. Justice Miller, said: "The 
 jurisdiction which is now exercised by the 
 common-law courts in this country is, in a 
 very large proportion, dependent upon spe- 
 cial statutes confeiTing it. * * * In all 
 cases where the new powers thus conferred 
 are to be brought into action in the usual 
 form of .common-law or chancery proceed- 
 ings, we apprehend there can be little doubt 
 that the same presumptions as to the juris- 
 diction of the court and the conclusiveness 
 of its action will be made as in cases falling 
 more strictly within the usual powers of the 
 court." 
 
 In Hall V. Law, 102 U. S. 461, the validity 
 of a partition of lands made by a circuit 
 court of the state of Indiana was attacked. 
 This court, speaking by Mr. Justice Field, 
 said: "All that" the statute "designates as 
 necessary to authorize the court to act is 
 that there should be an application for par- 
 tition by one or more joint proprietors, after 
 giving notice of the intended application in 
 a public newspaper for at least four weeks. 
 When application is made, the court must 
 consider whether it is by a proper party, 
 whether it is sufficient in form and sub- 
 stance, and whether the requisite notice has 
 been given, as prescribed. Its order made 
 thereon is an adjudication in these matters." 
 
 The case of Voorhees v. Bank of U. S., 10 
 Pet. 449, was an action of ejectment, and 
 the case turned on the validity of a sale of 
 the premises in controversy under a judg- 
 ment of the court of common pleas of Hamil- 
 ton county, Ohio, In a case of foreign attach- 
 ment. The sale was attacked on the fol- 
 lowing among other grounds: (1) Because 
 the statute authorizing the proceeding by 
 foreign attachment required that an affidavit 
 should be made and filed with the clerk 
 before the writ issued, and no such affidavit 
 was found in the record; (2) because the 
 statute directed three months' notice to be 
 given, by publication in a newspaper, of 
 the issuing of the attachment, before judg- 
 ment should be entered, and also required 
 
 308 
 
 15 days' notice of sale to be given, neither 
 of which appeared by the record to have 
 been done; (3) because the statute required 
 that the defendant should be put in default 
 at each of the three terms preceding the 
 judgment, and the default entered of record, 
 but no entry was made of the default at the 
 last of the three terms. But the court over- 
 ruled the objections, and sustained the val- 
 idity of the judgment and the sale. It said: 
 "But the provisions of the law do not pre- 
 scribe what shall be deemed evidence that 
 such acts have been done, or direct that their 
 performance shall appear on the record. 
 The thirteenth section of the attachment 
 law, which gives to the conveyances of the 
 auditors the same effect as a deed from the 
 defendant in the attachment, contains no 
 other limitation than that it shall be "in 
 virtue of the authority herein granted.' This 
 leaves the question open to the aioplication of 
 those general principles of law by which 
 the validity of sales made under judicial 
 process must be tested, in the ascertainment 
 of which we do not think it necessary to 
 examine the record in the attachment, for 
 evidence that the acts alleged to have been 
 omitted appear therein to have been done." 
 
 The result of the authorities and what we 
 decide is that where a court of general juris- 
 diction is authoi'ized in a proceeding, either 
 statutory or at law or in equity, to bring 
 in, by publication or other substituted ser- 
 vice, non-resident defendants interested in 
 or having a lien upon property lying within 
 its territorial jurisdiction, but is not requir- 
 ed to place the proof of service upon the rec- 
 ord, and the court orders such substituted 
 seivlce, it will be pi'esumed in favor of the 
 jurisdiction, that sei^vice was made as or- 
 dered, although no evidence thereof appears 
 of record, and the judgment of the court, 
 so far as It affects such property, will he 
 valid. The case of Galpln v. Page, 18 Wall. 
 350, cited by counsel for defendant, is not 
 in conflict Avith this proposition. The judg- 
 ment set up on one side and .ittacked on the 
 other in that case was rendered on service 
 by publication. The law permitted service 
 to be made by publication only where cer- 
 tain facts were made to appear to the satis- 
 faction of the court, and the court by a 
 isrecedent order, which must necessarily ap- 
 pear of record, authorized service to be 
 made by publication. But the record showed 
 no such order, and the publication, there- 
 fore, was the unauthorized act of t\^e party, 
 and appeared affirmatively to be invalid and 
 ineffectual, See, also, Pennoyer v. NefE, 95 
 V. S'. 727, 734. 
 
 It results from the views we have express- 
 ed that the judgment of the circuit court 
 of Kentucky must be reversed, and the cause 
 remanded, with directions to grant a new 
 trial. 
 
PUBLIC DOCUMENTS PKOVED BY CEKTIFIED COl'lES. 
 
 [Case No. ivt^ 
 
 NITCHE et al. v. EARLB. 
 
 (19 X. E. 749, 117 Ind. 270.) 
 Supreme Court of Indiana. .Tan. 29, 18S9. 
 
 Appeal from circuit court, Lake county; E. 
 O. Field, Judge. 
 
 Action by John G. Earle against J. A. 
 Nitche and others. Nitche appeals. Const. 
 Ind. art. 4, § 19, requires that "every act 
 shall embrace but one subject, and matters 
 properly connected therewith, which subject 
 shall be expressed in the title. * * *" By 
 Rev. St. Ind. 1881, § 1065, which is included 
 in the article entitled "Ejectment," and the 
 section preceding which provides tor a new 
 trial of right, "if the application for a new 
 trial Is made after the close of the term at 
 which the judgment is rendered, the party 
 obtaining a new trial shall give the opposite 
 party 10 days' notice thereof before the term 
 next succeeding the granting of the applica- 
 tion." 
 
 J. Kopelke, for appellant. C. F. Griffin, 
 for appellee. 
 
 OLDS, J. This action was commenced by 
 appellee against appellant on the 2d day of 
 March, 1881, in the Lake circuit court, to 
 recover the possession of, and qniet title to, 
 a tract of land in Lake county, Ind. Issues 
 were formed, and the cause tried by the 
 court at the November term, 1881, and judg- 
 ment rendered for appellee upon a special 
 finding of facts. From that judgment ap- 
 pellant Nitche appealed to this court, and 
 the cause was reversed. Nitche v. Earle, 88 
 Ind. 37.5. Under the direction of this court, 
 the court below, at the September term, 1883, 
 entered judgment for appellant upon the 
 special finding of facts. At the February 
 term, 1884, the plaintiff obtained a new trial 
 as of right. At the April term, 1884, appel- 
 lant appeared to the action, and moved the 
 court to vacate the order granting the new 
 trial for the insuflSciency of the bond, which 
 motion was overruled; and at the September 
 term, 1884, appellant moved to vacate the 
 order granting a nesv trial for failure of the 
 plaintiff below, the appellee, to give notice 
 thereof, which motion was overruled, to 
 which ruling appellant excepts. Another 
 trial was had at the February term, 1886, 
 and judgment rendered in favor of appellee. 
 Motion was made by appellant and his co- 
 defendants for new trial, and the motion 
 overruled, and excepted to by appellant. The 
 errors assigned are that the court erred in 
 overruling the motion of appellant to vacate 
 the order granting the appellee a new trial, 
 for the i-eason that no notice was given there- 
 of, and the overruling of the motion for new 
 trial. 
 
 There was no error in overruling appel- 
 lant's motion to vacate the order gi'anting a 
 new trial. In the case of Stanley v. Holli- 
 day, 113 Ind. 525, 16 N. E. 513, this court 
 has placed a construction on section 1065, 
 
 Rev. St. 1881, and the court in that case 
 says: "The intention of the legislature in 
 requiring that 'the party obtaining a new 
 trial shall give the opposite party ten days' 
 notice thereof before the terra next succeed- 
 ing the granting of the application,' as we 
 construe such requirement in connection 
 with the other provisions of the statute re- 
 lating to new trials as of right, was to pre- 
 vent either party from forcing the opposite 
 party into trial at or during the term at 
 which the new trial was granted, or before 
 the term next succeeding. This provision of 
 section 1065 was rendered necessary, we sup- 
 pose, to prevent the plaintiff in such a case 
 from forcing defendants into trial during the 
 term at which the new trial was granted, 
 under the provisions of section 510, Rev. St. 
 1881." Under this authority the action of 
 the court was right in granting the new 
 trial, and overruling appellant's motion to 
 vacate for failure of notice. 
 
 Several questions are presented upon the 
 overruling of the motion for new trial. The 
 first is admission by the court in evidence, 
 over objection of appellant, of a certified 
 copy of the record of a patent by the state 
 of Indiana to George Earle for the real es- 
 tate described in the complaint, which rec- 
 ord of patent was certified to by James H. 
 Rice, auditor o'f state. It is urged that it is 
 shown on the face of the record not to be 
 the copy of any record; that for all it shows 
 on the face of it it may be the original pat- 
 ent; that it has the signatures of the gov- 
 ernor and secretary of state, and nowhere 
 has a certificate of the secretary of state 
 that he recorded it, and counsel insist that, 
 unless the instrument shows, by official en- 
 tries or certificates by officers who made it, 
 that it is a record, it is no record; that a 
 volunteer statement by the present keeper, 
 giving his opinion about it, will not make it 
 a record; that by the original law these rec- 
 ords were to be kept in the office of the sec- 
 retary of state; that the certificate of the 
 auditor of state should show how he came 
 by the book. 
 
 The instrument offered and admitted in 
 evidence was a certified copy of letters pat- 
 ent to George Earle for the land in question 
 in this case, the auditor of state certifying 
 the same to be "a full, true, and complete 
 copy of the record of letters patent executed 
 and issued on the 12th day of January, 1857, 
 by the state of Indiana to George Earle, for 
 the lands therein described, as the same ap- 
 pears on page 379 of the Record of Swamp 
 Lands, Vol. 33, Range West, now on file in 
 my office, and of which record I am the legal 
 custodian," properly signed by the auditor 
 of state, and seal attached. By section 5628, 
 Rev. St. 1881, all records pertaining to 
 swarrip lands were transfen-ed from the of- 
 fice of the secretary of state to the office, at 
 the auditor of state. Section 462 prescribes 
 the manner in which all copies of records in 
 public offices shall be certified, and makes 
 
 209 
 
Case No. 105] 
 
 PROOF. 
 
 them admissible in evidence. Tlie statute 
 makes the auditor of state the proiser custo- 
 dian of the record of letters patent which 
 were formerly recorded by the secretary of 
 state, and kept in his office, and this copy 
 of the record was properly authenli<atcd. 
 Section 4, Gavin & H. St. 607, made it the 
 duty of the secretary of state to record these 
 letters patent In books to be kept in his 
 office. Thus it was first provided by stat- 
 ute and made the duty of the secretary of 
 state to record the letters patent In a book 
 in liis ofliice, and afterwards this record was 
 by statute transferred to the office of the 
 auditor of state. Courts take knowledge of 
 the public statutes of the state, and, in the 
 absence of evidence to the contrary, the pre- 
 sumption of law is that the officers discharge 
 their duties ; and the presumption in this case 
 would be that the secretary of state record- 
 ed the patent, and that the record book con- 
 taining the same had been by him turned 
 over to the auditor of state. Evans v. 
 Browne, 30 Ind. 514; Ward v. State, 48 Ind. 
 289; Evans v. Ashley, 22 Ind. 1.5. 
 
 The next question presented is that the ap- 
 pellant called one Johannes Kopelke as a 
 witness, and offered to prove that he had 
 examined the book from which the auditor 
 of state took his copy of the. pretended rec- 
 ord of the Earle patent; that it contained no 
 official certificate, and was not on the out- 
 side designated as a record book. The issue 
 of patents was required by statute to be re- 
 corded. The statute providing for the rec- 
 ord simply made it the duty of the secretary 
 of state to record them "in books to be kept 
 in his office." It does not require the book 
 to be designated on the outside as a "Record 
 of Patents," or to have any indorsement 
 whatever on the same, or that the secretary 
 of state shall attach any certificate to the 
 same. So tlie evidence excluded was im- 
 proper, and the ruling of the court was cor- 
 * rect. 
 
 Appellant also offered to prove by A. D. 
 Palmer, a witness on his behalf, who had 
 also purchased the same tract of land of the 
 state, and obtained a patent therefor. May 
 2, 18G6, and through whom appellant claim- 
 ed title, that before he purchased the land 
 in controversy of the state he made search 
 at the state and county offices, and could find 
 no previous conveyance of record. It also 
 appears in the record that appellee offered in 
 evidence the deposition of Erasmus B. Col- 
 lins, who testified in said deposition that 
 he was the same Collins who was secretary 
 of state of the state of Indiana, and signed 
 said letters patent to Earle, and that he re- 
 corded it in volume 33, Record of Swamjj 
 Lands in the State of Indiana, on page 379, 
 and that said record was made .January 12, 
 i857; also the deposition of James H. Rice, 
 the auditor of state, to show that said record 
 had been transferred to the office of the 
 auditor of state, and was in his possession at 
 the time of making the certificate; which 
 
 depositions were objected to by counsel for 
 appellant, on the ground that it was an at- 
 tempt by said depositions to prove matters of 
 record by parol evidence, and the objection 
 was sustained, and the depositions excluded. 
 
 The evidence of Palmer was to show the 
 absence of a record in the office of the secre- 
 tary of state which the deposition sought to 
 show was made and was in said office at the 
 time and long before the making of the pat- 
 ent to Palmer. If parol evidence was prop- 
 er to show there was no such record made or 
 kept in the office of the secretary of state at 
 a certain time, then certainly evidence to 
 show that such record was in fact made and 
 was in the office at that time was proper. 
 A party must be consistent. If he objects 
 and secures a ruling against his adversary 
 excluding evidence on a particular subject, 
 he cannot be heard to complain when the 
 court applies the same rule, and excludes 
 evidence offered by him to establish the op- 
 posite of what his adversary had attempted 
 to prove by the evidence which was ex- 
 cluded on his objection. In the case of Din- 
 widdle V. State, 103 Ind. 101, 2 N. E. 290, 
 this court says: "It is settled by the ad- 
 judications of this court that a party cannot 
 make available for the reversal of a judg- 
 ment the exclusion of evidence, where, upon 
 his objection, like evidence was excluded 
 when offered by the other party." Hinton 
 V. Whittaker, 101 Ind. 344. And this doc- 
 trine applies with full force to the objection 
 raised by appellant to the exclusion of the 
 testimony of Palmer. The law did not re- 
 quire these patents to De recorded in the 
 recorder's office. It is so decided in case of 
 Mason v. Cooksey, 51 Ind. 519, and is rec- 
 ognized as the law by this court in the for- 
 mer decision of this case. 
 
 It is contended that the law providing for 
 the recording of letters patent in the office 
 of the secretary of state is unconstitutional, 
 for the reason that it does not come within 
 the provisions of section 19, art. 4. Const. 
 We tliink otherwise. The title to the orig- 
 inal act to which this was supplemental was 
 entitled "An act to regulate the sale of 
 swamp lands donated by the United States 
 to the state of Indiana, and to provide for 
 the draining and reclaiming thereof, in ac- 
 cordance with the condition of said grant." 
 The title is broad enough to cover all things 
 done in connection with the sale, and in con- 
 nection with the execution of the patent. 
 The statute provides that the secretary of 
 state, one of the officers who signs it, shall 
 record it in his office. It is ordered recorded 
 in connection with the making of the patent, 
 and the title is broad enough to cover the 
 provisions of the act requiring the record. 
 
 It is claimed that, as the appellee never 
 had possession of the real estate, it is in- 
 cumbent on him, to entitle him to a recovery, 
 to show a complete chain of title from the 
 United States down to him. This theory is 
 not tenable in this case. Courts of this state 
 
PUBLIC DOCUMENTS PROVED BY CERTIFIED COPIES, [Case No. 105 
 
 take knowledge of the acts of cougvess grant- 
 ing to this state swamp land, which, taken 
 in connection with the patent from the state, 
 makes a complete chain of title. In addi- 
 tion to this, it is a well-settled principle that, 
 when plaintifC and defendant claim through 
 a common source of title, it is sufficient for 
 the plaintifC to deduce his title from the com- 
 mon source of title. In this case both plain- 
 tifC and defendant claim title from the state 
 
 of Indiana, and it was only incumbent on 
 the plaintifC to show that he hacf the better 
 title from the state. Smith v. Lindsey, 89 
 Mo. 76, 1 S. W. 88; Miller v. Hardin, 64 Mo. 
 545; Miller v. Surls, 19 Ga. 331; Barnard v. 
 Whipple, 29 Vt. 401. 
 
 The evidence supports the finding of the 
 court. We find no error for which the cause 
 ought to be reversed. 
 
 Judgment affirmed, with costs. 
 
 311 
 
Case No. 106] 
 
 PKOOF. 
 
 UNITED STATES v. BELL et al. 
 
 (4 Sup. Ct. 498, 111 U. S. 477.) 
 
 Supreme Court of the United States. April 21, 
 1884. 
 
 In error to the district court of the United 
 States for the Northern district of Missis- 
 sippi. 
 
 Asst. Atty. Gen. Maury, for plaintiff in er- 
 ror. 
 
 Chas. F. Benjamin and Richard McAllis- 
 ter, for defendants in error. 
 
 WAITE, C. J. This was a suit upon the 
 bond of a purser in the navy, and at the 
 trial a transcript from the books and pro- 
 ceedings of the treasury department was of- 
 fered in evidence, authenticated in the fol- 
 lowing form: 
 
 "Treasury Department, Fourth Auditor's Of- 
 fice, Washington, D. C, Feb. 11, 1881. 
 
 "Pursuant to section 886 of the Revised 
 Statutes of the United States, I, Charles 
 Beardsley, fourth auditor of the treasury de- 
 partment, do hereby certify that the annex- 
 ed is a transcript of the books and proceed- 
 ings of the treasury department, in account 
 with Miles H. Morris, late paymaster in the 
 United States navy, under bond of April 9, 
 1858. Charles Beardsley, Auditor." 
 
 "Be it remembered that Chas. Beardsley, 
 Esq., who certified the annexed transcript, 
 is now, and was at the time of doing so, 
 fourth auditor' of the treasury of the United 
 States, and that full faith and credit are due 
 to his official attestations. 
 
 "In testimony whereof, I, John Sherman, 
 secretary of the treasury of the United 
 States, have hei-eunto subscribed my name 
 and caused to be affixed the seal of this de- 
 partment, at the city of Washington, this 
 eleventh day of February, in the year of our 
 Lord 1881. 
 
 "[Seal of Department.] John Sherman, 
 "Secretary of the Treasury." 
 
 An objection to the admission of the evi- 
 dence on the ground that the "transcript 
 was not certified as required by law," was 
 sustained by the court, and that is assigned 
 
 312 
 
 for error here. In our opinion the certifi- 
 cate was sufficient. Section 886 of the Re- 
 vised Statutes provides that "when suit is 
 brought in any case of delinquency of a rev- 
 enue officer, or other person accountable for 
 public money, a transcript from the books 
 and proceedings of the treasury department, 
 certified by the register and authenticated 
 under the seal of the department, or, when 
 the suit involves the accounts of the war 
 and navy departments, certified by the au- 
 ditors respectively charged with the exam- 
 ination of those accounts and authenticat- 
 ed under the seal of the treasury depart- 
 ment, shall be admitted as evidence, and the 
 court trying the cause shall be authorized to 
 grant judgment and award execution accord- 
 ingly." This suit involved the accounts of 
 the navy department. The fourth auditor 
 is charged by law with the duty of exam- 
 ining all accounts accruing in that depart- 
 ment. Rev. St. § 277, subd. 5. He has cer- 
 tified under his hand that the paper offered 
 in evidence "is a transcript of the books 
 and proceedings of the treasury department 
 in account with" the purser whose bond is 
 in suit, and the secretary of the treasury 
 has certified, under the seal of the depart- 
 ment, to the official character of the auditor, 
 "and that full faith and credit are due to his 
 official attestations." What more need be 
 done to authenticate the transcript under 
 the seal of the department we are at a loss 
 to determine. The certificate of the proper 
 auditor is attached, and his certificate at- 
 tested by the secretary of the treasury un- 
 der the seal of the department. The form 
 of the certificates and the mode of affixing 
 the seal correspond exactly with what ap- 
 pears in Smith v. U. S., 5 Pet. 292, where it 
 was held, more than half a century ago, 
 that the seal affixed in this way was suffi- 
 cient for the purposes of evidence under a 
 statute, of which section 886 is a re-enact- 
 ment. The transcript is certified by the au- 
 ditor, and authenticated under the seal of 
 the treasury department, affixed by the sec- 
 retary, its lawful custodian. 
 
 The judgment is reversed, and the cause 
 remanded, with instructions to set aside the 
 verdict and grant a new trial. 
 
PUBLIC DOCUMENTS PROVED BY CERTIFIED COPIES. [Case No. 107 
 
 ALEXANDER v. PENNSYLVANIA CO. 
 
 (30 N. E. 60, 48 Ohio St. 623.) 
 
 Supreme Court of Ohio. Dec. 8, 1891. 
 
 Error to circuit court, Mahonins coun- 
 ty. 
 
 Tliis action waH brought in tlie court of 
 •common iileaH of Malioning county by 
 Alexander, tlio plaintiff in error, to re- 
 , cover against the defontlaiit in error, the 
 Pennsylvania Company, damages for in- 
 jiiriea sustained by him while in its em- 
 ployment. He recovered a judgment in 
 that court, which was reversed by the cir- 
 cuit court oF Mahoning county in proceed- 
 ings instituted for that purpose by the 
 defendant in error, whereupon this pro- 
 ceeding was brought to obtain a reversal 
 of the judgment of the circuit court, and 
 to aflirm that of the court of common 
 pleas. Affirmed. 
 
 Jones, Anderson & Terrell, forplaintlff in 
 «rror. Thomas W. Sanderson and J. R. 
 Carey, for defendant in error. 
 
 BRADBURY, J. The record discloses that 
 the plaintiff in error, a boy of about 16 years 
 of age, was in the service of the defend ant as 
 one of a gang of men engaged in relaying 
 tlie tracli of a branch of defendant's rail- 
 road. That his worli mainly consisted in 
 ■carrying water for the other members of 
 the gang; occasionally, however, he as- 
 sisted in the work they were doing. That 
 on the day he was injured a train of cars, 
 loaded with cinders for ballasting the 
 track, was waiting to be unloaded ; and 
 that, as he was climbing on one of the 
 •cars, or perhaps had gotten on it, to help 
 unload the cinders, the train was started 
 forward, by reason of which he was 
 thrown from the car, under its wheels, re- 
 ceiving, besides other lesser injuries, one 
 necessitating the amputation of a leg be- 
 tween the ankle and knee. The foreman 
 of the gang discharged and employed 
 men, had immediate control of them 
 while at work, and of the work being 
 <3one. Undoubtedly, according to the law 
 of this state, he was such a representa- 
 tive of the company as would render it 
 liable to one of the gang of men under his 
 ■control, who should be injured by his neg- 
 ligence. At this point there is a conflict 
 in the testimony respecting the conduct of 
 the plaintiff in error and the foreman, and 
 the immediate circumstances under whicli 
 the plaintiff went upon the car and the 
 train put in motion ; but there is evidence 
 from which the jury could find that the 
 foreman ordered the plaintiff to assist in 
 unloading the cinders; that, in obedience 
 to this order, he attempted to climb upon 
 a car; that he did so in a reasonably 
 careful manner; and that the foreman 
 carelessly, even recklessly, ordered the 
 train to be moved forward before the 
 plaintiff had secured himself a safe footing 
 upon the car he was attempting to board, 
 thereby throwing him from it, and under 
 its wheels, causing the injury of which he 
 complains; tlius giving to the plaintiff, 
 according to the law of Ohio, a right of 
 action against the railroad company. 
 
 The real questions in contention be- 
 tween the parties in this court arise out of 
 the fact that the accident occurred in the 
 state of Pennsylvania. The defendant in 
 error (also defendant in the court of com- 
 mon pleas) interposed in the last-named 
 court, among other defenses, the follow- 
 ing: "For a second defense it says that 
 said plaintiff entered into its employ 
 within the state of Pennsylvania, and 
 was employed to serve the defendant 
 within the said state of Pennsylvania, 
 and with reference to the laws of said 
 state of Pennsylvania. It says, further, 
 that under the laws of said state of Penn- 
 sylvania, within which said contract was 
 made, and where said plaintiff was act- 
 ing as an employe of the defendant, the 
 plaintiff and all the other employes, in- 
 cluding said gang boss named in plain- 
 tiff's [letition, engaged ujion and about 
 the train in the unloading of the same, are 
 held to be fellow-employes, and for the 
 negligence of either resulting in injury to 
 the other the common master, to-wit, 
 the defendant, is held not to be liable to 
 the other. Wherf'fore this defendant 
 asks to be dismissed, with its costs." The 
 sufficiency of this defense is denied by 
 counsel for plaintiff in error in a forcible 
 and ingenious argument, in which they 
 specially criticise the averment, "are held 
 to be fellow-eniplf)yes," etc. It is true, 
 there is no direct averment that any of the 
 courts of Pennsylvania so held, but the 
 liberal rules applicable to the construc- 
 tion of pleadings in this staterequire us to 
 infer that the pleader so intended. No 
 objection, by motion or otherwise, was 
 made to the form of this defense in the 
 court of /common pleas, or, so far as the 
 record discloses, at any stage in the prog- 
 ress of the case, until made by counsel in 
 their brief filed in this court. Under this 
 defense a number of the decisions of the 
 supreme court of Pennsylvania were in- 
 troduced in evidence to establish the rule 
 of law attempted to be set up by this an- 
 swer. Whether upon motion, made at 
 the proper time, the defense should have 
 besfn made more certain and definite, we 
 need not inquire; for at this late stage 
 in the proceedings, after a strongly con- 
 tested trial, mainly had upon the'issues 
 made by the very defense, and the reply 
 denying its truth, the defense should re- 
 ceive the most favorable construction its 
 language will r>ei"mit; and when the 
 pleader has averred, as in this defense, 
 that " under the laws of the state of Penn 
 sylvania • » * the plaintiff and the 
 'gang boss' * * * are hold to be fel- 
 low-servants," it is entirely reasonable to 
 infer that the alleged holding was by the 
 courts of that state, having authority to 
 declare and announce the rules of law 
 operative therein. 
 
 The record of the proceedings in the cir- 
 cuit court is ambiguous. One of the as- 
 signments of error made in that court by 
 the defendant in error here was that the 
 court of common pleas erred in overruling 
 its motion for a new trial, and one of 
 the grounds for a new trial stated is that 
 the motion was that the verdict was con- 
 trary to the weight of the evidence; so 
 that the circuit court had before it for de- 
 
 313 
 
Cass Xo. 107] 
 
 PllOOF. 
 
 cision tliat question ; and, had it reversed 
 the judgment of the court of common 
 pleas on that ground, this court wouhl 
 not have reversed its action, and the same 
 result would have followed from a gener- 
 al judgment of reversal,— that is, one spec- 
 ifying no particular ground for tlie action 
 of the court, — for in tliat case, as thecourt 
 might have reversed the judgment on the 
 ground that it was contrary to the evi- 
 dence, this court cannot suy that was not 
 the ground of its action. Titus v. Lewis, 
 38 Ohio St. 304. In the case at bar, how- 
 ever, tliere is an attempt to state in the 
 journal entry of the circuit court the 
 grounds of its action in reversing the judg- 
 ment of the court of common pleas, as fol- 
 lows: "First. The court finds from exam- 
 ination of record and bill of exceptions 
 that it was not controverted in the trial 
 in the court below but that there were 
 officers of the Pennsylvania Company su- 
 perior in authority to Frank Kennan, 
 who had the right and authority to con- 
 tract and supervise his action in conduct- 
 ing the work, and controlling the men 
 during the work in which the plaintiff be- 
 low was engaged at the time he received 
 the injury. SeconU. The court holds as 
 conclusion of law that the determination 
 of this case must be governed b.y the law 
 in the state of Pennsylvania. Third. The 
 court further finds as a conclusion of law, 
 from the reports of the decisions of the 
 supreme court of Pennsylvania, contained 
 in the record, that said Frank Kennan 
 was a fellow-servant andco-emploi'e with 
 said Alexander at the time he received his 
 injur.v; and, therefore, that plaintiff in 
 error is not liable for the alleged negligent 
 acts of said Kennan, which caused the in- 
 jury to defendant in error. To all of 
 which holdings defendant in eri'or except- 
 ed." This is not, in the correct and legal 
 sense of the term, a finding of the facts 
 in the case, and a statement of them sep- 
 arately from the conclusions of law ar- 
 rived at by the court, although it closely 
 resembles it inform; for it is not within 
 the province of the circuit court, in a pro- 
 ceeding in error before it, to find from.lhe 
 evidence contained in the bill of excep- 
 tions the facts, and state them separately 
 from its conclusions of law. Senff v. Pvle, 
 46 Ohio St. ]()2, 24 N. E. Rep. 59.^: Yoiing 
 V. Pennsylvania Co., 46 Ohio St. 558, 24 N. 
 E. Rei). .55)5, Neither does it give as the 
 ground of the reversal any one of the er- 
 rors assigned in that court. Whatit real- 
 ly does disclose is that the circuit court, 
 being ol opinion that the law of Penn- 
 sylvania should govern the case, the ver- 
 dict of the jury was against the weight of 
 the evidence, because from a consideration 
 of the whole evidence it appeared that 
 the plaintiff in error was a fellow-servant 
 of the "gang boss," by who.se negligence 
 he was injured; and that in such case the 
 law of Pennsylvania would not permit a 
 recovery to be had against the railroad 
 company, in whose service both were at 
 the time engaged. It may be considered, 
 therefore, as fairly shown by the record, 
 that the circuit court would not have re- 
 versed till; judgment of the court of com- 
 mon pleas it it had not held the case to be 
 governed by the law of that state. It 
 314 
 
 therefore becomes material to inquire if 
 the circuit court was right in this respect. 
 The first branch of the inquir.y concerns 
 the method by wliich the law of Pennsyl- 
 vania is to be determined. Is it to be 
 jfound as matter of fact by the jury from 
 Ithe evidence, or judicially declared by the 
 court? That it is a fact to be determined 
 by the jury is, we think, a well-estab- 
 lislied principle of law. Ingraham v. 
 Hurt, 11 Ohio, 255; Bank v. Baker, 15 
 Ohio St. 68; Williams v. Finlay, 40 Ohio 
 St. 342. It does not follow from this, 
 however, that where, as in the ease at 
 bar, numerous decisions of the several 
 courts of a state are introduced in evi- 
 dence to a jury as proof of the law of such 
 state, the jury should bo required to- 
 search through them, and elucidateand an- 
 nounce the doctrine they establish. This is 
 often a most difficult and delicate duty for 
 courts and judges of the greatest skill, 
 learning, and experience to undertake. 
 To submit its performtmce to a body of 
 men inexperienced in the examination 
 and construction of judicial decisions, and 
 not familiar with the general doctrines 
 pertaining to the subject, would be to- 
 submit the rights of parties involved in 
 the controversy to be determined by a 
 method little, if any, more certain than 
 the cast of a die. In such case it becomes 
 the duty of thecourt, as in the case of 
 any other documentaryevidence requiring 
 construction, to construe the decisions, 
 the rulings of the trial court in this re^ 
 spect being subject to review by other 
 courts having jurisdiction in error, thus 
 securing as much certainty in ascertaining 
 the law of another state or country as 
 the nature of the subject will admit. Di 
 Sora V. Phillipps, 10 H.L.Cas.624; Bremer 
 V. Freeman. 10 Moore, P. C. 306; State v. 
 Jackson, 2 Dev. 563: Cobb v. Transporta- 
 tion Co., 87 Mo. 90 ; Kline v. Baker, 99 Mass. 
 2.53 : Thomp. Trials, § 1054. The record dis- 
 closes that thecontract by which the plain- 
 tiff in error was employed was made in 
 the state of Pennsylvania; that his 
 services were to be rendered wholly within 
 that state, and that he was injured there- 
 in. If the right of a servant to recover 
 damages from his master on account of 
 an injury received through the negligence 
 of a superior servant of the same muster 
 arises out of contract, then the case of 
 Knowlton v. Railway Co., 19 Ohio St. 269, 
 is decisive of the case at bar. The sylla- 
 bus of that case reads : "The defendantis 
 a common carrier of passengers, incorpo- 
 rated by the laws of New York, and was 
 sued as such connnon carrier on account 
 of injuries received by the plaintiff whilst 
 being carried as a passenger from one 
 point to another on defendant's road, and 
 wholly within said state. The injury was 
 charged to have been occasioned b.v de- 
 fendant's negligence. The pleadings show 
 the plaintiff was being carried gratuitous- 
 ly at the time of the accident, under aeon- 
 tract by which plaintiff assumed all risks 
 of accident and injury arising from negli- 
 gence, etc., and such contract is valid by 
 the laws of New York. Held, that the va- 
 lidity of the stipulation exempting the de- 
 fendnnt from liability for negligence must 
 be determined by the laws of New York, 
 
PUBLIC DOCUMENTS PliOVED BY CERTIFIED COPIES. [Case No. 107 
 
 witbin whose jurisdiction the contract 
 was made und to be executed ; and as the 
 plaintiff, uncier his contract, could have 
 no right of action in the courts of New 
 York, so his action cannot be maintained 
 in this state." 
 
 In Railway Co. v. Ranney, 37 Ohio St. 
 665, McIlvaine, J., said, (page 669:) "The 
 principles of law in relation to the lia- 
 bility of a master tor an injury to his serv- 
 ant while engaKed in the perforniante of 
 duties under his employment have been 
 so fre<iu(>ntly considered and declared by 
 this court, and upon such varied state- 
 ments of fact, that one might be justified 
 in assuming that the law upon this sub- 
 ject, in all its bearings, has been fully set- 
 tled. The respective rights and duties of 
 employer and employe sound in contract. 
 The employer implicitly engages to use 
 reasonable care and diligence to secure the 
 safety of the employe, and, among other 
 things, to exercise reasonable care in the 
 selection of prudent fellow-servants. He 
 also engages that every one placed in au- 
 thority over the servant, with power to 
 control and direct him in the performance 
 of his duties, will exercise reasonable care 
 in providing for bis safety, whether such 
 superior be a fellow-servant or not, in the 
 ordinary sense. " There is strong ground 
 to contend tliat Judge MoIi-vaink states 
 the rule correctly. But however that 
 may be, and whether tne action of the 
 plaintiff in error sounds in contract or 
 tort, in either case we think it is to be 
 governed by the law of Pennsylvania. If 
 the acts of the parties impose no obliga- 
 tions on the one hand and confer no rights 
 upon the other, where they occur, no good 
 reason is apparent why they should 
 spring into active existence the moment 
 the parties pass into another jurisdiction, 
 where, if theyjiad occurred therein, such 
 relative rights and obligations would 
 
 have resulted. An act should be judged 
 by theluwof the jurisdiction where it was 
 committed. Tne party acting or oinit- 
 ting to act must be presumed to havebfen 
 guided by the law in force at the time and 
 place, and to which he owed obedience. 
 If his conduct, according' to that law, 
 violated no right of another, no cause of 
 action arose, for actions at law are pro- 
 vided to redress violated rights. Nor is it 
 material that the rules of Pennsylvania 
 law that deny relief to plaintiff in error 
 result from the adjudications of thecourts 
 of that state, instead of being legislative 
 enactments. The rules of law established 
 by judicial decisions are as binding as leg- 
 islative enactments until modified or over- 
 turned by other decisions or legislative en- 
 actments binding within that jurisdiction. 
 In theory it may be true that there is no 
 common law of Oliio or of Pennsylvania ; 
 that the common law is one and the same 
 in every state acknowledging its obliga- 
 tions; and that the decisions of one state 
 are bat evidence of it, not binding upon 
 the courts of any other state; t)ut, as 
 matter of fact, we know that, in the ap- 
 plication of the rules of the common law 
 to the afiairs of men, there is, unfortu- 
 nately, in the several states, a wide di- 
 vergence; and that it necessarily follows 
 that acts and transactions sufficient in 
 one state to create a cause of action will 
 not produce that result in another, and 
 in the administration of justice mere 
 theory must be made to yield to the truth 
 as established by facts and experience. 
 Other questions were urged upon our con- 
 sideration by counsel in argument, some 
 or all of which may be material upon the 
 retrial of the action, but they are not pre- 
 sented by the record in such manner as to 
 authorize their consideration at this time, 
 and will not be noticed. Judgment af- 
 firmed. 
 
 315 
 
 \f 
 
Case No. 108] 
 
 PKOOP. 
 
 WISEJIAN T. NORTHERN PAO. E. CO. 
 
 (2(j Pac. 272, 20 Or. 425.) 
 
 Supreme Court of Oregon. March 31, 1891. 
 
 Appeal from circuit court, Multnomah 
 county; E. D. Shatt[;ck, Judg'e. 
 
 On March 19, lS90,theplain tiff, J. .J. Wise- 
 man, commenced an action In the circuit 
 court of the state of Oregon for the coun- 
 ty of Multnomah against the defendant, 
 to recover the sum of .$39S.72, the value of 
 certain household goods claimed to have 
 been lost by defendant in transit. Tlie 
 complaint alleges that on orabrtut the Sth 
 day of April, 1S89, at Nunica, Mich., the 
 plaintiff delivered to the Detroit, Grand 
 Haven & MiUvaukee Railway Company a 
 shipment of six boxes, one trunk, one roll of 
 carpet, and two barrels containing house- 
 hold goods, the property of the plaintiff, 
 for transportation to Salem, Or.; that 
 said shipment was in duetime delivered in 
 good order to the defendant as a connect- 
 ing carrier; and that one of said boxes 
 and one of said barrels, with their entire 
 contents, were destroyed, and never de- 
 livered to plaintiff, ^\ hich household goods 
 so destroyed were of the value of $373.0.5. 
 The defendant, in its answer to the com- 
 plaint, admits the shipment b.y plaintiff, 
 and the delivery to the Detroit, Grand 
 Haven & Milwaukee Railway Company, 
 of the household goods in question, and 
 that the same was in due time received by 
 defendant from the Detroit, Grand Haven 
 & Milwaukee Railway Company, a con- 
 necting carrier; admits that one of the 
 boxes and one of the barrels, with the con- 
 ten ts, were destroyed, but denies any 
 knowledge as to the contents or value 
 thereof. For a further and separate an- 
 swer and defense, defendant alleged that 
 the shipment of freight mentioned in the 
 complaint consisted of household g'oods, 
 and that the same was shipped by plain- 
 tiff, and received and accepted by the De- 
 troit. Grand Haven & MilwaukeeRailway 
 Company, as well as the defendant, a con- 
 necting line, under a contract with plain- 
 tiff that, if for any cause there fihould be 
 a total loss of said freight, and a liability 
 , on the part of the common carrier receiv- 
 ) ing the same, or over whose line the same 
 ; was being or was transported, the total 
 liability therefor, if any there should be, 
 would be the sum of five dollars per hun- 
 dred pounds weight of said freight, and 
 the same was received and accepted by de- 
 fendant and shipped by plaintiff on said 
 condition. The defendant, further an- 
 swering, and as a separate defense, alleged 
 that at the date of shipment by plaintiff, 
 to-wit, April 8, 1.S89, in order to obtain 
 the benefit of the reduced rate of freight 
 charges from the ordinary tariff rate 
 charged therefor, the plaintiff and the De- 
 troit, Grand Haven & Milwaukee Railway 
 Company contracted and agreed in writ- 
 ing that, in consideration of such reduced 
 rates, the plaintiff, in case of any damage 
 or loss to said goods arising by damage 
 b,y fire while at stations or in transit, 
 would and did release said company, and 
 each and every other company over whose 
 lines said goods might puss to destina- 
 tion, from any and all damage occurring 
 316 
 
 to said goods; that said plaintiff was 
 given and obtained the benefit of said re- 
 duced rates, and executed said contract 
 of release accordingly. The reply denies 
 the new matter alleged in theanswer. On 
 the trial the plaintiff gave evidence tend- 
 ing to prove the issues on his part, and 
 then rested. Defendant then gave evi- 
 dence tending to prove the execution by 
 plaintiff of the release and contract men- 
 tioned in theanswer; that it wasexecuied 
 in duplicate, one copy being attached to 
 the bill of lading, and the other was by 
 the agent of the Detroit, Grand Haven & 
 Milwaukee Railway, at Nunica, Mich., for- 
 warded to the traffic manager of that 
 road, at Chicago, 111. Defendant then 
 called Alfred Watts, who was then clerk 
 of the Northern Pacific Railroad, at Port- 
 land, Or., who testified that he was clei'k 
 in the office of Mr. Fulton, general freight 
 agent of tlie defendant at Portland; that 
 he had telegraphed to the claim agent of 
 the defendant at St. Paul to ascertain if a 
 release had been made on the plaintiff's 
 shipment of goods from Nunica, and, if 
 so, to send the original release that was 
 signed by Mr. Wiseman; that the claim 
 agent at St. Paul telegraphed back that 
 
 I the files in the office of the traffic manager 
 at Chicago had been searched, and the re- 
 lease could not be found; that the release 
 never was in his office at Portland, and 
 the parties who handled the way-bill <jf 
 plaintiff's goods said there was no release 
 attached to it when it reached its destina- 
 tion. The defendant then offered the dep- 
 
 [osition of the agent at Nunica to prove 
 the contents of the release, but the court 
 refused to admit secondary evidence of its 
 contents, to which ruling defendant duly 
 excepted, and assigns the same as error 
 on this appeal. 
 
 Dolpli, Bellinger, Mallory & Simon, for 
 appellant. J. N. Teal and Sanderson Bead, 
 for respondent. 
 
 BEAN, .!., (after staling the facts as 
 above.) By section 691, Hill's Code, it is 
 provided that "there shkll be no evidence of 
 the contents of a writing, other than the 
 writing itself, except in the following 
 cases: * * * (2) When the original can- 
 not be produced by the party by whom 
 the evidence Is offered, in a reasonable 
 time, with proper diligence, and its ab- 
 sence is not owing to his neglect or de- 
 fault. " This section is a declaration of the 
 cwmmon-lawrule. Thethecjry upon which 
 secondary evidence of the contents of a 
 writing is admitted is that the original 
 writing cannot be produced by the party 
 by whom the evidence is offered, within a 
 reasonable time, by the exercise of reason- 
 able diligence. 'The question is always one 
 of diligence in the effort to procure the 
 original. No precise rule has been or can 
 belaid down as to what shall be consid- 
 ered a reasonable effort, but the party al- 
 leging the loss or destruction of the docu- 
 ment is expected to show "that he has in 
 good faith exhausted, in a reasonable de- 
 gree, all the sources of information and 
 means of discovery which the nature of the 
 case would naturally suggest, and which 
 were accessible to him.'' 1 Greenl. Ev. 
 § 558; Simpson v. Dall, 3 Wall. 460; John- 
 
SECONDARY EVIDEVCE IN CEKTAIN CASES. [Case No. lOi^ 
 
 son V. Am wine, 42 N. J. Law, 451; Kelsey 
 V. Hammer, 18 Conn. 310. Thus, in Mar- 
 iner V. Saunders, 5 Oilman, 117. the court 
 say: "From the nature of the subject 
 there is some difficulty in laying down a 
 general rule defining the extent and vig- 
 ilance of the search which a party must 
 make before the court may conclude that 
 the paper is destroyed or lost. " As a gen- 
 eral rule, however, we may say that when, 
 from the ownership, nature, or object of 
 a pa per, it has properly a particular place of 
 deposit, or where, from the evidence, it is 
 shown to have been in a particular place, 
 or in particularhands,then that placemust 
 be searched by the witness proving the 
 loss, or the person produced into whose 
 hands it has been traced. The extent of 
 the search to be made in such place or by 
 such person must depend in a great degree 
 upon the circumstances. Ordinarily it is 
 not sufficient that the paper is not found 
 in its usual place of depo.sit, but all papers 
 in the office or place should be examined. 
 On the whole, the court must be satisfied 
 that the paper is destroyed, and cannot 
 be found. It is true the party need not 
 search every possible place where it might 
 be found, for then the search might be in- 
 terminable, but he must search everj' place 
 where there is a reasonable probability 
 that it may be found. " This rule is found- 
 ed on reason and justice, and to require 
 any less degree of diligence would be to de- 
 feat the object of reducing agreements to 
 writing. As was said in Rankin v. Crow, 
 1!) 111. 629: "The party wishing to avail 
 himself of the benefit of such secondary ev- 
 idence should be required to make at least 
 the same effort that is expected the party 
 would make if he were to lose the benefit 
 of the evidence if the instrument were not 
 found." The degree of diligence which 
 shall be considered necessary, in any case, 
 will depend upon the character and im- 
 portance of the document, and the pur- 
 poses for which it is expected to be used, 
 and the place where a paper of that kind 
 may naturally be suppo.sed to be found. 
 It the document be a valuable and impor- 
 tant one, which the owner would be likely 
 to preserve, a more diligent search will be 
 required than if the dbcument is of little 
 or no value. The purposes for which it is 
 proposed to use it on the trial will also 
 have an important bearing in determining 
 the degree of diligence required. If the 
 cause of action or defense is founded on 
 the supposed writing, the party offering 
 the evidence will be required to show a 
 greater degree of diligence in the attempt 
 to produce the original than if it is de- 
 sired to be used as evidence in some collat- 
 eral matter. The proof of search and 
 proof of loss recjuired is always propor- 
 tionate to the character and value of the 
 paper supposed to be lost. Insurance Co. 
 V. Eosenagle, 77 Pa. St. 514. The exist- 
 ence and contents of the supposed con- 
 tract, as well as the claim of defendant 
 based upon it, is denied by the plaintiff in 
 the case at bar. The issue thus being 
 joined, its execution and contents were 
 very material to defendant in establishing 
 its defense. Indeed, defendant seeks to ex- 
 empt itself from liability solely by reason 
 of this contract. It admits having re- 
 
 ■e. I 
 id 
 
 ly I 
 
 ceived, as a common carrier, plaintiff's 
 goods, and that while in its possession 
 they were destroyed, but it seeks to es- 
 cape liability by virtue of this contract. 
 It then became of the utmost importance 
 to both plaintiff and defendant that the 
 original contract, if such a contract was 
 made at all, be produced on tlie trial, so 
 that there might be no controversy as to 
 its contents, and that the court might de- 
 clare its legal effect to tlie jury. Befoi-e 
 defendant should be permitted to give sec- 
 ondary evidence of its contents it should 
 prove that it had exercised the utmost dil- 
 igence to procure the original, (Smith v. 
 Cox, 9 Or. 327,) and this it failed to do. 
 No competent evidence whatever was of- 
 fered to prove any search in the office of 
 the traffic manager at Chicago, where it 
 was shown tne document was most likely 
 to be found. All that the witness Watts 
 said about the supposed search was clear- 
 ly hearsay and incompetent evidence. 
 Lawrence v. Fulton, 19 Cal. 683. It d " 
 not in any way tend to prove that any 
 effort had been made in the Chicago office 
 to find the original paper. The testi- 
 mony of the traffic manager, or some per- 
 son in his office, having the custody of 
 such papers, should have been had, or 
 some proper effort made to obtain it, 
 showing what effort, if any, had beenmade 
 to find the original. 
 
 Indeed, counsel for defendant did not 
 seriously contend that it had brought 
 itself within the rule concerning the ad- 
 mission of secondary evidence, if proof of 
 the loss of the original is required; but he 
 claimed that all that was necessary for 
 defendant to do was to show that the 
 original was in the possession of a person 
 outside of this state, and that no further 
 proof was required; that, when it sliowed 
 that the original contract was in Cliicago, 
 it was entitled to give secondary evidence 
 of its contents without further proof; and 
 in support of his position cites the follow- 
 ing authorities: Burton v. Driggs, 20 
 Wall. i:j4; Gordon v. Searing, 8 Cal. 49; 
 Beattie V. Hilliard, 55 N. H. 428; Brown 
 V.Woods, 19 Mo. 475; Shepard v. Giddings, 
 22 Conn. 282; Ealph v. Brown, 3 Watts & 
 S. 395; Gordon v. Tweedy, 74 Ala. 232. 
 The broad doctrine is stated in these au- 
 thorities that, if books or papers necessary 
 as evidence in a court in one state be in 
 the possession of a person living in anoth- 
 er state, secondary evidence, without fur- 
 ther showing, may be given to prove the 
 contents of such papers. As we have al- 
 ready said, in effect, each case must large- 
 ly depend on its own particular circum- 
 stances as to what showing is sufficient in 
 order to admit secondary evidence of the 
 contents of a writing, and the language 
 used in the cases above cited must be in- 
 terpreted in the light of the facts of each 
 case. None of these cases go so far as to 
 hold that where a defendant relies upon 
 the contents of a •\^riting to exempt him- 
 self from liability, and both the execution 
 and contents of the supposed writing are 
 denied, and the alleged writing is shown 
 to be in the possession of a person outside 
 of the state, secondary evidence of the con- 
 tents of such writing is admissible unless 
 an effort is made to produce it. And, be- 
 
 317 
 
Case No. 108] 
 
 PROOF. 
 
 sides, the doctrine stated in these authori- 
 ties is denied by authorities of equal 
 weight, and even" by some of the same 
 couits. Thus, in Turner v, Yates, 16 How. 
 14, it was held that proof that an in- 
 voice of goods was in London was not 
 a sufficient allowing to admit secondary 
 evidence of its contents, in the circuit 
 conrt of the United States for the district 
 of Maryland, the court saying: "If the 
 paper was in the hands of the consignees 
 in London, secondary evidence was not 
 admissible; if as parties, they were enti- 
 tled to notice to produce the paper; if as 
 third persons, their depositions should 
 have been talieii, or some proper attempt 
 made to obtain it." To the same effect 
 are Hoyt v. McNeil, 13 Minn. H94, (Gil. 
 362;) Dickinson v. Breeden, 25 111. 186; Mc- 
 
 318 
 
 Gregor v. Montgomery, 4 Pa. St. 237; 
 VVhart. Ev. § 130. The rule laid down in 
 I he authorities just cited, we think, is 
 founded on retison and justice, and im- 
 poses no hardship on the defendant. By 
 defendant's own showing the last known 
 place of deposit of the contract it claims 
 plaintiff executed was in the ofBce of the 
 traffic manager in Chicago, and the law 
 provides an easy and simple method of 
 taking the dejjosition of a witness resid- 
 ing out of the state, and his deposition 
 should have been taken or some proper 
 effort made to obtain it. The fact that 
 the person to wliose possession the paper 
 was traced resided out of the state did not 
 excuse defendant from a diligent effort 
 to procure it. Judgment of the court be- 
 low is therefore affirmed. 
 
SECONDAKY EVIDENCE IX CERTAIN CASES. [Case No. 109 
 
 ISLEY v. BOON et al. 
 
 (13 S. E. 795, 109 N. C. 555.) 
 
 Supreme Court of North Carolina. Nov. 10, 
 1891. 
 
 Appeal from superior court, Alamance 
 <.'ounty; Edwin T. Boykin, Judge. 
 
 This was an action by Christian Isley 
 against John Boon and others to ti-y title to 
 laud. There was judgment for defendants, 
 and plaintiff appeals. Reversed. 
 
 On the trial it became material for the 
 plaintilt to produce in evidence the record of 
 a special proceeding, and the following is so 
 much of the case stated on appeal for this 
 court in respect thereto as need be reported: 
 
 "The plaintiff then introduced the letters 
 of administration issued to E. S. Parljer up- 
 on the estate of Samuel Adams, deceased, 
 issued by the clerk of the superior court of 
 Alamance county, under his official seal of 
 the 8th day of November, 1875. The plaintiff 
 then proposed to show a sale of the land in 
 controversy, by E. S. Parker, administrator 
 of Samuel Adams, deceased, on the 3d day 
 of April, 1876, (under special proceeding 
 taken by him in the superior court of Ala- 
 mance county, for the purpose of creating 
 assets for the payment of debts of his intes- 
 tate,) to John Ireland, the last and highest 
 bidder, and a deed made on the 5th of Janu- 
 ary, 1881, to the heirs at law of the said John 
 Ireland, who had theretofore died intestate, 
 after having paid the whole of the purchase 
 money for said land to the administrator, 
 Parker. To establish such special proceed- 
 ings the plaintilf put in evidence two sum- 
 monses issued by the clerk of the superior 
 court of Alamance county under his official 
 seal, bearing date of November 27, 1875, en- 
 titled 'E. S. Parker, as administrator of Sam- 
 uel Adams, against .John Adams, John Boon 
 and wife, Eobena, Jacob Hicks and wife, 
 Piety,' commanding the sheriff to summon 
 the defendants to appear at the office of the 
 clerk of the superior court of said county 
 within twenty-one days after the service of 
 summons on them, to answer the complaint 
 to be therein filed, one of which summonses 
 was directed to the sheriff of Alamance coun- 
 ty, and was returned by the sheriff of said 
 county as served upon John Boon and wife, 
 Robena, on the 24th of January, 1876. The 
 other was directed to the sheriff of Forsyth 
 county, and was returned by the sheriff of 
 said county on the 24th of January, 1876, as 
 served on Jacob Hicks and wife. Piety; also 
 the petition of E. S. Parker, administrator of 
 Samuel Adams, deceased, against John 
 Adams, John Boon and wife, Robena, Jacob 
 Hicks and wife, Piety, filed in said court, 
 praying for a license to sell the real estate 
 described in the petition, the same being the 
 land in controversy in this action, as the 
 property of Samuel Adams, deceased, to cre- 
 ate assets for the payment of the debts of his 
 intestate, subject to the right of the dower of 
 
 the widow of said deceased, which said peti- 
 tion was verified before the clerk of said 
 court on the 20tli day of January, 1876. 
 Plaintiff also introduced an order directing 
 publication to be made in the Alamance 
 Uleaner, a paper published in Alamance 
 county, for six weeks. 
 
 "The plaintiff introduced A. Tate, and 
 showed by him that he was the clerk of the 
 superior court of Alamance county from 1878 
 to the first Monday in December, 1890, who 
 testified that the two summonses, together 
 with the petition of E. S. Parker, administra- 
 tor of Samuel Adams, deceased, and the or- 
 der of publication, which were introduced 
 by the plaintiff, were (records) found by him 
 in the office of the superior court of Ala- 
 mance county. He also proved that W. A. 
 Albright was his immediate predecessor in 
 the clerk's office of said county, and that he 
 well knew his handwriting, and that the 
 signature to the two summonses, and also to 
 the verification to the petition and the sig- 
 nature to the order for publication, were his 
 handwriting. Witness also testified that the 
 case of E. S. Parker, administrator of Samuel 
 Adams, deceased, against John Adapis, John 
 Boon and wife, Robena, Jacob Hicks and 
 wife. Piety, appeared in the summons docket 
 of said superior court; and, further, that he 
 had made diligent search in his office for the 
 order of sale, the report of sale, the decree 
 confirming the sale by E. S. Parker as admin- 
 istrator to John Ireland, or any other papers 
 or records belonging to said case in said 
 office, but was unable to find such. Witness 
 testified that he found no other entry of the 
 case upon docket or records than the state- 
 ment of the case and the issuing of the sum- 
 monses. He stated that he found no minutes, 
 or memorandum, or order upon said recoi'ds. 
 
 "The plaintiff then introduced E. S. Parker, 
 the administrator of Samuel Adams, deceas- 
 ed, and, after exhibiting a written notice to 
 the defendants that the plaintiff would offer 
 parol evidence of the existence of the rec- 
 ords and orders and proceedings in the spe- 
 cial proceeding for the sale of the laud of 
 the said Samuel Adams, deceased, and the 
 loss or destruction of said records, and of the 
 plaintiff's purpose to show the contents 
 thereof by parol, proposed to prove by him 
 the issuing of the summonses hereinbefore 
 mentioned and the fact of the filing by him- 
 self, in the office of the clerk of the superior 
 I court, of the petition, hereinbefore mention- 
 ed, for the sale of land to make assets, and 
 an order for publication, and that the said pe- 
 tition and order were in his handwriting, and 
 signed by him as attorney and petitioner, 
 and were the original papers they purported 
 to be. Plaintiff further proposed to prove by 
 said witness the existence of an order ad- 
 judging that publication had been made for 
 the defendant John Adams, a non-resident, 
 and of a decree of the said court in the said 
 special proceeding directing him, as the ad- 
 
 319 
 
Case No. 109] 
 
 PKOOF, 
 
 ministrator of Samuel Adams, to sell the 
 land described in his petition at public auc- 
 tion at the court-house in (iraham, to the 
 highest bidder, for cash, after duly adver- 
 tising the same, and that the proceeds of the 
 sale be assets in his hands for the payment 
 of debts; it being adjudged that there was 
 no personal estate of said intestate with 
 which to pay debts; also that he made said 
 sale, after due advertisement, on the 3d day 
 of April, 1870, at the court-house in Graham, 
 when and where John Ireland became the 
 purchaser at the price of $50.50, and paid tlie 
 purchase money down, and that he made no 
 report of said sale to the court; also a de- 
 gree of the court made, confirming said re- 
 port and sale, and directing the said admin- 
 istrator to make title in fee to the purchaser; 
 and furtlier proposed to prove by said wit- 
 ness that, the said .John Ireland having died 
 soon thereafter, after having paid for said 
 land, he made and executed a title deed to 
 the heirs at law of the said John Ireland, de- 
 ceased, being the grantors named in the said 
 administrator's deed, which deed was made 
 on the 5th of January, 1881. And plaintiff 
 further ^proposed • to prove by said Parlier 
 that he afterwards saw on several occasions 
 said special proceeding, petition, and other 
 orders, order of sale, report of sale, and de- 
 cree confirming said sale, etc., in the clerk's 
 office as records of said court, and knew that 
 all of said orders did exist and were on file 
 in said office, and that diligent search has 
 been made since in said office for them. Up- 
 on objection by the defendants to the pro- 
 posed evidence of the witness E. S. Parker, 
 as hereinbefore set forth, the court sustained 
 the said objection, and refused the proposed 
 evidence, to which ruling of the court the 
 plaintiff excepted. The plaintiff then pro- 
 posed to introduce in evidence the deed ex- 
 ecuted by E. S. Parlver, administrator of 
 Samuel Adams, to J. R. Ireland, W. F. Ire- 
 land, Samuel Ireland, W. S. Caffey and wife, 
 Caroline, C. Isley and wife, Louisa, for the 
 land in controversy, bearing date 5th day of 
 January, 1881, which deed has been duly 
 proven and registered, and insisted upon the 
 title derived from said deed, as well as re- 
 citals contained therein, as evidence of the 
 existence of the record and other proceed- 
 ings recited in said deed under the law and 
 the maxim, 'omnia prsesumuntur rite esse 
 acta.' The court, upon objection of the de- 
 fendants, refused to admit the evidence offer- 
 ed, and the plaintiff excepted. Upon the In- 
 
 .S20 
 
 tlmation of the court the plaintiff submitted 
 to a nonsuit and appealed."' 
 
 L. M. Scott, for appellant. J. A. Long, W. 
 P. Bynum, Jr., and Batchelor & Devereux, 
 for appellees. 
 
 MBRRIMON, C. J. The evidence proposed 
 and rejected on the trial must be accepted 
 for the present purpose as true, because it 
 was material; and, if it had been subrnitted 
 to the jury, they miglit have believed and so 
 treated it. The facts showed that material 
 parts of the record of the special proceeding 
 refeiTed to had been lost or destroyed. Th& 
 clerk of the court, the proper custodian of 
 the record, made diligent search in his office 
 for such parts of it as were alleged to have 
 been lost, and he was unable to find them. 
 It must be taken that he made such search 
 where, regularly, they ought to be, and gen- 
 erally through his office, where he might 
 hope to find them. He failed to find them, if 
 they ever existed. They were lost or de- 
 stroyed. It is not suggested that they were 
 not, nor did the court found its opinion upon 
 such supposition. Then, if the parts of the 
 record specified were lost or destroyed, it 
 was clearly competent to prove on the trial 
 by secondary evidence such loss or destruc- 
 tion, and also what the nature, meaAQg,-and 
 purport of such lost parts were. It has been 
 so expressly decided. In Mobley v. Watts, 
 98 N. C. 284, 3 S. E. 677, Justice Davis said: 
 "If the record is lost, and is ancient, its ex- 
 istence and contents may sometimes be pre- 
 sumed; but, whether it be ancient or re- 
 cent, after proof of the loss its contents may 
 be proved, like any other document, by sec- 
 ondary evidence, where the case does not 
 from its nature disclose the existence of 
 other and better evidence." This case, it 
 seems to us, plainly comes within what is 
 said and decided in the case just cited. In- 
 deed, it is well settled that where the record 
 is lost, that it existed, and its purpose and 
 contents, may be proven, on the trial of any 
 action where it becomes material, by second- 
 ary evidence. The loss or destruction of the 
 record should, however, be made to appear 
 clearly before receiving such secondary evi- 
 dence. Stanly v. Massingill, 63 N. C. 558; 
 Yount V. JUUer, 91 N. C. 331; Hare v. Hollo- 
 man, 94 N. C. 14. There is error. The judg- 
 ment of nonsuit must be set aside, and the 
 case disposed of according to law. To that 
 end let this opinion be certified to the supe- 
 rior court. It is so ordered. 
 
DEGKEES OP SECONDARY EVIDENCE. 
 
 [Case No. 110 
 
 GOODRICH V. WESTON. 
 
 (102 Mass. 362.) 
 
 Supreme Judicial Court of Massachusetts. 
 
 Worcester. Oct. Term, 1869. 
 
 C. H. B. Snow, for plalntifEs. G. A. 
 rey, for defendant. 
 
 Tor- 
 
 WKLIjS, -J. The defendant, by giving no- 
 tice to produce the original letters written by 
 him to the plaiutifCs, had entitled himself to 
 prove their contents by secondary evidence. 
 He produced copies, made by his wife from 
 his letter book, into which the originals 
 had been iirst copied by a machine press; 
 and testified that he had compared these 
 copies with those in the letter book, and that 
 they were correct. He also testified that he 
 deposited the originals in the postoflice, di- 
 rected to the plaintiffs. The offer to send 
 for the letter book, and produce it in court, if 
 desired, must be taken at least to relieve the 
 defendant from any suspicion that the letter 
 book was improperly kept back. The objec- 
 tion to the admissibility of the copies stands, 
 therefore, strictly upon the legal ground stat- 
 ed, namely, "that they were not copies of 
 the originals, and that the letter book itself 
 would be the best evidence." 
 
 Whenever a copy of a record or document 
 is itself made original or primary evidence, 
 the rule is clear and well settled that it must 
 be a copy made directly from or compared 
 with the original. If the first copy be lost, 
 or in the hands of the opposite party, so 
 long as another may be obtained from the 
 same source, no ground can be laid for re- 
 sorting to evidence of an inferior or second- 
 ary character. The admission of a transcript 
 
 WIIiGUS.EV. — 21 
 
 from the record of a deed or other private 
 writing, for the record of which provision is 
 made by law, is not an exception to, but only 
 a modification of, the same rule. But when 
 the source of original evidence is exhausted, 
 and resort is properly had to secondary proof, 
 the contents of private writings may be prov- 
 ed like any other fact, by Indirect evidence. 
 The admissibility of evidence offered for this 
 pui-pose must depend upon its legitimate ten- 
 dency to prove the facts sought to be proved, 
 and not upon the comparative weight or 
 value of one or another form of proof. The 
 jury will judge of its weight, and may give 
 due consideration to the fact that a less sat- 
 isfactory form of proof is offered while a 
 more satisfactory one exists and is withheld, 
 or not produced when it might have been 
 readily obtained. But there are no degrees 
 of legal distinction in this class of evidence. 
 Although there has been much diversity of 
 practice, and the decisions are far from uni- 
 form, more frequently turning upon special 
 circumstances and facts than upon a general 
 principal, the tendency of authority is, as 
 we think, towards the establishment of the 
 rule here stated. 2 Phil. Bv. (4th Am. Ed.) 
 568; 1 Greeul. Ev. §§ 84, 582; Stetson v. 
 Gulliver, 2 Cush. 404: Robertson v. Lynch, 
 IS Johns, ir.l; AVinn v. Patterson, 9 Pet. 663; 
 Brown v. Woodman, U Car. & P. 206; Doe v. 
 Ross, 7 Mees. & W. 102. 
 
 In this case the letter book, if produced, 
 would have been only secondary evidence. 
 We are satisfied that the copies, admitted by 
 the court below, were sufficiently verified to 
 justify their admission as competent evi- 
 dence of the contents of the original letters. 
 
 Exceptions overruled. 
 
 321 
 
Case No. Ill] 
 
 PROOF. 
 
 FORD et al. v. CtiNXIXGHAM et al. (No. 
 12,044.) 
 
 (25 Pac. 403, 87 Gal. 209.) 
 
 Supreme Court of California. Dec. 20, 1890. 
 
 Department 1. Appeal from superior 
 court, Santa Cruz county; F. J. McCann, 
 Judge. 
 
 J. M. Lesser, Spalsbury & Burke, and 
 Garber, Boalt & Bishop, for appellants. A. 
 S. KlttridgR, for respondents. 
 
 PER CURIAM. The only question liti- 
 gated In the court below was whether 
 the barley was sold by the plaintiffs to 
 the defendant Cunningham, or to the Arm 
 of Cunningliam & Co., of which he was a 
 member. The appellants contend that 
 the evidence is insufficient to suppoi-t the 
 findings, but we tliink there was sufficient 
 evidence on behalf of the defendants to 
 create a substantial conflict, and under 
 the well-established rule we should not in- 
 terfere with the findings of fact. 
 
 The plaintiffs, to establish their case 
 against the copartnership, relied mainly 
 on documentary evidence, some of which 
 they claimed was in possession of the de- 
 fendants, who were askej at the trial to 
 produce the same. Mr. Morey, one of the 
 plaintiffs, was permitted by the court to 
 state the contents of certain bills and let- 
 ters which he claimed had been addressed 
 and sent to Cunningham & Co. Objec- 
 tion was made by the defendants to the 
 mtroduction of oral testimony as to the 
 i-ontents of the bills and letters, and the 
 objection was overruled. We think the 
 jourt erred In its ruling. The witness 
 
 322 
 
 stated that he had no personal knowledge 
 that the communications addressed to 
 Cunningham & (jO. were mailed, except 
 that copies thereof appeared in the plain- 
 tiffs' copy-book, and that it was a general 
 custom of his firm to place letters in a box 
 in the store, from which they were taken 
 to the post-offlce. No foundation, there- 
 fore, was laid for the introduction of the 
 evidence. Assuming that secondary evi- 
 dence could under such circumstances be 
 inti'oduced, the press copies were. the best 
 evidence next to the originals themselves. 
 The ruling was on a material matter, be- 
 cause the defendants testified that they 
 neverreceivedthecommunications referred 
 to. Brailsford v. Williams, 74 Amer. Dec. 
 562. 
 
 Mr. Middleton, one of the defeiidants, 
 was called as a witness, and identified the 
 ledger of the copartnership, showing the 
 account of Ford & Co. with Cunningham 
 & Co. from September 1, 18S4, to the date 
 of trial. It was admitted by the plain- 
 tiffs that the entries therein were original 
 entries, but they objected to the introduc- 
 tion of the same as evidence on theground 
 that it was irrelevant, immaterial, and 
 incompetent. The objection was sus- 
 tained by the court, to which ruling the 
 defendants excepted. There was no item 
 of barley in the account offered. The rul- 
 ing, we think, was error. The witness 
 had stated that the ledger showed the 
 true state of account between plaintiffs 
 and defendants, and that the items had 
 been entered by him at the time of the sev- 
 eral transactions therein mentioned. Lan- 
 dis V. Turner, 14 Cal. 573. Judgment and 
 order reversed, and cause remanded for 
 a new trial. 
 
DEGliEES OF SECONDARY" EVIDENCE. 
 
 [Case No. 112 
 
 CORNETT V. WILLIAMS. 
 
 (20 Wall. 22G.) 
 
 Supreme Court of the United States. Oct., 
 1873. 
 
 Error to tbe circuit coui't of the Uulted 
 States for the Western district of Texas. 
 
 C. S. West, G. F. Moore, and John Han- 
 cock, for plaintiff in error. A. J. Hamilton, 
 J. A. Buchanan, and Mr. .Taokson, for de- 
 fendant in error. 
 
 Mr. .Justice SWAYA'B delivered the opin- 
 ion of the court. 
 
 Thei-e was no error in admitting in evi- 
 dence the two depositions of H. H. Williams. 
 The objections that he was a party to the 
 record, and interested in the event of the 
 suit, were obviated by the third section of 
 the act of July 2,. 1864. 13 Stat. 351. He 
 was thus placed upon a footing of e'guality 
 with all other witnesses, and it was compe- 
 tent for him to testify in the case orally or 
 by deposition. The depositions were taken 
 and certified in conformity to the thirtieth 
 section of the act of 1789. 1 Stat. 89. If the 
 deponent was not satisfied with his first 
 deposition, he had the right to give a second 
 one. No order of the court was necessary in 
 either case. The only objections insisted up- 
 on are that the statute does not authorize a 
 party to testify by deposition if lie can oral- 
 ly, and that if he can by deposition, the right 
 was exhausted by the first one, and that 
 the second one was taken without authority 
 of law. Both objections are without founda- 
 tion. The statute is remedial and to be con- 
 strued liberally. We are aware of no case 
 in which it has been held that where a wit- 
 ness has given one deposition in an action 
 at law, he cannot for that reason give an- 
 other without the sanction of the court. 
 Such a proposition has the support of nei- 
 ther principle nor authority. 
 
 The instruction given to the jury touch- 
 ing the trust deeds executed by W. H. and 
 .1. H. Williams to Wildbahn, the notes they 
 were given to secure, and the sale by Cor- 
 nett of the slaves, which was in part the 
 consideration of the notes, was well war- 
 ranted by the state of the evidence and was 
 correct. It was objected to only upon the 
 ground that the evidence did not tend to 
 prove that the slaves were removed from 
 Missouri to Texas for the purpose of selling 
 them in the latter state, and that hence the 
 instruction, even if correct as matter of law, 
 was, with reference to the case, an abstrac- 
 tion, and must necessarily have had the ef- 
 fect of confusing and misleading the minds 
 of the jury. An examination of the record 
 has satisfied us that the evidence was abun- 
 dantly sufficient to raise the question of in- 
 tent in the removal of the slaves, and to 
 make it the duty of the court to say to the 
 jury what was said upon the subject. It is 
 not objected that the rule of law was not 
 'Correctly stated. 
 
 What was done in the suit between Cor- 
 nett and J. H. and W. II. Williams in no 
 wise affected the rights of H. H. Williams in 
 this action. The marshal seized the prem- 
 ises, and Cornett gave a replevin bond pur- 
 suant to the statute of Texas. While the 
 property was in the hands of the marshal it 
 was in the custody of the law. When Cor- 
 nett gave the bond the premises passed from 
 the custody of the law into his possession, 
 and "they were in his possession when this 
 suit was instituted. The bond was given to 
 enable him to effect that result, and it was 
 accomplished. The bond took the place of 
 the property and represented it. The prem- 
 ises were as much in his possession as if 
 no litigation was pending and he had ac- 
 quired possession in some other way. The 
 defendant in error, having declined to be- 
 come a party to that suit, everything done 
 in it was, so far as he was concerned, res 
 inter alios acta. 
 
 The secondary proof of the judgment In ' 
 favor of H. H. Williams, against Samuel M. 
 Williams, was properly admitted. The origi- 
 nal record was destroyed by fire in the year 
 1862. The proof in question consisted of a 
 copy of a copy of the judgment, the latter 
 duly certified by the clerk of the court by 
 whom the judgment was rendered. It was 
 proved that the certified copy had been de- 
 sti'oyed. The judgment in question was re- 
 covered upon a prior judgment in favor of 
 the same plaintiff against the same defend- 
 ant. There was evidence tending to show 
 that a certified copy of the latter existed, 
 but it was not positive. There was no proof 
 of the existence of such a copy of the judg- 
 ment sought to be proved. There was a dis- 
 crepancy as to a single word in the copy 
 offered in evidence. It set forth that the 
 clerk had assessed the damages at "forty- 
 three thousand nine hundred and si^ty-six 
 dollars and thirty-four cents, and that it 
 was, therefore, considered by the court that 
 the plaintiff recover of the defendant the 
 sum of forty-three thousand nine hundred 
 and thirty-six dollars and thirty-four cents," 
 &c. It was satisfactorily proved aliunde 
 that thirty, instead of sixty, was correct, the 
 latter being a mistake of the copyist. 
 
 The principle established by this court as 
 to secondary evidence in cases like this is, 
 that it must be the best the party has it in 
 his power to produce. The rule is to be so 
 applied as to promote the ends of justice and 
 guard against fraud, surprise, and imposi- 
 tion.i The copy here in question was prop- 
 erly admitted.2 This court has not yet gone 
 the length of the English adjudications, 
 which hold, without qualification, that there 
 are no degrees in secondary evidences 
 
 The act of congress of March 3, 1871,^ pro- 
 
 1 Renner v. Bank of Columbia, 9 Wheat. 597; 
 1 Greenl. Ev. § 84, and note. 
 
 2 Winn V. Patterson, 9 Pet. 676. 
 
 3 Doe d. Gilbert v. Ross, 7 Mees. & W. 106. 
 * 16 Stat. 474, c. 111. 
 
 323 
 
Case No. 112] 
 
 PROOF. 
 
 vides for putting in a permanent form proof 
 of the contents of .iudicial records lost or 
 destroyed, such proof to take the place of 
 the original records for all purposes. The 
 statute of Texas upon the subject of proof 
 in cases of lost records, s has also been re- 
 ferred to in this connection. There is noth- 
 ing in either the act of congress or the stat- 
 ute in conflict with the action of the court 
 we have been consideiing. 
 
 The most important Question in the case 
 relates to the proceedings of the county 
 court of Galveston county, touching the sale 
 and conveyance of the premises in contro- 
 versy by the administrator of Samuel M. 
 Williams to H. H. Williams. The plaintifEs 
 in error insist that those proceedings were 
 coram non judice and void. The defendant 
 in error maintains that they were regular 
 and valid, and that if there be any error or 
 defect, the court having had jurisdiction, its 
 proceedings could not be collaterally assail- 
 ed upon the trial of this cause in the court 
 below. This renders it necessary to exam- 
 ine the case in this aspect. The record shows 
 the following facts: On the 28th of June, 
 1850, H. H. Williams recovered in the dis- 
 trict court of the United States held at Gal- 
 veston, against Samuel M. Williams, then 
 living, a judgment for $26,736. And on the 
 12th of .July, 1858, another judgment for the 
 sum of $43,936.34. The second judgment was 
 founded upon the first one, and was for the 
 principal and interest due upon the latter. 
 At the January term, 1866, of the Galveston 
 county court, H. H. Williams, by his coun- 
 sel, applied for an order that the administra- 
 tor of Samuel M. Williams be cited to ap- 
 pear and show cause why "he should not 
 make application to the court for an order 
 to sell enough of the property of said es- 
 tate to pay a judgment obtained by the said 
 Henry Williams against the said Samuel M. 
 Williams, to the amount of $40,000; which 
 said judgment was allowed and approved as 
 a valid claim against said estate, in October, 
 1859, with eight per cent, interest per an- 
 num," &c. 
 
 The administrator appeared at the same 
 term, and answered that the plaintiff recov- 
 ered the judgment first hereinbefore mention- 
 ed; that it was presented for allowance 
 against the estate with the usual affidavit 
 and allowed; that he could not say whether 
 it was approved by the chief justice of Gal- 
 veston county; that it had never been paid, 
 and that the reason he had taken no meas- 
 ures to pay it was that the plaintiff had told 
 him that, being against his brother, he did 
 not Intend to enforce it. The court there- 
 upon, at the same term, made an order as 
 follows: 
 
 "On this day came on to be heard in this 
 cause the motion of Henry Williams, by his 
 agent, J. H. Williams, asking that the ad- 
 ministrator be required to sell sufficient prop- 
 
 5 Pasch. Dig. art. 4969. 
 :J24 
 
 erty of the estate to pay a certain judgment 
 obtained by the said Henry in the United 
 States district court, on the 28th day of June, 
 A. D. 1850, for the sum of twenty-six thou- 
 sand seven hundred and thirty-six dollars, 
 with Interest from date of rendition; and it 
 appearing to the court that this claim has 
 been duly allowed, and that the administrator 
 has no funds in hand whatever to pay the 
 same, it is ordered that he make sale of suffi- 
 cient property in, pursuance of the prayer of 
 the motion. And the administrator having 
 designated the following piece of property, it 
 is ordered that he shall make public sale of 
 one league of land, situated," &c. 
 
 The premises in controversy were then de- 
 scribed, the mode and time of advertising, 
 and the place and terms of the sale were 
 prescribed and the administrator was directed 
 "to make due report of his action in the 
 premises to the court." On the 15th of 
 March, 1866, the administrator reported that, 
 pursuant to the order of the court, after due 
 notice according to law, he had offered the 
 premises for sale at public auction, at the 
 time and place required by law, and that 
 they were struck off and sold to Henry H. 
 Williams, for the sum of $60,000, on a credit 
 of twelve months, secured by a vendor's lienr 
 that Williams was the highest and best bid- 
 der, and that the price was a reasonable one. 
 
 At the March tenn the court confirmed the 
 report and ordered the administrator to make 
 a deed to the purchaser, upon his complying 
 with the terms of the sale. On the loth of 
 April, 1866, the administrator gave a receipt 
 to the purchaser for $60,600, being the amount 
 of the purchase-money with ten per cent, in- 
 terest, and by the same instrument released 
 his vendor's lien. On the same day the ad- 
 ministrator executed a deed of conveyance 
 to the said H. H. Williams. It recites all 
 the proceedings touching the sale upon which 
 it was founded. 
 
 On the 2d of Januaiy, 1868, the administra- 
 tor executed to Henry "VVilliams another deed 
 for the same premises. It recites more fully 
 the proceedings relative to the sale, and sets 
 out that there were certain clerical errors of 
 dates in the former deed, and that this deed 
 was made to correct them. 
 
 The titles adverse to the plaintiff, developed 
 upon the trial in the court below, were all 
 derived from heirs-at-law of Samuel Wil- 
 liams. The premises were liable under a 
 paramount lien for the debts of the ancestor. « 
 The plaintiff's claim was of that character. 
 Hence, if the sale and conveyance to him by 
 the administrator were valid, they were con- 
 clusive in his favor. He could recover, how- 
 ever, only upon the strength of his own title. 
 The weakness of the title of his adversaries 
 could not avail him. 
 
 Most of the objections to the sale by the 
 administrator taken in the brief of the plain- 
 tiffs in error, were not insisted upon in the 
 
 6 Pasch. Dig. art. 1373. 
 
DEGKEES OF SECONDARY EVIDENCE. 
 
 [Case No. 112 
 
 argument at the bar, and are of sncb a cMr- 
 acter as to require no observations from tbe 
 <'ouit. One was pressed upon our attention 
 witli earnestness and ability, and to tliat one 
 our remarlis will be confined. 
 
 A statute of Texas requires all claims 
 against the estate of a decedent to be pre- 
 sented to his legal representative and to be 
 allowed by such representative, and to be ap- 
 proved by the probate judge. Until so al- 
 lowed and approved they have no legal va- 
 lidity and cannot be recognized as debts 
 against the estate. It disallowed, or not ap- 
 proved, they must be sued upon within three 
 months. If sued without a refusal to allow 
 or approve, there can be no recovery. The 
 absence of such fact is fatal to the action.'? 
 
 The order of sale sets forth that the claim 
 had been allowed by the administrator, but 
 is silent as to its approval by the judge. 
 The plaintiffs in en-or argued that this omis- 
 sion rendered the order a nullity. 
 
 The application of the judgment-creditor 
 and the answer of the administrator gave 
 the judge jurisdiction over the parties and the 
 real estate of the deceased, s Jurisdiction is 
 the power to hear and determine. To make 
 the order of sale required the exercise of this 
 power. It was the business and duty of the 
 court to ascertain and decide whether the 
 facts were such as called for that action. 
 The question always arises in such proceed- 
 ings—and must be determined— whether, up- 
 on the case as presented, affirmative or nega.- 
 tive action is proper. The power to review 
 and reverse the decision so made is clearly 
 appellate in its character, and can be exer- 
 cised only by an appellate tribunal in a pro- 
 ceeding had directly for that purpose. It 
 cannot and ought not to be done by another 
 court, in another case, where the subject is 
 presented incidentally, and a reversal sought 
 in such collateral proceeding. The settled 
 rule of law is that jurisdiction having at- 
 tached in the original case, everything done 
 within the power of that jurisdiction, when 
 collaterally questioned, is to be held conclu- 
 sive of the rights of the parties, unless im- 
 peached for fraud. Every intendment is 
 made to support the proceeding. It is re- 
 garded as if it were regular in all things and 
 irreversible for error. In the absence of 
 fraud no question can be ccrtlaterally enter- 
 
 TPasch. Dig. arts. 1309, 1311; Danzey v. 
 Swiuncy, 7 Tex. 625; Martin v. Harrison, 2 
 Tex. 456. 
 
 8 Pasch. Dig. art. 1305. 
 
 taiued as to anything lying within the juris- 
 dictional sphere of the original case. Infi- 
 nite confusion and mischiefs would ensue if 
 the rule were otherwise. These remarks ap- 
 ply to the order of sale here in question. 
 The county court had the power to make it 
 and did make it. It is presumed to have 
 been ijroperly made, and the question of its 
 propriety was not open to examination upon 
 the trial in the circuit court. These proposi- 
 tions are sustained by a long and unbroken 
 line of adjudications in this court. The last 
 one was the case of McNitt v. Turner, a 
 They are not in conflict with the adjudica- 
 tions of Texas upon the subject. 
 
 The statute of Texas does not require the 
 evidence upon which the judgment of the 
 court proceeded to be set forth in the record. 
 Such a statement can do no good, and its 
 omission does no harm. 
 
 As regards public officers, "acts done which 
 presuijpose the existence of other acts to 
 make them legally operative, are presumptive 
 proofs of the latter." lo "Facts presumed are 
 as effectually established as facts proved, 
 where no presumption is allowed." In the 
 case of Ward's Lessee v. Barrows, n a sale 
 for taxes came under examination. It was 
 held that certain acts of the county auditor 
 were presumptive proofs that he had admin- 
 istered to the collector the oath prescribed 
 by law touching the delinquent list. The 
 sale was sustained. Here the judge who 
 made the order of sale was the judge to ap- 
 prove the claim. The order was presump- 
 tive proof of the requisite approval. Such 
 approval was necessarily implied, and what Is 
 implied in a record, pleading, will, deed, or 
 contract, is as effectual as what is express- 
 ed.i2 
 
 The proceedings touching the sale were 
 properly admitted in evidence, and the in- 
 struction given to the jury upon the subject 
 was coiTect. 
 
 The last assignment of error relates to 
 fraud in obtaining the order of sale. 
 
 It seems to us that the eyidence disclosed 
 in the record was hardly sufficient to raise 
 any question upon that subject. However 
 that maj' be, the instruction given to the jury 
 was unexceptionable, and the plaintiffs in 
 error have no right to complain. 
 
 Judgment affirmed. 
 
 B 16 Wall. 366. 
 
 10 Bank of U. S. v. Dandridge, 12 Wheat. 70. 
 
 11 2 Ohio St. 247. 
 
 12 U. S. V. Babbit, 1 Black, 61. 
 
 325 
 
Ciise No. 113] 
 
 PBOor. 
 
 LBESBR V. BOBKHOFF. 
 (38 Mo. App. 445.) 
 Court of Appeals of Missouri. Dec. 24, 1889. 
 Christian & Wind, for appellant. Lubke 
 & Muench, for respondent. 
 
 BRIGGS, J. On the twenty-third day of 
 February, 1887, the defendant in this ease 
 Instituted an attachment suit against one 
 Caroline Gruhner. In the attachment suit, 
 Boelvhoff claimed that Mrs. Gruhner was In- 
 debted to him, and that she had fraudulent- 
 ly conveyed her property for the purpose of 
 defrauding her creditors. Under the writ 
 of attachment Boekhoff caused a stock of 
 groceries to be seized as the property of 
 Mrs. Gruhner, and the goods were subse- 
 quently sold by the officer, and the proceeds, 
 after deducting costs, were applied to the 
 discharge of Boekhoff's debt. 
 
 The plaintiff in the present suit claims that 
 the stoclc of goods so levied on and sold be- 
 longed to him, and he asked a judgment 
 against the defendant for damages for the 
 unlawful conversion of his property. The 
 defendant, in his answer, denied tliat the 
 plaintiff was the owner of the goods, and 
 he averred that the plaintiff claimed to be 
 the owner of the property through a fraud- 
 ulent purchase from Caroline Gruhner. The 
 defendant attacked this sale, and alleged its 
 invalidity as to him, for two reasons: First. 
 The pretended purchase was fraudulent in 
 fact, and was contrived to defraud the cred- 
 itors of Mrs. Gruhner. Second. The sale 
 was inoperative and void as to the defend- 
 ant, for the reason that tliere was no such 
 change of possession as would satisfy the 
 interpretation placed by the supreme court 
 on the first clause of section 250.5, Rev. St. 
 1879. That portion of the statute referred 
 to reads as follows: "Every sale made by 
 a vendor of goods and chattels in his pos- 
 session or under his control, unless the same 
 be accompanied by delivery in a reasonable 
 time, regard being had to the situation of 
 the property, and be followed by an actual 
 and continued change of the possession of 
 the things sold, shall be held to lie fraud- 
 ulent and void, as against the creditors of 
 the vendor," etc. The case was submitted 
 to a jury, and the plaintiff obtained a ver- 
 dict for five hundred dollars, and the court 
 entered judgment accordingly. The suit 
 was originally against the defendant and 
 the Haase Fish Company, but, at the con- 
 clusion of the' testimony, the plaintiff dis- 
 missed as to the fish company. The de- 
 fendant in due time moved the court to 
 grant him a new trial, and, his motion hav- 
 ing been overruled, he has prosecuted this 
 appeal. 
 
 The defendant assigns numerous errors, 
 and he presents many arguments why the 
 judgment ought to be reversed. He com- 
 plains chiefly of the action of the court in 
 refusing to take the case from the jury. He 
 
 326 
 
 also complains of the instructions, and the 
 admission and rejection of evidence. 
 
 The case has been here before. Leeser v. 
 Boekhoff, 33 Mo. App. 223. When the case 
 was before this court on the former appeal, 
 the plaintiff had obtained a joint judgment . 
 against the defendant and the Haase Fish 
 Company as joint trespassers. The dismiss- 
 al of the case as to the fish company elimi- 
 nates from the case all questions as to the 
 fact of a joint trespass, and the joint liabili- 
 ty of the original defendants therefor. On 
 the former appeal the defendant urged, as 
 he does now, that the court ought to have 
 declared as a matter of law that the sale 
 of the goods by Caroline Gruhner to the 
 plaintiff was invalid for the reason that the 
 evidence did not show such a change of pos- 
 session as the law contemijla ted and requir- 
 ed. The opinion of the court on the former 
 hearing contains a full recital of all substan- 
 tial facts, showing the extent to which this 
 possession was open, notorious, and unequiv- 
 ocal. This obviates the necessity of a re- 
 statement of the evidence by us, as our ex- 
 amination of the present record leads us to 
 the conclusion that on the last trial the evi- 
 dence bearing on this issue was not substan- 
 tially different from that contained in the 
 former record. There were some addition- 
 al facts shown on the last trial by both par- 
 ties, which had a tendency to strengthen 
 their respective theories, but this additional 
 evidence was merely cumulative, and is not 
 of such a character as to authorize us to 
 hold that there has been a material change 
 in the evidence. However, we are justified 
 in saying that the plaintift''s evidence on 
 the last trial was as satisfactory as that 
 passed on by this court on the former hear- 
 ing. 
 
 On the former hearing .Tudge Thompson 
 disposed of the objection now urged by the 
 defendant as follows: "We have already re- 
 cited the substantial facts showing the ex- 
 tent to which the change of possession was 
 open, notorious, and unequivocal, within the 
 meaning of the statute. Certainly, several 
 acts of possession were done by the plaintiff 
 of an unequivocal character. He took pos- 
 session by his own agent, who had not pre- 
 viously been in the employ of his vendor. 
 He also began the purchase of goods in his 
 own name, having the goods billed to him, 
 and hanging the bills on a hook openly in 
 the store, and also informed them that he 
 had succeeded to the business. The fact 
 that he did not do the other things which 
 he might liave done,— change the sign, the 
 name on the wagons, and the revenue li- 
 censes, and the other circumstances of an 
 equivocal cliaracter, already detailed, — were 
 matters for the consideration of the jury, 
 but were not of such a character that we 
 can separate them from the things which 
 were done, tending to apprise the communi- 
 ty of the change of possession, which the 
 statute requires." From this it appears that 
 
BESULT OF COLLECTION OF DOCUMENTS. [Case No. 113 
 
 this court expressly lield that the plaintiff's 
 evidence, bearing upon the circumstances at- 
 tending the purchase, and the subsequent 
 acts of the parties looliing to a change of 
 possession, were sufficient to carry the case 
 to the jury, and it must now be held that 
 the conclusion, arrived at by them, must be 
 the law in this case. What was there de- 
 cided is not now open for discussion, and 
 must be held to be res adjudicata. This 
 question involved the only substantial de- 
 fense made by the defendant, and, unless 
 the court has committed error in the in- 
 structions, or has admitted or rejected evi- 
 dence which was prejudicial to the defend- 
 ant's case, the judgment will have to be af- 
 firmed. 
 
 On the trial the plaintiff asked, and the 
 court gave, the following instructions, to 
 wit: 
 
 "Number 1. The court instructs the jury 
 that in this state a debtor, even though in- 
 solvent, has the right to prefer one creditor 
 over another; and if the jury believe, from 
 the evidence, that the sole purpose of plaiM- 
 tiff in making the purchase in question was 
 to secure payment or satisfaction of a debt, 
 then due him from Caroline G-ruhner, then 
 the transaction is not affected by the fact 
 that said Caroline Gruhner may have also 
 been indebted to other creditors, or that the 
 necessary effect of such purcliase and sale 
 may have been to hinder or delay such other 
 creditors, provided the propei-ty so ti'ansfer- 
 red and delivered to plaintiff, upon a fair val- 
 uation thereof at the time of the delivery, 
 did not exceed the debt actually owing froin 
 Mrs. Gruhner to him at said time. 
 
 "Number 2. The court further instructs 
 you that if you find the facts called for by 
 the preceding instruction, and also believd, 
 from the evidence, that within a reasonable 
 time after the execution of the bill of sale 
 read in evidence, regard being had to the 
 situation of the property therein conveyed, 
 the plaintiff took actual, exclusive, open, no- 
 torious, and unequivocal possession of said 
 property, and as called for in the instruc- 
 tion given for defendant, and thereafter con- 
 tinued in such possession to the date of the 
 levy in question, and if you further find, 
 from the evidence, that the defendant BoeU- 
 hofC caused said property to be taken, or aid- 
 ed and abetted in the taking thereof, and to 
 bring about the loss thereof to plaintiff, then 
 your verdict should be for the plaintiff." 
 
 The court, on its own motion, gave the fol- 
 lowing instruction, to wit: 
 
 "The court instracts the jury that, if you 
 believe and find from the evidence that the 
 sale from Caroline Gruhner to the plaintiff 
 was not accompanied by delivery, and fol- 
 lowed by a change of possession within a 
 reasonable time, as stated and called for by 
 the other instmctions of the court, then said 
 sale is void as against the defendant Boek- 
 hoff, even though you may find from the evi- 
 dence that afterwards, and before the levy. 
 
 such change of possession was made. And 
 if you find and believe from the evidence 
 that such delivery and change of possession 
 was not made within a reasonable time after 
 said sale, as called for in the other instruc- 
 tions of the court, you should find for the 
 defendant." 
 
 The defendant asked the court to instruct 
 as follows: 
 
 "Number 1. Unless the jury are satisfied 
 from the evidence that Charles Leeser had 
 actual possession of the goods in question; 
 that the change in possession was visible, 
 continuous, and exclusive as against Caro- 
 line, such change of possession as to indicate 
 to the public (purchasers) at large that Caro- 
 line Gruhner no longer had possession of or 
 control over said goods, then said sale was 
 fraudulent and void as against creditors, 
 even though the juiy believe from the evi- 
 dence the sale from Caroline Gruhner to 
 Charles Leeser was made in good faith dnd 
 for a valuable consideration." 
 
 This instiTietion the court gave after strik- 
 ing out the word "public" and inserting 
 "purchasers." 
 
 "Number 2. The court instructs the juiy 
 that, to render the sale valid, it was neces- 
 sary that it should be accompanied by de- 
 Uvery within a reasonable time, regard being 
 had to the situation of the property, and to 
 be followed by an open, notorious, visible, 
 and unequivocal change of possession, such 
 as to indicate to persons visiting such store, 
 at sight, that the ownership had changed. 
 And if the jury find that such delivery and 
 change was not made, they must find a ver- 
 dict for the defendant, notwithstanding they 
 may believe and find from the evidence that 
 the sale was bona fide." 
 
 This instruction the court gave, after strik- 
 ing out the words "at sight," and also strik- 
 ing all the second part and inserting in lieu 
 thereof the following: 
 
 "And if the jury find from the evidence 
 that such delivery and change of possession 
 was not made within a reasonable time aft- 
 er the sale by Caroline Gruhner to the plain- 
 tiff, regard being had to the situation and 
 character of the property, and not the mere 
 convenience of the purchaser, then you must 
 find a verdict for the defendant, even though 
 you may also believe and find from the evi- 
 dence that the sale was made in good faith." 
 
 The defendant also asked the court to in- 
 struct the jury that unless the sale was ac- 
 companied by delivei-y, and followed by a 
 change of possession on or before the day 
 after the sale, then it was not done within a 
 reasonable time; which instruction the court 
 refused to give. 
 
 We can see no substantial objection to the 
 instructions. Every phase of the case was 
 presented to the jury in a way that was 
 quite favorable to the defendant, and the in- 
 structions are in harmony with the adjudi- 
 cations in this state. The defendant's in- 
 structions, as asked, were calculated to mis- 
 
 327 
 
Case No. 113] 
 
 PROOF. 
 
 lead the jury, and the court was justified in 
 refusing them. 
 
 The defendant asserts, as a matter of law, 
 that a failure by a purchaser to take posses- 
 sion of property purchased within twenty- 
 four hours will vitiate the sale, and that the 
 trial court erred in refusing to so instruct 
 the jury. The statute requires the i>osses- 
 sion to follow the purchase within a reason- 
 able time. It is generally for the jury to de 
 termine what time would or would not be 
 reasonable. It is impossible to formulate a 
 definite rule on the subject. The question 
 in each case must be determined by the cir- 
 cumstances attending the sale, and the char- 
 acter and situation of the property. 
 
 The defendant also assigns for error the 
 refusal of the court to discharge the jury 
 when notified of Improper conduct on the 
 part of one of the jurors. Whether this ac- 
 tion of the court was prejudicial to the de- 
 fendant or not, we cannot stop to inquire, 
 for the reason that the record fails to show 
 that the defendant excepted to the .action of 
 the court. Under well-established rules of 
 appellate practice, we are prohibited from 
 passing on the question. 
 ^The court permitted a witness, who had 
 examined the account between the plaintiff 
 and Mrs. Gruhncr, to state the balance due 
 the plaintiff. The defendant objected to this 
 evidence for the reason that the books were 
 not produced. It appeared that the officer 
 levying the attachment in the suit of the 
 defendant against Mrs. Gruhner had seized 
 the books and carried them away. It has 
 been held that a witness who has inspected 
 the accounts between parties may be per- 
 mitted to te.stify as to a general balance, but 
 will not be allowed to give evidence of the 
 particular contents of the books. 1 Greenl. 
 Ev. (14th Ed.) § 93. But, aside from this, 
 the defendant was not prejudiced by this 
 evidence, for the reason that the plaintiff 
 and Jlrs. Gruhner both testified to the 
 amount of the indebtedness, and there was 
 no countervailing evidence tending to prove 
 that Jlrs. Gruhner was not indebted to the 
 plaintiff in the amount claimed. We do not 
 gather from the record that this fact was 
 seriously controverted by the defendant on 
 the trial of the case. 
 
 The next assignment of error relates to a 
 claim of exemption made by Mrs. Gruhner 
 in the attachment suit. It appears from the 
 defendant's offer of proof that some time 
 after the goods had been seized under the at- 
 tachment Mrs. Gruhner filed a claim of ex- 
 emption with the sheriff, in which she de- 
 manded a return of the property to her. The 
 defendant offered this paper in evidence, and, 
 on the plaintiff's objection, it was excluded. 
 
 328 
 
 The authorities cited by the defendant In 
 support of this assignment are to the effect 
 that admissions and declarations of parties, 
 Avhile in possession of property, are to be 
 regarded as verbal acts, and are received as 
 explanatory of the nature of their posses- 
 sion. This rule cannot be applied to the 
 act of Mrs. Gruhner in claiming a right of 
 exemption in the property held under the 
 attachment, for the simple reason that she 
 was not at the time in possession of the 
 property. This assignment will have to be 
 ruled likewise against the defendant. 
 
 And, lastly, the defendant complains of 
 the action of the court in excluding the tes- 
 timony of the plaintiff and Mrs. Gruhner at 
 the form.'r trial, which had been preserved 
 iu a bill of exceptions. We do not under- 
 stand upon what principle this evidence 
 could be held admissible. Such evidence 
 must be placed in the category of hearsay 
 ! testimony. If the testimony of a deceased 
 witness is thus preserved, it may be read in 
 evidence. This forms the exception to the 
 general rule. Coughlin v. Haeussler, 50 Mo. 
 126. All the witnesses in this case were 
 alive .and present in court. In the case of 
 Bogie V. Nolan, 96 Mo. 85, 9 S. W. 14, the 
 deposition of one of the parties was read 
 in evidence, although the parties were pres- 
 ent in court. The trial court permitted it 
 to be read as an admission of the party, 
 and the supreme court sustained the ruling, 
 and in doing so expressly overruled the case 
 of Priest v. Way, 87 Mo. 16. There is quite 
 a difference between the evidence of a party 
 as preserved in a deposition and that con- 
 tained in a bill of exceptions. The deposi- 
 tion is signed by the party, and duly au- 
 thenticated by an officer, and from it can be 
 ascertained with certainty the extent and 
 chai-acter of any declaration or admission; 
 but this cannot be said of a bill of excep- 
 tions. We know of no rule of law which 
 would authorize the testimony of a party or 
 witness contained in a bill of exceptions to 
 be received as independent evidence, except 
 in cases coming within the exception stated. 
 It has been held that an abandoned pleading, 
 signed by an attorney professing to repre- 
 sent the party, may be read in evidence as 
 an admission or declaration of the client. 
 Dowselot V. Rawlings, 58 Mo. 75. But it is 
 only prima facie admissible. The evidence 
 of the attorney that the party did not em- 
 ploy him in the case renders the pleading 
 incompetjut evidence. Anderson v. McPike. 
 86 Mo. 21 1:;. We will have to rule this as- 
 signment against the defendant. 
 
 The judgment of the trial court will be 
 afllrmed. 
 
 All the judges concur. 
 
ORAL EVIDENCE TO VARY OR EXPLAIN DOCUMENTS. [Case No. 114 
 
 BARXES et al. T. PACKWOOD et al. 
 
 (38 Pae. 857, 10 Wash. 50.) 
 
 Supreme Court of Washington. Nov. 10, 1894. 
 
 Appeal from superior court, Kittitas coun- 
 ty; Carroll B. Graves, Judge. 
 
 Action by S. W. Barnes and another, par- 
 ties doing business as Barnes & McCandless, 
 against S. T. Packwood and others. There 
 ■was a judgment for defendants, and plain- 
 tiffs appeal. Reversed. 
 
 Ralph Kauffman, for appellants. Pruyn & 
 Ready, for respondents. 
 
 DT^XBAR, C. J. This is an action on a 
 ■promissory note. The note sued upon is as 
 follows: "$l,.5O0.OO. BUensburgh, Wash., 
 Oct. 8, 188S. One year after date, without 
 -grace, at 12 o'clock m., we, or either of us, 
 promise to pay to the order of Barnes & Mc- 
 €andless, for the use of the Agricultural 
 Fair Association, fifteen hundred dollars, U. 
 S. gold coin, value received, with interest 
 from date at the rate of one per cent, per 
 month. Interest payable when due, and, if 
 not so paid, to become a part of the princl- 
 ipal, and to bear like interest until paid. 
 And further agreeing that if the same be not 
 paid when due, and suit be brought to col- 
 lect the same, or any portion thereof, to pay 
 ten per cent, on the amount due as attor- 
 ney's fee for collection. S. T. Packwood. 
 Walter A. Bull. J. M. Shelton. A. B. Whit- 
 son. Thomas Haley. S. R. Geddis." 
 
 The defendants, answering the complaint, 
 alleged that the note was signed in its pres- 
 ent form through mistake; that the agree- 
 ment and intention was that the note should 
 be signed by the signers thereof as trustees 
 of an association known as the "Agricultural 
 f H'air Association"; that they were not to be 
 held individually responsible; that it was 
 with this understanding that they signed it, 
 -iind that it was the understanding of Barnes 
 .& McCandless, the plaintiffs, that it was so 
 .signed; that on the day the promissory note 
 set out in the complaint was executed there 
 was a meeting of the board of trustees of 
 ^ald corporation, at which meeting the de- 
 fendants were present, and at said meeting 
 -a resolution was passed to borrow from said 
 Barnes & McCandless, for and on behalf of 
 said corporation, the said sum of $1,500, and 
 that the money was borrowed and the con- 
 tract entered into in accordance with said 
 agreement and resolution; alleging that the 
 defendants received no benefit from said 
 money; that it was turned over to the associ- 
 ation, and that no consideration passed be- 
 tween the defendants and said Barnes & 
 McCandless for said note. The plaintiffs ob- 
 jected to any testimony being heard under 
 this answer, for the reason that it did not 
 state facts sufficient to constitute a defense 
 to the complaint. The court, however, over- 
 ruled the objection, and the case went to 
 trial. Plaintiffs offered the note in evidence, 
 
 proved its execution, and rested their case. 
 The defendants' testimony was in accord- 
 ance with the allegations of the answer, so 
 that the question arises here, was the testi- 
 mony for the defense sufficient to overcome 
 the presumption arising from the execution 
 of the note, the execution of which was ad- 
 mitted? The case was tried by the court, 
 and a judgment rendered for costs for the 
 defendants. It was contended by the appel- 
 lants that the court erred in allowing the de- 
 fendants to amend their answer at the trial, 
 and in not giving judgment for the plaintiffs 
 on the pleadings, inasmuch as three answers 
 had already been filed in the cause, and that 
 it was a clear abuse of the cefjrt's discretion 
 to permit the filing of the fourth; that even 
 that was insufficient, as it contains no alle- 
 gation of a mutual mistake and such an alle- 
 gation is necessary. 
 
 We think the answer substantially contains 
 the allegation of mutual mistake, although 
 not in so many words; and, the court hav- 
 ing such a large discretion under our law and 
 practice in matters of amendments, we do 
 not think we would be justified in reversing 
 the case for this teason. There is no allega- 
 tion of fraud in the answer. The general 
 rule laid down by the text writers is that 
 parol evidence is not admissible to contra- 
 dict, qualify, extend, or vary written instru- 
 ments, but that their interpretation must 
 depend upon their own terms. But, to re- 
 lieve parties from the distress of accident or 
 mistake or fraud, courts of equity will ad- 
 mit parol evidence to qualify and correct, 
 and, necessarily, sometimes, to even defeat, 
 the terms of written instruments. "One of 
 the most common classes of cases," says Mr. 
 Story in his Equity Jurisprudence (volume 1, 
 § 152), "in which relief is sought in equity 
 on account of a mistake of facts is that of 
 written agreements, either executory or ex- 
 ecuted. Sometimes by mistake the written 
 agreement contains less than the parties in- 
 tended, sometimes it contains more, and some- 
 times it simply varies from their intent by 
 expressing something different in substance 
 from the truth of that intent. In all such 
 cases, if the mistake is clearly made out by 
 proofs entirely satisfactory, equity will re- 
 form the contract so as to make it conforma- 
 ble to the precise intent of the parties. But 
 if the proofs are doubtful and unsatisfactory, 
 and the mistake is not made entirely plain, 
 equity will withhold relief, upon the ground 
 that the written paper ought to be treated as 
 a full and correct expression of the intent 
 until the contrary is established beyond rea- 
 sonable controversy." It would certainly be 
 a dangerous doctrine to announce that the 
 terms of a written instrument should be 
 varied, and its effect changed or destroyed, 
 by any slight testimony, or mere preponder- 
 ance of testimony. The very object of re- 
 ducing agreements to writing is to prevent 
 trouble arising from the defects of memory. 
 All the agreements which have been talked 
 
 329 
 
Case Ko. 114] 
 
 PROOF. 
 
 about by the parties leading up to tlie ilnal 
 agreement are presumed to be merged in the 
 writing; and the object of tliis precaution 
 would be destroyed, and it would have a 
 tendency to encourage perjury, if upon slight 
 testimony the sacredness of the written in- 
 strument could be destroyed. And such is al- 
 most the uniform holding of the courts. In 
 Townsend v. Stangroom, 6 Ves. 339, Lord 
 Eldon says that those producing evidence of 
 a mistake undertake a case of great diffi- 
 culty, and that the evidence must be irre- 
 fragable. In Sable v. Maloney. 48 Wis. 331. 
 4 N. W. 479, the court held that a written In- 
 strument would not be reformed on the 
 ground of alleged mistake unless the party 
 complaining move promptly after discovery 
 of the mistake, and not then without clear 
 proof. Said the court: "If the proofs are 
 doubtful and unsatisfactory, and the mistake 
 is not made entirely plain, equity will with- 
 hold relief upon the ground that the written 
 paper ought to be treated as the full and cor- 
 rect expression of the intent, unless the con- 
 trary is established beyond reasonable con- 
 troversy. The parties to the deed, who ap- 
 pear to be equally credible^are in direct con- 
 flict, and there was no other direct evidence 
 nor any surrounding circumstances in cor- 
 roboration of the testimony of the grantor of 
 the deed." So in the case at bar. The tes- 
 timony of the defendants and the plaintiffs 
 is in direct conflict. It matters not that there 
 are four defendants and two plaintiffs. Even 
 the burden of proof does not depend upon the 
 number of witnesses who testify on the re- 
 spective sides of the case. It was held in 
 Mead v. Insurance Co., 64 N. Y. 453, that, to 
 justify the court in changing language of the 
 written instrument sought to be reformed 
 (except in case of fraud), it must be establish- 
 ed that both parties agreed to something dif- 
 ferent from what is expressed in the writ- 
 ing, and the proof upon this point should be 
 so clear and convincing as to leave no room 
 for doubt. In Stiles v. AVillis, 66 Md. .552, 8 
 Atl. 353, it was held that where application 
 is made to a court of equity to have a mort- 
 gage deed reformed, by having a personal 
 covenant inserted therein, as to one of the 
 parties, alleged to have been omitted by mis- 
 take of the draughtsman, the proof must be 
 of such a character as to leave no doubt what- 
 ever in the mind of the court that mistake 
 has intervened, and that the instrument is 
 variant from the actual contract of the par- 
 ties; that it is not enough to show the inten- 
 tion of one of the parties to the instrument 
 only, but the proof must establish incontro- 
 vertibly that the error in the instrument al- 
 leged was common to both parties. In other 
 words, it must be conclusively established 
 that both parties understood the contract as 
 it is alleged it ought to have been expressed, 
 and as in fact it was, but for the mistake 
 alleged in reducing it to writing. This case 
 is on a dead level with the case at bar, and, 
 with the other cases above quoted, seems to 
 
 330 
 
 us to go to the extent of holding that the- 
 mistake must be established beyond a rea- 
 sonable doubt. In Stockbridge Iron Co. v. 
 Hudson Iron Co., 102 Mass. 45, the court said: 
 "By the common law, parties who execute 
 written instruments are bound by them, and 
 parol evidence is not admissible to add ta 
 or diminish or vary their terms. The rule is 
 of great pracjical importance for the protec- 
 tion of the interests of the citizen, and it 
 is the more so since parties and Interested 
 witnesses are permitted to testify. The writ- 
 ing must be regarded, prima facie, as a 
 solemn and deliberate admission of both par- 
 ties as to what the terms of the contract ac- 
 tually were"; citing Babcock v. Smith, 22 
 Pick. 61, where the court held that "the pow- 
 er of rectifying and reforming solemn writ- 
 ten contracts is one which by courts of gen- 
 eral chancery jurisdiction is exercised very 
 sparingly, and only upon the clearest and 
 most satisfactory proof of the intention of 
 the parties." And it is also asserted in Stock- 
 bridge Iron Co. V. Hudson Iron Co., supra, 
 that "the ordinary rule of evidence in civil 
 actions, that a fact must be proved by a pre- 
 ponderance of evidence, does not apply to- 
 such a case as this. The proof that both 
 parties intended to have the precise agree- 
 ment set forth inserted in the deed, and omit- 
 ted to do so by mistake, must be made be- 
 yond a reasonable doubt." 
 
 The logic of the cases cited, even where it 
 is not so specifically expressed, is that the- 
 proof of a mistake must be beyond a reason- 
 able doubt. But we might still go beyond \ 
 the question of mere preponderance, and yet \l 
 not go to the extent of requiring the proof J 
 beyond a reasonable doubt. That a mere 
 preponderance of the testimony will not be 
 sufiicient to overcome the presumption that 
 the parties have expressed their agreement 
 In the contract has been decided by this 
 court in Voorhies v. Hennessy, 7 Wash. 243,, 
 34 Pac. 931. In that case there was an 
 attempt to prove by parol evidence that an 
 absolute bill of sale was given as a chattel 
 mortgage; and the court, In speaking of the 
 testimony in that case, says: "In such cases 
 the solemnity of the writing is not to be- 
 overcome by a mere preponderance of evi- 
 dence. The writing itself stands as the clear- 
 ly-stated and deliberately ascertained inten- 
 tion of the parties, which must be enforced 
 unless it is shown by clear, positive, 
 convincing evidence that the mutual 
 tion was something else, and that it was" 
 with such different intention understood by 
 both parties that the instrument was deliv- 
 ered and accepted. This is the rule in eq- 
 uity, where cases of this kind are most fre- 
 quently heard; and when submitted to a 
 jury the same rule applies.' The rule is 
 laid down in ,Ton(>s on Mortgages (section 
 3;'>5) that one who alleges that his deed in 
 absolute form was intended as a mortgage 
 only is required to make strict proof of the 
 fact; that the proof must be clear, unequlv- 
 
 le eiiiuiceu 
 sitive, and \ 
 tual inten- j 
 
ORAL EVIDENCE TO VAKY OR EXPLAIN DOCUMENTS. [Case No. 114 
 
 ocal, and convincins; that the fact that 
 the grantor understood the transaction to 
 be a mortgage is not alone sufficient to prove 
 it to be so, but if the evidence is doui)tJ!u] 
 and unsatisfactory — if it fails to overcome 
 the strong presumption arising from the 
 terms of the absolute deed by testimony en- 
 tirely clear and convincing beyond reason- 
 able controversy— the deed must have etfect 
 In accordance with its terms; that the un- 
 supported testimony of the plaintiff, contra- 
 dicted by the defendant, is insufficient to 
 convert an absolute deed into a mortgasf?. 
 Here it will be observed that it is the un- 
 supported testimony of the defendants, con- 
 tradicting that of the plaintiffs, which is 
 relied upon to relieve the defendants from 
 the obligation imposed by the written in- 
 strument. In Purington v. Akhurst, 74 HI. 
 490, it was decided that where a bill of sale 
 is made of vessels for one-half interest there- 
 in it will require evidence of the clearest 
 character to show that it was intended only 
 as a mortgage to secure a loan or advances. 
 To the same effect is Sewell v. Price's 
 Adm'r, 32 Ala. 97. "To show by parol that 
 a deed absolute in form is a mortgage, the 
 evidence must be clear and convincing." 
 McCormicli v. Herndon, 67 Wis. 648, 31 N. 
 W. 303. "The rule in cases of this kind," 
 said the court in Oadman v. Peter, 118 U. S. 
 73, 6 Sup. Ct. 957, "is well settled. If the 
 conveyance was in fee, under covenant of 
 warranty, and there is no defeasance, ei- 
 ther in the conveyance or collateral paper, 
 parol evidence to show that it was intended 
 to secure a debt, and to operate only as a 
 mortgage, must be clear, unequivocal, and 
 convincing, or the presumption that the in- 
 strument is what it purports to be must pre- 
 vail." See, also, Howland v. Blake, 97 U. 
 S. 624; Coyle v. Davis, 116 U. S. 108, 6 Sup. 
 Ct. 314; Tilden v. Streeter, 45 llich. 533, 
 8 N. W. 502. If a mere preponderance of 
 the testimony were all that was required to 
 destroy the force of a written instrument, 
 there would be very little use in reducing 
 an agreement to writing; for the preponder- 
 ance of testimony is required in any case 
 to establish the affirmative propositions as- 
 serted. So that it must be seen that if any 
 effect at all is given to a written Instrument 
 the rule of mere preponderance cannot at- 
 tach. 
 
 In this case it had been several years from 
 the time the note was. given until the action 
 was tried, and the testimony of the defend- 
 ants satisfies us that their recollection of 
 events which transpired at the meeting tes- 
 tified of could not be very definite or certain. 
 Neither is the testimony of the defendants 
 entirely harmonious. It Is testified by the 
 defendajjits that a resolution was passed by 
 the board of trustees authorizing the borrow- 
 ing of the money in question from Barnes & 
 JVIcCandless; that the trustees were called to- 
 gether for that purpose, and at the instance 
 of Barnes, who was present when the reso- 
 
 lution was passed. This resolution is not 
 even brought to bear in this case, but de- 
 pends also upon the memories of the wit- 
 nesses, for the records of the society had 
 been burned between the time of the alleged 
 passage of the resolution and the bringing 
 of the action. One of the witnesses testified, 
 in relation to the matter, that they all went 
 down to the office of Barnes & McCandless 
 and signed the note. Others are not certain 
 where the note was signed, but think prob- 
 ably it was there, and are not able to re- 
 member who was present at the time of the 
 signing. They all say that it was the un- 
 derstanding that they were not to be held 
 liable as individuals,, but as trustees, but the 
 utterances which brought about the under- 
 standing are dragged out of the witnesses 
 by direct and leading questions. Referring 
 to the testimony of Walter A. Bull, for in- 
 stance, when asked whether there was any 
 talk about individual liability: "A. I think 
 there was. Q. What was said about that? 
 A. We wouldn't sign only for the^ corpora- 
 tion. Q. What did Barnes say about that? 
 A. All right. Q. How much money do you 
 remember was to be loaned? A. $1,500. Q. 
 i'ou have heard the note in controversy there 
 read? A. Yes. Q. Did you .sign this note? 
 A. Yes. Q. How did you come to sign this 
 note? A. I signed the note for the associa- 
 tion. Q. Was this note given in pursuance 
 of the arrangement had there with Mr. 
 Barnes? A. Yes. Q. Now, who drew up 
 this note? A. I don't know. Q. Where did 
 you sign the note? A. I think it was in Mr. 
 Barnes' office. Q. When you signed it, 
 whom did you intend to bind? A. The fail- 
 association. Q. Anybody else? A. No. Q. 
 Did you intend to bind yourself? A. No. 
 Q. Did you get any part of this money? A. 
 No. Q. Any benefit directly or indirectly 
 from it? A. No. Q. What was done with 
 the money? A. I don't know. I think it 
 was used for the fair association." So that 
 it seems the memory of the witness Is so 
 faulty about_ the transaction that he is not 
 even certain what use the money was put to 
 for which he made himself responsible; and 
 it is not sufficient that his intention was, at 
 the time he signed the note, that he should 
 not be bound Individually; but to escape the 
 responsibility of the individual note which he 
 signed, under the plea of a mistake, it must 
 not only plainly appear that it was his in- 
 tention that he should not be bound, but it 
 must as plainly appear that it was the in- 
 tention of Barnes & McCandless. During the 
 testimony given by Thomas Haley the fol- 
 lowing questions were answered: "Q. Do 
 you remember any resolution being passed 
 there? A. Yes. Q. Do you remember who 
 drew it up? A. I don't remember who drew 
 it up. I don't remember who was secretary. 
 Q. Now, what else occurred there at that 
 meeting? AA'as there any agreement made 
 between the president and Mr. Barnes? A. 
 Yes, sir. Q. State what that agreement was. 
 
 331 
 
Case No. 114] 
 
 PROOF. 
 
 A. Ml". Barnes was to loan the association 
 money, if tlie board of trustees -would sign 
 the note. Q. Sign tlie note how? A. As nn 
 association. Q. Was anything said about 
 personal liability? A. No, sir. Q. Was there 
 any talk there about the members of the 
 board not wanting to be personally liable? 
 A. There was talk about the members say- 
 ing they wouldn't be personally liable." 
 This testimony contradicts itself, for if there 
 was nothing said about personal liability 
 there could not have been anything said 
 -about the members of the board being per- 
 sonally liable. The witness testifies, how- 
 ever, that Mr. Barnes was to loan the asso- 
 •ciatiou money if the board of trustees would 
 sign the note as an association. So it stands 
 to reason, if this question of personal re- 
 •sponsibilitj' had been called to the minds of 
 the defendants at that time, and they had 
 refused to sign individually, but had espe- 
 cially agreed to sign as trustees, that they 
 would have carried that agreement out by 
 signing as trustees, instead of signing as 
 Individuals. The following excerpt is taken 
 from the testimony of A. B. Whitson: "Q. 
 You can state how you know this meeting 
 was called for the purpose of passing this 
 resolution. (Objected to.) Q. Did you hear 
 Mr. Barnes talk about this matter? A. No, 
 sir. Q. Did he saj' anything at the meeting 
 about it? A. I don't remember what he said 
 at this meeting. It was discussed at this 
 meeting. Q. He was present at it? A. Yes. 
 Q. Now, what was said there, in his pres- 
 ence, about why the resolution had to be 
 passed? (Objected to. Sustained.) Q. Now, 
 state what transpired at this meeting. A. 
 We passed this resolution that we would 
 borrow this money of Barnes & McCandless. 
 Q. What were the contents of that resolu- 
 tion? Do you remember? A. I don't re- 
 member its contents exactly. Q. What was 
 the substance of it? A. Well, the resolu- 
 tion was passed that we should borrow the 
 money from him. Q. Do you know who pre- 
 pared that resolution? A. The secretary. Q. 
 Now, was there any agreement entered into 
 there between the trustees for the corpora- 
 tion and Mr. Barnes? A. There was. Q. 
 State what that agreement was. State what 
 -Mr. Barnes did. A. 1 don't know what Mr. 
 Barnes said, but it was mutually understood. 
 {Objected to "mutually understood.") The 
 Court: You can state what the effect was of 
 what was said. State in substance. A. 
 There was a mutual understanding that we 
 were to sign this note and get the money 
 from Mr. Barnes. Q. How were you to sign 
 it? A. Sign it as trustees of the association." 
 So it will be seen from this testimony that 
 the witness, instead of stating the facts from 
 which a conclusion could be drawn by the 
 jury or by the court, simply stated the con- 
 clusions, thereby making himself a judge of 
 what state of facts would warrant Barnes 
 in coming to the conchision that he should 
 look to the trustees instead of to the indi- 
 332 
 
 viduals who signed the note. Continuing: 
 '•Q. Was there anything said there about the 
 individual liability of the trustees? A. Yes. 
 sir. Q. What was said? A. I remember it 
 was spoken of whether we would be indi- 
 vidually liable in this or not. Q. Was that 
 spolien of by the trustees? A. It was, in 
 open meeting. Q. Was Mr. Barnes there? 
 A. Yes. y. Did Mr. Barnes say anything in 
 answer to that? A. I don't remember as he 
 did." In answer to the question, "How did 
 you come to sign this note sued upon here as 
 individuals?" the answer was: "I didn't sign 
 it as an individual. I signed it as trustee, 
 is my understanding. Q. Did any one ad- 
 vise you that this was the way to bind a 
 corporation, and make a statement to that 
 effect? (Objected to. Overruled.) A. I don't 
 know as 1 had any advice on the subject. 
 Q. W!io drew up this note? A. I don't 
 know." So that, so far as Whitson's testi- 
 mony is concerned, it is simply conclusive 
 of what his understanding was at the time 
 the note was signed, without proving or 
 tending to prove in any way the understand- 
 ing of the plaintiffs. 
 
 The testimony of McCandless, on the other 
 hand is to the effect that he was present at 
 the time of the drawing up and signing of 
 the promissory note in suit. He testifies 
 that the president of the association came to 
 the plaintiffs to know if they would loan the 
 association some money, and the plaintiffs 
 told him they would not loan it a dollar. 
 "He then said, 'Will you loan it to us indi- 
 vidually?' I told him we would, and he 
 went in and came back, and we drew up a 
 note, and he took it and had it signed. Q. 
 When you say you would loan it to them 
 individually, to what individuals did you re- 
 fer? A. Well, during the conversation he 
 mentioned the individuals who would sign 
 the note, if we would let them have the 
 money,— Mr. Packwood, Mr. Bull, Mr. Haley, 
 Mr. Whitson, Mr. Geddis, and himself,— and 
 we told him we would loan those gentlemen 
 the money. Q. And you told him you would 
 not loan the association a dollar? A. Yes, 
 sir; that we would not loan it a dollar." 
 This testimony is objected to by the respond- 
 ents on the alleged ground that it does not 
 refer to the same transaction. The witness 
 states tliat it was On the same day— the day 
 prior to the signing of this note — that this 
 conversation occurred, and it is certainly as 
 near the transaction as is the testimony of 
 the defendants; for, according to their testi- 
 mony, the resolution and agreement spoken 
 of hei'e were made from one to three days 
 before the signing of the note. The posi- 
 tive testimony of Mr. Barnes is that, when 
 asked by the president of the association to 
 loan said association money, he told Ijim that 
 he would not loan the fair association ajiy- 
 thing at all: "That we would not loan it 
 a dollar. But then he said he could get an 
 individual note, and named over certain par- 
 ties he thought would sign the note, and 
 
OUAL EVIDENCE TO VARY OR EXPLAIN DOCUMENTS. [Case No. 114 
 
 asked if he could get the money if those 
 parties would go on the note [mentioning 
 the names of the parties who now appear 
 on the note]. I told him, while we were all 
 there together, If he would get a note signed 
 by those parties individually we would let 
 him have the money. I made out the note 
 myself, and he took it, and afterwards 
 brought it back with those names on there. 
 Q. Did j'ou pay out the money on the note? 
 A. I did." The witness also testified that 
 he knew of the financial condition of the as- 
 sociation; that there was a mortgage on Its 
 property for $2,500, and he knew that it 
 would not be a safe investment to loan it 
 money. This witness testifies, besides, that 
 the note was not signed in his office at all, 
 but that it was delivered to the president of 
 the society, who obtained the signatures. 
 
 It can be readily gathered from the testi- 
 mony of the witnesses for the defense that 
 they are not certain where the note was 
 signed. Some of them testified that *hey 
 thought it was signed in the office of Baruiis 
 & McCandless. In fact, there is a mist of 
 uncertainty hanging over their testimony in 
 regard to the whole transaction; just such 
 uncertainty as might be expected where men 
 are relying upon their memories concerning 
 the transaction of several years before, un- 
 certainties which it is the special office of a 
 written agreement to avoid. 
 
 There is another circumstance in this case 
 which strengthens the theory of appellants, 
 and that Is that certain signers of this note, 
 some years afterwards, when they were 
 pressed for payment, individually agreed 
 each one to pay the one-fourth of this note. 
 This agreement is testified to by Kauffuian, 
 a disinterested witness, and is a pertinent 
 circumstance in the case. Again, the form 
 of the note itself indicates that the under- 
 standing was as testified to by Barnes. If 
 these parties had intended to sign a note 
 binding the corporation only, they would 
 have signed it as they did, adding after their 
 names, "Trustees of the Agricultural Fair 
 Association." Such a signing as this would 
 simply have been held to have been descrip- 
 tive of the names of the signers, and would 
 probably not have bound the association; 
 but it would have indicated the intention of 
 the parties to bind the association, and 
 
 would have been such a signing as the or- 
 dinary citizen, not acquainted with technical 
 law, would have executed. But here the 
 note not only is not signed, "The Agricul- 
 tural Fair Association, by Packwood et al.," 
 nor "Packwood et al., for the Agricultural 
 Fair Association," nor "Packwood et al.. 
 Trustees of the Agricultural Fair Associa- 
 tion"; but is signed in such a manner that 
 it indicates that there was no attempt or 
 thought of binding the association in any 
 way. It is true that there occurs in the note 
 this language, "For the use of the Agricul- 
 tural Fair Association." This Is explained 
 by the testimony of Barnes that they told 
 him they wanted that inserted so tnat It 
 would show where the money went, as the 
 money was actually for use of the fair asso- 
 ciation, and assisted thom in keeping their 
 books with the said association. It is also, 
 no doubt, true that the resolution was ijassed 
 authorizing these trustees to borrow money 
 for the association. In fact, it is not likely 
 that they would have borrowed It under 
 any circumstances had not such a resolution 
 been passed, and the will of the association 
 been thereby expressed. But, In our Judg- 
 ment, that was all the effect that the reso- 
 lution had, and from that resolution the 
 trustees felt warranted in borrowing money 
 for the use of the association, and made 
 themselves personally liable for the same, 
 looking to the society for their pay, and rely- 
 ing upon the resolution as authority for bor- 
 rowing the money. It is true that there are 
 four witnesses who testify here in favor of 
 the contention of the respondents, and only 
 two in favor of that of the appellants. Bur 
 this, as we have said before, can go no fur- 
 ther than a preponderance of the testimony, 
 conceding the witnesses to be all of equal 
 credibility. We think there are no cases sus- 
 taining the doctrine that the presumption 
 that a written instrument exj^resses the true 
 agreement of the parties can be overcome by 
 a mere preponderance of the testimony. The 
 judgment will be reversed, and the cause re- 
 manded with instructions to give judgment 
 to the plaintiffs for the amount asked for in 
 the complaint. 
 
 SCOTT, ANDERS, STILES, and HOYT, 
 JJ., concur. 
 
 333 
 
Case No. 115] 
 
 PliOOF. 
 
 THOMAS et al. v. SCUTT. 
 
 (2T N. E. 961, 127 N. Y. 133.) 
 
 Court of Appeals of New York, Second Division. 
 .Tune 2, 1891. 
 
 Appeal from a jurlsment of the general 
 term of the supreme court, in the fourth 
 judicial department, affll'niinK a judRment 
 entered on the report of a. referee. Action 
 to recover the sum of fSOO alleged by the 
 plaintiffs to be due them from the defend- 
 ant upon the sale of a quantity of lumber. 
 The defendant denied the purchase, and 
 allesed that all the lumber that ho had of 
 the plaintiffs' was turned out to him to se- 
 cure advances that he had previou.«ly 
 made to them, under the express agi-ee- 
 ment that it should b? rafted to market, 
 and sold as his Inmbcr, and that he sliould 
 accoup* to thein tor the prncepfiB tlip'-eof 
 when received, after deducting all ex- 
 penses and thp amount of their indebted- 
 ness to him. The defendant further al- 
 leged that, owing to low water in the Del- 
 aware river, the lumber could not be got 
 to market without great e.ipense, neces- 
 sarily incurred in taking it out of the river 
 and rerafting it, and that the proceeds 
 received by him were much less than tlie 
 artual expenses and the amount of his 
 claim against the plaintiffs. The action 
 was tried before a referee, who found that 
 June 11, 188:1. the lumber in question was 
 sold by the plaintiffs to the defendant for 
 the sum of .|728, which was to be applied 
 by him upon a chattel mortgage given 
 by them upon said lumber and other 
 property to se^'ure a debt of $1,60'), and 
 that soon after the balance of the mort- 
 gage was paid in cash. It appeared that 
 the defendant, at about the date of tlie 
 alleged sale, took pos.«?ssion of the lum- 
 ber, and, after some delay, sold it; but, 
 t)wing to the unusual difficulty of getting 
 it to market, little or nothing was real- 
 ized above expenses. 
 
 W. J. Wflsli, for appellant. A. Taylor 
 and John B. Gleason, lor respondents. 
 
 VANN, J., (after stating the facts as 
 above.) Upi'n the trial, the plaintiffs put 
 in evidence a written instrument, dated 
 June 11, 188;!, duly signed by them, of 
 which the following is a copy, viz. : "For 
 the consideration hereinafter named, wb 
 hereby sell, assign, transfer, and deliver 
 to MiloScutt one raft of nemlock toggle 
 timber, and loading thereon, now lying 
 at Equinunk Eddy, just below the Rock, 
 in Buckingliam township. Pa., the said 
 lumber being covered by a chattel mort- 
 gage of which the mortgage hereto at- 
 tached is a copy, viz. : 
 
 4, OnO feet cherry boards, at $'3 $ 4S 00 
 
 35,000 maple plant, about, at $10 350 1)0 
 
 11,000 feet of toggle timber, at 'do . .^$a-ffj^0 00 
 
 $728 00 
 
 — Thesame toapplyonthe amount due on 
 said chattel mortgage, and, if any mis- 
 take in amount of lumber, same to l)e 
 corrected." A chattel mortgagi; was an- 
 nexed to this wi'iting, dated March 23, 
 1883, given by the plaintiffs to delenduut 
 
 .334 
 
 to secure the payment of $1,600 on the 
 first of May following. Itcovered a large 
 quantity of lumber in addition to that 
 mentioned in tlie written agreement, and 
 stated that it was all at Peas Eddy, a 
 place within the state of New York. The 
 indebtedness of the plaintiffs to the de- 
 fendant on the 11th of June, 1883, amount- 
 ed to the sum of .f2.100, including that se- 
 cured by the chattel mortgage. The 
 plaintiffs also showed that, shortly after 
 the written instrument was giveii, they 
 paid to the defendant enough money to 
 fully equal the amount unpaid upon the 
 mortaage, provided said sum of .f 728 had 
 tirst been applied. Thereupon the defend- 
 ant, indue form, offered to show "what 
 was said between the parties in reference 
 to the bill of sale," but tlie offer was ex- 
 cluded, upon the ground that the writing 
 was tiie best evidence, and that it could 
 not be conti'adicted or avoided by parol. 
 The defendant further sought to prove 
 "that, prior to and at the time of the 
 drawing of the bill of sale, the plaintiffs 
 refused to make an absolute disposition 
 of the lumber; that they were informed 
 that such was not intended, but that the 
 raft was in Penn.«yh'ania, and that the 
 chattel mortgage did not protect defend- 
 ant against a levy upon or disposition of 
 the lumber by the plaintiffs in that state; 
 that plaintiffs should have the full benefit 
 of the lumber, and what it brought on 
 the sale when marketed, after paying the 
 plaintiffs' claim, and the expense uf run- 
 ning andmaiketing it ; that plaintiffs said 
 they were satisfied with that, and would 
 make the bill of sale on this basis, and 
 thereupon did sign the bill of sale." This 
 evidence was also objected to and exclud- 
 ed upon the same ground. At a later 
 stage of the trial the defendant, under the 
 same objection, was permitted to testily 
 in reference to what was said i)etwepn him- 
 self and one of the plaintiffs just before 
 the written instrument, called for conven- 
 ience a "bill of sale," was executed; but it 
 was subsequently stricken out on motion 
 of the plaintiffs, and against the objec- 
 tion of the defendant, upon the same 
 ground that had governed the prior rul- 
 ings. Excejitions to these decisions of 
 tlie referee pre.'.ent the only question that 
 the learned counsel for the defendant has 
 asked us to decide. It is a generiil rule 
 that evidence of what was said between 
 the parties to a valid instrument in writ- 
 ing, either priorto or at the time otits ex- 
 ecution, cannot be received to contradict 
 or vary its terms. This rule is not uni- 
 versal in its application, because the 
 courts, in their effort to pi'event fraud 
 and injustice, have laid down certain ex- 
 ce|>tions, which, although correct in prin- 
 citile, are so'netimes so loosely applied in 
 liractice as to threaten the integrity of the 
 rule itself. 1 (Jreenl. Ev. § 284;i. The 
 real exceptions may be grouped in two 
 classes, the first of which includes those 
 cases in which parol evidence has been re- 
 ceived to show tliat that which [lurportsto 
 be a written contract is in fact no contract 
 at all. Thus, fraud, illegality, want of 
 consideration, delivery upon an unper- 
 formed condition, and the like, may be 
 shown by parol, not to contradict or 
 
ORAL EVIDENCE TO VARY OR EXPLAIN DOCUMENTS. [Case No. 115 
 
 vary, but to destroy, a written instru- 
 ment. Swell prooi does not recoRnize tlie 
 contract as ever existins as a valid agree- 
 ment, and is received, from the necessity 
 of tlie case, to show tliat tliat which ap- 
 pears to be is not, and never was, a con- 
 tract. Illustrations of this class may be 
 found in the following citatioiis : Beecker 
 V. Vrooman, 13 Johns. 301 ; Hammond v. 
 Hopping, 13 Wend. 50.5; Johnson v. Miln, 
 14 Wend. 1S)5; Benton v. Martin, 52 N. 
 Y 570; Grier.son v. Mason. 60 N. Y. 894; 
 1 Greenl. Ev. § 284; Phil. Ev, (2 Cow. & 
 H. notes) p. 660, note 494. The second 
 class embraces those cases which recog- 
 nize the written instrument as existing 
 and valid, but regard it as incomplete, 
 either obviously, or at least possibly, and 
 ad:nit parol evidence, not to contradict 
 or vary, but to complete, the entire agree- 
 ment, of which the writing is only a part. 
 Receipts, bills of parcels, and writings 
 that evidently express only .some parts of 
 the agreement, are examples of this class, 
 which leaves tlie written contract un- 
 changed, but trealsitas a partof an entire 
 oral agreement, the remainder of which 
 was not reduced to writing. Two things 
 however, are essential to bring a case 
 within this class: (1) Tlie writing must 
 not apiiear, upon inspection, to be a com- 
 plete contract, embracing all the particu- 
 lars necessary to make a perfect agree- 
 ment, and designed to express the whole 
 arrangement between the parties, fo: in 
 .such a case it is conclusively presumed to 
 embrace the entire contract. (2) Tlie pa- 
 rol evidence ni.ust be consistent witli, and 
 not contradictory of, the written instru- 
 ment. Chapin v. Dobson, 78 N. Y. 74, is an 
 instance of this class, and, although near 
 the borderline, illustrates the two require- 
 ments just mentioned. In that case it 
 was lield competent to show bj' parol ev- 
 idence that a written contract to furnish 
 machinery of a specified kind, at a definite 
 price, within a certain time, and to deliv- 
 er it in a particular way, wa.s part of an 
 entire verbal contract, which provided 
 that the machines should be so made that 
 they would do the work of tlie pei-son 
 who ordered them to his satisfaction. 
 The ground of the decision was that 
 tliere was nothing on the face of the in- 
 strument to show that it was the whole 
 agreement between the parties, and that 
 the oral guaranty did not contradict and 
 was not inconsistent with the written 
 contract. 
 
 In Eighmie v. Taylor, 98 N. Y. 288, the 
 conrt had under consideration a written 
 instrument that was regarded as, upon 
 inspection, appearing to be a full, defi- 
 nite, and complete agreement of bargain 
 and sale, and therefore held that evidence 
 of a verbal warranty in that case was 
 inadmissible. In the course of the o[)in- 
 ion, comment was made upon Chapin v. 
 Dobson, supra, in this way: "It was said 
 of the instrument then in question that 
 there was nothing upon its face to show 
 that it was intended to express the whole 
 contract between the parties; the infer- 
 ence being, as was declared in an earlier 
 case, that where a contract does indicate 
 such intention and design, and is one con- 
 summated by the writing, the presump- 
 
 tion of law arises that the written instru- 
 ment contains the whole of the agree- 
 ment, and that, where there is such form- 
 al contract of bargain and sale executed 
 in writing, there can be no question but 
 that the parties intended the writing as 
 a repository 3f the agreement itself;" 
 citing Filkins v. Whyland, 24 N. Y. 338. A 
 further illustration of the inflexibility of the 
 first of the two requirements mentioned 
 may be seen in the still latercase of Marsh 
 V. McNair, 99 N. Y. 174, 1 N. E. Rep. 660, 
 where the written instrument was in 
 these words: "This is to certify that, in 
 consideration of crediting C. H. Marsh at 
 the Exchange Bank of Lima, $.3.53.72, pay- 
 ing mortgage (on property formerly deed- 
 ed by J. R. Marsh, in Avon, to 0. W. Gib- 
 son) given by William F. Russell to C. H. 
 Marsh, .fllO.46, and indorsing $35.82 upon 
 a note made by (;. H. Marsh, June 8, 1871, 
 for $300, we jointly and severally sell, as- 
 sign, and transfer all onr right title, and 
 interest in two policies, Nos. 4.277 and 
 4,287, upon the lives of Charles H. Marsh 
 and John R. Marsh, issued by the Nation- 
 al Life Insurance ("oinpany of the United 
 States of America to Chauncey W. (ribson, 
 of I ma, N. Y. " It was heid that, in the 
 absence of any claim of fraud or mutual 
 mistake as to the contents of the assign- 
 ment, it was conclusive, and that oral evi- 
 dence was incompetent to show that it 
 was executed as collateral securily only. 
 The opinion recognizes as well settled 
 that an instrument assigning or convey- 
 ing real or personal property in alisolute 
 terms may, by parol evidence, be shown 
 to have been intended as security mere- 
 ly; states the historj' of the exception, 
 and its theory; but declares, in words ap- 
 plicable to the case in hand, that "this in- 
 strument is more than an assignment. It 
 contains what both parties agreed to do. 1 
 It shows that the assignment was made 1 
 for the purpose mentioned, and precisely 
 what (jibson was to do in consideration 
 thereof. He became bound to do precisely 
 what was specified for him to do, and he 
 could have been sued by the assignors for 
 damages if he had failed to perform. 
 Hence the instrument is not a mere as- 
 Eignment or transferof the policy. It is a 
 contract in writing, within the rule which 
 prohibits parol evidence to explain, varv, 
 or contradict such contracts." The au- 
 thorities cited in the opinion apply with 
 equal force to the case now under consid- 
 eration. 
 
 The principle upon which parol evidence 
 is held admissible to show that a simple 
 assignment, althongh absolute in terms, 
 was intended as security merely is the sup- 
 posed incompleteness of the instrument, 
 and it is not regarded ascontrauicting the 
 writing, but as showing its purpose. 
 Trnscott v. King, 6 N. Y. 147, 161; Chester 
 V. Bank, 16 N. Y. 336, 343; Horn v. Ketel- 
 tas, 46 N. Y. 605, 610. Where, however, in- 
 stead of a mere transfer or assignment, 
 there is a contract, appearing on its 
 face to be complete, witli mutual obliga- 
 tions to be perf.irmed, "you can no more 
 add to orccmtradict its legal effect by pa- 
 rol stipulations, preceding or accompanj'-- 
 ing its execution, than you can alter it, 
 through the same means, in any other re- 
 
 335 
 
Case Ko. 115] 
 
 PKOOP. 
 
 spect. ■' Phil. Ev. (2 ('owen & H. notes.) 
 6(!8; Eenard v. Sampson, 12 N. Y. 561; 
 Shaw V. Insurance ('o.. 69 N. Y. 280; Long 
 V. Iron Co., 101 N. Y. 038, 4 N. E. Rep. 735; 
 Snowflen v. Guion, 101 N. Y. 458, 5 N. E. 
 Eep. 322; Gorrlon v. Niemann, 118 N.Y.153, 
 23 N. E. Rep. 454; Humphreys v. Railroad 
 Co., 121 N. Y. 435, 24 N. E. Rep. 695; En- 
 selhorn v. Reitlinger, 122 N. Y. 70, 25 N. E. 
 Eep. 297. In the fnresoing classification 
 collateral agreements are not included, be- 
 cause tlie.y are separate, independent, and 
 complete contracts, altliough relating to 
 the same subject They are allowed to 
 be proved by parol, because they were 
 made by parol, and no part thereof com- 
 mitted to writing. Evidence to explain 
 ambiguity, establisli a custom, or show 
 the meaning of technical terms, and the 
 like, is not regarded as an exception to 
 the general rule, because it does not con- 
 tradict or vary the written instrument, 
 but simply places the court in the posi- 
 tion of the parties when they made the 
 contract, and enables it to appreciate the 
 force of the words they used in reducing 
 it to writing. It is received where doubt 
 arises upon the face of the instrument as 
 to its meaning, not to enable the court to 
 hear what the parties said, but to enable 
 it to understand what they wrote, as 
 they understood it at the time. Such evi- 
 dence is explanatory, and must be incon- 
 sistent with the terms of the contract. 
 Pana v. Fiedler, 12 N. Y. 40: Collender v. 
 Dinsmore, 55 N. Y. 200; Newhall v. Ap- 
 pleton, 114 N. Y. 140, 21 N. E. Rep. K5: 
 Smith V. Clews, 114 N. Y. 190, 21 N. E. Rep. 
 100. 
 
 Returning, now, to the written instru- 
 ment executed by the plaintiffs in this 
 case, and it appears, upon analyzing its 
 provisions, to be an agreement of a com- 
 plete and comprehensive character. There 
 is, first, a transfer in formal terms by the 
 plaintiffs to the defendant of a draft of 
 hemlock lumber lying at a place named, 
 followed by the statement that such lum- 
 ber is covered by the chattel mortgage an- 
 nexed. Three different kinds of lumber 
 are then enumerated, with the quantity 
 in feet of each, the price per foot or per 
 thousand, and the amount that each kind 
 comes to at the pricenamed. Those sums 
 are added, and tlie amount thereof, con- 
 stituting the purchase price, the defendant 
 expressly agrees to apply on his chattel 
 mortgage, nnd both parties agree to 
 correct any mistake tliere may be in the 
 amount of the lumber. The method of 
 correcting mistakes is not provided, but 
 it is clear that, if the lumber oVerran the 
 amount stated, the plaintiffs wereto have 
 the benefit ol it, while, if it fell short, the 
 
 [!36 
 
 defendant was to have tlie deficiency made- 
 good to him in some way. We regjird 
 this contract as complete upon its face. 
 "What element is wanting? If such a writ- 
 ing can be undermined b.y parol evidence, 
 what written instrument is safe? How 
 can a man, however prudent, protect him- 
 self against perjury, infirmity of memory, 
 or the death of witnesses? What stipu- 
 lation was omitted that should have been 
 inserted in order to bring the instrument 
 within the general rule? What will be 
 left of the rule if it is established that it 
 does not control such a contract? Will 
 anything of value be left, if it is held that 
 a writing which contains the full and defi- 
 nite terms of a contract, apparently com- 
 plete, may be shown by parol evidence to 
 be simply part performance of an entire 
 verbal agreement previously made? We 
 think that the writing in question is gov- 
 erned by the rule, not by the exception. 
 As was said by this court in Eiglimie v. 
 Taylor, supra, 296, it contains a definite 
 agreement of bargain and sale, specifies 
 the consideration, describes the subject, 
 contains mutual covenants for the protec- 
 tion of each party, and leaves nothing 
 of a complete, perfect, and consummated 
 agreement to be supplied. On its face, 
 "no element is wan ci.ng of an entire con- 
 tract, exhausting the final intentions of 
 both parties. It is therefore sucli n paper 
 as falls within the protection of the rule, 
 'jnd must be conclusively presumed to 
 ontain the wlio'e contract as made." 
 Moreover, aside IroiTi the presumption 
 arising from an inspection of the paper, 
 such a parol arrangement . f the defend- 
 •int tried to prove would be .nconsistent 
 with the written instrument, because the 
 purchase price was not according to the 
 former, to be applied as provided in the 
 latter. Indeed, it would be taken bodily 
 out of the writing, and an arrangement 
 of a diffei-ent and inconsistent chai'acter 
 substituted. Besides, the agreement that 
 any mistake in the amcjunt of the lumber 
 should be corrected, while consistent 
 with an absolute sale, is Inconsistent with 
 {». transfer, for the purpose of securing a 
 ebt. We think that the writing in ques- 
 'on imports on its face a complete exprcs- j 
 .sion of what the parties agreed to, and / 
 hence that it is conclusively presumed to 
 contain all that they agreed to. We are 
 further of the opinion tliat the parol evi- 
 dence sought to be introduced was incon- 
 sistent with and contradictory of the 
 written agreement, and was hence inad- 
 missible on that ground also. It follows 
 that the rulings of the referee were coi'- 
 rect, and that the judgment should be 
 affirmed. All concur. 
 
ORAL EVIDENCE TO VARY OK EXPLAIN DOCUMENTS. [Case No. 116 
 
 STATE (CUJIMINGS, Prosecutor) v. CASE. 
 
 (18 Atl. 972, 52 N. J. Law, 77.) 
 Supreme Court of Now Jersey. Dec. 28, 1889. 
 
 Certiorari to court of common pleas, Es- 
 sex county. 
 
 Argued June term, 1888, before Souddeb 
 and Re!£D, J.J. 
 
 Franklin M. Olds, for plaintiff in certio- 
 rari. Robert H. MoCarter, for defendant. 
 
 REED, J. Catharine E. Case brought an 
 action against Samuel Cuminings, Jr.,'in the 
 second district court of Newark, for the re- 
 covery of the sum of $125, the price which 
 she had paid for a horse purchased by her of 
 Cummings. The gravamen of the demand 
 of the plaintiff was that such sale was brought 
 about by the fraudulent representation of the 
 defendant, which fraudulent conduct con- 
 ferred upon her the right of rescission, and 
 that, iii the exercise of such right, she ten- 
 dered back the animal, and demanded a return 
 of the consideration paid, and that the defend- 
 ant refused to comply with such demand. 
 The case was tried before a jury; and, under 
 the law, as charged by the court, the jury 
 found the facts to be such as to entitle the 
 plaintiff to a verdict for the full amount paid. 
 The judgment entered upon this verdict was 
 taken to the Sussex county common pleas, 
 and there affirmed. That judgment is brought 
 up by the present writ. 
 
 The representations, the falsity of which 
 constituted the ground of the verdict against 
 the defendant, ajipears, by the state of the 
 case agreed upon by the attorneys, to have 
 been made as follows: One Van Buskirk, as 
 theagent of the plaintiff, inquired of defend- 
 ant about a certain brown horse owned by 
 defendant. Van Buskirk asked if the brown 
 horse could travel seven or eight miles an 
 hour, and stated that a horse that could do 
 that was required. The defendant said that 
 the brown horse was too slow for that pur- 
 pose, but pointed Van Buskirk to a gray 
 horse, stating tliat he could easily go seven 
 or eight miles an hour, as it had formerly 
 been a very fast horse, arid attached to the 
 salvage corps wagon, but that, meeting with 
 an accident one day, while going to a fire, it 
 had injured one leg a little, making it unfit 
 for the work required of it by the salvage 
 corps. On another occasion, Mr. Cass, in 
 the presence of his wife, the plaintiff, stated 
 to defendant that they desired a horse that 
 could make the distance between Roseland 
 and Orange Valley, between seven and eight 
 miles, in one hour, or one and a half hours, 
 and stated that, if the horse could not do that, 
 they did not want to buy him; to which de- 
 fendant replied that the horse could easily do 
 that. Plaintiff sought to try the horse by 
 driving him one evening; but the defendant 
 refused to allow said trial, stating that the 
 horse had already, on that day, been to Har- 
 lem and Orange, which statement was true. 
 The next morning plaintiff purchased the 
 horse for $125, paid $50 in cash, and gave a 
 
 WILQTJS.EV. — 23 
 
 promissory note of four months, indorsed by 
 Mr. Van JBuskirk. There was evidence that 
 the horse was not able to travel seven or 
 fight miles in one hour, or in one hour and a 
 half, and was not fit for the purpose for 
 which he had been bought. It appeared on 
 the cross-examination ot the plaintiff that at 
 the time of the sale a written warranty of the 
 horse had been given, in the following form: 
 "Newark, April 6th, 1887. To one gray 
 horse, Charley, which I warrant to be sound 
 and kind, with the exception of straining of 
 muscle of left hind leg." The counsel for 
 defendant thereupon moved that all evidence 
 as to representations made by the defendant, 
 other tiian those contained in the written 
 warranty, be stricken out, on the ground that, 
 the agreement of the parties having been re- 
 duced to writing, such writing could not be 
 varied or enlarged by parol evidence. • The 
 court denied tlie motion, and allowed an ex- 
 ception. When the plaintiff rested his case, 
 the counsel for defendant moved for a non- 
 suit, upon the ground that, a written war- 
 ranty having been proved to hiive been given 
 on the sale of the horse, and there being no 
 evidence that the horse did not correspond 
 with this warranty, the plaintiff had not made 
 out any case for damages. This motion was 
 denied, and an exception was allowed. _At 
 the close of the summing up of counsel, the 
 counsel for the defendant requested the court 
 to charge the jury that, there being no war- 
 ranty, the jury cannot consider any testimony 
 as to any representation not contained therein. 
 This request was refused, and an exception 
 allowed. The court charged the jury that if 
 they believed that the representations alleged 
 to have been made in relation to the speed of 
 the horse were made, and that the plaintiff, 
 relying upon them, purchased the horse, and 
 that such representations were in fact not 
 true, and the horse was therefore unfit for 
 the purpose for which it was bought, that 
 plaintiff' could recover tlie purchase money, 
 she having offered to return the horse, on the 
 ground of fraud or deceit, which was inde- 
 pendent and irrespective of the so-called war- 
 ranty. To this portion of the charge an ex- 
 ception was allowed. The counsel for the 
 defendant also requested the court to charge 
 that, if the jury should find for the plaintiff,- 
 the measure of damages must be the differ- 
 ence in value between what the horse was act- 
 ually worth in the condition he was in at the 
 time of the sale and what he would have been 
 worth if the representations made by the de- 
 fendant had been true; which request the 
 court refused to charge, and allowed an ex- 
 ception. The court, to the contrary, charged 
 the jury that if they found for the plaintiff 
 they must find in the sum of .$125, that being 
 the price she had paid for the horse. An ex- 
 ception was allowed to this part of the charge. 
 Reasons covering the above exceptions were 
 assigned for the reversal of the judgment 
 below. 
 
 The primary question raised by the excep- 
 tiong, and argued with elaborate care, is one 
 
Case Xo. 116] 
 
 PROOF 
 
 of evidence. It involves the correctness of 
 the judicial ruling by which the testimony in 
 respect to certain representations made by 
 the vendor previous to, and at the time of, 
 the sale, were admitted in evidence. These 
 representations, as already appears, were 
 made in respect to the traveling qualities of 
 the animal sold. It also appears that there 
 was a written warranty in respect to the 
 quality of soundness and quietness. It is 
 insisted by the counsel for the defendant be- 
 low that the admission of tlie verbal repre- 
 sentations enlarged and varied the written 
 contract. He therefore invokes the inexora- 
 ble rule of evidence that, when parties have 
 put tlieir contract into writing, oral testi- 
 mony cannot be substituted for, or added to, 
 the written evidence of the agreement. 1 
 Greenl. Bv. § 88. This principle has, from 
 the earliest period of jurisprudence, been rec- 
 ognized as a wholesome and necessary rule 
 of public policy. Id. § 275; Wright v. Rem- 
 ington, 41 N. J. Law, 48, 43 N. J. Law, 451; 
 Naumberg v. Young, 44 N. J. Law, 331. 
 But this rule of evidence is not infringed 
 by the admission of parol testimony which is 
 not intended as a substitution for, or an ad- 
 dition to, a written contract, but which goes 
 to show that the instrument is void or void- 
 able, and that it never had any legal exist- 
 ence, or binding force, either by reason of 
 fraud, or for want of due execution and de- 
 livery, or for the illegality of the subject- 
 matter of the contract. 1 Greenl. Ev. § 284. 
 Nor is the admission of parol evidence for 
 the purpose of avoiding a written contract 
 on the ground of fraud confined to such tes- 
 timony as goes to show tliat a party was lured 
 to make a contract other than that intended, 
 as by the substitution of one contract for an- 
 other by trickery, or by misreading a contract 
 to an illiterate person. Parol testimony may 
 be admitted to show that the execution of a 
 written contract was brought about by a 
 fraudulent representation. The force given 
 to a seal, which formerly excluded testimony 
 in respect to the failure of consideration in a 
 specialty, is now abolished by legislation. 
 So that the rule above stated, respecting the 
 admissibility of fraudulent representation, is, 
 now applicable to all contracts. The ele- 
 ments essential to constitute such fraudulent 
 representation will be considered later; and 
 it is now necessary only to remark that such 
 evidence as will lay a foundation for an ac- 
 tion of deceit, or a ground for the rescission 
 of the contract, is always receivable, although 
 it consists of oral representations. This 
 point was strenuously denied in the argu- 
 menis submitted by the counsel for the de- 
 fendant. His contention was that fraud in 
 the execution of the instrument could be 
 shown, but that oral representations, going 
 to a failure of consideration only, could not. 
 The seeming strength of his contention lay 
 in the likeness between the written and the 
 oral facts in the present case, both concern- 
 ing the quality of the animal sold. The 
 written warranty applied to the soundness 
 338 
 
 and kindness of the horse, and the oral testi- 
 mony to the speed of the animal. The dan- 
 ger of permitting parol declarations to be 
 proved which were so nearly related to the 
 subject-matter of the written warranty was 
 strongly pressed as an evil which the rule of 
 evidence already stated seemed especially de- 
 signed to prevent. But the distinction be- 
 tween such representations as add to the con- 
 tract and such as avoid the contract, because 
 of their fraudulent character, is too firmly 
 established in our jurisprudence to be now 
 shaken. As an additional warranty, that is, 
 as an addition to the contract, the present 
 representations were clearly inadmissible. 
 Ho soon, however, as they displayed such feat- 
 ures as went to show that through them the 
 contract had been fraudulently induced, and 
 so was unenforceable, for that reason, at tlie 
 election of the defrauded party, the rule ex- 
 cluding parol testimony to enlarge a written 
 contract became inoperative. It is, of course, 
 obvious that the fact that there was a written 
 warranty in respect to the soundness and 
 kindness of the animal would be a forcible 
 argument that no other representations as to 
 quality were made. The existence of the 
 written warranty would be useful in deter- 
 mining the probability of the truth of the 
 counter-statements of the parties as to the 
 existence or non-existence of the parol decla- 
 ration; but when the fraudulent affirmation 
 is once proven to exist the written contract 
 becomes unimportant. This seems to be an 
 elementary principle of the law of evidence. 
 The riglit to prove fraud, in whatever shape 
 it may exist, to avoid written contracts, has 
 been so uniformly recognized that it can 
 hardly be said to have been the subject of se- 
 rious judicial discussion. The power to con- 
 sider parol evidence, in regard to its effects 
 upon contracts in respect to the question of 
 fraud, has been passed over .itib silentio, and 
 the courts have gone on to consider the pro- 
 bative force of the testimony. No case was 
 discovered by the industry of counsel which 
 excluded such testimony, and all the cases in 
 which judges have touched upon tlie subject 
 have assumed the admissibility of testimony 
 setting up fraudulent representations to 
 avoid a written contract. Doliell v. Stevens, 
 3 Barn. & C. 623; Hotson v. Browne, 9 C. B. 
 (N. 8.) 442; Steward v. Coesvelt, 1 Car. 
 & P. 23; Koop v. Handy, 41 Barb. 454; Pren- 
 tiss V. Russ, 16 Me. 30; Van Buskirk v. Day, 
 32 III. 260; Eatou v. Eaton, 35 N. J. Law, 
 290. 1 conclude, therefore, that if the evi- 
 ydence^established fraudulent conduct on the 
 / part of the defendant the testimony was prop- 
 erly admitted. 
 
 This conclusion leads to the consideration 
 of the testimony received and submitted to the 
 jury. This consideration involves two ques- 
 tions: First. Was the testimony jiroperly 
 submitted to the jury at alii' Second. If so, 
 was it submitted und r proper instructions? 
 As already remarked, the admissibility of the 
 testimony, and therefore its submission to the 
 jury, depends for its sanction upon the ques- 
 
ORAL EVIDKNCE TO VARY OR EXPLAIN DOCUMENTS. [Case No 116 
 
 tion whether it was sufficient, in any aspfcfc 
 in which the jury might view it, to establish 
 fraud. The general cliaracter of a frandiilent 
 representiition wliich will lay a fo indation for 
 an action for deceit, or a ground for adefense 
 against a counter-action upon a contiact, or a 
 basis for the rescission of a contract, are well 
 settled, so far as general rules can settle any 
 legal question. The repi'esentation must be 
 concerning a material fact, must induce to 
 the execution of the contract, and must be 
 made falsely. The falsity constitutes the 
 scienter, which is an essential element in every 
 fraudulent representation. This falsity may 
 consist in making a representation of a ma- 
 terial fact, knowing it to be false; or it may 
 consist in making a representation wliich is 
 untrue, without knowledge whether it is true 
 or false, and by couplint; with the representa- 
 tion an expressed or implied affirmation tliat 
 it is known to be true, of personal knowledge. 
 The instances in which representations can 
 be said to be fraudulent, as they are cogniza- 
 ble in a court of law, are confined within the 
 limits of the above statement. The case of 
 Bennett v. Judson, 21 N. Y. 238, whicli at- 
 tempted to extend the limits of this rule be- 
 yond that stated, and import into it the equita- 
 ble doctrine laid down by Judge Story, has 
 been repudiated by subsequent cases in the 
 courts of that state, (Oberlander v. Spiess, 45 
 N. Y. 175; Stitt v. Little, 63 N. Y. 427; 
 Wakeman v. Dalle}', 51 N. Y. 27;) and this is 
 the rule of the common-law courts of Eng- 
 land and Massachusetts, and our own state, 
 as shown by Mr. Justice Depue in the case 
 of Cowley v. Smyth, 46 N. J. Law, 380. The 
 scienter, therefore, must be proved in one or 
 the other of these sliapes. In the present 
 case, it was not proven in the first shape; 
 for proof of a knowledge of the falsity of the 
 -statement on the part of a vendor of tlie horse 
 was not attempted, nor was the question sub- 
 mitted to the jury. Tlje question arises, 
 therefore, whether a scienter appears in the 
 second possiule shape. It does not appear 
 that the defendant expressly stated that the 
 facts affirmed were true, of his own knowl- 
 edge. In examining the cases, however, we 
 discover that an express athrmance of per- 
 sonal knowledge is not always requisite, as 
 such affirmance may be implied. Nor, on the 
 other hand, does it appear that an express af- 
 firmance of personal knowledge is to be taken 
 as fixing conclusively the defendant's liabili- 
 ty; for it may be so qualified by tlie facts 
 stated as to convey a modified impression. 
 Indeed, the test seems to consist not so much 
 in the absence or presence of an expressed as- 
 sertion of personal knowled^'e as in the char- 
 acter of the facts alleged to be true. Tlie rule 
 of discrimination stated by Mr. Justice De- 
 pue in Cowley V.Smyth, 46 N. J.Lmw, 880. is 
 this: "If the party adds to a representation 
 an affirmation that he made the representa- 
 tion as of his own knowledge, the force and 
 effect of the evidence will depend in a great 
 measure upon the nature of the subject con- 
 cerning which the representation was made. 
 
 If it be with respect to a specific fact, or facts 
 susceptible of exact knowledije, and the sub- 
 ject-matter be such as that the affirmation of 
 knowledge is to be taken in its strict sense, 
 and not merely as a strong expression of be- 
 lief, the falsehood in such a representation 
 lies in the defendant's affirmation that he had 
 the requisite knowledge to vouch for the tiutli 
 of his assertions, and that, being untrue, the 
 falsehood would be willful, and thereCoie 
 fraudulent. But, where the representation 
 is concerning a condition of aliairs not sus- 
 ceptible of exact knowledge, * * * the 
 assertion of knowledge is to be taken sec- 
 undum subjectam materinm, as meaning 
 no other than a strong belief founded upon 
 wliat appeared to the defendant to be reason- 
 able and certain grounds." Therefore, with- 
 out regard to whether the affirmance of per- 
 sonal knowledge was express or otherwise, 
 the existence of such affirmation depends 
 upon the form of the affirmation of fact, and 
 of the characterof subject-matter, concerning 
 which the affirmation was made. From these 
 circumstances, it must be considered, in the 
 language used in Marsh v. Eaiker, 40 jST. Y. 
 562, whether the party assumed, or intended 
 to convey the impression, that he had actual 
 knowledge, though conscious that he had not. 
 In the following cases there was no express 
 affirmance of personal knowledge: Ila/aid 
 V. Irwin, 18 Pick. 95; Milliken v. Thorndike, 
 103 Mass. 382; Litchfield v. Hutchinson, 117 
 Mass. 195; Wakeman v. Dalley, 51 N. Y.27. 
 The question whether there is an affirma- 
 tion of personal knowledge is sometimes one 
 of law, but oftener one of fact. In the line 
 of cases of which Cowley v. Smyth is a 
 sample, it is treated as a question of law, 
 arising from the characterof the facts which 
 were the subject-matter of the representa- 
 tions. It was lefjally concluded that the rep- 
 resentations could only be those of belief. 
 On the other hand, there mijjht be express 
 affirmance of personal knowledge with re- 
 spect to facts so obviously the subject of ac- 
 curate knowledge tliat it could be Jeg:illy 
 concluded that it was not an expression of 
 belief or opinion, and that, therefore, the 
 falsity of the facts stated would imply a 
 scienter. In a wide range of cases the ques- 
 tion of the existence of an affirmation of per- 
 sonal knowledge was submitted as one of 
 fact, and it was either in support or reversal 
 of the finding of juiies or reports of referees 
 that the legal rules applicable to such repre- 
 sentations were laid down. This will be ob- 
 served by reference to the following cases: 
 Tucker v. White, 125 Mass. 344; Milliken 
 V. Thorndike, 103 Mass. 882; Page v. Bent, 
 2 Mete. 371; and cases already cited upon the 
 preceding points. In the present case, it; ap- 
 pears, to my mind, clear that it could not be 
 legally inferred that there wai an assertion 
 of personal knowledge of the truth of the 
 facts stated. The whole conversation be- 
 tween vendor and purchaser suggests the oj)- 
 posite. It implied that the vendor's knowl- 
 edge of the traveling ability of the horse 
 
 339 
 
Case No. 116] 
 
 PROOF. 
 
 rested upon what he knew of the previous 
 history of the animal, and perljaps, in some 
 degree, from the use of a horse by other per- 
 sons. The animal seems to have been used 
 for, livery purposes. The horse had been ad- 
 mittedly driven to Orange and Harlem the 
 day before the sale was consummated. The 
 vendor did not say that he had driven 
 the horse the alleged distance in the time 
 stated. He does not say he liad driven him 
 at all. His statement that the horse could 
 easily do that, for he liad been a very fast 
 horse, and had been used to the salvage 
 corps wagon, implied that his knowledge 
 was grounded upon such information, ratlier 
 than upon personal knowledge. Therefore 
 it seems to me that It was clearly a mistake 
 for the court to say that the representation 
 was so obviously of a fact susceptible of 
 exact information, made as of the personal 
 knowledge of the vendor, that this question 
 was not one to be left to the jury. It also 
 seems to me that the representations, as they 
 appear in the case, and as they were treated 
 at the trial, amounted to something more 
 than an affirmation that the horse was able 
 to travel the distance named within the time 
 mentioned on a single occasion, but they im- 
 plied that the animal could habitually do so. 
 The idea conveyed was that the horse was to 
 be fit for the service required, namely, to 
 convey the purchaser from Rockland to 
 Orange Valley, in the course of his business. 
 This seems to involve the question of the 
 horse's ability to perform that service con- 
 tinually. Now, it seems apparent that when 
 the representation not only covers the pres- 
 ent ability to perform a service once, but also 
 its ability to do so frequently and continu- 
 ously, it extends beyond the realm of exact 
 information, if it does not cease to be a rep- 
 resentation of a subsisting fact at all, and 
 become a mere promise for future perform- 
 ance. But, without regarding this feature 
 of the case, lam convinced that, in assum- 
 340 
 
 ing that the present case was one in which 
 tlie falsity of the representation raised the 
 legal inference of fraud, the court was in er- 
 ror. The case of Searing v. Lum, 5 N. J. 
 Law, 785, was an action for deceit, brought 
 in a justice's court, upon the ground of false 
 representations in the sale of a horse. The 
 graoamen of the action was that the vendor 
 had represented the horse to be so ml and 
 kind. The justice charged that it was un- 
 necessary to prove that the defendant had 
 any knowledge of the unkindness of the horse. 
 The court above held this to be error. The 
 case of Allen v. Wanamaker, 31 N. J. Law, 
 370, was an action for false representations, 
 in that the defendant represented certain 
 peach trees to be good. The court charged 
 that the defendant was liable for such rep- 
 resentations, if false, whether he knew them 
 to be true or not. This was held error. L 
 however, incline to tlie opinion that in this 
 case the question whether there was an af- 
 firmation of personal knowledge of the truth 
 of the representation was not one for the jury; 
 but 1 think that this is so because the rep- 
 resentations were of a kind concerning which 
 the judge could say ;t was legally inferable 
 that they were the statement of a strong be- 
 jlief onlyin the truth of the facts asserted.. 
 I The feature of the case already mentioned, 
 which led me to the conclusion that the as- 
 sumption of the trial judge was a mistake, 
 leads me to the opposite conclusion, that the 
 legal inference to be drawn is that it would 
 not have been understood by the vendor and 
 the vendee, at the tiaie of tlie sale, tliat there 
 was coupled with the representations concern- 
 ing the horse a representation that the vendor 
 liad personal knowledge concerning them, but 
 that it was understood that he expressed his 
 strong belief in their truth, resting upon his 
 knowledge of the previous history of the ani- 
 mal, and his liseas alivers- hnrse. For these 
 reasons, I think the judgment below should 
 be reversed. 
 
OKAL EVIDENCE TO VAUY OR EXPLAIN DOCUMENTS. [Case No. 117 
 
 DUKKIN T. COBLEIGH. 
 
 (30 N. E. 474, 156 Mass. 108.) 
 
 Supremo Judiciiil Court of Massachusetts. Suf- 
 folk. Feb. 27, 1892. 
 
 Exceptions from superior court, Suffolk 
 county; .lames M. Barker, .Tudge. 
 
 Action by Patrick Durkin as'ainst Benj. F. 
 Gobleisli for breach of agreement. A verdict 
 was rendered for defendant by direction of 
 the court, and plaintiff excepts. Exceptions 
 sustained. 
 
 F. W. Kittredge and W. H. Drury, for 
 plaintiff. F. Hutchinson, for defendant. 
 
 ALLEN, .T. This is an action of contract. 
 The plaintiff' had taken from the defendant a 
 deed of land described as bounded on a 
 street, and referring to a plan on which the 
 street was shown. This street was upon 
 land owned by tlie defendant. The deed 
 contained no covenant that the defendant 
 would build the street, or cause water to be 
 introduced therein. The plaintiff's case rests 
 upon the proposition that, in order to induce 
 liim to buy the lot, the defendant orally 
 promised to grade and build the street so 
 as to connect with a certain ijublic street 
 already built and open, and also to cause the 
 city Avater to be put into the street by a 
 certain specified time. The question is 
 whether such an oral agreement may be 
 shown. The plaintiff' gained a right of way 
 by estoppel over the land owned by the de- 
 fendant, and described as a street. Howe v. 
 Alger, 4 Allen. 20U; Insurance Co. v. Cousens, 
 127 Mass. 2.'58; Ci'owell v. Beverly, 134 JIass. 
 98. And this light would extend for the 
 entire length of the street, as indicated, pro- 
 vided the defendant owned the same. Tobey 
 V. Taunton, 119 Mass. 404; Fox v. Sugar 
 Refinery, 109 Mass. 292. But the defendant 
 would not be bound by liis deed to build and 
 maintain the street fit to travel. Hennessey 
 V. Railroad Co., 101 Mass. .'540. The obliga- 
 tion of the defendant to do tlie acts now in 
 (juestion depends wlioUy on his alleged oral 
 agreement. A rule has been established 
 which may be stated in general terms to be 
 that an agreement by parol, which is col- 
 lateral to the written contract and on a dis- 
 tinct subject, may be proved. It is rather 
 iliflicult to lay down a precise formula to 
 define in advance for all cases what will 
 come within this I'ule. In Steph. Dig. Ev. 
 (Am. Ed.) lOo, this is attempted as follows: 
 "The W%tence of any separate oral agree- 
 ment as to any matter on which a document 
 is silent, and which) is not inconsistent with 
 its terms, if from the circumstances of the 
 case the coui-t infers that the parties did not 
 intend the document to be a complete and 
 final statement of the whole transaction be- 
 tween them," may be proved. Where the 
 oral agreement is on the face of it incon- 
 
 sistent with what was written, it is plain 
 that the writing must prevail. Flynn v.- 
 Bourneuf, 143 Mass. 277, 9 N. E. 650, and 
 Knowlton v. Keenan, 146 Mass. 86, 15 N. E. 
 127, were cases of this kind. But the more 
 difficult question arises where the oral agree- 
 ment relied on relates to something not 
 specified in terms in the writing. It must 
 then be determined whether the written doc- 
 ument is to be deemed to contain all that 
 was agreed between the parties. There are 
 many cases in which this question has been 
 presented, and the decisions are not entirely 
 harmonious. Thxis in Naumberg v. Young, 
 44 N. J. Law, 331, the court disapproved of 
 the decisions in Morgan v. Griffith, L. R. 6 
 Exch. 70, and Erskine v. Adeane, 8 Ch. App. 
 756, in which cases it was held that an oral 
 agreement by a. lessor to destroy the rabbits 
 might be proved. In an early Massachusetts 
 case it was held that a lessor is not bound 
 by an oral agreement to provide other and 
 better accommodations than those stipulated 
 for in the lease. Brigham v. Rogers, 17 
 Mass. 571. And on a written contract of 
 sale of goods an additional warranty cannot 
 be proved by parol. Whitmore v. Iron Co., 
 2 Allen, 52, 58; Eighmie v. Taylor, 98 N. 
 Y. 288. So where one, by a written instru- 
 ment, agreed to sell out his business stand 
 and stock of goods, it cannot be shown by 
 parol that he also agreed not to engage in a 
 similar business in the same town. Doyle v. 
 Dixon, 12 Allen, 576; AVilson v. Sherburne, 
 Gush. 68. On the other hand, in several 
 cases more nearly resembling the present 
 in their facts, it has been held that an addi- 
 tional oral agreement might be proved. Thus 
 oral agreements by vendors of land requir- 
 ing to be filled, that they would pay for the 
 filling, have been held to be independent col- 
 lateral agreements which might be enforced. 
 Page V. Monks, 5 Gray, 492; McOormich v. 
 Cheevers, 124 Mass. 262. Also an oral agree- 
 ment by a grantor to pay for building a 
 sewer in the street. Carr v. Dooley, 119 
 Mass. 294. The case of Graffam v. Pierce, 
 143 JIass. 386, 9 N. E. 819, was deemed to 
 come within the same doctrine. It was de- 
 termined in Ayer v. JIanufacturing Co., 147 
 Mass. 46, 16 N. E. 754, that a manufacturer 
 of goods who accepted a written order, with 
 stipulations as to quality, price, and rebate 
 or claims for allowance, might be held on 
 an oral agreement to advertise the goods. 
 See, also, Willis v. Hulbert, 117 Mass. 151; 
 Rennell v. ICimball, 5 Allen, 356; Tayl. Ev. 
 §§ 1135, 1147. It seems to us that the case 
 falls within the last class of decisions, and 
 that the alleged agreement of the defendant 
 should be treated as an independent collat- 
 eral agreement, which need not be included 
 in the deed. The result is that the plaintiff 
 was entitled to have his case submitted to 
 the jury. Exceptions sustained. 
 
 -341 
 
Case No 118] 
 
 PROOF. 
 
 GILBERT et al. t.«McGIXNIS et al. 
 
 (28 N. E. 382, 114 111. 28.) 
 Supreme Court of Illinois. May 15, 1885. 
 
 Appeal from appellate court, Second 
 disti-ict; Gkorge W. Stipp, Judse. 
 
 Action bj- Herbert S. Gilbert & Co. 
 against Patrick McGinnis and others to 
 recover on a contract for the non-delivery 
 of corn. There was a judgment for de- 
 fendants in the circuit court, which was 
 atliniied in the appellate court, and plain- 
 tiffs appeal. The judgment is again af- 
 firmed. 
 
 Bull, Strawii & Ruger, ior appellants. 
 Duoaan & O'Connor, lor appellees. 
 
 MULKEY, J. On the 16th of February, 
 lSb.1, Patrick McGinnis, the appellee, sold 
 to the appellants, Herbert S. Gilbert & 
 Co., 7,000 bushels of corn, at 39 cents per 
 bushel, to be delivered in the months of 
 August and September following. As a 
 part of the same agreement, the appel- 
 lants promised to make advances on the 
 contract to appellee of what money he 
 might, from time to time, require. A 
 short time after the making of this agree- 
 ment, appellee called on the appellants, at 
 their business house in Ottawa, and re- 
 quested an advance on the contract, as 
 per agreement. The clerk in charge of 
 their business told him he could have the 
 money, and commenced -writing a note 
 for the amount, whereupon appellee stat- 
 ed to the clerk he would not sign a note, 
 remarking, in effect, that if he wanted to 
 obtain money in that way he could get 
 it from the hank. Appellants refused to 
 make the required advance unless appellee 
 would give hie note for the amount. 
 This he declined to do, and informed the 
 clerk at the time he would not let appel- 
 lants have the corn. The corn not having 
 been delivered within the time specified in 
 the agreement, the appellants, on the 3d 
 day of October, 1881, commenced an action 
 of assumpsit against appellee, in the circuit 
 court of La Salle county, to recover dam- 
 ages for the non-delivery of the corn, 
 which resulted in a judgment in favor of 
 the defendant for costs. This judgment 
 having been affirmed by the appellate 
 court for the second district, the plaintiffs 
 appealed to this court. 
 
 On the trial the plaintiffs offered to 
 show there was a general custom aiuong 
 grain merchants to take notes from the 
 seller for the amount of advances made 
 under contracts for the sale of grain, like 
 the one in question. They also proposed 
 to prove that on previous occasions there 
 had been contracts and dealings similar 
 in character to .the one sued upon, and 
 that the manner of dealing between the 
 parties was, when an advance was made, 
 memoranda or notes should be taken for 
 the money advanced. The court declined 
 to admit evidence to the jury in support 
 of either of these positions, and the rul- 
 ing of the court in this respect presents 
 the only question for determination. The 
 same question is raised by certain refused 
 instructions asked on behalf of the ap- 
 pellants. The rule is well recognized that 
 where a commercial contract is in any 
 
 342 
 
 respect ambiguous, a particular custom 
 or usage of trade known to the parties, 
 or which, under the circumstances, they 
 are presumed to know, or any previous 
 course of dealing between them that will 
 have a tendency to disclose the real inten- 
 tions of the parties, and to aid the court 
 in arriving at its true construction, will 
 be admissible in evidence. Such evidence 
 is not only admissible for the purpose of 
 explaining the terms of a contract, but 
 also for the purpose of ingrafting, as it 
 were, new terms into it, subject, however, 
 to the qualification that such new terms 
 are not expressly or impliedly excluded 
 by the express agreement. 1 Smith, Lead. 
 Cas. *307 et seq. To have this effect, how- 
 ever, the usage must be reasonable, and 
 not in conflict with any general rule of law. 
 Macy V. Insurance Co., 9 Mete. (Mass.) 
 3.54. The proof offered in this case was 
 clearly not for the purpose of explaining 
 any ambiguity in the contract, or for the 
 purpose of showing that some particular 
 word or phrase in it is used out of its or- 
 dinary signification. No claim of this 
 kind is made. It is conceded by both par- 
 ties that appellants were to make ad- 
 vances,— that is, let appellee have money, 
 from time to time, as he might need it, 
 under the contract. So far there is no 
 controversy. But appellants contend , 
 that a custom or usage prevailed, not ad- I 
 verted to in the express agreement, which ' 
 required the appellee to give to them his 
 note upon receiving any such advances. 
 The usage here sought to be shown, it is 
 clear, was for the purpose of adding a 
 stipulation on the part of appellee, which, 
 it is conceded, is not found in the express 
 agreement. This, as we have already 
 seen, may sometimes be done; but wheth- 
 er it could be done in this particular case 
 depends upon whether the stipulation 
 thus to be added is inconsistent or in con-\ 
 flict with that part of the agreement 
 which is expressed, and about which there 
 is no controversy. We are clearly of opin- 
 ion that it is, and that the trial court, 
 therefore, ruled properly in excluding the 
 evidence and in refusing the instructions 
 complained of. An advance orpayment of 
 money on a contract of sale, without 
 doubt, is altogether a different thing froiu 
 that of obtaining money from the pur- 
 chaser on the seller's own note. The legal 
 effect of the transaction in the first case is 
 to extinguish, pro tanto, the seller's claim 
 and the purchaser's corresponding liabili- 
 ty. In the second, no part of either is ex- 
 tinguished. Instead of collecting some- 
 thing on his corn, as provided by the 
 agreement, the seller is offered a loan of 
 monej' on his individual note, which 
 would be a complete change of the legal 
 relations of the parties. Whereas the sell- 
 er was before a mere creditor of the pur- 
 chaser, he at once, upon giving such a 
 note, becomes the debtor of the purchas- 
 er, and no part of the debt due him on ac- 
 count of the sale is thereby discharged. 
 Thus it is seen the legal effect in the ondi 
 case is practically the very opposite on 
 what it is in the other, and might in many 
 cases result in the grossest injustice. For 
 instance, had appellee given his note tor 
 the required advance, the appellants 
 
ORAL EVIDENCE TO VARY OK EXPLAIN DOCUMENTS, [f'ase No. 118 
 
 miglit, the next hour thereafter, have 
 transferred it to another for value, and 
 appellee wonld have been compelled to 
 pay It, whether he ever got a cent for his 
 corn or not. This is apparent. That one 
 will not be permitted to prove a custom 
 or usage the ettect of which will be to add 
 to an express agreement a condition or 
 limitation which is repugnant to or incon- 
 sistent witli the agreement itself, will 
 hardly be questioned. This is not only 
 the universally received doctrine on the 
 subject, but it has been often fully recog- 
 nized by this court. Cadwell v. Meek, 17 
 111. 220; Bissell v. Kyan, 23 111. 5G6; Desh- 
 ler V. Beers, 32 111. .368; Wilson v. Bau- 
 man, 80 111. 493. In the editor's nwte to 
 
 Wigglcsworth v. Dallison, 1 Smith, Lead. 
 Cas. 309, it is saicf: "Evidence of usage, 
 though sometimcM admissible to add to 
 or explain, is never to vary or to contra- 
 dict, eitiier expressly or by implication, 
 the terms of a written instrument;" cit- 
 ing, in support of the proposition, Magee 
 v. Atkinson, 2 Mees. & W. 442; Adams v. 
 Wordley, 1 Mees. & W. 374; Trueman v. 
 Loder, 11 Adol. & E. 5S9; and Yates v. 
 Pym, 6 Taunt. 446. The rule here stated 
 is equally applicable to a verbal contract, 
 where the terms of it are definitely fixed, 
 as they are in the present case. It follows 
 from what we have said, and the au- 
 thorities cited, the judgmeat of the appel- 
 late court must be affirmed. 
 
 343 
 
Case No. 119] 
 
 PROOF. 
 
 COONROD T. MADDEN. 
 (2.5 N. E. 1102, 126 Ind. 197.) 
 Supreme Court of Indiana. Nov. 25. 1890. 
 
 Aijpeal from circuitcourt, Knox county ; 
 Geoiige a. BiCKNEi^i., Special Judge. 
 
 George C. ReiJy, for appellant. Cobb & 
 Cobb, lor appellee. 
 
 COFFEY, J . This was a suit by the ap- 
 pellee against the appellant upon a prom- 
 issor.Y note. Answer, payment. Reply, 
 general denial. Trial by tlie court. Find- 
 ing and judgment for the ap])elloe, over a 
 motion for a new trial, for the full amount 
 of the note, with reasonable attorney's 
 fees. The assignment of error calls in 
 question the propriety of the ruling of the 
 circuit court in overruling the motion for 
 a new trial. No brief is filed in the cause 
 on behalf of the appellee, and by reason of 
 that fact we are not informed as to the 
 ground upon which the court made its 
 several rulings in his favor. On the trial 
 of the cause the appellant introduced and 
 ^read in evidence a certain check executed 
 by hira to the appellee, and also testified 
 that such check was given and received in 
 part payment of the note in suit. The ap- 
 pellee, over the objection of the appellant, 
 was permitted by the court to testify that 
 the check was received by hira in part pay- 
 ment of another and different note from 
 the one in suit, giving the date and 
 amount of said note, and its rate of inter- 
 est. He also testified that the appellant 
 had paid the note to him in full, and that 
 it had been surrendered to the appellant. 
 The objection to this evidence, stated by 
 the appellant tothecourt at the time of its 
 introduction, was that it was secondiiry, 
 and that the appellee could not give evi- 
 dence of the contents of such note without 
 first proving its loss, or serving notice up- 
 on the appellant to produce it in court, to 
 be used in evidence in the cause. It is un- 
 doubtedly the general rule that, before 
 parol evidence can be received of the con- 
 tents of a written instrument, it must be 
 shown that such instrument is lost or de- 
 stroyed, or that such instrument is in the 
 bauds of the party against ^Yhom the evi- 
 dence is offered; and that, upon proper 
 notice so to do, he has failed to produce 
 the original in court, to be read in evi- 
 dence. Smith V. Reed, 7 Ind. 242; Mum- 
 ford v. Thomas, 10 Ind. 167; Manson v. 
 Blair, 15 Ind. 242; Bridge Co. v. Apple- 
 gate, 13 Ind. 3311; Frazee v. State, 58 
 Ind. 8; McMakin v. Weston, 64 Ind. 270. 
 But there is a well-defined and well-estab- 
 lished exception to this general rule. The 
 I general rule has no application where the 
 / written instrument is merely collateral to 
 1 the issue; as where the parol evidence re- 
 344 
 
 lates to matters distinct from the instru- 
 ment of writing, although the same fact 
 could be proved or disproved by the writ- 
 ing. Wood, Pr. Ev. p. 4. In the case of 
 Daniel v. Johnson, 29 Ga. 207, it was held 
 that payment might be i)roved by parol 
 to have been made in promissory notes, 
 without the production of the notes. The 
 rule is that, where the parol evidence is 
 as near the thing to which the witness tes- 
 tifies as the written evidence, then each is 
 primary. Whart. Ev. § 77. The case of 
 Hewitt V. State, 121 Ind. 245, 23 N. E. Rep. 
 83, is analogous in principle to the case un- 
 der consideration. In that case Hewitt 
 was charged with maliciously killing a 
 dog. The state was permitted to prove 
 by parol that the dog in question had 
 been listed for taxation, over the objection 
 of Hewitt that the tax-list returned by the 
 assessor was the best e\*idence of that 
 fact. In answer to this objection, this 
 court said: "The substantive fact to be 
 proved was that the dog killed had V)een 
 listed for taxation, and the rule is that, 
 where parol evidence is as near the fact 
 testified to as the written, then each is 
 primary. The rule which requires the pro- 
 duction of written instruments in evidence 
 has no application when the instrument is 
 merely collateral to the issue, and where 
 the fact to be proved relates to a subject 
 distinct from the writing. " In this case, 
 had the note upon which the appellee 
 claimed the check read in evidence had 
 been applied been produced in court, the 
 parties would have been as far from the 
 real controversy between them as they 
 were before its production; namely, the 
 question as to whether the clieck was ap- 
 plied on that note or the notein suit. For 
 this reason, we think the case falls within 
 the exception to the general rule above 
 stated. The plea of payment filed by the 
 appellant was no notice to the api)e]lee 
 that he would insist that the check read 
 in evidence was a payment on the n')te in 
 suit ; and so there was no occasion to 
 serve notice to produce, to be read in evi- 
 dence, the note on which it was actually 
 applied. To hold that notice must bo 
 served in order to autliorize evidence of 
 the existence of a written instrument com- 
 ing collaterally in question like the case 
 before us would result in much inconven- 
 ience, and would often result in defeating 
 the ends of justice. It will be observed 
 that the C(>ntents of the note which had 
 been paid was immaterial to the contro- 
 versy, save as it furnished evidence of the 
 existence of a debt -to the payment of 
 which the cheek read in evidence might 
 have been applied. In our opinion, the 
 court did noterr in admittingthc evidence 
 of which complaint is made. Judgment 
 affirmed. 
 
OEAl. EVIDENCE TO VARY OR EXPLAIN DOCUMENTS. [Case No. 120 
 
 WHITCOMB et al. v. ItODilAN et al. 
 
 (40 N. E. 553, 156 111. 110.) 
 Supreme Court of lUiuois. April 2, ISO-j. 
 
 Apioeal from circuit court, Jlcbean county; 
 Oweu T. Reeves, Judge. 
 
 Bill by Edward L. Eodman and others 
 agaiust Lucinda Wliitcomb and others. Com- 
 plainants obtained a decree. Defendants ap- 
 peal. Affirmed. 
 
 This is a bill brought by Edward L. Rod- 
 man, Joseph L. Rodman, and Slary J. Rod- 
 man against the heirs and other devisees of 
 John Rodman, deceased, to construe the will 
 of dert'used, and to grant title to certain lands 
 iillpged to have been devised by the will. 
 John Rodman died testate July 30, 1889. At 
 the time of his death he owned in fee the N. 
 - W. % of the N. E. 14 of section 2T, 60 acres 
 off of the west side of the S. E. % of section 
 22, the S. W. % of the N. B. Vi of section 22, 
 and the S. E. % of the X. E. 14 of section 22, 
 all in township 23 N., range 3 E., in McLean 
 ■covmty. He left surviving him Mai-y Jane 
 Rodman, his widow, and his only heirs at 
 law, his children, Ann Eliza Boyce, Joseph 
 L. Rodman, Edward L. Rodman, Lucinda 
 A^'hitcomb, and his grandchild, Mary Eveline 
 King, the sole heir and child of his deceased 
 daughter, Mary A. Craig. The will was ex- 
 «cuted October 17, 1888, and admitted to pro- 
 bate July 19, 1889, and was as follows: 
 "First. I will to my daughter Ann Eliza 
 Boyce forty (40) acres of land, being the 
 northwest quarter of the northeast quarter 
 ■of section twenty-seven (27). Second. To my 
 son Joseph L. Rodman I will and bequeath 
 ■one hundred acres of land (100), — sixty acres 
 (60) off of the west side of the southeast 
 quarter of section twenty-two (22), forty 
 siei-es (40) being the northwest quai'ter of the 
 southeast quarter of section twenty-two (22). 
 Third. To my son Edward L. Rodman I will 
 iind bequeath forty acres of land, being the 
 northeast quarter of the southeast quarter of 
 section twenty-two (22). Fourth. I give to 
 my daughter Lucinda Whiteomb two thou- 
 sand dollars ($2,000). Fifth. To my grand- 
 daughter, Mary Eveline King, I give two hun- 
 dred dollars ($200). The above legacies to be 
 paid out of moneys and credits on hand, and 
 jiroceeds of the sale of personal property. All 
 of the above land being in town twenty-three 
 <23) north, range three (3) east of the third 
 principal meridian." The will contained a 
 sixth clause, in which certain personal prop- 
 •erty was devised to the widow, and she was 
 also given the control of the above-described 
 lands during her life. It will be observed 
 that the two 40-acre tracts (S. W. % N. E. % 
 section 22 and S. E. J4 N. E. % section 22) 
 owned by the testator are not mentioned in 
 the will, and that the testator never owned 
 the N. E. % of S. E. 14 section 22, which is 
 devised to Edward L. Rodman, and that the 
 40 acres devised to Joseph L. Rodman laps 
 ■onto the 60 acr^ devised to him, and includes 
 
 within it the north 30 acres of the 60 acres, 
 and that he did not own the east 10 acres of 
 the X. W. % of the S. E. Vi. which is devised 
 to Joseph. The situation will be better under- 
 stood by the following plats of the land; Xo. 
 1 being the land owned by the testator, and 
 No. 2 that specifically named in the will: 
 
 JVo.l 
 
 
 
 V-o 
 
 Uo 
 
 
 A're^A<:res\ 
 
 1 
 
 1 
 
 1 
 
 
 % 
 
 
 
 u 
 
 
 
 V 
 
 
 
 
 
 
 0: 
 
 
 
 
 
 
 
 <o 
 
 ^ 
 
 
 t.0 
 
 1 
 
 1 
 
 Jicrei^ 
 
 t 
 
 
 
 > 
 
 '0.%^ 
 
 
 t 
 
 
 "I 
 
 
 
 
 «■ 
 
 ^ 
 
 
 •> 
 
 
 
 7 
 
 
 i 
 
 The testator, when he executed the will, and 
 at the time of his death, was in possession of 
 the lands owned by him. He owned no oth- 
 er lands. The bill prayed for a construction 
 of the will, and that the lands be held to have 
 vested under the will, the S. E. % of N. E. y^ 
 of section 22 in Edward L. Rodman, and the 
 S. W. 1/4 of N. E. % in Joseph Rodman, and 
 that the widow be held to have a life estate 
 in all the lands. The answer practically ad- 
 mitted the facts set up in the bill, but denied 
 that it was the intention of the testator to de- 
 vise the two 40-acie tracts in the X', E. % of 
 section 22, or that the will was capable of 
 consti-uction, and claimed that said lands de- 
 scended as intestate estate. The court, on the 
 hearing, decreed substantially as prayed for 
 in the bill. 
 
 Kerrick, Lucas & Spencer, for appellants. 
 Benjamin & Morrissey, for appellees. 
 
 CRAIG, J. (after stating the facts). In the 
 construction of a will the important question, 
 always, is to ascertain the intention of the tes- 
 tator. As was well said by Chief Justice Mar- 
 shall in Finlay v. King's Lessee, 3 Pet. 346: 
 "The intent of the testator is the cardinal rule 
 in the construction of wills, and if that intent 
 can be clearly perceived, and is not contrary 
 to some positive rule of law, it must prevail, 
 although, in giving effect to it, some words 
 should be rejected, or so restrained in their 
 application as materially to change the literal 
 meaning of the particular sentence." See, 
 also. Decker v. Decker, 121 111. 354, 12 N. 
 E. 750. It will be presumed that a person, 
 when he makes and publishes a will, intends 
 to dispose of his whole estate, unless the 
 presumption is rebutted by its provisions, or 
 
 345 
 
Case No. 120] 
 
 PEOOF. 
 
 evidence to the contrary. Higgins v. Dwen, 
 100 111. 556; Society t. Mead, 131 111. 358, 
 23 N. E. G03;. 2 Eedf. Wills, 35. Upon an 
 examination of the will in this case, nothing 
 will be found tending in the least to establish 
 an intention on the part of the testator to 
 leave any portion of his property to descend 
 as intestate estate. On the other hand, in 
 view of the property owned by the testator, it 
 is manifest from the language of the will that 
 the testator intended to devise his entire es- 
 tate. When the will was executed, and at the 
 time of the testator's death, he owned 180 
 acres of land, and no more. Of this the tes- 
 tator, as is manifest from the will, attempted 
 to devise 100 acres to his son Joseph, 40 acres 
 to his son Edward, and 40 acres to his daugh- 
 ter Ann Eliza Boyce, making 180 acres,— all 
 the land possessed by the testator. But, 
 while it is manifest that the testator intended 
 to dispose of all the lands he possessed, yet 
 the language of the will, as found in the 
 second and third clauses, if construed liter- 
 ally as written, will defeat the plain inten- 
 tion of the testator. Shall that be done, or 
 shall resort be had to extrinsic evidence to 
 ascertain the real intent of the testator? In 
 the consideration of a question of this char- 
 acter, in Decker v. Decker, supra, it was 
 held: "While the general rule is that the 
 intention of the testator is to be gathered 
 from an inspection and consideration of the 
 will, and fi'om no other source, yet, in case 
 of latent ambiguity, courts do and must listen 
 to extrinsic evidence, not for the purpose ol' 
 contradicting or adding to the terms of the 
 will, but for the purpose of determining; 
 the existence or nonexistence of latent am 
 biguity, and to enable the court to look upon 
 the will in the light of the facts and circum- 
 stances surrounding the testator at the time 
 the will was made, whereby to determine the 
 intention of the testator." In Wigram on 
 Extrinsic Evidence, on the interpretation of 
 wills, aftar citing cases to prove that ex- 
 trinsic evidence may be resorted to, the au- 
 thor says "they might be multiplied without 
 end," and adds, "They appear to justify the 
 conclusion that every claimant under a will 
 has a right to require that a court of con- 
 struction, in the execution of Its office, shall, 
 by moans of extrinsic evidence, place itself 
 in the situation of the testator, the meaning 
 of whose language it is called upon to de- 
 clare." Quoted with approval in Society v. 
 Mead, 131 111. 362, 23 N. E. 603. In Patch 
 V. White, 117 U. S. 210-217, 6 Sup. Ct. 617, 
 710, it is said: "A latent ambiguity in a 
 will, which may be removed by extrinsic 
 evidence, may arise: (1) Either when it 
 names a person as the object of a gift, or a 
 thing as the subject of it, and there are two 
 persons or things that answer such name or 
 description; or (2) when the will contains 
 a misdescription of the object or subject, as 
 where there is no such person or thing in 
 existence, or, if in existence, the person is 
 not the one intended, or the thing does not 
 346 
 
 belong to the testator." After citing cases, 
 the court concludes: "By merely striking 
 out the words 'six' and 'three' from the de- 
 scription of the will, as not applicable [unless 
 interchanged] to any lot which the testator 
 owned, * * * the residue of the descrip- 
 tion, in view of the context, so exactly ap- 
 plies to the lot in question that we have no 
 hesitation in saying that it was lawfully de- 
 vised to Henry Walker." Page 220, 117 
 U. S., and pages 617, 710, 6 Sup. Ct. In 
 Moreland v. Brady, 8 Or. 303, in considering 
 a question of this character, the court said: 
 "We apprehend there can be no question of 
 the admissibility of extraneous oral evidence 
 to show the state and extent of the testator's 
 property, in order to place the court in the 
 same position the testator was at the time 
 he made the will in question. This, we think, 
 is unquestionably the rule established by the 
 decided cases. This being done, it appears 
 that the testator had no such lots as those 
 described as lots 1 and 2 in the particular 
 block named. This renders it certain that 
 the lots named were erroneous, and the words 
 describing them can have no possible opera- 
 tion, and must be rejected." In Decker v. 
 Decker, supra, by the terms of the will the 
 testator devised 20 acres off the W. % of N. 
 B. % of N. E. % of section 33, township IS 
 N., range 11 W. The evidence, however, 
 showed that the testator never owned N. E. 
 14 of N. B. 14 section 33, or any part of it, 
 but he did own N. W. % of N. E. % of the 
 section. Held, that there was a latent am- 
 biguity in the devise, the descriptive words 
 of the land devised being in part false; that 
 the false description might be stricken out, 
 and the devise sustained, as embracing the 
 land owned by the testator. 
 
 Keeping in view the foiegoing rules of con- 
 struction, it seems plain that the testator did 
 not intend' to leave the two 40-acre tracts in 
 N. E. %, of section 22 to descend as intestate 
 estate. He, in plain words, devised to Jo- 
 seph 100 acres of land, and then follows with 
 a particular description; that is, 60 acres off 
 of the west side ot S. E. % of section 22, and 
 40 acres, being the N. W. Vi of S. E. % of 
 section 22. Thereby the 40-acre tract was made 
 to overlap the north 30 acres of the 60 acres 
 which was to be a part of the 100 acres devised 
 to Joseph. The east 10 acres of the 40 devised 
 to Joseph the testator never owned. So that 
 the general purpose to devise to Joseph 100 
 acres would be defeated, and he would take 
 but 60 acres, under the devise, and the ad- 
 joining 40 acres on the north of the 60 acres 
 is left undevised, and the general Intent for 
 the disposition of the entire tract would be 
 defeated. It is also apparent that the pur- 
 pose of the testator, as expressed in the will, 
 was to give his son Edward L. Rodman 40 
 acres of land. Indeed, the will says, "I will 
 and bequeath 40 acres of land to my son Ed- 
 ward L. Rodman." The land is then describ- 
 ed as the N. E. % of the S. E. % of section 
 22, — laud which the testaton never owned; 
 
ORAL EVIDENCE TO VARY OR EXPLAIN DOCUMENTS. [Case No. 120 
 
 but he Jid own 40 acres lying directly north 
 of the 40-acre tract described, which was 
 known as S. E. % of N. E. % of section 22. 
 If the will is to be construed as contended 
 for by ijlaintiffs in error, the devise of the 
 40 acres of land to Edward will be defeated 
 entirely, and the intention of the testator will 
 be disregarded. If, therefore, by any of the 
 recognized rules of construction, the will may 
 be so construed as to give the language of the 
 testator effect, and thus carry out the evident 
 intention, not only to dispose of his entire 
 estate, but to give to his sons, Joseph and Ed- 
 ward, the land intended to ba devised to them, 
 it is the duty of the court to adopt that con- 
 struction. Redf. Wills, p. 4G9, says: "AVhere 
 the testator misdescribes his estate as being 
 in different localities from the fact, — putting 
 one estate In the locality of another, and 
 vice versa, — it was held that where sufhcient 
 appeare(^ upon the face of the will, as applied 
 to the subject-matter, to show that such mis- 
 description was a mere mistake, either of the 
 testator or the person who drew up the will, 
 that it would not have the effect to defeat the 
 obvious intention of the testator." While 
 words cannot be added to a will, yet in arriv- 
 ing at the intention of the testator, as has 
 been shown, by the authorities, so mucn as is 
 false in the description of the premises devis- 
 ed may be stricken out; and after striking 
 out the false description, if enough remains 
 to identify the premises intended to be de- 
 vised, the will may be read and construed 
 
 with the false words eliminated therefrom. 
 Adopting that rule here, the second and third 
 devises will read as follows: "Second. To 
 my son Joseph L. Rodman I will and be- 
 queath one hundred acres of land (100),— sixty 
 acres (60) off of the west side of the south- 
 east quarter of section twenty-two (22), forty 
 
 acres (40) being the quarter of the 
 
 quarter of section twenty-two (22). Third. 
 To my son Edward L. Rodman I will and be- 
 queath forty acres of land, being the 
 
 quarter of the quarter of section twen- 
 ty-two (22)." Bearing in mind that the tes- 
 tator owned two 40-acre tracts in N. E. % of 
 section 22, and reading the two clauses of the 
 will in the light of surrounding circumstan- 
 ces, we think all difficulty is removed, in re- 
 gard to the lands devised by those two provi- 
 sions of the will. The testator, owning two 
 quarters of a quarter of section 22, devised 
 one quarter to his son Joseph, and the other 
 quarter to his son Edward, and the two sons 
 took and held the two tracts undivided. The 
 circuit court, in its decree, held that the two 
 40-acre tracts were devised by the will; the 
 S. W. 40 to Joseph, and the S. E. 40 to Ed- 
 ward. In this respect, we think the court 
 erred; but as the error was one which did 
 not affect plaintiffs in error, they having no 
 interest whatever in the premises, the error 
 was one which did no harm, and hence no 
 ground for reversing the decree. The decree 
 of the circuit court will be affirmed. Affirm- 
 ed, 
 
 347 
 
Case No. 121] 
 
 PUOOF 
 
 GOODE V. RILEY. 
 
 (28 N. B. 228, 153 Mass. 7,Rr,.) 
 
 Supreme .Tiidicial Court of Massachusetts. Mid- 
 dlesex. May 19, 1891. 
 
 Exceptions from supei'ior court, Mid- 
 dlesex county. 
 
 Bill by George F. Goode against Pat- 
 rick J. Riley to reform a deed. Decree for 
 plaintiff. Defendant brings exceptions. 
 Exceptions overruled. 
 
 Geo. F. EicharclsoD and John Davis, for 
 plaintiff. C. S. Lilley, A . G. Lmnson, and 
 John J. Hogan, for defendant. 
 
 HOLMES, J. This is a bill in equity for 
 the reformation of a deed. The judge 
 who tried -the ca.se found the following 
 facts proved beyond a reasonable doubt: 
 
 The parties, just prior to the execution 
 and delivery of the deed, made and com- 
 pleted an oral agreement, the plaintiff to 
 sell and the defendant to buy alot of lana, 
 fiituatp on the southerly side of Summer 
 street, in Lowell, bounded and described 
 as testified to by plaintiff, and a warranty 
 deed thereof was to be executed and deliv- 
 ered; the parties were upon the land to- 
 gether, and then both saw and examined 
 the same, and knew the location, descrip- 
 tion, and bounds thereof, and the rear 
 line of the premises was tlien marked by a 
 hoard fence five feet high, and other monu- 
 ments, and both parties understood and 
 knew its exact location and limits; the 
 deed, when executed and delivered, de- 
 scribed more land, to-wit, about 1,031 
 square feet more, to the rear and beyond 
 said board fence, land not owned by the 
 plaintiff, and so much more than was bar- 
 gained lor; and both parties then errone- 
 ously supposed and believed that said 
 deed described the land orally agreed up- 
 on, and no more. This mutual mistakeof 
 the parties was not discovered until two 
 months or more thereafter. 
 
 The court also found that the plaintiff 
 had not been guilty of negligence or 
 laches, and that he was entitled to the 
 relief prayed for,— a decree to reform and 
 rectify said deed. 
 
 The only question argued is raised by 
 the defendant's exception to the refusal 
 of a ruling that, if both parties intended 
 that the description should be written as 
 it was written, the plaintiff was not enti- 
 I tied to a reformation. It would beasuffl- 
 cient answer that the contrary is settled 
 i in thiscommonwealth. Oanedy v. ilarcy, 
 13 Gray, 373, 377; Glass v. Hulbert, lOli 
 Mass. 24, 34; Stockbridge Iron Co. v. Hud- 
 sop Iron Co.. 107 Mass. 290, 319; Wilcox v. 
 Lucas, 121 Mass. 21; Johnson v. Taher, 10 
 N. Y. 319; Bush v. Hicks, 60 N. Y. 298; 
 Andrews v. Andrews, SI jle. 337, 17 Atl. 
 Rep. 166; May v. Adams, 58 Vt. 74, 78,3 
 Atl. Rep. 1S7; Fuchs v. Treat, 41 Wis. 404. 
 In view of these, among other, cases, Ave 
 shall not follow the elaborate argument 
 which was addressed to us in favor of a 
 different rule, but we will add a few woi'ds 
 to explain our opinion somewhat more 
 fully. 
 
 When both parties to a conveyance have 
 intended to describe a certain parcel of 
 land identified by their senses, and by the 
 ;i48 
 
 words of their previous agreement, and 
 have used words supposed by them to be 
 apt for their purpose, but in fact describ- 
 ing that parcel, and something more, the 
 full purport of all their acts, taken to- 
 gether, is only to convey the parcel in- 
 tended; and yet that result cannot be 
 reached by way of consti'uction merely, 
 for you cannot prove a mere private con- 
 vention between the two parties to give 
 language a different meaning from its com- 
 mon one. Waterman v. Johnson. 13 Pick. 
 261, 266, 267; Paine v. Woods, 108 Mass. 
 160, 170; Flynn v. Bourneuf, 143 Mass. 
 277,278,9 N. E. Rep. 650; Millard v. Bai- 
 lev, L. K. 1 Eq. 378, 382; Shore v. Wilson, 
 9 Clark & F. 355,565,566; Urummond v. 
 Attorney General, 2 H. L. Cas. 837, 862, 
 863. It would offer too great risks if evi- 
 dence were admissible to show that when 
 they said 500 feet they agreed it should 
 mean 100 inches, or that Bunker Hill Mon- 
 ument should signify the Old South 
 Church. As an artificial construction can- 
 not be given to plain words by express 
 agreement, the same rule is applied when 
 there is a mutual mistake, not apparent 
 on the face of the instrument. 
 
 Since, then, the instrument must be con- 
 strued to mean what the words would 
 mean if there were no mistake, evidence 
 of the mistake shows that neither party 
 has purported or been understood to ex- 
 pressassenttotheconveyanceas it stands. 
 It is not necessarily fatal that the evi- 
 dence is parol which is relied on to show 
 that the contract was not made as it pur- 
 ports on the face of the document to have 
 been made. There was a time when a 
 man was bound if his seal was affixed to 
 an instrument by a stranger and against 
 his will. But the notion that one who 
 has gone through certain forms of this 
 sort, even in his own pers'on, is bound al- 
 ways and unconditionally, gave way long 
 ago to more delicate conceptions. See, e. 
 g-.. Wall v. Hickev, 112 Mass. 171; Mc- 
 Chirg v. Terry, 21 N. J. Eq. 225. 
 
 So it is settled, at least in equity, that 
 this particular kind of parol evidence — 
 that is to say, evidence of mutual mistake 
 as to the meaning of the words used — is 
 admissible for the negative purpose we 
 have mentioned. And this principle is en- 
 tirely consistent with the rule- that you 
 cannot set up prior or contemporaneous 
 oral dealings to modifj' or override what 
 you knew was the effect of your writing. 
 Batchelder v. Insurance Co., 135 Mass. 449. 
 
 But the effect of the evidence is not to 
 show that no conveyance was made. It 
 is only to show that no conveyance was 
 made of part of the land embraced in the 
 description. Obviously, therefore, it 
 would be most unjust simply to rescind 
 the whole transaction, and, in order to 
 do complete justice, the grantor who has 
 used too extensive language should have 
 a i-econveyance to set his title right on 
 the face of the instrument; for, as thirigs 
 stand, a purchaser without notice could 
 hold him to the words which he has used. 
 Cross V. Bean, 81 Me. 525, 17 Atl. Ren. 
 710; O'Donnell v. Clinton, 145 Mass. 461, 
 463, 14 N. E. Rep. 747. If a purchaser were 
 attempting to insert a parcel left out un- 
 der similar circumstances, he would be 
 
ORAL EVIDENCE TO VARY. OR EXPLAIN DOCUMENTS. [Case No. 121 
 
 met by tlie statute of IrautL But tliei-e is 
 no such diflicnlty here. Glass v. Hulbert, 
 102 Mass. l'4, 3.5. 
 
 The defendant's testimony, although 
 ambiguous, looked towards tlio conclu- 
 sion that the price was fixed by the num- 
 
 ber of feet; but this was denied by the 
 plaintiff, and it does not appear what 
 the judge found to be the fact, or what 
 he did, and no question as to whPther an 
 allowance should lie made to the defend- 
 ant Is befoi-e us. Exceptions overruled. 
 
 34» 
 
 \ 
 
Case No. 122] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 FARMERS' LOAN & TRUST CO. v. 
 SIBFKB. 
 
 (39 N. E. 358, 144 N. Y. 354.) 
 
 Court of Appeals of New York. Jan. 15, 1895. 
 
 Appeal from common pleas of New York 
 city and county, general term. 
 
 Action by the Farmers' Loan & Trust Com- 
 pany, as committee for Frederick Siefke, 
 against Henry Siefke. From a judgment of 
 the general term {22 N. Y. Supp. 546) afiirm- 
 ing a judgment for defendant, plaintiff ap- 
 peals. Affirmed. 
 
 David McClure, for appellant. Brainard 
 ToUes, for respondent. 
 
 ANDREWS, C. J. The complaint alleged 
 that the note siied upon -was given for value, 
 and was under the hand and seal of the de- 
 fendant. The answer contained a general 
 denial of the allegations in the complaint, and 
 in separate paragraphs, stated to constitute 
 separate defenses, alleged that the note was 
 without consideration, and that It was altered 
 in material parts, and, among other things, 
 by aflSxing a seal thereto without the consent 
 or privity of the defendant. On the trial the 
 note was offered in evidence by the plaintiff, 
 and he then rested. The execution of the 
 note by the defendant seems to have been ad- 
 mitted, as no proof was given upon the sub- 
 ject. It purported to be signed by him, and 
 a seal was attached to his signature. The 
 defendant thereupon entered upon the de- 
 fense. The question of consideration was lit- 
 igated, and the defendant also gave proof 
 tending to show that the seal was attached 
 without his knowledge or consent, by the 
 plaintiff, after the execution and delivery of 
 the note. The evidence on the part of the 
 defendant, as to the alteration by the addi- 
 tion of the seal, was met by evidence in be- 
 half of the plaintiff that the seal was at- 
 tached before execution. The case was sub- 
 mitted to the jury, under a charge of the 
 judge, and the jury rendered a general ver- 
 dict for the defendant. Judgment was en- 
 tered on the verdict, from which the plaintiff 
 appealed to the general term, which affirmed 
 the judgment, and this appeal is from the 
 judgment of affirmance. 
 
 The allegations of error are founded main- 
 ly upon the charge to the jury. The judge 
 charged, in substance, that if the seal was at- 
 tached to the note by the plaintiff after ex- 
 ecution and delivery, without the knowledge 
 or consent of the defendant, it constituted a 
 material alteration, and the note was void. 
 There was no exception to this part of the 
 charge, and it must be taken, on this point, 
 to have correctly stated the law. We are not 
 to be understood, however, as dissenting from 
 this view, but it is unnecessary now to con- 
 sider it. The court further proceeded to 
 charge that the ]]laintiff was bound to estab- 
 lish, by a preponderance of evidence, that the 
 1 seal was uot attached after the signature to 
 
 ■.\-,o 
 
 I the note. This was qualified afterwards by 
 1 the statement that this burden rested upon 
 Ithe plaintiff after testimony had been given 
 I to show that the seal was attached after the 
 T inception of the note. The plaintiff's counsel 
 excepted to the charge, as made and ex- 
 plained. This exception presents the prin- 
 cipal question in the case. We think the 
 charge was correct. Upon the pleadings, a 
 general denial having been interposed by the 
 answer to the whole complaint, the plaintiff 
 was bound to establish every material fact 
 therein alleged. The primary issue was the 
 execution or nonexecution by the defendant 
 of a sealed instrument. The plaintiff alleged 
 the making by the defendant of a specialty 
 creating a pecuniary obligation, and, issue 
 having been taken on this allegation, the 
 plaintiff was bound to establish the allega- 
 tion by proof. If it had turned out on the 
 trial that the allegation had been made by 
 mistake, and that the Instrument was not 
 sealed, but was a simple contract only, or 
 that the seal had been attached after execu- 
 tion, by a stranger, without the privity or 
 knowledge of the plaintiff, it would have 
 been in the power of the court to have per- 
 mitted an amendment of the pleadings upon 
 such terms as it should deem just. But, as 
 the pleadings stood, the question whether the 
 defendant had executed a sealed instrument 
 was an issuable fact, which was asserted on 
 J one side and denied on the other, and which 
 Jthe plaintiff was bound to establish, as a 
 jpart of his case. The defendant, under a 
 general denial, may adduce evidence to con- 
 trovert what the plaintiff is bound to prove 
 in the first instance. Milbank v. Jones, 141 
 N. Y. 345, 36 N. E. 388, and cases cited. And 
 the general rule is well established that what- 
 ever a plaintiff is bound to prove in the first 
 I instance, as part of his case, he is bound to 
 ^establish by a preponderance of evidence. 
 The burden of proof upon the issue of a ma- 
 terial alteration of a written instrument, sued 
 upon in its existing condition, presents no 
 anomaly, but is governed by the general rule 
 that the party alleging that the instrument 
 sued upon is the act and deed of the defend- 
 ant must establish it by proof. The case of 
 Schwarz v. Oppold, 74 N. Y. 307, Is a pre- 
 cise authority for the proposition that, under 
 a general denial in an answer in a suit 
 brought upon a written obligation, a material 
 alteration may be proved. Under this au- 
 thority, we see no escape from the conclu- 
 sion that evidence of alteration, which goes 
 ! to the identity, of the instrument, controverts 
 1 a fact which a plaintilf is bound to prove in 
 j the first instance, — that the instrument is the 
 I act of the defendant. 
 
 There is confusion, sometimes, in treating 
 of the burden of proof, arising out of un- 
 exact definitions. The burden is upon a 
 plaintiff to establish his cause of action, when 
 it is, yi proper form, denied by the other 
 party. In actions upon a promissory note, 
 this burden is, in the first instance, dis- 
 
BURDEN or PKOOF. 
 
 [Case No. ia2 
 
 charged by giving evidence tending to show 
 that the note v?as signed by the defendant. 
 Proof of signing also identities and proves 
 the seal, when the action is upon a sealed 
 instrument. This, prima facie, establishes 
 the cause of action. But a defendant is not 
 concluded. He may give evidence, under a 
 general denial, to show that the signature is 
 a forgery, or that the note had been material- 
 ly altered by the plaintiff without his con- 
 sent, or many other things which might be 
 mentioned, showing that the plaintiff never 
 had a cause of action. It is very common to 
 say, in such cases, that the burden is upon 
 the defendant to establish the fact relied up- 
 on. All that this can properly mean is that, 
 when the plaintiff has established a prima 
 facie case, the defendant is bound to contro- 
 vert it by evidence; otherwise, he will be 
 cast in judgment. When such evidence is 
 given, and the case, upon the whole evidence, 
 —that for and that against the fact asserted 
 .by the plaintiff,— is submitted to court or 
 Jury, then the question of the burden of 
 proof as to any fact, in its proper sense, 
 arises, and rests upon the party upon whom 
 It was at the outset, and is not shifted by the 
 course of the trial ; and the jury may be prop- 
 erly instructed that all material issues ten- 
 dered by the plaintiff must be established by 
 him by a preponderance of evidence. See 
 Davis V. Jenney, 1 Mete. (Mass.) 221; Simp- 
 son v. Davis, 119 Mass. 269; Perley v. Tcr- 
 ley, 144 Mass. 104, 10 N. B. 726. The general 
 rule of pleading, which also accords with 
 reason, is that defenses which assume or ad- 
 mit the original cause of action alleged, but 
 are based upon subsequent facts or transac- 
 tions which go to qualify or defeat it, must 
 be pleaded and proved by the defendant; 
 and, on the other hand, the cause of action al- 
 leged by the plaintiff, and all its material 
 incidents, must be asserted and proved by 
 him; and, in both cases, the final event must 
 be supported by a preponderance of evidence 
 in favor of the party tendering the issue. 
 This is illustrated in cases somewhat ger- 
 mane to the one before us. It is held by the 
 weight of authority that the alteration of a 
 bill or note need not be pleaded, when the in- 
 strument is declared on in its altered state, 
 but, where the declaration is on the instru- 
 ment in its original condition, the alteration 
 must be specifically pleaded. Hirschman v. 
 Budd, L. R. 8 Exch. 171; Byles, Bills (7th 
 
 Am. Ed.) 328. In the latter case, the plain- 
 tiff sues on the actual contract made, and the 
 defendant is seeking to defeat a recovery be- 
 cause it had been subsequently tampered 
 with, and this defense must be pleaded and 
 sustained by a preponderance of proof. 
 
 The appellant, in support of his contention 
 that the charge as to the burden of proof was 
 erroneous, cites some cases in other states, 
 which, to some extent, sustain his view. But 
 it seems to us they are opposed to sound prin- 
 ciple, and, at least, cannot be followed in this 
 state, in view of our decision in Schwarz v. 
 Oppold. The remark quoted from the opin- 
 ion in the case of Williamsburgh Sav. Bank 
 V. Town of Solon, 136 N. Y. 465, 32 N. B. 
 1058, was in a case where the supposed ad- 
 dition of the seal made the instrument what 
 it was intended to be, both by the legislature 
 and the town. The case, however, was de- 
 cided wholly irrespective of the question of 
 alteration, on the ground of a former adjudi- 
 cation. Our conclusion is that the charge 
 was not erroneous, in putting upon the plain- 
 tiff the burden of proof as to the existence of 
 a seal when the note had its inception. 
 
 One other question, only, needs special ref- 
 erence. The plaintiff was not present on the 
 trial, and his counsel, early in the case, in- 
 troduced a witness to account for his ab- 
 sence; and the reason given was that he 
 was partly paralyzed, and, although mental- 
 ly sound, was not able to attend the trial. 
 It seems that the fact that the plaintiff had 
 not appeared as a witness was commented 
 upon by counsel, and the court, in the charge, 
 referring to the subject, said, "It is true, 
 of course, that his testimony might have been 
 taken at his house." This statement was 
 subsequently excepted to, and it is claimed 
 by the plaintiff's counsel that it was preju- 
 dicial, because an examination of a party be- 
 fore trial, on his own behalf, could not be 
 taken. This is a clear misapprehension of 
 the Code provision (section 872, subd. 5), 
 as it now stands. The last clause in the sub- 
 division was inserted to except a party to the 
 action from the restriction in that subdivi- 
 sion. A party complying with the provisions 
 of the other sections is permitted to per- 
 petuate his own testimony in the case by an 
 examination before trial. We think the judg- 
 ment is right, and it should therefore be af- 
 firmed. All concur, except HAIGHT, J., not 
 sitting. Judgment affirmed, 
 
 351 
 
Case No. 123] PKODUCriON AND EFFECT OF EVIDENCE. 
 
 PEOPLE T. DOWNS. 
 
 (■25 N. E. 988, 123 N. Y. 558.) 
 Court of Appeals of New York. Dec. 2, 1890. 
 
 Appeal from supreme court, general 
 term, third deijartment. 
 
 Lewis E. Griffith and John P. Kelly, 
 Dist. Atty., for the People. Orln GniubeU 
 and J. K. liong, for respondent. 
 
 FINCH, J. Thedefendan t wasconvicted 
 of manslaughter in the first degree, hut 
 the general term has reversed that con- 
 viction for alleged error in the charge to 
 the jury; and from that reversal the peo- 
 ple have appealed to this court, insisting 
 that the charge, fairly construed, was cor- 
 rect and violated no established legal rule. 
 The prosecution proved the corpus delicti, 
 the death of Logan, and the violence which 
 caused it, by direct evidence which was in 
 no respect disputed. His dead body was 
 found upon the premises of the prisoner 
 shot through the heart. The bullet had 
 penetrated his clothing and entered his 
 breast in a manner indicating that he was 
 facing his antagonist when the shot was 
 fired. The absence from the clothing of 
 the deceased of anything like scorch or 
 stain of powder was claimed to indicate 
 that the weapon when fired was not in 
 contact with his person, but at some dis- 
 tance from him, greater or less. The bullet 
 was taken from the body. A pistol was 
 found in the prisoner's room, under his 
 bureau, having 10 chambers, the central 
 one carrying a bullet of 32 caliber, and the 
 9 surrounding it of 22. A discharged shell 
 was found in the central chamber, which 
 the bullet taken from the body of the de- 
 ceased fitted, while the9smaller cartridges 
 remained undischarged. On the day of 
 the homicide, at about midnight, the pris- 
 oner aroused a neighbor named Morey, 
 and Dr. Harvie, saying to each that he 
 had shot his best friead, oi' was afraid he 
 had shot Ills best friend, but giving no ex- 
 planation of the circumstances; and they, 
 going with him to the house, found Lo- 
 gan lying dead near the entrance to the 
 summer kitchen. The prisoner was pale 
 and nervous, and on finding Logan dead 
 was taken with a fit of vomiting, but made 
 no effort to escape, and quietly surren- 
 dered himself to the officers who were 
 summoned and took him into custody. 
 He was entirely sober, and there was no 
 evidence of intoxication. His previous 
 relations with Logan, who was a married 
 man, were ihose of intimate friendship 
 without anything to mar or disturb it. 
 That was the case made by the prosecu- 
 tion, and it presented to the jury a i)rob- 
 lem with very slight material for its solu- 
 tion. That Logan met his death from a 
 pistt)l discharged in the hands of Downs 
 was sufflcieutiy proved, but whether the 
 shot was tired intentionally or accident- 
 all/, and, if Intentionally, for what rea- 
 son, did not appear. The evidence dis- 
 closed no possible motive for an intention- 
 al homicide, and left the character and 
 grade of the crime, if one had been com- 
 mitted, an unexplained mystery. One cir- 
 cumstance, however, would be sure to 
 attract the attention of an intelligent 
 
 jury. Tliey would asli how Logan came- 
 to i)e at the rear of the house, near the en- 
 trance to its living rooms, at midnight; 
 and what he was doing there when he 
 should have been at home with his wife 
 and children. The saloon was in the 
 fi'ont part of the house opening onto thfc>- 
 street. It was closed for the night, and 
 there had been no brawl or quarrel or 
 disturbance there during the evening. 
 The i)resence of Logan in the rear of the 
 house, at or near midnight, and the ab- 
 sence of any previous quarrel or difficulty, 
 Avould make It reasonably certain that 
 something due to his presence, and sufti- 
 c^eutly grave and serious to account for an 
 intentional or accidental homicide, had act- 
 ually occurred. What that was we have no 
 means of knowing except through the ex- 
 planation given by Downs and his wife. 
 He testifies, in brief, that he was aroused 
 by the noise of a scuffle in the back kitch- 
 en ; that he seized the pistol, which lay 
 upon a stand near his bed, and rushed out; 
 that he found Logan and Mrs. Downs on 
 the floor in the act of adultery or rape, 
 according as the woman was consenting 
 or resisting; that he seized Logan, who 
 at once attacked him, and in the struggle 
 the pistol went off; and that this was 
 after the woman had left the room, and, 
 as she says, while she was at the front 
 door going out for help or escape. She 
 testifies that Logan seized her and threw 
 her down, but does not say whether with 
 her consent, or why she made no outcry. 
 Of course this explanation was open to 
 the criticism of the prosecution and the 
 consideration of the jury. The principal 
 fact sworn to has a strong probability in 
 its favor. It accounts for the presence of 
 Logan, at midnight, on the premises 
 where he had no right to be, and furnishes 
 the needed motive and explanation of the 
 homicide which occurred. Without it we 
 cannot understand the event; with it we 
 can easily see how it did occur, or how it 
 might have happened. It supplies both 
 motive and occasion. But granting so 
 much, the rest does not necessarilyfollow, 
 and it was still for the jury to say whether 
 the shooting was accidental or inten- 
 tional, whether justifial)le or excusable, 
 whether with deliberate purpose, or in 
 the heat of passion, and without intent to 
 kill. It is obvious tliat in their considera- 
 tion of these questions very much would 
 depend on the charge of the court as to 
 the burden of proof and the operation and 
 extent of the rule relating to a reasonable 
 doubt. That such doubts might easil.y 
 arise in many and different directions is 
 quite ai)parent from the facts to which we 
 have adverted. Take, for example, the 
 prisoner's statement that the pistol ex- 
 ploded in a fight between him and Logan, 
 and without his conscious act. If that be 
 true, while there was a homicide there 
 was no crime; for the killing would be- 
 come merelj' an accident or misadventure. 
 If, now, the burden is upon the prisoner 
 to satisfy the jury of that fact, and unless 
 they are so satisfied they must deem the 
 homicide intentional, a verdict of guilty 
 might easily result. But if that burden is 
 not upon the prisoner, if the .iury are told 
 that it remains with the prosecution, —that 
 
BUKDEN OF PKOOF. 
 
 [Case No. 12a 
 
 if the evidence leaves in their minds a rea- 
 sonable doubt whether the killing may 
 not have been an accident or misadvent- 
 ure, the prisoner must have the benefit of 
 .the doul)t, because it goes directly to the 
 vital elements of the people's case, and 
 leaves it uncertain whether a crime has 
 been committed at all, — the verdict of the 
 jury might be entirely different. A similar 
 result might attend a defense of justifiable 
 homicide, and so the question of the bur- 
 den of proof and the scope and effect of a 
 reasonable doubt, became in the case at 
 bar of very great importance. We have 
 decided so recently as to make further ci- 
 tation needless that the rule that in crimi- 
 nal cases the defendant is entitled to the 
 benefit of a reasonable doubt applies not 
 only to the case as made by the prosecu- 
 tion, but to any defense interposed, (Peo- 
 ple V. Riordan, 117 N. Y. 71, 22 N. E. Rep. 
 4i55;) and we had earlier held under the 
 statute defining the different classes of 
 homicide that whether it was murder or 
 manslaughter in one of the degrees, or 
 justifiable or excusable, and so no crime 
 at all, depended upf)n the intention and cir- 
 cumstances of its perpetration, and there- 
 tore mere proof of the killing raised no 
 legal implication of the crime of murder, 
 (Stokes V. People, 53 N. Y. 177.) I think 
 the charge in this case ran counter to 
 these rules, and was calculated to impress 
 upon the jury a conviction that proof of 
 the homicide carried with it a legal impli- 
 cation of crime which shifted the burden 
 of proof upon the prisoner, and required 
 him to satisfy the jury that the killing 
 was either justifiable or excusable, at the 
 peril of a conviction if he should fail in his 
 attempt. 
 
 The learned trial judge began his charge 
 with the definitions of the statute, and 
 very fairly and correi'tly explained its clas- 
 sification of the different forms of homi- 
 cide. Having done so he approached the 
 rules which should govern the jury in de- 
 C'iding between them, and in so doing used 
 expressions to which exceptions were 
 taken. He said: "Now it is for you to 
 say to which one of these classes of crime 
 this evidence points. Here has been a 
 homicide. Here has been a human life 
 taken. It becomes a serious question as 
 to whether or not a man shall execute the 
 law or execufe vengeance upon his fellow. 
 If he does he must do it at the peril of 
 either bfing punished for it or being able 
 to excuse himself when called upon to an- 
 swer to the wrong within one of the ex- 
 cuses that is fixed and given in the law. 
 If he is not he must be found guilty of one 
 or the other of the crimes which are Im- 
 puted to him by reason of the homicide." 
 A jury could hardly fail to ■ understand 
 from this language that a homicide, the 
 fact of a human life taken, involved a legal 
 implication of mui-der which must conipel 
 a verdict of guilty jnless the ijrisoner Ik 
 able to excu-sie himself within the statu- 
 tory definitions. If there was room to 
 doubt about the meaning it became plain- 
 er from what followed. The learned judge 
 added: "If jou reach the conclusion that 
 he was justified in taking the life of this 
 man within the definitions given in the 
 books, not within any notions of your 
 
 WILQTJS.BV. — 23 
 
 own, but within the definitions given in 
 the law, if you reach the conclusion that 
 he was justified, then your verdict will be 
 one of acquittal." Here the same idea is 
 conveyed in another form. To acquit, the 
 jury must "reach the conclusion" that a 
 justification has been established. It is 
 evident that the prisoner's counsel so un- 
 derstood the charge, and, after excepting 
 to it, made a series of requests with a view 
 of more clearly ascertaining the meaning 
 of the charge, or procuring a modification 
 of its terms. He asked the court to charge 
 "that no state of proof ever changes the 
 burden of proof; the burden remains 
 throughout the trial upon the people;" 
 to which the learned judge replied: "I de- 
 cline to charge it in those words. I quali- 
 fy it by saying that if the people establish 
 tlie homicide by the use of a deadly weap- 
 on, committed b.y the defendant inten- 
 tionally and with deliberation, that then 
 any excuse for the commission of that 
 crime or the commission of that act must 
 come from the defendant." The under- 
 standing of the jury of the position of the 
 court was quite likely to be that the bur- 
 den did not alwa.ys rest on the prosecu- 
 tion ; but when a prima facie case of mur- 
 der had been made the burden shifted to 
 the defendant, who sought to excuse or 
 justify. And this is in precise accord with 
 the previouscharge that where a homicide 
 was shown to have been committed by 
 the prisoner he must be convicted unless 
 he is "able" to justify or excuse the act, 
 and unless the jur.y "reach the conclusion " 
 that there is legal excuse or justification. 
 And then, to further test the attitude of 
 the court, the defendant's counsel asked 
 for a charge "that there is no legal impli- 
 cation from the fact of the shooting that 
 the defendant intended to take the life of 
 Logan." That was declined, and an ex- 
 ception taken. 
 
 Now, construing together what the 
 court said, and what it refused to say, 1 
 think it is obvious that the jury were like- 
 l.v to act under the impression that a 
 homicide proved implied crime on the part 
 of the slayer; that a conviction must fol- 
 low unless the prisonerjustifled or excused 
 the act; that the burden of that defense 
 was upon him : and that to secure acquit- 
 tal he must be able to show a legal justifi- 
 jation or excuse, and the jury must reach 
 tnat conclusion if it would acquit. "The 
 learned district attorne.y, however, insists 
 that the court did charge that the guilt of 
 the prisoner must be established beyond 
 a reasonable doubt, and refers to several 
 passages in which that was said. A refer- 
 ence to them indicates that none of them 
 related to the defense of justification or 
 excuse, nor did the,> indicate that a rea- 
 sonable doubt would operate in the pris- 
 oner's favor beyond the case made by the 
 prosecution. Thus, in describing the char- 
 acter of the proof requisite to establish 
 the corpus delicti as distinguished from 
 the guilt of the prisoner, the court said the 
 forme, must bepnved b.y direct evidence, 
 and the latter beyond a reasonable doubt 
 In describing the killing of Logan, the 
 court said- "I do not know that it is 
 controverted on eithe'- side that he came 
 to his death by a bullet, a pistol shot, as 
 
 353 
 
Case No. 123] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 almost conceded, butyou are to find that 
 fact. If there is any doubt about it, of 
 course the defendant has the benefit of the 
 doubt." Upon request of the prisoner's 
 counsel, the court also charged "that it is 
 incumbent upon the people to prove af- 
 firmatively beyond a reasonable doubt 
 what grade of crime, if any, was com- 
 mitted ; " and also, upon the like request, 
 "that if upon 'the whole evidence of the 
 people and the defendant taken together 
 there is a reasonable doubt in the minds 
 of the jury as to whether or not the de- 
 fendant discharged the pistol at Logan 
 with intent to kill him, they must acquit 
 the defendant of the crime of murder in 
 both degrees. " I am unable to see that 
 these expressions at all modifj' or control 
 what was said and refused to be charged 
 as to the burden of proof, and the manner 
 in which justification or excuse should be 
 proved. They fall very far short of a cure 
 for the error which was committed. Tak- 
 ing the charge together, and construing it 
 
 354 
 
 as a whole, I am unable to resist the con- 
 viction that in the minds of the jury it 
 shifted the burden of proving his defense 
 upon the prisoner, and deprived him as to 
 that defense of the benefit of a reasonable- 
 doubt. While there is no logal implica- 
 tion of the crime of murder from the bare 
 fact of a homicide, the jury may infer it as 
 a fact, and may do so even though no mo- 
 tive is assigned for the act, and the case 
 is bare of circumstances of explanation. 
 People V. Conroy, 97 N. Y. 77. But the in- 
 ference is one of fact which the jury must 
 draw if such seems to them to be their 
 duty, and not one of law^ which the court 
 may impose upon their deliberation, and 
 then upon that assumption shift the bur- 
 den upon the prisoner, and require him to 
 prove that no crime has in fact been com- 
 mitted. We think, therefore, that the or- 
 der of the general term, re versing the judg- 
 ment of conviction, was right, and should 
 be aflBrmed. All concur, except Bugeb, C. 
 J., not voting. 
 
BURDEN or PKOOF. 
 
 [Case No. 124 
 
 COLORADO COAL & IRON CO. et al. v. 
 UNITED STATES. 
 
 (8 Sup. Ct. 131, 123 U. S. 317.) 
 
 Supreme Court of the United States. Nov. 21, 
 1887. 
 
 Appeal fi-om the circuit court of tlie Unit- 
 ed States for the district of Colorado. 
 
 Lyman K. Bass, B. H. Bristow, and David 
 Willcox, for appellants. Sol. Gen. Jenks, for 
 the United States. 
 
 MATTHEWS, J. This is a bill in equity 
 filed in the name of the United States by the 
 attorney general on January 22, 1880, the ob- 
 ject and prayer of which are to declare void 
 and cancel 61 patents for as many distinct 
 pieces of land, situated at different places in 
 Las Animas county, in the state of Colorado, 
 amounting in the aggregate to 9,505.95 acres. 
 To the original bill the Southern Colorado 
 Coal & Tovcn Company, a corporation or- 
 ganized under the laws of Colorado, was the 
 sole defendant. The patents in question 
 were issued at different times between Octo- 
 ber, 1873, and October, 1874, upon pre-emp- 
 tion claims, under the act of 1841. In each 
 case there appeared to be filed all the neces- 
 sary and proper affidavits, duly verified be- 
 fore the register or receiver of the land-of- 
 fice at Pueblo, showing that the pre-emptors 
 had entered and settled in person upon the 
 land on a day named, and had made im- 
 provements thereon, the nature of which 
 were set out in detail, and that the lands in 
 question were non-mineral lands, and subject 
 to pre-emption under the acts of congress re- 
 lating thereto. Between May, 1873, and De- 
 cember, 1875, warranty deeds in the names 
 of the pre-emptors and patentees were made, 
 acknowledged, and recorded, apparently con- 
 veying the premises to William S. .Jackson, 
 as trustee, who represented a number of in- 
 dividuals who had deposited money in his 
 hands to be used in the purchase of lands in 
 Colorado. On June 1, 1876, by deed duly 
 acknowledged and recorded, but without 
 covenant of warranty, Jackson conveyed and 
 released all these lands to the defendant, the 
 Southern Colorado Coal & Town Company. 
 On January 20, 1880, that corporation was 
 consolidated with other corporations under 
 the name of the "Colorado Coal & Iron Com- 
 pany," to which, upon that date, the lands in 
 question were conveyed. Under date of Feb- 
 ruary 1, 1880, the coal and iron company 
 made a mortgage covering the premises In 
 question, with others, to Louis H. Meyer, as 
 trustee, to secure an issue of bonds amount- 
 ing to $3,500,000. On January 7, 1882, an 
 amendment to the bill was filed, making the 
 Colorado Coal & Iron Company, the consoli- 
 dated corporation, together with Meyer, the 
 trustee In the mortgage, parties defendant. 
 The purchase price of the lands to the gov- 
 ernment was $11,997.45, which was paid at 
 
 the time to the proper officer,— $1,813.14 in 
 cash, and the remainder in certificates 
 known as "Agricultural College Scrip," which 
 by law was receivable for that purpose. 
 
 It is charged in the bill that these patents 
 were procured by means of a fraudulent con- 
 spiracy entered into by and between Irving 
 W. Stanton, register of the land-office, Charles 
 A. Cook, receiver for the land-district, at 
 Pueblo, in Colorado, Alexander C. Hunt, and 
 others unknown, who, it is alleged, organized 
 and had incorporated the Southern Colorado 
 Coal & Town Company. In furtherance of 
 this conspiracy, and as the means of ac- 
 complishing .its purpose, it is alleged "that 
 neither of the supposed pre-emptors of the 
 land as aforesaid described by their names, 
 as stated in said several proofs of pre-emp- 
 tion, or in the said certificates of location, 
 ever settled upon the said lands, or im- 
 proved the same, as represented in said sev- 
 eral proofs of pre-emptioni and that no per- 
 son or persons whatsoever, as represented 
 in either of said certificates of location, ap- 
 peared or presented himself before said 
 Stanton or Cook, or either of them, at any 
 time, and made proof of pre-emption or 
 agricultural college scrip location, either as 
 pre-emptor or as witness for any pre-emp- 
 tor as aforesaid described, as in and by 
 said proofs of preremption and location cer- 
 tificates, or either of them, as aforesaid, is 
 supposed, but that the same, and each of 
 them, are false and fraudulent, and were 
 designed, made, and executed by said Stan- 
 ton and Cook and said Hunt, and the said 
 persons to your orator unknown, or some one 
 or more of them, in the manner aforesaid, 
 and for the purpose of fraudulently depriving 
 your orator of its title to the said pieces of 
 land." 
 
 It is further alleged that all the said sup- 
 posed pre-emptors are fictitious persons, and 
 their names are fictitious names, and that the 
 supposed names that appear as witnesses to 
 the said several proofs of pre-emption are 
 fictitious names, and that no such person or 
 persons, either as pre-emptors or as wit- 
 nesses, have ever lived or been known in the 
 county of Las Animas, where said pieces and 
 parcels of land are located, and, in fact, that 
 no such persons exist. 
 
 It is further alleged in the bill "that the 
 aforesaid pieces and parcels of land are not 
 agricultural land, and are not suitable for 
 agricultural or grazing purposes, and are of 
 no value for any purpose except for the coal 
 deposits therein contained. * * « That 
 the said several pieces and parcels of land 
 contain large and valuable deposits of coal, 
 and that the said deposits of coal were 
 known to the said Stanton and Cook and said 
 Hunt, and to the said person or persons to 
 your orator unknown, who wrote out, signed, 
 and executed, or caused to be written out, 
 signed, and executed, the several proofs of 
 pre-emption and non-mineral affidavits at the 
 
 355 
 
Case No. 124] PRODUCTIOX AND EFFECT OF EVIDENCE, 
 
 time the said several proofs of pre-emption 
 and non-mineral affidavits were made out, 
 signed, and executed." 
 
 It is also charged in the bill that the said 
 Hunt was a stockholder in the Southern Gol- 
 orada Coal & Town Company, and general 
 manager of its business, and that the in- 
 corporators of said company and the trustees 
 thereof, including William S. Jackson, "knew 
 at the time the aforesaid described land was 
 con-s-eyed to said company by said William 
 S. .Tackson, as hereinbefore described, that 
 the several patents to said several pieces and 
 parcels of land had been fraudulently ob- 
 tained from your orator, and knew that the 
 said several supposed pre-emptors and pat- 
 entees were myths and fictitious persons, and 
 kuew that the said Jackson had no right, ti- 
 tle, or interest in said land, or any part 
 thereof." 
 
 The answer of the Southern Colorado Coal 
 & Town Company, tiled November 2, 1881, 
 specifically denies all the allegations of the 
 bill alleging fraud, and denies that the said 
 lands, or any portion of them, were mineral 
 lands in the sense of not being lands capable 
 of being acquired under the pre-emption 
 law, and sets up by way of further defense 
 that it was a purchaser of all the said lands 
 in good faith for a valuable consideration 
 without any knowledge or notice whatever 
 of any or either of the pretended fraudulent 
 acts and conspiracies in the bill alleged. 
 Louis H. Meyer, on June 5, 1882, answered 
 to the same effect, and by a stipulation the 
 answer of the Southern Colorado Coal & 
 Town Company was directed to stand as. the 
 answer of the Colorado Coal & Iron Com- 
 pany. Replications were duly filed, and the 
 cause was heard on a large amount of proofs, 
 resulting in a decree in favor of the com- 
 plainant, declaring all the patents in the bill 
 mentioned, and the subsequent conveyances 
 of the land therein described to the defend- 
 ants, to be fraudulent and void, and decree- 
 ing that they should be held for naught, and 
 be delivered up to be canceled. The present 
 appeal is from that decree. 
 
 It was held by the circuit court that the 
 charge in the bill that the supposed pre- 
 emptors and patentees were fictitious per- 
 sons, having no existence, was sufficiently 
 proved; that, consequently, there being no 
 grantees, no legal title passed from the Unit- 
 ed States; and that, as the defendants ac- 
 quired no legal title by virtue of the sup- 
 posed conveyances to them, they cannot 
 claim protection as bona fide purchasers for 
 value without notice of the fraud. 18 Fed. 
 273. 
 
 It is fully established by the evidence that 
 there were in fact no actual settlements and 
 improvements on any of the lands, as falsely 
 set out in the affidavits in support of the 
 pre-emption claims, and in the certificates is- 
 sued thereon. This undoubtedly constituted 
 a fraud upon the United States sufficient in 
 equity, as against the parties perpetrating 
 
 356 
 
 It, or those claiming under them with notice 
 of it, to justify the cancellation of the pat- 
 ents issued to them; but it is not such a 
 fraud as prevents the passing, of the legal ti- 
 tle by the patents. It follows that, to a bill 
 in equity to cancel the patents upon these 
 grounds alone, the defense of a bona fide pur- 
 chaser for value without notice is perfect. 
 
 In reference to such a case, it was said by 
 this court in U. S. v. Minor, 114 U. S. 23ij, 
 243, 5 Sup. Ct. S36: "Where the patent is 
 the result of nothing but fraud and perjury, 
 it is enough to hold that it conveys the legal 
 title, and it would be going quite too far to 
 say that it cannot be assailed by a proceed- 
 ing in equity, and set aside as void, if the 
 fraud is proved, and there are no innocent 
 holders for value." Meader v. Norton, 11 
 Wall. 442, 458. It is, indeed, an elementary 
 doctrine of equity that, where a grantor has 
 been induced by fraud to part with the legal 
 title to his property, he cannot reclaim it 
 from subsequent innocent purchasers for 
 value. Hence it becomes necessary, to sup- 
 port the decree of the circuit court, to main- 
 tain, as that court declared, that the legal 
 title to the lands in question did not pass 
 from the United States by virtue of the pat- 
 ents, because there were in fact no grantees^ 
 And it was that proposition of fact which, by 
 the proofs introduced into the cause, the 
 United States undertook to establish. The 
 evidence on that point is found in the deposi- 
 tions of 14 persons examined as witnesses. 
 They were called to prove, and did prove, in 
 the first place, in respect to the several tracts 
 of land in controversy, the facts that they 
 had not been settled upon, and that no im- 
 provements had been made upon them by 
 any person. They also testified, in sub- 
 stance, that they were acquainted, at the 
 time of the transactions, with the lands, and 
 were acquainted with the people then living 
 in Las Animas county, some of them stating 
 that they knew every white man residing at 
 that time therein; that with the exception of 
 one person, named JIartine, there were no 
 persons in the county at the time bearing 
 the names specified as pre-emption claimants, 
 and no persons bearing the names subscribed 
 as witnesses to their statements; and that 
 they never saw or heard of persons residing 
 in the county having such names. This is 
 the extent of this description of evidence, 
 the weight of which Is to be estimated In 
 connection with the fact that the county of 
 Las Animas, although sparsely settled, em- 
 braces an area extending about 1.50 miles 
 from east to west, and about 40 miles from 
 north to south. In corroboration of it, testi- 
 mony was introduced, on behalf of the Unit- 
 ed States, of experts in handwriting, with a 
 view of establishing, by a comparison of the 
 documents, that they were fabricated; which, 
 however, was met by the opposing opinions 
 of other experts called on the part of the de- 
 fendants. This evidence we think not only 
 Inconclusive, but entitled to no weight, not at 
 
BURDEN OF PKOOF. 
 
 [Case No. 124 
 
 all supporting the Inference sought to be 
 drawn, tliat the same handwriting Is trace- 
 able in the signatures of the various names. 
 The conclusion, if warranted at all, must de- 
 pend upon the statements of the other wit- 
 nesses, the suhstauce of whose testimony 
 has already been given, and such presump- 
 tions of fact or law as legitimately arise 
 thereon. 
 
 It is charged in the bill that these title 
 papers were falsely and fraudulently made 
 by the register and receiver, combining with 
 Hunt and others uulinown in a conspiracy 
 for that purpose; but there is no direct 
 proof of such a conspiracy. It is sought to 
 be inferred from the fact that the pre-emp- 
 tion statements were falsely made, and 
 from the evidence tending to sliow that the 
 persons named were fictitious. There is no 
 proof to connect the register and receiver 
 with such a conspiracy, except the fact that 
 the affidavits purport to have been made be- 
 fore them, and were certified to by them. 
 Hunt's connection with it rests upon the 
 fact that he procured deeds from the sup- 
 posed patentees, conveying the lands to 
 Jackson in pursuance of a bargain with liim. 
 It may well be admitted that if there were 
 no actual persons who made applications as 
 pre-emption settlers, none who made and 
 signed the necessary declarations and alB- 
 davits, and no persons as witnesses who at- 
 tested the same, the register and receiver 
 must have known the fact; but the fact of 
 the conspiracy depends upon prior proof that 
 the alleged transactions were mere fictions. 
 The proof necessary to justify that conclu- 
 sion is supposed to be found in the facts 
 testified to by the witnesses, a summary of 
 which has been given. 
 
 It certainly does not follow that no such 
 persons in fact existed, as a necessary con- 
 clusion from the testimony of these witness- 
 es that they knew no such persons as named 
 in these papers. The utmost that can be 
 said, as was said by the learned judge of the 
 circuit court in delivering judgment in the 
 case, is that "if none of them were ever in 
 the county, and no improvements were ever 
 made upon the land, then the proofs upon 
 which the patents issued were false, and 
 the inference that the papers were manu- 
 factured without the presence of any per- 
 sons beai'ing or assuming the names of the 
 patentees is not more unreasonable than 
 would be the inference that 61 actual per- 
 sons committed perjury themselves, and sub- 
 orned as many others to perjure tlremselves 
 as witnesses, in order to acquire the title." 
 This, it is argued, establishes at least that 
 it is more probable that the grantees were 
 fictitious than that they were real persons,- 
 and that, in view of the difficulty, if not the 
 impossibility, of proving the negative propo- 
 sition that no such persons existed, and of 
 the fact that the defendants connect their 
 title and right with a transaction which 
 must have occurred with these grantees if 
 
 they had an actual existence, the burden of 
 proof is shifted from the United States to 
 the defendants, and that, as the latter in- 
 troduced no evidence tending to show the 
 fact as they claimed it to be, the case of the 
 complainants must be considered as estab- 
 lished by a preponderance of proof. 
 
 We have had recent occasion to consider 
 the question of the character and degree of 
 pi'oof necessary in such cases to invalidate 
 titles held by purchasers in good faith fol 
 value, and without notice, under patents 
 issued by the United States. In Maxwell 
 Land-Grant Case, 121 U. S. :>,2rj, 379, 7 Sup. 
 Ct. 101.5. it is said: "The deliberate action 
 of the tribunals to which the law commits 
 the determination of all preliminary ques- 
 tions, and the control of the processes by 
 which this evidence of title is issued to the 
 grantee, demands that to annul such an in- 
 strument, and destroy the title claimed un- 
 der it, the facts on which this action is 
 asked for must be clearly established by 
 evidence entirely satisfactory to the court, 
 and that the case itself must be entirely 
 within the class of causes for which such 
 an Instrument may be avoided. * * * We 
 take the general doctrine to be that when, 
 in a court of equity, it is proposed to set 
 aside, to annul, or to correct a written in- 
 strument for fraud or mistake in the exe- 
 cution of the instrument itself, the testi- 
 mony on which this is done must be clear, 
 unequivocal, and convincing, and that it 
 cannot be done upon a bafe preponderance 
 of evidence which leaves the issue in doubt. 
 If the proposition, as thus laid down in the 
 cases cited, is sound in regard to the or- 
 dinary contracts of private individuals, how 
 much more should it be observed where the 
 attempt is to annul the grants, the patents, 
 and other solemn evidences of title emanat- 
 ing from the government of the United 
 States under its official seal. In this class 
 of cases, the respect due to a patent, the 
 presumptions that all the preceding steps 
 required by the law had been observed be- 
 fore its issue, the immense importance and 
 necessity of the stability of titles dependent 
 upon these official insliuments, demand that 
 the effort to set them aside, to annul them, 
 or to correct mistakes in them should only 
 be successful when the allegations on which 
 this is attempted are clearly stated, and 
 fully sustained by proof. It is not to be ad- 
 mitted that the titles by which so much 
 property in this country and so many rights 
 are held, purporting to emanate from the 
 authoritative action of the officers of the 
 government, and, as in this case, under the 
 seal and signature of the president of the 
 United States himself, shall be dependent 
 upon the hazard of successful resistance to 
 the whims and caiirices of every person 
 who chooses to attack them in a court of 
 justice; but it should be well understood 
 that only that class of evidence which com- 
 mands respect, and that amount of it which 
 
 357 
 
Case Xo. 121] PRODUCTION AXD EFFECT OF EVIDENCE. 
 
 produces conviction, shall make such an at- 
 tempt successful." 
 
 It thus appears that the title of the de- 
 fendants rests upon the strongest presump- 
 tions of fact, which, although they may be 
 rebutted, nevertheless can be overthrown 
 only by full proofs to the contrary, clear, 
 convincing, and unambiguous. The burden 
 of producing these proofs, and establishing 
 the conclusion to which they are directed, 
 rests upon the government. Neither is it 
 relieved of this obligation by the negative 
 nature of the proposition it Is bound to es- 
 tablish. It is, indeed, sometimes said that 
 a negative is incapable of proof, but this is 
 not a maxim of the law. In the language 
 of an eminent text writer: "When the 
 negative ceases to be a simple one, — when it 
 is qualified by time, place, or circumstance, 
 — much of this objection is removed; and 
 proof of a negative may very reasonably be 
 required when the qualifying circumstances 
 are the direct matter in issue, or the affirma- 
 tive is either probable in itself, or supported 
 by a presumption, or peculiar means of 
 proof are in the hands of the party assert- 
 ing the negative." Best, Ev. (Am. Ed.) 1883, 
 § 270. So, also. Id. § 273: "When a pre- 
 sumption is in favor of the party who as- 
 serts the negative, it only alfords an addi- 
 tional reason for casting the burden of proof 
 on his adversary; it is when a presumption 
 is in favor of the party who asserts the 
 affli'mative that its effect becomes visible, 
 as the opposite side is then bound to prove 
 his negative." Also Id. § 276: "This appears 
 from the case of Doe v. Whitehead, 8 Adol. 
 & E. 571, which was an ejectment by a land- 
 lord against a tenant on an alleged forfei- 
 ture by breach of a covenant in his lease to 
 insure against flre in some office in or near 
 Iiondon, in whic^ it was contended that it lay 
 on the defendant to show that he had in- 
 sured, that being a fact within his peculiar 
 knowledge. The argument ab inconvenienti 
 was strongly urged, viz., that the plaintiff 
 could not bring persons from every insur- 
 ance office In or near London to show that 
 no such insurance had been effected by the 
 defendant, and Eex v. Turner, 5 Maule & S. 
 200, Apothecaries' Co. v. Bentley, Ryan & 
 M. 159, and some other cases of that class, 
 were cited. But Lord Deuman, C. .7., in de- 
 livering judgment, said: 'I do not dispute 
 the cases on the game laws which have been 
 cited; but there the defendant is in the 
 first instance shown to have done an act 
 which was unlawful unless he was qualified, 
 and then the proof of qualification is thrown 
 upon the defendant. Here the plaintiff re- 
 lies on some thing done or permitted by the 
 lessee, and takes upon himself the burden 
 of proving that fact. The proof may be dif- 
 ficult where the matter is peculiarly within 
 the defendant's knowledge, but that does 
 not vary the rule of law.' And in the same 
 case Littledale, .1., said: 'In the cases cited 
 as to game, the defendant had to bring him- 
 
 358 
 
 self within the protection of the statutes; 
 and a like observation applies to Apothe- 
 caries' Co. v. Bentley. But here, where a 
 landlord brings an action to defeat the es- 
 tate granted to the lessee, the onus of proof 
 ought to lie on the plaintiff.' And this rul- 
 ing has been upheld by subsequent cases. 
 Toleman v. Portbury, L. R. 5 Q. B. 288; 
 Wedgwood v. Hart, 2 Jur. (N. S.) 288; Price 
 V. Worwood, 4 Hurl. & N. 512." 
 
 Mr. Greenleaf states the rule in equiva- 
 lent terms. He says (1 Greenl. Ev. § 78): 
 "To this general rule, that the burden of 
 proof is on the party holding the affirmative, 
 there are some exceptions, in which the 
 proposition, though negative in its terms, 
 must be proved by the party who states it. 
 One class of these exceptions will be found 
 to include those cases in which the plaintiff 
 grounds his right of action upon a negative 
 allegation, and where, of course, this nega- 
 tive is an essential element in his case." 
 And in section 80: "So, where the negative 
 allegation involves a charge of criminal neg- 
 lect of duty, whether official or otherwise, 
 or fraud, or the wrongful violation of actual 
 lawful possession of property, the party 
 making the allegation must prove it; for in 
 these cases the presumption of law, which 
 is always in favor of innocence and auiet 
 possession, is in favor of the party charged." 
 
 In the present case the facts shown are, 
 in our opinion, not sufficient to overcome 
 the presumption of innocence on the part of 
 the register and receiver of fhe land-office. 
 It Is quite consistent with these facts that 
 real persons, whether under their own or 
 under assumed names, did actually appear 
 before them and make pre-emption claims. 
 There is no testimony whatever tending to 
 establish directly any complicity on their 
 part with the fraud which may have been 
 practiced upon them, and not through them. 
 It is certain that there were real persons' 
 acting in the matter. The purchase price 
 due on the entry of the lands was in fact 
 paid. There is no proof of any actual fab- 
 rication of the ixapers, the genuineness of 
 which is not negatived by any internal evi- 
 dence. The allegations in the bill that they 
 were in fact manufactured by the register 
 and receiver and Hunt, or by any one with 
 their connivance, are entirely unsupported 
 by direct evidence. 
 
 It is alleaed in the bill, also, that "by the 
 rules and regulations which then and since 
 have governed it in the issue of patents for 
 land located with agricultural college scrip, 
 no patent was issued by your orator except 
 on presentation at its general land-office by 
 the person making such location, his agent 
 or his assign, of the duplicate certificate as 
 aforesaid delivered to the locator for the land 
 for which a patent is claimed," and "that 
 after the forwarding by the said Stanton and 
 Cook of said supposed proofs of pre-emption, 
 said agi-icultural college scrip, said money, 
 said non-mineral affidavit, and said dupli- 
 
BURDEN OF PKOOF. 
 
 [Case No. 124 
 
 cate certificate, in each of the said pretended 
 pre-emption claims as aforesaid mentioned, 
 to your orator's general land-of&ce at AVasli- 
 ington, the said Alexander C. Hunt, pretend- 
 ing to act as agent of each of said supposed 
 pre-emptors, presented to the officers of the 
 general land-office such other duplicate certiti- 
 cates of location, and requested said officers 
 to cause a patent for each of the said several 
 pieces of land to issue from your orator to the 
 said supposed persons in eacli case purport- 
 ing to claim and apply for the same." And 
 it is added that the officers of the general 
 land-office, confiding in the honesty of the 
 register and receiver, and believing the state- 
 ments contained in the proofs to be true, did 
 issue its patents therefor. The allegation is 
 that the patents vrere issued to Hunt. In 
 point of fact, it appears from the evidence 
 that a number of patents were delivered to 
 Brltton «& Gray, W. P. Dunwoody, and W. W. 
 Cowling, respectively, through whom the du- 
 plicate certificates were presented to the gen- 
 eral land-office for that purpose. There is no 
 allegation that these were not real persons, 
 nor are any charges made against them as 
 participants in the fraud. They professed to 
 represent the parties entitled to the patents; 
 they must have known for whom in fact they 
 were acting. There is nothing to show that 
 they were not accessible as witnesses. From 
 the correspondence in the record it appears 
 that Britton & Gray were transacting busi- 
 ness in the city of Washington, and that Cow- 
 ling was also a resident of the District of 
 Columbia. None of these parties were called 
 by the government as witnesses. AVhatever 
 may be said as an excuse for the failure to 
 call Hunt and Stanton and Cook, on the 
 ground that they are charged with being the 
 actual conspirators in the fraud, no reason 
 can be assigned for not calling Britton & 
 Gray, Dunwoody, and Cowling. 
 
 Neither do we think the reason assigned as 
 an excuse, on the part of the government, for 
 not calling the register and receiver as wit- 
 nesses, is valid or satisfactory. One of them, 
 it was said at the bar, had died. But the oth- 
 er might and ought to have been examined. 
 He was one of its own officers, through whom 
 the government had received the price of the 
 lands sold, and which it has ever since re- 
 tained. If his official conduct was impugned, 
 nevertheless his misconduct, if proved, was 
 not imputable to the defendants, and they 
 should not be pre.iudiced by the odium of an 
 accusation against him. The United States 
 had trusted him, and, inspired by that con- 
 fidence, the defendants also had relied upon 
 his official acts. In this faith they had paid 
 full value for what they had reason to be- 
 lieve was a perfect title. They were not ac- 
 cused of any complicity with, nor had they 
 any knowledge of, the fraud charged. In the 
 absence of direct proof of his guilt, the gov- 
 ernment could not properly treat the defend- 
 ants as his confederates, nor deprive them of 
 any defense which as a witness he might be 
 
 able to make for himself. The United States 
 had no higher interest at stake than to estab- 
 lish the truth and justice of the transaction. 
 It was due from it to these parties, whose 
 estate this suit was instituted to defeat, to 
 produce and examine as witnesses those who 
 must have had the best knowledge of the 
 facts, so as not to force the defendants to ex- 
 planations which, by the very theory of their 
 innocence and ignorance, they were incapable 
 of making. To raise a suspicion, however 
 strong, of the fraud and wrong-doing of its 
 own officers is. not enough to justify the gov- 
 ernment in casting upon the defendants the 
 burden of establishing their title. 
 
 In addition warranty deeds, made to Jack- 
 son as trustee, were put in evidence by the 
 government, reciting a consideration in each 
 case, amounting in the aggregate to $52,200, 
 to the payment of which Jackson also testi- 
 fies. PJach of these deeds was executed, ac- 
 knowledged, and recorded in conformity with 
 law. They were regular on their face, the 
 acknowledgments purporting to have been 
 taken by public officers before whom, it is 
 recited, the grantors severally appeared and 
 acknowledged their execution. These offi- 
 cers, if called and examined as witnesses, 
 would probably have thrown some light up- 
 on the transaction, and should have been ex- 
 amined upon the points in issue. It is to be 
 presumed that they could have testified 
 whether any persons in fact appeared before 
 them at the times and places named in their 
 certificates, and whether, if so, they were 
 identified as being the persons named as 
 grantors in the deeds. None of them were in 
 fact called on the part of the United States, 
 and no reason is assigned for not having 
 done so. It thus appears that the govern- 
 ment (lid not make all the proof of which the 
 nature of the case was susceptible, and which 
 was apparently within its reach. 
 
 On the other hand, the defendants, by their 
 evidence, have fully established all the steps 
 by which they became connected with the 
 transaction. The lands were bought and paid 
 for at their full value by William S. Jack- 
 son, acting for himself and associates, who 
 united together for the pm-pose of making 
 purchases of land in that region, upon Jack- 
 son's belief and assurance of its ultimate 
 value, expecting it to increase by the building 
 of railroads and general growth of the coun- 
 try. He an-anged with Hunt, who was en- 
 gaged in dealing in lands, and had been gov- 
 ernor of the territory, to pay for titles to such 
 lands as he might accept. Hunt submitted 
 to him descriptions of lands which he said 
 he could control, from which Jackson made 
 selections. For these Hunt sent to Jackson 
 deeds duly executed, attested, and acknowl- 
 edged, accompanied by receiver's certificates 
 in regular form, showing that the party nam- 
 ed as grantor was entitled to a patent. These 
 he was advised by counsel to accept, and did 
 accept in good faith, as being equivalent to 
 patents. In many instances the patents were 
 
 35ii 
 
Case ]Slo. 124] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 issued before the deeds were executed. Jack- 
 son had no connection whatever with making 
 the proofs of pre-emption, and had no knowl- 
 edge in reference thereto, except such as was 
 disclosed by the deeds and certificates, in re- 
 liance upon which, and without visiting the 
 lands, or having them examined, he bought. 
 The deeds to .Jackson were duly acknowledg- 
 ed before competent officers by persons cer- 
 tified to be the grantors therein named. TQie 
 transactions were several, as regards the vari- 
 ous tracts of land, and successive, during 
 more than two years, the deeds being deliver- ' 
 ed within a period extending from May 2, 
 1873, to May 21, 1875. The circumstance that 
 many of the acknowledgments of the deeds 
 were taken in Arapahoe county before a no- 
 tary in Hunt's office, while the grantors pur- 
 ported to be residents of Las Animas county, 
 was not calculated to raise any suspicion of 
 fraud, as Jackson supposed that Hunt was 
 dealing with the pre-emptors, and was pro- 
 curing their deeds to be executed for delivery 
 to him, and it was natural to expect that this 
 would be done at Hunt's own office. In fact, 
 14 of the acknowledgments were taken be- 
 fore other officers, and some of them in Las 
 Animas county. That Jackson and his as- 
 signs, the coal and town company, and its 
 successor, the coal and iron company, in good 
 faith believed that they had acquired a valid 
 title to these lands, is manifest from their 
 subsequent dealing with them. They not on- 
 ly paid full value for the lands in the con- 
 dition in which they were, but they made 
 large investments thereon in the way of im- 
 provements. At the time of the organization 
 of the consolidated company there were up- 
 on the premises described In the bill coke- 
 ovens, and machinery in connection there- 
 with, buildings constituting the town of El 
 Moro, and coal-mine improvements, consist- 
 ing of entries,, rooms, gangways, tracks, 
 chutes, repair-shops, houses, and store build- 
 ings. Coal was then, between 6 and 7 years 
 after Jackson's purchase, being mined upon 
 one quarter section, and the town of El Moro 
 covered 30 or 40 acres, comprising 20 to 25 
 buildings, erected by various individuals, to 
 whom the company had sold lots, in accord- 
 ance with a regular survey and map of the 
 town-site. The entire value of the mine and 
 coke improvements was estimated to be about 
 $250,000. The property was used by the com- 
 pany in connection with works which they 
 had established at South Pueblo for the manu- 
 facture of iron and steel, on which there had 
 been an expenditure of from one to two mil- 
 lions of dollars, the coal and coke necessary 
 for carrying on which was obtained from the 
 coal mines on part of the premises in dis- 
 pute. As against interests of this magnitude 
 and value vested upon a claim of title, the 
 good faith of which on the part of the defend- 
 ants is absolutely unimpeached, the proof of 
 a fraud which renders their title absolutely 
 void should be stronger than the legal pre- 
 sumptions on which it may rightfully rest. 
 
 360 
 
 It is urged in argument by the solicitor gen- 
 eral that this case cannot be distinguished 
 from that of Moffat v. U. S., 112 U. S. 24, 5 
 Sup. Ct. 10. The two cases are undoubtedly 
 similar in their general aspects, but, never- 
 theless, differ in some particulars most ma- 
 terial to the decision. It is stated in the re- 
 port of the case cited that "the testimony 
 taken fully established the truth of the al- 
 legations and charges, except as to the knowl- 
 edge by MofCat and Carr of the alleged 
 frauds." The charges proven, or to be taken 
 as proven, therefore, as set forth in the bill, 
 were that the title papers in the case were 
 manufactured by a clerk in the office of the 
 receiver, and that the receiver was also the 
 owner of the agricultural college scrip used 
 to pay for the lands located, and that, for the 
 purpose of locating the land with It in the 
 name of Quinlan, the register and receivei 
 had insei'ted in a blank indorsement his fic- 
 titious name and residence, and in that name 
 had located the scrip on the land, there being 
 no such person, nor any settlement and Im- 
 provement on the land; and that the dupli- 
 cate certificate on which the patent issued 
 was presented to the general land-office by 
 the defendant himself, who was thus brought 
 into direct connection with the officers who 
 had committed the fraud, and with the trans- 
 action before the issue of the patent. In that 
 case Moffat did not offer his deed in evidence, 
 was not examined as a witness, and attempt- 
 ed no proof either of his own innocence, or 
 of the payment of value, but stood without 
 explanation as to. who his immediate grantors 
 were, or how he came in contact with them. 
 Ilie receiver was examined as a witness, but 
 wholly failed to meet the charges alleged 
 against him. There was further proof tend- 
 ing to show that the acknowledgments of the 
 deeds to Moffat had been taken without iden- 
 tification of the grantors from whom MofiEat 
 received his deeds directly, and in respect to 
 whom he must have had some knowledge. 
 These circumstances, in our opinion, clearly 
 distinguish that case from the present one. 
 
 There is, however, another ground on 
 which it is contended by the government 
 that the patents described in the bill are 
 void. It is alleged that the lands in conti-o- 
 versy were not subject to settlement and 
 sale under the pre-emption laws, being 
 "known mines" within the description of 
 those laws'. The act of September 4, 1841 
 (5 Stat. 455, c. 16, § 10), provided that no pre- 
 emption entry should be made on "lands on 
 which are situated any known salines or 
 mines." By the act of July 1, 1864 (13 Stat. 
 343. c. 205, § 1), it is enacted "that where 
 any tracts embracing coal-beds or coal-fields 
 constituting portions of the public domain, 
 and which as 'mines' are excluded from the 
 pre-emption act of 1841, and which under 
 past legislation are not liable to ordinary 
 private entry, it shall and may be lawful 
 for the president to cause such tracts, in 
 suitable legal subdivisions, to be offered at 
 
BURDEN OF PROOF. 
 
 [Case No. 124 
 
 public sale to the highest bidder, after pub- 
 lic notice of not less than three months, at 
 -a minimum price of twenty dollars per acre; 
 and any lands not thus disposed of shall 
 thereafter be liable to private entry at said 
 minimum." 
 
 The language of the pre-emption act of 
 1841 is preserved in section 2258, Rev. St. 
 The act of 1801 and its supplemental act of 
 March 3, 1!SG5 (13 Stat. 529, e, 107), were sub- 
 stantially re-enacted toy the act of March 3, 
 1873 (17 Stat. 007, c. 279), now embodied in 
 ■section 2347, Rev. St., and the sections im- 
 mediately following. The force and mean- 
 ing of the original legislation remains un- 
 changed. The subsequent provisions relate 
 to the classification and terms and mode of 
 ■entry and sale of the coal lands excluded 
 from pre-emption by the laws on that sub- 
 ject. In reference to coal lands, which are 
 noted on public survey.s and plats as such, of 
 course it is not to be disputed that their char- 
 :acter is thereby made known so as to with- 
 <iraw them from entry under the pre-emp- 
 tion and homestead acts. Where this is not 
 •done it remains, as in the present case, to 
 -determine how the character of the lands 
 is to be ascertained, so that they may be 
 ■classified as those "on which are situated 
 jmy known salines or mines." 
 
 It is argued by the solicitor general, upon 
 the facts as disclosed by the evidence in 
 this record, that tlie lands covered by these 
 patents embraced "known mines" ot coal, 
 and that, as such lands are expressly ex- 
 ■cepted out of the pre-emption laws, the pat- 
 ents issued therefor were void for want of 
 power on the part of the officer to issue 
 them, as decided in Polk v. Wendall, 9 
 Cranch, 87; Minter v. Crommeliu, 18 How. 
 87; Reichart v. Felps, 6 Wall. 100; Morton 
 V. Nebraska, 21 Wall. 000. In the last-nam- 
 ■ed case, Morton v. Nebraska, it was said 
 <page 674): "The salines in this case were 
 not hidden as mines often are, but were so 
 incrusted with salt that they resembled 
 ■'snow-covered lakes,' and were consequently 
 not subject to pre-emption." In McLaugh- 
 lin V. U. S., 107 U. S. 526, 2 Sup. Ct. 802, 
 the decree of the circuit court canceling 
 the patent, on the ground that it purported 
 to convey lands as part of a railroad grant, 
 which were excepted therefrom as mineral 
 lands, was affirmed. The court say (page 
 528): "It is satisfactorily proven, as we 
 think, that cinnabar, the mineral which car- 
 ries quicksilver, was found there as early 
 sus 1863; that a man named Powell resided 
 on the land, and mined this cinnabar, at 
 that time, and in 1866 established some form 
 ■of reduction-works there; that these were 
 ■on the ground when application for the pat- 
 ent was made by the defendant McLaugh- 
 Jin, as agent of the Western Pacific Railroad 
 I'ompany, and that these facts were known 
 to him. He is not, therefore, an innocent 
 purchaser." See Railroad Co. v. U. S., 108 
 V. S. 510, 2 Sup. Ct. 802. 
 
 In the case of Mullan v. U. S., 118 U S. 
 271, 6 Sup. Ct. 1041, after referring to the 
 acts of congress above recited, the court, 
 s-.peaking of the act of July 1, 1864, say (page 
 277, 118 U. S., and page 1041, 6 Sup. Ct.): 
 "This is clearly a legislative declaration that 
 'Ifnown' coal lands were mineral lands with- 
 in the meaning of that term as used in stat- 
 utes regulating the public lands, unless a 
 contrary intention of congress was clearly 
 manifested. Whatever doubt there may be 
 as to the effect of this declaration on past 
 transactions, it is clear tliat, after it was 
 made, coal lands were to be treated as min- 
 eral lands. That the land now in dispute 
 was 'known' coal land at the time it was 
 selected no one can doubt. It had been 
 worked as a mine for many years before, 
 and it had upon its surface all the applian- 
 ces necessary for reaching, taking out, ai^d 
 delivering the coal. That Barnard Isnew 
 what it was when he asked for its location 
 for his use is absolutely certain, because he 
 was one of the agents of the coal company 
 at the time, and undoubtedly acted in its 
 behalf in all that he did. If Mullan and 
 Avery were ignorant ot the fact when they 
 acquired their respective interests in the 
 property, it was because they willfully shut 
 their eyes to what was going on around 
 them, and purposely kept themselves in ig- 
 norance of notorious facts. But the evi- 
 dence satisfies us entirely that they were 
 not ignorant." 
 
 It will thus be seen that, so far as the de- 
 cisions of this couit have heretofore gone, no 
 lands have been held to be "known mines" 
 unless at the time the rights of the purchas- 
 er accrued there was upon the ground an 
 actual and opened mine, which had been 
 worked, or was capablte of being worked. 
 
 In the case of Deffeback v. Hawke, 115 U. 
 S. 392, 6 Sup. Ct. 95, the legislation on the 
 subject was reviewed at length. It was there 
 held that no title from the United States to 
 land known at the time of sale to be valu- 
 able for its minerals of gold, silver, cinna- 
 bar, or copper can be obtained under the 
 pre-emption or homestead laws, or the town- 
 site laws, or in any other way than as pre- 
 scribed by the laws specially authorizing the 
 sale of such land, except in the states of 
 Michigan, Wisconsin, Minnesota, Missouri, 
 and Kansas. The court say (page 404, 
 115 U. S., and page 95, 6 Sup. Ct.): "We say 
 'land known at the time to be valuable for 
 its minerals,' as there are vast tracts of pub- 
 lic land in which minerals of different kinds 
 are found, but not in such quantity as to 
 justify expenditures in the effort to extract 
 them. It is not to such lands that the term 
 'mineral,' in the sense of the statute, is ap- 
 plicable. « * * We also say lands known 
 at the time of their sale to be thus valuable, 
 in order to avoid any possible conclusion 
 against the validity of titles which may be 
 issued for other kinds of land in which years 
 afterwards rich deposits of mineral may be 
 
 301 
 
Case No. 124] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 discoyered. It is quite possible tliat lands 
 settled upon as suitable only tor agricultural 
 purposes, entered by the settler, aud patent- 
 ed by the government, under the pre-emp- 
 tion laws, may be found, years after the pat- 
 ent has been issued, to contain valuable min- 
 erals. Indeed, this has often happened. We 
 therefore use the term 'known to be valua- 
 ble at the time of sale,' to prevent any doubt 
 being cjsst upon titles to lands afterwards 
 found to be dilt'erent in their mineral char- 
 acter from what was supposed when the en- 
 try of them was made and the patent is- 
 sued." 
 
 It is not sufficient, in our opinion, to con- 
 stitute "known mines" of coal, within the 
 meaning of the statute, that there should 
 merely be indications of coal-beds or coal- 
 fields of greater or less extent, and of great- 
 er or less value, as sho■^^•n Ijy out-eroppings. 
 The act of lSii4 evidently contemplates a 
 distinction between coal-beds ov coal-flelds 
 excluded from the pre-emption act of 1S41 
 as "laiown mines," and other coal-beds or 
 coal-flelds not coming within that descrip- 
 tion. We hold, therefore, that to constitute 
 the exemption (■ontenii)l;ited by the pre-emp- 
 tion act under the head of "known mines " 
 there should be upon the land ascertained 
 coal deposits of such an extent and value as 
 to make the land more valuable to be work- 
 ed as a coal mine, under the conditions ex- 
 3G2 
 
 isting at the time, than for merely agricul- 
 tural purposes. The circumstance that 
 there are surface indications of the exist- 
 ence of veins of coal does not constitute a 
 mine. It does not even prove that the land 
 will ever be under any conditions sufficient- 
 ly valuable on account of its coal deposits to 
 be worked as a mine. A change in the con- 
 ditions occurring subsequently to the sale, 
 whereby new discoveries are made, or by 
 means whereof it may become profitable to- 
 work the veins as mines, cannot atCect the- 
 title as it passed at the time of the sale. 
 The question must be determined according 
 to the facts in existence at the time of the 
 sale. If upon the premises at that time- 
 there were not actual "known mines" capa- 
 ble of being profitably worked for their 
 product, so as to make the land more valu- 
 able for mining than for agriculture, a title 
 to them acquired under the pre-emption act 
 cannot be successfully assailed. In the 
 present case, the testimony, in our opinion, 
 does not justify us in finding that at the 
 time .Tackson acquirt-d his title there were- 
 upon any part of the premises in controver- 
 sy any "known mines" of coal, in the sense- 
 of the statute. 
 
 For these reasons the decree of the circuit 
 court is reversed, and the cause remanded, 
 with a direction to dismiss the bill; and it 
 is so ordered. 
 
EIGHT TO OPEN AND CLOSE. 
 
 [Case No. 12.5 
 
 LAKE ONTARIO NAT. BANK v. JUDSON. 
 
 (25 N. B. 367, 122 N. Y. 278.) 
 
 Court of Appeals of New York, Second Divi- 
 sion. Oct. 7, 1890. 
 
 Appeal from Biipreine court, general 
 term, fourth department. 
 
 The action was brought to recovfr the 
 amount offoiirproraisieor.y notes, wliich by 
 the complaint the plaintiff alleged were 
 made by the defendant, jDayable to the or- 
 der of E. M. Fort, delivered to the payee, 
 and by him indorsed and transferred to the 
 plaintiff. And the plaintiff also thereby al- 
 leged that the defendant was indebted to it, 
 inasum stated, for monity advanced on his 
 checks drawn upon the plaintiff for an 
 amount in excess of his deposits there. 
 The defendant by his answer alleged that 
 he and Foi-t purchased of the plaintiff 
 somecanal-boats; that they were induced 
 to make the purchase by the warranty of 
 the plaintiff, particularly specified, and 
 gave for them their joint notes; that, aft- 
 erwards, the plaintiff took up those notes, 
 and the makers gave their individual 
 notes for their respective interests in the 
 purchase to the plaintiff, which notes 
 were received by the plaintiff "in place of 
 and in payment of said first-mentioned 
 notes, and which notes last given are the 
 notes and the renewal thereof set forth in 
 the complaint." The defendant alleged a 
 breach of this warranty and damages as 
 the consequence, which he claimed should 
 be allowed to him. He also alleged by 
 waj' of counter-claim that the plaintiff 
 was Indeljted to him in a further sum for 
 services performed by him for and at the 
 request of the plaintiff, for which, with the 
 amount of damages for the alleged breach 
 of warranty, he demanded judgment. And 
 tor furtlier answer, he denied the com- 
 plaint, and each and every allegation 
 therein contained, except as thereinbefore 
 admitted. The plaintiff by reply pat in 
 issue the new matter of the answer con- 
 Htituting the alleged counter-claims. The 
 trial court directed judgment for the 
 amount of the notes and of the overdraft 
 mentioned in the complaint. 
 
 H. C. Benedict and Miller, Lewis & 
 Jadson, for appellant. 8. C. Hunting- 
 ton, Jr., for respondent. 
 
 BRADLEY, J., (after stating the facts 
 as above.) Theconteston thetrial mainly 
 had relation to the defendant's alleged 
 counter-claim for services, upon which 
 claim he gave evidence to the effect that 
 they were jjerformed by him pursuant to 
 an agreement with the plaintiff, by which 
 the latter undertook to pay him $2,500, of 
 which fl60 had been paid. This claim, 
 and the evidence on the part of the defend- 
 ant tending to support it, were disputed 
 by the evidence on the part of the plaintiff, 
 and the trial court found the facts against 
 the defendant. For the purpose of this re- 
 view, the findings and determination of 
 the court below must be deemed conclu- 
 sive. Upon the trial, the question as to 
 which party was entitled to the closing ar- 
 gument was raised. The court held that 
 the plaintiff had the right to it, and the 
 defendant excepted. 
 
 The rule that the party having the af- 
 firmative of the issues In an action shall 
 have the opportunity to make the open- 
 ing and closing presentation of his case is 
 deemed founded upon a substantial right, 
 the denial of which is error. Conselyea v. 
 .Swift, 103 N. Y. 604, 9 N. E. Rep. 489. In 
 Its application to trials by jury, it has or- 
 (Jinarily more riracticalimportance than in 
 those before the court without a jury, and 
 before referees. If it appears that a party 
 could not have been prejudiced by the fail- 
 ure of the court to observe the rule, the er- 
 ror would not be available; and in trials 
 by the court without jury, or before 
 referees, that question would be depend- 
 ent upon the circumstances of each case. 
 In the present case, the view of the court 
 evidently was that the affirmative of the 
 entire issues was not with the defendant; 
 and that is the question presented for con- 
 sideration. The denial by the defendant 
 in his answer, except as therein admitted, 
 of each and every allegation of the com- 
 plaint,putin issue any material allegation 
 of the complaint not distinctly admitted 
 bv the answer. Allis v. Leonard, 46 N. Y. 
 688; Callioun v. Hallen, 25 Hun, 155. The 
 charge in the complaint, in due form, of 
 the indebtedness of the defendant to the 
 plaintiff for the amount advanced to him 
 upon his check, in excess of the balance of 
 his account with the plaintiff, was not ad- 
 mitted by the answer, but was contro- 
 verted by such denial. It appears that 
 after the trial had been moved, and the 
 plaintiff by its counsel had, by statement 
 of it, made the opening of the case to the 
 court, the defendant orally admitted the 
 count of the complaint alleging the over- 
 draft. The plaintiff then proceeded to 
 prove the signature of the defendant to 
 the notes, and the indorsement by the 
 payee, and rested. It seems that the plain- 
 tiff deemed itnecessary to makethis proof, 
 perhajjs for the reason that the allegation 
 in the answer of the making and delivery 
 of the notes by the defendant to the plain- 
 tiff was treated as not sufficient upon 
 which to rest, coupled as it was with the 
 further allegation of their consideration 
 as the foundation of the counter-claim, al- 
 leged to have arisen out of a warranty 
 and its breach. The apprehension may 
 have been that the adoption of the admis- 
 sion in the answer of the making and de- 
 livery of the notes could not be severed 
 from what was alleged as the considera- 
 tion out of which they arose, within the 
 principle that when an admission of a fact 
 is made in connection with that of anoth- 
 er, which nullifies the effect of it, the entire 
 statement must be taken together. Gil- 
 dersleeve v. Landon. 73 N. Y. 609. Assum- 
 ing, as we do, that such rule of construc- 
 tion was not applicalile to this admission 
 in the answer, and that no proof of the 
 execution or indorsement of the notes was 
 necessary, the question arises whether the 
 oral admissions at the trial of the plain- 
 tiff's claim for the amount of the defend- 
 ant's overdraft .entitled him to tiie right 
 of closing the argument on the final sub- 
 mission of the case to the court for deter- 
 mination. And that depends upon the 
 question whether the affirmative of the is- 
 sue, with a view to such right, must be as- 
 
 3G3 
 
Oase No. 125] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 certained from the pleadings, or may arise 
 from admissions orally made at the trial. 
 The issues to be tried can be ascertained 
 only by reference to the pleadings; and 
 they must govern so far as relates to the 
 right of the parties to open the case at the 
 beginning and conclude the argument at 
 the clo.se of the trial. When the parties 
 go to trial, they respectively assume the 
 burden of establishing that vs'hich they 
 have affirmatively alleged as a cause of ac- 
 tion or counter-claim, If it is controverted 
 by allegation sufficient to put it in issue. 
 The admission of a fact upon the trial is 
 evidence merely. It may obviate the 
 necessity of lurilier trial of the issue to 
 which it relates, but does not change it as 
 represented by the pleadings. That can 
 be done by amendment only. It is true 
 the admission made at the trial may re- 
 duce the controversy to matter as to 
 which the affirmative is with the defend- 
 ant. Such would be the effect of evidence 
 of any character undisputed and indisput- 
 able of the facts constituting the alleged 
 cause of action. The right under consid- 
 eration does not depend simply upon the 
 admission of those facts unless they are 
 admitted or uncontroverted by the an- 
 swer; otherwiseitis evidence only. There 
 is no occasion to extend the rule so as to 
 give effect, for such pui-pose, to conces- 
 sions at the trial. This might lead to the 
 adoption of such a course, when further 
 dispute of the facts upon which a plaintiff 
 relies may appear hopeless to a defendant, 
 for the purpose of obtaining the right of 
 closing the trial. There is no apparent 
 reason for applying such rule to any one 
 more than to any other stage of the trial. 
 
 364 
 
 The defendant who may wish to take the 
 right of opening and concluding the trial 
 must frame his pleading with that view, 
 and so as to present no issue upon any al- 
 legation of the complaint essential to the 
 plaintiff's alleged cause of action. It the 
 defendant fail to do that, no matter how 
 little pr-oot the remaining issues require, or 
 how easily or in what manner it may be 
 established by evidence, the right of the 
 plaintiff to open and close the case is not 
 denied to him. Mercer v. Whall, 5 Adol. 
 & E. (N. S.) 447. The test is whether, 
 without any proof, the plaintiff upon the 
 pleadings is entitled to recover upon all 
 the causes of action alleged in his com- 
 plaint. If he is, and the defendant alleges 
 any counterclaim controverted by the 
 plaintiff's pleading, or any affirmative 
 matter of defense in avoidance of theplain- 
 tiff's allegtd cause of action, and which is 
 the subject of trial, the defendant has the 
 right to open and close; otherwise not. 
 Huntington v. Conkey, 33 Barb. 218; El- 
 well V. Chamberlin. 31 N. Y. 614; Murray 
 V. Insurance Co., 85 N. Y. 2.36. The pro- 
 duction of the note sued on and the com- 
 putation of interest proved are not em- 
 braced in the facts essential to the cause 
 of action. If the defendant, by permission 
 of the court, had stricken out the denial in 
 his answer, or amended it by inserting the 
 admission orally made, a different ques- 
 tion would have been presented at the 
 trial upon the claim of the defendant to 
 the right to conclude it. No other ques- 
 tion requires the expression of considera- 
 tion. The judgment should be affirmed. 
 All concur, except FOLLETT, C. J., not 
 sitting. 
 
EIGHT TO OPEJT AND CLOSE. 
 
 [Case No. 126 
 
 ST. LOUIS, I. M. & S. RY. CO. v. TAYLOR. 
 
 (20 S. W. 1083, 57 Ark. 136.) 
 
 Supreme Court of Arkansas. Jan. 7, 1893. 
 
 Appeal from circuit court, Jefferson coun- 
 ty; John M. Elliott, Judge. 
 
 Action by E. S. Taylor against the St. 
 Louis, Iron Mouutqin & Southern Raihvay 
 (jOJnpany to recover the value of a mule 
 killed through defendant's alleged negligence. 
 Judgment for plaintiff. Defendant appeals. 
 Affirmed. 
 
 In proving ownership of the mule for 
 ■which damages vs^ere sought to be recovered, 
 plaintiff was asked, "How long had you 
 owned the mule?" and he answered, "I 
 thinlt about a month or two." When asked 
 how much he originally paid for the mule, 
 he said: "I did not pay for him until after 
 he was killed. I bought the mule from a 
 party. I do not remember his name. After 
 he had been killed, I then paid for the mule." 
 He also testified that he had possession of 
 the mule on trial. He had not paid for it. 
 "As soon as the mule was killed, and the 
 man wanted his money, I gave him $90, and 
 promised to pay him the balance as soon as 
 I collected it." 
 
 Dodge & Johnson, for appellant. Bell & 
 Bridges, for appellee. 
 
 COCKRILL, C. J. 1. Construing the evi- 
 dence most strongly in favor of the appel- 
 lant, Taylor had a special property in the 
 animal killed, which empowered him to re- 
 cover its full value. Railway Co. v. Biggs, 
 50 Ark. 169, 6 S. W. 724. No prejudice re- 
 sults to the railway, therefore, in permitting 
 him to maintain the action. 
 
 2. The statute declares that railroads oper- 
 ated in this state shall be responsible for 
 all damages done or caused by the running 
 of their trains. Mansf. Dig. § 5537. In a 
 suit against a railway company to recover for 
 an injury done to property by a running en- 
 gine or train, this statute casts upon the 
 company the burden of showing due care 
 on its part. That is not the express pro- 
 vision of the statute, but it is the nearest 
 approach to the legislative intent that the 
 court was able to extract from it, consistent 
 with the constitution. Railway Co. v. Payne, 
 33 Ark. 816; Tilley v. Railway Co., 49 Ark. 
 535, 542, 6 S. W. 8. The statute has found 
 application in our courts mainly in cases 
 where live stock, vshen running at large, has 
 been injured by railway trains; and we have 
 ruled many times that proof of injury by 
 the railway in such cases raises a presump- 
 tion of negligence against the company. 
 There is nothing in the terms of the statute 
 to warrant a change in the construction of it 
 when the proof shows that an animal was 
 under the control of its owner or his agent 
 at the time of the injury. The statutory 
 policy of casting the burden of proof on the 
 railway to show care when the injury is 
 
 proved may have had its origin in the fact 
 that the company's employes are most likely 
 to know the facts, while the owner of the 
 injured property is ignorant of them; but 
 the enactment does not limit the operation 
 of the rule to that state of facts. The argu- 
 ment that the pai'ty having the best means 
 of information should bear the burden of 
 proof might well be addressed to the policy 
 of enacting such a statute, but not to its 
 construction wheu its language will not ad- 
 mit of the distinction. When the proof 
 shows that the act of the owner, having 
 control of the animal when injured, has 
 contributed to the injury, the statute is in- 
 operative, because the contributory negli- 
 gence of the owner would bar a recovery. 
 Thus, if the plaintiff here, in developing his 
 case, had shown that he was wrongfully us- 
 ing the track of the railway as a highway 
 for his mule and vehicle, and had shown no 
 other fact save that the property was in- 
 jured by the defendant's moving train, he 
 would not have established a prima facie 
 case under the statute, because, upon the 
 case thus proved, he could recover only for 
 a wanton injury, and the statute raises no 
 Iiresumption of wantonness. Railway Co. 
 V. JIunday, 49 Ark. 257, 264, 265, 4 S. W. 
 782. But in this case the plaintiff adduced 
 evidence tending to show that at the time 
 of the injury he was using the right of way 
 between the main and side tracks by the 
 license and invitation of the company. If 
 that was true, he was not a trespasser, but 
 was there as of right, and the company owed 
 him the duty to observe ordinary care to 
 preserve his property from injury. The fact 
 of injury is, therefore, evidence of the want 
 of such care; that is, of negligence. The 
 charge to that effect was not erroneous. The 
 court's charge upon the subject of contribu- 
 tory negligence by the owner was full, and 
 it was favorable to the defendant. The jury 
 found, upon conflicting testimony, that he 
 was not guilty of contributory negligence, 
 and that the railway did not use due care. 
 The verdict is conclusive. 
 
 3. The party having the "burden of proof 
 in the whole action" has the right to open 
 and conclude the argument. Mansf. Dig. § 
 5131. Such a burden lies on the party who 
 would be defeated if no evidence were given 
 on either side. Id. § 2871. Upon the defend- 
 ant's admission of the killing only, if the 
 plaintiff could have recovered at all, his 
 recovery would have been confined to nom- 
 inal damages, because the defendant specif- 
 ically denied the extent of his injury. But 
 a recovery of substantial damages, and not 
 of the costs only, was what the plaintiff' 
 sought. The burden of proving the extent 
 of his injury remained upon him throughout, 
 and gave him the right to begin and reply. 
 Railway Co. v. Rhea, 44 Ark. 258, 264; 1 
 Thomp. Trials, §§ 228, 229. No other objec- 
 tion is urged by the appellant. Finding no 
 error, the judgment is affirmed. 
 
 365 
 
Case No. 127] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 CRABTREE v. ATCHISON et al. 
 
 (20 S. W. 260, 93 Ky. 338.) 
 
 Court of Appeals of Kentucky. Oct. 1, 1892. 
 
 Appeal from circuit court, Daviess county. 
 
 Action by J. D. Atchison and others against 
 Moses Crabtree. Judgment for plaintiffs. 
 Defendant appeals. Reversed. 
 
 Svpeeney, Ellis & Sweeney, for appellant. 
 Weir, Weir & Walker, for appellees. 
 
 BENNETT, J. The appellant executed to 
 J. McDanrich & Co. a promissory note for 
 $102.60. McDanrich & Co. assigned the note, 
 before its maturity, to the appellees. They 
 brought suit on it. The appellant answered 
 that the note was obtained from him by the 
 fraud of the payees, and that it was without 
 consideration, having been executed for a 
 lightning rod that was utterly worthless. 
 The appellees, replying, traversed these alle- 
 gations. They further alleged that when the 
 appellant executed and delivered the note to 
 McDanrich & Co. he executed and delivered 
 to them two writings. The one deemed ma- 
 terial to tlie question at issue is as follows: 
 "To all whom it may concern: This is to 
 certify that a note executed by me to J. Mc- 
 Danrich & Co., for $102.60, is a bona fide 
 debt against me. There Is no offset, dis- 
 count, or defense against the same, and the 
 same is good against me for the full amount 
 thereof, and will be paid to the said J. Mc- 
 Danrich & Co., or to such persons as they 
 may assign said note to." (Signed, etc.) The 
 appellees further alleged that they purchas- 
 ed said note for value, and withjout notice 
 of the alleged fraud or want of considera- 
 tion, and that at the time of the negotiation 
 for the note the writing, supra, was exhibited 
 to them, and they purchased the note upon 
 the faith of the assurances therein contain- 
 ed. The appellant rejoined, denying that ap- 
 pellees knew of the contents of said writing, 
 or that they purchased the note upon the 
 faith of the assurances therein contained. 
 On the ti'ial of the case the lower court rul- 
 ed that the burden was on the appellees; con- 
 sequently they were entitled to conclude the 
 argument. The appellees obtained judgment 
 on the note, and the appellant has appealed. 
 
 Under the instructions of the court, to 
 which there is no serious objection, the jury 
 was authorized from the evidence to find 
 that the said writing was exhibited to ap- 
 pellees at the time they purchased the note, 
 and that they purchased it upon the faith of 
 the assurances therein contained. But it 
 does not appear that the appellant issued 
 and delivered the writing with the purpose 
 of defrauding or deceiving the appellees, or 
 any one else. So the question is, there being 
 no actual fraudulent or deceitful purpose on 
 the part of the appellant in Issuing and de- 
 livering said paper, does the doctrine of es- 
 toppel apply in favor of the appellees, they 
 having purchased said note for value, and 
 
 3G6 
 
 without notice of the alleged infirmities, and 
 upon the faith of the assurances contained 
 in said writing? In a case like this, where a 
 person has made certain assui-ances upon 
 which he intends third persons to rely as 
 true in contracting in reference to the sub- 
 ject-matter of the assurances, and upon 
 which they do rely as true in making such 
 contracts, and but for which they would not 
 have thus contracted, and the denial of the 
 truth of the assurances would be injurious 
 to the contractual rights of such person, the 
 person giving the assurances is estopped 
 from denying their truth as to such persons. 
 The fact, in a case like this, that the person 
 made the assurances in good faith, and with- 
 out design to defraud, cannot relieve or 
 avoid the doctrine of estoppel, because he 
 intended the other party to rely upon the 
 truth of the assurances, and he did rely upon 
 them in contracting, and would not have 
 thus contracted but for such reliance; and 
 it would be a fraud upon him to allow the 
 person to deny the truth of them to the detri- 
 ment of the other party. See Budd v. 
 Mathews, 79 Ky. 479. The writing delivered 
 to the payees of the note, and exhibited to 
 the appellees by the payees to induce them 
 to purchase it, and upon the assurances of 
 which they relied in making the purchase, 
 was equivalent to personal assurances made 
 to the appellees by the appellant, face to 
 face, to induce them to make the purchase, 
 and upon which they relied in making the 
 purchase. But, as said, the court held the 
 burden to be upon the appellees; conse- 
 quently it allowed them to open and con- 
 clude the argument. The appellant com- 
 plains of that ruling. We have decided that 
 an error in that particular is a reversible er- 
 ror. The Civil Code, § 526, provides as fol- 
 lows: "The burden of proof in the whole ac- 
 tion lies on the party who would be defeated 
 if no evidence was given on either side." 
 The note sued on being prima facie evidence 
 (the signature being admitted) that the pay- 
 or was indebted according to its terms, the 
 burden was upon him to establish the alle- 
 gations of fraud and want of consideration. 
 Those allegations being traversed, and if no 
 proof was offered establishing them, the 
 appellees would be entitled to judgment on 
 the note; hence the burden thus far was 
 on the appellant to establish the allegations 
 of. fraud and want of consideration; and, 
 failing to establish that issue, the appellees 
 would be entitled to judgment for the full 
 amount of the note. The plea of estoppel 
 In event of such failure would cut no flgare, 
 for, the proof having failed on the issue of 
 fraud and no consideration, the appellees 
 would be entitled to judgment on the note; 
 so, notwithstanding, the appellees, in case 
 the plea of fraud and no consideration was 
 established, would, in order to avoid the 
 effect of it, be compelled to establish by 
 proof their plea of estoppel, yet, in case there 
 was no proof offered, they would be entitled 
 
RIGHT TO OPEN AND CLOSE. 
 
 [Case No. 127 
 
 to judgment for theii- demand. Hence, as 
 judgment would have been rendered against 
 the appellant in case no proof had been of- 
 fered, the burden was upon him, and he was 
 
 entitled to conclude the argument. For that 
 reason the judgment Is reversed, and the 
 case is remanded for further proceedings 
 consistent with this opinion. 
 
 367 
 
 V 
 
Case No. 128] PUODUCTION AND EFFECT OE EVIDENCE. 
 
 DISTRICT OF COLUMBIA v. ARMBS. 
 
 (2 Sup. Ct. 840, 107 U. S. 519.) 
 
 SuDreme Court of the United States. May 7, 
 1883. 
 
 In error to tbe supreme court of the Dis- 
 trict of Columbia. 
 
 A. G. Riddle, for plaintiff in error. S. 
 Shellaberger, A. A. Birney, and C. H. Armes, 
 for defendant in error. 
 
 Mr. .Tustice FIELD delivered the opinion 
 of the court. 
 
 This was an action to recover damages for 
 injuries received by the plaintiff's intestate, 
 Du Bose, from a fall caused by a defective 
 sidewalk in the city of Washington. In 1873 
 the board of public works of the city caused 
 the grade of the caiTlage-way of Thlrt:eenth 
 street, between F and G streets, to be low- 
 ered several feet. The distance between the 
 curbstone of the carriage-way and the line 
 of the adjacent building was 36 feet. At the 
 time the accident to the deceased occurred, 
 this portion of the street— sidewalk it may 
 be termed, to designate it from the carriage- 
 way, although only a part of it is given up 
 to foot passengers — was, for 48 feet north of 
 F street, lowered in its jvhole width to the 
 same grade as the carriage-way. But, for 
 some distance beyond that point, only 12 feet 
 of the sidewalk was cut down, thus leaving 
 an abrupt descent of about 2 feet at a dis- 
 tance of 12 feet from the curb. At this de- 
 scent—from the elevated to the lowered part 
 of the sidewalk— there were 3 steps, but the 
 place was not guarded either at its side or 
 end. Nothing was placed to warn foot pas- 
 sengers of the danger. 
 
 On the night of Febniary 21, 1877, Du 
 Bose, a contract surgeon of the United States 
 army, while walking down Thirteenth street, 
 towards F street, fell down this descent, 
 and, striking upon his knees, received a con- 
 cussion which injured his spine and pro- 
 duced partial paralysis, resulting in the im- 
 pairment of his mind and ultimately in his 
 death, which occurred since the trial below. 
 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 some- 
 times it was impossible to get a word from 
 him; that his memory was impaired, but 
 that he was able to make a substaiitially 
 correct statement of facts which transpired 
 before the injury took place, though, from 
 the impairment of his memory, he might 
 3G8 
 
 leave out some important part; that there- 
 would be some confusion of ideas in his 
 mind; and that he should not be held re- 
 sponsible for any criminal act. A physician 
 of the Freedmen's Hospital, in which the 
 deceased was at one time a patient after his- 
 injuries, testified to a more deranged condi- 
 tion of his mind, and that he was, when 
 there in June, 1879, insane. He had at- 
 tempted to commit suicide, and had stuck a 
 fork into his neck several times. Upon this, 
 and other testimony of similar Import, and 
 the feebleness 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 impaired as to render him in- 
 competent 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 
 Ion his present condition. This refusal and 
 (ruling of the court constitute the first eiTor 
 assigned. 
 
 The ruling of the court and its instruction 
 to the jury were entirely correct. It is un- 
 doubtedly true that a lunatic or insane per- 
 son may, from the condition of his mind, not 
 be a competent witness. His incompetency 
 on that ground, like incompetency for any" 
 tother cause, must be passed upon by the 
 court, and to aid its judgment evidence of 
 his condition is admissible. But lunacy or in- 
 sanity assumes so many forms, and is so 
 often partial in its extent, being frequently 
 confined to particular subjects, while there 
 is full intelligence on others, that the pow- 
 er of the court is to be exercised with the 
 greatest caution. The books are full of cases 
 where persons showing mental derangement 
 on some subjects evince a high degree of in- 
 telligence and wisdom on others. The ex- 
 istence of partial insanity does not unfit in- 
 dividuals 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 casejn 
 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 person both sane and Insane at one 
 and the same, time, upon one and the same 
 subject, the assertion was a truism; and ad- 
 ded: "If, by that position, it be meant and 
 intended that the law of England never 
 deems a party both sane and insane at differ- 
 ent times upon the same subject, and both 
 sane and insane at the same time upon dif-« 
 ferent subjects, there can scarcely be a posi- 
 tion more destitute of legal foundation; or, 
 rather, there can scarcely be one more ad- 
 verse to the stream and current of legal au- 
 thority." Dew V. Clark, 3 Add. Bcc. 79, 94. 
 The general rule, therefore, is that a lu- 
 natic or a person affected with insanity is 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 128 
 
 admissible as a witness if he have sufficient 
 understanding to apprehend the obligation of 
 an oath, and to be capable of giving a cor- 
 rect account of the matters which he has 
 seen or heard in reference to the questions 
 at issue; and whether he have that under- 
 standing 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, Cr. Gas. 259. There the 
 prisoner had been convicted of manslaugh- 
 ter; 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 de- 
 lusion 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 happened before his eyes; 
 that he had always found him so; and that 
 it was solely with reference to the delusion 
 about the 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 20,000 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 rheumatics. 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 to me now; they are not sep- 
 arate from me; they are around me speak- 
 ing to me now; but I can't be a spirit, for I 
 am flesh and blood. They can go in and out 
 through walls and places which I can- 
 not." 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 per- 
 jury, the breaking of a lawful oath, or tak- 
 ing an unlawful one; he that does it will 
 go to hell for all 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-examina- 
 tion 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 as- 
 sist me in speaking of the date; I thought 
 it was Monday, and they told me it was 
 
 WIL6US,BT. — 84 
 
 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 cori'eet, that where- 
 ever a delusion of an insane character ex- 
 ists 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 re- 
 ligion in his mind and a sufficient under- 
 standing of the nature of an oath, and it is 
 for the jury to decide what amount of cred- 
 it they will give to his testimony. "Vaiious 
 authorities," said the chief justice, "have 
 been referred to, which lay down the law 
 that a person non compos mentis is not an 
 admissible 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 admissible. 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 up- 
 on the subject-matter under consideration." 
 And the chief justice added: "The proper 
 test must always be, does the lunatic under- 
 stand what he is saying; and does he under- 
 stand the obligation of an oath? The lu- 
 natic may be examined himself, that his 
 state of mind may be discovered, and wit- 
 nesses 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 
 observed that in a lunatic asylum the pa- 
 tients are often the only witnesses of out- 
 rages upon themselves and others, and there 
 would be impunity for offenses committed in 
 such places if the only persons who can give 
 infonnation are not to be heard. Baron Al- 
 derson. Justice Coleridge, Baron Piatt, anil 
 Justice Talfourd agreed with the chief jus- 
 tice, the latter observing that "if the propo- 
 sition that a person suffering under an in- 
 sane delusion cannot 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 ex- 
 tent of the delusion. Unless judgment and 
 discrimination be applied to each particular 
 case, there may be the most disastrous con- 
 sequences." This case is also found in Den- 
 ison & P. Cr. Cas. 254, where Lord Camp- 
 bell is reported to have said that the rule 
 contended for would have excluded the tes- 
 timony of Socrates, for he had one spirit 
 always prompting him. The doctrine of this 
 
 3G0 
 
Case No. 128] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 decision lias not been oveiTuled, that we are 
 aware of, and it entirely disposes of the 
 question raised here. 
 ^ On the trial, a member of the metropolitan 
 police, who saw the deceased fall on the side- 
 walk and went to his assistance, was asked, 
 after testifying to the accident, whether, 
 while he was on his beat, other accidents 
 had happened at that place. The court al- 
 lowe<l the question, against the objection of 
 the city's counsel, fo;- the purpose of show- 
 ing the condition of the street, and the lia- 
 bility of other persons to fall there. The 
 witness answered that he had seen persons 
 stumble over there. He remembered send- 
 ing home in a hack a woman who had fallen 
 there, and had seen as many as five persons 
 fall there. 
 
 The admission of this testimony is now 
 urged as error, the point of the objection be- 
 ing that it tended to introduce collateral is- 
 sues and thus mislead the jury from the mat- 
 ter directly in controversy. Were such the 
 case the objection would be tenable, but no 
 dispute was made as to these accidents, no 
 question was raised as to the extent of the 
 injuries received, no point was made upon 
 them, no recovery was sought by reason of 
 them, nor any increase of damages. They 
 were proved simply as circumstances which, 
 with other evidence, tended to show the dan- 
 gerous character of the sidewalk in its un- 
 guarded condition. The frequency of acci- 
 dents at a particuar place would seem to be 
 good evidence of its dangerous character— at 
 least, it Is some evidence to that effect. Per- 
 sons are not wont to seek such places, and 
 do not willingly fall into them. Here the 
 character of the place was one of the sub- 
 jects of inquiry to which attention was call- 
 ed by the nature of the action and the plead- 
 ings, and the defendant should have been 
 prepared to show its real character in the 
 face of any proof bearing on that subject. 
 
 Besides this, as publicity was necessarily 
 given to the accidents, they also tended to 
 show that the dangerous chai-acter of the lo- 
 cality was brought to the attention of the 
 city authorities. 
 
 In Quinlan v. City of Utica, 11 Hun, 217, 
 which was before the supreme court of New 
 York, in an action to recover damages for in- 
 juries sustained by the plaintiff through the 
 neglect of the city to repair its sidewalk, he 
 was allowed to show that while it was out 
 of repair other persons had slipped and fall- 
 en on the walk where he was injured. It 
 
 370 
 
 was objected that the testimony presented 
 new issues which the defendant could not 
 be prepared to meet, but the court said: "In 
 one sense every item of testimony material 
 to the main issue introduces a new issue; 
 that is to say, it calls for a reply. In no 
 other sense did the testimony in question 
 make a new issue. Its only importance was 
 that it bore upon the main issue, and all 
 legitimate testimony bearing upon that is- 
 sue, the defendant was required to be pre- 
 pared for." This case was aflirmed by the 
 court of appeals of New York, all the judges 
 concurring, except one, who was absent. 74 
 X. Y. 603. 
 
 In an action against the city of Chicago, 
 to recover damages resulting from the death 
 of a person who in the night stepped off an 
 approach to a bridge while it was swinging 
 around to enable a vessel to pass, and was 
 drowned, — it being alleged that the accident 
 happened by reason of the neglect of the city 
 to supply sufficient lights to enable persons 
 to avoid such dangers, — the supreme court 
 of Illinois held that it was competent for 
 the plaintiff to prove that another person 
 had, under the same circumstances, met with 
 a similar accident. City of Chicago v. Pow- 
 ers, 42 111. 169. To the objection that the evi- 
 dence was inadmissible, the court said: 
 
 "The action was based upon the negligence 
 of the city in failing to keep the bridge prop- 
 erly lighted. If another person had met 
 with a similar fate at the same place, and 
 from a like cause, it would tend to show a 
 knowledge on the part of the city that there 
 was inattention on the part of their agents 
 having charge of the bridge, and that they 
 had failed to provide proper means for the 
 protection of persons crossing on the bridge. 
 As it tended to prove this fact it was admis- 
 sible; and if the appellants had desired to 
 guard against its improper application by the 
 jury, they should have asked an instruction 
 limiting it to its legitimate purpose." 
 
 Other cases to the same general pui-port 
 might be cited. See City of Augusta v. Ha- 
 fers, 61 Ga. 48; House v. Metcalf, 27 Conn. 
 630; Calkins v. City of Hartford, 33 Conn. 
 .57; Darling v. Westmoreland, 52 N. H. 401; 
 Hill V. Portland & R. R. Co., .55 Me. 439; 
 Kent V. Town of Lincoln, 32 Vt. 5!)1 ; City of 
 Delphi V. Lowery, 74 Ind. 520. The above, 
 however, are sufficient to sustain the action 
 of the court below in admitting the testimo- 
 ny to which objection was taken. Judgment 
 affirmed. 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 129 
 
 HUGHES V. DETROIT, G. H. & M. RY. 
 00.1 
 
 (31 N. W. 603, 65 Mich. 10.) 
 
 Supreme Court of Michigan. Feb. 10, 1887. 
 
 Error to superior court of Detroit. 
 
 Action against a railroad company to re- 
 cover for personal injuries. Judgment for 
 plaintiff. Defendant appeals. 
 
 Seth E. Engle, for plaintiff. E. W. Med- 
 daugh, for defendant and appellant. 
 
 k"- 
 
 CAMPBELL, C. J. Plaintiff, a little colored 
 boy, who is now between six and seven years 
 old, and was, when injured, five years old or 
 under, recovered judgment in the superior 
 court of Detroit for personal injuries causing 
 the loss of a leg and some other damage. In 
 July, 1884, towards the close of the day, but 
 during daylight, according to the claim of 
 his declaration, he was on the front of a 
 switching locomotive which was making up 
 and distributing freight trains, and standing 
 upon a plank step used for switchmen and 
 brakemen to stand upon in their yard-work, 
 and, as he asserts, was thrown off by a sud- 
 den start or a sudden stop, and run over. The 
 negligence alleged was the failure of the train- 
 men to put him off before moving, and the 
 rapid action in starting and stopping. Other 
 facts were set up concerning the condition 
 of the yai-d in which the accident happened, 
 which ran trom Hastings street across a 
 block, and the use of it as a place of pastime 
 by children, and some similar matters, all of 
 which, although gone into on the trial, were 
 finally ruled to be improper by the judge in 
 his charge. This final ruling was in accord- 
 ance with the decision of this court in Chicago 
 & N. W. R. Co. V. Smith, 46 Mich. 504, 9 N. 
 W. 830, concerning such premises, where it 
 was held, in a verj' similar case in all its 
 circumstances, that the company could not be 
 held, under such circumstances, for anything 
 less than wanton and gi-oss negligence in- 
 volving reckless misconduct. . 
 
 Under the charge, as already given, the 
 jury were directed not to find for plaintiff 
 unless the engineer actually saw the plain- 
 tiff on the foot-board. If so, the court held 
 he should not have started the train while the 
 boy was on it, but should have ordered him 
 off; and, in giving this charge, the court 
 said it was conceded that the boy was on the 
 foot-board, and assumed the boy said the en- 
 gineer saw him before starting. It was not 
 disputed, but admitted on the argument in 
 this court, that, if the engineer actually saw 
 the boy on the foot-board before moving, he 
 would be bound to use elQclent care to pre- 
 vent Injury to him; but it is denied that he 
 was on the foot-board, or, if so, was seen by 
 the engineer, or any one else, in that position. 
 The fact that the boy himself is the only wit- 
 
 - Dissenting opinion of Morse, J., omitted. 
 
 ness who says the engineer saw him renders 
 anotlier question important, which is how far 
 his testimony was admissible. 
 
 Upon examining the testimony, we find that, 
 while tliere are witnesses for plaintiff who 
 swear to his being on the foot-board, they 
 do not agi-ee as to the circumstances or cause 
 of his being thrown from the board. On the 
 part of the defense there is testimony which 
 is not consistent with his being there, as well 
 as positive testimony that he was not seen 
 if there. The declaration does not aver that 
 he was seen, but merely that he might have 
 been seen with proper diligence, but it does 
 aver he was on the board and thrown off. 
 There was confiicting testimony as to the like- 
 lihood or possibility of seeing him on the 
 board. He himself says he ran back and 
 forth over it while the engine was not mov- 
 ing, and finally got on it just before starting, 
 and then stayed on till he fell off. He also 
 says he faced the engine, while the other tes- 
 timony would not so indicate. All of this 
 shows the great importance of this particular 
 fact, and the danger of assuming it when 
 the testimony conflicted. So it was equally 
 important to know whether, if seen at all, he 
 was seen before starting, as the duty to keep 
 off a child entirely could not be quite the 
 same as the duty which would arise from 
 seeing him already on a moving train. Most 
 of the testimony Indicates that there was 
 nothing unusual in the running or stopping 
 of the train after it started. This theory 
 was not laid before the jury so as to call 
 their attention to its significance. 
 
 The boy's own testimony as to how he fell 
 off is not quite the same in the direct as on 
 the cross-examination. On the direct, the 
 impression he gives is that he was thrown 
 off by a sudden starting and jerk. On the 
 cross-examination he says he was carried for- 
 ward, and in no other direction, with the en- 
 gine, until near the switch, and then fell off 
 close by the switch. Rosa Bushey, one of 
 his witnesses, on the other hand, says the en- 
 gine went back with him towards Hastings 
 street before taking him east to the switch. 
 Tean, another of his -witnesses, swore his 
 back was towards the engineer while he was 
 standing on the board, and that his hands 
 were under the hand-rail. The testimony 
 was by no means uniform upon the impor- 
 tant matters on which this charge bore. 
 
 The charge seemed to go upon the idea that 
 the plaintiff's account was the one to be 
 chiefly acted on by the jury, in connection 
 with his testimony concerning the engineer, 
 and there was no other testimony which cov- 
 ered that matter directly. He does not 
 swear positively that the engineer saw him, 
 but his testimony undoubtedly tends that 
 way, but, when all compared, leaves the time 
 anQ circumstances of such seeing in doubt. 
 Without it, as the court substantially char- 
 ged, there was no case for the juiy. In con- 
 nection with this there was testimony of the 
 plaintiff himself that the engineer, when he 
 
 371 
 
Case No. 129] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 saw him, told the fireman not to ring the 
 bell until the little fellow got off, and there 
 is no testimony that after this warning the 
 boy showed himself, if he did at all, to the 
 engineer. The court committed error In 
 treating controverted facts as undisputed, as 
 well as in saying the plaintiff should recover 
 if the engineer saw him, without reference 
 to the time and circumstances of seeing him. 
 , ^ Passing by minor points, this makes it nec- 
 (, ' essary to determine concerning the admissi- 
 bility of this proof. It has been held by this 
 court, as well as courts generally, that the 
 fact that a child is under seven years does 
 not create an absolute disability to testify. 
 This was held in McGuire v. People, 44 Mich. 
 286, 6 N. W. 669, and is the doctrine of the 
 text-books. But the authorities all agree that 
 a child cannot testify unless capable of ap- 
 preciating the obligation of his oath, if he 
 takes an oath, or of his aflirmation if that 
 is substituted. And this is upon the ground 
 that a witness must be under some pressure, 
 arising out of the solemnity of the occasion, 
 beyond the ordinary obligation of truth-tell- 
 ing. 1 Greenl. Ev. § 367; 1 Phil. c. 2 (C. & 
 H.), and notes. One or the other of these 
 methods of attestation is required of all wit- 
 nesses, children or adults, and persons un- 
 sworn cannot testify unless they prefer the 
 other form, which in this state is under the 
 pains and penalties of perjurj'. 
 
 The fact that the child was to be put under 
 oath or af&i-mation was not brought to his 
 attention at all, so as to show whether he 
 did or did not understand the bearing or 
 effect of it. He merely said he must tell the 
 truth, or he would go to hell; but, when 
 asked about any other consequences, he show- 
 ed entire ignorance, and only said that his 
 mother told him the day before that he would 
 go to hell if he did not speak the truth. This 
 is all that he said bearing on his veracity. 
 He was examined by counsel, and not par- 
 ticularly tested by the court, and the court, 
 without making any personal examination, 
 certifying or in any way giving an opinion 
 that the boy understood the nature or obliga- 
 tion of an oath or affirmation, left it all to the 
 jury, to be tested by the ordinary question- 
 ing and cross-questioning by counsel. This 
 is what might, no doubt, be safe with many 
 other persons besides children who usually 
 tell the truth, and may have their truth sub- 
 stantially tested, whether sworn or not. But 
 the law entitles parties to insist that all wit- 
 nesses shall be put under some solemn obliga- 
 tion before testifying, and excludes witnesses 
 ■^'ho are incapable of understanding its sanc- 
 tion. As Mr. Starkie veiy well explains it, 
 this is not done because the law imputes guilt 
 or blame to those who do not appreciate it, 
 but because it requires the highest attainable 
 sanction for testimony. 1 Starkie, Ev. 22. 
 It is not left to courts to let in everything 
 which, in their general opinion, or in the case 
 of the particular witness, might be safe. 
 Neither does it rest on any particular belief. 
 
 372 
 
 Any one may take the oath or obligation that 
 accords with his own opinions, but he must 
 do the one or the other. And he must be 
 able to comprehend it. Upon this there is no 
 conflict in the cases. It is necessary to be 
 left very much to the discretion of the trial 
 judge if he undertakes to exercise that dis- 
 cretion, and acts upon such an examination 
 as satisfies his own mind. He should con- 
 duct this examination as in his judgment will 
 be effectual. It cannot safely be left to 
 counsel to make the examination. In Mc- 
 Guire's Case, before referred to, the judge 
 gave a careful personal examination to the 
 child, and formed a distinct opinion of his 
 own, founded on that examination. As the 
 preliminary inquiry cannot be and is not un- 
 der oath, there is the strongest reason for 
 very careful action by the judge himself on 
 his official responsibility. The cases and text- 
 books recognize this distinctly. See 1 Greenl. 
 Ev. §§ 367, 368, and notes; 1 Edw. Phil. Ev. 
 11, and notes. In England it has been held 
 that recent teaching for the occasion is not 
 in itself sufficient, because the knowledge 
 thus received may not be comprehended. 1 
 Edw. Phil. Ev. 11; Rex v. Williams, 7 Car. 
 & P. 320. A careful judicial examination is 
 much more satisfactorj^ than answers which 
 may or may not be really intelligent. The 
 child's capacity and disposition to answer 
 correctly and cordially such questioning as 
 may be given is of the utmost consequence, 
 because even among mature witnesses it is 
 not always easy to discriminate between ac- 
 tual knowledge and what is accepted on 
 hearsay and influence. It is obviously neces- 
 sai-y for the court to be satisfied that the 
 child will be disposed to tell the truth under 
 some sense of obligation. 
 
 In children of tender age no reasonable 
 person would expect a complete power of dis- 
 criminating between his means and sources 
 of knowledge; and more or less undesigned 
 coloring and miscoloration Is almost inevita- 
 ble. There can be no criminal responsibil- 
 ity in a young child, and the care used must 
 therefore be i-ather in ascertaining his ca- 
 pacity and disposition than in impressing the 
 terrors of the law. We are compelled to ap- 
 ply the law as we find it, until changed by 
 legislation. But we are greatly impressed 
 with the practical imperfection of the pres- 
 ent rules. In Prance, and probably else- 
 where, the courts refuse to administer an 
 oath to children of tender years, and allow 
 them to be examined without anything more 
 than suitable cautions, leaving their state- 
 nipnts on direct and cross-examination to be 
 taken for what they are worth. This seems 
 to be a sensible proceeding, and is probably 
 quite as efficacious as our own system, and less 
 likely to abuse. There is a proper desire in 
 courts to receive such testimony as will throw 
 light on the case, and there is no doubt that in 
 practice children are often allowed to testify 
 whose legal capacity to do so is very liberally 
 construed. It would be better, we think, to put 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 129 
 
 tlieir testimony on the more rational ground 
 that it is calculated to be of some value, and 
 capable, under a proper examination, of being 
 reasonably well weighed for what it is worth. 
 The other points do not require much con- 
 sideration. It is possible the Instructions con- 
 cerning damages were open to some criticism, 
 but the judge appears to have desired to pre- 
 vent any wild estimates, and it is not very 
 easy to be precise concerning all the elements 
 to be considered in such a case. The charge 
 was intended to keep out improper consider- 
 
 ations as far as possible, and to undo some 
 rulings made earlier in the case which were 
 found improper. In cases like this, however, 
 it is not possible, after argument, to undo the 
 effect of important testimony once in, and 
 Impressed on the jury by counsel. 
 
 For the reasons given, the judgment should 
 be reversed, and a new trial granted. 
 
 CHAMPLIN and SHERWOOD, JJ., con- 
 curred. MORSE, .T., dissented. 
 
 ****** 
 
 373 
 
Oase Xo. 13)] PRODUOTIOJT AND EFFECT OF EVIDENCE. 
 
 STEPHENS V. BERNAYS. 
 
 (42 Fed. 488.) 
 
 District Court, E. D. Missouri, E. D. June 7, 
 1890. 
 At law. 
 
 George D. Reynolds, U. S. Dist. Atty., for 
 plaintiff. H. A. Loevy, for defendant. 
 
 THAYER, J. The testimony of C. C. 
 Crecilius, talien in connection with other tes- 
 timony offered by the plaintiff, clearly shows 
 that the deceased assigned his stock in the 
 insolvent bank to Crecilius, the cashier, with 
 intent to evade his liability as a shareholder. 
 According to the testimony of Crociliws, the 
 deceased had not only been advised before 
 the sale that the bank had sustained con- 
 si dei'able losses, but he declared at the time 
 of tlie sale that his purpose in selling was 
 to avoid his liability as a stockholder. The 
 sale appears to have been made only two 
 days before the bank closed its doors, and 
 no change took place in the condition of the 
 bank in the mean time. Crecilius gave his 
 notes for the stock, instead of paying for the 
 same in money; and according to his state- 
 ment the notes were to be surrendered, and 
 the sale canceled, if at the end of 60 days the 
 deceased was then assured that the bank was 
 all right. Crecilius himself had little or no 
 means, at the time of the purchase, and was 
 rendered utterly insolvent by the failure of 
 the bank two days later. His object in mak- 
 ing the purchase in question was to with- 
 draw the stock from the marliet, and save 
 the credit of the bank, which was then in a 
 precarious condition. These facts, most of 
 which were established by the testimony of 
 Crecilius, warrant the conclusion that the 
 pretended sale was and is voidable as to 
 creditors of the insolvent bank, who are rep- 
 resented in this proceeding by the receiver. 
 Thomp. Liab. Stockh. § 213, and cases cited. 
 
 A question arises, however, and was re- 
 served at the trial, touching the competency 
 of Crecilius to testify against the executrix 
 concerning transactions between himself and 
 the testator. The federal statutes provide 
 (section 858) that— 
 
 "No witness shall be excluded « * * in 
 any civil action because he is a party to or 
 interested in the issue tried: provided, that 
 in actions by or against executors, « * * 
 in which judgmeni may be rendered for or 
 against them, neither party shall be allowed 
 to testify against the otEer as to any trans- 
 action with or statement by the testator, 
 * * * unless called to testify thereto by 
 the opposite party. * * * in all other re- 
 spects the laws of the state in which the 
 court is held shall be the rules of decision as 
 to the competency of witnesses in courts of 
 the United States," etc. 
 
 The state law on the sub.iect (section 8918, 
 Rev. St. Mo. 1889) provides that— 
 
 "No person shall be disqualified as a wit- 
 ness In any civil suit * * * by reason of 
 374 
 
 his interest in the event of the same, as a 
 party or otherwise: * * * provided that, 
 in actions where one of the original parties 
 to the contract or cause of action in issue 
 and on trial is dead or * * * insane, the 
 other party to such contract or cause of ac- 
 tion shall not be admitted to testify * * * 
 in his own favor; * * * and, where an 
 executor or administrator is a party, the oth- 
 er party shall not be admitted to testify in 
 his own favor, unless the contract in issue 
 was originally made with a person who is 
 living and competent to testify," etc. 
 
 The first clause of the proviso of section 
 8918, supra, as heretofore construed by the 
 state courts, has much greater scope than 
 the federal statute above referred to. Thus, 
 in Meier v. Thieman, 90 Mo. 434, 2 S. W. 
 435, it was held that by the proviso in ques- 
 tion a person was rendered incompetent to 
 testify as to transactions with a decedent 
 in a suit brought by his heirs, although the 
 person tendered as a witness was not a par- 
 ty to the suit. The decision appears to be 
 based on the ground that a witness, to be 
 excluded by the state law, need not be a par- 
 ty to the record, but will be excluded as a 
 witness as to all contracts or transactions 
 between himself and a deceased person, 
 I when the witness has an interest in the re- 
 sult of the suit, whether He is'^or is not a 
 party to the record. Hence it is important 
 to determine, in the first' instance, whether 
 the competency of Crecilius to testify as to 
 transactions between himself and the de- 
 cedent is to be tested by fedei-al or state law. 
 The rule is that, where congress has legis- 
 lated on the subject,— that is, has enacted a 
 law covering the particular case, — such law 
 must prevail in the federal courts, notwith- 
 standing it differs from the state law. Pot- 
 ter V. Bank, 102 XJ. S. 165; Insurance Co. v. 
 Schaefer, 94 U. S. 458; Rice v. JIartin, 8 
 Fed. 476. The state laws control in deter- 
 mining the competency of witnesses only in 
 cases like that of Packet Co. v. Clough, 20 
 Wall. 537, which do not fall within any pro- 
 vision of the federal laws. 
 
 The case at bar is clearly within the terms 
 of section 858. The effort is to exclude Cre- 
 cilius as a witness on the ground of interest; 
 but the first clause of the section declares 
 that interest shall be no disqualification "in 
 any civil action," and the only exception to 
 that rule is that mentioned in the proviso,— 
 that a person called as witness shall not be 
 allowed to testify as to any transactions 
 with or statement by a decedent, if the suit 
 is against his executor or administrator, and 
 the witness is himself an opposing party to 
 the suit, unless the witness is called upon to 
 testify by the executor or administrator. 
 The case at bar seems to be strictly like the 
 case of Potter v. Bank, supra, in which a 
 person situated as Crecilius is, with respect 
 to tlie litigation, was held to be a competent 
 witness. Whatever view, therefore, the 
 court might entertain as to the competency 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. i;50 
 
 of the witness under the state law. it is 
 
 compelled to hold that he is made a compe- 
 
 1 tent witness by the federal statutes. Judg- 
 
 ' ment will accordingly go against the ex- 
 
 ecutrix for the amount of the comptroller's 
 assessment; that is, for .$3,500, with interest 
 at 6 per cent, per annum, to be computed 
 from September 24, 1889, to this date. 
 
 375 
 
Case No. 131] PRODUCTIOX AND EFFECT OF EVIDENCE. 
 
 SUTHERLAND v. ROSS. 
 
 (21 Atl. 351, 140 Pa. St. 379.) 
 
 Supreme Court of Pennsylvania. March 2, 
 1S91. 
 
 Appeal from court of common pleas, 
 Montgomery county; Aaron S. Swartz, 
 Jnrlse. 
 
 Ejectment by James Sutherland against 
 William Ross. From a judgment for de- 
 fendant plaintiff appeals. 
 
 John M. Arundel, for appellant. Louis 
 M. Childs, Montgomery Evans, and Geo. N. 
 Corson, for appellee. 
 
 CLARK, J. The lot of ground in dispute 
 is situated in West Conshohocken, in' the 
 county of Montgomery. ' It is one of two 
 lots — Nos. 121 and 122 — in a plot of lots 
 laid out by one William Davis, Sr., con- 
 veyed by William Dager, Sr., to Nicholas 
 F. Dager, by his deed dated April 6, 1871, 
 and this is admitted to be the common 
 source of title. The plaintiff gave in evi- 
 dence a deed from Nicholas F. Dager and 
 Elizabeth, his wife, dated 11th March, 1874, 
 describing and conveying both of said 
 lots to James Sutherland ; consideration, 
 $1,.350. The defendants thereupon gave 
 in evidence the record of a deed dated 14th 
 February, 1S77, from James Sutherland 
 and Agnes, his wife, reconveying the par- 
 ticular lot and premises in dispute to 
 Nicholas F. Dager; consideration, $1,000; 
 and also a deed dated 3d April, 1887, from 
 Nicholas F. Dager and wife to William 
 Ross; consideration, $1,400. The plaintiff, 
 James Sutherland, then took the witness 
 stand, and it was proposed to prove by 
 him that the deed from Sutherland and 
 wife to Dager, dated 14th February, 1877, 
 w^as a forgery. Having been sworn on 
 his voir dire, it appeared that Nicholas F. 
 Dager, the grantee in the deed, was dead, 
 and objection was made to the competen- 
 cy of Sutherland to testify to any matter 
 occurring before the death of Dager. The 
 objection was sustained, and the witness 
 held to be incompetent. The plaintiff 
 thereupon called Mrs. Mary Powell, one of 
 the subscribing witnesses to the deed, 
 who testifled that Nicholas F. Dager was 
 not present at the execution and acknowl- 
 edgment of the instrument of writing, 
 which she w^itnessed ; that William Hay- 
 wood, the other subscribing witness, and 
 the justice of the peace before w^hom the 
 deed purports to havebeen acknowledged, 
 w^ere present, but that the entire transac- 
 tion occurred in the absence of Dager, the 
 grantee therein. The offer was then re- 
 new2d with some modification. The plain- 
 tiff's counsel offered to prove by Suther- 
 land, the plaintiff, not that a forgery 
 was committed by Dager, but that Da- 
 ger employed Willia'-i Haywood, the jus- 
 tice of the peace, as his agent on the 14th 
 February, 1877, to prepare and obtain 
 from James Sutherland and his wife a 
 conveyance of the premises in dispute in 
 consideration of the payment of $1,000; 
 and while in that employment the agent, 
 Haywood, prepared or had prepared the 
 deed dated 14th February, 1877, purport- 
 ing to be signed by James Sutherland and 
 
 376 
 
 his wife, and witnessed by Mary Nugent 
 and William Haywood, and purporting 
 to be acknowledged before William Hay- 
 wood as a justice of the peace, and that 
 no such deed was signed by the witness 
 or his wife, or by Mary Nugent as wit- 
 ness, or acknowledged before William 
 Haywood as a justice of the peace. Ob- 
 jection was also made to this offer, to the 
 «ame effect as before, which objection was 
 //sustained, and this is the first assignment 
 of error. The contention of the appellant 
 is that, as Dager, the grantee in the deed, 
 was not present at the alleged execution 
 of the deed, but was represented by an 
 agent, who is alive and competent to tes- 
 tify as to the whole transaction, Suther- 
 land, the surviving party, may testify, al- 
 though Dager is dead. In clause E of the 
 fifth section of the act of 23d May, 1887, it 
 is provided in the plainest manner that 
 where any party to a thing or contract 
 in action is dead, and his rights thereto 
 or therein have passed, either by his own 
 act or by the act of the law, to a party 
 on the record, who represents his interest 
 m the subject in controversy, neither the 
 surviving or remaining party to such 
 , thing or contract, nor any other person 
 [whose interest shall bo adverse to the said 
 right of the deceased party, except in cer- 
 tain specified cases, shall be a competent 
 witness to anj-malter occurring before his 
 death. The thing or contract inaction 
 here is the right or title to the premises in 
 dispute under the deed of 14th February, 
 1877, which is alleged to be a forgery, and 
 the record of which was in evidence. Nich. 
 olas F. Dager was a party to that deed, 
 and his right under it has by his own act 
 passed to William Ross, a party on the 
 record, who represents his interest in the 
 subject in controversy; and it follows 
 from the express words of the statute that 
 James Sutherland, who is the surviving 
 or remaining party to the deed, is not. In 
 this case, competent to testify to any 
 matter occurring before the death of Da- 
 ger, who is deceased. It is true that at 
 the time of the execution of the deed, or at 
 the time of its alleged execution, Dager 
 was not present. This is conceded ; but 
 he was a party to the deed, and in privity 
 of estate with the plaintiff; and, although 
 the transaction may have been conducted 
 by Haywood, in his absence, in his inter- 
 est, that, according to the terms of the 
 statute, would not render Sutherland com- 
 petent as a witness to testif.y on that sub- 
 ject after Dager's death. Such was the 
 construction finally put upon similar lan- 
 guage in the act of 18H9. After the passage 
 of that act the question arose whether the 
 exclusion of parties to the action was on- 
 ly as to transactions with the decedent, 
 and for a time, it must be conceded, the 
 course of the decisions upon that point 
 was somewhat unsteady ; but it was the 
 manifest purpose of the statute to close 
 the mouth of him who is adversary to the 
 deceased assignor. In Karns v. Tanner, 
 66 Pa. St. 2!)7, the bnjad and general doc- 
 trine was thus stated by Mr. Justice Ag- 
 NEw: "The true spirit of the proviso, 
 then, seems to be that when a party to a 
 thing or contract in action is dead, and 
 his rights have passed, either by his own 
 
COMPETENCY OP WITNESSES. 
 
 {Case No. 131 
 
 flct or by that of the law, to another, 
 who represents his Interest in the subject 
 of controversy, the surviving party to 
 that suliject sliall not testify to matters 
 occurring in tlie life-time of the adverse 
 party, whose lips are now closed." This 
 statement of the law was followed in 
 Watts V. Leidig, 29 Leg. Int. 29.3: Brady 
 V. Eeed, 87 Pa. St. Ill; Hess v. Gourley, 
 «9 Pa. St. 195; Ewiug v. Ewing, 96 Pa. St. 
 381; Foster v. Collner, 107 Pa. St. 305; Ad- 
 ams V. Edwards, 115 Pa. St. 211, 8Atl. 
 Kep. 425. We think this was the settled 
 construction, at the time ofthe passage of 
 the act of 23d May, 1887, which has also 
 
 been similarly construed inPuflield v. Hue, 
 129 Pa. St. 94, 18 .'^tl. Rep. i56«, and in Par- 
 ry V. Parry, 130 Pa. St. 94. 18 Atl. Kep. 
 628. As Sutherland was himself incompe- 
 tent, not only under the words and settled 
 policy of the statute, but as a person 
 "whose interest is adverse to the said 
 right of the deceased," his wife was also 
 incompetent for the same purpose. The 
 identity of interest between husband and 
 wife is "such that, where one of them is in- 
 competent to testify as a witness, the oth- 
 er is incompetent also. Bitner v. Boone, 
 128 Pa. St. 567, 18 Atl. Rep. 404. 
 Judgment is affirmed. 
 
 377 
 
Case No. 132] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 BASSETT T. UNITED STATES. 
 
 (11 Sup. Ct. 165, 137 XJ. S. 496.) 
 
 Supreme Court of the United States. Dec. 22, 
 1890. 
 
 In error to the supreme court of the ter- 
 ritory ol Utah. 
 
 F. S. Eichiirrls, for plaintiff in error. 
 Atty. Gen. Miller, for the United States. 
 
 //l 
 
 BREWER, J. On November 23,1H86, the 
 ^ grand jury of the first judicial district 
 court of Utah found an indictment for po- 
 lygamy against the plaintiff in error, 
 chHrging him with having married one 
 Kate Smith on the 14th day of August, 
 1S84, when his lawful wife, Sarah Ann 
 Williams, was still living and undivorced. 
 Upon trial before a jury, a verdict of guilty 
 was returned, and he was sentenced to 
 imprisonment for a term of five years, and 
 to pay a fine of $500. Such sentence, on ap- 
 peal, was affirmed by the supreme court 
 of the territory, and is now brought to 
 this court for review. 
 
 A preliminary question is presented by 
 the attorney general. It is urged that 
 there was no proper bill of exceptions as' 
 to the proceedings in the trial court, and 
 therefore nothing is presented which this 
 court can review. But we are reviewing 
 the judgment of the supreme court of the 
 territoi-y ; and the rule in thiscourt is not 
 to consider questions other than those of 
 jurisdiction, which were not presented to 
 the court whose judgment we are asked to 
 examine. Clark v. Fredericks, 105 U. S. 4. 
 Beyond the fact that the proceedings of the 
 trial court wpre examined and considered 
 by the supreme court of the territory, and 
 are therefore presumably reviewable by 
 this court, is tliis matter, noticed by this 
 court in the case of Hopt v. Utah, 114 U. 
 S. 48^, 5 Sup. Ct. Rep. 972: That a large 
 liberty of review is given by the statutes 
 of Utah to the supreme court of the terri- 
 tory, even in the absence of a formal bill 
 of exceptions. See, also, Stringfellow v. 
 Cain, 99 U.S. 010; O'Reilly v. Campbell, 116 
 U. S. 418, 6 Sup. Ct. Rep. 421. But it is un- 
 necessary to rest upon this recognition by 
 the supreme court of the territorj', or the 
 presumptions arising therefrom. The rec- 
 ord shows the pleadings, proceedings, and 
 exceptions to the charge of the trial judge, 
 all certified properly by T. A. Perkins, the 
 clerk of the trial court. At the close of 
 his certificate, which is of d.^te January 
 20, 1887, is this statement: "And I further 
 certify that a copy of defendant's bill of 
 exceptions in said cause is not made part 
 hereof because said bi'l of exceptions is in 
 the possession of defendant's counsel, at 
 the city of Salt Lake, and because I am 
 informed by said counsel that it has been 
 stipulated by and between themselves and 
 th(! United States district attorney for 
 Utah territory that the original thereof 
 in place of such copy should be used in the 
 supremecourt upon this appeal. " The bill 
 of exceptions referred to by him in this 
 statement is signed by the trial judge, 
 and thus indorsed: "No. 084. First Dist. 
 Court. Utah. The United States vs. Will- 
 iam E. Bassett. Polygamy. Bill of ex- 
 ceptions. Polled Jan'y 19th, 1887. T. A. 
 
 378 
 
 Perkins, Clerk ; " and also by the clerk of 
 the supreme court of the territory as "Filed 
 Feb'y 2nd, 1887," the date of the filing of 
 the transcript of the proceedings of the- 
 trial court. The import of all this is that 
 the bill of exceptions signed by the trial 
 judge was filed in thetrial court; and that, 
 tor the purijoses of economy, time, and 
 convenience, such original bill, together 
 with the record of the proceedings, was 
 brought to and filed in the supreme court 
 after having been filed in the trial court. 
 It needs but this suggestion, that if a copy 
 is good the original is equally good. The- 
 Identification of such bill of exceptions is 
 perfect, vouched by the signatures of the- 
 trial judge, the clerk of the district court, 
 and the clerk of the supreme court. To 
 ignore such authentication would place 
 this court in the attitude of resting on a 
 mere technicality to avoid an inquiry into 
 the substantial rights of a party, as con- 
 sidered and determined by both the trial 
 'court and the supreme court of the terri- 
 tory. In the absence of a statute or 
 special rule of law compelling such a prac- 
 J;ice, we decline to adopt it. 
 Passing from this question of practice 
 o the merits, the principal question, and 
 the only one we deem necessary to consid- 
 er, is this : The wife of the defendant was 
 called as a witness for the prosecution, and 
 permitted to testify as to confessions made^ 
 by him to her in respect to the crime 
 charged, and her testimony wastheoniy di- 
 rect evidence against him. This testimony 
 was admitted under the first paragraph 
 of section 1156 of the Code of Civil Proced- 
 ure, enacted in 1884, (section 3878, Comp. 
 Laws Utah 1888,) which reads: "A hus- 
 band cannot be examined for or against 
 his wife, without her consent, nor a wife 
 for or against her husband, without his 
 consent; nor can either, during the mar- 
 riage or afterwards, be, without the con- 
 sent of the other, examined as to any com- 
 munication made by one to the other dur- 
 ing the marriage; but this exception does 
 not apply to a civil action or proceeding 
 by one against the other, nor to a crim- 
 inal action or proceeding for a crime com- 
 mitted by one against the other. " And the 
 contention is that "polygamy " is within 
 the language of that paragraph a crime 
 committed by the husband against the 
 wife. We think this ruling erroneous. A 
 technical argument against it is this: The 
 section is found in the Code of Civil Pro- 
 cedure, and its provisions should not be 
 held to determine the competency of wit- 
 nesses in criminal cases, especially when 
 there is a Code of Criminal Procedure, 
 which contains sections prescribing the 
 conditions of competency. Section 421 of 
 the Code of Criminal Procedure, (section 
 5197, Comp. Laws 1888,) is as follows: 
 "Except with the consent of both, or in 
 cases of criminal violence upon one by the 
 other, neither husband nor wife are com- 
 petent witnesses for or against each other, 
 in a criminal action or proceeding to which 
 one or both are parties." Clearly under 
 that section the wife was not a competent 
 witness. It is true that the Code of Crim- 
 inal Procedure was enacted in 1878, and 
 the Code of Civil Procedure in 1884,so that 
 the latter is the last expression of the leg- 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 132 
 
 ielative will; but a not unreasonable con- 
 struction is that the last clause of this 
 paragraph was inserted simply to prevent 
 the rule stated iu the first clause from be- 
 ing held to apply to the cases stated in 
 the last, leaving the rule controlling in 
 criminal cases to be determined by the al- 
 ready enacted section in the Code oJ Crim- 
 inal Procedure. This construction finds 
 support in the fact that the same legisla- 
 ture which enacted the Code of Civil Pro- 
 cedure passed an act amending various 
 sections in the Code of Criminal Procedure, 
 among tliem the section following section 
 421, quoted above, and did not in terms 
 amend such section, (Laws Utah 1884, c. 
 48, p. 11!),) and in the further fact 
 that the same legislature passed an act 
 for criminal procedure in justices' courts, 
 and in that prescribed the same rule of 
 competency, and in the same language as 
 is found in section 421. Laws Utah 1884, c. 
 54, snbc.l0,§100.p.l53. Itcan hardly bebe- 
 lieved that the legislature would establish 
 one rule of competency for a trial iu a jus- 
 tice's court, and a diiT^erent rule for a trial 
 of the same offense on an api)eal to the 
 district court. And there are many of- 
 fenses of wliicli justices' courts have juris- 
 diction, which are like polygamy In their 
 social immorality and their wrong to the 
 wife. 
 
 But we do not rest our conclusion on 
 this technical argument. If there were 
 but a single section in force, and that the 
 one found in the Code of Civil Procedure, 
 we should hold the testimony of the wife 
 Incompetent. We agree with the supreme 
 court of California, when, in speaking of 
 their Codes, which in respect to these sec- 
 tions are identical with those of Utah, it 
 says, in People v. Langtree, 64 Cal. 259, 
 "We think upon a fair construction both 
 mean the same thing, although the Penal 
 Code is more explicit than the other. On 
 this, as on nearly every other subject to 
 which the Codes relate, they are simply 
 declaratory of what the law would be if 
 there were no Codes." See, also, People v. 
 Mullings, 8.3 Cal. 138, 23 Pac. Pep. 229. It 
 was a well-known rule of the common law 
 that neither husband nor wife was a com- 
 petent witness in a criminal action against 
 the other, except in cases of personal vio- 
 lence, the one upon the other, in which 
 the necessities of justice compelled a relax- 
 ation of the rule. We are aware that lan- 
 guage similar to this has been presented 
 to the supreme courts of several states for 
 consldera.tion. Some, as in Iowa and Ne- 
 braska, hold that a new rule is thereby 
 established, and that the wife is a compe- 
 tent witness against her husband in a 
 criminal prosecution for bigamy or adul- 
 tery, on the ground that those are crimes 
 specially against her. State v. Sloan, .'55 
 Iowa, 217. 7N. W. Rep. 51fi; Lord v. State, 
 17 Neb. 526, 23 N. W. Kep. 507. While oth- 
 ers, as in Minnesota and Texas, hold that 
 by these words no departure from the 
 common-law rule is intended. State v. 
 Armstrong, 4 Minn. 335, (Gil. 251;) Comp- 
 ton V. State, 13 Tex. App. 274; Overton v. 
 State, 43 Tex. 616. This precise question 
 has never been before this court, but the 
 common-law rule has been noticed and 
 commended in Stein v. Bowman, 13 Pet. 
 
 209, 222, in which Mr. Justice McLean used 
 this language: "It is, however, admitted 
 in all the cases that the wife is not compe- 
 tent, except in cases of violence upon her 
 person, directly to criminate her hus- 
 band, or to disclose that which she has 
 learned from him in their confidential in- 
 tercourse. * * * This rule isfounded upon 
 the deepest and soundest principles of our 
 nature, — principles which have grown out 
 of thosodomestic relations that constitute 
 the basis of civil society, and which are 
 essential to the enjoyment of that confi- 
 dence which should subsist between those 
 who are connected by the nearest and 
 dearest relations of life. To break down 
 or impair the great principles which pro- 
 tect the sanctities of husband and wife 
 would be to destroy the best solace of hu- 
 man existence." We do not doubt the 
 power of the legislature to change this 
 ancient and well-supported rule; but an 
 intention to make such a change should 
 not lightly be imputed. It cannot be as- 
 sumed that it is indifferent to sacred 
 things, or that it means to lower the holy 
 relations of husband and wife to the mate- 
 rial plane of simple contract. So, before 
 any departure from the rule affirmed 
 through the ages of the common law — a 
 rule having its solid foundation in the best 
 interests of society— can be adjudged, the 
 language declaring the legislative will 
 should be so clear as to prevent doubt as 
 to its intent and limit. When a Code is 
 adopted, the understanding is that such 
 Code is a declaration of established law, 
 rather than an enactment of new and differ- 
 ent rules. This is the idea of a Code, ex- 
 cept as to matters of procedure and juris- 
 diction which often ignore the past, and 
 require affirmative description. 
 
 We conclude, therefore, that the section 
 quoted from the Code of Civil Procedure, 
 if applicable to a criminal case, should not 
 be adjudged as working a departure from 
 the old and established rule, unless its lan- 
 guage imperatively demands such con- 
 struction. Does it? The clause in theCiv- 
 il Code is negative, and declares that the 
 exception of the incompetency of wife or 
 husband as a witness against the other 
 does not apply to a criminal action or 
 proceeding for a crime committed by one 
 against the other. Is polygamy such a 
 crime against the wife? 'Phat it is no 
 wrong upon her person is conceded ; and 
 tlie common-law exception to the silence 
 upon the lips of husband and wife was 
 jnly broken, as we have noticed, in cases 
 of assault of one upon the other. That it 
 is humiliation and outrage to her is evi- 
 dent. If that is the test, what limit is im- 
 posed? Is the wife not humiliated, is not 
 her respect and love for her husband out- 
 raged and betrayed, when he forgets his 
 integrity as a man, and violates any hu- 
 man ordivineenactment? Is she less sensi- 
 tive, is she less humiliated, when he com- 
 mits murder, or robbery, or forgery, than 
 when he commits polygamy or adultery? 
 A true wife feels keenly any wrong of her 
 husband, and her loyalty and reverence are 
 wounded and humiliated by annh con- 
 duct. But the question presented by this 
 statute is not how much she feels or suf- 
 fers, but whether the crime is one against 
 
 379 
 
Case Ko. 132] PKODUCTIOX AND EFrECT OF EVIDENCE. 
 
 her. Polygamy and adultery may be 
 crimes wliich involve disloyalty to the 
 marital relation, but they are rather 
 crimes against such relation than against 
 the wife; and, as the statute speaks of 
 crimes against her, it is simply an affirma- 
 tion of the old, familiar, and jnst comhion- 
 lav? rule. We conclude, therefore, that un- 
 
 380 
 
 der this statute the wife was an incompe- 
 tent witness as against her husband. 
 Other questions in the record need not be 
 considered, as they will probably not arise 
 on a new trial. The judgment of the su- 
 preme court of the territory of Utah is re- 
 versed, and the case remanded, with in- 
 structions to order a new trial. 
 
COMPETENCY OF WITNESSES. 
 
 [Gise No. 13:3 
 
 ROGERS V. STATE. 1 
 
 (29 S. W. 894, 60 Ark. 76.) 
 
 Supreme Court of Arkansas. Dec. 15, 1894. 
 
 Appeal from circuit court, Yell county; Jer- 
 emiah G. Wallace, .Judge. 
 
 A. L. Rogers was convicted of manslaugh- 
 ter, and appeals. Reversed. 
 
 The appellant, Rogers, Was indicted by the 
 grand jury of Johnson county for the crime 
 of murder. The indictment alleged that he 
 killed and murdered one M. L. Kernoodle in 
 said county by shooting him vyith a pistol. 
 A change of venue was taken to Yell county, 
 and the case was there tried. The evidence 
 showed that Rogers and Kernoodle became 
 engaged in a combat in the town of Clarks- 
 ville, near the barber shop in which Kernoo- 
 dle worked; that thpy had only struggled a 
 moment before Rogers drew a pistol from his 
 pocket, and shot Kernoodle. Kernoodle turn- 
 ed, and ran into his shop, screaming, "Mur- 
 der!" As he entered, or was about to enter, 
 the door of the shop, which was only a (ew 
 steps, away, Rogers fired again. Kernoodle 
 staggered to the back part of the shop, sank 
 down on the floor, and expired almost instant- 
 ly. The ball from the first shot entered the 
 front part of the body, near the left nipple; 
 and that from the second entered the back, 
 near the spine. Both balls passed entirely 
 through the body, and both, in the opinon of 
 the medical experts, were fatal wounds, 
 though they did not feel quite so certain that 
 the last wound would have destroyed life as 
 they did that this result would have followed 
 from the first wound alone. There was a 
 conflict in the evidence as to whether Rogers 
 or Kernoodle was the aggressor in the com- 
 bat. From some of the evidence, one might 
 conclude that the killing was premeditated 
 on the part of Rogers; that he armed him- 
 self, and, going to the shop where Kernoodle 
 worked, beckoned him to come out, and then, 
 having willingly entered into a combat with 
 him, deliberately killed him. There is other 
 evidence which contradicted this, and tends 
 to show that Kernoodle was the aggressor, 
 and that, being a large and powerful man, he 
 walked up to Rogers, and, after some words, 
 without provocation struck Rogers a violent 
 blow with his fist, pushed him against the 
 wall, and was about to throw him down, 
 when Rogers fired the first shot. There was 
 some proof tending to show that at the time 
 ICemoodle struck Rogers he was armed with 
 a razor, although this was contradicted by 
 other proof. The other facts will sufficiently 
 appear from the opinion. The jury found the 
 defendant guilty of the crime of voluntary 
 manslaughter, and assessed his punishment 
 at five years in the penitentiary. 
 
 J. E. Cravens, Martin & Murphy, and A. S. 
 McKennon, for appellant. James P. Clarke, 
 Atty. Gen., and Chas. T. Coleman, for the 
 
 State. 
 
 1 Supplemental opinion omitted. 
 
 RIDDICK, J. (after stating the facts). We • 
 need not consider the objections urged against 
 the definitions of the words "willfully" and 
 "deliberately" contained in instruction No. 1, 
 given by the court. The object of those defi- 
 nitions, we suppose, was to infonn the jury 
 concerning the distinctions between the dif- 
 ferent degrees of homicide. As the defend- 
 ant was only convicted of manslaughter, it 
 is plain that, whether erroneous or not, they 
 did him no harm. We find no error in either 
 of the instructions numbered 2, 9, and 11, 
 given by the court on its own motion, and to 
 which defendant excepted. When taken in 
 connection with the other instructions, we 
 think they state the law as favorably to ap- 
 pellant as he had the right to demand. 
 
 The twelfth instruction given by the court, 
 and to which the defendant objected, is as fol- 
 lows: (12) "If the jury believe that the de- 
 fendant inflicted upon the body of the de- 
 ceased two mortal wounds; that both wounds 
 were necessarily fatal, and either of which. 
 Independent of tjie other, would have pro- 
 duced and resulted in the death of the de- 
 ceased within a short time, of which two 
 wounds the jury believe the deceased died; 
 and the jury further find that the deceased 
 had in good faith declined all further contest 
 with defendant, and that, while deceased was 
 fieeing from him, defendant inflicted the sec- 
 ond fatal wound upon the body of the de- 
 ceased by shooting him a second time; al- 
 though the jury might believe the defendant 
 fired the first shot in self-defense,— the killing 
 would not be justifiable, but would amount 
 to manslaughter only." It is said by Mr. 
 Bishop that "whenever a blow is inflicted un- 
 der circumstances to render the party inflict- 
 ing it criminally responsible, if death fol- 
 lows, he will be deemed guilty of the homi- 
 cide, though the person beaten would have 
 died from other causes, or would not have 
 died from this one had not others operated 
 with it; provided the blow really contributed 
 either mediately or immediately to the death 
 in a degree suflicient for the law's notice." 2 
 Bish. Cr. Law (New) § 637. To same effect, 
 see Kee v. State, 28 Ark. 160. If the de- 
 fendant fired the first shot in necessary self- 
 defense, and then afterwards, when Kernoo- 
 dle had abandoned the contest, and was flee- 
 ing, he again fired upon him, inflicting an- 
 other wound, when the circumstances were 
 not such as to make a reasonable man in his 
 situation believe that he was then in immedi- 
 ate danger of great bodily injury, he would 
 be guilty either of some degree of homicide, ' 
 or of an unlawful assault, depending upon 
 the question whether or not the wound in- 
 flicted by the last shot either caused, contrib- 
 uted to, or accelerated his death. In other 
 words, if the last shot was uot fired in neces- 
 sary self-defense, and the wound inflicted by 
 it either caused his death, or contributed to 
 or hastened it, the defendant would be guilty 
 of some degree of homicide, even though the 
 first shot was fired in self-defense, and 
 
 381 
 
Case No. 133] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 though at the time the last shot was fired 
 the deceased was already so severely wound- 
 ed that his death would have followed in a 
 very short time. On the other hand, if the 
 first shot was fired in self-defense, and the 
 last shot neither caused his death nor con- 
 tributed to nor hastened it, then he could not 
 properly be convicted of any degree of homi- 
 cide, but might be convicted of an assault. 
 Davis V. State, 45 Ark. 464. The court, in 
 giving instruction No. 12, doubtless had these 
 rules of law in his mind, and the instruction, 
 abstractly considered, is nearly correct, if not 
 entirely so; but we doubt if in this case it 
 presented the question in such a way as to 
 let the jury understand that, in the event the 
 first shot was fired in self-defense, then it 
 became material for them to determine 
 whether the last shot contributed to or has- 
 tened his death. Instruction No. 4, asked by 
 the defendant, substantially covered the law 
 on this point, but it was rather long, and also 
 stated that, if the second shot did not con- 
 tribute to the death of deceased, the jury 
 must acquit, whereas they might still have 
 found defendant guilty of an assault. 
 
 Another question raised by counsel is con- 
 cerning the meaning of the phrase "great 
 bodily injury." One of the counsel for de- 
 fendant, in the course of his argument be- 
 fore the jury, stated that the law books did 
 not define such phrase; whereupon the court 
 interrupted him, and said that the law books 
 did define it, and that its meaning was "a 
 felony committed on the person." To this 
 remark of the court defendant excepted at 
 the time, and now contends that it was not 
 a correct statement of the law, and that, 
 even if con-ect, it should have been reduced 
 to writing. It was held in Reg. v. McNeill, 
 1 Craw. & D. 80, that to constitute a griev- 
 ous bodily harm, under a statute of Geo. IV., 
 it was not necessary to show that the wound 
 be on a vital part, or that the injury be of 
 a permanent nature, or that life be endan- 
 gered thereby; but that proof that the pris- 
 oner committed an assault with a deadly 
 weapon, whereby a severe wound was in- 
 flicted, was sufficient to sustain an indict, 
 ment for an assault to inflict grievous bodilyl 
 harm. In the case of Lawlor v. People, 74 
 111. 230, the court said that the phrase "seri- 
 ous bodily injury" meant substantially the 
 same as "great bodily injury," and that the 
 meaning of both was "a high degree of in- 
 jury, as opposed to a slight injuiy." The 
 phrase "great bodily injury" is difficult to 
 define, for tlie reason that it will define it- 
 self. It means a "great bodily Injury," as 
 distinguished from one that is slight or mod- 
 erate, such as would ordinarily be inflicted 
 by an assault and battery with the hand or 
 fist withovit a weapon. To put one in danger of 
 great bodily injury from an assault, something 
 more than an attack with the hand or fist would 
 usually be required, and it would rarely hap- 
 pen that one might lawfully take tjie life of 
 another to avoid an assault with the^fist 
 382 
 
 only. But cases might be supposed when it 
 would be justifiable to do so; for an assault 
 and battery by a powerful man with his 
 fist upon a weak one might be carried to 
 such extreme severity as to produce gi-eat 
 bodily injury, and not be unaccompanied by 
 such circumstances as to make It a felony. 
 One who intentionally commits a great bodi- 
 ly injury upon the person of another may or 
 may not be guilty of a felony, depending up- 
 on the circumstances; but, as such an in- 
 Jury may under some circumstances be com- 
 mitted and still the offender not be guilty 
 of a felony, it is therefore not accurate to 
 define "great bodily injury" as "a felony 
 committed on the person." What consti- 
 tutes a great bodily injury, and whether the 
 circumstances in any case are such as to 
 justify one in believing that such an injury 
 is about to be committed upon him and in 
 defending himself against it, are matters 
 which must be left to a great extent to the 
 judgment of the jury. 
 
 It Is also contended that the court, before 
 making this remark concerning the mean- 
 ing of the phrase, "great bodily harm or in- 
 jury," should have reduced It to writing; 
 but we do not think this contention is well 
 taken. It is the duty of the court to re- 
 strain the remarks of counsel within prop- 
 er bounds. If, in the opinion of the court, 
 counsel should announce propositions of law 
 to the jury which are incorrect and mislead- 
 ing, the court should admonish counsel so 
 that he may desist. It is not necessary to 
 stop to reduce the admonition to writing be- 
 fore making it, but if it contains a statement 
 of law the court should, at request of coun- 
 sel, reduce the same to writing, and, if nec- 
 essary, repeat it in its written form to the 
 Jury. No request was made to reduce this 
 remark to writing. The general request to 
 put all instructions in writing cannot be 
 held to cover this remark, for it was not in- 
 tended as a part of the instructions, but only 
 as a correction of what was conceived to be 
 a misstatement of the law in the part of 
 ^■counsel. 
 
 uring the progress of the trial the pre- 
 iding judge was called as a witness, and, 
 er the objections of the defendant, testi- 
 fied on behalf of the state. His testimony 
 was, m substance, that at a former term of 
 the court, before the change of venue was 
 taken, the defendant had filed a motion for 
 continuance on account of the absence of 
 one Bert Cunningham, whom he alleged was 
 a material witness in his behalf. After- 
 wards Bert Cunningham appeared, and, de- 
 fendant having made an application for bail, 
 the judge, in open court, notified the attoi'- 
 neys of defendant that they might take the 
 testimony of said Cunningham to be used on 
 the application for bail; to which notifica- 
 tion the attorneys of defendant made no re- 
 sponse, and took no steps to procure the 
 testimony of said Cunningham. It was not 
 shown that the defendant was present at 
 
COMPETENCY OP WITNESSES. 
 
 [Case No. ISij 
 
 the time this notification was girea to his 
 attorneys, or that he In any way approved 
 of the conduct of his attorneys in this re- 
 gard; on the contrary, defendant testified 
 that he had been in prison, and did not 
 know such notification was given. This evi- 
 dence tended to malie the Impression that 
 defendant had endeavored to procure a con- 
 tinuance on account of the absence of a wit- 
 ness whose testimony he did not want, when 
 the failui'e to take this deposition may have 
 been due to the neglect of his attorneys, and 
 through no fault of the defendant. We thinlj 
 it clear that the testimony was incompetent. 
 The trial judge seems to have arrived at the 
 same conclusion, and afterwards, acting as 
 a court, excluded the testimony which he 
 had given as a witness. But the question 
 still remains whether a judge, while pre- 
 siding at a trial of a criminal case, may, 
 against the obje?tion of the defendant, testi- 
 fy as a witness on the part of the prosecvi- 
 tion. The only reference to this question 
 we find in our statute is section 2965, Sand. 
 & H. Dig. That section is as follows: "The 
 judge or juror may be called as a witness 
 by either party; but, in such cases, it is in 
 the discretion of the court to suspend the 
 trial and order it to take place before an- 
 other judge or jury; and when a party 
 knows at the time the jury are impaneled, 
 that a juror is to be called by him as a wit- 
 ness, he shall then declare it, and the juror 
 shall be excluded from the jury." This sec- 
 tion was taken from the Code of Practice in 
 Civil Actions, and is the same as section 660 
 of that Code. There is a provision in the 
 Code of Criminal Practice that the provi- 
 sions of the Civil Code shall apply to and 
 govern the summoning and coercing the at- 
 tendance of witnesses, and compelling them 
 to testify in all criminal prosecutions; but 
 that provision, we think, refers to the chap- 
 ter of the Civil Code regulating the issuance 
 of subpoenas for witnesses and attachments 
 for contempt. It does not refer to the com- 
 petency of witnesses. While there are other 
 portions of the Civil Code applicable to 
 criminal proceedings, we do not find any- 
 where that this section is to apply to such 
 proceedings; on the contrary, the language 
 of the section itself furnishes convincing 
 proof that it was only Intended to apply to 
 civil cases. It states that, when the judge 
 or juror is called as a witness. It is in the 
 discretion of the court to suspend the trial, 
 and order it to take place before another 
 judge or jury. It is plain that on a trial of 
 a defendant for a felony, after the jury are 
 impaneled and sworn, the court would have 
 no power, without the consent of the de- 
 fendant, to suspend the trial, and order it to 
 take place before another jury. So we con- 
 clude that this section was not intended to 
 apply to criminal proceedings, and that we 
 have no statute permitting a judge to testi- 
 fy as a witness in a criminal trial over 
 which he is presiding. It has been held in 
 
 England that a judge may give evidence, but 
 that if he does so he must descend from the 
 bench, and cannot return thither during the 
 trial. Sichel, Wit. 14. This rule was ap- 
 plicable to trials where the court was com- 
 posed of several judges. In such a court, a 
 judge might descend from the bench, testify, 
 and take no further part in the trial of the 
 case without interfering with the progress 
 of the trial. Speaking of this question, Mr. 
 Rapalje says: "If the judge sits alone, he 
 cannot be sworn at all; and, if he be one 
 of several judges, he ought not to oe, unless 
 he leaves the bench during the trial. In 
 such a case, the maxim that 'no one shall 
 be both judge and witness in the same cause' 
 prevails." Rap. Wit. § 45. 
 
 This question came before the supreme 
 court of New York in a case where one of 
 the two judges presiding had testified, and 
 Folger, J., who delivered the opinion of the 
 court, said that it was erroneous, "because 
 such practice, if sanctioned, may lead to un- 
 seemly and embarrassing results, to the hin- 
 dering of justice, and to the scandal of the 
 courts." In the same opinion, referring to 
 the same matter, he says: "Other considera- 
 tions may be added: If a judge is put up- 
 on the stand as a witness, he has all the 
 rights of a witness, and he is subject to all 
 the duties and liabilities of a witness. It 
 may chance that he may for reasons suffi- 
 cient to himself, but not sufficient for an- 
 other 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 
 interlocutory question thus arising, and, up- 
 on 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 suspend its proceedings. Other like 
 results may be conceived as possible, equal- 
 ly as contrary to the good conduct of judi- 
 cial proceedings." People v. Dohring, 59 N. 
 Y. 374. This reasoning applies with even 
 greater force where the court is composed 
 of only one judge, for, if the judge of 
 such a court takes the stand to testify 
 against the defendant, there is no one to 
 control Ms testimony or keep him within 
 proper bounds. Even if he can control his 
 own testimony, and discharge, at the same 
 time, what have been called "the incompati- 
 ble duties of witness and judge," yet, how- 
 ever careful and conscientious he may be, 
 the chances are great that by thus testify- 
 ing he will to some extent detract from the 
 dignity that should surround the functions of 
 his high office. Instead of the impartial 
 judge administering the law with a firm 
 and even hand, he takes on for the time the 
 appearance of a pai-tisan, endeavoring to 
 
 383 
 
Case No. 133] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 uphold by his testimony one side against the 
 other. More than likely he provokes un- 
 seemly conflicts between himself and coun- 
 sel, and arouses the distrust of the party 
 against whom he testifies. In addition to 
 this, the higher his character and standing 
 as a judge the more danger that he thus 
 gives the party in whose favor he testifies 
 an undue advantage over the opposing side. 
 For these reasons, in the interest of the 
 dignity and decorum of the circuit court and 
 the orderly procedure therein, we feel com- 
 pelled to hold that a judge presiding at a 
 criminal trial cannot, against the olijectiou 
 of the defendant, be sworn and testify as a 
 witness on the part of the prosecution. Bish. 
 
 384 
 
 Cr. Proc. § 1145; Underh. By. § 313. We- 
 do not mean to intimate that in this case 
 there was any partiality shown by the learn- 
 ed judge of the circuit court. The record 
 shows to the contrary. The section of the 
 Digest above referred to is calculated to mis- 
 lead, if not read carefully, and the mistake 
 arose from being compelled to construe it 
 in the hurry of a nisi prius trial. There 
 were objections made to other rulings of the 
 court, but, when taken in connection with 
 the facts of this case, we do not discover any 
 error except as above indicated. For those 
 eri'ors the judgment is reversed, and the 
 cause remanded for a new ti'ial. 
 
 ^ 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 134 
 
 OX T. UNITED STATES. 
 
 (13 Sup. Ct. 50, 146 U. S. 140.) 
 
 Supreme Court of the United States. Nov. 14, 
 1892. 
 
 In error to the district court of the United 
 States for the district of Kansas. Reversed. 
 
 This was an indictment charging Clyde 
 Mattox with the murderof one Jolin Mullen, 
 about Decemlier 12, 1889, in that part of the 
 Indian Territory made part of the United 
 States judicial district of Kansas by section 2 
 of the act of congress of January 6, 1883, (22 
 St. p. 400, c. 13,) entitled "An act to pro- 
 vide for holding a term of the district court 
 of the United States at Wicliita, Kansas, and 
 for other purposes." 
 
 Defendant pleaded not guilty, was put upon 
 his trial, October 5, 1891, and on the 8th 
 of tliat month was found guilty as cliarged, 
 the jury having retired on the 7tli to con- 
 sider of their verdict. Motions for a new 
 trial and in arrest of judgment were sever- 
 ally made and overruled, and Mattox sen- 
 tenced to death. This writ of error was 
 thereupon sued out. 
 
 The evidence tended to sliow that Mullen 
 was shot in the evening between 8 and 9 
 o'clock, and that he died about 1 or 2 o'clocli 
 in the afternoon of the next day; that tliree 
 shots were tired and three wounds inliicted; 
 that neither of the wounds was necessarily 
 fatal, but that the deceased died of pneumonia 
 produced by one of them described as "in the 
 upper lobe of the right lung, entering about 
 two or three inches above the right nipple, 
 passing through the upper lobe of the right 
 lung, fracturing one end of the fourth rib, 
 passing through and lodging beneath tlie 
 skin on the right side beneath the shoulder 
 blade." The attending physician, who was 
 called a little after 9 o'clock and remained 
 with the wounded man until about 9 o'clock 
 in the morning, and visited him again be- 
 tween 8 and 9 o'clock, testified that Mrs. 
 Hatch, the mother of Clyde Mattox, was pres- 
 ent at that visit; that he regarded Mullen's 
 recovery as hopeless; thatMuUen, being "per- 
 fectly conscious" and "in a normal condi- 
 tion as regards hfs mind," asked his opinion, 
 and the doctor said to him: "The chances 
 are all against you; I do not think there is 
 any show for you at all." The physician 
 further testified, without objection, that, af- 
 ter he had informed Mullen as to his physical 
 condition, he asked him as to who shot him, 
 and he replied "he didn't have any knowl- 
 edge of who shot him. I interrogated him 
 about three times in regard to that, — who did 
 the shooting, — and he didn't know." Coun- 
 sel for defendant, after a colloquy with the 
 court, propounded the following question: 
 "Did or did not John Mullen, in your pres- 
 ence and at that time, say, in reply to a ques- 
 tion of Mrs. Hatch, ' 1 know your son, Clyde 
 Mattox, and he did not shoot me; I saw the 
 parties who shot me, and Clyde was not one 
 of them?' " This question was objected to 
 
 WILGUS.EV. — 35 
 
 as incompetent, the objection sustained, and 
 defendant excepted. Counsel also propounded 
 to Mrs. Hatch this question: "Did or did not 
 John Mullen say to you, on the morning you 
 visited him, and after Dr. Graham had told 
 him that all the chances for life were against 
 him, 'I know Clyde Mattox, your son, and he 
 was not one of the parlies who shot me?' " 
 This was objected to on the ground of incom- 
 petency, the objection sustained, and defend- 
 ant excepted. 
 
 In support of his motion for new trial, the 
 defendant offered the affidavits of two of tlie 
 jurors tliat the bailiff who had charge of the 
 jury in the case after the cause had been heard 
 and submitted, "and while they were deliber- 
 ating of their verdict," "in the presence and 
 hearing of the jurors or a part of Ihem, speak- 
 ing of the case, said: 'After you fellows get 
 through with this case it will be tried again 
 down there. Thompson has poison in a bottle 
 thiit them fellows tried to give him.' And at 
 another time, in the presence and hearing of 
 said jury or a part of them, referring to the de- 
 fendant, Clyde MatLox, said: ' This is the third 
 fellow he has killed.' " Theatlidavit of anoth- 
 er juror to the same effect, in respect of the 
 remark of the bailiff as to Thompson, was also 
 offered, and, in addition, the affidavits of 
 eight of the jurors, including the three just 
 mentioned, "that after said cause had been 
 submitted to the jury, and while the jury 
 were deliberating of their verdict, and before 
 they had agreed upon a verdict in the case, a 
 certain newspaper printed and published in 
 the city of Wichita, Kan., known as 'The 
 Wichita Daily Eagle,' of the date of Thurs- 
 day morning, Octobers, 1891, was introduced 
 into the jury room; that said paper contained 
 a comment upon the case under consideration 
 by said jury, and that said comment uponsaid 
 case so under consideration by said jury was 
 read to the jury in their presence and hear- 
 ing; that the comment so read to said jury is 
 found upon tlie fifth page of said paper, and 
 in the third column of said page, and is as 
 follows: 
 
 "'The Mattox Case— The Jury Betired at 
 Noon Yesterday and is Still Out. The des- 
 tiny of Clyde Mattox is now in the hands of 
 the twelve citizens of Kansas composing the 
 jury in this case. If he is not found guilty 
 of murder he will be a lucky man, fur the 
 evidence against him was very strong, or, at 
 least, appeared to be to an outsider. The 
 case was given to the jury at nuon yesterday, 
 and it was expected that their deliberations 
 would not last an hour before they would 
 return a verdict. The hour passed, and nine 
 more of them with it, and still a verdict was 
 not reached by 10:30 last nij,'ht, when the 
 jury adjourned and went to their rooms at 
 the Carey. Col. Johnson, of Oklahoma 
 city, defended him. and male an excellent 
 speech in his behalf to the jury. Mr. Ady 
 also made a fine speech, and one that was 
 full of argument and replete with the de- 
 tails of the crime committed, as gathered 
 from the statements of witnesses. Tho 
 
 SS5 
 
Case No. 134] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 lawyers who were present and the court 
 officers also agree that it was one of the best 
 and most logical speeches Mr. Ady ever 
 made in this court. It was so strong that 
 the friends of Mattox gave up all hope of 
 any result but conviction. Judge Riner's 
 instructions to the jury were very clear and 
 impartial, and n^quired nearly half an hour 
 for him to read them. When the jury filed out, 
 Mattox seemed to be the most unconcerned 
 man in the room. His mother was very 
 pale, and her face indicated that she liad but 
 very little hope. She is certainly deserving 
 of a good deal of credit, for she has stuck by 
 her son, as only a mother can, through all 
 his trials and difficulties, and this is not the 
 first one by any means, for Clyde has been 
 tried for his life once before. He is a youth- 
 ful looking man of light build, a beardless 
 face, and a nervous disposition. The crime 
 for which he has just been tried is the kill- 
 ing of a colored man in Oklahoma city over 
 two years ago. Nobody saw liim do the kill- 
 ing, and the evidence against him is purely 
 circumstantial, but very strong, it is claimed 
 by thuse who heard all the testimony.'" 
 
 The bill of exceptions states that these affi- 
 davits and a copy of the newspaper referred 
 to " were offered in open court by the defend- 
 ant in support of his motion for a new trial, 
 and by the said district court excluded; to 
 which ruling the defendant, by his counsel, 
 then and there excepts and still excepts." 
 And the defendant excepted to the overrul- 
 ing of his motions fornew trial and in arrest 
 of judgment. 
 
 J. W. Johnson, for plaintiff in error. Asst. 
 Atty. Gen. Maury, for the United States. 
 
 Mr. Chief Justice FULLER, after stating 
 the facts in the foregoing language, deliv- 
 ered tlie opinion of the court. 
 
 The allowance or relusal of a new trial 
 rests in the sound discretion of the court to 
 whirh the application is addressed, and the 
 result cannot be made the subject of review 
 by writ of error, (Henderson v. Moore, 5 
 Cranoh, 11; Newcomb v. Wood, 97 U. S. 
 581;) but in the case at bar the district court 
 excluded the affidavits, and, in passing upon 
 the motion, diil not exercise any discretion 
 in respect of the matters stated tlierein. 
 Due exception was taken, and the question 
 of adinissil>ility tliereby preserved. 
 
 It will be perceived tliat the jurors did not 
 state what influence, if any, the communica- 
 tion of the badiffi and the reading of the 
 newspaper had upon tliem, but confined 
 their statements to what was said by the one 
 and read from the other. 
 
 In U. S. V. Reid, 12 How. 361, 366, affi- 
 davits of two jurors were offered in evidence 
 to establish the reading of a newspaper re- 
 port of the evidence which had been given 
 in the case under trial, but both deposed that 
 it had no inlluence on their verdict. Mr. 
 Chief Justice Taney, delivering the opin- 
 ion of the court, said: "The first branch of 
 386 
 
 the second point presents the question wheth- 
 er the affidavits of jurors impeaching their 
 verdict ought to be received. It would per- 
 haps hardly be safe to lay down any general 
 rule upon this subject. Unquestionably such 
 evidence ought always to be received with 
 great caution, but cases might arise in which 
 it would be impossible to refuse them with- 
 out violating the plainest principles of jus- 
 tice. It is, however, unnecessary to lay down 
 any rule in this case, or examine the deci- 
 sions referred to in the argument; because 
 we are of opinion that the facts proved by 
 the jurors, if proved by unquestioned testi- 
 mony, would be no ground for a new trial. 
 There was nothing in the newspapers cal- 
 culated to influence their decision, and both 
 of them swear that these papers had not the 
 slightest influence on their verdict." The 
 opinion thus indicates 'that public policy, 
 which forbids the reception of the affidavits, 
 depositions, or sworn statements of jurors to 
 impeach their verdicts, may, in the interest 
 of justice, create an exception to its own rule, 
 while at the same time the necessity of great 
 caution in the use of such evidence is en- 
 forced . 
 
 There is, however, a recognized distinction 
 between what may and what may not be es- 
 tablished by the testimony of jurors to set 
 aside a verdict. 
 
 This distinction is thus put by Mr. Justice 
 Brewer, speaking for the supreme court 
 of Kansas in Perry v. Bailey, 12 Kan. 539, 
 545: "Public policy forbids that a malter 
 resting in the personal consciousness of one 
 juror should be received to overthrow the 
 verdict, because, being personal, it is not ac- 
 cessible to other testimony. It gives to the 
 secret thought of one the power to disturb 
 the expressed conclusions of twelve. Its 
 tendency is to produce bad faith on the part 
 of a minority; to induce an apparent acqui- 
 escence with the purpose of sulisequent dis- 
 sent; to induce tampering with individual 
 jurors subsequent to the verdict. But as to 
 overt acts, tliey are accessible to the knowl- 
 edge of all the jurors, it one affirms mis- 
 conduct, the remaining eleven can deny. 
 One cannot disturb the action of the twelve; 
 it is useless to tamper with one, for the 
 eleven may be heard. Under this view of 
 the lavr, the affidavits were properly received. 
 They tended to prove something which did 
 not essentially inhere in the verdict, — an 
 overt act, open to the knowledge of all the 
 jury, and not alone within the personal con- 
 sciousness of one." 
 
 The subject was much considered by Mr. 
 Justice Gray, then a member of the supreme 
 judicial court of Massachusetts, in Wood- 
 ward V. Leavitt, 107 Mass. 453, where nu- 
 merous authorities were referred to and ap- 
 plied, and the conclusions announced "that, 
 on a motion for a new trial on the ground 
 of bias on the part of one of the jurors, the 
 evidence of jurors, as to the motives and in- 
 fluences which affected their deliberations, 
 is inadmissible either to impeach or to sup- 
 
COMPETENCY OF WITNESSES. 
 
 [Case No. 134 
 
 port the verdict. But a juryman may tes- 
 tify to any facts bearing upon the question 
 of the existence of any extraneous inlluence, 
 although not as to how far that influence op- 
 erated upon his mind. So a juryman may 
 testify in denial or explanation of acts or 
 declarations outside of tlie jury room, where 
 evi<lence of such acts has been given as 
 ground for a new trial." See, also, Ritchie 
 V. I-Joibrooke, 7 Serg. & R. 458; Chews v. 
 Driver, 1 N. J. Law, ld6; Nelms v. State, 
 13 Smedes & M. 500; Hawkins v. New Or- 
 leans, etc., Co., 29 La. Ann. 134, 140; Whitney 
 V. Whitman, 5 Mass. 405; Hix v. Drury, 5 
 Pick. 296. 
 
 We regard the rule thus laid down as 
 conformable to right reason and sustained 
 by the weight of autliority. These affida- 
 vits were within the rule, and, being mate- 
 rial, their exclusion constitutes reversible er- 
 ror. A brief examination will demonstrate 
 their materiality. 
 
 It is vital in capital cases that the jury 
 should pass upon the case free from ex- 
 ternal causes tending to disturb tlie exer- 
 cise of deliberate and unbiased judgment. 
 Nor can any ground of suspicion that tlie 
 administration of justice has been interfered 
 with be tolerated. Hence, the separation 
 of the jury in such a way as to expose them 
 to tampering may be reason for a new trial, 
 vaiiously held as absolute; or prima facie, 
 and subject to rebuttal by the prosecution; 
 or contingent on proof indicating that a 
 tampering really took place. Whart. Crim. 
 PI. §§ 821, 823, 824, and cases cited. 
 
 Private communications, possibly prejudi- 
 cial, between jurors and third persons, or 
 witnesses, or the officer in charge, are abso- 
 lutely forbidden, and invalidate the verdict, 
 at least unless their harmlessness is made to 
 appear. 
 
 Indeed, it was held in People v. Knapp, 
 42 Mich. 267. 3 N. W. Rep. 927, that the 
 presence of an officer during the delibera- 
 tions of the jury is such an irregular inva- 
 sion of the right of trial by jury as to ab- 
 solutely vitiate tlie vejdict in ail cases, with- 
 out regard to whether any improper influ- 
 ences were actually exerted over the jury or 
 not. And in State v. Snyder, 20 Kan. 306, 
 where the bailiff who had charge of the jury 
 had been introduced and examined as a wit- 
 ness on behalf of the state, and had testi- 
 fied to material facts against the accused, his 
 presence in the jury room durins; the delib- 
 erations of the jury was held fatal to the ver- 
 dict. 
 
 In Gainey v. People, 97 111. 270, the su- 
 preme court of Illinois was of opinion that 
 the presence of a bailiff, in charge of a jury 
 in a capital case, in the jury room during a 
 part of their deliberations, was a grave ir- 
 regularity and a breach of duty on the part 
 of the officer, which would or would not vi- 
 tiate the verdict, depending upon the circum- 
 stances in each particular case; and the ap- 
 plication of the rule in State v. Snyder was 
 approved, but the conclusion reached in Peo- 
 
 ple V. Knapp was not fully sanctioned. The 
 text-books refer to many cases in which the 
 action of the officer having a jury in charge, 
 when prejudice might have resulted; or un- 
 aulhurized coram nnicalions having a ten^ 
 dency to adverse influence; or the reading of 
 newspapers containing imperfect reports of 
 the trial, or objectionable matter in the form 
 of editorial comments or otherwise, — have 
 been held fatal to verdicts. 
 
 The jury in the case before us retired to 
 consider of their verdict on the 7th of Octo- 
 ber, and had not agreed on the morning of 
 the 8th, when the newspapfr article was read 
 to them. It is not open to reasonable doubt 
 that the tendency of that article was injuri- 
 ous to the defendant. Statements that the 
 defendant had been tried for his life once 
 before; tliat the evidence against him was 
 claimed to be very strong by those who had 
 heard all the testimony; that the argument 
 for the prosecution was such that the defend- 
 ant's friends gave up all hope of any result 
 but conviction; and that it was expected that 
 the deliberations of the jury would not last 
 an hour before they would return a verdict, 
 — could have no other tendency. Nor can it 
 be legitimately contended that the miscon- 
 duct of the bailiff could have been otherwise 
 than prejudicial. Information that this was 
 the third person Clyde Mattox had killed, 
 coming from the officer in charge, precludes 
 any other conclusion. We should therefore 
 be compelled to reverse the judgment because 
 the affidavits were not received and consid- 
 ered by the court, but another ground exists 
 upon which we must not only do this, but di- 
 rect a new trial to be granted. 
 
 Dying declarations are admissible on a 
 trial for murder, as to the fact of the homi- 
 cide and the person by whom it was com- 
 mitted, in favor of the defendant as well as 
 against him. 1 East, P. C. 353; Rex v. 
 Scaife, 1 Moody & R. 551 ; U. S. v. Taylor, 
 4 Cranch, C. C. 338; Moore v. State, 12 Ala. 
 764; Com. v. Matthews, 89 Ky. 287, 12 S. 
 W. Rep. 333. But it must be shown by the 
 party offering them in evidence that they 
 were maile under a sense of impending 
 death. This may be made to appeiir from 
 what the injured person said; or from the 
 nature and extent of the wounds inflicted 
 being obviously such that he must have felt 
 or known that he could not survive; as well 
 as from his conduct at the time and Ihe 
 communications, if any, made to him by his 
 medical advisers, if assented to or under- 
 standingly acquiesced in by him. The 
 length of time elapsing between the making 
 of the declaration and the death is one of 
 the elements to be considered, although, as 
 stated by Mr. Greenleaf, "it is the impres- 
 sion of almost immediate dissolution, and 
 not the rapid succession of death, in point of 
 fact, that renders the testimony admissi- 
 ble." 1 Greenl. Ev. (ISth Ed.) g§ 156, 157, 
 158; State v. Wensell, 98 Mo. 137. 11 S. W. 
 Rep. 614; Com. v. Hanev. 127 Mass. 455; 
 Kehoev. Com., 85 Pa. St. 127; Swisher v. 
 
 387 
 
Case No. 134] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 Com., 26 Giat. 963; State v. Schmidt, 73 Iowa, 
 469, 35 N. W. Rep. 590. In Reg. v. Per- 
 kins, 9 Car. & P. 395, the deceased received a 
 severe wound from a gun loaded with shot, 
 of which wound he died at 5 o'clock the 
 next morning. On the evening of the day 
 on which he was wounded, he was told by a 
 surgeon that he could not recover, made no 
 reply, but appeared dejected. It was held by 
 all the judges of England that a declara- 
 tion made by him at that time was receivable 
 in evidence on the trial of ii person for killing 
 him, as being a declaration in articulo mortis. 
 There the declKration was against the ac- 
 cused, and obviously no more rigorous rule 
 should be applied when it is in his favor. 
 The point is to ascertain the state of the 
 mind at the time the declarations were made. 
 The admission of the testimony is justified 
 upon the ground of necessity, and in view of 
 the consideration that the certain expecta- 
 tion of almost immediate death will remove 
 all temptation to falsehood and enforce as 
 strict adherence to the truth as the obliga- 
 tion of an oath could impose. But the evi- 
 dence must be received with the utmost 
 caution, and, if the circumstances do not 
 satisfactorily disclose that the awful and 
 solemn situation in which he is placed is 
 realized by the dying man because of the 
 hope of recovery, it ought to be rejected. 
 In this case the lapse of time was but a few 
 Hours. The wounds were three in number, 
 and one of them of great severity. The 
 \383 
 
 patient was perfectly conscions, and asked 
 the attending physician his opinion, and was 
 told that the chances were all againsc him, 
 and that the physician thougiit there was no 
 "show for you [him] at all." He was then 
 interrogated as to who did the shooting, and 
 he replied that he did not know. All this 
 was admitted without objection. Defend- 
 ant's counsel then endeavored to elicit from 
 the witness whether, in addition to saying 
 that he did not know the parties who shot 
 him, Mullen stated that he knew Clyde Mat- 
 tox, and that it was not Clyde who did so. 
 The question propounded was objected to on 
 the sole ground of incompetency, and the 
 objection sustained. In this, as the case 
 stood, there was error. So long as the evi- 
 dence was in the case as to what Mullen 
 said, defendant was entitled to refresh the 
 memory of the witness in a proper manner, 
 and bring out, if he could, what more, if 
 anything, lie said in that connection. It 
 was not inconsistent with Mullen's statement 
 that he did not know the parties, for him also 
 to have said that he knew Mattox was not 
 one of them. His ignorance of who shot 
 him was not incompatible with knowledge of 
 who did not shoot him. AVe regard the er- 
 ror thus committed as justifying the award- 
 ing of a new trial. 
 
 The judgment is reversed, and the cause 
 remanded to the district court of the United 
 States for the district of Kansas, with a di- 
 rection to grant a new trial. ^-^ 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No, 135 
 
 VOGEL V. GRUAZ. 
 
 (4 Sup. Ct. 12, 110 U. S. 311.) 
 
 Supreme Court of the United States. Feb. 4, 
 1884. 
 
 In Error to the Circuit Court of tlie United 
 States for tlie Southern District of Illinois. 
 
 J. K. Edsall and John B. Hawley, for 
 plaintiff in error. H. S. Greene and .Tohn 
 M. Palmer, for defendant in error. 
 
 Mr. Justice BLATCHFORD delivered the 
 opinion of the court. 
 
 This is an action on the case, brought by 
 Timothy Gruaz, against Rudolph Bircher, 
 to recover damages for the speaking and 
 publishing of false, malicioiis, scandalous, 
 and defamatory words, charging the plain- 
 tiff with being a thief, and with having 
 stolen tlie money of the defendant, meaning 
 the crime of larceny. The suit was com- 
 mented in a state court of Illinois, and was 
 removed by the defendant into the circuit 
 court of the United States for the Southern 
 district of Illinois. At the trial before a 
 jU'-y a verdict was rendered for the plain- 
 tiff, June 6, 1879, for $6,000 damages. On 
 the next day the defendant filed a motion 
 for a new trial. On the fourteenth of June 
 the defendant died, on the twelfth of July 
 an order abating the case was moved for, 
 on behalf of the defendant, and on the six- 
 teenth of August the court overruled the 
 motion for a new trial and the motion for 
 an order of abatement, and entered a Judg- 
 ment for the plaintiff, against Bircher, for 
 $6,000 and costs, as of June 7, 1879. The 
 order for judgment recited that the hearing 
 by the court of the motion for a new ti'ial 
 was, when it was filed, postponed to a then 
 future and convenient day of the same term, 
 and that the defendant died pending the 
 hearing of the motion. Leave was given to 
 the executor of the defendant to prepare a 
 bill of exceptions and to take a writ of er- 
 I'or. The bill of exceptions being signed, it 
 was filed by the executor, and the writ of 
 error was issued. Various errors are as- 
 signed, and among them that the circuit 
 court did not grant the motion to abate the 
 suit, and that it rendered a judgment against 
 Bircher after his death. But it is unneces- 
 sary to pass on those questions, because we 
 are of opinion that the judgment must be 
 reversed for another error committed at the 
 trial. 
 
 Three witnesses for the plaintiff gave evi- 
 dence tending to prove the speaking to them 
 by the defendant of more or less of the 
 words set forth in the declaration; and after- 
 wards C. L. Cook was sworn as a witness 
 for the plaintiff, and testified that he was 
 state's attorney for Madison county. Illinois: 
 he had a slight acquaintance with Bircher; 
 and that he knew Gruaz. The following 
 proceedings then occurred: "Question. 1 
 will ask you if you had any conversation with 
 Dr. Bircher with regard to Gruaz, and, if 
 
 so, when was it? Counsel for defense asked 
 witness if at that time he was occupying 
 tha same position he now holds. Answer. 
 Yes, sir. Q. It was communicated to you 
 while you held that position and were acting 
 in that capacity, whatever was communicat- 
 ed to you by Bircher V A. Yes, sir. (De- 
 fendant's counsel object to witness testify- 
 ing to matters disclosed to him by the de- 
 fendant under the circumstances stated, on 
 the ground that such communications are 
 to be treated as privileged.) The Court. 
 I will ask the witness if he regarded It pro- 
 fessionally as a privileged communication? 
 A. I had never met defendant before; he 
 was introduced to me by a citizen of our 
 place, and he informed me that he wanted 
 to talk with me with regard to a matter he 
 wanted to bring before the grand jui^y. (Ob- 
 jected to.) The Court. I will allow the wit- 
 ness to state what the doctor said on that oc- 
 casion. Of course, if he made the communi- 
 cation to the witness in good faith, there 
 would be no malice about it, and I shall in- 
 struct the jury to disregard it. The objection 
 is overruled. To which ruling of the court 
 the defendant at the time excepted. A. As I 
 stated, I had at that time no acquaintance 
 with defendant v/hatever. He inquired for 
 the state's attorney, and was introduced to . 
 me, and he spoke of his affairs. He said he 
 wanted to bring a matter before the grand 
 jury in regard to Mr. Gruaz. I talked with 
 him in regard to the nature of the mat- 
 ter, and he talked pretty freely in regard to- 
 it, and I directed him to the grand jury 
 room. He said a good many things. He 
 was evidently in earnest at the time, ex- 
 pressed himself very freely in regard to him. 
 I would not like to swear to the exact words 
 used, or that anybody used at the time. I 
 can give the substance of what he said, I 
 suppose. He wanted to prosecute Gruaz for 
 stealing, was the amount of it. I recollect 
 this: he charged him with having stolen his 
 money, and I asked him how, and he told 
 me how it had bean done. Gi-uaz was his 
 agent and handled his funds, rented his 
 fanns, and had failed to account for a large 
 amount of money, he told me, and he char- 
 ged him in this conversation with having 
 stolen his money, and he said he wanted to 
 know if there was any law in this state 
 to prosecute a man for that. I have no ob- 
 jection to state any words. I remember his 
 makiug the charge that he had stolen his 
 money, but I can't swear that the word 
 'thief was used at that time; that it was in 
 substance, undoubtedly. My impression is 
 that this was the March term, 1S7S, of the 
 circuit court of Madison county, either that 
 or October term. 1877; my recollection and 
 decided impression is that it was the spring 
 term, 1878. Dr. Bircher went into the 
 grand jury room and gave his statement 
 to the grand jury. He was anxious, of 
 course, to have the indictment found, and 
 he evidently believed or so expressed him- 
 
 389 
 
Case No. 135] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 self. (Counsel for defendant objected to wit- 
 ness stating his opinion about what defend- 
 ant evidently believed.) The Court. He said 
 he went before ine grand jury, and said he 
 seemed to be in earnest in his movements, 
 but he didn't say what took place before 
 the grand jury. Don't know, I suppose. 
 Witness. Xo, I don't know. Ci'oss-examina- 
 tion. Maj. Priekett introduced Bircher to 
 me; never saw him before in my life. I 
 was certain he came to see me as prosecut- 
 ing attorney, in good faith. That was his 
 business, as he stated it to me. After he 
 made his statement to me I advised him to 
 go before the grand jury; directed him to 
 their room. He went there by my advice. 
 Hold on — ^I don't say that; I advised him 
 that he had a good case. He came to me 
 and I showed him where the grand jui"y 
 room was. He stated his case to me as 
 state's attorney. I then directed him where 
 to go, and said I should prosecute it as j 
 vigorously as possible, if the indictment was 
 found. In regard to the aavico I gave him, 
 I rather encouraged him to drop the thing; 
 I told him lie had better sue Jlr. Gruaz flj'st, 
 and see if he couldn't get judgment against 
 him, and so put it in a better shape to prose- 
 cute him. He stated his case, and I thought 
 from his statement that he would have few, 
 if any. witnesses besides himself, and that 
 it would lie doubtful, however honestly he 
 udght believe, that he had cause; It would i 
 be doubtful whether the jurj- would bring a 
 bill; so I advised him to bring a civil suit: 
 but, said I, you are here, and you mustn't 
 think hardly of me if the grand jury don't 
 find a bill; and I directed him to the grand 
 jury room." I 
 
 The bill of exceptions also contains the ] 
 following: "In reference to the testimony 
 of state's attorney C. L. Cook, the court 
 instructed the jury as follows: T admitted 
 that evidence with an explanation, and with 
 the explanation made in the admission of 
 it I think I am content, and I think the jury 
 may take it into consideration; but if they 
 think the defendant was actuated by honest 
 motives in making the declaration he did, 
 they ^^ill disregard it.' To the giving of 
 which last instraction the defendant ex- 
 cepted, for the reason that the Instruction 
 ignores the element of want of probable 
 cause, and for the reason also that the jury 
 should have been instructed to disregard 
 Cook's testimony entirely." 
 
 We are of opinion that what was said by 
 Blroher to Mr. Cook was an absolutely privi- 
 leged communication. It was said to Mr. 
 Cook while he was state's attorney or prose- 
 cutor of crimes for the county, and while 
 he was acting in that capacity. Bircher in- 
 quired for the state's attorney and was in- 
 troduced to him, and stated to him that he 
 wanted to talk with him about a matter he 
 wanted to bring before the grand jury in 
 regard to Gruaz. He laid the matter before 
 Mr. Cook, and charged Gruaz with having 
 
 390 
 
 stolen his money, and was asked how, and 
 stated how and inquired of Mr. Cook if 
 there was any law in Illinois by which a 
 man could be prosecuted for that. The 
 grand jury was then in session, and Mr. 
 Cook advised Bircher that he had a good 
 case and directed him to the grand jury- 
 room, and Bircher went before the grand 
 jury. If all this had taken place between 
 Bircher and an attorney consulted by him 
 who did not hold the public position which 
 Mr. Cook did, clearly, the communication 
 would have been privileged and not to be 
 disclosed against the objecUon of Bircher. 
 Under the circumstances shown, Mr. Cook 
 was the professional adviser of Bircher, con- 
 sulted by him on a statement of his case, 
 to learn his opinion as to whether there was 
 ground in fact and in law for making an 
 attempt to procure an indictment against 
 Gruaz. The fact that Mr. Cook held the 
 position of public prosecutor, and was not 
 to be paid by Bircher for information or ad- 
 vice, did not destroy the relation which the 
 law established between them. It made that 
 relation more sacred on the ground of pub- 
 lic policy. The avenue to the grand jury 
 should always be free and unobstmcted. 
 Bircher might have gone directly before it 
 without consulting Mr. Cook, but if he chose 
 to consult him instead of a private counsel, 
 there was great propriety in his doing so. 
 Any person who desires to pursue the same 
 course should not be deterred by the fear 
 of having what he may say in the confidence 
 of a consultation with a professional adviser, 
 supposed to be the best qualified for the 
 purpose, disclosed afterwards in a civil suit 
 agaiust his objection. Oliver v. Pate, 43 Ind. 
 132. By the statute of Illinois in force at 
 the time of this occurrence, it was made the 
 duty of each state's attorney to "commence 
 and prosecute" all criminal actions, suits, 
 indictments, and prosecutions in any court 
 of record in his county, in which the people 
 of the state or county might be concerned. 
 (Rev. St. 1874, c. 14, § 5, subd. 1.) Under 
 this provision it was the province and the 
 privilege of any person who knew of facts 
 tending to show the commission of a crime, 
 to lay those facts before the public officer 
 whose duty it was to commence a prosecu- 
 tion for the crime. Public policy will pro- 
 tect all such communications absolutely, and 
 without reference to the motive or Intent of 
 the informer or the question of probable 
 cause; the ground being that greater mis- 
 chief will probably result from requiring or 
 permitting them to be disclosed than from 
 wholly rejecting them. Mr. Cook learned 
 from Bircher the things to which he testified, 
 because he occupied the position of public 
 prosecuting officer, and because he was act- 
 ing at the time as the legal adviser of Bircher 
 in respect to the matter and question which 
 Bircher was laying before him. The free 
 and unembarrassed administration of justice 
 in respect to the criminal law in which the 
 
PKIVILEGED COMMUNICATIONS. 
 
 [Case No. 135 
 
 public is concerned, is involved in a case like 
 the present, in addition to the considerations 
 which ordinarily apply in communications 
 from client to counsel in matters of purely 
 private concern. Bircher made his commu- 
 nication to Mr. Cook for the purpose of ob- 
 taining professional advice as to his right, 
 and that of the public througli him, to have 
 a criminal prosecution commenced by jNIr. 
 Cook by the intervention of the grand jury 
 against Gruaz. 
 
 But there is another view of the subject. 
 The matter concerned the administration of 
 penal justice, and the principle of public 
 safety justilies and demands the rule of ex- 
 clusion. In Worthiugton v. Scribner, 109 
 Mass. 187, an action for maliciously and 
 falsely representing to the treasury depart- 
 ment of the United States that the plaintiff 
 was intending to defi-aud the revenue, it was 
 held that the defendant could not be com- 
 pelled to answer A^hether he did not give 
 to the deijartment information of supposed 
 or alleged frauds on the revenue contemplat- 
 ed by the plaintiff. The principle laid down 
 in that case was, that it is the duty of every 
 citizen to communicate to his government 
 any information which he has of the com- 
 mission of an offense against its laws; and 
 that a court of justice will not compel or 
 allow such information to be disclosed, either 
 
 by the subordinate officer to whom it is given, 
 by the informer himself, or by any other 
 person, without the permission of the gov- 
 ernment, the evidence being excluded not for 
 the protection of the witness or of the party 
 in the particular case, but upon general 
 grounds of public policy, because of the con- 
 fidential nature of such communications. The 
 authorities are collected and reviewed in that 
 case. The case of Da vv kins v. Rokeby, L. R. 
 8 Q. B. 2ri5, there cited, was affirmed by the 
 house of lords, L. R. 7 H. L. 744. See, also, 
 1 Greenl. Ev. § 2.50; Black v. Holmes, 1 Fox 
 & Sm. 28. 
 I It makes no difference that there was evi- 
 i deuce of the speaking of the same words to 
 i persons other than Mr. Cook, and that the 
 I speaking of them to Mr. Cook was not the 
 I sole ground of action or of recovery. The 
 ; evidence was incompetent, and it must be 
 I inferred that it affected the minds of the jury 
 both on the main issue and on the question 
 of damages. 
 
 It results from these views that the judg- 
 ment below cannot be upheld, and that it 
 must be reversed, and the case be remanded 
 to the circuit court, with direction to set 
 aside the verdict and vacate the judgment 
 and take such further proceedings as may be 
 according to law and not inconsistent with 
 this opinion. 
 
 391 
 
Case No. 136] PfiODUCTION AND EFFECT OF EVIDENCE. 
 
 Appeal of HARTEANFT et al. 
 (85 Pa. St. 433.) 
 Supreme Court of Pennsylvania. Jan. 7, 1878. 
 This is an ai^peal of Jolm P. Hartranft, 
 governor of the commonwealth, M. S. Quay, 
 secretary of the commonwealth, James W. 
 Latta, adjutant general of the common- 
 wealth. General R. M. Brinton, and Major 
 A. Wilson NoiTis, from an order of the court 
 of quarter sessions of the peace of Alle- 
 gheny county, directing attachments to issue 
 against them for failure to obey a subpoena 
 of the grand j ury who were investigating the 
 matters of the riots at Pittsburgh of July 
 21 and 22, 1877. 
 
 Thomas M. Marshall, Lyman D. Gilbert, 
 Dep. Atty. Gen., and George Lear, Atty. Gen., 
 for appellants. B. A. Montooth, Dist. Atty., 
 Morton Hunter, Asst. Dist. Atty., S. A. Mc- 
 Cluug, and George Shiras, Jr., contra. 
 
 GORDON, J. Grand juries have the power 
 to make presentment, not only of such crim- 
 inal offences as may be laid before them by 
 the district attorney in the form of bills of 
 indictment, and of such as may come within 
 the personal knowledge of individual mem- 
 bers thereof, but also of all such matters as 
 may be given them in charge by the court. 
 Neither is there any doubt about the power 
 of the court to direct that body to make in- 
 quiry concerning affairs which directly af- 
 fect the public peace and society, among 
 which affairs may be instanced great riots, 
 such as those which recently disturbed the 
 well-disposed citizens of Pittsburgh and its 
 vicinity. Matters of this kind may properly 
 be referred to the consideration of the grand 
 inquest in order tliat the instigators thereof 
 and the participants therein may be brou;;ht 
 to justice; and this is the more necessary 
 because in times of public tumult and alaam 
 private prosecittors may be overawed through 
 fear of personal violence. 
 
 Doubtless the proceedings in the case be- 
 fore us are very irregular, since there seems 
 to be a total inversion of the proper ordej.' 
 of things. It was the duty of the court, not 
 of the grand jury, first to move in the matter. 
 In a subject of so much importance, and 
 one requiring the exercise of so much care 
 and discretion, the court should have in- 
 strocted this jury as to what it was to inves- 
 tigate, and in what manner the investigation 
 was to be conducted. Nothing of the kind, 
 however, was done; but the court, having 
 appi'oved its petition, suffered it to proceed 
 to the adoption of its own subjects, after its 
 own methods, and, by this sufferance, it al- 
 lowed an important public investigation to 
 pass from its own control to that of a body 
 of men, which, as it was governed by no reg- 
 ular instructions, resembled more a commit- 
 tee for the general investigation of public 
 affairs, than a lawful constituent of the court 
 of quarter sessions. This, however, is really 
 of small importance to the matter in hand; 
 
 392 
 
 neither can the appellants call in ques- 
 tion the regularity of the proceedings as 
 between the court and its grand jury; 
 for if they have been properly subpoen- 
 aed, and can present no lawful excuse for 
 their want of obedience to the mandate 
 of the quarter sessions, they must stand con- 
 victed of a contempt, and we cannot help 
 them. The subpcena Is the process of the 
 commonwealth, and there is no doubt about 
 the court's power to issue that process in 
 proper cases. 
 Our inquiry, then, is limited to two prop- 
 
 Iositions: Were the subpoenas regular, such 
 as an ordinary citizen would be bound to 
 obey? If so, were the appellants liable to 
 attachment for disobedience to this process? 
 The subpoena we have before us, like the 
 other proceedings in this case, is very irreg- 
 ular. It is, indeed, but a general mandate 
 of the court, ordering the appellants to ap- 
 pear, "to testify, all and singular, those 
 things which they may know touching a cer- 
 tain investigation being had, oh' formal pre- 
 sentment, by and before the grand jury, 
 relating to the late riots of July last, in said 
 county, in said court depending." It sets 
 forth no case, present or prospective, nor 
 does it state for whom, or at whose instance, 
 the defendants were to be subpoenaed. As 
 this writ is a ■\'erj- arbitrary one, obliging 
 the citizen to leave his home and abandon 
 his business, however important it may be, 
 and give his attendance at court, wherever 
 that may be sitting, it is very important to 
 know what parties are entitled to it; for if 
 it be issued at the suit of one having no right 
 thereto, it is no contempt to disobey it. The 
 commonwealth may have this process in any 
 proceeding where its interest is apparent, 
 whether as a suitor or a prosecutor, and so 
 may parties in courts, either civil or crim- 
 inal; but we have yet to learn that any such 
 right exists in a court, in its mere character 
 as a court, separated from the case which it 
 has in hand. So this, as well as every other 
 compulsory process, must show upon its face 
 that it was issued for some person or party 
 having a right thereto, otherwise it is nuga- 
 toiy and void, and disobedience to its man- 
 date involves no penalty whatever. In the 
 case before us there was the use of the writ 
 of subpoena, as a mere order of the court, 
 without statement of party or case, com- 
 manding the defendants to appear before 
 the grand jury, for the purpose of giving 
 their testimony touching tlie late riots. If 
 there is any law authorizing such process, 
 we have not been informed of it. 
 
 No doubt the court might have directed 
 a subpoena to have issued for the common- 
 wealth, in any case where the commonwealth 
 was a party, or where it was apparent it 
 was in some way interested in some case or 
 transaction then depending. So might it have 
 directed a warrant to have issued for the 
 arrest of some one guilty of a crime or mis- 
 demeanor; but in such case no one would 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 136 
 
 / 
 
 contend that the mere blank warrant of the 
 court would in itself be sufficient to detain 
 a citizen for one moment. The authority for 
 such warrant must appear upon its face or 
 it is worthless. But the court's subposna is 
 no more respectable than its wan-ant. If the 
 subpcena exhibit no authority it may be dis- 
 obeyed with impunity. Now, in the case be- 
 fore us, the commonwealth was not a party 
 in interest, or, if so, it is not now apparent. 
 It seems, from the petition of the grand 
 jury, that the citizens of the county of Al- 
 legheny "were greatly concerned in having 
 a careful investigation of the late riots," but 
 whether they were concerned in bringing 
 the rioters to justice or not is not stated, 
 though this was the only matter in which 
 the commonwealth could be concerned. 
 Moreover, as the grand jury was acting un- 
 der no instruction, it was not possible, even 
 for the court, to know what that jury was 
 doing or intended to do, but of this the court 
 should have been informed before it under- 
 took to interfere with the personal liberty 
 of the citizen by its summary process of at- 
 tachment, for, as the matter now stands, it 
 Is apparent that the subpoena was issued for 
 / no tangible cause or party and for no proper- 
 / ly defined legal purpose; hence no one was 
 I bound to obey it. 
 
 For the purposes of this case, however, 
 we may admit the regularity of this sub- 
 poena, and that, upon an ordinary citizen, 
 it would have been binding and obligatory, 
 for we regard the (juestion of the liability 
 of the appellants to attachment, in any 
 event, as the prime one in this case. In 
 order to resolve this, we must first under- 
 stand who the persons are against whom 
 the court has directed its attachment, and 
 for what purpose they have been sub- 
 poenaed. They are the governor of Pennsyl- 
 vania, the secretary of the commonwealth, 
 the adjutant general, chief officers of the 
 executive department of the state govern- 
 ment, and two officers of the national guard; 
 the latter subordinates acting under the or- 
 ders of the former. The purpose, for which 
 these officers are subpoenaed is that the 
 grand jury may be put into possession of 
 any information they may be possessed of, 
 or that may be within the power of their 
 several departments, concerning the military 
 or other means used by them in the sup- 
 pression of the late riots in the city of Pitts- 
 burgh. It will be observed that these per- 
 sons are subpoenaed for the purpose of com- 
 pelling a revelation of such things as have 
 come to their knowledge in their official 
 capacities, and which strictly belong to their 
 several departments as officers of the com- 
 monwealth. This is clearly set out in the 
 answer by the attorney general to the ap- 
 plication for the attachment, and there has 
 been no denial thereof, upon the argument 
 before' us. In order to simplify matters, we 
 may treat this case just as though the pro- 
 cess, first and last, were against the gov- 
 
 ernor alone; for if he is exempt from at- 
 tachment because of his privilege, his im- 
 munity protects his subordinates and agents. 
 The general principle is that whenever the 
 law vests any person with the power to do 
 an act at the same time constituting him a 
 judge of the evidence on which the act may 
 be done, and contemplating the emplojment 
 of agents through whom the S.ct is to be ac- I 
 complished, such person is clothed with dis- j 
 cretionary powers, and is quoad hoc a judge. 
 His mandates to his legal agents, on his de- 
 claring the event to have happened, A\ill be 
 a protection to those agents. Vauderlieyden. 
 V. Young, 11 Johns. 158, per Spencer, J. 
 
 It follows, if the governor, as supreme 
 executive, and as commander in chief of 
 tlie army of the commonwealth, is charged 
 with the duty of suppressing domestic in- 
 surrections, he must be the judge of the 
 necessity requiring the exercise of the pow- 
 ers with which he is clothed; and his sub- 
 ordinates, who are employed to render these 
 poAvers efficient and to produce the legiti- 
 mate results of their exercise, can be ac- 
 countable to none but him. In like manner, 
 if he is constituted the judge of what things, 
 knowledge, or information, coming into his 
 department through himself personally or 
 from his subordinates may or may not be 
 revealed, then such subordinates, without 
 his permission, cannot be compelled to dis- 
 close, in court, any such matters or informa- 
 tion. 
 
 What, then, are the duties, powers, and 
 privileges of the governor? In the language 
 of the constitution (article 4, § 2): "The 
 supreme executive power shall be vested in 
 the governor, who shall take care that the 
 laws be faithfully executed." Also, same 
 article, section 7: "The governor shall be 
 commander in chief of the army and navy 
 of the commonwealth, and of the militia, 
 except when they shall be called into the 
 actual service of the United States." He is 
 also invested with the appointment and par- 
 doning powers, the power to convene the 
 legislature in cases of emergency, and to ap- 
 prove or veto bills submitted to liim by the 
 general assembly. It is scarcely conceivable 
 that a man could be more completely invest- 
 ed with the supreme power and dignity of 
 a free people. Observe, the supreme execu- 
 tive power is vested in the governor, and he 
 is charged with the faithful execution of 
 the laws, and for the accomplishment of 
 this purpose he is made commander in chief 
 of the army, navy, and militia of the state. 
 Who, then, shall assume the power of the 
 people, and call this magistrate to an ac- 
 count for that which he has done in dis- 
 charge of his constitutional duties? If he 
 is not the judge of when and how these 
 duties are to be performed, who is? Where 
 does the court of quarter sessions, or any 
 other coul-t, get the power to call this man 
 before it, and compel him to answer for the 
 manner in which he has discharged his con- 
 
 393 
 
Oase Ko. 136] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 stitutional functions as executor of the laws 
 and commander in chief of the militia of the 
 commonwealth? For it certainly is a logical 
 sequence that if the governor can be com- 
 pelled to reveal the means used to accom- 
 isllsh a given act, he can also be compelled 
 to answer for the manner of accomplishing 
 such act. If the court of quarter sessions 
 of Allegheny bounty can shut him up in 
 prison for refusing to appear before it and 
 reveal the methods and means used by him 
 to execute the laws and suppress domestic 
 violence, why may it not commit him for a 
 breach of the peace, or for homicide, result- 
 ing from the discharge of his duties as 
 commander in chief? And if the courts can 
 compel him to answer, why can they not 
 compel him to act? AH these things, we 
 know, may be done in the case of private in- 
 dividuals. Such an one may be compelled 
 to answer, to account and to act. In other 
 words, if, from such analogy, we once begin 
 to shift the supreme executive power from 
 him upon whom the constitution has con- 
 ferred it to the judiciary, we may as well 
 do the work thoroughly and constitute the 
 courts the absolute guardians and directors 
 of all governmental functions whatever. If, 
 however, this cannot be done, we had bet- 
 ter not lake the first step in that direction. 
 We had better at the outstart recognise the 
 fact that the executive department is a co- 
 ordinate branch of the government, with 
 power to judge what should or should not 
 
 I be done within its own department, and 
 what of its own doings and communica- 
 tions should or should not be kept secret, 
 and that with it, in the exercise of these 
 constitutional powers, the courts have no 
 more right to interfere than has the execu- 
 tive, under like conditions, to interfere with 
 the courts. In the case of Oliver v. AVar- 
 moutli, 22 La. 1, it was held (per Taliafero, 
 J.) that, under the division of powers, as laid 
 down in the federal and state constitutions, 
 the judiciary department has no jurisdic- 
 tion over or right to interfere with, the in- 
 dependent action of the chief executive in 
 the functions of his office, even though the 
 act he is required to perform be purely min- 
 isterial. This is putting the mattea' on very 
 high grounds, for in such case no other 
 olBcer would be exempt from the mandatory 
 power of the judiciary. No case coiild more 
 forcibly exhibit the extreme reluctance of 
 courts to interfes'e with the functions of 
 the supreme executive, for the hypothesis 
 put is the refusal of the governor to per- 
 form a duty, cast upon him by law, of a 
 character strictly ministerial. We think, 
 however, that the ground upon which this 
 decision stands is substantial; for, as the 
 learned justice well argues, the difliculty 
 arises in the attempt to establish a distinc- 
 tion between ministerial and discretionary 
 acts as applied to the governor, and then to 
 conclude that the former may be enforced 
 by judicial decree. It is objected, however, 
 394 
 
 that the doctrine is unsound in this: that it 
 gives to the judiciary the large discretion of 
 determining the character of all acts to be 
 performed by the chief executive; that this 
 would infringe his right to use his own 
 discretion in determining the very same 
 question; that he must, necessarily, have 
 the unconditional power of deciding what 
 acts his duties require him to pei'form, oth- 
 erwise his functions are trammeled and the 
 executive branch of the government is made 
 subservient to the judiciai-y. The principle 
 enunciated in the above-stated case applies 
 with greater force to that we now have 
 under consideration; for if the governor's 
 discretion may not be interfered with in a 
 matter purely ministerial, much more may 
 that discretion not be interfered with in a 
 case which pertains to his office and duties 
 as commander in chief, in the discharge of 
 
 which the constitution makes that discre- 
 tion his peculiar and absolute prerogative. 
 
 Again, the governor, having a proper re- 
 gard for the dignity and welfare of the peo- 
 ple of the commonwealth, is not liliely to 
 submit himself to imprisonment on the de- 
 cree of the court of quarter sessions, or to 
 permit his officers and coadjutors to be thus 
 imprisoned. Were we, then, to permit the 
 attempt to enforce this attachment, an un- 
 seemly conflict must result between the ex- 
 ecutive and judicial departments of the gov- 
 ernment. Wi> Eoed not say that prudence 
 would dictate the avoidance of a catastrophe 
 such as here indicated. On this point the 
 case of Thompson v. German Val. II. Co., 22 
 N. .1. Eq. Ill, furnishes us with a precedent 
 well worthy of our consideration. In that 
 case a subpoena duces tecum had been served 
 on the governor of New Jersey, commanding 
 him, by his individual name, to appear and 
 testify before an examiner of the court of 
 chancer}', and bring with him an engrossed 
 copy of a private statute which had been 
 passed by the legislature, and had been sent 
 to him, as governor, for his approval. He 
 refused to obey the subpoena, informing the 
 coiut at the same time that he did not re- 
 fuse out of any disrespect to the court or to 
 the law, but because he thought his duty 
 required him not to appear or produce the 
 paper required, or to submit his official acts 
 as governor to the scrutiny of any court. It 
 will be seen that the case thus presented is 
 quite as strong as that under discussion; 
 for the governor, upon his own opinion of 
 duty, which, as it will appear, did not ac- 
 cord with that of the court, not only refused 
 to appear or produce the required paper, 
 but to submit any of his official acts to the 
 scrutiny of the court. An order was granted 
 on the governor to show cause why he 
 should not appear and testify. After argu- 
 ment, Zabriskie, Ch., said: "The governor 
 cannot be exainined as to his reasons for 
 not signing the bill, nor as to his actibn, in 
 any respect, regarding it. But there Is no 
 reason why he should not be called upon to 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 136 
 
 testify as to the time It was delivered to 
 him. That is a bare fact that includes no 
 action on his ijai't. To this extent, at least, 
 I am of opinion that he is hound to appear 
 and testify. But I will malie no order on 
 him for that purpose. Such order ought not 
 to be made against the executive of the 
 state, because it might bring the executive 
 in conflict vyith the judiciary. If the execu- 
 tive thlnlis he ought to testify in compliance 
 with the opinion of the court, he will do so 
 without order; if he thinlis it to be his 
 •official duty, in protecting the rights and 
 ■dignity of his office, he will not comply, even 
 if directed by an order. And in his case 
 the court would hardly entertain proceed- 
 ings to compel him by adjudging him in con- 
 tempt. It will be presumed the chief magis- 
 trate intends no contempt, out tliat his ac- 
 tion is in accordance with his official duty." 
 If we adopt this opinion as a sound exposi- 
 tion of the law, the case before us is de- 
 termined; for the matter is left to rest solely 
 ■on the opinion of the executive, althougli his 
 opinion be clearly contrary to that of the 
 eovirt. We are inclined to think the con- 
 •clusion thus reached is wise and discreet, and 
 it is supported by the best text writers of 
 our times. These state the law to be that 
 the president of the United States, the gov- 
 ernors of the several states, and their cabi- 
 net officers, are not bound to produce papers 
 tor disclose information committed to them. 
 In a judicial inquiry, when, in their own 
 Judgment, the disclosure would, on public 
 grounds, be inexpedient. 1 Greenl. Ev. § 
 251; 1 Whart. Ev. § 604. Thus the question 
 of the expediency or inexpediency of the 
 production of the required evidence is re- 
 ferred, not to the judgment of the court be- 
 fore wliich the action is trying, but of the 
 ■officer who has that evidence in his posses- 
 sion. The doctrine that the officer must ap- 
 pear and submit the required information or 
 papers to the court for its judgment as to 
 whether they are or are not proper matters 
 for revelation, is successfully met and set- 
 tled in the case of Beaton v. Skene, 5 Hurl. 
 & N. 838, per Pollock, C. B. It was there 
 held that, if the production of a state paper 
 would be injurious to the public interest, the 
 public welfare must be preferred to that of the 
 private suitor. The question then arose, how 
 was this to be determined? It must be de- 
 termined either by the judge or by the re- 
 sponsible crown officer who has the paper. 
 But the judge could come to no conclusion 
 without ascertaining what the document 
 was, or why its publication would be injuri- 
 •ous to the public service. Just here, how- 
 ever, occurred this difficulty: that, as judi- 
 cial inquiry must always be public, the pre- 
 liminary examination must give to the docu- 
 ment that very publicity which it might be 
 Important to prevent. The conclusion 
 reached was that, from necessity, if for no 
 other reason, the question must be left to 
 the judgment of the officer. 
 
 A like case is that of Gray v. Pentland, 
 2 Serg. & E. 2.3. A subpoensi had been is- 
 sued from the court below and served upon 
 Governor Snyder and Secretary Boileau, 
 with a duces tecum. A rule was also en- 
 tered for the purpose of taking their deposi- 
 tions in Harrisburg. They declined to ap- 
 pear in answer to the subpoena, or to per- 
 mit their depositions to be taken under the 
 rule, and refused to produce the paper or 
 deliver it to the plaintiff. This paper was 
 of a very great importance, inasmuch as 
 its production was necessary for the main- 
 tenance of the suit pending, the supreme 
 court holding that, though it was beyond 
 tlie plaintiff's power, parol evidence^ of its 
 contents was not admissible. A motidn was 
 then made, on the part of the plaintiff, for 
 a special subpoena duces tecum to compel 
 the production of the paper; but this was 
 refused. On argument in the superior court 
 this action of the court below in refusing 
 compulsory process against the governor and 
 secretary of the commonwealth does not 
 seem to have been questioned; on the other 
 hand, it was approved in opinions delivered 
 by Tilghman, C. J., and Brackenridge, J. The 
 latter was, as he said, inclined to think that 
 the governor could not be compelled to pro- 
 duce the paper transmitted to him; that it 
 was within his own discretion to furnish or 
 refuse it; and this on the ground of public 
 policy. The chief justice observed, inter alia, 
 that the governor, who best knew the cir- 
 cumstances under which the charge had been 
 exhibited to him, and could best judge the 
 motives of the accuser, must exercise his 
 own judgment with respect to the propriety 
 of producing the writing. Thus the matter 
 is treated as quite beyond the power of the 
 court, and the judgment of the executive is 
 regarded as absolute and final. 
 
 We next refer to the celebrated trial of 
 Aaron Burr. Here is the case of one chai-- 
 ged with treason; one who, by the express 
 terms of the constitution, was entitled to 
 compulsory process for obtaining witnesses 
 in his favor. The judge before whom the 
 examination was conducted was John Mar- 
 shall, chief justice of the supreme court; a 
 man renowned, not only for his legal learn- 
 ing, but also for his judgment and sagacity 
 as a stateman; and the president was Thom- 
 as Jefferson, one not likely unduly to exalt 
 executive prerogative, or to refuse to the ju- 
 diciary its just tribute of respect. We may 
 therefore presume that whatever was done 
 by the principal actors in the remarkable 
 judicial drama then in progress was well 
 done. At the request of the defence a sub- 
 poena duces tecum was awarded and dii-ected 
 to the president, requiring him to appear, 
 and bring with him a certain letter from 
 General AVilkinson to himself. He refused 
 either to appear or produce the paper re- 
 quired. On discussion of the question, not 
 whether compulsory process shO'Uld be 
 awarded against the president, for that was 
 
 395 
 
Case No. 136] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 not so mucli as proposed, but whether the 
 attorney general should permit the defence 
 to have the examination of a copy of the re- 
 quired letter which had been put into his 
 possession, the chief justice said (as we find 
 it set down in volume 3, p. 37, Burr's Trial, 
 as published by Westcott & Co., "Washington 
 City, 1870): "I suppose it will not be alleged 
 in this case that the president ought to be 
 considered as having offered a contempt to 
 the court in consequence of his not having 
 attended, notwithstanding the subpoena was 
 awarded agreeably to the demand of the de- 
 fendant. The court would, indeed, not be 
 asked to proceed as in the case of an ordi- 
 nary individual." We find, also, in volume 
 2, p. 536, of the same trial, puljlished by 
 Hopkins & Earle, Philadelphia, 1808, the fol- 
 lowing recorded as the utterance of the chief 
 justice: "In no case of this kind would the 
 court be required to proceed against the pres- 
 ident as against an ordinary individual. The 
 objections to such a course are so strong and 
 obvious that all must acknowledge them. 
 * * * In this case, however, the presi- 
 dent has assigned no reason whatever for 
 withholding the paper called for. The pro- 
 priety of withholding it must be decided by 
 himself, not by another for him. Of the 
 weight of the reasons for and against pro- 
 ducing it he himself is the , jud'ge." 
 
 Influenced by this and the other precedents 
 we have cited, as well as by reason and ne- 
 cessity, we are in like manner* disposed to 
 conclude that the propriety of withholding 
 the information required by the grand jury 
 must be determined by the governor himself; 
 and the weight of the reasons influencing 
 him in the conclusion at which he has arriv- 
 ed is for himself, and not for the court, to 
 consider. 
 
 Furthermore, as the governor is the chief 
 executive of the commonwealth, and as such 
 embodies the power of the people, for the 
 conservation of the peace and the protection 
 of the rights and property of the citizens of 
 the state, as he is also part of the legislative 
 branch of the government, it must be ob- 
 vious to every one that there are times when 
 he must be excused from the ordinary pro- 
 cess of the courts. We presume it will not 
 be contended that he would be obliged to 
 obey the mandate of a subpoena during the 
 sessions of the legislature, when his presence 
 at the capital is constantly required, or 
 whilst engaged in the suppression of an in- 
 surrection. These, however, do not embrace 
 all his duties as governor. We must, there- 
 fore, go one step further, and concede that 
 he is exempt from such process whenever 
 engaged in any duty pertaining to his office. 
 Gi-anting that there may be times when he 
 is not so engaged, and when he might be 
 free to answer to a subpoena, who is to be 
 the judge of his engagements or disengage- 
 
 396 
 
 ments? May he be compelled to appear be- 
 fore a court and submit himself to the judg- 
 ment thereof as to whether his duties, just 
 then, require him to be in his office at Harris- 
 burg, or at the head of the army in the field, 
 or whether he may not have a few days of 
 leisure, during which he may await the will 
 and pleasure of a grand jury? It wiU be 
 conceded that in all ordinary cases he must 
 himself judge as to what things he must do 
 and what things he must leave undone, and 
 that this is a duty imposed upon him by the 
 constitution. But how, then, shall a c-ourt at 
 any time step in and assume the power of 
 judging for him? This cannot be done ex- 
 cept by an unwarrantable assumption of ex- 
 ecutive prerogative. The same reasoning 
 which brings lis to the conclusion that the 
 governor is the absolute judge of what ofli- 
 cial communications to himself or Ms de- 
 partment may or may not be revealed, in 
 like manner leads us to conclude that he must 
 be the sole judge, not only of what his offi- 
 cial duties are, but also of the time when 
 they should be attended to. The governor, 
 disavowing any disrespect to the court or its. 
 process, has answered that, in consequence 
 of his constant communication with the 
 state forces, now in the field, in the disorder- 
 ly and riotous districts, his time is fully oc- 
 cupied in the discharge of the duties of his 
 office, and that to leave his post would en- 
 danger the interests of the public service. 
 This brings us face to face with the ques- 
 tion whether the executive, or the courts for 
 him, are to determine the character of his 
 official duties, and the order in which they 
 may be performed. For instance, is obedi- 
 ence to a subpoena one of his duties, and, if 
 so, shall he discharge that duty in prefer- 
 ence to that which rests upon him as com- 
 mander in chief? The answer to this ques- 
 tion is easy; for if the courts can in any one 
 instance or at any one time conti'ol or direct 
 the executive in the performance of his du- 
 ties, they may do so in every instance and at: 
 all times. We need not waste time in the 
 attempt to prove that this proposition is not 
 allowable; that the governor cannot thus be 
 placed under the guardianship and tutelage 
 of the courts. To the people, under the 
 methods prescribed by law, not to the courts, 
 is he answerable for his doings or misdo- 
 ings. It is his duty from time to time "to 
 give to the general assembly information of 
 the state of the commonwealth," but it is not 
 his duty to render such an account to the 
 grand jury of Allegheny or any other county. 
 Whilst, therefore, the motives of the court 
 of quarter sessions in granting the process 
 before us are not to be lightly impugned, 
 yet we have no doubt it exceeded its juris- 
 diction in attempting to interfere with the 
 executive prerogative. 
 Let the attachment be set aside. 
 
PRIVILEGED COMMUKICATIONS. 
 
 [Case No. 137 
 
 ALEXANDER v. UNITED STATES. 
 
 (11 Sup. Ct. 350, 138 U. S. 353.) 
 
 Supreme Court of the United States. Feb. 2, 
 1891. 
 
 In error to the circuit court of the 
 United States for the western district of 
 Arkansas. 
 
 Tliis was a writ of error sued out under 
 the sixth section of the act of Feliruary 6, 
 1889, (25 St. 65(3,) to review a judsment of 
 the circuit court of the United States for 
 the western district of Arl^ansas, Imposing 
 a sentence of death upon the plaintiff in 
 «rror tor the raurderof David C. Steadman 
 ^' at the Creeli Nation in the Indian coun- 
 try. " 
 
 The plaintiff in error relied upon the fol- 
 lowing grou7ids for reversal : 
 
 (1) That the court erred in its selection 
 of the jury, in that the defendant was re- 
 quired to make his challenges without 
 first knowing what challenges the govern- 
 ment's attorney had made, and thus chal- 
 lenged two jurors, to-wit, C. F. Needles 
 and Samuel Lawrence, who were also 
 challenged by the government, whereby 
 he was deprived of two of his challenges 
 contrary to law. 
 
 (2) That the court erred in excluding the 
 testimony offered by the defendant to 
 prove threats to kill Steadman made by 
 House and others, while they were hunt- 
 ing Steadman under the belief that he had 
 seduced the wife of the said House and 
 was secreting himself with her in the 
 neighborhood. 
 
 (3) Because the court erred in admit- 
 ting the testim.ony of J. G. Ralls as to 
 confidential communications made to him 
 as the attorney of the defendant. 
 
 A. H. Garland and Heber J. May, for 
 l)hiintift in error. Sol. Gen. Taft, for the 
 United States. 
 
 Mr. Justice BROWN, after stating the 
 facts as above, delivered the opinion of 
 the court. 
 
 1. With regard to the first error as- 
 signed, it appears from the record that 
 "the court directed two lists of thirty- 
 seven qualified jurymen to bema.de out by 
 the clerk, and one given to thedistrict at- 
 torney and one to the counsel for the de- 
 fendant; and the court fui-ther directed 
 each side to proceed with its challenges 
 independent of the other, and without 
 knowledge on the part of either as to 
 what challenges had been made by the 
 other, — to which method of proceeding in 
 that regard defendant at the time offered 
 no objections, but proceeded to make his 
 challenges, and in so doing challenged 
 two jurors, to-wit, C.F. Needles and Sam- 
 uel Lawrence, who had been also chal- 
 lenged by the government." We do not 
 deem it neeessar.y to inquire whether there 
 was error in the method pursued by the 
 ''^urt ill impanehng this jury. It appears 
 distinctly from the bill of exceptions that 
 the defendant offered no objection to it at 
 the time, and made no demand to chal- 
 lenge any of the jury beyond the 20 al- 
 lowed by Rev. St. § 819. Indeed, it does 
 not clearly appear which side made the 
 first challenges, or that defendant had 
 not exhausted his challenges before the 
 
 government challenged the two jurors in 
 question. If it were a fact that tl.e de- 
 fendant had made his 20 challenges before 
 the government challenged thesetwo men, 
 it is difficult to see how his rights were 
 prejudiced by the action of the district at- 
 torney. 
 
 But the decisive answer to this assign- 
 ment is that the attention of the court 
 does not seem to have been called toit un- 
 til after the conviction, when the defend- 
 ant made it a ground of his motion for a 
 new trial. It is the duty of counsel sea- 
 sonably to call the attention of the court 
 to any error in impaneling the jury, in ad- 
 mitting testimony, or in any otiier pro- 
 ceeding during the trial by which his rights 
 are prejudiced, and in case of an adverse 
 ruling to note an exception. Stoddard v. 
 Chambers, 2 How. 284; De Sobry v. Nich- 
 olson 3 Wall. 420; Railroad Co. v. Hart, 
 114 U. S. 654, 5 Sup. Ct. Rep. 1127; Thomp. 
 Trials, §§ 6y0, 093, 700. 
 
 2. To understand fully the force of the 
 second error assigned, it is necessary to 
 state so much of the evidence as exhibits 
 substantially the case made out by the 
 government. The evidence tended toshow 
 that the defendant and the deceased, 
 Steadman, had agreed to go into the stock 
 business together, and, upon the day of 
 the murder, were endeavoring to rent a 
 farm for the purpose of wintering their 
 horses, and making a crop the following 
 year. They were returning to their camp 
 both armed with guns. Defendant was 
 also armed with a pistol. So far as the 
 evidence discloses, Steadman disappeared 
 and was never seen alive again. A few 
 minutes after they were last seen, a witness, 
 who had met them, saw the two horses, 
 without riders, standing in the road near 
 a wood. Shoitly after, eight or nine 
 shots were heard in the wood, and after 
 this the defendant was seen upon the road, 
 sitting upon one of the horses, and leading 
 the other, which had no rider. In about 
 12 days the body of Steadman was found 
 half a mile from the place from where he 
 and defendant had been seen, and within 75 
 yards of the place where the horses were 
 seen standing. His skull was crushed, 
 and there was a bullet hole in it back of 
 the ear. There was also evidence that 
 Steadman had a large amount of money 
 on his person at the time he disappeared. 
 The defendant offered contradictory ex- 
 planations of Steadman's disappearance. 
 At one time said he had probably been 
 killed, and at another time suggested sui- 
 cide, and at another pretended to believe 
 a story that had been circulated in the 
 neighborhood that Steadman and a mar- 
 ried woman by the name of House had 
 disappeared and were hiding together. Ev- 
 idence was admitted tending to show that 
 Mrs. House and Steadman had been seen 
 in conference the day before, and that the 
 general impression in the neighborhood at 
 the time was that tney had gone off to- 
 gether. House and his friends had armed 
 themselves with guns and pistols and had 
 ridden through the country hunting for 
 them, under the belief that they were hid- 
 ing together in the neighborhood, or had 
 fled the country together. 
 
 Now, if evidence was admitted to show 
 
 397 
 
Case No. 137] PEODUCTION AND EFFECT OP EVIDENCE. 
 
 that House had armed himself, and was 
 hiintinj; for Steadman, xintler the impres- 
 sion that the latter had eloped with his 
 wife, and was secreting himself in that 
 vicinity, it is difficult to see upon what 
 principle his threats in that connection 
 were excluded. Accepting the theory of 
 tlie government that mere threats, unac- 
 companied by acts of a threatening nat- 
 ure, were irrelevant to the question of de- 
 fendant's guilt, it is not easy to under- 
 stand how the acts themselves could be 
 ma<le pertinent without testimony tend- 
 ing to show the reason why House had 
 armed himself, and, with other parties, was 
 scouringthe countryfor Steadnian. Their 
 statements in that connection would be 
 clearly illustrative of the act in question, 
 and a part of the res gestse, within the rule 
 laid down in Lord George Gordon's Case, 
 1 Greenl. Ev. § IDS, and within all the au- 
 thorities upon the subject of declarations 
 as part of the res gestse. 
 
 At tne same time we recognize a certain 
 discretion on the part of the trial judge to 
 rule out this entire testimony, both of the 
 acts and the declarations of House, if, in 
 his opinion, they were so remote or insig- 
 nificant as to have no legitimate tendency 
 to show that House could have commit- 
 ted the murder. If, for instance, it were 
 clearly proven that the murder was com- 
 mitted before the threats of House were 
 uttered, or the two occurrences were so re- 
 mote in time and place as to demonstrate 
 that there could have been no connection 
 between them, it would be the duty of the 
 court to exclude the testimony. But if, 
 on the other hand, the time and the cir- 
 cumstances atteudingthe murderwere un- 
 certain or obscure, the conduct and threats 
 of House might have a material bearing 
 upon the identification of the murderer. 
 It is held by some of the authorities that 
 the question whether such evidence should 
 be admitted or excluded is, to a certain 
 extent, a matter of discretion with the 
 trial judge. Shailer v.Bunistead,99 Mass. 
 112; Thayer v.Thaver, 101 Mass. Ill; Com. 
 V.Abbott, 130 Mass. 472; Com. v. Ryan, 
 134 Mass. 223; Mclnturf v. State, 20 Tex. 
 App. 385. 
 
 In the present case, however, it is as- 
 sumed, both in the exception noted to the 
 exclusion of the testimony and in the briefs 
 of counsel, to have been proven as a fact, 
 by the witness Terry, that on the day of 
 the disappearance of Steadman and Mrs. 
 House, he saw Samuel House, her hus- 
 band, and several others, relatives and 
 friends of House, riding around the neigh- 
 borhood armed with Winchester guns and 
 pistols, hunting for deceased and Mrs. 
 House, who were then believed to have 
 eloped together, or to be secreting them- 
 selves in the neighborhood ; and although 
 the testimony of Terry, as set forth in the 
 bill of exceptions, fails to support this 
 statement, or to show definitely what he 
 did intend to swear to, yet, assuming it to 
 be as stated, we think that, if it were 
 shown that House was in search of Stead- 
 man, his declarations as to his purpose in 
 so doing stand upon the same basis, with 
 regard to admissibility, as his conduct, 
 and were a part ol tha res gestie. But in 
 the view we take of the next assignment 
 398 
 
 we find it unnecessary to determine 
 whether there was such errorin ruling out 
 this testimony as to require a reversal. 
 
 3. The third assignment relates to the 
 admission of the testimony of J. G. Ralls, 
 an attorney at law, to which objictiou 
 was made upon the ground that it re- 
 lated to a confidential communication 
 made by the defendant, who had consult- 
 ed Ralls as an attorney at law, and was 
 therefore privileged. Ralls stated in sub- 
 stance that he was practicing law at Mus- 
 cogee; that defendant came to his office 
 there between the time of Steadman's dis- 
 appearance and the finding of his body, 
 " and asked me if I was an attorney. I 
 told him I was. He said his name was 
 Alexander, and he went on to state that 
 he and his partner had some forty head of 
 horses across the river, in partnership, 
 and that some time before that, probably 
 a week before, his partner was missing, 
 and he hadn't heard from him. He says 
 his partner had a brotherin California, and 
 he was afraid his brother would come up 
 there and make some trouble about the 
 horses. He stated at the time his partner 
 had taken off the money, and he wanted 
 to know if he could hold the horses so as 
 to secure his part of the money. I asked 
 him if the horses would pay him for his 
 part, and hesaid they would. Itoldhimto- 
 hold the horses. They could not take 
 them until that was settled." It is evi- 
 dent from this statement that defendant 
 consulted with Ralls as a legal adviser, and 
 while, if he were guilty of the murder, it 
 may have had a tendency to show an ef- 
 fort on his part to defraud his paitner's 
 estate, and to make profit outof hisdeath, 
 by apijropriating to himself the partner- 
 ship property, it did not necessarily have 
 that ten<lency, and was clearly a privileged 
 communication. If he consulted him in 
 the capacity of an attorney, and the com- 
 munication was in the course of his em- 
 ployment, and maybe supposed to have 
 been drawn out in consequence of the rela- 
 tions of the parties to each other, neither 
 the payment of a fee nor the pendency of 
 litigation was necessary to entitle him to 
 the privilege. Williams v. Fitch, 18 N. Y. 
 546; Britton v. Lorenss, 45 N. Y. 51; Bacon 
 V. Frisbie, SO N.Y.394; Andrews v. Simnis, 
 83 Ark. 771. 
 
 In the language of Mr. Justice Story, 
 speaking for this court in Chirac v. Rein- 
 icker, 11 Wheat. 280, 294: "Whatever facts, 
 therefore, are communicated by a client to 
 a counsel solely on account of that rela- 
 tion, such counsel are not at liberty, even 
 if they wish, to disclose; and the law 
 holds their testimony incompetent. " 
 
 We are referred, however, to the case of 
 Queen v. Cox, 14 Q. B. Div. 153, as hokling 
 the doctrine that, where a communication 
 is made to counsel in furtherance of a 
 scheme to commit a crime, the cheut is 
 not entitled to the privilege. This was 
 a crown case reserved and argued before 
 10 judges of the queen's bench division. 
 The defendants Cox and Railton were in- 
 dicted for a conspiracy to defraud one 
 Munster. The facts stated show that 
 Munster had obtained a judgment against 
 Railton in an action tor libel, upon which 
 an execution had issued, which the sheriff 
 
PKIVILEGED COMMUNICATIONS. 
 
 [Case No. 137 
 
 proposed to levy upon the defendant's 
 stock in trade. He was met, however, by 
 a bill ot sale from Kailton to Cox, the other 
 defendant, antedating tlie execution. Jt 
 was claimed that tlie bill of sale was 
 fraudulent, and made for the purpose ot 
 depriving Munster of his rights under the 
 judgment, and Railton and Cox were in- 
 dicted for conspiracy. The question wa.i 
 whether an interview had by Railton and 
 Cox with Goodman, a solicitor, as to what 
 could be done to prevent the property 
 from being seized under execution, was 
 competent evidence, or was a privileged 
 communication. No point wa's made that 
 Goodman was not conwulted as an attor- 
 ney. The court unanimously held that 
 the evidence was competent. Mr. Justice 
 Stkpuen, who delivered the opinion of the 
 court, said, in a very exhaustive discus- 
 sion, tliat the question was " whether, if a 
 client applies to a legal advisei' for advice 
 intended to facilitate or to guide the client 
 in the commission of a crime oj' fraud, the 
 legal adviser being ignorant of the pur- 
 pose for which his advice is wanted, the 
 communication between the two is priv- 
 ileged. We expressed our opinion at the 
 end of the argument that no such privi- 
 lege existed. It it did, the result vs'ould be 
 that a man intending to con) mit treason 
 or murder might safely take legal advice 
 for the purpose of enabling himself to do 
 so with impunity, and that the solicitor 
 to whom the applicatjcm was made would 
 not be at liberty to give information 
 against his client for the purpose of frus- 
 trating his criminal purpose." After cit- 
 ing and commenting upon a large number 
 of cases, he comes to the conclusion that. 
 If the communication be made in further- 
 ance of any criminal or fraudulent pur- 
 pose, it Is not privileged. This case, how- 
 ever, is clearly distinguishable from the 
 one under consideration, in the fact that 
 the solicitor was consulted with regard 
 to a scheme to defraud, for which he was 
 subsequently indicted and tried, and the 
 testimony was offered upon that trial; 
 while in this case tne consultation was 
 
 had after the crime was committed, and 
 was offered in evidence as an admission 
 tending to show that defendant was con- 
 cerned in the crime, or rather as a state- 
 ment contradictory to one he had made 
 upon the stand. Had he been indicted 
 and tried for a fi^udulent disposition of 
 his partner's property, the case of Queen 
 V. Cox would have been an authority in 
 favor of admitting this testimony, but we 
 think the rule announced in that case 
 should be limited to cases where the party 
 is tried for the crime in furtherance of 
 which the communication was made. 
 
 Had the interview in this case been held 
 for the purpose of preparing his defense, 
 or even for devising a scheme to escape 
 the consequences of his crime, there could 
 be no doubt of its being privileged, al- 
 though he had made the same s'-atement 
 that his partnei- was missing and he had 
 not heard from him. Now, the communi- 
 cation in question was perfectly harmle.ss 
 upon Its face. If it were true thaf. his 
 partner was missing, and he had not heard 
 from him. and that Steadman had taken 
 off the money, there was no impropriety 
 in his consulting counsel for the purpose 
 of ascertaining if he could hold the horses, 
 so as to secure his part of it. Ralls asked 
 him in that connection if the horses would 
 pay him for his part, and defendant said 
 they would. He then told him to hold 
 the horses;' that they could not take them 
 until that was settled. 
 
 It is only by assuming that he was 
 guilty of the murder that his scheme to 
 defraud his partner becomes at all mani- 
 fest. His statement that his partner was 
 missing and that he had not heard from 
 him is the only material or relevant part 
 of the conversation, and was plainly 
 privileged. 
 
 The judgment of the court below must 
 be reversed, and the case remanded for a 
 new trial. 
 
 GR.\Y, J., was not present at the argu- 
 ment, and took no part in the decision of 
 this case. 
 
 399 
 
 ^^ 
 
Case No. 188] PRODUCTIOX AND EFFECT OF EVIDENCE. 
 
 SWAIM y. HUMPHREYS et al. 
 
 (42 111. App. 370.) 
 
 Appelliite Court of Illinois. Nov. 25, 1891. 
 
 Error to circuit court, McLean county; 
 Owen T. Reeves, Judge. 
 
 Thomas F. Tipton, for plaintiff in error. 
 Kenick, Lucas & Spencer, for defendants in 
 «rror. 
 
 BOGGS, J. This case has been twice be- 
 fore in this court. Swaim v. Humphreys, 15 
 111. App. 451; Humphreys v. Swaim, 21 111. 
 App. 231. 
 
 Plaintiff in error, then sheriff of McLean 
 county, received an execution issued by the 
 circuit clerk of that county upon a judg- 
 ment confessed in vacation by J. S. Arn- 
 speiger and S. R. Lovell in favor of N. N. 
 Winslow, and by virtue thereof levied upon j 
 certain groceries and provisions belonging to 
 the defendants in the execution, being part 
 ■of their stock in trade, they being retail 
 grocers In Bloomington. Defendants in er- 
 ror, who were wholesale grocers in Bloom- 
 ington, had sold and delivered to Arnspeiger 
 A Lovell the goods levied upon, and to secure 
 the amount due them therefor, had received 
 a. chattel mortgage upon the stock of gro- 
 ceries, etc., and they instituted this suit In 
 replevin against the sheriff to recover posses- 
 sion of the goods. 
 
 The chattel mortgage permitted the mort- 
 gagors to retain possession of the mortgaged 
 I)roperty, and to sell same in regular course 
 ■of trade, and, being^f or that reason regarded 
 as void, defendants in en-or sought in the 
 first trial in the circuit court to recover the 
 goods on the ground that they had been in- 
 duced to sell and deliver them to Arnspeiger 
 ■& Lovell by false and fraudulent representa- 
 tions on the part of that firm as to their fi- 
 nancial condition and commercial standing, 
 and upon that theory they succeeded upon 
 the hearing. 
 
 Plaintiff in error brought the case to this 
 court, and it was held (15 111. App. 451) that 
 the evidence did not support the findings of 
 the circuit court on this issue of fraud, and 
 the judgment was reversed and cause re- 
 manded. 
 
 LTpon the hearing of the case the second 
 time in the circuit court, defendants in error 
 claimed that the execution by virtue of which 
 the sheriff held the property was issued be- 
 fore the judgment upon which it was based 
 had been entered of record, and in support 
 •of such claim oif ered oral testimony, which, 
 iipon the objection of the plaintiff in error, 
 was rejected by the court, and the second 
 trial resulted advei-sely to the defendants In 
 •error, from which they prosecuted an appeal 
 to this court. Upon consideration of the 
 •question thus presented it was held by this 
 court: First, that an execution upon a judg- 
 ment confessed in vacation is void if issued 
 before the judgment is actually entered of 
 
 400 
 
 record; second, that oral evidence is admis- 
 sible to prove that an execution was issued 
 and was in fact in the hands of the sheriff 
 before the judgment was written up. The 
 circuit court having erroneously refused to 
 permit such oral evidence to be heard, its 
 judgment was reversed, and the cause again 
 remanded. Humphreys v. Swaim, 21 111. 
 App. 232. 
 
 The cause has again been heard in the cir- 
 cuit court, the result being a judgment in 
 favor of defendants in error, to reverse which 
 the writ of error now before us is prose- 
 cuted. 
 
 The material questions arising upon the 
 present record are: First. Was William E. 
 Hughes properly required to testify as to 
 whether the judgment had been entered of 
 record when the execution was issued'/ Sec- 
 ond. Could defendants in error, if their mort- 
 gage was void as to execution creditors, have 
 judgment for the recovery of the property? 
 Counsel for plaintiff in error also insist 
 that oral testimony is not competent to be re- 
 ceived to show that the judgment had not 
 been written of record when the execution 
 issued, but, as this court in this same ease 
 (21 111. App. 2.32) has expressly held that such 
 evidence is admissible, we must decline to 
 again consider, but will adhere to the rule 
 there announced. 
 
 William E. Hughes was introduced in the 
 circuit court as a witness for defendants in 
 error. He testified that he was an attorney 
 for the plaintiff in error, and was also attor- 
 ney for Winslow, the execution creditor. 
 That as such attorney for Winslow he pre- 
 pared the declaration and cognovit upon 
 which the judgment in question was render- 
 ed, and presented them to the clerk, and per- 
 formed such other duties as were -profes- 
 sionally required to entitle his client to a 
 judgment in vacation. As such attorney he 
 requested that execution be issued on the 
 judgment, which was done by the clerk, and 
 the same handed by the clerk to him. After 
 these facts were elicited, the witness was 
 asked if the clerk had written up the judg- 
 ment before the execution was issued. To 
 this, the plaintiff in error objected on the 
 ground that it was by reason of his profes- 
 sional relation to Winslow that the witness 
 had obtained whatever knowledge he might 
 have of the matter desired to be inquired 
 into, and that it was therefore privileged 
 from disclosure by him. This objection was 
 overruled, and the witness required to an- 
 swer. 
 
 The testimony of the witness established 
 the fact to be that before the judgment had 
 been entered of record by the clerk the ex- 
 ecution was issued and delivered to the wit- 
 ness, who immediately placed it in the hands 
 of the sheriff. 
 
 The rule is well settled that an attorney 
 will not be compelled, or even allowed, 
 against the objection of the client, to disclose 
 anything communicated by his client to him 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 138 
 
 in his professional capacity, and the reason 
 on which the rule rests is that it is in the 
 interest of justice that the most full, free, 
 and complete communication should take 
 place between attorney and client. It is not, 
 however, in the interest of justice to extend 
 this privilege so that by its operation the 
 truth in relation to facts otherwise in the 
 knowledge of an attorney be suppressed. 
 When desiring to define its breadth and lim- 
 its, Mr. Greenleaf says: "The great object 
 of the rule seems to plainly require that the 
 entire professional intercourse between client 
 and attorney, whatever it may have consist- 
 ed in, should be protected by profound se- 
 crecy." 1 Greenl. Ev. § 240. 
 
 "The privilege," it is said in Best on Evi- 
 dence (section 281), "does not extend to mat- 
 ters of fact which the attorney knows by 
 other means than confidential communica- 
 tions with his client, even though, if he had 
 not been employed as attorney, he probably 
 would not have known them." In effect the 
 same is held in Bridge Co. v. Jameson, 48 111. 
 283; Crosby v. Berger, 4 Edw. Ch. 254; Den- 
 brough V. Rawlins, 3 Mylne & K. 505; 1 
 Greenl. Ev. § 244. 
 
 The fact which Mr. Hughes was called up- 
 on to disclose did not arise from, and had no 
 connection with, the professional intercourse 
 between himself and his client. It was not 
 in its nature or character either private or 
 confidential. It was not an act done by the 
 client, or by his agent or servant, or any one 
 acting in his behalf. 
 
 WILGTJS.EV.' — 36 
 
 The witness, in the discharge of profes- 
 sional duty, had indeed been called to the 
 office of the clerk of the circuit court. He 
 placed papers in the hands of the clerk 
 which required of the clerk the performance 
 of an official duty, in the discharge whereof 
 he sustained no confidential relation what- 
 ever to the witness of his client. It became 
 Important to know what official act the clerk 
 there performed; and of this the witness had 
 knowledge. Such knowledge was not obtain- 
 ed by the witness in any wise from the 
 client, nor fronj professional intercourse with 
 him. The privilege of secrecy does not ex- 
 tend and cover information and knowledge 
 thus obtained, and the circuit court ruled 
 correctly in requiring the witness to answer. 
 
 It is clear that the execution issued before 
 there was a judgment of record to support it. 
 The execution was therefore void, and the 
 possession of the goods by the sheriff under 
 it unauthorized. 21 111. App. 231, supra. 
 
 The chattel mortgage, upon which must 
 rest the right of defendant in error to pos- 
 session of the goods in question, was not 
 valid as against the rights and interests 
 of third persons. As between the parties to 
 it, the mortgage was good and effectual; and 
 if the sheriff had no legal writ wherewith to 
 seize the property, it must be surrendered by 
 him to the owners, or to the defendants in 
 error, if they have superior right as between 
 themselves and the owners. The judgment 
 must be affirmed. 
 
 Judgment affirmed. 
 
 401 
 
Case No. 139] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 In re COLEMAN'S WILL. 
 
 (19 N. B. 71, 111 N. Y. 220.) 
 
 Court of Appeals of New York. Nov. 27, 1888. 
 
 Appeal from supreme court, general term, 
 Third department. 
 
 .lames C. Rogers, for appellants. A. D. 
 Wait, for respondent. 
 
 RIKiER, C. J. The probate of the will of 
 William Coleman, deceased, was contested 
 before the surrogate br his widow and sev- 
 eral of his children and grandchildren, upon 
 the ground that he was not of sound mind 
 and memory at the time of its execution, 
 and its execution was procured through un- 
 due influence, fraud, and intimidation exer- 
 cised over him by Robert S. Coleman. The 
 will was admitted to probate, and the de- 
 cree was affirmed upon appeal by the gen- 
 eral term. It is urged upon this appeal that 
 the evidence produced before the surrogate 
 .by the contestants, as to the mental and 
 IJhysical weakness and incompetency of the 
 testator to make a valid will, is so strong 
 and conclusive that this court should reverse 
 the decision of the court below upon the 
 facts. It is not our purpose to go into a 
 detailed histoiy of the evidence, or comment 
 upon the weight and force of the various 
 facts and circumstances proved on the trial 
 by the respective parties to sustain their sev- 
 eral positions, as it is not even claimed by 
 the appellants that there was no evidence to 
 support the decree of the surrogate. Their 
 utmost contention is that ihe evidence on 
 the part of the contestants is so persuasive 
 and convincing, either of the mental incom- 
 petency of the testator or of the exercise of 
 undue influence by the proponent in procur- 
 ing the execution of the will, that the court 
 should hold as matter of law that it was 
 error for the surrogate to admit it to probate. 
 The argument of the api^ellants is based, to 
 a large extent, upon evidence which was ad- 
 mitted on the trial against the objections of 
 the proponent, and which we deem to be 
 clearly inadmissible. While we consider the 
 case made by the contestants upon the evi- 
 dence to be very strong, and as presenting a 
 serious question Avhether the testator was 
 competent to make a valid will or not, yet 
 the exclusion of the evidence improperly re- 
 ceived on their behalf by the surrogate very 
 nnich impairs the force and strength of their 
 case, and leaves the evidence as to the tes- 
 tator's competency more nearly balanced 
 than it would otherwise have been. 
 
 A general outline of the facts will be suf- 
 ficient to present the views we deem it nec- 
 essary to express upon the determination of 
 this appeal. Robert S. Coleman, the only 
 son of the testator, was the proponent of the 
 will, and one of the three executors named 
 therein; the others having renounced or de- 
 clined to act iu that capacity. The testator 
 
 402 
 
 at the time of its execution was upwards of 
 80 years of age, and died within a year there- 
 after. He was then possessed of property 
 mainly consisting of real estate of the value 
 of about $40,000, and had several children 
 and grandchildren who were in needy cir- 
 cumstances, partially dependent upon him 
 for support; but were not mentioned in or 
 provided for by the will, although apparently 
 the natural objects of his bounty. That in- 
 strument, after making slight provision for 
 two of his grandchildren, gave his personal 
 property, together with a life-estate in his 
 homestead, to his widow, and the remain- 
 der thereof, together with a ramainder in the 
 homestead, to the proponent. Robert was 
 by profession a lawyer, and although living 
 in his father's family, and being supported 
 by him until he was nearly 40 years of age, 
 had never rendered material assistance to 
 the testator in his business affairs, and was 
 not apparently regarded by him with favor, 
 or as a proper or fit person to have the man- 
 agement and control of business such as that 
 in which the testator had theretofore been 
 engaged. 
 
 Upon the trial much evidence was given 
 upon both sides in regard to the mental and 
 physical condition of the testator during the 
 three or four years preceding his death; but 
 no direct evidence was iDrodueed as to any 
 effort on the part of the proponent to pro- 
 cure the making of a will by his father, or to 
 influence or dictate the nature of its pro- 
 visions. The proof on the part of the con- 
 testants as to the exercise of undue influ- 
 ence is based wholly upon inference sought 
 to be drawn from the apparently unfriendly 
 relations existing between the testator and 
 his son; the alleged unnatural and inequi- 
 table disposition of the property; the ad- 
 vanced age of the testator; and the absence 
 of any apparent reason, except the assumed 
 existence of some extraneous influence, for 
 excluding the other children from a share in 
 his estate. There was much evidence pro- 
 duced by the contestants as to the impair- 
 ment of the mental and physical condition of 
 the testator subsequent to 1877, when it was 
 claimed that he had experienced a paralytic 
 affection which caused a gradual but contin- 
 uous impairment of his faculties down to the 
 time of his death, in April, 1881. The evi- 
 dence was met on the part of the proponent 
 by nearly an equal number of witnesses, 
 who testified to facts and circumstances 
 showing the continued mental soundness of 
 the testator's faculties, and his capacity to 
 transact business affairs, until after the ex- 
 ecution of the will. 
 
 The evidence on the part of the contestants 
 is subject to the criticism that much of It 
 was given under the objection of the pro- 
 ponent, and was of doubtful admissibility 
 upon the questions litigated. Aside from the 
 evidence of Mrs. Coleman, the most material 
 and important facts on the part of the con- 
 testants were undoubtedly proved by the 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 139 
 
 witnesses Mrs. Seelye, the daughter of the 
 testator, and the two physicians, Drs. Claris 
 and Little, who testified to the unsoundness 
 of mind of the testator during the year 1877, 
 and subsequent thereto, from knowledge 
 acquired by them while attending him, re- 
 spectively, in a professional capacity. This 
 evidence was duly objected to by the pro- 
 ponent, but was admitted against such ob- 
 jection. So far as the evidence of the medic- 
 al witnesses is concerned, there can be but 
 little doubt of its inadmissibility, and it 
 should htive been disregarded by the surro- 
 gate in determining the question of the tes- 
 tator's mental and physical condition. It 
 seems to us that this evidence falls clearly 
 within the prohibition contained in section 
 834 of the Code, as illustrated and applied in 
 recent decisions of this court. Grattan v. In- 
 surance Co., 80 N. Y. 29(j; Ediugton v. In- 
 surance Co., (J7 N. Y. IS.j; Westover v. In- 
 surance Co., 99 N. Y. 56, 1 N. E. 10-1; Teople 
 V. Schuyler, ■ lOG N. Y. 318, 12 N. E. 7s;j; 
 Eenihan v. Dennin, 103 N. Y. 574, 9 N. E. 
 a20. 
 
 It is perhaps not important that we should 
 comment upon the propriety of the rulings on 
 the trial in reference to the evidence on the 
 part of the contestants, since, in anj' event, 
 whether it be considered or not, we are of the 
 opinion that the question of the testator's 
 mental condition, and the exercise of undue 
 influence over him in respect to the execution 
 of the will, was one of fact, to be determined 
 by the trial court. AVhatever may be said of 
 the evidence, we are clearly of the opinion 
 that not only was there evidence upon which 
 the decision of the surrogate could properly 
 be supported, but there was no such pre- 
 ponderance, as to the testator's mental in- 
 capacity to make a valid will, as would have 
 authorized a reversal by an appellate tri- 
 bunal of the surrogate's decree determining 
 that fact in favor of the proponent. In re 
 Ross, 87 X. Y. 514; In re Cottrell, 95 N. Y. 
 3:^3; Hewlett v. Elmer, 103 N. Y. 161, 8 N. 
 B. 387. 
 
 The most material question in the case 
 arises over the exception taken by the con- 
 testants to the admission of the evidence of 
 the witnesses Hughes and Northrup as to 
 conversations had by them, respectively, 
 with the testator at the time of receiving in- 
 structions in reference to a draft of the will 
 offered for probate, and another drawn about 
 two years previously by the same attorneys. 
 Tile testimony given by these witnesses was 
 undoubtedly very material and important in 
 its bearing upon the issue tried, and if er- 
 roneously admitted would lead to a reversal 
 of the judgment appealed from. The evi- 
 dence showed that the witnesses were a firm 
 of lawyers residing at Sandy Hill, and were 
 employed by the testator in their professional 
 capacity to draw such wills, and that the 
 conversations testified to were liad with 
 them for the purpose of enabling them to ex- 
 ecute the instructions of the testator. That 
 
 these interviews were had in pursuance of, 
 and under the sanction of, a professional em- 
 ployment, and that communications made by 
 a client under such circumstances to his at- 
 torney were clearly within the protection of 
 the statute, we have no doubt. Westover v. 
 Insurance Co., supra; Renihan v. Dennin, 
 supra; section 835, Code Civ. Proc. 
 
 The prohibition of the statute, therefore, 
 applies to these communications, and they 
 were inadmissible as evidence unless brought 
 within the provisions of section 830 authoriz- 
 ing their disclosure. By that section the 
 pledge of secrecj' imposed by the statute is 
 to be observed, unless its provisions "are ex- 
 pressly waived" by the client. There is noth- 
 ing in this section requiring the waiver to be 
 made in writing, or in any particular form or 
 manner, or at any particular time or place; 
 but it is required to be an express waiver, 
 and made in such manner as to show that 
 the testator intended to exempt his attorneys 
 in the particular instance from the' prohibi- 
 tion imposed by the statute. An examination 
 of the will itself, as well as the evidence of 
 all of the witnesses present on the occasion 
 of its execution, concur in establishing the 
 fact that the testator requested both Hughes 
 and Northrup to sign the attestation clause 
 of his first as well as of his second will, as 
 witnesses thereto. That request Implies, not 
 only information as to the necessity of such 
 signatures to the validity of the instrument 
 executed, but also knowledge of the obliga- 
 tions which they assumed in respect to the 
 proof thereof after his death. He must have 
 been aware that his object in making a will 
 might prove to be ineffectual, unless these 
 witnesses could be called to jtestify to the 
 circumstances attending its execution, in- 
 cluding the condition of his mental faculties 
 at that time. 
 
 The condition of the testator's mind, as 
 evidenced by his actions, conduct, and conver- 
 sation at the time of making a will, is a part of 
 the res gestse of the transaction, and wit- 
 nesses thereto are competent to speak there- 
 of, and give opinions in relation thereto, with- 
 out any other knowledge thereof except that 
 derived from his conduct on such occasions. 
 Clapp V. Fullerton, 34 N. Y. 190; Holcomb v. 
 Holcomb, 95 N. Y. 310. The law presumes 
 knowledge on his part of its provisions, and 
 that what he does deliberately is done with 
 a full comprehension of the legal effect of 
 his act, and the duty which it imposes upon 
 those who comply with his request. It 
 would be contrary to settled rules of law to 
 ascribe to the testator an intention, while 
 making his will, and going through the forms 
 required to make it a valid instrument, to 
 leave in operation the provisions of statute 
 which he had power to waive, but which if 
 not waived might frustrate and defeat the 
 whole object of his action. It cannot be 
 doubted that if a client in his life-time 
 should call his attorney as a witness In a 
 legal proceeding to testify to ti'ansactions 
 
 403 
 
Case No. 139] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 taking place between himself and his attor- 
 ney while occupying the relation of attorney 
 and client, such an act would be held to con- 
 stitute an express waiver of the seal of se- 
 crecy imposed by the statute; and can it be 
 any less so when the client has left written 
 and oral evidence of his desire that his at- 
 torney should testify to facts learned through 
 their professional relations, upon a judicial 
 proceeding to take place after his death? We 
 think not. McKinney v. Railroad Co., 104 
 N. Y. 352, 10 N. E. 514. The act of the testa- 
 tor in requesting his attorneys to become 
 witnesses to his will leaves no doubt as to 
 
 404 
 
 his intention thereby to exempt them from 
 the operation of the statute, and leave them 
 free to perform the duties of the office as- 
 signed them, unrestrained by any objection 
 which he had power to remove. We have 
 carefully examined other points made by the 
 appellants upon the argument, and in the 
 printed brief submitted to the court, but find 
 no material error committed by the trial 
 court which entitles the appellants to a re- 
 versal of the judgment. 
 
 The judgment should therefore be affirmed, 
 with costs. 
 
 All concur. 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 140 
 
 HURLBUET et al. v. HURLBURT. 
 
 (28 N. E. 651, 128 N. Y. 420.) 
 
 Court of Appeals of New York. Oct. 13, 1891. 
 
 Appeal from supreme court, general 
 term, fifth department. 
 
 Action Jor money had and received, 
 brought bj' Lyman F. Hurlburt and an- 
 other, administrators of Charles F. Hurl- 
 burt, deceased, against Ella Hurlburt, ad- 
 ministratrix of Theron D. Hurlburt, de- 
 ceased. Verdict for defendant. Judgment 
 was ordered for defendant on plaintiffs' 
 motion for a new trial on exceptions or- 
 dered to be heard at the general term in 
 the first instance. Plaintiffs appealed. 
 Affirmed. 
 
 Charles McLoutb, for appellants. S.Ji. 
 iWcintK^iJ, for respondent. 
 
 EARL, J. This action was brought to 
 recover the sum of $0,682, with interest 
 thereon, which it is alleged Charles F. 
 Hurlburt, the plaintiffs' intestate, placed 
 in the hands of his son Theron, the defend- 
 ant's intestate, as his agent, and for his 
 benefit, in the latter part of the year 1881. 
 Theron was a son of Charles, and he died 
 December 25, 188.^, and Charles died Janua- 
 ry 6.1884. The defendant claimed that the 
 money was a gift to her husband, and 
 that he was never under any obligation 
 to repa.y 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 sous of Charles, and were the 
 sole witnesses to establish their claim, 
 and this they attempted to do by testify- 
 ing to certain conversations which they 
 overheard between their father and The- 
 ron. Upon the trial the defendant rested 
 her ease 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 various declarations 
 and admissions made by Charles, tend- 
 ing to show that the money was trans- 
 ferred 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 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 dispos- 
 ing of or adjusting the prospective inter- 
 est of the plaintiff Lyman 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 lawj^er, and assented to by his father, 
 thatLynianhad had all his share in his fa- 
 ther's personal property ; and other state- 
 ments were there made by Theron, and 
 assented to by his father, of similar im- 
 port. Aldrich was called by the defendant 
 to prove these statement-sand admissions. 
 The plaintiffs objected to his evidence on 
 the ground that he was an attorney, con- 
 sulted professionally, and that the com- 
 
 munications to him were privileged. The 
 court overruled the objection, and received 
 the evidence. We think that in receiving 
 this evidence there was no violation of 
 section 835 of the Code, which provides 
 that "an attorney or counselor at law 
 shall not be allowed to disclose a com- 
 munication made by his client to him, or 
 his advice given thereon, in the course of 
 his professional employment." This sec- 
 tion is a mere re-enactment of the com- 
 mon-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 sec- 
 tion is to enable and encourage persons 
 needing professional advice to disclose 
 freely the facts in reference to which they 
 seek advice, without fear that such facts 
 will be made public 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 in- 
 terested in the advice which they sought, 
 and they were both present at the same 
 time, and engaged in the same conversa- 
 tion. 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 disclosures 
 as privileged. It has frequently been held 
 that the privilege secured by this rule of 
 law does not apply to a case where two 
 or more persons consult an attorney for 
 their mutual benefit; that it cannot be in- 
 voked in any litigation which may there- 
 after arise between such persons, but can 
 be in alitigation between them and stran- 
 gers. Root V. Wright, 21 Hun. 847; Sher- 
 man V. Scott, 27 Hun, 331; Foster v. Wil- 
 kinson, 37 Hun, 244; Rosenburg v. Rosen- 
 burg, 40 Hun, 91 ; Whiting v. Barney, 30 
 N. Y. 330; Hebbard v. Haughjan, 70 N. Y. 
 54; Root V.Wright, 84 N. Y. 72. There- 
 fore, if Charles and Tlieron had been alive, 
 and parties to this action, this evidence 
 would have been competent; 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 inter- 
 ested in the estate of their father can make 
 no difference in the application of the rule. 
 They are parties to this action only in a 
 representative capacity. They legally 
 stand as the representatives of their fa- 
 ther, and no one else. Evidence which 
 would have been competent against him 
 in his life-time is competent against his 
 personal representatives. So we think 
 that this case is not within the reason of 
 section 835, aud, even if it should be re- 
 garded as within its letter, it should be 
 taken out of the letter by the application 
 of the familiar maxim, "cessante ratione 
 legis, cessat ipsa, lex." 
 
 Several witnesses were permitted to give 
 evidence of declarations made by the 
 plaintiffs' intestate tending to show that 
 he had made a gift of this money to his 
 son, and this evidence was objected to by 
 the plaintiffs as incompetent. It is famil- 
 iar law, for which no citation of authori- 
 ties is needed, that the declarations of a 
 testator or intestate binding him or bind- 
 
 405 
 
Case No. 140] PRODUCTION" AND EFFECT OF EVIDENCE. 
 
 ing or impairing his estate may be given 
 in evidence against liis personal represent- 
 atives in all cases wliere they wonlrl have 
 been competent against himself if he had 
 been living and a party to the action. 
 His executor or administrator represents 
 him and stands in his place, and his dec- 
 larations admitting a debt or obligation, 
 or tending to discharge a debt or obliga- 
 tion due him, or to impair his estate in 
 any way, are competent in any litigation 
 to which his personal representatives are 
 a party. Therefore the evidence of mate- 
 ria) admissions made by Charles in his 
 life-time was competent against these 
 plaintiffs. It is further claimed that much 
 of the evidence thus received was wholly 
 immaterial, and should, therefore, have 
 been excluded. We have carefully scruti- 
 nized the evidence, and, while much of it 
 has but a slight and remote bearing upon 
 the case, yet we cannot say that any of it 
 was wholly immaterial. It was compe- 
 tent for the defendant to prove the rela- 
 tions between Theron and his father, and, 
 to some extent, the dealings between them, 
 and the relations between the father and 
 the different members of his family. 
 
 Complaint is made of the charge of the 
 judge. Our attention is called to no erro- 
 neous rule of law laid down by him, and 
 
 406 
 
 the most tliat can be said is that the 
 charge shows a significant leaning in fa- 
 vor of the defendant, and that the judge 
 was strongly impressed with the merits 
 of the defeiiilfint's case. But the n;epe in- 
 timation of an opinion by the judge upon 
 evidence, or upon the merits of the case, 
 or his comments upon theevidence, though 
 unfavorable to the party complaining, 
 furnish no ground for a reversal here, so 
 long as the whole case is submitted to 
 the jury upon a charge which lays down 
 no improper rule of law. If a judge, in his 
 charge to the jury, uses such language as 
 to improperly bias their judgments or 
 influence their verdict, that may he ground 
 for the court below, upon a motion tor a 
 new trial, to set aside the verdict if satis- 
 fied that injustice has been done; but up- 
 on an appeal to this court, where the 
 court below has refused to set aside the 
 verdict, and has affirmed the judgment 
 entered thereon, we can review only er- 
 rors of law which have been properly ex- 
 cepted to. A careful examination of the 
 whole case leads us to the conclusion that 
 the exceptions of the plaintiffs point out 
 no legal error, and that thereis noground 
 for a reversal of the judgment. The judg- 
 ment should be affirmed, with costs. All 
 concur. 
 
PKIVILEGED COMMaNICATJONS. 
 
 [Case No. 141 
 
 MIXTER T. PEOrLE. 
 
 (29 N. E. 45, 139 111. 363.) 
 
 Supreme Court of Illinois. Nov. 4, 1891. 
 
 Error to appellate court, Fourth district. 
 Reversed. 
 
 Proceeding to punish F. E. Minter for con- 
 tempt of court. Defendant was convicted, 
 and the appellate court affirmed the judg- 
 ment. Defendant brings error. 
 
 Pillow & Millspaugh, for plaintiff in error. 
 Geo. Hunt, Atty. Gen., for the People. 
 
 CRAIG, J. The plantiff in error was sub- 
 pcenaed as a witness to testify in reference 
 to a charge under investigation before the 
 grand jury of Gallatin county. After being 
 sworn, the foreman of the grand jury asked 
 the witness the following question: "Do 
 you know of any peison playing at a game 
 with cards for money in Gallatin county 
 within eighteen months past?" towlilch ques- 
 tion he answei-ed, "I do." The foreman then 
 asked the following question: "(2) Who did 
 you see playing?" which -last question plain- 
 tiff in error refused to answer on the ground 
 that he could not do so without giving evi- 
 dence against and tending tO' criminate him- 
 self. Thereupon the foreman of the grand 
 jury caused the plaintiff in error to be 
 brought before the circi:it court, then ju- 
 dicially sitting, to be dealt with as for con- 
 tempt in refusing to answer said last ques- 
 tion. Plaintiff in en'or appeared In open 
 court, and- stated voluntarily that the fore- 
 going was a correct statement of the pro- 
 ceedings before the grand juiy, and that he 
 h^d answered the first question, and refused 
 to answer the last, because to do so would 
 criminate, or tend to criminate, himself. 
 The court then ruled and stated to him that 
 he was not required to give evidence against 
 himself, nor to give evidence that would tend 
 to criminate himself, but that he was re- 
 quired to answer whether or not he had seen 
 any person other than himself play at cards 
 for money; that he might lawfully refuse to 
 tell anything that he himself had done, but 
 that he could not lawfully refuse to tell 
 what he had seen another person do. Plain- 
 tiff in error then asked if the court held 
 that a witness before the grand jury was re- 
 quired to* tell that he had seen others gaming 
 for money, if the witness was also playing 
 at the same time, and in the same game, 
 with such other persons; and the court 
 thereupon ruled that, under such circumstan- 
 ces, the witness was bound to tell that the 
 others had played, but that he (plaintiff in 
 error) might lawfully refuse to tell anything 
 that he himself had done or said or anything 
 that tended to criminate himself, but that 
 he must tell if he had seen others play; that 
 the fear that his answer might induce the 
 other parties to testify against him in retal- 
 iation, or that the grand jury might summon 
 the others, and force them to tell, was not a 
 
 lawful reason for refusing to answer the 
 question. The plaintiff in error still refusing 
 to answer the question, the court adjudged 
 him in contempt of court, and assessed a flue 
 against him of $25 as a punishment. The 
 judgment of the circuit court having been 
 affirmed in the appellate court, this writ- of 
 error was sued out to reverse the latter 
 judgment. 
 
 Article 2 of section 10 of our constitution 
 provides: "No person shall be compelled in 
 any criminal case to give evidence against 
 himself." 1 Starkie, Bv. 136, says: "A v.'it- 
 ness is not bound to answer any question, 
 either in a court of law or equity, if his 
 answer will expose him to any criminal pun- 
 ishment or penal liability," agreeably to the 
 wise and humane principle that no man is 
 bound to criminate himself. Greenleaf, in 
 the discussion of this question, (volume 1, § 
 451,) says: "Where an answer will have a 
 tendency to expose the witness to a penal 
 liability * * * or to a criminal charge, 
 here the authorities are exceedingly clear 
 that the witness is not bound to answer. If 
 the fact as to which he is interrogated forms 
 but one link in the chain of testimony which 
 is to convict him, and whether it may tend 
 to criminate or expose the witness, is a 
 point which the court will determine, un- 
 der all the circumstances of the case, but 
 without requiring the witness fully to ex- 
 plain how he might be criminated by the 
 answer which the truth would oblige him 
 to give." In People v. Mather, 4 Wend. 
 229, it is said: "When the disclosures he 
 [the witness] may make can be used against 
 him to procure his conviction for a criminal 
 offense, or to charge him with penalties and 
 forfeitures, he may stop in answering before 
 he arrives at the question the answer to 
 which may show directly his moral turpi- 
 tude. * * * If thore be a series of ques- 
 tions, the answer to all of which would estab- 
 lish his criminality, the party cannot pick out 
 a particular one, and say, if that be put, the 
 answer will not criminate him. If it is one 
 step having a tendency to criminate him, he 
 is not compelled to answer." In 1 Burr's 
 Tr. 424, Chief Justice Marshall, in discuss- 
 ing this question, said: "It is the province 
 of the court to judge whether any direct an- 
 swer to the question which may be proposed 
 will furnish evidence against the witness. 
 If such answer may disclose a fact which 
 forms a necessary and essential link in the 
 chain of testimony which would be sufficient 
 to convict him of any crime, he is not bound 
 to answer it so as to furnish matter for that 
 conviction." 
 
 It will be observed from the authorities 
 cited that a witness is not required to go 
 on and answer questions until one is pro- 
 pounded the answer to which will of itself 
 criminate him of a crime, but if the evidence 
 elicited tends to criminate the witness, or if 
 It constituted a link in a chain of evidence 
 which might criminate the witness, he may 
 
 407 
 
Case No. 141] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 claim his privilege, and refuse to answer. 
 Here the grand jury was investigating the 
 question whether certain persons had been 
 guilty of gambling by playing with cards 
 for money. The witness had played in a 
 certain game with these persons, and the 
 question presented is whether he could dis- 
 close the name of the person or persons 
 with AAiiom he played without furnishing a 
 link in a chain of testimony sufficient to es- 
 tablish his own guilt. In other words, if A. 
 and B. play with each other a game with 
 cards for money, can A. testify that he saw 
 B. play, without disclosing evidence which 
 will form a link in a chain of testimony suf- 
 ficient to convict A.? The answer to this 
 would seem to be obvious. The testimony 
 of A. establishes the fact that two persons 
 played with cards for money. The name of 
 one is given. One mere link in the chain 
 of evidence will suffice to complete the chain, 
 and establish the crime; that is, that A. 
 also joined in the game. Gaming is an of- 
 
 408 
 
 fense that one person cannot commit alone. 
 He must of necessity have an accomplice. 
 Under the ruling adopted in this case, plain- 
 tiff in error was compelled to go on the 
 stand and testify that a crime had been com- 
 mitted, and give the name of his accomplice, 
 and was only allowed to withhold the fact 
 that he was the other guilty party. We 
 think this ruling violated that long and well 
 established rule of law which shields a par- 
 ty from testifying to a fact that may crim- 
 inate himself. If plaintiff in error had not 
 been a party to the crime which the people 
 were attempting to prove; if he had merely 
 been in a room or place, and saw others play, 
 — he could be compelled to testify to all he 
 saw. But such was not the case. He was 
 a party to the game. He and another had 
 violated the law, and he could not be re- 
 quired to establish the crime by his own evi- 
 dence. The judgment of the appellate and 
 circuit courts will be reversed, and the cause 
 remanded. 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 142 
 
 MAHANKE v. CLELAND, Judge, et al. 
 
 (41 N. W. 53, 76 Iowa, 401.) 
 
 Supreme Court of Iowa. Dec. 22, 1888. 
 
 Certiorari proceeding by Elizabeth Ma- 
 hanke against John B. Cleland, judge of the 
 district court, Twelfth judicial district of 
 Iowa, and John Barlow, clerk of the district 
 court in and for Butler county, Iowa, and 
 said district court of said county, to test the 
 validity of an order requiring the plaintiff to 
 answer questions in regard to a certain issue 
 Involved in an action then pending, to which 
 she was a party defendant. 
 
 Hemenway & Qrundy, for petitioner. 
 
 ROBINSON, J. John Smallpage com- 
 menced an action in the district court 
 of Butler county, in which the petitioner 
 in this proceeding and one John Mahanke 
 were made parties defendant. The peti- 
 tion in that action alleges that Small- 
 page is the owner of a judgment rendered 
 by said district court against said John 
 Mahanke, on which an execution has been 
 issued and returned unsatisfied, and on 
 which there is due about the sum of $800; 
 that before said judgment was rendered said 
 John Mahanke, being the owner of certain 
 lands in Butler and Grundy counties, "did 
 make a pretended sale and conveyance, by 
 deeds of the same, " to the plaintiff in this 
 action, "with intent to hinder, delay, and de- 
 fraud the plaintiff in the collection of his 
 said judgment;" that the plaintiff in thjg ac- 
 tion "took said deeds of conveyance with the 
 like intent, and without paying therefor any 
 consideration." Tlie petition prays that thq 
 conveyances be set aside, and that the land 
 therein described be subjected to the pay- 
 ment of said judgment. The plaintiff in this 
 action, by her answer, admitted the allega- 
 tions in regard to the judgment, and that the 
 conveyances specified had been made to her, 
 but denisd that they were made without con- 
 sideration, and denied all allegations of fraud. 
 While the action aforesaid was pending, the 
 plaintiff in this action was called before a no- 
 tary public, and sworn, for the purpose of 
 taking her deposition to sustain the issues 
 on behalf of the plaintiff Smallpage, and was 
 asked the following question: "Wiien did 
 you first know that John Mahanke had made 
 and executed to you deeds of his interest to 
 the land left by Henry Mahanke, being the 
 real estate described in the petition?" There- 
 upon the witness objected to answering such 
 question, on the ground "that the witness is 
 a defendant in the case; that the only issue 
 in the case is the good faith of the convey- 
 ance made by Johp Mahanke to the witness, 
 set out in the petition; and the matter sought 
 to be elicited would render tlie witness lialDle 
 to criminal prosecution;" and "objected to 
 any further examination concerning issues 
 in the case upon like grounds." The parties 
 agreed in writing that plaintiff was seeking 
 to prove the affirmative allegations relating 
 
 to the issue, by interrogating Elizabeth Ma- 
 hanke in regard to the circumstances under 
 which the deeds were executed by John Ma- 
 hanke to her, the consideration paid by her, 
 etc.; and that a return should be made to the 
 court for its determination as to whether this 
 testimony would be competent under the is- 
 sue, and whether the witness would be ex- 
 cused, under section 3647 of the Code, from 
 answering such questions. A return was 
 made by the notary of the deposition, objec- 
 tions, and agreement. The district court 
 overruled the objection made by the witness, 
 and ordered that she "answer questions pro- 
 pounded to her relative to the said issues 
 joined in said cause." This proceeding is 
 designed to test the validity of that ruling 
 and order. 
 
 The attorneys for petitioner have made no 
 argument, but content themselves witli sug- 
 gesting a few points for the consideration of 
 this court. The questions raised by the sug- 
 gestions of counsel require an examination 
 of the following sections of the Code: !'Sec. 
 3647. But when the matter sought to be 
 elicited would tend to render him criminally 
 liable, or to expose him to public ignominy, 
 he is not compelled to answer, except as pro- 
 vided in the next section. Sec. 3648. A wit- 
 ness may be interrogated as to his previous 
 conviction for a felony, but no other proof of 
 such conviction is competent, except the 
 record thereof." "Sec. 4074. Any person who 
 knowingly, being a party to any conveyance 
 or assignment of any estate or interest in 
 lands, * * * or being a party to any 
 charge on such estate, * * * made or 
 created with intent to defraud prior or sub- 
 sequent purchasers, or to hinder, delay, or 
 defraud creditors or other persons, and every 
 person who, being privy to or knowing of 
 such fraudulent conveyance, assignment, or 
 charge, puts the same in use as having been 
 made in good faith, shall be fined not ex- 
 ceeding one thousand dollars, and impris- 
 oned in the county jail not exceeding one 
 year." 
 
 1. It is the duty of the court to determine 
 whether a witness should answer a question 
 propounded, but, if reasonable grounds for 
 believing that the answer would tend to ren- 
 der him criminally liable exist, it should not 
 be required. But the witness cannot claim 
 his privilege on this ground where prosecu- 
 tion for the offense of which he is guilty is 
 barred by the statute. 1 Greenl. Ev. 8 451; 
 2 Phil. Ev. 933, 934; 1 Whart. Ev. §§ 536, 
 538; 2 Tayl. Ev. § 1457; Calhoun v. Thomp- 
 son, 56 Ala. 166. 
 
 In this case, the witness is a party defend- 
 ant called to testify for the plaintiff. She 
 had filed her answer, in which she had de- 
 nied all allegations of fraud, and the law pre- 
 sumes, in the absence of proof, that there 
 was no fraud in the transactions. The wit- 
 ness objected to answering, on the ground of 
 her privilege, but it does not appear tliatshe 
 understands what answers would tend to ren- 
 der her criminally liable. The date of the 
 
 409 
 
Case No. 142] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 execution and delivery of the deeds is not 
 thown. It may be that prosecution for the 
 crime, if any, involved in their execution 
 imd acceptance, is barred by the statute of 
 limitations. Again, their execution and de- 
 livery may have involved a constructive 
 fraud, sufficient to render them invalid as 
 against creditors, but not of such a character 
 as to render the grantee criminally liable. 
 Tiiere is notliing in the record, as submitted 
 to us, which overcomes thepresumption that, 
 so far as the witness is concerned, the trans- 
 action in question involved no criminal lia- 
 bility on her part. She should not be per- 
 mitted to defeat the ends of justice by claim- 
 ing a privilege to which there is no reasonable 
 grounds for believing her entitled. 
 
 2. In case the witness has been guilty of a 
 crime within the meaning of section 4074 of 
 the Code, prosecution for which is now barred 
 by the statute, would she be privileged from 
 testifying as to her share in the transactions 
 in controversy, on the ground that her an- 
 swers would tend to expose her to public ig- 
 nominy? "Ignominy" isdeflned to be "pub- 
 lic disgrace, infamy, reproach, dishonor." 
 Bouv. As used in our statute, it seems to 
 have a wider meaning than the word "infa- 
 my, '' as formerly used to test the competency 
 of witnesses; but, in our opinion, it was not 
 intended to apply to all acts which might jus- 
 tify public censure or disapproval, but those 
 of a more serious nature, which would tend 
 410 
 
 'to expose the perpetrator to public hatred ot 
 detestation or dislionor. For example, a 
 woman cannot be compelled to testify to sex- 
 ual intercourse with different men. Brown. 
 V. Kingsley, 38 Iowa, 221; Lolunan v. Peo- 
 ple, 1 N. Y. 385. Treason, felony, and of- 
 fenses founded in fraud, were considered in- 
 famous at common law, and persons guilty 
 of any of them were incompetent to testify. 
 1 Greenl. Ev. § 373. Under our statute, no 
 rule applicable to all cases is possible, but the 
 privilege of the witness must depend largely 
 upon the facts of the transaction which are 
 sought to be shown. It is possible that the 
 circumstances involved in the giving and 
 taking ot the deeds in controversy were of 
 such a character as to entitle the witness to 
 the privilege which she clams, but there is 
 nothing in the record to indicate that such is 
 the case. The order of the court of which 
 the witness complains must be understood as 
 requiring her to answer the particular ques- 
 tion set out in the record, and such other 
 questions as may be proper. We cannot say 
 that the question shown was improper, nor 
 that the witness should not be further inter- 
 rogated as to the issues involved in the case. 
 The witness will be entitled to show reason- 
 able grounds for believing that her answer 
 ■to the question in controversy would tend to 
 render her criminally liable, or expose her to 
 public ignominy. With this modification the 
 order of the district court is affirmed. 
 
PKlVn.EGED COMMUNICATIONS. 
 
 [Case No. 143 
 
 COUXSELMAN v. HITCHCOCK, iliirshnl. 
 
 (12 Sup. Ct. 195, 142 U. S. 547.) 
 
 Supreme Court of the United States. Jan. 11, 
 1892. 
 
 Apjjeal from the circuit court of the 
 United States for the northern district of 
 Illinois. 
 
 Petition by Charles Counselman for a 
 writ of habeas cori>iis to release him 
 from the custody of United States Mar- 
 shal Franlc Hitchcock, by whom he was 
 held under an order made in certain con- 
 tempt proceedings. Tlie circuit court dis- 
 missed the petition, and remanded the 
 prisoner. Petitioner appeals. Reversed. 
 
 John N. Jewett and Jas. C. Vaiter, for 
 appellant. Atty. Gen. Miller and G. M. 
 Lambertson, for appellee. 
 
 Mr. Justice BLATCHFORD delivered the 
 opinion of the court. 
 
 On the 21st of November, 1890, while the 
 grand jury in attendance upon thedistrict 
 court of the United States forthenorthern 
 district of Illinois was enjiaged in inves- 
 tigating and Inquiring into certain alleged 
 violations, in that district, of an act of 
 congress entitled "An act to regulate 
 commerce, " approved February 4, 1887, c. 
 104, (24 St. .379,) and the amendments there- 
 to, approved March 2, 1889, c. .382, (25 St. 
 855,) by the ofBcers and agents of the Chi- 
 cago, Koek Island & facitic Railway 
 Company, and by the officers and agents 
 of the Chicago, St. Paul & Kansas City 
 Railway Company, and by the officers 
 and agents of the Chicago, Burlington & 
 Quincy Railroad Company, and the offi- 
 cers and agents of various other railroad 
 companies having lines of road in that 
 district, one Charles Counselman appeared 
 before the grand jury, in response to a 
 subpoena served upon him, and, after hav- 
 ing been duly sworn, testified as follows: 
 
 "Question. Your name is Charles Coun- 
 selman? Answer. Yes, sir. Q. You are 
 the sole member of Charles Counselman 
 &Co.? A. Yes, sir. Q. Engaged in the 
 grain and commission business in the city 
 of Chicago? A. Yes, sir. Q. Have you 
 been a receiver of grain from the west dur- 
 ing the past two years? A. Yes, sir. Q. 
 Over what roads did you ship grain re- 
 ceived by you during the pre.sent summer 
 of 1890? A. The Rock Island & Burling- 
 ton, principally. Q. From what states 
 was most of the grain shipped? A. From 
 Kansas and Nebraska. I think. Q. What 
 did your receipts in bushels amount to 
 of corn in the months of May, June, and 
 July, 1890? A. Ihavenoidea; Icouldnot 
 tell you. Q. Five hundred thousand 
 bushels a month? A. I cannot tell you. 
 Q. How many men have you employed 
 during the last year? What is the usual 
 number of men employed in connection 
 with your business? A. I have, I think, 
 six or seven men in my office. Q. Have' 
 you during tlie past year, Mr. Counselman, 
 obtained a rate for the transportation of 
 your grain on any of the railroads com- 
 ing to Chicago, from points outside of this 
 state, less than the tariff or open rate? 
 A. That I decline to answer, Mr. Mil- 
 christ, on the ground thatit might tend to 
 
 criminate me. 0. During the past year 
 have you received rates upon the Chica- 
 go, Rock Island & Pacific from points out- 
 side of the state to the city of Chicago, 
 at less than the tariff rates? A. That I 
 decline to answer on the same ground. 
 Q. I will ask you the same question with 
 reference to the Burlington. A. I answer 
 in the same way. Q. The same with ref- 
 erence to Atchison. A. I can't recollect 
 that we have done any business with that 
 road. Q. I will ask you whether you 
 have during the last year received a rate 
 less than the tariff rate on what is called 
 the 'Diagonal ' or Stickney road. A. Not 
 to my knowledge. Q. Who attends to the 
 freight department of your business? A. 
 Myself and Mr. Martin. Q. Have you or 
 the firm of Charles Counselman & Co. re- 
 ceived any rebate, drawback, or commis- 
 sion from the Chicago, Rock Island & 
 Pacific Railroad Company, or the Chicago, 
 Burlington & Quincy Railroad Company, 
 on the transportation of grain from 
 points in the states of Nebraska and Kan- 
 sas, to the city of Chicago, in the state 
 of Illinois, during the past year, where- 
 by you secured the transportation of said 
 grain at less than the tariff rates estab- 
 lished by said railroad? A. I decline to 
 answer on the same ground." 
 
 The grand jurors thereupon filed in said 
 court, on the 22d of November, 1890, their 
 report, signed by their foreman and clerk, 
 certifying to the court the several ques- 
 tions which Counselman so refused to an- 
 swer. Thereupon the judge of the courtj 
 granted a rule on Counselman to show 
 cause why he should not answer the said ' 
 questions, a hearing was had, and the 
 court made an order, on the 25th of No- 
 vember, 1890, which found that tlie excuses 
 ,and reasons advanced on behalf of Coun- 
 selman, as to why he should riot answer 
 said questions, were wholl.y insufficient, 
 and directed that he appear before the 
 grand jury without delay, and there answer 
 the said questions, and also such further 
 questions touching the matter under in- 
 quiry by the grand jury, and which should 
 be pertinent to such inquiry, as should 
 be propounded to him by any member of 
 the grand jury, or the district attorney, 
 or any of his assistants. 
 
 Counselman was again called before the 
 grand jury, and the same questions, to- 
 gether with other kindred questions, were 
 submitted to him to answer; and here- 
 fused to answer them, and each of them, 
 for the same reasons. The grand jury, by 
 its report signed ^3y its foreman and clerk, 
 reported to the court that Counselman 
 still refused to answer the questions 
 which he had previousl.v refused to an- 
 swer, and upon the same grounds, and 
 that there w'ere also propounded to him 
 by the district attorney and the grand 
 jury additional questions, which, and the 
 answers thereto, were as follows: 
 
 "Question. Do you know whether or 
 not the Chicago, Rock Island & Pacific 
 Railroad Company transported for any 
 person, company, or corporation in the 
 city of Chicago, during the year last past, 
 grain from anV point in the states of Ne- 
 braska, Kansate, or Iowa, to the city of 
 Chicago, in the\state of Illinois, for less 
 
 411 
 
Case No. 143] PEODUCTION AND EFFECT OF EVIDENCE. 
 
 than the established rates in force on such 
 roi'd at the time oj such transportation? 
 Answer. I decline to answer, on the 
 ground that my auswer might tend to 
 ■criminate me. Q. Do you know any per- 
 fion, corporation, or company wlio has 
 obtained their transportation of grain 
 from points or places in the states of 
 Iowa, Nebraska, or Kansas, to the citj' of 
 Chicago, over the Chicago, Kock Island & 
 Pacific Railroad, during the past year, at 
 a rate and price less than the published 
 and legal tariff rate at the time of sirch 
 shipment? A. I decline to answer, for the 
 reason that my answer might tend to 
 eliminate me. Q. Do you know whether 
 the Chicago, Rock Island & Pacific Rail- 
 road Company, within the past year, has 
 charged, demanded, or received from any 
 person, company, or corporation in the 
 <;ity of Chicago any less rate than the 
 open rate, or rate e.stablished by said rail- 
 road company, on grain or otiier proper- 
 ty transported by the said railroad com- 
 pany from points in the states of Nebras- 
 ka, Kensas, and Iowa to the city of 
 Chicago, in the state of Illinois? If you 
 have such knowledge, give the name of 
 such shipper of whom said rate was 
 charged, demanded, or received, and the 
 amount of such rate and shipments, stat- 
 ing fully all the particulars within your 
 knowledge. A. I decline to answer, for 
 the reason that my answer might tend to 
 criminate me. Q. Do you know whether 
 the Chicago, Rock Island & Pacific Rail- 
 road Company, during the year A. D. 1890, 
 has paid to anj' shipper, at the city of 
 Chicago, any rebate, refund, or commis- 
 sion on property and grain transported 
 by such company from points in the 
 states of Kansas, Nebraska, or Iowa, 
 whereby such shipper obtained the trans-j 
 portation of such grain or property from 
 the said points in said states to the city 
 of Chicago, in the state of Illinois, at a 
 less rate than the open or tariff rate, or 
 the rate established by said company? If 
 you have such knowledge, state the 
 amount of such rebates, the drawbacks, 
 or commissions paid, to whom paid, tli* 
 <]ate of the same, and on what shipments, 
 and state fully all the particulars witliin 
 your knowledge relating to such transac- 
 tion or transactions. A. I decline to an- 
 swer, for the reason that niy answer 
 might tend to criminate me. " 
 
 Tliereupon, aftpr a hearing, the court on 
 November 25, 1S90, adjudged Counselman 
 to be in contempt of court, and made an 
 order fining him $500 and the costs of the 
 proceeding, and directing the marshal to 
 take him into custody and hold him until 
 he should have answered said questions, 
 and all questions of similar import which 
 should be propounded to him by the 
 grand jury, or the district attorney, or 
 any assistant district attorney, in the 
 presence of such jury, and until he should 
 pay such fine and costs. Under that or- 
 der he was taken into custody by the 
 marshal and held. 
 
 On the 2t)th of November, 1890, he filed 
 in the circuit court of the United States 
 for the northern district of Illinois a peti- 
 tion setting forth the foregoing facts, and 
 praying for a writ of Imhens corpus. The 
 [jetition alleged that the grand jury had 
 412 
 
 no jurisdiction or authority to make the 
 investigation in question, or to submit to 
 him the several questions referred to; 
 that his answers to those questions would 
 tend to incriminate him, and, by compel- 
 ling him to answer them, he would be 
 compelled to be a witness against himself 
 in the criminal proceeding and investiga- 
 tion pending before the grand jury, and 
 in any criminal proceedings which might 
 be brought as a result of such investiga- 
 tion, contrary to the provisions of the 
 constitution of the United States, and 
 especially the fourth and fifth amend- 
 ments thereof; that the district court had 
 no jurisdiction to compel him to answer 
 said questions; that its order to that 
 effect was contrary to the constitution 
 and laws of the United States, and was 
 void; that the district court had no juris- 
 diction so to adjudge him in contempt; 
 that the order imposing a fine upon him 
 and committing him to the custody of the 
 marshal was void : and that he was held 
 in custody without legal right, and con- 
 trary to the constitution and laws of the 
 United States. 
 
 On the same day, the circuit court is- 
 sued a writ of habeas corpus, returnable 
 forthwith, the return to which by the 
 marshal was that Counselman was held 
 under the order of the district court, made 
 November 25, 1890. The case was heard 
 on November 28th, and on December 18th 
 the circuit court, held by .Judge Geesuam, 
 delivered an opinion, (44 Fed. Rep. 268,) 
 and made an order adjudging that the 
 district court was in the exercise of its 
 rightful authority in doing what it had 
 done, overruling the motion of Counsel- 
 man for his discharge, dismissing his peti- 
 tion, remanding him to the custody of 
 the marshal, discharging the writ of Aa- 
 beas corpus, and adjudging against Coun- 
 selman the costs of the proceedings. He 
 excepted to the order and appealed to 
 this court, and an order was made admit- 
 ting him to bail pending the appeal. 
 
 In the opinion of the circuit court, it 
 was held that, under the fifth amendment 
 to the constitution, which declares that 
 "no person * * * shall be compelled in 
 any criminal case to be a witness against 
 himself," a person cannot be compelled to 
 disclose facts before a court or grand jnry 
 which might subject him to a criminal 
 prosecution, or his property to forfeiture; 
 that, under the interstate commerce law, 
 it is made a criminal offense, punishable 
 by fine and imprisonment, for any oflicer 
 or agent of a railroad company to grant 
 any shippers of merchandise from one 
 state to another, and for any such shipper 
 to contract for or receive, a rate less than 
 the tariff or open rate; that shippers, as 
 well as the oflicers, agents, and employes 
 of corporations engaged in the carrying 
 business between states, are made subject 
 to the penalties of the statute; but that, 
 las the protection of section 860 of the Re- 
 Ivisc'd Statutes was co-extensive with that 
 lof the constitution, Counselman was enti- 
 tled to no privilege under the constitu- 
 tion; that, if thereafter he were to be 
 yrosecnted for the offense, section 860 
 would not permit his admissions to be 
 proved against him ; that his refusal to 
 testify was not a refusal to testify io a 
 
PRIVILEGED COMMUKICATIONS. 
 
 [Case No. 143 
 
 proceeding to obtain evidence upon whicli 
 he might be indicted, but in a proceeding 
 to obtain evidence iiijon whicli others 
 might be indicted; and that, although in 
 his testimony lie might disclose facts and 
 circumstances which would open up 
 sources of information to the govern- 
 ment, whereby it might obtain evidence 
 not otlierwise obtainable to secure his 
 conviction, yet, if his testimony could not 
 be repeated in any subsequent proceeding 
 against him or his property, he was pro- 
 tected as fully by section 860 as the consti- 
 tution intended he should be. 
 
 Section 860 is a re-enactment of section 
 1 of the act of February 25, 1868, c. 13, (15 
 St. 37,) which provided as follows: "That 
 no answer or other pleading of any par- 
 ty, and no discovery or evidence obtained 
 by means of any judicial proceeding from 
 any party or witness in this or any for- 
 eign country, shall be given in evidence, 
 or in any manner used against such par- 
 ty or witness, or his property or estate, 
 in any court of the United States, or in 
 any proceeding by or before any officer 
 of the United States, in respect to any 
 crime, or for the enforcement of any pen- 
 alty or forfeiture, by reason of any act or 
 omission of such party or witness: pro- 
 vided, that nothing in this act shall be 
 constiued to exempt any party or wit- 
 ness from prosecution and punishment 
 for perjury committed by him in discover- 
 ing or testifj'ing as aforesaid. " 
 
 Section 860 provides as follows: "No 
 pleading of a party, nor any discovery or 
 evidence obtained from a party or wit- 
 ness by means of a judicial proceeding in 
 this or any foreign country, shall be given 
 in evidence, or in any manner used against 
 him or his property or estate, in any 
 court of the United States, in any criminal 
 proceeding, or for the enforcement of any 
 penalty or forfeiture: provided, that this 
 section shall not exempt any party or wit- 
 ness from prosecution and punishment 
 for perjury committed in discovering or 
 testifying as aforesaid." 
 
 By section 10 of the interstate commerce 
 act of February 4, 1887, c. 104, (24 St. 382,) 
 as amended by section 2 of the act of 
 March 2, 1889, c. 382, (25 St. 857,) unlaw- 
 ful discrimination in rates, fares, or 
 charges, for the transportation of pas- 
 sengers or property, is made subject, not 
 only to a fine of not to exceed $5,000 for 
 each offense, but to imprisonment in the 
 penitentiary for not over two years, or to 
 both, in the discretion of the court. By 
 section 12 of the act of 1887, (24 St. 383,) 
 as amended by section 3 of the act of 1889, 
 (25 St. 858,) the interstate commerce com- 
 mission is authorized and required to 
 execute and enforce the provisions of the 
 act, and, on the request of the commis- 
 sion, it is made the duty of any district 
 attorney of the United States to whom 
 the commission may apply to institute in 
 the proper court, and to prosecute under 
 the direction of the attorney general of 
 the United States, all necessai'y proceed- 
 ings for tlie enforcement of tlie provisions 
 of the act andforthepunishroent of all vio- 
 lations thereof. 
 
 It is contended by the appellant that 
 the grand jury of the district court was 
 
 not in the exercise of its proper and legiti- 
 mate authority in prosecuting the investi- 
 gations specifically set out in its two re- 
 ports to the district court; that those re- 
 ports could not be made the foundation 
 of any judicial action by the court; that 
 the interstate commerce commission was 
 specially invested by the statute with the 
 authority to investigate violations of the 
 act and charged with that duty; and 
 that no duty in that respect was imposed 
 upon the grand jury, until specific charges 
 had been made. 
 
 But, in the view we take of this case, 
 we do not find it necessary to intimate 
 any opinion as to that (luestion in any of 
 its branches, or as to the question whether 
 the reports of the grand jury, in stating 
 that they were engaged in investigating 
 and inquiring into "certain alleged viola- 
 tions" of the acts of 1887 and 1889 by the 
 officers and agents of three specified rail- 
 way and railroad companies, and the 
 officers and agents of various other rail- 
 road companies ha ving lines of road in 
 the district, (there being no other show- 
 ing in the record as to what they were in- 
 vestigating and inquiring into,) are or are 
 not consistent with the fact that they 
 were investigating specific charges against 
 particularpersons; hecauseweare of opin- 
 ion that upon another ground the judg- 
 ment of the court below must be reversed. 
 
 It is broadly contended on the part of 
 the appellee that a witness is not entitled 
 to plead the privilege of silence, except in 
 a criminal case against himself; but such 
 is not the language of the constitution. 
 Its provision is that no person shall be 
 compelled in any criminal case to be a wit- 
 ness against himself. This provision must 
 have a broad construction in favor of the 
 right which it was intended to secure. 
 The matter under investigation by the 
 grand jury in this case was a criminal 
 matter, to inquire whether there had been 
 a criminal violation of the interstate com- 
 merce act. If Counselman had been guilty 
 of the matters inquired of in the ques- 
 tions which he refused to answer, he him- 
 self was liable to criminal prosecution un- 
 der the act. The case before the grand 
 jury was therefore a criminal case. The 
 reason given by Counselman for his re- 
 fusal to answer the questions was that 
 his answers might tend to criixiinate him, 
 and showed that his apprehension was 
 that, if he answered the questions truly 
 and fully, (as he was bound to do if he 
 should answer them at all,) the answers 
 might show that he had committed a 
 crime against the interstate commerce 
 act, for which he might be prosecuted. 
 His answers, therefore, would be testi- 
 mony against himself, and he would be 
 compelled to give them in a criminal case. 
 
 It is impossible that the meaning of the 
 constitutional provision can only be that 
 a person shall not be compelled to be a 
 witness against himself in a criminal 
 prosecution against himself. It would 
 doubtless cover such cases; but it is not 
 limited to them. The object was to in- 
 sure that a person should not be coip- 
 pelled, when acting as a witness in any 
 investigation, to give testimony which 
 might tend to show that he himself had 
 
 413^ 
 
Case Xo. 143] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 committed a crime. Tlie privilege is lim- 
 ited to criminal matters, but it is as 
 broad as the mischief against -which it 
 seekK to guard. 
 
 It is argued for the appellee that the In- 
 vestigation before the grand 3ur.y was 
 not a criminal case, but was solely for the 
 ])urpose of finding out whether a crime 
 had been committed, or whether any one 
 should be accuised of an offense, there be- 
 ing no accuser and no parties plaintiff or 
 defendant, and that a case could arise 
 only when an indictment should be re- 
 turned. In support of this A-iew reference 
 is made to article 6 of the amendments to 
 the constitution of the United States, 
 which provides that in all criminal prose- 
 cutions the accused shall enjoy the right 
 to a speedy and public trial by an impar- 
 tial jury, to be confronted with the wit- 
 nesses against him, to have compulsory 
 process for witnesses, and the assistance 
 of counsel for his defense. 
 
 But this provision distinctly means a 
 criminal prosecution against a person 
 who is accused and who is to be tried by 
 a petit jury. A criminal prosecution un- 
 der article 6 of the amendments is much 
 narrower than a "criminal case," under 
 article 5 of the amendments. It is entirely 
 consistent with the language of article 5 
 that the privilege of not being a witness 
 against himself is to be exercised in a pro- 
 ceeding before a grand jury. 
 
 We cannot yield our assent to the view 
 taken on this subject by the court of ap- 
 peals of New York in People v. Kelly, 2t 
 N. Y. 74, S4. The provision of the consti- 
 tution of New York of 1846 (article 1, § 6) 
 was that no person shall "be compelled, 
 in any criminal case, to be a witness 
 against himself. " The court, speaking by 
 Judge Demo, said : "The term 'criminal 
 case,' used in the clause, roust be allowed 
 some meaning, and none can be conceived 
 other than a prosecution for a criminal 
 offense. But it must be a prosecution 
 against him ; tor what is forbidden is 1 hat 
 he should be compelled to be a witness 
 against himself. " This ruling, which has 
 been followed in some other cases, seems 
 to us, as applied to the provision in the 
 fifth amendment to theccmstitution of the 
 United Slates, to take away entirely its 
 true meaning and its value. 
 
 it is an ancient principle of the law 
 of evidence that a witness shall not be 
 compelled, in any proceeding, to make dis- 
 closures or to give testimony which will 
 tend to criminate him or subject him to 
 fines, penalties, or forfeitures. Rex v. 
 Slaney, r, Car. & P. 213; Gates v. Hard- 
 acre, 3 Taunt. 424; Maloney v. Bartley, .3 
 Camp. 210;! Starkie, Ev. 71, ifll ; Case of 
 Sir John Friend, 13 How. St. Tr. 16; 
 Case ol Earl of Macclesfield, IH How. St. 
 Tr. 7G7; 1 Greenl. Ev. § 4.51; 1 Burr's Tr. 
 244; Whart. Crlm. Ev. (9ih Ed.) § 4Gi: 
 Southard v. Rexford, 6 Cow. 254; People 
 V. Mather, 4 Wend. 229; Lister v. Boker, 6 
 Blackf. 439. 
 
 The relations of Counselinan to the sub- 
 ject of inquiry before the grand jury, as 
 shown by tiie questions put to him, in 
 connection with the provisions of the in- 
 tei'state commerce act, entitled him to in- 
 voke the protection of the constitution. 
 414 
 
 State V. Xowell, 58 N. H. 314; Emery's 
 Case, 107 Mass. 172. 
 
 It remains to consider whether section 
 860 of the Revised Statutes removes the 
 protection of the constitutional privilege 
 of Counselman. That section must be 
 construed as declaring that no evidence 
 obtained from a witnews by means of a ju- 
 dicial proceeding shall be given in evidence, 
 or in any manner used against him or his 
 property or estate, in any <'ourt of the 
 United States, in any criminal proceeding, 
 or for the enforcement of any penalty or 
 forfeiture. It follows that an.y evidence 
 which might have been obtained from 
 Counselman by means of his examination 
 before the grand jury could not be given 
 in evidence nor used against him or his 
 property in any court of theUnited States, 
 in an.v criminal proceeding, or for the en- 
 foieement of any penalty or forfeiture. 
 This, of course, protected him against the 
 use of his testimony against him or his 
 propel ty in any prosecution against him 
 or his property, in any criminal proceed- 
 ing, in a court of the United States. But 
 it had only that effect. It could not, and 
 would not, prevent the use of his testi- 
 mony to search out other testimony to be 
 used in evidence against him or his prop- 
 erty, in a criminal proceeding in such 
 court. It could not prevent the obtaining 
 and the use of witnesses and evidence 
 which should be attributable directly to 
 the testimony he might give under com- 
 pulsion, and on which he might be con- 
 victed, when otherwise, and if he had re- 
 fused to answer, he could not possibly 
 have been convicted. 
 
 The constitutional provision distinctly 
 declares that a person shall not "be com- 
 pelled in any criminal case to be a wit- 
 ness against himself," and the protection 
 of section 860 is not co-extensive with the 
 constitutional provision. Legislation 
 cannot detract from the privilege afford- 
 ed by the constitution. It would be q\iite 
 another thing If the constitution had pro- 
 vided that no person shall be compelled in 
 ajjy criminal case to be a witness against 
 himself, unless it should be provided by 
 statute that criminating evidence extract- 
 ed from a witness against his will should 
 not be used against him. But a mere act 
 of congress cannot amend the constitu- 
 tion, even if it should ingraft thereon such 
 a proviso. 
 
 In some states, where there is a like con- 
 stitutional provision, it has been at- 
 tempted by legislation to remove the con- 
 stitutional provision, by declaring that 
 there shall be no future criminal prosecu- 
 tion against the witness, thus making it 
 impossible for the criminal charge against 
 him ever to come under the cognizance of 
 any court, or at least enabling him to 
 plead the statute in absolute bar of such 
 prosecution. 
 
 A review of the subject in adjudged cases 
 will be useful. 
 
 In Com. V. Gibbs, 3 Yeates, 429, and 4 
 Dall. 253, in 1802, the declaration of rights 
 In the constitution of Pennsylvania of 1776 
 declared that no man can "be compelled 
 to give evidence against himself," and the 
 same language was found in the constitu- 
 tion of 1790. Under this, the supreme couit 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case Ko. 143 
 
 of Pennsylvania held that the raaxim that 
 no one is bound to accuse himself extend- 
 *'(l to cases where the answer might in- 
 volve him in shame or reproach; audit 
 held to the sanie effect in Lessee of (ial- 
 bi'(!ath V. Eiehelberger, 3 Yeates, 515, in 1803. 
 
 In June, 1807, Chief Justice Marshai.l, 
 in the circuit court of the United States 
 for the district of Virginia, in Burr's trial, 
 (1 Burr's Tr. 244,) on the question whtther 
 the witness was privileged not to accuse 
 himself, said : "If the question be of such 
 a description that an answer to it may or 
 may not criminate the witness, according 
 to the purport of that answer, it must 
 rest witli himself, who alone can tell what 
 it would be, to answer the question or 
 not. If, in such a case, he say, upon his 
 oath, that his answer would criminate 
 himself, the court can demand no other 
 testimony of the fact. * * * According 
 to their statement, [the counsel for the 
 United States,] a witness can never refuse 
 to answer any question, ualess that an- 
 swer, unconnected with other testimony, 
 would besufHeient toconvict him of crime. 
 This would be rendering the rnle almost 
 perfectly worthless. Many links frequent- 
 ly compose that chain of testimony which 
 is necessary to convict any individual of 
 a crime. It appears to the court to be 
 the tiue sense of the rule that no witness is 
 compellable to furnish any one of them 
 againsc himself. It is certainly not only 
 a possible, but a probable, case that a 
 witness, by disclosing a single fact, may 
 complete the testimony against himself, 
 and to every effectual purpose accuse him- 
 self as entirely as he would by stating 
 every circumstance which would be re- 
 quired for his conviction. That fact, of it- 
 self, might be unavailing, but all other 
 facts without it would be insufficient. 
 While that remains concealed within his 
 own bosom, he is safe; but draw it from 
 thence, audheis exposed to a jirosecution. 
 The rule which declares that no man is 
 compellable to accuse himself would most 
 obviously be infringed by compelling a 
 witness to disclose a fact of this descrip- 
 tion. What testimony may be possessed 
 or is attainable against any individual 
 the court can never know. It would seem, 
 then, that the court ought never to com- 
 pel a witness to give an answer which dis- 
 closes a tact that would form a necessary 
 and essential part of a crime which is 
 punishable bv the laws." 
 
 In ISfiS, in State v. Quarles, 13 Ark. 307, 
 the declaration oF rights in the constitu- 
 tion of Arkansas of 188ti (article 2, § 11) had 
 declared that, in prosecutions by indict- 
 ment or presentment, the accused "shall 
 not be compelled to give evidence against 
 himself." Quarles was indicted under a 
 gaming law, for betting money on a game 
 of chance. A nolle prosequi having been 
 entered as to one Neal, against whom a 
 like' prosecution was pending, Neal was 
 sworn as a witness for the state, and in- 
 formed of the nolle prosequi, and that no 
 indictment for a similar offense would be 
 preferred against him, and was asked 
 whether he had seen Quarles bet money 
 at cards within a specified time. Neal re- 
 fused toanswerthe question, alleging that 
 he feared that he would criminate himself 
 thereby. The trial court refused to compel 
 
 him to answer, and, the jury having found 
 for the defendant, the state appealed. 
 There was a statute of Arkansas which 
 read as follows: "In all cases where two 
 or more [;"rs<ms are jointly or otherwise 
 concerned in the commission of any crime 
 or misdemeanor, either of such persons 
 may be sworn as a witness in relation to 
 such crime or misdemeanor; but the tes- 
 timony given by such witness shall in no 
 instance be used against him in any crim- 
 inal prosecution for the same offense." 
 Eng. Dig. 398, § 72. 
 
 The- supreme court of Arkansas held 
 that, although witnesses were not ex- 
 pressed in the terms of the provisions of 
 the hill of rights, yet they were substan- 
 tially embraced xo the full extent of a com- 
 plete guaranty against self-accusation; 
 and that the privilege of the bill of rights 
 was that a witness should not be com- 
 pelled to produce the evidence to prove 
 himself guilty of the crime about which he 
 might be called to testify. But it was 
 further held that, by the statute, the legis- 
 lature had so changed the rule by directing 
 that the testimony required to be given 
 should never be used against a witness 
 for the purpose of procuring his conviction 
 for the crime or uiisdemeanor to which it 
 related, that it was no longer necessary 
 for him to claim his privilege in regard 
 to such testimony, in order to prevent its 
 afterwards being used against him; and 
 that the only question was whether the 
 statutory regulation afforded sufiiciont 
 protection to the witness, responsive to 
 the new rule and to the constitutional 
 guaranty against compulsory self-accusa- 
 tion. It was held that the statute suffi- 
 ciently guarded witnesses from self-accusa- 
 tion, within the meaning of the constitu- 
 tion, to make it lawful for the courts to 
 compel them to testify as to all matters 
 embraced by the provisions of the statute 
 on that subject. 
 
 In Higdon v. Heard, 14 Ga. 255, in 1853, 
 it was said that the constitution of 
 Georgia declared that "no person shall be 
 compelled in any criminal case to be a wit- 
 ness against himself." In that case the 
 plaintiff had filed a bill in equity praying 
 a discovery as to property which he al- 
 leged the defendants had won from him in 
 a game of cards. The bill was demurred 
 to on the ground that the law of the 
 state compelling a discovery of gaming 
 transactions was unconstitutional, be- 
 cause such transactions were criminal, and 
 the statute did not grant an absolute and 
 unconditional release from punishment, 
 and because the defendants could not 
 make the discovery sought without crim- 
 inatingthemselvesand incurring penalties. 
 The demurrer was overruled by the su- 
 preme court of Georgia, on the ground 
 that, although all persons were protected 
 by the constitution from furnishing evi- 
 dence against themselves which might tend 
 to subject them to a criminal prosecution, 
 they received their protection by virtue of 
 an act of Georgia of 1764, because, under 
 that act, their answers could not be read 
 in evidence against them in any criminal 
 case whatever, being excluded by the con- 
 stitution. 
 
 In Ex parte Rowe, 7 Cal. 184, in 1857, the 
 constitution of California of 1849 provided 
 
 415 
 
Case No. 143] PBODUCTION AND EFFECT OF EVIDENCE. 
 
 (article 1, § 8) that no person shall "be 
 compelled, in any criminal case, to be a 
 witness against himself." Howe had been 
 comrnittecl for refusing to answer, under 
 an order of the court, certain questions 
 propounded to liini hy the grand jury in an 
 examination concerning thedisposition of 
 certain moneys taken from the state 
 treasury, on the ground that his answer 
 would disgrace him, and would tend to 
 subject him to a prosecution for felony. 
 Thesupreme court of California, on habeas 
 corpus, eon.sidered the construction and 
 constitutionality of the fifth section of an 
 act passed .4pril 16, lb!.o5, which provided 
 that "the testimony given by such wit- 
 ness shall in no instance be used against 
 himself in any criminal prosecution. " The 
 court held that the provision of the con- 
 stitution was intended to protect the wit- 
 ness from being compelled to testify 
 against himself in regard to a criminal of- 
 fense; that he could not be a witness 
 against himself unless his testimony could 
 be used against him in his own case; and 
 that the statute gave the witness that 
 protection which was contemplated by 
 the constitution, and therefore he was 
 .bound to answer. 
 
 lA In lS(iO, in Wilkins v. Malone, 14 Ind. 153, 
 the constitution of Indiana of 1851, in its 
 bill of rights, (article 1, § 14,) had declared 
 that "no person in any criminal prosecu- 
 tion shall be compelled to testify against 
 himself." In a suit brought by Malone to 
 recover on a promissory note, the defense 
 pleaded usury, and offered to examine 
 Malone as a witness to prove the usury. 
 The plaintiff objected, on the ground that 
 such examination would criminate himself, 
 and the objection was sustained. On ap- 
 peal to the supreme court of Indiana by 
 the defendants, it was held that the con- 
 stitutional provision protected a person 
 from a compulsory disclosure, in a civil 
 suit, of facts tending to criminate him, 
 whenever his answer could be given in 
 evidpnce against him in a subsequent 
 criminal prosecution. The court referred 
 to State V. Quarjes, supra, and Higdon v. 
 Heard, supra, and to the statute of In- 
 diana, (J Kev. St. p. 345, § 8,) which pro- 
 vided that a person charged with talking 
 illegal interest might be required to an- 
 swer, but that his answer should not be 
 used against him in any criminal prosecu- 
 tion for usury. The court held that by 
 this statute the constitutional privilege of 
 the party was fully secured to him, al- 
 though he might disclose circumstances 
 which might lead to a criminal prcjsecu- 
 tion. 
 ^ In 1861, "in the court of appeals of New 
 ' yoi'k- (People V. Kelly, 24 N. Y. 74,) the 
 fonstitntion ot JNew ■frfTk of IS4t5 decia red 
 that no person shall "be compelled, in any 
 criminal case, to be a witness against 
 himself." In that case, one Hackley, as a 
 witness before the grand jury on a com- 
 plaint against certain aldermen for feloni- 
 ously i-eceiving a gift of money under an 
 agreement that their votes should be in- 
 fluenced thereby in a matter then pending 
 before them in their official capacity, in 
 answer to a question put to him as to 
 what he had done with certain money 
 which he had received, said that any an- 
 
 416 
 
 swer which he could give to the question 
 would disgrace him, and would have a 
 tendency to accuse him of a crime, and 
 he demurred to the question. Having 
 been ordered by the court of general ses- 
 sions ot the peace to answer it, he still re- 
 fused, and was adjudged guilty of con- 
 tempt, and put in prison. On "a writ of 
 habeas corpus, he was remanded into cus- 
 todj' by the supreme court, and he ap- 
 pealed to the court ot appeals. 
 
 By chapter 539 of the Laws of New York 
 of 1853 it was enacted, by section 2, that 
 section 14 should be added to article 2, tit. 
 4, c. 1, pt. 4, Rev. St. The act provided 
 that the giving of money to any member 
 of the common council of a city, with in- 
 tent to influence his action upon any mat- 
 ter which might be brought before hiin in 
 his official capacity, should be an offense 
 punishable by fine or imprisonment in a 
 state-prison or both; and section 14 pro- 
 vided that every person offending against 
 the statute should "be a competent wit- 
 ness against any other person so offend- 
 ing," and might be compelled to give evi- 
 dence before any magistrate or grand 
 jury, or in any court, in the same manner 
 as other persons, "but the testimony so 
 given shall not be used in any prosecution 
 or proceeding, civil or criminal, against 
 the person so testifying. " A similar pro- 
 vision was contained in chapter 446 ot the 
 Laws of 1857, in section 52. 
 
 The court of appeals considered the 
 question whether those provisions were 
 consistent with the true sense of the dec- 
 laration of the constitution, and said, 
 speakingby .JudgeDENio, (page 82:) "The 
 mandate that an accused person should 
 not be compelled to give evidence against' 
 himself would tail to secure the whole ob-i 
 ject intended, if a prosecutor might call an 
 accomplice or confederate in a criminal' 
 offense, and afterwards use the evidence 
 he might give to procure a conviction, on 
 the trial of an indictment against him. If 
 obliged to testify, on the trial of the co- 
 offender, to matters which would show his 
 own complicity, it might be said upon a 
 very liberal construction of the language 
 that lie was compelled to give evidence 
 against himself, — that is, to give evidence 
 which might be used in a criminal case 
 against himself. * • • It is, ot course, 
 competent for the legislature to change 
 any doctrine of the common law, but I 
 think they could not compel a witness to 
 testify, on the trial of another person, to 
 facts which would prove himself guilty of 
 a crin)e, without indemnifying him against 
 the consequences, because I think, as has 
 been mentioned, that by a legal construc- 
 tion the constitution would be found to 
 forbid it. " But the court went on to say : 
 "If a man cannot give evidence upon the 
 trial of another person without disclosing 
 circumstances which will make his own 
 guilt apparent, or at least capable ot 
 proof, though his account of the transac- 
 tions should never be used as evidence, it 
 is the misfortune of his condition, and not 
 any want of humanity in the law. If a 
 witness objects to a question on the 
 ground that an answer would criminate 
 hiuiHell, he must allege, in substance, that 
 his answer; if repeated as his admission, 
 
PRIVILEGED COMMUN'IOA.TION^S. 
 
 [Case No. 143 
 
 on his own trial, woiilrl tend to prove hira 
 Kuilty of a criminal offense. Iftliecaseis 
 so situated tliat a repetition of it on a 
 prosecution against liim is impos.sibIe, as 
 wliere it is forbidden by a positive statute, 
 I have seen no authority which holds or 
 intimates that the witness is privileged. 
 It is not within any reasonable construc- 
 tion of the languase of the constitutional 
 provision. The term 'criminal case,' used 
 in the clause, must be allowed some mean- 
 ing, and none can be conceived other than 
 a prosecution for a criminal offense. But 
 it must be a prosecution against him ; for 
 what is forbidden isthathe should be com- 
 pelled to be a witness against himself. 
 Now. if he be prosecuted criminally, touch- 
 ing the m.atter about which he has testi- 
 fied upon the trial of another person, the 
 statute makes it impossible that his testi- 
 mony given on that occasion should be 
 used by the prosecution on the trial. It 
 cannot, therefore, be said that in such 
 criminal case he has been made a witness 
 against himself, by force of any compul- 
 sion used towards him, to procure, In the 
 other case, testiiiiony which cannot possi- 
 bly be used in the criminal case against 
 himself." The court held, therefore, that 
 Hackley was not protected by the consti- 
 tution of New York from answering before 
 the grand jury. 
 
 .>^n 1871, In Ti^mPrv'H Case. 107 Mass. 172 
 article 12 of thedeclaration of rights in cue 
 constitution of Massachusetts of 17X0 had 
 declared that no subject shall be"compelled 
 to accuse or furnish evidence against him- 
 self. " A statute of Massachusetts, of 
 March 8, 1871, c. 91, entitled. "An act for 
 the better discovery of testimony and the 
 protection of witnesses before the joint 
 special committee on the state police," 
 provided as follows: "No person who is 
 called as a witness before the joint special 
 •committee on the state police shall be ex- 
 cused from answering any question or 
 from the production of any paper relating 
 to any corrupt practice or improper con- 
 duct of the state police, forming the sub- 
 ject of inquiry by such committee, on the 
 ground that the answer to such question 
 or the production of such paper may crim- 
 inate or tend to criminate himself, or to 
 disgrace him, or otherwise render him in- 
 famous, or on the ground of privilege; 
 but the testimony of any witness exam- 
 ined before said committee upon the sub- 
 ject aforesaid, or any statement made or 
 paper produced by him upon such an ex- 
 am i n a ti r jnjShallnotbeusedasevidenc e 
 apainst 'sucTT w'ltness I'lT ■ahyclVi l or crim- 
 inal proceeding in any cOUl't ul juMtiecr 
 provided, however, that no official paper 
 or record, produced by such witness on 
 such examination, shall be held or taken 
 to be included within the privilege of said 
 evidence so to protect such witness in any 
 civil or criminal proceeding as aforesaid, 
 and that nothing in this act shall be con- 
 strued to exempt any witness from pros- 
 ecution and punishment for perjury com- 
 mitted by him in testifying as aforesaid. " 
 Emery was summoned as a witness be- 
 fore the" joint special committee of the sen- 
 ate and house of repesenta fives of the gen- 
 eral court "to inquire if the state police is 
 guilty of bribery and corruption. " Inter- 
 
 vniGUS.BV. — 37 
 
 rogatories were propounded to him by 
 the committee, which he declined to an- 
 swer. On a report of the facts to the sen- 
 ate, it ordered his arrest for contempt. 
 He was brought before the senate, and 
 asked the following question: " Are you 
 ready arid willling to answer before the 
 joint special committee, appointed by this 
 senate and the house of representatives of 
 Massachusetts, toinquireif tliestate police 
 is guilty of bribery and corruption, the 
 following questions, namely: First. 
 Whether, since the appointment of the 
 state constabulary force, you have ever 
 been prosecuted for the sale or keepinir for 
 sale intoxicating liquors. Second. Have 
 you ever paid any money to any state 
 constable, and do you know of any cor- 
 rupt practice or improper conduct of the 
 state police? If so, state fully what sums, 
 and to whom you have thus paid money, 
 and also what you know of such corrupt 
 practice and improper conduct. " He an- 
 swered in writing as follows: "Intending 
 no disrespect to the honorable senate, I 
 answer, under advice of counsel, that 1 
 am ready and willing to answer'the first 
 question ; but I decline to answer the sec- 
 ond question, upon the grounds— /'7rsf, 
 that the answer thereto will accuse me of 
 an indictable offense; fseconcl, that the an- 
 swer thereto will furnish evidence against 
 me by which 1 can be convicted of such an 
 oflense. " The senate thereupon commit- 
 ted him to the custody of the sergeant at 
 arms, to be conlined in jail for 25 days, or 
 until the further order of the senate, un- 
 less he should sooner answer the ques- 
 tions. He was imprisoned accordingly, 
 and the case was brought before Judge 
 Weli.s of the supreme judicial court on a 
 writ of Ijubeas corpus, and was fully ar- 
 gued. It was held under advisement and 
 for conference with the other judges; and 
 in the opinion subsequently delivered by 
 Judge Wells it is stated that that opin- 
 ion had the approval and unanimous con- 
 currence of all the members of the court. 
 It is said in the opinion, in regard to the 
 second question put to the witness: "It 
 is apparent that an affirmative answer to 
 thequestion put to him might tend to 
 show that he had been guilty of an offense, 
 either against the laws relating to the 
 keeping and sale of intoxicating liquors, 
 or under the statute for punishing one 
 who shall corruptly attempt to influence 
 an executive officer by the gift or offer of 
 a bribe. Gen. St. c. 1H3, § 7." 
 
 In regardto theclauseabovequotedfrom 
 the bill of rights, the opinion says: "By 
 the narrowest construction, this prohibi- 
 tion extends to all investigations of an in- 
 quisitorial nature, instituted tor the x^ur- 
 pose of discovering crime, or the perpetra- 
 tors of crime, by putting susijected parties 
 uiion their examination in respect thereto, 
 in any manner, although not in ihe course 
 of any pending prosecution. But it is not 
 even thus limited. The principle applies 
 equally to anyconipulsory disclosure of his 
 guilt by the offender himself, whether 
 sought directly as the object of the in- 
 quiry, or indirectly and incidentally for 
 the purpose of establishing facts involved 
 in an issue between other iiarties. If the 
 disclosure thus made would be capable of 
 
 417 
 
Case No. 143] PRODUCTION AND EFFECT OP EVIDEXCE. 
 
 being used against iiiniself as a confes- 
 sion of Clime, or an admission of facts 
 tending to prove tlie commission of an 
 offense by himself, in any prosecution tlien 
 pending, or that might be brought against 
 him therefor, such disclosure M'onld be an 
 accusation of himself, within the' meaning 
 of the constitutional provision. In the 
 absence of regulation by statute, the pro- 
 tection against such self-accusation is se- 
 cured by according to the guilty person, 
 when called upon to answer as witness or 
 otherwise, the privilege of then avowing 
 the liability and claiming the exemption, 
 instead of compelling him to answer, and 
 then excluding his admissions so obtained, 
 when afterwards offered in evidence 
 against him. This branch of the consti- 
 tutional exemption corresponds with the 
 comraon-law maxim, nemo tenetur seip- 
 sum aocusa re, the interpretation and ap- 
 plication of which has always been in ac- 
 cordance with what has been Just stated. 
 Broom, I>eg. Max. (5th Ed.) 968; Wing. 
 Max. 486; Rose. Crim. Ev. (2d Amer. Ed.j 
 l.o9; Starkie, Ev. (Sth Amer. Ed.) 41, 204, 
 and notes; 1 Greenl. Ev. § 451, and notes." 
 The opinion then cites the case of People 
 V. Kelly, supra, as holding that the clause 
 in the constitution of New York of 1H46 
 protected a witness from being compelled 
 to answer to matters which might tend 
 to criminate himself, when called to testi- 
 fy against another party i and also People 
 V. Mather, 4 Wend. 229, as declaring that 
 the exemption in the constitution of New 
 York extended to the disclosure of any 
 fact which might constitute an essenti&l 
 link in a chain of evidence by which guilt 
 might be established, although that fact 
 alone would not indicate any crime. The 
 opinion then proceeds: "The third branch 
 of the provision in the constitution of 
 Massachusetts, 'orfurnish evidence against 
 himself,' must be equally extensive in its 
 application; and, in its interpretation, 
 may be presumed to be intended to add 
 something tothesignificanceof thatwhich 
 precedes. Aside from this consideration, 
 and upon the language of the proposi- 
 tion standing by iirself, it is a reasonable 
 construction to hold that it protects a 
 person from being compelled to disclose 
 thecircumstancesof his offense, the sources 
 from which, or the means by which, evi- 
 dence of its commission, or of his cot)nec- 
 tioii with it, may be obtained, or made 
 effectual for his conviction, without using 
 his answers as direct admission.s against 
 him. For all practical purposes^ such dis- 
 closures would have the effect to furnish 
 evidence against the party making them. 
 They might furnish the only means of dis- 
 covering the names of those who could 
 give evidence concerning the transaction, 
 the instrument by which a crime was per- 
 petrated, or even the corpws delicti itself. 
 Both the reason upon which the rule is 
 founded, and the terms in which it is ex- 
 pressed, forbid that itshf)uld be limited to 
 confessions of guilt, or statements which 
 may be proved in subsequent prosecu- 
 tions, as iidmissions of facts sought to be 
 established therein." The court then pro- 
 ceeds to hold that those constitutional 
 provisions applied to investigations be- 
 fore a legislative body. 
 418 
 
 Passing, then, to consider the effect of 
 the statute of 1871, the opinion says: "It 
 follows from the considerations already 
 named that so far as this statute requires 
 a witness, who maybe called, to answer 
 questions and produce papers which may 
 tend to criminate himself, and attempts- 
 to take from him the constitutional priv- 
 ilege in respect thereto, it must be entire- 
 ly ineffectual for that purpose, unless it 
 also relieves him from all liabilities, tor 
 protection against which the privilege is 
 secured to him by the constitution. The 
 statute does undertake to secure him 
 against certain of those liabilities, to-wit, 
 the use of any disclosures he may make, as 
 admissions or direct evidence against 
 him, in any civil or criminal proceeding," 
 The opinion then refers to the case of Peo- 
 ple V. Kelly, supra, and says that that de- 
 cision was made upon the ground that 
 thp tprma (^f tt)p nrnvi sion of the const i- 
 tution of New York protected the vVlllKJ^s 
 giny irom ijeinp^ compelled '^ to IH' it tnu— 
 nflBH against himself, and did n<5L [JluieLL 
 him from the indirect and incidental con- 
 sequences of a disclosure which he might 
 be called upon to make. 
 
 The opinion then says: "The terras of 
 the provision in the constitution of Massa- 
 chusetts require a much broader interpre- 
 tation, as has already been indicated; and 
 no oue can be required to forego an ap- 
 peal to its protection, unless first secured 
 from future liability, and exposure to btf 
 prejudiced, in any criminal proceeding 
 against him, as fully and extensively as he 
 would be secured by availing himself of 
 the privilege accorded by theconstitution. 
 Under the interpretation already given^ 
 this cannot be accomplished so long as he- 
 remains liable to prosecution criminally 
 for any matters or causes in respect of 
 which he shall be examined, or to which, 
 his testimony shall relate. It Is not done, 
 in direct terms, by the statute in ques- 
 tion; it is not contended that the statute 
 is capable of an interpretation which will 
 give it that effect; and it is clear that it 
 cannot and was not intended to so op- 
 erate. Failing, then, to furnish to the^ 
 ppi'sons to be examined an exemption 
 equivalent to that contained in the consti- 
 tution, or to remove the whole liability 
 against which its provisions were intend- 
 ed to protect them, it fails to deprive 
 them of the right to appeal to the priv- 
 ilege therein. The result is that, in ap- 
 pealing to his privilege, as an exemption 
 from the obligation to answer the inqui 
 ries put to him, the petitioner was in th 
 exercise of his constitutional right; and 
 his refusal to answer upon that ground 
 was not, and could not be considered as 
 disorderly conduct, or a contempt of the 
 authority of the body before which he 
 was called to answer. There being no, 
 legal ground to authorize the commit- 
 ment upon which he is held, he must be- 
 discharged therefrom-." (> t-Crr^ 
 
 In Ciillen V. t"om.T24 Grat. 624. in 1873, 
 CuUen, when asked before a grand jury to 
 state what he knew of a certain duel, de- 
 clined to answer, because the answer 
 would tend to criminate him. The hus- 
 tings court ordered him to answer, and, 
 on his still refusing to do so, fined him 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No. 143 
 
 and committed him to jail. The case was 
 brought before the court of appeals of 
 Vivgiuia. The hill of rights of the consti- 
 tution of Virginia of 1K70, in section 10 of 
 article 1, provided that no man can "be 
 compelled to give evidence against him- 
 self." That provision had existed in the 
 bill of rights of Virginia as far bafk as 
 June 12, 177fi, and of it the court of ap- 
 peals said that it was the purpose of its 
 framers " to declare, as part of the organ- 
 ic law, that no man should anywhere, be- 
 fore any tribunal, in any proceeding, be 
 compelled to give evi lence tending to 
 criminate himself, either in that or any 
 other proceeding;" and that the provision 
 could not be confined "only to cases in 
 which a man is called on to give evidence 
 himself in a prosecution pending against 
 him." 
 
 The opinion then cited People v. Kelly 
 and Emery's Case, hereinbefore referred 
 to, as snstaining its view, and proceeded 
 to consider the effect of an act of Virginia, 
 passed October 31, 1870, in regard to duel- 
 ing, which provided as follows: "Every 
 person who may have been the bearer of 
 such challenge or acceptance, or otherwise 
 engaged or concerned in any duel, may be 
 required, in any prosecution against any 
 jperson but himself, for having fought or 
 lided or abetted in such duel, to testify as 
 witness in such prosecution; but any 
 statement made by such person, as such 
 7itnees, shall not be used against him in 
 my prosecution against himself." The 
 ourt beld that the effect of tbe statute 
 /as to invade the constitutional right of 
 the citizen, and to deprive the witness of 
 ^ I constitutional right to refuse to give 
 bvidence tending to criminate himself, 
 ithout indemnity, and that the act was 
 Itherefo pe. to that exten t, nnconatitntion- 
 and void. It held further that, before" 
 ' tbe constitutional privilege could betaken 
 away by the legislature, there must be 
 absolute indemnity provided; that noth- 
 ing short of complete amnesty to the wit- 
 ness, an absolute wiping out of theoffetise 
 as to him, so that he could no longer be 
 prosecuted for it, would furnish that in- 
 demnity; that the statute in question did 
 not furnish it, but only provided that the 
 statement made by the witness should 
 not be used against him in a prosecution 
 against himself; that, without using one 
 word of that statement, the attorney for 
 the commonwealth might in many ca,ses, 
 and in a case like that in hand inevitably 
 would, be led by the testimony of the wit- 
 ness to means and sources of information 
 which might result in criminatingthe wit- 
 ness himself; and that this would be to 
 deprive the witness of his privilege, with- 
 out indemnity. The judgment of the hus- 
 tings court was reversed. 
 /"In State v. Now ell, 58 N. H. 314, in 1878, 
 (article 15 of the bill of rights in the con- 
 stitution of New Hampshire of 1792 de- 
 clared that no subject shall "be compelled 
 to accuse or furnish evidence against him- 
 self. " No well refused to testify before a 
 grand jury as to whether, as a clerk for ■ 
 one Goodwin, he had sold spirituous liq- 
 uors, and whether Goodwin sold them or 
 kept them for sale. He declined to an- 
 swer on the ground that his evidence might 
 
 tend to criminate himself. A statute of 
 the state (Gen. St. c. 99, § 20) provided as 
 follows: "No clerk, servant, or agent of 
 any person accused of a violation of this 
 chapter shall be excused from testifying 
 against his princinal, for the reason that 
 he may thereby criminate himself; but no 
 testimony so given by him shall, in any 
 prosecution, be used as evidence, either 
 [directly or indirectly, against him, nor 
 shall b e he thereafter nrosecuted for any 
 'oHenSS so dillTosenV'liim.'' A'niUliUll 
 having been made, before the supreme 
 court of New Hampshire, for an attach- 
 ment against him for contempt for refus- 
 ing to testify, that court, after quoting 
 the provision in the bill of rights, said: 
 "The common-law maxim (thus affirmed 
 by the bill of rights) that no one shall be 
 compelled to testify to his own criminal- 
 ity has been understood to mean, not 
 only that the subject shall not be com- 
 pelled to disclose his guilt upon a trial of 
 a criminal proceeding against himself, but 
 also that he shall not be required to dis- 
 close, on the trial of issues between others, 
 facts that can be used against him as ad- 
 missions tending to prove his guilt of any 
 crime or offense of which he may then or 
 afterwards be charged, or the sources 
 from which, or the means by which, evi- 
 dence of its commission or of his connection 
 with it may be obtained. Emery's Case, . 
 107 Mass. 172, 181. " '^Ayf 
 
 In regard to the statute, the court saia^^r- 
 that the legislature, having undertaken 
 to obtain the testimony of the witness 
 without depriving him of his constitu- 
 tional privilege of protection, must re- 
 lieve him from all liabilities on account of I 
 the matters which he is compelled to dis- 
 close; that he was to be secured against 
 all liability to future prosecution as effect- 
 ually as if he were wholly innocent; that 
 this would not be accomplished if he were 
 left liable to prosecution ci'iminally for 
 any matter in respect to which he might 
 he required totesfffy; that the statute 
 of New Hampshire went further than the 
 statute of Massachusetts considered in | 
 Emery's Case, because it provided that the/ 
 witness should not be thereafter prose-/ 
 cuted for any offense so disclosed by him ;| 
 that the witness had, under the statute,! 
 all the protection which the common-lawj 
 right, adopted by the bill of rights in its 
 common-law sense, gave him; that, if he 
 should be prosecuted, a plea that he had 
 disclosed the same offense on a lawful 
 accusation against his principal would 
 be a perfect answer in bar or abatement 
 of the prosecution against himf<elf; and 
 that, nnless he should testify, the motion 
 for the attachment must be granted. 
 
 In lN80, in La Fontaine v. Southern Un- 
 derwriters, 83 N. C. 132, the constitution 
 of North Carolina of 1876 had provided, 
 in the declaration of rights, (article 1, § 
 11,) that, "in all criminal prosecutions 
 every man has the right * * * to 
 • * * not be compelled to give evidence 
 against himself." One Blacknall, as a 
 witness in a hearing before a referee in a 
 civil suit, had refused to answer a ques- 
 tion as to his possession of certain books, 
 on the ground that indictments were 
 pending against him, connected with the 
 
 419 
 
Case No. 148] PRODUCTIOX AND EFFECT OF EVIDENTCE. 
 
 manairerafint of the affairs of the associa- 
 tion owning tlie books, and tliat his an- 
 Bwer to the question miffht tend to crim- 
 inate him. The case was heard before an 
 inferior state court, which ruled that he 
 must answer the question. On appeal to 
 the supreme court of North Carolina, it 
 held that the fair interpretation of the 
 constitutional provision was to secure a 
 person who was or might be accused of 
 crime from making any oompulsory rev- 
 elations which might be used in evidence 
 against him on his trial for the offense; 
 that, as the witness was protected from 
 the consequences of the discovery, and the 
 facts elicited could be given in evidence in 
 no criminal prosecution to which they 
 were pertinent, the plaintiff in the case 
 was entitled to all the information which 
 the witness possessed, whether It did or 
 did not implicate the witness in a fraudu- 
 lent transaction; that the inquiry could 
 not be evaded upon any ground of the 
 self-criminating answer which might fol- 
 low, although the answers of the witness 
 2ould not be used against him in any 
 criminal proceeding whatever; and tiiat 
 his constitutional right not to " tie com- 
 pelled to give evidence against himself" 
 would be maintained intact and full. 
 
 In Temple v. Com., 75 Va. S92, in 1881, 
 the same section 10 of article 1 of the bill 
 of rights of The constitution of Virginia of 
 1870, that was considered in Cullen v. 
 Com., supra, was in force. An indictment 
 had been found by a grand jury, on the 
 evidence of Temple, against one Berry for 
 setting up a lottery. On the trial of Berry 
 befo're the petit jury, Temple refused to 
 testify, on the ground that by so doing he 
 would criminate himself; and for such re- 
 fusal he was fined and imprisoned for eon- 
 tempt by the hustings court. The case 
 was taken to the court of appeals by writ 
 of error. That court cited with approval 
 Cullen's Case, supra, and held that it was 
 a.pplicable. It appeared that in the hus- 
 tings court the attorney for the common- 
 wealth was asked whether any proseca- 
 tion was pending against Temple in that 
 court, or whether it was the intention of 
 such attorney to institute a proL.Lding 
 against Temple for being concerned in a 
 lottery, to botli of which questions he re- 
 plied in the negative. 
 
 The court of appeals held that Temple 
 had a right to stand upon his constitu- 
 tional privilege, and not to trust to the 
 chances of a further prosecution ; that the 
 court could offer him no indemnity that 
 he w^ould not be further prosecuted, nor 
 could the attorney forthecommon wealth; 
 that Temple had a right to remain silent 
 whenever any question was asked him, 
 the answer to which might tend to crim- 
 inate himself; that the great weight of 
 authority in the United States was in 
 favor of the rule that, when a witness on 
 oath declared his belief that his answer 
 wonld tend to criminate himself, the 
 cuurtcould not compel him toanswer, un- 
 less it was perfectly clear, from a careful 
 consideration of all the circumstances in 
 the case, that the witness was mistaken, 
 and that the answer could not possibly 
 have such a tendency; and that the hus- 
 tings court had no right to compel Tem- 
 
 420 
 
 pie to answer the question propounded 
 to him, and to fine and imprison him for 
 his refusal to answer it. The court fur- 
 ther held that the statute of the state 
 which provided that no witness giving 
 evidence in a prosecution for unlawful 
 gaming should ever be proceeded against 
 for any offense of unlawful gaming com- 
 mitted by him at the time and place 
 indicated in such prosecution did not 
 apply to the case then in hand, because set- 
 ting up a lottery was not within the stat- 
 ute against unlawful gaming. The judg- 
 ment of the hustings court was reversed. 
 
 In Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 
 Rep. 524, in 1886, this court, in considering 
 the fifth amendment to the constitution of 
 the United Sta tes, which declares that no 
 person "shall be compelled in anycriminal 
 case to be a witness against himself," and 
 the fourth amendment, which declares 
 that the right of the people to be secure in 
 their persons, houses, papers, and effects, 
 against unreasonable searches and seiz- 
 ures, shall not be violated, said, speaking 
 by Mr. Justice Bradley, (page 6.31, 116 U.S., 
 and page 583, 6 Sup. Ct. Rep. :) ".'Vnd any 
 compulsory discovery by extorting the 
 party's oath, or compelling the produc- 
 tion of his private books and papers, to 
 convict him of crime, or to forfeit his prop- 
 erty, is contrary to the principles of a free 
 government. It is abhorrent to the in- 
 stincts of an Englishman; it is abhorrent 
 to the instincts of an American. It may 
 suit the purposes of despotic power; but 
 it cannot abide the pure atmosphere of 
 political liberty and personal freedom." It 
 was further said, (page 633, 116 C S., and 
 page 534, 6 Sup. Ct. Rep.:) "We have 
 already noticed the intimate relation be- 
 tween the two amendments. They throw 
 great light on each other. For the 'un- 
 reasonable searches and seizures' con- 
 demned in the fourth amendment are al- 
 most always madeforthe purpose of com- 
 pelling a man to give evidence against 
 himself, which in criminal cases is con- 
 demned in the fifth amendment; and com- 
 pelling a man 'in a criminal case to be a 
 witness against himself,' which is con- 
 demned in the fifth amendment, tlirows 
 light on the question as to what is an 
 'unreasonable search and seizure' within 
 the meaning of the fourth amendment. 
 And we have been unable to perceive that 
 the seizure of a man's private books and 
 papers to be used in evidence against him 
 is substantially different from compelling 
 him to be a witness against himself. We 
 think it is within the clear intent and 
 meaning of those terms. * • * As, 
 therefore, suits for penalties and forfeit- 
 ures incurred by the commission of of- 
 fenses Against the law are of this quasi 
 criminal nature, we think that they are 
 within the reason of criminal proceedings 
 for all the purposes of the fourth amend- 
 ment of the constitution, and of that por- 
 tion of the fifth amendment which declares 
 that no person shall be compelled in any| 
 criminal case to be a witness against him- 
 self; and we are further of opinion that a,, 
 compulsory production of the private. 
 books and papers of the owner of goods^ 
 sought to be forfeited in such a suit isi 
 compelling him to be a witness against; 
 
PRIVILEGED COMMUNICATIONS. 
 
 [Case No, 1-lS 
 
 liimself, within the meaning of the fifth 
 amendment to the constitution, and iH 
 the equivalent of a search and seizure — and 
 an unreasonable search and seizure— with- 
 in the meaning of the fourth amendment. 
 Though the proceeding in question is di- 
 vested of many of the aggravating inci- 
 dents of actual search and seizure, yet, 
 as before said, it contain.s their substance 
 and essence, and effects their substantial 
 purpose. It may be that it is the obnox- 
 ious thing in its mildest and leaHt repul- 
 sive form ; butillegitimateand unconstitu- 
 tional practices get their first footing in 
 that way, namely, by silent approaches 
 and slight deviations from legal modes of 
 procedure. This can only be obviated by, 
 adhering to the rule that constitutional 
 provisions for the security of person and 
 property should be liberally construed. 
 A close and literal construction deprives 
 them of half their efficacy, and leads to 
 gradual depreciation of the right, as if it 
 consisted more in sound than in sub- 
 stance. It is the duty of courts to be 
 watchful for the constitutional rights of 
 the citizen, and against any stealthy en- 
 croachments thereon. Their motto should 
 be obsta principiis. " 
 
 In that case, the fifth section of the act 
 of June 22, 18Z4, (18 St. 187, i which author- 
 ized the court in revenue cases to require 
 the defendant or claimant to produce his 
 private papers In court, or else the allega- 
 tions of the government's attorney would 
 be taken as confessed, was held to be un- 
 constitutional and void, as applied to a 
 suit for a penalty or to establish a forfeit- 
 ure of the goods of the party, because it 
 was repugnant to the fourth and fifth 
 [amendments to the constitution; audit 
 ' was held that a proceeding to forfeit the 
 goods was a criminal case, witliin the 
 meaning of the fifth amendment. Mr. 
 Justice Miller, in the concurring opinion 
 of himself and Chief Justice Waite in the 
 case, agreed that it was a criminal one, 
 within the meaning of the fifth amend- 
 ment, and that the effect of the act of con- 
 gress was to compel the party on whom 
 the order of the court was served to be a 
 witness against himself. 
 
 In People v. Sharp, 107 N. Y. 427, 14 N. E. 
 Bep. 319, in 1887, the court of appeals of 
 New York had under consideration the 
 provision of article 1, § 6, of the constitu- 
 tion of New York of 1846, that no person 
 shall "be compelled, in any criminal case, 
 to be a witness against himself," and the 
 provision of section 79 of the Penal Code of 
 New York, tit. 8, c. 1, in regard to bribery 
 and corruption, which was in these 
 words: "A person offending against any 
 provision of any foregoing section of this 
 Code relating to bribery is a competent 
 witness against another person so offend- 
 ing, and may be compelled to attend and 
 testify upon any trial, hearing, proceed- 
 ing, or investigation, in the same manner 
 as any other person. But the testimony 
 so given shall not be used in any prosecu- 
 tion or proceeding, civil or criminal, 
 against the person so testifying. A per- 
 son so testifying to the giving of a bribe 
 'which has been accepted shall not there- 
 after be liable to indictment, prosecution, 
 or punishment for that bribery, and may 
 plead or prove the giving of testimony 
 
 accordingly, in bar of such an indictment 
 or prosecution." Sharp and others were 
 indicted for bribing a member of the com- 
 mon council, and Sharp was tried sepa- 
 rately. It was proved that he had been 
 examined as a witness before a committee 
 of the state senate, and there gave testi- 
 mony which the prosecution claimed was 
 evidence of his complicity in the crime; 
 and that testimony was offered in evi- 
 dence by the prosecution. The testimony 
 had been given under the compulsion of a 
 subpcena, and was admitted at the trial, 
 against the objection that the disclosures 
 before the senate committee were privi- 
 leged. The court of appeals held that sec- 
 tion 79 of the Penal Code made the consti- 
 tutional privilege inapplicable, because it 
 indemnified or protected the party against 
 the consequences of his previous testi- 
 mony. The court cited with approval the 
 case of People v. Kelly, supra. 
 
 In Bedgood v. State, 115 Ind. 275, 17 N. 
 E. Rep. 621, in 1888, the supreme court of 
 Indiana had under consideration the pro- 
 vision of article 1, § 14, of the bill of rights 
 of the constitution of Indiana of 1851, 
 which provides that "no person in any 
 criminal prosecution shall be compelled to 
 testify against himself," and the provision 
 of section 1800 of the Revised Statutes of 
 Indiana of 1881, to the effect thit testi- 
 mony given by a witness should not be 
 used in any prosecution against him. On 
 a trial before a petit jurj' in a criminal 
 case against others, a woman had re- 
 fused to answer a question, on the ground 
 that the answer might criminate her. 
 The supreme court held that, as the stat- 
 ute prohibited her testimony from being 
 u.sed against her, it completely protected 
 her, and the judgment was reversed be- 
 cause the trial court had erroneously re- 
 fused to require her to answer the ques- 
 tion. ' 
 
 This review of the cases above referred 
 to shows that in the constitutions o f Geor- 
 gia, Califo rnia, and New Yo rk the nrgvis- 
 lon ifildentifeally or substantiall.v that o f 
 tlieconstitutl£njor|^_thejjo 
 ""ii ai'tti 61y .THBTmTperson shall "Jj;gjjiuujelle,d 
 in any Wminal <'^^%^^..M~M«Jli^^^ 
 again st himselt;" Mrnnenn the constitu- 
 flOTBTJTT'Smre^ania, Arkansas, Indiana, 
 Massachusetts, Virginia, New Hamp- 
 shire, and North Carolina it is different in 
 language, and to the effect that "no man 
 can be compelled to give evidence against 
 himself;" or that, in prosecutions, the ac- 
 cused "shall not be compelled to give evi- 
 dence against himself ;" or that "no per- 
 son in any criminal prosecution shall be 
 compelled to testify against himself;" or 
 that no person shall be "compelled to ac- 
 cuse or furnish evidence against himself ; " 
 or that no man can "be compelled to give 
 evidence against liimself ;" or that, in all 
 criminal prosecutions, "every man has the 
 right to not be compelled to give evidence 
 against himself." 
 
 Under the constitutions of Arkansag, 
 Georgia, California. Indiana. I^^ 'y Yr...L-^ 
 Npw Hampahirp. anrl Nl(ir|h C:^fnl1n.i It 
 waSheia lliaL a U'I'ven statutory provision 
 made i t lawful to compel " ^vilnFRH.iti'? ^°°- 
 tifx-; while m iviassaciiu'setts a nd Vir^yiriia 
 It was held that thS iStat'Utory provisions 
 were inadequate, in view of the constitu- 
 
 421 
 
Case No. 143] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 tional provision. In New Hampshire, and 
 in New Yorlj under the Penal Code, it was 
 held that the statutory provisions were 
 sufficient to supply the place of the consti- 
 tutional provision, because, by statute, 
 the witness was entirely relieved from 
 prosecution. 
 
 But, as the manifest purpose of the con- 
 stitutional provisions, both of the states 
 and of the United States, is to prohibit 
 the compelling of testimony of a self-crim- 
 inating kind from a party or a witness, 
 the liberal construction which must be 
 placed upon constitutional provisions for 
 the protection of personal rights would 
 seem to require that the constitutional 
 guaranties, however differently worded, 
 should have as far as possible the same 
 interpretation ; and that where the consti- 
 tution, as in the cases of Massachusetts 
 and New Hampshire, declares that the 
 subject shall not be "compelled to accuse 
 or ifurnish evidence against Himself, "such 
 a provision should not have a different in- 
 terpretation from that vthich belongs to 
 constitutions like those of the United 
 States and of New York, which declare 
 that no person shall be "compelled in any 
 criminal case to be a witness against him- 
 self." Under the rulings above referred 
 to by Chief .Justice Maushall and by this 
 court, and those in Massachusetts, New 
 Hampshire, and Virginia, the judgment of 
 the circuit court in the present case cannot 
 be sustained. It is a reasonable construc- 
 tion, we think, of the constitutional pro- 
 Xi gion, th a t the witness is protected "fr om 
 beTng~c()mDelled to disclose the circuu]'- 
 Atan ce s of hia offe nsg. the sources from" 
 wliich^ or the means B3' wTvTclirev'idenOe" 
 of Us comm issi on. or o f hi s coiin ecti^p n 
 with it, may be obtained, "( iFmadee^ctual 
 tor nis co nvictio n^. wjjt.h q u t" usISgTTFan - 
 Bwers asTlTrect admissions againstliTinr' 
 E5Ii?y's'Case, lOT'SSss: T^TTf 2. "■' """ 
 
 It is quite clear that legislation cannot 
 abridge a constitutional privilege, and 
 that it cannot replace or supply one, at 
 least unless it is so broad as to have the 
 same extent in scope and effect. It is to 
 be noted of section S60 of theKevised Stat- 
 utes that it does not undertake to compel 
 self-criminating evidence from a party or 
 a witness. In several of the state statutes 
 above referred to the testimony of the par- 
 ty or witness is made compulsory, and in 
 some either all possibility of a future pros- 
 ecution of the party or witness is distinct- 
 ly taken away, or he can plead in bar or 
 abatement the fact that he was compelled 
 to testify. 
 
 422 
 
 We are clearly of opinion that no stat- 
 ute ^h'ch Ipgyps tha partY o** witnpau 
 subject to prosecution after he ansxypra 
 the criminating guestTTTFrnnt tn hirf, ppr. 
 have the errect of supplanting the privi- 
 lege conferred by the constitution of the 
 United States. Section 860 of the Revised 
 
 \statutes does not supply a complete pro- 
 Itection from all the perils against which 
 ithe constitutional prohibition was de- 
 signed to guard, and is not a full substi- 
 tute for that prohibition. In view of the 
 bonsfitutional provision, a statutory en- 
 actment, to be valid, must afford absolu te 
 i mniuiiitv against future iir<lKf^( i |U|i(v rl ttip 
 tne oU'ense to whjcli the question i'SlW;es. 
 In this respect, we give our. assent rather 
 to the doctrine of Emery's Case, in Massa- 
 chusetts, than to that of People v. Kelly, 
 in New York; and we consider that tiie 
 ruling of this court in Boyd v. U. S., su- 
 pra, supports the view we take. Section 
 860, moreover, affords no protection 
 against that use of compelled testimony 
 which con.sists in gaining therefrom a 
 knowledge of the details of a crime, and 
 of sources of information which may sup- 
 ply other means of convicting the witness 
 or party. 
 
 It is contended on the part of the appel- 
 lee that the reason why iho courts in Vir- 
 ginia, Massachusetts, and New Hamp- 
 shire have held that the exonerating 
 statute must be so broad astogivethe wit- 
 ness complete amnesty is that the consti- 
 tutions of those states give to the witness 
 a broader privilege and exemption than 
 is granted by the constituti(m of the Unit- 
 ed States, in that their language is that 
 the witness shall not be compelled to ac- 
 cuse himself, or furnish evidence against 
 himself, or give evidence against himself; 
 and it is contended that the terms of the 
 constitution of the United States, and of 
 the constitutions of Georgia, California, 
 and New York, are more restricted. But 
 
 . we are of opinion that, however this dif- 
 ference may have been commented on in 
 some of the decisions, there is really, in 
 spirit aj^ dpriT^flo le. no distinction a rising 
 out "bit such difference of language. 
 
 From a consideration of the language 
 of the constitutional provision and of all 
 the authorities referred to, we are clearly 
 of opinion that the appellant was enti- 
 tled to refuse, as he did, to answer. The 
 judgment of the circuit court must there- 
 fore be reversed, and the case remanded to 
 1 that court, with a direction to discharge 
 the appellant from custody on the writ 
 of habeas corpus. 
 
CORROBORATIVE EVIDENCE. 
 
 [Case No. 144 
 
 STATE V. PETERS. 
 
 (12 S. E. 74, 107 N. C. 876.) 
 
 Supreme Court of North Carolina. Nov. 6, 
 1890. 
 
 Indictment for perjury, tried before Wo- 
 MACK, J., and a jury, at May term, 1890, of 
 <]iuilford superior court. Tlie indictment 
 was as follows: "The jurors for the state 
 tipon tlieir oath present tha>t George Pe- 
 ters, of Guilford county, did unlawfully 
 commit perjury upon the trial of an action 
 in the mayor's court of the city of Greens- 
 boro, before James W. Forbes, mayor, in 
 •Guilford county, wherein the state was 
 plaintiff and Amos Phillips was defendant, 
 l)y falsely asserting on oath that be (mean- 
 ing the said George Peters) had not pur- 
 chased any spirituous liquors from Amos 
 Phillips less than half a pint on Sunday, 
 April 27, 1890, knowing the said statement 
 to be false, or being ignorant whether or 
 not said statement was true, against the 
 form of the statute in such case made and 
 provided, and against the peace and dig- 
 nity of the state." The false swearingwas 
 alleged to have taken place before the 
 mayor of Greensboro, in the trial of Amos 
 Phillips upon the following warrant, 
 which was introduced in evidence: "State 
 and City of Greensboro against Amos 
 Phillips, befoi-e James W. Forbes, mayor. 
 Warrant for retailing. State of North 
 Carolina to the Chief of Police of the City 
 of Greensboro, or other lawful ofHcer of 
 Ouilford County,— Greeting: Whereas, 
 complaint has been made before me this 
 day, on the oath of W. J. Weatherly, that 
 Amos Phillips, on or about the 28th day 
 of April, 1890, with force and arms, at and 
 in the county aforesaid, and within the 
 city limits, did willfully and unlawfully 
 sell spirituous liquors inside the corpora- 
 tion to one George Peters, in quantity less 
 than 0ve gallons, without having license, 
 against the statute in such cases made 
 and provided, against the peace and dig- 
 nity of the state, and in violation of the 
 city ordinance, (section 8, c. 15, p. 110:) 
 These are therefore to command you forth- 
 with to apprehend the said -Amos Phillips, 
 and him have before me at the mayor's 
 office, then and there to answer the said 
 charge, and be dealt with according to law. 
 Given under my hand and seal this 7th day 
 of May, A. D. 1890. Jas. W. Foebks, May- 
 or. [Seal.]" The evidence is substantial- 
 ly stated in the opinion. The jury re- 
 turned a verdict of guilty. Motion in ar- 
 rest of judgment, on the ground that the 
 indictment was not snfflcient in its aver- 
 ments to charge the crime of perjury. Mo- 
 tion denied. Sentence pronounced as in 
 the record from which defendant appealed. 
 
 The Attorney General, for the State. 
 John W. Graham, for defendant. 
 
 CLARK, J., (after stating the facts as 
 above.) 'The defendant's counsel asl<ed a 
 witness, " Was not the warrant on which 
 Amos Phillips was tried issued without a 
 sworn complaint or affidavit being made 
 by any person vsrhatever?" The indict- 
 ment charged the perjury to have been 
 committed in that trial. The question 
 was ruled nut on objection by the state, 
 and defendant excepted. 
 
 In State v. Bryson, 84 N. C. 780, Ashe, 
 J., in construing the act which is now 
 Code, § 1133, says that no written affida- 
 vit or complaint is essential, and that the 
 appellate court "oan only look at the war- 
 rant which is the complaint," and "can- 
 not look behind the warrant for objec- 
 tions lying in the defects or irregularities 
 of the preliminary evidence." If the objec- 
 tion now made could not have availed 
 Phillips on appeal a fortiori, it could not 
 be raised in this collateral way by the de- 
 fendant. In England, where a written in- 
 formation on oath, it seems, is necessary 
 to the validity of a warrant, it was held 
 by a full bench in the court of criminal ap- 
 peals in a recent case— (Reg. v. Hughes, 14 
 Cox, Crim. Cas. 284 (1879)— that on an in-, 
 dictment for perjury, alleged to have been 
 committed by a witness iu a case where 
 the warrant was issued without either 
 written information or any oath what- 
 ever, this irregularity could not avail the 
 witness in such case when on trial for per- 
 jury committed in such action any more 
 tlian whether the court in such case pro- 
 nounced a legal or illegal judgment. 
 Tliose are matters which concerned the i 
 defendant in that case, but not the wit- j 
 ness if the court had jurisdiction of the ^ 
 offense charged in the warrant. In State 
 V. Lavalley,9 Mo. 834, the court says that 
 it is no defense for a person charged with 
 perjury to show that the court committed 
 error in its proceeding, provided it had ju- 
 risdiction of the subject-matter and of the 
 parties, and that any other rule would 
 change the issue, so that, instead of try- 
 ing the defendant for false swearing, the 
 court would review the regularity and 
 correctness of the proceeding in another 
 case. In State v. Alexander, 4 Hawks, 182, 
 the court upon the face of the warrant 
 had no jurisdiction of the action in which 
 the false oath was taken. Thejurisdiction 
 depends notuponthe affidavit preliminary 
 to issuing the warrant, but on the nature 
 of the offense charged in the warrant. 
 The defendant asked the court to instruct 
 the jury "that, as the evidence of Weath- 
 erly and others did not establish the fact 
 that the liquid which Phillips had was 
 spirituous, and that as their evidence, 
 with the other circumstances taken to- 
 gether, only afforded an inference that it 
 was spirituous liquor.it was not sufficient 
 to convict of an indictment for perjury, " 
 and further" that no witness corroborated 
 the evidence of Weatherly as to the sale by 
 Phillips to the defendant, nor was there 
 anj' confirmatory circumstances as to the 
 sale itself from Phillips to defendant, and 
 that it amounted only in either of ahove 
 cases to the oath of Weatherly against 
 the oath of Peters, the defendant, and 
 that such was not sufficient to warrant a 
 conviction for perjury." The court did 
 not give these instructions, and defendant 
 excepted. A witness for the state testified 
 that on the Saturday night before thf 
 Sunday (April 27, 1890) on which the ille 
 gal sale of spirituous liquor by Phillips 
 was charged to have been committed, he 
 saw Phillips get a jug of white liquid 
 drawn from a barrel in a bar-room, and 
 pay for it, and take it and place it near 
 where he afterwards saw him in the alley, 
 on the north side ot the street, on the Sun- 
 
 423 
 
Case Ko. 144] PEODUCTION AND EFFECT OF EVIDENCE. 
 
 day referred to, on which day he saw Phil- 
 lips go to where it had been placed several 
 times, and return with a bottle, from 
 which he poured out the drinks in a small 
 glass, holding much less thfin half a pint, 
 to divers colored men, who drank and 
 handed Phillips money, and he saw Peters 
 in tlie crowd. Another witness, one 
 Weatherly, testified that the liquid looked 
 like corn whisky ; that Phillips poured it 
 ouc of a bottle into a "short" glass hold- 
 ing much less than halt a pint; that he 
 saw the defendant, Peters, drink, and give 
 Phillips a nickel, and that divers other col- 
 ored men came to Phillips at the same 
 place, in the alley on the north side of the 
 street, in the course of some hours. A 
 third witness testified to the crowd of col- 
 ored men coming to Phillips, who was on 
 the north side of the street, into the alley, 
 described by the other witnesses, and that 
 the defendant, Peters, was among them. 
 The witness heard money rattling out in 
 the alley, but did not look to see who had 
 it, and did not see any transaction be- 
 tween Phillips and Peters. There was al- 
 so evidence by the mayorand anotherwit- 
 ness that on the trial of Amos Phillips, the 
 defendant, Peters, was sworn and exam- 
 ined as a witness, and testified that he did 
 not buy any liquor in quantity less than 
 half a pint from Amos Phillips on the day 
 testified to by the state's witnesses, and 
 that he was not on the north side of the 
 street on that Sunday. The false oath 
 charged in the indictment is that the de- 
 fendant testified at the trial of Amos Phil- 
 lips that "he had not purchased any spir- 
 ituous liquor from Amos Phillips less than 
 half a pint on Sunday, April 27, 1890." 
 The materiality of the oath, and that the 
 defendani so swore, are not controverted 
 by any exception taken. We think there 
 was sufficient evidence to go to the jury 
 upon the question whether the liquid dis- 
 pensed on that occasion by Amos Phillips 
 was spirituous liquor. One witness testi- 
 fied that he saw defendant purchase of 
 Amos Phillips some of the liquid in quan- 
 tity less than half a pint on Sunday, April 
 27, 1890, and pay for it. The testimony of 
 other witnesses of sales by Amos Phillips 
 of the liquid at the same time and place to 
 divers others, and of defendant being in 
 the crowd, and on the north side of the 
 * street, together with defendant's denial 
 before the mayor that he was on that 
 day north of the street, together with all 
 the circumstances in evidence, make evi- 
 dence corroborative of the single witness 
 who testified as eye-witness of the sale by 
 Phillips to Peters. State v. Brown, 79 N. 
 C. 642. It is not required that "the corrob- 
 orative circumstances should equal in 
 weight the testimony of one witness, but 
 there must be enough, in addition to the 
 testimony of one witness, to turn the scale 
 as against the weight of the prisoner's 
 oath on the former trial." 2 Bish. Crim. 
 Proc. § 871. The instructions asked were 
 properly refused. 
 
 The defendant moved in arrest of judg- 
 ment, on the ground that "the bill of in- 
 dictment was not sufficient in its aver- 
 ments to charge the crime of perjury." 
 The bill of indictmentis asubstantial copy 
 of the form authorized by chapter S3, AiMs 
 
 124 
 
 1889, except that it adds the formal edn- 
 clusion, "against the form of the statute, 
 in such case made and provided, and 
 against the peace and dignity of the state." 
 These words are not required by the act 
 cited, nor are they necessary or material 
 in an Indictment for any offense in this 
 state, as was held by the court in State v. 
 Kirkman, 104 N. C. 911, 10 S. E. Rep. .SI2. 
 The same rule obtains in England. The 
 House of Lords, in the famous perjury case 
 of Castro v. Queen, (better known as the 
 Tichborne Case, J L. R. 6 App. Cas. 229, 
 held, LordChancellorSiiLBORNE and Lords 
 Blackburn and Watson concurring in the 
 opinion, affirming the court below, that 
 by virtue of St. 14 & 15 Vict, (similar to 
 our Code, § 1183) the words "against the 
 form of the statute and against the peace 
 and dignity of the queen " were not essen- 
 tial in any indictment, and their omission 
 not ground either for a motion to quash 
 or in arrest of judgment. But we take it 
 that their use is mere surplusage The de- 
 fendant contends however that the indict- 
 ment is defective in that no time is laid. 
 The act does not require It, and indeed, as 
 time is not uf the essence of the offense, 
 "the omitting to state the time at which 
 it was committed" is not ground to stay 
 or reverse the judgment. Code, § 1189. 
 
 It is urged here that the warrant in the 
 case against Amos Phillips was entitled, 
 "State and City of Greensboro vs. Amos 
 Phillips," and that it charged that the 
 offense was against the ordinance of the 
 city of Greensboro, when the illegal sale 
 of spirituous liquor is an offense only cog- 
 nizable by state authority. No objection 
 was taken below to the introduction of 
 the warrant, nor was there any prayer for 
 instruction that there was a variance be- 
 tween the allegation and proof. If we 
 could notice such objection, when taken 
 here for the first time, it issufiicient to say 
 that the warrant in proper terms charges 
 a sale of spirituous liquor, without license, 
 and as an offense against the state. The 
 additional averment in the warrant that 
 it was a violation of a town ordinance 
 also was mere surplusage as was the use 
 of the words, "and City of Greensboro," in 
 entitling the warrant. State v. Collins, Sa 
 N. C. 511 ; State v. Brown, 79 N. C. W2. 
 
 Objection was also taken here that on 
 the face of the record the mayor had no 
 jurisdiction of the offense charged against 
 Phillips, and therefore the defendant could 
 not be convicted of false swearing, the ac- 
 tion being coram non juclice. By virtue of 
 Code, § .8818, the mayor is a court, with 
 the jurisdiction of a magistrate, and as 
 such he had authority to investigate the 
 charge of selling liquor without license. 
 It does not appear whether he assumed 
 final jurisdiction or merely bound the par- 
 ty over to court, or acquitted the defend- 
 ant or dismissed the action. Noris it ma- 
 terial, since the subsequent erroneous or 
 illegal judgment of the mayor could not 
 affect the guilt or innocence of this defend- 
 ant. The charge in the warrant deter- 
 mines the jurisdiction, and not what is 
 done in the trial. 
 
 It is further objected that the allegation 
 of the false oath as having been taken at the 
 "trial of an action, " etc., is not sutticieut- 
 
CORROBORATIVE EVIDENCE. 
 
 [Case No. 144 
 
 ly definite. Still it is such allegation as is 
 declared sufficient by the statute, and we 
 cannot see that it can malie any difference 
 whether it was a "preliminary trial" or a 
 trial with final jurisdiction. Eithercomes 
 within Code, § 1092. The many technicali- 
 ties which have hampered the administra- 
 tion of justice in regard to false swearing 
 moved the legislature to enactsection 1185 
 of the Code, and more recently the above- 
 cited act prescribing a simple form of in- 
 dictment for that offense. Chapter 83, 
 Acts 1889. The authority of the legislature 
 to prescribe forms of indictment is sus- 
 tained in State v. Moore, 104 N. C. 743, 10 
 S. E. Rep. 183. The form of indictment 
 here authorized points out to the defend- 
 ant that the offense charged is perjury, 
 the court and the names of the parties to 
 the proceeding in which it is alleged to 
 have been committed, the words alleged 
 to have been sworn, and their falsity. 
 The charge is simplified. But the constit- 
 uent elements of the offense remain as be- 
 fore. They are Included in the allegation, 
 "did commit perjury," and it must still 
 
 be showninproof that thedefendantmade 
 oath or affirmation substantially as 
 charged that the defendant was duly sworn 
 by an officer competent to administer the 
 oath, and in a matter of which he had 
 jurisdiction, and in one of the instances 
 specified in Code, § 1092,— j. e., "in a suit, 
 controversy, matter, or cause depending 
 in any of the courts of the state, or in a 
 deposition or affidavit taken pursuant to 
 law, or in an oath or affirmation duly ad- 
 ministered of or concerning any matter or 
 thing whereof such person is lawfully re- 
 quired to be sworn or affirmed;" that it 
 was in a material matter, and the jury 
 must be further satisfied that such oath or 
 affirmation was willfully and corruptly 
 false. When, however, falsity is proven, 
 it has been held that the burden is on the 
 defendant to show that it arose from sur- 
 prise, inadvertence, or mistake, and not 
 from a corrupt motive. State v. Chambor- 
 iin, 30 Vt. 559; 2 Whart. Crlm. Law, (9tb 
 Ed.) § 1320. 
 
 PER CURIAM. No error. 
 
 42& 
 
Case No. 145] PHODUCTIOJT AND EFFECT OF EVIDENCE. 
 
 A 
 
 DEIMEL et al. v. BROWN et al. 
 
 (27 N. E. 44, 136 111. 586.) 
 
 Supreme Court of Illinois. March 30, 1891. 
 
 Appeal from appellate court, first dis- 
 trict. 
 
 Moses, Newman & Pam, for appellants. 
 Tenney, Hawley & Coffeen, E.C.Crawford, 
 and Cratty Bros.& Ashcraft.for appellees. 
 
 BAKER, J. In September, 1884, Jacob 
 Biersdorf, of 362 Canal street, Chicago, 
 failed in business. Thereafter Brown, De 
 Furck & Co. recovered in the superior 
 court of Cook county two judgments 
 against him for the aggregate amount of 
 $7,291.64, besides costs; and Bean, Hughes 
 & Co. recovered judgment against him in 
 the same court for $410.87, besides costs; 
 and William A. Comstock recovered judg- 
 ment against him in the county court of 
 said county for $499.13, besides costs; and 
 Hammacher, Schlemmer & Co. recovered 
 judgment against him in said superior 
 court tor $1,285.34 and costs. Brown, De 
 Furck &Co. and Bean, Hughes & Co. joined 
 in a creditors' bill, which was exhibited in 
 said superior court, and William A. Com- 
 fitock and Hammacher, Schlemmer & Co. 
 filed intervening petitions. Jacob Biers- 
 dorf, Mrs. Jacob Biersdorf, the Sugg & 
 Biersdorf Furniture Manufacturing Com- 
 pany, and the present appellants, Simon, 
 Joseph, and Rudolph Deimel, composing 
 the tirro oJ Deimel & Bros., were made par- 
 ties to the original and amended bills, and 
 the intervening petitions. Subsequently 
 the complainants in the bills and the in- 
 tervening petitioners dismissed their suits 
 as against Mrs. Jacob Biersdorf and tlie 
 Sugg &Biersdorf Company. Answers and 
 replications were filed, and the cause was 
 heard upon the pleadings and proofs, and 
 the court found the matei'ial allegations 
 of theamended bill and the intervening pe- 
 titions to be true, and entered a decree 
 rfcndering judgments against Simon Dei- 
 mel, Joseph Deimel, and Rudolph Deimel, 
 and in favor of Brown, De Furck & Co., 
 for $8,820.47; in favor of Bean, Hughes & 
 Oo.for $i504.13; in favorof William A. Com- 
 stock for $608.42; and in favor of Ham- 
 macher, Schlemmer & Co. for $1,437.19; 
 and awarding executions for said several 
 and respective amount.'*, and for costs. 
 Appeals wore taken by the Deimels from 
 these several decrees in favor of different 
 judgment creditors of Biersdorf, and by 
 consent of parties the appeals were heard 
 both in the appellate court and in this 
 court as one appeal. There was a judg- 
 ment of affirmance In the appellate court. 
 
 The theory of the amended bill and of the 
 intervening petitions is that in February, 
 1884, Biersdorf, the principal defendant, 
 sold and delivered to the co-defendants, 
 Simon, Joseph, and Rudolph Deimel, com- 
 posing the firm of Deimel & Bros., 209 
 pieces of Tingue plushes, at.$].65 per j'ard, 
 and of the aggregate value of $14,700; and 
 that said .$14,700 remains unpaid and ow- 
 ing from the co-defendants to Biersdorf; 
 and that they, for the purpose of keeping 
 eaid money out of the reach of the credit- 
 ors of Biersdorf, falsely claim and pretend 
 that the purchase price of said Tingue 
 plushes has been paid and discharged, ibut 
 that in fact the claimed payment was 
 
 426 
 
 fictitious and colorable merely, and a part 
 of a scheme to defraud the creditors of 
 Biersdorf, and that since said money still 
 remains unpaid, it ought to be applied in 
 satisfaction of the judgments of the sev- 
 eral appellees against Biersdorf. The 
 principal defendant and the co-defendants 
 were called upon to answer under oath. 
 The answer of Biersdorf states that for 
 nearly three years prior to his failure he 
 was, and since has been, confined to his 
 bed by sickness, and thereby compelled to 
 leave the management of his business in 
 the hands of one Max Berg, "and therefore 
 has little orno knowledge of thecondition 
 or character of said accounts or other 
 matters connected with said business or 
 its assets. " It further states that he has 
 neither possession nor control nor knowl- 
 edge of his books of account. It admits 
 that Rudolph Deimel, Joseph Deimel, and 
 Simon Deimel had numerous business 
 transactions with him in the way of ijur- 
 chasing goods of him, but denies that at 
 the time of the filing of the bill of complaint 
 a large part or any part of the purchase 
 price of said goods remained unpaid, or 
 that the Deimels were then or are owing 
 him on account of said purchases $15,000 
 or any other sum. The substance of the 
 joint and several answers of Simon, Jo- 
 seph, and Rudolph Deimel is as follows: 
 That some time in the month of February, 
 1884, they bouglit a large quantity of pUish 
 from Jacob Biersdorf, amounting in all to 
 about 209 pieces. The plush was received 
 in the month of February, 1884, and was 
 what is known in the commercial world as 
 "Tingue" plush, and was of the value of 
 about $14,700. The plush was paid for In 
 the following manner: On the 29th day of 
 January, 1884, Jacob Biersdorf had pur- 
 chased from the defendants lumber and 
 merchandise to the amount of $12,787, and 
 on February 7, 1884, to the amount of 
 about $5,502.50, and afterwards became in- 
 debted to them upon other transactions 
 in the sum of about $1,000, and that said 
 accounts were adjudged and set off against 
 each other, and the difference paid these 
 defendants in cash or notes, which were 
 afterwards paid by Biersdorf; that said 
 settlement was made in September, 1884, 
 and that at that time Biersdorf was in- 
 debted to the defendants in the sum of 
 $19,000. They further answered that they 
 were not, nor are either of them, in any 
 wise or to any extent indebted to Jacob 
 Biersdorf, nor were thej' so indebted at 
 the time of the filing of the original bill in 
 said cause, and that they did not then 
 have or have they nowin their po.ssession, 
 custody, or control any property of any 
 kind or nature belonging to Jacob Biers- 
 dorf, or in which he has or had any inter- 
 est, claim, or demand whatsoever, and 
 that they hold no such property in trust 
 for him, either directly or Indirectly. The 
 matter to charge appellants — the purchase 
 by them in February, 1884, from Bieisdorf 
 of a lot of Tingue plushes for $14,700— is 
 claimed in the bill and petitions and ad- 
 mitted in the answer. The rule is that 
 where a fact is alleged in a bill and admit- 
 ted by the answer, such admission is con- 
 clusive of the existence of the fact, and 
 other evidence to establish such fact is un- 
 necessary. Insurance Co. v. Myer, 93 111. 
 271; Morgan v. Corliss, 81 111. 72. The 
 
CORROBORATIVE EVIDEXCE. 
 
 [Case No. 145 
 
 m a tter in discharge of appellants, as stated 
 in their anfiwer, is that on January 29, 1884, 
 Biersflorf bought of them "lumber and 
 merchandise" to the amount of fl2,787, 
 and on February 7, 1884, to the amount of 
 $5,502.50, and afterwards became indebted 
 to them in the further sum of about ¥1,000, 
 and that in September, 1H84, a settlement 
 was made between them, and the accounts 
 set off against each other, and the dilifer- 
 ence paid by Bieredorf to them. It is ad- 
 mitted that these statements are respon- 
 sive to the charges and interrogatories 
 •contained in the bill and petitions, but 
 appellees deny the truth of such state- 
 ments. The material issue in the case, 
 then, is whether or not appellants paid 
 and settled for the .ipi4,700 worth of plushes, 
 as is represented by them in their sworn 
 answer. 
 
 What weight have the sworn answers 
 as evidence for appellants? The general 
 rule is that, where an answer to a bill iu 
 chancery is required to be made under 
 •oath, and an answer is filed which is re- 
 sponsive to the allegations of the bill, then 
 all material averments of thejbill that are 
 denied by such answer must be i)roved 
 by the testimony of two witnesses, or by 
 evidence which is equal to the testimony 
 •of two witnesses. This rule, however, has 
 no application to averments denied upon 
 information and belief, or where the de- 
 fendiiut himself refutes the sworn state- 
 ments in his answer. It is only when a 
 defendant states facts within liis own per- 
 sonal knowledge that his answer has to 
 be overcome by evidence equivalent to the 
 testimony of two witnes-'ieH. Fryrear v. 
 Lawrence, 5 Gilman, 325. In the case cited 
 this court said: "While a defendant's an- 
 swer, which is required to be sworn to, is 
 made evidence in the cause by the com- 
 plainant, it is only entitled to weight when 
 it is entitled to belief; and if he chooses to 
 Bwear to that which the ('ourt seps hecaii- 
 not, or which he admits he does not know, 
 lie is entitled to no morecredit, and is sub- 
 ject to the same censure and condemna- 
 tion as any other reckless witness, who 
 the court sees is trying to impose upon it 
 his belief, when be should only speak of 
 his knowledge. The court is not a mei'e 
 machine to weigh ever.ything that is of- 
 fered without examining its value, an.v 
 more when the defendant's oath is put 
 into the scale than when examining tne 
 testimony of any other witness." The an- 
 swer of the defendant Hiersdorfstatesthat 
 in September, 1884, and for nearl.y three 
 years prior thereto, he was, and for the 
 greaterpartof the time sincethen has been, 
 confined to his bed by sickness, and was 
 compelled to leave the management of his 
 business to one Max Berg, "and therefore 
 has littleor noknowledge of the condition 
 or character of said accounts or other 
 matters connected with said business or 
 its assets." This admission thoroughly 
 impeaches his answer as evidence, and 
 renders his denial contained therein of any 
 indebtedness from Deimel & Brothers to 
 him of no probative force whatever. It is 
 manifest that at the most such denial is 
 •based upon mere information and belief. 
 
 The joint and several answer of the ap- 
 T>ella-nts is sworn to bj- all three of them. 
 The statements in said answer are made 
 in positive and unqualified terms. But 
 
 there is in evidence in the cause the record 
 in a garnishment suit prosecuted in the 
 circuit court of Cook county in the name 
 of Biersdort for the use of Marshall Field 
 & Co. against said Deimel & Bros. ; and 
 it appears therefrom that in said suit it was 
 Bought to reach by garnishment the same 
 fund that is here involved, and that the 
 written interrogatories there tiled covered 
 the same transactions and facts that are 
 embraced in the answer now under con- 
 sideration. It further appears from said 
 record that, while all three of the appel- 
 lants joined in the answers made in said 
 garnishee proceeding, yet that thetruthof 
 such answers was sworn to by Joseph 
 Deimel alone; that said Joseph there 
 made affidavit that he was the only mem- 
 ber of the firm who is personally familiar 
 with all the matters and things referred 
 to in the several interrogatories; and that 
 said Rudolph and Simon Deimel also made 
 affidavit that they are not personally fa- 
 miliar with all the matters referred to in 
 the 3d, 4th, 5th, 6th, and 7th interrogato- 
 ries asked of tliem as garnishees, and are 
 unwilling to swear to the answers filed to 
 the same; and that, as to the matters re- 
 ferred to in said interrogatories, thei' were 
 business transactions in the special charge 
 of their copartner, Joseph Deimel, who is 
 personallv familiar with the same. The 
 purchase of the $14,700 worth of Tingue 
 plushes, and the supposed settlement there- 
 for, all transpired during the year 1884. If 
 in November, 1885, they had no such ppr- 
 sonal knowledge of the transactions re- 
 lating thereto as would authorize them to 
 make oath in respect thereto, it is impos- 
 sible that in March, 1886, said matters 
 were within their own knowledge. We 
 think that the fact that Rudolph and Si- 
 mon Deimel have sworn to the answer 
 gives it no weight as evidence in favor of 
 appellants. 
 
 Joseph Deimel also made oath to the an- 
 swer. This made it competent evidence 
 for the firm, and imposed upon appellees 
 the burdeu of ovei'coming it, so iar as it 
 states matters in discharge of appellants, 
 b.y evidence equivalent to that of two wit- 
 nesses. Did the superior court err in its 
 findings that this has been done? In the 
 answers sworn to b.y him in the Marshall 
 Field & Co. garnishee proceedings, Joseph 
 Deimel gave an account of the purchase by 
 Deimel & Bros, in the month of I'ebruary, 
 1884, of the lot of Tingue plushes here in- 
 volved; and also stated that Biersdorf 
 was indebted to Deimel & Bros., in Febru- 
 ar.y, 1884, and prior to the time of purchas- 
 ing said plushes, in a sum considerably in 
 excess of the amount or price of said 
 plushes, and the same was applied in pa.y- 
 ment of said indebtedness of Biei'sdorf to 
 Deimel & Bros, so far as the purchase price 
 of said plushes would extend inpayment 
 thereof; and to these answers added this: 
 "All the foregoing matters appear upon 
 the books of said R. Deimel & Bros. " The 
 deposition of Joseph Deimel was taken at 
 the instance of appellees. We have read 
 this deposition at length, as it api)ears in 
 the record itself, and it impresses our 
 minds as being evasive and disingenuous. 
 In respect to almost all of the material 
 questions asked him l)y appellees he shields 
 himself behind the plea that he does not 
 remember. When Questioned in regard to 
 
 427 
 
Case No. 145] PKODUCTIOIT AND EFPECT OP EVIDENCE. 
 
 the details of the dealings of his firm with 
 Biersdorf, he answers, time and time 
 again, and almost unitorrnl.y.that he does 
 not remember ; that he can tell nothing' in 
 reference to the particular matter inquired 
 about without his books; that his ledger 
 would show the transactions, that his 
 books would show the transactions; that 
 hjsledger was inNewTork,andmostofthe 
 other books destroyed by fire. An analy- 
 sis of his te.stiinony would require more 
 time and space than the reasonable limits 
 of an opinion would allow; but suffice it 
 to say that it is manifest therefrom that 
 he has but little knowledge or recollection 
 in respect to the dealings with Biersdorf, 
 and that most of that was predicated 
 upon what appeared upon the ledger and 
 other books of his firm. He even states in 
 his examination that he does not remem- 
 ber that he ever read the answer in chan- 
 cer.y which is liere under consideration, 
 but that, if he signed it, he supposes that 
 he read it. Ui)on the whole, his deposi- 
 tion has not favorably impressed us; and, 
 in our opinion, it goes far to impeach the 
 force of his sworn answer. He afterwards, 
 in obedience to a subpoena, produced the 
 ledger before the master in chancery ; and 
 it was then desired by appellee "to exam- 
 ine him with reference to the items con- 
 tained in the ledger, which he here pro- 
 duces, and which in his former examina- 
 tion he claimed his inability to testify 
 about on account of the absence of the 
 books;" but both he and his counsel re- 
 fused to submit to such examination. 
 The account of Biersdorf. as it appears 
 upon the ledger produced by Deimel & 
 Bros., is as follows: 
 
 
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 <^n 
 
 
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 O 3 
 
 
 -P ■ o 
 
 
 
 
 - CO p 
 
 
 p* 
 
 
 D- £ 
 
 
 
 
 h. 1-1 SS 
 
 1—557 
 
 1—571 
 
 oS 
 
 
 
 
 : : : ; «> 1 
 
 
 1 1 
 
 4A 
 
 .... 
 
 I 
 
 «B 
 
 
 
 
 
 _** 
 
 o 
 
 >-' CJIW 
 
 
 
 C CI ^ 
 
 
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 t^ •- = 'X> M 
 
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 4-^ 
 
 CO 
 
 O = li -^ o 
 
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 OO 
 
 m 
 
 O =■ CI -^ => 
 
 « 
 
 
 w 
 
 = C) J o o 
 
 
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 ^ > ^ 
 
 
 p 
 
 
 ^^r^ v. 
 
 
 CO 
 
 
 m' to h- 
 
 
 
 
 [-J p *- 
 
 
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 a -ca tt 
 
 
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 OJ -!<] (^ 
 
 
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 a a- n 
 
 
 
 
 P _ t:: o 
 
 
 
 
 
 
 
 
 F "^ F 
 
 
 p 
 
 
 c; -^ "to 
 
 
 t-i 
 
 
 
 
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 : cM-j 
 
 
 
 
 
 
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 m 
 
 
 
 «9 
 
 
 4G 
 
 ^ 
 
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 428 
 
 The items which appellees claim to be 
 false and fraudulent are the charges 
 "1884. .Tan'y 29. Reg. l-5,^7, fl2,7H7.00," 
 and "18S4. Feb'y 7. l-.'iTl, |.',,.50l'.:,')," a„d 
 the credit, "Sept. 11. By cash, 61, f 18,- 
 289..^3. " It is supposed that the order- 
 book and impression or bill book of the 
 firm would throw light upon the above 
 items of charge; but they were not pro- 
 duced by appellants. It is stated by Jo- 
 seph Deimel in his deposition that most of 
 the books, other than the ledger, were lost 
 Itty Are; but in this he is contradicted by 
 Taylor, who was book-keeper, and by 
 Drown, who was assistant book-keeper, 
 of the firm, and the substance of their ev- 
 idence is that the books were preserved in 
 the vault, and that they did not know of 
 any books having been lost or destroyed 
 by the fires. It appears from the testi- 
 inouy of Taylor, which is corroborated 
 by that of Drown, and by that of Jenkins, 
 an employe of a firm of book-binders and 
 printers, that he (Taylor) in 1885, by direc- 
 tion of Joseph Deimel, removed some 80 
 leaves from the order book ot Deimel & Co., 
 which included a large part of the year 
 1884, and covered the transactions with 
 Biersdorf, and caused to be ruled and 
 paged and bound in the book an equal 
 number of blank pages of like paper, and 
 on which -were written up orders for 
 goods, including fictitious orders of goods 
 for Biersdorf; and at the same time pag?s 
 containing copies of pages of bills to pur- 
 chasers of goods were removed from the 
 bill-book, covering a part of 1884, and 
 blank leaves corresponding to those re- 
 moved were inserted therein, and the 
 book rebound ; and that bills were entered 
 therein to correspond with the orders en- 
 tered in the mutilated order-book ; and that 
 a solution of coffee was used to give the 
 substituted leaves the appearance of age. 
 This evidence is wholly uncontradicted ; 
 and its truth was further made manifest 
 by the production in court by Taylor, un- 
 der an order of court, of the leaves which 
 had been removed from the order-book. 
 Upon page 29 of the loose sheets produced 
 by Taylor appears a supposed Biersdorf 
 order, as follows: 
 
 "J. D. " January 28. 
 
 4749, Jacob Biersdorf, 362 Canal St., City. 
 4758 50 pieces Olive, 1 U. I. Tingue plush, em- 
 bossed Franklin. 
 
 50 " Gold 0, Tingue plusb, embossed 
 Franklin. 
 
 25 " Blue 4, Tingue plusb, embossed 
 Franklin, $1.55 perj-ard. 
 
 25 " Green 2, Tingue plusb, embossed 
 Franklin. 
 
 50 " Red 2, Tingue plusb, embossed 
 Franklin. 
 Terms, net 60 days, to be delivered J an'y 29th, 
 or 5 p. off 10 days. J. 
 
 It appears from the testimony of Taylor 
 that in the order-book as altered, lumber 
 was substituted for pluslies, and that the 
 same change was made in the bill-book. 
 The charge in ledger, January 29, $12,787. 
 is based on the order of January 28th, and 
 corresponding entry in bill-book. He also 
 states that the items which constitute the 
 charge of $5,502.50 were changed in the or- 
 der-book and in the bill-book. These mu- 
 tilations of their books are admitted by ap- 
 pellants; but it is claimed in their behalf 
 
CORKOBOBATIVE EVIDENCE. 
 
 [Case No. 145 
 
 tliat the object in riew was not to defrauc) 
 the crpditors of Biersdorf, but to defraud 
 Marshall Field & Co. in a Kuit for damages 
 brought in New York by Deiniel & Bros, 
 against said Marshall Field & Co. tor 
 breach of a contract to deliver in the 
 month of Februarj', 1884, a large quantity 
 of Tingue plushes. It is suggested that, if 
 the charges against Ciorsdorf for .$12,787 
 and .f 5,502.50 were just charges, it is im- 
 material to said creditors whether they 
 were pi'edieated upon items for plushes 
 sold or items for lumber sold. It is read- 
 ily perceived how it might have been for 
 the interest of appellants, in said damage 
 «uit, to show that in order to supply the 
 demands of their business they had been 
 ■compelled to go into the market and buy 
 from Biersdorf $14,700 worth of Tingue 
 plushes at .fi.es a yard; and so also it 
 might have been for their benefit in said 
 suit, for the purpose of enhancing dam- 
 ages or creating a fictitious price for such 
 goods, to have manipulated their books 
 to show fictitious and unreal sales of 
 plushes by them. But here the falsifica- 
 tion of their books is not explainable up- 
 on either of these theories. The purchase 
 of plushes from Biersdorf was not shown 
 by the books, either before or after the 
 mutilation; and by the alterations 
 charges which before that indicated sales 
 of plushes by them were changed to sales 
 of lumber. It is difficult to see what bear- 
 ing the sale of lumber by appellant.? to 
 Biersdorf would have in the litigation for 
 the non-delivery of silk plushes to appel- 
 lants by Marshall Field & Co. It is more 
 reasonable to suppose that for some rea- 
 son it was deemed unadvisable that the 
 books should show such very large sales 
 of plushes to Biersdorf, or that at or 
 about the time they were buying plushes 
 -for Biersdorf at $1.65 per yard they were 
 also selling him many thousands of dol- 
 lars worth of the same quality of plushes 
 at .fl.55 a j'ard; and that the charges 
 made were in furtherance of a plan to still 
 further cover up the fund of f 14,700, and 
 conceal it from the creditors of Biersdorf, 
 said Biersdorf having failed in business 
 some months before. That which we have 
 above said proceeds upon the theory that 
 the entries upon the ledger of f 12,787 and 
 $5,503.50 were made prior to the changes 
 made in the books ; but that such was the 
 ■case is not at all clear from the evidence. 
 Taylor, in his evidence taken before the 
 master, says: "The entries $13,787 and 
 $5,502.50 in January and P^ebruary, 1884, 
 were not made at those dates, but a con- 
 isiderable time afterwards, and after the 
 mutilation of the books, and not from act- 
 ual transactions occurring in Deimel's 
 "business." Subsequently, on his cross-ex- 
 amination, he states that the entries on 
 the ledger were made according to the 
 dates there shown, but that the items 
 which constituted the charges of $12,787 
 and .^5,502.50 were altered, changed in the 
 order-book and in the bill-book, which 
 were made over and leaves put in. It is 
 ■evident from the testimony of Taylor that 
 he was an unwilliug witness for appellees, 
 and desired to tell as little as possible that 
 was injurious to appellants; that he was 
 <juite considerably under the influence of 
 
 Joseph Deimel; and that the latter inter- 
 viewed him frequently prior to and pend- 
 ing his several examinations as a witness 
 in respect to his testimony, and sought to 
 influence him in regard to the evidence he 
 should give. We are inclined to think that 
 it would be conducive to a just result to 
 take his statements most strongly against 
 appellants. In respect to the credit, Sep- 
 tember 11th, of $18,289.53, Taylor testifies, 
 among other things, that it represents no 
 real transaction of that date; that to pre- 
 serve the balance cash was debited with 
 that amount, and credited with merchan- 
 dise charged to Biersdorf; that it ap- 
 peared as though the amount had been 
 paid in cash, and charged to merchandise, 
 and to Moses L. Miller, a brother-in-law of 
 Deimel's; and that Joseph Deimel instruct- 
 ed him to credit Biersdorf for cash, and 
 charge it up to somesuch account, whereit 
 would not attract attention. On June 2, 
 1885, — about the time that the books were 
 mutilated and changed,— Joseph Deimel 
 telegraphed from New York to Charles L. 
 Miller, who was his brother-in-law, and a 
 Hon-in-law of Biersdorf, as follows: "Don't 
 neglect to see Max as per my letter to 
 Rudo. If any one should ask him any- 
 thing he can say he remembers nothing, 
 and his books are lost, but if they give 
 him time be will try to refresh his mem- 
 ory. Wiite me if any one has been to see 
 him. Do so to-day, as it is important. 
 Look him up wherever he is. Joe." The 
 reasonable presumption is that the "Max" 
 mentioned in the telegram was Max Berg, 
 who was a brother-in-law of Biersdorf, 
 and the book-keeperand business manager 
 of said Biersdorf. It is signilicant, when 
 taken in connection witli this telegram, 
 that Biersdorf states in his sworn an- 
 swer "that he has neither possession 
 nor control nor knowledge of his hooks of 
 account, ■■ and that, notwithstanding the 
 efforts which the record shows were made 
 in that behalf, said books of account were 
 not obtained and brought into court. 
 There is nothing whatever in the record 
 to suggest that the charges of January 29 
 and February 7, 1884, were for any mer- 
 chandise or consideration other than lum- 
 ber or plushes. There is no evidence ex- 
 cept that of the sworn answer tending 
 to show that appellants sold lumber to 
 Biersdorf. Thedeposition of Henry Stahl, 
 who was foreman for Biersdorf, and the 
 other evidence in the case, renders it rea- 
 sonably certain that no lumber was so 
 sold. The testimony of Rudolph Deimel, 
 of C. L. Dietrich, who in l^sl was shipping 
 clerk of Diemel & Bros., and of E. G. Jlar- 
 kus, a tean)Ster in the employment of the 
 firm, tends to show the sale and delive'-y 
 of plushes by appellants to Biersdorf in 
 tlie early part of 1884. The statements of 
 the first are Impeached by the affidavit 
 which he made and filed in the Marshall 
 Field & Co. garnishment proceeding. If 
 we should assume the matters stated by 
 all three of them to be true, yet they are 
 not inconsistent with the theory of appel- 
 lees that shortly before the failure of Biers- 
 dorf, and in contemplation thereof, said 
 Biersdorf, through Max Berg, purchased 
 large quantiLies of plushes from his credit- 
 ors, and resold them to appellants, and 
 
 429 
 
Case No. 145] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 with tlip intention of depriving such cred- 
 itors of the fund realized from such 
 plushes; tliat Deimel & Bros, were active 
 particii)ants in the contemplated fraud; 
 and that the liauling of plushes to and fro 
 between the places of business of Deiinel & 
 Bros, and Biersdort was simply part and 
 parcel of the plan to cover up and conceal 
 the actual facts. Under all the circum- 
 stances of the case, we are unable to say 
 that it was error in the superior court to 
 arrive at the conclusion that the other 
 evidence in the case wfts sufficient to suc- 
 cessfullyimpeach and overcome the sworn 
 answer of Joseph Deimel. 
 
 Some minor points seem to require brief 
 attention. It is objected — citing in that 
 behalf Durand v. Gray, 129 111. 9, 21 N. E. 
 Eep. 610 — that in respect to some of the 
 judgment creditors it does not sufficiently 
 appear from the pleadings and proofs that 
 legal remedies have been exhausted, since 
 the residence of the judgment debtor at 
 the time of the issuance and delivery of 
 execution is not stated. It is both averred 
 and proven that the judgments were re- 
 covered in courts of record in (^ook coun- 
 ty, and that the executions were issued to 
 and returned by the sheriff of that county. 
 In the alisence of averment or evidence to 
 the contrary, the presumption is that the 
 defendant resides in the county where the 
 suit is brought and judgment recovered. 
 It appears from the record that on No- 
 vember 25, 1885, the summons herein was 
 served on Biersdorf in Cook county, and 
 the presumption is that he then resided 
 there. It abundantly appears from the 
 evidence that in the latter part of March, 
 1889, said debtor was a resident of said 
 conuty. The maxim probatis extremis 
 prmsumnntur media has application to the 
 case. The objection was not made in the 
 court below, and it is now too late to 
 question the jurisdiction of the court of 
 
 430 
 
 chancery for want of specltlc averments in 
 the pleadings of sotne of the creditors of 
 the place of residence of the judgment 
 debtor at the dates when executions were 
 sued out. 
 
 It is immaterial that the bill fails to 
 state that the complainants were credit- 
 ors when the Biersdorf transaction took 
 place in February, 1884. This is not a bill 
 to set aside the sale of the plushes ti* 
 Deimel & Bros, as being a voluntary con- 
 veyance of iDroperty without considera- 
 tion, and a fraud against claims of then 
 existing creditors, but the case of appellees 
 admits and recognizes the validity of the 
 sale, and proceeds upon the theory that 
 the indebtedness thereby created was 
 fraudulently covered up and concealed, 
 and that such indebtedness was a fund 
 which really belonged to the judgment 
 debtor. If there are assets of the debtor 
 in the hands of appellants, they can be 
 reached by the creditors, no matter when 
 the debts due to the latter were con- 
 tracted. The court, in its decree, found 
 that the fl4,700 had not been paid, and 
 that said indebtedness, with interest there- 
 on at 6 per cent, per annum, amounted to 
 $17,640, and that said sum of $17,640 con- 
 stituted a fund to which the creditors had 
 a right to resort for the collection of their 
 claims against Biersdorf, and rendered 
 judgments and awarded executions in 
 favor of the several appellees, aggregating 
 $11,370.21. The finding that interest was 
 due on the $14,700 is assigned as error. A 
 fraudulent vendee or trustee is chargeable 
 with 6 per cent, interest on the value of 
 the property or fund. Steere v. Hoagland, 
 50 111. 377. In respect to the remaining ob- 
 jections urged by appellants, we may say 
 that we think them without merit, and 
 that they do not call for special notice. 
 The judgment of the appellate court Is 
 affirmed. 
 
CORROBOHATIVE EVIDENCE. 
 
 [Case No, 146 
 
 ROBINSON et al. v. UNITED STATES. 
 
 (13 Wall. 363.) 
 
 Supreme Court of the United States. Dec, 
 1871. 
 
 Error to the circuit court of the United 
 States for the district of California. 
 
 Action by the United States against Rob- 
 inson & Co., merchants of San Francisco, on 
 a contract with the assistant quartermaster 
 of the United States "to deliver" on his or- 
 der "1,000,000 bushels of first quality clear 
 barley" between the 1st of July, 1867, and 
 the 30th of June, 1868, at such points as 
 might be designated, and at such times and 
 in such quantities as might be required. The 
 contract did not provide as to whether the 
 barley was to be delivered In sacks or in 
 bulk. The first barley delivered was deliver- 
 ed in sacks, but, on being required to de- 
 liver 30,000 pounds more, defendants tender- 
 ed the quantity in wagons which the officer 
 at the post where it was tendered refused to 
 accept, and the contractor abandoned his con- 
 tract. The United States asked a witness 
 shown to have been engaged in the grain 
 business In California as to his knowledge of 
 the usage of the trade in delivering barley. 
 An objection that it was incompetent for 
 plaintiff to vary the terms of a contract by 
 evidence of a usage was overruled, and the 
 witness testified that it was the custom to 
 deliver grain in sacks, and had always been 
 the custom. There was no other evidence of 
 usage, and the court found that It was the 
 usage, and always had been in California, to 
 deliver barley in sacks, unless expressly stip- 
 ulated otherwise, and that the tender in bulk 
 was not sufficient under the contract. Judg- 
 ment for the United States, and defendants 
 bring error. 
 
 E. L. Goold, for plaintiffs In error. G. H. 
 Williams, Atty. Gen., and B. H. Bristow, Sol. 
 Gen., for the United States. 
 
 Mr. Justice DAVIS delivered the opinion of 
 the court. 
 
 In Barnard v. Kellogg, 10 AVall. 383, this 
 court decided that proof of a custom or usage 
 inconsistent with a contract, and which either 
 expressly or by necessary implication contra- 
 dicts it, cannot be received in evidence to af- 
 fect it; and that usage is not allowed to sub- 
 vert the settled rules of law. But we stated 
 t,at the same time that custom or usage was 
 I properly received t2 ascert^in q nd explain 
 I the meaninff and iTvFgntj pn of the parties to 
 a contract, whether written or parol, the 
 meaning of which could not be ascertained 
 without the aid of such extrinsic evidence, 
 and that such evidence was thus used on the 
 
 theory that the parties knew of the existence 
 of the custom or usage and contracted in 
 reference to it. This latter rule is as well 
 settled as the former (1 Smith, Lead. Oas. 
 [7th Ed.] p. 386), and under it the evidence 
 was rightly received. 
 
 It is obvious by the steps which the defend- 
 ants took to perform their contract, that ther& 
 are two modes in which barley may be deliv- 
 ered, for they delivered part in sacks and 
 tendered part in bulk. And it is equally ob- 
 vious, on account of the additional cost, that 
 they would not have delivered the barley in 
 sacks for a period of six months, if the con- 
 tract on its face was satisfied by a delivery 
 in bulk. The contract, by its terms, is silent 
 as to the mode of delivery, and although 
 there are two modes in which this can be 
 done, yet they are essentially different, and 
 one or the other, and not both, must have been 
 in the minds of the parties at the time the 
 agreement was entered into. In the absence 
 of an express direction on the subject, ex- 
 trinsic evidence must of necessity be resorted 
 to in order to find out which mode was adopt- 
 ed by the parties, and what extrinsic evi- 
 dence is better to ascertain this than that of 
 usage? If a person of a particular occupa- 
 tion in a certain place makes an agreement 
 by virtue of which something is to be done 
 in that place, and this is uniformly done in a 
 certain way by persons of the same occupa- 
 tion in the same place, it is but reasonable tO' 
 assume that the parties contracting about it, 
 and specifying no manner of doing it differ- 
 ent from the ordinary one, meant that the 
 ordinary one and no other should be followed.. 
 Parties who contract on a subject-matter cout 
 corning which known usages prevail, by im- 
 plication incorporate them into their agree- 
 ments, if nothing is said to the contrary. 
 
 The evidence in the present case did not 
 tend to contradict the contract, but to de- 
 fine its meaning, in an important point, where, 
 by its written terms, it was left undefined. 
 This, it is settled, may be, done. 
 
 It is objected that the usage was proved by 
 a single witness. But we cannot assert, as 
 a rule of law governing proof of usages of 
 trade, that if a witness have a full knowl- 
 edge and a long experience on the subject 
 about which he speaks, and testifies explicit- 
 ly to the antiquity, duration, and universality 
 of the usage, and is uncontradicted, the usage- 
 cannot be regarded by the jury as established. 
 On the contrary, the authorities are that in 
 such a case it may be. See 1 Smith, Lead. 
 Cas. (7th Ed.) 782; Vail v. Rice, 5 N. Y. 156; 
 Marston v. Bank of Mobile, 10 Ala. 284; Part- 
 ridge V. Forsyth, 29 Ala. 200. 
 
 Judgment affirmed. 
 
 431 
 
Case No. 147] PRODUOTIOX AND EFFECT OF EVIDENCE. 
 
 WHISKY CASES. 
 
 (99 U. S. 594.) 
 
 UNITED STATES v. FORD (two cases). 
 SAME T. ONE STILL. SAME t. FIFTY 
 BARRELS OF DISTILLED SPIRITS. 
 SAME v. THREE HUNDRED AND NINE- 
 TEEN BARRELS OF WHISKY. SAME 
 T. FOUR HUNDRED BARRELS OF DIS- 
 TILLED SPIRITS. SAME T. POUR 
 HUNDRED PACKAGES OF DISTILLED 
 SPIRITS. SAME T. ONE HUNDRED 
 AND FIFTY BARRELS OF "OrHISKY. 
 
 Supreme Court of the United States. Oct., 
 1878. 
 
 Error to the circuit court of the United 
 States for the Northern district of Illinois. 
 
 The first two of these cases were actions 
 of debt to recover the penalties imposed by 
 sections 3296 and 3452 of the Revised Stat- 
 utes. The remaining cases were by way of 
 Information under sections 3281, 3299, 3453, 
 .and 3456. The defence in the first case, and 
 it is substantially the same In all, consists 
 of the general issue and the following spe- 
 cial plea: 
 
 "And for a further plea in this behalf said 
 defendants say actio non, because they say 
 that heretofore, to wit, on the twenty-sev- 
 enth day of December, A. D. 1875, at Chi- 
 cago, at, to wit, said northern district of Il- 
 linois, the said plaintiffs and the said de- 
 fendants entered into an agreement by 
 which it was, among other things, agreed 
 -that if the said defendants would testify on 
 behalf of the plaintiffs frankly and truth- 
 fully, when required, in reference to a con- 
 spiracy among certain government ofliclals 
 In the revenue service and other parties, 
 then known to exist, whereby the honest 
 manufacture of spirits and payment of the 
 tax had been rendered practically impossi- 
 ■fole, and should plead guilty to one count in 
 an indictment then pending against them in 
 the district court, in and for said northern 
 •district, and shoyld withdraw their pleas in 
 & certain condemnation case then pending 
 Against them in said district court, the said 
 plaintiffs would recall any and all assess- 
 ments under the internal-revenue laws then 
 made against said defendants, and that no 
 more assessments under said law should be 
 made against said defendants, and that no 
 proceedings other than said condemnation 
 case should be prosecuted against said de- 
 fendants, and that no new proceedings 
 «hould be commenced against said defend- 
 ants on account of transactions then past; 
 and these defendants aver that they and 
 «ach of them have fully performed said con- 
 tract on their part, and defendants further 
 aver that this suit is a proceeding other than 
 said condemnation case, and that this suit 
 Is for the recovery upon transactions prior 
 to the entering into said agreement; and 
 this the said defendants are ready to verify." 
 
 A demurrer to the special plea was over- 
 
 432 
 
 ruled, and judgment rendered for the de- 
 fendants, and the judgment of the district 
 court afiirmed. 
 
 The Attorney General, for the United 
 States. Mr. Edward Jussen and Mr. Charles 
 H. Reed, contra,. 
 
 Mr. Justice CLIFFORD delivered the opin- 
 ion of the court. 
 
 Accomplices in guilt, not previously con- 
 victed of an infamous crime, when separate- 
 ly tried are competent witnesses for or 
 against each other; and the universal usage 
 is that such a party, if called and examined 
 by the public prosecutor on the trial of his 
 associates in guilt, will not be prosecuted 
 for the same offence, provided it appears 
 that he acted in good faith and that he tes- 
 tified fully and fairly. 
 
 Where the case is not within any statute, 
 the general rule is that if an accomplice, 
 when examined as a witness by the public 
 prosecutor, discloses fully and fairly the 
 guilt of himself and his associates, he will 
 not be prosecuted for the offence disclosed; 
 but it is equally clear that he cannot by law 
 plead such fact In bar of any indictment 
 against him, nor avail himself of it upon his 
 trial, for it Is merely an equitable title to 
 the mercy of the executive, subject to the 
 conditions before stated, and can only come 
 before the court by way of application to 
 put off the trial in order to give the prisoner 
 time to apply to the executive for that nur- 
 pose. Rex v. Rudd, 1 Cowp. 331. 
 
 Suflicient appears to show that the follow- 
 ing are the material proceedings in the sev- 
 eral cases: 1. That the first two were ac- 
 tions of debt commenced in the circuit court 
 to recover the double internal-revenue tax 
 imposed, as fully set forth in the respective 
 declarations. 2. That the other six cases 
 are informations filed in the district court to 
 forfeit the properties therein described for 
 acts done in violation of the internal-rev- 
 enue laws. 
 
 Service was made in the first two cases, 
 and the defendants appeared and pleaded 
 the general issue and the special plea set 
 forth in the transcript. Issue was joined 
 upon the first plea, and the United States de- 
 murred to the special plea. Hearing was 
 had, and the court overruled the demurrer 
 and gave judgment for the defendants. 
 Like defences in the form of answers or 
 pleas were filed in the other six cases com- 
 menced in the district court, to which the 
 United States demurred; but the district 
 court overruled the demurrers, and finally 
 rendered judgment in each case for the de- 
 fendants. Prompt steps were taken by the 
 district attoi-ney to remove the cases into the 
 circuit court, where the respective judg- 
 ments rendered by the district court were 
 atfirmed. 
 
 Suffice it to say in this connection, without 
 entering into detail, that the United States 
 
CORKOBORATIVE EVIDENCE. 
 
 [Case No. 147 
 
 sued out a writ of error in each case and 
 removed the same into this court. Both 
 parties agree that the questions presented 
 for decision are the same in each case, in 
 which the court here fully concurs. 
 
 Two errors are assigned as causes for re- 
 versing the judgment, which present very 
 clearly the matters in controversy as dis- 
 cussed at the bar. 1. That the plea or an- 
 swer set up as defence is bad because it is 
 too general and does not set forth the sup- 
 posed agreement in traversable form. When 
 filed, the first assignment of error also ob- 
 jected to the plea or answer that it did not 
 designate the officer who made the alleged 
 agreement, whicli was plainly a valid objec- 
 tion to it; but that was obviated at the ar- 
 gument, it being conceded by the United 
 States that the plea or answer should be 
 understood as alleging that the supposed 
 agreement was made by the district attor- 
 ney. 2. That the plea or answer is bad be- 
 cause the officer representing the govern- 
 ment in these prosecutions had no authority 
 to make the agreement pleaded, and that the 
 court cannot enforce it, as it i.s void. 
 
 As amended, it requires no argument to 
 show that the plea or answer cannot be un- 
 derstood as alleging that the president was 
 a party to any such agreement, as the dis- 
 tinct allegation is that it was made by the 
 district attorney; nor could any such impli- 
 cation have arisen even if the pleading had 
 not been amended, as it is settled law that 
 suits of the kind to recover municipal for- 
 feitures must be prosecuted in the subordi- 
 nate courts by the district attorney, and In 
 this court, when brought here by appeal or 
 writ of error, by the attorney general. Con- 
 fiscation Cases, 7 Wall. 4.54. Suppose the 
 plea to be amended as stipulated at the ar- 
 gument, the first question is, whether as 
 amended it sets up a good defence to the 
 several actions. Taken in that view, it al- 
 leges in substance and effect that the dis- 
 trict attorney promised the defendants that 
 if they would testify in behalf of the Unit- 
 ed States frankly and truthfully when re- 
 quired, in reference to a conspiracy among 
 certain government officials in the internal- 
 revenue service, and other parties then 
 known to exist, whereby the honest manu- 
 facture of distilled spirits and the collection 
 of the tax thereon had been rendered prac- 
 tically impossible, and would plead guilty 
 to one count in an indictment then pending 
 against them in said district court, and 
 would withdraw their pleas in certain con- 
 demnation cases then pending against their 
 property in said district court, for the pur- 
 pose only of insuring their good faith in so 
 testifying on behalf of the United States, 
 then the United States would recall any and 
 all assessments under the internal-revenue 
 law made against them, and that no more 
 assessments under said law should be made 
 against them, that no more proceedings 
 
 ■WILGUB.EV.— 38 
 
 against them should be commenced on ac- 
 count of violations of the internal-revenue 
 laws then passed, and that no penalties or 
 forfeitures should in any manner be enfor- 
 ced or recovered against them or their prop- 
 erty, that all suits for penalties and for for- 
 feitures then pending against them and their 
 property should be dismissed, and that full 
 and complete indemnity should be granted 
 to them as the said claimants. 
 
 Complete performance on their part is al- 
 leged by the claimants, and they allege that 
 the pending suits are for the condemnation 
 and confiscation of their property, which 
 was seized by the United States on the 
 ground of the alleged violation of the inter- 
 nal-revenue law, prior to entering into the 
 said agreement. Assessments made against 
 the claimants or their property are to be re- 
 called, and they and their property are to 
 be free of internal-revenue taxation. Pro- 
 ceedings pending against them for violations 
 of the internal-revenue laws are to be dis- 
 missed and no more are to be instituted, and 
 the claimants are promised full and com- 
 plete indemnity, civil and criminal, if they 
 will consent to testify. 
 
 Considering the scope and comprehensive 
 character of the supposed agreement, it is 
 not strange that the district attorney deem- 
 ed it proper to demur to the plea. He took 
 two objections to it; but the court will ex- 
 amine the second one first, as if that is sus- 
 tained, the other will become immaterial. 
 
 Waiving for the present the question 
 whether the district attorney, may contract 
 with an accomplice of an accused person 
 on trial, that if he will testify in the case 
 his taxes shall be abated, or that he and his 
 property shall be exempt from internal-reve- 
 nue taxation, the court will consider in the 
 first place whether the district attorney, as 
 a public prosecutor, may properly enter in- 
 to an agreement with such an accomplice, 
 that if he will testify fully and fairly in 
 such a prosecution against his associate in 
 guilt he shall not be prosecuted for the 
 same offence; and if so, whether such an 
 agreement, if the witness performs on his 
 part, will avail the witness as a defence to 
 the criminal charge in case of a subsequent 
 prosecution. 
 
 Considered in its full scope, the agreement 
 is that in consideration of the defendants 
 testifying against their co-conspirators who 
 were indicted for defrauding the revenue, 
 they, the defendants, should have a full 
 and complete discharge, not only from all 
 criminal liability, but from all penalties and 
 forfeitures they had incurred, and fi'om lia- 
 bility for their internal-revenue taxes which 
 they liad fraudulently refused to pay, giving 
 them full and complete indemnity, civil and 
 criminal, for all their fraudulent and illegal 
 acts in respect to the public revenue. 
 
 Courts of justice everywhere agree that the 
 established usage is that an accomplice duly 
 
 433 
 
Case No. 147] PBODUCTION AND EFFECT OF EVJDENCE. 
 
 admitted as a witness in a criminal prose- 
 eutiim against liis associates in guilt, if lie 
 testifies fully and fairly, will not be prose- 
 cuted for the same offence, and some of the 
 decided cases and standard text-writers give 
 very satisfactory explanations of the origin 
 and scope of the usage in its ordinary ap- 
 plication in actual practice. Beyond doubt, 
 some of the elements of the usage had their 
 origin in the ancient and obsolete practice 
 called "approvement," which may be briefly 
 explained as follows: When a person in- 
 dicted of treason or felony was arraigned, he 
 might confess the charge before plea plead- 
 ed, and appeal, or accuse another as his 
 accomplice of tlie same crime, in order to ob- 
 tain his pardon. Such approvement was on- 
 ly allowed in capital offences, and was equiv- 
 alent to indictment, as the appellee was 
 equally re'quired to answer to the charge; 
 and if proved guilty, the Judgment of the 
 law was against him, and the ai)prover, so 
 called, was entitled to his pardon ex debito 
 justitiffi. On the other hand, if the appellee 
 was acquitted, the judgment was that the 
 apiirover should be condemned. 4 Bl. Comm. 
 330. 
 
 Speaking upon that subject. Lord Mans- 
 field said, more than a century ago, that 
 thei-e were three ways in tlie law and prac- 
 tice of that country, in which an accomplice 
 could be entitled to a pardon: First, in the 
 case of approvement, which, as he stated, 
 then still remained a part of the common 
 law, though he admitted it liad grown into 
 disuse by long discontinuance. Secondly, by 
 discovering two or more offenders, as re- 
 quired in the two acts of parliament to which 
 he referred. Thirdly, persons embraced in 
 some royal proclamation, as authorized by 
 an act of parliament, to which he added, 
 that in all these cases the court will ball the 
 prisoner in order to give him an opportunity 
 to apply for a pardon. 
 
 Approvers, as well as those who disclosed 
 two or more accomplices in guilt and those 
 who came within the promise of a royal proc- 
 lamation, were entitled to a pardon; and 
 the same high authority states that besides 
 those ancient statutory regulations there was 
 another practice in respect to accomijlices 
 who were admitted as witnesses in criminal 
 prosecutions against their associates, which 
 he explains as follows: Where the accom- 
 plice has made a full and fair confession of 
 the whole truth and is admitted as a \yit- 
 ness for the crown, the practice is, if he act 
 fairly and openly and discover the whole 
 truth, though he is not entitled of right to 
 a pardon, yet the usage, the lenity, and the 
 practice of the court is to stop the prosecu- 
 tion against the accomplice, the understand- 
 ing being that he has an equitable title to a 
 recommendation for the king's mercy. 
 
 Subsequent remarks of the court in that 
 opinion showed that the ancient statutes re- 
 ferred to were wholly inapplicable to the 
 
 434 
 
 case, and that there remained even at that 
 date only the equitable practice which gives 
 a title to recommendation to the mercy of 
 the crown. Explanations then follow which 
 prove that the practice ref eiTed to was adopt- 
 ed in substitution for the ancient doctrine 
 of approvement, modified and modelled so as 
 to be received with greater favor. As mod- 
 ified it gives, as the court said in that case, 
 a kind of hope to the accomplice that if he 
 behaves fairly and discloses the whole truth, 
 he may, by a recommendation to mercy, save 
 himself from punishment and secure a par- 
 don, which shows to a demonstration that 
 the protection, if any, to be given to the 
 accomplice rests on the described usage and 
 his own good behavior; for if he acts in bad 
 faith, or fails to testify fully and fairly, he 
 may still be prosecuted as if he had never 
 been admitted as a witness. Rex v. Rudd, 
 1 Cowp. .331, 1 Leach, 115. 
 
 Great inconvenience arose from the prac- 
 tice of approvement, in consequence of which 
 a mode of proceeding was adopted in analogy 
 to that law, by which an accomplice may be 
 entitled to a recommendation to mercy but 
 not to a pardon as of legal right, nor can he 
 plead it in bar or avail himself of it on his 
 trial. 2 Hawk. P. C. p. 532, note 3; 3 Russ. 
 Crimes (9th Am. Ed.) 596. 
 
 In the present practice, says Mr. Starkie, 
 where accomplices make a full and fair con- 
 fession of the whole truth, and are in con- 
 sequence admitted to give evidence for the 
 crown, if they afterwards give their testi- 
 mony fairly and openly, although they ai'e 
 not of right entitled to a pardon, the usage, 
 lenity, and practice of the court is to stay 
 the prosecution against them and they have 
 an equitable title to a recommendation to 
 the king's mercy. 2 Starkie, Bv. (4th Am. 
 Ed.) 15. 
 
 Participes criminis in such a case, when 
 called and examined as witnesses for the 
 prosecution, says Roscoe, have an equitable 
 title to a recommendation for the royal mei'- 
 cy; but they cannot plead this in bar to an 
 indictment against them, nor can they avail 
 themselves of it as a defence on their trial, 
 though it may be made the ground of a mo- 
 tion for putting off the trial in order to give 
 the prisoner time to present an application 
 for the executive clemency. Roscoe, Cr. Bv. 
 (9th Am. Ed.) 597. 
 
 Authorities of tlie highest character al- 
 most without number support that proposi- 
 tion, nor is it necessary to look beyond the 
 decisions of this court to establish the cor- 
 rectness of the rule. Ex parte Wells, 18 
 IIow. 307. 
 
 Special reference is made in that case to 
 1he tliree ancient modes of practice which au- 
 tliorized accomplices, when admitted as wit- 
 nesses in criminal prosecutions, to claim a 
 l)ardon as a matter of right; and the court 
 having explained the course of such proceed- 
 ings, remarked that, except in those cases. 
 
COUROHOHATIVE EVIDENCE. 
 
 [Case No. 147 
 
 accomplices, thongli admitted to testify for 
 the prosecution, have no absolute claim or 
 legal right to executive clemency. 
 
 Much consideration appears to have been 
 given to the question In that case, and the 
 court held that the only claim the accom- 
 plice has in such a case is an equitable one 
 for pardon, and that only upon the condi- 
 tion that he makes a full and. fair disclosure 
 of the guilt of himself and that of his as- 
 sociates, that he cannot plead it in bar of 
 an indictment against him for the offence, nor 
 use it in any way except to support a mo- 
 tion to put off the trial in order to give him 
 time to apply for a pardon. 
 
 Three-quarters of a century before that, 
 ten of the twelve judges of England decided 
 in the same way, holding that the accom- 
 plice in such a case cannot set up such a 
 claim in bar to an indictment against him, 
 nor avail himself of it upon his trial, that 
 such a claim for mercy depends upon the con- 
 ditions before described, and that it can only 
 come before the court by way of application 
 to put off the trial in order to give the party 
 time to apply for a pardon. Rex v. Rudd, 
 1 Leach, 125; 1 Chit. Cr. Law (Ed. 1847) 82; 
 Mass. Cr. Law, 175. 
 
 Attempt was made sixty years later in the 
 same court to convince the judges then pre- 
 siding that some of the remarks of the chief 
 justice in Rex v. Rudd, before cited, justi- 
 fied the conclusion that the accomplice in 
 such a case was by law entitled to be ex- 
 empted from punishment; hut Ijord Den- 
 man replied that the organ of the court on 
 that occasion was not speaking of legal 
 rights in the strict sense, nor of such rights 
 as would constitute a defence to an in- 
 dictment or an answer to the question why 
 sentence should not be pronounced, saying, 
 in substance and effect, that the right men- 
 tioned was only an equitable right, and that 
 the court would postpone the trial or any ac- 
 tion in the case to the prejudice of the pris- 
 oner, in order to give him an opportunity to 
 apply to the crown for mercy. Rex v. Gar- 
 side, 2 Adol. & E. 275; Rex v. Lee, Russ 
 & R. 361; Rex v. Hunton, Id. 454. 
 
 Other text writers of the highest repute, 
 besides those previously mentioned, affirm 
 the rule that accomplices, though admitted 
 as witnesses for the prosecution, are not of 
 light entitled to a pardon, that they have 
 only an equitable right to a recommendation 
 to the executive clemency; and they all hold 
 that prisoners under such circumstances can- 
 not plead such right in bar of an indictment 
 against them, nor avail themselves of it as a 
 ■defence on their trial. 
 
 None of those propositions can be success- 
 fully controverted; but it is equally clear 
 that the party, if he testifies fully and fairly, 
 may make it the ground of a motion to put 
 off the trial in order that he may apply to 
 the executive for the protection which imme- 
 morial usage concedes that he is entitled to 
 
 at the hands of the executive. 3 Russ. 
 Crimes (9th An). Ed.) 597. 
 
 Certain ancient statutory regulations, as al- 
 ready remarked, gave unconditional promise 
 to accomplices of pardon and complete ex- 
 emption from punishment, and in such cases 
 it was always held that the accomplice. If he 
 was called and examined for the prosecution, 
 was entitled as of right to a pardon, provid- 
 ed he acted in good faith, and testified fully 
 aud fairly to the whole truth. Instances ot 
 the kind are adverted to by Mr. Phillipps in 
 his valuable treatise on Evidence; but he, 
 like the preceding text writer, states that ac- 
 complices, when admitted as witnesses, un- 
 der the more modern usage and practice of 
 the courts, have only an equitable title to be 
 j recommended to mercy, on a strict and am- 
 i pie performance, to the satisfaction of the 
 I presiding judge, of the conditions on which 
 ! they were admitted to testify, that such an 
 equitable title cannot be pleaded in bar nor 
 in any manner be set up as a defence to an 
 indictment charging them with the same of- 
 fence, though it may be made the ground of 
 a motion for putting off their trial in order 
 to allow time for an application to the par- 
 doning power. 1 Phil. Ev. (Ed. 1868) 86. 
 Offenders of the kind are not admitted to tes- 
 tify as of course, and sufilcient authority ex- 
 ists for saying that in the practice of the 
 English court it is usual that a motion to the 
 court is made for the puiTpose, and that the 
 court, in view of all the cu'cumstances, will 
 admit or disallow the evidence as will best 
 promote the ends of public justice. Id. 87; 
 3 Russ. Crimes (9th Am. Ed.) 598. 
 
 Good reasons exist to suppose that the 
 same course is pursued In the courts of some 
 of the states, where the English practice 
 seems to have been adopted without much 
 modification. People v. Whipple, 9 Cow. 707. 
 Such offenders everywhere are competent 
 witnesses if they see fit voluntarily to ap- 
 pear and testify; but the course of proceed- 
 ing in the courts of many of the states is 
 quite different from that just described, the 
 rule being that the court will not advise the 
 attorney general how he shall conduct a 
 criminal prosecution. Consequently it is re- 
 garded as the province of the public pros- 
 ecutor and not of the court to determine 
 whether or not an accomplice, who is will- 
 ing to criminate himself and his associates in 
 guilt, shall be called and examined for the 
 state. 
 
 Of all others, the prosecutor is best qual- 
 ified to determine that question, as he alone 
 is supposed to know what other evidence can 
 be adduced to prove the criminal charge. 
 Applications of the kind are not always to 
 be granted, and in order to acquire the in- 
 formation necessary to determine the ques- 
 tion, the public prosecutor will grant the ac- 
 complice an interview, with the miderstand- 
 ing that any communications he may make 
 to the prosecutor will be strictly confidential. 
 
 435 
 
Case No. 147] PKODUCTIOX AND EiTECT OF EVIDEXCE. 
 
 Interviews for the pui'pose mentionecl are 
 for mutual explanation, and do not absolute- 
 ly commit either party; but if the accom- 
 plice is subsequently called and examined, 
 he is equallj' entitled to a recommendation 
 for executive clemency. Promise of pardon 
 is never given in such an intei-vievi', nor any 
 inducement held out beyond what the be- 
 fore-mentioned usage and practice of the 
 courts allow. 
 
 Prosecutors is such a case should explain 
 to the accomplice that he is not obliged to 
 criminate himself, and inform him just what 
 he may reasonably expect in case he acts 
 in good faith, and testifies fully and fairly as 
 to his own acts In the case, and those of his 
 associates. When he fulfils those conditions 
 he is equitably entitled to a pardon, and the 
 prosecutor, and the court if need be, when 
 fully informed of the facts, will join in such 
 a recommendation. 
 
 Modifications of the practice doubtless ex- 
 ist in jurisdictions where the power of par- 
 don does not exist prior to conviction; but 
 every embarrassment of that sort may be 
 removed by th-e prosecutor, as in. the absence 
 of any legislative prohibition he may nol. 
 pros, the indictment if pending, or advise 
 the prisoner to plead guilty, he, the prisoner, 
 reserving the right to retract his plea and 
 plead over to the merits if his application 
 for pardon shall be unsuccessful. 1 Bish. 
 Or. Proc. (2d Ed.) § 1076, and note. 
 
 Where the power of pardon exists before 
 conviction as well as after, no such difficul- 
 ties can arise, as the prisoner, if an attempt 
 is made to put him to trial in spite of his 
 equitable right to pardon, may move that 
 the trial be postponed, and may support his 
 motion by his own affidavit, when the court 
 maj' properly insist to be informed of all 
 the circumstances. Power under such cir- 
 cumstances is vested in the court in a proper 
 case to put off the trial as long as may be 
 necessary, in order that the case of the pris- 
 oner may be presented to the executive for 
 decision. 
 
 Centuries have elapsed since the judicial 
 usage referred to was substituted for the 
 ancient practice of approvement, and ex- 
 perience shows that throughout that whole 
 period it has proved, both here and in the 
 country where It had its origin, to be a 
 proper and satisfactory protection to the ac- 
 complice in all cases where he acts in good 
 faith, and testifies fairly and fully to the 
 whole truth. Cases undoubtedly have arisen 
 where the accomplice, having refused to 
 comply with the conditions annexed to his 
 equitable right, has been subsequently tried 
 and convicted, it being first determined that 
 lie has forfeited his equitable title to pro- 
 tection by his bad faith and false representa- 
 tions. Com. V. Knnpp, 10 Pick. 477. Such 
 offenders, if they make a full disclosure of 
 all matters within thejr knowledge in favor 
 of the prosecution, will not be subjected to 
 
 ■i'M 
 
 punishment; but if they refuse to testify, 
 or testify falsely, they are to be tried, and 
 may be convicted upon their own confession. 
 
 Nothing of weight by the way of judicial 
 authority can be invoked in opposition to the 
 views here expressed, as is evident from the 
 brief filed by the defendants, which exhibits 
 proof of research and diligence. Decided 
 cases may be (!ited which contain unguarded 
 expressions, of which the following are 
 striking examples: People v. Whipple, su- 
 pra; U. S. v. Lee, 4 McLean, 103, Fed. Cas. 
 No. 15..5S8. 
 
 Neither of those cases, however, support 
 the proposition for which they are cited. 
 Enough appears in the first case to show 
 that it was objected on behalf of the accom- 
 plice that the usage gave him no certain as- 
 surance of a pardon, inasmuch as the power 
 of pardon was vested in the governor, and 
 the authority of the court extended no fur- 
 ther than, the recommendation for mercy; 
 to which the court responded, that the legal 
 presumption was that the public faith will 
 be preserved inviolate, and that the equitable 
 claim of the party will be ratified and al- 
 lowed. 
 
 Public policy and the great ends of jus- 
 tice, it was said in the second case, require 
 that the arrangement between the public 
 prosecutor and the accomplice should be car- 
 ried out; and the court proceeded to remark, 
 that if the district attorney failed to enter 
 a nolle prosequi to the indictment, "the 
 court will continue the cause until an appli- 
 cation can be made for a pardon," which of 
 itself is a complete recognition of the usage 
 and practice established in the place of the 
 ancient proceeding of approvement. More 
 evil than good flowed from that regulation, 
 and in consequence the practice now ac- 
 knowledged was substituted in its place, 
 under which the accomplice acquires only 
 an equitable right to the clemency of the ex- 
 ecutive, which, as Ijord Mansfield said, rests 
 on usage and the good behavior of the ac- 
 complice, who in a proper case will be bail- 
 ed by the court in order that he may apply 
 for the pardon to which he is equitably en- 
 titled. 
 
 Should it be objected that the application 
 may not be successful, the answer of the 
 court must be in substance that given by 
 Lord Denman on a similar occasion, that we 
 are not to presume that the equitable title 
 to mercy which the humblest and most 
 criminal accomplice may thus acquire by 
 testifying to the truth in a federal court will 
 not be sacredly accorded to him by the pi'es- 
 ident, in whom the pardoning power is vest- 
 ed by the federal constitution. 
 
 Having come to the conclusion that the 
 district attorney had no authority to make 
 tlie agreement alleged in the plea in bar, 
 it follows that the circuit court erred in the 
 two cases instituted there. In overruling the 
 demurrer to it, and that the judgment must 
 
COBHOBOIIATIVE EVIDENCE. 
 
 [Case No. 147 
 
 be reversed, and the causes remanded for 
 further proceedings In conformity with the 
 opinion of the court. 
 
 Tested by these considerations, It is dear 
 that the circuit court also erred in affirming 
 the judgment of the district court in all the 
 
 other cases, and that the judgment in each 
 of those cases must be reversed, and the 
 causes remanded vfith directions to reverse 
 the judgment of the district court, and for 
 further proceedings In conformity vrlth the 
 opinion of the court; and It is so ordered. 
 
 437 
 
Case Xo. US] PROBUCTIOTS' AND EFFECT OF EVIDEXCE. 
 
 HRONECK V. PEOPLE. 
 
 (2-t N. E. 861, 134 111. 139.) 
 
 Supreme Court of Illinois. .Tune 12, 1890. 
 
 Error to criminal court, Cook county. 
 Jiiljns Goldzier, for plaintiff in error. 
 Geo. Hunt, Atty. Gen., for tiie People. 
 
 BAKER, J. The plaintiff iti error, John 
 
 Hroneck, was indicted with Frank Chapek, 
 Frank Chleboun, and Rudolph Sevic for 
 violation of an act of the legislature of 
 this state entitled "An act to regulate the 
 manufacture, transportation, use, and 
 sa,le of explo.sives, and to punish an im- 
 proper use of the same, " approved June 
 16. 18S7, and in force July 1, 1887. Rev. St. 
 1889, c. 38, §§ 54h-5in. The first count 
 charged the defendants with unlawfully 
 making dynamite, with the unlawful in- 
 tention of destroying the lives of certain 
 persons therein named ; and in the fis'o re- 
 maining counts the defendants were 
 charged successively in such several 
 counts with manufacturing, compounding, 
 buying, selling, and procuring dynamite, 
 with the same unlawful purpose and in- 
 tent. The defendant Hroneck was alone 
 put upon trial, and that trial resulted in 
 a verdict of guilty, and fixing his punish- 
 ment at 12 years' imprisonmentinthe peni- 
 tentiary. Motions for a new trial and in 
 arrest of judgment were severally over- 
 ruled, and the said defendant -was sen- 
 tenced on the verdict. Numerous grounds 
 are urged for reversal, which we shall con- 
 sider, substantially, in the order they are 
 made. 
 
 Itis insisted thatthe statute upon which 
 the prosecution is based is unconstitu- 
 tional in that it is obnoxious to section 13 
 of article 4 of the constitution of the state, 
 which provides "that no act hereafter 
 passed shall embrace more than one sub- 
 ject, and that shall be expressed in the ti- 
 tle. " The specific objection is made that 
 two distinct subjects are expressed in the 
 title. That objection is without merit. 
 The act is entitled "An act to regulate the 
 manufacture, transportation, use, and 
 sale of explo.sives, and to punish an im- 
 proper use of the same. " The regulation 
 of the use necessarily implies the right to 
 punish an improper use. To "regulate" 
 means to adjust by rule or regulation; 
 and any attempt to fix rules forthe man- 
 ufacture, transportation, use, and sale of 
 explosives thatdid not also prescribe pun- 
 isliment for violation of such rules and 
 regulations would necessarily be imperfect. 
 Two different subjects are not included or 
 expressed in or by the title; for the pun- 
 ishment of an improper use flows necerssa- 
 rily and legitimately from the main or 
 substantive object as stated in the title, 
 J. e., to fegulate the use, etc., of explo- 
 sives. It is not necessary that the title 
 shall express all of the minor divisions of 
 the general subject to which the act re- 
 lates; and itis sufficient if it express the 
 general subject of the act, and all the mi- 
 nor subdivisions germane to the general 
 subject will be held to be included in it. 
 But, if the title expresses such minor sub- 
 divisions, which without such expressions 
 
 438 
 
 w^ould be held to be included within the 
 general subject, such expression will not 
 render the title obnoxious to the constitu- 
 tional provision. Plummer v. People, 74 
 111. 361 ; Fuller V. People, 92 111. 182; Magner 
 V. People, 97 111. 320; Cole v. Hall. 103 111. 
 30; Prescott v. City of Chicago, 60 111. 121 ; 
 Potwin V. Johnson, 108 111. 71 ; Timm v. 
 Harrison, 109 111.593; Hawthorn v. Peo- 
 ple, Id. 302; People v. Wright, 70 111. 389; 
 City of "Virden v. Allan, 107 111. 505. . 
 
 The contention that the statute itself 
 treats of two separate and well-defined 
 subjects is not tenable. It is said that the 
 first three sections of the act relate to 
 the "manufacture and use of explosives 
 for illegal purposes," while the four re- 
 maining sections relate to "the manufact- 
 ure, sale, and transportation of explo- 
 sives for legitimate purposes. " It is there- 
 fore claimed that the former sections should 
 properly be found in the Criminal Code, 
 and that they are not germane to the oth- 
 er sections of the act, which are mere po- 
 lice regulations. The general subject of 
 the statute is the manufacture, transporta- 
 tion, use, and sale of explosives; and it 
 cannot be said that because one section 
 provides for a license or permit to be ob- 
 tained for their manufacture, and another 
 prohibits the storing of explosives within 
 a certain distance of inhabited dwellings, 
 and another punishes fraudulent acts to 
 procure the transportation of explosives 
 in public conveyances, that still another 
 section, or otlier sections, making it un- 
 lawful to manufacture or procure such ex- 
 plosives with the intent to use the same 
 for unlawful destruction of life or proper- 
 ty, and affixing a penalty therefor, would 
 not be within the same general subject of 
 legislation. It can no more be said that 
 the prohibition, under a penalty, against 
 storing explosives in dangerous proximity 
 to a dwelling, is a police regulation, than 
 that .alike prohibition against manufactur- 
 ing or procuring the same for an unlawful 
 use or purpose is a police regulation. All 
 of the provisions of the act are within the 
 subject expres.sed in the title, and are ger- 
 mane to each other, and to the general 
 scope and purpose of the act. 
 
 It is next claimed that the section of the 
 statute under which this indictment was 
 prosecuted is not sufficiently definite to 
 authorize imprisonment in the penitentia- 
 ry. Section 1 of the act provides that who- 
 ever shall be guilty of the acts therein de- 
 nounced "shall be deemed guilty of felon.y, 
 and upon conviction thereof shall be pun- 
 ished by imprisonment for a term of not less 
 than five years, nor more than twenty-five 
 years. " Itis urged that as it is not stated 
 the imprisonment shall be in the peniten- 
 tiary, and the statute is highly penal, 
 and re(iuires strict construction, a sen- 
 tence thereunder to the penitentiary can- 
 not be sustained. We are not prepared to 
 adopt this view. The offense is by the act 
 declared to be a felony. A felony is by the 
 Criminal Code of the state declared to be 
 an offense punishable by death or confine- 
 ment in the penitentiary. Rev. St. 1889, c. 
 38, § 277. While the legislature undoubt- 
 edly may provide tor the punishment of 
 misdemeanors by imprisonment in the 
 penitentiary, and undoubtedly might, if 
 
OATH. 
 
 [Case No. 148 
 
 they saw proper, punish felonies other- 
 wise than by imprisonment in tlie peniten- 
 tiary, yet there is nothing in these sec- 
 tions of the act which indicates an inten- 
 tion to do the latter. Applying the well- 
 known rule that acriminal statute is to be 
 strictly construed, and that nothing is to 
 be taken by intendment or implication 
 against the accused beyond the literal and 
 obvious meaning of the statute, it is nev- 
 ertheless clear, we think, when this stat- 
 ute is considered in connection with the 
 general Criminal Code, which it must be 
 presumed the legislature had in contem- 
 plation when passing it,thepuni8hment to 
 be inflicted for violation of said sections 
 of the act is by imprisonment in the peni- 
 tentiary. 
 
 It is insisted that the verdict is void for 
 uncertainty, in that it simply finds "'the 
 defendant" guilty, without specifying the 
 plaintiff in error by name. Before plain- 
 tiff in error was put upon trial a separate 
 trial had been awarded to the defendants 
 Chapek and Sevic. The defendant Chle- 
 bonn was not put upon trial, but was 
 used as a witness on behalf of the people. 
 The record shows that on the 2Gth day of 
 November, ISSS, at the term of the crim- 
 inal court then being held, the following 
 proceedings were had and entered of rec- 
 ord, to-wit: "The People of the State of 
 Illinois V. John Hroneck, impleaded," etc. 
 "This day come the said people by Joel M. 
 Longnecker, state's attorney, and the said 
 defendant, as well in his own proper per- 
 son as by his counsel, also comes. And 
 now, issue being joined, it is ordered that 
 a jury come, " etc. Then follows the im- 
 paneling of a jury. It is manifest from the 
 foregoing that no one was put upon trial 
 other than the defendant Hroneck, and 
 the verdict finding "the defendant" guilty 
 could not refer to any other defendant. 
 There was no uncertainty in the verdict. 
 
 Complaint is made of the second instruc- 
 tion given on behalf of the people. That 
 instruction told the jury that any person 
 abetting or assisting in the perpetration 
 of the offense mentioned in section 1 of the 
 act was upon conviction to be punished 
 as provided in said first section. This 
 w^as not error. The statute provides that 
 any person abetting or in any way assist- 
 ing in making, manufacturing, buying, 
 procuring, etc., such explosives, etc., know- 
 ing or having reason to believe that the 
 sameareintended to be used byany person 
 or persons in any way for the unlawful in- 
 jury to or destruction of life or property, 
 shall be deemed a principal, and upon con- 
 viction shall bosubjectto thesame punish- 
 ment as provided in section 1 of the act. 
 Under this statute a defendant, if guilty as 
 an accessory befoi-e the fact, is to be indicted 
 anu punished as a principal. In view of 
 the evidence tending to show the connec- 
 tion of plaintiff in error with the other de- 
 fendants in the perpetration of the offense, 
 the instruction was entirely proper. 
 
 It is objected that the court erred in re 
 fusing an instruction that the evidence of 
 private detectives and of the police"should 
 be received with a large degree of caution." 
 This instruction does not contain a cor- 
 rect proposition of law. All the circum- 
 stances connected with a witness, or that 
 
 might tend to affect his credibility or bias 
 his judgment, are competent to be shown 
 to and considered by the jury in determin- 
 ing the weight and credit to be given to 
 his testimony. In view of the facts and 
 circumstances thus shown, it is for the 
 jury to determine its weight as matter of 
 fact. 
 
 It is urged that the court erred in modi- 
 fying an instruction asked by the defend- 
 ant. The instruction as asked was as fol- 
 lows: "The jury are instructed that, to 
 constitute the crime charged against the 
 defendant in the indictment, two things 
 are necessary, namely: First, the mak- 
 ing, manufacturing, compounding, buy- 
 ing, selling, or disposing of the dynamite, 
 or some portion thereof, described in the 
 indictment, on or subsequent to the tst 
 day of July, A. D. 18S7. " To this the court 
 added the following: " Therefore the jury 
 must disregard any evidence as to the 
 making or compounding or procuring 
 of any dynamite at Chapek's house or 
 elsewhere prior to said date." The in- 
 struction then proceeds: " Second," etc. 
 Hroneck's defense in part consisted in ac- 
 counting for the dynamite found in his 
 possession by testifying that it was left 
 in his house in the fall of 1S86 by one Kara- 
 fiat; and it becameimportant for the jury 
 to consider testimony tending to show 
 that he was in possession of dynamite in 
 the spring of 1SS7 prior to the law under 
 which he was prosecuted going into effect, 
 on the 1st day of July of that year. It is 
 insisted that the effect of the modification 
 was to take from the consideration of the 
 jury this evidence offered by the defendant 
 of prior possession of theexplosives. It is 
 conceded that such was not the purpose, 
 and it is clear to us that such was not the 
 effect, of the modification. The instruc- 
 tion related solely to the elements neces- 
 sary to constitute the crimecharged. The 
 jury were told that, to constitute the 
 crime, it was necessary that the making, 
 etc., of the dynamite must have been on or 
 subsequent to the 1st day of July, 1887, 
 and that therefore the jury must disregard 
 the making or procuring, etc., prior to 
 that date. It must be presumed that the 
 jury were men of reasonable intelligence, 
 and would understand that whatfoUowed 
 the introductory part of the instruction 
 related to what was necessary to consti- 
 tute the crime, and not to the defense set 
 up, that the dynamite was in the posses- 
 sion of the defendant prior to the date 
 fixed by the instruction. Moreover the 
 jury, by a lengthy series of instructions, 
 were fairly instructed as to the law of the 
 case,— fully as favorably to the defendant 
 as he could rightfully ask. They were 
 told that they must consider all the facts 
 and circumstances proven, and determine 
 therefrom whetherthe defendant procured, 
 etc., the explosives in question after the 
 law went into force, and that his posses- 
 sion prior thereto would raise no presump- 
 tion of guilt. It is, we think, impossible 
 that the jury could have been misled to 
 the prejudice of the plaintiff in error by 
 the modification. It is not contended 
 that the instruction, when considered as 
 defining what would constitute guilt of 
 the crime charged, and what the jury 
 
 439 
 
Case No. 148] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 might properly consider in respect thereof, 
 is not a substantially accurate statement 
 of the law. As the jury were not misled 
 by the modification to the prejudice of the 
 y)laintiff in error, he has no cause of com- 
 plaint. 
 
 /^)l)jcetion is made to the competency of 
 'Frank Chleboun. a witness for the people, 
 who was permitted to testify over the 
 objection of the defendant. He was ex- 
 amined upon his voir dire, and avowed 
 his belief in tlie existence of (iod and "a 
 hereafter;" that he believed, if he swore 
 falsely, he would be punished under the 
 criminal laws of the state; that he had 
 never thought seriously of whether God 
 would punish him either in this world or 
 the next, and had never considered the 
 question whether he would be punished 
 for false swearing In any other way than 
 by that inflicted by the law. He had.it 
 seems, no religious belief or conviction of 
 his accountability to the Supi-f'me Being, 
 either in tli is world or in any after life. 
 The test of the competenc.v of a witness 
 in respect to religious belief, as generally 
 held, is, does the witness believe in God, 
 and that he will punish him if he swears 
 falsely? It is stated by Rapalje in his 
 Law of Witnesses (section 11) that "the 
 great weight of authority in this country 
 now is that it is Immaterial whether the 
 witness believesGod's vengeance will over- 
 take him before or after death." This 
 doctrine was ai)proved in Railroad Co. v. 
 Rockafellow. 17 111. 541, where, after a con- 
 tsideration of the autliorities, It was held 
 that all persons are competentto besworn 
 as witnesses who believe there is a God, 
 and that he will punish them, either in 
 this world or the next, if they swear false- 
 ly, and that a want of such belief rendered 
 them incompetent to take an oath as wit- 
 nesses. This case, seemingly, overruled 
 the/doctrine of the earlier ease of Noble v. 
 People, Breese, 54. Witiiout pausing here 
 to determine whether the court erred in 
 subjecting the witness to an examination 
 touching his religious belief, (Rajj. Wit. 
 § 12, and cases cited,) it may be said that 
 the better practice, and that which now 
 prevails, forbids the examination of the 
 witness in respect thereof on his voir 
 dire. If there was error in this regard, it 
 was committed at the instance of the de- 
 fendant, and in his interest; and he can- 
 not complain. 
 
 Returning to the questi jii of the compe- 
 tency of the witness, the rule seems to be 
 as above stated, unless changed b.y con- 
 stitutional provision or legislative enact- 
 ment. The tendency of modern times by 
 the courts and in legislation is towards lib- 
 eralizing the rule, and in many j urisdictions 
 incompetency for the want of religious 
 belief has been abolished. See Rap. Wit. 
 § 1.3, andWhart.Ev. § ;395. Has the rule an- 
 nounced by this court in Railroad Co. v. 
 Rockafellow been changed in this state? 
 By section 3 of article 2 of the constitu- 
 tion of 1870, it would seem that a radical 
 change waseffected in respect to the mat- 
 ter under consideratiou. This section 
 guaranties non-interference of the state 
 with the religious faith of its citizens. In 
 Chase v. Cheney, 58 111. 509, it was said: 
 "The only exception to uncontrolled lib- 
 
 440 
 
 jrty is that acts of licentiousness shall not 
 be excused, and practices inconsistent with 
 the peace and safety of the state shall not 
 be justified. " The section provides; "No 
 person shall be denied any civil or political 
 right, privilege, or capacity on account of 
 his religious opinions; but the liberty of 
 :onscience hereby secured shall not be con- 
 strued to dispense with oaths or affirma- 
 tions, excuse acts of licentiousness, or jus- 
 tify practices inconsistent with the peace 
 or safety of the state. " No religious belief 
 is re(iuired to qualify a citizen to take an 
 oath, and no citizen can be excused from 
 taking an oath or affirmation because of 
 his religious belief. The liberty of con- 
 science secured by the constitution is not 
 to be construed as dispensing with oaths 
 or affirmationsin cases where the same are 
 re()ulred by law. No man, because of his 
 religious belief, is to be excused from tak- 
 ing the prescribed oath of office before en- 
 tering upon the discharge of the public du- 
 ty; norcfin 1ih be permitted to testify be- 
 cause of such religious belief or opinion ex- 
 ce|)t upon taking the oath, or making the 
 affirmation, required by law. Now, as be- 
 fore the adoption of this provision, oaths 
 are to be taken, and affirmations made, 
 whenever required by law ; but the right 
 to take such oath or make such affirma- 
 tion, if such right be a civil right, privi- 
 lege, or capacity, cannot be denied to any 
 citizen. It is said that one who holds pro- 
 scribed religious opinions is incompetent — 
 that is, has not the legal capacity — to tes- 
 tify. The Incapacity, if it exists, grows 
 out of, and is based upon, his failure to 
 hold certain religious beliefs and opinions 
 in accord with the prevailing religious 
 opinions of the people; and the contention 
 is that he should not, by reason of such 
 incapacity, he permitted to testify, how- 
 ever great and important the interest at 
 stake to himself, his family, his neighbor, 
 or the state. It is clear from the authori- 
 ties that the rule contended for does not 
 apply when the witness is testifying in his 
 own behalf; but if the life, liberty, reputa- 
 tion, or property of his family or neighbor 
 be involved, or his testimony be necessary 
 to the i)rotection of society, he is, under 
 such rule, to be excluded from the privilege 
 of testifying in courts of justice because of 
 such incapacltj'. If it exists at all, the in- 
 capacity is created by law, and It is there- 
 fore a civil incapacity. The constitution 
 provides that no person shall be denied any 
 civil or political right, privilege, or capac- 
 ity on account of his religious opinions. 
 In Bouvier's Law Dictionary, capacity is 
 defined to be "ability, power, qualification, 
 or competency of persons, natural or arti- 
 ficial, for the performance of civil acts de- 
 pending on their state or condition as de- 
 fined or fixed by law. " It is also defined 
 as follows: "Power; competency; quali- 
 fication; ability, power, or qualification 
 to do certain acts." 2 Amer. & Eng. Cy- 
 clop. Law, 722. The obvious meaning ol 
 the provision in the constitution is that 
 whatever civil rights, privileges, or capac- 
 ities belong to or are enjoyed by citizens 
 generally, shall not be taken from or denied 
 to any person on account of his religious 
 opinions. As said by the supreme court 
 of Kentucky in construing a similar pro- 
 
O.VTII. 
 
 [Case No. 14S 
 
 vision of tlie consUtution of tliat state in 
 Bush V. Com., 80 Ky. 244: " It is a declara- 
 tion of an absolute ('quality, which is vio- 
 lated when one class of citizens is held to 
 have the civil capacity to testifj'in a court 
 of justice because they entertain a certain 
 opinion in regard to religion, while anoth- 
 er class Is denied to possess that capacity 
 because they do not conform to the pre- 
 scribed belief. " It is manifest tiiat, if the 
 legislature may prescribe the test of belief 
 In rewards and j)unishments, they may 
 Impose any other test or qualification 
 that, in the judgment of those entertain- 
 ing the dominant belief, may be necessary 
 to afford the requisite sanction. In Perry's 
 ■Case, 3 Grat. fiii2, a like conclusion was 
 reached in construing a constitutional pro- 
 vision that "all men shall be free to pro- 
 fess, and by argument maintain, their opin- 
 ions in matters of religion ; and the same 
 «hall in no wise affect, diminish, or enlarge 
 their civil capacities. " We are of the opin- 
 ion that the effect of this constitutional 
 provision is to abrogate the rule which 
 obtained in this state prior to the consti- 
 tution of 1870, and that there is no longer 
 any test or qualification in respect to 7'e- 
 ligious opinion or belief, or want of the 
 «ame. which affects the competency of cit- 
 izens to testify as witnesses in coiirts of 
 justice. It follows that there was no er- 
 ^, roy in Dermittin^ t ]in witinrwin to tentifyi "^ 
 The only ffiftiaining question which we 
 deem it necessary to consider is the claim 
 thatthe evidence is insufficient to warr int 
 a conviction. It Is insisted that there is 
 no proof of the corpus delicti. The corpus 
 delicti of the offense charged in the indict- 
 ment is the making, procuring, etc., of dyna- 
 mite with intenttonsethesame forthe un- 
 lawful destruction of the lives of the persons 
 named in the indictment. At the time of 
 the arrest of plaintiff in error, a large 
 •quantity of dynamite, and a number of 
 bombs of different make and material, 
 were found In his possession. It was 
 proved that he said, as indicating his in- 
 tent, that he must kill Gary, Grlnnell, and 
 Bonfleld, and that he would throw the 
 bombs at them. In his statement made 
 to the officers after his arrest, which was 
 reduced to writing, and which he intro- 
 duced in evidence at the trial, it appears 
 that he went with Chleboun and Chapek 
 to Aldine square for the purpose of finding 
 ■Grlnnell 's residence, and that the intent of 
 his companions, as expressed at the time, 
 was to find Grinnell's house, and that 
 they were talking ot killing Eonfield. It 
 a,ppears, also, that he pointed out to said 
 persons Grinnell's house, or what he 
 thoughtto be his hou.se. It is also shown 
 that, on different occasions, he threatened 
 to take the lives of the three persons 
 named in the indictment, and said that he 
 would throw the bombs at them in the 
 ■court-rooms, or on the street, or wherever 
 he might meet them. Indeed, it is not 
 <juestioned that there is sufficient evidence 
 of the inteutof plaintiff in errorto destroy 
 he lives of said persons by means of such 
 xplosives, if it was believed by the jury 
 to be true. It is insisted, however, that 
 there can be no presumption thatHroneck 
 had procured the dynamite with the un- 
 lawful intent indicated from the fact that 
 
 duch dynamite was found in his posses- 
 sion. Where a party is found in posses- 
 sion of explosives, and has the avowed in- 
 tention of using tliera for a particular pur- 
 pose, the presumption would arise that he 
 procured the same for such unlawful use. 
 It is to be remarked that there was noth- 
 ing in the business or vocation of Hroneck 
 that would call lor or require the use or 
 possession of explosives. Moi-eover, it 
 was shown by the witness Chleboun that 
 he was at Hroneck's house the last Sunday 
 in May, 1X88, when Hroneck Showed him 
 some unfilled bombs, and Hroneck then 
 said that he would get dynamite with 
 which to load them. He at that time 
 spoke of an opportunity he had to kill 
 Bonfield, that he did not do it because he 
 didn't have the necessary weapon, but 
 that he regretted it very much. The wit- 
 ness saw no dynamite that day. In June 
 following the witness.again saw Hroneck 
 at his request, and Hroneck had a number 
 of bombs which were charged. Some of 
 them had fuses attached, and others had 
 fulminating caps. Can it be questioned 
 that, if no explanation had been offered by 
 Hroneck as to when and how he came 
 into the i)ossess>on of the dynamite, the 
 fact of its being in his possession in the 
 month of June with the avowed intent of 
 using it in the particular unlawful way 
 charged, coupled with his declaration in 
 May that he would procure dynamite for 
 the accomplishment of such unlawful pur- 
 pose, would be sufficient to maintain a 
 conviction for unlawfully procuring the 
 explosive with the intent to use the same? 
 In other words, would not the jury be jus- 
 tified in finding therefrom that the corpus 
 delicti had been proved? The fact that he 
 procured the exDlosive is shown by his 
 having it in his possession. The unlawful 
 intent is manifested by the character of 
 the substance itself, his concealment of it, 
 and his contemporaneous declarations of 
 his intent. A jury, from the necessity of 
 the case, must be allowed to draw conclu- 
 sions from the facts jDroved ; and intent 
 can ordinarilj' be shown only by inferences 
 drawn from the acts of the party, and 
 from his declarations. Hroneck is here 
 shown to have been in the actual posses- 
 sion of the dynamite in June, 1SS8, and 
 subsequently, by unquestioned evidence; 
 and the fact of his intention is shown by 
 his declarations and acts. If, from the 
 facts proved, the conclusion is irresistible, 
 if thetestimony is believed, that the offense 
 was committed, then the corpus delicti is 
 established. 
 
 ►Some question is made in respect of" the 
 evidence of the date when the dynamite 
 was procured by Hroneck. He testified 
 that one Karatiat left it at his house in 
 the fall of 1886, and had never called for it. 
 Without entering into a discussion of the 
 evidence, it must be said that there was 
 much in his own testimony, as there was 
 also in the testimony of the witness Chle- 
 boun, that tended to discredit his evidence. 
 The question was fully and fairly submitted 
 to the jury as to whether or not he procured 
 the dynamite with the unlawful intent 
 charged, after the 1st day of July, 1887, 
 when the statute went into effect. They 
 were told in numerous instructions that 
 
 441 
 
Case Ko. 148J PRODUCTION AND EFFECT OF EVIDENCE. 
 
 unless they believed from the evidence, be- 
 yond a reasonable doubt, that he procured 
 the same, with the specific intent charged, 
 on or Subsequent to that date, they must 
 acguit. 
 
 VVithout extending this opinion — already 
 too long — by an analysis of the evidence, 
 it must suffice for us to say that we have 
 carefully considered the record, and the 
 facts and circumstances proved, and are 
 unable to say that the jury were palpably 
 wrong in the conclusion reached by them. 
 It is not enough that we, sittlngas a jury, 
 might have found differently. They saw 
 442 
 
 the witnesses, had means of determining 
 their credibility which we do not possess; 
 and, before we would be justified in set- 
 ting aside their verdict for eiTor in finding 
 of fact, the error must be palpable. 
 
 Other minor objections are urged, which 
 we have carefully considered, and there is 
 no reversible error in them ; and no good 
 purpose would bt served, either to the de- 
 fendant or the profession, by their discus- 
 sion. We find no eiTor in this rc:"ord for 
 which th« judgment of the court below 
 should be reversed, and it is accordingly 
 affirmed. 
 
DEPO.SJTIONS. 
 
 [Case No. 149 
 
 BLAKESLEE v. DYE. 
 
 (27 Pac. 881, 1 Colo. App. 118.) 
 
 Court of Appeals of Colorado. Oct. 12, ISlll. 
 
 Error to Otero county court; C. W. Bom- 
 gardner, Judge. 
 
 James H. Dye sued Wilmot Blaki^sleo for 
 commissions for selllnf; defendant's prop- 
 erty. Judgment for plaintiff. Defendant 
 brings error. Reyersed. 
 
 James Hoffmire, for plaintiff in erorr. A. 
 P. Thompson, for defendant in error. 
 
 BISSELL, J. Dye brought this Mction 
 against Blalieslee before a justice in Otero 
 county to recover $125, which lie claimed as 
 a commission upon the sale of certain prop- 
 erty belonging to Blakeslee. After a trial 
 before the justice an appeal was talien to 
 the countj^ court, where the action was tried 
 by a jury,' which found a verdict of $50 in 
 favor of the plaintiff, on which the judgment 
 was entered whereon error is assigned. 
 During tlie progress of the litigation in the 
 county court, the plaintiff. Dye, sued out a 
 dedimus to take testimony of one Desent in 
 Payette county, Iowa. Divers errors are in- 
 sisted upon and argued by counsel in their 
 briefs, but the only one important to con- 
 sider is that predicated upon the form of the 
 dedimus under which the testimony was 
 taken. The writ appears in the record, and 
 was apparently issued by the judge of the 
 county court acting as his own clerk. It is 
 
 without a seal or any other form of au- 
 thentication. A motion was made prior to 
 the trial to suppress the deposition because 
 of this irregularity. The error is well as- 
 signed. The statute requires (Code 1887, § 
 349) that the deposition of a witness resid-, 
 ing out of the state must be taken upon a 
 commission to be issued by the clerk under 
 the seal of the court. This statute is but 
 declaratoiy of the law as it existed prior to 
 this enactment. The seal of the court was 
 always a necessary and essential part of 
 every writ issued at the common law. In 
 no other manner did a court of record au- 
 thenticate its process. It is clear under the 
 authorities that a dedimus is a writ, and 
 that it is a process requiring a seal. Free- 
 man v. Lewis, 5 Ired. 91; Pord v. Williams, 
 24 N. Y. 3.59; Tracy v. Suydani, 30 Barb. 
 110; Churchill v. Carter, 15 Hun, 385; By- 
 ington V. Moore, 62 Iowa, 470, 17 N. W. 044. 
 Tile statutoi'y provision is in harmony with 
 the general law upon the subject. It must, 
 therefore, be true that the specific require- 
 ment of the statute upon the subject must 
 be observed in order to render the process 
 available as an authority to an oiflcer to 
 take the testimony, and that without it the 
 writ would be a nullity, and a deposition 
 taken under it would be inadmissible as evi- 
 dence. The motion to suppress the deposi- 
 tion should have been sustained, and for the 
 error of the court in this particular the 
 cause must be reversed and remanded. 
 
 443 
 
Case Xo. 150] I'RODUCnOX AXD EFFECT OF EVIDENCE. 
 
 CHASE V. GARKETSOX. 
 
 (23 Atl. 353, 54 N. J. Law, 42.) 
 
 Supreme Court of New Jersey. Jan. 22, 1892. 
 
 On rule to show cause why a new trial 
 should not be granted. Cause tried In the 
 Essex county circuit court before Justice De- 
 pue and a jury. 
 
 Action by Selon H. Chase against Garret 
 Garretson to recover on a note, ^'erdict for 
 defendant. Rule to show cause why a new 
 trial should not be granted. Rule dismissed. 
 
 Argued February term, 1891, before BEAS- 
 LEY, C. J., and MAGIE, DIXON, and GAR- 
 RISON, JJ. 
 
 F. E. Bradner, for plaintiff. John S. Voor- 
 hees, for defendant. 
 
 GARRISON, J. This is an action on a 
 promissory note, the making and indorse- 
 ment of which were admitted at the trial. 
 The defense was that the note had been ob- 
 tained by false representations, of which 
 there was some proof. The plaintiff offered 
 in evidence certain depositions which had 
 been received by the trial court, properly 
 sealed. What these depositions contained 
 we do not know, as the state of the case Is 
 silent upon that point. The justice before 
 whom the case was tried excluded these dep- 
 ositions, upon the ground that the supreme 
 court commissioner before whom they had 
 been taken had not certified any reason for 
 taking them; and upon the further ground 
 that, whereas they were taken upon short 
 notice, it did not appear by the certificate of 
 the commissioner that the case, In his opin- 
 ion, required such short notice. The vei'- 
 dict was for the defendant, whereupon this 
 i-ule to show cause why a new trial should 
 not be granted was allowed. The question 
 is whether the depositions should have been 
 received in evidence. The aflidavlts in ques- 
 tion had been taken at Newark, N. J., before 
 a supreme court commissioner, upon short 
 notice, in the absence of the adverse party. 
 The certificate of the ofiicer who took them 
 was in these words: "I, A. B. 0. Salmon, 
 stipreme court commissioner, do hereby cer- 
 tify that the witnesses above named herein 
 aiipeared personally before me. were duly 
 sworn by me, and examined by plaintiff's 
 attorney, and gave evidence as Is set out 
 above; that such other and further proceed- 
 ings were had as shown by this transcript. 
 A. B. C. Salmon, Sup. Ct. Comm'r." The 
 notice stated that the witnesses to be ex- 
 amined were about to leave this state, but 
 the certificate of the coiiiuiissioner is silent 
 as to the reasons why he took the atftdavits, 
 or whether, in his opiiiiun, the case was one 
 requiring short notice. In this condition of 
 affairs the party who had procured the tak- 
 ing of the depositions offered to supply by 
 oral proof evidence as to the reasons which 
 moved the commissioner to take the alBda- 
 
 444 
 
 vlts, and that the commissioner had fixed the 
 time for taking the same, and had authorized 
 the giving of the notice. The overruling of 
 this offer raises the only question before us. 
 The privilege of producing, upon the trial of 
 an issue of fact, affidavits taken elsewhere. 
 Is so marked a departure from the ordinary 
 course of trials that every safeguard thrown 
 by the legislature around the extraordinaiT 
 procedure should be upheld. Upon this 
 point there is entire unanimity of judicial 
 sentiment. Chief Justice Kirkpatrick, in the 
 case of Hendricks v. Craig, 5 N. J. Law, 508, 
 speaking of commissions to take testimony, 
 said: "As the power to take the testimony 
 of absent witnesses is a new power, created 
 by statute, the rule is that it must be pursued 
 strictly." To the same effect is the language 
 of Ryerson, J., in Sayre v. Sayre, 14 N. J. 
 Law, 487—192: "The statute is an innova- 
 tion on a great and valuable principle of the 
 common law that the witness shall be pro- 
 duced before the jury, who are to judge, as 
 well from his manner as otherwise, of the 
 credit to which he is entitled." "I do not 
 think," said this learned judge, with marked 
 discrimination, "that this is a case where 
 the legislature have ingrafted a new prin- 
 ciple on the common law which the court are 
 to regard as a principle, and give efficiency 
 to it in practice. They have only made an 
 exception, and the party has not brought 
 himself within it." "This statute," said 
 Chancellor Zabrlskie, speaking of the same 
 act, "creates a new power contrary to the 
 settled practice, and should therefore be 
 strictly construed and strictly complied with." 
 Parker v. Hayes, 23 N. J. Eq. 186, 187. In 
 the case of Moran v. Green, 21 N. J. Law, 
 5U2-.">()9, Chief Justice Hornblower, while re- 
 laxing the rule as to the directory parts of 
 the statute in reference to the filing of the 
 aflidavits, says: "For the due observation 
 of everything relating to these matters, the 
 party suing out the commission Is alone re- 
 sponsible; but when he has got it back into 
 the hands of a judge of the court, out of 
 which it issued, he has done all the law 
 requires him to do," — an exception which, it 
 will be observed, instead of loosening the 
 rule, rather emphasizes It, so far as the pres- 
 ent case is concerned. If we are to be guid- 
 ed by the views thus expressed, there will 
 be no difliculty in giving a construction to 
 the statute under which these depositions 
 have been taken. The section in question is 
 this (Revision, p. 382, § 2.5): "If any mate- 
 rial witness In an action or suit of a civil na- 
 ture," etc., "is about to leave the state, 
 [his deposition may be taken de bene esse]:- 
 provideil, that the officer before whom the 
 epositlon is to be taken shall cause notice 
 be .yiven to the adverse party immediately, 
 r at such short day as the case, in the opin- 
 on of the said officer, may require, to attend 
 nd be present at the taking thereof, and to 
 ijiit questions and cross-examine. If he shall 
 think fit." As has been shown, the con- 
 
DEPOSITIONS. 
 
 [Case No. 1-50 
 
 sensus of judicial opinion favors tliat con- 
 struction of this statute wliicli gives to the 
 language employed its iJlain and unmistak- 
 able meaning. The act says that tliere shall 
 be a certificate by the officer who took the 
 affidavits of the reasons for their being tak- 
 en, and of the notice given to the adverse 
 party. Revision, p. 382, § 27. The entire 
 matter is a creature of legislative enactment, 
 so that it is difficult to see by what ijuwer 
 these statutory provisions can be altered by 
 this court, even if it were deemed advisable 
 to dispense with them. Apart, however, from 
 authority, there are cogent reasons why these 
 jurisdictional matters should appear to the 
 trial court by official certificate rather than 
 by oral proofs. In the first place, they con- 
 cern matters resting in the bosom of the offi- 
 cial who makes the adjudication, and hence 
 cannot safely be the subject of oral testi- 
 mony from the mouths of others. The rea- 
 sons which move the officer to take the affi- 
 davits, and his opinion as to the facts re- 
 quired by the exigencies of the case before 
 him, are known to himself. The best evi- 
 dence, therefore, is his own statement. All 
 else is hearsay or surmise. Further, it is 
 evident that the cases in which contention 
 will arise are those in which the depositions 
 have been taken in the absence of the ad- 
 verse party; for, if he appear and cross-ex- 
 amine the witnesses, his presence or his con- 
 duct may be such as to waive his right to 
 insist upon the statutory provisions designed 
 for his protection. In this respect eacli case 
 must be determined upon the general prin- 
 ciples applicable to its peculiar features. 
 But where the return of the officer shows 
 that the affidavits were taken in the presence 
 only of the party procuring them, the ad- 
 verse party has a right to insist that they 
 shall become evidence against him only when 
 delivered to tlie trial court, with the juris- 
 dictional facts proved in the manner pre- 
 scribed by the statute. To hold otherwise 
 would be to place it within tlie power of the 
 party who had procured the proofs, and who 
 alone was represented at their taking, to ad- 
 duce testimony in their support, which, under 
 the circumstances, it would be entirely be- 
 yond the power of the absent party to gain- 
 say, or even to verify, except by calling the 
 officer himself; thus shifting the burden of 
 proof in an oppressive and unwarranted 
 manner. When we consider that the matters 
 to be proved are the reasons which operated 
 upon the mind of the official, and his opin- 
 
 ion as to the necessity of short notice, we 
 shall see the difficulty and danger of per- 
 mitting such matters to rest in oral proofs 
 offered by an interested party during the 
 course of a trial,— difficulties and dangeis 
 which are incurred solely by an arbitrary 
 disregard of the provisions of the statute, 
 which plainly enacts that these matters are 
 to be shown by the certificate of the officer. 
 As between these two lines of practice, if 
 the language of the statute was open equally 
 to either construction, I should deem the con- 
 struction indicated most consonant with cor- 
 rect principle and sound policy. When to 
 this conclusion is added the weight of judi- 
 cial opinion as to the spirit in which acts of 
 this kind are to be construed, and the legis- 
 lative intent is expressed in unambiguous 
 language, I can see neither reason nor au- 
 thority for permitting the substitution of oral 
 testimony for the official certificate required 
 by the statute under review. 
 
 Section 43 of an act concerning evidence 
 (Kevision, p. 385) does not reach the infirm- 
 ity of the certificate now before us. That 
 section provides that any deposition may be 
 overruled upon objections to the competency 
 of witnesses or of testimony, or to the regu- 
 larity of questions, but "shall not be exclud- 
 ed for any irrc.i^alarity or informality in tak- 
 ing or returning the same, if the court in 
 which the same is offered shall be satisfied 
 that the testimony of the witnesses has been 
 fairly and truly taken and returned." The 
 taking of testimony here mentioned refers 
 to the mode in which the witness is inter- 
 rogated, and to the form In which his testi- 
 mony is transcribed, and the returning of the 
 depositions refers to their custody from the 
 time they are sealed by the commissioner 
 until they are delivered to the court. But 
 nothing in this act alters the previous provi- 
 sions as to what the certificate shall contain. 
 Moreover, these irregularities are to be over- 
 looked only when the court is satisfied con- 
 cerning the fairness with which the testi- 
 mony was taken. But, under the views 
 above expressed, it would be petitio prin- 
 cipii to say that depositions which cannot be 
 received, because not properly accredited, 
 may be used to satisfy tlie mind of the court 
 by their internal evidence concerning the 
 manner in which the testimony was taken. 
 Such a course would not be overlooking an 
 irregularity; it would be abrogating a legis- 
 lative provision. The rule to show cause 
 should be dismissed, with costs. 
 
 44.5 
 
Case No. 151] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 CITY OF SANDWICH v. DOLAN. 
 (42 111. App. 53.) 
 Appellate Courts of Illinois. Dec. 7, 1891. 
 Appeal from circuit court, Dekalb county; 
 Charles Kellum, .Judge. 
 
 W. & W. D. Barge, for appellant. C. A. 
 Bishop and Samuel Alsehuler, for appellee. 
 
 CARTWRIGHT, J. This ease has beeii 
 before this court and the supreme court on 
 former appeals by the present appellant, and 
 is reported in 34 111. App. 199, and 133 111. 
 177, 24 N. E. 526. The case has been again 
 tried in the circuit court, resulting in a some- 
 what increased verdict for appellee in the 
 sum of .f3,000. That the sidewalk upon 
 which the accident occurred was, and for a 
 long time had been, out of repair and in verjt- 
 bad condition is not denied, but is admitted 
 by appellant; nor is it denied that the acci- 
 dent of appellee, falling upon it by reason of 
 its defective condition, ■ occurred as claimed 
 by her; but it is contended on the part of ap- 
 pellant that the jury were not justified in 
 finding that the injuries complained of re- 
 sulted from the fall, nor that appellee was in 
 the exercise of ordinary c-are, and that the 
 court erred in refusing to admit certain evi- 
 dence offered by appellant and in giving and 
 refusing instructions. The circumstances 
 under which the accident happened are de- 
 tailed in the former opinion of this court, 
 and need not be repeated here. The facts 
 proven upon the retrial appear to be sub- 
 stantially the same as stated in that opinion, 
 except that the health and bodily condition 
 of appellee was shown to be worse than at 
 the time of the first trial. The record shows 
 some contradiction among the doctors as to 
 whether the eighth rib was broken at the 
 time of the fall or at a subsequent time, and 
 those testifying for nppellant say that the 
 twelfth rib was not broken, but that where 
 there was a bunch ou the side of appellee, 
 the attaching cartilage from the ninth rib, 
 several inches in length, was broken ur torn, 
 which fact the.\- do not regard as of much 
 consequence. A consideration of all the evi- 
 dence on those subjects satisfies us that the 
 injuries to appellee resulted from the fall, 
 and that injui-ious couseijuences, peruiiinent 
 and progressive in their nature, have already 
 taken place, and are to be reasonably ap- 
 prehended in the future. With respect to 
 the question of the degree of care exercisetl 
 by appellee, the evidence shows that in the 
 manner of using the walk she exercised ordi- 
 nary care, and that the accident resulted 
 from no act or omission on her part, but 
 from her son stepping on a board which flew 
 up in front of her and tripped her so that she 
 fell; and the main contention of appellant i, 
 that she was negligent in using the walk a1 
 all. Considering this proposition as a ques 
 tion of fact, it appears that this walk was 
 the direct route from the Congregational 
 
 446 
 
 Church, where appellee had been, to her 
 home, where she was going; that it was an 
 ordinary walk, and its infirmity consisted In 
 loose boards on account of decayed stringers; 
 that she was accustomed to travel upon it 
 frequently; that it was used by the public 
 i without notice or prohibition by appellant; 
 that it was not palpably dangerous to use it 
 at all, and that, so far as appears, the previ- 
 ous use of the walk in Its existing condition 
 had been without accident. 
 
 There was some evidence that a portion of 
 the walk on the opposite side of the street, 
 which it is said she should have used, was 
 in about the same condition as this. She 
 was certainly not obliged to take a more cir- 
 cuitous route if she thereby would encounter 
 equal danger. We think that she was not 
 negligent in exercising her undoubted right 
 to the use of the walk in going to her home. 
 / Upon the trial appellant called as a witness^ 
 Harold M. Moyer, a doctor, who testified that 
 <|i.he examined appellee at the instance of ap- 
 pellant to ascertain the existence or nonexist- 
 ence of injuries claimed to exist, and their ex- 
 tent. The object and purport of his testimony 
 was to show, so far as neyvous, spinal, and 
 muscular symptoms of injury were concern- 
 ed, that she was exaggerating or feigning. 
 He testified that such was his belief as to 
 symptoms relative to the spine, and that he 
 examined the spine and muscles and meas- 
 ured the arms. He thought she did not ex- 
 perience the symptoms which she stated. He 
 further stated that he wanted to examine the 
 muscles with a battery, but that she objected 
 to it. He gave as a reason for wanting to 
 make such a test that the battery would show 
 the amount of electricity required to produce 
 contraction of a muscle, and would show, 
 apart from any statement of the patient, indi- 
 cations of health or disease. Appellant after- 
 wards examined as a witness G. W. Nesbit, 
 another doctor, who was present and assisted 
 at Jloyer's examination of appellee; but no 
 testimony was elicited from Nesbit about any 
 proposal to examine appellee with a battery, 
 or any refusal on her part. After appellant 
 had completed its defense, Mrs. M. P. John- 
 son, Dr. Bryant, .Tames Dolan, and appellee, 
 all of whom were present at the examination 
 by Moyer, testified in rebuttal that Moyer did 
 not propose to examine appellee with a bat- 
 tery, and that she did not refuse to permit " 
 such an examination. After the evidence in 
 rebuttal, appellant recalled Dr. Nesbit, and 
 I proposed to have him testify that Dr. Moyer 
 I had a battery there, and that appellee said 
 I that he could not use it on her. On objection 
 this was not permitted, and it Is insisted that 
 this was error. The well-settled rule of prac- 
 tice is that when a plaintiff, holding the af- 
 firmative of the issue, as in this case, has 
 nven all the evidence he proposes to offer in 
 "-upport of the issue, the defendant shall then 
 ntroduce all proof in contradiction of the 
 proof adduced by the plaintiff and establish- 
 
EXAMINATION OF WITITESSES, IN CHIEF. 
 
 [Case No. 151 
 
 ing matters of defense, and tbe plaintiff may 
 then rebut affirmative evidence introduced by 
 defendant. If new and affirmative matter is 
 Introduced in rebuttal, tlie defendant may 
 meet and overthrow it, but that is tbe extent 
 of defendant's right in surrebuttal, and any 
 departure from the rule is matter of indul- 
 gence and discretion in the court, not ordi- 
 narily subject to review. After the defend- 
 ant is fully apprised by plaintiff's e.vidence of 
 the ground upon which a recovery is to be 
 had, if at all, it Is the plain duty of the de- 
 fendant to meet the case made by whatever 
 proof he may have and intend to use. Thomp. 
 Trials, §§ 344-347. It is true that neither 
 party is bound to maintain the credibility of 
 his witnesses until it Is assailed by the 
 opposite party, and some attempt made to 
 Impeach their credibility; and so at any 
 stage of the case, if evidence should be of- 
 fered for no other purpose than to impeach 
 their credibility, the party in interest may 
 support their credibility by additional tes- 
 timony. In the case of Wade v. Thayer, 
 40 Cal. 578, witnesses testified that several 
 persons who had testified to an occurrence 
 were not present at the time of the occur- 
 rence. This was not testimony as to any fact 
 material to the Issue, but was manifestly of- 
 fered only to impeach witnesses by showing 
 that their testimony was manufactured. 
 
 The court say: "The evidence on behalf of 
 the plaintiff to the effect that these witnesses 
 of the defendants were not present, could 
 have been offered for no other purpose than 
 to impeach their credibility, and was compe- 
 tent for this purpose." It is a well-settled 
 ■ rule that a party whose witnesses are sought 
 to be impeached by proof of this character 
 may support their credibility by rebutting ev- 
 idence, and it was held that defendants had a 
 right to show that the witnesses were present. 
 In the case of Richardson v. Lessees of Stew- 
 art, 4 Bin. 198, evidence tending to show an 
 interest rf)f a witness in the subject-matter of 
 a suit was offered, and could have been for 
 no other purpose except to affect his credibil- 
 ity. He had testified that he had no interest, 
 and the court say that the evidence was an 
 attack on his character and that the party 
 had a right to introduce a deed showing that 
 he parted with his interest before he testi- 
 fied. In the present case appellee introduced 
 her evidence of the nature and extent of her 
 injuries. If appellant claimed that she ex- 
 aggerated or feigned the symptoms which 
 she manifested and related, it was important 
 and substantial matter of defense. If she 
 had refused to submit to an examination 
 which would disclose the truth it Avould tend 
 to show that the symptoms were exaggerat- 
 ed or feigned. Appellant had no right to 
 present that defense by piecemeal. The evi- 
 dence rebutting the testimony of Dr. Moyer 
 as to the material fact was not impeaching 
 evidence in any sense, and did nnt tend to 
 discredit him i^ any different manner than 
 
 that In which any contradiction discredits a 
 witness. Here contradiction among witnesses 
 ^as to facts furnishes no basis for attempting^ 
 to prove the fact over again by new wit- 
 nesses. If upon each contradiction a party 
 would be entitled to produce a new witness 
 there would be practically uo limit to their 
 production. Nor was there any element of 
 surprise in the production of the rebutting 
 testimony. When appellant was introducing 
 testimony so damaging to appellee as that of 
 Dr. Moyer, It would necessarily be antici- 
 pated that appellee would meet and contra- 
 dict it if in her power to do so, and the pres- 
 ence of the other witnesses at that examina- 
 tion who could testify as to what occurred 
 there was well known. There was no error 
 In the exclusion of the offered evidence. Itsi 
 admission at that time rested in the discre-J 
 tion of the court. 
 
 The court refused two instmctions prepared 
 by appellant's counsel, both of which de- 
 clared that If the evidence showed the side- 
 walk to be unsafe, and that appellee knew it 
 to be imsafe, then it was her duty to keep 
 off the sidewalk and not go upon it. These 
 instructions were clearly not In accordance 
 with the law. The question whether appel- 
 lee v,as negligent in going upon this walk 
 was one of fact for the jury, and any knowl- 
 edge on her part of its condition was to be 
 taken into account in deciding that question ; 
 but the question itself was for the jury. 
 The court, at the instance of appellant, gave 
 several Instructions presenting In varying 
 language the question upon the evidence 
 whether she was in the exercise of reasona- 
 ble care and caution in going upon and using 
 the sidewalk; and these were correct. In 
 City of Flora v. Naney (111. Sup.) 26 N. E. 
 64.5, error was assigned, upon the refusal of 
 an Instruction stating that the plaintiff would 
 be precluded from a recovery if she went up- 
 on the sidewalk, or continued to walk there- 
 on, after she had observed that it was out of 
 repair. The court say: "But if the plaintiff 
 knew that the sidewalk was out of repair, 
 the law did not require her to go out into the 
 street and pass around the walk. Although 
 a person goes upon a sidewalk knowing it to 
 be out of repair, recovery may be had for an 
 injury received. If ordinary and reasonable 
 care has been used." It was held not error to 
 refuse the instruction. When the present 
 case was before the supreme court It was 
 said: "Whether it was obligatory on plain- 
 tiff to travel over one walk or the other was 
 a question which it was not the province of 
 the court to determine as a matter of law." 
 City of Sandwich v. Dolan, 133 111. 177, 24 
 N. B. 526. 
 
 It is insisted that the court erred In giving 
 an Instruction prepared by appellee as fol- 
 lows: "If the jury believe from the evidence 
 that any witness has willfully sworn falsely 
 on this trial, as to any matter or thing mate- 
 rial to the issues In the case, then the jury 
 
 447 
 
Case No. 151] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 are at liberty to disregard tlie entire testi- 
 mony of such witness except in so far as it 
 has been corroborated by other credible evi- 
 dence or by facts and circumstances proved 
 on the trial." The objections made to this 
 instniction are: First, that the jury would 
 understand it to api)ly to the witnesses for de- 
 fendant only, and that it was therefore erro- 
 neous as only applying to the witnesses on 
 one side and as an intimation that in the 
 judgment of the court they were more to be 
 suspected than those on the other side; and, 
 second, because it did not mention the name 
 of any witness or witnesses. The instruction 
 is not subject to the first objection. It has 
 no more application to the witnesses for one 
 pai-ty than the other, and could not be drawn 
 in more general terms. The second objection 
 is not tenable. While instructions alluding 
 directly to a witness have been sustained, 
 the better practice is doubtless not to direct 
 such an instruction against a particular wit- 
 
 448 
 
 ness or class of witnesses. Insurance Co. v. 
 La Pointe, 118 111. 384, 8 N. B. 353; Thomp. 
 Trials, § 2421. 
 
 The jury might readily understand that in 
 the judgment of the court there was some- 
 thing in the testimony of the witness or wit- 
 nesses named upon which to base the instruc- 
 tion, and to make the general rule peculiarly 
 applicable to such witness or witnesses as 
 distinguished from the others. It is certain- 
 ly not an objection that the court has tailed 
 to make such direct application of the rule to 
 some witness or witnesses. In Martin v. 
 People, 54 111. 225. it is said: ''A court can 
 hardly err in refusing to give any instniction 
 which seems designed to influence a jury as 
 to the credit to be given to particular wit- 
 nesses." Some other minor objections are 
 made to the language of instructions given, 
 but we think the instructions were properly 
 given. The judgment will be affirmed. 
 
 Judgment affirmed. 
 
EXAMINATION OF WITNESSES, IN CHIEF. [Case No. 152 
 
 ROBERTSON v. GRAVER. 
 
 (55 N. W. 492, 88 Iowa, 381.) 
 
 Supreme Court of Iowa. Blay 20, 1893. 
 
 Appeal from district court, Poweshiek coun- 
 ty; A. K. Dewey, Judge. 
 
 Action for breach, of promise of marriage. 
 Jury trial. Verdict and judgment for plain- 
 tiff. Defendant appeals. 
 
 John T. Scott and H. S. Wlnslow, for ap- 
 pellant. Haines & Lyman, for appellee. 
 
 KINNE, J. 1. It Is aveiTed that plaintifiC 
 and defendant, in January, 1891, entered into 
 a marriage engagement; that the marriage 
 was to take place about December 25, 1891; 
 that in Apiil, 1891, the defendant married 
 another woman, and thus put it out of his 
 power to perfoi-m his contract with the plain- 
 tiff. The nnswer admits the marriage of the 
 defendant, and denies the other allegations 
 of the petition. 
 
 J 2. Plaintiff was asked, "Do you know 
 whether or not he [the defendant] bought his 
 father's homestead?" Tlie question was ob- 
 jected to as leading, suggestive, incompetent, 
 and calling for a conclusion. She answered: 
 "Yes, sir; he told me he had bought his fa- 
 ther's place the first time I saw him after he 
 was married." Defendant moved to strike 
 out the answer as incompetent and immate- 
 rial; the statement having been made since 
 the defendant's marriage, and refemng to 
 matters occurring after his marriage. The 
 motion wag overruled. Questions so framed 
 are not necessarily leading. Woolheather v. 
 Risley, 38 Iowa, 486; State v. Watson, 81 
 Iowa, 383, 46 N. W. Rep. 868. It Is some- 
 times permissible to direct the attention of 
 the witness to the particular fact about which 
 infonuation is sought. Graves v. Insiu-ance 
 Co., 82 Iowa, 637, 49 N. W. Rep. 65. The 
 purchase of a homestead was a fact. The 
 question did not call for a conclusion. The 
 niUng was vrithout prejudice, as the same 
 fact was testified to by another witness, and 
 was not disputed. 
 
 3. Plaintiff was also asked, on direct exam- 
 ination, this question: "When you heard that 
 pe was married, how did it affect you?" It 
 Rvas objected to as incompetent and immate- 
 rial, and the objection overruled. She an- 
 swered, "I hated it awful bad." The ques- 
 tion, we thinlc, was proper. It called for 
 facts touching her condition, mental and 
 physical, as a result of the maiTiage. The an- 
 swer, though not in good form, was but one 
 way of expressing the mental condition of 
 tJie witness. Besides, in the course of the 
 trial, the answer was withdrawn fi'om the 
 jury. Other vritnesses were asked questions 
 relating to plaintiff's condition after she had 
 heard of defendant's marriage, thus: "You 
 may state to the jury how it affected her, or 
 how it seemed to affect her." The court held 
 the question was not incompetent, and the 
 witness answered, "She didn't talk about the 
 matter, only she was downhearted." It was 
 
 WILQUS.BV. — 39 
 
 competent to show how, if at all, the de- 
 fendant's marriage affected the plaintiff. Her 
 wounded feelings, mortification, and pain, if 
 any, resulting from defendant's breach of the 
 contract, were all proper to be shown as ele- 
 ments of damage. 
 
 4. Error is assigned on the ruling of the 
 court excluding evidence as to plaintiff's dec- 
 larations made after the mai-riage contract 
 was broken. We think there was no error in 
 these rulings. The questions asked did not in- 
 dicate that they related to expressions of 
 plaintiff as to her feelings towards defend- 
 ant before the breach of the contract. How 
 she felt towards the defendant after he had 
 deceived her, and put it out of his power to 
 fulfill his contract with her, could in no way 
 tend to .show what her feelings towards him 
 were while the engagement lasted. It was 
 not proposed to show that these declarations, 
 though made after defendant's marriage, re- 
 lated to her feelings towards or affection for 
 him during the time the engagement subsist- 
 ed. Moreover, the objection that the matter 
 inquired about was not proper cross-examina- 
 tion was well grounded. 
 
 5. A witness was aslied what the plain- 
 tiff was doing in the way of getting ready to 
 be married. "Do you know anything about 
 Rosa making preparations for marriage?" 
 These questions were objected to as assuming 
 a fact not proven, and the objection was 
 overruled, and the witness answered: "Yes, 
 sir; piecing quilts, and doing fancy work." 
 Prior to the examination of this witness, tes- 
 timony had been introduced, without objec- 
 tion, which showed these and other prepara- 
 tions for marriage. Indeed, there appears to 
 be no conflict in the evidence touching prep- 
 aratio-ns on part of plaintiff for a marriage. 
 In that respect, and in view of the undisput- 
 ed evidence in the case, the ruling was cor- 
 rect. But defendant urges that the questions 
 assumed the existence of the contract of mar- 
 liage, and cites Jones v. Layman, (Ind. Sup.) 
 24 N. E. Kep. 363. The question in that case 
 was: "What declaration, if any, did she 
 make in regard to her disappointment, and 
 refusal of defendant to marry, at the time 
 she showed you the letter?" It will be ob- 
 served that the entire inquiry was based up- 
 on the thought expressed in the question, that 
 defendant had refused to marry the plain- 
 tiff. Again, the question related to a declara- 
 tion made by plaintiff in the absence of de- 
 fendant, after the engagement had been 
 broken. The court held the question objec- 
 tionable for the latter reason, as well as be- 
 cause it assumed a breach of the contract. 
 In the case at bar the evidence called for and 
 elicited related to preparations which plain- 
 tiff was making for a marriage during the 
 continuance of the engagement. Evidence of 
 the conduct of the plaintiff, if it relates to the 
 time covered by the engagement, or to a time 
 when first informed of the fact that her in- 
 tended husband has married another, is ad- 
 missible to prove her consent to the alleged 
 
 449 
 
Case No. 152] PRODUCTION AND EPPECT OF EVIDENCE. 
 
 marriage and contract. We do not think the 
 questions, as asked, were objectionable. 
 
 6. A brother of plaintiff who had testified 
 on direct examination that, while the defend- 
 ant was keeping company with his sister, no 
 one else was going with her, was asked: "Did 
 you not, then, at that house on your father's 
 farm, tell Mr. Graver, the defendant in this 
 case, that yoL.j sister (plaintiff) had made a 
 mash on Shadley there, at John Stil well's?" 
 An objection to the question was sustained 
 on the ground that it was incompetent, im- 
 material, and irrelevant. The evident drift of 
 this question was to show that the witness 
 had made statements to defendant inconsist- 
 ent with his testimony on direct examination. 
 The question was clearly proper. What the 
 answer would have been, of course, . we can- 
 
 ■ not say; but it was proper for defendant to 
 (Show if he could, on the cross-examination, 
 (that he was mistaJcen in his statements made 
 I in his examination in chief. The ruling of 
 / the court placed an undue restriction on the 
 right of cross-examination. 
 
 7. On cross-examination a witness testified 
 that plainttfC had kept company with one 
 Mackey a short time before she began going 
 with defendant. The court, on motion of 
 plaintiff, struck out this evidence as imma- 
 terial and irrelevant. This action is as- 
 signed as error. We think the ruling was 
 right. Defendant's claim seems to be that 
 the conduct of plaintiff in receiving the at- 
 tention of young men prior to the time the 
 defendant began keeping company with her 
 is material to the question of damages. Coun- 
 sel say: "The ease with which the affections 
 became enlisted, the readiness with which 
 she laid down the old to take up the new, 
 and like matters, were proper subjects to be 
 considered, if the amount of damages to be 
 allowed ever becomes Important." If such ev- 
 idence, relating to a time anterior to that 
 when defendant began to seek plaintiff's so- 
 ciety, is ever admissible, surely it is not 
 under the circumstances developed in this 
 examination. There was no evidence that 
 the relations existing between plaintiff and 
 Mackey were other than those usually inci- 
 dent to mere friendly association. It does 
 not appear that it was a case of love at 
 first sight, or otherwise. Their intercourse, 
 so far as appears, was not different from 
 that which exists in all cases of friendship 
 between persons of the opposite sex who do 
 not contemplate marriage. To show such 
 friendly association between plaintiff and oth- 
 er men at a time prior to defendant's seek- 
 ing her society is not material to any ques- 
 tion involved in the case. 
 
 8. On cross-examination, defendant was 
 asked several questions in relation to his 
 property. AU of them were objected to as not 
 being proper cross-examination. The objec- 
 tions should have been sustained. Nothing 
 was asked him on direct examination relat- 
 ing to his property. The questions were foi'- 
 eign to the examination in chief. 
 
 9. Complaint is made that the court ad- 
 450 
 
 mitted certain evidence in rebuttal which 
 was a part of plaintiff's case m chief. As- 
 there was no ruling, we must presume that 
 the objection was waived. 
 
 10. Witness Linn Graver testified with ref- 
 erence to having had a conversation with 
 plaintifC after defendant's marriage. He was 
 asked: "Now you may state whether or not, 
 in that conversation, she said anything in 
 regard to whether she had cared for your 
 brother; that all she wanted was his money." 
 OUie Graver also testified to a similar con- 
 versation. She was asked the following ques- 
 tions: "You may state whether or not, in 
 that conversation, she did or did not say she 
 /had never cared anything for the defend- 
 (ant, Dut ail she was after was his money'.'" 
 "I will ask you whether or not Eosa Robin- 
 son did or did not say, in this conversation, 
 that she did not care if he was married?" 
 "What did she say was her feeling towards 
 the defendant?" These questions were all 
 objected to as incompetent and immaterial, 
 and one of them was also objected to as 
 leading. The objections were sustained. The 
 mUng was proper as to the last two ques- 
 tions. Evidence of the plaintiff's statements 
 or declarations, made soon after hearing of 
 the defendant's marriage, and relating there- 
 to, and expressive of her feelings towards 
 the defendant, as they existed during the 
 term of the engagement and before it is ter- 
 minated, is admissible when it tends to show 
 such feelings as are "inconsistent with any 
 IJurpose to fulfill the engagement in a spirit 
 befitting the relation contemplated by it." 
 One possessed of such feelings would suffer 
 little or no injury by reason of the breach 
 of the contract. But evidence tending to 
 show the feeling of the plaintiff towards the 
 defendant after the breach of the contract, 
 and relating only to that time, is never ad- 
 missible. Miller v. Hayes, 34 Iowa, 49fi; Mil- 
 ler V. Rosier, 31 Mich. 475. A declaration of 
 a woman who claims to have had au rug.igi'- 
 ment of mai-riage, whether made during the 
 existence of the engagement, or after she 
 learns of its breach, that she had not cared 
 for affianced; that all she wanted was his 
 money, — certainly has a tendency to show 
 that her object in seeking the engagement 
 was of a mercenary character; that that love 
 and affection so necessary to the enjoyment 
 of the married state were wholly wanting; 
 and that an engagement consummated un- 
 der such circumstances would be unprofitable, 
 unendurable, and full of contention and sor- 
 row. The first two questions clearly refer 
 to the feeling plaintiff had for the defend- 
 ant before his marriage. Whether she "had 
 cared" or "had never cared" for the defend- 
 ant calls for the condition of her f eeUngs to- 
 wards hun as they existed when she had rea- 
 son to believe that the marriage would in 
 due time be consummated. The last two 
 questions may be said to relate to her feel- 
 ings as they were at the time she made the 
 statements, if any, and hence were properly 
 excluded. 
 
EXAMINATION OF WITNESSES, IN CHIEF. [Case No. 152 
 
 11. Error is assigned on the giving of an 
 instruction to tlie effect that, if the jury found 
 thiit the parties had entered into a marriage 
 contract, the admission by the defendant 
 of his mai-riage to another ■woman would 
 constitute a breach of it, and plaintiff would 
 be entitled to recover. It is said that there 
 Wiis evidence tending to show that the en- 
 gagement had been broken, and that the in- 
 struction assumed that the evidence failed 
 to establisli that fact. There was no issue 
 under which it would have been proper to 
 submit to the jury the question of the 
 abandonment of the contract. It was aver- 
 red by plaintiff that a nianiage contract 
 was made, and it was denied by the de- 
 fendant. Defendant rested his whole case 
 upon the fact that no contract of maiTiage 
 ever existed. The case was tried by the 
 defendant upon that theory. Furthermore, 
 the letter which is claimed shows the aban- 
 donment did not reach defendant until after 
 his marriage. The insti-uctlon, under the is- 
 sues, was correct. 
 
 12, Exception is also taken to an instnio- 
 tion of the court wherein he told the jury 
 
 that in assessing damages they might con- 
 sider, among other things, "personal pain" 
 suffered by plaintiff by reason of the breach 
 Of the contract. It is insisted that "personal 
 pain" means physical suffering, instead of 
 mental distress or mental suffering, and it 
 is said the question of "personal pain" was 
 not In issue. Tlie petition avers "that the 
 plaintiff has been, by the defendant, made to 
 suffer great grief, shame, and mortification, and 
 her affections have beJjn greatly womidod," 
 etc. This court has said that in this class 
 of oases "the distinction between injury to 
 the feelings and affections and personal pain 
 and mortification for disappointment is too 
 shadowy to receive practical recognition." 
 Royal V. Smith, 40 Iowa, 618. Webster de- 
 fines pain as "mental distress; anxiety; grief; 
 anguish." It may well be said that the pain 
 would be "personal," as much so as if it was 
 purely physical. The instruction is imobjec- 
 tionable. 
 
 The many other errors assigned we find 
 to be without merit. For the reasons given, 
 the judgment of the district court is re- 
 versed. 
 
 45i 
 
Case No. 153] PEODUCTION AXD EFFECT OF EVIDENCE. 
 
 COJIMOXWEALTH v. CHANEY. 
 
 (18 N. E. 572, 148 Mass. 8.) 
 
 Supreme Judicial Court of Massachusetts. 
 Essex. Nov. 27, 1888. 
 
 Exceptions from superior court, Essex 
 county; John W. Bacon, Judge. 
 
 Complaint against John Chaney for main- 
 taining, in Gloucester, a building used for 
 the illegal sale or keeping of intoxicating 
 liquors. A witness for the government 
 (Burns) testified that he never had bought 
 cider to be dranli upon the premises, and 
 that he never had bought any cider and 
 drank the same upon the premises; and he 
 was then asked, subject to defendant's ex- 
 ception, "whether he had ever drank cider 
 upon the premises," and "how often he got 
 cider upon the premises." Boyle, another 
 witness, called by the government, testified 
 that he never had bought and drank cider 
 upon the premises; and the court thereupon, 
 against defendant's objection, allowed the 
 witness to be asked "how often he drank 
 cider upon said premises," and "how often 
 he paid for elder which he got there, and 
 which he said he carried away." The wit- 
 nesses were unwilling ones, and the ques- 
 tions were asked by the district attorney as 
 on cross-examination. The jury returned a 
 verdict of guilty, and defendant excepted. 
 
 1\ L. Evans, for defendant. A. J, Water- 
 man, Atty. Gen., and H. A. Wyman, Second 
 Asst. Atty. Gen., for the Commonwealth. 
 
 452 
 
 FIELD, J. One issue of fact was whether 
 the defendant sold In his tenement, during 
 the time alleged In the complaint, cider or 
 native wine, "to be drunk on the premises." 
 Pub. St. c. 100, §§ 1, 27. Evidence that cider 
 and wine were drunk on the premises, by 
 various persons, during this time, was com- 
 petent, in connection with evidence that cider 
 and wine were sold there during the same 
 time, although the occasions were different. 
 The evidence, taken together, had some tend- 
 ency to prove that the tenement was used 
 both for selling and for drinking intoxicating 
 liquor, and the whole evidence may have 
 been sufficient to warrant the jury in find- 
 ing that some of the liquor drank on the 
 premises had been sold there by the defend- 
 ant. The answers given to the questions 
 put to Burns and Boyle do not appear in the 
 exceptions, and therefore it does not appear 
 that the defendant has been prejudiced by 
 the admission of the evidence, even If the 
 questions should have been excluded. The 
 questions were competent in substance, as 
 they called for testimony relating to the 
 drinking or the obtaining of cider upon the 
 premises, presumably diirlng the time alleg- 
 ed. The court could permit the attorney for 
 the commonwealth to put leading questions 
 to these witnesses. The objection does not 
 appear to have been taken that the questions 
 assumed facts of which there was no evi- 
 dence, and apparently the exceptions were 
 not drawn for the pui-pose of presenting this 
 objection. Exceptions overruled. 
 
EXAMINATION OE WITNESSES, IN CHIEF. [Case No. 154 
 
 CURTIS V. BRADLEY. 
 
 (31 Atl. 591, 65 Conn. 99.) 
 
 Supreme Court of Errors of Connecticut. Oct. 
 4, 1894. 
 
 Case reserved fi-om superior court, Fairfield 
 county. 
 
 Action by Lewis F. Curtis against Frederick 
 H. Bradley to recover for moneys advanced 
 by plaintiff to defendant for labor and mate- 
 rials used In tlie construction of defendant's 
 building. Judgment for plaintiff, and motion 
 for a new trial by defendant. Motion denied. 
 
 J. C. Chamberlain and Elbert O. Hull, for 
 appellant. Allan W. Paige and George P. 
 CaiToU, for appellee. 
 
 HAMERSLEY, J. In the summer of 1890 
 the plaintiff sold the defendant a building lot 
 In September of that year the defendant de- 
 cided to have a house erected on the lot. It 
 was then understood that one Simeon E. 
 Plumb, a builder, should build the house, and 
 that the plaintiff, a merchant, should advance 
 the money for the cost of construction. The 
 decision of this case depended on the actual 
 terms of the agreement then made, the de- 
 fendant subsequently claiming that his only 
 agreement was with the plaintiff, and that by 
 such agreement the plaintiff undertook to 
 have the house built for the agreed price of 
 $1,700. Plumb built the house under the di- 
 rections of the defendant. The plaintiff paid 
 to Plumb the amount of all bills for labor and 
 materials as they came due. The house was 
 finished in March, 1891, and the defendant 
 accepted and occupied it. At the time the 
 house was completed. Plumb and the plaintiff 
 went over the labor and other bills, and the 
 account of money paid for the cost of cour 
 struction as charged on the plaintiff's ledger, 
 and at the foot of that account Plumb wrote 
 the following: "I have examined the above 
 account, and find it correct. S. Plumb." The 
 14th of the same month, the plaintiff made 
 a copy of this ledger account, and gave it to 
 the defendant as the bill due from him to 
 the plaintiff, in pursuance of their agree- 
 ment. The defendant examined the bill, ob- 
 tained the labor and material bills, made in- 
 quii'ies among the men who furnished mate- 
 rials whether the prices of the materials were 
 correct, and found that they were correct. 
 The defendant made no objection to the bill 
 rendered as regards amount or price, except 
 the claim that one item of 32 cents was 
 charged twice; but the defendant did object 
 to the total amount of the bill, and refused 
 payment. Subsequently Plumb, as an orig- 
 inal contractor, placed a mechanic's lien on 
 the land upon which the house stood, to 
 enforce payment for its construction, and 
 brought an action against the defendant for 
 the foreclosure of said lien. The plaintiff 
 then brought an action against Plumb to re- 
 cover the money paid for the cost of the 
 house, and garnished the defendant as the 
 
 debtor of Plumb. Subsequently, 'Plumb as- 
 signed to the plaintiff his interest in said me- 
 chanic's lien, and in the sum due from the 
 defendant to Plumb for the construction of 
 the house; and the plaintiff then withdrew 
 his action against Plumb, and became substi- 
 tuted as party plaintiff in the action to fore- 
 close said lien. The action of foreclosure was 
 tried, and in December, 1892, judgment was 
 rendered in favor of Bradley, the present de- 
 fendant. By the record of the judgment, it 
 appeared that the court found that the lien 
 had been made and recorded, and had been 
 assigned to the plaintiff, who became sole- 
 owner, and was the actual and bona fide hold- 
 er and owner of the chose in action; but that 
 the contract for the building of the house had 
 not been made with Simeon Plumb, as al- 
 leged in the complaint; and that neither he 
 nor the plaintiff, as his assignee, was entitled 
 to foreclose the same. After this judgment 
 was rendered, the plaintiff brought the pres-- 
 ent action. 
 
 The complaint follows the form called ther 
 "common counts," authorized for the com- 
 mencement of an action. The counts relied 
 on are those for money paid, goods sold and 
 delivered, goods bargained and sold, and 
 work performed and Fjaterials furnished, un- 
 der which counts a bill of particulars was 
 filed, detailing each item that the plaintiff 
 claimed entered into the cost of the house, 
 and also the count for money due on ac- 
 count stated, under which count the bill ren- 
 dered the defendant in March, 1891, was 
 filed as the bill of particulars. The answer 
 is a general denial. Upon the trial there ap- 
 pears to have been no contest as to the fact 
 that the plaintiff had paid for the construc- 
 tion of the house, and no serious contest as 
 to the accuracy of his account as rendered. 
 The claim of the defendant appears to have 
 been in the alternative,— either the defend- 
 ant's contract was made with the plaintift 
 for a fixed price, or the contract was made 
 only with Plumb, and therefore the plain- 
 tiff has no cause of action against the de- 
 fendant; the position of the defendant un- 
 der the latter claim, which was the one 
 mainly relied on in argument, being that, 
 having induced the court in the former ac- 
 tion to hold that the conti-act was not with 
 Plumb, he had escaped all liability on that 
 ground, and, if he now induced the court to 
 hold that the contract was made with 
 Plumb, he would escape all liability what- 
 ever, and secure his house without any pay- 
 ment, obtaining judicial sanction for the 
 practical theft, under two contradictory 
 judgments. So far as the record shows, the 
 main question at issue was: What agree- 
 ment, if any, had the defendant made with 
 the plaintiff? It was not claimed on the 
 trial that any question of law was involved 
 in the determination of this issue, and the 
 court found from the evidence that there was 
 an agreement between the plaintiff, Plumb,, 
 and the defendant "that Plumb should per- 
 
 453 
 
Case No. 154] PRODUCTION AND EFFEJT OF EVIDENCE. 
 
 form work in erecting a house for the de- 
 fendant on this lot. Plumb, as carpenter, 
 was to work by the day, under the defend- 
 ant's directions, at twenty-five cents an hour, 
 and was to employ other carpenters at the 
 same rate. He was also to order materials 
 and work other than carpenter work for the 
 liouse, and have the bills for the same char- 
 ged to the plaintiff. The plaintiff, at the 
 request of the defendant, agreed to be re- 
 sponsible and liable for all such materials 
 and other work as Plumb should order for 
 the house, and advance the money for tha 
 payment of them, and also to advance 
 money to Plumb from time to time as he 
 might require to meet his weekly pay rolls. 
 The defendant agreed that on the comple- 
 tion of the house, in consideration of the 
 money tlius to be advanced by the plaintiff 
 for the building of said house, and in consid- 
 eration of the building of the same, he would 
 repay the plaintiff the total amount of the 
 moneys so paid out by the plaintiff." Upon 
 these facts, the court rendered judgment 
 that the plaintiff recover of the defendant 
 the sum of $2,974.51, such sum being, as the 
 court found, the total amount paid by the 
 plaintiff in pursuance of that agreement, 
 with interest. From this judgment the de- 
 fendant appeals. 
 
 The appeal contains two distinct grounds 
 for nn appeal from the judgment: 
 
 1. Because the evidence introduced on the 
 trial, and printed in the record, does not sup- 
 port the facts found by the court below, but 
 does support a different state of facts claim- 
 ed by the defendant, and which the court 
 below found were not proved by the evi- 
 dence. The law does not authorize an ap- 
 peal from the judgment of a trial court for 
 such reasons, and this court will not take 
 jurisdiction of such appeal. Styles v. Tyler, 
 64 Conn. 432, 30 Atl. 165. The record dis- 
 closes no reason for the correction of the 
 appeal on the ground that the finding of 
 facts does not fairly present the questions of 
 law actually raised and decided. 
 
 2. Because the defendant is entitled to a 
 new trial on account of errors alleged to 
 iave been made in the admission of evidence. 
 Under this ground of appeal four errors are 
 assigned: 
 
 Fii'st. The plaintiff offered in evidence cer- 
 tain slips of paper, testifying that Plumb 
 came to the store each Saturday during the 
 "building of the house, and gave him the 
 names of the men employed by him during the 
 week, and their time; that the plaintiff wrote 
 down at the time, in the presence of Plumb, on 
 these slips, these names, the hours of time, 
 the amount due each man, the total amount 
 due, and the date; that he paid Plumb the 
 total amount of money called for by each 
 slip, and filed the slip on a spindle; and 
 that he had no personal knowledge of the 
 facts so stated to him by Plumb, and so 
 written by him on the slips, but that he made 
 such memoranda correctly as Plumb then 
 
 454 
 
 stated the facts to be. Plumb had already 
 testified that he had employed these men on 
 the Bradley house, and that the slips of 
 paper were connect statements of the facts 
 of each case as far as he could recollect; 
 that he knew them to be correct when made; 
 and that he had given the names, hours of 
 time, and the amounts to the plaintiff, in the 
 manner that the plaintiff subsequently tes- 
 tified; and that, after deducting his own 
 wages, he paid each man the amount due 
 him. This evidence was offered to prove 
 that the plaintiff had incurred liabilities and 
 paid out moneys upon the order of and as 
 required by Plumb, as agent for the defend- 
 ant, in the manner agreed upon by the par- 
 ties, and to prove the correctness of the items 
 and prices. The defendant objected to the 
 introduction of these slips, and to the tosti. 
 mony of the plaintiff and of Plumb as shown. 
 The com-t admitted the slips, not as them- 
 selves evidence aj^art from the oral testi- 
 mony, but as memoranda made at the time 
 and in the manner shown, and to be used 
 by the witnesses Plumb and Curtis in the 
 manner indicated, the witnesses reading the 
 contents of the slips, and admitted the tes- 
 timony of Curtis and Plumb in connection 
 with them as stated. Said slips were marked 
 as exhibits. 
 
 Second. The plaintiff offered in evidence 
 certain bills, testifying that they were ren- 
 dered him from time to time, and that he 
 went over the bills with Plumb, in the de- 
 fendant's absence, at various times as they 
 came due, while the house was building or 
 upon its completion; that some of these bills 
 were exclusively for materials and work for 
 the defendant Bradley's house, and some con- 
 tained other items not for that house, and 
 Plumb picked out the items of material and 
 work that went into the Bradley house, and 
 stated that the items and prices were correct; 
 that when the designation "Bradley house" 
 was not in the body of the bill when rendered, 
 as it was in many bills, he (the plaintiff) 
 wrote it in at the time in Plumb's presence, 
 and correctly as given to him, and that he 
 also made the check marks appearing on the 
 bills when offered in evidence, to indicate 
 Plumb's assent to the correctness of the items 
 and prices; that these check marks were 
 made in Plumb's presence, and correctly, 
 as then stated by him to the plaintiff; and 
 that he could not recall those items or prices 
 without referring to the bills and memo- 
 randa made on them at the time. Plumb had 
 already testified that he had given the or. 
 ders to the persons thus rendering bills to 
 the plaintiff, and that he had gone over these 
 bills in the manner that the plaintiff testi- 
 fied, and that he had stated to the plaintiff 
 that the items and prices as picked out were 
 correct, and that these items represented ma- 
 terials and labor that had gone into the 
 house, and that he had no recollection of the 
 details of those items independently of the 
 bills and the memoranda upon them, which 
 
EXA.MIXAT10N OF WITNESSES, IN CHIEF. [Case No. 154 
 
 he had seen at the time, and which he then 
 knew to be correct. This evidence was of- 
 fered to prove that the plaintiff had in- 
 curred liabilities and paid out money as re- 
 quired and ordered by Plumb as agent for 
 the defendant, in the manner agreed by the 
 parties, the correctness of the items and 
 prices, and that the materials went into the 
 Bradley house. The defendant objected to 
 the introduction of the bills, and to the tes- 
 timony of the plaintiff and of Plumb as above 
 set forth. The court did not admit the bills, 
 marked and designated as stated, as them- 
 selves evidence apart from the oral testi- 
 mony, but admitted them as memoranda made 
 or seen by witnesses who at the time either 
 had knowledge of their truth or made them 
 upon the statements of one who had such 
 knowledge at the time, and to be used by 
 witnesses in the manner shown, the witnesses 
 reading their contents as marked, and their 
 value depending upon the oral testimony ac- 
 companying them, and admitted the testi- 
 mony of the plaintiff and Plumb as stated 
 above. 
 
 There is no error in the above rulings. The 
 «ourt found that Plumb was authorized by 
 the defendant to perform and to employ the 
 labor on the house, and present his weekly 
 pay rolls to the plaintiff; also, to order other 
 work and materials for the house, and pre- 
 sent the bills for such materials and work to 
 the plaintiff; that the plaintiff was author- 
 ized by the defendant to pay to Plumb such 
 weekly pay rolls, and to pay such bills for 
 materials and work so ordered by Plumb, 
 and charge the amounts of the pay rolls and 
 bills so paid by him against the defendant. 
 The court was bound .to admit the testimony 
 of the plaintiff and of Plumb as to the liabil- 
 ities incurred and the payments made under 
 such authority. The use of the slips and 
 bills made at the time of the transaction, and 
 known to the witnesses to have been correct- 
 ly made, as memoranda to be used by them 
 in connection with their oral testimony, comes 
 within the settled rules of evidence. "A wit- 
 jQess may, while under examination, refresh 
 his memory by referring to any writing made 
 by himself at the time of the transaction con- 
 ^^erning which he is questioned, or so soon 
 jifterwards that the judge considers it likely 
 that the transaction was at that time fresh in 
 his memory. The witness may also refer 
 to any such writing made by any other per- 
 son, and read by the witness within the time 
 aforesaid, if, when he read it, he knew it to 
 be correct." Steph. Dig. Ev. art. 136. "How 
 far papers not evidence per se, but proved 
 to have been true statements of fact at the 
 time they were made, are admissible in con- 
 nection with the testimony of a witness who 
 made them, has been a frequent subject of 
 inquiry, and it has many times been decided 
 that they are to be received. And why should 
 they not be? Quantities and values are re- 
 tained in the memory with great difficulty. 
 If, at a time when an entry of aggregate 
 
 quantities or values was made, the witness 
 knew it was correct, it is hard to see why 
 it is not at least as reliable as the memory of 
 the witness." Insurance Co. v. Weide, 14 
 Wall. 380; Town of Bridgewater v. Town 
 of Roxbury, 54 Conn. 213, 6 Atl. 415. 
 
 The defendant also claims error in marking j 
 the slips as exhibits, on the ground that, if 
 they might properly be read by the witness, | 
 they are not themselves admissible as evi- 
 dence. Courts ' in other jurisdictions have 
 made different rulings as to the admissibility 
 of such a writing. In England it is excluded. 
 In Massachusetts and some other states it is 
 excluded. Costelo v. Crowell, 133 Jlass. 355; 
 Jlorrison v. Chapin, 97 Mass. 72; Duggan v. 
 Mahoney, 11 Allen, 572. In Vermont it seems 
 to be treated as evidence. Lapham v. Kelly, 
 35 Vt. 195. In New York and some other 
 states the writing is admitted as evidence. 
 Guy V. Mead, 22 N. Y. 462, 40 j; Mayor, etc., 
 V. Second Ave. R. Co., 102 N. Y. 572, 7 N. 
 E. 905; Haven v. Wendell, 11 N. H. 112; 
 Kelsea v. Fletcher, 48 N. H. 282; State v. 
 Rawls, 2 Nott & McC. 331; Pearson v. Wight- 
 man, 1 Const. (S. C.) 336; Owens v. State, 67 
 Md. 307, 10 Atl. 210, 302; Milling Co. v. 
 Walsh (Mo. Sup.) 18 S. W. 905. In the fed- 
 eral jurisdiction the question Is still open. 
 In Insurance Co. v. Weide, supra, the court 
 indicates the admissibility of the evidence; 
 but the opinion in Bates v. Preble, 151 U. S. 
 155, 14 Sup. Ct. 277, shows that the court is 
 not committed to the general doctrine that 
 such memoranda are admissible for any other 
 purpose than to refresh the memory of the 
 witness. We do not attempt to cite all the 
 cases bearing on the question, or to weigh 
 the conflicting authorities; for we are satis- 
 fied, on pi-inciple, that the evidence in ques- ' 
 tion is admissible. The discussion would be 
 endless, unless confined to the precise ques- 
 tion presented, which may be stated as fol- 
 lows: The litigated question is, did the plain-i 
 tiff pay to the. agent of the defendant a cer- 
 tain sum on a certain date, as wages due for 
 labor performed by a certain man employed 
 by the agent? The plaintiff and the agent 
 testify that a sum was paid for such purpose; 
 that at the time of payment the agent gave 
 to the plaintiff the exact amount due, and 
 the name of the employe entitled to the same, 
 and the plaintiff then, in the presence of the 
 agent, wrote on a piece of paper the date, 
 the amount, and the name; that these items, 
 as then written by the plaintiff, were correct; 
 that the paper produced in court is the iden- 
 tical paper then written upon by the plaintiff, 
 and since unchanged; that they have no 
 recollection, either before or after examining 
 the paper, of the date, the amount, or the 
 name. Is that paper admissible as evidence? 
 All courts concur in holding that the witness 
 may read the statement of such paper to the 
 jury, and that the jury may draw the con- 
 clusion that the statement so read to them 
 is a true statement of the facts; but some 
 courts hold that the paper is not evidence. 
 
 455 
 
Case No. li4J FKODUCTION AND EFFECT OP EVIDENCE. 
 
 \ 
 
 It seems to us to be pressing tbe use of a 
 legal fiction too far for a court to permit the' 
 statement made by such paper to be read as 
 evidence, while holding that the law forbids 
 the admission as evidence of the paper which 
 is the original and only proof of the state- 
 ment admitted. In other words, it would 
 seem as if, in admitting the paper to be so 
 read, the court, of necessity, admitted the 
 paper as evidence, and therefore, by the con- 
 current authority of all courts, the paper is 
 itself admissible. But, waiving the question 
 whether, in admitting such paper to be read, 
 the courts have gone so far as to make the 
 denial of its admissibility no longer tenable, 
 we will deal with the matter as if wholly 
 undecided. Is the paper itself admissible as 
 evidence? Its admissibility, in the first in- 
 stance, depends on its relevancy. Of this 
 there can he no doubt. Being relevant, it 
 must be admitted, unless excluded under 
 some legal principle or rule of public policy 
 which forbids the admission of certain classes 
 of evidence, no matter how relevant and ma- 
 terial. It cannot be said that the paper is 
 not capable in its nature of being treated as 
 competent evidence. Legal evidence is not 
 confined to the human voice or oral testi- 
 mony; it includes every tangible object cap- 
 able of making a truthful statement, such evi- 
 dence being roughly classified as documen- 
 tary evidence. In oral evidence the witness 
 is the man who speaks; in documentary evi- 
 dence the witness is the thing that speaks. 
 In either case the witness must be competent, 
 — i. e. must be deemed competent to make a 
 truthful statement. And in either case the 
 competency of the witness must be proved 
 before the evidence is admitted; the differ- 
 ence being that in oral evidence the compe- 
 tency is proved by a legal presumption, and 
 In documentary evidence the competency 
 must be proved by actual testimony, aud the 
 further difference that in oral evidence the 
 credit of the witness is tested by his own 
 cross-examination, while in documentary evi- 
 dence the credit of the witness is tested by 
 the cross-examination of those who must be 
 called to prove its competency. 
 
 The competency of this paper is clearly 
 established by the testimony, and It would 
 seem to follow, of necessity, that it should 
 be admitted on the same ground that any 
 relevant and material documentary evidence, 
 proved to be competent, is admitted. The 
 doubt has arisen from the complication of 
 the admissibility of such paper with the 
 right of a witness to refresh his memory. 
 In fact, the two questions may be entirely 
 distinct. The right of a witness to refresh 
 his memory is a settled and necessary rule 
 of evidence. The application of that rule Is 
 often difficult, involying delicate distinctions. 
 We are not called upon now to draw the line 
 which limits the right of a witness to the 
 use of such aids as, under jthe subtle laws 
 of association, serve to refresh his memory. 
 All courts recognize that right, and right- 
 456 
 
 ly hold that the thing used to refresh the 
 memory is not, by reason of such use, itself 
 admissible as evidence. When, in the ap- 
 plication of the rule, a document like the 
 one in question was presented to the wit- 
 ness, and absolutely failed to refresh his 
 memory, its exclusion as a means of refresh- 
 ing his memory became imperative; but the 
 evidence of the document was so clearly es- 
 sential to a fair and just trial that its use 
 in some form seemed also imperative. In- 
 stead of treating the paper as itself com- 
 petent documentary evidence, resort was 
 had to a palpable fiction. The paper is read 
 by the witness, and the knowledge the wit- 
 ness once had of the facts stated by the 
 paper is imputed to him as still existing, and 
 the statement of the paper is received as the 
 testimony of the witness, and the paper it- 
 self, the only witness capable of making the 
 statement, is excluded. The use of such a 
 fiction in the administration of justice can 
 rarely, if ever, be justified. It is certainly 
 uncalled for in this instance. The princi- 
 ples of law invoked to justify the fiction are 
 amply sufficient to support, indeed to de- 
 mand, the admission of the document as evi- 
 dence. There is no occasion to sacrifice 
 truth in order to secure justice. As regards 
 its admissibility as evidence, there is no sub- 
 stantial difference between this paper and 
 any other tangible object capable of making 
 a truthful and relevant statement. It is 
 true that a writing may be a mere decla- 
 ration, and practically equivalent to a spoken 
 declaration, and so be excluded as hearsay 
 evidence. This possibility has played a con- 
 spicuous part in the discussions that have 
 finally resulted in the admission as evidence 
 of account books, whether kept by a clerk 
 or by a party to the suit (a subject closely 
 related to the one in hand, but Involving too 
 large a field to justify an attempt to define 
 that relation). But it is also true that a 
 writing may, by reason of the circumstances 
 under which it was made, be a documentary 
 witness to the fact the paper itself tends to 
 prove, and this, although the particular writ- 
 ing may also in a certain sense be a declara- 
 tion. Indeed, nearly all documentary evi- 
 dence is in a certain sense a declaration; 
 yet it is admitted as a witness, not of a dec- 
 laration, but of a fact. We think this pa- 
 per is admissible as a documentary witness. 
 Suppose the litigated question turns on the 
 dimensions of a man's foot. A witness pro- 
 duces a plaster cast of the foot. The testi- 
 mony conclusively shows that the cast was 
 so taken that it can state accurately the 
 dimensions of the foot. Another witness 
 produces a paper on which the exact meas- 
 urements are written. The testimony con- 
 clusively shows that the paper also was so 
 made that it can state accurately the dimen- 
 sions of the foot. Is it not evident that the 
 paper and the cast is each a witness to the 
 fact that each tends to prove? How does 
 the paper now In question differ? Upon this 
 
EXAMINATION OP WITNESSES, IN CHIEF. 
 
 [Case No. 154 
 
 paper was stamped an accurate delineation 
 of existing facts. In the one case the fact 
 stated by the document relates to a physical 
 object, and in the other to a mental object; 
 but in both cases the fact is clearly rele- 
 vant and accurately stated by the document. 
 It Is Immaterial whether or not a critical 
 analysis may Impute to these documents, to 
 a greater or less degree, some element of a 
 declaration; the controlling principle of law 
 is not based on such refinements. If there 
 is any element of a declaration, it does not 
 make the document in a legal sense a decla- 
 ration. The conditions required by law to 
 make such documents legal evidence are: 
 The substance offered as a witness must be 
 proved to have been made or found and pre- 
 served in such manner that it states direct- 
 ly, accurately, and truly a fact relevant and 
 material to the issue. The paper claimed 
 as evidence in this case fulfills these condi- 
 tions. 
 
 In the discussions on the admissibility of 
 account books, it has often been assumed 
 that such books are decfarations, and are 
 admitted as exceptions to the class of hear- 
 say evidence. Without stopping to consid- 
 er whether such ground for the admission of 
 account books is logically accurate, and, if 
 so, whether the same reasoning applies to 
 ihis paper, we will assume that it may be 
 classed as hearsay evidence. It should then 
 be admitted as an exception to the rule ex- 
 cluding such evidence. The limits of the 
 field covered by the term "hearsay evi- 
 dence" are so uncertain, and the exceptions 
 are so many and important, that it is often 
 very difficult to draw the distinction be- 
 tween those matters that are admitted as 
 not subject to the rule and those that are 
 subject to the rule, but excepted from its 
 operation. It is significant that most mat- 
 ters supposed to be covered by the rule, 
 whose relevancy and materiality come to be 
 recognized as so close and clear that their 
 admission seems essential, come to be class- 
 ed as exceptions to the rule. If this paper 
 must be classed as a declaration and hear- 
 say evidence, it must also be classed as an 
 exception to the operation of the rule. The 
 reasons on which the rule is founded plain- 
 ly do not apply to such evidence, and the ar- 
 guments adduced in support of the admis- 
 sibility of this paper as original evidence are 
 sufficient to demonstrate that it does not 
 come within the reason of the rule exclud- 
 ing hearsay evidence. Whether this paper 
 is not within the scope of hearsay evidence 
 or, being hearsay evidence, is excepted from 
 the operation of the rule, as not within its' 
 reason, is immaterial so far as concerns the 
 question of admissibility, though the distinc- 
 tion may be quite material as affecting the 
 symmetry of the law of evidence, and the 
 clear understanding of the underlying prin- 
 ciples that must control the development of 
 that law. It does not, however, necessarily 
 follow from the admissibility of such evi- 
 
 dence that the document should be sent to 
 the jury room. Under the general rule of 
 practice, the jury must depend on their mem- 
 ory in the case of oral testimony, but may 
 take documentary evidence to their consul- 
 tation. But there is a difference in docu- 
 mentary evidence. Some is not given to the 
 jury, either because its possession is agreed 
 to be of no consequence or is inconvenient, 
 or the document is of such a nature that it 
 testifies to facts not relevant, in addition to 
 the relevant facts. It might be claimed in 
 the case of some writings offered in proof 
 of the facts stated by the writing that a 
 jury would confuse the effect to be given 
 such writing with the peculiar effect some- 
 times given to a record or a deed, and so 
 give an illegal weight to the evidence. 
 Possibly, some such consideration may have ' 
 had influence in keeping such writings from 
 the jury; but, whatever force such a consid- 
 eration may once have had, it is entitled to 
 little weight under the present policy of the 
 law, which tends to submit to the jury all 
 relevant and material evidence, and even 
 trusts them to discriminate the allowance 
 to be made for the interest of a party to the 
 suit, or the character of a convicted felon. 
 If the writing admitted in evidence clearly 
 tends to prove nothing but the fact that it 
 was admitted to prove, it should go to the 
 juiy. If, by reason of peculiar circumstan- 
 ces, it clearly may be treated by the jury 
 as evidence of other facts not admissible, 
 it should not go to the jury. Between the 
 two extremes the question is largely one of 
 discretion in the trial judge. 
 
 In the present case it is clear that the writ- 
 ing could only be used for its legitimate pur- 
 pose, and that the court did not err in mark- 
 ing it as an exhibit The conditions under 
 which the general question we have dis- 
 cussed may arise are so various, and the dif- 
 ferent principles that may be involved in 
 each case are so related, that there is special 
 need to confine the application of the views 
 expressed strictly to the particular question 
 presented in this* case. The only point now 
 decided is: A memorandum of details which 
 are essential to the full proof of a transac- 
 tion at issue, proved to have been made sub- 
 stantially at the time of the transaction, and 
 under such circumstances that the memo- 
 randum can make a correct statement of such 
 details as they were then known to the per- 
 son who made the memorandum or saw it 
 made, and who is himself a witness and tes- 
 tifies to the transaction, but has lost all rec- 
 ollection of such details, is, in connection 
 with the testimony of such witness, admis- 
 sible as evidence, because such memorandum 
 is in itself evidence of a fact closely rele- 
 vant, plainly material, and essential to a just 
 trial, and because no principle of the law of 
 evidence or rule of public policy justifies its 
 exclusion; and such memorandum may prop- 
 erly be marked as an exhibit. 
 
 Third. The persons rendering the bills 
 
 457 
 
Case Xo. IM] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 above mentioned testified tliat the bills as a 
 whole wei'e correct as regards amounts and 
 prices, and that, when the body of the origi- 
 nal bill indicated what items went to the 
 Bradley house, those Items of material and 
 labor were ordered for that house by Plumb. 
 The defendant- excepted to the admission of 
 the testimony of these persons. The error 
 assigned by the defendant is that the court 
 erred in allowing the evidence of the par- 
 ties furnishing this material, to the effect 
 ■"that, where the body of the original bill in- 
 dicated what item went to the Bradley house, 
 Ihese items of materials and labor were or- 
 dered for that house by Plumb." The fact 
 that the money paid by the plaintiff was 
 paid for materials used in building the house, 
 and ordered for that purpose by Plumb, as 
 tJio agent of the defendant, was a fact in is- 
 sue; and the testimony of the persons from 
 whom it was claimed that Plumb had so or- 
 dered such materials, that he had in fact or- 
 dered the same, was relevant to that issue. 
 The use by such witnesses in their testimony 
 of the bills made by them at the time, in 
 pursuance of such orders from Plumb, and 
 of the written memoranda made by them at 
 the time to the efCect that Plumb, the agent 
 of the defendant, ordered the materials speci- 
 fied for the defendant's house, is plainlj^ au- 
 thorized by law. 
 
 Fourth. The plaintiff offered the record of 
 458 
 
 the judgment above mentioned, in the case 
 of Curtis, assignee of Plumb, against Brad- 
 ley, for the purpose of showing that in this 
 case the defendant was estopped from claim- 
 ing that the contract for the erection of the 
 house was made with Plumb. The court 
 admitted the record against the objection of 
 the defendant. The fact that this contract 
 for the construction of the house was not 
 made with Plumb was one material fact at 
 issue in this case, and the plaintiff was en- 
 titled to show that the defendant was es- 
 topped from claiming that the contract was 
 msde with Plumb. It is not claimed that 
 the record of a judgment in a case between 
 the same parties, which appears on its face 
 to have adjudicated a matter in issue be- 
 tween them in a subsequent action, is iiot 
 admissible in the latter suit in support of a 
 claim of estoppel; but the claim is that in 
 this case the parties to the record offered 
 were not the same as the parties to the pres- 
 ent suit. This claim has no foundation in 
 fact. The plaintiff in this suit was the ac- 
 tual plaintifl' in th^ former action, and, more- 
 over, was substituted for the nominal plain- 
 tiff, and by such substitution became also 
 the plaintiff of record. Gen. St. §§ 981, 887- 
 889; Buckingham's Appeal, 60 Conn. 1-13, 22 
 Atl. 509. 
 
 A new trial is denied. The other judges 
 concurred. 
 
 >V 
 
CROSS-EXAMINATION. 
 
 [Case No. 155 
 
 BOHAN V. BOROUGH OF AVOCA. 
 
 (26 Atl. 604, 154 Pa. St. 404.) 
 
 Supreme Court of Pennsylvania. May 1, 1893. 
 
 Appeal from court of common pleas, Lu- 
 cerne county; Rice, Judge. 
 
 Action in trespass by Paul Boban against 
 the borough of Avoca for damages to plain- 
 tiff's lot resulting from the construction of 
 gutters along defendant's street, and thus 
 conducting the surface water from a large 
 territory to the lot. Plaintitf had judgment, 
 and defendant appeals. Affirmed. 
 
 Tfhe Points Which were Submitted in Writ- 
 ing to the Court Below, and the Answers 
 Thereto. 
 
 "The plaintifC asked the court to charge 
 the jury as follows: '(1) If the jury believe 
 that the defendant borough, in constructing 
 its gutters, caused the surface water of a 
 large territory, which did not naturally flow 
 in that direction, to be gathered into a body, 
 and precipitated on plaintiff's premises, to 
 the Injury of the plaintifC, defendant is lia- 
 ble, and plaintiff is entitled to recover,' We 
 answer that point in the affirmative. 
 
 "Defendant's counsel request us to charge; 
 
 " '(1) That no recovery can be had in this 
 •case unless the jury are convinced by the 
 testimony presented that the quantity of 
 water flowing down Main street through the 
 <;ulvert upon the property of the plaintiff 
 has been increased, and that such increase 
 has given to it a greater force of destruc- 
 tiveuess, and that in consequence of the 
 same the plaintiff's property has been in- 
 jured.' This point is affirmed. 
 
 " '(2) That, if the increase in the volume 
 and destructiveness of said water is due to 
 the change o"f the grade of the street, and 
 not to the construction of the gutters, the 
 plaintiff is not entitled to recover.' This 
 point is affirmed. 
 
 " '(3) That in determining whether or not 
 there has been any increase in the volume 
 of water since the construction of the gut- 
 ters, it is the duty of the jury to make com- 
 parison upon the theory that the street and 
 its gutters were kept in proper order, and 
 ■unobstructed, before the paved gutters were 
 constructed.' As explained by the counsel 
 In his argument to us, we affirm that point. 
 What we understand is meant by this is that 
 a comparison is to be made between the flow 
 of water in the present condition of the gut- 
 ter with the flow of water ordinarily, prior 
 to the placing of the gutters there. In other 
 words, the comparison is not to be made be- 
 tween the present flow of water in the gut- 
 ter and through the culverts, with the flow of 
 water when the street or water courses, prl- 
 -or to the placing of the gutters there, were 
 temporarily obstructed. 
 
 " '(4) The allegation in this case being that 
 the alleged injury to the property of plain- 
 tiff was caused by paved gutters constructed 
 by the borough, plaintiff was bound to prove 
 
 that said gutters were constructed pursuant 
 to legislation on part of said borough, and, 
 there being no legitimate proof presented to 
 establish any such legislation, the plaintiff la 
 not entitled to recover.' We decline to charge 
 as requested in that point' We think there 
 is evidence from which a jury would be war- 
 ranted in flnding that the gutters were con- 
 structed by the borough. 
 
 " '(5) That the plaintiff cannot recover any 
 damages for any injury to his property which 
 he might have avoided by the exercise of or- 
 dinary care, either in respect to the past or 
 to the future.' This is affirmed. 
 
 " '(6) That the jury, if they find that the 
 defendant is liable in this action, may adopt 
 as the measure of damages the expense of 
 protecting the property with a wall or pipe 
 from injury on account of the water flow- 
 ing through the ravine.' This is affirmed." 
 
 Specifications of Error. 
 
 "First. The court erred In oven-uling the 
 defendant's objection to questions of plain- 
 tiff's counsel on the cross-examinetion of de- 
 fendant's witness as to who authorized the^ 
 work of constructing the gutters,— a fact not' 
 alluded to in chief, and provable by the rec- 
 ord of council proceedings alone,— which said 
 ruling, testimony, and questions ar.e as fol- 
 lows; 'Question. Done by the borough while 
 you were burgess? A. No, sir. (Objected 
 to. Objection overruled.) Defendant's coun- 
 sel states the objection as follows: (1) Be- 
 cause it is not cross-examination. (2) It is 
 a part of plaintiff's case in chief, and can be 
 proved only by the records of the council, 
 whether it was done by the borough or not. 
 (Objection overruled, and bill sealed for de- 
 fendant.) Q. Do you swear that it was not 
 done by the borough, — that the borough did 
 not employ Mr. Westfield to do the work? A. 
 It was done under the jurisdiction of the bor- 
 ough, but the people paid the money. Q. 
 Who employed Mr. Westfield to do it? A. 
 The town council.' 
 
 "Second. The court ei-red in refusing to af- 
 firm defendant's point number four, which 
 reads as follows: 'Point 4. The allegation 
 in this case being that the alleged injury to 
 the property of plaintiff was caused by paved 
 gutters constructed by the borough, plaintiff 
 was bound to prove that said gutters were 
 constructed pursuant to legislation on the 
 part of said borough, and, there being no legit- 
 imate proof presented to establish any such 
 legislation, the plaintiff is not entitled to re- 
 cover. Answer of the Court: We decline 
 to charge as requested in that point. We 
 think there is evidence from which a jury 
 would be warranted in finding that the gut- 
 ters were constructed by the borough.' " " 
 
 P. A. O'Boyle and F. M. Nichols, for appel- 
 lant. C. F. Bolian and John T. Lenahan, for 
 appellee. 
 
 STERRETT, C. J. One of the specifica- 
 tions in this case is refusal of the court to 
 
 459 
 
Case. No. 155] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 sustain objections to questions put, on cross- 
 examination of defendant's witness, tor the 
 purpose of showing that the gutters alleged 
 to have caused the injury complained of 
 were constructed by the defendant borough, 
 or under its authority. The objections were 
 (a) that tlie ^xuestions were not proper cross- 
 examination, and (b) that the fact sought to 
 be proved was part of plaintiff's case in chief, 
 and could be proved only by the records of 
 the borough council. The court having over- 
 ruled said objections, the witness testified in 
 substance that the work of constructing said 
 gutters was done under the supervision of 
 the borough authorities, and paid for by the 
 property owners. In his examination in 
 chief the witness was not asked, nor did he 
 expressly say, by whom the grading and gut- 
 tering in question were done, but he testified 
 as to the physical nature of the street along 
 which the gutters were made, the effect of 
 their construction on plaintiff's property, etc.; 
 and such was the general character and 
 scope of his testimony in chief that it might 
 be fairly inferred that the work was done by 
 or under the direction of the municipal au- 
 thorities. In view of the circumstances, we 
 cannot say there was error in permitting the 
 cross-examination complained of. While, as 
 a geners^l rule, it is improper to permit a de- 
 fendant to interject his defense under guise 
 of cross-examination of plaintiff's witness, 
 and vice versa, the range of a cross-examina- 
 tion must, to a v ery great extent, be left to 
 the sound dtscreHon of the trial j ud^e: an? 
 unless that discretion has been plainly 
 abused, to the injury of the party complain- 
 ing, it is not ground for reversal. In .lack- 
 son V. Litch, 62 Pa. St. 451, it was held that, 
 in order to reverse for this cause, it must be 
 ' an extreme case in which the discretion has 
 been abused, and in which it is apparent the 
 party has been injured; and also, where a 
 witness has stated a fact, he may be asked 
 by the other party to detail all the circum- 
 stances within his knowledge which qualify 
 it, though they may be new matter and form 
 part of his own case. As was said in Bank 
 V. Fordyce, 9 Pa. St. 277: "A party is enti- 
 tled to bring out every circumstance relating 
 to a fact which an adverse witness is called 
 to prove." In this case there was no abuse 
 of the discretion with which the trial judge 
 was Invested; nor do we think the defend- 
 
 460 
 
 ant was prejudiced by the fact elicited on 
 the cross-examination. An examination of 
 plaintiff's testimony shows that fact was ei- 
 ther recognized or assumed by witnesses as 
 well as the parties. One of plaintiff's -wit- 
 nesses was asked if he remembered "when 
 Main street was graded by the borough," and 
 "when they paved the gutters along there," 
 and his answer was, "Yes, sir." Even if the 
 plaintiff had closed his case without intro- 
 ducing any testimony from which the jury 
 would have been warranted in finding the 
 fact, the court, in order to prevent a miscar- 
 riage of justice, would not have refused to 
 permit the plaintifC to call witnesses out of 
 order and prove it. 
 
 The only other specification of error is the 
 refusal of the court to affirm defendant's 
 fourth point for charge recited therein. In 
 declining to charge as requested, the learned 
 judge rightly held there was "evidence from 
 which a jury would be warranted in finding 
 that the gutters were consti-ucted by the bor- 
 ough." The authority of the borough to do 
 so was not, and could not have been, ques- 
 tioned. In view of the evidence, it was for 
 the jury to say wliether the proper borough 
 authorities did or did not construct or su- 
 perintend their construction, etc. It is well 
 settled that the acts of a. municipal corpora- 
 tion may be proved otherwise than by Its rec- 
 ords or some written document. Dill. Mun. 
 Corp. I 300; Bank v. Dandrldge, 12 Wheat 
 64. In affirming plaintifC's first point, the 
 learned judge rightly instructed the jury 
 that, if they believed the "defendant bor- 
 ough, in constructing its gutters, caused the 
 surface water of a large teiTltory, which did 
 not naturally flow in that direction, to be 
 gathered into a body, and precipitated on 
 plaintiff's premises, to the Injury of the plain- 
 tiff, defendant is liable, and plaintiff is enti- 
 tled to recover." The evidence tended to 
 prove the facts of which this proposition is 
 predicated, and by its affirmance plaintiff's 
 case was fairly presented to the jury. On 
 the other hand, by the affirmance of defend- 
 ant's first, second, third, fifth, and sixth 
 points, every necessai-y precaution was tak- 
 en to properly indicate the limits within 
 which the jury should act. An examination 
 of the record discloses no error that would 
 warrant us In disturbing the judgment. 
 Judgment affirmed. 
 
CROSS-EXAMINATION. 
 
 [Case No. 156 
 
 PHILLIPS et al. v. TOWN OF MARBLE- 
 HEAD. 
 
 (19 N. E. 547, 148 Mass. 326.) 
 
 Supreme Judicial Court of Massachusetts. 
 Essex. Jan. 4, 1889. 
 
 Exceptions from sujperior court, Essex coun- 
 ty; Jclin Lathrop, Judge. 
 
 Petition by Emily A. Phillips and others for 
 the assessment of damages for taking their 
 land in the town of Marblehead for a street; 
 the taking being alleged to have occurred 
 March 6, 188G, and July 27, 1886. Mason, a 
 ■witness for petitioners, who was about 45 
 years of age, and had always lived in that 
 town, testified that he did not own real estate 
 in the town, nor had he bought or sold real 
 estate therein; that he had for several years 
 advised his father, or, rather, his father, who 
 had bought and sold real estate in the town, 
 had advised him; that he had heard of a 
 great many of the sales of real estate in the 
 town in the last five or ten years, and at the 
 time of such sales he heard of some of the 
 prices paid; that he heard of the sale of the 
 Gerry-Street lots, and other land near that of 
 petitioners, and of similar character, and had 
 heard of some of the prices, but could not 
 now give the price at which any particular 
 lot sold; that he had been a collector of taxes 
 in said town, and had in one instance acted 
 as an appraiser of real estate; that he was 
 familiar with petitioners' land, having known 
 it all his life; that he had heard of sales and 
 prices of land upon Chestnut street, which ex- 
 tends north and south the entire length of the 
 petitioners' land, and is about 100 feet dis- 
 tant therefrom, but could not tell of any par- 
 ticular sale; that he thought he had a judg- 
 ment as to the fair market value of real es- 
 tate in said town, and as to the fair market 
 value of the land taken from the petitioners 
 for said street, as aforesaid; and thereupon 
 the petitioners asked him what, in his judg- 
 Iment, was the fair market value upon July 
 1 27, 1886, of the land taken from the petition- 
 (ers for the laying out of the street. The court 
 excluded the question, upon the ground that 
 the witness was not qualified as an expert 
 to express an opinion as to the market value 
 of the land, remarking that "there must be 
 better evidence to be had." Wyman, who 
 owned a considerable tract of land known 
 as the "Bessom Farm," adjoining the peti- 
 tioners' tract, and of the same general char- 
 acter, testified to the value of the land taken 
 from petitioners; and upon cross-examina- 
 tion testified that the Bessom farm, adjoin- 
 ing that of the petitioners, was worth $2,000 
 or .l!2,500 per acre. Thereupon respondents, 
 against the petitioners' objection and excep- 
 tion, were allowed, solely as bearing upon 
 the question of the bias or fairness of the 
 witness, to place in his hands a written 
 statement dated about June, 1886, and di- 
 rected to the assessors, signed and sworn to 
 by witness, and to ask him from that to 
 say what in that he valued his said land ad- 
 
 joining that of petitioners; and he replied, 
 "One hundred dollars per acre," and added 
 that he so valued it, and it was so under- 
 stood, for its agricultural purposes only. 
 Respondents called as a witness one Martin, 
 a member of the board of selectmen of the 
 town in the year 1886. Martin, upon direct 
 examination, testified that the petitioners* 
 land, including that taken, was worth $200 
 to $300 per acre, and no more; and that the 
 petitioners' remaining land was largely ben- 
 efited by the laying out of the street. Up- 
 on cross-examination he testified that the 
 petitioners had, in his judgment, sustained 
 damage to the amount of $300, and no more. 
 Petitioners then offered in evidence, solely 
 for the purpose of contradicting him, the 
 record of the board of selectmen made Ju- 
 ly 27, 188G, showing the laying out of the 
 street, and the damages therefor, signed by 
 Martin, together with the remaining mem- 
 bers of the board; which record contained 
 the statement that petitioners had sustained 
 damage by the taking of their land to the 
 amount of $553, and awarded to them that 
 sum. The record was excluded, and peti- 
 tioners excepted. Verdict for respondents, 
 and petitioners filed exceijtions. 
 
 F. L. Evans, for petitioners. W. D. North- 
 end, for respondents. 
 
 FIELD, J. Whether a person who is of- 
 fered as a witness is shown to be qualified to 
 give an opinion upon the value of laud must 
 be left largely to the discretion of the pre- 
 siding judge. We cannot say, upon the evi- / 
 deuce recited in the exceptions, that Mason I 
 was not rightly excluded as a witness to 
 value. The case shows that there was no 
 difficulty in obtaining witnesses whose quali- 
 fications were unquestioned, and this fact 
 was properly considered by the presiding 
 judge in deciding to exclude him. Tucker 
 V. Railroad Co., 118 Mass. 548. It was also, 
 we think, within the discretion of the pre- 
 siding judge to admit the question which 
 was put to Wyman by the respondents, on 
 cross-examination, to which the petitioners 
 objected. As Wyman's land was adjoining 
 to and of the same general character as 
 that of the petitioners, sales of it would be 
 competent to prove the value of the petition- 
 ers' land, but the opinion of witnesses upon 
 the value of Wyman's land would not be 
 competent to prove the value of the petition- 
 ers' land. Wyman v. Railroad Co., 13 Mete. 
 (Mass.) 316, 327; Shattuck v. Railroad Co., 
 6 Allen, 115. When, therefore, the respond- 
 ents asked the witness Wyman his opinion 
 of the value of his own land, the question 
 might have been excluded. The inquiry 
 was immaterial and irrelevant, except, per- 
 haps, for the purpose of testing the weight 
 of the opinion of the witness as to value. 
 The question, however, having been answer- 
 ed without objection, the respondents could 
 not have been permitted to contradict th*. 
 
 461 
 
Case No. 156] PKiODUCTION AKD EFFECT OF EVIDENCE. 
 
 answer by tlie testimony of other witnesses, 
 or by other evidence than the testimony of 
 the witness himself. Immaterial or irrele- 
 vant issues cannot be raised and tried in 
 this manner. Shurtleff v. Parker, 130 Mass. 
 293; Fletcher v. Railroad Co., 1 Allen, 9. 
 But the -extent to which the cross-examina- 
 tion of a witness as to credit may be carried 
 must be left largely to the judge presiding 
 at the trial, and if matters which are merely 
 immaterial, or which tend to show the rea- 
 sons of the witness for his opinions or his 
 fairness of mind, are admitted in cross-ex- 
 amination, there is, as a general rule, no ex- 
 ception. Considerable latitude should be 
 allowed in cross-examining witnesses to val- 
 ue, in order that the grounds of their opin- 
 ion may appear. Prescott v. "Ward, 10 Al- 
 len, 203; Smith v. Castles, 1 Gray, 108. 
 
 The record of the board of selectmen, of 
 whom Martin was one, was offered for the 
 purpose of contradicting the testimony of 
 Slartin. The fact that the record or certifi- 
 cate was signed by Martin, as well as by 
 the other selectmen, did not show that the 
 amount of the damages awarded was the 
 sum which JXartin, acting on his own judg- 
 ment, thought ought to have been awarded. 
 Selectmen have no clerl^, and their doings 
 can only be certified by their own signa- 
 tures, and the certificate purported to give, 
 not the opinion of the selectmen individual- 
 ly, but the judgment of the board, which 
 might be the judgment of a majority only 
 of a quorum of the board. Besides, in ev- 
 ery judicial or quasi judicial determination 
 462 
 
 of damages by a board composed of more- 
 than one person, there must be compromises, 
 of individual opinion, in order that any re- 
 sult may be reached; and a judicial body 
 must give some weight to e'vldence, and can- 
 not act solely upon the personal knowledge 
 of its members, when evidence is produced 
 before them. Either, then, the record should 
 have been excluded, or, if admitted, Martin 
 and the other selectmen should have been 
 permitted to testify to the part taken, and 
 to the opinions expressed by Martin in the 
 deliberations of the selectmen which result- 
 ed in the award. While the deliberations of 
 legislative bodies are usually public, the de- 
 liberations of judicial or quasi judicial bod- 
 ies are private; and there are reasons of 
 public policy why they should not be made 
 public, particularly wlien the purpose to be 
 sei'ved is comparatively unimportant. Grand 
 and petit jurors are not permitted to testi- 
 fy to opinions concerning the case, expressed 
 in their consultations with each other, and 
 arbitrators are not permitted to testify to 
 the grounds on which they reached the con- 
 clusions declared in the award. Com. v. 
 White, 147 Mass. 76, 16 N. E. 707; Wood- 
 ward V. Leavitt, 107 Mass. 453; Bigelow v. 
 Maynard, 4 Cush. 317. 
 
 For the purpose of contradicting a wit- 
 ness, we think that evidence ought not to be 
 ) received of the deliberations of selectmen 
 acting in a quasi judicial capacity, and that 
 the certificate of the doings of the board ot 
 selectmen was rightly excluded. 
 
 Exceptions overruled. 
 
CROSS-EXAMINATION. 
 
 [Case No. 157 
 
 HOME BENEFIT ASS'N v. SARGENT. 
 
 (12 Sup. Ct. 332, 142 U. S. 691.) 
 
 Supreme Court of the United States. Jan. 26, 
 1892. 
 
 In error to the circuit court of the United 
 States for the Southern district of New Yoi-lv. 
 
 Action by Henrietta P. Sargent against 
 the Home Benefit Association on a policy of 
 life insurance. Verdict and judgment for 
 plaintiff. Defendant brings error. Affirm- 
 ed. 
 
 A. G. Pox and Francis Lawton, for plaintiff 
 in error. Miron Winslow, for defendant in 
 error. 
 
 Mr. Justice BLATCHPORD delivered the 
 opinion of the court. 
 
 This is an action at law, brought In the 
 circuit court of the United States for the 
 Southern district of New York by Henrietta 
 P. Sargent, a citizen of Massachusetts 
 against the Home Benefit Association, a life 
 insurance association Incorporated by the 
 state of New York, to recover the sura of 
 $5,000, with interest from March 15, 1887, 
 upon a policy of life insurance issued by tlie 
 defendant September 5, 1885, on the life 
 of Edward P. Hall, Jr., for the benefit of the 
 plaintiff, who was his sister. 
 
 Hall was made by the policy an accept- 
 ed member of the life department of the de- 
 fendant. By one of the conditions in the 
 policy it was provided that "death of the 
 member by his own hand or act, whether 
 voluntary or involunt.ary, sane or insane at 
 the time," was a risk not assumed by the 
 defendant under the policy. 
 
 The complaint alleged that the policy was 
 in. force on the 19th of October, 1886, when 
 Hall died at the city of New York, and that 
 his death was not caused by any of the 
 causes excepted from the operation of the 
 policy. It was set up in the answer as a 
 defense that the death of Hall was brought 
 about by his own hand and act, in that he 
 died from the immediate effect of a shot 
 from a pistol fired by his own hand, such 
 shot having been fired by him with the in- 
 tention of taking his own life. 
 
 The case was tried before Judge Coxe and 
 a jury, which rendered a verdict for the 
 plaintiff for $5,350. A motion for a new 
 trial was made before Judge Coxe, and was 
 denied,— the opinion of the court thereon be- 
 ing reported in 35 Fed. 711,— and a judgment 
 was thereafter rendered in favor of the 
 plaintiff for $5,350, with Interest and costs; 
 the whole amounting to $5,517.99. To re- 
 view that judgment the defendant has 
 brought a writ of error. 
 
 By the bill of exceptions it appears that, 
 after the plaintiff rested her case, the de- 
 fendant moved the court to direct a verdict 
 for it, on the ground that the plaintiff had 
 failed to show that she ever had presented 
 to It, in accordance with the provisions of 
 
 the policy, satisfactory evidence of Hall's 
 death; but the court denied the motion. 
 The defendant excepted, and then proceeded 
 to put in evidence on its part. After it had 
 rested, the plaintiff put In rebutting evi- 
 dence on her part, and then the defendant 
 put in further evidence. It is not stated in 
 the bill of exceptions that it contains all the 
 evidence; but it is set forth at the close of 
 what does appear that the defendant moved 
 the court to direct a verdict for the defend- 
 ant, on the ground that the evidence showed 
 that Hall died by his own hand. The court 
 refused to do so, and the defendant except- 
 ed. 
 
 Parts of the charge of the court to the jury- 
 are set forth, and it is stated that tlie court 
 charged the jury as to all other features 
 of the case fully and in such manner that 
 no exception was taken thereto, and that 
 the portions of the court's charge to the 
 jury which are not set forth did not in any 
 wise bear on or relate to any matters con- 
 tained in the defendant's requests to charge, 
 hereinafter referred to. 
 
 Among the instructions of the court to the 
 jury were the following: "The only ques- 
 tion upon this proof is, did Edward F. Hall 
 commit suicide? If he did, the policy is 
 void. If he died in some other way — by 
 accident or assassination— it would be other- 
 wise. Upon that issue, the burden is upon 
 the defendant to satisfy you by a fair pre- 
 ponderance or proof bf the truth of this de- 
 fense. * * * When the policy of insur- 
 ance was introduced with evidence or ad- 
 missions that the premiums had been paid, 
 and proof was given of the death of the as- 
 sured, the plaintiff, if no further evidence 
 had been produced, would have been entitled 
 to a verdict; but the defendant comes intO' 
 court, and asserts that the contract under 
 which the action is brought has not been ful- 
 filled, but has been violated by the assured. 
 Being an affirmative defense, the onus is 
 upon the defendant to satisfy you by evi- 
 dence which, in your judgment, outweighs 
 the evidence of the plaintiff, that that de- 
 fense has been established." 
 
 The court, after stating that the defendant 
 had introduced in evidence proofs of death 
 furnished to it by the plaintiff; that the de- 
 fendant insisted that the plaintiff, havings 
 produced those proofs, was estopped from 
 saying that the cause of death tnere assisn- 
 ed was not truly assigned; and that sucii 
 proofs asserted generally that Hall met his 
 death by suicide, while laboring under tem- 
 porary aberration of mind,— also instructedf 
 the jury that such proofs were proper evi- 
 dence for them to consider, but were by no 
 means conclusive evidence, and were to be 
 taken by them in connection with the other 
 testimony In the case, and given such weight 
 in determining the main question as the jury' 
 might see fit to give them. 
 
 The court further instructed the jury, that 
 the plaintiff's position was— First, that the- 
 
 463. 
 
Case No. 157] PHODUCTION AND EFFECT OF EVIDENCE. 
 
 burden being upon the defendant to satisfy 
 them that Hall met death by his own hand, 
 intending to kill himself, the plaintilf had a 
 right to rely upon the alleged failure of the 
 defendant to prove that fact; second, that 
 It -was asserted by the plaintiiJ: that Hall's 
 death might have been occasioned simply 
 and solely by accident; and, third, that it 
 might have been the result of assassination; 
 and that, if the jury found that there was a 
 failure on the part of the defendant to prove 
 that Hall committed suicide, (whether he 
 was in his right mind or laboring under tem- 
 porary insanity being wholly immaterial,) 
 or if they found upon the proofs that his 
 death was caused by accident and nothing 
 else, there must be a verdict for the plain- 
 tiff. 
 
 The defendant excepted (1) to the instruc- 
 tion that, on the question whether Hall com- 
 mitted suicide or not, the burden of proof 
 was on the defendant to satisfy the jury by 
 evidence which in their judgment outweigh- 
 ed that of the plaintiff that his death was by 
 suicide; (2) to the charge that the proofs of 
 death were proper evidence in the case, but 
 by no means conclusive; (3> to the submis- 
 sion to the jury of the question -whether Hall 
 died as the result of assassination, and to 
 the charge that the evidence must be such 
 as satisfied the jury of the truth of the fact 
 In dispute. 
 
 Before the case was summed up to the 
 jury by counsel — which was done before the 
 giving of the charge — ^the defendant present- 
 ed to the court 15 several written requests to 
 charge the jury. These requests are inserted 
 in the bill of exceptions after the statement 
 of the charge and the exceptions thereto, 
 and it is stated in regard to each of the re- 
 quests that the court refused so to charge 
 "except as already charged," and that the 
 defendant excepted to each refusal to 
 charge. 
 
 Although there are 25 alleged errors set 
 forth in the assignment of errors filed in the 
 court below, yet, as the brief of the plain- 
 tiff in error relies on but a few of them, 
 we confine our attention to those thus relied 
 on. 
 
 1. One Andrew S. Brownell was examined 
 as a witness for the defendant. At the time 
 he was examined— in February, 1888— he 
 was one of its directors, and had been its 
 secretary in 1885. In December, 1886, he 
 received, on behalf of the defendant, from 
 one .John Sherman Jloulton, as agent of the 
 plaintiff, certain proofs of death in the case. 
 He testified that on that occasion he had a 
 slight conversation w-ith said Moulton on the 
 subject of such proofs of death; that he 
 (Brownell) looked at them, and said they 
 were incomplete, — that the coroner's verdict 
 did not accompany them, — and that Moulton 
 said it would be supplied in a few days. 
 Brownell was then asked by the defendant: 
 "Question. What was the substance of the 
 undei'standing between you as to the man- 
 
 464 
 
 ner in which Mr. Hall met his death. If that 
 was mentioped between you?" His answer 
 was: "Answer. That he had met his 
 death by his inflicting a pistol-shot; and 
 that we must have the coroner's verdict, 
 which he said would be furnished in a few 
 days; and it came a few days later." Brown- 
 ell was then asked by the plaintiff: "Q. 
 Did you say to Mr. Moulton that you had 
 /known Mr. Hall well, in California; and 
 Ithat, if it depended upon you, the loss should 
 be paid without any delay? Did you state 
 that in that conversation or in any subse- 
 luont conversation?" This was objected to 
 by the defendant as irrelevant, but the ques- 
 Ition was allowed, and the defendant ex- 
 jcepted. The answer was: "A. I think that 
 1 1 expressed such a personal feeling in the 
 ^matter." He was then asked by the defend- 
 ant: "Q. You say that you expressed such 
 a personal feeling for Mr. Hall. What was 
 your feeling as to your obligations to the de- 
 fendant, in view of the risk excluded from 
 the policy, and the fact of the wound being 
 self-inflicted? A. In view of the policy of 
 the company, as shown in the certificate 
 that has been presented here, the company 
 could not pay it. It was against the policy 
 of the company to assume the risk of a 
 man's death by shooting or by self-inflicted 
 wounds. Q. When you say that it was 
 against the policy of the comjjany, what do 
 you mean by that? A. Against the decision 
 of the managers of the company as to tJie 
 best interests of the company, taken as a 
 whole. I did not mean the mere terms of 
 the policy, but the settled course of business 
 of the company." 
 
 It is contended by the defendant that the 
 declaration by Brownell to Moulton that, if 
 it depended upon him, (Brownell,) the loss 
 should be paid without any delay, was ir- 
 relevant, and the admission of it in evidence 
 I constituted error. But we think the evi- 
 I dence was admissible. Brownell was a wit- 
 ness for the defendant, and the evidence in 
 question was brought out on his cross-ex- 
 amination. He had stated on his direct ex- 
 amination that the substance of the under- 
 standing between him and Moulton, at the 
 time the latter brought in the proofs of 
 death, as to the manner in which Hall met 
 his death, was "that he had met his death by 
 his inflicting a pistol-shot;" and the evidence 
 in question, being drawn out on cross-exam- 
 ination, had a bearing upon the testimony 
 which Brownell had given on his direct ex- 
 amination, implying that Moulton had stated 
 that Hall met his death "by his inflicting a 
 pistol-shot." The evidence was as to a part 
 of the same conversation, and we think it 
 was relevant and competent. 
 
 2. On the direct examination of Mr. Brown- 
 ell as a witness for the defendant he was 
 asked the substance of a conversation which 
 he had with one Charles W. Moulton, the 
 agent or attorney of the plaintiff, In Novem- 
 ber, 1886, on an occasion when said Moulton, 
 
CROSS-EXAMINATIOX. 
 
 [Case No 157 
 
 on behalf of the plaintiff, visited Brownell 
 at the office of the defendant. The question 
 was objected to by the plaintiff as immate- 
 rial, and was excluded, and the defendant ex- 
 cepted. A sufficient answer to this assign- 
 ment of en-or is that the bill of exceptions 
 does not state what the subject of the con- 
 versation was, or what was intended to be 
 proved by it. 
 
 Charles W. Moulton was the father of John 
 ShermanMoulton. Subsequently, whenBrown- 
 ell had been recalled by the defendant, and 
 it had been proved that Charles W. Moulton 
 was the plaintiff's agent, the question was re- 
 peated by the defendant as to what Charles 
 W. Moulton said to Brownell when he visit- 
 ed the latter to make a claim on the defend- 
 ant for the payment of the $5,000. The in- 
 quiry was again ruled out. It not being stat- 
 ed what the subject of the conversation was, 
 or what was sought to be proved. The 
 proofs of death were furnished to the defend- 
 ant after this alleged conversation; and, even 
 if the conversation related to the cause or 
 manner of Hall's death, it could not bind the 
 plaintiff, in the absence of any authority by 
 the plaintiff to Moulton to make any state- 
 ment on the subject. 
 
 3. It is contended by the defendant that 
 the proofs of death, including the coroner's 
 inquest, constituted an admission by plaintiff 
 that Hall came to his death by his own hand, 
 and that such admission was sufficient to 
 create a legal right in the defendant to have 
 a verdict directed for it. One of the defend- 
 ant's requests to charge was that, the plain- 
 tiff, in her proofs of death, having stated to 
 the defendant that the death was by suicide, 
 It was incumbent upon her to prove by a 
 preponderance of evidence that the state- 
 ment was mistaken, and that the death was 
 the result of accident; and another was that, 
 the plaintiff's proofs of death having been 
 presented in her name, and by her agent in 
 the matter, and constituting the essential 
 preliminary to her action, they must stand as 
 her acts, and the representations made there- 
 in must be taken as true, until at least some 
 mistake was shown to have occurred in them. 
 
 The facts of this case are thus stated in 
 the charge of the court to the jury, and there 
 was no exception to such statement: "It ap- 
 pears to be undisputed that Edward F. Hall 
 had lived about twenty years of his life in 
 San Francisco. He frequently— habitually, 
 perhaps— carried a pistol. He some time 
 during his life kept a pistol under his pillow. 
 He was a man of genial, sanguine tempera- 
 ment; hopeful,— making plans as to the fu- 
 ture; proud of his only son. But it also ap- 
 pears that for a long series of years he had 
 been suffering from severe headache,- to 
 such an extent that it created depression so 
 strong at times that the doctor describes it- 
 as melancholia. It appears, further, that up-; 
 on the evening prior to his death he was with' 
 a party of friends at the residence of Mr. 
 Johnson, and there, in the presence of two or 
 
 WILGUS.EV. — 30 
 
 three witnesses, complained of suffering in- 
 tense pain in his head, frequently placing his 
 hands to his head, and complaining of the 
 severe pain which he suffered. The pecun- 
 iary circumstances of Hall have not been dis- 
 closed here further than the evidence as to 
 borrowing money of his sister. It is in proof 
 that he had a wife and son, his son in col- 
 lege, and that he took great interest in his 
 future. But it is also proper that I should 
 call your attention to the fact that at the mo- 
 ment of his death his wife was sea'iously ill- 
 thought to be hopelessly ill— in a distant city. 
 Upon the morning of the 19th of October, 
 1886, at 139 East Twenty-First street, in this 
 city, and between 7 and 7:30 o'clock of that 
 morning, Edward F. Hall was found in the 
 back hall bedroom of the fourth story, with 
 a severe wound in his right temple. The 
 wound was so severe that it caused a com- 
 minuted fracture of the fi'ontal bone, and 
 fractures radiating up and down and back- 
 ward from the hole in the right temple, suffi- 
 cient, unquestionably, to produce his death. 
 He was found lying upon his bed, with the 
 clothes drawn up under the armi>its, his 
 limbs relaxed, no evidence of any struggle 
 having taken place, and near his right hand 
 — within a few inches, or veiy near it — was 
 the pistol, probably, which has been shown 
 in your presence, with three of its chambers 
 discharged. There was also found upon his 
 stand or desk a letter to his physician, in 
 substance stating that he has been suffering 
 terribly with headache; that he has had it 
 for several days; that it is growing woi-se, 
 and has become well-nigh unbearable." 
 
 In the proofs of death furnished to the de- 
 fendant, and signed by the plaintiff, was this 
 question: "Was the death of deceased caus- 
 ed by his own hand or acts, or in consequence 
 of a duel, cm- in violation of any law?" Her 
 answer to this was: "See statement of coro- 
 ner's physician. Dr. Jenkins." In the state- 
 ment of Dr. Jenkins was this question: 
 "State the immediate cause of death." His 
 answer was: "Shock fi-om penetrating pis- 
 tol shot; wound of head, (riglit temple;) men- 
 tal aberration, superinduced by chronic head- 
 ache." There was also this question to Dr. 
 Jenkins: "Was the death of deceased caused 
 or accelerated or aggravated by his own hand 
 or acts?" His answer vras: "I examined the 
 deceased only as coroner's physician, and 
 therefore am unable to make any further 
 statement tlian above, other than from the 
 history. His mental condition was probably 
 due to chronic headache, which was caused 
 either by chronic meningitis or tumor of 
 brain." 
 
 It is contended for the defendant that, be- 
 cause of the contents of the proofs of death, 
 the plaintiff is estopped from claiming that 
 Hall's death was caused otherwise than by 
 suicide; and that, at least, the court should 
 have held that the burden originally upon the 
 defendant was shifted, by the introduction 
 of the proofs of death, to the plaintit, and 
 
 463 
 
Case Jfo. 157] PRODUCriOX AND EFPECr OF EVIDENCE. 
 
 it became her duty to satisfy tlie jury, by 
 a prei>onclerance of evidence, tliat Hall died 
 otherwise than by his own band. 
 
 But the defendant was not prejudiced by 
 the statements and opinions contained in the 
 proofs of death, and the plaintiff was not 
 estopped thereby, as a matter of law. AVheu 
 the court was asked to charge the jury that 
 by the introduction of those proofs the bur- 
 den was shifted, the evidence was all before 
 the jury, and was much more full and com- 
 plete than that upon which Dr. Jenkins had 
 based his opinion. He himself had been ex- 
 amined as a witness, and had testified as to 
 what he knew or did not know at the time 
 be made his certificate; and all the facts of 
 the ea.se. so far as they were known, had 
 been explained in view of the contents of the 
 proofs of death. It appeared that most of 
 the statements in the cei-tiflcate of Dr. Jen- 
 kins were based on hearsay. The instruc- 
 tions asked for in that respect, therefore, 
 would have been erroneous. 
 
 Nor did the declarations in the proofs of 
 death, when all taken together, necessarily 
 amount to an admission that Hall committed 
 suicide. The facts, or what Dr. Jenkins at 
 the time supposed to be the facts, were stat- 
 ed in the proofs of death; and, although the 
 defendant might have drawn therefi'om the 
 conclusion of suicide, they ought to be scru- 
 tinized carefully when they are sought to be 
 used as amounting to an admission by the 
 plaintiff that the policy was void. The lan- 
 guage used by Dr. Jenkins in his certificate 
 is not inconsistent with the theory of death 
 by accident, especially in view of the fact 
 that, when he came to the direct question as 
 to whether Hall's death was caused by his 
 own hand or acts, he answered it by stating 
 that he was "unable to make any further 
 statements than above, other than from the 
 history;" the statements he had made above 
 being that the "immediate cause of death" 
 was "shock from penetrating ijistol-shot; 
 wound of head, (right temple;) mental aber- 
 ration, superinduced by chronic headache." 
 The juiy were entirely at liberty to properly 
 find that that wound, although self-inflicted, 
 
 466 
 
 was accidental. The proofs of death, and 
 the entire evidence at the trial, left it in 
 doubt how Hall's death was caused, and it 
 was for the jui-y to determine by their ver- 
 dict. The court charged the jury that, if 
 they should find that Hall's death was caus- 
 ed by accident, they should find for the plain- 
 tiff. There was no exception to that in- 
 struction, and the case was tried on the theo- 
 ry that that was a correct construction of 
 the policy. The sixth request of the defend- 
 ant to charge was that, if the jury shpuld 
 find that Hall shot himself "in any manner 
 except as by mere accident," the defendant 
 was entitled to a verdict; the tenth request 
 was that the plaintiflC had failed to give any 
 evidence that the death was accidental; and 
 the twelfth request was that the defendant 
 was not bound to exclude eveiy theory of 
 accident. 
 
 4. As to the exceptions to the charge of the 
 court to the juiy, we see no error therein. 
 It is contended that there was no evidence 
 from which the jury could find, as an affirm- 
 ative fact, tliat Hall died by accident or as- 
 sassination. In regard to this, as before re- 
 marked, the bill of exceptions does not pur- 
 port to set forth all the evidence in the case. 
 It was conceded that, if Hall's death was by 
 accident or assassination, the policy covered 
 it, and, on the evidence given in the bill of 
 exceptions, we think the jui-y were fully 
 warranted in finding that it was by accident. 
 The defendant having alleged in its answer 
 that Hall's death was due to one of the 
 causes excepted from the opei-ation of the 
 policy, it was not eiTor for the court to 
 /charge' the jury that the defendant was 
 /bound to establish such defense by evidence 
 outweighing that of the plaintiff. 
 
 We think the court pi-operly refused to 
 charge in accordance with the requests made 
 by the defendant, except as it had already 
 charged, and that it had already charged in 
 terms sufficiently full and correct as to the 
 I)articulars now Insisted upon to have been 
 erroneous. Judgment affirmed. 
 
 Mr. Justice BROWN dissenting. 
 
CEOSS-EXAMINATION. 
 
 [Case No. 158 
 
 ANHEUSER-BUSCH BREWING CO. v. 
 HUTMACHER. 
 
 (21 N. E. 626, 127 111. 652.) 
 
 Supreme Court of Illinois. April 5, 1889. 
 
 Appeal from appellate court, Third district. 
 The plaintiff's first instruction, referred 
 to in the opinion, was as follows : " The court 
 instructs the jury that if they believe from 
 the evidence that the plaintiff, Hutmacher, 
 at the request of the defendant, performed 
 the services and did the work and labor 
 for the defendant in and about the pur- 
 chase of ice, and also in and about the. con- 
 struction of an ice-house at Tompkins, or 
 Busch, in Missouri, as claimed by him, and 
 that in addition thereto the said Hutmacher 
 filled the said ice-house, or partly filled the 
 same, and also certain barges of defendant, 
 witli ice, at the request of thedefendant, and 
 that such filling with ice was done by the 
 said Hutmacher for the defendant under a 
 contract with thedefendant that the said de- 
 fendant should pay said Hutmacherten cents 
 per ton for all the ice so put in said ice- 
 house and said barges by said Hutmacher, 
 then the said Hutmacher would be entitled, 
 in addition to his compensation fbr services, 
 woik, and labor in the pi i rchase of ice, as afore- 
 said, and in the construction of the said ice- 
 house, whatever amount the amount of ice 
 so filled in the said ice-house and said barges, 
 by said Hutmacher, would amount to at ten 
 cents per ton, so far as the same may be 
 shown by the evidence, deducting whatever 
 the jury shall believe from the evidence has 
 heen paid to the said Hutmacher; unless the 
 jury sliall believe from the evidence that the 
 said Hutmacher has been fully paid for his 
 said services, work, and labor, and the filling, 
 or part filling, of the said ice-house and 
 barges, or has accepted from the defendant 
 a certain sum of money in full satisfaction 
 and discharge of all of the said claims and 
 demands of the plaintiff." The objection 
 urged to said instruction was that the court 
 thereby told the jury that, unless they should 
 believe that the said Hutmacher had accept- 
 ed of defendant a certain sum of money in 
 full satisfaction and discharge of all his 
 claims and demands, lie would be entitled to 
 a verdict for whatever the ice, so placed in 
 said ice-house and barges, would amount to, 
 at ten cents pei» ton. The instructions on 
 behalf of defendant which were refused by 
 tlie court were as follows: "(1) The court in- 
 structs the jury that long delay, in claiming 
 or demanding a money debt, by one in ne- 
 cessitous circumstances, and where, if it 
 was honestly due, it could be had for the 
 asking, would be a circumstance tending to 
 prove that no such indebtedness, in fact, ex- 
 isted between the parties; and that, in de- 
 termining whether the demand, in any case, 
 is well founded or not, the reasonableness or 
 unreasonableness of the claim, in view of 
 all the surrounding facts and circumstances, 
 should be taken intcfaccount. (2) The court 
 
 instructs the jury that, where the testimony 
 of a witness is so extraordinary as to be man- 
 ifestly contrary to all human observation and 
 experience, and so manifestly repugnant to 
 right reason as to appear, when taken in con- 
 nection with its related facts and surround- 
 ing circumstances, incredible and unnatural, 
 — as if one should say he had, in the open 
 market, of a sane and intelligent person, pur- 
 chased a genuine coin of the value of five 
 dollars for a penny, — then, in that event, 
 such testimony may be by them wholly dis- 
 regarded and for naught held, as being con- 
 tradicted by human reason and the common 
 experience of mankind." 
 
 George W. Fogg, for appellant. Carter & 
 &overt, for appellee. 
 
 BAILEY, J. This was a suit in assumps/f, 
 brought by Rudolph Hutmacher against the 
 Anheuser-Busch Brewing Association, a cor- 
 poration organized and doing business at St. 
 Louis, Mo., to recover for work, labor, and 
 services of the plaintiff in superintending 
 the erection of an ice-house, and cutting, 
 storing, and purchasing ice for the defendant. 
 The trial in the circuit court resulted in a 
 judgment in favor of the plaintiff for .$1,640 
 and costs, which judgment was affirmed by 
 the appellate court on appeal, and by a fur- 
 ther appeal the record has been brought to 
 this court. To the declaration, which con- 
 sisted of only the common counts, the de- 
 fendant pleaded non assumpsit and the pay- 
 ment by the defendant to the plaintiff of cer- 
 tain sums of money, which were received by 
 the plaintiff in full satisfaction and discharge 
 of the indebtedness sued for. Upon the is- 
 sues thus formed the evidence was to a con- 
 siderable degree conflicting. But, as all 
 questions of fact have been conclusively set- 
 tled by the appellate court, we must accejit 
 the verdict and judgment as the only proper 
 result of the evidence, it being open to tliis 
 court to review the record only so far as it 
 may be shown to contain errors of law. 
 
 Error is assigned upon the refusal of the 
 court to grant the defendant's motion for a 
 continuance. Said motion was supported by 
 an affidavit showing the absence of five wit- 
 nesses, all residents of St. Louis, and all be- 
 ing officers or employes of the defendant, 
 viz.: Adolph Busch, its president; Erwin 
 Spraul, the general superintendent of its out- 
 door business; Gustav Housman, its assist- 
 ant secretary; George Krug, its general and 
 commercial agent; and Henry Jacobs, its 
 master carpenter and builder. The mate- 
 riality of the testimony of each of these wit- 
 nesses seems to be sufficiently shown, and 
 the only question is whether there is suffi- 
 cient proof of diligence in endeavoring to 
 procure their attenda.nce. The affidavit 
 shows that at a prior day of the same term 
 the defendant had all of said witnesses in 
 court ready to testify, but that at the time of 
 making the affidavit for a continuance tliev 
 were all absent from the state, Krug and Ja"- 
 cobs being temporarily in Nebraska, Hous- 
 
 467 
 
Case No. 158] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 man being in attendance upon the cireuit 
 court at Kansas City, Mo., as a witness, and 
 Busch and Spraul being both coniined to 
 their houses in St. Louis by sickness. The 
 court held tlie affidavit sufficient so far as it 
 related to witnesses Busch and Spraul, but 
 insufficient as to the others, and, the plain- 
 tiff electing to admit the affidavit in evidence 
 so far as it related to tlie testimony of Busch 
 and Spraul, the motion for a continuance 
 was overruled. The rule is too familiar to 
 require the citation of authorities that, to 
 entitle a party to a continuance on account 
 of the absence of material witnesses, it must 
 be sliown that due diligence has been used to 
 obtain their testimony. That the affidavit in 
 this case fails to show such diligence is too 
 plain for argument. All of the absent wit- 
 nesses were in court one day during the ear- 
 lier part of the same term, and were there- 
 fore within reach of process, but neither was 
 served with subpcena, nor is it pretended 
 that any attempt was made to subpoena 
 them. All were officers or employes of the 
 defendant, and subject to its orders, and it 
 will be presumed that their attendance before 
 a commissioner might have been procured 
 at any time, yet no efforts are shown to have 
 been made to obtain their depositions, al- 
 though the suit had been pending more than 
 eight months, and had been once continued 
 ^t the instance of the defendant on account 
 of the absence of witnesses. Upon such a 
 showing as to diligence, the motion for a con- 
 tinuance was properly overruled. 
 
 Complaint is made of various rulings of 
 the court in relation to the admission of evi- 
 dence. While the plaintiff was on the stand 
 as a witness in his own belialf, the defend- 
 ant's counsel, on cross-examination, put to 
 
 / him questions as to the defendant's solvency 
 and his own insolvency during the period 
 
 I which intervened between the accruing of 
 the indebtedness sued for and the commence- 
 ment of the suit. These questions were ob- 
 jected to on the ground that they were not 
 proper cross-examination, and the objection 
 was sustained. No questions had been put 
 to the witness, on his direct examination, as 
 to the solvency of the defendant, or his own 
 insolvency, or in any way involving those 
 subjects, and therefore, according to the 
 well-settled practice in this state, it was not 
 open to the defendant to put to the plaintiff 
 questions in relation to them on cross-exam- 
 ination. Stafford v. Fargo, 35 111. 481 ; Bon- 
 net v. Glattfeldt, 120 111. 166, 11 N. E. Rep. 
 250; Lloyd v. Thompson, 5 111. App. 90; 
 Waller v. Carter, 8 III. App. 511. See, also, 
 Kailroad Co. v. Stimpson, 14 Pet. 448; Floyd 
 V. Bovard, 6 Watts & S. 75; 1 Greenl. Ev. 
 § 445. If the defendant deemed the inquiry 
 material, it should have introduced evidence 
 in relation thereto, either by recalling the 
 plaintiff, or by the production of other testi- 
 mony, after the plaintiii had closed his case. 
 Complaint is also made of the ruling of the 
 court sustaining an objection to questions 
 put to the plaintiff on cross-examination, 
 
 468 
 
 calling for the contents of a certain letter 
 written by Spraul to the plaintiff, and which 
 appears to have been lost. These questions 
 were excluded, on the ground that they were 
 not proper cross-examination, but it is sufli- 
 cieut to say that no exception to the ruling 
 was preserved, and its propriety is therefore 
 not open to review. 
 
 The court also sustained objections to qups- 
 stions put to the plaintiff on cross-examina- 
 tion, as to the gross cost of putting up the 
 Ice, for which he claims a commission by 
 contract of 10 cents per ton. The witness 
 was not examined on that subject on his di- 
 rect examination, and for tliat reason the 
 questions objected to were improper. More- 
 over, the plaintiff was seeking to recover 
 upon an express contract with the defendant 
 as to the amount of his. compensation, and 
 under such contract the amount of the gross 
 cost of cutting and putting up the ice would 
 seem to be immaterial. 
 
 A number of telegrams in relation to the 
 labor and services sued for, and purporting 
 to have been sent by the defendant to the 
 iplaintiff, were produced by the plaintiff, 
 land, on proof that they were received by him 
 I from the telegraph company in the usual 
 course of business, they were admitted in 
 evidence, against the objection and exception 
 of the defendant. Several letters of date* 
 contemporaneous with the telegrams written 
 by the defendant to the plaintiff were also 
 read In evidence, in which the defendant ad- 
 mitted having communicated with the plain- 
 tiff by telegraph, and in some of which let- 
 ters copies of the telegrams sent were given, 
 the same being exact copies of telegrams of 
 the same date, read in evidence. The posi- 
 tion now taken is that the papers delivered 
 by the telegraph company to the plaintiff are 
 only copies, the originals being the telegrams 
 signed by the defendant, and delivered by it 
 to the telegraph office from which the mes- 
 sage was sent, and it is urged that such 
 originals should have been proiluced, or som& 
 proper foundation laid for the introduction 
 of secondary evidence of their contents. The 
 application of the rule of evidence here con- 
 tended for must depend upon whether tlie 
 messages deliveied by the telegraph company 
 to the plaintiff, or those delivered by the de- 
 fendant to the telegraph operator, are, as be- 
 tween the parties in this suit, to be deemed 
 the oritjinals. In Durkee v.llailroad Co., 29 
 Vt. 127, the rule which we consider the most 
 reasonable one is laid dow.n, viz. : That the 
 original, where the person to wliom it is sent 
 takes the risk of its transmission, or is the 
 employer of the telegraph, is the message de- 
 livered to the operator; but where the person 
 sending the message takes the initiative, so 
 that the telegraph company is to be regarded 
 as his agent, the original is the message act- 
 ually delivered at the end of the line. See, 
 also, Saveland v. Green, 40 AVis. 431; Tele- 
 graph Co. V. Shotter, 71 Ga. 760; Wilson v. 
 liailroad Co., 31 Minn. 481, 18 N. W. Rep. 
 291; Dunning v. Roberts, 35 Barb. 463; 
 
CROSS-EXAMINATION. 
 
 [Case No. 158 
 
 Gray, Tel. g§ 104, 129. The same nils was 
 adopted by this court in Morgan v. People, 59 
 111. 58. 
 
 The fact that the defendant took the ini- 
 tiative in .sending the telegrams, thus em- 
 ploying the telegraph company as its agent, 
 is clearly shown by its letters to the plaintiff, 
 read in evidence. Having thus employed 
 such agent to convey communications to the 
 plaintiff, it must be held to be bound by the 
 acts of its agent to the extent at least of 
 making the messages delivered originals, 
 thereby constituting them primary evidence 
 of the contents of the messages sent. It 
 sliould be observed that there is no sugges- 
 tion that any of these messages were errone- 
 ously transmitted, and the case, therefore, 
 does not present the question, upon which 
 
 there Is some conflict in the authorities, 
 whether the sender of a telegram makes the 
 telegraph company its general agent so as to 
 become responsible for the acts of such 
 agent, where there is a departure from the 
 authority actually given, by transmitting the 
 message incorrectly. 
 
 Some criticisms are made upon the rulings 
 of the court in giving tlie plaintiff's first in- 
 struction, and in refusing two instructions 
 asked by the defendant. The plaintiff's first 
 instruction is a correct statement of the law 
 applicable to the case, and the objection 
 urged to it is not well taken. Both the de- 
 fendant's instructions refused are clearly er- 
 roneous. We find no error in the record, 
 and the judgment of the appellate ccurt will 
 therefore be affirmed. 
 
 409 
 
Case No. 159] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 CHICAGO, M. & ST. P. RY. CO. t. ARTERY. 
 
 (11 Sup. Ct. 129, 137 U. S. 507.) 
 
 Supreme Court of the United States. Dec. 22, 
 1890. 
 
 Ill error to the circuit court of the 
 United States for the northern district of 
 Iowa. 
 
 Jolin W. Cary, for plaintiff in error. H. 
 B. Fouke and D. E. Lyon, for defendant in 
 error. 
 
 BLATCHFORD, J. This Is an action at 
 law, brought in the district court of Du- 
 buque county, in the state of Iowa, by 
 James Artery against the Chicago, Mil- 
 waulvce & St. Paul Railway Company, a 
 "Wisconsin corporation, to recover dam- 
 ages for a personal injury, and removed 
 by the defendant into the circuit court of 
 the United States for the northern district 
 of Iowa. The petition alleges that the 
 defendant owns and operates aline of rail- 
 road from Dubuque, in Iowa, to La 
 Crosse, in Wisconsin, and St. Paul, in Min- 
 nesota, and in the operation of it uses lo- 
 comotives propelled by steam, hand-cars 
 propelled by hand, and cars drawn by its 
 locomotives; that the plaintiff , on March 
 5, 1883, and for several months prior there- 
 to, was in the employ of the defendant in 
 the use and operation of the road in the 
 county of Allamakee, in Iowa, in working 
 upon its road and road-bed, in keeping 
 the ties in good order, in keeping the road 
 well and properly ballasted, in removing 
 obstructions from its track, in keeping its 
 culverts and crossings in repair, in keep- 
 ing the iron on the road properly spiked 
 and fastened, and in keeping the road-bed 
 fit for use and operation along its line of 
 road and right of wayin the county of Al- 
 lamakee; that in doing such work, cars 
 propelled by steam and hand-cars were 
 used by the plaintiff and others, the cars 
 being furnished by the defendant; that 
 while in siich employ, the plaintiff left the 
 village of Harper's Ferry, in said county, 
 with other employes, under a foreman of 
 the defendant, named Rellehan, and went 
 north somelO miles, making repairs on the 
 road; that, after doing such work, and 
 towards evening, the foreman ordered a 
 start to return to Harper's Ferry, on a 
 small hand-car, on which were placed sev- 
 en or eight men, and more than the car 
 could or ought to carry; that, when the 
 hand-car was ordered by the foreman to 
 start to Harper's Ferry, it vvas started at 
 the time that a train of cars was due, of 
 which the plaintiff then had no knowledge; 
 that the snow had been falling, and there 
 was snow on the rails, andtheforeman or- 
 dered the plaintiff to get a shovel and seat 
 himself on the front of the hand-car, and 
 hold the shovel on the top of the rail, in 
 order to remove the snow as the hand-car 
 went forward ; that on the hand-car there 
 were no places provided for the feet to rest 
 upon while performing such duty; thatthe 
 plaintiff was compelled, in order to hold 
 the shovel, to exert all his strength, and 
 by muscular exertion hold up his feet and 
 at the same time guide and hold the 
 shovel ; that the hand-car was run ahead 
 of the train, then due, at the rate of more 
 
 470 
 
 than 10 miles an hour, being a dangerous 
 speed: that while it was so running, and 
 the plaintiff was holding the shovel, and 
 while it was crossing over a cattle-guard 
 in the road, and without any fault or 
 negligence on his part, his foot was caught, 
 and he was thrown off and under the 
 hand-car, his body doubled up, his spine 
 injured, and his backbone broken ; that by 
 reason thereof he has been confined to his 
 bed ever since, unable to work, and suf- 
 fering great pain in body and mind ; and 
 that all this happened by the negligence of 
 the defendant in furnishing unfit and im- 
 proper hand-cars, in requiring onerous 
 and dangerous duty from the plaintiff, in 
 running the hand-car at a dangerous rate 
 of speed, and in overloading it. Damages 
 are claimed in the sum of $20,000, besides 
 the sum of fl,000 for money paid for 
 board, care, and surgical and medical 
 treatment. The petition was afterwards 
 amended by alleging further that the 
 hand-car was not constructed with rea- 
 sonably safe appliances to push the snow 
 off from the rails, which appliances could 
 easily have been furnished by the defend- 
 ant; that it was wanting in the proper 
 kind of a brake, and the proper kind of a 
 foot-rest for doing the kind of work which 
 the plaintiff was ordered to do; tliat, 
 when the plaintiff was ordered by the fore- 
 man to sit down on the front of the hand- 
 car and hold the shovel, he was unaware 
 of any danger therefrom, and had reason 
 to believe and did believe that the hand- 
 car would be run by the foreman at a safe 
 rate of speed; that it was run at an un- 
 reasonable and unnecessary fast and dan- 
 gerous speed, which the plaintiff could not 
 control, nor could he leave the car while 
 it was in motion; that the cattle-guard 
 was made of three-cornered pieces of 
 wood, placed negligently on top of the ties, 
 across the track instead of lengthwise, 
 and some of the three-cornered piecesstood 
 higher than the surface of the rail, of which 
 fact the plaintiff was not then aware; 
 and that, by reason of such negligent con- 
 struction of the cattle-guard, the speed 
 of the hand-car, and the dangerous and 
 tiresome position in which the defendant 
 placed the plaintiff, he was injured either 
 by his foot or feet coming in contact with 
 the rail or the three-cornered pieces, or by 
 the shovel getting caught on tlie rail or 
 on such pieces, or by all of such circum- 
 stances. The answer of the defendant con- 
 tains a general denial, and an allegation 
 of contributoi'y negligence on tlie part of 
 the plaintiff. The case was tried by a 
 jury, which rendered a verdict tor the 
 plaintiff of ¥13,500, for which, with costs, 
 he had judgment, to review which the 
 defendant has brought a writ of error. 
 
 One of the principal points taken by the 
 defendant is that this vs-as a case of an in- 
 jury resulting from the negligence of a co- 
 employe, namely, the foreman Rellehan, in 
 the management and running of the hand- 
 car, and did not fall within tlie provisions 
 of the statute of Iowa on the subject. On 
 the 8th of April, 18(i2, a statute was en- 
 acted in Iowa (Laws IS62, c. 169, § 7, p. 
 198,) as follows: "Sec. 7. Every railroad 
 company shall be liable for all damages 
 sustained by any person, including em- 
 
CKOSS-EXAMINATIOK. 
 
 [Case No. 159 
 
 ployes of the company, in consequence of 
 any neglect of the agents or by any mis- 
 nianagemeut of the engineers or other em- 
 ployes of the corporation to any person 
 sustaining such damage." This provis- 
 ion was afterwards modified by section 
 1307 of the Code of Iowa of 1873,which was 
 in force at the time of this accident, and 
 read as follows: "Sec. 1307. Every corpo- 
 ration operating a railway shall'be liable 
 for all damages sustained by any person, 
 including employes of such corporation, 
 in consequence of the neglect of agents, or 
 by any mismanagement of the engineers, 
 or other employes of the corporation, and 
 in consequence of the willful wrongs, 
 whether of commission or omission, of 
 such agents, engineers, or other employes, 
 when such wrongs are in any manner 
 connected with the use and operation of 
 any railway, on or about which they 
 shall be employed, and no contract which 
 restricts such liability shall be legal or 
 binding. " The modification introduced 
 by the later statute is that the wrongs 
 for which the corporation is to be liable 
 must be wrongs connected with the use 
 and operation of the railway on or about 
 which the employes are employed. It is 
 contended by the defendant that, under 
 the decisions of the. supreme court of Iowa 
 upon this statute, only employes en- 
 gaged in operating and moving trains, 
 and who are injured by such trains, and 
 employes who, while in the discharge of 
 their duty, are injured by trains used in 
 operating the railway, are within the 
 stiitute, and that, in the present case, the 
 plaintiff was not engaged in operating and 
 moving a train, and was not injured by a 
 train used in operating the railway. But 
 we cannot concur in this view. 
 
 In Deppe v. Railroad Co., 36 Iowa, 32, it 
 was held, under the act of 1862, that the 
 statute included the case of au employe 
 who was engaged in connection with a 
 dirt-train, and was injured, while loading 
 a car, by the falling of a bank of earth . 
 and in Frandsen v. Railroad Co., Id. 372, 
 that a person employed as a section-hand, 
 In the businpss of lieeping a certain part 
 of the I'oad in repair, and going with his 
 co-employes on the track on a hand-car 
 for that purpose, was within the act of 
 1862, he being injured through a collision 
 with the engine of a passenger train, which 
 struck the hand-car, and threw it against 
 the plaintiff while he was on the ground, 
 and engaged in trying to remove the hand- 
 car out -of the way of the engine. 
 
 The case of Schroeder v. Railroad Co., 41 
 Iowa, 344, arose under section 1307 of the 
 Code. It was said in that case that that 
 section apiJlied only to accidents growing 
 out of the use and operation of the road, 
 and did not apply to all persons em- 
 ployed by the corporation without re- 
 gard to their employment, and it was 
 held, therefore, that it did not cover the 
 case of Schroeder, who was not connected 
 with the operation of the road, but who, 
 while engaged in removing the timbers of 
 an abandoned bridge, and loading them 
 on cars, was injured by some of the tim- 
 bers which fell from a car. The same 
 view was held in Potter v. Railroad Co., 
 46 Iowa, 399, where Potter, a laborer in 
 
 the machine-shop of tlie company, was 
 injured by a locomotive driving-wheel, 
 which he and other employes were mov- 
 ing by hand. 
 
 It was held, in Schroeder v. Railroad 
 Co., 47 Iowa, 375, that where a person 
 was required in the course of his employ- 
 ment by the lailroad company to get 
 upon a train, and did so, he was to be 
 regarded as being engaged in its opera- 
 tion, although his employment might 
 not be connected with the running of the 
 train; and that the company was liable 
 to him forinjuries resulting from the negli- 
 gence of a co-employe. 
 
 In Pyne v. Railroad Co., 54 Iowa, 223, 
 6 N. W. Rep. 281, Pyne was employed by 
 the railroad company as a private detect- 
 ive, and, while walking on the track, in 
 the performance of his duties, and in obe- 
 dience to the orders of the compan.y, was 
 injured, without negligence on his part, 
 through the negligence of the engineer of 
 a passing train, and it was held that his 
 case fell within the provisions of section 
 1307, and that ho was entitled to recover 
 from the company for the injuries received 
 by him. 
 
 In Smith v. Railroad Co., 59 Iowa, 73, 
 12 N. W. Rep. 763, where it appeared that 
 the plaintiff was only a section-hand, and, 
 when injured, was engas^ed in loading a 
 oar, and it did not appear that his serv- 
 ice pertained to the operation of the road, 
 it was held that he could not recover for 
 an injury which occurred through the nen- 
 ligence of a co-emploj'e, the court remark- 
 ing that under section 1307 of the Code it 
 must be shown that his emplo,yraent wa.s 
 connected with the operation of the rail 
 way. 
 
 It was held, in Malone v. Railway Co., 
 61 Iowa, 326, 16 N. W. Rep. 203, that a per- 
 son whose duty it was to wipe tlio com- 
 pany's engines, and do otlier work about 
 the round-house, and to open the doors of 
 that house so as to allow the engines to 
 pass in and out, and who, while endeavor- 
 ing to sliut those doors, was injured by 
 the carelessness of his co-employes who 
 were at the time engaged with him in the 
 same effort, could not recover under sec- 
 tion 1307 for the injury, because it was 
 not "in any manner connected with the 
 use and operation "of the railway, ;.:; con- 
 templated by that section. 
 
 In Fole.y v. Railroad Co., 64 Iowa, 644, 
 21 iN. W. Rep. 124, it was held that a car- 
 repairer, whose duty it was to repair cars 
 on the track, but who had nothing to do 
 with cars in motion, except to ride on pas- 
 senger or freight trains to and from the 
 places where his services were required, 
 was notengaged in the operation of a rail- 
 way, within the meaning of section 1307, 
 and could not recover of the company for 
 an injury received while in the discli'arge 
 of his duties, through the negligence of a 
 co-employe. Foley was engaged at the 
 time in making repairs on a car, and was 
 injured while under the car, through its 
 being moved improperly. 
 
 The Malone Case came up again, in 65 
 Iowa, 417, 21 N. W. Hep. 7.56, and it was 
 there held, that Malone, whose duty it 
 was to wipe engines, open and close the 
 doors of an engine-house, and remove 
 
 471 
 
Case No. 159] PKODUCriON AND EFFECT OF EVIDENCE. 
 
 snow from a turn-table and connecting 
 tracks, was not, by reason of such duties, 
 employed in the operation of the railroad, 
 within the meaning of section 1307; and 
 that, for an injury received by him while 
 IDerlorniing such duties, and through the 
 negligence of a co-employe, he could not 
 recover against the company, although he 
 might have had other duties to perform 
 which did pertain to the operation of the 
 road. 
 
 It was held, in Luce v. Railroad Co., 67 
 Iowa, 75. 24 N. W. Rep. 600, that a person 
 employed in a coal-house of the railroad, 
 and injured by the negligence of a co-em- 
 ploye while loading coal upon a car, could 
 not recover from the company under sec- 
 tion 1.S07, because the injury was not in 
 any manner connected with the u.se and 
 operation of the railway. 
 
 In Matson v. Railroad Co., (iS Iowa, 22, 
 25 N. W. Rep. 911, the plaintiff was a mem- 
 ber of a construction gang on the road, 
 and his duties required him to ride upon, 
 and to work upon and about, the com- 
 pany's cars and tracks. He was injured 
 by the negligence of a co-employe in 
 throwing a heavy stone upon his hand, 
 while he was engaged in placing stones 
 under the ends of the ties. It was held 
 that the injury was not connected with 
 the use and operation of the railway, as 
 contemplated in section 1307, and that 
 the company was not liable. 
 
 It was held, in Stroble v. Railroad Co., 
 70 Iowa, 555, 31 N. W. Rep. 63, that a per- 
 son whose sole duty it was to elevate coal 
 to a platform convenient for delivering it 
 to the tenders of engines, was not em- 
 ployed in the use and operation of the rail- 
 way, within section 1307, because he was 
 in no way concerned with the moving and 
 operation of trains. 
 
 In I'ierce v. Railway Co., 73 Iowa, 140, 
 34 N. W. Rep. 7S3, a mechanic from a shop 
 of the company was working, under or- 
 ders, upon a ladder which leaned against 
 one of the cars of a train. The trainmen 
 moved the train backward, without no- 
 tice to him, the ladder fell, and he was in- 
 jured. It was held that the negligence, 
 whether that of the trainmen or of the 
 foreman in not givins; the requisite informa- 
 tion to the trainmen, was connected with 
 the use and operation of the railway, and 
 was the negligence of some one emplo.yed 
 on it, so as to make the company liai)le, 
 under section 1307, for the injury sustained 
 by the plaintiff, and this although he was 
 not engaged in the operation of the rail- 
 way. 
 
 It was held, in Nelson v. Railroad Co., 
 73 Iowa, 576, 35 N. W. Rep. 611, that the 
 working, on the railway, of a ditching- 
 machine which was operated by the move- 
 ment along the track of the train of which 
 it formed a part, was an employment con- 
 nected witli the use and operation of the 
 railway, within the meaning of section 
 1307, and made the company liable for in- 
 jury to an employe through the negligence 
 of a co-employe, although the plaintiff 
 was not engaged in the actual movement 
 of the train, but was only one of the crew 
 necessary for the performance of the work 
 intended to be done by the train and its 
 machinery and appliances. 
 
 472 
 
 In Rayburn v. Railway Co., 74 Iowa, 
 637, 35 N. W. Rep. 60B, and 38 N. W. Rep. 
 520, the plaintiff and others were section- 
 hands of the companj-, engaged in remov- 
 ing snow and ice from the track, when a 
 train of cars loaded with slack came 
 along, moving slowly, and the conductor 
 and others in charsre of the train directed 
 them to get upon the train to unload the 
 slack. They requested that the train be 
 stopped, but were told that if it was 
 stopped it could not be started again. 
 In attempting to obey the order, the 
 plaintiff ws thrown down by a jerk of the 
 train and Injured. It was held that he 
 was not precluded from recovering against 
 the company under section 1307, on the 
 ground that the negligence complained of 
 was not connected with the use and oper- 
 ation of the railway. 
 
 From this statement of the decisions of 
 the supreme court of Iowa, we are clearly 
 of opinion that, in the present case, the 
 defendant was liable, under section 1307 
 of the Code, for the injury to the plaintiff 
 caused in the manner set forth in the peti- 
 tion, and in the evidence contained in the 
 bill of exceptions. The plaintiff was upon 
 a moving car propelled by hand-power. 
 The movement of the car, its speed, the 
 position of the plaintiff upon it, and the 
 duties he had to discharge in that posi- 
 tion, were under the direction of the fore- 
 man, who was upon the same car. The 
 injury was directly connected with the use 
 and opei'ation of the railway, in whose 
 common service theforeman and the plain 
 tiff were, and tliey were co-employes. The 
 injuries to the plaintiff were, by the peti- 
 tion and the evidence, sought to be attrib- 
 uted to the smallness of the hand-car, its 
 being overcrowded, the failure to provide 
 it with contrivances for removing snovt 
 from the track, the absence of a proper 
 brake, the want of foot-rests, and the ar- 
 rangement of the cattle-guard. The rail- 
 way was being used and operated in tlie 
 movement of the hand-car quite as much 
 as if the latter had been a train of cars 
 drawn by a locomotive. If a single loco- 
 motive be on its way to its engine-house, 
 after leaving a train which it has drawn, 
 or if it be summoned to go aljne for serv- 
 ice to a point more or less distant, and, in 
 either case, by the negligence of one em- 
 ploye upon it, another employe is injured, 
 the injury takes place in the use and oper- 
 ation of the railway, under section 1307, 
 quite as much as if it takes place while 
 the locomotive is drawing a train' of cars. 
 This we understand to be the manifest 
 purport and effect of the decisions of the 
 supreme court of Iowa on the subject, as 
 well as obviously the proper interpreta- 
 tion of the statute. But, although this is 
 so, we are of opinion that a new trial 
 must be granted, on account of errors in 
 the exclusion of evidence offered by the 
 defendant. 
 
 /At the trial, one Jerry Artery, a brother 
 of the plaintiff, was called as a witness by 
 nim. He 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 
 
CROSS-EXAMINATION. 
 
 [Case No. 15S 
 
 it in front upon which the plaintiff could 
 rest his feet while he was holding the 
 shovel, and as to the arrangement of the 
 cattlfi-guards. In the course of his cross- 
 examination, the following proceedings 
 occurred: "Question. On the 23d of 
 March, 18S6, at Harper's Ferry, in the 
 presence of Mr. Buell, did you sign a writ- 
 ten statement, stating what you linow 
 about this case, and about the accident to 
 your brother, after the written statement 
 had been read over to you? Answer. 
 Yes, sir. Q. I will show you now the 
 written statement, and ask you whether 
 that is your signature? (Written state- 
 ment shown the witness hereto attached 
 and marlied 'Exhibit A.') A. That is my 
 signature there. Q. In the written state- 
 ment which I have just shown you you 
 .state as follows: 'At the time Jim got 
 hurt we were running from 4]^ to 5 miles 
 Un hour — certainly not to exceed 5 miles.' 
 Us that statement correct? (Objected to 
 py plaintiff; objection sustained. 1 The 
 grounds upon which the court sustained 
 the objections to interrogatories to this 
 and other witnesses, based upon a written 
 statement signed by the witness, and to 
 the introduction of the written state- 
 ments themselve.s, were that it appeared 
 that the statements were not volunteered 
 toy the witnesses, but that the company 
 had sent its claim agent, after the happen- 
 ing of the accident, to exaniine the em- 
 ployes 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 
 <lown in full, but only a synopsis thereof 
 made by the agent, the correctness of 
 which is questioned by the witnesses in 
 some particulars, although such written 
 statement was signed by the witness ; 
 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 recited; that it is ap- 
 parent to the court that, whether so in- 
 tended or not, these statements become a 
 ready means ol confusing and iutimidat- 
 iiig witnesses before the jury, and that, if 
 it be permitted to parties to thus procure 
 written statements in advance from wit- 
 nea.ses, and then use the same in examin- 
 ing 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 lan- 
 guage not of the witness, but of the per- 
 son carrying on such e^ parte examina- 
 tion ; that these growing abuses can only 
 be prevented by entirely excluding such 
 statements thus procured from being In- 
 troduced in evidence for any purpose; 
 that, if tlie party desired to impeach a 
 witness by showing contradictory state- 
 ments made by him, the person to whom 
 or in whose presence such alleged contra- 
 dictory 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. Excep- 
 
 tion by defendant." The following fur- 
 ther proceedings took place on the cros.s- 
 examination of the same witness: "Ques- 
 tion. On the occasion I have referred to, 
 did you make this statement: 'Six men on 
 a hand-carhave plenty of room. We often 
 had 8 and 10 men on a hand-car of the 
 same size?' (Objected to by plaintiff; ob- 
 jection sustained ; exception by defend- 
 ant.) Q. Did you, on the occasion I have 
 referrfd to, at Harper's Ferry, say as fol- 
 lows: 'I am a larger man than Jim ever 
 was, and my legs are a great deal longer. 
 I have neverhad any troublein keeping my 
 feet up when I sat on the front of the car?' 
 (Objected to by plaiutiff; objection sus- 
 tained; exception by defendant.) Q. On 
 the occasion referred to, did you state 
 as follows : ' If a man is holding 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 
 plaintiff; objection sustained, exception 
 by defendant.) Q. On the occasion re- 
 ferred to, did you state: 'The hand-car 
 was in good condition, nothing broken 
 about it in any wa3-. It was an ordinary 
 car, full size?' (Objected to by plaintiff; 
 objection sustained; exception by defend- 
 ant.) Q. Did you, on the occasion re- 
 ferred 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?' 
 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 plaintiff; objection sustained; ex- 
 ception by defendant.)" Sub.sequently, 
 while the defendant was putting in its evi- 
 dence, the bill of exceptions says : "There- 
 upon the defendant offered in evidence, for 
 the purpose of impeachment, the state- 
 ment iindsr date of March 23, 1886, shown 
 the witness Jerry Artery, and hereto at- 
 tached, marked 'Exhibit A,' which, on ob- 
 jection by plaiutiff, was ruled out by the 
 court; to which ruling the defendant at 
 the time excepted." The court, in sustain- 
 ing 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 occasion. 
 Exhibit A, thus referred to, is a paper 
 signed by the witness, and contains the 
 statements set forth in tl>e six questions 
 thus excluded, as above. 
 
 That the evidence covered by the six 
 questions was material to the issue, is ap- 
 parent. They related to the speed of the 
 car, to the question of its size and wheth- 
 er it was crowded or not, to the question 
 Whether the plaintiff could have kept up 
 his feet without a foot-rest, and to the 
 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 the case, his atten- 
 tion must first be called, on cross-exam- 
 ination, to the particular time and occa- 
 sion when, the place where, and the per- 
 
 473 
 
Case Jfo. 159] PRODUCTIOX AND EFFECT OF EVIDENCE. 
 
 son to whom he made the varying state- 
 ments. In no other way can a founda- 
 tion be laid for putting in the impeaching 
 testimony. In the present case, it is ap- 
 parent that the views of the court, as set 
 forth in the bill of exceptions immediately 
 after the exclusion of the first question 
 which is above stated to have been ex- 
 cluded on the cross-examination of the 
 witness Jerry Artery, ifiust have been 
 founded, not only upon what had at that 
 time transpired, but also upon the subse- 
 quent 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 ques- 
 tion was asked upon cross-examination 
 and excluded, it had not yet appeared in 
 evidence under what circumstances the 
 written statement was made by the wit- 
 ness. 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 wit- 
 ness, but as evidence of the matters there- 
 in recited;" wliereas, when the statement 
 signed by the witness Jerry Artery was 
 offered in evidence and excluded, it was 
 /distinctly offered "for the purpose of im- 
 f peachment, "audit 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 statement 
 signed by a witness and admitted by him 
 to have been so signed, cannot be used in 
 cross-examiuinghira as to material points 
 testified to by him ; and in annouiiciug it 
 as a further rule that the only way to im- 
 peach 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 statp- 
 ments were made. The foundation niuit 
 be first laid for impeaching a witness, by 
 calling his attention to the time, place, 
 and circumstances of the contradictory 
 statejnent.s, whi'tlier they wei'e in writing 
 or made orally ; and the court, in the pres- 
 ent case, excluded that from being done. 
 The written statement having been pre- 
 sented to the witness, and he having ad- 
 mitted that what purported to be his sig- 
 nature to it was Ills signature, it was per- 
 fectly open to him to read it, and he could 
 have been inquired of as to the circum- 
 stances under which it was taken down 
 
 474 
 
 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 correct?" 
 did not refer to the entire written state- 
 ment, 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. & B. 284, 28S, is that if, on 
 cross-examination, a witness admits a let- 
 ter to be in his handwriting, 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 exist- 
 ence of the statements. This principle is 
 not applicable to the present 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 Railroad v. O'Brien, 119 U. 
 S. 99, 7 Sup. Ct. Rep. 118, is not in point. 
 In that case, which was a suit against a 
 railroad company to recover for personal 
 injuries received by an accident to a train,, 
 a written statement as to the nature and 
 extent of the injuries, made by the plain- 
 tiff's physician while treating him for 
 them, was held not to be admissible as 
 affirmative 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 i-el'erred to. Tiie question was not 
 one which arose on the cross-examination 
 of a witness or in regard to his impeach- 
 ment. 
 
 Nor was the present case one involving 
 the well-established proposition, that in- 
 competent questions are not allowable on 
 cross-examination in order to predicate 
 upon them an impeachment or contradic- 
 tion of the witness. The judgment is re- 
 versed, and the case is remanded to the 
 circuit court, with a direction to grant a 
 new trial. 
 
CROSS-EXAMINATIOX. 
 
 [Case No 160 
 
 In re SNELLING'S WILL. 
 
 (32 N. E. 1006, 136 N. Y. 515.) 
 
 Court of Appeals of New York. Jan. 17, 1893. 
 
 Appeal from supreme court, geueral term, 
 Second department. 
 
 Application for the probate of the will of 
 Mary Snelling, deceased. Probate was con- 
 tested by Mary Gorden and others, on the 
 ground, among others, of incapacity of tes- 
 tatrix to execute a will by reason of ad- 
 vanced age, impaired faculties, and undue 
 influence. From a judgment of the general 
 term (17 N. Y. Supp. 683) affirming a decree 
 of the surrogate's court admitting the will 
 to probate, contestants appeal. Reversed. 
 
 L. R. Beckley, for appellants. Thomas 
 Young, for respondents. 
 
 O'BRIEN, J. The will of Mary Snelling, 
 who died in the year 1890, was admitted to 
 probate, after a contest before the surro- 
 gate, which was instituted by her nephews 
 and nieces, her only next of liin, on the 
 ground of incapacity and undue influence. 
 She was about 84 years of age, and possessed 
 of a small personal estate, which she be- 
 queathed to the persons, husband and wife, 
 with whom she lived at the time of the exe- 
 cution of the will, which was but a few 
 months before her death. The property 
 came to her from her husband, who died in 
 1885. Subsequent to his death she lived 
 with various persons in the neighborhood as 
 a boarder, and during this time it appears 
 that she made several other wills in favor of 
 parties with whom she lived or boarded for 
 short periods of time. Her management of 
 the property, and the frequent change of 
 purpose on her part in disposing of it by 
 will, from time to time, in favor of different 
 persons withi whom she temporarily resided, 
 and to whom she was more or less attached 
 for the time, would seem to indicate that 
 slie had no fixed plan with refei-ence to her 
 estate, and possessed no great intelligence 
 in business ait'airs. Still it was not shown 
 conclusively that she lacked the capacity nec- 
 essary in a person of her age and condition in 
 life to dispose of her property by will, or that 
 the will in question was the result of undue 
 influence. The fact that the deceased was a 
 woman of advanced age, somewhat enfeebled 
 in body and mind, and that she gave her 
 property to strangers, instead of her collateral 
 relatives, from motives of gratitude or person- 
 al attachment, does not show that she was 
 wanting in intelligence sufficient to compre- 
 hend the condition of her property and the 
 scope and effect of the testamentary provi- 
 sions. So long as her mental powers en- 
 abled her to understand and appreciate the 
 amount and condition of her property, and to 
 comprehend the nature and consequences of 
 her act in executing the will, she was at lib- 
 erty to dispose of her own in such manner 
 
 as seemed best to her, providing the disposi- 
 tion was her own free act. AVhat the law 
 terms "undue influence" is not established 
 by proof tending to show that the testator 
 acted from motives of affection or gratitude,, 
 though the objects of her bounty were stran- 
 gers to her blood. The influence or moral 
 coercion, or by whatever other term desig- 
 nated, must be such as to overpower the will 
 of the testator, and subject it to the will and 
 control of another, in which case it assumes 
 the character of fraud. Horn v. Pullman, 72 
 N. Y. 276; Clapp v. Fullerton, 34 N. Y. 191 1; 
 HoUis V. Theological Seminary, 95 N. Y. 
 166; Mai-x v. McGlynn, 88 N. Y. 370. 
 
 The evidence given upon the trial before 
 the surrogate, viewed in the most favorable 
 light for the contestants, was conflicting; 
 and the findings that the deceased was pos- 
 sessed of sufiicient capacity to make a will, 
 and that the will was not the result of undue 
 influence, are conclusive upon us v>'ith re- 
 spect to the objections made against its pro- 
 bate. But the record discloses certain rul- 
 ings by the surrogate in the course of the pro- 
 ceedings before him which, in view of the 
 nature of the questions involved in the trial, 
 cannot be overlooked. On the hearing twiT, 
 witnesses were produced by the contestants 
 for the purpose of sustaining the objections'/ 
 made to the pi'obate of the will, who testified 
 at great length to various acts, conversa- 
 tions, and transactions of the testatrix, tend- 
 ing to establish undue influence and inca- 
 pacity. 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 50 printed pages in the record. 
 The proponents then called two physicians,' 
 who both testified that they had read thej 
 whole of the testimony of the two witnesses; 
 referred to above, giving the names of these 
 witnesses, and to each of them in succession 
 the following question was propounded: I 
 "Assuming their testimony to be true, and I 
 basing your opinion upon such testimony, I 
 what would you say as to the mental condi- 
 tion of Nancy Snelling, say in June, 1890?" 
 This question was objected to by the counsel 
 for the contestants, and, while the form in 
 which the objection was made is quite in- 
 artistic, there can be no doubt as to what 
 was intended, and we think it was sufiicient 
 to challenge the competency of the testimony 
 sought to be elicited. The surrogate over- 
 ruled the objection, and an exception was 
 taken. The witness in each case then an- 
 swered: "I should say she was perfectly 
 sane." It is needless to enter upon any rea- 
 soning or discussion to show that this ques- 
 tion was improper, as this court has more 
 than once condemned this method of elicit- 
 ing opinions from experts. Reynolds v. Rob- 
 inson, 64 N. Y. 589, 595; People v. McEl- 
 vaine, 121 N. Y. 250, 24 N. E. 465; Link v. 
 Sheldon, 136 N. Y. 1, 32 N. E. 696. And it 
 would be difficult to imagine a plainer breach 
 
Case No. 160] PRODUCTION' AND EFFECT OF EVIDENCE. 
 
 of the rule than is presented by the question 
 propounded to the witness in this case. The 
 principle is not changed by the circumstan- 
 ces that all the testimony embraced within 
 the sweeping terms of the question was be- 
 fore the court, or by the fact that the mass of 
 testimony upon which the opinion was based 
 <!ame from witnesses of the opposite party. 
 The necessity of a specific question, at the 
 time of the examination of the witnesses, cov- 
 ■ering all the facts, or assumed facts, upon 
 whicli the opinion of the exijert 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 beneficiaries 
 under the will. About the time of the hear- 
 ing upon the contest before the surrogate 
 this subscribing witness was visited by a wo- 
 man who, under an assumed name, and with- 
 out disclosing her real purpose, had been 
 procured by the contestants 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 testatrix 
 was at the time apparently rational, was 
 subjected to a long cross-examination with 
 reference to the interview with the visitor 
 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 exclud- 
 ed by the surrogate. She was asked, how- 
 ever, in substance, if Mrs. Cook, who was 
 I one of the beneficiaries under the will, and 
 interested in its probate, and who had pro- 
 1-cured her to attend as a witness to the will, 
 Jhad not promised her money or some reward 
 ;in the case, and she answered the question 
 'In the negative. Subsequently the woman 
 who sought the mteiTiew in the interest of 
 
 476 
 
 the contestants was called as an impeaching 
 witness, and in various forms was asked 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 controversy is a mate- 
 rial inquiry, as it bears upon the question of 
 credibility; and where a witness has re- 
 ceived, or has been promised, any reward for 
 giving testimony in a case, the fact may be 
 shown upon cross-examination, and, if de- 
 nied, 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 impeach- 
 ment, when the proper foundation Is laid. 1 
 Greenl. Ev. § 450; Newton v. Harris, 6 N. 
 Y. 345; Starks v. People, 5 Denio, 106. Many 
 of the questions propounded to the impeach- 
 ing witness were so framed that their pui-- 
 pose or meaning was not quite clear, or they 
 were so intermingled with other matters that 
 they were properly excluded; but with re- 
 spect 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 pro- 
 cure the impeaching testimony might well 
 affect its credibility with the surrogate, but 
 could not affect its competency. An error 
 in admitting or excluding evidence in such a 
 case is not suflicient to reverse the decree 
 of the surrogate, unless it appears that the 
 party against whom the ruling was made 
 was necessarily prejudiced thereby. Code, 
 § 2545. The rulings referred to related to 
 important testimony in the case, and, at 
 least in some degree, must have been preju- 
 dicial 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 concur. 
 
CROSS-EXAMINATIOIT. 
 
 [Case No. 161 
 
 WELCH V. STATE. 
 
 (3 N. E. 850, 104 Ind. 347.) 
 
 Supreme Court of Indiana. Dec. 15, 1885. 
 
 Appeal from circuit court, Monroe county. 
 
 Landen & Miers, for appellant. J. E. Hen- 
 ley, for appellee. 
 
 MITCHELL, J. The indictment in this 
 record charges, with proper formality, that 
 on the fourth day of Januaiy, 1885, William 
 Welch did feloniously, etc., kill and murder 
 one Louis Fedder, by then and there feloni- 
 ously, etc., "sti-iking him, the said Louis Fed- 
 der, upon his head with a dangerous and 
 deadly weapon, to-wit, a large heavy club, 
 which he, the said William Welch, had and 
 held in his hands." The only objection made 
 to the indictment is that, by the omission of 
 the words "then and there" after the name 
 of the accused, as last above set out, it fails 
 to allege that the defendant had the club 
 In his hand at the time of the beating and 
 striking. Within the ruling in Dennis v. 
 State, 2 N. E. 349, there is no force in this 
 objection. 
 
 The accused was found guilty of murder 
 in the first degree, and his punishment fixed 
 at imprisonment for life. His conviction 
 rests largely, if not entirely, upon the testi- 
 mony of one Matthew James, whose evidence 
 relates wholly to alleged confessions or ad- 
 missions made by the defendant to him. Be- 
 sides the testimony of .James are some crim- 
 inating circumstances of more or less weight. 
 
 The evidence of the alleged confession, as 
 detailed by tliis witness, Is not altogether 
 free from suspicion; and the circumstances 
 under which it is said to have been made, 
 and the not altogether unblemished reputa- 
 tion of the witness, as it is made to appear 
 in the record, detract somewhat from the 
 force and reasonableness of the confession as 
 related by him. Notwithstanding this, con- 
 sidering the other circumstances which ap- 
 pear, since the jury have passed upon it, we 
 should hesitate to disturb their finding on 
 the evidence. The witness testified that the 
 defendant made admissions to him, indica- 
 tive of his guilt, in the presence of Andrew 
 Cooper, and Charles Young. Both of these 
 persons were called as witnesses for the de- 
 fense, and both denied having heard any- 
 thing of the kind testified to by James. 
 
 Cooper, having testified on his direct ex- 
 amination that he heard no confession made 
 by the defendant to James, and no talk be- 
 tween them about the murder of Fedder, was 
 asked, on cross-examination by counsel for 
 the state, this question: "I will ask you if, 
 in the barber shop of "William Profit here in 
 Bloomington, you did not say there that 
 morning that you knew Bill Welch was the 
 man that killed Louis Fedder?" To this 
 question the appellant objected, for the rea- 
 son that it was asking the witness for an 
 opinion expressed by him out of hearing of 
 defendant, and was not asking for a fact, 
 
 and was not a cross-examination, which ob- 
 jection was overruled, and defendant ex- 
 cepted, and the witness answered, "I did 
 not." The state then asked the witness, 
 "And if you did not say there that you were 
 willing to bet $250 that Bill Welch was the 
 guilty man?" To this question the appellant 
 again objected, for the reason stated. The 
 objection was again overruled and the wit- 
 ness answered, "I did not." The state then 
 called William Profit, and asked him the fol- 
 lowing question: "State to the juiy whether 
 you heard him [Andy Cooper] make the re- 
 mark that 'William Welch or Bill AVekh is. 
 the man who murdered old man B^edder. I 
 am not guessing at it; I know it' " To this 
 the appellant objected, for the reason that 
 the question was illegal and incompetent, 
 and was hearsay evidence, and was an effort 
 to impeach a witness on irrelevant and im- 
 material matter, and that the question re- 
 ferred to the opinion of an outside party; 
 which objection the court overruled, and ap- 
 pellant excepted, and the witness answered:: 
 "Yes; he sai^ that." The state then asked 
 the witness the following question: "I will 
 ask you if he said then, at the same time and 
 place, 'I will bet,' or 'I am willing to bet, 
 $250 that he is the man?' " To which question 
 the appellant again objected, for the same 
 reasons, which objection was again over- 
 ruled, and defendant excepted, and the wit- 
 ness answered: "Yes, sir; he said that." 
 The same question was asked the witness 
 Harry Innes, by the state, to which the ap- 
 pellant objected, for the same reasons. These 
 rulings of the coui-t were presented, among 
 others, as causes for a new trial. 
 
 We know of no principle or authority upon 
 which to maintain the rulings of the court 
 in admitting the testimony of Profit and In- 
 nes. The conversation about which inquiry 
 was made of Cooper on cross-examination 
 was so remotely, if at all, connected with the 
 subject of his direct examination, and of the- 
 matter in issue, that the rule was put to its 
 utmost tension in allowing the question to 
 be asked him, over the defendant's objection. 
 Mclntire v. Young, 6 Blackf. 496. As, how- 
 ever, if the witness had admitted that h& 
 made the declarations imputed to him by the 
 cross-examining question such admission 
 might have formed the basis for further in- 
 quiry as to the sources of his knowledge, or 
 the grounds upon wliich he based his opinion 
 of the guilt of the accused, with a view of 
 driving him ultimately to an admission that 
 he heard the alleged confession, we think it 
 was within the discretion of the court to al- 
 low the question. Having denied the imput- 
 ed declarations, we think the state was bound 
 by the denial. The subject about which the 
 witness was Inquired of was new, and col- 
 lateral to the main issue. Seller v. Jenkins, 
 97 Ind. 430. It did not come within the rule 
 that a witness may be shown to have made 
 statements out of court inconsistent with 
 his testimony given upon the trial. The con- 
 
 47T 
 
Case Xo. 161] PUODUCTION AND EFFECT OF EVIDEXCE. 
 
 versation or declarations imputed to him Lad 
 no relation, except by argument or inference, 
 to the testimony given by the witness in his 
 examination in chief. They were not contra- 
 dictory of his testimony as given, nor were 
 thej' inconsistent with it so as to become the 
 subject of an impeachment. 1 Whart. Ev. 
 §§ '>')■'. .5.59; Seller v. .Jenkins, supra. 
 
 This ease is complete in its analogy with 
 that of Feople v. Stackhouse, 49 Mich. 76, 13 
 N. 'W. oG4. In that case a witness was ex- 
 amined on behalf of the accused, who was on 
 trial for the crime of arson. On cross-exam- 
 ination she was asked if she had not said to 
 certain persons named, on the night the ac- 
 cused was arrested, that she always did sus- 
 pect that he did burn the mill. Having de- 
 nied the imputed conversation, two witnesses 
 were called who testified that she had so 
 stated. Reversing this ruling, the court said: 
 "The opinion or suspicions of the witness 
 out of court, although inconsistent with the 
 conclusion which the facts which she testified 
 to on the trial would warrant, cannot be made 
 the basis of an impeachment, This is so 
 firmly settled by the authorities that the 
 tjuestion cannot be considered an open one." 
 
 AVhether the matter inquired of on cross- 
 examination, and proved by the state in im- 
 l)eachment of Cooper, was collateral to the 
 main inquiry or not, is determined by this in- 
 quiry: Would the prosecuting attorney have 
 been permitted to introduce it in evidence as 
 part of the state's case? If he would not, it 
 was collateral. It it was collateral, it was 
 not competent to contradict it. 1 Whart. Ev. 
 § 559; George v. State, 16 Neb. 318, 20 N. W. 
 311; State v. Townsend (Iowa) 24 N. W. 535; 
 Sumner v. Crawford, 45 N. H. 416; Moore 
 V. People, 108 111. 484. 
 
 In 1 Greenl. Ev. § 449, the rule is stated 
 thus: "And if a question is put to a witness 
 which is collateral or iri'elevant to the issue, 
 his answer cannot be contradicted by the 
 party who asked the question, but it is con- 
 clusive against liim." 
 
 In 1 Starkie, Ev. § 200, the author says: "It 
 is here to be observed th.at a witness is not 
 to be cross-examined as to any distinct col- 
 lateral fact for the purpose of afterwards im- 
 peaching his testimony by contradicting 
 him." 
 
 In Whart. Ev. § 559, the learned author 
 says: "In order to avoid an interminable 
 
 478 
 
 multiplication of issues, it is a settled rule of 
 practice that when a witness is cross-exam- 
 ined on a matter collateral to the issue, he 
 cannot, as to his answer, be subsequently 
 contradicted by the party putting the ques- 
 tion." 
 
 The ruling of the court in admitting this 
 evidence, and other rulings admitting evi- 
 dence of like character, was such error as 
 must reverse the judgment. 
 
 In the fifth reason assigned for a new ti-ial 
 is also included an alleged error of the court 
 in excluding the evidence of James Kelley, 
 a witness for appellant. When James Kel- 
 ley was on the witness stand the counsel of 
 appellant asked him to state what he knew 
 of the intention of the defendant to leave 
 Bloomington, and for what purpose, etc. 
 To this question the state objected for the 
 reason that it was hearsay. Counsel for the 
 defendant stated that the defendant wanted 
 to show that defendant and this witness had 
 a conversation as to his going away to the 
 Air Line Railroad to get a job of work, in- 
 stead of going away to avoid a prosecution; 
 that the defendant made his going away pub- 
 lic; and that he made known his intention 
 and purpose to five or six other witnesses, 
 and tliat he went to get work, and got work. 
 The court sustained the objection, and ap- 
 pellant excepted. Concerning the evidence 
 thus proposed, it may be said the record fails 
 to show that the state had introduced evi- 
 dence tending to show that the defendant 
 left Bloomington under circumstances which 
 might indicate a purpose to avoid arrest and 
 prosecution. Until some evidence was intro- 
 duced by the state upon which a claim of 
 flight or evasion of arrest might have been 
 based, the evidence offered was immaterial. 
 It may have been excluded for that reason. 
 We need not decide wliether, under any cir- 
 cumstances, such evidence is competent. 
 Hamilton v. State, 36 Ind. 280; Austin v. 
 Swank, 9 Ind. 109; Boone Co. Bank v. Wal- 
 lace, 18 Ind. 82. 
 
 The application for a new trial, so far as it 
 was asked on the ground of newly-discovered 
 evidence, need not, in view of the fact that, 
 for the reasons already given, the judgment 
 must be reversed, be further noticed. Judg- 
 ment reversed, with directions to the clerk 
 to make the proper order concerning the fur- 
 ther custody of the defendant. 
 
 V 
 
EE-EXAMINATION. 
 
 [Case Ko. 162 
 
 ANEALS et al. v. TBOPLE. 
 
 (25 N. E, 1022, 134 111. 401.) 
 
 Supreme Court of Illinois. Nov. 1, 1890. 
 
 Error to circuit court, Adams county ; 
 Wii^LiAM Marsh, Judge. 
 
 Indictment for assault with intent to 
 •commit murder. Tlie instructions referred 
 to in tlie opinion were as follows: "The 
 •court instructs the jury that in determin- 
 ing the question whether the defendants 
 William Aneals and Louis Stormer were 
 or were not av another place, or at other 
 places, at the time of the alleged assault, 
 they should not be govei'ned alone by the 
 testimony of the witnesses introduced to 
 prove an alibi, but that it is the duty of 
 the jury to consider all the evidence in the 
 case before them, and unless the jury, after 
 considering all the facts and circum- 
 stances in evidence before them, have a, 
 reasonable doubt as to the presence of the 
 defendants William Aneals and Louis 
 Stormer at the home of James Knox at 
 the time of the assault, that then the jury 
 should not permit the defense of an ulibi 
 to avail said last-named defendants." 
 ^'The court instructs the jur.y that the 
 theory of an alibi in this case is that the 
 defendants were so far removed from the 
 scene of the alleged assault at the time of 
 its commissi<in as to make it Impossible 
 that they could have committed it; and 
 even although the jury may believe from 
 the evidence in the case that the defend- 
 ants were at other and different places 
 than the scene of the assault on the same 
 evening such assault, if any, was made, 
 nevertheless, if the jury further believe 
 from the evidence in the case beyond a rea- 
 sonable doubt that the defendants could 
 have reasonably been at the place of such 
 assault at the time thereof, and also at 
 such other place or places, on the same 
 evening, and at the time or times men- 
 tioned by the witnesses in the case, that 
 then the defense of an alibi cannot avail 
 the defendants." 
 
 John H. Williams and Charles M. Gil- 
 mer, for plaintiffs In error. George Hunt, 
 Atty. Gen., for the People 
 
 SHOPE, C. J. At the May term, 1889, of 
 the Adams circuit court, Francis Asbury 
 Aneals, William Aneals, and Louis Storm- 
 er were indicted for an assault upon James 
 Knox, with Intent to commit murder. At 
 the September term, 1889, the trial resulted 
 In a verdict of guilty, fixing the terra of 
 Asbury and William Aneals, severally, at 
 18 months In the penitentiary, and the de- 
 fendant Stormer at 1 year. A motion lor 
 a new trial was sustained as to Asbury 
 Aneals, but overruled as to the other de- 
 fendants, and they were severally sentenced 
 on the verdict. They prosecute this writ 
 of error. 
 
 The first contention is that the verdict 
 should have been set aside because the 
 proof failed to sustain it. No question Is 
 made that there Is ample proof of the cor- 
 pus delicti. The only question of fact Is 
 as to the Identity of the persons who com- 
 mitted the assault. On April 27, 1889, 
 about 8 o'clock in the evening, while 
 James Knox and his family were at the 
 
 supper table, two masked men entei-ed the 
 house, and saying only, "Hold," flred two 
 shots at Knox from a revolver, each firing 
 one shot, one taking effect In the nose of 
 Knox, the other missing him and passing 
 out through a window. The assailants 
 then backed out of the house, drew shut 
 the door, and disappeared. There were 
 I)resent James Knox, his wife, Samuel 
 Knox, a brother of James, Miss Agnes 
 Lagee, and Miss Hattle Wibble. The lat- 
 ter two had just risen from the table. 
 Miss Lagee was within four feet, and pos- 
 sibly nearer the smaller, of the two assail- 
 ants. One of the assailants was consid- 
 erably larger than the other. The larger 
 one came in first, but the smaller one 
 stepped furthest into the room. Samuel 
 Knox was 10 or 12 feet from the door at 
 which the assailants entered, which was 
 on the south side of tlie room, winding the 
 clock which hung on the west wall of the 
 room. James Knox was unable to Iden- 
 tify either of the assailants, and unable to 
 give an.v description of them, except that 
 the smaller of the two was a man from 5 
 feet 6 to 8 inches high, weighing 130 or 140 
 pounds, "longlsh neck," shoulders not 
 broad but square. Miss Lagee, who was 
 nearer than the others, says that one was 
 quite alittle smaller than the other in size, 
 build, and height; that she noticed the 
 e.ves of the smaller one particularly 
 through his mask. She also noticed that 
 the hair of one of the assailants was dark, 
 and the other light. On the following 
 Saturday morning, this witness and oth- 
 ers went to Aneals' and Stormer's to see if 
 they could Identify any one. She says 
 that Stormer's build and size resembled 
 very much the size and build of the small- 
 er of the assailants. He had light blue 
 eyes, and a peculiar stare about them 
 " that I noticed particularly that night." 
 She also states that the eyes were rather 
 small, and through the mask they seemed 
 rather round than oval. The larger of the 
 two men had dark eyes and hair. Both 
 wore light, brown-gray suits, and hats 
 the same color. The larger one had a 
 large hat; the other a small one. The 
 larger one had square shoulders, was firm- 
 ly built, and straight. She testified that 
 the description of the larger one answers 
 to that of William Aneals "very well." 
 She was unable to recognize any one as 
 the assailant, but testified that the two 
 defendants, William Aneals and Louis 
 Stormer, resembled the parties who made 
 the assault. On the motion for a new 
 trial, she filed an affidavit stating that she 
 did not believe that the defendants were 
 the assaulting parties, and did not Intend 
 to be so understood in giving her testi- 
 mony. Miss Wibble was unable to identl- 
 f.y any one, while she agrees with the oth- 
 er witness In the main as to the descrip- 
 tion of the persons who made the assault. 
 Samuel Knox testified that he had known 
 William Aneals from infancy, and was 
 familiar with his size, form, and general 
 appearance. He describes particularly the 
 clothing and hats of the assailants, and 
 says he saw William Aneals wear a hat 
 like the one described b.y him, on May 6th, 
 in Quincy. He saw him clearly at the time 
 of the shooting. Saw none of his face but 
 
 479 
 
Case No. 162] PRODUCTIOX AND EFFECT OF EVIDENCE, 
 
 his chin, anrl that resembled the chin of 
 William Aneals. He testified that he 
 thousht he know these men, and was sat- 
 isfied from what he saw that William 
 Aneals was one of them. On cross-exam- 
 ination of this witness, mucli occurred 
 that might very properlyweaken the force 
 of his testimony. 
 
 It is made to appear with reasonable 
 certainty that no one came out onto the 
 road or public highway in front of tiie 
 house immediately after the shooting; 
 but back of the house, near the hedge, it 
 was found that two horses had been 
 hitched, and an ox)ening had been made 
 through a rail fence, and that horses had 
 passed through the same going north. 
 The rails had been recently let down, and 
 horses led or ridden over them. On the 
 fence were^tound prints of horses' feet, and 
 black and bay horse-hair. The horse 
 tracks led in the general direction of 
 where Aneals and Stormer lived ; that is, 
 northerly. One of the horses tliat made 
 these tracks had two shoes behind, and 
 one in front. The other was shod in front 
 only. The large tracks were made by the 
 horse having three shoes. Knox lived on 
 the east side of section 15. To go to 
 Aneals' through the fields would be from 
 a mile and a half to two miles north, and 
 a half mile west. The witness Carroll had 
 been at Ingraham's. substantially a half a 
 mile west from William .Aneals', and was at 
 the gate "at the corner" about 200 yards 
 from Aneals' house, where the road turns 
 north toBloomfield. At about 8:30 o'clock 
 he saw two persons on horse-back coming 
 from the south, and which would be from 
 the general direction of Knox's going 
 north. At the corner mentioned the rid- 
 ers turned east. He thought he recog- 
 nized one of them as the defendant Will- 
 iam Aneals, and called to him by name, 
 but received no reply. He also thought 
 that he recognized the horse next to him, 
 the larger of the two horses, and it was, 
 as he thought, the horse ti)at William 
 Aneals had shortly before that purchased 
 of Louis Fogle. It was moderately dark, 
 and the moon not shining. The persons 
 were riding in a "fair lope. " Two wit- 
 nesses examined the horse tracks found 
 near Knox's house, and in the field. Sub- 
 sequently, the witnesses Carroll and Hunt- 
 er examined William Aneals' horses, and 
 found a large mare belonging to him, 
 with two shoes behind and one in front, 
 which Carroll testifies was the Fogle 
 mare, and whose feet, they testify, com- 
 pared exactly with the largertracks found 
 at the Ifence and in the field near Knox's 
 house. One witness, at least, went to As- 
 bui'y Aneals' barn, and found a horse, 
 shod in front, and bare beliind, the tracks 
 of which were apparently the same as the 
 tracks of the other horse found back of 
 Knox's house, and in the field. The horse- 
 hair found at the fence was of the same 
 general color as the hair upon the legs of 
 the two horses meutioned by the wit- 
 nesses. On Thursday following the shoot- 
 ing, Carroll saw the Fogle mare at Will- 
 iam Aneals', and the hair had been cut off 
 her legs, when, however, does not appear. 
 The evidence shows that, a short time 
 prior to the assault, Asbury Aneals and 
 
 480 
 
 James Knox had had some difficulty over 
 local political affairs. Much ill feeling seems 
 to have been engendered at and before the 
 caucus, which nominated both of these 
 men for office; Aneals for supervisor, and 
 Knox for assessor. Knox was elected, 
 and Aneals defeated. William Aneals is 
 the son of Asbury ; Louis Stormer lived 
 near the Aneals, and, at the time of the 
 assault, was in William Aneals' employ. 
 About a week after the election, the wit- 
 ness Altenheim testifies that Asbury An- 
 eals said, when It was remarked that Mr. 
 Knox was elected, that "he would never 
 serve." The witness Gould, who claims 
 to have been present, corroborates the 
 statements of Altenheim, which are denied 
 by Aneals. The defense was an alihi. 
 
 In respect of the evidence, of which the 
 foregoing is an imperfect epitome, it must 
 be said the jury heard the descriptions 
 given of the assailants, particularly of the 
 one alleged to have been Stormer, and had 
 the opportunity of comparing it with the 
 defendants as they appeared on the trial. 
 They saw the witnesses, could observe 
 their demeanor, and thereby .iu(lge of the 
 weight and credit due to each; all of 
 which is denied to us. If the description 
 of Thesmallerof the two assailants, in con- 
 nection with the other facts and circum- 
 stances jJroved, satisfied them beyond a 
 reasonable doubt as to his identity, they 
 were justified in finding him guilty. In 
 respect of the defendant William Aneals, 
 it they believed his identification by the 
 witnesses, Samuel Knox and Carroll, was 
 sufficiently certain, when taken in connec- 
 tion with the very strong circumstances 
 proved tending to connect him with the 
 commission of the offense, to remove all 
 reasonable doubt as to his identity, they 
 were likewise justified in their verdict, un- 
 less a reasonable doubt of the guilt of said 
 defendants, or oneof them, was created by 
 the evidence of good character of the ac- 
 cused, and of that tending to prove an 
 alibi. No motive in respect of the defend- 
 ant Stormer is shown, unless it can be 
 traced to the fact that he was the friend 
 of, and working for, the Aneals. In re- 
 spect, however, of William Aneals, it can- 
 not be said that evidence of motive was 
 altogether wanting. James Knox had de- 
 clined to run for office on the ticket with 
 his father, and the brother of said Knox 
 had stated in open caucus that he was 
 ashamed to have his brother run on the 
 same ticket with Asbury Aneals. Both, 
 however, ran, and Aneals was defeated, 
 and Knox elected. It seems that Asbury 
 Aneals was much incensed. Knox was 
 also a school director, and Asbury Aneals 
 said, to the witness Whitler, that he 
 wanted Knox out; he wanted "the scoun- 
 drel out. " In view of the facts and circum- 
 stances proved, itcannot be said that there 
 was not sufficient evidence upon which to 
 predicate a verdict of guilty, if the jury be- 
 lieved it to be true. And, as to the itlibi, it 
 must be said, when the evidence is all con- 
 sidered, that the defense is not established, 
 and the jury were, we think, justified in 
 concluding that the presence of the plain- 
 tiffs in error at the store in Bloomfleld, at 
 from aboutSo'clocktoaboutlO o'clock, on 
 the night of the assault, was not neces- 
 
RE-EXAMIN ATIO X'. 
 
 [Case No. 162 
 
 surily inconsiateut with their being pres- 
 ent at the time and place of the as- 
 sault. Perhaps the weight of the testi- 
 mony in support oJ the nlibi is that William 
 Aneals came to Davis' store in Bloomfleld 
 about 8 o'clock,— some of the witnesses tor 
 defendants, however, put it later, — and 
 that Stormer reached the store 5 to 10 
 minutes later than Aneals. To illustrate : 
 John Carlin came to the store between 
 7:80 and 8 o'clock, and says: "I saw Aneals 
 when he came in. I was there quite a 
 wiiilebefore hecamein; " andfurthersays: 
 "To the best of my opinion, it was some- 
 where about 8:30 when I first saw Will- 
 iam Aneals at the store. " Henry Nedick, 
 wlio was at Davi.s' store on the evening 
 in question, was produced by the plaintiffs 
 in error, and lived about three-fourths of 
 a mile from Bloomfield. He says: "I 
 looked at the clock before I went. It was 
 just 8 o'clock. It struck while I was look- 
 ing. " He then says he started with a lit- 
 tle boy, and walked to the store, taking 
 about ]5 minutes' time. Aneals was then 
 at the store, and Stormer came about 10 
 minutes later, which would indicate that 
 Aneals had just arrived. The difference 
 of time of the coming of Aneals and 
 Stormer, as shown by all the proof, would 
 indicate that Aneals, as before said, had 
 just arrived at the store, so thatitis possi- 
 ble, if not quite probable, in view of all 
 this testimony, that the arrival of Aneals 
 was later than 8 o'clock. The distance 
 from Knox's house to Aneals', by the 
 road that Carroll saw the parties men- 
 tioned by him coming, would be from 2}^ 
 to 3 miles; and from Aneals' to the store, 
 about three-fourths of a mile; and from 
 Stormer's to the store, but a few hundred 
 yards. When the persons described by 
 Carroll passed him, the horses were on 
 a "fair lope." It is apparent that if these 
 plaintiffs in error were escaping from the 
 ecene of their crime, but a very few mo- 
 ments would be required tocoverthese dis- 
 tances. It appears, from the testimony 
 introduced by plaintiffs in error, that 
 they ate supper together at William An- 
 eals' house, and Stormer's presence is 
 unaccounted for, by any evidence, save 
 that of plaintiffs in error, from that time 
 until he reached the store, except from 
 2 to 6 minutes that he was at his father's, 
 before walking the five or six hundred 
 ^rds from his father's house to the store, 
 rt is also to be remembered that no one 
 at Knox's pretends to have looked at any 
 time-piece, or to give any more definite 
 statement of the time than that it was 
 about 8 o'clock. No data is furnisheu 
 from which that conclusion is reached. 
 And, taking into consideration the time 
 intervening before any person left the 
 house to send for a doctor, the time they 
 were gone when they did go, and the dis- 
 tance traveled, in connection with the tes- 
 timony of the physician that he was called 
 at 9 o'clock, started to Knox's 15 minutes 
 thereafter, and arrived there at about 10 
 o'clock, or a few minutes later, would seem 
 to very clearly indicate that the assault 
 might have been committed some time 
 before S o'clock. Some of the persons had 
 just risen from the supper table, and Knox 
 and his wife were still at the table when 
 
 WILGUS.EV.— 31 
 
 the assault occurred. On the one side, 
 those witnesses who seemed to have 
 looked at time pieces place the arrival at 
 the store in Bloomfield later than 8 
 o'clock ; while on the other no one pre- 
 tends to have known the exact time of the 
 assault. It is very clear that a half hour, 
 or even less, would have sufficed for the 
 commission of the offense, and the arrival 
 of the plaintiffs in error at the store in 
 Bloomfield. We cannot say, in view of 
 this evidence, and the circumstances 
 proved, that there was necessarily such 
 inability for the plaintiffs in error to com- 
 mit the offense as would create a reason- 
 able doubt of their guilt. 
 
 It is objected the court erred in not per- 
 mitting the plaintiff in error to show, by 
 the witness Gould, that the witness Hunt- 
 er offered him ,¥50 to testify to certain 
 facts, after Hunter was informed that the 
 supposed facts were not true. Nofounda- 
 tion had been laid in the examination of 
 Hunter, who was a witness for the people, 
 and the evidence was therefore improper, 
 and the court properly excluded it. For 
 the same reason, like questions asked of 
 the witness Dudley, and others, were held 
 to be improper, and objection thereto sus- 
 tained. In like manner, the plaintiffs in 
 error produced Mr. Judy, who was fore- 
 man of the grand jury, and he was asked 
 if Samuel Knox did not testify before the 
 grand jury, in respect of certain material 
 matters, in a particular way; that is, as 
 to whether or not he did not then state 
 that he did not know, and could not rec- 
 ognize, either of the men making the as- 
 sault, etc. No foundation whatever was 
 laid, in the testimony of Knox, for the in- 
 troduction of this testimony. And pre- 
 cisely the same is true in respect of the 
 offered testimony of the witness Percell 
 and others. No good purpose can be sub- 
 served by noticing these, objections in 
 detail; they all rest upon the same basis, 
 and the ruling of the court was for the 
 same reason proper. It is not proper to 
 call witnesses to contradict or impeach a 
 witness in respect to matters occurring out 
 of court, as by showing that he has made 
 some statement out of court inconsistent 
 with his testimony, unless the attention 
 of the witness is firstcalled to thetimeand 
 place of the alleged statement or declara- 
 tion, and he is afforded an opportunity 
 for explanation in resi)ect thereof. This 
 rule is so familiar as to require the cita- 
 tion of no autiiorities in its support. 
 
 Numerous other objections are made in 
 respect of the rulings of the court on the 
 introduction of testimony, some of which 
 may properly be considered. The defend- 
 ants produced a large number of witnesses, 
 who testified to the previous good char- 
 acter of the defendants, — some to all, and 
 others to one or more of them, — of whom 
 the state's attorney inquired if they had 
 not heard of an assault by Asbury Aneals, 
 who it will be remembered was also on 
 trial, upon one Sigsby; and whether they 
 had not heard of his being accused of 
 poisoning Sigsby's horses. Some of these 
 witnesses stated they had heard of the sup- 
 posed assault on Sigsby, and others that 
 they had seen the occurrence. Thereup- 
 on, counsel for defendants insisted upon 
 
 481 
 
Case Xo. 162] PRODUCTION AND KFFECT OF EVIDENCE. 
 
 their right to have the witnessps state 
 wliat dirt occur between Aneals aud Sigts- 
 by, to which tlie court sustained an ob- 
 jection, and, we thinls, properly so. To 
 have permitted the witnesses to detail 
 what occurred at that time would have 
 necessitated a trial oj a purely collateral 
 question. Trials would become intermina- 
 ble. It may safely be stated that there is 
 neither reason nor authority for the posi- 
 tion of counsel. Some of the witnesses 
 said they had heard of the charge of pol- 
 Boningr, after the assault in this case; that 
 it was first published in a newspaper in 
 Quincy after the arrest of the defendant. 
 The defendants then offered to prove that 
 it was published at the instigation of the 
 witness Hunter, to which objection was 
 made, and objection sustained. No foun- 
 dation had beenlaid in the examination of 
 Hunter for this character of proof. More- 
 over, the testimony in respect of both the 
 assault and poisoning related only to the 
 defendant Asbury Aneals. In no way was 
 the defendant William Aneals or Stormer 
 connected with either of said matters, or 
 the rumors in respect thereof. In no event 
 would it beerror of which they could com- 
 plain. We are of opinion that it would 
 have been proper to have permitted the 
 defendant Asbury Aneals to answer as to 
 whether he and the witness Altenheim 
 were on friendly or speaking terms at the 
 time referred to by Altenheim, when he 
 says Aneals said that Knox would never 
 serve as assessor, as tending to show the 
 probability or improbability of his having 
 made thestatement imputed. But the de- 
 fendants received the full benefit of Asbury 
 Aneals' denial of the statement attributed 
 to him, and his testimony could not have 
 been made stronger by this additional 
 statement. It is impossible that the de- 
 fendants could have been prejudiced by 
 this ruling. 
 
 It is urged with great pertinacity that 
 the defendants should have been permit ted 
 to show as a sul)Stantive fact that the 
 witness Hunter had ill feeling and hatred 
 towards the defendants, and was actu- 
 ated by corrupt motive The witness 
 Hunter admitted on cross-examination 
 that a reward of $1,000 had been offered 
 for the arrest and conviction of the as- 
 sailants, and he was then asked, "Is it not 
 a feet that your interest In it was of the 
 money reward which was offered?" and 
 he answered, "Of course, if I get the right 
 parties. IE I get the right parties I expect 
 to get the reward. " He then testified that 
 he had no ill feeling towards any of the 
 defendants, that he had not talked slight- 
 ingly or bitterly about them, had not 
 called them names, or used expressions of 
 that kind. He was asked if he had not 
 made such statements to Mr. Colbnrn, and 
 he said, "No." As to matters pun y col- 
 lateral, where the party calls them out on 
 cross-examination, he is bound by the an- 
 swer of the witness, but not so in respect of 
 matters relevant and material to the is- 
 sue being tried. The feeling and disposi- 
 tion of the witness towards the party is 
 held to be relevant and material; and, on 
 cross-examination, it is competent to tost 
 the witness in respect of his feeling, and 
 if he has not done acts, or used expres- 
 482 
 
 sions, showing hatred or ill will against 
 the party against whom he is testifying, 
 and if he denies the same, to introduce con- 
 tradictory evidence by way of impeach- 
 ment. 1 Greenl. Ev. § 450; Phenix v. Cast- 
 ner, 108 111. 207, and authorities cited. But 
 the rule in respect of the contradiction of 
 the witness in such matters is the same as 
 in respect to any other matters material 
 and relevant to the issue. Before witness- 
 es can be called to show that statements 
 have been made out of court. Inconsistent 
 with those testified to at the trial, it is 
 necessary, as before said, to lay the proper 
 foundation by calling his attenticm to the 
 time, place, and person involved in the 
 supposed contradiction. Then, if he de- 
 nies having made the declaration, or done 
 the act imputed, the contradictory evi- 
 dence becomes proper. This we under- 
 stand to be the uniform practice, and to 
 which we are not aware of any exception. 
 1 Greenl. Ev. § 462; The Queen's Case, 2 
 Brod. & B. ;il3; Conrad v. Griffey, 16 How. 
 38. As before stated, as respects the wit- 
 ness Percell and others, so in respect to the 
 witnesses Colburn and Gould, no proper 
 foundation is laid for the offered testi- 
 mony, although the attention of counsel 
 was called, during the examination of 
 Hunter, to the necessity therefor, by the 
 court, and of which they now complain. 
 In view of the fact that the court called 
 the attention of counsel to the omission, 
 and the manyinterrogatoriesputtoHunt- 
 er upon the subject of his feeling, we can- 
 not say that it was an abuse of the dis- 
 cretion lodged in the court to refuse to 
 permit Hunter to be recalled for the pur- 
 pose of laying the foundation for the in- 
 troduction of other and different matters, 
 or statements alleged to be made at other 
 times and places. Hunter had been asked 
 respecting a statement at Colburn & Ba- 
 ker's store, and if he had not used certain 
 language. The witness testified that he 
 had not used tliat language; but, in acon- 
 versation before Urban's saloon, some- 
 thing had been said by Hunter. Upon ob- 
 jection being sustained, defendants asked 
 to recall Hunter to lay the fonndatiou for 
 the conversation at Urban's saloon, which 
 the court refused to permit. Ordinarily, 
 the discretion should, undoubtedly, have 
 been exercised ; but, as before said, a rea- 
 sonable limit had been allowed, the atten- 
 tion of counsel had been called to the rule, 
 which they seemed to regard as an unjus- 
 tifiable interference on the part of the 
 court, and we cannot say that there was 
 any abuse of discretion. 
 
 We have thus carefully gone through the 
 evidence, and the many objections urged, 
 for the reason that the case is close, in 
 sou)e respects; and if any error had inter- 
 vened prejudicial to plaintiffs in error, or 
 that might have undul.v prejudiced tliem 
 before the jury, however slightly, we 
 should have been disposed to reverse the 
 judgment. The character of plaintiffs in 
 error, previous to this charge, was shown 
 by a greater or less number of writnesses 
 to have been good; and such evidence was 
 competent to be taken into consideration 
 by the jury in determining their guilt or 
 innocence. The probative forceof such evi- 
 dence in each case must always depend up- 
 
RE-EX AMINATION . 
 
 [Case No. 162 
 
 on the nature and character of the incul- 
 patory evidence; and it may, and no 
 doubt often does, of itself properly create 
 such a reasonabledoubt in the mind of the 
 jury as will justify an acquittal. But it is 
 to be remembered that the weight to be 
 given to the evidence is peculiarly within 
 tlie province of the jury; and, unless we 
 can say that the finding is palpably 
 wrong, we ought not to interfere upon 
 the facts alone. This we cannot say in 
 this case. Not only may the jury consid- 
 er the evideijce of good character upon the 
 question of guilt, but, if they feel con- 
 strained to find the defendant guilty, ^t is 
 proper to consider the same in mitigation 
 of punishment. And it would seem that 
 the jury have done so in this case. 
 
 The jury were fairly and fully instructed 
 as to tlie law of the case, to which there 
 is no material objection urged. Objection, 
 however, is made to the instructions giv- 
 en for the people, printed on page B5 of 
 the abstract. The objection is " that the 
 reasonable doubt in each of them ought 
 to be as to the guilt of the defendants." 
 The criticism is not warranted. The in- 
 structions relate to the question of ;///W. 
 The jury must believe beyond a rea.suna- 
 ble doubt, from a consideration of all the 
 evidence, that the defendants are guilty 
 before they would be justified In so find- 
 ing. But these instructions did not relate 
 to the question of guilt or innocence strict- 
 ly. By them the jury were told, in effect, 
 that if, after considering all the facts and 
 circumstances in proof, they had no rea- 
 
 sonable doubt of the tjresence of the plain- 
 tiffs in error at the house of Knox at the 
 time of the assault, then the defense of 
 alibi had not been made out, and was un- 
 availing. The instructions wei-e entirely 
 proper, and not in conflict with the rule 
 stated. 
 
 It is also objected that one of the peo- 
 ple's instructions was marked "For de- 
 fendants, " and it is urged that some infer- 
 ence might be drawn therefrom by the 
 jury different from what would nave been 
 drawn had it been properly marked "For 
 the people." The contention is without 
 merit. The practice of marking instruc- 
 tions for the one side or the other is per- 
 nicious, and should not be tolerated, it 
 thereby inferences are to be drawn by the 
 jury. The instructions should go to the 
 jury as the instructions of the court, and 
 the better practice is to have nothing ap- 
 pearing on the instructions showing at 
 whose instance they are given. But thei-e 
 is nothing here that in any way indicat( s 
 that any inference prejudicial to the plain- 
 tiffs in error was drawn by the jury, or 
 that such could have been the effect. The 
 instruction itself relates to what was 
 proper for the jury to take into considera- 
 tion, in considering of their verdict, and 
 was eminently proper to have been given 
 at the instance of either party, or by the 
 court itself on its own motion. We are of 
 opinion that no substantial error has in- 
 tervened, appearing upon this record. 
 
 The judgment of the circuit court must 
 be affirmed. 
 
 483 
 
Case No. 163] PKODUCTION AND EFFECT OF EVIDENCE. 
 
 AYBES et al. v. WATSON. 
 
 (10 Sup. Ct. 116, 132 U. S. 394.) 
 
 Supreme Court of the United States. Dec. 9, 
 1889. 
 
 In error to the circuit court of the United 
 States for the nortliern district of Texas. 
 
 W. E. Earle, for plaintiffs in error. W. 
 HnUett Phillips, for defendant in error. 
 
 MILLER, J. This is an action of eject- 
 ment brouglit by Watson, the original 
 plaintiff, in the district court for the coun- 
 ty of Bell, in the state of Texas, and after- 
 wards removed into the circuit court of the 
 United Stales for tlie northern district of 
 that state. It was twice tried before a 
 jury, which failed in each of these trials to 
 cometoan agreement. Itwastrieda third 
 time, which resulted in a verdict and judg- 
 ment for the plaintiff. A writ of error was 
 taken to that judgment, by which it was 
 brought to this court and reversed. Tha 
 case is reported as Ayers v. Watson, 113 U. 
 S. 594, 5 Sup. Ct. Rep. 641. It was thereup- 
 on remanded to the circuit court for a new 
 trial, where a verdict was again had for 
 the plaintiff, and the judgment rendered on 
 that verdict is before us for review. The 
 details of the controversy may be found in 
 the report of the case above mentioned. 
 While it was pending in the district court 
 of Bell county the following agreement be- 
 tween the parties w^as made, which simpli- 
 fies the case very much : " A. E. Watson v. 
 Frank Ayers et al. It is agreed and ad- 
 mitted by the defendants, for the purpose 
 of this trial, at this term of the court, that 
 A. E. Watson, plaintiff in this cause, is en- 
 titled to all the right, title, and interest 
 granted by the state of Texas to the heirs 
 of Walter W. Daws on September 16, A. D. 
 1850, said land patented being one-third of 
 a league, described in said patent No. 542, 
 vol. 8, and which said land is described in 
 plaintiff's petition; but defendants say 
 that said one-third of a league of land eo 
 patented as aforesaid to the heirs of Walter 
 W. Daws is covered by the grant of the gov- 
 ernment of Coahuila and Texas to Maximo 
 Moreno of eleven leagues of land, as set 
 forth more fully in defendants' petition; 
 which said eleven-league grant is an older 
 ■and superior title to that of plaintiff's, and 
 the title to which is in the defendants in 
 this cause. X. B. Saunders, W. T. Rock- 
 er, F. H. Slicepek, and A. M. Monteith, 
 Attys for Defendants." 
 By this agreement it will be seen that 
 I the sole question at issue was whether the 
 land in controversy was covered by the 11- 
 league grant to Maximo Moreno. A plat 
 of that survey is found in the bill of excep- 
 tions.- On the trial, which resulted in the 
 judgment which vre are novs^ called to re- 
 consider, and which, as we understand it, 
 was the fourth time the case had been tried 
 by a jury, the defendant introduced the dep- 
 Aosition of F. W. Johnson, the surveyor 
 ''who had madethesurveyundertheMoreno 
 grant. It seems that his deposition had 
 been taken twice in this action, and, though 
 the details of those trials are not before us, 
 It had no doubt been used in them. But 
 prior to the trial which we are now review- 
 
 484 ^^ 
 
 Ing he had died. It appears from the bill 
 of exceptions that 11 these depositions he 
 had bee n cross-ex amined by pi a intiff 's coun- 
 ieT PlaTnflirriirrebuttalto tEIs testimony 
 of Johnson, offered in evidence a deposition 
 of the said Johnson taken in 1860, in a suit 
 between other parties, in which his testi- 
 mony with regard to the matters to which 
 he testified in the depositions offered 1),\' de- 
 \fendant varied materially from these latter 
 xlepositions. To the introduction of this 
 deposition of 1860 the defendants objected, 
 and, their objection being overruled, took 
 this exception. As we think the judgment 
 of the court below must be reversed on ac- 
 count of this ruling, all that relates to it in 
 the bill of exceptions is here reproduced: 
 " It was admitted by both parties that the 
 upper and lower corners on the river of the 
 Maximo Moreno 11-league grant are extant 
 as called for in the original grant to Maxi- 
 mo Moreno, and their corners are not in 
 dispute. The defendant read in evidence 
 the depositions of F. W. JohnsQn, taken in 
 1878 and 1880, in which he testified that he 
 was principal surveyor for Austin's colony. 
 * * * The first survey made was the 
 Maximo Moreno 11-league survey. This sur- 
 vey was commenced at the point opposite 
 the mouth of the Lampasas river, as called 
 for in the field-notes of the grant, and a 
 line was run thence on the course called 
 tor in the grant, the distance called for, the 
 chain being used to measure the distance. 
 The north-west or second comer called for 
 in the grant was thus established by him, 
 the distance giving out in the prairie. 'In 
 running the west line I made an offset to 
 avoid crossing the Leon river, which was 
 about 50 or 60 varas wide. This offset was 
 made soon after leavijig the beginning cor- 
 ner, there being a peculiar bend in the liver 
 at that point. From the north-west cor- 
 ner tluis established the second line was 
 run the course and distance called for in 
 the grant. Several streams were crossed 
 on this line at distances not now recol- 
 lected, and the north-east corner estab- 
 lished on two small hackberries in Cow 
 Creek bottom. From the north-east or 
 third corner so established a line was run 
 in the course called for in the grant to San 
 Andres river. This last line was marked, 
 but not measured, because it was not usual 
 ornecessary to measure the closing line.' It 
 was admitted bythedefendantthatthedis- 
 tance as measured on the ground from the 
 north-east corner to a creek called for in the 
 grant -was some four thousand varns more 
 than the distance called for, — that is, the 
 di8taneeis7,500,insteadof 3,.500 varas; and 
 on cross-e.x.<Mnination, being asked to ac- 
 count for the discrepancy, said the distances 
 called on that line were not measured, but 
 guessed at. No part of the east line was 
 measured. The exterior lines were marked 
 •with blazes. The corner trees and bearing 
 trees, where there were such, were mai-ked 
 with blazes, with two hacks above and two 
 below. In answer to a question, on cross- 
 examination, he said that he did not begin 
 the survey at the south-east corner, but he 
 began at the south-west corner, at the three 
 forks, at the mouth of the Lampasas, and 
 actually traced the lines in the order set 
 forth in the field-notes. 'The field-book con- 
 taining the same, which I kept, I examined. 
 
BE-EXAMINATION, 
 
 [Case No. 168 
 
 ■which I don't remember to examine until a 
 month ago, and as hereinbefore stated.' 
 Tlie plaintiff, in rebuttal to Johnson'stesti- 
 mony, as above setforth,it appearing that 
 said Johnson died inl8S4, offei'ed to read in 
 evidfiice a deposition of said J ohnson, taken 
 inl860,in a certain suitthen pendingin Bell 
 county, Tex., wherein David Ayers was 
 plaintiff and Ijancaster was defendant, in 
 which he stated, in answer to a question 
 therein propounded, that he 'began the 
 Moreno survey at the south-east comer, 
 and ran thence northerly. The north line 
 was then run westwardly, and the third, if 
 run at all, was run southwardly to the riv- 
 er. I am of the opinion that no western 
 line was run, but was left open ; but the 
 eastern and northern lines were run and 
 measured. It was not usual to measure 
 the closing line.' To the reading of which 
 last-mentioned deposition, proven to be in 
 the handwriting of Johnson, ta.ken in 1860, 
 the defendants objected, upon the ground 
 that the deposition bad been taken in an- 
 other and different cause, between other 
 parties, before the institution of this suit; 
 and, the same witness having testified in 
 answer to interrogatories and cross-inter- 
 , rogatories propounded herein in 1877 and 
 1880, respectively, it was not competent as 
 original evidence, nor admissible to contra- 
 dict or Impeach the testimony of the wit- 
 ness Johnson, as given in his deposition 
 I read by the defendants, notwithstanding 
 I the death of Johnson; which objection the 
 ' court overruled, and admitted the testi- 
 : mony so objected to; to which ruling of the 
 ■ court the defendants then and there except- 
 ed , and still except, and the same is allowed 
 as exception No. 1." 
 
 A very earnest and ahle argument is pre- 
 sented to us to sustain this ruling, upon 
 the general ground of the liberality of courts 
 in admitting what would he otherwise 
 called "hearsay evidence" in regard to 
 boundaries, such as tradition, general un- 
 derstanding in the neighborhood, declara^ 
 tions of persons familiar with the bound- 
 aries and with the objects on the lines of the 
 survey, and others of similar character. An 
 opinion of Mir. Justice Field, delivered in 
 the supreme court of California in 1860, in 
 the case of Morton v. Folger, 15 Cal. 277, is 
 much relied on in this case, and it is also 
 said that the courts of the state of Texas 
 have established the same principle, which 
 has thus become a rule of property in that 
 state, which should be followed in this case. 
 If the principles stated in the decision of the 
 California court, and in the decisions of the 
 supreme court of the state of Texas, were 
 indeed applicable to the case before us, we 
 would hesitate very much in reversing the 
 judgment on this ground, and, indeed, 
 should be inclined, on the weight of those 
 authorities, and in the belief that in the 
 main they are sound, to overrule the ex- 
 ception. But the objection in the present 
 case to the deposition of Johnson, taken, in 
 1860, does not rest upon the ground that it 
 is hearsay testimony, or that it does not 
 come within the general principle which 
 admits declarations of persons made dur- 
 ing their life-time of matters important to 
 the location of surveys and objects show- 
 ing the line of those surveys. Johnson's 
 deposition of 1860, if it stood alone and 
 
 was introduced upon the trial of this case 
 for the first time as independent testimony 
 in favor of plaintiffs, might be admissible. 
 Jt is not necessary to decide that question 
 because such is not the character of the cir- 
 cumstances under which the testimony was 
 admitted. As we have already said there 
 had been three trials of this action, during 
 which Johnson was alive and was a com- 
 petent witness for either party. All his tes- 
 timony was given by way of deposition. 
 This only renders the manner of taking it 
 more deliberate, and if itwas to be contra- 
 dicted by anything he had said on former 
 occasions, made it the more easy and rea- 
 sonable that plaintiff should have called his n 
 attention to the former statements which | 
 they proposed to use. It will be observed » 
 that the plaintiffs did not introduce, or 
 offer to introduce, this deposition of John- 
 son of 1860 as a part of their case, when it 
 was their duty to introduce their testi- 
 mony. They, therefore, did not rely on it 
 as independent testimony in their favor. 
 But after Johnson's deposition had beenj 
 given in the case itself, and he had beenj 
 cross-examined by the plaintiffs in that dep-l 
 osition in regard to his testimony, and aft-' 
 er he was dead and could give no explana- 
 tion of his previous testimony of 1860, 
 which might show a mistake in that depo- 
 sition, orgive some satisfactory account of 
 it consistent with his testimony in the prin- 
 cipal case, this old deposition is for the first 
 time brought forward to contradict the 
 most important part of his testimony giv- 
 en on the present trial. The importance of 
 this matter, as itwas presented to the jury, 
 will be readily understood vsrhen we revert 
 to the fact that the two southern corners 
 of the survey are established without ques- 
 tion, and are found on the San Andres 
 river, and the controversy concerns the 
 question whether the east line andthewest 
 line of that survey, which are straight lines 
 almost due north, extend so far north that 
 the northern line between these lines is so 
 far north as to include the survey of Daws, 
 under which plaintiff claims. In the princi- 
 pal deposition of Johnson, as we have seen 
 by the bill of exceptions, he states that this 
 survey commenced at the southwestern 
 corner on the San Andres river, and was 
 run northward the distance called for in 
 the grant, and actually measured by the 
 chain. The north-west or second col'ner 
 called for in the grant was established by 
 him, the distance giving out in the prairie. 
 From the north-west corner thus estab- 
 lished, the second, the line was run for the 
 course and distance called for in the grant, 
 and the north-east corner established on 
 two small hackberries on Cow Creek bot- 
 tom. From the north-east or third corner 
 ■thus established the course was run to the 
 San Andres river. This last line was marked, 
 but not measured, because it was not nec- 
 essary to measure the closing line. In an- 
 swer to questions on cross-examination, 
 he said he did not begin at the south-east 
 corner, but he began at the south-west cor- 
 ner, and actually traced the lines in the or- 
 der set forth in the field-notes. He said the 
 field-book, containing these notes, "I kept 
 and examined, which I do not remember to 
 have examined till a month ago, as herein- 
 before stated." The deposition offered by 
 
 485 
 
€ase No. 163] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 plaintiff states distinctly that he began the 
 Moreno survey at the south-east corner, 
 and ran thence northerly. The north line 
 was then run westwardly, and the third, 
 if run at all, was run southward to the riv- 
 er. And he further says : " I am of the opin- 
 ion that no western line was run, but was 
 left open, but the eastern and northern 
 lines were run and measured. It was not 
 usual to measure the closing line." It vs^as 
 admitted that the distance as measured on 
 the ground from the north-east corner to a 
 creek called forin the grant was some 4,000 
 varas more than the distance called for, 
 and the witness on cross-examinations in 
 the principal depositions read by the defend- 
 ant in this case, being asked to account for 
 this discrepancy, said: "The distances 
 called on that line were not measured, but 
 guessed at. No part of the east line was 
 measured." The discrepancy between these 
 two depositions is manifest, and that dis- 
 crepancy is in a matter which relates direct- 
 ly to the question whether the Moreno 
 grant as it was surveyed included the land 
 embraced within the Daws grant, under 
 which plaintiff asserts claim. If the jury 
 believed in the truth of the depositions of 
 Johnson taken by the defendant in this 
 case, at which he -was cross-examined by 
 the plaintiff, it affords the strongest evi- 
 dence that the Daws claim was included in 
 the lines of the Moreno survey. This dep- 
 osition is supported by the field-notes and 
 by the reference of Johnson himself to those 
 field-notes a very little while before he gave 
 his deposition. If, on the contrary, the 
 eastern line was the one which was actual- 
 ly run and measured, beginning at the 
 south-east corner of the survey on the San 
 Andres river, then the fact that that line 
 was actually run and measured would 
 probably have a very great influence in 
 the mind of the jury on the question in is- 
 sue. And, whether this was so or not, the 
 contradictory statements of Johnson un- 
 der oath might destroy the value of his tes- 
 timony before the jury. 
 
 The circumstances under which the for- 
 mer statements of a witness in regard to 
 the subject-matter of his testimony, when 
 examined in the principal case, can be in- 
 troduced to contradict or impeach his tes- 
 timony, are w^ell settled, and are the same 
 whether his testimony in the principal case 
 is given orally in court before the jury, or 
 is taken by deposition afterwards read to 
 them. In all such cases, even where the 
 matter occurs on the spur of the moment 
 in a trial before a jury, and where the ob- 
 jectionable testimony may then come for 
 the first time to the knowledge of the op- 
 posite party, it is the rule that, before those 
 1 former declarations can be used to impeach 
 or contradict the witness, his attention 
 must be called to what may be brought 
 forward for that purpose, and this must 
 be done with great particularity as to time 
 
 486 
 
 and place and circumstances, so that he can 
 deny it, or make any explanation intend- 
 ing to reconcile what he formerly said with 
 what he is now testifying. While the courts 
 have been somewhat liberal in giving the 
 opposing party an opportunity to present 
 to the witness the matter in which they 
 propose to contradict him, even going so 
 far as to permit him to be recalled and 
 cross-examined on that subject after he has 
 left the stand, it is believed that in no case 
 has any court deliberately held that after 
 the witness' testimony has been taken, 
 committed to writing, and used in the 
 court, and by his death he is placed beyond 
 the reach of any power of explanation, 
 then in another trial such contradictory 
 declarations, whether by deposition or oth- 
 erwise, can be used to impeach bis testi- 
 mony. Least of all would this seem to be 
 'admissible in the present case, where three 
 trials had been had before a jury, in each 
 of which the same testimony of the witness 
 Johnson had been introduced and relied on, 
 and in each of which he had been cross-ex- 
 amined, and no reference made to his for- 
 mer deposition, nor any attempt to call his 
 attention to it. This principle of the rule 
 of evidence is so well understood that au- - 
 thorities are not necessary to be cited. It 
 is so well stated with its qualifications and 
 the reasons for it, by Mr. Greenleaf in his 
 work on Evidence, (volume 1, §§ 402-464, in- 
 clusive,) that nothing need be added to it 
 here except a reference to the decisions cited 
 in his notes to those sections. See, also. 
 Weir V. McGee, 25 Tex.Supp. 32. It will 
 thus be seen that the principle on which 
 counsel for plaintiff in error objected to this 
 deposition of Johnson is not in conflict with 
 the case of Morton v. Folger, 15 Cal. 277, nor 
 w^ith any case to which we are cited, decided 
 by the supreme court of Texas. That 
 ground, as stated in the bill of exceptions, is 
 "that the deposition had been taken in an- 
 other and different cause, between other 
 parties, before the institution of this suit; 
 and the same witness having testified in an- 
 swer to interrogatories and cross-interrog- 
 atories propounded herein in 1877 and 1880, 
 respectively, it was not competent as orig- 
 inal evidence, nor admissible to contradict 
 or impeach the testimony of the witness 
 Johnson, as given in his deposition read by 
 the defendant, notwithstanding the death 
 of Johnson." 
 
 We are very clear that the deposition of 
 1860 was improperly admitted, and its im- 
 portant relation to the issue tried by the 
 jury was such that the judgment rendered 
 on it must be reversed, and the verdict set 
 aside, and a new trial granted. There are 
 other assignments of error, the considera- 
 tion of which is not necessary in the decision 
 of the case before us, which, with due at- 
 tention to what we decided when the case 
 was here before, to which we still adhere, 
 may not arise in another trial. 
 
IMPEACHMENT. 
 
 [Case No. 164 
 
 BECKER et al. v. KOCH, Sheriff, etc. 
 (10 N. E. 701, 104 N. Y. 394.) 
 Court of Appeals of New York. March 1, 1887. 
 Charles B. Wheeler, for appellant. Bater 
 & Schwartz, for respondents. 
 
 PECKHAM, J. This action was brought 
 by the plaintiffs, as assignees for the benefit 
 of creditors of one Exstein, to recover from 
 the defendant the possession of some per- 
 sonal property, amounting in value to abouti 
 $4,000, or, in default thereof, to recover such\ 
 value. The defendant justified the taking of 
 the property by virtue of a writ of attach- 
 ment issued to him as sheriff of Erie county 
 in an action in which Victor and others 
 were plaintiffs, and Exstein was defendant, 
 and under which writ the sheriff had levied 
 upon this property as belonging to the said 
 Exstein. The assignment to plaintiffs was 
 made on the seventeenth of October, 1883, 
 and Included the property in question. The 
 attachment was, on the fourteenth of No- 
 vember, levied on the property, and, after 
 the plaintiffs in the attachment suit recov- 
 ered judgment against Exstein, the property 
 was sold on an execution issued thereunder 
 to the defendant. .The answer in this ac- 
 tion set up these facts, and alleged that the 
 assignment to the plaintiffs was made with 
 the intent, on the part of Exstein, to hinder, 
 delay, and defraud his creditors. The action 
 came on for trial in the superior court of 
 Buffalo, and, after the evidence was all in, 
 the court directed a verdict for the plaintiffs 
 for a return of the property to them, or for the 
 value thereof, assessing the same at $3,800. 
 A stay of proceedings was granted, and the 
 defendant's exceptions were ordered to be 
 heard at the general term in the first in- 
 stance. 
 
 The general term, after argument of such 
 exceptions, overruled the same, and directed 
 judgment for the plaintiffs on the verdict. 
 Thereupon an order was entered which in 
 form treated the defendant as having made 
 a motion for a new trial on the exceptions 
 ordered to be heard in the first instance at 
 general term, and, after reciting such fact, 
 continued thus: "Ordered, that such motion 
 be, and the same hereby is, denied, with 
 costs; that the said exceptions be, and the 
 same hereby are, overruled, and judgment 
 for the plaintiffs on the verdict is hereby or- 
 dered." Judgment in accordance with the 
 order was subsequently entered. The de- 
 fendant then appealed from the order above 
 mentioned to this court, and also from the 
 judgment entered upon such order. 
 
 The plaintiffs now make the claim that the 
 appeal from the order should be dismissed, 
 and that the appeal from the judgment 
 brings up nothing for review but the ques- 
 tion whether the judgment appealed from is 
 in accordance with the order of the general 
 term, as there was no statement in the ap- 
 peal from the Judgment that the appellant 
 
 intended to bring up for review any inter- 
 mediate order, as pointed out by sections 
 1301 and 1316 of the New Code. There is no 
 foundation for the claim. The exceptions of 
 the appellant were ordered by the trial court 
 to be heard, in the first instance, at the gen- 
 eral term, and It was pursuant to such di- 
 rection that the argument of such exceptions 
 was then had, and the decision of the court 
 upon such argument was made in the form 
 of an order, and that order was simply a 
 written authority upon which to enter the 
 judgment, and was not such an intermediate 
 order as is referred to in section 1301 or 
 1316, and no appeal would lie from it to this 
 court. But, after the entry of judgment, an 
 appeal from such judgment brings up for re- 
 view the exceptions taken by defendant up- 
 on the trial. The appeal taken by defend- 
 ant from the order, as well as from the judg- 
 ment, was useless, but evidently taken from 
 more abundant caution; and, if that were 
 the only appeal in the case, it would have to 
 be dismissed as unauthorized; and yet, as it 
 is taken in connection with the appeal from 
 the judgment, which brings up aU the excep- 
 tions for review, there is no necessity to 
 formally dismiss the appeal from the order. 
 
 But upon the merits of the appeal quite an 
 impoi"tant question arises in relation to the 
 law of evidence. The court directed a ver- 
 dict 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 witness by whom he 
 attempted to prove the fraud, and as that 
 witness denied it, the defendant was bound 
 by that denial, in the absence of contradic- 
 tion 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 refer- 
 ence must be made to the testimony, al- 
 though it will be unnecessary to allude to it 
 all. 
 
 The assignor, Exstein, was a merchant en- 
 gaged in a large business in Buffalo. He 
 kept regular books of account in his busi- 
 ness, which were produced upon the trial, 
 and he was called as a witness for the de- 
 fendant, and gave evidence in relation to the 
 books, and upon other matters. His assign- 
 ment was made on the seventeenth of Octo- 
 ber, 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 ac- 
 counts, the result of which entries was to 
 cause it to appear by the books that the as- 
 signor was in their debt to a somewhat 
 large amount, while if the entries as of the 
 sixteenth of October were stricken out it 
 
 487 
 
Case No. 164] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 would then appear that the parties, instead 
 of being creditors, were in reality debtors, 
 of the assignor. When on the stand, he sub- 
 stantially stated that, if those entries were 
 stricken out, the state of alfairs between 
 himself and those persons would be as repre- 
 sented in the books; or, in other words, 
 that, excluding those entries and the circum- 
 stances upon which they rested, some of 
 these persons would be his debtors. He also 
 said that these entries did not In fact repre- 
 sent any actual transaction occurring at the 
 time when they were made, and that no val- 
 uable or other consideration passed between 
 him and those parties at such time. Stop- 
 ping 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 up- 
 on the basis of. which one was made a pre- 
 ferred creditor in the assignment, and yet 
 such entries represented no actual, present 
 transactions happening at the time when 
 they were made. Unexplained, it would ap- 
 pear 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 made provision in his assignment for 
 the payment of, fictitious debts. 
 
 The defendant, however, proceeded with 
 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 per- 
 sons the amounts he claimed to, with the pos- 
 sible 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 fa- 
 vor by the direction of the court, and ob- 
 tained it. 
 
 The court held, in substance, that the books 
 of the witness Exstein showed a prima facie 
 case of an indebtedness of the witness in the 
 amounts therein appearing, and to the per- 
 sons 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 con- 
 tinued 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 im- 
 peach him, and must take what he said as, 
 under the circumstances of the case, true. 
 If that were the true rule, the court was cor- 
 rect in directing a verdict. The general term, 
 it must be presumed, also took the same view 
 of the case in directing judgment for the 
 
 488 
 
 plaintiffs without delivering any written 
 opinion. 
 
 The general rule prohibiting the impeach- 
 ment or discrediting of a witness by the par- 
 ty calling him was extended too far in this 
 case. Here was an issue of fraud in the 
 (making of an assignment by the assignor; 
 and the defendant, in order to prove its ex- 
 istence, 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 ex- 
 igencies of his case, was obliged to call. 
 With regard to such witnesses it is well set- 
 tled that all the rules applicable to the ex- 
 amination of other witnesses do not in their 
 strictness apply. An adverse witness may 
 be cross-examined, and leading questions 
 may be put to him by the party calling him, 
 for the very sensible and sufficient reason 
 that he is adverse, and that the danger aris- 
 ing from such a mode of examination 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 un- 
 willing man, while those which are unfavor- 
 able 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 speaJdng of a reluctant or adverse wit- 
 ness, uses almost the precise language above 
 stated, and which has been substantially 
 quoted from him. Starkie, Ev. (9th Ed.) 
 marg. p. 248. 
 
 Sometimes rather loose language has been 
 indulged in, to the general effect that a party 
 cannot impeach his own witness; but, when 
 an examination is made as to the limits of 
 the rule, the result will be lound to be that 
 it only prohibits this impeachment in three 
 cases, viz.: (1) The calling of witnesses to 
 impeach the general character of the wit- 
 ness; and (2) the proof of prior contradictory 
 statements by him; and (3) a contradiction 
 of the witness by another, when the only ef- 
 fect 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 Denio, 112; Thompson 
 V. Blanchard, 4 N. Y. 303-311; Coulter v. 
 Express Co., 50 N. Y. 585; 2 Starkie, Ev. 
 (9th Am. Ed.) marg. pp. 244-250; 2 Phil. Ev. 
 (C. & N. & Ed. notes) marg. pp. 9S1-9S3, and 
 note 602; 1 Greenl. 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 presents 
 him to the jury as worthy of belief, and to 
 allow him to call witnesses thereafter to im- 
 peach 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, and has witnesses 
 
IMPEACHMENT. 
 
 [Case No. 164 
 
 to prove, to be the contrary, and, if his evi- 
 dence he favorable, to get the benefit of it, 
 and, if the reverse, to ovei-whelm it by the im- 
 peaching witnesses. In such a case as this, 
 however, there is no deception. The defend- 
 ant calls the veiy man he accuses of the 
 fraud as a witness to prove it, and says in 
 effect to the jury that such evidence as the 
 witness gives, which tends to show the per- 
 petration of the fraud alleged, is forced from 
 him by the exigencies of the case, and the 
 suiTounding facts which cannot be denied, 
 while that which he gives which looks to- 
 wards 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 impeach- 
 ment is forbidden, the authorities in England 
 were in conflict, many of the judges think- 
 ing 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 leg- 
 islature with the law of evidence, which 
 passed an act permitting just such evidence 
 under certain restrictions. See common law 
 procedure act of 1854 (17 & IS Vict. c. 12.5, § 
 22). The non-admissibility of such evidence 
 in the courts of this state is, of course, not 
 open to discussion. It is alluded to only 
 to show the opinion of the English parlia- 
 ment (in matters of this nature almost ex- 
 clusively guided by lawyers) upon this ques- 
 tion of impeaching one's own witness, and 
 the readiness of that body to alter the law of 
 evidence 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 im- 
 peachment 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 im- 
 peach him by proof of prior contradictory 
 statements on immaterial or collateral is- 
 sues; and there is not much difference in the 
 two cases, and thei'efore 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 to be othei-wise than as 
 sworn to by him, even when the necessary 
 effect is to impeach him. 
 
 Why should not the right exist to show 
 I that a portion of the evidence of your own 
 /witness is untrue, by comparing it with an- 
 other portion of the evidence of the same 
 Iwitness? The courts below say in effect 
 /that, although a portion of lOxstein's evi- 
 'dence shows that he provided for payment 
 in his assignment for fictitious debts, yet the 
 other portion of his evidence, if believed, 
 shows that such debts were not fictitious; 
 and, although the defendant was at liberty 
 to call other witnesses to prove that the ex- 
 
 planation was false, yet, as he did not do j 
 so, the explanation must stand as matter of v 
 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 N. Y. Super. Ot. Rep. 428, as up- 
 holding the rule laid down by the trial court. 
 The plaintiffs there brought an action to re- 
 cover damages from defendants for the non- 
 delivery of coupons bought from the defend- 
 ants' agent, as plaintiffs claimed; but de- 
 fendants denied the agency, and alleged they 
 had sold the coupons to the person who 
 plaintiffs alleged was their agent, and had no 
 liability for his subsequent acts. On the tri- 
 al the 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 defend- 
 ants, who swore thj,t the person selling the 
 bonds to the plaintiffs was not the agent of 
 the defendants, but they had simply sold 
 him the bonds. The court held the plaintiffs 
 concluded by this evidence, and that they 
 must take it as wholly credible; that credibil- 
 ity could not be divided; and that it was at- 
 tached 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 up- 
 on the whole of their case, — letters, docu- 
 ments, and explanation,— and why they 
 should not have been allowed to ask the 
 jury to believe the documents and letters,; 
 and reject the explanation as in their judg-| 
 ment untrue. To say that 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 testimony you may ask a jury to be- 
 lieve 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 prac- 
 tical operation of that rule the better. , 
 
 We think that the whole evidence of Bx- 
 Btein in this case should have been submit- 
 ted to the jury for them to pass upon its 
 credibility, and that they were at Uberty to 
 believe that portion which tended to show 
 the debts to be fictitious, and to disbelieve 
 the explanation, or that they might regai-d 
 it as suflicient,— just as in their judgmeut, 
 intelligently and honestly exercised, they 
 might determine. Of course, we do not mean 
 by this decision to give any intimation as to 
 which view should be taken by the jury. 
 We only decide that it was a question ior 
 them, and not the court. 
 
 The judgment should be reversed, and a 
 new trial granted; costs to abide the event. 
 
 All concur. 
 
 489 
 
■Case No. 165] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 SEIjOVER et al. v. BRYANT. 
 
 (56 N. W. 58, 54 Minn. 434.) 
 
 ■Supreme Court of Minnesota. Aug. 21, 1893. 
 
 Appeal from municipal court of Minneapo- 
 iis; Elliott, Judge. 
 
 Action by George H. Selover and another, 
 copartnere as Selover & Gould, against John 
 W. Bryant, administrator of the estate of 
 George M. Brj'ant, deceased, to recover for 
 professional services as attorneys. Plaintiffs 
 had judgment, and from an order denying a 
 jiew trial defendant appeals. Affirmed. 
 
 George R. Robinson, for appellant. Board- 
 man & Boutelle, for respondents. 
 
 DICKINSON, J. The plaintifCs, as attor 
 neys at law, prosecuted an action for a di- 
 vorce against the defendant and in behalf of 
 his wife. The action was settled between 
 the parties, and dismissed. The plaintiffs 
 prosecute this action "to recover for their 
 legal services in behalf of the defendant's 
 wife, claiming that in the settlement of the 
 , former suit the defendant agreed with his 
 I WLfe_to_pay . for such .serviced T5ie defend- 
 , ant denies that agreement. After a verdict 
 ' for the plaintifCs upon that issue, and the 
 refusal to grant a new trial, the defendant 
 appealed. 
 
 The nlaJnt igs c^gd ^lie. defendant's. wife as 
 .a, witness in their behalf. Her testimony 
 JsB defl to refute the claim "^" the plaintiffs 
 gs tq_ the alleged agreement. After a pre- 
 liminary examination of th^ witness, as to 
 former co ntradictory statements jaa.'let'y her, 
 thejjlaintiff s _wS'e allowed, to show that she 
 had made a statement of the faotJ:o one of 
 tS5-,piaintiffs"~maJterla]g^~anterent from Jier 
 testiniohyrT^e^Ss.eJL'astifled the conclusion 
 ot the court that the plaintiffs were_ surprfeed 
 liy the adveirs.e. testimony.^ It'isl.oafi. of _the 
 <X)ntroverted questions in the law of evidence 
 wh ether a party calling a witness, and who is 
 surprised by his adverse testimony, may be 
 permitted fo"sEow~{Ea t iie~ha d made previ- 
 ous statements contr^T_toJijs_ testimony. A 
 learnecL' w riler ' has said that the weight of 
 authority seenS to^be in _faYor_of. admitting 
 such proof. "1 Gfeeni. Ev. § 444. We are in 
 do\ibt whether the weight of authority is not 
 the other way; but we feel confident that 
 wel^recoj^nzed, reasons ^nd" principi^'or the 
 l aw of evid ence support the proposition that, 
 ^t least in 'tfie"discretion of the'trial court, 
 .such evidence is admissible. It ig perfectly 
 well settled, and upon satisfactory reasons, 
 that if the defendant had called the witness 
 fo the stand, and she had testified as she did 
 as to the fact in issue, the plaintiffs, after 
 proper preliminary proof, would have been 
 alli>wed to show 'by other witnesses that she 
 had made statements contrary to her testi- 
 mony. Tliis rule, now everywhere recog- 
 nized, rests upon the obvious propriety and 
 necessity of informing the jury of circum- 
 stances so directly bearing upon the credi- 
 bility of the witness and the value of his 
 
 490 
 
 testimony as do contradictory statements by 
 him of the controverted facts concerning 
 wliich he testifies, and which the Jury must 
 deteriiiine. But this controlling reason for 
 allowing such discrediting evidence exists, 
 and \^ith prwisely the same force, whether 
 the witness has been called to the stand by 
 the opposite party or by the party who offers 
 the impeaching proof; and if the witness 
 may be thus discredited by the party who 
 did not call him, but may not be discredited 
 by the party who called him, the reason must 
 be that by calling the witness to the stand 
 the party holds him forth as being worthy 
 of credit, and hence he should not be al- 
 lowed afterwards to impeach his credibility. 
 And this is the proposition which, in one 
 form or another, is generally a.ssijjned as the 
 reason of the rule disallowing srCb impeach- 
 ment wherever that rule has prevailed. This 
 rule and the reason for it has been so gener- 
 ally accepted and applied with reference to 
 an impeachment by a party of the general 
 reputation of a witness whom he has called 
 that it is perhaps not now to be questioned; 
 but, as respects the particular discrediting 
 proof which we are considering, the pra-^tice 
 has been less uniform, and the excluding of 
 the discrediting proof has been more strenu- 
 ously opposed by the best authorities. The 
 reason upon which it rests is, we think, plain- 
 ly fallacious. The fault in the reason Ues 
 in the premise that, by calling the witness, 
 the party presents him as being worthy of 
 credit, or, in any sense, vouches for Ms truth- 
 fulness. In some sense and measure this 
 may be true; but laying aside the subject of 
 general impeachment, and directing our at- 
 tention only to the question of allowing 
 proof of statements contrary to the testimony 
 by which a party is surprised at the trial, the 
 above-stated reason is of no controlling force, 
 except as it incljides and implies such a de- 
 gree of responsibility for the credit of the 
 witness — such a personal voucher of his truth- 
 fulness— that it would be bad faith, double 
 dealing, trifling with the com't, or something 
 akin thereto, for the party to afterwards 
 throw discredit upon his testimony. The 
 premise is not tenable. A party is not to be 
 held to have assumed any such responsibility 
 as to the truthfiiLness of a witness, and or- 
 dinarily, at least, there can be no imputation 
 of bad faith, or anything like it, when, the 
 party being surprised by his own witness tes- 
 tifying directly in favor of the adverse party, 
 he offers to show his preliminary statements 
 to the contraiy, as impeaching his credibil- 
 ity. One has not all the world from which 
 to choose the witnesses by whose testimony 
 he must prove his case. He has not the 
 freedom of choice that one has in the selec- 
 tion of an agent. He can only call those 
 who are supposed to know the facts in issue. 
 He is entitled to have their testimony place<l 
 before the jury, not as the statements of his 
 agents or representatives by which he is to be 
 concluded, but as the testimony of witnesses 
 whose credibility he caimot be expected to 
 
IMPEACHMENT. 
 
 [Case No. 165 
 
 vouch for, but wliich the jury are to detor- 
 mine. It is everywhere admitted that a 
 party whose witness testifies against him is 
 not concluded thereby. He may prove the 
 fact to be contrary -to such testimony, al- 
 though that does discredit a witness whom he 
 has called. We deny that, by caUing a wit- 
 ness to the stand, a party becomes responsi- 
 ble for his credibility in any such sense that 
 he is absolutely precluded, when sm-prised 
 iby adverse testimony, from showing that the 
 Iwitness had made statements of the facts 
 Contrary to his testimony. It is at least with- 
 in the discretion of the court to allow this. 
 
 It has been suggested that this affords an 
 opportunity 10 fraudulently get before the 
 Jui"y the unsworn statement of a witness 
 which the jury may accept as evidence of the 
 fact. But the same objection may be urged 
 in opposition to allowing a party to discredit 
 in this way a witness oalleil Dy the adverse 
 party; yet this is always allowed. The di- 
 rect, certain, and obvious effect of such evi- 
 dence, in enabling the jury to rightly weigh 
 the testimony, should prevail over the far 
 more remote, improbable, and collateral con- 
 siderations that opportunity may be thus af- 
 forded to a dishonest party to collude with a 
 dishonest witness to malce a false statement 
 of facts, which the witness would not swear 
 to, in order that, after the witness shall have 
 testified to the truth, the false unsworn state- 
 ment to the contrary may be shown. There 
 are so many contingencies in the way of such 
 barely possible results that the remote possi- 
 bility is not of much weight, as against the 
 plain practical considerations opposed to it. 
 While, perhaps, the weight of authority is in 
 favor of excluding such evidence, we feel 
 that, in holding it to be within the discretion 
 of the court to receive it, we are justified, 
 not only by reason, but by a suflicient array 
 of authority. In the English courts both 
 views have been sanctioned. A strong pres- 
 entation of the rule allowing such proof was 
 made by Lord Chief Justice Denman in 
 Wright V. Beckett, 1 Moody & K. 414. 
 
 This view Is preferred in Starkie, Ev. (Shars- 
 wood's Ed.) 245; 2 PhU. Ev. marg. pp. 985- 
 995; 1 Greenl. Ev. 444; Cowden v. Reynolds, 
 12 Serg. & K. 281, 283; Bank v. Davis, 
 Watts & S. 285; Smith v. Briscoe, 65 Md. 
 561, 5 Atl. Kep. 334; Campbell v. State, 23 
 Ala. 44, 76; Hemingway v. Garth, 51 Ala. 
 530; Moore v. Eailroad Co., .^O Miss. 243; 
 and see Johnson v. Leggett, 28 Kan. 591), 606. 
 See, also, a discussion of this subject in 11 
 Am. Law Rev. 201. It may be added, as in- 
 dicating what it has been considered the rule 
 ought to be, that in England and in several 
 of our states statutes have been enacted al- 
 lowing such proof to be made. Our conclu- 
 sion on this point is that the court did not 
 err in receiving the evidence. 
 
 The only other assignments of error which 
 we deem worthy of specific mention are those 
 relating to the charge of the court that the 
 value of the services (of the plaintiff) "to 
 Mrs. Bryant" should be considered by the 
 jury. There was no error in this. The court 
 did not say that that consideration alone 
 should be taken as the measure of value. 
 The value of the services of an attorney is 
 necessarily to be determined by many con- 
 siderations besides the mere time visibly em- 
 ployed in the conduct of a suit. Among 
 other things, the importance and results of 
 the case are to be considered. The impor- 
 tance of the cause to the client affords to 
 some extent a measure of the skill, care, re- 
 sponsibility, anxiety, and effort demanded of 
 and to be borne by the attorney, and should 
 not be disregarded in their bearing upon the 
 question of the value of such services. 
 Eggleston v. Boardman, 37 Mich. 14. 
 
 The seventh assignment of error— that the 
 court erred in overruling the motion for a 
 new trial— is too general to be available. 
 
 Order afhrmed. 
 
 GILFILLAN, C. J. On the point of the 
 admissil>ility j>f the evidence of contradictory 
 statements made by the witness Bryant, I 
 dissent 
 
 491 
 
Case No. 166] PRODUCTIOK AND EPPECT OF EVIDENCE. 
 
 GBRTZ V. FITCHBUEG R. CO. 
 
 (137 Mass. 77.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. March 19, 1884. 
 
 J. J. Myers, for plaintiflC. C. A. Welch, for 
 defendant. 
 
 HOLilBS, J. In this case, the plaintiff 
 having testified as a witness, the defendant 
 put in evidence the record of his conviction, 
 in 187G, in the United States district court, 
 of the crime of falsely personating a Unit- 
 ed States revenue officer. The plaintiff then 
 offered evidence of his character and pres- 
 ent reputation for veracity, which was ex- 
 cluded, subject to his exception. 
 
 We think that the evidence of his reputa- 
 tion 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 inadmissible; for instance, to rebut 
 evidence of contradictory statements (Russell 
 V. Coffin, 8 Picli. 143; Brown v. Mooers, d 
 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 im- 
 peaching the character for truth of the con- 
 tradicted witness in the minds of the jury, 
 the proof is not directed to that point. The 
 purpose and only direct effect of the evi- 
 dence are to show that the witness is not 
 to be believed in this instance. But the rea- 
 son why he is not to be believed is left un- 
 touched. That may be found in forgetful- 
 ness on the part of the witness, or in his 
 having been deceived, or in any other possi- 
 ble cause. The disbelief sought to be pro- 
 duced is perfectly consistent with an ad- 
 mission of his general good character for 
 truth, as well as for the 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 that general disposition 
 alone that the jury is asked to infer a readi- 
 ness 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 char- 
 acter and unworthy of credit. 1 Glib. Ev. 
 (6th Ed.) 126. 
 
 492 , 
 
 The conviction in the United States dis- 
 trict court was for a felony punishable withi 
 imprisonment (St. U. S. March 2, 1867, § 28);: 
 and, assuming that it stands on the same- 
 footing as a conviction in another state, it 
 would have been admissible, according to 
 the dicta in our cases, independently of 
 statute, not to exclude the witness, but to 
 impeach his credit. Com. v. Green, 17 Mass. 
 515, 541; Com. v. Knapp, 9 Pick. 496, 511; 
 Utley V. Merrick, 11 Mete. (Mass.) 302. See- 
 Rev. St. c. 94, § 56. And when a convictioit 
 is admitted for that purpose, it always may 
 be rebutted by evidence of good character 
 for truth. Com. v. Green, ubi supra; Rus- 
 sell V. Coffin, 8 Pick. 143, 154; Rex v. Clarke,. 
 2 Starkie, 241; Webb v. State, 29 Ohio St, 
 351. 
 
 It is true that a doubt is thrown upon this 
 doctrine in Harrington 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 chai-ged 
 with a crime also showed that he had been 
 acquitted, and cannot be regarded as an 
 authority against our decision, whether the- 
 ratio decidendi adopted be reconcilable with 
 later cases or not. Com. v. Ingraham, T 
 Gray, 46. 
 
 The applicability of the foregoing reason- 
 ing is made clear by the language of our 
 statutes. By Pub. St. c. 169, § 19, the only 
 purpose for which conviction of a crime- 
 may be shown in any case is to affect cred- 
 ibility. Even if the conviction proved here 
 would have excluded the witness but for 
 the statute cutting down its effect, it could 
 not be maintained that evidence of reputa- 
 tion for truth remained inadmissible be- 
 cause it would have been so when the wit- 
 ness was excluded. The statute puts alB 
 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 as- 
 sume that the words "a crime" in Pub. St. 
 c. 169, § 19, mean the same as "any crime"' 
 in St. 1870, c. 393, § 3; Gen. St. c. 131, §r 
 13; St 1852, c 312, § 60; St 1851, c. 233, S 
 97; Com. v. Hall, 4 Allen, 305. And there- 
 fore any evidence which was admissible to 
 rebut a conviction that only discredited be- 
 fore the statute must now be admissible to 
 rebut all convictions that may be put in evi- 
 dence. Whether any different rule would 
 apply when the fact is only brought out on 
 cross-examination we need not consider. 
 
 The exception to the exclusion of evidence 
 that the witness was innocent of the offence 
 of which he was convicted, and explaining 
 why he was convicted, is not much pressed, 
 and is overruled. Com. v. Gallagher, 12(> 
 Mass. 54. 
 
 Exceptions sustained. 
 
IMPEACHMENT. 
 
 [Case No. 167 
 
 PEOPLE T. BROOKS. 
 
 (30 N. E. 189, 131 N. Y. 321.) 
 
 Court of Appeals of New York. March 1, 1892. 
 
 Appeal from supreme court, general term, 
 Jfourth departmeut. 
 
 Indictment of Rachel Brooks for arson. 
 Defendant was convicted, and the general 
 term affirmed the sentence. Defendant ap- 
 peals. Affirmed. 
 
 Louis Marshall, for appellant. T. E. Han- 
 ■cock, Dist. Atty., and B. J. Shove, Asst. Dist. 
 Atty., for the People. 
 
 EARL, C. J. The defendant was indicted 
 for setting fire to the store occupied by her 
 :in the city of Syracuse on the 27th day of 
 October, 1890. She was brought to trial in 
 the court of sessions of Onondaga county 1q 
 Pebruary, 1891, and was convicted of arson 
 In the first degree, and was sentenced to the 
 Onondaga penitentiary for the term of 15 
 ^ears. Her conviction having been affirmed 
 liy the general term of the supreme court, 
 .she then appealed to this court. 
 
 The learned counsel for the defendant has 
 brought to our attention three grounds upon 
 -which he claims the judgment should be re- 
 versed. Upon the trial the principal evidence 
 adduced against the defendant to show her 
 guilt was that of Charlotte Brooks, the 
 •daughter of her husband by a former wife, 
 who was about 18 years old. She testified 
 that, three or four days before the fire, the 
 <defendant required her to take an oath, by 
 kissing the Jewish Bible, that she would not 
 tell to any one what she was about to say to 
 her; and that, after she had taken the oath 
 sind promised that she would not tell, she 
 said to her that she had bills for goods to set- 
 tle, and that there was a judgment against 
 her, and she was going to make a bonfii-e of 
 the goods in the store, and burn them up; 
 :and that, after she had taken the oath, the 
 ■defendant told her, if she did tell what she 
 had said to her, she would be sent to prison 
 tor 20 years for perjury. There was other 
 evidence pointing to the guilt of the defend- 
 . ant, and corroborating the story related by 
 the witness Charlotte. The defendant was 
 -called as a witness on her own behalf, and 
 these questions were put to her by her coun- 
 .sel: "Now state whether or not Charlotte 
 -was friendly to you or unfriendly." "Did 
 you and Charlotte have frequent difficulties 
 •during that time?" (Meaning the time pre- 
 vious 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 
 Oharlotte 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 paiticular matters inquired of. 
 
 In making the ruling the trial judge said: 
 "You have 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 ti-uth, 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 at- 
 tention must be called to each and all the 
 transactions upon which the counsel for the 
 defendant desires to give evidence. If the 
 witness admits the acts and declarations that 
 the defendant claims were made and done, 
 that is the end of it. If the witness denies, 
 then I think it is competent to call other wit- 
 nesses to contradict those mattei-s; but to let 
 a witness go off the stand, not having ques- 
 tioned the witness as to the particulars, and 
 then calling third parties to prove independ- 
 ent transactions showing the attitude of the 
 mind of the witness towards the party, I 
 think is not the rule. So I have allowed and 
 do allow this witness to testify as to any 
 transactions bearing upon that point in re- 
 gard to which the witness Charlotte was ex- 
 amined." 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, de- 
 fendant by the application of the rule as I 
 
 T understand it." But the counsel insisted up- 
 
 lon his right to examine the defendant, for 
 Jthe.pm-pose of proving Charlotte's hostility 
 
 /towards her, without first examining Char- 
 lotte in reference to the same matter. We 
 
 i^ think the rule of law laid down by the trial 
 \judge was erroneous. The hostility of a wit- 
 ness toward s a party againsE~wh6m he is 
 called ma y_be]jrQvea pv ttnv conrpetent evi- 
 dence. It may~B6" shown by cross-examina- 
 tion 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 hos- 
 tility, and that then, and not till then, wit- 
 nesses may be called to contradict him, be- 
 cause it is not a case where the party against 
 whom the witness is called is seeking to dis- 
 credit him by contradicting him. He is sim- 
 ply seeking to discredit him by showing his 
 hostility and malice; and, as that may be 
 proved by any competent evidence, we see no 
 reason for holding that he must first be ex- 
 amined as to his hostility. And such we 
 think is the drift of the decisions in this 
 state and elsewhere. Hctchkiss v. Insurance 
 Co., 5 Hun, 90; StaiT v. Cragin, 24 Hun, 177; 
 People V. Moore, 15 Wend. 419; People v. 
 Thompson, 41 N: Y. 6; Schultz v. Railroad 
 Co., 89 N. Y. 242; Ware v. Ware, 8 Greenl. 
 42, 53; Tucker v. Welsh, 17 Mass. 160; Day 
 V. Stickney, 14 Allen, 25.j; Martin v. Barnes, 
 7 Wis. 239; Robinson v. Hutchinson, 31 Vt. 
 443; New Portland v. Klngfield, 55 Me. 172; 
 Hedge v. Clapp, 22 Conn. 262; Cook v. 
 Brown, 34 N. H. 460. So we think the trial 
 judge laid down an erroneous rule of law! 
 But we are still of opinion that no harm 
 
 493 
 
Case No. 167] PRODUCTION AND EFFECT OF EVIDENCE, 
 
 was done to the defendant. The extent to 
 which an examination may go for the pui'- 
 pose of proving the hostility of a witness 
 mnst be, to some extent at least, within the 
 discretion of the trial judge. We said about 
 it, in Schultz v. Railroad Co., feupra, 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 px-operly 
 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 
 altercation.s ; that the defendant "used to 
 whip her lots of times;" that on a certain oc- 
 casion when she was impudent to the de- 
 fendant, not long before the fire, the defend- 
 ant threw her down; that on that occasion 
 the defendant assaulted her, and bit her and 
 pushed and knocked her down on the floor, 
 and when she got up she said to the defend- 
 ant, "You will be sorry. What did I do to 
 you? My mother would not knock me down;" 
 and that her troubles with her step-mother 
 were frequent; that they had trouble on ev- 
 ery rainy day; that "she was disagreeable to 
 her on rainy days." And the defendant, be- 
 fore these questions were excluded, testified 
 that a few days before the fire she and Char- 
 lotte had an altercation, and that "Charlotte 
 got mad, and pulled her down and slapped 
 her in the face, and pounded her on her 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 de- 
 fendant and Charlotte, and, if the examina- 
 tion of the defendant upon that subject had 
 been much further prolonged, it could not 
 have added any weight to the evidence al- 
 ready given on that subject. Sufficient evi- 
 dence for eveiy purpose of the trial had been 
 given to show difficulties and hostilities be- 
 tween the defendant and Charlotte, and 
 therefore it is clear that the defendant was 
 not harmed by the exclusion of further evi- 
 dence on that subject. Besides, the jury ut- 
 terly disregarded the defendant's evidence. 
 Slie denied under oath all the evidence tend- 
 ing to implicate her in the crime, and ex- 
 plicitly denied that she had stated to Char- 
 lotte her intention to burn the goods in the 
 building, and gave some evidence tending to 
 east suspicion upon Charlotte as the author 
 of the crime. Tliis is therefore a case where 
 the I'ule 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 judg- 
 ment without regard to technical errors or 
 defects, or to exceptions which do not affect 
 the substantial rights of the parties." 
 
 It is also claimed by the defendant's coun- 
 sel that the judge erred in his charge to the 
 
 494 
 
 jury. Upon the trial of the action the de- 
 fendant called several witnesses who testi- 
 fied to her good character. After fairly char- 
 ging the jury on the question of reasonable 
 doubt and the effect of good character, he 
 used this language: "And in the trial of the 
 case, if that reputation has been shown to be- [ 
 good, yet if the evidence on the trial indi- 
 cates corruptness, fraudulent practice, bad 
 heart, dishonesty, fraud, it rebuts, so far as 
 it goes, the reputation for good character; 
 that is to say, positive testimonj' of the com- 
 mission of a crime extinguishes it altogether, 
 if you believe the testimony." After he had 
 finished his charge, the counsel for the de- 
 fendant said: "The charge is very satisfac- 
 tory, and I do not rise to find any fault with 
 it. Your honor has charged that if the jury 
 find that there is reasonable doubt that they 
 must acquit. Now, I ask your honor to 
 charge that good character may be sufficient 
 to raise that reasonable doubt which requires 
 the jm'y to acquit." And the judge so char- 
 ged. Then the counsel for the defendant fur- 
 ther said: "Your honor charged that if, on 
 the trial of a case, it is shown that the per- 
 son has been corrupt and guilty of fraudulent 
 practices, it rebuts the evidence, and the im- 
 portance attached to it, of good character, — 
 is an answer to it. I do not give your hon- 
 or's precise language, but that is the sub- 
 stance, and what your honor did charge upon 
 that question, and all, I take exception; and, 
 furthermore, I ask your honor to charge that 
 these remarks are not applicable to' this 
 case." The judge refused to so charge. We 
 do not think these exceptions to the charge 
 were well taken. Tlie judge had in his 
 charge given the defendant the full benefit 
 of the evidence as to her good character. He 
 did not charge that the evidence of good 
 character was not to be taken into account 
 with all the other evidence upon the ques- 
 tion of her guilt or innocence. He did in- 
 struct them that, if there was positive testi-l 
 mony of the commission of the crime by her I 
 which the jury believe, it extinguished the 
 evidence of good character altogether. That 
 is literally true. If the Jury upon any trial 
 find positive evidence, which they believe, 
 that the defendant committed the crime char- 
 ged, it must utterly overwhelm or destroy 
 the effect of the evidence as to good cluirac- 
 ter. If the judge had charged that the jury 
 had no right to take into account the good 
 character of the defendant in the case of pos- 
 itive evidence of her guilt, it would undoubt- 
 edly have been erroneous. If he had charged 
 them that they should not weigh the evi- 
 dence as to the defendant's character with 
 all the other evidence, however strong and 
 positive, it would have been erroneous. The 
 evidence of character may, however sti'ons" 
 the other evidence is, raise a doubt in the 
 minds of the jury which the defendant is en- 
 titled to have the benefit of. If the instruc- 
 tions of the judge upon the question of char- 
 acter were not sufficiently explicit, the de- 
 
IMPEACHMENT. 
 
 [Case Xo. 167 
 
 fendant should have requested a further 
 charge calling attention to further insti'uc- 
 tions which he desired tlie jury t6 have. 
 After the judge had laid down the law quite 
 plainly pertaining to evidence of good char- 
 acter, and had at the request of the defend- 
 ant's counsel instructed the jury that good 
 character might be sufficient to raise a rea- 
 sonable doubt which required the jury to ac- 
 quit, if the defendant's counsel thought any 
 further instructions were needed to protect 
 his client he should have asked for them. 
 So, we find no error in the charge to the 
 jury. 
 
 We are also asked to reverse the judgment 
 on account of intemperate language used by 
 the district attorney in his address to the 
 jury, to which no exception whatever was 
 taken. It is a sufficient answer to this claim 
 to say that this court has no jurisdiction to 
 grant a new trial in such a case as this, un- 
 less exceptions appear in the record which 
 piesent questions of law. The supreme jourt, 
 
 under section 327 of the Code of Criminal 
 Procedure, could, in the exercise of its dis- 
 cretion, have granted a new trial in this case. 
 In the early part of that section provision is 
 made for a stay of the execution of a judg- 
 ment in a criminal case upon an appeal to 
 the supreme court, and in the last clause of 
 the section it is provided as follows: "The 
 appellate court may order a new trial if it be 
 satisfied that the verdict against the prisoner 
 was against the weight of evidence or against 
 law, or that justice requires a new trial, 
 whether any exception shall have been taken 
 or not in the court below." That clause has 
 reference only, as we have held, to appeals to 
 the supreme court. People v. Hovey, 92 N. 
 Y. 534; People v. Guidici, 100 N. Y. 503, 3 N. 
 E. 493; People v. Donovan, 101 N. Y. 632, 4 
 N. E. 181. 'We see no reason to doubt that 
 this conviction was justified by the evidence, 
 and, finding no error of law prejudicial to 
 the defendant, it should be affirmed. All con- 
 cur. 
 
 49.5 
 
Case No. 168] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 DAVIS V. COJIMONWEALTH. 
 (23 S. W. 585, 95 Ky. 19.) 
 Court of Appeals of Kentucky. Oct. 12, 1893. 
 Appeal from circuit court, Lawrence coun- 
 ty.. 
 
 Samuel Davis was convicted of murder, 
 and appeals. Affirmed. 
 
 R. T. Burns and Stewart & Stewart, for 
 appellant. W. J. Hendrick, for tihe Com- 
 monwealth. 
 
 BENNETT, C.J. Tlie appellant having 
 t)een convicted of the crime of murdering 
 Viance Tack, in the Lawrence circuit court, 
 he appeals, and complains as follows: 
 
 First. That the court erred in not allow- 
 ing him to prove by G. W. Miller that Gran- 
 ville Pearl confessed to him on his death- 
 "bed that he. Pearl, killed Viance Tack. It 
 seems to us that admissions and confes- 
 sions, as to competency, stand upon the same 
 footing. Admissions cannot be used in evi- 
 dence except against the person making 
 them in an issue between him and another 
 person, wherein the truth of the admission 
 is involved, or against his privies claiming 
 through him; and confessions are incompe- 
 tent evidence except against a person charged 
 with crime, or, in a proper state of case, 
 against his confederates. Nor is the pro- 
 posed evidence competent as a dying declara- 
 tion, because suoh evidence is only com- 
 petent when it comes from a declarant whose 
 
 49ti 
 
 personal injuries by another have resulted 
 In death, and the declarations must be con- 
 fined to the manner and circumstances of 
 the injury and to the pereon that did it. 
 
 Second. In allowing evidence to go to the 
 juiy impeaching witnesses who had testified 
 for the appellant, but who had not testi- 
 fied to any material fact for the appellant; 
 the material fact which the appellant de- 
 sired to prove by them having been exclud- 
 ed by the court. It seems to us that the 
 fact that the witness is sworn and testifies 
 entitles the adversary to impeach his gen- 
 eral reputation for truth, vrithout reference 
 to the materiality of his evidence; other- 
 wise there would be constant strife and liti- 
 gation over the question as to the material- 
 ity of the vritness' evidence, In order to de- 
 termine whether or not the impeaching evi- 
 dence was admissible. 
 
 Third. It is contended that evidence of 
 the bad character of a witness sought to be 
 impeached, two years before the time that 
 he testified, is incompetent. It is true that 
 the character of a witness at the time he 
 testifies is in issue before the court or jury, 
 but it is equally true that his reputation be- 
 fore then may be inquired into, in order to 
 throw light upon his reputation at the time 
 he testifies. There is no doubt that Viance 
 Tack was assassinated, and we think that 
 the evidence authorized the jury to believe 
 beyond a reasonable doubt that the appel- 
 lant was the guilty party. The court com- 
 mitted no error. The judgment is affirmed. 
 
CIIAUACTEU rOR VERACiTY. 
 
 [Case No. 169 
 
 NELSON V. STATE. 
 
 (13 South. 361, 32 Fla. 244.) 
 
 Supreme Court of Florida. July 15, 1893. 
 
 Error to circuit court, Marion county; 
 .lesse J. Pinley, Judge. 
 
 John Nelson, Jr., was convicted of murder 
 in the first degree, and brings error. Re- 
 versed. 
 
 Miller & Spencer, for plaintiff in error. 
 William B. Lamar, Atty. Gen., for the State. 
 
 TAYLOR, J. The plaintiff in error was in- 
 dicted and tried at the fall term, 1892, of the 
 circuit court for Marion county, for murder 
 in the first degree of one Charles Davis, the 
 trial resulting in the following general ver- 
 dict, viz.: "We, the jury, find the defendant 
 guilty." Upon the refusal of the court be- 
 low to grant his motion for a new trial, the 
 defendant was sentenced to die, and brings 
 his case here by writ of error. 
 
 The insufficiency of the verdict in not 
 specifying the degree of murder of which it 
 finds the defendant guilty is assigned as eiTor. 
 This court, at its last term, in the cases of 
 Hall V. State, 31 Fla. 176, 12 South. Rep. 449; 
 Lovett V. State, 31 Fla. 104, 12 South. Rep. 
 4.52; and Murphy v. State, 31 Fla. 166, 
 12 South. Rep. 453,— held that under the pro- 
 visions of sei-tion 2383, Rev. St., such a ver- 
 dict Is a nullity, and that no judgment or 
 sentence could legally be pronounced thereon. 
 This error is fatal to the judgment and sen- 
 tence appealed from, and necessitates its re- 
 versal. 
 
 At the trial the defendant introduced sev- 
 eral witnesses for the purpose of impeaching 
 the character for truth and vei-acity of one 
 of the witnesses for the state, by proof that 
 such witness' reputation for truth and verac- 
 ity in the community in which he lived was 
 bad, and that no credence would be given to 
 his evidence under oath. After the defend- 
 ant's witnesses, introduced for this purpose, 
 had testified that they knew the state's wit- 
 ness, and knew his general reijutation in the 
 neighborhood in wliich he lived for truth and 
 veracity, the court, over the defendant's ob- 
 jection, permitted the state attorney to break 
 into the examination in chief by a cross-ex- 
 amination as to the sources and extent of 
 the knowledge of the parties as to the repu- 
 tation and character of the witness to be 
 impeached, which ruling of the court was 
 excepted to, and is assigned as error. The 
 case of Robinson v. State, 16 Fla. 833, settles 
 the practice in such cases. When the im- 
 
 WILGUS.EV.— 32 
 
 peaching wilni'sses had answered that they 
 knew the party to be impeached, and knew 
 his general reputation for tmth and veracity 
 in the community where ho lived, the founda- 
 tion for proving what that reputation was 
 had been sufficiently laid, and the court 
 should not, at this juncture, have permitted 
 the state attorney to interfere with the ex- 
 amination in chief by a cross-examination as 
 to the sources and extent of their knowledge 
 and information as to such reputation, but 
 should have permitted the defendant to pro- 
 ceed with his examination in chief, and should 
 have allowed the witnesses to state what that 
 reputation was, and whether from that repu- 
 tation they would believe the party under 
 oath. When turned over for general cross- 
 exammation in regular order, at the close 
 of the examination in chief, the state attor- 
 ney could then, by cross-examination, test 
 the extent of the information of the witnesses 
 and the sources of their knowledge. This 
 departure, however, from the proper practice 
 in such cases, we do not now decide to be 
 reversible error, as the court below necessa- 
 rily has a wide discretion in all matters touch- 
 ing the order in wliich evidence shaU be ad- 
 mitted. 
 
 On the cross-examination of one of the de- 
 fendant's witnesses, by whom the general 
 reputation and character of the defendant 
 as a peaceful and law-abiding citizen had 
 been put in proof, the state attorney was 
 permitted by the court, over the defendant's 
 objection, to put the following question to 
 the witness: "Did you not hear or know, 
 about one week or ten days before the shoot- 
 ing of which the defendant is now charged, 
 that he was charged in yovu' neighborhood 
 with shooting into a house with a lot of 
 women in it, and that the pistol was taken 
 away from him?" Exception was taken, 
 and this ruling was assigned as error. The 
 court erred in permitting this question. 
 When character for peacefuiness or turbu- 
 lence is put in issue in such cases, the general 
 rule is that the proof thereof must be made ^ 
 by evidence of the general reputation of the 
 party in the commimity for such character, 
 and not by evidence of specific acts or con- 
 ducf; on particular occasions, (Garner v. State, 
 28 Fla. 113, 9 South. Rep. 8.35;) and, when 
 such character is put in issue, thi^ proof in- 
 terposed in rebuttal must be confined also 
 to general reputation, and not allowed to go 
 into specific acts or conduct on particular 
 occasions. 
 
 For the error .in the verdict rendered, the 
 judgment and sentence of the court below 
 are reversed, and a new trial ordered. 
 
 497 
 
Case No. 170] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 GRIFFIN V. STATE. 
 (9 S. W. 459, 26 Tex. App. 157.) 
 Court of Appeals of Texas. Oct. 13, 1888. 
 Appeal from district court, Polli county; 
 Edwin Hobby, Judge. 
 
 Crosson & Holshousen, for appellant. Asst. 
 Atty. Gen. Davidson, for the State. 
 
 HURT, J. This conviction Is for murder 
 in the second degree, the punishment being 
 iixed at confinement in the penitentiary for 
 ti"\e years. The record contains the follow- 
 ing bill of exceptions: "The state p;aced up- 
 on the stand Frank Waters, who testified 
 that a short while before the killing of Van 
 Chambers the defendant told him, as he [the 
 defendant] was on his way to attend a party 
 that night, that he was going to the party, 
 expecting to find the deceased there, and, if 
 he could get him, the said Chambers, out 
 by himself, he would kill him. Defendant 
 thereupon introduced 18 or 20 witnesses to 
 impeach the said W aters , by showing that 
 the general reputation~o? the said Waters 
 for trutli and veracity in the neighborhood 
 where he lives was bad, and from that repu- 
 tation the said Waters was not entitled to 
 be believed under oath. The state then in- 
 troduced some 10 or more witnesses to sustain 
 the reputation of said Waters; among others, 
 Dave Ballow, Polk Snow, D. S. Chandler, T. 
 J. Epperson, W. J. Wakefield, and L. F. Ger- 
 lock, of whom the state asked this question: 
 'Do you know the witness Frank Waters?' 
 They said, 'Yes.' 'Are you acquainted with 
 his reputation for truth?' They said, 'Yes,' 
 and that it was good. On cross-examination, 
 they were asked by defense: 'Did you ever 
 hear his i-eputation discussed?' They said, 
 'Never, until yesterday.' The state then 
 asked each of said witnesses: 'Have you 
 ever heard the reputation of said Waters for 
 truth and veracity impeached or impugned 
 before this?' to which defendant, by counsel, 
 objected, because the question was improper, 
 and not confined to the knowledge of said 
 witnesses as to the general reputation of the 
 said Waters in the neighborhood or commu- 
 nity where he lived. The state then asked 
 each of the following seven witneses, (nam- 
 ing them:) 'Are you acquainted with the 
 reputation of the witness Waters for truth 
 and veracity?' which being answered in the 
 affirmative, they were further asked if it' was 
 good or bad, which being answered, 'Good,' 
 they were further asked if he, the said 
 Waters, was entitled to be believed under 
 oath, — to each and all of which said ques- 
 tions the defendant excepted because they 
 were not proper in determining the general 
 reputation of said witness in the neighbor- 
 
 498 
 
 hood where he lives for truth and veracity, 
 and were permitting the witnesses to testify, 
 not as to the general reputation of Waters 
 for truth and veracity, but as to their own 
 opinion and belief, which objection was over- 
 ruled by the court, and to which defendant 
 excepts." 
 
 Two objections are made to the questions 
 and answers: (1) That the witnesses did not 
 state that they were acquainted with Wa- 
 ters' general reputation in the neighborhood 
 in which he lived. (2) That the witnesses 
 were induced to, and did, state their opin- 
 ions as to whether he was entitled to credit, 
 — not from his general reputation for truth, 
 but from their own knowledge or opinion of 
 the witness. This question is very elaborate- 
 ly discussed by Justice Bell in the case of 
 Boon V. Weathered, 2;i Tex. 675. He states 
 the rule to be that "the inquiry should be 
 practically restricted to the general character 
 of the impeached witness for truth. * * * 
 If the impeaching witness states that he is 
 acquainted with the general reputation of 
 the impeached witness for truth in the com- 
 munity where he lives, he may then proper- 
 ly be asked whether that general reputation 
 is such as to entitle the witness to credit on 
 oath. * * * Any other form of words may 
 be used, which does not involve a violation 
 of the cardinal principles that the inquiry 
 must be restricted to the general reputation 
 of the impeached witness for truth in the 
 community where he lives or is best known, 
 and that the impeaching witness must speak 
 from general reputation, and not from his 
 own private opinion." We are of opinion 
 that the questions propounded to the im- 
 peaching witnesses were not calculated to, 
 nor did they elicit the proper answers; that 
 the questions and answers were violative of 
 the cardinal principles governing this sub- 
 ject: (1) The inquiry must be restricted to 
 the general c haracter of the party sought to 
 be impeached. (2) The impeaching witness- 
 es must speak from gene ral reputation , and. 
 n ot from their private opinions as to wheth- 
 er the character of the impeached witness is 
 good or bad for tnith, or as to whether the 
 general reputation of the impeached witness 
 is such as to entitle him to credit on oath. 
 
 Venue is not proved either by direct or cir- 
 cumstantial evidence. 
 
 We call attention of the learned trial judge 
 to the fact that malice is not defined to the 
 jury. As to the necessity of defining malice, 
 see Jones v. State, 5 Tex. App. 397; Tooney 
 V. State, Id. 163; Pharr v. State, 7 Tex. App. 
 472; Harris v. State, 8 Tex. App. 90; McKin- 
 ney v. State, Id. 626; Hayes v. State, 14 Tex. 
 App. 330. The judgment is reversed, and 
 the cause remanded. 
 
COMPULSORY PUODUCTION OF EVIDEN^CE. [Case No. 171 
 
 McQUIGAN V. DELAWARE, L. & W. R. CO. 
 
 (29 N. E. 235, 129 N. Y. 50.) 
 Court of Appeals of New York. Dec. 1, 1891. 
 
 Appeal from supreme court, general 
 term, fourth department. 
 
 Action by Michael McQuigan against the 
 Delaware, Lackawanna & Western Rail- 
 road Company. Defendant appeals from 
 an order refusing to compel plaintiff to 
 submit to a physical examination Af- 
 fli'med. 
 
 Loms Marshall, for appellant. An- 
 drew Haniiltou, for respondent. 
 
 ANDREWS, J. The sole question pre- 
 sented by this record is whether the "su- 
 preme court lias power, in advance of the 
 trial of an action for a personal and phys- 
 ical injury, to compel the plaintiff, on an 
 application made in behalf of the defend- 
 ant, to submit to a surgical exaniination 
 of his person by surgeons appointed by 
 the court, with a view of enabling them 
 to testify on the trial as to the existence 
 and extent of the alleged injury. The 
 question is not new in the courts, al- 
 though, so far as we know, it was first 
 presented in 1868, before a judge of the 
 New York superior court at special term, 
 in the case of Walsh v. Sayre, 52 How. Pr. 
 ■.,334, who affirmed the existence of the 
 power. The contrary was held by the 
 general term of the third department in 
 Roberts v. Railroad Co., 29 Hun, 154. In 
 1877 the supreme court of Iowa, in the case 
 of Schroeder v. Railway Co., 47 Iowa, 375, 
 sustained the doctrine that the court had 
 an inherent jurisdiction to grant a com- 
 pulsory order that the plaintiff submit to 
 such examination, and this decision has 
 been followed by the courts of several of 
 the western and southern states, and in 
 others the power has been denied. The 
 same question was considered In the United 
 States supreme court in the recent case 
 of Railway Co. v. Botsford, 141 U. S. 2.50, 
 11 Sup. Ct. Rep. 1000, decided in May, 1891, 
 and the court (two judges dissenting) de- 
 cided adversely to the cbiim that thecourt 
 had power to compel such examination. 
 The opinions of the several courts which 
 have passed upon the question present 
 very fully the considerations bearing upon 
 It. We "concur in the view taken by the 
 supreme court of the state and the su- 
 preme court of the United States, and we 
 can add very little to the full discussion 
 to be foun^d in the opinions of thosecourts. 
 The powerS'iof courts are either statutory 
 or those which appertain to thom by force 
 of the common law, or they are partly 
 statutory and partly derived from imme- 
 morial usage, which latter constitutes 
 their inherent jurisdiction. They are or- 
 ganized for the protection of public and 
 private rights and the enforcement of rem- 
 edies. Presumptively, therefore, what- 
 ever judicial procedure is essential to en- 
 able courts to exercise their function is au- 
 thorized. The maxim chat there is no 
 right without a remedy justified the 
 courts, in the earlier periods of the com- 
 mon law, in inventinir writs and modes of 
 procedure adapted to present for adjudi- 
 cation in proper form every question of 
 
 judiciHl cognizance. The powers and ju- 
 risdiction of tiie courts ofcc^nmonlaw 
 and chancery in England are to lie found 
 in the English statutes, and in the rules, 
 precedents, decisions, and procedure of 
 the courts. The power which the courts 
 actually exercised, supplemented by statu- 
 tory powers, constitutes in a general sense 
 their jurisdiction. Upon the organization 
 here of the federal and state governments, 
 courts were constituted, and in this state 
 they succeeded to the powers theretofore 
 exercised by the courts of law and chad- 
 eery in England, so far as they were ap- 
 plicable to our situation. It is a siguili- 
 cant fact that not a trace can be found in 
 L '^ decisions of the common-law courts of 
 El^,;l and, either before or since the Revolu- 
 tion, of the exercise of a power to compel 
 a party to a personal action to submit 
 his person to exaniination at the instance 
 of the other party. If the power existed. 
 It is difficult to suppose that it would 
 not have been frequently invoked. Ac- 
 tions for assault and battery, for injuries 
 arising from negligence, and generally for 
 personal torts, were among the most 
 common known to the law, and yet, so 
 far as we can discover, in no case was it 
 supposed or claimed that the court was 
 armed with this jurisdiction. The non- 
 exercise of a power is not conclusive 
 against its existence, but it Is inconceiv- 
 able that, if the power in ques+ion existed, 
 it should have been unused For centuries, 
 and never have been called into activity. 
 In two cases cited by Justice Gray In his 
 opinion in Railwaj- Co. v. Botsford, su- 
 pra, the court of common bench in Eng- 
 land refused an order f(»r the inspection of 
 a building, on the application of tlie plain- 
 tiff in an action for work and labor per- 
 formed by him thereon, on the ground of 
 want of power. Newham v. Tate, 1 Arn. 
 244; Turquand v. Strand Union, 8 Dow, 
 201. Thesfe cases tend to negative the ex- 
 istence of the power in the English courts, 
 claimed for our courts in the case at bar. 
 The only authority in the Knglish com- 
 mon-law courts in any degree analogous 
 is found in the power which the courts of 
 England have occasionally, though rarely, 
 exercised,— to issue, on the application of 
 apparent heirs, the writ rfe ventre suspi- 
 elendo, to compel a widow claiming to be 
 with child iiy her deceased husband to 
 submit her person to examination. The 
 practice in England is sui f^eneris. and has 
 never been adopted here. It may have 
 originated in the peculiar favor shown to 
 heirs by the law of Euglaiid, but, what- 
 ever its origin, it seems repugnant to com- 
 mon right, and the fact that in this in- 
 stance only have the courts of England 
 exercised the power to compel the exam- 
 ination of the person in a civil proceeding 
 tends to show that the power is not there 
 regarded as general, but special and pecul- 
 iar, and limited to the particular case. 
 The doctrine of the cases in chancer.v, 
 (Briggs V. Morgan, 2 Hagg. Const. 324; 
 Devanbagh v. I)evanbagh, 5 Paige, 554; 
 Newell V. Newell, 9 Paige, 25,) that in an 
 action to procure a decree of nullity of 
 marriage on the ground of imiott-nceor 
 sexual incapacity the chancellor may com- 
 pel the defendant to submit to a surgical 
 examination, is a graft from the civil and 
 
 499 
 
Case No. 171] PKODUCTIOX AND EFFECT OF EVIDENCE. 
 
 common law, and, as has been said, "rests 
 upon the interest which the public, as well 
 as the parties, have in the question of up- 
 holding or dissolving the marriage state, 
 and upon the necessity oJ such evidence to 
 enable the court to exercise its jurisdic- 
 tion." Gray, J., in Railway Co. v. Bots- 
 ford, supra. 
 
 When we examine the history of the 
 power of common-law courts to compel 
 the production and inspection of booiis 
 and papers in possession of the ojjposite 
 party in a civil action, we find that 
 originally the courts disclaimed any 
 power in the matter, and the remedy by 
 bill of discovery was the only resource of 
 the party desiring such discovery. Finally 
 the commou-lawcourts assumed a limited 
 equitable iurisdictlon over the subject, 
 and, in addition to the rule that a party 
 pleading a deed should make forfeit of 
 the instrument which enabled the other 
 party to demand oyer, the courts by order 
 compelled a party who in his pleading re- 
 lied upon a written instrument, not a 
 deed, to give inspection to the other party 
 if required, and so in other special cases. 
 The courts in this state, prior to any 
 statute, exercised a limited ecjuitable ju- 
 risdiction of the same character. Law- 
 rence V. Insurance Co., 11 Johns. 215; 
 Denslow v. Fowler, 2 Cow. 592, note. But 
 this limited jurisdiction was exercised 
 sparingly and with hesitation, and it 
 was not until statutes were enacted in 
 England and in this state, conferring up- 
 on common-law courts the same power 
 to compel the discovery and inspection of 
 books and papers which was exercised 
 by courts of chancery on bills of dis- 
 covery, that courts of common law^ 
 claimed or exercised full power over the 
 rfubiect. St. 14 <fe 15 Vict. c. 99; St. 17 & 
 18 Vict. c. 125; Rev. St. p. 199. § 21. The 
 limited jurisdiction exercised by these 
 courts before the statute was i^ the nat- 
 ure of a usurpation, and, so far as we can 
 discover, it was never considered that 
 they possessed an inherent power in eld 
 of justice to grant relief in cases outside of 
 the narrow limit mentioned. The power 
 to compel an inspection of books and 
 ])aper8 relevant to the controversy, in 
 possession of either party, is of a similar 
 nature to that invoked in the present case, 
 and, if the inherent power of the court did 
 not extend to the one case, it is difficult 
 to 8upi)ose that it embraced the other. 
 The power to compel a party to submit 
 to an examination of his person has never 
 been conferred by any statute. The pro- 
 visions of the Revised Statutes authoriz- 
 ing the court to compel the production of 
 books or papers have been re-enacted 
 in the Codes of Procedure. The statutes 
 
 500 
 
 also contain specific provisions for the 
 examination of a party on oath before 
 trial, at the instance of the other party. 
 The omission in these statutesof any refer- 
 ence to the power not under consideration 
 is quite significant. We cannot say that 
 the exercise of the power claimed might not 
 in some cases promote the cause of justice, 
 and prevent the consummation of fraud. 
 On the other hand, unless carefully 
 guarded, it would be subject to grave ob- 
 jections. But we have to deal only with 
 the question of the power of the courts in 
 thp absence of any legislation. It is very 
 clear that the power is not a part of the 
 recognized and customary jurisdiction of 
 courts of law or equity. The doctrine 
 that courts have an inherent jurisdiction 
 to mould the proceedings to meet new 
 conditions and exigencies is true, but 
 in a limited sense. They cannot, under 
 cover of procedure or to accomplish jus- 
 tice in a particular case, invade recognized 
 rights of person or property. No court, 
 we suppose, can abrogate an established 
 rule of evidence, as, for example, the rule 
 that hearsay evidence is inadmissible, or 
 the rule of the common law that parties 
 shall not be witnesses, or that interest 
 disqualifies. They may apply existing 
 rules to new circumstances. Nor is it, we 
 conceive, within the power of the court 
 to create remedies unknown tothe.com- 
 mon law. or institute a procedure not 
 according to the course of the common 
 law. It is most important that courts 
 should proceed under the sanction of an 
 orderly and regulated jurisdiction, and 
 that as little as possible should be left to 
 the discretion of a judge. The exercise by 
 the court of the power now invoked, as 
 has been shown, is not sanctioned by any 
 usage in the courts of England or of this 
 state. Its existence is not indispensable 
 to the due administration of justice. Its 
 exercise, depending on the discretion of 
 the judge, would be subject to great 
 abuse. We think the assumi)tion by the 
 court of this jurisdiction, in the absence 
 ofstatute authority, would he an arbitrary 
 extension of its powers. It is a just in- 
 ference that an alleged power which has 
 lain dormant during the whole period of 
 English jurisprudence, and never attempt- 
 ed to beexercised in America until within a 
 very recent period, never in fact bad any 
 existence. We have purposely omitted to 
 repeat the views and authorities upon 
 this question set forth in the opinions in 
 Roberts V. Railroad Co., and in Railway 
 Co. v.Botsford.and we refer to those opin- 
 ions for a fuller discussion of the grounds 
 upon which the denial of the power 
 claimed proceeds. The order should be 
 afiirmed. All concur. 
 
 V/ 
 
COMPULSORY PUODUCTIOX OF EVIBEXCE. [Case Ko. 172 
 
 ARNOLD V. TAWTUXET VAL. WATER 
 CO. 
 
 (26 Atl. 55.) 
 
 Supreme Court of Rhode Island. Feb. i, 1893. 
 
 Assumpsit by John J. Arnold against the 
 Pawtuxet A'alley Water Company. Plain- 
 tiff moves for an order requiring defendant 
 to produce a book containing the record of 
 its transactions. Motion granted. 
 
 George T. Brown, for plaintiff. Dexter 
 B. Potter, for defendant. 
 
 TILLINGHAST, J. This is an applica- 
 tion under Pub St. R. I. c. 214, § 45, for an 
 order on the defendant to produce a cer- 
 tain document alleged to be in its posses- 
 sion, to be used by the plaintiff in the 
 preparation of his case for trial. The plain- 
 tiff sets out in said application that he is 
 informed and believes that the defendant 
 is in the possession and control of a certain 
 document, to wit, the book containing a 
 record of the transactions and proceedings 
 of the association in the plaintiff's declara- 
 tion mentioned, prior to its incorporation, 
 and also containing a record of the transac- 
 tions and proceedings of said defendant cor- 
 poration since its incorporation and organi- 
 zation. The plaintiff further represents 
 that it is necessary for him to examine the 
 records contained in said book, in order to 
 prepare said case for trial, and to furnish 
 the bill of particulars asked for by the de- 
 fendant. He therefore prays the court to 
 order said defendant, or the treasurer, or 
 some other officer, thereof, to answer on 
 oath as to what documents it has in its con- 
 trol relating to the matter in dispute be- 
 tween said parties, and wliat it knows re- 
 lating to the custody of any such documents, 
 and, if any such documents be in its posses- 
 sion or control, whether it objects to the 
 production of the same, and the grounds of 
 such objection. In response to an order to 
 sliow cause, the president and secretary of 
 the defendant corporation have filed an an- 
 swer under oath to said application, in 
 which they say "that said company is in 
 possession and control of the 'book contain- 
 ing a record of the transactions and proceed- 
 ings of the association in the plaintiff's dec- 
 laration mentioned prior to its incorpora- 
 tion,' which book also contains 'a record of 
 the transactions and proceeilings of said 
 defendant coriioration since its incorporation 
 and organization;' that said book is the pri- 
 vate property of said defendant, in which 
 its records are kept, and in which were 
 kept the records of said association; that 
 said book is not a 'document,' and that the 
 plaintiff is not entitled to the same." "The 
 defendant therefore objects to the produc- 
 tion of said book upon the ground that it is 
 not a 'document,' in the language of the 
 statute, and that the plaintiff is not entitled 
 to the same." The plaintiff's declaration, 
 which is referentially made a part of said 
 
 application, sets out that the plaintiff, who 
 is an attorney at law, rendered and perform- 
 ed divers legal services for the dfefendant, 
 both before and since its incorporation, and 
 that it was agreed and stipulated that, upon 
 said association becoming incorporated. It 
 should assume and take upon itself the pay- 
 ment and fulfillment of all debts, contracts, 
 obligations, and undertakings contracted, 
 entered into, and undertaken by said asso- 
 ciation prior to the organization of said cor- 
 poration; and that. In pursuance of said 
 agreement and stipulation, the said corpora- 
 tion, after its organization, did assume upon 
 itself and promise to pay the plaintiff for 
 his services so rendered to said association 
 as aforesaid. At a former hearing of said 
 application, before a single justice in chamr 
 bers, it was held that the plaintiff was enti- 
 tled to the production of said record book 
 for the purposes mentioned in said applica- 
 tion, and an order was made accordingly, 
 whereupon the defendant, upon petition, ob- 
 tained leave to reargue said question before 
 the full court, which has since been done. 
 
 The defendant contends that the record 
 book of the defendant corporation is not a 
 "document," within the meaning of said 
 statute, and hence that the court has no au- 
 thority thereunder to grant the application, 
 AVe do not think that said statute should re- 
 ceive so narrow and purely technical a con- 
 struction as this. Indeed, to so hold would 
 be to render it largely useless and inopera- 
 tive, for It is a matter of- commaa-^knowl- 
 edge that a very large proportion of the 
 written transactions of both public and pri- 
 vate coi-porations, as well as those of private 
 individuals, are either kept in book form in 
 the first instance, or are afterwards stitched 
 or bound together in such form, for preser- 
 vation and convenience. Suppose that a 
 dozen title deeds should thus be put togeth- 
 er in book form, would the book be any the 
 less a "document" than was each individual 
 deed before being thus brought together? 
 We think not. In the Revised Statutes of 
 the United States (section 869) the following 
 language is used, viz.: "And to bring with 
 him, and produce to such commissioner, any 
 paper or writing or written instrument, or 
 book, or other document," etc.; thus class- 
 ing a book as a document. In the case in 
 Re Shephard, 3 Fed. 12, documentary evi- 
 dence is held to include "books, papers, ac- 
 counts, and the like." In Johnson Steel 
 Street-Rail Co. v. North Branch Steel Co., 
 48 Fed. 191, 194, the definition of the term 
 "document" as given by Mr. Wharton in his 
 Law of Evidence (volume 1, p. 614) was 
 adopted. Said definition is as follows: "A 
 'document' is an instrument on which is re- 
 corded, by means of letters, figures, or 
 marks, matter which may be evidentially 
 used. In this sense the term 'document' ap- 
 plies to writings, to words printed, litho- 
 graphed, or photographed, to seals, plates, 
 or stones on which inscriptions are cut or 
 
 501 
 
Case No. 172] PHODUUTION AND EFFECT OF EVIDENCE. 
 
 engraved, to photographs and pictures, to 
 maps and plans." "So far as concerns ad- 
 missibility, it makes no difference what is 
 the thing on which the words or signs of- 
 fered may be recorded. Tliey may be 
 
 * * * on stone or gems or on wood as 
 well as on paper or parchment." In iler- 
 rick V. Wakley, 8 Adol. & B. 170, 172. Lord 
 Denman, C. J., refers to a book which was 
 kept by the plaintiff as a medical officer, 
 and contained entries of professional visits, 
 as a "document." Mr. Stephen (Ev. 2, 3) 
 defines a "document" as "any matter ex- 
 pressed or described upon any substance 
 by means of letters, figures, or marks, or by 
 more than one of these means, intended to 
 be used, or which may be used, for the 
 purpose of recording that matter." In the 
 statute 14 & 15 Vict. c. 99, entitled "An act 
 to amend the law of evidence," passed in 
 1851, it is provided tliat "wlienever any 
 book or other document is of such a public 
 nature as to be admissible in evidence, 
 
 * * * a copy thereof or extract therefrom 
 shall be admissible." See, also, Starkie, Ev. 
 (9th Ed.) 273, 274. The official publications 
 of the state and national governments, al- 
 though generally in book form, are denomi- 
 nated "Public Documents," the term being 
 generally abbreviated "Pub. Doc." We 
 therefore decide that a book is a "docu- 
 ment," A\-ithin the meaning of the statute 
 now under consideration. 
 
 The defendant further contends that the 
 applicant has not shown that he is "enti- 
 tled" to said book within the meaning of 
 said statute, it not appearing that he has 
 any property interest or title therein. We 
 do not think it is necessarj-, in order to 
 warrant the court to order the production 
 of. a document under said statute, that the 
 applicant should show a property title 
 therein, but that it is enough for him to 
 show that he is jiistly entitled thereto by 
 way of evidence in the preparation and trial 
 of his case, and that such evidence is neces- 
 sary to enable him fully to prosecute or de- 
 fend the same. It is not necessary, how- 
 ever, to aver or show that, without the dis- 
 covery sought, the plaintiff will be unable 
 to iH'ove his case. 2 Story, Eq. .Tur. (12th 
 Ed.) § 1483; Peck v. Ashley, 12 Mete. (Mass.) 
 478. 
 
 The final and principal contention of the 
 defendant is that, as the plaintiff has not 
 shown that it is absolutely necessary for 
 him to have access to said book in order 
 to prepare his case for trial, his applica- 
 tion should be denied. We do not assent to 
 so strict a requirement. See Marsh v. Da- 
 vison, 9 Paige, 580, 584. If, as alleged by 
 the plaintiff, the defendant corporation as- 
 sumed the debts of the association contract- 
 ed prior to the organization of said corpora- 
 tion, and if, as is also alleged, the plaintiff 
 was a creditor of said association at the 
 time of said organization, and is now also a 
 creditor of said corporation by reason of 
 
 502 
 
 services rendered to it since its organization, 
 then, and in such case, we think he is fair- 
 ly "entitled" to the production of the said 
 record book, which presumably contains the 
 doings of said corporation in the premises, 
 for the purpose of enabling him properly to 
 prepare his case for trial under the plead- 
 ings therein. Indeed, we do not well see 
 how he can establish the fact of the assump- 
 tion by the defendant corporation of the 
 debts of said association in any other way. 
 The application provided for by said stat- 
 ute (which statute is merely declaratory of 
 the common law upon the subject, — Ely v. 
 Mowry, 12 R. I. 570, 572) is evidently in- 
 tended as a substitute for the more ancient 
 and cumbersome method of a bill of dis- 
 covery for the accomplishing of the same re- 
 sult; and therefore, whenever the applica- 
 tion shows a case which would entitle the 
 plaintiff to relief under such a bill, he may 
 have such relief under the statute. 1 Pom. 
 Eq. .Tur. § 194. Thus, in Georgia, under the 
 judiciary act of 1799, the superior and in- 
 ferior courts have power to require "either 
 party to produce books and other writings 
 in his, her, or their possession, power, or 
 custody, which shall contain evidence perti- 
 nent to the cause in question, under circum- 
 stances where either party might be com- 
 pelled to produce the same by the ordinary 
 rules of proceeding in equity." In constru- 
 ing this act in Faircloth v. Jordan, 15 Ga. 
 511, 513, the court adopted the rule laid 
 down by Adams, in his Doctrine of Equity, 
 which is as follows: "A defendant is also 
 bound, if required by the plaintiff', to set 
 forth a list of all documents in his posses- 
 sion, from which discovery of the matters 
 in question can be obtained; and if the pos- 
 session of such documents, and their char- 
 acter, as fit subjects of discoveiy, can be 
 shown from the answer, he must jjermit the 
 plaintiff' to inspect or copy them." In Clif- 
 ford V. Taylor, 1 Taunt. 167, the defendant, 
 on application, was allowed to take out a 
 summons requiring the production of the let- 
 ters and papers mentioned in his affidavit, 
 Mansfield, C. J., stating in his opinion that 
 "this practice of compelling the delivery of 
 copies is very convenient, for it saves the 
 delay and expense of a bill in equity." In 
 Gould V. McCarty, 11 N. Y. 575, it was held 
 that, under a statute similar to the one 
 now under consideration in so far as the ob- 
 ject sought to be accomplished is concerned, 
 the court was authorized to compel a de- 
 fendant to make discovery of books, papers, 
 and documents in his possession or power 
 relating to the merits thereof, and which 
 are necessary to the plaintiff to enable him 
 to prepare for the trial. See, also, Gold- 
 schmidt v. Marryat, 1 Camp. 559, 562; Hill 
 V. Railway Co., 10 O. B. (N. S.) 148. In 
 Townsend v. Lawrence, 9 Wend. 458, in 
 which the facts were quite similar to those 
 in the ease at bar, the court said: "Accord- 
 ing to the principle and practice of the court 
 
COMPUL'-ORY PKODUCTION OF EVIDENCE. [Case No. 172 
 
 of chancery, a bill called a 'bill of discovery' 
 may be filed for the discovery of facts in the 
 knowledge of the adverse party, or of deeds 
 or writings or other things in his custody or 
 power; and is usually employed to enable 
 the complainant to prosecute or defend an 
 action. 1 Madd. Pr. 160; Lord Montague 
 V. Dudman, 2 Ves. Sr. 398. And if deeds, 
 letters, or other writings are referred to in 
 an answer, the same will, on the plaintiff's 
 motion, be ordered to be left with an officer 
 of the court for the inspection of the com- 
 plainant or his counsel. 2 Madd. Pr. 299; 
 Bettison v. Farringdon, 3 P. Wms. 364; Tay-. 
 lor V. Milner, 11 Ves. 42; Atkyns v. Wright, 
 14 Ves. 214." The court further said: "The 
 object of the statute was to substitute the 
 rule of court in the place of a bill of discov- 
 ery where the evidence of which a discov- 
 ery is sought is of a documentary nature; 
 and the remedy is not confined to cases 
 where the evidence in itself constitutes a 
 cause of action, but extends to all books, 
 papers, and documents relating to the mer- 
 its of the suit or defense." See, also. Post 
 V. Railroad Co., 144 Mass. 341, 11 N. K. 540; 
 Nieury v. O'Hara, 1 B'arb. 484. Had the 
 plaintiff in the case at bar filed a bill of dis- 
 covery to obtain the production of the rec- 
 ord book in question for the purpose set out 
 in his application, we think he would have 
 been clearly entitled to the relief thus 
 sought. See 2 Story, Bq. Jur. (12th Ed.) §§ 
 1483-1501. And as, under the statute be- 
 fore us for consideration, the application 
 therein provided for was intended to take 
 the place of a bill of discovery, as we have 
 already seen, we see no reason why the 
 plaintiff is not entitled to the same relief. 
 
 The cases cited by the defendant's coun- 
 sel do not controvert, in the main, the gen- 
 eral doctrine above enunciated, but princi- 
 pally have to do with what it is necessary 
 to show in the bill or application, in order 
 to warrant the granting thereof, and also 
 are to the effect that courts will not permit 
 parties to merely "fish for evidence" by such 
 a proceeding. This doctrine meets with our 
 entire approval. An application of this sort, 
 as said by this court in Ely v. Mowry, su- 
 pra, "should set forth particularly the rea- 
 sons which render it essential to the prepa- 
 ration of the defense, that the order asked 
 for should be made, so that the court may 
 determine whether or not the necessity ex- 
 ists." If the application shows that it is 
 merely an attempt to "fish for evidence," or 
 to "draw the fire" of the opposite party, for 
 the purpose of either making a case or of 
 "cooking up" a defense, or, to state it neg- 
 atively, if It does not show that the appli- 
 cant Is fairly entitled to the evidence sought. 
 
 in order to enable him to properly prepare 
 and try his case, it should be denied. The 
 case of Woods v. De Figaniere, 25 How. 
 Prac. 'iTl, which is much relied on by the 
 defendant's counsel, was one in which the 
 facts were very different from those in the 
 case at bar. In that case the entries sought 
 for were not shown to be evidence, but only 
 to contain information by which evidence 
 might be obtained. It was not alleged that 
 they were in the defendant's handwriting, 
 or that he was In any way privy to them. 
 "Possibly, by inspection," said the court, 
 "the plaintiffs may discover in whose hand- 
 writing they are, and obtain their author as 
 a witness to prove the facts contained in 
 them. * * * I apprehend the power of 
 discovering the contents of a written docu- 
 ment will hardly be stretched to cover those 
 which only furnish information to enalile 
 the applicant to ferret out evidence or wit- 
 nesses, or where it is not shown that wit- 
 nesses cannot establish the same facts with- 
 out the aid of such entries." It is true 
 that the court In that case laid down the 
 rule now contended for by the defendant, 
 — that a discovery "is not permitted in equi- 
 ty merely to enable a party to prepare for 
 trial or prevent surprise," but that "it must 
 furnish evidence to be used on the trial." 
 This statement, however, was not necessary 
 to the decision of the case, nor do the au- 
 thorities cited in support thereof sustain the 
 position taken. Moreover, the superior court 
 of the city of New York, in the case of 
 Gould V. McCarty, supra, had long before 
 decided that a defendant might be compel- 
 led to make discovery of books, papers, and 
 documents which were necessary to the 
 plaintiff to enable him to prepare for trial; 
 and this decision had been affirmed by the 
 court of appeals. See 11 N. Y. 575. In Ely 
 V. Mowry, supra, the discovery was sought 
 to aid In the preparation of the defense. 
 In Congdon v. Aylsworth, 16 R. I. 281, 18 
 Atl. 247, the discovery was asked in order to 
 enable the complainant "to prepare his case 
 for trial." The discovery of the evidence 
 sought in every case must necessarily pre- 
 cede the trial of the case In aid of which It 
 Is sought, and if, therefore, a party is en- 
 titled to the evidence to be used at the 
 trial, we see no reason why he is not equal- 
 ly entitled to it to enable him to prepare 
 for the trial. If compelled to wait for the 
 production thereof until the trial should ac- 
 tually begin, more or less delay and incon- 
 venience would necessarily result therefrom. 
 We think the plaintiff! shows a case for re- 
 lief under said statute, and we will there- 
 fore grant an order for the production of 
 said book. 
 
 503 
 
Case No. 17;'.] PRODUCTION AND EFFECT OF EVIDENCE. 
 
 JOHNSON STEEL STREET-RAIL CO. 
 > . NORTH BRANCH STEEL CO. 
 
 (48 Fed. 191.) 
 
 Circuit Court, W. D. Pennsylvr.nia. Nov. 12, 
 1891. 
 
 In equity. Bill by the Johnson Steel 
 Street-Rail Company against the North 
 Branch Steel Company for infringement of 
 a patent. Heard upon a rule for attachment 
 of John Pulton for contempt in refusing to 
 obey a subpoena duces tecum. 
 
 John R. Bennett, for rule. Geo. J. Hard- 
 ing and P. C. Knox, opposed. 
 
 REED, J. A bill in equity for infringe- 
 luent of certain letters patent having been 
 filed in the circuit court for the Eastern dis- 
 trict of Pennsylvania, and tlie defendant 
 having answered, Samuel Bell, Esq., was ap- 
 pointed by that court as a special examiner, 
 upon the application of the defendant, to 
 take testimony in this district. John Pul- 
 ton, who Is the general manager of the Cam- 
 bria Iron Company, a corporation, not a 
 party to the suit, was duly served with a 
 subpoena duces tecum, directing him to pro- 
 duce at the hearing before the examiner cer- 
 tain drawings and templates. Mr. Fulton 
 refused to produce them, although appearing 
 at the hearing in person in obedience to the 
 subpcena. Upon the argument of the rule 
 taken by the defendant's counsel to show 
 cause why an attachment for contempt 
 should not issue, counsel for Mr. Fufton ap- 
 peared, and the several positions taken in 
 opposition to the rule will be considered. 
 
 It was argued that the subpoena had im- 
 properly issued from the clerk's office; that 
 a subpoena duces tecum, in such a case as 
 the present, could only be issued by order of 
 court, upon petition or application of one 
 of the parties. A circuit court in one dis- 
 trict has power, under the 67th rule in equi- 
 ty, to appoint a special examiner to take 
 testimony in anotlier district (Railroad Co. 
 V. Drew, 3 Woods, 091, Fed. Gas. No. 17,- 
 434; In re Steward, 29 Fed. 813); and the 
 court in the latter district has power to is- 
 sue a Knbi)flena commanding a person living 
 in its district to appear and testify before 
 an examiner or master who has been ap- 
 pointed l5y the court of the former district, 
 and who is discharging the duties of his 
 appointment in the latter district; and such 
 court also has power, under the 78th rule in 
 equity, to punish such person for refusing 
 to obey such subpoena (In re Steward, 
 supra). Nor do I think it necessary that, in 
 such a case, an application must be made to 
 the latter court for an order directing the 
 subpoena duces tecum to issue, but such a 
 subpoena may issue in the usual manner 
 from the clerk's office, as in ordinary cases. 
 "If documents, the production of which is 
 desired, are in the possession of one not a 
 party to the suit, he may be compelled by a 
 subpoena duces tecum to produce them, and 
 
 504 
 
 if the subpoena is not obeyed he will be pun- 
 ished for contempt, on proof by affidavit 
 that the documents are in his custody." 3 
 Greenl. Ev. § 30.j. And such a subpoena Is 
 in ordinary and general use, and is of com- 
 pulsory obligation and effect, in courts of 
 law (Amey v. Long, 9 East, 473; Russell v. 
 McLellan, 3 Woodb. & M. 157, Fed. Cas. No. 
 12,158), and also in courts of equity (1 Dan- 
 iell, Ch. Prac. 906; U. S. v. Babcock, 3 Dill. 
 566, Fed. Cas. No. 14,484) ; and, by the 78th 
 rule in equity, subpoenas may be issued by 
 the clerk in blank, and filled up by the com- 
 missioner, master, or examiner, requiring 
 the attendance of the witness at the time 
 and place specified, and this applies as well 
 to subpoenas duces tecum. Section 869 of 
 the Revised Statutes, providing for an order 
 of court, upon which the subpcena duces 
 tecum shall issue, applies to 'cases where 
 depositions de bene esse are taken under the 
 provisions of section 863, or in perpetuam rei 
 memoriam and under a dedimus potestatem, 
 under section 866. Ex parte Fisk, 113 U. 
 S. 713, 5 Sup. Ct. 724. It does not apply 
 to testimony taken, as in the present case, 
 under the general powers of a court of equi- 
 ty, and in the mode prescribed by the equity 
 rules. An examination of the act of Janu- 
 ary 24, 1827 (4 Stat. 197), the second section 
 of which was re-enacted as section 869 of 
 the Revised Statutes, shows that it was not 
 intended to apply to all cases. 
 
 The subpoena having properly issued! the 
 remaining question is as to the validity of 
 the reasons given in support of the refusal 
 of the witness to obey the subpcena. The 
 affidavit of Cyrus Elder, Esq., attorney for 
 the Cambria Iron Company, which, it was 
 understood at the argument, should be treat- 
 ed as though it were the answer of Mr. Ful- 
 ton, says that he instructed the witness not 
 to tiroduce the articles called for by the sub- 
 poena, and his instructions were intended 
 solely to prevent the disclosure of valu.ible 
 business secrets of said Cambria Iron Com- 
 pany, and that the disclosures of the wit- 
 nesses called for, and which the witnesses 
 were required to answer and produce, re- 
 lated to a method of manufacturing a rail, 
 which method has been developed by the 
 Cambria Iron Company with great labor and 
 expense, and that it is said company's valu- 
 able private property. In the case of Bull 
 V. Loveland, 10 Pick. 9, the supreme court 
 of Massachusetts discussed the question, 
 and held that the witness was bound to an- 
 swer a question pertinent to the issue, where 
 his answer will not expose him to criminal 
 proceedings, or tend to subject him to a 
 penalty or forfeiture, although it may other- 
 wise adversely afCect his pecuniary inter- 
 ests, and said: "There seems to be no differ- 
 ence in principle between compelling a wit- 
 ness to produce a document in his posses- 
 sion, under a subpoena duces tecum, in a 
 case where the party calling the witness has 
 a right to the use of such document, and 
 
COMPULSORY PRODUCTION OF EVIDENCE. [Case No. 173 
 
 ■oompelliuf;- him to give tcstiinony when the 
 facts lie in his own Icnowledge. It has been 
 <hM'i(leiI, though it was formerly doubted, 
 that a subjKi'ua duces Iccura is a writ of 
 -<-<inn)iilsory oblifiMliou, which the court has 
 liowev to issue, and which the witness is 
 bound to obey, and which will be enforced 
 by proper jjrocess to compel the production 
 of the piii)er, when the witness has no law- 
 ful or reasonable exiuse for withholding it 
 <Amey v. L,ong, y East, 47^; Corseu v. Du- 
 bois, 1 Holt, N. P. 2.39); but of such lawful 
 or reasonable excuse the court at nisi prius, 
 and not the witijess, is the judge." 
 
 In Baird v. Cochran, 4 Serg. it R. 396, the 
 supreme court of Pennsylvania held that a 
 witness in a civil suit may be compelled to 
 give evidence which may affect his interest, 
 provided it does not tend to convict him of 
 a, crime, or subject him to a penalty, saying: 
 ■"Willi tliese exceptions, every man may be 
 c'ompi>lled, on a bill filed against him in 
 «quitj-. to declare the truth, although it 
 affect his inten st. Why, then, should he 
 not be compelled at law, except where he is 
 a party to the suit? [Parties could not then 
 under the laws of Pennsylvania testify or 
 be called to testify.] The court in which he 
 Is examined will take care to protect him 
 from questions put through impertinent 
 <uriosity, and confine his evidence to those 
 points which are really material to the ques- 
 tion In litigation. So far, his neighbor has 
 an interest in his testimony, and no further 
 ought he to be questioned." 
 
 In Ex parte Judson, 3 Blatchf. 89, Fed. 
 i'as. No. 7,561, the witness objected to testi- 
 fying, for the reason that the suit was an 
 amicable and fictitious suit, got up to enable 
 the parties to examine the witness, to obtain 
 evidence from him to be used, not in tuat suit, 
 but in other cases, then pending, in which 
 the witness was interested, and in which 
 such evidence might be used to his preju- 
 <lice; but the court held that the evidence 
 might be material, that it was bound to as- 
 sume that the case which, as in this ease, 
 was pending in another court, must be pre- 
 sumed to be genuine litigation, and that the 
 ■witness must answer. In Wertheim v. Rail- 
 way, etc., Co., 15 Fed. 71G. ,Tudge Wallace 
 held that a corporation, not a party to the 
 suit, might be compelled to produce its books 
 and papers In evidence, which might be nec- 
 essary and vital to the rights of litigants, 
 and that considerations of inconvenience 
 must give way to the paramount rights of 
 parties to the litigation. 
 
 It was further contended by counsel for 
 the witness that the articles called for by 
 the subpoena were not such as could be 'the 
 subject of a subpoena duces tecum. The 
 subpoena required the production of certain 
 ■drawings and templates. A template, as 
 stated upon the argument, is a piece of sheet 
 
 iron, the contour of which corresjjonds to 
 the opening between the rolls. It was held 
 in the C-.isv nt Shcjiliard, 3 Fed. 12, that a 
 subpoena duces tecum can only be used to 
 compel the production of NX'ritten instru- 
 ments, papers, books, or documents, and 
 that patterns for stove castings were not the 
 subject of such a writ. I think that the 
 subpoena cannot be enforced as to the tem- 
 plates. A document, however, is defined as 
 "an instrument upon which is recorded, by 
 means of letters, figures, or marks, matter 
 which may evidentially be used. In this sense 
 the term applies to writings; to words print- 
 ed, lithographed, or photographed; to seals, 
 plates, or stones on which inscriptions are 
 cut or engraved; to photographs and pic- 
 tures; to maps and plans. So far as con- 
 cerns admissibility, it malces no difCei'ence 
 what is the thing on which the words or 
 signs ofCered maj^ be recorded. They may 
 be on stones, or gems, or on wood, as well 
 as on paper or parchment." 1 Whart. Ev. § 
 614. So far as material, then, the drawings 
 called for by the subpoena should be pro- 
 duced, and the final question is how far they 
 are material. 
 
 The bill in this case is based upon an 
 allegation of infringement of a patent grant- 
 ed March 29, 1887. Defense is made that the 
 patent is void for insufficiency of invention, 
 in view of the prior state of the art, and 
 also that the Invention claimed has been in 
 public use for more than two years prior to 
 the date of the application, which was made 
 August 12, 1886. It appears in testimony 
 that rails of the general character of that 
 covered by the patent in controversy were 
 rolled by the Cambria Iron Company, under 
 an arrangement with the plaintiff company, 
 for the latter company, in 1882, and from 
 that time down to the date of the patent. It 
 would seem to be material and pertinent, 
 therefore, to the issue, to inquire Into this 
 matter, and the defendant is entitled to the 
 production of such drawings as will show 
 the form of rolls used for that purpose, 
 down to the date of the patent. The form 
 of rolls used since has not been shown to be 
 material to the issue. My conclusion upon 
 this subject is based upon the presentation 
 of the case by counsel, upon only a part of 
 the testimony, and is not intended to, in any 
 manner, anticipate or influence the decision 
 by the circuit court for the Eastern district 
 of the materiality or relevancy of the testi- 
 mony, of which it alone must finally judge. 
 "When the witness produces the drawings 
 called for by the subpoena, in accordance 
 with this opinion, and pays the costs of this 
 application, the rule will be discharged, it 
 appearing that no disobedience of the sub- 
 poena was intended; but this mode was 
 taken by counsel to test the questions In- 
 volved. 
 
 505 
 
INDEX. 
 
 Account books (Cases 44, 45, 59, 60-62). 
 Accomplices, evidence of (Case 147). 
 Admissions (Cases 12, 10, 28-35, 45, 90, 91, 
 163). 
 
 by agents (Cases 28, 32, 35). 
 
 by attorneys (Case 28). 
 
 by failing to deny statements (Cases 15, 
 28). 
 
 by offer of compromise (Case 34). 
 
 by person in possession (Case 20). 
 
 by person not in possession (.Case 30). 
 
 by referee (Case 33). 
 
 in cases of fraud (Case 31). 
 
 in pleadings (Cases SJO and 91). 
 Affidavits (Case 1-34). 
 Agent, admissions of (Cases 28, 32, 35). 
 
 declarations of (Case 11). 
 Almanac, judicial notice of (Case 76). 
 Ambiguity, parol evidence to remove (Case 
 
 120). 
 Ancient documents (Cases 41, 104). 
 Attorney, admissions of (Case 28). 
 
 communications to (Cases 135, 137-140). 
 
 B 
 
 Best evidence (Case 78). 
 
 Bill of exceptions as evidence (Case 113). 
 
 Books, account (Cases 59-62). 
 
 corporation (Cases 44, 45). 
 
 medical and scientific (Case 7.3). 
 Burden of proof (Cases 6, 83, 122-127, and 
 l57). 
 
 Character (Cases 24, 25, 162, 166, 108-170). 
 Children as vi^itnesses (Case 129). 
 Circumstantial evidence (Case 6). 
 Collateral facts (Cases 2, 7, 8, and 161). 
 Compulsory physical examination (Case 171). 
 Communications, privileged (Cases 13.5-142). 
 
 to attorneys (Cases 135, 137-140). 
 
 to husband or wife (Cases 130-132). 
 
 to public officers (Cases 135, 136). 
 Confessions (Cases 14, 18, 30, 37, 39, 40, 108). 
 
 before grand jury (Case 39). 
 
 facts obtained by (Case 38). 
 
 inducements to (Case 37). 
 Conspiracy (Cases 13, 17). 
 Contracts, parol evidence as to (Cases 114- 
 
 121). 
 Copies, certified (Cases 97, 105, 106). 
 
 deeds (Case 102). 
 
 lettei-press (Cases 110-112). 
 
 WILGUS.BV. 
 
 Corporation, books of (Cases 44 and 45). 
 Corroboration of witnesses (Cases 19, 144^- 
 
 147). 
 Course of business (Cases 16, 19, 59, 60, and 
 
 62). 
 Cross-examination (Cases 57, 72, 77, 155-101, 
 
 167). 
 Custom, evidence of (Case 146). 
 
 D 
 
 Declarations, agent's (Case 11). 
 
 against interest (Cases (')3, 140). 
 
 dying (Cases 57, 58, 134). 
 
 former (Case 163). 
 
 public rights (Case 65). 
 
 showing state of mind (Case 15). 
 
 self-serving (Case 9). 
 
 stranger's (Case 12). 
 
 testator's (Case 64). 
 Deeds, ancient (Cases 41, 104). 
 
 oral evidence concerning (Cases 41, 102, 
 121). 
 Depositions (Cases 24, 102, 122, 149, 150). 
 Direct evidence (Case 6). 
 Discovery (cases 171-173). 
 Documeni;g, ancient (Cases 41, 104). 
 
 pubUc (Cases 41, 97, 98, 105-107, 
 writings), 
 inspection of (Cases 72, 98). 
 
 proof of (Cases 101-103). 
 Doubt, reasonable (Cases 0, 38). 
 Dying declarations (Cases 57, 58, 134). 
 
 See 
 
 E 
 
 Equity, answer in (Case 145). 
 
 discovery in (Case 172). 
 Estoppel (Case 127). 
 Evidence, best (Case 78). 
 
 circumstantial (Case 0). 
 
 corroborative (Cases 19, 144-147). 
 
 direct (Case 6). 
 
 incompetent (Case 11). 
 
 indirect (Case 6). 
 
 prima facie (Case 1(1). 
 
 primary (Cases 78, 97-100, 108, 109). 
 
 secondary (Cases 108-113). 
 Examination of witnesses, chief (Cases 151- 
 154). 
 
 cross (Cases 155-161). 
 
 re-examination (Cases 30, 162, 1G3). 
 Exceptions (Cases 33, 68, 113, 137, 140, 158). 
 
 bill of, authentication (Case 132). 
 as evidence (Case 113). 
 Experts (Cases 13, 24, 72-75, 156). 
 Explanatory facts (Cases 20, 21). 
 (507) 
 
508 
 
 INDEX. 
 
 F 
 
 Facts, collateral (Cases 2, 7, 8, and 101). 
 explanatory (Cases 20, 21). 
 in issue (Cases 4, .5. 122). 
 possibly connected with issue (C:ise 23). 
 showing forgery (Cases 2. 17. 18). 
 fraud (Cases 19, 77). 
 plan, etc. (Case 3). 
 
 probable cause, etc. (Cases 14, 15, 57). 
 tending to criminate (Cases 141-143). 
 Forgery, facts showing (Cases 2, 17, 18). 
 Former suit, evidence in (Case 5(i). 
 Fraud, facts showing (Cases 19, 31). 
 Function of judge (Cases 3, 15, 133, 140). 
 
 G 
 
 Geographical facts, judicial notice of (Gases 
 
 86, 87). 
 Governor, communications to (Case 136). 
 
 Handwriting (Cases 17, 76, 77, 89). 
 
 Hearsay (Cases 6, 26, 27, 36). 
 
 Hostile witness (Case 167). 
 
 Husband and wife as witnesses (Cases 130- 
 
 132). 
 Hyijothetical questions (Case 72). 
 
 Impeachment of witnesses (Cases 11, 159, 
 161-165, 168-170). 
 
 of one's own witness (Cases 164, 165). 
 Indirect evidence (Case 6). 
 Infant as witness (Case 129). 
 Insane person as witness (Case 128). 
 Inspection of documents (Case 98). 
 
 of injured limb (Case 72). 
 Intent,, evidence to show (Cases 2, 3, 14, 15, 
 17-19, 33, 57). 
 
 Judge, function of (Cases 3, 15. 133, 140, 141). 
 
 discretion of (Case 15). 
 
 as witne.ss (Case 133). 
 Judfinients (Cases 4, 4(J-.>3, 55, 80, 113). 
 
 in criminal proceedings (Case ."i2). 
 
 in ejectment (Case 52). 
 
 in personam (Cases 50, 53). 
 
 in rem (Cases 50, 51). 
 Judicial notice (Cases 74, 76, 79-89, 97). 
 
 almanac (Case 76). 
 
 appellate proceedings (Case 81). 
 
 changes in office (Case 82). 
 
 character of river (Case 86). 
 
 coincidence of days of week and month 
 (Case 89). 
 
 laws of other states (Cases 80 uiul 81). 
 
 location of ])lacps (Cases 85, 87). 
 
 seals, etc. (Cases S3, S4). 
 
 seasons, etc. (Case 88). 
 
 signatures of ofHcers, etc. (Case 83). 
 
 United States money (Case 79). 
 
 Juror as witness (Case 134). 
 
 Jury to decide on evidence produced (Case 1). 
 
 Laws of another state (Cases 80, 81, 107). 
 conflict between state and federal (Case 
 130). 
 Letter, mailing, presumption of delivery (Case 
 16). 
 press copies of (Ca,ses 110-112). 
 Life tables as evidence (Case 42). 
 
 M 
 
 Maps as evidence (Cases 43, 801. 
 Money, judicial notice of (Case 79). 
 Moti-s-e, facts showing (Case 57). 
 Municipal corporations, evidence of acts of 
 (Case 155). 
 
 N 
 
 Natural history, judicial notice of facts of 
 
 (Cases 86-89). 
 Notice to produce documents (Cases 172, 173). 
 
 o 
 
 Oath, requirement of (Case 148). 
 Objections to evidence, time of (Case 68). 
 Officers, public, judicial notice (Case 82). 
 Open and close, right to (Cases 125-127). 
 Opinions (Cases 24. 68-73). 
 
 of experts (Cases 72, 73). 
 Oral evidence in connection with writings 
 
 (Cases 46, 97-100, 114-121). 
 Owner, admissions by (Cases 29, 30). 
 
 Parol evidence. In connection with writings 
 (('uses 46, 97-100, 114-121). 
 
 ancient deeds, etc. (Cases 41, 104). 
 
 copies (Cases 97, 102, 105, 106, 110-112). 
 
 deeds (Cases 41, 102, 104). 
 
 duplicates (Case 100). 
 
 public documents (Cases 41, 105-107). 
 Pedigree (Cases 55, 66, 67). 
 Perjury (Cases 19, 144). 
 Photographs ((^ase 43). 
 Physicians, statements to (Case 72). 
 Plan, facts showing (Case 3). 
 Plats, etc. (Case 97). 
 Possessor, admissions by (Cases 29, 30). 
 Prepai-ation, facts showing (Case 3). 
 Presumptions (Cases 16, 92-96, 105). 
 Primary evidence (Cases 78, 97-100, 108, 109, 
 
 158). 
 Privileged communications (Cases 135-140). 
 
 to attorneys (Cases 135, 137-140). 
 
 to husband or wife (Cases 130-132). 
 
 to public officers (Cases 135, 136). 
 Proof, burden of (Cases 6, S3, 122-127, 157). 
 Public documents, records, etc. (Cases 41, 98, 
 105-107, 109). 
 
 officers, judicial notice (Cases 82, 83). 
 communications to (Cases 135, 136). 
 
 rights, declarations as to (Case 65). 
 
INDEX. 
 
 bO'J 
 
 Questions, hypothetical (Cases 72, 75). 
 leading (Case 153). 
 
 R 
 
 Reasonable douht (Cases 6, 38). 
 
 Recitals in public documents (Cases 41, 54). 
 
 Records, public (Cases 41, 98, 105-107, 109). 
 
 custody of (Case 105). 
 
 inspection of (Case 98). 
 Re-examinatlon of witness (Cases 30, 162, 
 
 163). 
 Referee, admissions of (Case 33). 
 Relevancy (Cases 2, 43). 
 Reputation (Cases 24, 25, 54, 55, 162, 166). 
 Res gestae (Cases 6, 9, 10-12, 137). 
 Res inter alios (Cases 22, 113). 
 Right to open and close (Cases 12.V127). 
 Rights, public, declarations as to (Case (ii'i). 
 
 S 
 
 Scientific books, etc. (Case 73). 
 
 Seals, etc., judicial notice of (Cases 83, 84). 
 
 Secondary evidence (Cases 108, 109, 113). 
 
 degrees of (Cases 110-112). 
 Signature of officers, judicial notice (Case 83). 
 Similar facts, occurrences, etc. (Cases 2, 3, 14, 
 
 15, 17-19, 77, 128). 
 State secrets (Case 136). 
 State's evidence, turning (Case 147). 
 Stociiholders and stock books of covporaticjns 
 
 (Cases 44, 45). 
 Subpoena duces tecum (Case 173). 
 
 Telegrams, vs'hat is original (Case 158). 
 Telephone communications (Case 27). 
 Testator, declarations as to contents of ■will 
 (Case 64). 
 
 U 
 Usage, evidence of (Case 146). 
 
 Value, evidence of (Cases 22, 156). 
 
 Variance (Cases 5, 68). 
 
 Veracity, evidence of reputation (Cases 168- 
 
 170). 
 Verdict, against evidence (Case 1). 
 
 W 
 
 Witness, absent or deceased (Case 56). 
 
 agreement to turn state's evidence (Case 
 
 147). ■ 
 cluiracter of (Cases 24, 25, 162, 166, 168- 
 
 170). 
 competency of husband or wife (Cases 
 130, 131). 
 infants (Case 129). 
 insane (Case 128). 
 judge (Case 133). 
 juror (Case 134). 
 compulsory physical examination of (Case 
 
 171). 
 cross-examination of (Cases 57, 72, 77, 
 
 155-161). 
 examination in chief (Cases 151-155). 
 hostile (Case 167). 
 impeaching (Cases 11, 159, 161-170). 
 
 one's own witness (Cases 164, 16.5). 
 nvunber of, in particular cases (Cases 144- 
 
 147). 
 privilege not to criminate himself (Cases 
 
 141-143). 
 re-examination of (Cases 162, 163). 
 WritinKs {sae documents, public records, con- 
 tracts, deeds, etc.). 
 Cases 41, 46, 97-121). 
 
 WEST PUBLIBHINli CO., PHINTEB8 AND STEltBOTYPERS, ST. PAUL, MINN. 
 
KF- 893^^ W67 
 
 
 Author 
 
 WilguSj H. L. 
 
 Vol. 
 
 Title 
 
 Cases on the Law of Evidence 
 
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